Task: You must answer this question using the ILAC format. If you consider any pertinent facts to be missing which would be helpful in answering the question you should highlight these in the application part of your answer and explain their importance. The word count does not include the 'Footnotes' (that is, anything that is not substantive to the answer, but you would like to add as a note, point of clarification). All law should be in italics.

Assessable Content:

• Access to the current text (Practical Employment Law by Floyd (2024)) Chapter 1 is available below. You may also use Chapter 2 of Employment Law Concepts and Cases (4th Ed.) by van der Waarden.
• Consider if the worker is an employee or independent contractor and possible causes of action but do not discuss different types of employment in answering the question.
• There is NO need to undertake any additional research for this assignment. You do not need to look up or use any additional law and marks will not be provided for such.
• A reminder that for the ILAC question, you must apply the law listed under the "Law" heading in the "Application" to be awarded marks in the "Law" portion of the rubric.
• Answers should use the correct ILAC structure (format).
• DO NOT include a direct copy of these instructions, the ILAC scenario or rubric as part of your submission.
• Please write your answers using full sentences and paragraphs.
• Bullet points are not appropriate for this assignment (except in the ILAC answer when listing the "Issues" as questions, and the "Law" section, as per the model answer previously provided).
• Please ensure you proof-read your work carefully as presentation, spelling, grammar and expression will all be taken into account when marking your responses.
• Referencing: There is NO need for Harvard or APA etc., referencing. However, if directly quoting from the text or Week 2 workshop slides, please use double quotation marks and put ("Slides" or "Text") in brackets after the quote.

HYPOTHETICAL ILAC QUESTION Mo Wing has worked for multiple gardening and landscaping businesses over the past 25 years. In early 2019, after having made many industry' contacts, Mo decided to branch out and work for himself through his own landscaping and mowing company, 'Mo Wing's Landscaping and Gardening Businesses (MWLGB)'. Unfortunately for Mo, this was badly timed because of the downturn in the global economy the following year due to the ongoing effects of Covid 19. By mid-2020, Mo, on the advice of his wife, decided that he would have to "seek more permanent work to enable him to pay the bills and feed his family."Mo had also previously worked completing landscape and labouring jobs in the construction industry and thus he was able to find more regular work within weeks working on behalf of an employment agency known as 'Trouble-Shooters Pty Ltd., (TSPL)'. TSPL acts as an employment service providing workers to large construction companies across Australia. In return for the services provided, the companies pay TSPL a weekly 'hire fee' for the engagement of its workers. TSPL then pay its workers for the hours worked under a labour hire agreement contract as independent contractors. When workers are first engaged by TSPL, its director Rob Odco explains that they are to be "engaged as an independent contractor" so that they can "write-off their expenses to minimise their tax." Initially he worked on a day-to-day hire basis, but within a few weeks after being engaged by TSPL, he worked at Big Business Enterprises Limited (BBEL) construction sites four days per week and a different site for various companies on Fridays. Separately he verbally agreed that he was to be paid an agreed flat hourly based on the relevant award plus $50 per week in return for paying his own worker entitlements and using his own company work ute (vehicle) "as a matter of convenience and for tax purposes." Mo signed a one-page document agreeing that he was to be engaged as an independent contractor as part of a labour hire agreement to provide his services to other companies and that he would be independently contracted for a permanent 38 hours per week. At the start of 2021, Mo signed a contract stating that he would pay for his own "worker entitlements" and "follow BBEL's company policies and procedures while on site." Mo worked for BBEL mainly on Mondays to Thursdays between 6.30am-2.30pm for which he was paid an agreed hourly rate. His company was required to invoice BBEL at the end of each week for work completed. BBEL produced payment summaries fortnightly on Tuesdays and Mo was required to dispute errors by 5pm Friday of the same week. Throughout the day, Mo was regularly checked on by BBEL's foreman Mr Gerry Attrick, who would also help him with lifting heavy materials. Last financial year Mo earned $120,000. Around $100,000 of this was from BBEL and the rest from work completed through his own company (JJOJPL) in his own time. BBEL was aware that Mo worked on other jobs on his days off and thought this was only reasonable considering he provided his own low-cost tools and equipment when on their sites and was contracted to them only 4 days per week. When Mo completed work on other jobs in his spare time, JJOJPL on his behalf, sometimes subcontracted workers to help with painting, as he disliked that part of the job. BBEL was reluctant to allow Mo to have any of his subcontractors work onsite with him but did allow one of his subcontractors to work on his behalf if he wanted a day off, as long as the worker had been first approved by BBEL and he gave them a week's notice. A work vehicle was made available to Mo during work hours with BBEL, but as a matter of convenience he normally used his companies' (JJOJPL's) second-hand ute whilst working for BBEL. In return, BBEL paid for his ute's general running expenses when he invoiced them for work onsite. None of BBEL's workers at its construction sites were required to wear a specific uniform. However, BBEL did provide workers with free shirts, with its logo (company's logo and director's face) printed on it, to wear if they chose. Last Wednesday one of the other workers at BBEL told management that he had seen Mo taking home some extra painting supplies in his company's ute, which Mo denies. On hearing this, BBEL's HR Manager Ms Ivanka told Mo last Thursday that he would have to respond to these allegations on the following Monday morning. According to Mo last Thursday, Ms Ivanka now claims that at that time he responded by mumbling "what the f*ck" and that she has used this as an excuse to no longer provide Mo with any future work. Using the ILAC format, advise Mo whether he is entitled to bring any claims based on whether he was previously engaged as an employee, and not an independent contractor, as he had been told, and agreed to in writing. You do not need to discuss any of the actual claims in detail but should refer to the possible lodgement of any claim or complaint and whether he may be successful.

