Chapter 1 (Suggested short point form answers): –
Qn 1: The relevant sources of legal obligations are (1)Legislation, (2)Common Law, (3)Awards and Collective agreements and (4)ILO Conventions and you can choose any 2 to explain here – refer to my notes and textbook here.
Qn 2: An award entitlement could still be enforceable even if not inside the employment contract as it is a statutory offence to offer to pay employees lower than the minimum entitlements stated by the awards.
Qn 3: Awards and collective agreements.
(Take note that for such short answer questions, it is not required to use IRAC format to answer the question, but to directly answer the question will do here).
Chapter 2 (Suggested short point form answers): –
Qn 2: This question is a problem scenario question that required IRAC formatting and so the structure is as follows (Take note that I am writing in short point form BUT you must write in completed statements to elaborate on it in assignment and/or examination): –
“I” :- Identify the legal issues – (Explanation here:- This is to determine the relevant legal issues arising from the question asked – no description of facts and please no “copy” the question here – just merely identify and write down the relevant legal issues arising from the question here will do – ask yourself what would be the legal issue/s we need to talk based on what the question asked here:- Multi-factor test — to determine from a work contractual relationship here, whether it is likely under employment or independent contractor’s contract.
“R”:- Here, it is to relate or explain in detail about the relevant laws identified above – Multi factor test – “Control” plus other factors added together showing employment likelihood (Performing Rights Society case, Vabu cases and so on) – also explain what you mean by Control – Nature and degree of detailed control (Walter Thompson case) – the law in this case is, so long as the company or entity who hired the worker, able to control the way the worker performs his job duties, then control is satisfied. A more relaxed definition of control is seen in Zuijs case – the law here is, so long as the company or entity who hired the worker, is able to have the right to exercise control over the worker in other things, even if the entity is not able to control the way the worker performs his job, the control element is still satisfied.
( Special note:- You must not quote any facts of the cases mentioned here and you must not mention about the facts of the question here – here is purely explaining in detail the relevant laws identified here ).
“A”:- Here, it is to apply the relevant laws to the facts ( So here, we can talk about applying the relevant laws to the facts of the question ):-
First, just briefly describe and show from the facts of the question (in 1 or 2 statements here), whether there is existence of work contractual relationship here – evidence of work provided in exchange for pay from the other party or entity . Here, Dominic works for dealership from 7am to 5pm, Mondays to Fridays (evidence of work provided) in exchange, he invoices for his pay from the dealership (pay provided for work).
Then apply the multi factor test here to the facts of the question :- First, is control satisfied or existing ? From the facts that (1)Dominic expected to attend meetings to learn how to manage sales targets and to (2)participate in training to improve client service shows control by dealership and therefore, Control element satisfied.
Then, you can briefly go through the facts of the question to indicate whether there are factors indicating likelihood of employment(“E”) and/or independent contractorship(“IC”) here — Dominic as salesman (‘IC’); usually works from 7am to 5pm.. (‘E’); Invoice sent to dealer company to claim for pay (‘IC’); issue ABN number to dealer company (‘IC’); wears company shirt (‘E’); drives van to deliver parts (‘E’); allows him to use van on weekends (‘E’); he fuels the van to use for private purposes (‘IC’); dealer maintains van (‘E’); dealer expects him to attend meetings to manage sales target (‘E’/control); participate in training to improve client service (‘E’/control); Ron, same as Dominic as salesman, got long service leave (‘E’); Dominic have to take over to run spare parts department in Ron’s absence (‘E’); he pays his own tax (‘IC’); he is self-employed (‘IC’); he pays his own superannuation funds (‘IC’).
(Special note:- Please do not write in short point form like what I did above here in your assignment or exams! And remember do not mathematically write your answers! – please do not count the total number of factors here – the counting is for your own practical application of laws to know how to conclude whether it is under employment or not).
“C”:- this is the conclusion – therefore, looking at the above factors, we can say that Dominic is most likely an employee here.
