Week 3 Seminar Questions

docx

School

University of Wollongong *

*We aren’t endorsed by this school

Course

330

Subject

Law

Date

Feb 20, 2024

Type

docx

Pages

Uploaded by EarlSquid3306

Week 3: The Employment Relationship Issues • common law tests for employer-employee relationship: control, multi-factor, organisation, “economic reality” • legal significance of employer-employer relationship for parties and others • social and economic implications of classifying workers as employees or contractors • growth of atypical work: contractors, agency workers and “vicarious” employment. Reading Macken ch 3, re-visit ch 2 pp 62-72 FWO – Student placements (link on Moodle) Narich v Commissioner of Pay-Roll Tax [1983] 2 NSWLR 597 Building Workers’ Industrial Union v Odco Pty Ltd (1991) 29 FCR 104 Forstaff Pty Ltd v Chief Commissioner of State Revenue [2004] NSWSC 573 Questions 1. What do the textbook authors mean by ‘labour hire’? What forms does this take? Hiring out labour. can be employment relationship or contractor relationships. Organizations that engage interpersonal search – an organistation that supplies their own employees to other employers for short terms Relationship = between entity and client Can be employment relationship or contractor. Forms can include: - Temps - Agency workers - Sacondments Ie scaonded to a client for a period of time, then returns to an employer Labour hire agency is: “A firm that receives commission from a client firm in return for supplying labour to that client for a limited period. It may arrange placements for employees, self-employed contractors, trainees and apprentices.” 3 The workers under these arrangements are often referred to as “temps”, agency workers and on-hire workers. 2. Casey enrolled in a work-integrated learning course at the University of Everywhere (’UOE’), an Australian university and registered higher education provider under Commonwealth legislation. LAW5099, a 10-credit point unit, requires Casey to complete a 90-hour work placement in a real practice setting, a research project and

reflective activity. The entity hosting Casey for the placement (‘host entity’) and UOE sign an agreement which sets out the learning objectives of placement, the parties’ rights and responsibilities (including the 90-hour requirement), IP, insurance, workplace health and safety etc. Casey thoroughly enjoys the placement, which included preparing briefs, research for advices, and attending tribunal hearings. On the last day of placement, Karen from the host entity asks Casey whether Casey would be interested in doing a few more days experience. Casey sees this as a wonderful opportunity to ‘get the foot in the door’, and subsequently spends another 40 hours with the host entity, completing tasks that would ordinarily be the responsibility of a paralegal or graduate lawyer. The 40 hours were undertaken during the exam period (i.e. same teaching period in which Casey completed the placement). Is Casey an employee of the host entity? Refer to the FW Act and any guidelines published by FWO to support your answer. As soon as asked to undertake extra work = employee. Prior to this = part of course Extra hours = transition to employee Relevant section of FWA = s 12 Definition of vocational placement  met this definition for the first 90 hours. additional hours after = did not meet definition  transition = implied relationship  minimum wage 3. Discuss the legal position of agency workers in relation to Building Workers’ Industrial Union v Odco Pty Ltd . What was unusual about the arrangement in Odco ? Is this kind of arrangement likely to become normal or are there reasons why it might be exceptional as a form of agency hire? Odco involved individual appellants and a union . EMPLOYEES VS SUBCONTRACTORS. Odd bc no employment relationship Genuine tri lateral relationship Desire to become normal but very limited succes Unusual = no employment relationship however odco is far more common in current context. The case of Building Workers’ Industrial Union v Odco Pty Ltd [1985] HCA 66 deals with the legal position of agency workers in Australia. The case involved a dispute between Odco Pty Ltd, a construction company, and the Building Workers’ Industrial Union over the employment status of workers who had been supplied to Odco by a labour hire company. In this case, Odco had engaged the services of a labour hire company to supply workers for a construction project. The labour hire company engaged the workers and paid their wages, while Odco supervised and directed their work. The dispute arose over whether the workers were employees of Odco or independent contractors. The High Court held that the workers were employees of Odco, despite the fact that they had been engaged through a labour hire company . The Court found that the workers were under the control and direction of Odco, and therefore should be

classified as employees. The Court also held that the labour hire company was not the employer of the workers, as it did not have the power to direct or control their work. What was unusual about the arrangement in Odco was that the labour hire company had no control or direction over the workers. This is unusual because typically, labour hire companies are seen as the employer of the workers they supply, as they have a degree of control and direction over their work. However, in this case, the labour hire company had no such control, and therefore could not be considered the employer. It is unlikely that this kind of arrangement will become normal as a form of agency hire, as the courts have consistently held that the key factor in determining whether a worker is an employee or an independent contractor is the level of control and direction exercised over their work. In cases where the labour hire company has no control or direction over the workers, it is likely that the end user will be considered the employer. This means that companies who engage labour hire workers must ensure that they do not exercise a level of control or direction over the workers that would indicate an employment relationship. 4. What matters are significant in distinguishing between an employee and: a. a company director Unique status of being an officer and employee - both an employee & not, dependent on specific circumstances due to being a separate legal entity b. a bailee typically an independent contractor ie given a car such as taxi, there are terms about pay – does not apply to uber or ride share platforms bc they provide their own car. c. a tenant if part of your job requires you to live on border does not create tenancy. If the purpose of accom is to give a concession ie just a bonus, and is not necessary for employment then it does create tenancy. Eg au pair = not tenant. Dependent on whether a requirement for your position.  live in nurse = no tenancy varies depending on relationship and employment contract – if an employee requires to live in or be requires to be supplied accommodation eg = employee living in accommodation supplied by employer – ie required to live in a particular housing like someone in the navy they’re not aping rent but it is a requirement for their job d. an office holder concurrently an employee while also an office holder provided that they satisfy other employee factors. Most of the time public office holders are still subject to employment relationships but dependent on nature. e. a partner

Your preview ends here

Eager to read complete document? Join bartleby learn and gain access to the full version

Access to all documents
Unlimited textbook solutions
24/7 expert homework help

depends on situation – can be a partner if not an employee – can also be a partner and employee, typically you have to be involved in a ltd partnership, no say in managerial parts of relationship. Equity partner = control and say  no profits = no pay , high profits = high pay Td partner = title only, no control limited liability 5. Is it justified to impose liability for employment obligations upon a party other than a direct employer? In some situations yes justifiable for minum requirements eg WHS , discrimination, harassment etc + eg in agency arrangements however sometimes no not necessary uber should not be subject to minimum wages as not always relevant. Is the common law definition of employment as presently understood appropriate for determining worker’s access to basis working conditions, such as minimum hourly rates of pay for work?

Week 3 Seminar Questions

Related Documents