Creative work is often dynamic and collaborative and is shaped by projects, funding cycles, audience demand and changing opportunities. People often move between roles and work arrangements over time — they are sometimes employees, independent contractors, freelancers, volunteers or are in portfolio careers that combine several forms of work.

This flexibility can create opportunity, autonomy and creative freedom. It can also create complexity.

Understanding work arrangements matters. The way someone is engaged affects their rights, protections, entitlements and responsibilities. 

Getting this right helps create fair, lawful and sustainable workplaces where people are recognised, protected and paid appropriately for their work.

For children and young people working in creative workplaces, additional rules apply.  

Tip:  Before engaging an artist or arts worker, take the time to consider whether it’s the right decision for your business or organisation. Income sources, industry practices, operational practices, consumer behaviours and the law can all place limits on whether we hire or employ someone, or how we engage them. 

Learn more about things to consider before engaging artists or arts workers.

Know your workplace relations system

To do this, you first need to know which workplace relations system applies to your organisation: the national system or a state system. 

Which system you are in will depend on:

• where you and your employee are in Australia, and
• how your business or organisation is set up legally.

Knowing which system you are in matters when you’re engaging:

• employees – because it determines pay, entitlements and certain workplace rights and obligations, including how the work arrangement ends
• independent contractors – because it affects whether a worker can be engaged as a contractor or employee, and other rules and protections for contractors (e.g. unfair contract term protections).

The national workplace relations system is also known as: 

• The national employment system
• The Fair Work System. 

State workplace relations systems are also known as state employment systems.

Know your work arrangements

In creative industries, businesses can engage independent contractors (sometimes called freelancers or independent artists) or employees. They may also engage people using other arrangements, like volunteering, internships, hobbyists, or people on work experience placements.

Not all work arrangements are the same. 

It’s important that your organisation engages workers using a work arrangement that is right for the work you need done.

Other factors or constraints may also influence which work arrangement is right for you – like funding, income sources, seasonal or project-based work, consumer behaviour, industry practices and operational factors.

Knowing the work arrangement is also relevant to:

• paying your worker fairly and correctly
• understanding your superannuation obligations
• working out your role in managing the work or worker
• having a work arrangement that complies with the law. 

Which arrangement is in place will also affect how workers are appropriately recognised and remunerated for contributions beyond their regular duties, such as contributing cultural knowledge.

Tip:  An important reason for getting this right is something called ‘sham contracting’. Sham contracting is when a person is engaged as an independent contractor but, in practice, they are an employee. This isn’t always on purpose, and often intentions are good. But sham contracting is illegal, and there can be significant penalties. 

We set this out in more detail in our Essentials for hiring independent contractors. 

We encourage you to read these sections together when you’re considering new or existing arrangements for independent contractors. 

Know the laws for young workers

If you are hiring children or young people, it is essential that you know and follow the laws that apply. This includes state and territory employment laws for children and young people. 

Where First Nations children and young people are involved, organisations should also consider cultural safety and connections to family, community and Country when planning participation.

The laws place limits on things like:

• when children and young people can work
• for how long and how often
• supervision
• the type of work they do. 

It is essential that you know what laws apply in your state or territory, and who they apply to. Child employment laws apply to employees, but also generally to children who are working as independent contractors or ‘free agents’.