Under national workplace relations laws, Fair Work Inspectors can investigate matters relating to independent contractors, including:
- alleged sham contracting arrangements
- alleged discrimination
- alleged adverse action or coercion in relation to a workplace right
- prohibited conduct relating to freedom of association
- prohibited conduct relating to reform opt-in agreements.
Making a complaint and investigations
If an independent contractor makes a complaint to the Fair Work Ombudsman about any of the above matters, a Fair Work Inspector can investigate and may take an employer to court.
The Australian Building and Construction Commissioner (ABCC) has similar powers for matters in the building industry.
The Fair Work Ombudsman and ABCC cannot investigate complaints from independent contractors relating to a breach of their contract, for example, if they haven't been paid in accordance with the terms of the contract, or complaints that the contract is unfair or harsh.
If you're an independent contractor in this position, you may be able to take court action and should seek legal advice.
Penalties and court orders
The courts may order a person who has contravened the Fair Work Act 2009 or the opt-in agreement protections in the Independent Contractors Act 2006 to pay a penalty of up to $33,000 per contravention for a body corporate or $6,600 for an individual.
This means, for example, that if an employer is involved in more than 1 sham contracting arrangement, they may have to pay a penalty for each arrangement.
In relation to a contravention of the Fair Work Act 2009, a court can also make any other orders it considers appropriate. For example, if an employer dismisses or threatens to dismiss an employee to re-engage them as an independent contractor to do substantially the same work, the Fair Work Inspector can apply to the courts to:
- stop the dismissal from happening
- order the employer to give the employee their job back
- have the employer compensate the employee
- make another appropriate order.
Also, if an employee has been dismissed, the employee (or a union that represents them) can apply to Fair Work Australia to attempt to deal with the dispute.
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Inquiry into sham contracting in the building industry
On 19 November 2010 the Australian Building and Construction Commissioner (ABCC) announced the Sham Contracting Inquiry. The ABCC’s Sham Contracting Inquiry will consult key industry stakeholders and foster coordinated action on this important issue.
Interested parties can make submissions to the inquiry, or attend a roundtable in most capital cities. Further information is available at ABBC - Sham Contracting Inquiry 
.