Criteria: Identify the legal issues in the hypothetical - Separate major issues into a number of sub-issues where appropriate: Accurately and succinctly identified all of the issues and sub-issues confronting the parties so as to resolve the legal problem. No errors in spelling, punctuation, grammar, formatting. Understanding the relevant law - Identify the law which applies to the issues identified above: Has identified all the relevant laws to resolve the legal problem. The student has cited correct case authorities and section numbers of legislation and applied. No errors in spelling, punctuation, grammar, formatting. Application - Apply each legal principle to resolve the issues identified in the hypothetical question: The student has demonstrated excellence in applying the law to the hypothetical. In particular, the development of logical arguments in a concise and articulate manner. Arguments are excellent in terms of clarity and persuasiveness. Relevant law is expertly used to support arguments throughout. No errors in spelling, punctuation, grammar, formatting. Conclusion - Gives a conclusion which resolves each of the issues identified earlier: Accurate, clear and concise links are established between the issue, law application and the conclusion. No errors in spelling, punctuation, grammar, formatting. ILAC Problem Solving Method

ILAC Problem Solving Method Using the problem solving method of ILC as you are reading through the scenario think about: ILAC Diagram A PROBLEM-SOLVING METHOD - ILAC - VERY IMPORTANT - WHY? -because employers expect you to have these skills (and it's examinable) 4 stages:

Issue(s) - legal questions which need to be resolved Law (Relevant) - refer to the relevant statutes & cases Analysis (Argument, Application) - apply legal principles to the facts of the problem - use the relevant law to argue your case Conclusion - what would the Court decide & what remedy will they give (if any)? Remember to read the 'Tips & Tricks' document linked on the bottom of this page. We will discuss it at class in Week 2. The following is a brief overview. The attached 6-page word document will speed up your learning and provide you with the structure required for answering an ILAC question. It would be a good idea to print it out and have it next to you while working on your assignment and homework.

ILAC Problem Solving Method Issue:

Issues are the legal questions over which the parties are in disagreement - the legal questions the court has to decide. You should phrase the legal issues as questions that need to be answered.

Law: (Relevant)

State the relevant law that needs to be applied to answer the legal issues proposed. It may be common law, legislation or both. You will nearly always need to refer to case law.

Application:

Apply the law to the facts of the hypothetical question. You should state why any legislation applies (if applicable) and compare the legal principles of multiple cases to the facts of the hypothetical, showing how the scenario is similar and/or different. This requires analysis and reasoning.

Conclusion:

State a conclusion of what you believe the Commission/Court would/should decide based on the relevant law being applied and a brief summary of why, answering the questions that you posed as part of the issues.

ILAC Reminders Similar to Introduction to Business Law (2105AFE) and Legal Issues for Managers (2010EHR/2007GIR) (and Model Answers):

Always write the Issues as question(s), using the names of the parties, the main legal issue(s), and mentioning the legislation if appropriate (ensure that your Issue question/s deal(s) with each 'problem' that needs to be resolved in order to advise your client) Do NOT just simply repeat the facts in the Issue section (apply these in your application to the law to answer the legal questions that you have proposed before using them to conclude). When listing the law use brief legal principles (why you are using the legislation (summarised section header is enough), and key legal principle or outcome of case (brief) Once the legislation or case is listed under the law, you only need to use the case name Ensure that you have addressed (discussed) and applied each section or case that you noted as being relevant in your law section (Use the law sections as a checklist) Hints for conclusion:

Where possible always summarise the key points which answer the legal question(s) that you identified earlier in the "Issue" section and consider:

Standard of proof If claim is to be decided, where would it most likely be lodged (which court or which tribunal) Parties (who is bringing/defending the claim) Brief recap of the issues (as above) - do not restate any law (legislation and/or cases) that is listed under that heading but has already been discussed in the application Include any law that has not already been discussed (i.e. Procedure, Remedies and Penalties unless otherwise advised). Please read the following document (A guide to answering hypothetical (problem) questions) to help you answer ILAC questions. This document will speed up your learning and provide you with structure.

A guide to answering hypothetical (problem) questions ILAC Example:

ISSUES:[BF1]

Under the Civil Liability Act 2003 (Qld) and the common law:

1. Did the defendant, Richard's Kebabs owe the plaintiff, Michelle a duty of care based on occupier's liability?
2. If so, did Richard's Kebabs breach the duty of care owed to Michelle?
3. If so, did Michelle suffer damage or injury and if sustained, were the damages too remote (or not reasonably foreseeable)?
4. Are there any defences available to Richard's Kebabs?
5. Is Michelle likely to succeed in her claim in the Queensland Magistrates Court for $30,000 as damages for her injuries?[BF2]

LAW:[BF3]Tort Law - Negligence

Statute: Civil Liability Act 2003[BF4](Qld)

ss.9(1)&(2): Breach of Duty of Care

s11:Causation

s12: Onus of proof

ss.23-24: Contributory negligence

ss.53-62: Damages

Common Law:[BF5][BF6]

Donoghue v Stevenson[1932]'duty of care'- 'neighbour principle'.

Australian Safeway Stores Pty Ltd v Zaluzna[1986]-Occupier's liability.[BF7]

Romeo v Conservation Commission of the Northern Territory (1998) and/orVairy v Wyong Shire Council[2005] - 'reasonable foreseeability'

Nagle v Rottnest Island Authority (1993)and/or Bolton v Stone [1951]- not 'reasonably foreseeable'

Liftronic Pty Ltd v Unver(2001)- 'contributory negligence'

APPLICATION[BF8]

As per s12 CLA, the plaintiff, Michelle bears the burden of proof and must establish the following elements in order to succeed in a tort of negligence action. First, Richard's Kebabs owed her a 'duty of care'; second, Richard's Kebabs breached the duty of care owed to her; Third, Michelle suffered damage as a result of that breach; and fourth, the damage was not too 'remote', that is, it was reasonably foreseeable. If Michelle can prove all of those requirements, Richard's Kebabs will then have to establish a defence, and then possible remedies would be discussed.

