Employment law : concepts and cases [4th edition.] 9780409344707, 0409344702

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Employment Law Concepts and Cases 4th Edition

Employment Law Concepts and Cases 4th Edition

Natalie van der Waarden LLB (Adel), BEc (Adel), MIR (WAust) Senior Lecturer, Murdoch Law School, Murdoch University

LexisNexis Butterworths Australia 2018

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN:

van der Waarden, Natalie. Employment law: concepts and cases. 4th edition. 9780409344691 (pbk). 9780409344707 (ebk).

Notes: Subjects:

Includes index. Labor laws and legislation — Australia. Labor laws and legislation — Australia — States.

© 2018 Reed International Books Australia Pty Limited trading as LexisNexis. Previous edition: Employment Law — An Outline (2004) is a successor to Outline of Employment Law, Nii WallaceBruce, 2nd ed, 1999. Second edition 2010 (reprinted 2013). Understanding Employment Law: Concepts and Cases, 3rd edition 2014 (reprinted 2014 and 2016). This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Adobe Garamond, Gotham. Printed by Griffin Press, Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface Employment Law: Concepts and Cases assists tertiary business and humanities students learning about employment law in Australia. The case law and legislation this book describes is especially helpful to those who will work in human resource management, employee relations and related areas. An emphasis is on key concepts, and cases that exemplify those concepts. Fundamental common law and legislative principles making up employment law are discussed by looking at selected cases and parts of relevant statutes. Cases are summarily outlined to highlight major issues, and legislation is concisely described to focus on specific rights and obligations. This approach aims to create an awareness of significant aspects of employment law without excessive reference to detail. To further support students, short review questions are posed at the end of each chapter. Many of these questions encourage problem-based learning. The new edition has a rearrangement of its 12 chapters to better cover the essential areas of employment law in Australia, with a separate chapter on statutory job protections. It updates case law and legislation simply and briefly, explaining changes and developments in the law that form a central part of the current employment landscape. Natalie van der Waarden October 2017

Table of Cases References are to paragraph numbers

A Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215 …. 2.19, 2.24 ACE Insurance v Trifunovski [2013] FCAFC 3 …. 2.26 Adami v Maison De Luxe Ltd (1924) 35 CLR 143 …. 6.21 Adamson v New South Wales Rugby League Ltd (1991) 38 IR 427 …. 3.51 Addis v Gramophone (1909) AC 488 …. 7.1 Adelaide Hebrew Congregation v Engel [2007] SADC 23 …. 2.69 Aerial Taxi Cabs v Lee [2000] FCA 1628 …. 3.55 Akmeemana v Murray [2009] NSWSC 979 …. 3.63 ALDI Foods Pty Ltd v Transport Workers’ Union of Australia (2012) FWAFB 9398 …. 10.11 Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 …. 1.26 Amcor v Construction, Forestry, Mining and Energy Union [2005] HCA 10 …. 6.46 Andersen v Umbakumba Community Council (1994) 126 ALR 121 …. 6.7 Anderson v Sullivan (1997) 78 FCR 380 …. 5.9 Andreevski v Western Institute Student Union Inc (1994) 58 IR 195 …. 2.74 Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 …. 5.23, 5.39 Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 636 …. 11.11, 11.15, 11.18 — v Wardley (1980) 142 CLR 237 …. 7.24 Associated Dominions Assurance Society Pty Ltd, Re (1962) 109 CLR 516 …. 6.36, 6.52

— v Andrew (1949) 49 SR (NSW) 351 …. 5.35, 5.40 Astley v Austrust Ltd (1999) 197 CLR 1 …. 4.21 Attwood v Lamont [1920] 3 KB 580 …. 3.56 Aurizon Operations Ltd, Re [2015] FWCFB 540 …. 10.16 Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1991) 40 IR 303 …. 11.27 Australian Air Express v Langford (2005) NSWCA 96 …. 2.21 Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65 …. 11.21 Australian Builders’ Labourers’ Federated Union of Workers (WA Branch) v JCorp Pty Ltd (1993) 48 IR 452 …. 11.26 Australian Competition and Consumer Commission v CG Berbatis Holdings (2003) 214 CLR 51 …. 3.43 Australian Iron and Steel v Banovic (1989) 168 CLR 165 …. 7.25 Australian Manufacturing Workers’ Union v Wedderburn [2016] FWC 2260 …. 10.14 Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 …. 2.12, 2.20, 2.31, 2.32, 2.34 Australian National Hotels Pty Ltd v Jager (2000) 9 Tas R 153 …. 6.10 Australian Telecommunications Commission v Hart (1982) 43 ALR 165 …. 5.4 Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 …. 4.2 Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70 …. 7.16 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Western Australian Branch) v Midland Brick Company Pty Ltd (2002) WAIRC 06902 …. 4.27 AWA Ltd v Koval (1993) 35 AILR 169 …. 5.19 B Baiada Poultry v R [2012] HCA 14 …. 12.8 Balfours Bakery v Cooper [2011] FWAFB 8032 …. 6.42 Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 …. 2.16

Barac (t/as Exotic Studios) v Farnell (1994) 125 ALR 241 …. 3.44 Barthorpe v Exeter Diocesan Board of Finance [1979] ICR 900 …. 2.70 Bartlett v ANZ [2016] NSWCA 30 …. 6.25 Barto v GPR Management Services Pty Ltd (1991) 105 ALR 339 …. 3.5 Bauman v Hulton Press [1952] 2 All ER 1121 …. 4.8 Bearing Point Australia v Hillard [2008] VSC 115 …. 6.28 Beck v Darling Downs Institute of Advanced Education (1990) AILR 270 …. 2.78 Beeton & Co Ltd, Re [1913] 2 Ch 279 …. 2.71 Bell v Lever Bros Ltd [1932] AC 161 …. 5.13, 5.33, 5.36 Bendigo TAFE v Barclay [2012] HCA 32 …. 7.16 Bents Brewery v Hogan [1945] 2 All ER 570 …. 5.8 Bertram v NTP Forklifts [2013] FWC 6530 …. 6.13 BGC Partners v Hickey [2016] NSWSC 90 …. 6.8 Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 …. 3.22, 3.26 Birch v The University of Liverpool [1985] IRLR 165 …. 6.4 Birrell v Australian National Airlines Commission (1984) 9 IR 101 …. 6.13 Blackmagic Design Pty Ltd v Overliese [2010] FCA 13 …. 5.39 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 …. 5.15, 5.18, 5.21 Board of Bendigo Regional Institute v Barclay (2012) 248 CLR 500 …. 7.16 Boston Deep Sea Fishing & Ice Co v Ansell (1888) 39 Ch D 339 …. 5.17, 6.26 Bowker v DP World [2015] FWC 7312 …. 7.29 BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266; 16 ALR 363 …. 1.18, 3.70, 6.10 Brackenridge v Toyota Motor Corp Australia Ltd (1996) 67 IR 162 …. 3.70 Bradley v Bradley [1978] AR (NSW) 94 …. 2.73, 3.20 Bradshaw v Commissioner for Public Employment (1991) 58 SAIR 336 …. 4.16 Briggs v AWH [2013] FWCFB 3316 …. 5.9, 5.10 British Celanese Ltd v Moncrieff [1948] 2 WLR 44 …. 5.28

British Syphon Co Ltd v Homewood [1956] 1 WLR 1190 …. 5.25, 5.29 Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2009] NSWIRComm 154 …. 12.10 Brown v Public Service Board of NSW (1992) 34 AILR 62 …. 6.21 Buckley v Tutty (1971) 125 CLR 353 …. 3.51 Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 37 IR 380 …. 2.21, 2.54, 2.65, 2.66, 11.18, 11.28 Bunge (Australia) Pty Ltd v Mallard (1982) 41 ALR 223 …. 6.5 Burge v NSW BHP Steel (2001) 105 IR 325 …. 6.22 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422 …. 1.18, 1.21, 3.68, 4.2, 4.15, 6.10, 7.4 C Cactus Imaging v Peters (2006) 71 NSWLR 9 …. 3.53 Cam and Sons Pty Ltd v Sargent (1940) 14 ALJ 162 …. 2.75 Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 …. 3.10 Castledine v Rothwell Engineering Ltd [1973] IRLR 99 …. 4.43 Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] 1 All ER 491 …. 2.56 Chakki v United Yeast Co Ltd [1982] 2 All ER 446 …. 6.40 Chappell v The Times Newspapers Ltd [1975] 2 All ER 233 …. 5.8 Chugg v Pacific Dunlop (1990) 170 CLR 249 …. 12.16 City Motors (1981) Pty Ltd v Commissioner of State Taxation (WA) (1993) 26 ATR 291 …. 2.32 Civil Aviation Authority v Jorm (1994) 56 IR 89 …. 4.14 Clark v Evans (1990) 32 AILR 352 …. 2.73 Clouston & Co Ltd v Corry [1904–1907] All ER Rep 685 …. 6.21 Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83 …. 5.7 Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647 …. 4.6, 4.9 Commercial Bank v Amadio (1983) 151 CLR 447 …. 3.43 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 …. 4.4, 4.5, 5.16

— v Finance Sector Union (2002) 190 ALR 497 …. 6.47 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; 92 ALR 193 …. 3.5 Concut Pty Ltd v Worrell (2000) 176 ALR 693; 75 ALJR 312 …. 5.16, 5.17, 6.26 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 64 ALR 481 …. 1.20, 3.67 Construction, Forestry, Mining and Energy Union v Asurco Contracting [2012] FWA 6152 …. 8.15 — v BHP Coal Pty Ltd [2014] HCA 41 …. 7.16 — v Boral Resources [2014] VSCA 348 …. 11.12 — v Endeavour Coal Pty Ltd [2015] FCAFC 76 …. 7.16 — v Jeld-Wen Glass (2012) 213 FCR 549 …. 8.18 — v John Holland [2015] FCAFC 16 …. 10.9 — v Tahmoor Coal (2010) 195 IR 58 …. 10.12 — v Wagstaff Piling Pty Ltd (2012) 203 FCR 371; [2012] FCAFC 87 …. 4.29, 5.10 Crofter Hand Woven Harris Tweed Company Ltd v Veitch [1942] AC 435 …. 11.14, 11.18 Cronin v Department of Agriculture, Fisheries and Forestry [2015] QIRC 178 …. 5.40 Csomore v Public Service Board of New South Wales (1987) 10 NSWLR 587 …. 4.15 Cundy v Lindsay [1878] 3 App Cas 459 …. 3.36 Currie v Misa (1875) 10 Ex 153 …. 3.21 Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 …. 3.57, 4.7 Czatyrko v Edith Cowan University [2005] HCA 14 …. 4.34 D Daily Cleaning Service Pty Ltd v Pavlovic (1992) 34 AILR 359 …. 5.18 Dalrymple v Dalrymple (1811) 161 ER 665 …. 3.20 Danevski v Guidice [2003] FCAFC 252 …. 2.21 David Jones Ltd v Federated Storemen and Packers Union of Australia (1985)

14 IR 75 …. 11.11 Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 …. 11.9 Davies v Presbyterian Church of Wales [1986] 1 WLR 323 …. 2.69 De Francesco v Barnum (1890) 45 Ch D 430 …. 3.31 Deatons v Flew (1949) 79 CLR 370 …. 2.2 Del Casale v Artedomus (2007) 73 IPR 326; [2007] NSWCA 172 …. 3.49, 5.37, 5.39 Delaney v Staples [1992] 1 AC 687 …. 6.30 Devonald v Rosser & Sons [1906] 2 KB 728 …. 4.8, 4.20 Deyong v Shenburn [1946] KB 227 …. 4.40 Dietrich v Dare (1979) FCA 47 …. 3.20 Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 …. 11.17 Donoghue v Stevenson [1932] All ER Rep 1 …. 4.21 Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633 …. 4.10 Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 …. 2.46 E Edwards v West Herts Group Hospital Management Commission [1957] 1 All ER 541 …. 4.40 Egg Stores Ltd v Leibovici [1977] ICR 260 …. 6.38 Electrolux Ltd v Hudson [1977] 3 Fleet Street Patent Law Reports 312 …. 5.26 Elwin v Edwards Motors [2015] FCCA 334 …. 7.13 Endeavour Coal v Association of Professional Engineers (2012) 206 FCR 576 …. 10.12 Endeavour Energy v CEPU [2012] FWA 1809 …. 5.9 English v Rogers [2005] NSWCA 327 …. 4.31 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; 187 ALR 92 …. 2.69 Erskine v Steri-Flow Filtration Systems [2013] FWCFB 1943 …. 7.7

F Faccenda Chicken Ltd v Fowler [1986] 1 All ER 617 …. 5.37 Fair Work Ombudsman v Australian Sales and Promotions [2016] FCCA 2804 …. 2.36 — v Centennial Financial Services (2010) 245 FLR 242 …. 2.38 — v — [2011] FMCA 459 …. 2.34 — v Contracting Solutions Australia [2013] FCA 7 …. 3.29 — v Quest South Perth [2013] FCA 582 …. 2.39 — v — [2015] HCA 45 …. 2.37 Farrow v Wilson (1869) LR 4 CP 744 …. 6.33 Federal Commissioner of Taxation v J Walter Thompson (Aust) Pty Ltd (1944) 69 CLR 227 …. 2.10 Federated Clerks Union of Australia v Ansett Australia Ltd (1993) 35 AILR 3(25) …. 6.21 Ferguson v John Dawson and Partners (Contractors) Ltd (1976) 1 WLR 1213 …. 3.59 Ferraloro v Preston Timber Pty Ltd (1982) 42 ALR 627 …. 4.35 Finch v Sayers [1976] 2 NSWLR 540 …. 6.26, 6.42 Fingal Gen [2013] FWCFB 5279 …. 7.9 Fisher v Edith Cowan University (1996) 70 IR 206 …. 6.6 Frost v Woolworths Ltd [2000] ACTSC 106 …. 4.21 G Gacic v John Fairfax Publications [2005] NSWSC 1210 …. 4.43 Galea v Bagtans [2010] NSWCA 350 …. 4.30 Gapes v Commercial Bank of Australia Ltd (1982) 37 ALR 20 …. 4.17 General Engineering Services v Kingston and St Andrew Corporation [1988] 3 All ER 867 …. 11.4 George Trollope & Sons v Martyn Bros [1934] 2 KB 436 …. 4.9 Geros v Mitcham Automatics Vic Pty Ltd (1995) 64 IR 206 …. 3.40, 5.11, 6.26 Goldman Sachs JBWere Services v Nikolich [2007] FCAFC 120 …. 3.60, 3.63

Gordon v Aprin Pty Ltd IRC (Tas), 20/95, 27 January 1995, unreported …. 5.11 Gothard, Re AFG Pty Ltd (recs and mgrs apptd) (in liq) v Davey [2010] FCA 1163 …. 3.36 Gould v Minister of National Insurance [1951] 1 KB 731 …. 2.10 Granosite Pty Ltd v Wieland (1982) 9 IR 218 …. 5.19 Grant v BHP Coal No 2 [2015] FCA 1374 …. 5.6 Griffiths v Rose (2011) 192 FCR 130; [2011] FCA 30 …. 4.46, 5.6 — v Secretary of State for Social Services [1974] QB 468 …. 6.50 Grout v Gunnedah Shire Council (1995) 134 ALR 156 …. 6.13 H Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 …. 1.35 Hamersley Iron Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1990) 70 WAIG 3001 …. 1.20, 4.44 Hamilton v Lethbridge (1912) 14 CLR 236 …. 3.31 — v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 …. 4.21, 4.35 Hamzy v Tricon International Restaurants t/as KFC [2001] FCA 1589 …. 2.48 Hanley v Pease [1915] 1 KB 698 …. 4.20 Hare v Murphy Brothers [1974] 3 All ER 940 …. 6.40 Harker v Boon [1956] 55 AR (NSW) 178 …. 2.73 Harmer v Cornelius (1858) 5 CBNS 236 …. 5.11 Haros v Linfox Australia Pty Ltd [2012] FCAFC 42 …. 3.6 Harrison v P & T Tube Mills [2009] FCA 220 …. 5.5 Hayes v Cynkel (Aust) Pty Ltd (1991) 33 AILR 406 …. 6.50 Health Solutions v Foley [2014] WASC 197 …. 3.40 Hem v Cant [2007] FCA 81 …. 6.32 Herbert Morris Ltd v Saxelby (1916) AC 688 …. 3.44 Hickie v Hunt and Hunt [1998] HREOCA 8 …. 7.25 Hill v Parsons [1971] 3 WLR 995 …. 7.12 Hilton Hotels v Pasovska (2003) 122 IR 428 …. 6.42 Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] 1 All ER 350 ….

5.22, 5.23, 5.24 Hobbs v Petersham Transport Co Pty Ltd [1971] ALR 675 …. 2.72 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 …. 5.34 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 …. 2.19, 2.21, 2.28 Holloway v Gilport Pty Ltd (1995) 59 IR 305 …. 3.3 Howard v Pilkington (Australia) Ltd [2008] VSC 491 …. 6.25 HRX v Pearson [2012] FCA 161 …. 3.49, 3.54 Hudson v Ridge Manufacturing Company Ltd [1957] 2 All ER 229 …. 4.26 Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660 …. 3.51 Hussein v Westpac Banking Corp (1995) 59 IR 103 …. 6.23 I Imperial Loan Co v Stone [1892] 1 QB 599; Hart v O’Connor [1985] 1 AC 1000 …. 3.28 Initial Services Ltd v Putterill [1967] 3 All ER 145 …. 5.40 International Cleaning Services v Mullaney [2014] SAIRC 33 …. 4.14 International Harvester Export Co v International Harvester Australia Ltd (1983) 25 AILR 31 …. 6.50 Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100 …. 12.16 J James v Hepworth and Grandage Ltd [1967] 3 WLR 178 …. 4.23 JGE v Trustees of the Portsmouth Roman Catholic Diocesan [2012] EWCA Civ 938 …. 2.70 JJ Richards v Fair Work Australia (2012) 201 FCR 297 …. 11.21 Johnson v Granite Transformations [2017] FWC 1443 …. 7.9 — v W H Lindsay and Co [1891] AC 371 …. 2.73 Johnston v Blue Circle Southern Cement [2010] FWA 5149 …. 7.8 Jordan v Aerial Taxi Cabs Corp [2001] FCA 972 …. 2.72 K

Keldote v Riteway [2008] FMCA 1167 …. 2.67 Kelly v Alford [1988] 1 Qd R 404 …. 4.36 Kennelly v Incitec Ltd [1998] FCA 1470 …. 6.20 King v Catholic Education Office (2014) FWC 6413 …. 7.12 Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225 …. 4.24, 12.15 Kooragang Investments v Richardson and Wrench (1982) AC 462 …. 2.2 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 …. 1.34 L Lane v Arrowcrest Group Pty Ltd (1990) 99 ALR 45 …. 6.26 — v Fasciale (1993) 35 AILR 339 …. 5.6, 6.26 Lange v Lange [2006] NTSC 74 …. 6.7 Langston v Amalgamated Union of Engineering Workers [1974] 1 WLR 185 …. 4.11 Latham v Singleton Council (1981) 1 IR 47 …. 11.13 Latimer v AEC Ltd [1952] 2 QB 701 …. 4.35 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285; [1959] 1 WLR 698 …. 5.2, 6.18, 6.21 Lawson, Surace and Hall v Joyce Australia (1995) 76 WAIG 20 …. 1.19 Lee v Lee’s Air Farming [1961] AC 12 …. 2.61 Liffen v Watson [1940] 1 KB 556 …. 4.44 Linfox Australia v Stutsel [2012] FWAFB 7097 …. 6.23 Lion Laboratories v Evans [1984] 3 IPR 276 …. 5.40 Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 …. 4.38, 5.13, 5.14 Loiterton v PD Mulligan [2001] ACTSC 26 …. 4.27 Lucas & Co Ltd v Mitchell [1972] 3 All ER 689 …. 3.56 Lupoi v Phillips Fox [1996] IRCA 489 …. 5.6 M M’Keating v Frame [1921] SC 382 …. 4.45

Macauslane v Fisher & Paykel Finance [2002] QCA 282 …. 6.10 MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 …. 12.16 Macdonald v Australian Wool Innovation [2005] FCA 105 …. 3.43 Mackay Taxi Holdings v Wilson [2014] FWCFB 1043 …. 7.8 Macleod v Alcyone Resources [2014] FWCFB 1542 …. 7.8 Mahony v Catholic Education Office [2016] FCAFC 160 …. 6.41 Malik v Bank of Credit and Commerce International (SA) (in liq) [1998] AC 20 …. 4.5 Mann v Capital Territory Health Commission (1981) 54 FLR 23 …. 4.12 — v — (1982) 42 ALR 46 …. 4.12 Maritime Union of Australia v DP World [2014] FWC 1523 …. 5.10 Market Investigations Ltd v Minister of Social Security (1969) 2 WLR 1 …. 2.18 Marshall v Harland & Wolff Ltd [1972] ICR 101 …. 6.38 Martin v Tasmania Development and Resources (1999) 163 ALR 79 …. 6.30 Massey v Crown Life Insurance Co [1978] 2 All ER 576 …. 2.31, 2.32 Matich v Precision Mechatronics [2014] FWC 1125 …. 7.9 McClelland v Northern Ireland General Health Services Board [1957] 2 All ER 129 …. 6.3 McCluskey v Karagiozis (2002) 120 IR 147 …. 6.43, 6.44 McDonald’s Australia v Shop Distributive and Allied Employees’ Association (2010) 196 IR 155 …. 10.5 McEvoy v Incat Tasmania [2003] FCA 810 …. 6.50 McKernan v Fraser (1931) 46 CLR 343 …. 11.18 McLaughlin v Darcy (1918) 18 SR (NSW) 585 …. 3.30 McLean v Tedman (1984) 56 ALR 359 …. 4.33 McMillan Britton & Kell Pty Ltd v WorkCover Authority of NSW (1999) 89 IR 464 …. 12.11 McPherson’s Ltd v Tate (1993) 35 AILR 226 …. 5.21 Mears v Safecar Security Ltd [1982] 3 WLR 366 …. 1.17 Melrose Farm v Milward [2008] WASCA 175 …. 2.49

Metals and Engineering Workers Union Western Australia v Centurion Industries Ltd (1996) 66 IR 312; 76 WAIG 1287 …. 2.49, 2.53 Metropolitan Fire & Emergency Services Board [2014] FWC 7776 …. 10.16 Miles v Wakefield District Council [1987] 1 All ER 1089 …. 4.16 Miller-Smith v Locker Group [2004] WAIRComm 12498…. 1.20 Minister for Employment and Workplace Relations [2010] FWAFB 3552 …. 10.6 Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 128 ALR 53 …. 1.35 Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 …. 6.14, 7.9 Moitzi v Paradise Motor Homes [2015] FWC 3413 …. 7.11 Moores v Bude-Stratton Town Council [2000] IRLR 676 …. 4.5 Morgan v Fry [1968] 2 QB 710 …. 11.13 — v Manser [1947] 2 All ER 666 …. 6.39 Morrish v Henly’s (Folkestone) Ltd [1973] 2 All ER 137 …. 5.6 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 …. 12.17 Mudginberri Station Pty Ltd v Australasian Meat Industry Employees Union (1986) 15 IR 272 …. 11.26 Murdoch University [2017] FWCA 4472 …. 10.16 N Narich Pty Ltd v Commissioner of Pay-roll Tax (1983) 50 ALR 417 …. 2.4, 2.31 Nash v Inman [1908] 2 KB 1 …. 3.29 National Tertiary Education Union v Swinburne University (2015) 232 FCR 246 …. 10.5 — v University of New South Wales (2011) 210 IR 244 …. 10.11 Nationwide News v Naidu; ISS Security v Naidu [2007] NSWCA 377 …. 4.27 Neale v Atlas Products (Vic) Pty Ltd (1954) 94 CLR 419 …. 2.64 Network Ten Ltd v Fulwood (1995) 62 IR 43 …. 4.7 New South Wales v Amery (2006) 230 CLR 174 …. 7.26, 7.27 — v Commonwealth (2006) 229 CLR 1 …. 8.3

— v Lepore (2003) 212 CLR 511 …. 2.2 New South Wales Cancer Council v Sarfaty (1992) 44 IR 1 …. 6.3 Nicol v Allyacht Spars Pty Ltd (1987) 75 ALR 1 …. 2.62, 4.31 Nieuwendaal v Australian Volunteer Coast Guard Association [1993] QCA 303 …. 12.16 Nokes v Doncaster Amalgamated Collieries Ltd [1940] 3 All ER 549 …. 6.43 Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1891] All ER Rep 1 …. 3.49, 3.50 Norman Baker Pty Ltd v Baker (1978) 3 ACLR 856 …. 3.29 Norman International Pty Ltd v Baker (1993) 35 AILR 152 …. 5.38 North v Television Corp Ltd (1976) 11 ALR 599 …. 6.18 Nova Plastics v Froggatt [1982] IRLR 146 …. 5.24 NP Generation v Feneley [2000] SASC 240 …. 5.39 O O’Connell v Wesfarmers Kleenheat Gas [2015] FWC 7011 …. 5.6 O’Connor v Commissioner for Government Transport (1959) 100 CLR 225 …. 4.21, 4.31 O’Meara v Stanley Works (2006) 58 AILR 100 …. 6.32, 7.9 O’Neill v Medical Benefits Fund [2001] FCAFC 188 …. 3.5 On Call Interpreters and Translators Agency v Commissioner of Taxation (No 3) [2011] FCA 366 …. 2.25 Orion Pet Products v RSPCA (Vic) (2002) 120 FCR 191 …. 8.3 Ormonoid Roofing and Asphalts Ltd v Bitumenoids Ltd (1931) 31 SR (NSW) 347 …. 5.39 Orr v The University of Tasmania (1957) 100 CLR 526 …. 5.15 Osborne v Woolworths (SA) Ltd (1992) 59 SAIR 600 …. 6.23 Ottoman Bank v Chakarian [1930] AC 277 …. 5.6 P Pacesetter Homes Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (1994) 57 IR 449 …. 2.74 Palmer v Blue Circle Southern Cement Ltd (1999) 48 NSWLR 318 …. 4.14

