Pollster Gary Morgan is embroiled in a bitter legal stoush with the Fair Work Building Industry Inspectorate following a Federal Court judgment finding his family trust engaged in sham contracting.
The pollster is not going down without a fight and has vowed to appeal the decision, declaring it “a sham”.
The Federal Circuit Court found Morgan’s family trust, Linkhill, underpaid 10 employees who it had maintained were contractors.
The court ordered Linkhill pay its workers $178,941 in unpaid wages and entitlements.
In his evidence to the court, Morgan was highly critical of the Fair Work Building Inspectorate and the government.
“I mean, you’ve got a very vicious government who wants to stitch people up, like me,” he told the court.
“And, they want to basically try and control independent contractors and small business. That’s what it’s about this case, nothing to do with a few bricklayers who were independent contractors…”
Morgan described Fair Work as “the most outrageous misnaming of an organisation in the country. It’s not fair.”
Morgan claimed the workers were contractors and wanted to be contractors.
“So long as they are, in my opinion, remunerated above what the award is and fairly and have a job to do, I think that is what they’re doing,” he says.
“What the government’s trying to do is rope them all into large corporations or large building businesses and kill the small businesses, small entrepreneur who’s trying to start up his brick business.”
But the court found the evidence showed the 10 workers, engaged between June 2007 and August 2010, were employees not contractors.
“An examination of the totality of the relationships between each of the individual workers and Linkhill, the system and arrangements pursuant to which they worked and the work practices which regulated that work, clearly establishes by reference to the established indicia that each of those relationships were in the nature of employment and not independent contractor relationships,” Federal Circuit Court judge Justice O’Sullivan found.
O’Sullivan found the “relationships” between Linkhill and the workers were “contracts quintessentially in the nature of contracts of employment for the personal provision of each workers labour to Linkhill”.
The court found Linkhill reserved control over where, when and to what ends the workers’ labour was to be directed and it directed and supervised the performance of the work of each worker on a daily basis.
O’Sullivan found the requirement for workers to supply an ABN, the lack of taxation deducted from the payments they received from Linkhill and payment pursuant to invoicing arrangements imposed by Linkhill did not alter these “fundamental features” of their engagement.
But Morgan told SmartCompany Linkhill did not engage in sham contracting.
“The only sham here is that engaged in by the Australian Building and Construction Commissioner and the Fair Work Inspectorate,” Morgan says.
“Intimidation, threats and blackmail of workers and companies appear to be standard operating procedures for these organisations.”
“A Royal Commission is needed into the unions and the Fair Work Building Industry Inspectorate.”
Cara Waters is the editor of SmartCompany. Cara was previously a senior reporter at the Financial Times website FT Adviser in London and has also worked for The Sunday Times.
