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Introduction

This paper will examined the facts and with the use of common laws to recognize if

Johnny is an employee. Then we review if Johnny able to rely on promise made about

his ability to increase the hourly rate. We will be focused on using the control test and

multi-factors. Although there are other common-law tests such as integration test,

Australia do not generally accept such test. This is because the test required theconsideration on whether Johnny is part of Autumn Fashion and thus insufficient to

differentiate an independent contractor and employee.

Statutory provision

Section 15(1) of the Fair work Act 2009 defines an employee in its ordinary

meaning as a reference to person who usually such as an employee and does not

include a person on a vocational placement. However, this definition is insufficient to

help us too.

Control test.

The control test provides that an employee (or servant) is subject to command orcontrol of the employer (or master). InFederal Commissioner of Taxation v Walter

Thompson (Aust) Pty Ltd, the court concluded that actors are employee because the

company has exercised a detailed and extensive control over the artists during

rehearsal and actual performance.

InZujis v Wirth Brothers Pty Ltd, the court referred that the acrobat is an employee to

the circle proprietor since he was subject to the instruction of the proprietor in most

aspects of work.

Referencing the two cases above to our case, Johnny is much restricted to the Autumn

Fashions instructions even when he felt there is a better approach to it current

system. This exercise Autumn Fashions control over how Johnny can work. It would

appear that Johnny has very little or no say over how to carry out his work since his

job instructions are provided to him every day. Even when Johnny feels that his work

can be done better, he still has to follow the supervisor instructions.

Multi- factors test

The application of multi-factors test is extensive by the courts and is commonly

adopted by Australian courts too. With it together with control test, it will be clear to

determine if Johnny is an employee or a contractor.

Johnny is required to wear the safety wear, used the data collection sheets and work

allocation instructions given to him. The machinery that Johnny uses also belongs to

Autumn Fashion. Like a common employee that will uses the tools in provided for

them to do their work, this point to Johnny is an employee. Unlike case like

Australian Air Express v Langfordwhen part of the reasons that the court found

Langford was not an employee during the multi-factor test is that Langford uses his

own tools. Consider the factor that Johnny may have self funded his own licenses but

this reason is not strong to point him as an contractor since this may regards as a

worker self obtain his bachelor degree certificate.

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InHollis v Vabu, the bicycle couriers are part Vabus employee since the couriers

were not in a business himself and could not generate goodwill. Compare to our case,

there is no indication that Johnny is could be in a business himself and could generate

goodwill. However Johnny was comparing his work value and skill could have a

better-offered elsewhere.

Johnnys usual working hours from 630am to 4pm Monday to Friday did not indicate

that these are his regular working hours and days as seen for regular employees. Even

so given the terms of a causal employee, an employee may not necessary have a

regular working hours.

While it can be argued that Johnny is a contractor that is paid based on invoices he

rendered to autumn Fashion. Payment to Johnny is calculated on hourly rate and the

weight of the stock he moved. However like a casual worker and part-timer, they have

to indicate in their timesheet and submit their working hours to the management. The

invoice act as another means of indication that how a casual employee could be paid.

Johnny also invoiced the company at the end of every week, this is like a restrictedrule by the company and it also acted like a routine. It may not be a clear indication

whether there is a choice by Johnny or the day of his payment but this may be seems

that Johnny will be paid on a schedule basis like an employee.

Johnny did enjoy some employment benefits like when the warehouse is close for at

Christmas his still get paid. Although it can also be debated that he does not enjoy

personal leave or annual leave like a regular employee. However as a whole

considering all the factors, Johnny could fall under the casual employee category to

enjoy limited employment benefits and protection.

Contract

A contract is an agreement, written or otherwise, between two or more parties. It

gives rise to enforceable legal rights and obligations.

In this situation, it is a valid verbal agreement between Johnny and his supervisor.

There is present for all the elements of the contract; offer, acceptance, consideration

and intention to create legal intention. The offer for the work, acceptance made and

there is consideration of work to be done for payment and lastly there is an legal

intention since Johnny and his supervisor are not in a social or domestic relationship.

So a contract is formed.

Since it is not written in the contract, it is an oral term that Johnny is eligible to

increase his hourly rate annually. The contract is valid and will be enforceable if

contents of the contract have no present of duress, misrepresentation, mistake and

illegality body. However is maybe more difficult to prove an oral term existence

unless Johnny have a witness during his supervisor made the promise.

On the other hand, unless Johnny is an employee of the autumn fashion that is

unlikely since we have proven that he is an independent contract already. He maybe

able to apply implied terms using official bystander test for getting an annual salary

increment.

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Conclusion

The rate of casual employment in Australia is about 26%. The main difference about a

usual employee and casual employee is those causal employees have lesser protection

and lesser entitlement to their employment. Causal employees usually are doubtful

about the duration and their future employment in their organization.

While this scenario ask for the likely-hood if Johnny is to be recognized as an

employee or contractor, one should also take account that a causal employee is also an

employee of the organization.

Hence this paper concluded that Johnny is an employee and he could bring Autumn

Fashion to court in order to have the law enforce the agreement made about his ability

to increase the hourly rate annually.

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References:

FAIR WORK ACT 2009. Available at:

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s15.html

(accessed 1 February 2013).

SMa Institute of Higher Learning. (2011)Introduction to Commercial Law Singapore:

Pearson Education South Asia Pte Ltd.

Waarden N.V.D. (2010)Employment Law: An Outline 2nd Edition. Australia:

LexisNexis Butterworths.

Workplace Info New& Info for Australian HR/IR Professionals. Available at:

http://www.workplaceinfo.com.au/payroll/payments-and-expenses/casuals

(accessed 1 February 2013).

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s15.htmlhttp://www.workplaceinfo.com.au/payroll/payments-and-expenses/casualshttp://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s15.htmlhttp://www.workplaceinfo.com.au/payroll/payments-and-expenses/casuals

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