Paris v Stepney Borough Council [1951] AC 367 …. 4.23 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 153 ALR 643 …. 6.51, 11.16 Peake v Automotive Products [1978] 1 All ER 106 …. 3.62 Peckham v Moore [1975] 1 NSWLR 353 …. 3.34 Performing Right Society v Mitchell and Booker (Palais de Danse) Ltd [1924] 1 KB 762 …. 2.21 Perkins v Grace Worldwide (1997) 72 IR 186 …. 7.12 Petrevski v Just Jeans Group [2007] AIRC 863 …. 6.33 Pettet v Readiskill LMT Mildura [2001] VSCA 211 …. 5.6 Pinawin v Domingo [2012] FWCFB 1359 …. 7.7 Pitrau v Barrick Mining Services [2012] FMCA 186 …. 7.18 Pollard v Baulderstone Hornibrook Engineering [2008] NSWCA 99 …. 4.24 Ponce v DJT [2010] FWA 2078 …. 2.51 Porter, Re (1989) 34 IR 179 …. 2.31 Post Office v Roberts [1980] IRLR 347 …. 4.5 Powell v Lee (1908) 99 LT 284 …. 3.12 President of the Methodist Conference v Parfitt [1984] 1 QB 368 …. 2.69, 2.70 Printing and Kindred Industries Union v Wilke Directories Pty Ltd (1991) 38 IR 26 …. 4.28 Printing Industry Employees Union of Australia v Jackson and O’Sullivan Pty Ltd (1957) 1 FLR 175 …. 5.12, 6.25 Public Service Association v Zoological Parks Board of New South Wales [2007] NSWIRComm 1080 …. 3.68 Puccio v Catholic Education Office (1996) 68 IR 407 …. 6.21 Pupazzoni v Fremantle Fishermen’s Co-operative Society Ltd (1981) AILR 168 …. 4.37 Q Qantas Airways Ltd [2011] FWA 3632 …. 10.7 Qantas Airways v Christie (1998) 193 CLR 280 …. 7.27 Qantas Airways Ltd v Fetz (1998) 84 IR 52 …. 3.68

Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539 …. 2.13, 2.64 Quigley v Commonwealth (1981) 55 ALJR 579 …. 4.31 Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567 …. 6.9, 6.10 — v Overland (2010) 199 IR 40 …. 4.11 R R v Australian Char Pty Ltd [1995] VSC 168 …. 12.17 — v Chief Constable of Devon and Cornwall [1982] 1 QB 458 …. 11.10 — v Clarke (1927) 40 CLR 227 …. 3.15 — v Commissioner of Police for the State of Tasmania; Ex parte North Broken Hill Ltd t/as Associated Pulp and Paper Mills and APPM (1992) 44 IR 214 …. 11.10 — v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 …. 5.3 — v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 …. 8.3 — v Keite (1697) 91 ER 989 …. 1.2 — v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 …. 8.12 Ralan St Leonards v CFMEU [2014] FCA 431 …. 11.9 Ramsey Butchering Services v Blackadder (2005) 221 CLR 539 …. 4.11, 4.12 Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 …. 6.10, 6.12, 6.22 Rasool v Hepworth Pipe [1980] ICR 494 …. 5.8 Raynes v Arnotts Biscuits Pty Ltd (1991) 33 AILR 363 …. 3.63 Reading v Attorney-General [1951] 1 All ER 617 …. 5.17 Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 …. 2.20 Reed v Blue Line Cruises (1996) 73 IR 420 …. 2.47 Reilly v Devcon Australia Pty Ltd [2008] WASCA 84 …. 12.8, 12.13 Richardson v Koefod [1969] 1 WLR 1812 …. 2.43 Richardson Pacific Ltd v Miller-Smith [2005] WAIRComm 545 …. 1.20

Riordan v War Office (1959) 2 WLR 1046 …. 6.13 Riverwood International Australia v McCormick [2000] FCA 889 …. 3.63 Roberts v Hong Kong Bank of Australia Ltd (1993) AILR 213 …. 3.6, 3.37 Robinson Pty Ltd v Shearers & Rural Workers Union (1996) 67 IR 1 …. 11.17 Rogers v Booth [1937] 2 All ER 751 …. 2.69, 2.74 Romero v Farstad Shipping Pty Ltd [2014] FCAFC 177 …. 3.63 Rookes v Barnard [1964] 1 All ER 367 …. 11.12, 11.13 Rowell v Alexander Mackie College of Advanced Education (1988) 25 IR 87 …. 5.14 Ryan v Textile, Clothing and Footwear Union of Australia (1996) 66 IR 258 …. 1.20 Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385 …. 2.53 Ryder v Wombwell (1868) LR 4 Ex 43 …. 3.29 S Sammartino v Mayne Nickless (2000) 98 IR 168 …. 2.21 Sanders v Snell (1998) 196 CLR 329; 157 ALR 491 …. 6.15, 6.30 Scally v Southern Health and Social Services Board [1991] IRLR 522 …. 4.22 Scully v Lee [1998] IRLR 260 …. 3.56 Sear v Invocare Australia Pty Ltd [2007] WASC 30 …. 3.49, 3.50 Searle v Moly Mines Ltd (2008) 174 IR 21 …. 6.33 Secretary of State for Employment v Associated Society of Locomotive Engineers and Firemen (No 2) [1972] 2 QB 455 …. 3.62, 5.7, 11.4 — v Spence [1986] 3 All ER 616 …. 6.50 Secretary of State for Trade and Industry v Bottrill [2000] 1 All ER 915 …. 2.60, 2.62 Sellings v Landtrak [2015] FWC 8139 …. 7.9 Selvachandran v Peteron Plastics (1995) 62 IR 371 …. 7.10 Sestili v Triton Underwriting [2007] SASC 241 …. 2.2 Sgobino v State of South Australia (1987) 46 SASR 292 …. 2.15 Shafron v Australian Securities and Investments Commission [2012] HCA 18 …. 12.19

Shaw v Bindaree Beef [2007] NSWCA 125 …. 3.36 Sheehan and Australian Contractors Solutions [2001] NSWIRComm 1046 …. 2.32 Shell Refining (Australia) Pty Ltd v CFMEU (2009) AIRCFB 428 …. 5.10 Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206; [1939] 2 All ER 113 …. 3.70 Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 …. 11.12 Sim v Rotherham Metropolitan Borough Council [1986] 3 All ER 387 …. 4.17 Sinclair v Neighbour [1966] 3 All ER 988 …. 6.21 Smith v Albany Esplanade [2007] WAIRC 00192 …. 4.6 — v Anderson (1880) 15 Ch D 247 …. 2.75 Southern Foundries (1926) Ltd v Shirlaw [1940] 2 All ER 445 …. 2.71 Spencer Industries v Collins (2003) IPR 425 …. 5.26 Spring v Guardian Assurance Plc [1995] 2 AC 296 …. 4.42, 4.43 Stanfield v Burgess and Associates Pty Ltd (1992) 42 IR 266 …. 6.33 Starks v RSM Security [2004] NSWCA 351 …. 2.2 Steinberg v Scala [1923] 2 Ch 452 …. 3.29 Steri-Flow Filtration Systems (Aust) v Erskine [2013] FWCFB 1943 …. 7.7 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513 …. 2.16, 2.21, 2.27 Stevenson Jordan and Harrison v MacDonald and Evans [1952] 1 TLR 101 …. 2.16 Stilk v Myrick (1809) 170 ER 1168 …. 3.23 Stoelwinder v Southern Health [2001] FCA 115 …. 5.33 — v Southern Health Care Network (2000) 177 ALR 501 …. 3.5 Streeter v Telstra Corp Ltd [2008] AIRCFB 15 …. 6.23 Stubbs v The Holywell Railway Co (1867) LR 2 Exch 311 …. 6.37 Styles v DFAT (1989) FCA 546 …. 7.27 Swain v West (Butchers) Ltd [1936] 3 All ER 261 …. 3.23, 5.36 Sweeney v Boylan Nominees (2006) CLR 161 …. 2.3 SWF Hoists and Industrial Equipment Pty Ltd v Polli (1996) 67 IR 356 ….

5.38 Swindells v Victoria [2016] VSCA 9 …. 3.3 Sybron Corporation v Rochem Ltd [1984] 1 Ch 112 …. 5.36 T Teen Ranch v Brown (1995) 87 IR 308 …. 2.74 Telum Civil v CFMEU (2013) 230 IR 30 …. 2.50, 2.51 Termination, Change and Redundancy Case (1984) 8 IR 34 …. 8.13 Termination, Change and Redundancy Case (Supplementary Decision) (1984) 9 IR 115 …. 4.41 Textile Clothing & Footwear Union of Australia v Southern Cross Clothing Pty Ltd [2006] FCA 325 …. 2.58 Teys Australia Southern Pty Ltd [2015] FWC 4865 …. 10.5 Tibaldi Smallgoods (Australasia) Pty Ltd v Rinaldi (2008) 172 IR 86; [2008] VSC 112 …. 1.19, 3.68 Tillmanns Butcheries v Pty Ltd v Australasian Meat Industry Employees Union (1980) 42 FLR 331 …. 11.26 Timber Engineering Co Pty Ltd v Anderson [1980] 2 NSWLR 488 …. 5.19 Tobin v Commonwealth [2013] ACTSC 240 …. 3.39 Toms v Harbour City Ferries [2015] FCAFC 35 …. 7.10 Toole v Flexihire Pty Ltd (1991) 6 ACSR 455 …. 2.62 Toyota Motor Corporation v Marmara [2014] FCAFC 84 …. 10.16 Tran v Calum Textiles Pty Ltd (1997) 42 AILR 353 …. 5.6 Transport Workers Union of Australia v Glynburn Contractors (Salisbury) Pty Ltd (1990) 34 IR 138 …. 2.33 Trident Construction Pty Ltd v Australian Builders’ Labourers’ Federated Union of Workers (WA Branch) [1984] WAR 245 …. 11.18 Triggs v GAB Robins (UK) Ltd [2008] 1 All ER (D) 266 …. 4.5 Triplex Safety Glass Co Ltd v Scorah [1937] 4 All ER 693 …. 5.28 Tullett Prebon (Australia) Pty Ltd v Purcell [2008] NSWSC 852 …. 3.44 Turnbull v Symantec (2013) 280 FLR 184 …. 8.17 Turner v Australian Coal and Shale Employees Federation (1984) 6 FCR 177 …. 7.12

— v Goldsmith (1891) 1 QB 544 …. 4.8 — v Sawdon & Co [1901] 2 KB 653 …. 4.6 — v South Australia (1982) 42 ALR 669 …. 4.35 Twynam Pastoral Company Pty Ltd v Bennett [2002] NSWCA 319 …. 4.32 U Ulan Coal Mines Ltd v Honeysett; Murray v Ulan Coal Mines Ltd [2010] FWAFB 7578 …. 7.8 United Firefighters’ Union of Australia v Metropolitan Fire Brigades Board (1998) 86 IR 340 …. 4.16, 11.5 Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 …. 3.41 University of Western Australia v Gray [2009] FCAFC 116 …. 5.30 Unsworth v Tristar Steering and Suspension Australia Ltd [2008] FCA 1224 …. 4.12 V Vabu Pty Ltd v Commissioner of Taxation (1996) 33 ATR 537; 81 IR 150 …. 2.21, 2.28 Victoria v Commonwealth (1996) 187 CLR 416 …. 1.34 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 …. 4.46 Vierow v Catholic College Lismore Ltd [2009] NSWIRComm 128 …. 12.12 W WA Fork Truck Distributors v Jones [2003] WASC 102 …. 5.36 Wade v Victoria [1999] 1 VR 121 …. 4.43 Walker v Salomon Smith Barney Australia Securities [2003] FCA 1099 …. 3.3, 3.5 Warman International Ltd v Dwyer (1992) 46 IR 250 …. 5.16 Waters v Commissioner of Police [2000] 1 WLR 1607 …. 4.27 Welbourn v Australian Postal Commission [1984] VR 257 …. 4.16 Wesoky v Village Cinemas [2001] FCA 32 …. 4.10 Wessex Dairies Ltd v Smith [1935] 2 KB 80 …. 5.21

Western Australian Government Railways Commission v Australian Railways Union of Workers (WA Branch) (1986) 28 AILR 418 …. 5.4 Western Excavating Ltd v Sharp [1978] 1 QB 761 …. 4.5, 6.32 White v Arbuthnot Sawmills Pty Ltd (1990) VSC, 05/09/1990, unreported …. 12.18 Whiter v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266 …. 4.7 Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (No 2) [2009] FCA 103 …. 11.9 — v Hursey (1959) 103 CLR 30 …. 11.15 — v MacMahon Mining Services Pty Ltd (2010) FCA 1321 …. 2.50 — v Printers Trade Services (1984) 26 AILR 170 …. 6.25 — v Roffey Bros & Nicholls (Contractors) Ltd [1990] 1 All ER 512 …. 3.24 Wilson v Racher [1974] IRLR 114 …. 6.27 Wilsons and Clyde Coal Co v English [1938] AC 57 …. 4.24, 4.25 Wiluszyski v London Borough of Tower Hamlets [1989] IRLR 259 …. 4.16 Woods v WM Car Services (Peterborough) [1982] ICR 693 …. 4.5 Woolley v Dunford (1972) 3 SASR 243 …. 11.11 WorkCover Authority of New South Wales v Arbor Products International (Australia) Pty Ltd [2001] NSWIRC 50 …. 12.18 — v Baradine Sawmilling Co Pty Ltd and Gunnedah Timber (2002) 120 IR 102 …. 12.12 WorkCover Authority of New South Wales v Cruden (1996) 67 IR 469 …. 12.21 — v E & T Bricklaying Pty Ltd [2015] NSWDC 369 …. 12.7 — v Howard & Sons Fireworks Spectaculars [2001] NSWIRC 211 …. 12.10 — v Lyndhurst Trading Co [2000] NSWIR 1122 …. 12.17 — v McDonald’s Australia Ltd [2000] NSWIRC 1123 …. 12.17 — v Plumbwizard [2015] NSWDC 266 …. 12.20 — v Shaft and Tunnel Pty Ltd [1997] NSWIRC 66 …. 12.10 — v State Rail Authority of NSW [2001] NSWIRC 179 …. 12.10 — v Yass Shire Council (2000) 99 IR 284 …. 12.17

World Book (Australia) Pty Ltd v Federal Commissioner of Taxation (1992) 108 ALR 510 …. 2.64 Wormald Australia Pty Ltd v Harward and Venning (1992) 42 IR 166 …. 6.26, 6.27 Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 …. 3.52, 3.56 Wyong Shire Council v Shirt (1980) 146 CLR 40 …. 4.21, 4.35, 12.8 Y Yewens v Noakes (1880) 6 QBD 530 …. 2.10 Z Zareski v Hannanprint [2011] NSWADT 283 …. 7.28 Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 …. 2.14, 2.15

Table of Statutes References are to paragraph numbers

Commonwealth Age Discrimination Act 2004 …. 7.22 s 34 …. 7.27 Australian Human Rights Commission Act 1986 s 46P …. 7.22 s 46PE …. 7.22 s 46PF …. 7.22 s 46PH …. 7.22 s 46PJ …. 7.22 s 46PO …. 7.22 s 46PO(4) …. 7.22 s 46PP …. 7.22 Australian Securities and Investments Commission Act 2001 s 12 …. 2.67 Bankruptcy Act 1966 …. 6.53 s 109(1)(e) …. 6.53 s 109(1)(f ) …. 6.53 s 109(1)(g) …. 6.53 s 556 …. 6.53 s 558 …. 6.53 Commonwealth Constitution …. 8.4 s 51(i) …. 8.3 s 51(xx) …. 1.34, 8.2, 8.3

s 51(xxix) …. 1.34, 8.2, 8.3 s 51(xxxv) …. 8.2, 8.4 s 51(xxxvii) …. 8.3 s 52 …. 8.3 s 75 …. 8.2 s 76 …. 8.2 s 109 …. 8.2 s 122 …. 8.3 Competition and Consumer Act 2010 …. 3.2, 3.43, 3.45, 11.24 Pt IV …. 3.45 s 4M …. 3.45 s 45D …. 11.26, 11.27 s 45D(1) …. 11.24, 11.26 s 45D(4) …. 11.25 s 45DA …. 11.26 s 45DB …. 11.26 s 45DD(2) …. 11.27 s 45E …. 11.28 s 51(2)(b) …. 3.45 s 80 …. 11.24 s 153 …. 3.2 Sch 2 ACL …. 3.2 Sch 2 ACL s 18 …. 3.5 Sch 2 ACL s 18(1) …. 3.4 Sch 2 ACL s 20 …. 3.43 Sch 2 ACL s 20(1) …. 3.4 Sch 2 ACL s 21 …. 2.67, 3.43 Sch 2 ACL s 27(2) …. 2.67 Sch 2 ACL ss 23–27 …. 2.67 Sch 2 ACL s 31 …. 3.2

Conciliation and Arbitration Act 1904 Pt VI …. 10.1 Copyright Act 1968 s 35(2) …. 5.31 s 35(6) …. 5.31 Corporations Act 2001 …. 2.61, 3.36, 5.41 Pt 20.3 Div 1 …. 2.71 s 9 …. 2.61, 12.19 s 50AAA …. 6.48 s 124 …. 3.34 s 141 …. 2.71 ss 199A–199B …. 4.40 s 1317AD …. 5.41 Disability Discrimination Act 1992 …. 7.22 s 49 …. 7.27 Designs Act 2003 s 13(1)(b) …. 5.32 Fair Work Act 2009 …. 2.8, 2.50, 2.51, 4.13, 5.41, 6.16, 6.48, 7.1, 7.12, 8.1, 8.9, 8.12, 8.13, 8.14, 8.22, 9.4, 9.5, 10.2, 10.6, 10.7, 10.10, 10.14, 11.3, 11.20, 11.23, 11.24, 11.28, 12.24 Ch 2 Pt 2-8 …. 6.44 Ch 3 Pt 3-2 …. 7.4 Pt 1-3 …. 2.8 Pt 2-2 Div 11 …. 6.45 Pt 2-3 …. 8.17 Pt 2-3 Div 3 Subdiv C …. 9.7 Pt 2-4 …. 1.22 Pt 2-8 …. 6.48 Pt 3-1 …. 5.41, 7.13, 7.15, 7.16, 9.7, 12.22 Pt 5-2 …. 8.9

Pt 6-3 …. 8.13 Pt 6-4B …. 7.29 s 3 …. 1.30 s 3(a) …. 8.1 s 3(b) …. 1.30 s 3(f ) …. 10.13 s 11 …. 1.15 s 12 …. 2.59, 9.7, 10.7 s 13 …. 7.4, 7.18 s 14 …. 7.4, 8.1 s 14(d) …. 8.1 s 15(1) …. 1.15, 2.6 s 18 …. 6.16 s 19 …. 11.3 s 19(2) …. 11.3, 12.24 s 22(5) …. 6.48 s 22(5)(b) …. 6.48 s 23 …. 8.24 s 23(1) …. 7.5 ss 26–30 …. 8.1 s 30B …. 8.1 s 30D …. 8.1 s 30L …. 8.1 s 30N …. 8.1 s 43(1)(a) …. 8.14 s 44(1) …. 8.14 s 46(2) …. 9.4 s 47 …. 9.4 s 47(2) …. 9.4 s 48 …. 9.4 s 48(1) …. 9.8

s 54 …. 10.8 s 55(1) …. 8.14, 9.2 s 55(4) …. 9.2 s 57 …. 10.1 s 58 …. 10.16 s 61(1) …. 8.14 s 62(1) …. 2.44, 8.15 s 62(1)(b) …. 8.15 s 62(2) …. 8.15 s 62(3) …. 8.15 s 62(3)(i) …. 8.15 s 63(1) …. 8.15 s 64(1) …. 8.15 s 65 …. 2.53, 8.17 s 65(1) …. 8.16 s 65(1B) …. 8.16 s 65(2) …. 8.16 s 65(5) …. 8.16 s 65(5A) …. 8.16 s 65(5A)(b)–(d) …. 8.16 s 67 …. 2.53 s 67(1) …. 8.17 s 67(2) …. 1.28, 2.51, 8.17 s 70 …. 8.17 s 70(a) …. 8.17 s 72(2) …. 8.17 s 72(5) …. 8.17 s 75 …. 8.17 s 76(4) …. 8.17 s 79A(1) …. 8.17 s 79A(2) …. 8.17

s 81 …. 8.17 s 81A …. 8.17 s 82A …. 8.17 s 84 …. 8.17 s 86 …. 2.51 s 87 …. 8.18 s 87(1) …. 8.18 s 87(2) …. 8.18 s 88(1) …. 8.18 s 88(2) …. 8.18 s 89(1) …. 8.18 s 90(1) …. 8.18 s 90(2) …. 8.18 s 92 …. 8.18 s 93 …. 8.18 s 93(3) …. 8.18 s 94 …. 8.18 s 94(5) …. 8.18 s 95 …. 8.19 s 96 …. 8.19 s 96(2) …. 8.19 s 97 …. 8.19 s 98 …. 8.19 s 101 …. 8.19 s 102 …. 8.19 s 103(2) …. 8.19 s 104 …. 8.20 s 105(1) …. 8.20 s 106 …. 8.20 s 107 …. 8.19 s 107(1) …. 8.20

s 107(2) …. 8.20 s 107(5) …. 8.20 s 108 …. 8.21 s 108(b) …. 8.21 s 109 …. 8.21 s 109(2) …. 8.21 s 109(3) …. 8.21 s 111 …. 8.21 s 111(5) …. 8.21 s 113 …. 8.22 s 114(1) …. 8.23 s 114(2) …. 8.23 s 114(3) …. 8.23 s 114(4) …. 8.23 s 115(1) …. 8.23 s 115(2) …. 8.23 s 115(3) …. 8.23 s 116 …. 8.23 s 117 …. 6.10 s 117(1) …. 8.24 s 117(2)(b) …. 6.16, 8.24 s 117(3) …. 6.16, 8.24 s 117(3)(b) …. 8.24 s 119 …. 8.24 s 119(1)(a) …. 8.24 s 120(2) …. 8.24 s 121(1)(a) …. 8.24 s 121(1)(b) …. 8.24 s 123(1) …. 2.51, 6.20, 8.24 s 123(1)(b) …. 8.24 s 123(2) …. 8.24

s 123(3) …. 8.24 s 125(1) …. 8.25 s 134(1) …. 1.30, 9.2 s 134(2) …. 9.5 s 136 …. 1.30, 9.4 s 139 …. 2.44 s 139(1) …. 9.4, 9.7 s 139(1)(f ) …. 9.14 s 139(1)(j) …. 9.18 s 140(1) …. 9.20 s 142(1) …. 9.20 s 143 …. 9.7 s 143(1) …. 9.8 s 143(2) …. 9.4 s 143(5) …. 9.8 s 143(5)(c) …. 9.4 s 144 …. 9.19 s 146 …. 9.7, 9.18 s 147 …. 9.7 s 150 …. 9.7 s 151 …. 9.7 s 152 …. 9.7 s 153 …. 9.7 s 153(1) …. 9.7 s 154 …. 9.7 s 155 …. 9.7 s 156 …. 9.5 s 156(3) …. 9.5 s 157(1) …. 9.5 s 158 …. 9.5 s 161 …. 9.5

s 168A(2) …. 10.3 s 168B(1) …. 10.1 s 171 …. 10.1 s 172(1)(a) …. 10.2 s 172(1)(b) …. 10.2 s 172(2) …. 10.2, 10.3 s 172(3) …. 1.29, 10.2 s 172(4) …. 10.2 s 173(1) …. 10.4 s 173(2) …. 10.4 s 173(3) …. 10.4 s 174(1A) …. 10.4 s 174(2) …. 10.4 s 174(3) …. 10.4 s 180(2) …. 10.5 s 180(2)(a)(ii) …. 10.4 s 180(3) …. 10.5 s 180(4) …. 10.5 s 180(5) …. 10.5 s 180(5)(a) …. 10.5 s 180(5)(b) …. 10.5 s 180(6) …. 10.5 s 181(1) …. 10.5 s 181(2) …. 10.5 s 182(1) …. 10.5 s 182(2) …. 10.5 s 182(3) …. 10.5 s 183 …. 10.5 s 184(2) …. 10.5 s 185(1) …. 10.5 s 185(1A) …. 10.8

s 185(3) …. 10.8 s 186 …. 10.8 s 186(2) …. 10.10 s 186(3) …. 10.9, 10.10 s 186(4) …. 10.7, 10.10 s 186(5) …. 10.6 s 186(6) …. 10.6 s 186(6)(a) …. 10.6 s 186(6)(b) …. 10.6 s 187 …. 10.8 s 187(2) …. 10.10 s 188(c) …. 10.9 s 189 …. 10.10 s 189(2) …. 10.10 s 189(3) …. 10.10 s 190 …. 10.10 s 190(2) …. 10.10 s 190(3) …. 10.10 s 190(4) …. 10.10 s 191(1) …. 10.10 s 193(1) …. 10.11 s 193(2) …. 10.10 s 193(6) …. 10.10 s 194 …. 10.7, 10.10 s 195 …. 10.7 s 195(1) …. 10.7 s 195(2) …. 10.7 s 195(3) …. 10.7 s 195A …. 10.6 s 202(1) …. 10.6 s 202(2)(b) …. 10.6

