TIS National Fact Sheet

Translating and Interpreting Service (TIS National) - new Deed of Standing Offer

TIS National has sent interpreters and translators a new Deed of Standing Offer (‘the Deed’). The current Deed will expire on 30 June 2020.

TIS National says that if you want to keep providing interpreting and translating services after that date, you must sign and return the Deed by 1 June 2020, at the latest. TIS National says it needs at least 20 working days to process your signed Deed.

Overall we consider this Deed is unfair and it is unconscionable of TIS National to require you to sign the Deed on a ‘take it or leave it’ basis.

If you feel you need the work, then before you sign, stop and ask yourself the following questions.

What is a 'standing offer' and why will signing the Deed tie me up for ten years?

By signing the Deed, TIS National says you will enter into a contract with the Commonwealth Government, represented by the Department of Home Affairs ('the Department').

The Deed is for a 'standing offer'. What that means is that each interpreting or translating Assignment ('job') is a separate contract (Clause 4). Every time you accept a job from TIS National, you will enter into another separate contract with the Department, but the terms and conditions of the Deed will apply to all of the jobs you accept.

For any contract to be fair, the ability to vary any term of the Deed, including the ability to extend the Deed, should be by mutual agreement and signed by both parties.

The Deed you are being asked to sign says that the Department can keep extending it for up to ten years. During that time, and even though each interpreting job is a separate contract, you will not be able to renegotiate the terms of the Deed.

On the other hand, the Department can vary almost all the terms of the Deed, including its ability to ask you to provide Services, or not, and at what rate. If the Department varies the terms it will not ask you to re-sign the varied Deed.

Am I an employee, or an independent contractor?

Do you know that there are circumstance in which workers are called independent contractors, but as far as the law is concerned, the workers are actually employees?

It is important you do know because there are laws which protect employee rights, but which do not apply to independent contractors. For example, employees cannot be dismissed unfairly and must receive at least a minimum rate of pay.

There is no single factor that on its own indicates that a worker is an employee. Only a Court can decide whether you are an independent contractor. A Court will look at all the factors together, in the context of the relationship between you and the entity for whom you are working.

By signing the Deed, TIS National says you will enter into a contract for Services between you ('the Service Provider') and the Commonwealth Government, as represented by the Department. The Deed says you are an independent contractor, not an employee (Clause 7).
We are of the view that the following clauses in the Deed demonstrate that you are actually an employee.
  • You will be paid a flat rate depending on when and for how long you work (Schedules 1 to 5). The rate will be the same as all other interpreters and translators who sign the Deed.
    Independent contractors usually run their own business and are free to negotiate and enter into their own working arrangements, including the amount they will charge for their services.
  • Independent contractors are usually paid based on their output, not the hours they work.
  • A true independent business owner will aim to negotiate a fee that will allow for profit, goodwill, and all expenses.
You must state when you will be available every week to provide Services to the Department (Clause 1, Item 7).
  • Independent contractors are usually contracted to provide Services in a certain timeframe, not to perform work in prescribed business hours every week.
If you do not want to perform Services for TIS National clients, or you want to cancel a shift, you must give the Department reasons (Clauses 5.2 and 118).
  • Independent contractors are usually free to provide their Services to whom they want, when they want.
  • An independent business person would generally be free to accept or reject each separate job offer.
You cannot subcontract the Services (Clause 5.3).
  • Independent contractors are generally able to subcontract the delivery of Services, or are free to get other people to perform the work for them as employees.
The more control the Department has over how you perform the Services, the more likely it is you are an employee. The Deed seeks to control you in several ways, including saying you:
  • cannot request more jobs (Clause 5.4)
  • may be subject to a quality review and be performance managed (Clause 5.5)
  • must comply with Department policies and procedures when you provide Services (Clause 13)
  • must let the Department audit your records (Clause 14).

  • What will I be paid?
    If you are an independent contractor, your pay and conditions are a matter for negotiation between you and the entity for whom you work. We note that the Deed is offered on a ‘take it or leave it’ basis. There is no room for negotiation.

    Employees are entitled to a minimum rate of pay, penalty rates, paid annual or other leave, and other benefits like meal allowances. Independent contractors are not.

    Employees receiving the national minimum wage and working full or part time, currently get $19.49 per hour. Casual employees get at least a 25 per cent loading on that rate, which means they get $24.36 per hour.

    Employees covered by modern awards or enterprise agreements may also have other entitlements, such as a minimum engagement time of three hours.

    We do not consider the rates of pay offered in the Deed compensate interpreters and translators for the employee entitlements they are missing out on. The rates of pay certainly do not compensate interpreters and translators for their additional levels of skill and knowledge.

    Will TIS National pay me promptly?
    The Deed allows the Department to delay any payment of fees until the Department is satisfied you have met the requirements of Clause 6.2 relating to payment.

