Studoc LAW332 Assignment PDF

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Word count (incl. IRAC titles) – 1,818 Word count; title, essay, footnotes and question – 2,020

I. QUESTION 1 (1,071) Issue The issue of this case, to understand whether Emilia’s workers compensation claim can be declined, is whether she is an independent contractor.

Rule Previously under common law, to determine whether a worker was an employee or independent contractor, the control test applied. 1 Specifically, that ‘if the work done by one person for another is done subject to the control and direction of the latter person as to the manner in which it is to be done the worker is a servant and not an independent contractor. If however, the person doing the work agrees only to produce a given result but is not subject to control in the actual execution of the work he is an independent contractor’.2

The current approach is a multi factor test, which takes into account the existence of control, but also various other factors viewing the totality of the relationship3. This includes, but is not limited to, whether the value of the work being performed is greater than $10, whether it is work related or not related to the contractor’s ordinary trade or business, if the worker does or does not subcontract the work out, if there is an exclusive nature to the agreement, the hours of work being determined by the business or the contractor, the rate or method to pay the contractor, if uniform and equipment is provided by the business or contractor, if the contractor is insured under the business public liability and not required to hold their own insurances.4 Ultimately, what is assessed is the holistic picture the responses to each of these areas paints, and distinctively whether that picture shows that the person serves the employer or carries out a trade or business of their own. 5

This multi factor test is used to determine whether a worker is a deemed employee and thus entitled to workers compensation.6

Application 1 Performing Right Society Ltd v Mitchell & Brooker Ltd (1924) 1 KB 762, 767–8 2 Humberstone v Northern Timber Mills (1949) 79 CLR 389, 396 3 Scerri v Cahill & Anor (1995) 14 NSWCCR 389 (‘Scerri’) 4 Ibid. 389 5 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (‘Hollis’) 6 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

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Irrespective of a contract of service or contract for services being present, the material facts of the case are reviewed to determine the nature of the relationship. In reviewing Emilia’s matter the facts are as follows, she is known as an educational designer around the Australian Regional University (ARU), this indicates an ongoing relationship between herself and the University. Further, she is provided with an office on site, she is able to utilise the office whenever she likes. The office has her name on the door, as well as her title depicted as “Educational Designer, Australian Regional University”. Arguably, this shows that the University’s intent is for her to serve the University, conducting regular and ongoing work. It is important to note that there is no mentioned of her businesses name or reference to being an independent contractor7. It also indicates a relationship of control whereby she conducts works on their premises. Notwithstanding, Emilia does provide her own equipment to conduct the work, her own computer, laptop and Ipad, which are more telling of a contractor as the business does not provide her with the equipment to fulfil her duties.8

To unpack whether Emilia is serving the University or carrying out her trade through her business, key facts include, that she does perform works for other tertiary educational institutions, hosts a website and social media platforms and regularly advertises in the yellow pages referring to herself as an educational designer. This clearly shows that the tasks she is undertaking for the University form part of her conducting a trade as part of her business. However, it does give rise to the fact that the office door on campus labels her as ‘Educational Designer, Australian Regional University’, when she evidently has a business name. It would be reasonable to conclude that the view of the relationship is not that the University has not engaged her as a business for projects or alike, rather that they have engaged her to be an ongoing resource completing tasks at their demand. Whilst Emilia does perform works for other institutions, this only equates to 10% of her earnings. This shows that the arrangement is not exclusive, although it is vital to note that Emilia would be heavily reliant on the relationship and that the balance of control would be in favour of the university, as they dictate 90% of her earnings. This is further made evident by the fact that ARU pay an hourly rate to Emilia, which would be assumed as the rate of pay they have ordered. Even though the method of payment is via invoice after finalisation of a project and Emilia includes goods and services tax, ARU dictating the hourly rate goes directly to the totality of the relationship, specifically that ARU are in control of the remuneration.

7 (2001) 207 CLR 21 (‘Hollis’) 8 (1995) 14 NSWCCR 389 (‘Scerri)

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This notion of control is further explored in the area of her ability to delegate works. Whilst she can delegate her work to others, and has done, the statement that ARU ‘have no problems with this’, indicate if they did have a problem, they would ask her not to. Further painting the picture that Emilia is there to serve the employer. This is further solidified by two final components that the works she performs for ARU must comply with strict ARU design concepts and rules, with minimal discretion and creative licence beyond what ARU advises. What this again shows is that Emilia is not engaged to provide a service, rather conduct a task for ARU at their direction. Moreover, her hours, deadlines and the tasks are not in her control, rather allocated by senior ARU employees.

