LLAW3253 - Seminar 2 - z Employee v Independent Contractor Case Notes PDF

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Employee v Independent Contractor - Case Summaries1

Zuijs v Wirth Bros Pty Ltd [1955] HCA 73 Facts Zuijs was a trapeze artist with Wirth Brothers circus. He was injured in a fall during a performance that he had helped devise with other members of the trapeze team. How the act was to be performed was entirely at the discretion of the trapeze artists themselves. Issue Was Zuijs an employee? Does ‘control’ refer to the right to control or actual control? Decision and Reasons Zuijs was an employee. Although the circus could not physically control Zuijs once the trapeze act had commenced (because the circus lacked the necessary expertise), Zuijs was still subject to the right to control by the circus in relation to most other aspects of his act. Zuijs was paid a wage, could be summarily dismissed for misconduct, and was subject to the direction of the circus in relation to most other aspects of his act, including where the act appeared in the program, safety measures, when rehearsals were to be held, the costumes he wore, and his conduct before the audience. While only Zuijs possessed the necessary special skill or knowledge to carry out the performance, these other factors have to also be taken into account, and while actual control is important, it is the right to control is cases like this.

Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1 Facts A truck driver who carried logs from a forest to a sawmill was injured due to negligence by the person loading the logs on to the truck. The truck driver claimed compensation for his injuries from the sawmill operator for whom the work was being carried out. The sawmill operator argued that both the truck driver and the person responsible for loading the truck were independent contractors, not employees. Issue Is the sawmill operator liable? / Whether ‘control’ the only factor in deciding whether a person is an employee? Decision and Reasons The sawmill operator wasn’t liable. The truck driver and loader were independent contractors. The court suggested that the relationship between the parties should be examined in its totality. The right to control, rather than the level of actual control, was significant, but not the only relevant factor. A number of factors are relevant to the existence of an employment relationship, including: -

the nature of the task undertaken and the freedom of action given to the parties to perform it;

1 From Gibson Business Law, Pearson, (10th Ed, 2018) ch 31.

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who provides the equipment;

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whether the task is ongoing or ‘one-off’;

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the amount of remuneration, how it is to be paid, and whether the employer is deducting income tax and the Superannuation Guarantee;

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the hours of work, and provision for holidays and sick leave;

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the method of termination; and, most importantly,

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the nature and degree of detailed control the employer has.

Hollis v Vabu Pty Ltd [2002] HCA 44 Facts While working, a bicycle courier knocked down and injured a member of the public. The injured person sued the courier company for whom the bicycle courier was working, on the basis that the bicycle courier was an employee of the courier company and the courier company was vicariously liable for the actions of its employee. The courier company argued that the bicycle courier was an independent contractor and not its employee, and therefore it wasn’t liable for the actions of the bicycle courier. Issue Was the bicycle courier an employee or an independent contractor? Decision and Reasons The bicycle courier was an employee. The High Court examined the working relationship between the courier company and the bicycle courier and found that the bicycle courier: -

did not provide skilled labour, or labour that required special qualifications;

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had made a capital outlay consisting of a bicycle and associated tools;

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was required to wear the courier company’s uniform; was presented to the public as a representative of the courier company;

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had little control over the way in which work was performed: there was a set starting time; there was a daily roster; and the courier could not refuse work;

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was subject to considerable control by the courier company: the courier company had control of the allocation and delivery of parcels; and the bicycle courier had to deliver parcels in the manner directed by the courier company....