Employment Law

Assignment Question 1

a) Advise Lou whether

• Jim could be regarded as an employee, despite their written agreement.

Issue: Whether Jim could be regarded as an employee, despite of hi agreement with Lou, who is the owner of a tea wholesaling company.

Rule: There are five Common law test developed by judges to ascertain if a person is an employee under contract of service. The contracts test looks at the degree and nature of contract to see if a company is an employer. Control is determined by whether there is detailed and extensive contract (Federal Commissioner of Taxation v J Walter Thompson (Australia) Pty Ltd [1944] HCA 23; 69 CLR 227), and whether the person has the right to control. an employer will have such right, although

The courts can look at evidence of intention by one or other of the parties that the statement should be part of the contract. For example if there is a written contract in accepting the offer of employment, employer is obliged to comply with the obligation the policy imposed on it. (Riverwood International Australia Pty Ltd v McCormick - [2000] FCA 889 )The nature of terms of contract may be either express or implied. Express term can be parties agreeable to either verbal or written form and are that 's which the parties to employment relationship have actually discussed on which they have agreed. (Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120). When the agreement is written, it carries more weight than parole evident rule compared to oral. Terms implied by law are terms which implied are implied into the contract of employment through the operation of law. under terms implied by law, Three test developed are the business efficacy test on reasonableness and efficacy of the business term (The Moorcock (1889) 14 PD 64 ), the officious bystander test, on suggestion of thrid parties suggesting terms that are reasonable and obvious (Shirlaw v Southern Foundries [1939] 2 KB 206 ). While under custom practice, the court will be looking at the common practice that has been long practiced in the

Failing to comply, may be considered as a breach of contract. It may leads to damage due to negligence in the common law. The High Court in O’Connor v Commissioner for Government Transport (1959) 100 CLR 225 at 229 imposes upon every employer, a duty to take reasonable care for the safety for employees:

“[B]y providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to secure him from danger of injury...The standard of care for an employee’s safety is not a low one.” Under reasonable test, it is also the duty of an employer to avoid foreseeable risk or injury by circumstances. it commonly supported that such injury or risk to employee was a option that occurred to a reasonable employer. in addition, the duty to take reasonable care also extends to harm that may occur due to inattention or misjudgement by an employee carrying out their work duties, as was held by the High Court in Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR