Employee Contractor And Decision Tool: Examining The Common Law Test In Australia

The Multi-Factor Test for Determining Worker Status in Australia

Discuss about the Employee Contractor and Decision Tool.

It has been specifically observed that a multi factor test have been adopted by the tribunals for determining whether an individual was regarded as a worker or was doing gis trade as an independent contractor  (CPA Australia, 2017).

However, in applying the test, a tribunal would look at the complete relationship and make a verdict on the stability. Similarly, any written contract which states the nature of a relationship as either service or a contractual was appropriate but not decisive (Tobin, 2011). Similarly, for supporting in a self- appraisal of the status of workers a common law test have been prevalent in the state (Kemp Strang, 2017).

In has been significantly important to confirm on the point that who was a worker as the common law rules on the basis of employment were different from the common law rules  in regard to the independent contractor.

The Common law does not specifically describe who was a worker but rather it differentiates work associations into 2 categories like contract of service or other kinds of work or agreement.

So, the current common law test in Australia has created a multi factor test for determining whether an employee was a worker or an independent contractor (HWL Ebsworth Lawyers, 2011).

The Multi- Factor test has been defined as a primary test which was utilized in the state in order to identify an agreement of employment. In Performing Right Society v. Mitchell and Booker (Palais de Danse) Ltd (1942) it has been specifically stated that if there would be a final test and certainly the test to be generally applied depends on two factors such as the nature and degree of detailed control over the individual who was the servant and the situation was one only of a number to be considered but was usually of vital significance (Kelly Workplace Lawyers, 2017).

In Stevens v. Brodibb Sawmilling Co. Pty Ltd (1985) the above mentioned test was applied, whereby the tribunal stated that the control test have been a important factor though not critical exclusive of indication to other elements like possession of tools, authority to delegate, and so on  (Australian Government, 2017).

In another matter of Building Workers Industrial Union of Australia v. Odco Pty Ltd (trouble Shooters case) (1991) and it was concluded that the employees were independent contractors as there was not much CONTROL by the organization over such workers were not paid weekly by the agency (Forsyth, 2017).

Constructive Dismissal and Employer Obligations

Also, it people  were not on payroll or there was a lack of control factor, then it could be stated as a independent contractorship.

So, in the current situation the multiple indicia test has been applied, the following wasanalytical of the link between the employee and employer:

If people assume Donald was an employee, then whether ABC have breached any federal legislation in relation to requiring him to contract to DEF or not?

Constructive dismissal in effect with the forced resignation has been usually in a poor manner be understood mainly as it could manifest itself in a heap of different circumstances relying on the terms if any provided employment association (Maurice Blackburn Lawyers, 2017).

It takes place when the demeanor of the employer was so injurious, unfavorable or unsociable to the agreement of employment and the employment association that the employee could not be predictable to put upwith it (Croft, 2016).

For example, if an employer specificallyportentous of the fact that a worker to leave (irrespective of whether the worker made the proposal) so as to help out with protecting the future ability of the workers to get hold of work.

In O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 it hasbeen affirmed that the worker must show that the actions of employer were the main contributing factor which have led to their resignation. The actions of the employer must be found to have beenunswervingly and inevitablyconcluded in the termination of the employment (that the worker had no effectual or actual choice but to leave) and that the worker would have continued to beengaged but for the supposedbehavior.

The resignation must also takes placedirectly after, or very shortly after, the conduct protested of, if not the worker could be said to have established the sustainedsubsistence of the employment agreement (in effect, ‘tolerating’ the demeanor) (Workplace info, 2017).

But Constructive dismissal often forms the foundation of “dismissal-related” assertions such as unfair dismissal or a contravention of the general protections sections of the Fair Work Act (Australian Government, 2017).

A recent example was the matter of Foster v Sushi Tribe Pty Ltd T/A Pacific Retail Management [2016] FWC 2201 it was concluded that the Fair Work Commission affirmed that the plaintiff was constructively dismissed.

All constructive dismissal matters also make it clear that employers need to cautiouslybelieve their events when they decide they desire to be free of a worker. There washardly ever a low-risk shortcut that could substitute goodbeing without a jobdeliberations or act management (Robinson, 2003).Application

Application and Conclusion

So, in the present case the constructive dismissal principle would be applicable as Donald was forced to resign the job. And also at the same time the federal law of Fair Work was violated as he was terminated without notice.

Conclusion

Therefore, at the end it could be concluded that If people assume Donald was an employee of ABC Corporation, then ABC would clearly be in contravention of the Fair Work Act of the federal l legislation in relation to requiring him to contract to DEF. Such an act was forcefully imposed in him as he was told that if he would not sign than he would be terminated which he was even after signing the deed.