Duty of Care[BF9]

To establish a duty of care, the plaintiff, Michelle, needs to prove that it was reasonably foreseeable that the actions of Richard's Kebabs could cause injury to Michelle ((Donoghue)[BF10]. If an occupier has control over land or premises, the occupier will owe a duty of care to an entrant to ensure that the entrant is not exposed to any risk or injury (Australian Safeways).[BF11]

In this case, Richard's Kebabs have control over the shop premises, including the toilet which means that they are the "occupier" of the premises. They will owe a duty of care to Michelle to make sure that she is not exposed to risk or injury whilst she is on the premises. Further, it is reasonably foreseeable that Richard's Kebabs' actions could cause injury to Michelle because if they don't take steps to make sure that the shop and the toilet are safe, it is reasonably foreseeable that someone could be injured. Richard's Kebabs owe Michelle a duty of care under both Donoghueand Australian Safeways.[BF12]

Breach of Duty

Section 9(1) CLA states that a person does not breach their duty unless the risk was foreseeable, it was not insignificant and a reasonable person would have taken precautions in the same circumstances. In deciding what a reasonable person would do, s9(2) CLA states that a court will consider the probability of harm, the likely seriousness of the harm, the burden of taking precautions and the social utility of the activity that created the risk of harm.

It is foreseeable that if a cistern is not secured to the wall, there is a significant risk that it could fall and injure someone. It is likely that the cistern could fall, and if it did fall, it is very likely that it would cause serious injury. In applying ss9(1) and (2) CLA, it seems that Richard's Kebabs has not acted reasonably. It would have been very cheap and easy to secure the cistern to the wall properly, or to put up a sign saying that the cistern was broken, or not allowed customers to use the toilet. This further supports the argument that Richard's Kebabs did not act reasonably in the circumstances.

In Vairy, the High Court decided that there was no duty to erect signs to warn of the risk, as the risk of the injury was obvious. This also applied in the case of Romeo when a young girl injured herself when drunk on the edge of a cliff in a national park. Whilst both these cases involve a young person who was injured while drunk, these cases can be distinguished from the current scenario because the defendants in Vairy and Romeo were public authorities, not private property owners like Richard's Kebabs[BF13].

In Nagle, the High Court held that there is a duty to warn of risks, where the risks are not reasonably foreseeable and obvious. It could be argued that Michelle should have known that there was a risk that the cistern could fall on her head. It should have been obvious when she pulled on the cord and it didn't work, that she should stop, rather than pulling harder on the cord. It could be argued that the risk was obvious, and Richard's Kebabs didn't need to warn Michelle about the risk.

Damage and Reasonable Foreseeability[BF14]

Section 11 CLA states that the breach of duty must cause actual damage to the plaintiff, and the damage must be a reasonably foreseeable consequence of the defendant's act or omission. Richard's Kebabs failed to properly secure the cistern to the wall (or take steps to remove the cistern, put up warning signs, or make the toilet unavailable to the public) and this caused the cistern to fall on Michelle's head which in turn caused the skull fracture. Richard's Kebabs' breach of duty caused the injury to Michelle.

It is reasonably foreseeable that if the cistern isn't properly secured to the wall, it could fall on someone's head and cause injury. The head injury is reasonably foreseeable, and therefore the damage is not too remote.

It is likely that Richard's Kebabs has been negligent, they owed Michelle a duty of care, they breached that duty, the breach caused the injury to Michelle and the injury was reasonably foreseeable. [BF15]

Defences

Contributory negligence is a partial defence and applies when the plaintiff has failed to take reasonable care for their own safety (as discussed inss.23-24CLA[BF16]and in the case ofLiftronic[BF17]). It could be argued that Grace didn't take reasonable care for her own safety because she wasintoxicated[BF18]and this would have affected her judgement.If she had been sober, she may have seen that the cistern was loose and would not have continued to pull on the cord.The defence of contributory negligence may apply, and the damages payable by Richard's Kebabs would be reduced.

Voluntary assumption of risk[BF19](ss.14-15) would not apply because Michelle did not know that there was a risk that the cistern could fall on her because it was loose, and she did not voluntarily assume the risk. It could be argued that the fact that the cistern was loose and could fall was an "obvious risk", but it is unlikely that this would succeed[BF20].

CONCLUSION:

On the balance of probabilities[BF21]it is likely that the Magistrates Court[BF22]would find that the defendant, Richard's Kebabs owed the plaintiff, Michelle[BF23] a duty of care when she entered their premises. Occupiers need to take reasonable care to protect all who enter their premises from injury.[BF24] Here, it was reasonably foreseeable that Michelle could be hurt by the cistern as it was not properly secured.Richard's Kebabs breached its duty of care as the owner, and the staff members[BF25]had not acted reasonably in the circumstances, such as by securing the cistern or using a warning sign, or preferably keeping the toilets locked and not allowing people to use them until it was fixed. This would have prevented Michelle from being injured. Richard's Kebabs, or at least his insurance company[BF26], would be liable in negligence. Richard's Kebabs will be able to argue contributory negligence (ss23 & 24) as a defence and it is likely that the $30,000 damages sought by Michelle will be reduced.

[BF1]Underline your ILAC heading.

[BF2]Summary of the law, the parties involved and the legal issues (questions) to be answered.

These can be listed as individual or grouped questions as long as your cover all the issues.

[BF3]List all relevant sections and cases, and include a brief description of what each section and case is about. Remember that if you mention a section/case here and don't apply it in the "Application" section, you will not be awarded any marks for the "Law".

[BF4]Note that the name of Acts and year should be written in Italics in assignments, similar to text.

[BF5]Once cited, students can use just the first name of case only in the Application as shown below - do not use letters of cases (i.e. D v S).

[BF6]Even though negligence is covered in the CLA, the CLA doesn't cover everything, and the common law continues to apply, so it is still necessary to refer to relevant cases.

[BF7]If students used Hackshaw v Shaw for occupier's liability some marks would be awarded, but Australian Safeway Stores Pty Ltd v Zaluznais the preferred case because Michelle is not a trespasser. If in doubt, apply both. [Remember that occupiers must take reasonable care to ensure that anyone (even trespassers) who come onto those premises are not injured].

