Legal Background
The issue is to determine whether Amanda is considered an independent contractor or an employee of Monks Pty Ltd.
The employment rules of Australia are applicable in the case (Fairwork, n.d.; Fairwork, n.d.a; NSW Business Chamber, 2017).
The case Hollis v Vabu Pty Ltd (t/as Crisis Couriers) (2001) 207 CLR 21,reveals that presence of contract can make the court to proceed the case in an adequate manner, so that it is possible to trace the fact that whether a worker is contractor or employee (Legal Services Commission, n.d.). The court found that Vabu used to work for a courier company, who got involved in an accident with a cyclist named Hollis. Since Vabu wore uniform of the company during the accident. In addition, Vabu also had specific working hours, so the court considered him as an employee rather than an independent contractor. In the same way in the provided case, Amanda did not have any fixed working hours or any assurance of sustained workflow. Therefore, she can be considered as an independent contractor. In order to determine if an individual is a contractor or an independent, multifactor test can be used. Unlike the common law test, multifactor test uses various aspects on behalf of the jury to arrive at the final conclusion. It involves giving stress on certain aspects more focus as compared to the other aspects. Thus, the lack of work assurance and no fixed working hours can be the parameters of the multifactor test, which are often considered by the court to prove Amanda as an independent contractor (Eresources, 2001; Commonwealth of Australia, 2017).
Additionally, the case of Telum Civil (Qld) Pty Ltd v Construction, Forestry, Mining and Energy Union took place in 2013 and it explains that though an individual can be considered as a contractual employee under the acts passed by the Fair Work Commission but the decision can be changed by the court. It is also important to have full details about a particular case so that it is possible for the jury to consider about the status of an employee who has been engaged in the process of decision making. The court decided that regularity of the employment and presence of work times can make the jury consider that an individual is an employee. It means that as the contract between Amanda and Monks Pty. Ltd. clearly mentioned that there has been no such guarantee of fixed working hours so she cannot be considered as an employee (FWC, 2013). The cases including Federal Commissioner of Taxation v J Walter Thompson (Australia) Pty Ltd and Australian Air Express Pty Ltd V Langford [2005] Nswca 96 can also be used for proving Amanda to be an independent contractor (Catanzariti, 2005; BarNetwork Pty Limited, 2017).
Determining Amanda’s Status as an Independent Contractor or Employee
In the present case, it is observed that Amanda have dispute with Monks Pty. Ltd, which is engaged in producing TV programs. The company had offered Amanda to act in a new TV serial, wherein she was supposed to take the central role. Amanda had to work at all times for the TV serial.
Since, Amanda was supposed to work for unlimited time, she cannot be considered as a part-time employee. This is because part times are entitled to work for less than 38 hours on a weekly basis (Fairwork, n.d.b). It is evident that she is neither a full time employee, as the contract mentions about the fact that Amanda had no guarantee for continuing with the job. This depicts that Amanda can be considered as a contractual employee because there was no guarantee of the tenure of service. Moreover, the employment laws prevalent in Australia also states that she can be considered as an independent contractor. She is an independent contractor, as she can join other production houses as per the contract. Amanda is supposed to enter into contract of service that can make her to be considered an independent contractor (Fairwork, n.d.c; Business.gov, n.d.).
Finally the case between Telum Civil (Qld) Pty Ltd v Construction, Forestry, Mining and Energy Union took place in 2013. In the given case, Telum runs a construction business and the employees were no longer kept at work after completion of a certain construction project. The employees asked for support from the Construction, Forestry, Mining and Energy Union. The union tried its best to prove that the workers were employees of Telum. The union stated that Telum had done injustice by terminating the contract. It is because they have given service to Telum as per the contract. These employees were further defended by the Construction, Forestry, Mining and Energy Union and thereafter the court decided that presence of scheduled working hours is a criterion that makes an individual to be considered as an employee. Hence referring to the case of Amanda, it can be proven that Amanda can be considered as an independent contractor. It explains that though an individual can be considered as a contractual employee under the acts passed by the Fair Work Commission, but the decision can be changed by the court. Thus, the same applies here for Amanda, she was employed by Monks Pty. Ltd for providing services. It cannot be finally inferred that she was a casual employee (LawAnswers, 2017).
Advising Ken on the ‘Last on/First off’ Rule
Table 1: Category for Considering an Employee as Part-timer
Since, she worked more than 38 hours in a week, so she cannot be part time worker in Monks Pty. Ltd. (Fairwork, n.d.c).
Conclusion:
It can be stated that the absence of fixed working hours and no assurance can make the court to consider Amanda as an independent contractor. Thus, she can claim at court that she was independent contractor to Monks Pty. Ltd.2. Issue:
To advise Ken on whether he can sue the company on the basis of ‘last on / first off’ rule.
The rules that mention about the last on-first off are applicable in this particular case (Golden, 2017).
The case Forestry, Mining and Energy Union v Mount Thorley Operations Pty Ltd (1997) 76 IR 364 clearly explains that the ‘last on/first-off’ rule must be applied to all the employees’ disregard of any discrimination. The court clearly ordered that the employees of Mount Thorley Operations Pty Ltd are subjected to the ‘last on/first-off’ rule irrespective of the fact that whether they belong to the union. Discrimination must be prohibited on the basis of gender or other aspects such as education (Connolly & Mullins, 2009).
