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Unlike employees, the performance management and disciplinary process does not apply to contractors although it is becoming more common for ongoing performance review processes to apply to contractors. Historically, if a contractor is not performing their task to the business owner’s satisfaction, there should be a provision in the contract allowing the principal to give the contractor seven or 14 days notice to remedy the defect in their performance and if it is not remedied, then the contract can be terminated on notice.
Where a contract is open ended, ie it has no specific duration, then a notice period is common. The contract may also be able to be terminated immediately in certain circumstances amounting to gross misconduct. However, this is all a matter of contract between the parties. Contractors do not have rights to make application to the industrial relations commissions for reinstatement or compensation and cannot raise disputes in the industrial relations commissions.
However, they may be able to:
1. take action in the state or federal industrial relations commissions using the unfair contracts jurisdiction of the Commissions; or
2. sue in the common law courts for breach of contract.
Under the Queensland industrial legislation, the Queensland Industrial Relations Commission may amend or declare void (wholly or partly) a contract for services if it considers it is an unfair contract. The state industrial commission may consider a contract to be an unfair contract if the contract was unfair when it was entered into or subsequently became an unfair contract because of the conduct of the parties. Whilst the provision can be utilised by some employees, it is most commonly utilised by contractors. There is no limit on compensation under this provision. There are provisions of narrower application at a federal level and broader provisions exist in New South Wales legislation.
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