s 202(3) …. 10.6 s 202(4) …. 10.6 s 203(2) …. 10.6 s 203(3) …. 10.6 s 203(4) …. 10.6 s 203(6) …. 10.6 s 203(6)(a) …. 10.6 s 203(6)(b) …. 10.6 s 204(3) …. 10.6 s 204(4) …. 10.6 s 205 …. 10.6 s 205(1)(a) …. 10.6 s 205(1)(b) …. 10.6 s 207 …. 10.16 s 208 …. 10.16 s 209(1) …. 10.16 s 219(1) …. 10.16 s 221(1) …. 10.16 s 222 …. 10.16 s 223 …. 10.16 s 225 …. 10.16 s 226 …. 10.16 s 226(b) …. 10.16 s 228(1) …. 10.13 s 228(2) …. 10.13 s 229(3)(a)(i) …. 10.13 s 229(4) …. 10.13 s 229(4)(b) …. 10.13 s 229(4)(d) …. 10.13 s 230(1)(c) …. 10.14 s 230(2) …. 10.15

s 231(1) …. 10.13 s 231(1)(b) …. 10.13 s 231(1)(d) …. 10.13 s 231(2) …. 10.13 s 235 …. 10.14 s 235(2)(c) …. 10.14 s 236 …. 10.12 s 237 …. 10.12 s 237(2) …. 10.12 s 238(4) …. 10.3 s 240(4) …. 8.6 s 242(1) …. 10.15 s 243 …. 10.15 s 243(2) …. 10.15 s 248 …. 10.3 s 269(1) …. 10.14 s 269(2) …. 10.14 s 285 …. 9.5 s 286(1) …. 8.8 s 287(1) …. 8.8 s 294 …. 1.5 s 294(1) …. 8.8 s 294(1)(c) …. 8.8 s 295(1) …. 8.8 s 311 …. 6.48 s 311(3) …. 6.48 s 311(4) …. 6.48 s 311(5) …. 6.48 s 311(6) …. 6.48 s 323 …. 8.14 s 323(1) …. 3.22, 4.13

s 323(1)(c) …. 3.22 s 323(2) …. 4.13 s 326 …. 3.69 s 329 …. 9.4 s 333(1) …. 9.4 s 336(1) …. 7.13 s 338 …. 7.14 s 340 …. 7.13, 7.15, 7.29 s 340(1) …. 7.16, 10.6 s 341 …. 7.13 s 342 …. 7.13, 7.14, 7.29 s 342(1) …. 7.14, 7.15 s 342(1) Item 4 …. 7.15 s 342(1) Item 6 …. 7.15 s 342(1) Item 7 …. 7.15 s 342(2) …. 7.15 s 342(4) …. 7.15 s 343 …. 3.42, 7.13 s 344 …. 3.42, 7.13 s 346 …. 7.13, 7.15 s 348 …. 7.13 s 349 …. 7.13 s 350 …. 7.13 s 351 …. 7.13, 7.15, 8.20 s 351(1) …. 1.34, 7.14 s 352 …. 7.13, 8.20 s 353(2) …. 9.7, 10.7 s 539(2) …. 10.6 s 355 …. 3.42, 7.13 s 357 …. 2.37, 2.38 s 357(1) …. 2.36

s 357(2) …. 2.38 s 358 …. 2.34, 2.39 s 359 …. 2.40 s 360 …. 2.39, 7.16 s 361 …. 2.41 s 361(1) …. 7.16 s 362 …. 7.14 s 365 …. 7.15, 7.17 s 366 …. 7.15 s 366(1) …. 7.17 s 368 …. 7.17, 8.4, 8.7 s 369 …. 7.17 s 369(2) …. 7.17 s 371(2) …. 7.17 s 380 …. 7.3 s 381(1)(b)(i) …. 7.3 s 382 …. 7.5 s 382(b) …. 7.5 s 383 …. 7.5 s 384(2) …. 7.5 s 384(2)(b) …. 7.5 s 385 …. 6.32, 7.4 s 385(c) …. 7.7 s 385(d) …. 7.8 s 386(1)(a) …. 7.4 s 386(1)(b) …. 6.32, 7.9 s 386(2) …. 7.5 s 386(2)(a) …. 6.7 s 387 …. 7.10 s 387(a) …. 7.10 s 387(b)–(g) …. 7.10

s 387(e) …. 7.11 s 387(f ) …. 7.11 s 387(h) …. 7.11 s 388 …. 1.28, 7.7 s 388(2) …. 7.7 s 389(1)(a) …. 7.8 s 389(1)(b) …. 7.8 s 389(2) …. 7.8 s 390(1) …. 7.12 s 390(3) …. 7.12 s 391 …. 7.13 s 391(1A) …. 7.12 s 393 …. 7.12 s 394(2) …. 7.6 s 394(3) …. 7.6 s 396(c) …. 7.7 s 397 …. 7.6 s 398 …. 7.6 s 399 …. 7.6 s 399A …. 7.6 s 408 …. 4.18 s 409 …. 11.21 s 409(2) …. 11.23 s 410 …. 11.21 s 411 …. 11.21 s 413 …. 11.21 s 413(2) …. 11.21 s 413(3) …. 11.21 s 414(2) …. 11.22 s 414(3) …. 11.22 s 414(6) …. 11.22

s 415 …. 11.21 s 417 …. 11.21 s 418 …. 11.23 s 418(2)(b) …. 11.23 s 420 …. 11.23 s 421(3) …. 11.23 s 423(1) …. 11.23 s 423(5) …. 11.23 s 423(6) …. 11.23 s 424 …. 11.23 s 437 …. 11.23 s 440 …. 11.23 s 441 …. 11.23 s 443 …. 11.23 s 443(1) …. 11.23 s 443(1)(b) …. 11.23 s 445 …. 11.23 s 459(1) …. 11.23 s 459(1)(b) …. 11.23 s 459(1)(c) …. 11.23 s 470 …. 4.18, 11.23, 12.24 s 470(3) …. 4.18 s 470(4) …. 4.18 s 471 …. 4.18 s 471(1) …. 4.18 s 471(4) …. 4.18 s 472 …. 11.23 s 473 …. 11.23 s 474 …. 11.23, 12.24 s 474(1) …. 4.18 s 475 …. 11.23

s 505 …. 8.4 s 524(1) …. 4.19 s 524(3) …. 4.19 s 539(2) …. 7.17, 7.19 s 545(1) …. 7.19 s 545(2) …. 7.19 s 546 …. 7.19 s 548 …. 8.12 s 548(2) …. 8.12 s 548(3) …. 8.12 s 548(5) …. 8.12 s 562 …. 8.12 s 563 …. 8.12, 8.12 s 566 …. 8.12 s 567 …. 8.12 s 568 …. 7.17, 7.19 s 575 …. 1.24 s 575(2) …. 8.8 s 576 …. 1.24, 8.8 s 576(2)(aa) …. 8.8 s 577 …. 8.8 s 592 …. 7.29, 8.4, 8.8 s 595 …. 8.7, 9.18 s 595(2) …. 8.6 s 595(2)(b) …. 8.8 s 595(3) …. 8.6, 8.8 s 596(1) …. 8.8 s 596(2) …. 8.8 s 596(4) …. 8.8 s 604 …. 8.8 s 604(2) …. 8.8

s 607 …. 8.8 s 613 …. 8.8 s 616(4) …. 10.14 s 617(1) …. 8.8 s 617(2) …. 8.8 s 618 …. 8.8 s 625(1) …. 8.4 s 682(1) …. 8.11 s 708 …. 8.10 s 709 …. 8.10 s 712 …. 8.10 s 723 …. 7.18 s 725 …. 7.18 s 729 …. 7.18 s 730(2) …. 7.18 s 737 …. 10.6 s 739(4) …. 8.6 s 770 …. 7.18 s 771 …. 7.18 s 772 …. 7.18 s 772(1) …. 7.18 s 772(1)(f) …. 7.18 s 772(2)(a) …. 7.18 s 772(2)(b) …. 7.18 s 772(3) …. 7.18 s 773 …. 7.18 s 774 …. 7.18 s 776 …. 7.19, 8.7 s 777 …. 7.19 s 777(1)(c) …. 7.19 s 777(2) …. 7.19

s 778 …. 7.19 s 779(2) …. 7.19 s 783(1) …. 7.18 s 789(1)(b) …. 7.29 s 789(3) …. 7.29 s 789BB …. 2.59 s 789CB …. 2.59 s 789CC …. 7.29 s 789FC(1) …. 7.29 s 789FD …. 7.29 s 789FD(2) …. 7.29 s 789FE(1) …. 7.29 s 789FF(1) …. 7.29 s 789FF(1)(b)(ii) …. 7.29 Fair Work Regulations 2009 reg 1.07(1) …. 6.20 reg 1.07(2)(a) …. 6.20 reg 1.07(2)(b) …. 6.20 reg 1.07(3) …. 6.20 reg 2.08 …. 10.6 reg 2.09 …. 10.6 reg 2.13 …. 7.5, 9.4 reg 3.05 …. 7.5 reg 6.01 …. 10.6 Sch 2.1 …. 10.4 Sch 2.2 …. 10.6 Sch 2.3 …. 10.6 Sch 2.3(1)(a) …. 10.6 Sch 2.3(5) …. 10.6 Sch 2.3(7) …. 10.6 Sch 2.3(9) …. 10.6

Sch 2.3(13)(b) …. 10.6 Sch 6.1 …. 10.6 Sch 6.1(2) …. 10.6 Sch 6.1(3) …. 10.6 Sch 6.1(5)(a) …. 10.6 Sch 6.1(5)(b) …. 10.6 Sch 6.1(7) …. 10.6 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 …. 8.12 Federal Circuit Court Act 1999 s 15 …. 8.12 s 16 …. 8.12 Income Tax Assessment Act 1997 Divs 84–87 …. 2.29 s 65 …. 4.39 s 66 …. 4.39, 5.14 Independent Contractors Act 2006 …. 2.5, 2.7, 2.67 Industrial Relations Act 1988 Pt VIB …. 10.1 Industrial Relations Reform Act 1993 …. 7.2, 8.2, 8.13, 10.1 Insurance Contracts Act 1984 …. 4.39 s 45 …. 4.39 Migration Act 1958 Pt 2 Div 12 Subdiv C …. 3.33 s 14 …. 3.33 s 140H …. 3.33 s 235(1) …. 3.33 s 245AB …. 3.33 s 245AC …. 3.33 New Business Tax System (Alienation of Personal Services Income) Act

2000 …. 2.29 Paid Parental Leave Act 2010 …. 8.17 Privacy Act 1988 …. 4.46 s 7B(3) …. 4.46 Privy Council (Appeals from the High Court) Act 1975 …. 1.9 Privy Council (Limitation of Appeals) Act 1968 …. 1.9 Public Interest Disclosure Act 2013 …. 5.41 Public Service Act 1999 …. 2.8 Racial Discrimination Act 1975 …. 7.22 s 3 …. 7.21 s 15 …. 7.23 s 18C …. 7.28, 7.29 s 27 …. 7.28 s 27(2) …. 7.28 Safety, Rehabilitation and Compensation Act 1988 …. 12.27 Seafarers Rehabilitation and Compensation Act 1992 …. 12.27 Sex Discrimination Act 1984 …. 7.22, 7.28 Pt 1 …. 7.22 s 5(1) …. 7.24 s 5(2) …. 7.24 s 7C …. 7.26 s 17 …. 7.27 s 28A …. 7.28 s 28B …. 7.28 s 30 …. 7.27 s 38 …. 7.27 s 94 …. 7.28

Superannuation Industry (Supervision) Act 1993 …. 9.17 Superannuation Guarantee (Administration) Act 1992 …. 2.7, 9.17 s 12(3) …. 2.7 Superannuation Guarantee Charge Act 1992 …. 9.17 Superannuation (Resolution of Complaints) Act 1993 …. 9.17 Trade Practices Act 1974 …. 3.2, 3.5, 3.6 s 45D …. 11.27 s 52 …. 3.5, 3.6 s 53B …. 3.6 Work Health and Safety Act 2011 …. 12.1 Workplace Relations Act 1996 s 170LT(2) …. 10.11 s 170XA(1) …. 10.11 s 170XA(2) …. 10.11 Workplace Relations Amendment (Work Choices) Act 2005 …. 8.2, 8.13, 9.1 Australian Capital Territory Age of Majority Act 1974 s 5 …. 3.29 Public Interest Disclosure Act 1994 …. 5.41 Workers Compensation Act 1951 …. 12.27 s 4(2) …. 12.27 s 184 …. 12.28 Workplace Privacy Act 2010 …. 4.46 New South Wales Anti-Discrimination Act 1977 …. 7.28 Pt 4C …. 7.28 Children and Young Persons Act (Care and Protection) Act 1998

s 222 …. 3.32 Defamation Act 2005 s 30 …. 4.43 Employees Liability Act 1991 s 3 …. 5.14 s 5 …. 5.14 Fair Trading Act 1987 …. 3.3 s 46 …. 3.3 Industrial Relations Act 1996 s 5(2)(d) …. 2.59 s 117(1) …. 4.13 Industrial Relations (Ethical Clothing Trades) Act 2001 …. 2.59 Long Service Leave Act 1955 …. 2.12 s 4 …. 2.53 Minors (Property and Contracts) Act 1970 …. 3.29 Protected Disclosures Act 1994 …. 5.41 s 8(1)(d) …. 5.42 s 19 …. 5.42 Restraints of Trade Act 1976 …. 3.52, 3.56 s 4(1) …. 3.44 Supreme Court Act 1970 s 26 …. 2.76 s 31 …. 2.76 Work Health and Safety Act 2011 …. 12.1 s 3(1) …. 12.4 s 3(1)(a) …. 12.4 s 4 …. 12.12, 12.19 s 5 …. 12.7 s 5(1) …. 12.7 s 5(4) …. 12.7

s 5(6) …. 12.7 s 5(7) …. 12.7 s 7 …. 12.7 s 8 …. 12.11 s 15 …. 12.7 s 16 …. 12.7 s 17 …. 12.9 s 18 …. 12.8 s 19 …. 7.29, 12.7, 12.13 s 19(1) …. 12.6, 12.7 s 19(2) …. 12.10 s 19(3) …. 12.9 s 19(3)(a) …. 12.9 s 19(3)(b) …. 12.9 s 19(3)(c) …. 12.9 s 19(3)(d) …. 12.9 s 19(3)(e) …. 12.9 s 19(3)(f ) …. 12.9 s 19(4) …. 12.9 s 20(1)(a) …. 12.11 s 20(2) …. 12.11 s 21 …. 12.12 s 22 …. 12.18 s 23 …. 12.18 s 24 …. 12.18 s 25 …. 12.18 s 26 …. 12.18 s 27 …. 12.19 s 27(5)(a) …. 12.20 s 27(5)(b) …. 12.20 s 27(5)(d) …. 12.20

s 28 …. 12.21 s 29 …. 12.21 s 29(c) …. 12.21 s 31(1) …. 12.26 s 33 …. 12.26 s 46 …. 12.22 s 47 …. 12.22 s 48 …. 12.22 s 48(2) …. 12.22 s 50 …. 12.22 s 60 …. 12.22 s 68 …. 12.22 s 69 …. 12.22 s 72 …. 12.22 s 75 …. 12.22 s 77 …. 12.22 s 79 …. 12.22 s 85 …. 12.23 s 86 …. 12.23 s 104 …. 12.22 Workers Compensation Act 1987 …. 12.27 s 10 …. 12.27 s 151A …. 12.28 s 248 …. 12.28 Workplace Injury Management and Workers Compensation Act 1998 …. 12.27 Workplace Surveillance Act 2005 …. 4.46 Northern Territory Public Interest Disclosure Act 2008 …. 5.41

Work Health and Safety (National Uniform Legislation) Act 2011 …. 12.1 Workers Rehabilitation and Compensation Act 1986 …. 12.27 s 3 …. 12.28 Queensland Child Employment Act 2006 …. 3.32 s 9 …. 3.32 Fair Trading Act 1989 s 16 …. 3.2 Industrial Relations Act 1999 s 5(1)(g) …. 2.59 s 393(1) …. 4.13 s 393(2) …. 4.13 Whistleblowers Protection Act 1994 …. 5.41 Workers Compensation and Rehabilitation Act 2003 …. 12.27 Sch 2 …. 12.28 South Australia Age of Majority (Reduction) Act 1971 s 3 …. 3.29 Civil Liability Act 1936 s 59 …. 5.14 Fair Trading Act 1987 s 14 …. 3.2 Fair Work Act 1994 s 4(1) …. 2.59 s 5 …. 2.59 Fair Work (Clothing Outworker Code of Practice) Regulations 2007 …. 2.59 Minors Contracts (Miscellaneous Provisions) Act 1979 …. 3.29

Whistleblowers Protection Act 1993 …. 5.41 s 3 …. 5.41 s 5 …. 5.41 s 7 …. 5.41 s 9 …. 5.41 Work Health and Safety Act 2012 …. 12.1 Workers Rehabilitation and Compensation Act 1986 …. 12.27 s 3(1) …. 12.28 s 103A …. 12.28 Tasmania Public Interest Disclosures Act 2002 …. 5.41 Workers Rehabilitation and Compensation Act 1988 …. 12.27 Victoria Accident Compensation Act 1985 …. 12.27 s 52B …. 12.28 s 155A …. 12.28 s 156 …. 12.28 Age of Majority Act 1977 s 3(1) …. 3.29 s 3(1)(c) …. 3.29 Australian Consumer Law and Fair Trading Act 2012 s 8 …. 3.2 Child Employment Act 2003 …. 3.32 s 10 …. 3.32 s 11 …. 3.32 Commonwealth Powers (Industrial Relations) Act 1996 …. 8.1 Occupational Health and Safety Act 2004 …. 12.1 s 2 …. 12.4

s 20(2) …. 12.14 s 21(1) …. 12.13 s 23 …. 12.10 s 24 …. 12.10 s 25 …. 12.21 s 26 …. 12.11 s 27 …. 12.18 s 28 …. 12.18 s 29 …. 12.18 s 30 …. 12.18 s 31 …. 12.18 s 58(1) …. 12.22 s 60(1) …. 12.22 s 72(3) …. 12.22 s 74 …. 12.22, 12.23 s 144 …. 12.20 s 145 …. 12.20 Outworkers (Improved Protection) Act 2003 …. 2.59 Whistleblowers Protection Act 2001 …. 5.41 s 6 …. 5.42 Western Australia Children and Community Services Act 2004 s 190 …. 3.32 Industrial Relations Act 1979 s 23A …. 7.4 Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 …. 4.21 Masters and Servants Act (6 Vic No 5) 1842 …. 1.3 Occupational Safety and Health Act 1984 …. 12.1, 12.14

s 2 …. 12.4 s 3(1) …. 12.14 s 5 …. 12.4 s 19(1) …. 12.13 s 20 …. 12.21 s 20(2) …. 12.21 s 21 …. 12.10 s 22 …. 12.6, 12.11, 12.15 s 23 …. 12.18 s 23D …. 12.13, 12.15 s 23D(5) …. 12.15 s 23D(6) …. 12.15 s 26(1) …. 12.23 s 26(2) …. 12.23 s 26(2a) …. 12.23 s 26(2b) …. 12.23 s 33(1) …. 12.22 Public Interest Disclosure Act 2003 …. 5.41 s 5 …. 5.42 Truck Act (63 Vic No 15) 1899 …. 1.5 Workers Compensation and Injury Management Act 1981 …. 12.27 s 5 …. 12.28 s 93K …. 12.28 s 155B …. 12.28 s 155C …. 12.28 s 181 …. 12.28 s 192 …. 3.33 United Kingdom Commonwealth of Australia Constitution Act 1901 …. 8.2, 8.12, 8.13

s 51(xx) …. 8.1 s 51(xxxv) …. 1.34 Restrictive Trade Practices Act 1956 …. 5.40 International Discrimination (Employment and Occupation) Convention 1958 (No 111) …. 1.33 Art 1(2) …. 1.35 Freedom of Association and Protection of the Right to Organise Convention 1948 …. 11.19 International Covenant on Economic, Social and Cultural Rights 1966 Art 8(1)(d) …. 11.19 Right to Organise and Collective Bargaining Convention 1949 …. 11.19

Table of Contents Preface Table of Cases Table of Statutes Chapter 1 Introducing Employment Law The regulation of work Sources of legal obligation Chapter 2 What is Employment? Identifying employment Common law tests Sham contracting Types of employment Other types of worker Chapter 3 Contract Formation and Terms Formation Offer and acceptance Intention, consideration, certainty and capacity Mutual consent and legality Restraint of trade clauses Terms of the contract Chapter 4 Employer Duties The wages–work bargain

Personal obligations No duty of mutual trust and confidence Duty to provide work Duty to pay remuneration Duty of care Aspects of the duty of care Duty to indemnify Other duties Chapter 5 Employee Duties Duty to obey orders Duty of care and competence Duty to look after the employer’s property Duty to indemnify Duty to provide faithful service Duty to hand over inventions Duty of disclosure? Duty of confidentiality Chapter 6 Ending the Contract Introduction Termination as agreed Summary dismissal Constructive dismissal Abandonment Automatic termination Change of employer Bankruptcy, receivership and liquidation Chapter 7 Statutory Job Protections Introduction Unfair dismissal

General protections dismissal Unlawful termination Anti-discrimination law Bullying provisions Chapter 8 The Federal System and Employment Conditions Multiple systems The Constitution and the federal system The Fair Work Commission The Fair Work Ombudsman The Federal Court and the Federal Circuit Court National employment standards Chapter 9 Modern Awards Historical significance of awards Modern awards Award content Chapter 10 Enterprise Agreements Agreement-making Bargaining processes Variation and termination Chapter 11 Industrial Action Employee and employer action Industrial torts Employee rights to strike Boycotts Chapter 12 Work Health and Safety State legislation Duties

Consultation, representation and participation Refusal to work in certain situations Workplace change Penalties Workers’ compensation legislation Index

[page 1]

CHAPTER 1

Introducing Employment Law OBJECTIVES • • •

Introduce the origins of Australian employment law Recognise approaches to the regulation of work Introduce sources of legal obligation for Australian employees and employers

THE REGULATION OF WORK English origins 1.1 The Australian Aborigines, the indigenous people of Australia, lived for many thousands of years as nomads; hunting, fishing and gathering food. They had no work concept equivalent to modern models of employment. The idea of employing another person and paying for his or her services came to Australia with the English.1 Colonies were populated with English convicts and free settlers.2 Free settlers often brought their own servants with them, under a system of indenture. The indentures were commonly entered into in England and can be identified as an early form of work arrangement. They required the indentured servant to serve the master for a defined period of time and in return the servant would have food, clothes and lodging provided by the master. 1.2 Australian employment law has its genesis in a branch of the common law of England called the law of master and servant. That law was an extension of the law of family relations, with the master as the head of an extended family including the servant. The servant usually lived on the master’s premises, and the master

had responsibility for the servant and their needs. The master’s power of control over the [page 2] servant was extensive and included a power to discipline.3 This relationship was based on the status the master and servant acquired at birth. For centuries England had an agricultural economy and indentured work arrangements were the norm for servants and labourers. As England moved through the Industrial Revolution, new rules for the engagement of workers were developed. The law of master and servant absorbed precepts from the English law of contract and indentures were gradually transformed into contracts of service, first for servants and labourers only, and later, with legislative influence, for managers and clerks and other professional workers.4 Many contracts for the performance of work are still referred to as contracts of service. 1.3 The reception of the English law of master and servant officially occurred on the date of establishment of the various state colonies.5 English law applicable in Australia was gradually modified by the development of a common law peculiar to Australia. That common law continues to develop. Legislation of the colonies, now referred to as state legislation, and, later, legislation of the federal government, also played a significant role. For example, early state legislation such as the Masters and Servants Act 18426 provided for fines and imprisonment in cases of breach of contract by the servant; and in cases of breach by the master, orders for the payment of outstanding wages could be issued. Each state enacted legislation providing for employee entitlements and employer obligations in due course. Legislation about employment evolved to cover an increasing number of related areas, for example, collective bargaining, protection against discrimination, and work health and safety. Now, most Australian

states have referred power to the federal government for the regulation of employment relationships. Federal legislation creating a national system is currently applicable to a majority of Australian employees and employers.

