Common use of Avoidance of Sham Contracting Clause in Contracts

Avoidance of Sham Contracting. (i) The persons covered by this Agreement acknowledge that sham contracting has the potential to undermine fair employment practices, erode Employee entitlements and affect the job security of Employees covered by this Agreement. For this reason, the following is agreed. (ii) The Employer shall not enter into a contract with another person (the contractor) under which services in the nature of work are to be provided to the Employer, if: (A) the services are to be performed by an individual (who is not the contractor); and the individual has any ownership in, or is an officer or trustee of, the contractor; and (B) if the contract were entered into with the individual, the contract would be a contract of employment. (iii) The Employer shall not, where it is employing, or proposing to employ, an individual, represent to the individual that the contract of employment under which the individual is, or would be, employed by the Employer, is a contract for services (whether via a contract with the individual or with an entity in which the individual has any ownership in, or is an officer or trustee of) under which the individual performs, or would perform, work; (iv) The Employer shall not dismiss, or threaten to dismiss, an individual who is an Employee of the Employer in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services entered into with the individual or with an entity in which the individual has any ownership in, or is an officer or trustee of; or (v) The Employer shall not make a statement that the Employer knows is false in order to persuade or influence an individual to enter into a contract for services (whether via a contract with the individual or with an entity in which the individual has any ownership in or is an officer or trustee of) under which the individual will perform, the same, or substantially the same, work for the Employer. (vi) Disputes about this clause: (A) Where a breach of this clause is alleged and is not resolved after attempts have been made with the Employer, an Employee (or their chosen representative) may refer the allegation directly to the Disputes Board for conciliation and/or arbitration. (B) The Disputes Board’s has exclusive jurisdiction in respect of such disputes, and its determination shall be final and binding on the persons covered by this Agreement (and there shall be no right of review by FWC in respect of such a decision). The Employees and the Employer will comply with the requests of the Disputes Board including requests to provide substantiating information or undertaking an independent audit of their arrangements. For the avoidance of doubt, an affected Employee may appoint a representative in relation to such matters. (C) Where a dispute exists, the Employer or their representative will make themselves available to assist this dispute resolution procedure. (D) Where the Disputes Board Chair deems it necessary due to seriousness of the allegations and/or his/her findings, he or she may refer the matter to the appropriate government authority. (E) Where it is agreed, or determined by the Disputes Board, that a breach of this clause has occurred and but for the breach, the person ought properly have been an Employee under this Agreement, the parties will attempt to reach agreement on the calculation of any entitlements owing under the proper application of this Agreement on the basis that the person should have been treated as an Employee. Where the parties are in any disagreement, the Disputes Board may determine the amount of the entitlements owing, which will be binding. (F) The affected Employee will be re-inducted and informed of their entitlements under this Agreement and the FWA. (G) A decision of the Disputes Board made pursuant to this clause must not be inconsistent with the Building Code 2016 or legislative obligations. (vii) The Employer must ensure that a person engaged as an Employee or as an independent contractor is lawfully entitled to be so engaged under Australian law.

Avoidance of Sham Contracting. (i) The persons covered by this Agreement acknowledge that sham contracting has the potential to undermine fair employment practices, erode Employee employee entitlements and affect the job security of Employees employees covered by this Agreement. For this reason, the following is agreed. (ii) The Employer shall not enter into a contract with another person (the contractor) under which services in the nature of work are to be provided to the Employeremployer, if: (A) the services are to be performed by an individual (who is not the contractor); and the individual has any ownership in, or is an officer or trustee of, the contractor; and (B) if the contract were entered into with the individual, the contract would be a contract of employment. (iii) The Employer shall not, where it is employing, or proposing to employ, an individual, represent to the individual that the contract of employment under which the individual is, or would be, employed by the Employeremployer, is a contract for services (whether via a contract with the individual or with an entity in which the individual has any ownership in, or is an officer or trustee of) under which the individual performs, or would perform, work; (iv) The Employer shall not dismissdismisses, or threaten threatens to dismiss, an individual who is an Employee employee of the Employer employer in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services entered into with the individual or with an entity in which the individual has any ownership in, or is an officer or trustee of; or (v) The Employer shall not make a statement that the Employer knows is false in order to persuade or influence an individual to enter into a contract for services (whether via a contract with the individual or with an entity in which the individual has any ownership in in, or is an officer or trustee of) under which the individual will perform, the same, or substantially the same, work for the Employer. (vi) Disputes about this clause: (A) Where a breach of this clause is alleged and is not resolved after attempts have been made with the Employer, an Employee (or their chosen representative) may refer the allegation directly to the Disputes Board for conciliation and/or arbitration. (B) The Disputes Board’s has exclusive jurisdiction in respect of such disputes, and its determination shall be final and binding on the persons covered by this Agreement (and there shall be no right of review by FWC in respect of such a decision). The Employees and the Employer employer will comply with the requests of the Disputes Board including requests to provide substantiating information or undertaking an independent audit of their arrangements. For the avoidance of doubt, an affected Employee employee may appoint a representative in relation to such matters. (C) Where a dispute exists, the Employer or their representative will make themselves available to assist this dispute resolution procedure. (D) Where the Disputes Board Chair deems it necessary due to seriousness of the allegations and/or his/her findings, he or she may refer the matter to the appropriate government authority. (E) Where it is agreed, or determined by the Disputes Board, that a breach of this clause has occurred and but for the breach, the person ought properly have been an Employee employee under this Agreement, the parties will attempt to reach agreement on the calculation of any entitlements owing under the proper application of this Agreement agreement on the basis that the person should have been treated as an Employeeemployee. Where the parties are in any disagreement, the Disputes Board may determine the amount of the entitlements owing, which will be binding. (F) The affected Employee employee will be re-inducted and informed of their entitlements under this Agreement and the FWAFair Work Act. (G) A decision of the Disputes Board made pursuant to this clause must not be inconsistent with the Building Code 2016 or legislative obligations. (vii) The Employer must ensure that a person engaged as an Employee employee or as an independent contractor is lawfully entitled to be so engaged under Australian law.

