Employee Vs Independent Contractor | Redundancy Law Essay.

1. Monks Pty. Ltd., a television production company, chooses Amanda to act in a new serial being produced.   Before she commences work she signs a contract that says she will fill a central role in the serial and must be prepared to work at all times but that there is no guarantee of any continued work and that she is free to accept work from other production companies.  The contract also requires her to make herself available to the media as directed by Monks.

Amanda works 50-60 hours a week (including evening and weekend call backs to re-shoot scenes) and after four weeks Monks Pty Ltd. pay her $10,000 without making any deduction for tax.  The next day she receives a nasty gash on her arm on set when the director throws a prop at her in an angry tantrum, requiring her to be off work for the following week.   In haste, the director alters the story line and completely writes Amanda's character out of the serial.

Suggest, with reference to cases, whether Amanda is (or at least was) an employee or an independent contractor?   (Amanda believes employee status would entitle her to pay for the time she is recovering from her injury & for her effective dismissal but you are not required to advise her on these matters)

and

2. Ken and Bob are drivers for Ore Ltd.  Ken has been employed by the company for 20 years, while Bob, though better qualified than Ken, has worked as his assistant for the last 18 months.  

Ore Ltd has recently included Ken but not Bob on a list of employees to be made redundant due to an economic downturn.  Ken was surprised as he expected the customary ‘last on / first off’ (last employed / first made redundant) rule to be applied as it has been by the company and indeed across the mining industry more generally in previous downturns.  

Ken was also surprised to see that there was no mention of the rule in his contract, which said only that the employer may determine redundancies by reference to the level of employee qualification.  Can Ken argue that the ‘last on / first off’ rule forms part of his contract and that he should therefore not be made redundant before Bob? (8 MARKS) (You are not required to advise Ken more generally in relation to his possible redundancy)

Legal Distinction between Employee and Independent Contractor

Whether Amanda is an employee or an independent contractor of Monks Pty. Ltd?

When any person (employer) give work to any other person (appointed person), then, the appointed person can either be categorized as an employee or as an independent contractor. The distinction amid the two is of grave importance because an employee works under the contract of employment  and an independent contractor works under contract for service and the legal implications are very different. 

The contract of employment signifies that an employee is appointed by an employer to give his personal services for a particular period of time or indefinably, whereas, the contract for service signifies that a contractor is appointed to achieve some defined results and to achieve some defined outcome..

In order to determine the distinction amid the two some of the factors are:

1. Payment – Hourly rate/salary is provided to an employee whereas total lump sum amount is paid to the contractor for the entire work undertaken;
   
   
2. Invoice –The contractor send invoices of the work carried out by them but employees do not send any kind of invoices to their employees;
   
   
3. Work injury – When any injury is caused to an employee then it is an employer who is accountable for the same. But, the contractor is responsible for his no injuries.
   
   
4. Sub-contracting – There is no authority that is provided to an employee under which he is permitted to delegate the work that is provided to him. However, an independent contractor is permitted to delegate his work as per his own wish;
   
   
5. Material – The material that is required to complete the work is normally provided to an employee by an employer. But, in case of an contractor, the tools and material that is acquired by the contactor on its own without any involvement of the employer;
   
   
6. Super-annuation and tax – Normally the taxes of an employee are paid by an employer but a contractor is accountable to pay his own taxes.

However, the courts still look into the entire situation and circumstances prior deciding whether the relationship is of an employer-employee or employee-independent contractor. It makes no difference what terminology is used by the parties, the court look the entire situation and then only decides the relationship that is hold by the parties and is held in Hollis v Vabu Pty Ltd (t/as Crisis Couriers) (2001) & AMP v Chaplin (1978). At time the employer tries to mis-quote the relationship in order to avoid the statutory impositions but the court acts beyond the acts of the parties and analyze the true intention of the relationship Narich v Cmr. of Payroll Tax (1983). 

At times the distinction amid an employee and an independent contractor becomes so complex that there are several tests that are required to be determined in order to understand the true nature of the relationship.

1. The control Test – An employee is under the control of the employer and works as per his directions. But a contractor is not controlled by the employer and has his own say while performing his obligations. Thus, if the presence of control is less than it depicts the presence of independent contractor relationship.

The control test is not the rule of law but it has been found from number of years that the control test is found to be the most determining factor in order to understand the true relationship that is shared amid the parties. In Performing Right Society Ltd v Mitchell & Booker Ltd [1924], it was held that that it is the degree of control over the person that determines his nature of service. But, the courts are not relying on the control test alone. There are various other tests that are also relied upon by the courts to understand the nature of the employment.

1. The organization test – In Stevenson, Jordan and Harrison Ltd v McDonald and Evans[1952], it was held that when the person is undertaking work as part of the organization  then he is an employee otherwise he is a contractor.
2. The multiple indicia test – In Stevens v Brodribb Sawmilling Co Pty Ltd(1986), it was held that multiple factors, such as, mode of remuneration, equipments, hours of work, holiday etc are some of the factors that determine the true nature of the employment.