Conclusion In conclusion, whilst Emilia brings her own equipment to the ARU office, advertises her business on other platforms and engages in 10% of work for other institutions, the relationship with ARU clearly shows that she has been engaged to serve them. Specifically, the office on site and non-reference to her business, that they have dictated the hourly rate, that they authorise her to delegate – not that she has free will to do so and that senior staff allocate projects and deadlines which need to be conducted within a clear structure set out by ARU. Accordingly, Emilia satisfies the deemed worker test and thus ARU’s insurer would not be in a position to decline her workers compensation claim. Ultimately, the University is unable to reap the benefits of an employee relationship, exercising power and authority, whilst providing a space to do so and not then be responsible for the implications of such worker injuring themselves on site.9

II. QUESTION 2 (747) Issue

9 Fair Work Ombudsman v Australian Sales and Promotions Pty Ltd [2013] FCCA 1502

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There are two issues present in determining whether Marco is entitled to refuse to undertake these personal tasks for Professor Lunchalot. Firstly, whether the personal tasks, are of a reasonable nature, and secondly the issue of works being conducted during lunch breaks and after hours. Rule An employer, has the lawful right to request for employees to conduct tasks on the provision that the command is lawful and reasonable to make under the contract10

With regards to work outside the contracted hours, there is not a specific amount of acceptable overtime, rather an understanding of how much overtime in total the employee is expected to ordinarily work and whether the request would therefore be reasonable or not. 11 What needs to be assessed when determining reasonableness is a range of factors, risk to safety, personal circumstances, whether the employee in remunerated, the notice given to work overtime, usual patterns of work within industry and the nature of the employees role. Further, what may also be assessed is the employer’s duty of care to provide a safe system of work, particularly excessive work and potential stress and alike.12 What is reasonable would be assessed on a case-by-case basis, although it is important to note that the view of requiring an employee to complete ‘whatever hours it takes’ is unreasonable, irrespective of the remuneration received. 13

Application In reviewing of the contractual terms, term C stipulates that the executive assistant must comply with all the Vice Chancellor’s reasonable instructions. Across industry the common practice of an executive assistant is to conduct tasks and duties that drive the productivity and time management of the individual or department. Often, what allows individuals to achieve this is ensuring their personal affairs are in order. Thus, it is not uncommon for executive assistances to take on both personal and professional tasks. From a common practice perspective the requests of the Vice Chancellor to have Marco undertake personal errands is not unreasonable. The questionable component of this would be the timing in which the tasks have been introduced, the facts show that such requests have only been over recent weeks and there does not appear to be evidence of a discussion at commencement of the employment relationship or formation of the contract that these tasks would be required. Irrespective, 10 Adami v Maison De Luxe Ltd (1924) 35 CLR 143 (‘Adami)

11 Brown v Premier Pet [2012] FMCA 1089 (‘Brown); Premier Pet Pty Ltd trading as Bay Fish v Brown (No 2) [2013] FCA 167 (‘Premier Pet’) 12 Koehler v Cerebos (Australia) Ltd [2005] HCA 15 6 April 2005 (‘Koehler’)

13 Sagona v R & C Piccoli Investments Pty Ltd [2014] FCCA 875

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given there is a contractual term expressly stating that the executive assistant must comply with all the Vice Chancellor’s reasonable instructions, and in absence of a job description, it would be deemed that Marco is unable to flatly refuse to undertake such tasks without it being viewed as failure to carry out a lawful command.14 In saying this, it does not mean that Marco cannot have a discussion with the Vice Chancellor regarding the tasks and seek clarification on the expectation of the role.

In respect to the tasks evidently being completed during the allotted lunch break and after hours, as per the employment contract, again this is not a direct breach on the provision if it is irregular and ad-hoc. Although, from the material facts it does appear that the expectation to work through the allotted lunch break and complete excessive hours is increasing, that there is minimal notice provided for such overtime and the employment agreement appears silent on remuneration for such work. This is a cause for concern, and whilst the tasks itself are not considered an issue, working excessive overtime and through repeated lunch breaks is. On this basis, Marco would be within his right to refuse to regularly complete task outside of his ordinary hours and during lunch breaks as stipulated in his contract15.

Further, it mentions that Marco is suffering from stressed induced by the workplace. The company does hold a duty of care to ensure a safe system of work, and if the tasks and hours are impacting on his wellbeing, reasonable adjustments should be considered16. This component also goes directly to whether overtime is deemed reasonable.17

Conclusion In conclusion, the personal errands being asked of Marco are not beyond reach for an executive assistant, and the employment contract does provide for ‘reasonable tasks’ to be completed. Where Macro’s ability to push back on such tasks lies is within the appearing ongoing expectation to work outside of his contracted hours and within lunch breaks. Based on the material facts, it is ongoing, with minimal notice, causing Marco stress and with no mention in the employment contract, which indicates the requirements are unreasonable and thus he can refuse.

14 (1924) 35 CLR 143 (‘Adami’) 15 [2012] FMCA 1089 (‘Brown’); [2013] FCA 167 (‘Premier Pet’) 16 [2005] HCA 15 6 April 2005 (‘Koehler’) 17 [2012] FMCA 1089 (‘Brown’); [2013] FCA 167 (‘Premier Pet’)...