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HIA recognises the following as hallmarks of an independent business operating in the housing sector. Where contractors display these hallmarks they should, prima facie, be considered independent contractor businesses for industrial relations and taxation purposes.
An independent business, and the principal that contracts the independent business, intend to enter into a commercial arrangement and do not intend for a relationship of employee/employer to arise from the commercial arrangement. The parties to the commercial arrangement intend that the independent business will not receive employment related entitlements and that no deduction of income tax is to be made from the payments (subject to any voluntary withholding agreement available under the taxation laws), signifying a mutual intention that the relationship not be one of employee/employer.
An independent business will have:
Where practicable an independent business will provide the tools and equipment that a business carrying out work of the nature contracted by the principal would reasonably be expected to provide to satisfy the terms of the contract. The value or quantum of such tools and equipment is immaterial provided the tools are sufficient to discharge the obligations arising under the contract. The independent business will be responsible for the maintenance of the tools and equipment necessary for the job.
An independent business will provide the skills and labour that a business carrying out work of the nature contracted by the principal would reasonably be expected to provide to satisfy the terms of the contract.
The discretion to subcontract or employ other people to provide skills and labour will lie with the independent business and whether the independent business elects to exercise this discretion is immaterial provided the discretion to delegate is inherent within the terms of the contract.
An independent business will have the discretion to adopt any working methods it sees fit to complete the scope of works agreed to under contract, subject to any requirement imposed by the principal contractor with respect to compliance with the law and occupational health and safety requirements. It matters not that the principal contractor does or seeks to exercise some level of control if this does not amount to a right to control.
An independent business will have a right to:
Whether this right is actually exercised is a business decision and a matter of no consequence. It is sufficient that the right exists.
An independent business chooses to enter into a commercial contract in order to make profit from undertaking the work and in doing so consciously takes on a risk of loss. Starting any business is fraught with risk and some individual projects may be accompanied with greater commercial risk than others.
Whilst an independent business person has eschewed the guarantees of employment law this is in exchange for the freedom to develop one's own business and the long term potential rewards that accompany that decision.
An independent business is responsible for rectifying its own defective workmanship.
An independent business is responsible for business expenses such as income tax and insurance.
Payment is on a project specific basis. The frequency and amount of payment is of no consequence provided there is a clear contractual intention to be bound for the duration of the project only, with no expectation of indefinite ongoing work beyond the life of the project. The negotiation and securing of contracts for multiple contracts to run concurrently or in succession does not however, amount to an expectation of indefinite ongoing work.
Payments to independent businesses will ordinarily be made on the basis of output (including for time on the job) and results rather than working for a fixed wage.
An independent business will have the ability to decide upon times of work subject to any contractual deadline imposed by the principal contractor and any requirements reasonably necessary to accommodate the production sequence and engagement of other contractors and trades.
Policy endorsed by HIA National Policy Congress: May 2011; Re-endorsed 2018.
HIA provided a submission referring to the November 2024 Unfair Trading Practices - consultation of the design of proposed general and specific prohibitions paper produced by Treasury.
HIA provided a submission to Safe Work Australia (SWA) in response to the consultation on the impacts of the proposed introduction of a new workplace exposure limit for respirable crystalline silica.
The Housing Industry Association takes this opportunity to comment on the Government Business Governance Reform Draft Plan.
HIA provided a feedback on the Review of the Home Building Compensation Fund (HBCF) announced by the State Insurance Regulatory Authority (SIRA) in October 2024.
HIA responded to the Draft Model Code of Practice – Managing fatigue risks at work recently released by Safe Work Australia (SWA) for public comment.
This research project takes place against a backdrop of a structural mismatch between housing supply and demand. HIA hopes in this submission to define key features of the industry and its operability.