Labour Law Independent Business

Question: Discuss about the Labour Law for Independent Business. Answer: 1. Is Maisy an employee or another type of worker Issue Maisy had been hired by Technicalities Ltd., a labour hire company. After hiring Technicalities Ltd. placed Maisy with Innovative Storage (IS), who is a client of the Technicalities Ltd. Rule It is known that an employee is a person who has been hired by a company to provide service to that particular company on a regular basis in exchange for a monetary consideration and does not provide any such services on behalf of any independent business. The contract for the employment can be either in express or implied form, written or oral with all the rights and duties mentioned in it (Fairwork, 2016). There is a contract between the Technicalities and Maisy at the time of hiring her which consists of the duties and obligations of the parties to the contract. The control test can be used in this case. It is the case where by using common law rules, it can be determined whether any relationship between the worker and the concerned firm exists or not. Under this test, the employer possesses the right to direct the employee for what to do, and where to do the job. To understand the whether a person is an employee or an independent worker, it is better to take a multi factor test. The factors that are included in this test are: Control over the task performed- if controlled by the company, it is an employment. Tools ownership- if owned by workers, than it is independent contractor Wages paid- if paid as per task indicates independent worker Work hours- the standard hours determines employment Duration of contract- if unknown indicates employment Freedom of working for others indicates independent contractor. Tax deduction by the employer indicates employment Ability to delegate work indicates independent contractor. Liability for own work indicates independent contractor. Application In this case, Maisy is an employee of the Technicalities Ltd. This is because; she has been hired by the Technicalities Ltd. to provide services to the company. The service that she has to provide is to work for the client that the Technicalities have been providing to its employees. It is, therefore, determined by the control test that Maisy is the employer of the Technicalities and there is a relationship of employer and employee existing between her and the said firm, and also the concerned firm has placed her with the IS and directed her about the work she has to do and all. This can be made more specific by applying the multi factor test. Maisys work is control by the company that indicates employment. The tool used by her is owned by the company. Duration of the contract between her and Technicalities is also unknown which leads to employment. She did not even have the authority to delegate any work. Therefore, she is an employee. There are also some facts that state that she i s an independent worker as she herself is paying the tax. But there is nowhere mentioned that she is paid as per the work like an independent contractor. Conclusion Maisy is an employee of the Technicalities Ltd. and she is bound to provide services according to the work given to her by Technicalities. She may be confused with an independent contractor as an independent contractor get paid as a freelance as per the completion of the task. An independent contractor take the liability of own work and has the authority to delegate work. Maisy does not have any such right. Hence, she is an employee of Technicalities Ltd. Assuming Maisy is an employee, who is Maisys employer, Technicalities or IS? Issue Technicalities asked her to register an Australian Business Number as it is required by them to pay her a flat hourly rate for all the hours she has been working by not infringing any laws about the penalty rates. Although she worked according to the direction as given by the Innovative Storage on a daily basis, Technicalities was paying her for the work. Rule Any organization, government entity, agency, institution, company, small business, professional services firm, nonprofit association, stores or individual who gives employment to any person to work for that particular place is called an employer. In exchange of the work or services provided by the employee to the organization, the employer pays consideration to the employees which may include salary, an hourly wages and all other benefits that the employees have the right to get. The employers also offer the employees a complete package of benefit like health insurance, leaves etc. Application Here in this case, the Technicalities Ltd.is the employer of Maisy. This can be found in the case itself that Technicalities Ltd is the company who is hiring her to work for them. The Technicalities pay her with a flat hourly rate of payment for all the hours she is working. Therefore, it is clear from the statement that the Technicalities is paying the salary to Maisy. Although she was asked to work with the Innovative Storage and was working as an independent contractor, Technicalities was paying the salary. Therefore, the Technicalities Ltd. is the employer. Conclusion It is known that any organization or agency, or institution gives employment or hires any person for doing the work as prescribed by the organisation, it is called to be an employer. The Technicalities is a labour Hiring company, it has hired Maisy and was placed with Innovative Storage, which is the prescribed work for Maisy by the Technicalities. Therefore, the Technicalities Ltd is the employer in this case. Assuming Maisy is an employee, has Maisys employer breached any contractual duty owed to her? Issue Maisy had an accident in the workplace as she happened to be slipped and fell down from some stairs while carrying some office equipment, due to spill. She had got injuries and took two weeks off and the medical expenses were reimbursed by the Innovative storage as asked by her. She applied for a job but did not get any information regarding the position by the IS. Rule The Fair work Act 2009 and the