LLAW3253 Labour Law Assignment: Employee, Contractor, Contracts

This document provides comprehensive solutions to a labour law assignment, addressing various aspects of Australian employment law. The assignment delves into the crucial distinction between employees and independent contractors, analyzing factors such as control, entitlements, and vicarious liability. It examines the conversion of casual employees to permanent positions under the Manufacturing and Associated Industries and Occupations Award 2010, highlighting the rights and obligations of both employers and employees. The assignment further explores the impact of contract clauses, specifically clause 8(a) of a contractor's agreement, on the relationship between contractors and employers, referencing relevant sections of the Fair Work Act 2009. It considers whether clauses in offer letters form part of employment contracts and assesses the reasonableness of salary deductions. Additionally, the assignment evaluates the reasonableness of requests for additional working hours, referencing relevant legislation and case law to provide a detailed analysis of each issue.

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

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Question 1
Issue
Whether Kate is an independent contractor or an employee and why does it matter.
Rule
The entitlements and rights of an independent contractor are protected by the Fair Work
Act 2009 and the Independent Contractors Act 2006. There are various distinguishing factors
like the employer’s control, paid leaves, vicarious liability, working hours, risk and many more.
(www.fairwork.gov.au, 2019).
In Zuijs v Wirth Bros Pty Ltd [1955] HCA 73, the court laid down the control test which
established control as a major factor of determining employment nature. Stevens v Brodribb
Sawmilling Co Pty Ltd [1986] HCA established the test of multiple indicia. Later in Australia it
was renamed as the preferred test in the Hollis v Vabu Pty Ltd [2002] HCA 44 case where
control along with party’s relationship totality was considered as a relevant factor.
Application
In this provided scenario, Kate works for an accounting firm of mid-size named Windsor
Pty Ltd. She works for a specified working hour and gets the paid leave entitlements and also
needs to report her working before the managing partner. This satisfies the conditions stated in
the Fair Work Ombudsman for being recognized as an employee of a company. Thus, she is to
be treated as an employee of the Windsor Pty Ltd and is entitled to get the benefits and rights of
an employee as provided in the Fair Work Act 2009 like the claim of unfair dismissal. The case

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of Zuijs v Wirth Bros Pty Ltd [1955] HCA 73 perfectly fits in this scenario. This can also be
supported with the cases of Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA and Hollis
v Vabu Pty Ltd [2002] HCA 44.
Conclusion
Therefore, it concludes that Kate is an employee of the Windsor Pty Ltd. and is entitled to
get the benefits and rights of an employee as provided in Australian employment laws.
Question 2
Issue
Whether a casual employee would be converted to a permanent position under the clauses
of the Manufacturing and Associated Industries and Occupations Award 2010.
Rule
Clause 14.4 of the Manufacturing and Associated Industries and Occupations Award
2010 deals with the conversion of employment to full time or part time from casual. Clause 14.4
(a) states that any casual employee who is not an irregular casual employee, engaged for a period
sequence employment under this award by an employer during a six months period, has the right
of electing their employment contract being converted to part-time or full time. Clause 14.4 (b)
states that the employee after attaining such period must give written notice to the employer
within four weeks of after attaining the period for such election. Clause 14.4 (c) says that if no
such conversion notice is given by the employee then it is believed that the employee is against
such conversion. Under clause 14.4 (d) it has been stated that the employer may give consent or

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refuse after receiving such notice but the refusal must not be unreasonable. Clause 14.4 (e) states
that once election for part time or full time employment has been made by the casual employee
he only has the option of reverting it to the casual employment.
Application
Under the clause 14.4(a) of the Manufacturing and Associated Industries and
Occupations Award 2010 a casual employee who is not an irregular casual employee by engaged
for a period sequence employment under this award by an employer during a six months period,
has the right of electing for the conversion of his employment type to part time or full time from
casual. Under clause 14.4(b) of this award it has been stated that such employee need to give
written notice to the employer after attaining such period. Clause 14.4 (c) says if such notice is
not given within four weeks of attaining the period of electing the conversion, then it may be
believed that the employee is against such conversion. Under clause 14.4 (d) the employer can
either accept or refuse reasonably. Clause 14.4 (e) says that after the conversion the employee
can only revert to the position of casual employee.
Conclusion
Therefore, it concludes that a casual employee would be converted to a permanent
position under the clauses of the award.

