Workplace Law Analysis: Dr. BioGerm's Employment and Vaccine Rights

This report examines the workplace law issues surrounding Dr. BioGerm, a researcher at Medical Marvels. The analysis focuses on whether Dr. BioGerm is an employee or an independent contractor, considering the lack of a formal contract and the nature of her work. The report applies relevant case law, including Williams v MacMahon Mining Services Pty Ltd and Re Porter: re Transport Workers Union of Australia, and legislation such as the Fair Work Act 2009 to determine her employment status. It further investigates Dr. BioGerm's rights to the 'man-flu' vaccine she developed, considering whether her work in the Medical Marvels lab grants her ownership, and whether her social media posts violated the company's policy. The report concludes that Dr. BioGerm is an employee and does not own the vaccine, and that she violated the social media policy.

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

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Issue
The primary issue in the given situation is that whether Dr. BioGerm will be able to
enforce her rights of ownership in relation to the ‘man-flu’ vaccine and whether a violation has
been committed by her regarding the Social Media Policy of the Medical Marvels organization.
Rule
A rule in relation to the term ‘casual employee’ was discussed in the case of Williams v
MacMahon Mining Services Pty Ltd [ 2010] FCA 13211. In this case, it was found by the Federal
Court that an employee of a mining services organization, who was considered to be a ‘casual’
employee, was not considered as a ‘genuine casual’ as an employee. Hence, the employee shall
have the entitlement to the benefits of a permanent employment. It was ruled by the Federal
Court that the parties in relation to the contract of employment, shall not be able to consider the
definition of the association as ‘casual’ and keep the expectation regarding the prevailing of the
characterization, in case of the situation where the association was not regarded by the court as
justly and accurately ‘casual’. In order to decide that whether the appellant in the given case shall
be considered as a casual employee or not, the Federal Court based the decision that was
provided on certain points. The first point was that there must be an expectation regarding the
availability of the employee on a regular or daily basis. This availability must be in relation to
the performance of the duties according to the list, time-table or schedule that was provided. The
second point is that the time-table or the list or the schedule that was provided must be steady,
planned and prearranged and it also must be absolutely certain. The third point is that both, the
employee and the employer must expect that the employment shall continue under the given
1 Williams v MacMahon Mining Services Pty Ltd [ 2010] FCA 1321

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circumstances. The fourth point is that the type of job or work that should be performed by the
employee must have been specified, that is, the exact requirements of the work is provided.
A rule was provided in the case of Re Porter: re Transport Workers Union of Australia
(1989) 34 IR 1792, in relation to the nature of employment and the distinction between an
independent contract and a proper employment. The Federal Court has mentioned in the given
case that an employee cannot be turned into an independent contractor by the employer, just
because the employer and the employee have given effect to an agreement of contractual nature.
Various courts have repeatedly provided a warning to the employers that the main focus of the
employers should be on the ingredient and material of the association of the employer and the
employee. It has been mentioned in this case that the relationship or the association of a
contractor with the employer is independent in nature. The contractors are generally employed to
realize a specific outcome and the remuneration of such contractors are generally connected to
the outcome. A plumber may be considered to be good example in this case. Generally, the
contractors incur the expenses, utilize their own equipment and either loss or profit is incurred by
them. However, the relationship or the association of a proper employee with his or her employer
can be considered as an association of interdependence. The idea of employer, employee and
employment was conceived from the concept of the relationship between a servant and the
master. The employee generally performs the duties according to the requirements of the
employer. In the given case it was decided by the court that Mr. Zuijs, a trapeze artist, shall be
considered to be an employee because almost all the aspects of Mr. Zuijs was controlled by the
employer. It was mentioned by the Court that the employer in the given case had the authority to
command Mr. Zuijs, giving rise to the status of an employee regarding Mr. Zuijs.
2 Re Porter: re Transport Workers Union of Australia (1989) 34 IR 179

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The Fair Work Act of the year 20093 provides a test, known as the ‘multi-factor test’,
which provides certain points that determine the subtle distinction between an ‘independent
contractor’ and ‘employee’. These points are as follows:-
 Amount of regulation regarding in what way and when the job or work is done.
 Anticipation of the continuing work.
 Risk in relation to monetary matters.
 Whether contributions in relation to superannuation are needed.
 Who is the one that provides the equipment and the tools?
 Deductions in relation to the income tax.
 The mode of payment.
 The entitlements regarding leave.
 The capacity to work or perform any job for any other organization.
 The right in relation to delegation or subcontracting.
If the nature and the criteria of the job is misrepresented by any employer to their employee,
then the provisions in relation to the employment law of the nation of Australia shall be
applicable. Specifically, the provisions of the Fair Work Act shall be applicable.
The rule in the case of Fisher & Paykel Financial Services Limited v. Karum Group LLC
[2012] NZHC 33144, states that if a violation of copyright has to be established then it must be
proved that the claimant is the actual owner of the work, either in partial or the complete work. It
also must be proved that the defendant has violated such right of copyright.
3 Fair Work Act, 2009
4 Fisher & Paykel Financial Services Limited v. Karum Group LLC [2012] NZHC 3314,

