Workplace Law
Question One
The Legal Issue
The contention issue is whether Amanda is an independent contractor or an employee of Monks Pty. Ltd.
Relevant Law
The current American law has established several means to determine whether a staff is either an independent contractor or an employee. The kind of working relationship is mainly determined by the service contracts (Klaras, 2014). In this determination, all the details that offer proof of the extent of control and independence are accounted for. In that evidence that seeks to offer evidence in regard to the company’s control and the worker’s independence are categorized as financial, behavioral and relationship category (Klaras, 2014). A contract is bound to be described as a service if the staff holds legal prominence which offers the detailing of an independent contractor (Klaras, 2014). On the other hand, a staff is bound to own legal prominence of being an employee by owning unique employment contract with adequate information in the description (Klaras, 2014).
The common law normally utilizes a control test that seeks to establish the extent of control which the company has on the worker. In addition, to control being a major determinant in determining the legal ground the state and guidance through which the established control is subjected is also accounted (Lawyers, 2012). In that, if the employer possesses more control over the staff this implies that relationship created is one of the ruler and employer. The case to be referred to that utilized control test is that of Spirides v. Reinhardt, 486 F. Supp. 685 (D.D.C. 1980) (Lawyers, 2012). The court concluded that if the worker had the responsibility of controlling as well as guiding the operations of others it is not just that these activities led to achievement but the employer acquired higher benefits thus creating an employer and employee relationship.
In a multi-factor examination, the presence of control is not the sole aspect of assessment that the evaluation is grounded upon. The case to be referred is that of Stevens’s v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Lawyers, 2012). Some of the ruling factors that are utilized in gauging the worker’s relationship include the working condition, set working period and the major obligation to complete duties without any control which creates gains for the employer from the set location and working framework. In that, an independent contractor works under their own control, state and provides their own working equipment such as uniforms and machinery while an employee works under stipulated time, location, duties as well as equipment (Klaras, 2014).
Application of Law to the Facts
Factors That Demonstrates an Employer and Employee Relationship
In this case, Amanda signed a contract detailing that she will be acting as a major production staff in production and she should be committed to working at any given time. On the quest that she works for 50 to 60 hours every week she believes that her employment relationship guarantees her to acquire payment for the period that she is to recover from the acquired injury and dismissal.
In the application of control and common law tests, it is possible that Amanda is, an employee given that she acquires instructions directly from the employer in regard to her working framework and tasks delivery. in addition, to committing to the assigned tasks she is also required to follow the working principles of the company which includes supervising the roles played by other in the production sector. As stated above, Monks Pty. Ltd. Is particularly in control of Amanda, in close relation with according to Lawyers (2012) Spirides v. Reinhardt, 486 F. Supp. 685 (D.D.C. 1980), Monks Pty. Ltd. Requires Amanda to adhere to the set principles regarding commitment and accomplishment that works to ensure that she generates desirable outcomes by ensuring that her roles are well played. In addition, her tasks are defined and described by the company as she is required to be ready to work at any given time as the central player. Monks Pty. Ltd exercises control over Amanda over her responsibilities, work state, time frame as well as operations which demonstrates a relationship amid the employer and an employee.
In reference to a multi-factor test, there are several other forces to be accounted. In Sawmilling Co Pty Ltd (1986), the court mainly focused on diverse forces that led to the development of employer and employee association (Lawyers, 2012). If a multi-factor examination can be applied in Amanda’s case some factors such as control, directions, time frame and working location that are present demonstrate a high extent of employment. In that Amanda works amid 50 and 60 hours daily a factor that shows that she is an employee given that she holds a set working period which shows that the employer has control.
Factors That Shows That Amanda Is an Independent Contractor
Amanda can be perceived as an independent contractor given that her salary is not subjected to taxation which shows that the Monks Pty Ltd has no control. In addition, she is not subjected to any principals of ethics and both forces can indicate that she is an independent contractor.
