Workplace Law

This document discusses the concept of workplace law and its application in determining the employment status of an individual. It also explores the applicability of organizational policies to employees and the validity of dismissal based on policy violations.

Workplace Law
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Student’s Name

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Contents
Question 1........................................................................................................................................2
Issue 2
Rules 2
Application 4
Conclusion 4
Question 2........................................................................................................................................5
Issue 5
Rules 5
Application 6
Conclusion 6
Question 3........................................................................................................................................6
Issue 6
Rules 6
Application 7
Conclusion 7
References........................................................................................................................................8

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Question 1
Issue
The issue involved here is to check whether Bob is a contractor or an employee for RSL club
based on the common law test.
Rules
Mainly two types of employment status are there. One is a contractor and another one is of the
employee. As the name implies, an independent contractor is independent in his/her working.
Such people take the work and complete the same, as they want without the interference of
another person. Employees, on the other side, are bound to do the work as per the instructions of
the employer. They are not independent in their working and their working is restricted by their
employment contracts (Jost 2014).
Many of the times, the employment status of a person remains confusing. To deal with such
situations, common law prescribes certain tests, using that this can be decided that whether a
person is a contractor or employee. The tests are further prescribed in the following discussion.
The first and one of the most significant cases are a control test, which has been given in the case
of Yewens v Noakes (1881) 6 QBD 530. According to the control test, the control level of the
employer on a person decides the employment status of the later one. The court does not only see
whether the master has the right to control the work of employee but also check that whether the
same also control the manner of working. The test says that whenever others control a person in
term of wearing clothes or shift timing, the same consider as an employor of such other person. It

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was held in Humberstone v Northern Timber Mills (1949) 79 CLR 389, that wearing the uniform
of a particular organization deemed to be agreed upon an employer-employee relationship.
Another common law test is an integration test, which checks the level up to which a person is
employed as an integral part of the organization. In the decision of the case of Stevenson, Jordan
& Harrison Ltd v MacDonald & Evans [1952] 1 TLR 101, the court held that in a contract of
service, a person is more integrated into the affairs of the organization in comparison to the
contract of service. It shows that in those cases where a person is much integrated into the
business, a relationship of employer-employee seems to be there.
In addition to the above two tests, one more test is also there. This test is known is the multi-
factor test. The subjective test first used in the case of Stevens v Brodribb Sawmilling Co Pty Ltd
[1986] HCA 1, and then after in the case of Hollis v Vabu (2001) 207 CLR 21. As the name
implies, this test prescribes some factors, which are required to be checked in order to declare an
employment status. Each factor plays a vital role in deciding whether a person is an employee or
a contractor. This test looks at the relationship between two people in totality. The subjective test
believes that there is no uniform rule to check the presence or absence of an employer-employee
relationship between the parties.
It was held in the case of ACE Insurance v Trifunovski [2013] FCAFC 3, that if a person requires
to attend any specific training, then the same is treated as an employee and not the independent
contractor. On the other side, it was held in the case of On Call Interpreters and Translators
Agency v Commissioner of Taxation (No 3) [2011] FCA 366 that if a person works according to
the standard and manner prescribed by another, then such person will be considered as an
employee. The factors, which this test includes, are a personal relationship, the degree of control,

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right to subcontract, mutuality of obligation and many others. While determining the
employment status based on this case, the court considers these factors.
Application
In the given case, the employment status of Bob is in question. As stated in the provided case
study, the club decided the bar works to be done by the contractors. Even after this decision, the
club has continued to instruct and supervised him. Applying the provisions of the control test,
Bob seems to be an employee as the employer had significant control level on his affairs. After
the decision of club, he was only required to put ABN on invoices. Bob was employed on the
position of the sommelier and after the subjective decision of the club too, his role did not
change. He was a part-time employee earlier and might have decided working hours during
which he was used to be involved in the affairs of the club. In this manner, according to
integrated test and decision of the case of Stevenson, Jordan & Harrison Ltd v MacDonald &
Evans too, he seems to be an employee of the club, not the contractor for the same.
At last, if to check the employment status of Bob according to multi-factor test, this is to state
that he attended annual training arranged by the club in relation to the code of conduct. Applying
the provisions of ACE Insurance v Trifunovski, he will be treated as an employee for the club.
Further, the club was controlling his conduct and therefore as per the provisions of On Call
Interpreters and Translators Agency v Commissioner of Taxation, he was assumed to be an
employee.
Conclusion