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The rule as provided in the case of Vagar v. Transavalon (Pty) Ltd 1977 (3) SA 766 (W)5,
mentions that copyright and ownership is matter of technicality. It was mentioned that anyone
who makes an assertions that he or she is the owner of any partial or a complete work in relation
to ownership and copyright, then he or she must provide proper evidence regarding such
ownership.
Application
In the given situation, Dr. BioGerm worked at the office of Medical Marvels that was
located in the nation of Australia. No contract was exclusively prepared for the purpose of work
of Dr. BioGerm, because the CEO of the Medical Marvels and Dr. BioGerm were good friends
and they agreed to keep their relationship ‘casual’ at the workplace. Dr. BioGerm was given a
payment every week based on her work in the organization calculated per hour. It was seventy
dollars per hour. Proper flexibility was provided to Dr. BioGerm in relation to her work in the
laboratory. Dr. BioGerm was primarily working on the main project of ‘virtual Band-Aid’.
However, Dr. BioGerm also developed a keen interest in creating a vaccine for the ‘man-flu’. It
was her private interest. The CEO also encouraged her in the development of such vaccine. Dr.
BioGerm worked on her private interest to create a ‘man-flu’ vaccine partly in the laboratory of
Medical Marvels and partly in her own garage. However, Dr. BioGerm took a short break and
visited Peru. During her absence in the organization, her research work was found by a junior lab
assistant. After some calculations, the vaccine to ‘man-flu’ was successfully created and a deal
was made with the administrative body namely, the Health Department. After being aware about
the above-mentioned fact, while returning from Peru, Dr. BioGerm wrote certain unfavorable
5 Vagar v. Transavalon (Pty) Ltd 1977 (3) SA 766 (W)

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remarks regarding Medical Marvels, on her accounts of the social media. Such remarks
infuriated the CEO of the organization.
The rule as provide in the case of Williams v MacMahon Mining Services Pty Ltd [ 2010]
FCA 1321, shall be applicable. In this case the distinction between ‘genuine casual’ and ‘casual’
employee was provided. Hence, in the given situation, Dr. BioGerm may have been casually
hired by the CEO of Medical Marvels to work in the organization, however, the nature of the
work cannot be considered as ‘casual’ and therefore, she must be regarded as an employee of the
organization.
Applying the rule of the case of Re Porter: re Transport Workers Union of Australia
(1989) 34 IR 179, where an independent contractor and an employee has been distinguished, it
can be stated that in the given situation, Dr. BioGerm shall not be regarded as an independent
contractor. According to the circumstances of the particular situation, she shall be considered as
an employee to the organization.
According to the ‘multi-factor test’, and the standards differentiating an employee and an
independent contractor, as provided by the Fair Work Act of 2009, it can be mentioned that the
nature of the work of Dr. BioGerm is inclined towards a work of an employee.
Applying the rules as mentioned in Fisher & Paykel Financial Services Limited v. Karum
Group LLC [2012] NZHC 3314 and Vagar v. Transavalon (Pty) Ltd 1977 (3) SA 766 (W), it can
be said that according to the evidence in relation to the employment of Dr. BioGerm, she cannot
have the ownership rights regarding the creation of the vaccine because she was working on such
creation in the lab of Medical Marvels and later it was developed by another individual of the
organization.

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Conclusion
Therefore, in the conclusion, it can be said that Dr. BioGerm is an employee of Medical
Marvels and hence she cannot have the ownership rights of the ‘man-flu’ vaccine and relatively
she has violated the Social Media Policy of the Medical Marvels organization.

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References
Fair Work Act, 2009
Fisher & Paykel Financial Services Limited v. Karum Group LLC [2012] NZHC 3314,
Re Porter: re Transport Workers Union of Australia (1989) 34 IR 179
Vagar v. Transavalon (Pty) Ltd 1977 (3) SA 766 (W)
Williams v MacMahon Mining Services Pty Ltd [ 2010] FCA 1321