Australian Capital Territory Current Acts

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Meaning of total wages

    (1)     In this Act:

"total wages" means total wages worked out as prescribed by regulation.

    (2)     The Legislation Act

, section 47 (3) does not apply to a regulation under this section.

Note 1     Working out who is a worker

The following chart is a guide for working out if a person ( X ) is a worker for this Act.

Note 2     Payment for work

Most people who are workers under this chapter are employed or engaged under a contract with someone else. At common law, a contract cannot exist unless there is a valuable exchange between the people on both sides of the contract, by which—

              •     the employee (or contractor) provides his or her labour to the employer (or principal); and

              •     the employer (or principal), in exchange, provides payment to the employee (or contractor), including non-monetary rewards (eg payment in kind).

The exceptions under this chapter are those who are taken to be workers under s 14 (Trainees), s 16A (Family day care educators), s 17 (Religious workers), s 18 (Commercial voluntary workers) and s 19 (Public interest voluntary workers). Trainees and religious workers may or may not be paid for their labour. Voluntary workers (under s 18 and s 19) are those that are paid only for expenses (if that).

Note 3     Subcontracting and labour hire (effect of s 13)

The Act applies in a special way to subcontracting arrangements, by which—

              •     a worker is engaged to work for a person who is the employer of the worker (under this chapter); and

              •     the employer has engaged the worker to fulfil a contract the employer has with someone else (in this note, a principal ) to do work for the principal's trade or business.

Under s 13, the principal is liable to pay compensation to the worker if the worker is injured. The principal may, however, recover the compensation paid from the employer.

These situations may be complicated by the involvement of labour hirers, who may in some circumstances be taken to be the employer of workers engaged to do work for a principal (see s 12). Here are 3 illustrations of different subcontracting arrangements:

    Arrangement 1 No labour hirer

A bricklayer's labourer (the worker ) is employed by a bricklayer (the employer ) to assist the bricklayer to fulfil a contract between the bricklayer and a builder (the principal ).

The bricklayer is the labourer's employer.

    Arrangement 2 Labour hirer as employer

A cleaner (the worker ) is engaged by a labour hirer (the employer ) to fulfil a contract between the labour hirer and the owner of a retail store (the principal ) for the cleaning of the store. The labour hirer is taken (under s 12) to be the employer of the cleaner, because the cleaner has no contractual relationship with the owner of the store.

The labour hirer is the cleaner's employer.

    Arrangement 3     Labour hirer as employment agent

A keyboard operator (the worker ) is employed by an information technology consultant (the employer ) to fulfil a contract between the consultant and a government agency (the principal ). The consultant recruits the operator through a labour hirer acting as an employment agent.

The consultant is the operator's employer.

Under all of these arrangements, the worker may claim compensation from either the employer or the principal (see s 13 (2) and (4)). If the principal pays compensation to the worker, the principal may claim repayment from the employer (see s 13 (3)). But in the 3rd arrangement ( Labour hirer as employment agent ), the worker may not claim compensation from the labour hirer, and the principal may not seek repayment of compensation from the labour hirer.

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