The regulation of work in Australia 1.4 The introduction of statutory law in the colonies began as a response to the needs of the colonists. Where fines served to discipline servants, or where orders for payment of unpaid wages obliged masters, legislation operated to impose the first Australian work standards. 1.5 Restrictions and freedoms in agreements about the performance of work have changed since colony days. Statutory directions on appropriate rules for employment relationships have generally developed to reflect improved minimum conditions for employees. For example, the requirement that wages be paid in money form, and not in goods at highly inflated values, set a standard of payment for the services of an employee.7 That standard gave the employee choice about how they used the rewards [page 3] for their labour. Now, legislation extends beyond dictating what form of payment Australian employees receive, to specifying entitlements to minimum wage rates that are adjusted annually.8 This is protective regulation, acknowledging that employees often have little ability to determine the price of their labour. Federal legislation also protects employees by prohibiting discrimination and unfair dismissal, providing leave entitlements and requiring safe workplaces. In addition, there is protection of the collective rights of employees, for example, to bargain for other conditions of work and be represented by a union. Legislative entitlements

that set employment standards reflect what is considered suitable for today’s employees. 1.6 When statutes give individual and collective rights to employees, they recognise a disparate distribution of power in bargaining relationships between employees and employers. Employees, especially low-skilled or otherwise vulnerable employees, might have limited capacity to bargain for appropriate rewards for their services. While a statute cannot itself rebalance any particular distribution of bargaining power, it can provide minimum entitlements that can be improved on by agreement. Statutes that prescribe social objectives, like employer responsibility for employee injury, are an example. 1.7 Employers, depending on contextual factors, can also have a limited bargaining power. Their capacity to pay employees depends on their profitability and market share, along with other factors. While they are obviously affected by market forces and economic conditions, they are also impacted by factors like the prevalence of union activity and regulatory compliance requirements. Statute law might protect employers in respect of their right to dismiss employees who have engaged in misconduct, or it may grant freedoms to enable them to react to a changing marketplace by employing casual workers that have no leave or notice entitlements. These regulations allow employers efficiencies that can assist their competitiveness. Regulation may grant other freedoms to employers; for example, to make collective bargains with their employees and the unions that represent them, adapting and enhancing otherwise applicable standards for the benefit of the employer and employees concerned. 1.8 Ideologies based on both unfettered competition and freedom of choice suggest that statutes should not interfere with the employment relationship. These ideas do not focus on inequality in the distribution of bargaining power. Instead they propose that the market will operate to produce the most efficient outcomes in employment relationships, just as with commercial relationships. Unrestricted market exposure is envisaged to result

in full employment, but with bargained conditions of work that are not necessarily fair. Market-based pay and conditions of employment can indicate rising living standards and healthy workforce participation levels when the economy is progressing well. They would not necessarily indicate any fair standard for pay and conditions of employment. Where protective regulation is minimised and employer-facilitation provisions are the centrepiece of regulation, outcomes for employees are generally expected to be less equitable. Certainly, Australian employment standards [page 4] will continue to progress as regulatory priorities change in the context of local and international influences.

SOURCES OF LEGAL OBLIGATION Common law 1.9 In Australia, the common law relating specifically to employment is made up of the common law imported from England, decisions of the High Court of Australia, decisions of the Federal Court of Australia and some decisions of the Supreme Courts of the states and territories. It is also complemented by decisions of various specialist tribunals and courts, including the Fair Work Commission, state industrial relations commissions and various state industrial appeal courts. Specialist tribunals that deal with matters related to employer and employee relationships include workers’ compensation and equal opportunity tribunals. In addition, the common law of employment in Australia may include contemplation of decisions from other common law countries. These decisions do not apply automatically but can carry persuasive force, especially if there is no decision by an

Australian superior court on the point. Decisions handed down by the House of Lords and Court of Appeal in England and decisions of the superior courts of New Zealand are examples.9

A contractual relationship 1.10 The performance of work is fundamentally understood as involving a contractual relationship. This contractual relationship is distinguishable from other contractual relationships. It involves some adjustment of contractual concepts that anticipate purely commercial purchases and sales. A contract for the service of a human being is not able to be equated with the purchase or sale of a commodity. As the International Labour Organization confirms, workers are not the property of the buyer of their service; they are not a chattel that can be traded.10 A contract that provides for an employee’s service is a terminable agreement for the use of that employee’s talents and skills, and importantly, made with the consent of the employee. 1.11 Accompanying the understanding that an employee can agree to utilise their talents and skills for the benefit of another is the appreciation that the work will form an intimate part of the employee’s identity.11 Agreements involving a person’s identity [page 5] can be categorised as most significant to societies and their evolution.12 As such, many contracts about employment attract specific observations relating to safety, health and wellbeing, dignity, respect and personal development. These are not considerations given to commercial contracts and again differentiate the employment contract from other types of contracts. 1.12 Most of the observations mentioned above can be seen in established and developing contractual duties owed to employees

by their employers. The duties are applicable to employment relationships and form part of a body of legal principles laid down by courts and tribunals on a case-by-case basis, known as the common law. This body of law also encompasses duties owed by employees to employers. The common law relating to employment is only one area of common law. Common law, deriving from the decisions of courts and tribunals, covers a very broad legal canvas, and it includes the torts or civil wrongs which are also relevant to aspects of the employment relationship. A well-known one is negligence. So, other areas of common law will also have significance to employment.

Identifying the employment relationship 1.13 It is the common law that determines whether a contract exists and, if one does, whether that particular relationship, requiring the performance of work, is one of employment. This means a contract is identified as one of employment, or as another type of contract involving the performance of work. Relationships that involve the use of labour are not necessarily employment relationships. There are many relationships that anticipate the performance of work and they can be based on a variety of types of contracts that represent commercial agreements. For example, relationships in which work is performed can be the result of independent contracting, where a worker is operating their own business. An agency is another example of a relationship which may anticipate the performance of work. These relationships attract different legal principles and have their own common law.

Interpretation of the contract and other sources of law 1.14 Common law assists in the interpretation of terms used in the employment contract. It is especially helpful when there is a dispute about what a term in a written contract means, allowing for an interpretation that determines what the parties are likely to have meant when they agreed on the term.

1.15 Where legislation uses a term that is not defined, the common law can give meaning to the term. An example is the definition of employee. Although the term is used frequently in statutes, definitions contained in legislation are often not explanatory or determinative and they rely on the common law to determine who is an employee.13 [page 6] 1.16 The common law also aids interpretation of legislation, and legislative instruments like awards and collective agreements, by giving words and terms specific meanings that come directly from the industries and enterprises to which the legislation or instruments apply. For example, when the Fair Work Commission, the federal tribunal, makes an award to govern employment relationships in a particular industry, it may refer to a special meaning the terms have in that industry, established over many years.

Implying terms 1.17 The common law adds terms to contracts of employment. It automatically implies duties, like the duty of care owed by employers to employees, and the duty to obey owed by employees to employers. These duties are implied in respect of both the employer and employee and are based on the nature of their relationship.14 They will be discussed fully in later chapters. 1.18 The common law also implies terms in other circumstances. The parties to an employment contract often only expressly agree on a few matters, like the wage rate that will apply and the hours of work. It is unlikely every conceivable feature of the employment relationship will be agreed at the time the contract is entered into. The common law can operate to supply other terms necessary to make the contract effective.15 Irrespective of whether the contract is in writing, the common law implies terms to make

the contract workable. However, it will not add a term just because it is helpful, would be fair, or is desired by one of the parties to the contract.16 1.19 In the past, customs and practices have been implied into contracts as terms.17 The phrase ‘custom and practice’ refers to the methods followed or the application of routines or common practices which can develop into unwritten and informal rules in industries over years of implementation. Sometimes a custom or practice is one that is advantageous to employees, extending benefits beyond what is written in their contracts; for example, redundancy benefits that are more generous than those that would otherwise apply. Other times the custom or practice is one that has developed as a method of managing employees. An example is the practice of last on/first off dismissal, which favours senior employees and may reduce costs to employers where redundancy payments are based on length of service. This custom is no longer so common and demonstrates how, over time, customs and practices may be replaced or outmoded. In this instance, redundancy is now often the subject of collective [page 7] agreement or industry regulation. A redundancy entitlement pursuant to a collective agreement will not form a custom or practice for that industry.18 1.20 Implication of a custom or practice is rare these days. In the context of industries covered by awards and collective agreements, it is unlikely that an accepted practice would develop without becoming a part of the regulatory landscape. Where it could occur would most likely involve industries not covered by an award, and involving employers who do not commonly use written contracts and have few or rudimentary collective agreements with their employees. In these situations, customs and practices develop for specific reasons19 and when circumstances are altered, they can

disappear quite quickly. Express agreement that contradicts a custom or practice will achieve this. Rules that develop in only one employer’s workplace or enterprise will not be implied;20 an industry-wide custom or practice that is well known throughout the industry is necessary to warrant implication.21 The employer’s consistent action to give employees a reasonable expectation of the custom or practice applying will be relevant, as will an indication the employer intends to be bound by it, say by publication in an easily accessible policy document.22 Where an employer purports that a practice is merely gratuitous or discretionary and could be used depending on other factors, it would suggest the employer has no intention to be contractually bound by it.23 1.21 Industry-wide customs and practices develop as employers use common methods of dealing with explicit issues, and as employees demand the same conditions in similar circumstances. They can take account of the history of collective employee– employer relationships, where employers and employees develop a specific way to deal with a situation. While the importance of custom and practice can be questioned in the context of the individual contractual relationship between an employer and employee, where individual agreement appears to cover the substantive matters, it may be that there remains a workplace environment that has its own accepted and entrenched customs and practices. These can be argued to supplement skeletal contract terms. Customs and practices, in this context, continue to be relevant because they form part of the environment in which work is performed. Where they do not contradict express terms of the contract and are accepted industry-wide, they may be considered an integral part of each employment relationship in that industry, making contracts in that industry workable. Still, it is difficult to have a custom or practice implied, especially where contract terms and industrial instruments involve detailed agreement

[page 8] about industry-specific matters. Simply put, it may be that a custom or practice is considered by a court to be unnecessary for a contract’s effectiveness, and, accordingly, it will not be implied.24

Legislation 1.22 Legislation refers to statutory instruments of the federal and state parliaments. Parliament passes legislation and these become Acts, and it also makes regulations that further prescribe matters relevant to the Acts. There is a variety of legislation that directly regulates the employment relationship or affects aspects of it. Some areas of employment are subject to a high degree of legislative control. For example, federal legislation on enterprise agreements establishes an intricate framework of rules for collective agreement-making.25 These rules add a complex regulatory dimension to an Australian employer’s operations. Legislation performs three main functions in the regulation of the employment relationship.

Creating new rights and obligations 1.23 Legislation creates new rights and obligations. When a parliament determines that certain employee rights or employer obligations should exist, they become enforceable on the enactment of legislation. The common law may not recognise the same rights and obligations, and, so, legislative rights and obligations may be inconsistent or incongruent with the common law. When courts are asked to interpret the legislative right or obligation concerned, their decisions may influence the way the legislation operates.

Procedures 1.24 Legislation sets up machinery for dealing with aspects of the employment relationship. For example, it establishes

procedures for the assertion of rights and for the enforcement of obligations. Those procedures may involve a specialist tribunal or commission empowered to perform functions and exercise powers that result in directions and orders applicable to employers and employees, as well as the unions that represent them. The Fair Work Commission is the federal commission established to perform many functions and exercise powers in relation to employment.26 Legislation defines the functions and powers of the federal commission.27 Generally, the state industrial relations commissions have jurisdiction to cover the state public sector as an employer, and its employees; the Fair Work [page 9] Commission has jurisdiction over private sector employers and employees, and the Commonwealth government and its employees.28 Therefore, procedures for dealing with the rights and obligations of employers and employees are found in either federal or state legislation.

Clarification 1.25 Legislation can sometimes be recognised as clarifying the common law. The application of a common law principle may be uncertain where changes in the work environment have impacted on its suitability. Parliament might step in to clarify the position by enacting provisions in legislation. Legislative provisions may refine common law principles in some situations. Work health and safety legislation is an example of legislation that clarifies the application of common law principles about duties of care held by business operators, employers, employees and other participants in Australian places of work.

Legislation and employment contracts 1.26

For the employment relationship, the significance of

legislation is that it supplements the common law rights and obligations found in the contract. It operates alongside the contract of employment, as a separate source of rights and obligations. Once a contract of employment is formed, legislation will attach certain rights and obligations to it.29 A contract of employment will probably not refer to legislation, but it will apply regardless. Relevant provisions affect the individual’s contract of employment independently of the will of the employer and employee. In other words, the employer and employee must comply with legislative provisions because parliament has said so. For example, a person who suffers injury in the course of their employment is able to seek compensation pursuant to workers’ compensation legislation because the relevant provisions of the legislation have statutory force and are enforceable. This is so even though the person’s contract has not referred to the legislation. 1.27 As a general rule, parties to an employment contract are not allowed to opt out of legislation. Where a contract does refer to legislation and seeks to void or limit its application, the contract or part of it will be rendered ineffective. The sovereignty of parliament dictates that, where there is conflict between a legislative provision, a contract term, the common law, or a term in an industrial instrument, like an award or agreement, the legislative provision will prevail. An Act of Parliament may expressly state its intent to make contradictory contract terms ineffective. Legislative provisions about the same matters as contract terms will override contract terms that are inferior. Where contract terms are superior, any related legislative provision would probably be satisfied and the contract term can operate. [page 10] 1.28 Not all of the provisions of applicable legislation will necessarily affect every contract of employment. Provisions that are relevant to particular types of employment relationship will

obviously only impact on those types of relationship. For example, provisions dealing with the rights of casual employees will not be relevant to permanent employees and their contractual relationships with their employers.30 Similarly, provisions that deal with small business prescribed procedures for termination of employment will not generally affect the dismissal operations of large corporations.31

Awards and collective agreements 1.29 Awards and collective agreements play a very important role in Australian employment relations. Industry or trade-based awards regulate the relationships between employers and employees by providing basic terms and conditions of employment. Likewise, collective agreements provide terms and conditions of employment for employees of a particular employer.32 In all states and territories, federal awards and agreements operate. Federal awards and agreements are anticipated to cover most Australian employers and employees. State-level industry and trade-based awards apply to specific employers and employees outside the federal system. Federal awards are called modern awards and generally apply to employers and employees engaged in particular industries, trades or crafts. In contrast, collective agreements, known as enterprise agreements, are generally about a single employer’s relationship with their employees. Modern awards are created by a specialist commission, the Fair Work Commission, and are binding on those they are stated to cover. Enterprise agreements, on the other hand, are the outcome of negotiation between the employer and its employees, usually represented by a union or unions. At the federal level, agreements are made by private sector employers who are incorporated, and function as an alternative mode of regulation to an otherwise applicable award. At the state level, collective agreements are made by state government employers, and sometimes other employers not a part of the federal system, for the same effect.33

Progressive reform 1.30 Collective agreements, known as enterprise agreements in the federal system, have become increasingly popular in Australia over the last 20 years. One reason for this is that modern awards cover only a prescribed list of matters relevant to employment relationships. Simplification of the content and rationalisation of the number of awards has also occurred. The purpose of awards is to supply a safety net only, the most fundamental terms and conditions of employment.34 That is, each award provides a [page 11] floor of rights under which it is not lawful for a person to be employed. Awards cover a range of permitted and required terms, like minimum wages, types of employment, hours of work, pay rates, penalty rates, leave and dispute resolution processes.35 They are broad in application and leave other matters relating to employment as matters to be agreed in an enterprise agreement, where possible. In addition to awards, federal legislation adds specific employment standards, called the National Employment Standards (NES). They include maximum weekly hours of work, leave entitlements, and notice of termination and redundancy pay entitlements. Minimum wages are also set for federal system employees, but separately to the NES.36 National Employment Standards are the floor of rights for those employees not covered by an award. Enterprise agreements are left to regulate an expansive range of employment matters, not limited to pay and leave, and including matters relating to employee development, flexible remuneration, processes for restructuring and redundancy, and grievance handling.

Awards and agreements and their interaction with contracts of employment

1.31 An award or agreement can affect an individual’s employment in a number of ways. Commonly an award will deal with matters that are not always discussed when a contract is formed, like rest breaks and maximum shift lengths. An enterprise agreement may deal with an even broader range of matters, things like redundancy processes and dates for annual wage increases. As separate modes of regulation, applicable awards and agreements might also impact on the implementation of the terms of the contract of employment — standardising methods of wage payment, for example. Note, awards and agreements will not alter or modify the terms of the employment contract merely by their existence. Their operation might make contract terms ineffective, because the award or agreement provides for superior benefits for the employee, but they do not actually vary what has been agreed by the employer and employee as the terms of their individual relationship. 1.32 In short, the legal relationship between an employer and an employee may be governed by an award or, if one applies to that employment, an agreement, but it will also be governed by a contract of employment formed by the employer and employee. There is no automatic incorporation of award or agreement terms as contract terms just because an award or agreement exists. The award, agreement and contract of employment co-exist as separate sources of legal rights and obligations. The parties can by express agreement incorporate some or all of the provisions of an award or agreement into their employment contract, but it is not typical. Usually the contract operates without referring to the award or agreement that applies, and the award or agreement operates as well. A contract of employment may provide for better terms and conditions of employment than the award or agreement that would apply. Then, [page 12]

it would be in the interests of the employee to enforce the contract. Alternatively, the contract may provide for inferior terms, for example, a lower wage rate. When a contract includes agreement to less than the minimums set by an applicable award or agreement, those specific terms of the contract will not override any superior award or agreement provision. The award or agreement provision is enforceable. This can happen when a contract continues to operate for a period of time, during which time the wage rate is not updated. The award or agreement provisions, which will include current wage rates, will be enforceable regardless of what is in the contract.

International standards The United Nations and the International Labour Organization 1.33 The United Nations encourages and promotes respect for human rights and fundamental freedoms without distinction as to race, sex or religion. The International Labour Organization (ILO), an important branch of the United Nations, focuses on rights and freedoms that should be enjoyed by all workers living in member states, of which Australia is one. Standards set by the ILO can have an influence on Australian legislation and the common law. These standards are described in Conventions, Declarations and Recommendations which relate to specific areas of worker experience. Anti-discrimination standards, termination of employment standards, freedom of association standards, antislavery standards, and minimum working age standards are examples.37 For instance, the Discrimination (Employment and Occupation) Convention 1958 (No 111) was ratified by Australia on 15 June 1973. It prohibits employment discrimination. Article 2 says: Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in

respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.

Legislation and international law 1.34 Member states of the ILO determine and set minimum work standards that may be ratified by the various domestic parliaments and implemented in domestic legislation. Where the Australian federal government ratifies a convention it is generally asserting its compliance, or intention to comply, with the standards found in it. The federal government has power to make domestic law in respect of responsibilities it undertakes as a ratifying member state. The power is found in s 51(xxix) of the Constitution: [page 13] The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to … External affairs.

This power is recognised as a valid source for federal government law-making about international labour standards. It is an independent source of power and does not need support from other constitutional powers;38 and can extend federal government power beyond previously settled boundaries. With regard to employment regulation, the external affairs power can support a broad range of legislation not necessarily linked to the Constitution’s labour power, the conciliation and arbitration power,39 or other powers used to regulate employment.40 An example would appear to be federal legislation which prohibits adverse action against an employee based on the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.41

The common law and international law

1.35 The common law may develop reliance on ILO principles for guidance in the interpretation of contracts, legislation and industrial instruments, especially where an ILO standard, or expression from one, is referred to.42 Qantas Airways v Christie [1998] HCA 18 FACTS: Christie, a pilot, was compulsorily retired at the age of 60. ISSUE: Was Christie discriminated against on the basis of his age? DECISION: Qantas was successful in arguing that overseas regulations requiring their pilots to be less than 60 years old meant they could not continue to employ Christie without favouring him on domestic rosters. In the process of making this determination, McHugh J referred to Art 1(2) of the Discrimination Convention and the meaning of the term ‘job’ given by the Convention when interpreting anti-discrimination legislation.

Reference to ILO Convention implementations by other member states may also be significant in forming comparative viewpoints on employment standards.43 [page 14]

REVIEW EXERCISES 1. Identify two sources of legal obligation for employers and briefly describe them. 2. Identify a source of legal obligation that is superior in terms of enforceability. 3. Identify a source of legal obligation that may assist in the interpretation of legislation. 4. Is international law on labour standards relevant to Australian employers and employees?

FURTHER READING •

B Creighton and A Stewart, Labour Law, 6th ed, The Federation

• • •

1 2

3 4 5 6 7 8 9

10 11 12 13

14 15 16

17 18 19

Press, 2016, Chs 2 and 3. R Owens, J Riley and J Murray, The Law of Work, 2nd ed, Oxford University Press, Melbourne, 2011, Ch 2. M Pittard and R Naughton, Australian Employment and Labour Law, LexisNexis Butterworths, Sydney, 2015, Ch 2. C Sappideen, P O’Grady and J Riley, Macken’s Law of Employment, 8th ed, Lawbook Co, Sydney, 2016, Ch 1.

N L Wallace-Bruce, Outline of Employment Law, Butterworths, Sydney, 1999, Ch 1. For example, convicts were brought into Western Australia from 1850–1868: F K Crowley, Australia’s Western Third, A History of Western Australia from the First Settlements to Modern Times, Macmillan, London, 1960, especially Ch 6. R v Keite (1697) 91 ER 989 at 992 per Holt CJ. C Sappideen, P O’Grady, J Riley and G Warburton, Macken’s Law of Employment, 7th ed, Thomson Reuters, Sydney, 2011, Ch 2, especially pp 24–5. For example, in New South Wales in 1788, and Western Australia in 1829. 6 Vic No 5; applicable to the Swan Colony, now Western Australia. For example, Western Australia introduced the Truck Act 1899 (63 Vic No 15). For example, Fair Work Act 2009 (Cth) s 294. Australia’s highest court of appeal was once the Privy Council in England. Federal legislation changed the court hierarchy in Australia: Privy Council (Limitation of Appeals) Act 1968 (Cth) and Privy Council (Appeals from the High Court) Act 1975 (Cth). State legislatures passed equivalent legislation. See and Philadelphia Declaration, ILO Constitution 1944. R Owens and J Riley, The Law of Work, 2nd ed, Oxford University Press, Melbourne, 2011, Ch 1, especially p 3. See n 11, pp 17–18. For example, s 11 of the Fair Work Act 2009 (Cth) (FWA) gives the term ‘employee’ its ordinary meaning, which by s 15(1) includes a reference to a person who is usually such an employee and does not include a person on a vocational placement. Mears v Safecar Security Ltd [1982] 3 WLR 366 at 383 per Stephenson LJ. Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410. Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410. Note, implying a term in a particular factual circumstance requires that the term be reasonable and equitable, necessary (contract is ineffective without it), obvious, clearly expressed, and not contradictory of an express term: BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 16 ALR 363 at 376 (Privy Council). For example, Lawson, Surace and Hall v Joyce Australia (1995) 76 WAIG 20. Tibaldi Smallgoods v Rinaldi [2008] VSC 112. For example, the company provided accommodation for its employees in remote

20 21 22 23 24 25 26

27 28

29 30 31 32 33 34 35 36 37

38 39 40 41 42 43

areas: Hamersley Iron Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1990) 70 WAIG 3001. Richardson Pacific Ltd v Miller-Smith [2005] WAIRComm 545 at [73]. Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 64 ALR 481. For example, Miller-Smith v Locker Group [2004] WAIRComm 12498. For example, Ryan v Textile, Clothing and Footwear Union of Australia (1996) 66 IR 258. Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410. Fair Work Act Pt 2-4. Fair Work Australia was established by s 575 of the Fair Work Act. Some states have their own industrial relations commission, with their jurisdiction determined by state legislation and limited by the coverage of the national system. Section 576 of the Fair Work Act lists FWA functions, and its powers are specified throughout the Act. All of the states, except for Western Australia, have referred power to the federal government in respect of private sector employers and employees. As a matter of agreement, some local governments and their employees remain covered by state systems. Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 at 423 per Latham CJ. For example, Fair Work Act s 67(2). For example, Fair Work Act s 388. Multi-employer agreements can be made in specific situations. These are known as multi-enterprise agreements. See Fair Work Act s 172(3). For example, in Western Australia, agreements can be made by unincorporated employers. Fair Work Act ss 3(b) and 134(1). Fair Work Act s 136. Fair Work Act s 3 (objects of the Act). There is a national minimum wage order for employees covered by the federal system. For example, Discrimination (Employment and Occupation) Convention 1958 (No 111); Termination of Employment Convention 1982 (No 158); Equal Remuneration Convention 1951 (No 100); Freedom of Association and Protection of the Right to Organise Convention 1948 (No 87). Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Victoria v Commonwealth (1996) 187 CLR 416. Constitution Act 1901 (Imp) s 51(xxxv). For example, the corporations power, s 51(xx). Fair Work Act s 351(1). Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 128 ALR 53. French J in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 274 took interpretive guidance from the United Kingdom and the United States in relation to sex discrimination legislation.

[page 15]

CHAPTER 2

What is Employment? OBJECTIVES • •

Distinguish employment from other work relationships Identify features of work relationships that indicate employment

IDENTIFYING EMPLOYMENT Legal consequences 2.1 Determining whether a worker is party to a contract of employment is extremely important in Australia. It gives rise to a number of legal rights and obligations. However, employment is only one type of work relationship. There are many other legal relationships that involve the performance of work. Independent contracting and partnership are just a couple of examples. Determining whether a worker is working under a contract of employment, in contrast to working under another type of arrangement, will be significant for a range of legal issues. 2.2 Whether an employer is, or is not, liable to others for an employee’s conduct is one such issue. The vicarious liability of an employer for losses caused by an employee is most likely recognised where the employee causes the loss while acting in the course of their employment.1 What is in the course of an employee’s employment is, perhaps, not always certain. If the employee acts negligently in a typical and anticipated performance of their work, which causes loss, then the employer is responsible for that loss. If the employee is on a ‘frolic of his own’,

then the employer would not be liable.2 However, it is not uncommon for the employee’s course of employment to be interpreted to include behaviours that are for the employer’s benefit, but have not been specifically authorised. For example, a security guard might injure a patron, by acting aggressively, in their attempt to protect other patrons.3 It could also be that there is a sufficient connection identified between what the employee is employed to do and what they have done. If the conduct that has caused loss is linked to a special risk created [page 16] by the employer’s business, this connection may be recognised.4 For example, a carer might steal money from the employer’s client, something they can do because they have access to client bank accounts when making purchases for clients.5 There may be situations where the employer has not fully clarified the extent of the employee’s authority, and their apparent authority to others means the employee is seen as acting on behalf of the employer. Vicarious liability can arise in all of these circumstances. 2.3 This type of liability is generally not relevant to contractors who hire independent workers, unless the contractor has directly authorised an act. Sweeney v Boylan Nominees (2006) CLR 161 FACTS: Sweeney, a service station/convenience store customer, was injured when the door of a fridge fell on her. The fridge had recently been serviced by a mechanic engaged by Boylan, the owner of the fridge. The mechanic was found to be negligent in servicing the fridge. ISSUE: Was Boylan vicariously liable to Sweeney? DECISION: Liability would require identification of an employment relationship, so that the negligent mechanic was an employee of Boylan. The High Court found that Boylan did not employ the mechanic who had repaired the fridge. The mechanic was an independent contractor and not in an employment relationship

with Boylan. Consequently, Boylan was not vicariously liable for the mechanic’s negligence.