Fair Work Regulations 2009 are the legislations that govern the employee and employers relation in Australia (Austii, 2016). This case is also governed by the Fair Work Act 2009 (Legislation, 2016). The employers are bound to follow the National Employment Standards (NES) which has also been mentioned in the Fair Works Act, (Legislation, 2016). The National Employment Standards are the 10 minimum employments that should be provided to all the employees by the employer. The 10 National employment standards entitlements are: Maximum weekly hours Requests made for flexible working arrangements. Parental leave and related entitlements, (Ieuvictas, 2016). Annual leave Personal or careers leave and compassionate leave Community service Leave (Awu, 2016). Long service Leave Notice for Termination and redundancy, (Fwc, 2016). Public holidays (Fairwork, 2016). The employer should provide Fair Work Information Statement which can be avail from the Fair Work Ombudsman to all the employees who are new comers to the organization. The Work Information Statement contains all the information about the- Modern awards Agreement making The National Employment Standard Workplace rights and freedom of association The right of entry The termination of the employment Individual flexibility arrangements Any transfer of business The role of the Fair Work Ombudsman The Role of the Fair Work Commission (Fwc, 2016). But in this case only the entitlement of getting the annual leave, medical expense, redundancy and the duty of care is applicable. Annual leave- an employee is entitled to get an annual paid leave for up to four weeks and an additional leave for a week as requested by the employee. Medical expense- the employers are bound to take care of the health and safety of all the employees. The employers have the obligation to take care of the medical expenses and provide all the facilities that is needed by any of the employee. Notice for termination and redundancy- for terminating any employee from the service, the employer should provide a notice of 4 weeks before the termination or redundancy. Any employee who is above 45 years of age or have provided service to the organization for more than 2 years should be provided with an additional week of notice including the four weeks. An employer is also liable to the duty of care. The duty of care is the term that is used in law of tort that indicates the condition when a person is liable. Duty of care is nothing but to take care and prevent a foreseeable harm that can cause to a person. It is also termed as Negligence in tort. If the claimant proves that the defendant has breached the duty of care by not taking any reasonable step to prevent the injury, the defendant will be liable to compensate the claimant. Application Here Maisy was not getting any paid leave even if she takes any sick leave or carers leave. The employer is bound to provide her with paid leave for four weeks in a year. The Technicalities Ltd. being the employer should look into the matter. The Technicalities should have followed the National Employment standards. But it is not following any standard. It is not even providing the Fair work Statement Information to its employee which is a breach according to the legislation of the Fair works Act 2009. She even paid the taxation for her salary and also contribute for the superannuation. But this is the responsibility of the employer to provide the superannuation. The Innovative Storage is also responsible as they have not provided any kind of information regarding any application made for any other position. Though they have paid her for the lack of information, she was not getting any further work by both the Innovative storage and her employer the Technicalities ltd. Before the red undancy made by the Technicalities, the employer should have provided Maisy with a notice for a period of four weeks prior to the redundancy. The IS and Technicalities are responsible for the breach of duty of care that has been caused to her. The IS should have prevented the harm and injury that has caused to Maisy as it was foreseeable and could have been prevented. The IS could have taken proper step to clean and mopped the oil properly so that no one slips from the stairs because of the oil. Conclusion Therefore, the employer has done breach contractual duty towards Maisy as no information regarding the pros and cons for applying for other position in the IS was provided in the contract of her employment by the Technicalities Ltd. and also a breach of duty of care has been done by the employer for which it is liable to compensate Maisy for the negligence which caused injury to her and she was forced to take leave for two weeks. Reference Austii. (2016). Fair Work Act. Retrieved October 19, 2016, from austii.edu.au: www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114 Awu. (2016). National Employment standards. Retrieved October 19, 2016, from awu.net.au: https://www.awu.net.au/national-employment-standards Fairwork. (2016). Contractors and Employees. Retrieved October 19, 2016, from fairwork.gov.au: www.fairwork.gov.au Fact sheets Rights obligations FAIRWORK. (2016). Fair Work Ombudsman. Retrieved from fairwork.gov.au: https://www.fairwork.gov.au/Dictionary.aspx?TermID=2027 Fairwork. (2016). National Employment Standards. Retrieved October 19, 2016, from fairwork.gov.au: https://www.fairwork.gov.au/Dictionary.aspx?TermID=2027 Fwc. (2016). Fair work commission. Retrieved October 19, 2016, from fwc.gov.au: www.fwc.gov.au About us Fwc. (2016). National Employment Standards. Retrieved October 19, 2016, from fwc.gov.au: www.fwc.gov.au Minimum wages conditions Ieuvictas. (2016). The National Employment Standards. Retrieved October 19, 2016, from ieuvictas.org.au: www.ieuvictas.org.au/files/8613/4214/4413/nes.pdf PDF file Legislation. (2016). Fair Work Act 2009. Retrieved October 19, 2016, from legislation.gov.au: https://www.legislation.gov.au/Details/C2014C00031 Legislation. (2016). Fair works Act. Retrieved October 19, 2016, from legislation.gov.au: https://www.legislation.gov.au/Details/C2012C00483