Year 10 Term 4 2015

Jobs & the Law

Nature of work and the changing work environment

“What do you do?” or “Where do you work?” – often asked when you meet someone new

The answer is often used to determine the status of the person in the community

One of the most important aspects of society regulated by law is the work environment

In most countries, the work environment has changed dramatically over the years

Employment law in 19th century as the law of ‘master and servant’ Common for employees to work very long hours

for low pay, with few or no breaks No laws against the employment of children;

exploitation was common Still some children are treated as ‘servants’

Various rules that applied to the employment situation often disadvantaged employees

The following rules often prevented injured employees suing their employer for compensation:

Doctrine of common employment• If an employee was injured while working with another employee,

the injured employee could not claim compensation

Volenti non fit injuria• The court would often find that an injured employee had

voluntarily taken on the risks associated with a work activity, so could not claim compensation

Contributory negligence• If the injured employee had contributed in any way to his or her

injuries, the law would not allow the employee to claim compensation

As society has developed, the laws of employment changed as it was realised that these rules were unfair

The old laws favoured employers over employees Now employees rights have changed, such as the right to:

A fair wage Reasonable working conditions Not be discriminated against or sexually harassed Not be unfairly dismissed

Laws have also changed to recognise changes in society, particularly in relation to family responsibilities

Employees now have the right to take parental leave following the birth of their child

Many people now work part time to balance work and family commitments

This flexibility was virtually unheard of even 20 year ago

Nature of the employment relationship Involves an employer and an employee Employer offers to hire the employee

To perform work Under a contract of service

‘employment contract between employer and employee’ (p.177) Usually in return for payment

This is a contractual relationship There is an offer and an acceptance, intention to create legal

relations and consideration from both parties

In most cases there is no doubt that someone is an employee or employer in a relationship

I am an employee of Groves/CCM, if you work at Coles you are employed by them

In other cases it is not so obvious Are the following relationships involving employment?

You hire a plumber to fix your sink You go to the hairdresser You get the newsagent to deliver a newspaper to your door everyday A football club hires a talented footballer A netball club hires a fitness instructor for a few hours each week A school uses a guest speaker

It is important to work out whether an employment relationship is evident because they have important consequences

Thinking of the example of someone working at Coles, we said that it was obvious that they are an employee.

What characteristics of them dealing with Coles make it like an employment relationship?

Why are you legally an employee, while the person who delivers milk to the store is not an employee?

Employment factors The court considers four factors when deciding whether a person is

an employee or not None of them are conclusive and each factor does not have to exist

in a given situation1. Control2. Regular payment3. Equipment provided4. Responsibility for completing work

1. Control You are expected to do what you are told at your workplace Your workplace can control what you can do (your tasks, ie.

Registers, collecting trollies, etc) Your employer can also demand that you be at work for a certain

time and can demand that you dress in a certain way

2. Regular payment You are paid according to the time you spend at work You are paid by the hour, not per trolley you return to the store or

how many customers you serve You are paid on a regular, consistent basis, not as the need arises

3. Equipment provided You aren’t responsible for using your own equipment, such as a cash

register, it is supplied for you

4. Responsibility for completing work You are personally responsible for completing your work You can’t delegate or call in others to get the work done

Betsy delivers milk to Coles Coles has limited control over Betsy’s work Can’t tell her how to do her job or what to wear The dictate how much milk they want and what brand and when Not paid according to the time spent delivering the milk – it is a fixed

fee Not using Coles’ equipment They don’t mind if she has an offsider to help her This would indicate that she is NOT an employee of Coles

Control Payment EquipmentDoes the

work personally

Plumber to fix your sinkHairdresser to cut your hairNewsagent delivers the paper each day

Football club hires a footballer

Netball club hires a fitness instructor

School uses a guest speaker

Zujis v Wirth Bros Pty Ltd (1955) 93 CLR 561 An acrobat was hired by circus operators A legal dispute arose over whether the acrobat was an employee or not Thoughts?

Control? Payment? Equipment? Personally completes work?

