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BSL202 Workplace Law

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Lewis is a truck driver.  He was recently injured at the depot he attends Monday to Friday to pick up goods for delivery. XYZ Pty Ltd runs the depot.  Lewis has been delivering goods for it since 2001, after answering an advertisement it placed for drivers.  His hours vary according to the delivery tasks assigned but most days he starts at 8am and finishes by 4pm.  

Lewis, who drives an XYZ truck, invoices it for his hours of work and is paid a flat hourly rate less deductions relating to his use of the truck (insurance, vehicle registration etc).  Lewis wears no uniform but abides by depot rules on smoking, drug use, maintaining radio contact with the depot when delivering goods etc.

He has never been paid sick leave but he takes 4 weeks unpaid annual leave each year. Lewis  considers himself an independent contractor (sometime after starting the job, he was told that if he wanted to continue to do deliveries for XYZ he must sign a form acknowledging that the work he did for XYZ was done in this capacity) but a friend of his who is studying BSL202 Workplace Law suggests he may actually be entitled to workers compensation as an employee.  Is Lewis an employee or a contractor?  Why or why not?

Assuming, for the purposes of the question, that Lewis is actually an employee, did XYZ breach the Fair Work Act in requiring him to acknowledge that he was a contractor? (30 marks) (Source of question: Van Der Waarden, Employment Law 2nd ed)

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