2.4 Legislative protections, like leave entitlements, minimum pay rates and rights on termination, often depend on the worker being an employee. Tax liability and superannuation contribution requirements are also determined on criteria that distinguish employment from other types of work. If a worker is in business for themselves, perhaps contracting as an independent contractor and not as an employee, different obligations may arise. Narich Pty Ltd v Commissioner of Pay-roll Tax (1983) 50 ALR 417 FACTS: The New South Wales Commissioner of Pay-roll Tax determined that Weight Watchers lecturers received wages within the meaning of the relevant payroll tax legislation. The Commissioner issued a tax assessment on amounts paid to the lecturers from 1973–1977. The company objected to the assessment arguing the lecturers were not employees. ISSUE: Were the lecturers employees? [page 17] DECISION: The Supreme Court of New South Wales disallowed the objection. On appeal, the Privy Council held the contract signed by the lecturers and the company, as a whole, created a relationship of employer and employee. The lecturers were paid out of company money which could be regarded as wages paid.

2.5 Creating an employment contract rather than hiring the labour of an independent worker can increase the costs an employer faces in running their business. For example, an employer will be required to have insurance for employee injury, be liable for payroll tax, and make superannuation contributions for employees. Extensive legislative responsibilities have encouraged business operators to look for alternative ways of having work performed, to foster increased flexibility and efficiency. Using independent contractors to perform work is very popular, with some business operators requiring workers to incorporate a separate legal entity as a prerequisite to working for them.

The employment relations systems in Australia are erected on the foundation of an employer–employee relationship and the common law contract of employment it creates. The systems do not generally apply to workers who are not party to a contract of employment. That is, the legislation only applies to employers and employees. The systems are concerned with both individual and collective aspects of the employment relationship. Of course, there are other laws relevant to the performance of work which apply to workers who are not employed.6 Examples include workers’ compensation and health and safety legislation, which apply to independent workers as well as employees.

Legislative definitions Employee 2.6 Identifying an employment relationship centres on the meaning of the terms ‘employee’ and ‘employer’. The common law provides a method of identifying employment. Where legislation contains an exhaustive definition of the term ‘employee’, the common law definition will have a lesser role. However, often statutes rely on the common law definition, and either do not contain a definition or the definition is a circular one (it uses the word ‘employee’). Federal legislation has defined an employee as ‘a person who is usually an employee’ and expects use of the common law definition.7 The term ‘national system employee’ is an important one in the federal legislation, but it is only defined in relation to who is covered by the national system, and not in relation to who an ‘employee’ is. There are some statutory definitions that refer to the historical term ‘contract of service’, but they also are typically not accompanied by any further explanation. ‘Contracts of service’ generally refer to contracts involving the service of an employee to an employer. Again, though, identifying the particular type of contract will mean the common law is relevant.

[page 18] 2.7 Interestingly, legislation sometimes provides greater certainty when it deems a specific type of worker an employee, for the purposes of providing coverage of the legislation.8

Employer 2.8 Speaking colloquially, the employer is the boss, once referred to as the master. Today, an employer could be an individual, but is often a company, a partnership, an association or a club. An employer can be any of these legal persons. In Australia, it is important to know whether an employer is incorporated. It is also pertinent if the employer is a government agency.9 Federal legislation applies to most Australian employers, usually focusing on the employer’s legal status as a corporation, but perhaps also on other criteria.10 State legislation applies to particular employers, usually depending on whether they form part of the state public sector.11

COMMON LAW TESTS 2.9 The common law has not produced a single definitive rule that identifies a contract of employment or that identifies who is an employee. It approaches the issue by categorising work relationships and distinguishing employment from other types of work; contracts of service are isolated as unique. In determining whether or not a worker is an employee, the common law often recognises the differences between an independent contractor and an employee. This happens frequently because there can be similarities in the way performance of the work occurs. Independent contractors are workers who supply their services as a business person, independent of the user of their services, and having their own business. If the legal status of the worker is that of an independent contractor, the contract is one for services. In contrast, if the worker

[page 19] is an employee, there is a contract of service, or a contract of employment. ‘For’ and ‘of ’ are words that have great significance in this instance. An employee works under a contract of service or contract of employment, whereas an independent contractor works pursuant to a contract for services. To distinguish between types of contracts for the performance of work, the common law developed a number of principles which form the basis of various tests. They include: • the control test; •

the integration/organisation test;

•

the in business/economic reality test;

•

the Ready Mixed Concrete test; and

•

the multi-factor test, or the totality test.

Only one of these tests is now used, but they are all still of relevance because the current test relies on aspects of all of them.

The control test 2.10 In Yewens v Noakes (1880) 6 QBD 530 at 532, Bramwell LJ stated ‘a servant is a person subject to the command of his master as to the manner in which he shall do his work’. As late as 1951, the test was expressed by Ormerod J in Gould v Minister of National Insurance [1951] 1 KB 731 at 734: It is clear that the real question is one of degree of control exercised by the person employing the artiste, and this, as I see it, means not only the amount of control but the nature of that control and the direction in which it is exercised.

There are two elements of the control test: • the nature of the control; and •

the degree of the control.

Federal Commissioner of Taxation v J Walter Thompson (Aust) Pty Ltd (1944) 69 CLR 227 FACTS: Walter Thompson engaged artists to perform radio plays for the purpose of advertising. The actors were paid a fee for their actual performances, but not for the rehearsals. The company argued the actors were independent contractors and no payroll tax was due in respect of fees paid to them for their engagement with the company. ISSUE: Were the actors employees? DECISION: The High Court of Australia held the actors were employees. The court concluded the company producer exercised a detailed and extensive control over the artists during rehearsals and during the final performance. This was necessary in order for each artist to cooperate with the others in the team so as to bring about a result largely determined by the producer. The fees paid were also considered wages for the purposes of the payroll tax legislation.

[page 20] 2.11 The control test was developed in the nineteenth century when employees were typically engaged as domestic servants or agricultural or manual labourers. As the nature of work changed over time, the control test became increasingly difficult to apply. Workers may have had specialist skills beyond the knowledge or expertise of the employer, and they performed tasks without the supervision of the employer. In these situations, employers were not directing the manner in which the work was to be done. The degree of control came to be, by itself, not determinative of control. 2.12 The mere existence of control came to be understood as not determinative. Control was accepted to be present in other work relationships that were not employment, for example, agency relationships. Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 FACTS: Chaplin was appointed as a representative of AMP Society for the purpose of selling life insurance policies. The conditions of his engagement were

contained in a booklet. Chaplin brought a claim for long service leave pursuant to the state Long Service Leave Act. ISSUE: Was Chaplin an employee? DECISION: The Privy Council carefully examined the terms of the agreement contained in the booklet. It identified a number of factors pointing to Chaplin being an agent only, including a right to incorporate his business and, more importantly, an apparently unlimited right to delegate his duties to agents of his choice. He also had a right to enter into a partnership. The Privy Council held Chaplin was not an employee, so he was not entitled to long service leave. They found that although some of the clauses of the agreement were indicative of control by AMP, they were not conclusive of the nature of the relationship between Chaplin and AMP. This was because the measure of control involved was not inconsistent with an agency agreement. The Privy Council concluded that Chaplin was operating a business of his own. His income tax returns showed deductions that were nearly half his gross income and more than half of his commission went into expenses.

2.13 A company’s essential level of control over a working relationship will not transform an independent contract into a contract of service if all other features of the relationship indicate the worker is independent. Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539 FACTS: A grazing company, Queensland Stations, and Bryant, a cattle drover, entered into a written agreement. Bryant was to obey and follow lawful instructions of the company, to use all of his efforts to drove the cattle, and to report on the number and condition of the cattle from time to time. Bryant’s payment was at an agreed rate for each head of cattle he delivered to a specified station. He alone was responsible for [page 21] the provision of necessaries for the men and their wages costs, and for the provision of equipment, horses and their rations. ISSUE: Was Bryant an employee? DECISION: The High Court of Australia held Bryant was not an employee of the company. He was an independent worker, employing others, and being paid according to results. The responsibility of droving the cattle was his and the company gave him full control over how he achieved delivery to the agreed destination. The method of payment he received indicated he was being paid to drove and take care of the cattle, as assigned to him, and to provide that service independently to the company.

2.14 The courts tried various formulations of the control test to achieve an adequate differentiation between employees and other workers. Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 FACTS: Zujis, a circus trapeze acrobat, fell while performing and was injured. He was one of a number of artists who had been engaged as part of a team after demonstrating their routine to the circus management. The circus proprietors had no control over the precise timing and method of performance of the act. This was devised by the performers themselves. The artist had a unique or special skill not shared by the employer. ISSUE: Was the artist an employee? DECISION: The High Court found a contract of employment existed, despite there being no control exerted over how the acrobat performed his skills. The court reasoned that the acrobat was still subject to the direction of the proprietor in most aspects of work. The acrobat, for example, was obliged to rehearse, to be at the circus at certain times, observe certain safety measures, and take part in a grand parade. The High Court put forward a reformulation of the control test (at 572): What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters. The test was not about the actual control an employer exercised over a worker, but an employer’s right to exercise that control.

2.15 The Zujis reformulation modernised the control test but it did not entirely overcome problems with the test. Other factors became increasingly significant. Sgobino v State of South Australia (1987) 46 SASR 292 FACTS: Sgobino was engaged in 1978 as a casual interpreter by the Ethnic Affairs Commission. When she first applied for the job she was given a form headed ‘Application [page 22] for Registration as Contract Interpreter/Translator’. She was paid on an hourly basis, with a minimum of three hours work per shift. Sgobino allegedly injured her back as she was entering a court building on an interpreting assignment. She claimed weekly payments and medical expenses under the state workers’

compensation legislation. Her claim was refused on the basis she was not an employee. ISSUE: Was Sgobino an eligible worker within the meaning of the workers’ compensation legislation? DECISION: The Full Court of the Supreme Court of South Australia found the interpreter was an employee. A principal argument put on behalf of the commission was that it did not have actual control over the interpreter in the performance of her work. This argument was rejected. The majority noted that there was not much scope for controlling the interpreter in the course of an assignment, but the same could be said of the interpreters on the commission’s permanent staff. The majority of the court gave examples of occupations where there is not much scope for actual control and yet workers had been recognised as working under contracts of service: carpenters, crane drivers, chauffeurs in the service of a hire car company, and trapeze acrobats. In this particular case, other factors were significant. It was significant that the interpreter did not provide her own equipment for work, and that she could not delegate her interpreting duties to others. She was also recognised as integral to the commission’s operations. The Full Court found the commission had the right to control the interpreter and did decide the place and time of interpreting. The commission also had control over the interpreter through various administrative requirements. For example, she was required to be registered and to have a certificate of accreditation. She was also required to carry the certificate with her on assignments and to arrive 15 minutes before each hearing. The conclusion of the majority was that there was scope for control, if only in incidental matters. Along with other relevant factors, the interpreter was an eligible worker.

The integration/organisation test 2.16 Lord Denning in Stevenson Jordan and Harrison Ltd v MacDonald and Evans [1952] 1 TLR 101, and in Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248, proposed an alternative test: whether a worker is ‘part and parcel of the organisation’.12 In Stevenson’s case, he proposed (at 111): One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of a business, and his work done as an integral part of the business; whereas under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.

[page 23]

Although the integration or organisation test has on occasions been applied in Australia, it has generally not been accepted as a test sufficient in itself to distinguish between an employee and an independent contractor. For example, in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513, it was argued that Gray, a timber worker, was part and parcel of Brodribb’s organisation because his work was integral to the supply of timber necessary for Brodribb’s sawmilling operations. Mason J (as he then was) commented (at 519–20): For my part, I am unable to accept that the organisation test could result in an affirmative finding that the contract is one of service when the control test either on its own or with other indicia yields the conclusion that it is a contract for services.

A little later, he said (at 521): The test does no more than shift the focus of attention to the equally difficult question of determining when a person is part of an organization such that his wrongs may be imputed to that organization.

2.17 Mason J’s criticisms of the integration test refer to an outstanding need to determine what constitutes an integral part of the business, and a consequent spotlight on the nature of the business, not the relationship the worker has with the business. When independent contractors are thought of as indispensable parts of a business, this test confuses any distinction to be made.

The in business/economic reality test 2.18 The in business/economic reality test might appear to be related to the integration/organisation test, but it is dissimilar in its focus. A worker will be an employee if they are considered to be economically dependent on an employer, and having no business of their own. In contrast, a worker will not be an employee if they operate a business, chancing profit or loss, and are able to acquire goodwill. Market Investigations Ltd v Minister of Social Security (1969) 2 WLR 1 FACTS: A member of a company panel of part-time interviewers was engaged

for market research and supplied with the company’s ‘Interviewer’s Guide’, which contained detailed instructions as to the method in which interviews were to be conducted on the company’s behalf. She was paid for the number of days the company estimated the interviews would take, together with expenses. Provided she completed the work within the allotted time she was free to work for others. ISSUE: Was the interviewer an employee? DECISION: Cooke J found the extent of control exercised by the company was extensive and consistent with the interviewer being engaged under a contract of service. When the nature and provisions of the contract were examined as a whole, the interviewer was found not to be in business on her own account, but employed by [page 24] the company under a series of contracts of service. Her right to work for others was not inconsistent with the existence of a contract of service. Upon a review of the authorities, Cooke J stated (at 9–10): The observations of Lord Wright, of Denning LJ and of the judges of the Supreme Court [of the United States] suggest that the fundamental test to be applied is this: ‘Is the person who has engaged himself to perform these services performing them as a person in business on his own account?’ If the answer to that question is ‘yes’, then the contract is a contract for services. If the answer is ‘no’, then the contract is a contract of service … The most that can be said is that control will no doubt always have to be considered although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.

2.19 The question of whether a worker is in business for themselves is a critical one. In Hollis v Vabu (2001) 207 CLR 21 at 39, the High Court considered this question and concluded a worker could be identified, after viewing evidence of the relationship, by determining whether they were really working for the employer’s business. Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215 FACTS: A travel agent claimed he had been unfairly dismissed by the company. The agent conducted business at the company’s premises and received a

commission made from sales. He brought an existing clientele to the company, worked his own hours, and was under little control in relation to work performed. ISSUE: Was the travel agent an employee? DECISION: Dismissing an appeal, a Full Bench of the Australian Industrial Relations Commission determined the agent was an independent contractor, recognising the agent was conducting his own business, rather than representing the company; this was despite the agent being taxed as an employee, the contract being titled ‘Employment Contract’, and superannuation contributions being made on his behalf by the company.

The Ready Mixed Concrete test 2.20 A different approach to identifying employment was taken in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497. In that case, MacKenna J (at 515) advanced a threefold definition: [page 25] A contract of service exists if these three conditions are fulfilled. (i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service. Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 FACTS: A driver contracted with the company to deliver concrete. He bought a lorry and painted it with the company’s colours and adapted it to carry the company’s mixing unit. The driver was responsible for the running costs of the vehicle, its maintenance and repair. The company insured it. The company had exclusive service of the driver and he wore their uniform. While the driver could hire a substitute driver, the company had the right to require a different substitute. The driver was paid according to mileage. ISSUE: Was the driver an employee? DECISION: MacKenna J found the driver was an independent contractor. The contract was for the service of concrete delivery rather than the service of the driver. Although some controls existed, the driver was operating his own business.

The Ready Mixed Concrete test has not generally been accepted in Australia. It can be criticised because the method of payment requirement is not a sufficient distinguishing feature, where a money reward is commonly the subject of agreement for the performance of work, and the third condition of consistency provides no further insight.13

The multi-factor test 2.21 One of the earliest statements about the need to look at a range of relevant factors, rather than just one, was made by McCardie J when he was discussing the control test in Performing Right Society v Mitchell and Booker (Palais de Danse) Ltd [1924] 1 KB 762 at 767: It seems, however, reasonably clear that the final test, if there be a final test, and certainly the test to be generally applied, lies in the nature and degree of detailed control over the person alleging to be a servant. This circumstance is, of course, one only of several to be considered, but it is usually of vital importance.

This approach can now be aligned with the development of the multi-factor test. The multi-factor test, currently the definitive test for identifying employment in Australia,14 [page 26] brings together a number of factors contemplated in other tests. It requires the consideration of numerous indicators that reveal the true nature of the relationship. Control is an important one, but it is not necessarily the linchpin factor. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513 FACTS: The company was the owner of a large sawmill in eastern Victoria and conducted extensive logging operations. It engaged workers to carry out three distinct functions as part of the operations: felling, snigging (or loading) and truck driving. The logging was overseen by a bush boss, an employee of the company. It was in the course of logging operations involving Stevens, a truck

driver, and Gray, a snigger, that Stevens was accidentally injured, a result of Gray’s negligence. Stevens claimed the company was vicariously liable for his injuries. ISSUE: Was the relationship based on a contract of employment or on a contract binding a principal and independent contractor? DECISION: The High Court held the two workers were independent contractors. Mason J (as he then was) advanced (at 517) the multi-factor test thus: A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it. But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question … Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.

Building Workers Industrial Union of Australia v Odco Pty Ltd (Troubleshooters case) (1991) 37 IR 380 FACTS: Odco supplied workers to building industry clients. The workers signed a contract which described them as independent contractors. The union opposed the practice of hiring workers on this basis. ISSUE: Were the building workers employees? DECISION: The Full Federal Court of Australia applied the multi-factor test when it held that workers who had entered into contracts with the agency (Troubleshooters) [page 27] and had been assigned to work with building contractors were not employees of the agency or of the building contractors. Instead, they were independent contractors who worked under contracts for services entered into with a principal, the agency. The court emphasised that this relationship was different to other agency relationships where a worker is paid by the week and lent out to contractors. The relationship between this agency and the workers was not one of employment because, for the workers, there was no obligation to work any day other than the one agreed to, and, for the agency, there was no obligation to give work on any day other than the one agreed to. The agency was recognised

as not having any significant control over the workers. Agreement not to receive any leave entitlements and the specific wording of the contract signed by workers indicated, on balance, there was no employment despite payment for work on an hourly basis. There was a separate contract between the agency and the building contractors, but there was no contract whatsoever between the workers and the building contractors, even though the workers took directions from them and actually performed work for them. Vabu v Commissioner of Taxation (1996) 81 IR 150 FACTS: Vabu traded as Crisis Couriers and offered a delivery service. For the purposes of superannuation contribution liabilities, the company sought a declaration that the couriers they used were independent contractors and not employees. ISSUE: Were the couriers independent contractors? DECISION: Applying the multi-factor test, the New South Wales Supreme Court of Appeal recognised that there was a significant amount of control exercised by Crisis. However, the facts of self-ownership and maintenance of vehicles (cars, bikes, vans), self-taxation, and payment by quantity of deliveries, were considered sufficient to indicate these workers were not employees. As Meagher J put it (at 151): It is not fanciful to say that each courier conducts his own operation, permitting himself for his own economic advantage to be supervised by the company. Interestingly, some couriers used by Crisis were later found to be employees, albeit in a different context. Hollis v Vabu (2001) 207 CLR 21 FACTS: An injured pedestrian sought compensation from Vabu for the negligence of a bicycle courier. ISSUE: Was the courier an employee? DECISION: Vabu was found to be the employer of a bicycle courier. The High Court found an employment relationship existed on an application of the multifactor test. [page 28] The court focused on the control aspect of the test and emphasised that it sought to accommodate the modernisation of the employment relationship. When the court looked at the courier’s situation, it recognised the worker was not in business for himself and could not generate goodwill. The courier was

obliged to work and was not free to determine how he would perform his work. It was a matter of signing on at a set time, being assigned work, and being under threat of dismissal if work was refused. The courier wore a Crisis Courier uniform, advertising that business. Payment was by quantity of deliveries but was subject to deductions made and determined by Vabu. The fact of ownership of the bike was not determinative, since Vabu also provided some equipment, like radios. Crisis did not constrain the use of bikes, cars and vans for non-work purposes. The totality of the relationship indicated, on balance, that the courier was an employee and worked for the employer’s business. The court did suggest its decision was affected by a desire to deter companies from acting in an irresponsible manner in respect of the public and to impose responsibility for the harm their business activities may occasion. It was significant that the bicycle couriers were identifiable by members of the public as Crisis Courier workers, not as individual contractors. Sammartino v Mayne Nickless (2000) 98 IR 168 FACTS: Sammartino was an owner–driver, working for Mayne Nickless in its Wards-Skyroad courier service for 12 years. When dismissed for misconduct, he sought compensation on the basis he was an unfairly dismissed employee. ISSUE: Was Sammartino an employee? DECISION: Sammartino succeeded when the Full Bench of the Australian Industrial Relations Commission agreed that, for the purposes of the federal termination legislation, he was an employee. They applied the multi-factor test, and found that Sammartino was under much the same level of control as Mayne’s award employees. He had a clear and regular obligation to work. Although he had his own business name, and managed his own tax, his weekly payment was not inconsistent with that of a waged employee, and neither was his entitlement to various forms of leave, accrued according to number of hours worked. Sammartino’s ownership of his van was not determinative since he was compensated for repair and maintenance costs which made up over one-third of his weekly payments. An unclear right to delegate work was also not decisive. The Full Bench concluded (at [112]): We have indicated that the degree of control exercised by Mayne Nickless over Mr Sammartino’s work as a driver discharging his personal contract was of a degree not markedly different from that exercised over employees. That indicia weighs most heavily with us.

[page 29] Danevski v Guidice [2003] FCAFC 252

FACTS: Danevski had been an employed cleaner, working for Endoxos for three years. Endoxos approached Danevski with the choice of dismissal or contracting his services to MLC Workplace Solutions (MLC). Danevski resigned from Endoxos, but continued to work under Endoxos’ direction. He still used Endoxos’ vehicle and wore its uniform, as well as using its equipment. Although Endoxos determined how much he was paid, MLC issued his pay. On occasions of illness, Danevski contacted Endoxos, who managed his hours and place of work, to let them know of his absence. On one occasion of illness, Endoxos terminated Danevski’s employment. MLC was not involved in the dismissal procedure. Danevski went to the Australian Industrial Relations Commission, claiming unfair termination on the basis that he was an employee. The commission decided it had no jurisdiction in the matter because Danevski was an independent contractor. ISSUE: Was Danevski an employee? DECISION: The Full Court of the Federal Court of Australia determined that the commission did have jurisdiction to hear Danevski’s claim because he was an employee, and that he was still an employee of Endoxos. MLC was found to have no contract with Danevski, merely an administrative role with Endoxos.

Australian Air Express v Langford (2005) NSWCA 96 FACTS: Langford, a driver who made deliveries for AAE, owned his own vehicle and paid for its operating expenses. He was injured by an AAE employee when a forklift ran over his foot. Langford had signed an Owner/Driver Agreement which permitted him to use a substitute driver on approval of AAE. Prescribed Payment Scheme taxation was deducted from his earnings (in contrast to payroll tax). No holiday or sickness leave was paid to him. Langford claimed the costs of his injuries from AAE, suing AAE on the basis they were vicariously liable for the negligence of their employee. AAE sought to argue Langford was an employee and therefore restricted to claiming compensation under Comcare, a workers’ compensation scheme for Commonwealth employees. Langford maintained he was a contractor. ISSUE: Was Langford an employee or an independent contractor? DECISION: The New South Wales Court of Appeal found he was not an employee after considering the totality of the relationship. Langford’s ownership of and responsibility for his truck and the ability to delegate, albeit subject to AAE’s approval, were weighty factors determining his independent contractor status. The substantial expense of the truck and its maintenance was relevant. The approval of AAE on delegation of a different driver was recognised as necessary for the efficient operation of the business, and not a diminution of Langford’s right to delegate.

