澳大利亚商法Lecture 11 (Wk 12) - Employment Law

Control Test: Does the employer have the legal
right to control how the employee works?

Zuijs v Wirth Bros (1955)
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Determining the Employment Relationship
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The Commonwealth’s Industrial Powers - Constitution

Originally, the Commonwealth‟s industrial powers were constrained by section 51(xxxv) of the Constitution – Industrial Relations Power (and minor use of powers such as the External Affairs Power) But, as a result of the WorkChoices and Fair Work Australia Amendments to the Workplace Relations Act 1996 (Cth) and the consequential High Court decision, the Commonwealth‟s industrial powers have been broadened by the use of Section 51(xx) of the Constitution – the Corporations Power It is important to distinguish between Federal and State legislation because in the event of any clash, Commonwealth law prevails to the extent of any inconsistency – Section 109 Constitution See NSW v Commonwealth [2006] (Text 792)
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Formation of the Contract of Employment

The employment relationship is no more than a specialty contract which must have all the elements of contract present to be valid. A contractual problem area could for example, include : Intention to create legal relations:

Provide Work


Take reasonable care to ensure safety of employees


Employ competent staff and provide adequate supervision Provide safe plant and appliances Provide a safe system of conducting work The employer‟s duty to take reasonable care to ensure the safety of employees have been given statutory support by the Occupational 12 Health and Safety Acts of the various Australian jurisdictions
2. Who is an “employee”? Why does it matter? 3. Common law and the contract of employment. 4. Legislation, awards and agreements. 5. Termination of employment - wrongful, unfair and unlawful dismissal. 6. Workplace (Occupational) Health & Safety Law.


Control remains the key element, although the court will now look at other factors

Stevens v Brodribb (1986) Hollis v Vabu P/L (2001)
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Determining the Employment Relationship
2077PPP Legal Issues for Managers
Module 3: Legal Obligations of Managers: Employment Law
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Overview - the employment relationship
1. Sources of rights and obligations of workers and employers.
2. Employer - Independent Contractor:

An independent contractor works under a contract for service, i.e. agrees to produce an end result
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Determining the Employment Relationship


Income tax laws
Superannuation laws Occupational Health and Safety laws
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Determining the Employment Relationship - Distinction

The importance of distinguishing the employment relationship as either an „employee‟ or an „independent contractor‟ includes:
Duty and Liability of the Employer

There are three main duties for an Employer:

Pay the agreed remuneration:

Casual Contracts: there is no entitlement to payment in the absence of performance of duties Continuing Contracts: with a fixed remuneration are entitled to be paid irrespective of whether or not they have performed their duties Only if the continuing contract involves commission, the exercise of a skill or talent, or remuneration is linked to performance
2. State legislation – Industrial Relations Act 1999 (Qld) 3. The common law
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Employment Relationship

Defining an employment relationship: there are two types with the legal consequences between the two differing: 1. Employer – Employee:
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Employment Law

In Australia there are essentially three tiers of regulation of employment:
1. Federal legislation - Workplace Relations Act 1996 (Cth)


Note that a voluntary employment agreement may not intend legal relations

Teen Ranch Pty Ltd v Brown (1995)
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Duty and Liability of the Employer

Duties of an Employer Vicarious Liability:

Workers‟ compensation Vicarious liability of employer – Tort & Contract


Tax
Establishing the relevant industrial award/agreement Statutory entitlements


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Disclosure of information relevant to the employer To hand over inventions made during the course of employment To account for all money or property received in the course of employment Maintenance of confidentiality 13

To try and determine whether an employment relationship is one of employeremployee or employer-independent contractor the courts have developed a number of tests including:
Duty of the Employee

The major duties and responsibilities of the employee can be divided up into two categories:


Obligations during employment:
To obey the employer‟s lawful, reasonable and safe commands

Relationship of employer/employee is based on a contract of services. Whereby a person agrees to work under the control and supervision of someone else

Other indicators of the relationship which have „extended‟ the category of „employee‟ to workers that had not traditionally been considered employees at common law include those now covered by statutory rules:

The High Court has indicated that apart from the „control‟ test the „economic’ relationship’ between the parties is also significant
Indicators of the type of relationship are included in the Multi-factor (facet) Test:

An employer may be liable for an employee‟s actions even though the employer may have done nothing wrong
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It applies as long as the employee‟s action is „within the scope of the employment‟