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Fitness Australia’s Bill Moore flags industry challenges for 2018
Facility safety, wage rates, music licensing and ‘sham’ contracting are key issues facing fitness clubs and facilities in 2018.
In a just-published Blog, Fitness Australia Chief Executive Bill Moore has shared his thoughts on a range of issues likely to impact operators through this year, continuing Fitness Australia’s activities in representing the interests of its members and lobbying on issues affecting the industry.
Moore writes “thinking about it, 2018 will throw up a few challenges for our industry.
“The (Queensland) Coroner’s findings into the tragic death of Ben Shaw last year will likely turn up in the first few months and will no doubt pose questions for us all, the Fair Work Commission will need to decide if overtime should be paid to casuals, and One Music will want to launch with the fitness industry neatly tucked in with the new tariff arrangements.
“We should also expect the issue of sham contracting to stick its confusing head above the ramparts this year. We’ve been kicking the issue around the carpark for most of last year having had meetings with the Fair Work Ombudsman so we took the trouble to make representation to the Assistant Minister for Regulatory Reform on the subject because our members tell us that there is a lack of clarity about what represents sham contracting, and what doesn’t, and quite frankly we agree.
“Within the Fair Work Act 2009, sham contracting is defined as misrepresenting an employment relationship as an independent contractor arrangement. Deliberately mischaracterising a relationship between an employer and an employee, or between a principal and an independent contractor could see you in some serious trouble.”
Moore advises that the act makes it unlawful to:
• Misrepresent that a contract of employment is an independent contractor agreement, or tell a genuine employee that they are an independent contractor;
• Dismiss (or threaten to dismiss) a genuine employee in order to then engage them as an independent contractor; and
• Make a false statement to persuade or influence, or mislead a genuine employee, to enter into a contractor arrangement to perform the same (or similar) work they performed previously.
He highlights that there is no single characteristic of a contracting arrangement that will determine whether or not it constitutes sham contracting, adding “an aggregate of circumstances surrounding the arrangement will be assessed by the Ombudsman to determine if it is legal or not, so for employers the situation has to be approached with caution because once you get past a blatant sham contracting arrangement - such as a ‘triangular arrangement where employees are engaged as a contractor through a third party - it starts to get a bit grey around the edges.
“The penalties are very serious. Apart from a five figure fine there is the issue of unpaid entitlements that will need to be paid to each employee retrospectively. So if you’ve got 10 personal trainers that have been working for you for three or four years and they are deemed to have effectively been employees the whole time, suffice to say there is a goodly lump of holiday pay and super that may need to be found.”
Fitness Australia, in conjunction with industrial relations experts Fisher Cartwright Berriman (FCB), have developed a sham contracting check list that will allow emplyers to see whether they are at risk, and if so, to what extent.
Fitness Australia members can use its industrial relations and human resources legal hotline for unlimited free calls to make sure they are in step with the Act.
In addition, Fitness Australia will be running a free webinar led by FCB on this topic next month.
Click here to view Fitness Australia's checklist on sham contracting.
17th January 2018 - FOCUS ON BUSINESS AT 2018 FILEX CONVENTION
3rd January 2018 - FAIR WORK COMMISSION CONSIDERS FITNESS INDUSTRY AWARD PENALTY RATE RISES
8th November 2017 - FITNESS AUSTRALIA-LED JOINT VENTURE ACQUIRES FILEX CONVENTION
18th October 2017 - FITNESS SHOW PROVIDES A SNAPSHOT OF THE EXERCISE HABITS OF AUSTRALIANS
1st October 2017 - UNSUPERVISED 15-YEAR-OLD DIES AFTER GYM ACCIDENT
27th September 2017 - FITNESS SHOW ANNOUNCES CONTENT INTEGRATION AGREEMENT WITH FILEX
21st July 2017 - KX PILATES MAKES A STAND ON SHAM CONTRACTING
18th April 2017 - 457 VISA CHANGE TO IMPACT FITNESS, TOURISM AND HOSPITALITY
24th March 2017 - FITNESS INDUSTRY BENEFITS FROM DECLINE IN SPORT PARTICIPATION
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