[page 30]

2.22 The multi-factor test is not a structured test that enables an exact categorisation of every work relationship. It embraces the changing nature of work and weighs up or balances different factors to reflect the actual nature of a particular relationship in any determination. A case-by-case approach must be taken. Consideration is given to each incident of the work relationship, including new factors that may have become relevant since the relationship was embarked on and which may not have been covered in an initial skeletal agreement. Control factors must be a subject of primary deliberation, but are not decisive in isolation of other factors. Considering the need for a necessary baseline level of control in many work situations means that control cannot be determinative. Which factors are relevant in any particular situation will depend on the circumstances of that case. 2.23 The multi-factor test has increasingly been fashioned into what is sometimes referred to as the totality test, reflecting an attachment of significance to a practical assessment of the nature of the relationship as a whole. This formulation looks at all of the following factors, in addition to control, and makes a global assessment, balancing factors as they are perceived and not according to any prescribed formulation of them. The list of relevant factors is not exhaustive but may help identify an employment relationship: • the mode of remuneration, where payment on submission of invoices will suggest an independent worker operating a business of their own; •

the provision and maintenance of tools and equipment, where the worker supplies them, can indicate an independent worker relationship;

•

substantial expenditure by the worker, as a proportion of total income, which can indicate an independent worker relationship;

•

the worker being managed, in terms of rostering and duties, in the same manner as employees, which can indicate

employment; •

the place and hours of work not being at the discretion of the worker, which suggests the worker could be an employee;

•

the worker being continuously trained and monitored on their skill levels, which can indicate employment;

•

provision for holidays and sick leave being determined by the worker, which can indicate an independent worker relationship;

•

delegation of work to others, which may indicate an independent worker relationship;

•

the worker entering into the work contract in a name other than their personal name, in the name of a company for example, which would indicate the existence of a business run by the worker, and an independent worker relationship;

•

the worker generating goodwill for his or her services, which can indicate an independent worker relationship;

•

the worker wearing a uniform or identifying badge or other marking, appearing to others as an employee representing the employer, indicates employment; and

•

the worker being engaged for completion of a specific task, which can indicate an independent worker relationship. [page 31]

2.24 In Abdalla v Viewdaze (2003) 122 IR 215, the Australian Industrial Relations Commission listed other helpful indicators:15 • whether there is a right to suspend or dismiss the worker; •

whether the worker has a separate place of work and/or advertises their services; and

•

whether the work involves a profession, trade or distinct

calling. The first of these may help to indicate employment if it has been expressly stipulated because it means the worker is subject to receiving work at another’s discretion, not their own. The others may also assist in characterising a relationship. Certainly, the fact that a worker receives or does not receive entitlements an employee receives (for instance, overtime allowances or superannuation contributions) does not make the relationship one of employment or not. 2.25 In On Call Interpreters and Translators Agency v Commissioner of Taxation (No 3) [2011] FCA 366, the Federal Court of Australia emphasised a focus on which entity benefits from the work performed by the worker. First, it queried whether the worker performed the work of an entrepreneur who owns and operates a business. Then, second, it considered whether the worker, in performing their work, represented their own business or that of the business receiving the work. That is, was the work being performed in and for the business receiving the work, or in and for the worker’s business? The contemplation of who benefits from the work is a factor which looks at the larger business context of the relationship. On Call Interpreters and Translators Agency v Commissioner of Taxation (No 3) [2011] FCA 366 FACTS: On Call had not made superannuation contributions for interpreters and translators working for them. The Commissioner alleged these workers were employees and that contributions should have been made. ISSUE: Were the interpreters employees for the purposes of the superannuation guarantee charge? DECISION: The interpreters and translators were found to be performing work in and for the business of On Call and not for their own business. There were no identifiable independent economic activities engaged in by the interpreters and translators. Rather, their activities were integrated into the business of On Call. Among other factors, the interpreters and translators did not actually run the risk of profit or loss, create goodwill (as distinct from reputation), advertise to the public, negotiate fees, or have independent banking and finance accounts. They also did not subcontract to others. On Call held a right to control the workers, to require work performed to the standards they set. On Call was found to have

employed the workers and were ordered to make superannuation contributions on their behalf.

[page 32] 2.26 With modern interpretations of the multi-factor test come new formulations, perhaps reflecting an appreciation of changes in the way people’s work is organised; but they do not change the essence of the test itself. In ACE Insurance v Trifunovski [2013] FCAFC 3, the Full Court of the Federal Court used the multi-factor test in a contemporary environment when it dismissed an appeal against a finding that a group of insurance agents were employees. The agents had successfully sought payment for unpaid annual and long service leave when it was determined there were no decisive factors that established them as contractors, and even though a few operated companies of their own and paid commission to others on occasion. The finding they were employees was despite the agents themselves understanding they had been hired as independent contractors. The court had looked at requirements for personal service by the insurance agents when weighing a number of factors. Giving personal service as authorised representatives of the insurance company in this case had meant the agents were not free to choose how the service they provided was best performed; rather, the insurance company exerted high levels of control over their work, in terms of training, organisation into teams and allocation of the work itself. The underlying work practices were important factors and indicated there were actually no separate businesses being operated by the agents. The only business operating was that of the principal insurance company. Multiple indicia were used to evidence the true nature of the work relationships. 2.27 Identifying any one factor does not determine if the worker is an employee or independent worker. Workers who receive commissions instead of wages, or who supply their own tools and

equipment, or who have had no income tax deducted from their earnings, have been found to be employees. All of the relevant factors in a case must be carefully examined. The indicia present in any particular case must be assessed and balanced in order to arrive at a final position. There is no established weighting to be given to any one factor in any particular situation, although a significant weighting being attributed to the control factor would appear to be consistent with the Stevens v Brodribb Sawmilling decision. Where other factors in a case are evenly balanced, prominent rights to control could tilt the scales towards employment being recognised. 2.28 The multi-factor test, currently the definitive test, focuses on important distinctions between the nature of employment and other types of work relationship. The legal purpose for using the test may have significance. Distinctions are commonly made in the context of workplace injury, tax liability and third-party loss. Whether the test is used for determining vicarious liability in relation to a third party suffering loss, or clarifying business taxation responsibilities, or providing compensation for an injured worker, it continues to provide outcomes reflective of those most socially acceptable.16 [page 33]

Other tests 2.29 Taxation of self-employed contractors in Australia is subject to a test which relies on the amount of income earned from a single source; that is, the Australian Taxation Office asks whether 80 per cent or more of the contractor’s income is from a single client.17 The calculation determines whether the contractor is taxed as an employee, despite the contractor asserting they operate a business themselves. The Taxation Office is essentially measuring the level of independence of the contractor – they also use questions about whether the contractor employs others and

advertises their business to reveal disguised employment. For the contractor, being categorised as an employee means they cannot claim certain deductions from their declared income. 2.30 The 80 per cent test is used to categorise contractors for the purposes of taxation only and is not a default or general test for distinguishing employees from independent contractors. How many sources of income a worker has is not a distinguishing factor that characterises the nature of a work relationship and would not adequately deal with the reality that many employees work for a number of entities, often as casual, part-time or temporary workers.18 The number of entities that work is performed for does not necessarily correlate with a particular type of work relationship.

Labelling 2.31 The question of whether a contract is one of employment is a question of law. The nature of the legal relationship between a worker and the user of their labour cannot be changed simply by labelling it something else. A contract labelled ‘Employment Contract’ is not an employment contract merely because it is labelled so. It must, in substance, be about an employment relationship to be recognised as one. A contract labelled ‘Contract for Services’ is not one in law unless it provides, at least, for work to be performed independently, with no unnecessary control, perhaps in respect of a specific service output and, importantly, as part of the worker’s own business. Other factors would also necessarily support a non-employment relationship. It is clear that written contracts expressly labelling the legal status of the worker do evince the intention of the parties to the contract, and that intention is crucial, as is the intention found in any of the terms of the contract itself. Indeed, a contract with a ‘this is not employment’ label may contain a clause that confirms the worker acknowledges they are not an employee of the other contracting party. However, whether a label and categorising clause are conclusive of the true nature of the relationship will be

determined by other terms in the contract and the effect of the contract as a whole.19 [page 34]

Narich Pty Ltd v Commissioner of Pay-roll Tax (1983) 50 ALR 417 FACTS: The company engaged lecturers to teach a weight loss program, detailed in The Weight Watchers Lecturers’ Handbook, in classes arranged by the company. The lecturers were remunerated according to a scale of fees, deducting their fees from money collected by them from students in the classes. The lecturers could be terminated without notice if they failed to carry out their duties in a proper manner, or if their weight exceeded the set goal weight. Clause 3 of the agreement stated that the lecturer was not an employee of the company but was an independent contractor. ISSUE: Were the lecturers employees? DECISION: The Privy Council held the effect of the contract was to create the relationship of employer and employee. The nature and scope of the work performed by the lecturer and the precise manner in which it was done were closely controlled and directed by the company through the Handbook. The Privy Council also held that cl 3 of the agreement which sought to make the lecturers independent contractors could not be given effect as it was contradicted by the other terms of the contract when read as a whole.

2.32 Where the label is not contradictory of the contract terms and the work relationship between the parties to the contract, the label is an effective categorisation.20 Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 FACTS: A clause in the agreement between the worker and AMP stated the relationship was that of principal and agent and not that of master and servant. As an existing employee, Chaplin had requested a new contract so that he could avail himself of tax benefits. His work with AMP did not change. ISSUE: Was the insurance agent still an employee? DECISION: The Privy Council held that the relationship was an independent contracting relationship, with Chaplin an independent agent. In making this decision it noted there was a written contract and considered it was confined in determining the nature of that relationship to a consideration of the terms in the contract, express or implied, and in light of the circumstances surrounding it. It concluded where there was an express provision defining the status of the

worker engaged, the provision should be properly weighted in relation to other terms of the contract, unless there was good reason to believe the provision was a sham.

[page 35] The Privy Council referred to Lord Denning MR in Massey v Crown Life Insurance Co [1978] 2 All ER 576 at 579: The law, as I see it, is this. If the true relationship of the parties is that of master and servant under a contract of service, the parties cannot alter the truth of that relationship by putting a different label upon it … On the other hand, if their relationship is ambiguous and is capable of being one or the other (ie either service or agency), then the parties can remove that ambiguity, by the very agreement itself which they make with one another. The agreement itself then becomes the best material from which to gather the true legal relationship between them.

2.33 Where a contract does not detail the main features of the work relationship accurately, other sources may be determinative. Transport Workers Union of Australia v Glynburn Contractors (Salisbury) Pty Ltd (1990) 34 IR 138 FACTS: Bird, an experienced bus driver, was offered a job as a coach captain. Shortly before each interstate trip he would sign a standard form contract. It was an express term of the contract that the parties intended to create a relationship of principal and independent contractor, and Bird was described as a contractor in the contract. It was also an express term of the contract that Bird could perform his duties personally or he could employ a driver to carry them out. However, the company’s consent was required if another driver was assigned. An interstate trip was shared between two co-drivers, but Bird had no say about whom his co-driver would be or a choice of which bus he drove. The company undertook in the contract to effect a standard employer liability insurance policy insuring against liability for both contractors and employees. It was also a term of the contract that Bird was at liberty to make arrangements and to accept engagements with a competitor of the company. On or after his second trip, Bird was given a ‘Coach Captain’s Manual’ which he was required to carry at all times while driving. The manual had a ‘Note to Contractors’ attached to it which stated the manual was meant for employee drivers but it had been made available to contractors as well for public relations reasons. The manual contained detailed rules and obligations, including an obligation to comply with rules regarding the manner in which each interstate trip was to be conducted and supervised. Bird made a number of return trips from Darwin to Adelaide. The company argued Bird was an independent contractor when Bird claimed he had been underpaid and was due wages pursuant to a relevant award.

ISSUE: Was Bird an employee? DECISION: In the court’s view, the Coach Captain’s Manual provided the context within which Bird was to perform his duties, despite the standard form contract not referring to it. The court applied the multi-factor test and had no hesitation in finding Bird’s contract was ineffective in making him an independent contractor. The court concluded the facts pointed to a relationship of employer and employee. The court had difficulty distinguishing the activities of Bird from those of an employee of the [page 36] company and concluded the contract left Bird with no scope for initiative or exercise of any special skills or even his individual judgment. Moreover, there was no element of business or profit which Bird could have derived from his activities.

2.34 Contracting parties suitably attach labels to their contracts to aid in interpretation. It is also in the exercise of the parties’ free will to include in their contract an express statement about the legal status of the worker involved. The courts will generally accept that label and enforce it. Where the parties clearly depart from their expressed intention and subsequent conduct creates suspicion of a sham arrangement, the courts can scrutinise the whole work relationship to determine its true character, and regardless of the label. Note, where the legal status of the worker is changed during the work relationship, through agreement of the parties to the work relationship, the rights and obligations of the parties will be determined in accordance with the terms of the new agreement.21 If the new agreement is one of independent contracting where previously it was one of employment and it involves performance of the same or substantially the same work, legislation will prohibit the arrangement.22

SHAM CONTRACTING 2.35 Sham contracting occurs when an employment relationship is disguised as an independent contracting relationship. Federal legislation prohibits sham contracting, with

significant penalties for principals who avoid legal obligations to their workers by contracting with them as if they were in business for themselves.23 As previously mentioned, employment attracts a number of legislative entitlements and protections, which are not available to independent contractors. A minimum wage is an example of a legislative entitlement. The common law also delivers protections to employees. Vicarious liability is an example. Denying employees benefits they have a legal right to amounts to an abuse of the worker concerned. It also disadvantages other employers who abide by the legislation and common law that applies to them. 2.36 A person who employs, or proposes to employ, someone pursuant to a contract of employment is prohibited from misrepresenting the arrangement as a contract for services, with the worker engaged or to be engaged to work as an independent contractor.24 Significant penalties are imposable and they can be imposed against not only the company misrepresenting the work arrangement but those making decisions for the company and managing it, as individuals complicit in the arrangement. In Fair Work Ombudsman v Australian Sales and Promotions [2016] FCCA 2804, the company was fined $100,000 and its sole director was fined $24,000. In addition, there were underpayments to be paid to the employee. [page 37] 2.37 The prohibition on sham contracting applies even when a third party, or corporate ‘middle man’, is involved, distancing the employer from the employee in a contractual sense.25 Creating triangular contractual arrangements to avoid the sham contracting prohibitions is risky. Fair Work Ombudsman v Quest South Perth [2015] HCA 45 FACTS: Two employed housekeepers were encouraged by Quest to

become independent contractors, to be engaged to work for a third party, a labour hire company named Contracting Solutions. This was said to be so Quest could ensure the continued supply of cleaning work to both of them. While engaged by Contracting Solutions the housekeepers continued to perform the same cleaning duties for Quest and worked on a regular basis, as they had before. ISSUE: Had Quest breached s 357 of the Fair Work Act 2009 by representing to the housekeepers that they were now independent contractors? DECISION: The housekeepers remained employees of Quest by continuing to work as they always had. Section 357 had been breached because Quest still had an employment relationship with them as a matter of law and they had represented it was now independent contracting subject to a contract for services with a third party. It did not matter that the third party was the party named in the independent contracts they had agreed to, and not Quest.

2.38 There is a defence an employer can use to defeat a claim of breach of s 357. If they did not know, and were not reckless in not knowing, that the nature of the work relationship was employment, then there will be no breach.26 It is the employer’s state of knowledge that must be evidenced as at the time they made the representation to the employee or potential employee. So, if an employer seeks legal or professional advice they could reasonably rely on, this defence may be effective; that is, if they can attest they did actually rely on the advice when making the representation.27 2.39 There is also a prohibition on dismissing, or threatening to dismiss, an employee so that the employer can engage them as an independent contractor to perform the same, or substantially the same, work.28 This prohibition operates as long as entering into the new form of engagement is one of the reasons for dismissal, and despite the employer asserting there are other reasons for dismissal.29 However, if an employee voluntarily resigns and then is engaged as an independent contractor, there will be no [page 38] breach of the provision.30 The employee’s desire to resign can be

difficult to ascertain and complicated by doubt as to whether the employee had any real choice but to resign. 2.40 In addition, there is a prohibition on an employer making a statement they know to be false to persuade or influence an employee to enter into an independent contracting arrangement, under which they would perform the same or substantially similar work.31 Proving an employer has intentionally lied is problematic, where employers are necessarily able to declare they genuinely believed their statement was truthful. 2.41 With all of the sham contracting prohibitions, it is the employer who must prove on the balance of probabilities that they did not misrepresent, dismiss or lie in breach of the particular prohibition.32 That is, it is presumed the employer acted in breach unless they prove otherwise.

TYPES OF EMPLOYMENT 2.42 Employees in Australia have a variety of different arrangements about how and when they will work. Employees do not all work full-time or permanently with one employer. Casual employment is quite common in Australia, with many young and older employees being employed occasionally, seasonally, or temporarily to replace others on leave. Employees might work part-time, others might have flexible work arrangements, and still others might be hired out to work for other organisations by their employers on specific assignments. Some employees are employed for a fixed term or to complete a single project. Understanding various types of employment is important in terms of legislative entitlements. Different forms of employment attract different legislative entitlements, in relation to rostering of hours of work, rest breaks, notice on termination, and leave accrual, to name a few. Legislation about employment in Australia still dominantly attaches entitlements to permanent employees. Federal legislation, for example, differentiates between rights of permanent and casual workers in relation to dismissal and leave.

Casual employees, who do not have ongoing work arrangements, generally attract fewer legislative entitlements.

Contracts of indefinite duration 2.43 There is a general presumption that contracts of service that are silent about their duration are of indefinite duration. This principle was established in Richardson v Koefod [1969] 1 WLR 1812 at 1816, when Lord Denning confirmed there was no longer any presumption of yearly hiring, and there was no other end date anticipated in a contract of service unless the parties have expressly agreed on one. Permanent employees are those whose contracts of employment are of indefinite duration. There [page 39] is no agreement that work is to be performed for a particular time period or linked to the completion of a particular project. The relationship of employer and employee is conducted on a regular and continuing basis, the result of a single ongoing contract. A permanent employee does not necessarily have a right to any extended period of notice on termination of the relationship; rather, they may have an agreed period of notice or a right to a reasonable period of notice.

Part-time employment 2.44 Permanent employees can be full-time or part-time. A parttime employee works fewer hours than a full-time employee over an ongoing period of time. The terms of part-time employment are contained in a single, ongoing contract, specifying the agreed number of hours to be worked on a regular basis. Part-time employees are usually entitled to similar terms and conditions as their full-time counterparts, by contractual agreement or pursuant to an award or collective agreement. Leave entitlements apply pro rata. Full-time employment is ordinarily considered to consist of

38 hours of work per week, often spread over five days.33 Part-time employment generally consists of less than 38 hours per week, arranged on agreed days of the week.34 Part-time employment has been encouraged to create greater flexibility in the labour market and is popular with tertiary students and people who have family responsibilities. Part-time employment is specifically provided for in modern awards.35

Casual employment 2.45 As a form of employment, casual employment is significant in Australia. In 1990, casual employment was considered to represent about 20 per cent of total employment in Australia, with wholesale and retail industries having the highest number of casual workers.36 Five years later, casual employment had jumped to 24 per cent,37 and in 2004 it was 26 per cent, with the accommodation, café and restaurant industry having the highest proportion of casual employees.38 The increasing percentage appears to have settled now,39 though its consistent use reflects its popularity for employer and employee flexibility and business efficiency reasons. In 2004, 40 per cent of casuals [page 40] were young workers.40 In 2010, 24 per cent of total employment involved female casuals and 18 per cent were male casuals.41 In 2015, 73 per cent of 15–19-year-olds were employees who had no paid leave entitlements and could be identified as casuals.42 2.46 The Australian Bureau of Statistics recognises casual employees by the absence of an entitlement to paid annual or sick leave, payment of a higher hourly rate, and/or self-perception of the employee; there is no single, precise identifying factor.43 In Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545, Starke J considered the term ‘casual worker’ was merely a colloquial expression. In an Australian workplace it can mean short-term or irregular work, but

it may also refer to ongoing work with relatively regular hours of work. A casual employee might have long hours of work, like a full-time employee, and simply be paid at a higher hourly rate, having no promise of ongoing work or expectation of notice when the work ends. This may be indicated by short-term rosters and involvement in short-term focused daily activities only. Alternatively, there may be indications of continuing work, but for a limited period of time. 2.47 Identifying casual employment is probably most reliably achieved by focusing on the employer’s choice to employ on a casual basis, that is, pay at a higher hourly rate, and the employee’s acceptance of work on that basis.44 That is, the employer chooses to offer casual employment, paying weekly or fortnightly, and the employee agrees to it. 2.48 A key identifier of casual employment is uncertainty about the hours of work.45 In Hamzy v Tricon International Restaurants t/as KFC [2001] FCA 1589, the Full Court of the Federal Court said the essence of casual employment is an absence of firm advance commitment about the duration of the employment or the days or hours the employee will work.46 The employer has no obligation to offer continuing work. 2.49 A distinctive feature of this type of employment is that a number of employment contracts can be involved, especially where employees are re-engaged following breaks in employment.47 Irregular rostering, specific employee availability, and resourceful management of employees can mean there is no single continuous contract attaching [page 41] to an employee. Rather, they will have a number of contracts with the one employer over time. Conversely, casual employment may involve a single contract.48 Either way, the employer has freedom

to decide when work will be offered and, theoretically, the employee can choose to accept any particular offer of work, whether it is for a shift or a longer roster period. Melrose Farm v Milward [2008] WASCA 175 FACTS: Sladden drove a tour bus and provided commentary for wine tours. He agreed to work on a casual basis. He worked for a three-year period before resigning. During those three years he did not work for 11 weeks. On average he would work for 35 hours each week, but he worked as few as 15 hours and up to 60 hours some weeks. He usually worked for the same three days each week, but was informed on a daily basis whether or not he was required to work. It was alleged he had not been paid correctly, as a casual employee, pursuant to the relevant award. ISSUE: Was Sladden a casual employee? DECISION: An appeal to the Full Court of the Supreme Court of Western Australia was dismissed. The appeal was against the decision of the Western Australian Industrial Relations Commission deciding that Sladden was a casual employee. This determination was found to be correct, made on the basis of his irregular hours of work and his requirement to work as and when required. The question of whether he was on a single contract or on a series of contracts was not determinative of him being a casual.

2.50 Regardless of there being a series of contracts or a single contract, the employee is typically likely to be identified as a casual because their employer has classified their employment as such and can request that they work as and when required. However, the employer’s characterisation of the employee’s employment as casual has not always been determinative. Williams v MacMahon Mining Services Pty Ltd (2010) FCA 1321 FACTS: Williams was employed as a casual in the mining industry on a fly-in, flyout basis. He worked for MacMahon for over 18 months on the same roster of two weeks work then two off. When his employment was terminated he claimed accrued annual leave and pay in lieu of notice on termination, entitlements only available to permanent employees. ISSUE: Was Williams a permanent or casual employee? [page 42] DECISION: The Federal Court found Williams was not a casual because of the

regular hours he worked over a lengthy period and despite his contract stating he was a casual employee. MacMahon were not able to have the casual pay loading they had paid Williams used as an offset against these entitlements.

Telum Civil v CFMEU (2013) 230 IR 30 FACTS: On completion of a building project, casual construction employees who had experienced regular and systematic employment for more than 12 months sought redundancy pay pursuant to the Fair Work Act. This entitlement is not available to casuals. There was an enterprise agreement that covered the employees’ employment and it described the entitlements of casuals, including a wage loading. Before a single commissioner the employees were found not to be casuals, according to the common law, focusing on the length and regularity of the employees’ work. ISSUE: Were the employees casuals for the purposes of the redundancy provisions in the Fair Work Act or had their regular longer term employment meant they could claim redundancy on the basis that common law would not recognise them as casuals? DECISION: The Full Bench of the Fair Work Commission found the construction employees were still casuals and could not claim redundancy payments. Their status pursuant to the Act was as stated in their enterprise agreement, also made pursuant to the Act. Since redundancy payments were legislative entitlements, and the applicable enterprise agreement had designated the employees’ status as casuals, that status was appropriately used. Also, the Act had not extended redundancy payments to long-term casuals, as it had expressly done in relation to the right to claim unfair dismissal remedies and parental leave.

2.51 In Australia, federal legislation grants limited leave rights to some casual employees. That is, casual employees who have served 12 months may be able to access unpaid parental leave where there is a reasonable expectation of continuing employment by the current employer on a regular and systematic basis.49 However, the Fair Work Act excludes casuals from receiving paid leave entitlements, such as annual leave, personal leave and compassionate leave.50 Casuals also have no entitlement to notice on termination, or to receive redundancy pay, as the Telum decision confirms.51 For the purpose of rights to claim unfair dismissal remedies, specific criteria are relevant to determining whether or not employment is truly casual and some casuals will be eligible to make a claim.

[page 43]

Ponce v DJT [2010] FWA 2078 FACTS: Ponce, an air traffic controller, worked for DJT for 21 months. There was no fixed roster and he worked in response to shift offers being made directly to him by the supervisor. He usually worked more than 30 hours a week. His employment was terminated without notice and he claimed an unfair dismissal remedy. The remedy was only available to casual employees who had been employed on a regular and systematic basis and who had a reasonable expectation of continuing employment. ISSUE: Was Ponce entitled to claim unfair dismissal? DECISION: Ponce was entitled to claim unfair dismissal even though he was a casual employee, since he satisfied the prerequisites of regular and systematic employment with a clear pattern of hours or days worked, and with his expectation of continuing employment based on repeated offers of work.

