Other workplace issues

I am paid to clean a house once a week. Would I be considered their employee? 

Whether you are considered an employee will depend on many factors. 

You are more likely to be an employee if: 

• the business where you work supplies all or most of the equipment, tools and other materials required for you to complete your work
• you are controlled in the way you work
• you are treated like an employee at work 
• you are required to wear a specific uniform 
• you are paid an hourly rate 
  
• you receive annual leave or paid sick leave 
  
• income tax is withheld from your pay. 
  

All of these factors are weighed up together to determine whether you would be considered an employee. 

If you are unsure whether you are an employee, you should get legal advice. 

How do I know if I am a contractor and not an employee? 

You are more likely to be a contractor rather than an employee if you: 

• have a written contract in place describing you as a contractor, subcontractor or independent contractor
• supply your own material to work, for example tools or cleaning products
• are paid for each task completed 
• have an Australian Business Number (ABN) and render invoices for payment 
• run your own business, earning a profit and building 'good will' with a customer base. 

All of these factors are weighed together to determine whether you would be considered a contractor. 

If you are unsure whether you are a contractor, you should get legal advice. 

What is a labour hire arrangement order?

You are entitled to the minimum pay and entitlements from your award and enterprise agreement.

Employees, unions and hosts can apply to the Fair Work Commission for a labour hire arrangement order to regulate how a labour hire employee is paid by their labour hire employer. This order will come into effect after 1 November 2024.

For more information, see Protected pay rates for labour hire employees on the Fair Work Ombudsman website. 

Can my employ​er track my emails?

If your employer uses software or other equipment to track emails, including seeing what you send and receive by email, this is called computer surveillance. If your employer wants to carry out computer surveillance, they must:

• carry out the surveillance in line with a policy, usually an information technology policy
• give you notice before it starts, so you have enough time to become aware and understand the policy.

This is not the same as your employer having access to your emails because they are following normal business practices, like backing up hard drives on their work computer or server.

If you are worried about surveillance or privacy in your workplace, you should get legal advice.

Can my employer c​arry out surveillance of employees at work?

If your employer suspects that there is some illegal activity in the workplace, they can ask the Court for permission to carry out covert surveillance. Covert means that they can carry out surveillance without you or other employees being told about it.

For other situations, the law usually requires your employer to notify you and other employees in writing about the surveillance they plan to do at least 14 days before it starts.

In the written notice which can be sent by email, your employer must tell you:

• what type of surveillance they will conduct, for example camera, computer or tracking
• how the surveillance will be carried out
• when it will start and end, and whether it will be ongoing or for a limited period of time.
  

Your employer also has a responsibility to notify new employees about the surveillance before they start work.

Can my employer carry out surveillance outside of work?

Your employer should not carry out camera or tracking surveillance outside of work. This means that they should not be taking any visual images or tracking your location and movements outside of work.

However, if you use your employer's laptop or computer outside of work, they may still track how you use the equipment.

Are there requirements about how my employer can carry out surveillance?

For your employer to carry out surveillance, they must usually let you know in writing and give you time to consider the notice.

For more information, see the FAQ Can my employer carry out surveillance of employees at work?.

For specific types of surveillance at work, there are further requirements:

• for camera surveillance, the camera or other recording equipment must be clearly visible and there must also be a clearly visible sign at each entrance of the place where your employer is carrying out surveillance
• for computer surveillance, the surveillance must be carried out in line with a policy and your employer must give you time to understand the policy
• for tracking surveillance, the vehicle or other item being tracked must have a clearly visible notice showing that it is being tracked.

Are there any places where my employer cannot carry out surveillance?

Your employer must not carry out any surveillance of you or other employees in a change room, toilet facility, shower or bathing facility.

How can my employer use the surveillance information that they collect?

Your employer must not use or release any surveillance information unless it is:

• for a lawful business reason, for example security, or health and safety reasons
• given to the police for their work
• used in a legal proceeding, or
• used to prevent an immediate threat of harm or damage to property.

If you are worried about the surveillance that your employer is carrying out, you should get legal advice.

Am I responsible for accidentally damaging my employer's property?

In some circumstances you may be held responsible for damage you cause to your employer's property, for example, in situations where you have caused damage by acting outside of your employment duties, or outside of the scope of your employment.

If your employer is arguing that you should pay for property damage, you should get legal advice.

Your employer is not allowed to deduct money from your pay unless they have your permission.

If they deduct money from your pay without your permission, you should get legal advice.

Do I have to pay for the d​amage if I was in a car accident and driving a work vehicle?

If you were driving in the course of your employment or with your employer's authority, you may not be responsible for damage to your employer's vehicle or any other vehicle involved in the accident, even if the accident was your fault. However, if you were driving the vehicle outside of work, or without your employer's authority, you may be legally responsible for the damage caused. This can include damage to your employer's vehicle, and any other vehicle involved in the accident if you were at fault.

If your employer or the driver (or insurer) of the other vehicle is arguing that you should pay for the damage, you should get legal advice. 

Can my employer deduct mo​​ney from my wages for damage to work property?

Your employer is not allowed to deduct money from your pay unless they have your permission. If your employer believes you damaged their p​roperty, you should get legal advice before taking responsibility for the damage, or agreeing to deductions from your pay.

Can my employer force me to take a drug or alcohol test at work?

Your employer can require you to take a drug or alcohol test at work if it is fair and reasonable to do so. Some factors that are considered when deciding whether drug and alcohol testing is fair and reasonable in your workplace includes:

• the type of industry that you work in
• what consultation took place when making the drug and alcohol policy
• the amount of alcohol or drugs needed to be in your system for a positive test
• the impact of drug or alcohol use on work performance
• whether samples are given in private
• the way your employer will protect and maintain confidentiality of your records, and/or
• whether your employer has an education, counselling and rehabilitation program for drug or alcohol users.

If you are concerned that your employer is planning to do drug or alcohol testing, you should get legal advice. 

What i​f I have failed a workplace drug or alcohol test?

If your employer has ca​​rried out a drug or alcohol test and you have failed, or are concerned that you will fail the test, you should get legal advice.

What is a non-compete clause?

A non-compete clause is a part of some employment contracts which seeks to restrict you, when you leave that employer, from going to work for a competitor or starting your own business. 

A non-compete clause might say you can’t work in a similar role within a particular geographical location and/or for a particular amount of time.

It is also sometimes called a restraint of trade clause.  

Many non-compete clauses are not enforceable. If the Court finds a non-compete clause unenforceable, it means you do not have to follow it. 

If you are unsure if a non-compete clause in your contract is enforceable, you should get legal advice.