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  • What legislation applies to employment in Australia?
  • What is the distinction between an employee and independent contractor?
  • What were the criteria used in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 to determine whether a worker was an employee, as distinct from an independent contractor?
  • How is a casual worker distinguished from a permanent worker?
  • What is the importance of the distinction?
  • What rights does a permanent employee have?
  • What is meant by a third-party employee, and to whom do they owe their duties as an employee?
  • What are some of the duties owed by employees to their employer?
  • Under what conditions can employees undertake industrial action?
  • What is the role of unions under employment law?
  • What are the duties required of employers by their employees?
  1. Mary works for a restaurant. She works sometimes once or twice a week when someone telephones her.  She does not always work because her children get sick and she cannot leave them.  The lady who owns the restaurant will often call Mary or other people if the business is busy and more help is required.

What is Mary’s type of work?  Is this type of work different to someone who works full time and earns a salary?

  1. Notting Hill Business Pty Ltd has experienced people who work in the office and can at short notice work anywhere in any office.  Those who work in this organisation can do anything in the office such as general and pay roll duties, working on reception and administration work.

Notting Hill Business Pty Ltd charges the businesses that use these services an hourly rate for their workers who go to another business to fill in.  When they go to these other businesses they must take their instructions from the businesses they are sent to and not Notting Hill Business Pty Ltd.  Every worker who goes out to other businesses should dress professionally, be respectful and act properly.  Any problems or issues must be reported back to Notting Hill Business Pty Ltd.

One of those people working for Notting Hill Business Pty Ltd (Tom) goes to another business.  Tom is an expert in calculating an employee’s pay.  He goes for a period of two days and he is told that he must work under the direction of the company Accountant.

Tom works at this business for several days but he overpays some of the employees.  The employees withdraw their money after it has been paid into the bank.  One of the employees who has been overpaid disappears.

Required: Who is responsible for the overpayment of the funds that are now missing?  What is the position of Notting Hill Business Pty Ltd?

Part A
  • In case of Australia, The Fair Work Act 2009 and the Fair Work Regulations 2009, is the main legislation that deals with the overall workplace activities. It governs the overall employer employee relationship in Australia. It has form various rules in this regard with respect to the minimum wage entitlement, overall work place safety and also fairness in the work done and helps in prevention of discrimination among the employees.
  • In case of any business there may be both an independent contractor and an employee. But there are two basic differences between them. In case of an employee, the company can charge various taxes like the security tax, Medicare from the total wages that is paid, but in case of independent contractors, such norms does not apply to the independent contractor, they are outside the purview of the relevant tax laws.
  • The multiple indicia test was decided in the Hollis v Vabu Pty Ltd (2001) 207 CLR 21 to determine whether a worker was an employee, as distinct from an independent contractor. In this test the court ascertained that all the factors must be properly checked to confirm the relationship between the parties, just the affirmation of only one criteria is not sufficient enough to establish the relationship whether it is officer or an independent worker. None of the factors are determinative of the relevance of any kind of relationship, what matters is that all the factors must be checked and proper relevance must be placed on all of them. (Mishra, J. and Morrissey, M.A., 1990)
  • A causal worker can be distinguished from a permanent worker in more than many ways, Permanent employees have [particular fixed working hours and they work accordingly and also they will be paid fixed wages and also they are entitlement to various leave entitlements, they are useful resource to the company. In case of a casual employee, they are not entitled to any leaves also there hours of works are not fixed, they pay is not regular .They are not the permanent employees of the company, hence less useful resources.
  • Distinction is very important in any workplace. If each people are properly segregated with proper distinction, they will be aware about the kind of work they need to do as per their designation. It will also help in proper segregation of work, and also help in establishment of responsibility.(De Cuyper, N., De Jong, J., De Witte, H., Isaksson, K., Rigotti, T. and Schalk, R., 2008.)
  • A permanent employee has a lot of rights. They are the most useful human resources of any company. They are entitled to a lot of benefits, Permanent employees are entitled to a paid day off on a public holiday, if it falls on a day they would normally have worked, they are entitled to a leave o four weeks annually. They are also entitled to bonus, and also a lot of tax savings and retirement befits are there for the permanent employees which they can avail.
  • Fiduciary is a relationship that is used to describe the third party relation that an employee has with more than one employer. In case of third parties also, the employer has the same responsibilities as in that case of his own employees. They are also entitled to leave and fees, however the terms of their relationship will be over looked by the terms of relationship between the two employers.
  • Just like an employer, an employee also ahs certain responsibilities towards its employees, that include, to everything that the employee is deemed to do within the reasonable time, to do everything in the best of their ability and also not to disturb the functioning of the business by taking unnecessary industrial actions. To follow the actions of the employer, to work with reasonable skill and care, to be honest and not take any bribes. To give proper notice, when they are thinking of any job changes.
  • Industrial action is taken by an employee to settle a work place dispute that cannot be settled on mutual grounds between the employer and the employee. Industrial action includes employee not coming to work, refusing to do any kind of work, to put a ban on the work that they do, they are locked out of the work place by the employer.  Industrial action can be taken if the reasons just and equitable to do so, if the employees are discriminated, or are terminated form their jobs on unfair basis, or they are not paid their settlements on time, they can resort to the means of industrial action in an organization.(Tsui, A.S., Pearce, J.L., Porter, L.W. and Tripoli, A.M., 1997)
  • The unions play Avery important part in case of work place. The most important being that it helps in voicing of opinion of the workers. It acts with the management to resolve any kind of dispute between the management and the workers. It helps in bargaining of the demands of the workers.  It helps in analyzing suspected breaches of rights of the employees and helps them receive their justice.(Bohle, P., Quinlan, M., Kennedy, D. and Williamson, A., 2004.)
  • The employer is required to perform certain duties for its employees. To provide them with safety work conditions, to help them perform their work efficiently. To help them do their work in such manner that health conditions are not hampered. To give them their wages on time, to listen to the grievances of the employees from time to time and try to solve the same to try and work in mutual befits for all the partied involved. To proved leave entitlements as and what is decided between the parties, these are the basic duties of any employer for its employee. The employer and the employee must work together for the overall development of the organization.