A company, Monks Pty. Ltd., selects Amanda to act its serial. A contract is signed by her wherein it was written that she plays the central role. It is submitted that the relationship of Amanda and Monk is of an employer and independent contractor. The main reasons for the same are:

As per contract, Amanda must work all times but that there is no guarantee of any continued work.

Thus, there is no infinite or definite period for which an appointment is made, rather, the work is provided as per the requirements and thus she is not in continue service of Monk.

Also, she is free to accept work from other production companies. 

Application of Law in Monks Pty. Ltd. vs Amanda Case

Thus, she is not in total control of Monk and is not working as per the organizational test. Thus, there is no presence of control or origination test.

She must be available to the media as directed by Monks but this criteria will not make her as an employee.

She spends around 50-60 hours a week and she is paid $10,000 after four weeks without making any deduction for tax.  Thus, lump sum money is provided and there is no tax deduction. Thus, she must be treated as a contractor.

Conclusion

Thus, Monk and Amnada shares a relationship of an employer and an independent contractors as there is no control of Monk over Amnada.

Can Ken submit that the ‘last on / first off’ rule forms part of his contract and that he should not be made redundant before Bob?

When a contract is established amid the parties, then, the parties must abide by the terms of the contract. Terms can be oral and written. When the terms are written in a signed contract, the parties must abide by the same irrespective of the fact whether the same are read or not. Oral term is not permitted to be relied upon the parties. However, there are situation wherein regardless of the written terms, the oral terms can also be made binding upon the parties if:

1. The oral terms are necessary and are not in contradiction with the main contract. Also, the parties would have intended that such statement to become part of the contract
   
   
2. Certain terms are considered to be implied depending upon the certainty of the term , reasonableness and uniformness

The law is now applied.

Ken and Bob are drivers for Ore Ltd.  Ken is working fir the company for 20 years, while Bob, is a qualified person and is working for the company as an assistant for the last 18 months.  

Ken was made part of the redundancy list despite of the fact that he has served the organization for 20 years (whereas Bob is part only for 18 months). There is a contract that is signed amid the company and Ken wherein there is no mention of any kind of rule and it only submits that the authority of redundancy of the employee rests only with the employer.

Thus, as per Ellul and Ellul v Oakes, since the contract amid Ken and the company is written, thus, the terms are binding irrespective whether the same are read by Ken or not.

But, as per Hoyt's Pty Ltd v Spencer and Con-Stan Industries v Norwich Winterthur, the customary rule must be allowed to imposed upon the parties according to which ‘last employed / first made redundant’ must be applied. This is the rule that is applicable across the mining industry more generally in previous downturns.  Thus, normally the customary rules are not applicable in case of written contract, but, when there is a need of reasonableness and uniformness oral terms can be included.

Conclusion

Thus, Ken can rely on the costmary rule and can submit that the company must apply ‘last employed / first made redundant’ and thus Bob should be removed.

Books/articles/Journals

Daniel Sandler, ‘The Taxation of International Entertainers and Athletes:All the World's a Stage’, (Kluwer Law International, 21-Sep-1995).

Case Laws

Australian Air Express v Langford (2005).

AMP v Chaplin (1978).

Con-Stan Industries v Norwich Winterthur (1986).

Ellul and Ellul v Oakes (1972).

FCT v Walter Thompson (1944).

Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133.

Hollis v Vabu Pty Ltd (t/as Crisis Couriers) (2001).

Narich v Cmr. of Payroll Tax (1983).

Performing Right Society Ltd v Mitchell & Booker Ltd [1924].

Stevenson, Jordan and Harrison Ltd v McDonald and Evans [1952].

Stevens v Brodribb Sawmilling Co Pty Ltd (1986).

Vabu v Federal Commissioner of Taxation (1996) 33 ATR 537.

Online Material

‘Contract of services versus contract for service’, Worksafe, Last Modified October 7, 2017, https://www.worksafe.qld.gov.au/insurance/which-insurance-product-is-right-for-you/accident-insurance/who-should-i-cover/worker-determination-from-1-July-2013/contract-of-services-v-contract-for-service.

HopgoodGanim, Contractors v Employees: The differences and why it matters - Part 2, Industrial and Employment Law, Last Modified March 8, 2011, https://www.mondaq.com/australia/x/125426/Contractors+v+Employees+The+differences+and+why+it+matters+Part+2.

‘Employment contracts’, Fair work, Last Modified October 7, 2017, https://www.fairwork.gov.au/awards-and-agreements/employment-contracts.

 ‘Employee and Independent contractor’, The Law HandBook, Last Modified October 7, 2017, https://www.lawhandbook.sa.gov.au/ch18s02.php