Employee or Contractor – What’s in a Name?

construction-worker

The signed contract clearly states that the person you hired is an independent contractor, so that makes them an independent contractor…right? Ahh…if only it were that simple.

Establishing whether the legal relationship created under contract is that of employer/employee or principal/contractor isn’t always straightforward, and if you get it wrong it could end up costing you a lot of money.

Simply including a clause in the contract labelling a person as a contractor will not be sufficient to create that type of arrangement. If a dispute arises, a court will look beyond this label and examine the terms of the contract and the relationship as a whole.

An employer who deliberately or recklessly misrepresents an employee as an independent contractor will find themselves in hot water with the Fair Work Commission.

Additionally, a contract of employment can entitle an employee to numerous rights including:

  • Minimum wage and modern awards
  • Working conditions
  • Leave entitlements
  • Occupational health and safety protections
  • Workers Compensation
  • Superannuation contributions
  • Withholding of income tax
  • Protections against unfair dismissal
  • Reimbursement for work-related expenses; and
  • Union membership and industrial action

Failing to meet employer obligations exposes individuals and companies to a wide range of liabilities under civil and criminal law. This can all be avoided by getting the right legal advice before hiring.

Every case has its own peculiarities- see our engineering and construction page, or contact us to find out what Australaw can do for you.

YouTube Videos and Content ID – Fair Use or Copyright Abuse?

pexels-photo-youtube

YouTube provides a user-friendly platform for uploading and sharing content on the internet to millions of potential viewers.  Individuals and corporations can utilise this medium to advertise skills and services, share opinions and advice or promote their latest products. Videos can even be monetised to earn the user ad revenue from views.

So why would YouTube block that video of your cat modelling your company’s latest range of feline fashion apparel, set to LMFAO’s ‘I’m Sexy and I Know It’?’ …Well, that’s because YouTube doesn’t want to get sued for copyright violation by Redfoo (no matter how fierce Mr Whiskers looks in that onesie).

YouTube has obligations under copyright law to remove or block content uploaded by its users which violates copyright. If YouTube fails to do this, they can end up being held directly liable. In 2007, YouTube started using Content ID – a system created by Google to automatically locate and remove infringing material on its site. The system works by inviting rightsholders to upload their original content to a database controlled by YouTube. The content is scanned and given a unique fingerprint. When a user uploads a video to YouTube, Content ID will scan this video against the database of copyrighted content. If a match is found, the rightsholder is notified and they are given the power to block, mute, monetise or track the video.

Uploading your favourite Seinfeld episode or music video to YouTube without permission is a clear violation of copyright, but the law does offer some exceptions to certain uses of copyrighted material.

There are a number of ways in which copyrighted content can be used legitimately by others – this is known as ‘Fair Use’ (or ‘Fair Dealing’ under Australian legislation). If your video falls under an exception, then you can dispute a Content ID claim and, if successful, YouTube will reverse any changes that were made to your video.

Every case has its own peculiarities- see our media page for what Australaw can do for you. Australaw can help you with a range of legal issues- contact us for more information.