Conclusion
It is apparent that Amanda is more likely to be an employer than an independent contractor. This is because, she has a set working period, location and roles that are guided by the employer. She is required to work at any given time despite the fact that her salary is not subjected to any taxation the fact that the employer seems to have higher control demonstrates that she is more of an employer.
Question Two
The Legal Issue
The legal issue of contention is whether ken should be made redundant based on Ore Ltd. Economic downfall before ken based on Last on /first off rule rather than the qualification level.
Relevant Law
Redundancy is applicable during the economic crisis which can be conducted based on the contractual agreement between a worker and the employer (Emplosure, 2017). In last on last off rule that is mainly utilized to objectively establish the workers that are bound to lose their jobs in a redundancy scenario. Most employers normally assess the quality of work over the general experience of employees in such scenarios. According to the Fair Work Act (2009), a layoff cannot be accounted as an honest redundancy if the boss still necessitates the tasks of the worker to be accomplished by someone else (Emplosure, 2017).
A dishonest redundancy, therefore, can best be described as the scenario where an employer decides to make layoffs on the ground of economic crisis but considers experience and knowledge. In addition, the employer tends to prefer a single party to accomplish the tasks over the other (Emplosure, 2017). Redundancy is only honest if the employer does not require any other individual to accomplish the job and all the consultation requirements have been adhered to. Fiar work Act indicates that no employer is allowed to dismiss employees under discriminatory scenarios in order to avoid the employment liability (Emplosure, 2017).
Some cases which can be consulted in regard are Nicholls v Rockwell Automation Ltd, Packman (t/a Packman Lucas Associates) v Fauchon and Ackman (t/a Packman Lucas Associates) v Fauchon, Ms. Fauchon (Clark, 2012). This case offers clarity in regard to honest redundancy which should adhere to fairness and without replacing the employee.
Application of Law to the Facts
In regard to ken’s case, he was surprised by the fact that Ore Ltd decided to subject him to Redundancy based on the economic downfall experience by the company. In that Ken has worked for 20 years with the company. The last on first off rule had not been indicated in the contract that he had previously signed given that the company was applying for redundancy on the basis of the qualification level. Bob has only worked as his assistant for 18 months but his level of qualification exceeds that of Ken.
Breach of Fair Work Act (2009)
Ken has worked for the company for twenty years deserves a fair treatment. In that, the company has suffered an economic crisis that requires it to dismiss some employees. However, based on honest Redundancy under Fair Work Act (2009), it is apparent that Ore Ltd has breached the law given that the dismissal in order to be an honest one, it should not replace the responsibilities of the employer which it seeks to do (Golden, 2015). The company wants to retain Bob based on his qualification in order to replace Ken. In this context, Ken can argue using the Last on first off rule where he should not be redundant with Bob.
Conclusion
Ore Ltd has infringed Ken’s rights given that the redundancy is not an honest one. In that, the company should place its redundant without being biased. This is because despite the fact that Bo has higher qualification an honest redundancy should be the one that does not seek to replace the responsibility of the employee regardless of the experience and qualification.
References
Clark, I. (2012). Case Law Update- Redundancy. Retrieved from http://www.morton-fraser.com/knowledge-hub/case-law-update-redundancy
Emplosure. (2017). Fair Work Act (2009). Retrieved from https://employsure.com.au/guides/fair-work-australia/what-is-the-fair-work-act/#AvfuQwfKmJDchoiw.97
Golden, J. (2015). Redundancy: Last On, First Off Rule Applies. Retrieved from http://workplaceinfo.com.au/termination/redundancy/cases/redundancy-%E2%80%93-selection-and-payment-issues#.WcpC8cZx3IU
Klaras, D. (2014). Employee vs. Independent Contractor: Tests to Determine an Employment Relationship. Retrieved from https://www.assuranceagency.com/blog-post/employee-vs-independent-contractor-4-tests-to-determine-an-employment-relationship
Lawyers D. (2012). Employee or contractor – Implications for intellectual Property. Retrieved from https://www.dundaslawyers.com.au/employee-or-contractor-implications-for-intellectual-property/