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Question 3
Issue
Whether clause 8(a) of the Contractor’s agreement of Lexis impacts the relationship of
the contractor and the employer.
Rule
Section 44 of the Fair Work Act, 2009 lays down the provisions of dealing with the
contravention of the National Employment Standards saying no provisions of the National
Employment Standard should be contravened by any employer. Section 55 lays down provisions
of dealing with interaction between an enterprise or modern award and the National Employment
Standards. Section 56 states that the enterprise or modern award terms which contravene section
55 would not have any effect. Section 57 lays down provisions of dealing with interaction
between enterprise awards and modern awards. In Nikolich v Goldman Sachs J B Were
Services Pty Ltd (2006) 58 AILR ¶100-513, it was held by the court that few explicit promises
of the WWU policy were to be treated as express term. In Gramotnev v Queensland University
of Technology [2015] QCA 127, the court decided that MOPP has no incorporation in contract.
In Byrne v Australian Airlines Ltd (1995) 38 AILR ¶3-194; 185 CLR 410, it was held that
imported term, implied term and contract’s custom forming part would not be a contract part.
Application
In this given scenario, it has been stated that the relationship between the contractor and
company is of independent contractor and principal so no employment contract is constituted.
However, section 44, 55, 56 and 57 of the Fair Work Act 2009, says that the provisions of the

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National Employment Standards should not be contravened by any employer. The Nikolich v
Goldman Sachs J B Were Services Pty Ltd (2006) 58 AILR ¶100-513 case perfectly fits in this
scenario. The clause 8(a) of the Contractor’s agreement would not be a part of the contract. The
cases of Gramotnev v Queensland University of Technology [2015] QCA 127 and Byrne v
Australian Airlines Ltd (1995) 38 AILR ¶3-194; 185 CLR 410 supports this scenario.
Conclusion
Therefore it concludes that clause 8(a) of the Contractor’s agreement of Lexis does not
impact the relationship of the contractor and the employer.
Question 4
Issue
Whether the clauses of the contract are to be formed as a part of the employment
contract.
Rule
Section 44 of the Fair Work Act, 2009 lays down the provisions of dealing with the
contravention of the National Employment Standards saying no provisions of the National
Employment Standard should be contravened by any employer. Section 55 lays down provisions
of dealing with interaction between an enterprise or modern award and the National Employment
Standards. Section 56 states that the enterprise or modern award terms which contravene section
55 would not have any effect. Section 57 lays down provisions of dealing with interaction
between enterprise awards and modern awards. In Nikolich v Goldman Sachs J B Were

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Services Pty Ltd (2006) 58 AILR ¶100-513, it was held by the court that few explicit promises
of the WWU policy were to be treated as express term. In Gramotnev v Queensland University
of Technology [2015] QCA 127, the court decided that MOPP has no incorporation in contract.
In Byrne v Australian Airlines Ltd (1995) 38 AILR ¶3-194; 185 CLR 410, it was held that
imported term, implied term and contract’s custom forming part would not be a contract part.
Application
In this given scenario, a higher education industry’s offer letter or appointment letter is
provided. Section 44, 55, 56 and 57 of the Fair Work Act 2009, says that the provisions of the
National Employment Standards should not be contravened by any employer. Moreover, it has
already been stated in the offer letter or appointment letter that the position description, policies,
mutual obligations, terms and conditions would form a part of the employment contract. This can
be supported by the case of Gramotnev v Queensland University of Technology [2015] QCA
127 and Byrne v Australian Airlines Ltd (1995) 38 AILR ¶3-194; 185 CLR 410.
Conclusion
Hence, it concludes that the clauses of the contract are not to be formed as a part of the
employment contract.
Question 5
Issue
Whether the deduction of the contribution rate from Dave’s salary would be treated as
unreasonable deduction.

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Rule
Section 324 of the Fair Work Act 2009 deals with the permitted deductions which
permits the following deductions like authorized by an employee in writing, authorized in
enterprise agreement by the employee, authorized under FWC order or modern award,
authorized by the commonwealth law. Section 325 of the Fair Work Act 2009 lays down the
provisions of dealing with the requirement of spending or paying an amount that is unreasonable.
Section 326 of the Fair Work Act 2009 lays down the provision of dealing with unreasonable
deductions for the benefit of employer which is unreasonable. In the Australian Education
Union v State of Victoria [2015] FCA 1196, it was held by the court that the deduction in this
case is unreasonable in the circumstances.
Application
In this given scenario, Dave started working for the Patio World Pty Ltd where a
contribution rate is being deducted from his salary for the iPad package. The iP4SRP policy form
has been a part of his contract of employment and he has authorized the deduction in his
employment contract, however the deduction was unreasonable in these circumstances. This
violates the provisions of section 324, 325 and 326 of the Fair Work Act 2009. This can be
supported with the case of Australian Education Union v State of Victoria [2015] FCA 1196.
Conclusion
Therefore it concludes that, the deduction of the contribution rate from Dave’s salary
would be treated as unreasonable deduction.

