Question 1

Adam is a lorry driver for North End Pty Ltd, a haulage company. He has worked for North End for ten years, having signed a contract of engagement upon first joining the company. The general manager of North End told Adam that he was being hired as a contractor and would be called upon to do work when full time employees were on medical or other leave. At first, Adam worked several days per week for North End, however, in the past five years he has worked 38 hours per week, although he is paid an amount that his pay slip refers to as payment per delivery. Employees at the company receive both holiday pay, sick pay and receive superannuation guarantee payments into their nominated superannuation fund. Adam does not receive any of these benefits, although he is provided with n North End uniform, work boots and sunglasses. Full-time employees are provided with a lorry to make their deliveries. The company pays for the servicing of the lorry. Adam is provided with a lorry but must pay for it to be serviced. Under his contract of engagement, Adam is permitted to work for other companies, which he regularly does on weekends. Adam is now 48 years old and is worried that he has very little in retirement savings. Having read some recent newspapers reports about workers in his situation being classified as employees rather than as independent contractors he seeks your advice as to his employment status.

Part A

Advise Adam as to whether he is an employee and, if so, whether he is entitled to superannuation payments. Using IRAC format [20 marks]

Part B

Assume that the court declares Adam to be an employee, what consequence does that have for North End in terms of under-payment of superannuation? Using short essay format [10 marks]