    The Deed does not impose a time limit on the Department for how long it can withhold payment. That means that the Department can withhold payment to you for a long and even unreasonable amount of time.

    Furthermore, the Department does not have to pay any interest or penalty on late payments for amounts under $100, even if it is proven there was no legitimate basis for withholding the payment.

    Can I be punished for cancelling a job?
    The Deed allows the Department to charge you a cancellation fee if you do not give TIS National more than 24 hours’ notice when you cannot start or complete a job (Clause 6.4).

    The Deed says the cancellation fee will be a ‘reasonable amount' to cover the administrative costs of finding another interpreter to do the job.

    We consider this clause to be unfair to interpreters who may have valid reasons for not being able to give more than 24 hours’ notice of cancellation.

    Do I have to have professional indemnity and other insurance?
    The Deed says that the Department will take out insurance for public liability, workers’ compensation and professional indemnity (Clause 11.2.2) for you, but the Department can instruct you to take out those insurances yourself (Clause 11.2.3).

    The Deed does not clarify what may cause the Department to pass on its insurance obligations to you.

    The Deed also says that for certain jobs you must have your own travel insurance (Clause 11), and that there may be other, unspecified insurance the Department requires you to take out (Clause 11.2.4).

    Independent contractors are not generally responsible for indemnifying third parties, but the Deed says you have to indemnify not only the Department and its Personnel against loss or liability resulting from a Claim, but also any affected Client.

    Is there any conflict between the Deed and the AUSIT Code of Ethics and Code of Conduct?
    The Deed contains extensive obligations in relation to conflict of interest (Clause 8.5). For example, if, before accepting, or while doing a job, you find, or suspect you have a conflict of interest, you must notify the Department immediately, in writing. There is nothing in the Deed that says you will be given any information before a job to help you to decide whether you have a conflict of interest, and if you are unable to complete a job because you are conflicted, you will not be paid.

    If you develop any glossaries or other resources to help you in your work, the material belongs to the Client. If you are given any documents by the Department, or have any copies or any notes from such material, it all belongs to the Department. The Deed contains extensive obligations in relation to managing that confidential information (Clause 9).

    In certain circumstances you may have to comply with directions and standards applicable to Immigration and Border Protection workers (Clause 8.6). The Deed refers to the following policies with which you must also comply (Clause 2):

    •  the Department’s Allocation Policy
    •  TIS National Allocation Policy
    • Reporting Child-Related Incidents Policy

    You should ask for a copy of the policies and make sure you know what they require of you.

    The Deed does not clarify whether the IBP standards or the above policies conflict with the AUSIT Code of Ethics and Code of Conduct.

    You can be suspended if you breach either the AUSIT codes or the TIS National Code of Ethics and Code of Conduct (Clause 12.2). The Deed does not say who will decide whether you have breached the AUSIT codes or how, nor whether or how the TIS National codes relate to the AUSIT codes.

    The Deed also does not say which, if any, standards, directions, or codes have priority.

    What happens if I have a dispute with TIS National?
    The Deed provides for dispute resolution, including external dispute resolution, for breaches of the Deed. The Deed does not state who must bear the cost of dispute resolution. We believe the Department should bear such costs.

    Dispute resolution does not apply to termination, suspension, or deallocation of services (having a job taken off you). Clause 14 states those matters are dealt with under the Issues Management Framework (IMF), but Clause 12.1 says such matters cannot be dealt with under the IMF. The Deed also does not oblige the Department to follow the IMF, which it can change at any time without having to agree the change with interpreters and translators.

    Without an enforceable process for both parties to follow for all matters relating to the Deed, the only way to resolve a matter under the Deed may be through legal proceedings. This will undoubtedly be too expensive and time consuming for you.

    The Deed is also governed by the laws of the Australian Capital Territory (Clause 14.12). You will probably provide the majority of your Services in the State or Territory in which you live. If you want, or need, to bring legal proceedings against the Department you will have to take the matter to a Court in the ACT, which in our view is unfair.

    Can I terminate the Deed?
    Clause 12 allows the Department to terminate the Deed or reduce the scope of Services for any reason.

    Contracts for services should generally allow a process for both parties to terminate the contract, and only for limited reasons, for example, where there is a breach of the contract.

    Where can I get more advice?
    We recommend you seek specific advice about:

    your tax and superannuation obligations under the Deed (Clauses 6.5 to 8)

    • You may wish to contact the Australian Taxation Office (ATO) or your accountant or financial advisor for further advice.

    the type of and level of insurances you require to perform the Services, including professional indemnity insurance (Clause 11)

    • You may wish to contact your insurer to check that the insurance clauses in the Deed are not in conflict with any terms of your insurance policy.
    • Professionals Australia can give you a referral to a professional indemnity insurer.