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Question 6
Issue
Whether Olivia is authorized to refuse working for additional hour which is
unreasonable.
Rule
Section 62 of the Fair Work Act 2009 lays down the provision regarding maximum
weekly hours of work. Sub-section (1) says that the employers are not allowed to require or
request any employee to work for additional hours unless it is reasonable. Sub-section (2) says
that an employee may refuse working additional hours that is unreasonable. Sub-section (3) lays
the elements of determining unreasonable additional working hours, some of them are,
employee’s safety and health; employee’s personal circumstances; workplace’s needs;
employee’s role nature; industry’s work pattern. In Brown v Premier Pet t/a Bay
Fish [2012] FMCA 1089, the court held that the employer’s requirement of working additional
hour to the employees were unreasonable.
Application
In this given scenario, Olivia works for a large consultancy firm named Smerfcorp for a
fixed working hour of 8AM to 8PM from Monday to Friday. But now she is required to work for
additional hour and also in the weekends due to the poor management or for the benefits of her
Relationship manager Ron. This violates the provisions of Section 62 of the Fair Work Act. Her
additional working hour is thus, unreasonable and she has the option of refusing to work for such

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additional hour. In can be supported with the case of Brown v Premier Pet t/a Bay
Fish [2012] FMCA 1089.
Conclusion
Therefore it can be concluded that Olivia is authorized to refuse working for additional
hour which is unreasonable.
Question 7
Issue
Whether the reasoning line promotes the equity of gender pay.
Rule
The Workplace Gender Equality Act 2012 mainly requires the several employers of
lodging reports related to the indicators of gender equality each year. The public can avail such
reports except some information like personal information or remuneration information. It
established the Workplace Gender Equality Agency whose main function is assisting and
advising the employers in the improvement and promotion of workplace gender equality. The
agency is managed by the director and a relevant compliance of an employer may be reviewed
by this Act. In case of failure of a relevant employer, he may be named in a report that is
received by the minister or by any electronic or other means.
Application
In this given scenario, the proposed comparator group of the applicant unions is
composed of persons who are not in a dispute and is to receive over award payment either by

10LABOUR LAW
way of enterprise agreement of formally bargained or by formal arrangements in a less formal
way. In any evidence’s absence on the basis of such over award payments, it will be assumed
that such payment of over award would not include any work value element that is excluded in
C5 and C10 descriptors of classification in the award of manufacturing. As according to the
Workplace Gender Equality Act 2012 this do not promote the gender pay equity.
Conclusion
Therefore it can be concluded that, the reasoning line does not promote the equity of
gender pay.
Question 8
Issue
Whether Gillian can legally refuse obeying Sandra’a direction if such directions are
unreasonable.
Rule
All the employees are required to take reasonable steps in carrying out what he or she has
promised under his or her employment contract. This is described as duty to obey reasonable and
lawful employer orders. The employee needs to take reasonable skill and care while discharging
his or her duty and should avoid negligence. Under the common law the employees have the
implied duty to obey and cooperate as accordance to their employment contract. However, an
employee can refuse to do the works which are unreasonable or not promised in his or her
employment contract.

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Application
In this given scenario, Gillian works as a receptionist at a large international real estate
company situated in Adelaide. After the new director of the Adelaide office Sandra joined
Gillian has been asked to do various works like polishing and scrubbing the front meeting room
floor with hand; polishing fake plants by toothbrush; wearing plastic gloves while using
computer; having only pony-tail hair. These are all unreasonable duties which were not
mentioned in the employment contract. Thus she can refuse to do such work stating such as
unreasonable.
Conclusion
Therefore it can be concluded that, Gillian can legally refuse obeying Sandra’a direction
stating such direction as unreasonable.
Question 9
Issue
Whether the directions given by Sandra to Gillian constitutes bullying under section
789FD of the Fair Work Act.
Rule
Section 789FD of the Fair Work Act 2009 lays down the provisions regarding dealings
with the bullying in workplace. Sub-section (1) says that a worker is bullied when he or she
works in a business that is constitutionally covered or that risk in relation to safety and health has
been created by such behavior. Sub-section (2) says that the provision regarding bullying would

