Am I a contractor or an employee? 

If you work irregular shifts, get paid per delivery, or don’t have guaranteed hours, your employer may have told you that you’re a casual worker or an independent contractor. But that doesn’t necessarily mean it’s true. It could be “sham contracting”. This post explains what sham contracting is, and how to start to identify it.

Many workers—especially migrant and temporary visa workers—are misclassified and denied the rights they should have as an employee. Some workplaces label their employees as casuals or contractors to avoid paying fair wages, superannuation, or sick leave. This is called “sham contracting”. If you are being treated like an employee, you may actually have the rights of an employee too.  

Misclassification has an impact on women 

Women, including migrant women, are often made to take on insecure work. Many juggle multiple jobs, face language barriers, or have childcare responsibilities which necessitate irregular hours. When employers misclassify workers, these women are being taken advantage of. 

At the Working Women’s Centre Victoria, we’ve identified a few ways that being misclassified as a “contractor” can impact women. They include: 

• Unstable work and financial insecurity: Many women take casual or gig work because of caregiving responsibilities. Without guaranteed hours, it becomes difficult to budget, secure stable housing, or provide for their families. 

• Workplace exploitation and wage theft: Women are overrepresented in underpaid sectors like cleaning, hospitality, aged care, and food delivery. Many are classified as independent contractors when they should be employees, meaning they miss out on legal entitlements like penalty rates and overtime pay. 

• Lack of paid leave and superannuation: Many casual and gig workers do not receive sick leave, parental leave, or superannuation, which has long-term financial consequences, particularly for women who already retire with significantly less super than men. 

• Greater risk of workplace harassment and abuse: Women in insecure jobs are more vulnerable to workplace harassment, sexual exploitation, and unfair treatment. Many fear reporting issues because their employer could simply stop giving them shifts or remove them from an app. 

• Visa status and fear of retaliation: Migrant women on temporary visas may be afraid to challenge their working conditions due to threats from employers, language barriers, or concerns about visa cancellation. Some employers exploit this fear to avoid paying fair wages or providing legal entitlements. 

Employees have different legal rights than contractors 

If you are doing the work of an employee but missing out on things like sick leave, annual leave, or superannuation, you might be in a sham contract situation. This isn’t just unfair – it’s against the law.  

Gig workers—those working for platforms like Uber, Deliveroo, and Menulog—often have fewer rights because they are classified as independent contractors. They don’t have a guaranteed minimum wage, they don’t get sick leave or annual leave, and they aren’t protected against unfair dismissal. 

However, casual workers have more legal protections, including a higher rate of pay (often called casual loading), the right to request permanent work after 12 months, protection against unfair dismissal (in certain cases) and the right to refuse unreasonable extra shifts. 

Some workplaces call their employees “contractors” to avoid giving them these extra benefits. This is called “sham contracting”.  

So what can you do if you’ve been misclassified? 

Some workers who are told they are independent contractors are actually employees under the law. It’s best to talk to a lawyer if you think you may have been misclassified. However, as a guide, you may be an employee if your employer: 

• Controls your hours and tasks 

• Supplies your equipment 

• Pays you fixed rates instead of letting you set your own prices 

• Prevents you from working for other companies 

If you meet this criteria, there is a good chance that you’re not a contractor but an employee. You may be entitled to more rights than your employer claims. 

If you’ve been misclassified, you can take action  

The Working Women’s Centre Victoria has a team of lawyers ready to provide free, confidential legal help for women working across Victoria. We can help you understand your real work status, what you should be getting, and how to fix things.  

We’re here to help any woman working anywhere in Victoria – even if you live in regional or remote areas. We can also organise an interpreter if you need.