Avoidance of Sham Contracting. (i) i. The persons covered by this Agreement acknowledge that sham contracting has the potential to undermine fair employment practices, erode Employee employee entitlements and affect the job security of Employees employees covered by this Agreement. For this reason, the following is agreed. (ii) . The Employer shall not enter into a contract with another person (the contractor) under which services in the nature of work are to be provided to the Employeremployer, if: (Ai) the services are to be performed by an individual (who is not the contractor); and the individual has any ownership in, or is an officer or trustee of, the contractor; and (Bii) if the contract were entered into with the individual, the contract would be a contract of employment. (iii) . The Employer shall not, where it is employing, or proposing to employ, an individual, represent to the individual that the contract of employment under which the individual is, or would be, employed by the Employeremployer, is a contract for services (whether via a contract with the individual or with an entity in which the individual has any ownership in, or is an officer or trustee of) under which the individual performs, or would perform, work; (iv) . The Employer shall not dismiss, or threaten to dismiss, an individual who is an Employee employee of the Employer employer in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services entered into with the individual or with an entity in which the individual has any ownership in, or is an officer or trustee of, unless that individual agrees; or (v) v. The Employer shall not make a statement that the Employer knows is false in order to persuade or influence an individual to enter into a contract for services (whether via a contract with the individual or with an entity in which the individual has any ownership in in, or is an officer or trustee of) under which the individual will perform, the same, or substantially the same, work for the Employer. (vi) . Disputes about this clause: (Ai) Where a breach of this clause is alleged and is not resolved after attempts have been made with the Employer, an Employee (or their chosen representative) may refer the allegation directly to the Disputes Board FWC for conciliation and/or arbitration. (Bii) The Disputes Board’s has exclusive jurisdiction in respect of such disputes, and its determination shall be final and binding on the persons covered by this Agreement (and there shall be no except where the right of review by FWC in respect of such a decision). The Employees and the Employer will comply with the requests of the Disputes Board including requests to provide substantiating information or undertaking an independent audit of their arrangements. For the avoidance of doubt, an affected Employee may appoint a representative in relation to such mattersdecision is exercised by either party. (Ciii) Where a dispute exists, the Employer or their representative will make themselves available to assist this dispute resolution procedure. (D) Where the Disputes Board Chair deems it necessary due to seriousness of the allegations and/or his/her findings, he or she may refer the matter to the appropriate government authority. (Eiv) Where it is agreed, or determined by the Disputes BoardBoard or FWC, that a breach of this clause has occurred and but for the breach, the person ought properly have been an Employee employee under this Agreement, the parties will attempt to reach agreement on the calculation of any entitlements owing under the proper application of this Agreement agreement on the basis that the person should have been treated as an Employeeemployee. Where the parties are in any disagreement, the Disputes Board FWC may determine the amount of the entitlements owing, which will be binding. (Fv) The affected Employee employee will be re-inducted and informed of their entitlements under this Agreement and the FWAFair Work Act. (Gvi) A decision of the Disputes Board made pursuant to this clause must not be inconsistent with the Building Code 2016 or legislative obligations. (vii) . The Employer must ensure that a person engaged as an Employee employee or as an independent contractor is lawfully entitled to be so engaged under Australian law.