Discuss about the Queensland Parliamentary Library.
Independent contractor is appointed to provide goods and services, and no one give him instructions regarding his services while on the other hand employee receive instructions from his employer about his work.
Independent contractor use his own methods and procedure for providing goods and services, but in case of employee methods and procedures are stated by the organization for which he work.
Independent contractor does not receive any training from any institution but employee is trained by any particular institution for specific work (Goldsberry, n.d.).
In Hollis v Vabu Pty Ltd (2001) 207 CLR 21, High Court held that on the basis of following grounds it was able to conclude that Bicycle courier is an employee:
There is no skilled labor provided tobicycle couriers, and they are not able to make any independent career, or to generate any goodwill.
Bicycle couriers work is controlled by the Vabu, and they have very control on their procedure of work (Athanasiou, 2011).
The main difference between the permanent worker and casual worker is whether worker has been working for the period of more than 12 months or whether worker is working for irregular working hours and less than 12 months. Second difference is contract between casual worker and employer is non-permanent contract (Legal Vision, 2014).
Distinction between casual worker and permanent worker is important because it decide the pay scale, working hours, and leave policy, other policies of the organization and employment status of the employee (Fair Work Ombudsman, n.d.).
Permanent employee has right to get same pay as other permanent staff.
Right to get same or equal benefit packages.
Information related to permanent vacancies in an organization.
Protection against dismissal.
Third party employees are those people who are appointed by organization, agencies, and individual for part time or full time employment but for other person or organization (USF, n.d.).
Following are the duties of employees towards employers:
Do not breach any term of employment stated in employment contract.
Serve faithfully to the employer (Business Dictionary, n.d.).
Usually, employees undertake industrial action when dispute between employer and employee is not resolved with negotiation. There are three type of industrial action strike, lock out, and action sort of strike (Nidirect, n.d.).
Union plays an important role in workplace by resolving the disputes at workplace, and they area also the voice of employees and they act as bargaining representatives in bargaining negotiations (Fair Work Ombudsman, n.d.)
Provide safe and healthy working environment in an organization.
Pay fair salaries to the employees.
Does not discriminate between employees.
Provide basic facilities at workplace (OHS, n.d.).
Mary works in restaurant, but she does not work permanently in restaurant. She works once or twice in a week when someone calls her. She does not join permanently because her children are not well. The lady who owns the restaurant call Mary when business is busy.
Casual employees are those employees who does not work for guaranteed hours, work sometime for irregular hours, does not get any type of paid leave or sick leave, and they can end the employment without providing any notice. There is no universal definition for casual employees (Fair Work Ombudsman, n.d.).
Casual employees work for irregular hours, and there is no guarantee that they are always available for employer. They are not entitled for benefits which are available to permanent employees, but some benefits are also available to them also. Paid holidays or sick leaves are not available for casual workers but they are entitled for the parental leave.
Casual workers get higher pay from permanent workers, and they also get protection for being sacked unfairly under Fair work laws.
Get higher pay for per hour as compared to full time or part time workers, and this is called casual loading because casual workers are not entitled for the benefit of sick or annual leave.
Unpaid community service leaves.
They get carer’s leave which is unpaid for 2 days and 2 days compassionate leave per occasion. Section 106 of Fair Work Act 2009 states that casual employee is not entitled to get base pay rate on compassionate leave. Section further stated that for casual employee compassionate leave is unpaid leave.
Casual Employment and the Industrial Relations Act Amendment Bill 2001of Queensland states the following changes:
Protection provided to casual employees from dismissal on the basis of discriminatory grounds or fulfilling family responsibility.
Now casual employees have access to unpaid parental leave or carer’s leave after one year of their services (Queensland Parliament, n.d.).
Casual employee is completely different from full time or part time employee on the following basis:
Under Fair Work Act part time employer and full time employer gets protection from unfair dismissal, and they are to able challenge such dismissal but casual workers are not able to challenge unfair dismissal.
Usually, casual workers have no right to challenge the decision of dismissal even if they believe that dismissal is harsh, rude and unfair. Casual workers has right to challenge the unfair dismissal if they are covered under employment agreement or any modern award. Casual employees who has been employed by the organization on regular and continuous basis has right to bring claim against the unfair dismissal. It must be noted that if casual employee wants to claim against unfair dismissal then casual employee must be employed for the period of 6 months and that organization must have more than 15 employees or in case of small business at least for the period of 12 months.
We can understand this with the help of case law that is Williams v MacMahon Mining Services Pty Ltd [2010] FCA 1321. In this case, court held that any type of work choice did not contain definition of casual but this word is attracted by the common law or irregular engagement of employee at workplace.
This case law focus on the meaning of regular and systematic employment requirements under the fair work act, and it also sates the further factors to determine regular and systematic work. Court also stated that if working hours of an employee are small and the working days are irregular then court required further proof to decide whether person is casual employee or regular employee.
Therefore, if employee has proof of more working hours and regular employment in the organization then he can be considered as regular employee, and if employee has proof that his casual work hours are more than full time work hours because of work load then he can used it as proof that there is regular and systematic work. So we can conclude that casual employees have right to challenge the unfair dismissal of employee (Find law, n.d.).
In the present case, Mary works for small working hours and her working days are not regular which shows that there is no regular and systematic working. Therefore, Mary is an casual employee of the restaurant.
Whether Notting Hill Business Pty Ltd is liable for the overpayment made by Tom, and also explains the position of Notting Hill Business Pty Ltd in this case?
