Workplace Law

This study material discusses the rules and regulations of workplace law, the code of conduct, and dismissal policies. It explains the distinction between a contractor and an employee, the applicability of the code of conduct, and the validity of dismissal. The material also includes relevant case laws and examples.

Running head: WORKPLACE LAW
Workplace Law
Name of the Student
Name of the University
Author Note

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Issue 1
The first issue in this situation is whether Bob can be said to be a contractor or he works as
an employee in the club.
Rule
The employment laws and the common law relating to employment, does not govern the
conduct of the contractors. The employment laws are applicable only in case of employees
and not contractors. The main dispute that arises in the implementation of the same is the
determination of a person to be either a contractor or an employee. Both the contractor and
the employees are entrusted by the employer with certain specified work. This makes the
terms employee and contractor to be similar but there lies a considerable amount of
distinction between the same. The differentiation between a contractor and an employee
needs to be drawn with respect to certain factors. These factors, in its initial form, has
evolved in the case of Ready Mixed Concrete Ltd v Minister of Pensions [1968] 2 QB 497,
where a threefold test has been prescribed to identify a contractor distinct from an employee.
This threefold test has undergone a substantial amount of changes and is at present formed
the multifactor test distinguishing an employee from a contractor. This test prescribes certain
factors that are needed to be considered while identifying a contract distinct from an
employee.
 The first factor that distinguishes a contractor from an employee is the control of
the work. The employee generally performs his work under the control of the
employer, whereas the work of the contractor is controlled by the contractor
himself and the employer does not have a right to interfere in the same. However,
in performing the work, the contractor must give regards to the terms of the
contract.

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 An employee is required to work for the employer exclusively and he cannot work
for more than one employer. However, the contractor may work for more than one
client and the services rendered by them is not exclusive to one of the client.
Hence, the exclusive factor can be regarded as the second factor of the multi factor
test.
 The delegation power is the third factor of distinction between the employee and
the contractor. The employee does not have the right to delegate his work but the
contractor has such a right to delegate the work and he may hire people for the
same.
 The manner in which the remuneration is paid is another factor that can draw a
distinction between an employee and a contractor. The employees are paid timely
wages whereas the contractor are paid with respect to the units of work.
 The work timing is yet another factor of differentiation. The contractor is
independent in performing their work at any time, but the employee needs to
perform their work in the time as will be prescribed by the employer.
The Australian Business Number (ABN) does not confer upon an employee the status of a
contractor. For gaining the status of a contractor, all the factors of the multi factor test needs
to be complied with.
Application
In the given circumstances, Bob has been employed in and rendering services to the RSL
club. However, after a number of years of rendering services to the club, Bob was ordered by
the employer to obtain an ABN in order to gain the status of a contractor as the club wanted
to operate their work related to the bar with the help of a contractor. The ABN has been
availed for the purpose of issuing invoices. Hence, it does not render Bob to be a contractor

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as the ABN number alone cannot confer the status of a contractor, the multi factor test must
also be satisfied.
Moreover, the ABN number was availed by Bob just to issue invoices. He does not have
the control factor satisfied in rendering services to the club even after availing the ABN. His
works in the club is still controlled by the employer and he does not have much discretion in
the performance of his work. This violates the first factor of the multi factor test, which needs
the control of the work to lie with the contractor and not the employer.
Moreover, the services rendered by Bob is exclusive to RSL as he does not has the right to
work for other clients as well. this indicates the status of Bob as an employee and not of a
contractor. Having failed to comply with the multifactor test, Bob cannot be conceived as a
contractor.
Conclusion
Bob cannot be said to be a contractor. He works as an employee in the club.
Issue 2
The second issue in the given situation is the applicability of the policies contained in the
employment contract upon Bob assuming him to be an employee.
Rule
The businesses introduce a set of regulations to govern the conduct of the persons
involved in it. This code is referred to as the code of conduct. It governs the behaviour of the
employees involved in a business, the dealings with clients, management of the resources of
the business and the operations of the business and other areas of the business. The employer
has the discretion to include other aspects in the code of conduct as he deems fit or as the law
mandates. The employer develops such a code to regulate the conduct of the employee.