1) In the given case study Mary is working a casual worker, because she is not working everyday as the norm of the company and work sonly when someone telephones for the same.  The work of a casual worker is very different from that of permanent worker is more than many ways. A permanent employee is entitled to a lot of benefits that a casual worker doesn’t get.  A full time employee ahs an ongoing assignment and works for around 38 hours on an average every week.  The actual work hours are decided between the employer and the employee and they work accordingly for the same. (Burgess, J. and Campbell, I., 1998)

A casual employee has no entitlement of leaves, are paid salary on hourly basis. The total work hours are limited and are not fixed. Just in case of Mary, she worked whenever the management required her to work once or twice the week. There were no fixed employment hours and the employee had no availment of leave entitlements. These causal employees are not paid any bonus and are also not allowed to be entitled to any kind of retirement benefits from the employer.  They are entitled to a higher hourly pay rate than equivalent full-time or part-time employees. They are doing not get any sick or annual leave and it is known s “casual loading”.  They are only entitled to unpaid community service leave and also two days unpaid care leave and sick leave. There are no paid leave for such kind of employees. The permanent employees have a lot of befits they are given fixed wages and also various retirement benefits, there hours of work are fixed and they have to work accordingly. They are the useful resources for any company and are the permanent human resource capital.( Whitehouse, G., Lafferty, G. and Boreham, P., 1997.)

In the given case, Mary was a casual employee, because she was working part time, in a casual nature, there were no fixed times and she worked on the basis of number of hours worked and was paid accordingly. Hence Mary was not entitled to a lot of befits that the permanent employees had in the organization. In some ways permanent employees are at a less better position than a causal employee, because the casual employees can work as and when they want, they cannot be forced to come to work. They ok they are paid just in case of freelancer.( Campbell, I. and Burgess, J., 2001)

2) In the given case it is stated that Notting Hill Business Pty Ltd has experienced people who work in the office and who can work on any short notice in the company s and when required.  Anyone who is working in the company can perform any of the functions like as general and pay roll duties, working on reception and administration work. There is no proper segregation of work between the employees in the company.  There was a change in the businesses of the Notting Hill company , in which the services of the employees of the company were sent to other companies on the basis of the hourly rate, when the employees were working in that companies, they were to work as per the directions of the company they were working on the basis of hour rate and not on the basis of the company who was sending them that is the Notting hill company.  It was entitled that all the employees who were send must perform to the best of their ability should dress their best and also should try that there was no fault form their side, in case of which such faults will be reported to the notting hill company.  Of all the employees, tom who was an expert in accounting was send and was asked to work a sper the directions of the company accountant. it was seen that because of the calculation of Tom made of the salary payment some of the employees were paid over and one of this employee disappeared . it can be said that this is not the mistake of tome, but of the accountant who was supervising the work of Tom. The notting hill company cannot be held responsible in any ways, their employee was working s per the direction that were issued to him. Notting Hill cannot be held for any default that was made. If tom was guilty he would be held liable and the same will be reported to the Notitng hill company . but here we see that Tom was not liable because the was working a sper the guidance of the company and a sper the gudinace of the companys accountant. There si afiduciary relationship between Tom and the notting hill company in this cxase. In case of this, the third party cannot be hled liable in any ways, beacsue the employees si workinga  sper thye directions that are issued to him by the employees. Hence in this case Notting hill cannot be hled liable for this act of the accountant or the tom. The accountant will be held guilty for the same.

Casual employment in Australia and temporary employment in Europe: Developing a cross-national comparison. Work, Employment and Society, 15(1), pp.171-184.

 Working hours, work-life conflict and health in precarious and" permanent" employment. Revista de Saúde Pública, 38, pp.19-25.

 Casual employment in Australia: growth, characteristics, a bridge or a trap?. The Economic and Labour Relations Review, 9(1), pp.31-54.

From casual to permanent part-time? Non-standard employment in retail and hospitality. Labour & Industry: a journal of the social and economic relations of work, 8(2), pp.33-48.

 Literature review of theory and research on the psychological impact of temporary employment: Towards a conceptual model. International Journal of Management Reviews, 10(1), pp.25-51.

Alternative approaches to the employee-organization relationship: Does investment in employees pay off?. Academy of Management journal, 40(5), pp.1089-1121.

Trust in employee/employer relationships: A survey of West Michigan managers. Public personnel management, 19(4), pp.443-486.

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