Many companies hire people through third party and it becomes trend now. Companies hire from third parties and saving their time and money that spend in recruiting process. Companies which act as a third party charge extra amount from the employer for the continues flow of workers. Third party hiring is a good and successful concept and there is no harm in it because employees get project in different company when first company project is over.
Third parties employers are those agencies, organizations or individuals which recruit candidates for temporary or permanent employment opportunities but not for their own need. Third party employer includes those agencies which recruit people either for profit or for not for profit, and it also includes those agencies also which provide information of people to employers for the purpose of recruitment (APESMA, n.d.).
In number of cases agencies, organizations providing staffing services, outsourcing contractors and other leasing firms will be treated as employers. However, these organizations recruit people for the other organizations then third-party professional conduct principles shall apply on these organizations.
Vicarious liability: such organizations which provide such facility are the ultimate employer of the employee. Therefore, organizations are liable for the acts of their employees.
Notting Hill Business Pty Ltd recruit experienced people for working in their office and also work in any other office at shorter notice. Employees who work in Notting Hill Business Pty Ltd can do anything in the office such as general and pay roll duties, working on reception and administration work. For providing these services Notting Hill Business Pty Ltd charges as per hour rate from the organizations that avail these services. When they go in other organization then they have to follow the instructions of those organizations in which they are recruiting. Every worker who goes out to other businesses has to dress professionally, be respectful and act properly. Any problems or issues have to be reported back to Notting Hill Business Pty Ltd.
Tom who is working with Notting Hill Business Pty Ltd goes in another business organization. Tom is an expert in calculating an employee’s pay. He goes for a period of two days and he is told that he has to work under the direction of the company Accountant. Later Tom over pay to some employees and employees withdraw their money after it has been paid into the bank. One of the employees who have been overpaid disappears.
In the present case, Notting Hill Business Pty Ltd is the actual employer off the Tom and they are liable for the act of Ton because any organizations which provide such facility are the ultimate employer of the employee. Therefore, organizations are liable for the acts of their employees. It was also held that agencies, organizations providing staffing services, outsourcing contractors and other leasing firms will be treated as employers. However, these organizations recruit people for the other organizations then third-party professional conduct principles shall apply on these organizations.
Notting Hill Business Pty Ltd is vicarious liability for the act of Tom because they are ultimate employer of the Tom but In this Tom has to follow the instructions of the company in which he get appointment which means that Notting Hill Business Pty Ltd is not liable for the acts of Tom.
Notting Hill Business Pty Ltd is the ultimate employer of the Tom but he is not liable for the act of Tom.
References:
Goldsberry, C. R. Differences between Employees and Independent Contractor. Retrieved on 2th December 2016 from: https://www.mdc.edu/hr/Operations/AFS/DifferencesBWIndepContAndEmployees.pdf.
Athanasiou, A. (2011). Contractor or Employee? – The High Court Decision in Hollis v Vabu. Retrieved on 2th December 2016 from:https://www.tved.net.au/index.cfm?SimpleDisplay=PaperDisplay.cfm&PaperDisplay=https://www.tved.net.au/PublicPapers/October_2001,_Accountants_Education_Channel___Tax,_Contractor_or_Employee____The_High_Court_Decision_in_Hollis_v_Vabu.html.
Apesma. Contracting through an agency. Retrieved on 2th December 2016 from: https://www.professionalsaustralia.org.au/contractors-consultants/wp-content/uploads/sites/42/2015/01/Guide-to-Contracting-through-an-Agency-v2.pdf.
Legal vision, (2014). What is a casual employee. Retrieved on 2th December 2016 from:https://legalvision.com.au/casual-employee/.
Fair Work Ombudsman. Casual, part-time & full-time. Retrieved on 2th December 2016 from:https://www.fairwork.gov.au/employee-entitlements/types-of-employees/casual-part-time-and-full-time.
Business Dictionary. duties of employees. Retrieved on 2th December 2016 from: https://www.businessdictionary.com/definition/duties-of-employees.html.
OHS. Duties of Employers. Retrieved on 2th December 2016 from: https://www.ohsrep.org.au/law-rights/ohs-legislation/the-ohs-act/duties-of-employers.
Nidirect. industrial action. Retrieved on 2th December 2016 from: https://www.nidirect.gov.uk/articles/industrial-action.
Fair Work Ombudsman. The role of unions. Retrieved on 2th December 2016 from: https://www.fairwork.gov.au/employee-entitlements/industrial-action-and-union-membership/the-role-of-unions.
USF. Third Party Employers Policy. Retrieved on 2th December 2016 from: https://www.usf.edu/career-services/employers/third-party-employers-policy.aspx.
Fair Work Act 2009 – Sec 106
Queensland Parliament. Queensland Parliamentary Library. Retrieved on 2th December 2016 from: https://www.parliament.qld.gov.au/documents/explore/ResearchPublications/ResearchBriefs/2001/2001032.pdf.
Fair Work Ombudsman. Casual employees. Retrieved on 2th December 2016 from: https://www.fairwork.gov.au/employee-entitlements/types-of-employees/casual-part-time-and-full-time/casual-employees.
Williams v MacMahon Mining Services Pty Ltd [2010] FCA 1321.
Find Law. Casual Employees and Unfair Dismissal Laws. Retrieved on 2th December 2016 from: https://www.findlaw.com.au/articles/4317/casual-employees-and-unfair-dismissal-laws.aspx.
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