Sex work is just like any other occupation or industry. If you work in the sex industry, your working conditions and rights as an employee or as a contractor are set out in an agreement. The agreement may be written or oral (spoken).
‘Sex industry workers' include sex workers or support staff such as front-of-house staff or receptionists, managers, security staff, cleaners or anyone else working for a sex industry business. Workers are likely to be employees or contractors, and they have legal entitlements they can enforce against their employers or the business.
Sex industry workers are protected by all the laws concerning:
You can take legal action to enforce your rights under these laws.
Unfortunately, there is no award for sex workers in NSW—at December 2009—so most sex workers are employed under individual contract agreements. But support staff may be covered by industrial awards and legislation, depending on the employment relationship and their occupation.
Workers are either employees or contractors. The basic difference is that an employee is employed by another person, while a contractor works for themselves. A contractor may provide specific services to someone operating sex industry premises.
Whether you are an employee or contractor affects your rights and responsibilities under some laws. There are several factors that may show whether you are an employee or a contractor, but no single factor is decisive. In a dispute the Courts may have to decide. These are some of the factors:
|Instructions||An employer can tell an employee what to do, and when and how to do it.||A contractor is engaged to do a particular task, and uses their own skill and judgement to do it.|
|Doing the work||Employee does the work themselves.||Contractor can employ others, delegate or sub-let the task to someone else.|
|Payment||Employee is paid on a time basis.||Contractor is paid on the basis of a quotation for the job.|
|Equipment||The employer supplies any tools and equipment needed.||Contractor supplies their own tools and equipment.|
|One employer or several||Employee works for only one employer.||Contractor has an independent business and may work for several employers.|
|Tax||The employer collects PAYG (‘Pay As You Go’) tax for the employee and issues an annual payment summary.||Contractor pays their own tax.|
|Leave payments||Employee can claim annual and long service leave.||
Contractor not entitled to leave payments.
An employer must:
An employer must not:
If you are a contractor, you negotiate your employment conditions with the person—usually the business owner—who engages your services.
You are only entitled to conditions that are in your oral or written agreement. So it is important to reach a clear agreement about your rights and responsibilities before you start work. This will decrease the chance of disagreements later.
NOTE: Even though you are a contractor, you may be treated as an employee under occupational health and safety, workers compensation, superannuation or tax laws.
Unless an award applies, a sex work employment agreement sets out an employee’s or a contractor’s minimum conditions of employment. For support staff, the minimum conditions of employment are set out in their relevant awards.
When negotiating an employment agreement and before work starts, both parties need to agree on:
For help with an agreement contact the Office of Industrial Relations.
There is a difference between being a permanent part-time employee and being a casual employee.
|Casual employee||Permanent part-time employee|
|Works irregular hours||Works regular hours, such as to a roster|
Both permanent part-time and casual employees that are regularly employed by a particular employer for at least 6 months are covered by unfair dismissal laws.
Employers and workers in the sex industry can find themselves in conflict over working bonds and fines. To avoid unnecessary conflict employers and workers should be aware of their rights and responsibilities under the law.
Working bonds are legal. But they can lead to problems for employers that do not return them to workers.
Working bonds are like personal loans given by the worker to an employer to be returned when they finish working. Employers can request that a worker provide the bond as a requirement to start work. But unless part of an employment contract, bonds are not compulsory. The loan lasts until the worker finishes at the workplace and they want the bond returned. If the employer does not return the bond, they can face legal action by the worker to recover the bond.
Courts can make orders that the bond be returned. Failure to respond to a court order can lead to action by the sheriff to enter the workplace and seize the assets of the owner, equal in value to the bond.
Sex workers can make an appointment with the Chamber Magistrate at any local court to discuss recovering the bond through action in the local court. Employers can obtain legal advice from a Chamber Magistrate or a solicitor.
Fines are penalties in the form of withheld wages levied against workers by owners.
Fines are not legal. Employers withholding part of a workers wage as a fine can face legal action by the worker to recover the fines.
NSW Industrial Relations laws give workers the right to take court action to recover lost wages. The NSW Department of Industrial Relations can provide information to owners and workers.
Sacking a sex worker for being pregnant is discrimination and is not allowed under federal legislation.
It is also discrimination to sack a sex worker because of their
Sacking for these things may be unlawful in certain circumstances.
UNFAIR DISMISSAL: If you feel you have been dismissed without good reason you should contact a lawyer or community legal centre as soon as possible. Unfair dismissal claims must be lodged with Fair Work Australia within 14 days. Discrimination claims can be made within 12 months.
SWOP can provide referrals to community legal centres. Phone (02) 9206 2166 and speak with our Information Desk.