Workplace Law

Topics: Recruitment, Independent contractor, Trade union Pages: 6 (1960 words) Published: June 27, 2012
Jane’s case appears to be focusing on the Tests for Employment. In order to determine whether a worker is an employee or not, working under a contract of employment in contrast to another type of contract is extremely important. The vicarious liability of an employer is a liability linked to an employee’s actions in the course of course of employment. This liability does not apply to workers who are contractors. Legislative protections often depend on the worker being an employee.

In order for Jane to determine the true nature of her contractual relationship with Total Mechanic Management Services Pty Ltd (TMMS), the law applies a common law tests that approaches the issue by categorizing work relationships, distinguishing one from another where work relationships will be divided into two broad categories, contract of service, and all other type of work. An employee works under a contract of service or contract of employment, whereas an independent contractor works under a contract for services. Subsequently, a number of tests have been developed for the purposes of common law to distinguish the work relationship. They include: • The control test;

• The integration/organization test;
• The in business/economic reality test;
• The Ready Mixed Concrete test; and
• The multi-factor test.

The control test
The control test underlines two important elements which include the nature of the control as well as the degree of the control.

In the case of Federal Commissioner of Taxation v J Walter Thompson (Aust) Pty Ltd (1944) 69 CLR 227, the court concluded the producer exercised a detailed and extensive control of the artists during rehearsals and the final performance. This was necessary in order for each artist to co-operate with the others in the team so as to bring about a result largely determined by the producer. Thus the court held that the actors were employees. Besides that, in the case of Zujis v Wirth Brothers Pty Ltd (1945) 70 CLR 539, the High Court found an existence of a contract of employment by recognizing that the acrobat was subject to the direction of the proprietor in most other aspects of work. For example, the acrobat was obliged to rehearse, to be at the circus at certain times, observes certain safety measures, and take part in a grand parade. Therefore, the High Court put forward a reformulation of the control test: What matters is lawful authority to command so far as there is scope for it. This has further elaborated that the test was not about the actual control of an employer exercised over a worker, but an employer’s right to exercise that control.

Based on the control test that stresses on the nature of the control and the degree of the control, it is apparent that TMMS has a large amount of control towards Jane. This is proven through the fact that all jobs were allocated on a call by call basis by TMMS and Jane was permitted to attend private jobs as long as they did not prevent her from attending any job allocated by TMMS and TMMS jobs had priority. On top of that, random checks will be conducted by the manager of TMMS for quality control purposes. Any dissatisfied customers or complaints will be dealt by TMMS.

The integration/organization test
In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513, it was argued that Gray, a timber worker, was part and parcel of Brodribb’s organization because his work was integral to the supply of timber necessary for Brodribb’s sawmilling operation. Courts held that they were not employees but rather independent contractors due to the control test, as the degree of control was minimal. This is the test to determine if an employee is “part and parcel of the organization”. However, it has generally not been accepted as a test sufficient to distinguish between an employee and an independent contractor.

The in business/economic reality test
This test appears to be related to the integration/organization test, but...
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