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Workplace Law

In: Business and Management

Submitted By angkp2000
Words 1163
Pages 5
Work is no longer a domestic relationship and we also saw that master as employer have great control their servant/employees in their work performance. Control becomes an important key to determine if a person is an employee as of today or to show if there is an employment relationship.

There are differences between employees and independent contractors, an independent contractor is a person who agrees to deliver a certain outcome whereas an employee, who must obey instructions from his or her employer in the discharge of his duties, so independent contractor act independently from the principal that hires him.The independent contractor can delegate others to complete the job as the principal is not concerned with how the contractor does it, so long the outcome is achieved.

Using control test from the common law, we can determine that Amanda is an employee of the company as the company control her working hours. We are concerned with the nature of the control and the degree of the control – Federal Commissioner of Taxation V J Walter Thompson (Aust) Pty Ltd (1994) Case. In Walter Thompson case, the company hired artists to perform radio plays for advertisements. The High court of Australia found that the producer controlled the actors during rehearsals and performance and held that there is an employment relationship here. Thus , we can use this case to prove that Amanda is an employee of the company.

We can use the multi factor test to determine whether Amanda is the employee of the company. The multi factor test is the primary test used in Australia to identify a contract of employment and is seen in Performing Right Society V. Mitchell and Booker ( Palais de Danse (1924 ) case, where Macardie J stated :- It seems, however, reasonably clear that final test, if there be a final test, and certainly the test to be generally applied, lies in the nature and degree of detailed control over the person alleging to be a servant. This circumstance is , of course, one only of several to be considered, but is usually of vital importance.

Amanda is also required to wear standard make up and dress as stipulated by the company.
This condition is similar to the Hollis V. Vabu (2001) case : Vabu was treated as an employer over his couriers providing delivery service. The High court held that employment relationship existed on multi factor test. The court said that there is control element in the relationship. Couriers not in business themselves, follow instructions from company, do what is assigned to them, sign no at set time and possibly be dismissed if refuse work and must wear company uniform to advertise company services. In addition, the courier was not an independent contractor because he was not free to delegate/sub contract his performance to others, not free to generate goodwill business to himself, not able to negotiate price or take leave and is not engaged in supplementary or short term work.

Amanda is required to wear standard dress and this might be the company dress code and this area, there is a control element. Furthermore, Amanda is not free to delegate her performance to others as she is required to perform her work herself. And also the time is stipulated by the company she is not allow to be engaged in supplementary or short term work as she is committed to whether timing that the company give her.

We can see from the question that the Amanda is paid weekly. By using Building Workers Industrial Union of Australia V. Odco Pty Ltd (Trouble Shooters case ) 1991 :- The multi-factors test was applied here. The courts held that the workers are independent contractors as there is not much control by agency over such workers and the workers are not paid by the week by the agency.

Furthermore, we can see from the case of Amanda, we can use the tax deduction as one of the determining factors to determine whether she is an employee or independent contractor. With reference to state payroll tax & Federal Tax Assessment – Narich Pty Ltd V Commissioner of payroll tax (1983) Case.

Using this argument, we can clearly see that Amanda is an employee of the company and not an independent contractor because the company paid tax on behalf of Amanda. In the case of Vabu V FCT (1996) case : - In this case, the Vabu traded as a courier company called Crisis Couriers and hired couriers and carefully got them to agree that the couriers are only dependent contractors – Like all couriers must own and maintain their own vehicles for delivery, pay self taxation and company to pay for the quantity of delivery – the court is compelled to hold that the couriers are indeed independent contractors.

In Chaplin’s case , a clause in the agreement between the work and AMP stated that the relationship was that of a principal and agent and not that a master and servant relationship. Because he cannot change his relationship with AMP as an independent contractor. So the Writing of a contract would be evidence of intention of the parties of the type of relationship that they wanted unless it clearly distinguished the true nature of that relationship (Narich Case).Which in this case there is not agreement that says that Amanda is an independent contractor not an employee.

As for whether Amanda is entitled to pay for the time she is recovering from her injury and effective dismissal. We can use the case of Zuijs .

In Zujis case, the trapeze artist was hired by the circus management to rehearse and perform in circus show. The artists fell and got injured and tried to claim against the circus management for compensation. The High court held that there is an employment relationship here as it was longer the actual control which an employer excised over a worker that mattered in defining the employment relationship but rather an employers right to exercise that control – like the artist is obliged to come on time for rehearsals and performance shows to observe the rules of the circus management and so on.

By using the few cases mentioned above, we can see that there the company has extensive control over Amanda with regards to her work. She cannot choose her own timing and the job is stipulated the company according to the character that she had to act out. Furthermore, the company paid Amanda weekly wages and paid tax on her behalf. Gathering all these evidences, we can conclude that Amanda is an employee of the company and not an independent contractor. If Amanda is an independent contractor, she would be able to choose her own timing as long as she can deliver the promised outcome. She would also be able to subcontract her work out to others. But she did not have all these flexibility that the independent contractor is entitled to. Thus, we have strong ground to conclude that Amanda is an employee of the company.

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