In the case Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, the jury found that Australian Iron & Steel Pty Ltd had dismissed certain number of female workers based on the ‘last on/first off’ rules. It is observed that the female employees were employed after the male workers. The court, however found that the female workers had to wait for longer times as compared to the male after applying for job. It made the jury to state that the applicability of ‘last on/first-off’ rule’ was not applied justifiably.
In the given case, it is observed that Bob and Ken are drivers in a mining company named Ore Ltd. Bob is more qualified than Ken, and has been serving in Ore Ltd. for the past 18months.
The laws, which exists clearly mentions that the last-on-first off is especially applicable in case of the mining industry. It is clearly depicted that the rule contract that was signed between Ken and Ore Ltd. The rule is still applicable in the mining industry and thus it is possible for Ken to easily consider that he cannot be made redundant. Thus, decision of the management to exclude Ken based on educational qualification is not justified (Connolly & Mullins, 2009).
Relevant Legal Cases
The case Forestry, Mining and Energy Union v Mount Thorley Operations Pty Ltd (1997) 76 IR 364 provides justifications for Ken. Firstly, economic downturn does not indicate that the services provided by drivers are no longer needed by the company.
Additionally, the case Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, also gives some clues regarding the applicability of ‘last on/first off’ rule pertaining to Ken, where it is clearly observed that Ken was employed. Thus on the basis of ‘last on/first off’ rule it can be said that decision of Ore Ltd. to terminate Ken prior to Bob is not ethical under the eyes of law (Connolly & Mullins, 2009). Ken is not liable to be terminated prior to Ken by referring on the basis of cases such as Ulan Coal Mines Limited v Henry Jon Howarth & Ors[2010] FWAFB 3488 and Campbell Australasia Pty Ltd v Mr Greg McNay and Mr Patrick Humphreys [2010] FWAFB 6048 (Holding Redlich, 2017).
Conclusion
The ‘last on / first off’ and the existing court cases clearly explains that Ken can easily claim that it is not justifiable to make him redundant before Bob because he (Bob) has higher educational qualification. Since, Ken has more job experience in comparison with Bob, he must be terminated later on.
References
BarNetwork Pty Limited. (2017). The federal commissioner of taxation. Retrieved October10, 2017, from https://jade.io/article/64326
Business.gov. (n.d.). Independent contractors. Retrieved September 25, 2017, from https://www.business.gov.au/info/plan-and-start/start-your-business/independent-contractors
Catanzariti, J. (2005). Employee or contractor? — an ongoing question in industrial and other contexts joe catanzariti, AU, 38-41.
Commonwealth of Australia. (2017). Employee or contractor. Retrieved September 28, 2017, from https://www.abcc.gov.au/rights-and-responsibilities/engaging-contractors/employee-or-contractor
Connolly, L. & Mullins, F. (2009). Selection criteria for redundancy: what criteria do you apply? Retrieved September 24, 2017, from https://www.claytonutz.com/knowledge/2009/march/selection-criteria-for-redundancy-what-criteria-do-you-apply
Eresources. (2001). Hollis v Vabu Pty Ltd [2001] HCA 44 9 August 2001 S149/2000. High Court of Australia, 1-60.
Fairwork. (n.d.) c. Casual employees. Retrieved September 25, 2017, from https://www.fairwork.gov.au/employee-entitlements/types-of-employees/casual-part-time-and-full-time/casual-employees
Fairwork. (n.d.). Casual, part-time & full-time. Retrieved September 25, 2017, https://www.fairwork.gov.au/employee-entitlements/types-of-employees/casual-part-time-and-full-time
FWC. (2013). Telum Civil (Qld) Pty Limited V Construction, Forestry, Mining and Energy Union (C2013/2672). Retrieved October 9, 2017, from https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb2434.htm
Holding Redlich. (2017). Establishing genuine redundancy in defending unfair dismissal claims. Retrieved October10, 2017, from https://www.holdingredlich.com/workplace-relations-safety/establishing-genuine-redundancy-in-defending-unfair-dismissal-claims
LawAnswers. (2017). When casual employment is actually permanent employment. Retrieved September 25, 2017, from https://www.lawanswers.com.au/blog/when-casual-employment-is-actually-permanent-employment/
Legal Services Commission. (n.d.). Employees and independent contractors. Retrieved September 25, 2017, from https://www.lawhandbook.sa.gov.au/ch18s02.php
NSW Business Chamber. (2017). Employee. Retrieved September 25, 2017, from https://workplaceinfo.com.au/resources/employment-topics-a-z/employee
Fairwork. (n.d.) a. Full-time employees. Retrieved September 25, 2017, from https://www.fairwork.gov.au/employee-entitlements/types-of-employees/casual-part-time-and-full-time/full-time-employees
Fairwork. (n.d.) b. Part-time employees. Retrieved September 25, 2017, from https://www.fairwork.gov.au/employee-entitlements/types-of-employees/casual-part-time-and-full-time/part-time-employees
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