EMPLOYMENT LAWS Issue 1 Whether Bob can be inferred to a contractor or an employee in the Club

Running head: EMPLOYMENT LAWS
Employment Laws
Name of the Student
Name of the University
Author Note

1EMPLOYMENT LAWS
Issue 1
Whether Bob can be inferred to a contractor or an employee in the Club.
Rule
Under the common law, the employment Laws holds good only in case of employees and
does not extend to cover the contractors. The distinction between an employee from a
contractor can be drawn applying the multi factor test that has been formulated by the courts
over the years. This test is an extension of the three fold test that has come up with the case of
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National
Insurance [1968] 2 QB 497. This test requires a person to satisfy three criterion to gain the
status of an employee. These criterion are the control of work, payment of remuneration and
the contract of employment. However later these factors have been elaborated to form the
multi factor test in its present form.
The control of the work is the first factor that recognises a person to be a contractor or an
employee. The work carried out by a contractor is outside the scope of the control of the
employer as contractors are meant to perform their work in an independent manner. Again,
certain terms relating to the work entrusted upon the contractor are mentioned in the contract
between the employer and the contractor are need to be abide by. However , in case of
employees the control over the work they perform lies with the employer and the employee is
required to carry out the work in the manner prescribed by the employer.
The second factor distinguishing between employee and contractor is the delegation power. A
contractor has the power to delegate the task he has been contracted for to perform two other
people. The contractor hires workers in order to complete the task on their behalf.

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The decisive factor that comes thought is the exclusiveness of the work performed. The
services provided by an employee is exclusive to the employer. Whereas a contractor might
provide services to more than single client. A contractor generally provide services to many
clients.
The time within which the work is to be performed indicates the fourth decisive factor. The
contractor are not required to perform their job within any specified timings, they have the
discretion to choose their own timing to perform the work. However the work of the
employees is required to be carried out during the hours fixed by the employer.
The fifth decisive factor drawing distinction between contractor and an employee is the
remuneration. The employees are paid regular remuneration based on time whereas a
contractor is paid in accordance with the unit work performed.
Short v J W Henderson Ltd [1946] 62 TLR 427, is one of the cases with which the multi
factor test has evolved. In this case the four decisive factors distinguishing contractor from
employees has been formulated, namely suspension dismissal remuneration and control.
Under the Australian laws, the obtaining of Australian business number does not
automatically render a person do a contractor. All the decisive factors must also be satisfied
in this respect.
Application
In the instant situation, RSL club has employed Bob to be an employee in their company. The
company after several years of service ask Bob to obtain the ABN to serve the company as a
contractor. This has been influenced by the decision of the company to operate their business
with respect to the bar through a contractor. An ABN can be obtained by a contractor for
preparing invoices. The availing of the ABN will not make Bob a contractor. He needs to
comply with the multi factor test with that respect.

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It can also be inferred that the control of the services provided by Bob lies with the Club. Bob
is not free to act independently in operating the bar. This fails to comply control factor of the
test provided by the multi factor test. This is because of the fact that the control of the work
performed by Bob is under the control of the employer. Hence, Bob is evidently an employee
rather than an employer.
It can the contended that the services provided by Bob exclusive to the RSL club and Bob
does not have the freedom to work for other people. This indicates that Bob is more of an
employee than a contractor. The position of the ABN does not render Bob to be a contractor
as he has failed to comply with the multi factor test.
Conclusion
Bob is an employee and not a contractor in the RSL club.
Issue 2
Whether the policies contained in the employment contract is binding upon Bob, in the event
of Bob being an employee.
Rule
The employers generally implements or code of conduct which is a set of regulations that
governs the conduct of the employees. The operations of the business, behaviour of the
employees, managing the customers and the financial resources and other aspects of the
business are the areas covered by the code of conduct thus implemented by the company.
This code is generally implemented with a view to regulate the operations of the business.
Code of conduct mostly implies self regulatory tool implemented in order to ensure proper
Governance of the company and it is not have a legal essence. The company might get the
code of conduct registered in order to make it legally binding upon the employees. An

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unregistered code of conduct is not legally binding upon the employees as the same does not
have any legal standing.
The contractor generally are not covered by the authority of the code of conduct as they work
in an independent manner which is outside the scope of the code of conduct. Hence the code
of conduct does not binds the contractors. However the employees are required to abide by
the code of conduct. The code of conduct comes in an implied manner with their employment
contract. This contention can be explained with the help of national Australia Bank Limited
versus rice 2015 vsc 10.
Application
In the instant situation, RSL club has employed Bob to be an employee in their company. The
company after several years of service ask Bob to obtain the ABN to serve the company as a
contractor. This has been influenced by the decision of the company to operate their business
with respect to the bar through a contractor. An ABN can be obtained by a contractor for
preparing invoices. The availing of the ABN will not make Bob a contractor. He needs to
comply with the multi factor test with that respect. It can also be inferred that the control of
the services provided by Bob lies with the Club. Bob is not free to act independently in
operating the bar. This fails to comply control factor of the test provided by the multi factor
test. This is because of the fact that the control of the work performed by Bob is under the
control of the employer. Hence, Bob is evidently an employee rather than an employer.
Hence, the policies contained in the employment contract is binding upon Bob, in the event
of Bob being an employee.
Conclusion
The policies contained in the employment contract is binding upon Bob, in the event of Bob
being an employee

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Issue 3
Whether the RSL club has any valid reason to dismiss Bob.
Rule
A duty to maintain safety within the workplace is imposed upon the employees. An employee
is a party to the employment contract. This makes the terms of the code of conduct to be
binding upon the employees. A disciplinary action can be instituted by the employer against
the employee in the event of any breach with respect to the policies contained in the code by
the employee.
The dismissal of an employee without furnishing a valid reason by the employer would
amount to unfair dismissal as rendered by the Fair Work Act 2009. In the absence of a fair
ground to that effect, the dismissal of an employee would make the employer liable and will
provide the employee with a right to question such a dismissal. There are certain grounds
mentioned in the Act, that allows the employer to dismiss the employee without incurring any
liability. The dismissal effected in those grounds will be justified and will not extend any
right to the employee to challenge the same. An employer is justified in dismissing an
employee, where the employee has been incapable in performing the function that form the
purpose of his job. In the event of the employee being inefficient, the employer is conferred
with a right to dismiss that employer and such a dismissal will be justified. The employer is
also justified in dismissing an employee where the employee has been involved in any
misconduct which is below the employment standards. Redundancy can also be a valid
ground for effecting a dismissal of the employee. These are the valid grounds for dismissing
an employee and such a dismissal cannot be questioned.

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Application
In the given situation, Bob has extended inappropriate and unwanted sexual comments
towards Iris, a co-worker of his. He has also subjected her with bullying. The code of conduct
of the club is binding upon the employees of that club. The policies regarding sexual
harassment and bullying is also contained in that code.
Moreover, bullying and sexual harassment are gross misconduct irrespective of their mention
in the code of conduct. The implementation of the same by the code is not necessary in order
to hold it a valid ground for dismissal. Hence, this can be considered to be a valid ground for
the club to dismiss Bob.
Conclusion
The RSL club has any valid reason to dismiss Bob.

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Reference
Ready Mixed Concrete Ltd v Minister of Pensions [1968] 2 QB 497
Short v J W Henderson Ltd [1946] 62 TLR 427
The Fair Work Act 2009