Legal Issues in Jensen v Cultural Infusion (Int) Pty Ltd

This article discusses the legal issues raised in the case of Jensen v Cultural Infusion (Int) Pty Ltd and their impact on the parties involved. It also examines the difference between an independent contractor and an employee, and concludes whether the court's decision was fair or unfair.

0
Employment Law

1
In the article titled ‘Actors fluff portrayal as employees’, the legal issue which is raised is
whether the three actors hired by the Victorian Department of Premier and Cabinet comes
within the scope of the employment. In this paper, the key legal issues presented in the case
pursuant to the Fair Work Act 2009 will be discussed. A detailed discussion will be made on
the legal issues raised in the article to understand their impact on the parties. Lastly, it will
be concluded whether the decision of the court was fair or unfair in this case.
In the case of Jensen v Cultural Infusion (Int) Pty Ltd [2018] FCCA 2137, three actors filed a
suit under section 357 by arguing that the employer misrepresented them by an
independent contracting agreement. The state-based department argued that the actors
were not employees of the company; instead, they were independent contractors hired by
the company. The suit is also filed under section 358 by arguing that the company is
dismissing to engage as independent contractors (Austlii, 2018). As per this section, an
employer must not dismiss or threaten to dismiss an individual who is an employee and
perform particular work for the employer to engage the individual as an independent
contractor or work under a contract for service. These were the two major legal issues
raised in the case of Jensen v Cultural Infusion (Int) Pty Ltd based upon which the court
provided a judgement in favour of the state-based department (.
In order to understand these legal issues, it is important to understand the difference
between an independent contract and an employee. The rights of employees are recognised
under federal and state employment and labour laws whereas it is not the case with
independent contractors (Stafford, 2016). The independent contractors operate as their
own business whereas employees work for the business of the employer. The independent
contractors are engaged for a specific project or time period whereas this is not the case

2
with employees. The independent contractors work at their own will, and they are not
bound by the directors and instructions of the employer (Volokh, 2017). The independent
contractors work for multiple clients whereas employees work for a single employer. The
Fair Work Act has recognised various rights of live performers under the Live Performance
Award 2010 in which Part 4 provides provisions regarding performers and company dancers.
As per section 23 (1), an employee may be engaged in the work for a weekly run of the play,
weekly part time, on-going weekly basis or as a casual (FWC, 2010). Section 23 (2) provides
that the employee must give acceptance in writing to become treated as engaged by the
week on specified days and hours. Lastly, section 23 (3) provides that a written agreement
must construct between the parties to give their valid acceptance. The three dancers come
within the scope of employees under section 23 (1) as casual employees since they were
hired on a weekly basis by the company, and a written contract was constructed between
the parties (FWC, 2010).
The decision of the court is unfair because the dancers should be able to rely on the
provision given under section 357 and 358. The court provided in the case of Fair Work
Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45 that an employer-
employee relationship is required in order to apply the provision of section 357 of the Fair
Work Act (HCourt, 2015). Since the dancers were hired on a weekly basis, the fact that they
work for other employees did not terminate the fact that an employer-employee
relationship exists between the company and the dancers. The dancers were available for
the specific days and hours as decided in the written contract based on which they
discharge their contractual obligations.

3
Moreover, the three dancers were not working as per their will, and they were acting under
the directions and supervision of the company which also highlighted the employer-
employee relationship between the parties (Austlii, 2018). Based on these provisions, it can
be concluded that the three dancers come within the definition of employees and their
rights are protected under the Fair Work Act. Thus, they can hold the company liable under
section 357 and 358 since they were misrepresented by the company to consider their
employment as independent contracting agreement. Furthermore, they were forced to
engage independent contractors even when they come within the definition of employees.

4
References
Austlii. (2018) Jensen v Cultural Infusion (Int) Pty Ltd [2018] FCCA 2137 (15 August 2018).
[Online] Available at:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2018/2137.html [Accessed
12/04/2019].
Fair Work Act 2009
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45
FWC. (2010) Live Performance Award 2010. [Online] Available at:
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000081/
default.htm [Accessed 12/04/2019].
HCourt. (2015) Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45.
[Online] Available at: http://eresources.hcourt.gov.au/showCase/2015/HCA/45 [Accessed
12/04/2019].
Jensen v Cultural Infusion (Int) Pty Ltd [2018] FCCA 2137
Stafford, B.E. (2016) Riding the Line between Employee and Independent Contractor in the
Modern Sharing Economy. Wake Forest L. Rev., 51, p.1223.
Volokh, A. (2017) Privatization and the Elusive Employee-Contractor Distinction. In Prisoners'
Rights (pp. 71-146). Abingdon: Routledge.