Independent contractor: Do on call legal interpreters count?

Consideration of On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366.

A recent article posted to Mondaq by Clayton Utz says of the case that it “again show(s) how difficult it is to prove if someone providing services is an independent contractor or an employee - and how expensive getting this wrong can be.”

The test of whether a person is an independent contractor taken from the case was as follows: “is the person performing the work an entrepreneur who owns and operates a business; and, in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?”

In the cases it was found that: “Although the interpreters generally considered themselves as independent contractors, they did not generally use business names (although they had an ABN), poach clients, have goodwill attached to a business, advertise their services, sub-contract, or hold their own insurance. All but two were therefore held not to own and operate their own businesses, so the second question did not arise.

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