“I”:- The legal issues are how the laws apply in relation to labelling of contract and multi factor test.
“R”:- please relate the laws on labelling and multi factor test, with relevant cases to be mentioned. Only laws to be explained here.
“A”:- when applying the laws to the facts, you would find that most factors pointing towards Independent contractorship and not employment relationship (No control element here too).
“C”:- Conclusion here is Sophie is an independent contractor.
“I”:- The legal issues here is “Labour for Hire” arrangement.
“R”:- Explain on the laws on labour for hire arrangement, there are 2 types, hired employees and hired independent contractor. Please elaborate on the laws here with relevant cases to be quoted. There are 2 contractual relationships to be mentioned here.
“A”:- There is contractual relationship of work between Fastworkers Ltd and workers and there is contractual relationship between Fastworkers Ltd and assigned companies BUT no contractual relationship between workers and assigned companies.
“C”:- Conclusion is yes there are 2 contractual relationship. Remember the question never ask whether there is employment or independent contractor’s contract here.
“I”:- Director having dual work status.
“R”:- explain the relevant laws here – Directors have statutory work status – to follow the duties of a director as per government law, The Corporation Act. Normally (BUT not compulsory), it is executive director that could be additionally employed, therefore another work status is to comply with Common Law duties as an employee.
“A”:- As we can see, the reply from the company is that the director was not employed.
“C”:- So, director is not an employee here and cannot claim paid annual leave.
“I”:- Is there any work contract as a volunteer here?
“R”:- there is no intention to create legal relations here and no agreement as to consideration here. So, no work contract exists and therefore a volunteer not an employee and not independent contractor.
“A”:- There is no work contract and the student is just a mere volunteer here for Australian Health Charity.
“C”:- student not employee.
“I”:- restraint of trade clause in employment contract.
“R”:- Explain the laws on restraint of trade clause here – whether former employer have proper interest to protect, whether it is reasonable between parties to have such restraint and whether it is reasonable in the community point of view. Quote some relevant cases here too – remember no state the facts here.
“A”:- (a) The contents of the restraint clause here shows that the Father Coline is restricted to work for any church for 2 years after resignation or termination of employment contract – too geographically wide – therefore very unreasonable.
(b) If the restriction is only to local area, then it might be argued that It is reasonable for former church employer as Father Coline is a leading clergyman and if he works for another local church, then worshippers may all go there and the former church employer will lose Christian tithes and funds financially.
“C”:- in (1), St. Peters Holy Church as former church employer cannot use restraint of clause against Father Coline as it is unreasonable here. In (2), The former church employer could use restraint of clause against Father Coline to restrain him to work in local area as it is found reasonable to impose such restraint clause.
“I”:- Can work rules document be implied into employment contract as a term/s to be followed on the basis of the rules being binding?
“R”:- explain the laws relating to company employer’s policy manual – whether it is express or implied into employment contract will depend on at which stage the rules were introduced into the contract. Whether express or implied, it becomes terms to be complied with so long as it is both lawful and reasonable to comply. A more detailed explanation of law is as follows :- If it is nothing more than mere administrative instructions by the employer about how work is to be done and subject to unilateral changes by the employer, then usually it shall not form as part of the terms of contract (Akmeemana case) — and such policy shall be treated as employer’s ability to make decisions concerning the running of the organisation and that employees must obey such orders provided it is both lawful and reasonable to follow whereas if such rules are introduced or brought to notice to prospective employee at time of entering into contract, it shall become part of terms of contract to follow (Secretary of State for Employment v. Associated Society of Locomotive Engineers and Firemen (No.2) case).
If a policy that includes employer obligations, it could also be treated as part of terms of contract to follow (Riverwood International case).
Remember, the factors normally to consider whether such work rules have contractual effect are as follows:- (a) Nature of policies or rules; (b) methods used to bring policies to notice of employees; & (c) the timing of bringing notice to employees, whether before or after employment contract starts.
“A”:- As the rules were emailed to the employees sporadically, we are not sure whether the work rules are brought to the notice of Sophia before or after contract of employment.