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After reviewing the provisions of all the three test it is concluded that Bob was an employee of
the club. He attended the training; the club was used to regulate his conduct and after the
decision of club too, his job was similar. Therefore, he was an employee of the club.
Question 2
Issue
The issue is to check whether the policies of the club will be applicable to Bob if he is an
employee
Rules
The lead difference between an employee and contractor is that a contractor is an independent
person and a policy of an organization generally does not apply to the same. In general, the
relationship of an employer and employee is based on certain terms, which are mentioned under
the employment contract. Such terms can be expressed as well as implied. Employers as well as
employee, are required to fulfill their obligation under an employment relationship. The policies
and code of an organization are applicable to every employee.
The case of Goldman Sachs JB Were Services Pty Limited v Nikolich [2007] FCAFC 120 is an
important one to study here. In this case, the issue was to check the binding effect of a policy to
the employees. In the decision of the case, it was held that policies of the organization are treated
as a binding/contractual term when an employee signs the same. Further, as per the decision was
given in the case of Yousif v Commonwealth Bank of Australia (2010) 193 IR 212, a policy
cannot be considered as a part of employment contract if there is a disclaimer reflecting such
intention.

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Application
In the given case, Bob was the employee of the RSL club. The club had policies and procedure,
which included the code of conduct. There was no disclaimer that policy of the organization will
not be considered as a contractual term as given in the case of Yousif v Commonwealth Bank of
Australia. Although nothing is stated that whether Bob signed the policy documents of not,
however, he attended the training on the code of conduct. In this manner, this can be assumed
that he signed the policy documents. Applying the provisions of the case of Goldman Sachs JB
Were Services Pty Limited v Nikolich, the policies will be binding on Bob.
Conclusion
As Bob attended the meeting on the code of conduct, it seems that he agrees upon the policy
documents and therefore the same will be binding regarding his contract of employment.
Question 3
Issue
Does the club have a valid reason to dismiss Bob?
Rules
Every country has different employment legislation that governs the relationship between
employer and employee. In Australia, Fair work commission is there to decide the matter of
unfair dismissal. Division 2 of the Fair Work Act 2009 provides the provision related to unfair
dismissal. According to section, 385 of this act a person will be treated unfairly dismissed if in
the opinion of fair work commission such dismissal is unreasonable, harsh, or unjust or is not a

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case of genuine redundancy. It means if an employer dismisses the employee for any other
reason, which seems to be valid, then the dismissal will not be considered as unfair.
It was held in the case of Cannon v Poultry Harvesters Pty Ltd [2015] FWC 3126 that the
dismissal should be informed in a professional manner such as during office hours and via valid
and formal commission mode.
Application
In the given case, Bob breached the requirements mentioned under the code of conduct. As
concluded in the last question, the code of conduct was a part of the employment contract and
therefore Bob was required to comply with the same. Here, as per the allegation made by another
employee Irish, Bob was liable for doing sexual harassment. In such a manner club had a valid
reason to dismiss Bob as his conduct was against the policies and behavior code of the club.
Applying the provisions of section 385, it is up to fair work commission to decide the fairness of
the dismissal (Overview Of Unfair Dismissal 2019). In addition to this, as per the provisions of
Cannon v Poultry Harvesters Pty Ltd, the club is required to dismiss Bob following a fair
procedure.
Conclusion
As Bob conducted against the policies of the club and in such a manner breached the term of the
employment contract. Regardless of the intention and meaning of Bob, he seems to be liable for
the conduct of sexual harassment. Club has an entitlement to dismiss him because of this reason.

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References
ACE Insurance v Trifunovski [2013] FCAFC 3
Brodribb Sawmilling Co Pty Ltd [1986] HCA 1
Call Interpreters and Translators Agency v Commissioner of Taxation (No 3) [2011] FCA 366
Cannon v Poultry Harvesters Pty Ltd [2015] FWC 3126
Goldman Sachs JB Were Services Pty Limited v Nikolich [2007] FCAFC 120
Hollis v Vabu (2001) 207 CLR 21
Humberstone v Northern Timber Mills (1949) 79 CLR 389
Jost, P.J. 2014. The Economics of Motivation and Organization: An Introduction. USA: Edward
Elgar Publishing.
Overview Of Unfair Dismissal. 2019. Unfair Dismissals Benchbook.
https://www.fwc.gov.au/unfair-dismissals-benchbook/overview-unfair-dismissal.
Stevenson, Jordan & Harrison Ltd v MacDonald & Evans [1952] 1 TLR 101
Yewens v Noakes (1881) 6 QBD 530
Yousif v Commonwealth Bank of Australia (2010) 193 IR 212