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The code of conduct being developed by the employer does not have any legal backing. It
is more of a self-regulatory document. Again, the company has the option to make the code
of conduct to be binding upon the employees by availing as registration of the same and
including the same in the contract of employment. This will make the code to be legally
enforceable upon the employee. Where the code of conduct is unregistered, the same is not
legally binding upon the employee (Burgess & Strachan, 1999).
The code of conduct is not applicable to the contractors as they are not the employees of
the company. They do not come under the purview of the code of conduct, as the mode in
which their work is performed is not under the control of the employer. The contractors are
independent in performing their work and the employer does not have any authority over the
same. However, employees are impliedly liable to follow the code of conduct by virtue of
their contract of employment. An explanation of the same has been given by the case of
National Australia Bank Limited v Rice [2015] VSC 10.
Application
In the given circumstances, Bob has been employed in and rendering services to the RSL
club. However, after a number of years of rendering services to the club, Bob was ordered by
the employer to obtain an ABN in order to gain the status of a contractor as the club wanted
to operate their work related to the bar with the help of a contractor. It does not render Bob to
be a contractor as the ABN number alone cannot confer the status of a contractor, the multi
factor test must also be satisfied. His works in the club is still controlled by the employer and
he does not have much discretion in the performance of his work. Moreover, the services
rendered by Bob is exclusive to RSL as he does not has the right to work for other clients as
well.

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Applying the multifactor test, it can be stated that Bob is not a contractor. He is still an
employee in the company. Hence, the code of conduct will be applicable on him. Moreover,
he has been given a training on the same. These makes the code of conduct to be binding
upon him.
Conclusion
Assuming Bob to be an employee, it can be stated that the policies are applicable and
binding upon him.
Issue 3
The third issue in this situation is the validity of the dismissal relating to Bob.
Rule
The employees need to ensure that their behaviour does not pose any threat to the safety of
the workplace. An employment contract creates a legal relationship between the employer
and the employee and the terms contained in the same are binding upon the employees being
a party to the contract. A breach of a term in such a contract may attract disciplinary action
for the employees. This principle has been explained in the case of Court in Geyer v Downs
[1977] HCA 64.
The Fair Work Act 2009 prohibits an employer from effecting an unfair dismissal with
respect to his employees. A dismissal without a fair reason is considered to be unfair. The
employer may challenge such a dismissal, which has been conducted unfairly (Stewart,
2013). However, there are certain grounds under which the employer is justified in
dismissing an employee. One of such grounds of fair dismissal includes the dismissal effected
owing to a gross misconduct committed by an employee. In case the employer has indulged

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into any act which does not match the standard of the workplace or any misconduct, the
employer has the right to dismiss such an employee.
Application
In the given situation, Iris, a co-worker of Bob has been subjected to inappropriate and
sexually uncomfortable comments by Bob and she has also been subjected to bullying.
Moreover, there has been other harassing conduct that has been initiated against Iris by Bob.
This has made Iris very uncomfortable. Bob however, has refused this contention by making
lame excuses.
Moreover, the code of conduct of the Club prohibits such actions. Bob has previously
received a training regarding the code of conduct. Hence it can be stated that the dismissal of
Bob will be justified.
Conclusion
The Club has a valid reason to dismiss Bob.

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Reference
Burgess, J., & Strachan, G. (1999). The expansion in non-standard employment in Australia
and the extension of employers’ control. In Global trends in flexible labour (pp. 121-
140). Palgrave, London.
National Australia Bank Limited v Rice [2015] VSC 10
Ready Mixed Concrete Ltd v Minister of Pensions [1968] 2 QB 497
Short v J W Henderson Ltd [1946] 62 TLR 427
Stewart, A. (2013). Stewart's guide to employment law. Federation Press.
The Fair Work Act 2009