2.52 Federal legislation makes distinctions between casual employees and permanent employees in respect of wage entitlements. Modern awards typically require employers to notify employees that they are being engaged on a casual basis at the time of engagement.52 Modern awards generally prescribe a 25 per cent loading on the full-time pay rates for a casual.53 Other pay rates may be attracted for hours worked not considered ordinary. 2.53 When a casual employee experiences continuing employment with an employer over an extended period of time, there may be an opportunity for seeking recognition of a transformation of the relationship into one of permanent employment.54 Certainly, some legislative rights will be attracted by continuing service; long-term casuals have additional entitlements.55 Where employment is covered by an award or an enterprise agreement, the rights of casuals will be clarified, and conversion from casual to permanent employment might even be provided for.56 [page 44]

Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385 FACTS: A poker machine supervisor was terminated based on allegations of dishonesty. The club alleged he was not eligible to make an unfair dismissal claim because he was a casual employee excluded from making a claim pursuant to the legislation. ISSUE: Was the employee casual? DECISION: The employee was no longer truly a casual because he had been employed by the club for five years and had worked a substantial number of hours on a regular basis each week. A continuity of employment was recognised where there was an expectation that the employee would continue to be employed on a regular basis. Unfair dismissal was found. The Full Commission of the Industrial Relations Commission of New South Wales advanced this general proposition (at 401–2): It is apparent that two classes of employee colloquially described as ‘casual’ can readily be identified in the organisation of industrial relationships. The first class refers to those employees who are truly casual in the sense that there is no continuing relationship between the employer and the employee. The second class is where there is a continuing relationship which amounts to an ongoing or continuing contract of employment …

Labour hire employees 2.54 Labour hire firms maintain a registry of workers and make them available to anyone seeking their services. Their workers can be described as employees if a contract of service exists between them and the firm. In this case, the employee performs work for the clients of the firm, but is paid and monitored in the performance of their work by the firm itself. These employees are not in a contractual relationship with the clients of the firm, although it is them who they physically work for. Alternatively, the firm’s workers may be independent contractors.57 That is, they operate their own business and contract their services to the firm, who then allocates them to work for another person or organisation. The distinction between the employee and contractor who works for a labour hire firm is made by application of the multi-factor test on an individual case basis. In the employee situation, the employee is assigned work as

and when his or her services are required by a firm client, and perhaps at a variety of locales. The employee often works casually, on a non-continuous basis, ready and willing to work when requested. Whenever a client requires the services of any of the firm’s employees, the firm supplies the labour to the client for an agreed period, perhaps daily, and usually on an hourly basis. 2.55 Where there are more than two parties in a work relationship it can be confusing. With labour hire, there are two contractual relationships in place — one between the [page 45] firm and the worker, and one between the firm and its client. It is important to clarify the type of contractual relationship between the worker and the firm. If it is a contract of service, casual or ongoing, employment indicia should outweigh criteria consistent with independent contracting. This contract might be in existence before the client, or third party, enters into a contract of hire with the firm. No contract comes into being between the client and the employee. The rationale is that an existing contract of employment with the firm restricts the employee entering into a separate contractual relationship with the firm’s client. This is particularly so where the contract provides for the employee’s services to be available to the firm on an exclusive basis. In addition, and most relevantly, the firm and the client will have contract terms that limit or price the employee’s capacity to enter into a contract directly with the firm’s client. 2.56 The transfer of an employee from one employer to another requires the consent of the employee. If a firm client or other potential employer wishes to engage a particular employee of a labour hire firm, an agreement to transfer the employee by the firm and the firm client is not all that is required. It is essential the employee concerned also agrees to the transfer. If consent is given, the contract of service between the firm and the employee will be

terminated by the giving of notice, and the firm client and the employee can then enter into a new contract of service. There is no transfer effected simply by the employee working for the firm client. They would remain an employee of the labour hire firm. Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] 1 All ER 491 FACTS: The Northern Ireland Road Transport Board was insured by Century Insurance Co Ltd against liability to third parties arising from damage to property caused by their use of petrol tankers. An employee driver of the board negligently caused an explosion while delivering petrol to a customer. At the time there was an agreement in force between the board and a company pursuant to which the board employees delivered petrol on their behalf to the company’s customers. A clause in the agreement provided that all the board employees should accept and obey the orders of the company regarding delivery, payment of accounts and all other related matters, and that the board could dismiss any employee disregarding or failing to obey such orders. Another clause stated that nothing contained in the agreement should be taken as implying that these employees were the employees of the company. Century resisted the board’s claim under the insurance policy on the basis that, at the time of the accident, the driver was acting as an employee of the company. ISSUE: Was the board driver an employee of the company or did he remain a board employee only? DECISION: The House of Lords noted the case did not involve a contract for the hiring of vehicles or persons, or a contract for loan of employees to the company. It was an agreement for carriage and delivery to be performed by the board for the company. There was no transfer of the employees to the company, and Century was liable.

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Outworkers 2.57 Outwork generally refers to work being performed for an employer or business entity at the worker’s home. This type of work is common in certain industries in Australia, especially the textile, clothing and footwear industry. For example, an arrangement may involve pre-cut clothing pieces being sent or delivered to a worker’s home for the worker to sew at agreed rates per item, or at a batch rate. There are also a significant number of

technology workers who receive work via the internet at home, and who perform work there, being paid at an hourly rate or for an agreed amount. Sometimes this work is called homework. 2.58 Whether such a worker is an employee or independent contractor will depend on the application of the multi-factor test. There is no reason why an employment contract cannot involve the employee working at home and not at the employer’s premises. Significant levels of control and other indicia of employment may still allow identification of an employment relationship. However, it is not uncommon for outworkers to be treated as independent contractors, especially where the employer or business entity they are working for would prefer to avoid employer obligations that add complexity to their operations. There is evidence migrant women have been paid very low wages and given less than minimum conditions58 via the use of independent contracting arrangements and ‘supply chain’ business entities.59 Some protections have been seen to be used in the clothing industry. Textile Clothing & Footwear Union of Australia v Southern Cross Clothing Pty Ltd [2006] FCA 325 FACTS: Southern Cross admitted they had work performed by workers away from their workshop and factory. The Clothing Trades Award (NSW) required a person or firm to register with a Board of Reference when hand or machine work that related to the construction or finishing of a garment or product, or part of a garment or product, was performed outside a workshop or factory. The award also obliged an employer who gave out work to provide terms and conditions no less favourable than those provided by the award. ISSUE: Was Southern Cross in breach of the award in relation to the work performed by their outworkers? DECISION: Southern Cross were found to be bound to the Clothing Trades Award (NSW) and liable for breach of the award in respect of underpayment to their contract workers.

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2.59 Legislation may expressly deem outworkers to be employees60 and therefore ensure minimum wage and other entitlements available to employees are also available to these workers. To further protect outworkers in the textile, clothing and footwear industry, recovery of unpaid amounts due can be achieved, and even from corporate entities that are not directly a party to any contract with them.61 These reparatory provisions add to state-based protections like the Industrial Relations (Ethical Clothing Trades) Act 2001 (NSW), the Fair Work (Clothing Outworker Code of Practice) Regulations 2007 (SA) and the Outworkers (Improved Protection) Act 2003 (Vic).

Dual status employees 2.60 Workers can have more than one legal status, and it is sometimes called a ‘dual status’. A worker who is an employee may not only be employed, but also have another title, role or position that is separable from their employment. One example is an officer who works for the public service, holding an office that is independent of their service as an employee, at least theoretically. The office is to be performed independently to fulfil a particular statutory function. A police officer and an ombudsman are examples. Another example of dual status would be a company director who is employed by the company as a manager and also has the title and specific responsibility of directing the company.62 2.61 Company directors may have a dual legal status, one as a director of the company pursuant to the Corporations Act 2001 (Cth), and another as an employee of the company. Each status has a separate legal basis.63 Acting in the office of director in itself does not constitute an employment relationship and will not evidence the creation of an employment contract. Instead, it is an office to which a person is appointed, attracting particular powers and responsibilities pursuant to legislation.64 Where a director is also employed by the company, the employment will be based on a contract of service separately entered into with the company. This can occur even where there is only one shareholder who is

the director of the company, and that director is the only employee. The company is a distinct legal entity from its shareholder and has the capacity to make contracts that employ.65 2.62 If a dispute arises as to the enforceability of an employment contract made by a director where terms are favourable, the contract may still be upheld.66 As in the case of other workers, a genuine contract for the performance of work will be categorised [page 48] as one of service using the multi-factor test to determine whether the company has acquired the personal service of the worker. Secretary of State for Trade and Industry v Bottrill [2000] 1 All ER 915 FACTS: The managing director, and sole shareholder of the company, was employed by the company and was dismissed when the company went into receivership. The shareholder/director claimed redundancy benefits from the company. A contract of employment was entered into with the company and it provided for paid leave and salary, and the performance of work during regular hours. Taxation was deducted. ISSUE: Was the shareholder/director entitled to redundancy payments payable to employees on termination? DECISION: The shareholder/director was able to claim redundancy payments as a dismissed employee. The employment contract was not found to be a sham despite him being the only shareholder and director. Nicol v Allyacht Spars (1987) 75 ALR 1 FACTS: Nicol was one of three directors and also an employee of Allyacht, a small company involved in making and fixing yacht masts. He was approached to fix a flag at the front of a show home. He used equipment not suitable for the job, and fell and was injured. He claimed compensation. ISSUE: Had the company breached its duty of care in relation to Nicol, its employee? DECISION: The High Court held that the company was at fault. It was responsible for devising the method of repair and, as its employee, Nicol was entitled to rely on the methods of work it used. The fact that he was also a director of the company, one of three responsible for determining work methods, was not

disruptive to his claim. Nicol had used the equipment provided by the company to carry out its work.

OTHER TYPES OF WORKER Independent contractor 2.63 An independent contractor performs work in relation to contracts for services that involve two parties, a principal and the independent contractor. Neither party is an employer. Neither is an employee. An independent contractor is typically a natural person, but they could be working for a company, a partnership or a family trust. In this case a business entity operates, in practical terms, to represent a single worker who is the owner and manager of the entity. The worker is then agreeing, in essence, to deliver a certain outcome, to provide a service. In contrast to an employee, who must obey instructions from his or her employer in the discharge of his or her duties, [page 49] an independent contractor generally operates independently of the principal and determines themselves which services they will perform and how they will perform them. Theoretically, the principal is only interested in the outcome of the contract. How the independent contractor achieves the task, perhaps by engaging other people and using their own equipment, is not really the concern of the principal. The principal is satisfied if the contract task is performed to the standard specified in the contract. The independent contractor is in business for themselves, and operates to make a profit and create their own goodwill. 2.64 In Neale v Atlas Products (Vic) Pty Ltd (1954) 94 CLR 419 at 425, the Full Court of the High Court, in a joint judgment, drew a distinction between a contract for labour:

… [and] a contract whereby the contractor has undertaken to produce a given result and it becomes payable when, and only when, the contractual conditions have been fulfilled.67

Similarly, in World Book (Australia) Pty Ltd v Federal Commissioner of Taxation (1992) 108 ALR 510 at 518, Sheller JA stated: Undertaking the production of a given result has been considered to be a mark, if not the mark, of an independent contractor.

Arranging aspects of production through subcontracting is not new,68 but is increasingly popular in Australia, with the use of independent contractors in a wide variety of industries, including the construction and professional, scientific and technical services industries.69 The seemingly rapid transformation of employees into contractors owning their own businesses has attracted concerns for their working conditions.70 2.65 Employers seeking to reduce the number of employees on its payroll for reasons of efficiency and productivity may decide to contract out a number of services previously [page 50] performed by its employees. Alternatively, the company may consider that rather than develop and maintain a new aspect of its operations, the company’s purpose will be better served by using independent contractors. Some benefits of hiring independent contractors can be gathered from this promotional material quoted in the Odco case:71 How Can Our Service Help You? We can: • increase productivity; • reduce time and effort finding personnel; • reduce advertising costs and time interviewing personnel; • reduce dead weight in anticipation of busy times ahead; • reduce tedious payroll and accounting procedures — you no longer need

to budget for sick pay, holiday pay, superannuation, long service leave or WorkCare deductions; and • reduce administration costs of your workforce.

2.66 From another perspective, there are a number of reasons why a worker may want to become an independent contractor, including the freedom of being their own boss and the ability to balance family and work commitments. There may also be significant tax advantages, especially if the independent contractor operates through a separate business entity. Of course, not every person who becomes an independent contractor does so by choice; contracting work may be all that is available to a particular worker. Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 37 IR 380 FACTS: Odco supplied labour to builders, construction managers and contractors in the building industry. The company traded under the name Troubleshooters. The workers that Troubleshooters supplied were first screened at interviews when they were asked their reasons for wanting to be self-employed, whether they had been self-employed before and whether they were members of a relevant trade union. They were also asked whether they were members of the Building Union Superannuation Scheme and whether they were registered for Construction Industry Long Service Leave. If an applicant gave satisfactory answers to these and other questions, they were invited to sign a contract, cl 1 of which read: I [the worker] acknowledge and agree that there is no relationship of Employer–Employee with TROUBLESHOOTERS AVAILABLE and that TROUBLESHOOTERS AVAILABLE does not guarantee me any work. I [the worker] am self-employed and, as such, I am not bound to accept any work through TROUBLESHOOTERS AVAILABLE. [page 51] The other clauses are summarised as follows: • Clause 2 — the worker agreed to perform a specified number of actual onsite hours or for a job price to be agreed. • Clause 3 — the worker agreed to be responsible for his or her own insurance. • Clause 4 — the worker expressly forbade Troubleshooters to make deductions in respect of PAYE taxation. • Clause 5 — the worker agreed that he or she had no entitlement to holiday pay, long service leave, sick pay or any similar payment.

• Clause 6 — Troubleshooters guaranteed that the worker would be paid agreed hourly rates for actual on-site hours or the agreed job price for work done. • Clause 7 — the worker agreed to perform all work ‘in a workmanlike manner’ and to make good any faulty work. • Clause 8 — the worker agreed to be a financial member of the relevant trade union. • Clause 9 — the worker agreed to supply his or her own plant and equipment, safety gear, boots, gloves or any necessary ancillary equipment required. ISSUE: Were the workers employees? DECISION: The Full Court of the Federal Court held there was no contract between the workers and the building contractors. Woodward J, at first instance, determined that the arrangements that Troubleshooters made with its workers were different from those made by other labour hire agencies. Troubleshooters made it clear that it did not intend its workers to be its employees. They were not paid a weekly wage nor did they receive any of the normal benefits of a waged employee, particularly annual leave and sick leave. There was no obligation on any person registered with Troubleshooters to work at any particular time. Equally there was no obligation on Troubleshooters to find work for the person on any particular day.72 The trial judge’s finding that there was no contract of employment between Troubleshooters and the workers was upheld. The workers were independent contractors who were hired to the building contractors.

2.67 At common law, there is little protection for the independent contractor. Being independent means that the contractor can only rely on the terms of their contract and limited protective legislation, aimed at giving contractors help in having contract terms set aside or varied where they have entered unfair or harsh arrangements or have suffered from unconscionable conduct in the acquisition of their services.73 The legislation generally looks at the unfairness and harshness of contract terms at the time [page 52] the contract is entered into.74 There are also some specific provisions protecting small businesses where contracts have unfair terms.75 Theoretically, the terms of contracts will have been freely

negotiated with the principal, but legislation prohibits particular unfair terms in particular circumstances.76 2.68 The independent contractor does not receive the protection of implied contract terms like an employee does under a contract of service, and the principal is not vicariously liable for the actions of the independent contractor. Pursuant to contract law, it may be a contractor can seek to rescind a contract in some circumstances; for example, where it can be proved the making of the contract was induced by fraud or duress.

Ministers of religion and other church personnel 2.69 A minister of religion, such as a Baptist church leader, an imam, a monk or a rabbi, may have a contract of employment with the church or religious order with which they work. However, the possibility of church ministers and religious leaders being employees is a contemporary phenomenon.77 In the past, there has been a focus on the spiritual nature of the relationship they have with the religion, and the entirety of that relationship.78 Recently it has been established that work arrangements between a minister of religion and the church can also be contractual.79 When a minister undertakes to be a servant of God in a particular religious environment, the parties can intend a contractual dimension to the work.80 A church’s rules would typically not reveal this intention, but a separate written contract could. Ermogenous v Greek Orthodox Community of SA Inc (2002) 187 ALR 92 FACTS: Archbishop Ermogenous claimed he was owed annual leave and long service leave payments. He had been working with the church for 24 years. ISSUE: Was the minister an employee of the church? [page 53] DECISION: The Full Court of the High Court of Australia decided that a magistrate’s decision to award a minister annual leave and long service leave

should not have been set aside on the basis that a minister could not have been employed by the church. The magistrate was right to consider the parties’ intentions to enter into a legally binding relationship. They agreed that a minister of religion can be employed under a contract of employment that creates rights and obligations which attach to the spiritual relationship regulating the conduct of a minister of religion.

2.70 Some spiritual leaders may be considered to have a relationship similar to employment, but not equal to employment in all respects. In the case of a priest, an office holder in the Roman Catholic Church, such a relationship could still involve the extension of principles of vicarious liability, but not amount to employment.81 The position of persons other than the church minister or leader of the religious order who work for the church or order is different. Church personnel working for the church can have a contractual relationship with the church.82 It is not difficult to imply a contract of service with the church or religious order in spite of the fact that the work that they perform may well be characterised as spiritual. In President of the Methodist Conference v Parfitt [1984] 1 QB 368 at 376, the Court of Appeal stated: It is not in dispute that there are persons such as secretaries or caretakers who are employed by the Methodist Church or by its local circuits under contracts of service.

Company directors 2.71 Both executive directors who take part in the day-to-day running of the company, and non-executive directors who attend board meetings and make some decisions about the activities of the company, are office holders. Along with other ‘offices’ created by corporations legislation, directors have particular duties and responsibilities. Directors may also be appointed pursuant to the constitution of the company or the replaceable rules.83 Directors are generally remunerated by the payment of directors’ fees. In Australia, corporations legislation regulates the appointment of directors and the operation of companies.84 The directors of a company constitute the directing mind and will of the company. They are the natural persons through which the legal person, the company, expresses its intention and deals with others. Directors

of a company are not employees of the company. Notwithstanding the payment of fees and the fact an executive director may work on the company’s behalf regularly and even on a daily basis, the director would become an employee only by entering into a contract of service with the company, separate and distinct from their role as a director, and creating a dual status.85 [page 54]

Bailment 2.72 In Hobbs v Petersham Transport Co Pty Ltd [1971] ALR 675 at 687, Windeyer J stated: A bailment comes into existence upon a delivery of goods of one person, the bailor, into the possession of another person, the bailee, upon a promise, express or implied, that they will be re-delivered to the bailor or dealt with in a stipulated way. A carrier to whom goods are delivered for carriage is a bailee.

There are different types of bailment, some of which involve the performance of work. The two key characteristics of bailment are that goods must be delivered by one person to another and they must be returned to the owner or otherwise dealt with in accordance with their instructions. A taxi owner and taxi driver make a good example. The bailor, the owner, bails the taxi to a bailee, the driver, to take fares for a specified period for an agreed amount. At the end of the period, the driver returns the taxi and pays the owner the amount agreed. The bailee may keep excess fares received. Another example of bailment is the promotion of products for sale. An organisation, the bailor, may make an arrangement with a person, the bailee, which allows the person to take a sample of products to show or display and to solicit customers. The sample is usually to be returned to the organisation, unless the person has been given an express authority to sell them. A follow-up arrangement is made for any items ordered by customers to be delivered later. This particular type of bailment is used in the promotion of books, cosmetics and

designer clothes. The bailee is not an employee just because they may be paid in some way for showing and perhaps selling the goods. Jordan v Aerial Taxi Cabs Corp [2001] FCA 972 FACTS: Jordan, a taxi driver, had a contract with Aerial, a co-operative of taxi owners. Jordan agreed to use the taxi according to Aerial’s rules and access Aerial’s radio booking service in return for Aerial taking 50 per cent of his fares. Jordan argued that the contract was unfair. He had been subject to disciplinary action for overcharging a passenger and Aerial had fined him. He complained this was unfair and also that his remuneration had become unfair following the introduction of a new payment scheme. ISSUE: Was Jordan an independent contractor able to make a claim under unfair contracts legislation designed for independent contractors? DECISION: The application was dismissed when the Federal Court found there was no independent contractor relationship involving Jordan providing a service to Aerial. The contract was one of bailment. Instead, the bailment contract allowed use of a radio network, a service provided by Aerial.

Voluntary workers 2.73 Voluntary workers are used in a variety of situations. Parents may help at the school canteen or sports day. Family of patients may help in hospitals and at [page 55] various community functions raising charitable funds. Local residents may assist during emergencies fighting fires. Volunteers can be found working in a range of activities and for a range of purposes. They are frequently used by established charitable organisations. A first job of some university graduates is to travel overseas as a voluntary worker. A voluntary worker is not an employee. There is no contract between the volunteer and the organisation they work for because the parties have not intended to create a legally binding

relationship. As Macken J explained in Bradley v Bradley [1978] AR (NSW) 94 at 97, the performance of work by one person for another may be motivated ‘for reasons which are fundamentally social, political, religious, or out of filial duty or compassion’.86 The fact that a voluntary worker is subject to the control of another person, or an organisation, does not make that volunteer an employee. As Lord Herschell put it in George Johnson v W H Lindsay and Co [1891] AC 371 at 377–8: … a person who is not under any paid contract of service may nevertheless have put himself under the control of an employer to act in the capacity of servant, so as to be regarded as such. This, as has been pointed out, is the position of the volunteer. Harker v Boon [1956] 55 AR (NSW) 178 FACTS: Harker had sponsored Boon and his son to migrate to New South Wales. They worked on Harker’s farm, performing various duties. Harker decided what work was to be done, the place of work and the hours. He supervised and controlled the work of Boon and his son. They were paid or received credit for each week’s work. ISSUE: Were Boon and his son employees? DECISION: The New South Wales Industrial Commission held there was no relationship of employer and employee as there was no intention to create such a relationship. The supervision and control exercised by Harker were for the purpose of training Boon and his son sufficiently to take over the full management of the dairy farm as soon as reasonably possible.

2.74 Receiving a payment for voluntary service does not in itself change the character of the relationship to one of employment.87 [page 56]

Rogers v Booth [1937] 2 All ER 751 FACTS: The agreement between an officer and the General of the Salvation Army provided for regular payments of money, and for deductions to be made as contributions to a pension fund. The payments depended on the availability of funds.

ISSUE: Was the Salvation Army officer an employee? DECISION: Despite the fact that the regular payment was made over a number of years, it did not change the voluntary character of the agreement between the parties, a purely spiritual one.

Partnerships 2.75 A partnership was defined by Lord James in Smith v Anderson (1880) 15 Ch D 247 at 273 as follows: An ordinary partnership is a partnership composed of definite individuals bound together by a contract between themselves to continue combined for some joint object, either during pleasure or during a limited time, and is essentially composed of the persons originally entering into the contract with one another.

A partner is not employed by the partnership, but is a person in business who shares in the profits or losses of the business. A partner in a firm of solicitors or accountants is not an employee of the firm, but as an owner of the business, they may perform work for the benefit of the business. This does not make them an employee. Of course, the partnership may engage employees, and this can include persons who manage the partnership. Where there is reason to believe that a partnership has been contrived to disguise an employment relationship, the courts will be prepared to look at the facts. Cam and Sons Pty Ltd v Sargent (1940) 14 ALJ 162 FACTS: A captain and crew of a vessel agreed to receive a share of the profits of a voyage. ISSUE: Were they partners in a business? DECISION: The High Court held the captain and crew were employees and not in partnership. As employees, they were entitled to award conditions including overtime payments. The court went behind the terms of the written agreement which purported to be a partnership but which was described variously as ‘merely a colourful sham’ disguised by ‘a cloud of words’: at 163 per Dixon J.

Office holders

2.76 An office holder is appointed to a specific office. The office holder performs independent functions and is generally not subject to the control of another person in [page 57] the performance of the duties of the office. Their independence may be essential to the proper performance of their duties. A statute might create an office and require it to be filled. Examples are the judges of the Supreme Courts of the states and territories and of the High Court and Federal Court. Judicial officers generally have independence in their functions. They also enjoy security of tenure and hold office during their good behaviour.88 They can be dismissed for cause but only via a particular process. Office holders have certain privileges attached to their offices. Apart from judicial officers, it is rare to find a ‘pure’ officer. A number of persons described as ‘officers’ are subject to a certain, if not high, degree of control. Officers in the public sector, for example, might be subject to an extensive amount of control, both legislatively and administratively. 2.77 An employee who agrees to perform additional duties attached to a particular office would achieve a dual status, the holding of office being the second legal relationship that the employee has entered into. For example, a senior company executive may agree to be the director of the company for which he or she works. In this case, the office holder does not cease to be an employee, but will find holding the office of director attracts specific regulation under the corporations legislation. 2.78 Office holders are subject to legislative direction as to the performance of duties, and legal principles applicable to employment contracts will not normally be relevant. If the office holder is also an employee, both sets of laws will apply and it could be difficult to discern which tasks are performed as an office holder and which are performed as an employee. In addition, an

agreement to hold an office can come with particular rights. Termination of an office may not be as easy as giving agreed or reasonable notice to the holder. Beck v Darling Downs Institute of Advanced Education (1990) AILR 270 FACTS: Dr Beck was appointed Dean of the School of Business Studies for a fixed term of four years. He was subsequently informed that his position had been changed to Dean of the new School of Accounting. He refused to accept the change of appointment. ISSUE: Was Dr Beck’s contract breached? DECISION: The Supreme Court of Queensland held that there had been a breach of Dr Beck’s contract. Dowsett J explained (at 10–11): If a contract is properly construed as appointing the plaintiff to a particular office, then to abolish that office constitutes a failure to permit him to have the benefit of the contract and must be a repudiation. The construction exercise involves a consideration of the importance of appointment to the office in the context of the contract as a whole to determine whether or not repudiation of that term is sufficient to justify rescission. The plaintiff [page 58] In this case was appointed to be the head of the School of Business Studies and to be responsible to the Director of the Institute for the academic and administrative conduct of that school. Instead, he was in effect told that he would in future be the head of a much smaller school and that there was an intention in the future that he not be directly responsible to the Director.

REVIEW EXERCISES 1. David commenced working with QRS eight years ago. He was engaged as a cleaner on a full-time basis up until recently. His job involved cleaning business premises in the business district. He was to use a particular process for the cleaning of office spaces, and was to complete jobs within a set time frame, to allow maximum coverage of the areas assigned to him within a shift. He usually worked 2 am to 8 am on Mondays to Fridays.