[BF8]Note that most of the answer is developed in the application (analysis/argument) stage and therefore this is where most marks are given in an answer. It shows the marker that students understand how the law applies to the legal questions (issues) asked.

Chapter 1: Practical Employment Law by Floyd (2024)

The Employment Contract - Contract Law and Employment

[1.05] As observed in the Introduction to this book, for all the extensive legislation and case law on employment law in Australia - and for all the labour theories that lie at the heart of employment law - the actual starting point for this area of law is contract law. Harking all the way back to the English Court of Appeal decision in Carlill v Carbolic Smoke Ball Co, for there to be a binding contract, there must be: offer and acceptance, consideration, certainty of terms and an intention to create binding legal relations - the agreement must be more than, for example, mere advertising huff and puff. Classic contract law works from Chitty on Contracts (now in its 34th edition) through to Cheshire and Fifoot (now in its 12th Australian edition) still fill the bookshelves of law libraries to this day.

If one person performs work for another, the questions surely arise: did they intend to create binding legal relations? Were they to be paid (consideration)? Did the parties agree to the work that was being performed (offer and acceptance and certainty of terms)? These questions are the starting point in determining whether, for instance, someone is volunteering or helping a friend or relative or engaging in a hobby or whether they are actually performing work in order to be paid under a binding legal agreement.

Perhaps ironically there is a body of case law developing today about volunteering. However, by far the central questions about work contracts revolve around whether a worker (someone providing services) is an employee or an independent contractor, and if they are an employee, whether they are permanent or whether they are casual. There are significant legal consequences to these classifications and these are the subject of this chapter. (For example, traditionally employees may be able to access the unfair dismissal remedy and they are typically covered by the employer's insurance. Unlike permanent employees, casual employees typically cannot access the Fair Work Act 2009 (Cth) entitlements to, eg, paid sick leave.) Importantly, these questions have also been the subject of relatively recent High Court of Australia consideration and in some circumstances subsequent legislation that is already in force. But critically, at the time of writing, further legislative change is forthcoming through both the operation of the final tranche of Secure Jobs Better Pay reforms and through a possible second wave of legislative reform in the Fair Work Amendment (Closing Loopholes) Bill 2023. This chapter considers the contract law of employment and especially the recent cases such as Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (CFMMEU) and ZG Operations Australia Pty Ltd v Jamsek relating to whether a worker is an employee or an independent contractor. The chapter also discusses the High Court of Australia decision in WorkPac Pty Ltd v Rossato about whether someone is a permanent or casual worker and the legislative response to that decision, which is already in force. Crucially the chapter will then discuss the incoming legislative change and proposed further statutory reform. There has long been debate on whether employment law protections are being undermined by use of contractors or over-reliance on casuals. The federal government in introducing statutory legal change and the unions in bringing these test cases are acutely aware of that. The chapter proceeds in this format:

1. Are you an employee or independent contractor?

2. Casuals.

3. Unfair contracts law.

4. The pending and proposed statutory law reform.

Employee or Independent Contractor?

Why the nature of the working relationship is important

[1.10] The characterisation of a worker as either an employee or an independent contractor is important as it influences the law which applies to their working relationship.

Employment relationships (ie, those based on contracts of service) are largely governed by the Fair Work Act 2009 (Cth) and, in particular, its provisions as to minimum entitlements and unfair dismissal. They are also the subject of allied laws and legislation, such as the law on vicarious liability. Employers may well be liable for the actions of employees in the course of employment, and typically employees are covered by their employer's insurance for work performed in the course of employment. Further, employment relationships are governed by the traditional common law duties, such as the duty of good faith and confidentiality, and the restraint of trade doctrine may well be relevant.

(Both of these are discussed in Chapter 2). As a general rule, the employer will own the intellectual property of an employee where the work in question falls within the scope of the employment relationship.

Independent contractors (whose working relationships are based on contracts for services) are less regulated in Australia than employees. As the expression suggests, their relationship is about supplying services, so freedom of engagement and movement (as opposed to a continuous, strongly regulated relationship with one employer) is often an important feature of a genuine independent contractor relationship.

Fewer provisions of the Fair Work Act 2009 (Cth) (especially as regards minimum conditions and dismissal) have traditionally applied to independent contractors. Those who engage contractors are not usually vicariously liable for the actions of the independent contractors that they engage. Independent contractors may object to restraint of trade clauses being placed in their contracts. After all, their livelihood often depends on their freedom to work for whom they choose. As the use of contractors (especially by government) increases, the applicability of confidentiality and intellectual property laws to contractors has become a vexed issue. There is a strong argument that some common law duties, like good faith (conflict of interest), apply to contractors, or that equity will give rise to a duty of confidence depending on the circumstances under which the contractor works. Particularly, if a contractor is engaged by the government, legislative provisions, such as those from the Commonwealth criminal law, may apply to the conduct of contractors who misuse their links to government. This is a particularly importansioint to make as, at the time of writing, one prominent accounting firm was being investigated for alleged potential misuse of government information while undertaking government work. Although as a general rule, an independent contractor will normally retain their intellectual property, given the sensitivity of some of the work contractors undertake, it is preferable that issues of confidentiality and intellectual property should be directly addressed in the contract under which the contractor is engaged. (Refer Chapter 9 as regards public service work.)

While there are clearly some laws that apply to contractors and others that apply to employees, there are also some that apply to both in other words, they apply to workers and workplace relationships, regardless of whether the parties concerned are in a contract of service or a contract for services. For example, most aspects of the Sex Discrimination Act 1984 (Cth) will apply to employees and independent contractors. If a worker is sexually harassed, they can seek redress under the Act whether they are an employee or a contractor.

Another set of laws that applies to contractors as well as employees are those regulating occupational/workplace health and safety. Standards and legislation in this area often refer to the "worker", focusing on the workplace relationship in general rather than on whether it can be characterised as a contract of service or a contract for services.

