Workplace Law - Is Rebecca an Employer or Independent Contractor?

Question 1

Legal issue:

Is Rebecca an employer or independent contractor?

Relevant law

The multi factor test is the current common law test that used to determine whether a worker is an employee or an independent contractor. Steven v Brodribb sawmilling   Co Pty Ltd (1986) 63 ALR 513 (‘’Stevens v Brodribb’’)).

When applying the multifactor test the degree of control that the worker puts on the employee is examined by the courts Hollis vs Vabu (2001) 207 CLR 21 (“Hollis v Vabu”). In a situation that the principal has high degree of control over the worker then that relationship is mostly of employer and employee (Federal commissioner of taxation v J Walter Thompson (Aust) Pty Ltd (1944) 69 CLR 227). Whereas if the principal does not have control over the worker then the relationship is more of a principal and independent contractor

However although the level of control is the most prominent factor the court also considers other factors (Steven v Broadrib), hence even if the principal.

Other factors that weigh in favour of the relationship to be of employee and employer are as follows:

• The provision of tools and equipment by the principal /  worker  suggest an employee ( Hollis v Vabu)
• Worker being managed in the same way as employees suggest employment relationship.
• The hours that the worker is required to work for the employer is significant ( Stevens v Brodribb)
• The fact that the worker is not in business for themselves and are not generating good will (Hollis v Vabu (2001) 207 CLR 21(“Hollis V Vabu”).
• The worker is required to work set times ( Hollis v Vabu)
•   Where there is a clear and regular obligation to work( Sammartino v Mayne Nickless ( 2000)  98 IR 168 ( Sammartino v Mayne))

Factors that weigh in favour of the relationship being of principal and independent contractor.

• The worker being responsible for tax and superannuation suggest independent contractor Vabu v FCT (1996) 81 IR 150.
• Provisions for holidays and sick leave being determined by the worker and not paid  suggest independent contactor
• Mode  of remuneration , worker payment on submission of  invoices  will suggest an independent contractor ( Steven v Broadribb)
• The worker is in business for itself (use of an ABN number).

Application of the law

Rebeca uses the company logos in her emails and other correspondence that is owned and maintained by National cosmetic company (Hollis v Vabu) this factor indicates that she is an employee.  She has continued to do the same job in the same way and still attends the office and has a desk there and works the same hours each day (Stevens’s v Broadribb). These two factors indicates that she is an employee. Overall all these details   shows that Rebecca is not in business for herself and is not generating good will or are in contact with other businesses (Hollis v Vabu)

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