Year 10 Legal Studies, Term 4

1. Year 10
Term 4 2015
Jobs & the Law

2. 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

3.  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’

4.  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

5.  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

6.  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

7. 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

8.  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

9.  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

10.  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?

11. 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 situation
1. Control
2. Regular payment
3. Equipment provided
4. Responsibility for completing work

12. 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

13. 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

14. 3. Equipment provided
 You aren’t responsible for using your own equipment, such as a cash register,
it is supplied for you

15. 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

16. 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

17. Control Payment Equipment
Does the work
personally
Plumber to fix
your sink
Hairdresser to
cut your hair
Newsagent
delivers the
paper each day
Football club
hires a
footballer
Netball club
hires a fitness
instructor
School uses a
guest speaker

18. 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

19. 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

20.  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

21. Legal consequences
Obligations on employers
There 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

22. 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 Rate
1 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%

23. 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

24. 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 716

25. 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

27. 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

28. 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

29. 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

30. 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