In addition to legitimate engagement of workers as independent contractors, some employers have sought to exploit the characterisation of workers as contractors in order to avoid their employment law obligations. Over the years, governments and regulators have sought to address this; for example, the Independent Contractors Act 2006 (Cth) (ICA) canvasses unfair contracts while the problem of sham contracts is dealt with in the Fair Work Act 2009 (Cth). Although these statutory provisions are well intertioned, their efficacy is still to be determined (see [1.70]-[1.80]) for a discussion these provisions). However, at least the unfolding case law and actions of regulators, such as the Fair Work Ombudsman (FWO), demonstrate the efforts that are being made to utilise the legal protections available on the statute books.

It is important to note that in addition to the legislative developments outlined above, a number of governments have also implemented practical measures. Some governments use their purchasing policies in an attempt to influence the behaviour of the contractors they engage. For example, by requiring contractors to apply fair workplace principles, subcontractors and others engaged in projects may be afforded some measure of industrial protection. This approach may also be seen to make contractors more accountable to government. Such procurement measures are also being used in pursuit of societal objectives there might be requirements to employ long-term unemployed or there might be a preference for some level of local suppliers. Other "soft law" measures to influence the use of contractors include, for example:

Representatives of the FWO have worked closely with industries to educate and attempt to combat problems of sham and unfair contracting. One notable example involves Enforceable Undertaking Between the Commonwealth of Australia (as represented by the Fair Work Ombudsman) and Coles Supermarkets Australia Pty Ltd.

Some universities and professional bodies who have observed emerging issues with (typically) young, non-legally trained graduates being engaged as contractors have taken steps to educate those students (eg, in dentistry courses) of the ramifications of being an independent contractor and the preference of professional bodies for engagement as an employee.

Some States are using their purchasing policies to foster better contracting practices (ie, to raise working conditions). As time goes by, those same governments are also increasingly using government procurement to achieve social goals, to

Most importantly, the use and alleged over-reliance on and abuse of contractors has led to a series of recent cases and legislative developments on, for example, the test for distinguishing employees from independent contractors. Of equal importance, parallel to this issue further questions have arisen and been litigated on the difference between permanent employees and casual employees. Although employees, casuals typically have not accessed all the minimum conditions of employment such as paid sick leave, which are available to permanent staff. In addition to the long-standing debate about the overuse of contractors to avoid employer responsibilities, there has been a parallel debate about the over-casualisation of the workforce. The test cases that have tested both these points and the related legislative responses and ongoing reform are considered from [1.15).

A Test for determining the nature of the working relationship

[1.15] The legal characterisation of a worker as an employee or independent contractor has always been tricky. This is evidenced by the number of cases on the issue that have been considered by the High Court of Australia (all considered in this section of the book). But it has become a particular flashpoint since around 2020 due to a number of test cases and the legislative responses thereto. Crucially for readers of this book, at the time of writing, the question remains a flashpoint and subject to further potential legislative change (the key points of which are outlined herein).

By way of outlining the key legal principles, though, up until 2022 there was no real doubt that the test to determine whether a worker is an employee or an independent contractor is this: one considers the totality of the relationship and, within that totality, control (exercised by the entity engaging the worker) over the performance of work is a significant factor (cf Stevens v Brodribb). Later cases have affirmed that test while also noting the importance of badges of origin or emanations and uniforms (cf Hollis v Vabu). Those with expertise (even a trapeze artist) can be considered employees if the manner of performance of the work is controlled; likewise if one is engaged due to their owning substantial equipment, that may be one factor inclining away from a finding of employment (cf Zuijs v Wirth Bros as well as Humberstone v Northern Timber Mills). This test and the cases that established and refined it are considered at [1.20]-[1.40].

The position through to 2022

Stevens v Brodribb (1986) 160 CLR 16-totality of the relationship/multifactorial test

[1.20] Stevens v Brodribb Sawmilling Co Pty Ltd lays down the test for determining whether parties are in an employment relationship or are independent contractors. The relationship between the parties as a whole must be considered as part of the test, must the level of control exercised by each party within the relationship

Given the reliance the test places on the evidence in any given instance, the facts of the case from which it originated should be considered. Brodribb was a company that operated a sawmill in Victoria. The company engaged "fellers" to cut trees and "sniggers" to roll the logs up rampa and onto removal trucks. The "truckers" then drove the logs to the mill. Gray was a snigger and Stevens was a trucker. Gray dislodged a log he was loading onto Stevens' truck and the log rolled onto Stevens, causing him severe injuries. There was a workers' compensation claim. The allocation of liability (as the workers' compensation laws then stood) turned on whether Stevens was an employee.

The High Court of Australia found that, on those facts, neither the trucker nor the snigger was an employee of the sawmiller, so that the sawmiller was neither vicariously liable nor personally liable for the breach of the duty of care. The crucial part of the Court's judgment is that of Mason J (at 23-25, especially 24):

A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise... as in the right of the employer to exercise it: Zuijs v Wirth Brothers Pty Ltd... Humberstone v Northern Timber Mills... [Both of these cases are considered at [1.30] and [1.35] respectively.

But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: Queensland Stations Pty Ltd v Federal Commissioner of Taxation; Zuijs Case Other relevant matters include but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.

On the evidence in this case, the logging season lasted six months. Stevens and Gray provided their own equipment, set their own hours of work and received fortnightly payment; that payment was not fixed, being instead determined by the amount of timber that they delivered. Brodribb did not deduct income tax. Stevens and Gray made themselves available for work each day but Brodribb did not guarantee them work, and they were free to seek other work in bad weather or in other circumstances. Brodribb's "bush boss" (the organiser) was ponsible for the overall co-ordination of activities within the logging areas and had the task of ensuring the steady flow of timber to the sawmill. Fellers, sniggers and truckers were subject to his direction and he settled disputes. He had little to do, however, with the way in which they performed their functions. Therein lies the reason why Stevens and Gray were not employees. The bush boss organised their work at arm's length rather than providing close supervision. It could be described as an "if you've got problems, come to me arrangement, whereby workers were otherwise largely free agents.