Of course, if there is a clause in employment offer of which if Sophia accepts it, and it says that the employer can vary work rules from time to time (that means the rules were introduced to the notice of Sophia before start of contract), then it shall serve as express terms to be complied, provided it is reasonable.
If it is not an express term and because the work rules seem to be unilaterally changed by the employer and such work rules were just mere instructions as to how work is done, there is a high chance that it may not be implied into the employment contract but Sophia must obey such rules as orders provided it is lawful and reasonable to comply.
And if such work rules are breached, it may not cause breach of employment contract as it is not implied into the contract as a term/s. From the facts, the work rules say no posting of any comments relating to work on internet and Sophia posted comments about the boss’s lack of hygiene. From the outset and limited facts here, it may seem correct to say that such posted comments did not relate to work and therefore no breach of such work rules (UNLESS the company usual business is related to cleanliness) and therefore also that the employment contract is not affected.
“C”:- Therefore, Sophia is in no breach of employment contract as well as no breach of such work rules.
“I”:- the laws on express and implied terms to be discussed here.
“R”:- Explain the definition and the laws on express and implied terms here – Express terms are terms that are agreed upon expressly between the parties whereas implied terms are terms implied by laws, policies, customs or facts.
Could company policies be implied into employment contract? See detailed law explanation in the previous Question 2 on “R” issue above.
As for terms implied by law, there are the Legislation and the Common Law. These are the types of terms (whether created by legislation or Common Law) similarly implied into all employment contracts. Note legislation, where worker’s compensation scheme is implied into employment contract to say that is the employer’s obligation to buy in favour of employees and note the duties of both employer and employees created by Common Law to be implied into employment contracts.
Terms implied by facts (Common Law) – A term is sometimes implied into employment contract because of the facts or circumstances – this is because of evidence showing both parties had consented to such term to be included, though they did not spell it out – Business Efficacy test – BP Refinery case – for such term to be implied, (a) it must be reasonable and equitable; (b) must be necessary to give business efficacy to contract so that no term will be implied if contract is effective without it; (c) It must be so obvious that “it goes without saying”; (d) it must be capable of clear expression; (e) it must not contradict any express term of contract.
There is also another test called Officious Bystander test from Shirlaw case – a term could be implied when (a) it is so obvious that it goes without saying; (b) so long if, when both parties were making their bargain, an officious bystander would suggest some provision to be inside their agreement and both parties would say “Oh of course”.
If a term is not necessary to the working of a contract, then it could not be implied into the contract of employment (Brackenridge case).
Therefore, normally terms implied by facts are narrow in application.
Terms could be implied by customs – all the elements mentioned in Con-Stan Industries case on page 80 to 81 of the essential textbook.
“A”:- Foster was made known after he accepts the employment offer (Induction Interview) by HR Department, that uniform wear is not compulsory – was this implied into contract as a term to follow? As we know, it must be necessary to the working of the contract, then such statement could then be implied into employment contract (Brackenridge case) – As this is about uniform wear as mere administrative instructions, therefore such cannot be a term implied by facts here. (based on Business Efficacy test).
If it is seen as work rules or company policies, because it is mere administrative instructions, it is also most likely not able to be implied into employment contract here (Akmeemana case). And such work rules could only be binding if it is found to be reasonable to follow. – Instructions from supervisor to wear uniform during any paid day of work – whether it is also reasonable and lawful or not to follow – if supervisor is able to show that it is both lawful and reasonable to follow such administrative instructions, then Foster will then have to comply with such orders then – if not followed, it could be a breach of implied term based on term implied by law – the Common law duty of employee to obey orders.
Such uniform wear statement could also not likely to be implied based on customs (Con Stan case).
“C”:- If supervisor can show that it is reasonable and lawful to wear uniform during any paid day of work, therefore failure to follow could be a breach of implied term and/or duty of employee to follow and obey orders as supervisor represents the employer in directing Foster to work accordingly.