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Whether a worker is an employee or not depends on the particular circumstances, and especially the terms of the agreement or arrangement to do the work. Various tests developed by the Courts must be applied.

It is possible that when all the circumstances of engaging the worker to do the work are considered, and the tests applied, it will turn out that the worker is an independent contractor rather than an employee or, in rare cases, a volunteer.

However, situations where it is more likely that a worker is an employee include where:

  • the worker is subject to expectations, restrictions and controls as to the hours they work, tasks they perform and how they perform them
  • the worker is required to do the work as a condition of being provided accommodation
  • the worker gets substantially less cash than might be expected for the work required but does get "free" accommodation instead
  • the worker is provided with the accommodation in consideration of or in return for providing work that is of benefit to the business
  • it is the sort of work that comparable businesses would engage employees to do.

These are not the only factors that might make a difference either way. It could make a difference if, for example, the worker has to provide the equipment needed to do the work or there is an agreement saying that someone is not intended to be an employee. These factors should be taken into account but, on their own, are unlikely to outweigh other factors.

It is especially important to recognise that a worker does not have to be getting paid cash to be an employee.