Hollis v Vabu (2001) 207 CLR 21

[1.25] Some academics cast doubt on the applicability of the Stevens v Brodribb test after the High Court decision in Hollis v Vabu. As will be seen in this chapter, the better view was that adopted by Professor Andrew Stewart, namely that Hollia v Vabu did not substantially alter the Stevens v Brodribb test.

In Hollis v Vabu," the High Court of Australia found a bicycle courier to be the employee of Crisis Couriers (Vabu), such that Vabu was liable when the courier knocked down a pedestrian.

Importantly, the contract between the courier and Vabu was partly written and partly oral. The Court noted (at 32-33) that couriers were given a three-page document on company letterhead labelled "Contract for service". The document alluded to a number of conditions, such as:

Although the company does not pay hospital bills, any driver in an accident must report it to the company.

Drivers must wear a uniform with corporate logos.

Drivers must be neat and tidy.

Responsibility for loss or damage to goods in transit rests with the driver.

Insurance costs approximately 37 per week.

All equipment supplied by the company remains the property of the company and must be returned on termination of the relationship.

Vehicles must be clean and roadworthy. The company may order that they be updated they are not in a presentable state for our clients

The case was complicated by the fact thar decision in which Vabu had been found to be in an independere contractor relationship with as motorcycle couriers for purposes of determining taxation liabilities

Notwithstanding these difficulties, the High Court found the relationship between Vabru and itu bicycle smurars to be that of employment, not independent contract. The evidence on which the majority of the Court relied was autou 43-44

The couriers were not providing skilled labour or labour requiring special qualificatione

On the evidence, couriers had inde control over the manner in which they performed their job for example, they were not allowed to decine work.

Drivers were presented to the public as "emanations" of Vabu and associated company documents stated: "Drivers should always be aware that they are a direct representation of the company. Their attitude and appearance can only be seen as a direct reflection of our organisation."

Making such an employer liable (which would occur if Vabu was in an employment relationship with its bicycle couriers) would encourage other employers to take steps to reduce accidents.

Vabu "superintended the couriers' finances. In other words, the company produced payslips and there was no capacity for couriers to bargain for wages. Couriers were not allowed to take leave from November through to Christmas and this was part of a leave request system that existed within the company. As the High Court viewed this evidence: "This suggests that their engagement by Vabu left the couriers with limited scope for the pursuit of any real business enterprise on their own account."

Although the couriers had to supply their own bike, this was a minimal outlay.

Although Stewart acknowledged that Hollis v Vabu placed more emphasis on some indicia of the employment relationship than others (eg, the wearing of uniforms, the existence of badges of origins and couriers being emanations of the company were considered particularly important), he correctly identified the above reasoning as applying the Stevens v Brodribb "coneral" twst

Further cases on employment and independent contracts

Zuijs v Wirth Bros (1955) 93 CLR 541

[1.30] As to the development of the Seven Brod text, Zujev Wirth Brothers Pty Ltd deals with the prettion of workers who have a significant level of skill. Although someone who employs such a highly skilled worker may lack the knowledge to be able to give precise directions to the worker leg, about how to perform on the trapezal, the employer may still exercise significant degree of control over how the workar does their job, for example, by specifying hours of work.

Humberstone v Northern Timber Milla [1545] 79 CLR 389

[1.35] In yet another High Court of Australia decision, Humberstone v Northern Timber Mills, it was determined that the Court would be more likely to find a relationship to be that of independent contractor where the worker was engaged primarily so that the employer could gain access to equipment owned by the worker.

Sweeney v Boylan Nominees (2006) 225 CLR 161

[140] While both Zujs and Humberatune were referred to by the High Court in Stevens v Brodbesttention should also be paid to the decision of Sweeney v Boylan Nominees Pty Lad Lad, which was essentially a High Court of Australis case determining vicarious liability. It involved the situation where is customer at a convenience store sustained an injury to the back and legs when the door of a milk fridge fell on her. The milk fridge was leased by the convenience store from a company which was required to maintain it. Prior to the accident, the manager of the convenience store noticed that the fridge was not closing properly and notified the company which then arranged for a mechanic to fix it. The mechanic did not repair the door properly and so it was able to fall off and injure customer. Clearly, if the mechanic was an employee of the company that had engaged him to fix the door, the company would be only liable for his work. However, the majority Gleeson Cl. Gummow, Mayne, Heydon and Crennan J found that the mechanic was not an employee, but rather an independant contractor. Unlike the bicycle compier in illa vahu, the mechanic:

invoiced the company for each jok

faced questions from the company as to whether he had public Sability insurance

had his company name on hie van and

wan skilled, had his son tode and controlled the manner in which he worked.

The majority than went on to make significant pronouncamente about vicarious liability low. They nested the increasing tandeney for individuals to be referred to as "agents" of those they served there was no real agency relationship at lee. The Court concluded on the evidence (at 173):

The mechanic was an independent credit did for the benefit of the respondent and inattented charge of actalbligations. But he did what he did not as an employee but as a principal pursuing his own business or as an employee of his own company pursuing to business

The position from the 2020s, especially 2022

[1.45] While the series of High Court decisions at [1.20]-[1.40) is a portent to the complexity of this legal question (employee or independent contractor?), it must be remembered that the actual legal cases were decided against the backdrop of law reform debate about whether some employers were overusing both contractors (ie, non-employees) and casual employees in order to avoid legal obligations to full-time permanent employed staff. The resulting debate gave rise to High Court test cases as regards the characterisation of workers as employees or contractors and to cases relating to whether a worker was or was not a casual. The legislature was prompt in responding to the latter, particularly. But crucially for readers there is further mooted reform. The cases and the legislative position is considered from (1.50).

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1

[1.50] Mr McCourt was a British backpacker who gained work under an Administrative Services Agreement (ASA) with a Labour Hire Company called Construct. He had his own equipmanite the value of $100 (eg. hard hat, steel-capped boots, high visibility clothing) as well as a white card to work in construction. The ASA described him as a "self-employed contractor". Construct supplied Mr. McCourt to Hanssen, which gave Mr McCourt the Hanssen safety induction form and site rules and where Mr McCourt was supervised by a Leading Hand from Hanssen. No contract was signed by Mr McCourt with Hanssen and Mr McCourt was described as undertaking basic labouring under dievction - he was not performing skilled artisan tasks.