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not be applied actions of reasonable management that is carried out in reasonable manners. Sub-
section (3) states the requirements of a business being covered constitutionally.
Application
In this given scenario, Gillian works as a receptionist at a large international real estate
company situated in Adelaide. After the new director of the Adelaide office Sandra joined
Gillian has been asked to do various works like polishing and scrubbing the front meeting room
floor with hand; polishing fake plants by toothbrush; wearing plastic gloves while using
computer; having only pony-tail hair. These are all unreasonable duties and also constitute the
workplace bullying under section 789FD of the Fair Work Act 2009. Thus Gillian has the option
of refusing the directions of Sandra on the ground of unreasonable duties and may also seek
relief for the workplace bullying.
Conclusion
Therefore it can be concluded that, the directions given by Sandra to Gillian constitutes
bullying under section 789FD of the Fair Work Act.
Question 10
Issue
Whether Crel had been bullied in workplace as accordance to section 789FD of the Fair
Work Act.

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Rule
Section 789FD of the Fair Work Act 2009 lays down the provisions regarding dealings
with the bullying in workplace. Sub-section (1) says that a worker is bullied when he or she
works in a business that is constitutionally covered or that risk in relation to safety and health has
been created by such behavior. Sub-section (2) says that the provision regarding bullying would
not be applied actions of reasonable management that is carried out in reasonable manners. Sub-
section (3) states the requirements of a business being covered constitutionally.
Application
In this given scenario, Crel works as a catering assistant at a hospital named Glenelg
Private Hospital where she has been subject to several acts and ill comments. She had been asked
to do various things like taking off her necklace which are not required to do by other staffs. She
had been falsely accused of doing many activities like smoking on non-break period. Many
cheap and offensive comments were being passed against her by the other staffs. All these
activities are subject to workplace bullying under section 789FD of the Fair Work Act 2009.
Thus she can claim relief for the workplace bullying committed by the other staffs of the
hospital.
Conclusion
Therefore it can be concluded that, Crel had been bullied in workplace as accordance to
section 789FD of the Fair Work Act.

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Question 11
Issue
Whether Yasmine is elgible of making an unfair dismissal application under the Fair
Work Act.
Rule
Section 386 of the Fair Work Act 2009 defines unfair dismissal which has four elements.
The elements are, there must be a dismissal; the dismissal must be harsh, unreasonable or unjust;
inconsistent with the code of small business fair dismissal. The section further outlines the
criteria of considering the elements. The requirement of these criteria is considering the
procedural reason and also the employee’s conduct which also includes person’s notified reason;
opportunity of responding; and the organization’s size.
Application
In this given scenario, the dismissal of Yasmine was via text messaging. There exists
nothing which indicates that Yasmine is subject to redundancy and the issues have not been
contentious. Thus, the actual issue which is to be considered is determining harsh, unreasonable
or unjust nature of the dismissal. Yasmine’s dismissal was due to her failure of ensuring
appropriate safety measures after having received a notice of safety infringement before the
dismissal. Generally the failure in complying the relevant policy would be treated as a
dismissal’s valid ground. Recently, Yasmine was required of attending WHS training which she
failed in complying. However, the dismissal would be considered harsh if there is a failure in

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investigating. Even the dismissal by way of a text message is to be considered harsh and also she
was not notified reasonably.
Conclusion
Therefore it can be concluded that, even there is a valid ground for dismissal but the
dismissal would be considered unfair under section 386 of the Fair Work Act because of
harshness.
Question 12
Issue
Whether lachy’s dismissal would be subjected to unfair dismissal.
Rule
Section 386 of the Fair Work Act 2009 defines unfair dismissal which has four elements.
The elements are, there must be a dismissal; the dismissal must be harsh, unreasonable or unjust;
inconsistent with the code of small business fair dismissal. The section further outlines the
criteria of considering the elements. The requirement of these criteria is considering the
procedural reason and also the employee’s conduct which also includes person’s notified reason;
opportunity of responding; and the organization’s size.
Application
In this given scenario, Lachy works as a production worker in Organo Fruit Pty Ltd who
are a fresh fruit producer with 150 employees. Complaints were made before the People and
Culture division against Lachy for sexually harassing his female colleagues mainly Ms. Wilson.

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He also asked one of his colleagues whether his girlfriend is hot or not. Investigation was
conducted against such complains where Lachy denied his behavior as inappropriate. Formal
warning was given to Lachy by the People and Culture division but after one week further
compliant has been made against him for making sexist comments. Lachy’s employment was
immediately terminated by the employer as a consequence. From the provided scenario, the fact
is clear that the termination of Lachy would not constitute unfair dismissal as provided in the
Fair Work Act 2009.
Conclusion
Therefore it can be concluded that, lachy’s dismissal would not be subjected to unfair
dismissal.