Fair Work Act 2009: Independent Contractor or Employee and Unfair Dismissal Case Study

Running Head: CASE STUDY
CASE STUDY
Name of the Student
Name of the University
Author’s Note

CASE STUDY1
Introduction:
Fair Work Act 2009 (Cth) was brought into effect in Australia to regulate the industrial
relations between the corporations and that of the managers and the members of the corporation.
The provisions of the Act states the safety net for the establishment of the industrial relations.
According to Macdonald and Charlesworth 2013, it has been explained that the provisions of
Act extends its help to the people working in the corporation to ensure the anti-discriminatory
laws have been complied in the corporation policies so that every employee or member of the
corporation is entitled to equal pay and equal opportunities.
Issue:
The issue in the case is whether Omar is an employee or an independent contractor.
Rules:
An independent contractor is any person or corporation engaged in performance of work through
agreement and contractual obligation without establishing the relationship of an employer and an
employee.
The economic dependence test means that the relationship between the employer and
the employee is determined on the basis of the economic activity as a whole which includes the
financial dependence of the worker upon the decisions of the employer. In other words, the
employee and an employer relationship is established only on the basis of the determination of
following issues:
 Whether the worker is being hired by the employer

CASE STUDY2
 Whether the worker is working for his or her own enterprise
This means that the reliance of the worker upon the other party for hiring him or her for the
opportunities is the determining factor for the economic test for the establishment of the
relationship between the employer and employer. The basic difference between an employer-
employee relationship and that of an independent contractor is that in the former, the worker is
dependent upon the employer for the opportunities to use his or her managerial skills and in the
later, the works for his own enterprise based on his own terms and conditions. Therefore, in an
independent contractor relationship, the worker creates his own opportunities and is not
dependent on anyone else for such opportunities or hiring purposes.
The multi factor test involves the totality of the control test over the worker. It means that
the test determines whether the employer controls the work of the employee upon what to do and
how to do and establishes the relationship of an employer and an employee. The multi factor test
takes various factors into consideration. Majority of them are discussed below:
 Personal relations which determines that the employee owes duties towards the
employer with that of loyalty and fidelity.
 Mutual obligations which determines that the employment contract between the
employer and the employee involves consideration value to be paid against such
contractual obligation. Such contractual obligation includes all the future
performances of the employee with respect to his capacity as that of an employee to
the employer within the course of his or her employment.
 Degree of control determines the existence of control of employer over the work
performed by the employee including the terms as to what to do and how to do.