Ultimately Mr McCourt and the union, the CFMMEU sought orders againat Construct alleging Mr McCourt was an employee of Construct and was not paid in accordance with the relevant award. Hanssen was also sued as an accessory. The critical question was whether Mr McCourt was an employee or an independent contractor.

The Labour Hire Agreement (LHA) between Construct and Hansson described Construct as a liaison for the provision of self-employed contractors to clients such as Hanssen. The contractors were under the client's (Hanssen's) direction according to the LHA. Under the ASA (between Mr McCourt and Construct), Construct agreed to underwrite payment by the Builder (Hanssen) to Mr McCourt. So, crucially, Construct was doing more than simply seeking out business opportunities for Mr McCourt. Likewise, Mr McCourt agreed to co-operate with Hanssen and Construct in his provision of labour and comply with Construct's safety requirements (which in turn required him to follow the worksite safety rules of Hanssen and report any breaches to Hanssen and Construct).

The High Court found Construct to be far more than a simple finder of work for Mr McCourt, especially since Construct had underwritten his pay and maintained a right to terminate his services if he did not co-operate with Construct and Hanssen (Clauses 2 and 4 of the ASA referred to by the High Court at (71) et seq). In finding Mr McCourt to be the employee of Construct, the High Court considered the so-called multifactorial test (ie, the Stevens v Brodribb totality of the relationship test) especially at [32]-[39] of their judgment. The Court observed that the danger in such approach was that parties considering a relationship might simply tick boxes (eg: How are you paid? Can you work for others? How are you taxed? Can you delegate? Do you provide your own expensive/heavy equipment? Is the manner in which the work is performed controlled by the entity who engages your services? Do you wear a uniform? Is there an intermediary/Australian Business Number?). But, different factors may assume different importance in different relationships. The High Court in this present case of CFMMEU found merit in the approach of considering whether the worker was subordinate to the employer's business or running their own business. Although that approach does not have universal application as not all contractors are entrepreneurs, the Court suggested it might be a useful prism through which to consider the various rights and duties of the parties (CFMMEU at [32]-[39]).

From paras 40 to 67 of the judgment in CFMMEU, the High Court underscored the importance of a detailed written contract. In considering whether parties are employees or independent contractors, appropriate weight must be given to the actual terms of the detailed written contract. The latter is not simply just one factor to consider - it is the basis of the legal relationship. If subsequent conduct is at odds with the decisive and detailed written contract, then the appropriate course may be to argue for contract variation or unfair contracts - but the actual written contract must be given appropriate weight (at [43]):

While there may be cases where the rights and duties of the parties are not found exclusively within a written contract, this was not such a case. In cases such as the present, where the terms of the parties' relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship.

In this respect, the High Court was reaffirming the position in its former decisions in Australian Mutual Provident Society v Chaplin and also Narich Pty Ltd v Commissioner of Payroll Tax and observing that in Stevens v Brodifat the paties did not reduce of their terms and conditions into written contract but secondly lat [55] and [54]):

In neither Sovenor Halldid this Court suggest that where one person has done work for another pursuntomprehensive are contact the court must perform amittfactice whereby the history of all the dealing the paties to be exhaustively reviewed even though no party deputeteady of the contract

In Stevens, Mason said that they of the relationship between the parties which be considen But statement was made in the contest of a discothepoohphathat the right of one party to control the woofer the only relevant factor and duties of the paties

In some of whether for the continued axistence and operation of the Streamitted that the test has not necessarily been sold and compared, but the High Court hue cautioned about the spurtonation of the test, I must not be applied singly frog ng boss which indicate the rights and dute of these some consideration should be given to sing troue Store and anding whether one party has become adservice to the men of mother importantly, that is not an open invitation for som oftesonide every aspect of the relatioradsipuente about the legal rights and duties of the paranmeing the totality. Where there is a comprehensive written cover thesis, that is determinative of the nature of the the factors in it ona doon not investigate of the nationship of the parties thereto. If the agention of the contract andicates a variation of rights or a aham, then sonra eition and shem contracting are the appropriate legel courses to se

The final legacy issue stemming from CFMMEU rautas to Labour Hira Agencies and cormats. Prior to the decision, the surfior Federal Court decision of BWK/Ode Pty Lt means that labour hire companies with their triangulated labour hire arrangemente usually were valid and indicated a relationship of labour hire rather than employment. Typically, labour hire involves a triangulation of the working relationship, that is, an uhimate consumer of labour gaine labour under a contract with a supplier of labour (ie, the labour hire company-that ultimate consumer of labour often avoids being legally characterised as employer due to that triangulation, even though obviously they exercise some control over the performance of the work once the supplied labour arrives at the workplace and reports for duty. But of course, Mr. McCourt in CFMMEU was working in a labour hire arrangement, but was held to be an employee. In that connection, the High Court stated:

Construct argued that... the decisions in Building Workers Industrial Union of Australia v Odce Pty Ltd and Young Tasmanian Contracting Services Pty Ltd, established a body of authority in which "Doeestyle" triangular labourtire arrangements have been hald not to create relationships of employment it was submitted that this Court should not overtum this longstanding position. Many persons, it was said, will have relied on these decisions in arranging their affairs.

