Documents - Ministry of Labour & Employment

Your paper will respond to a hypothetical fact problem in the IRAC format. The submission is worth up to 20% of your final unit grade. The problem solving exercise is intended to assist students in obtaining the first four learning outcomes. Word limit is 1000 words. Presentation is on A4 pages, double spaced and single sided. Referencing is Chicago or APA style. See the Library citation guide for Chicago at http://www.libguides.murdoch.edu.au/Chicago. Cases referred to should be fully cited; that is, with full names of the parties, a year of decision, and where the decision is reported. Note the guide entries about Legal Materials. Students are required to identify the legal issue/s, detail the relevant law, apply it to the issue/s, and make a conclusion on the facts. Suggested format Identify the legal issue/s* Describe the relevant law Apply the law to the facts provided Make a conclusion on the facts. *If there is more than one legal issue, deal with each issue fully by ap

Running head: EMPLOYMENT LAW
EMPLOYMENT LAW
Name of the Student
Name of the University
Author Note

1EMPLOYMENT LAW
Issue
The issues are as follows:-
 Would Michael still be considered to be an employee of QRS?
 If Michael would be considered to be an employee, then what shall be the claims that
may be made by Michael to Fair Work Commission?
Rule
Presently, the ‘multi-factor test’ is utilized by courts as per the law of the nation of
Australia in order to determine that whether an individual may be regarded as an independent
contractor or an employee. Certain elements should be analyzed in relation to the ‘multi-factor
test’. Firstly, it is ‘personal relationship’, that is, the relationship should be such that that a
responsibility of fidelity and loyalty should be owed by the employee in favor of the employer.
Secondly, it is ‘mutuality of obligation’, that is, the contract relating to employment should not
only mandate delivery of work in exchange of wages, but also mutual and reciprocal promises in
connection to future performance. Thirdly, it is ‘degree of control’, that is, exhaustive control in
relation to a worker is regarded as a solid indicator that a particular employment relationship
exists. Fourthly, it is delegation or sub-contracting, that is, if somebody else is engaged by an
individual in order to complete the work, then such right or conduct is considered to be a solid
indicator that such an individual is not an employee. Lastly, it may be mentioned that logos,
badges and uniforms generally suggest that a particular employment relationship exist.
The case of Stevens v Brodribb Sawmilling Co Pty Ltd. [1986] HCA 1 shall be considered
to be a significant case in this regard. In this case, the truckers and the sniggers utilized vehicles
of their own, decided the hours in connection to their work, and the payment was made to them

2EMPLOYMENT LAW
in accordance to the quantum of timber that was delivered in favor of the mill. No guarantee
regarding work was made to the truckers and the sniggers and they had the freedom to pursue
other work, if the climate or any other instances prohibited them to do their work at sawmill.
Brodribb enjoyed the authority of general supervision, however, it had no control in relation to
the manner of performance of tasks by the truckers and truckers. The workers had the freedom to
delegate or substitute work to other persons, if it was not possible for them to work. It was stated
by the court that both the trucker and the snigger shall not be regarded as employee and hence,
Brodribb was not vicariously accountable in relation to the negligence caused by the snigger or
privately accountable to trucker.
The case of Tattsbet Limited v. Morrow [2015] FCAFC 62 shall be considered to be a
relevant case in this regard. The court considered the several factors in relation to the instances
of the case and applied the ‘multi-factor test’. It was acknowledged by the court that several
factors existed that indicated the presence of a relationship of employment. In the case of
Sweeney v Boylan Nominees Pty limited [2006] HCA 19, after the application of the ‘multi-
factor test’ in relation to the instances of the case, it was held by the court that Boylan shall not
be accountable in relation to the actions of the independent contractor, as the contractor was not
considered to be an employee.
In the case of Hollis v Vabu Pty Ltd [2001] HCA 44, it was held that the courier,
irrespective of the issue that whether he may be regarded as an independent contractor or as an
employee, performed the work that represented the principle, and therefore the principal might
be accountable in relation to the actions of the courier.
In the case of Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015]
FCAFC 37, it had been said that labor may be provided in many forms other than in the form of

3EMPLOYMENT LAW
employment. It had been mentioned that certain labor relationships, as mentioned above, are real.
However, certain labor relationships are not real. In such cases, the relationship is in fact in the
disguise of an employment relationship. The external appearance or form of the relationship
hides or covers the core employment relationship. Such relationship is known as ‘disguised
employment’.
Section 385 of Fair work Act of the year 2009 provides that unfair dismissal happens
when any individual has been terminated or dismissed in an unreasonable, unjust or harsh
manner, the dismissal was not in conformity to the Small Business Fair Dismissal Code, and it
was not an instance of genuine redundancy.
In the case of Susanna Ma v Expeditors Pty limited [2014] NSWSC 859, compensation
was granted to Ms. Susanna Ma, an ex-employee of Expeditors Company because no reasonable
notice regarding termination in connection to her employment was provided to her by
Expeditors.
In the case of Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444, a truck driver was
dismissed because of grave misconduct. The driver posted sexual and racially derogatory
comments in connection to his supervisors.
Application
In the given scenario, the ‘multi-factor test’ should be applied. Applying the cases of
Stevens v Brodribb Sawmilling Co Pty Ltd. [1986] HCA 1, Tattsbet Limited v. Morrow [2015]
FCAFC 62 and Sweeney v Boylan Nominees Pty limited [2006] HCA 19 and after considering
the instances of the given scenario, it may be said that Michael should be regarded as an
employee of QRS instead of being an independent contractor to DEF.

4EMPLOYMENT LAW
Applying the case of Fair Work Ombudsman v Quest South Perth Holdings Pty
Ltd [2015] FCAFC 37 in the given scenario, it may be said that the form of labor relationship of
Michael may be considered to be a ‘disguised employment’. Hence, Michael should be
considered to be an employee instead of being a contractor.
Applying Section 385 of Fair work Act of the year 2009, it may be said that Michael has
been dismissed in an unreasonable or unjust manner.
Applying Susanna Ma v Expeditors Pty limited [2014] NSWSC 859, it may be said that
no reasonable notice regarding termination in connection to Michael’s employment was provided
to Michael by QRS.
Applying Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444, it may be said that
Michael never committed any grave misconduct.
Conclusion
To conclude, it may be said that:-
 Michael should be considered to be an employee of QRS.
 Michael may claim compensation from QRS to Fair Work Commission in relation to
unfair dismissal as per the Fair work Act of the year 2009.

5EMPLOYMENT LAW
References
Fair work Act, 2009 (Cth).
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37.
Hollis v Vabu Pty Ltd [2001] HCA 44.
Stevens v Brodribb Sawmilling Co Pty Ltd. [1986] HCA 1.
Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444.
Susanna Ma v Expeditors Pty limited [2014] NSWSC 859.
Sweeney v Boylan Nominees Pty limited [2006] HCA 19.
Tattsbet Limited v. Morrow [2015] FCAFC 62.