Result: The court found that the acrobat was an employee Zujis was an important part of the day-to-day operations of the circus For the circus to work properly, the operators needed to have a large amount of general

control and supervision over the activities The fact that the employer couldn’t control the actual acrobatic routine was not conclusive

Case Example

Types of employee Permanent

Regular hours Full time = 38hrs/week Sometime industries pay extra for overtime Permanent Part-Time workers will work <38hrs/week Advantages:

Entitled to paid leave Annual, sick, parental, carer’s leave, etc

Access to unfair dismissal protections

Casual/Non-permanent Irregular and uncertain hours More than 2,000,000 Australians employed casually Not entitled to paid leave Advantages:

High hourly rate of pay (about 20-25% higher) To compensate for less hours

Flexibility, but lack of job security

Legal consequencesObligations on employersThere are a number of legal obligations employers must meet: Accounting obligations Vicarious liability obligation Obligation to provide a safe working environment Obligation to observe employment laws Obligation to comply with the employment contract

Accounting Obligations When an employment relationship exists,

the law imposes obligations on the employer (in regards to the employee): Deducting tax from the employee’s wages Contributing to their superannuation

(recent changes) Paying an insurance premium in case the

employee is injured at work (workers’ compensation)

Paying payroll tax, depending on how many people the company employs

Criminal offence under federal tax laws to not make these deductions

Year Rate1 July 2012 9.00%1 July 2013 9.25%1 July 2014 9.50%

Current Rate 10.00%1 July 2016 10.50%1 July 2017 11.00%1 July 2018 11.50%

1 July 2019 and onwards

12.00%

Vicarious Liability Obligation An employer is liable for the actions of an employee, provided their

actions are in the scope of their employment This is called vicarious liability The main argument in court is usually whether the employee who

caused the injury was acting within the scope of his or her employment or not

If so, the employer will have to compensate the plaintiff If not, they probably won’t have to

Facts: A dry-cleaning business hired an employee to take orders and operate the cleaning

equipment The plaintiff handed the employee expensive clothes to be dry-cleaned The employee ran off with the clothes The plaintiff sued the employer, relying on principles of vicarious liability

Issue: Was the employee, by doing what he did, acting within the course of doing something

that he was employed to do when he stole the clothes?Verdict & Reasons:

The court found that the employee was acting within the scope of his employment It was in the course of doing something that he was employed to do that he stole the

clothes The principle of vicarious liability was applied in this case to make the employer

responsible for the actions of the employee

Morris v CW Martin and Sons [1966] 1QB 716Case Exam

ple

Obligation to Provide a Safe Working Environment Until 2012 Qld had the Workplace Health and Safety Act 1995 (Qld) From 1 January 2012 we now have the Work Health and Safety Act

2011 (Cth) Moved from state legislations to a federal legislation Section 19 of the Act indicates that employers need to ensure the

safety at work of each employee and to make sure the safety of others is not affected by the manner in which the employer conducts the business

Facts: A worker was injured when he was requested by his employer to replace a main

electrical box and point of attachment for a power cable feeding the premises He fixed the main box but could not reach the cable He shifted the ladder to the back of the premises to climb on the roof and walked to the

front of the house to find a better way to attach the cable He could see part of the roof was covered by a different coloured sheet than other parts As he was walking on the lighter coloured roof sheet it gave way and he fell through it

Issue: Had the employer complied with their obligation to provide a safe system of work for

their employees?Verdict & Reasons:

The tribunal found the employer had breached its obligations under the Act It was fined $38,000, after the tribunal took into account the company had since

changed its practices and had helped the injured worker

Waltham v Cairns Synergy Electrical Pty Ltd [2007] QIC 19

Case Example

Obligation to Observe Employment Laws Employers are required to provide annual leave, parental leave and

long service leave Employees are entitled to be paid in accordance with any award that

applies to them, or with any agreement that they have made Male and female employees are legally entitled to the same wage for

work of equal value Parents can take leave when a new child is born

Obligation to Comply with the Employment Contract Various common law principals will be ‘implied’ into an employment

contract In the past courts have found employers in breach of an employment

agreement for conduct such as making unjustifiable complaints against workers, harassing employees, or refusing to investigate reasonable grievances that an employee has raised with them

Where no Employment Relationship Exists Time to consider the consequences if no employment relationship

exists The person (hirer) who hires the other person (independent

contractor) has fewer legal obligations in respect of the person Eg. The hirer is not required to deduct tax from the money owing to

the contractor, they are not required to make superannuation payments and they are not required to offer sick leave (or other leave)

Hirer is responsible for the consequences if they direct the contractor to perform an act which results in injury to another person