(The) critical error of the masoning being the atribution of decisive significance to the parties description of their relationship in a manner son "remove the ambiguity generated by other factors in the analysis pointing in opposits directions. The same the decision in Oleo. That etror involves a departure from priplewhould not be perpetuated

Those pronouncements of the High Court in CFMMEL have lead some lawyers to prodai: "Rent in Peace Odo

Other academic such retired Professor Joellan Riley although raising obvious questionery of are somewhat more circumspect

In any event, what is crucial in that the simple act of labelling or triangulating a workplace relationship will not that worker in a contractor (rather than an employeel Intend the scual terme of a detailed written contract must be coridered

ZG Operations Australia Pty Ltd J (2022) 2

[1.55] Released on the same day on the CFMMEL decision, the High Court of Australia decision in 26 Operations v Jamaat underscored the principles outlined at 1.50-that is the definitive nature of a comprehensive written contract of employment For 40 years, two husband and wife partnerships had conducted deliveries for the company in question. They had initially used a truck owned by the company and before that the nov malle drivers had been directly employed by the company. Importantly. the change to the partnership arrangement came after the company said the workars needed to convert to being contractors if they wished to continue undertaking the work. Interestingly at times the drivers had worn uniforms and logos. The High Court found this to be a valid contractor relationship. The Court did not regard the power imbalance at the start of the contracts nor the fact the wives did not work day-to-day as saking away from that finding. Expecially at [81]-[82], the High Court found that the correct remedy for arguments of power imbalance is to be found in law suits about sham or unfair contracting power imbalance should not necessarily undermine the written terms of a comprehensive contract. In this case, clearly the company emphasised that the only way the drivers would continue in work watange to contractor statue and that the company no longer weed maintaining vehicles etc. The partnershipshed not objected for 40 years to their contractor startus and they were indeed contractoremployees

This commentary now considers the pastel man of casualisation of work lat [1.00]1. The final part of the cheerer lat. 3050 considers the ongoing legislative response to these decisione

Casuals

[1.60] While those are the swng cong ve to contractor status, the parallel issue to be litigated before coure and relates to the status of an employee esther quantly considered by Parliament permanent or casual employes.

WorkPac Pty Ltd v Rate [221] HCA 23

[1.65] The decision of the Full Court of the Federal Court of Australia in WorkPac Pty Ltd v Skane had viewed a worker (long regarded as a casual) as a permanent employee and hence entitled to backpay for all the National Employment Standards entitlements such as paid annual leave etc. (The National Employment Standard is considered in Chapter 3 of this book). Interestingly, the Court in that case chose not to set off the amount the worker had received for casual loadings against the backpay. Subsequent to Stene, the High Court of Australia considered the definition or characterisation of casual employment in Workpac Pty Ltd v Rossato.

The High Court criticised the Federal Court's reasoning in Skene and laid down principles about characterising employment as casual.

Essentially, Mr Rossato was on the books of labour hire company WorkPac and was ushered out to Glencore. He worked under the direction of Glencore in mixed Workpac/Glencore groups of workers. He was largely a drive in/drive out worker. (The nature of Mr Rossato's arrangement was considered by the Court at [11]-[22]. Mr Rossato had signed a "Casual or Maximum Term Employee - Terms and Conditions of Employment". He had episodic employment usually under an agreement labelled "Notice of Offer of Casual Employment - Flat Rate". Mr Rossato claimed that he was a permanent employee (not a casual) and hence was entitled to more lucrative pay and conditions under the National Employment Standards and the relevant Enterprise Agreement. He had been largely successful in the Federal Court on the basis of his asserted expectation of an advanced commitment to further work. However, before the High Court, his argument failed.

In finding Mr Rossato to be a casual not a permanent employee, the High Court underscored that for a worker to be a permanent employee, they require a "firm advanced commitment to work (at [49]-[53], for example). Such a firm advanced commitment required evidence, for example, tantamount to a contract and the requirement was not satisfied by a simple hope or expectation an employee might entertain based on what has taken place in the past

The High Court was critical of the Federal Court (at [63]-[67] as well as at [05]-[96]] which had for instance considered the entire relationship and inferred expectations from conduct (at (5)-(001). The High Court found Mr Rossato had no firm advanced commitment lat [88]-[90]) and that the real determinant for such should rest in the written contract (at [57]-(62]):

57. A court can determine the character of a ingal relationship between the parties only by reference to the legal rights and obligations which constitute that relationship. The search for the existence or otherwise of a "firm advance commitment" must be forenforceable terms, and not unenforceable expectations or understandings that might be said to reflect the manner in which the parties performed their agreement. To the extent that Bromberg J expressed support for the notion that the characterisation exercise should have regard to the entirety of the employment relationship, his Honour erred.

58. While it is true 1 say that "the history of the employment relationship is considerably longer than the history of the employment contract", it is also true that the evolution of the employment relationship is "a classic illustration of the shift from status (that of master and servant) to that of contract (between employer and employee)". Nothing in the statutory framework within which the employment relationship in the present case has been established relevantly inhibits the freedom of parties to enter into a contract for casual employment. So far as casual employment is concerned, the Act leaves the making of such an arrangement arrangement to be agreed between employer and employee. Original footnotes omitted]

As regards the Federal Court's approach that the commitment need not siways be expressed that it can be implied from conduct although it requiras something more than an expectation-the High Court continued its criticism of the Federal Court's reasoning (paras 60 et seq):

61. It is difficult to square these last observations with his Honour's expressed preference for an approach focused upon the write agreements of the parties, subject to the possibility of contractual viation Indeed, it is difficult to be confident about what is meant by "something more than an expectation" if that "something more" is not a binding agreement between the parties by way of a contract or a variation of a contract Something that is not binding cannot meaningfully be described in a court of lawan a "commitment" at all Some amorphous, innominate hope or expectation falling short of a binding promise enforceatile by the courts is not sufficient to deprive an agreement for casual employment of that char

62. To insist spon binding corectal promsess as retable indicators of the true character of the recognise that it is the function of the courts to enforce legens, not to act as an industrial arbiter whose function is the concont out of industrial differences. That is no part of the judicial function to reshape or recast a contractual relationship in order to reflect a questegative judgment as to the just settlement of an inductial depute has been anghatically the case in Australia at the federal leused since theaters Case

The initial statutory response to Rosate and the unions' bid to reclassify casuals are discussed in Chapter 3 which includes discussion of the National Employment Standards. There is now a statutory right to casual conversion in some circumstances, and the definition of "casual" from Rossato ("no firm advanced commitment) appears in the Fair Wo