English common law is imported to Australia from origin England, decisions of the high court of Australia, decisions of the federal court of Australia and decision of the supreme court of the states and territories. Common law helps to define employment relationship, perform an interpretive of legislation, awards and agreements, identifying imply terms that states in a contract of employment. Under common law of employment, it comprises decision which handed down by the specialist industrial tribunals and courts that include Fair Work Australia. There is no direct guideline to all cases due to statutes and other regulations that exploit in different rationale. Workplace law is related to the act of individual employment relationship and collective relationship.
Identify the legal issues
This problem solving case study aims to evaluate the nature of employment between Benny Brown and Greenest Trees Pty Ltd (GTPL). Based on the facts available in provided assignment, it is distinguishing that: • Benny was to provide his own van to transport the necessary tools and equipment and to attend to calls for urgent garden repairs and event gardening from GTPL members. Benny would receive an allowance for vehicle maintenance but was required to pay for his own petrol. • Benny was to be paid a flat hourly rate based on the number of hours he attended at each job. • Benny was to provide all his own tools and equipment. • All jobs were allocated on a call by call basis by GTPL and Benny was permitted to attend private jobs as long as they did not prevent him from attending any job allocated by GTPL and GTPL jobs had priority. • Jobs were checked at random by the manager of GTPL for quality control purposes and GTPL dealt with any dissatisfied customers or complaints. • Tax was deducted from Benny’s payments each week and he was given 3 weeks leave each year in late December, early January. During this 3 weeks Benny continued to receive payments from GTPL based on his average payments from the preceding 3 months work. • Benny was not required to wear a uniform however; GTPL requested that he have his van emblazoned with GTPL logo and signage. Relate the relevant principles of law
Fair Work Act 2009 legislation has introduced terms of an employee but it does not identify as much as a precise worker (FAIR WORK ACT 2009 2009). Australia common law recognizes that an employee is one who works under a contract of employment, whereas an independent contractor works under a contract of services (Fair Work OMBUDSMAN (20 December 2011) 2011). Independent Contracting relationship is usually covered by general commercial law, not employment. When judge finds that both employee and independent contractor are too identical, they would perform a couple of tests to justify their answer. Control test is one of the key principles to determine the nature of the control and the degree of the control (N. L. Ltd 2000-2012). Apart from using control test, multi factor test is another application that carries out commonly in Australia.
In this problem case scenario, Benny commenced his job with GTPL on July 2010 without any signing any contract or agreement. Regardless of this issue, a work contract still exists between Benny and GTPL, based on an oral agreement that Benny had with Janet James, owner/manager of GTPL (Vettori 2001). Following in January 2012, Benny had signed an “Independent Contracting Agreement” document. The only differences between both agreement was that Benny would required to submit weekly invoices for the jobs allocated and statement clearly mention that both were not related in any employment relationship. There is no legal requirement to be formally written and signed between both parties in Australia as common law has instinctively imply duties in a worker’s contract (WorldLink for Law - Labour/Employment data for Australia (Victoria) 2009). These duties focal point justify on...
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