Ã¯Â¿Â½PAGE Ã¯Â¿Â½ Ã¯Â¿Â½PAGE Ã¯Â¿Â½2Ã¯Â¿Â½ Australian Law
Running Head: AUSTRALIAN LAW
[Name of Writer]
[Name of Institution]
In this paper we will determine following statement in light of Australian law "whether a work relationship is one of employment or not is sometimes a matter of impression". It is unfortunate that this is so. For this purpose in this paper I will conclude the paper showing my extent of agreement with following statement I will tell the reader that to what extent I do agree with this statement. I will focus on below mentioned some points to determine the statement and those points are 1) there is no simple formula for determining whether a work relationship is one of employment or not, thus a number of tests (or versions of them) have been applied. 2) The right to control has been central but in recent times control has become decentred in favour of the holistic approach.
3) The resulting uncertainty can be unfortunate for a number of reasons.
Before I start deterring the statement I think it would be better to understand the status of employees (www.legislation. sa.gov). Are they employees, fixed term contractors, independent contractors, temporary employees, or indeed, even probationers in disguise? The dilemma continues - what category do employers place employees under and what is more, is the status of employees fair and legal? The employer says the working relationship is that of an independent contractor, and such persons don't qualify for annual leave or sick leave, any 13th Cheque and any pension or medical aid. Or he says the relationship is that the employee is a 'temp.' (Supreme, 1970) The employer is the agency from whom the employee is hired. And they must provide annual leave etc. Firstly, it must be understood that this dilemma applies only to those persons who earn below the threshold income of R115572-00 per annum (www.legislation. sa.gov). There is as yet no definition of an employee or no presumption as to who is an employee in the Basic Conditions of Employment Act or the Labour Relations Act, applicable to persons earning more than the threshold amount (Porter, 1989). There are, however, other tests such as the dominant impression test and other methods that can be applied to determine whether a person of that category is an employee or not (http: //www. austlii.edu.au). Persons earning below the threshold amount may, if necessary, approach the CCMA for an advisory award as to whether that person is an employee or not (Porter, 1989). In other words, to establish whether the relationship is a Contract of Employment or a Contract of Work. The 'temp' employee - what it should be:
The 'temp' is normally a person who is employed by a labour broker or agency, but can be a person employed direct by the employer, bypassing the agency or labour broker. The basis of the employment relationship is that the agency hires out the services of the 'temp' to a third party for a fee (http://www.experiencefestival.com). On a monthly basis, the agency invoices the third party for the services rendered by that temp, the third party pays the agency and the agency pays the 'temp' the previously agreed salary (Supreme, 1970). Obviously, the fee that the agency charges the third party is far higher than the salary that the agency pays to the 'temp'. (Legal, 1903) On average it is double or more, or at least 75% higher. The concept of the 'temp' is supposed to be applied in those instances where the third party requires an employee only on a temporary basis (to fill in for another employee who is on maternity leave, for example) or requires temporary staff to help out over a seasonal busy period such as the Christmas season, or perhaps for shorter periods such as stock take (http://www.austlii.edu.au). The person who accepted 'temp' work is usually the sort of person who does not want permanent employment, but prefers to work on the basis of getting 'temp' assignments, and working for the third party for a month here, 2 months there, and so on with the advantage of being able to spend a month or two, or perhaps 6 weeks at home between assignments (Dennis, 1996, 13-22). Thus the relationship between the agency and the temp is usually a Temporary Contract of Employment, and the relationship between the agency and the third party is a Contract of Work (Legal, 1903). The termination of the assignment, or the completion of the assignment, will automatically bring about the termination of the Temporary Contract of Employment, and with each new assignment a new Temporary Contract of Employment is entered into between the 'temp' employee and the agency (Sawer, 1975).
In conclusion I would rather say that I agree that work relationship is not one of the employments and of course sometimes is a matter of impression. Similarly, a new Contract of Work is entered into between the agency and the third party for each new assignment. Thus, there is no employment relationship between the worker and the third party, except perhaps for an 'implied' contract of work - the third party will obviously instruct the 'temp' in what work is required, how it is to be done, standards of quality and quantity required, and so on (Sawer, 1975). That is the true concept or the genuine concept of the 'temp'. There are many very genuine agencies and labour brokers out there who provide much needed employment, fairly and squarely - the problem does not lie with the agencies or labour brokers (Ellinghaus, 1989, 70-89). The problem also does not usually lie with those employers who make genuine and sincere use of the services offered by agencies and labour brokers. The problem lies with a different breed of employer altogether.
Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179 at 184.
South Australia: Workers Rehabilitation and Compensation Act 1986 Industrial Relations: Gazette 5.3.2002 p1141, Accessed on 2010-04-08 http://www.legislation. sa.gov.au/LZ/C/A/WORKERS%20REHABILITATION%20AND%20COMPENSATION%20ACT%201986.aspx
South Australian Consolidated Acts Accessed on 2010-04-09 from: http://www. austlii.edu.au/au/legis/sa/consol_act/fwa1994114/
Constitution Act 1982 - Equalization and equal opportunity: A Wisdom Archive on Constitution Act 1982 - Equalization and equal opportunity Accessed on 2010-04-09 from: http://www.experiencefestival.com/constitution_act_1982_-_equalization_ and_equal_opportunity
FAIR WORK ACT 2009 (NO. 28, 2009): Accessed on 2010-04-09 from: http://www.austlii.edu.au/au/legis/cth/num_act/fwa2009114/
Dennis C. Pearce and R. S. Geddes, (1996) Statutory Interpretation in Australia (4th edition, Butterworths: Sydney), p. 3.
M. Ellinghaus, A. Bradbrook and A. Duggan (eds.), (1989) the Emergence of Australian Law (Butterworths: Sydney at 70.
G Sawer, (1975) "The Western Conception of Law" International Encyclopedia of Comparative Law (Tubingen, The Hague), Volume II, Chapter 1.
Legal Procedure Act 1903, extended by the Supreme Court Civil Procedure Act 1932.
Supreme Court Act 1970 (NSW) ss 57-63; Law Reform (Law and Equity) Act 1972 (NSW).