Question:
Discuss about the Estimate Person Organizational Status.
It was stated in a court decision that a person cannot be brandished by a label and be called a contractor or an employee, whether provided by the company or not, it would be the court that puts forward its opinions after analyzing and determining what the status of the entity might be, as in the Hollis v Vabu Pty Ltd (t/as Crisis Couriers) (2001) 207 CLR 21 case.
It can be said that it’s the employer who controls how the employee might execute his work. That would also mean that employees are directed in such a way that they are told when to do a job, how to do it and what would the job be. That doesn’t mean that the employer harnesses the same command over a contractor who’s independent. These contractors are not bound to a laid down work routine and decide how a job is to proceed and when it should be completed by themselves.
The law court developed a text to estimate a person’s organizational status by combining the integrity of business test with the test of control and named the multiple indicia test. It was stated in the rules that singular factors are not enough to find out a person’s employment status. This test was first executed in the Stevens v Broadribb Sawmilling Co Pty (1986) case in Australia.
Such criterions were also used in the Twomey (2012) case to find out the employment status of an employee and solidify his post as a contractor or a simple employee.
Risks borne by the employees in an organization are very limited or even none. Hence it is seen that though job is risked when the institution takes a reputational or financial blow, the employees remain somewhat safe. Whereas, an independent contract will be liable for losses incurred by an institution since he has his own separate business.
The said employees are sometimes given the tolls required for say a singular purpose of finishing a job that is given to them. They are also allowed to use separate tools of their own but are bestowed with allowances in case of such conditions. Whereas, the independent contractor uses his personal implements and tools in order to complete the job assigned to him.
The duties of an employee cannot be bestowed on someone else by the employee himself, but, a contractor however, can by all rights hire a subcontractor to execute a job in his stead.
An employee is bound to only receive the salary that is sanctioned to him by the authorities of the company; the salary can be weekly, hourly or even monthly. The contractor on the other hand is bound to obtain his payment when and only when the required job is done and the terms and conditions of payment that were talked about before.
The employer before providing salary to the employee, with the Australian Taxation Office, deducts any required taxes that are to be excluded as income tax. Whereas, a person ATO number with the Australian Taxation Office has to be obtained by the independent contractor.
The employee is sometimes bound to be wear a particular uniform provided to them containing a logo and name of the institute. An Independent Contractor however, doesn’t need a uniform that he/she has to wear as a part of a company, but, that would not mean that a person without a uniform would automatically be labeled as an Independent Contractor.
It is the utmost responsibility of the employee under the common law to provide required service to their employer and company only. The independent contractors however, is not obligated by duties that bound him to one, he can work for many.
An employee can be assigned leaves by the employer as given by the law as in paid leaves, sick leaves, yearly or monthly holidays. The independent contractor though, cannot take holiday breaks. If they do take breaks, they will get less pay.
The employer is bound to supernaturally contribute an amount towards the employees that are currently limited at a rate of 9.5% of their provided salary. The contractors though, make their personal contributions.
It was stated by the court of law that when plaintiff is hired by the defendant to be their independent contractor, the plaintiff would still act as an agent and can receive compensation from the defendant company, as in the ACE Insurance Limited v Trifunovski [2013] FCAFC 3 case.
It is given in the case that Monks Pvt. Ltd chose Amanda to be an actress in their new upcoming TV series. The contract that was signed by both the entities, said that the actress, Amanda, should be present for work whenever called being assigned a prime role in the series. It was stated very clearly that Amanda is allowed to work for other institutions as well and will not be provided any guarantees. It is also in contract to be open to media whenever required by the production house. It is also in her contract that work wages would be given to her monthly but exclusive of tax deduction.
By what is analyzed and deducted by the set rules in the situation, only one approach can be made. It was clearly stated in the contractual terms of Amanda that she can freely work for any other production house, implying to fact that she must be an independent contractor. To that, if we include another factor of she not actually getting her salary with income taxes deducted from it that would also indicate her label as a contractor who is independent. On top of all that the contractual terms mention that her working hours are a minimum of about 50-60 hours weekly unlike a normal employee’s assigned and designated 48 hours weekly, the discontinuity in her working routine also point to the fact of her being an independent contractor. He receiving her salary once in a month may not particularly point to either her being an employee or a contract, but, by what is seen in her working routine and the term of her being available at any time demanded or requested solidify her condition as a contractor. But, it is also seen that the employer had particularly demanded her presence in front of media representatives and reporters that would mean that they have significant say over her job and have authority over her work. Even though the employer’s significant hold of power over her, it doesn’t mean that she is singled out as an employee, as analyzed and discussed in all the above rules. It can clearly be seen that all her contractual provisions point to the single possibility of her being an independent contractor and not an employee.
This question will analyze the factor that whether Ken can place any arguments on the validity of the contractual provision of last in the first off condition.
The conditions of ” the last on the first off” criterion talked over in Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 case. It was stated that the criteria was very much discriminatory in relation with women and hence shouldn’t be considered.
Redundancy is applied by all employers if they go with the provisions in common law that imposes obligations on workers to not treat employees redundantly, unlawfully and unfairly. The industrial laws of state also considered here.
The basic conditions while selecting the criteria for the redundancy is consistent when applied fairly and are non-discriminatory.
Conditions given in a contract of employment are also taken in question when redundancies are considered. It’s an employer’s duty to account the relevancy of procedures, practices and policies of a given industry.
Redundancies were announced by the company Ore Ltd towards employees while experiencing a downhill market turnover. Bob, an employee for 20 years in the company was less qualified than Ken, an employee of 18 months only. The contractual terms of ken provided choice of redundancies considering qualifications, taking in the last on the first off criteria. The rule though is only applied when there is discrimination, but here, there is none. The contractual terms also provided redundancy based on the qualification of employees. Hence, Ken cannot argue against the laws as they were a basic contractual term in his contract, this is also valid towards all the other employees in question. Hence, it can also be said that considering the situations in the company, the company can easily go for any other procedure of accounting redundancies when dealing with employees that have discriminatory conditions or if there is a situation where one has more experience than the other, as in the case given to us.
References
ACE Insurance Limited v Trifunovski [2013] FCAFC 3
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Hollis v Vabu Pty Ltd (t/as Crisis Couriers) (2001) 207 CLR 21
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1
Twomey, David. Labor and Employment Law: Text & Cases. Cengage Learning, 2012.
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