Whether thepeople assume Donald was considered as an employee, does ABC have an obligation to give Donald any notice on termination, under common law or legislation or not?

It has been clearly stated that a notice of termination has been regarded as an authorized, written notice of being laid off or terminated from a present position of the worker. Reasons for termination could alsodiffer from gross delinquency, slowness, and disobedience to layoffs, corporate conclusions, or rationalizing (Walsh, 2013).

But whenever a worker would be terminated from his job then the worker would be permitted to have a notice or expense in lieu of notice from the employer. Such an act must be done by the employer as it was his obligation to do so. Employers must also be conscious of their duties.

But a failure to act in accordance with the minimum notice standards under the Workplace Relations Act 1996 and fair Work Act on the part of employer could lead to further, increased damages against him.

Similarly, in majority of matters, when an employer ends the service of a worker who has been incessantlyengaged for three months, the employer must grant the worker with either written notice of termination, termination pay or a amalgamation.

In Barton v. Rona, 2012 ONSC 3809it was stated that the plaintiff sued for an act of unlawfulremoval from office and was awarded 10 months’ pay in lieu of notice. The tribunal alsodiffered their view with the zero-tolerance health and safety rule of the employer, portentousof the fact that employers should evaluate the proportionality of the delinquency with the permitforced and also be careful of the “zero-tolerance” advancement.

So, as in the present situation no notice for the termination was given by the ABC Corporation to Donald so they would be regarded to be in breach of their obligations. And at the same time the tribunal could ask the corporation to award the payment in lieu and also provide the payment due in that notice period.

References

Australian Government. (2017). Employee/contractor decision tool. Retrieved on 6^th February’2017 from: https://www.ato.gov.au/calculators-and-tools/employee-or-contractor/

Australian Government. (2017). Unfair dismissal. Retrieved on 6^th February’2017 from: https://www.fairwork.gov.au/ending-employment/unfair-dismissal

CPA Australia. (2017). Employees And Contractors. Retrieved on 6^th February’2017 from: https://www.cpaaustralia.com.au/~/media/corporate/allfiles/document/professional-resources/practice-management/employee-versus-contractor-complete-transcript.pdf

Croft, E. (2016). Australia: What Is Constructive Dismissal?. Retrieved on 6^th February’2017 from: https://www.mondaq.com/australia/x/247688/Redundancy+Layoff/What+Is+Constructive+Dismissal

Forsyth, A. (2017). General Counsel → Employment law → Employment/work relationships. Retrieved on 6^th February’2017 from: https://lexisweb.lexisnexis.com.au/Practical-Guidance-Topic.aspx?tid=1323

HWL Ebsworth Lawyers. (2011). Contractor or Employee?.Retrieved on 6^th February’2017 from: https://www.hwlebsworth.com.au/latest-news-a-publications/publications/government/australian-government/item/587-determining-whether-a-person-is-a-contractor.html

Kelly Workplace Lawyers. (2017). Contracts of Employment. Retrieved on 6^th February’2017 from: https://kwlawyers.com.au/areas-of-practice/contracts-of-employment

Kemp Strang. (2017). The Never Ending Argument – Independent Contractor or Employee. Retrieved on 6^th February’2017 from: https://www.kempstrang.com.au/publication/never-ending-argument-independent-contractor-or-employee

Maurice Blackburn Lawyers. (2017). Breach of employment contract. Retrieved on 6^th February’2017 from: https://www.mauriceblackburn.com.au/employment-contracts/breach-of-employment-contract/

Robinson, A, A. (2003). Resignation andconstructive dismissal. Retrieved on 6^th February’2017 from: https://www.allens.com.au/pubs/pdf/wr/fowrmar03.pdf

Tobin, A. (2011). Australia: Contractors v Employees: The differences and why it matters – Part 2. Retrieved on 6^th February’2017 from: https://www.mondaq.com/australia/x/125426/Contractors+v+Employees+The+differences+and+why+it+matters+Part+2

Walsh, P. (2013). Australia: Termination of Employment in Australia: Best Practice Guide. Retrieved on 6^th February’2017 from: https://www.mondaq.com/australia/x/257796/employee+rights+labour+relations/Termination+of+Employment+in+Australia+Best+Practice+Guide

Workplace info. (2017). Constructive dismissal. Retrieved on 6^th February’2017 from: https://workplaceinfo.com.au/resources/employment-topics-a-z/constructive-dismissal