People With Disabilities In The Workplace

Running head: AUSTRALIAN LAW
AUSTRALIAN LAW
Name of the Student
Name of the University
Authors Note

AUSTRALIAN LAW1
2.1 (a)
Issue
In this paper, the issue to be discussed is whether Abacus Hotel Pty Ltd (Abacus) is liable
for the injuries of the elderly guest.
Rule
In Australia, the concept of employee and independent contractor are not similar. There
exists two basic differences between the expression employee and independent contractor. Both
employee and independent contractor has a contract of service but in case of an employee, the
employer has a control over him/her and for the actions of an employee the employer held
vicariously accountable (McKeown 2016). Moreover, an employee cannot distribute his work
among other employees. However, in case of an independent contractor an agreed task has
usually been performed by him/her for an agreed price. For this reason an employer has no
control over the shift hours, how the work has been performed and work may be distributed
among others. Further, an employer shall not be held vicariously accountable for the actions of
an independent contractor (Goudkamp and Plunkett 2017).
Various tests have been implemented by the common law to decide whether a worker is
an employee or an independent contractor. Among the tests, the ‘control test’ is considered to be
the customary test. In Zuijs vs. Wirth Bros [1955] 93 CLR 561 case it had been stated by court
that the right to apply control or the application of actual control is regarded as a very vital factor
and is a tough indication of the relationship between an employer and an employee. As per the
‘integration test’, if a worker for carrying out his/her duties wears a uniform then that can be
considered as an indication that they are employees (Attard 2017). It cannot be ignored that both

AUSTRALIAN LAW2
of these tests are very important but not considered to be standalone test. In Stevens vs.
Broadribb Sawmilling Co Pty Ltd [1986] 160 CLR 16 case the concept of multiple indicia
tests have been established, which was again confirmed in Hollis vs. Vabu Pty Ltd [2001] 207
CLR 21 case and presently this test is considered to be the most preferable test within Australia.
As per this test, a person can be regarded as an independent contractor:
I. If the equipment has been supplied by the worker;
II. If the tax has been arranged by the worker;
III. If a specified work has been performed by the worker;
IV. If the remuneration has been given in the form of lump sum or price per volume; and
V. If the place and duration of work has been set by the worker (Silink and Ryan 2018).
Analysis
In this given scenario, Kathy works as a cleaner in the Abacus. She took the lunch and tea
break as according to her convenience. The cleaning materials have been brought by her and she
wore her uniform while performing her duties. Abacus paid her on weekly basis based on the
number of rooms cleaned by her. Further, she paid the income tax from her own. However, one
day she unintentionally injured an elderly guest who claimed damages from Abacus.
By applying the ‘control test’ mentioned in Zuijs vs. Wirth Bros [1955] 93 CLR
561 case, it can be said that Abacus has no actual control over Kathy as she is an independent
contractor.
By applying the ‘integration test’ Kathy is an independent contractor as she wore her
dress.