About nine months ago he resigned from his job in writing, at the request of QRS. They told him they were restructuring their operations and needed him to contract his services to DEF, a partner firm, providing him with a form to fill out and telling him if he didn’t resign and complete the form he would not get any more work. David also signed a letter stating that he understood the information supplied to him and agreed to accept the DEF offer as detailed in an information pack to be delivered to him. At a meeting of QRS employees the manager told David and other employees that nothing would change in practice. The job David performed was to be the same. David understood he was a subcontractor now, but was not clear on who he was contracted to since QRS still issued his work allocations and provided his cleaning materials and equipment. He was also supplied with a uniform, which he was allowed to wear if he wished, or not if he didn’t. David drove his own van and used his own mobile phone to communicate with QRS while on the job, if there were any queries he had. He was paid by DEF on a per hour basis following his electronic lodgment of a fortnightly invoice completed by him. Last week QRS called him in to their office and told him he was no longer needed. He received no notice. There was no explanation given, and David believed his performance was not a factor since it was not mentioned. (a) Originally, was David an employee of QRS? Refer to cases that use the current common law test. (b) From his resignation onwards, was David still a QRS employee? (c) Has QRS breached any federal legislation? 2. Labourhire Ltd operates an agency supplying labour to businesses with a temporary need for workers. The workers that they supply to their clients are all well qualified and have skills at industry standard. Labourhire have a process of hiring that involves testing of applicant workers and allocation only to suitable work. Often the workers

[page 59] are allocated regularly to the same business and place of work. They arrange for the workers’ fortnightly pay but do not give the workers any daily instructions apart from the starting time and location of work. The business Labourhire sends the workers to gives daily instructions about the work that needs to be performed. Explain why there are two contractual relationships in this scenario, and whether or not the workers are likely to be in an employment relationship at all. 3. A company director recently claimed paid annual leave from the company of which he is one of three directors. The financial officer refused his application on the basis that he was a company employee. Explain why this may be correct, despite his performance of specified duties for the company. 4. A retired bus driver for Local Homeless Helpers recently suffered a foot injury when he assisted a disabled person onto the bus he was driving. The driver had been working with the charity for three years, as a part-time activity. The driver is not paid, but works regular shifts each week. Local Homeless Helpers asks you whether the driver needs to be compensated for his medical expenses, querying their responsibility in light of him being a volunteer. Suggest why the driver is not likely to be considered an employee.

FURTHER READING • •

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R Owens, J Riley and J Murray, The Law of Work, 2nd ed, Oxford University Press, Melbourne, 2011, Ch 4. C Sappideen, P O’Grady and J Riley, Macken’s Law of Employment, 8th ed, Thomson Reuters, Sydney, 2016, Chs 2 and 3. A Stewart et al, Creighton and Stewart’s Labour Law, 6th ed, The Federation Press, Sydney, 2016, Ch 8.

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Kooragang Investments v Richardson and Wrench (1982) AC 462. See Deatons v Flew (1949) 79 CLR 370. For example, Starks v RSM Security [2004] NSWCA 351. New South Wales v Lepore (2003) 212 CLR 511. For example, Sestili v Triton Underwriting [2007] SASC 241. Workers who are in business for themselves will be subject to any regulation applicable to the business entity they choose. Note, federal legislation may protect some non-employee workers from being deemed employees. See the Independent Contractors Act 2006 (Cth). Fair Work Act 2009 (Cth) s 15(1). For example, s 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth) deems a worker whose contract is ‘wholly or principally for the labour of the person’ to be an employee for the purposes of that Act. Deemed employees can include independent contractors who are largely dependent in their work relationship and perform tasks similar to an employee. As previously noted in this chapter, the Independent Contractors Act 2006 (Cth) thwarts the operation of some deeming provisions. Note, deeming provisions are specific to the purposes of the legislation they are found in and do not generally transform legal relationships into something new for other contexts. Commonwealth public service employers are subject to specific legislation; for example, the Public Service Act 1999 (Cth). Where states have referred power to the federal government, employers who are not corporations may also be covered by the federal system. See Fair Work Act Pt 13. The Fair Work Act 2009 (Cth), establishing the federal system, applies to constitutional corporations and most private sector employers, because of state referrals of power in relation to workplace matters; state systems generally only apply to state public sector employees, although there are exceptions. For example, in Western Australia, the state system also applies to non-corporate employers, since there has been no referral of power to the federal government. Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 at 295. See Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385, where consistency was considered in respect of the contract terms of an independent contract. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513. At [34]. The decisions in Vabu Pty Ltd v CT (1996) 33 ATR 537 and Hollis v Vabu Pty Ltd (2001) 207 CLR 21 are good examples of decisions that appreciate a policy outcome. In the more recent decision, corporate responsibility for the acts of its couriers appears to have been a relevant consideration of the High Court in their weighting of control factors within the multi-factor test. Often referred to as the ‘80 per cent test’; see Income Tax Assessment Act 1997 (Cth) Divs 84–87 (as amended by New Business Tax System (Alienation of Personal Services Income) Act 2000 (Cth)). R Owens and J Riley, The Law of Work, Oxford University Press, Melbourne, 2007, p 180. Re Porter (1989) 34 IR 179 at 184 per Gray J; Massey v Crown Life Insurance [1978] 2

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All ER 576 at 579 per Lord Denning MR; AMP v Chaplin (1978) 18 ALR 385 at 389 (Privy Council). See also City Motors (1981) Pty Ltd v Commissioner of State Taxation (WA) (1993) 26 ATR 291; Massey v Crown Life Insurance Co [1978] 2 All ER 576; Sheehan and Australian Contractors Solutions [2001] NSWIRComm 1046. For example, AMP Society v Chaplin (1978) 18 ALR 385. Fair Work Act s 358. See, for example, Fair Work Ombudsman v Centennial Financial Services [2011] FMCA 459. Fair Work Act Pt 3-1 Div 6. Fair Work Act s 357(1). FWO v Quest South Perth [2015] HCA 45. Fair Work Act s 357(2). See, for example, FWO v Centennial Financial Services (2010) 245 FLR 242. Fair Work Act s 358. Fair Work Act s 360. See FWO v Quest South Perth [2013] FCA 582. Fair Work Act s 359. Fair Work Act s 361. Section 62(1) of the Fair Work Act uses 38 hours as the measure for maximum weekly hours for a full-time employee. For example, in retail work, a part-time employee works less than 38 hours per week: Modern Retail Industry Award 2010 cl 12.1. Fair Work Act s 139. P Dawkins and K Norris, ‘Casual Employment in Australia’ (1990) 16 ABL 157 at 167, 170. I Campbell, ‘Casual Employment, Labour Regulation and Australian Trade Unions’ (1996) 38 JIR 571 at 574. Australian Bureau of Statistics, 1301.0 — Yearbook Australia 2006, ‘Casual Employees’, . Australian Bureau of Statistics, 6359.0 — Forms of Employment, Australia, November 2011, ‘Casual Employment and Conditions Are Stable’, . See n 6 above, aged between 15 and 24. Australian Bureau of Statistics, 6306.0 — Employee Earnings and Hours, Australia, May 2010, . Australian Bureau of Statistics, 6333.0 — Characteristics of Employment, Australia, August 2015, and Worksafe Victoria at . For example, Work Health and Safety Act 2011 (NSW) s 3(1)(a). See Occupational Health and Safety Act 2004 (Vic) s 2; and Occupational Safety and

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Health Act 1984 (WA) s 5. For example, Work Health and Safety Act 2011 (NSW) s 3(1); Occupational Health and Safety Act 2004 (Vic) s 2; and Occupational Safety and Health Act 1984 (WA) s 5. For example, Work Health and Safety Act 2011 (NSW) s 19(1). Occupational Safety and Health Act 1984 (WA) s 22. For example, Work Health and Safety Act 2011 (NSW) s 19. For example, Work Health and Safety Act 2011 (NSW) s 5. Regulations can limit who is covered by ‘persons conducting a business or undertaking’: Work Health and Safety Act 2011 (NSW) s 5(6). For example, Work Health and Safety Act 2011 (NSW) s 5(4). For example, Work Health and Safety Act 2011 (NSW) s 5(7). For example, Work Health and Safety Act 2011 (NSW) s 5(1). For example, Work Health and Safety Act 2011 (NSW) s 16. For example, Work Health and Safety Act 2011 (NSW) s 15. For example, Work Health and Safety Act 2011 (NSW) s 19(1). For example, Work Health and Safety Act 2011 (NSW) s 7. The calculus weighs the probability of harm and the likely seriousness of that harm against the cost of taking precautions to avoid the harm and other conflicting responsibilities including the social utility of the risk-creating activity: see Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47–8. For example, Work Health and Safety Act 2011 (NSW) s 18. Reilly v Devcon Australia Pty Ltd [2008] WASCA 84. Work Health and Safety Act 2011 (NSW) s 17. For example, Work Health and Safety Act 2011 (NSW) s 19(3)(a), (b) and (c). For example, Work Health and Safety Act 2011 (NSW) s 19(3)(d), (e) and (f ). For example, Work Health and Safety Act 2011 (NSW) s 19(3). For example, Work Health and Safety Act 2011 (NSW) s 19(4). For example, Work Health and Safety Act 2011 (NSW) s 19(2). Occupational Health and Safety Act 2004 (Vic) ss 23 and 24; Occupational Safety and Health Act 1984 (WA) s 21. This is a ‘further’ duty of persons conducting a business or undertaking. See, for example, Work Health and Safety Act 2011 (NSW) s 20(2); Occupational Health and Safety Act 2004 (Vic) s 26; and Occupational Safety and Health Act 1984 (WA) s 22. See, for example, McMillan Britton & Kell Pty Ltd v WorkCover Authority of NSW (1999) 89 IR 464. Work Health and Safety Act 2011 (NSW) s 20(1)(a). For example, Work Health and Safety Act 2011 (NSW) s 8. Work Health and Safety Act 2011 (NSW) s 21. Work Health and Safety 2011 (NSW) s 4. Occupational Health and Safety Act 2004 (Vic) s 21(1); and Occupational Safety and Health Act 1984 (WA) s 19(1). For example, Work Health and Safety Act 1995 (NSW) s 19. Occupational Safety and Health Act 1984 (WA) s 23D. See Reilly v Devcon Australia Pty Ltd [2008] WASCA 84, where a site manager was found to be under no duty to supervise the rigger working for the contractor it contracted. The rigger was killed when an unsecured beam gave way and a wall fell. Occupational Safety and Health Act 1984 (WA) s 3(1).

43 44 45 46 47

48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80

Occupational Safety and Health Act 2004 (Vic) s 20(2). Kondis v State Transport Authority (1984) 154 CLR 672. In relation to principals and contractors, see Occupational Safety and Health Act 1984 (WA) s 23D(5) and (6). For example, Occupational Safety and Health Act 1984 (WA) ss 22 and 23D. In WorkCover Authority of NSW v Lyndhurst Trading Co [2000] NSWIR 1122, on the same set of facts, the franchisee of McDonald’s was also successfully prosecuted and fined $40,000. For example, Work Health and Safety Act 2011 (NSW) ss 22, 23, 24, 25 and 26. For example, Work Health and Safety Act 2011 (NSW) s 22. For example, Work Health and Safety Act 2011 (NSW) s 26. For example, Occupational Health and Safety Act 2004 (Vic) ss 27, 28, 29, 30 and 31; Occupational Safety and Health Act 1984 (WA) s 23. For example, Work Health and Safety Act 2011 (NSW) s 27. Note: Uniform legislation defines an officer, in s 4, as one defined by the Corporations Act 2001 (Cth) s 9. Shafron v Australian Securities and Investments Commission [2012] HCA 18. For example, Work Health and Safety Act 2011 (NSW) s 27(5)(a). For example, Work Health and Safety Act 2011 (NSW) s 27(5)(b). For example, Work Health and Safety Act 2011 (NSW) s 27(5)(d); and Occupational Health and Safety Act 2004 (Vic) ss 144 and 145. For example, Work Health and Safety Act 2011 (NSW) s 29 For example, Work Health and Safety Act 2011 (NSW) s 29(c). For example, Work Health and Safety Act 2011 (NSW) s 28; Occupational Health and Safety Act 2004 (Vic) s 25; Occupational Safety and Health Act 1984 (WA) s 20. See, for example, Occupational Safety and Health Act 1984 (WA) s 20(2). For example, Work Health and Safety Act 2011 (NSW) ss 46 and 47. For example, Work Health and Safety Act 2011 (NSW) s 48. For example, Work Health and Safety Act 2011 (NSW) ss 50 and 60. For example, Work Health and Safety Act 2011(NSW) s 48(2). For example, Work Health and Safety Act 2011 (NSW) ss 68 and 69. For example, Occupational Health and Safety Act 2004 (Vic) s 58(1). For example, Occupational Safety and Health Act 1984 (WA) s 33(1). For example, Work Health and Safety Act 2011 (NSW) s 72. For example, Occupational Health and Safety Act 2004 (Vic) s 60(1). For example, Occupational Health and Safety Act 2004 (Vic) s 74. For example, Work Health and Safety Act 2011 (NSW) ss 75, 77 and 79; Occupational Health and Safety Act 2004 (Vic) s 72(3). See Fair Work Act 2009 (Cth) Pt 3-1 and, for example, Work Health and Safety Act 2011 (NSW) s 104. For example, Work Health and Safety Act 2011 (NSW) s 85; Occupational Health and Safety Act 2004 (Vic) s 74. For example, Work Health and Safety Act 2011 (NSW) s 86. Occupational Safety and Health Act 1984 (WA) s 26(2), (2a) and (2b). Sections 470 and 474. Section 470. Fair Work Act 2009 (Cth) s 19(2). For example, Work Health and Safety Act 2011 (NSW) s 31(1).

81 82

83

84 85 86 87 88

89 90 91 92 93 94 95

For example, Work Health and Safety Act 2011 (NSW) s 33. Workers Compensation Act 1951 (ACT); Workers Compensation Act 1987 (NSW); Workplace Injury Management and Workers Compensation Act 1998 (NSW); Workers Rehabilitation and Compensation Act 1986 (NT); Workers Compensation and Rehabilitation Act 2003 (Qld); Workers Rehabilitation and Compensation Act 1986 (SA); Workers Rehabilitation and Compensation Act 1988 (Tas); Accident Compensation Act 1985 (Vic); Workers Compensation and Injury Management Act 1981 (WA). Safety, Rehabilitation and Compensation Act 1988 (Cth). Note the Seafarers Rehabilitation and Compensation Act 1992 (Cth) also exists to provide for maritime workers working on prescribed sea vessels. For example, Workers Compensation Act 1987 (NSW) s 10. For example, Workers Compensation Act 1951 (ACT) s 4(2). For example, Workers Rehabilitation and Compensation Act 1986 (SA) ss 3(1) and 103A; Workers Compensation and Injury Management Act 1981 (WA) s 5. For example, Workers Rehabilitation and Compensation Act 1986 (NT) s 3. For example, injured police officers may be excluded: for example, Workers Compensation and Injury Management Act 1981 (WA) s 5; professional sportspersons may be excluded: for example, Workers’ Compensation and Rehabilitation Act 2003 (Qld) Sch 2. For example, Workers Compensation and Injury Management Act 1981 (WA) s 181. For example, Accident Compensation Act 1985 (Vic) s 52B. Workers Compensation and Injury Management Act 1981 (WA) s 93K. For example, Workers Compensation Act 1987 (NSW) s 151A; Workers Compensation Act 1951 (ACT) s 184. For example, Workers Compensation and Injury Management Act 1981 (WA) ss 155B and 155C; Accident Compensation Act 1985 (Vic) s 156. For example, Accident Compensation Act 1985 (Vic) s 155A. Workers Compensation Act 1987 (NSW) s 248.

Index References are to paragraph numbers

A Accommodation, employer provision …. 4.44 Adverse action …. 7.15 Advertisements see Employment advertisements Allowances …. 9.15 Annual leave …. 8.18 Anti-discrimination legislation …. 4.27, 7.21–7.29 discrimination differences, failure to acknowledge and accommodate …. 7.24 direct …. 7.24–7.28 discriminatory terms …. 10.7 exceptions, exemptions and defences …. 7.27 indirect …. 7.24–7.28, 10.7 neutral rule …. 7.25 types of …. 7.23 prohibited behaviours …. 7.23, 7.28 Aptitude and personality testing …. 3.1 Arbitration …. 7.17, 7.19, 8.4–8.7, 10.1, 10.14 arbitrated awards …. 9.1 arbitrated outcomes–modern awards, distinction …. 9.3 dispute resolution …. 9.1

industrial disputes power …. 8.2 outcomes of see Awards Australian Competition and Consumer Commission (ACCC) false and misleading advertisements …. 3.2 representative action pursuant to boycott legislation …. 11.23 Australian Constitution concurrent powers corporations power …. 8.3 industrial disputes power …. 8.2 employment law basis …. 8.2–8.3 exclusive powers (Commonwealth) …. 8.2 federal employees, application …. 8.3 external affairs power …. 8.3 federal government empowerment …. 1.34, 8.2 referral power …. 8.3 trade and commerce power …. 8.3 Australian Consumer Law conduct prohibitions …. 3.2 ‘in trade or commerce’ qualification …. 3.4 employment contexts applicability …. 3.5 Australian Workplace Agreements …. 10.1 Awards employee provisions …. 4.44 federal …. 9.1 groups and individual …. 9.6 historical significance …. 9.1 interactions with employment contracts …. 1.31–1.32 modern awards …. 8.25, 9.2–9.20 allowances …. 9.15

annualised wage arrangements …. 9.14 arrangements for when work is performed …. 9.11 cashing out provisions …. 8.19 compliance with …. 7.8 consultation and representation procedures …. 9.18 coverage terms …. 7.5, 9.8 dispute settlement procedures …. 9.18 employment types …. 9.9 Fair Work Act-permitted matter …. 9.4 increased productivity via …. 8.1 individual flexibility arrangements …. 9.19 leave, leave loadings and leave arrangements …. 6.42, 9.16 mandatory content …. 9.7 minimum wages and other payments …. 9.10 other clauses …. 9.20 overtime …. 9.12 penalty rates …. 9.13 superannuation …. 9.17 rationalisation and content simplification …. 1.30 role in Australian employment relations …. 1.29–1.32 safety net aspect …. 1.30, 9.2–9.3, 9.5 simplification and rationalisation …. 9.4

B Bailment …. 2.72 Boycotts …. 11.24–11.28 primary boycotts, legislative prohibition …. 11.27 secondary boycotts CCA prohibition …. 11.23

dominant purpose (exception) …. 11.26 Business/economic reality test (employment) …. 2.18–2.19

C Capacity to contract …. 3.27–3.34 children …. 3.29–3.32 corporations and associations …. 3.34 intoxication and mental illness …. 3.28 migrants …. 3.33 Carer’s leave …. 8.19 Casual employment …. 2.42, 2.45–2.53, 8.17, 9.9, 9.13 casual loadings …. 8.8, 9.10 employer constraints to …. 9.1 hours of work, uncertainty …. 2.48 identifying …. 2.45, 2.47 no leave or notice entitlements …. 1.7 one to multiple employment contracts …. 2.49 ‘reasonable expectation of continuing employment’ …. 7.5 transforming to permanent employment …. 2.53 Children capacity to contract …. 3.29–3.32 employment of …. 3.32 Church personnel …. 2.69–2.70 Collective agreements …. 1.19, 8.6 common law interpretation …. 1.16 interactions with employment contracts …. 1.31–1.32 legitimacy of …. 8.1 replacing awards …. 10.1 role in Australian employment relations …. 1.29–1.32

Common law …. 3.4 claims against employers (beyond maximum) …. 12.28 contract existence …. 1.13 contractual breach limited damages for …. 6.7, 7.1 wrongfulness …. 6.2–6.3 contractual relationship …. 1.10–1.12 implications …. 4.4 limited damages for breach …. 7.1 development …. 1.3 employment contract interpretation …. 1.14–1.16 as employment law source …. 1.9–1.21 court decisions …. 1.9 imported laws …. 1.9 employment relationship …. 1.12 identifying …. 1.13, 2.6 sham contracting …. 2.35–2.41 illegality …. 3.44 ILO principles, reliance on …. 1.35 implied employer duties …. 4.45 implied terms …. 3.66, 4.44, 5.2, 5.37 implying terms …. 1.17–1.21 international law and …. 1.33–1.35 legislative clarification of …. 1.25 torts and civil wrongs …. 1.12 unlawful dismissal at …. 7.20 Common law employment tests …. 2.9–2.41 business/economic reality test …. 2.18–2.19

control test …. 2.10–2.15 80 per cent test …. 2.29–2.30 integration/organisation test …. 2.16–2.17 labelling …. 2.31–2.34 multi-factor test …. 2.21–2.28, 2.54, 2.58 Ready Mixed Concrete test …. 2.20 Commonwealth exclusive powers …. 8.2–8.3 jurisdiction, uniform WHS legislation application …. 12.1 law-making within limits of …. 8.3 Community service leave …. 8.21 Company directors …. 2.71, 4.40 dual legal status …. 2.61 Compassionate leave …. 8.20 Competition and Consumer Act 2010 (Cth) (CCA) misleading conduct prohibition …. 3.2 coverage of conduct liable to mislead …. 3.3 secondary boycotts prohibition …. 11.23 Conciliation …. 7.19, 8.4–8.7, 8.8, 10.1, 10.6 industrial disputes power …. 8.2 for unfair dismissal applications, disputed facts …. 7.6 Confidentiality breach …. 3.46 employee duties …. 5.37–5.42 confidential information …. 3.47, 3.52, 5.15, 5.39 versus public interest …. 5.40 whistleblower protection …. 5.40–5.42 Conspiracy …. 11.14–11.16

Constructors, WHS duties …. 12.18 Consultation awards employer–union consultation …. 9.1 modern awards …. 9.18 work health and safety …. 12.22 Contracts of service …. 2.6, 2.9, 2.61, 3.31, 4.3 dual legal status …. 2.71 implied …. 2.70 ‘for’ and ‘of,’ significance …. 2.9 see also Employment contracts Control test (employment) …. 2.10–2.15 elements …. 2.10 formulations …. 2.14 problems with …. 2.15 Custom and practice, implied terms …. 1.19, 1.21, 3.67–3.68, 4.44

D Designers/designs employee ownership …. 5.30 employer ownership …. 5.31–5.32 WHS duties …. 12.18 Dismissal breach occasioning dismissal …. 11.5 bullying and harassment …. 4.28 defined …. 7.9 on employer initiative …. 6.41, 7.4, 7.9 ‘garden leave’ cases …. 6.28–6.29 harsh, unjust or unreasonable …. 7.10–7.11

procedural fairness …. 7.11 validity of reason for dismissal …. 7.10 immediate dismissal …. 6.8, 7.7 last on/first off dismissal …. 1.19 legislative remedies general protections dismissal …. 7.13–7.17 unfair dismissal …. 6.2, 6.41, 7.2–7.12 no employee dismissal on fixed term contract end …. 6.6, 7.5 no employer obligation to provide reasons …. 6.17 in order to engage as independent contractor …. 2.39 wrongfulness or unlawfulness at common law …. 6.2, 6.5 notice as central case issue …. 6.8 Dispute resolution arbitration …. 8.4–8.7 outcomes see Awards conciliation …. 7.6, 8.4–8.7 dispute settlement procedure term …. 10.6 Fair Work Ombudsman …. 8.10 industrial disputes power …. 8.2 non-technical …. 8.8 procedures in modern awards …. 9.18 Dual (legal) status employees …. 2.60–2.62 Duress employment contracts …. 3.41–3.42 contractual vitiation …. 3.36, 3.43 Duty of care employee duties competence and …. 5.11–5.12 regarding employer’s property …. 5.13

employer duties …. 4.21–4.24 bullying and harassment …. 4.5, 4.27–4.28 categories …. 4.25–4.35 competent fellow staff …. 4.26 imperfect employees …. 4.34 personal nature of …. 4.23–4.24 precautionary measures …. 4.33 safe plant and equipment …. 4.30, 4.32 safe system of work …. 4.31–4.32 substance testing …. 4.29, 5.9–5.10

E 80 per cent test (employment) …. 2.29–2.30 Employee duties …. 1.12, 5.1–5.42 authorised …. 2.2–2.3 boundaries …. 3.62 confidentiality …. 5.37–5.42 confidential information …. 5.39 versus public interest …. 5.40 whistleblower protection …. 5.40–5.42 disclosure …. 5.33–5.36 acts of other employees …. 5.36 duty not to impede employer’s business …. 5.7 duty of care competence and …. 5.11–5.12 regarding employer’s property …. 5.13 faithful service, duty of …. 5.15–5.24, 5.37, 11.8 bribes and secret commissions …. 5.17 competing with employer …. 5.18

more than one employer …. 5.22–5.24 post-employment competition …. 5.20–5.21 remedies against third parties …. 5.19 indemnify, duty to …. 5.14 interdependent duties …. 4.1 inventions, duty to hand over …. 5.25–5.32 copyright …. 5.31 created in spare time …. 5.26 designs …. 5.32 employee patents …. 5.28–5.30 intellectual property ownership …. 5.27–5.32 no work, no pay …. 4.2, 4.15–4.18 obey orders of employer …. 5.2–5.10 breach …. 5.8 conflicting orders …. 5.8 lawful qualification …. 3.62, 3.66, 5.3, 5.6–5.7, 11.4 privacy and …. 5.9–5.10 reasonable qualification …. 3.62, 3.66, 5.3–5.5, 11.4, 12.21 workplace context consideration …. 5.5 personal nature …. 5.1 Employee entitlements in event of long-term illness …. 6.42 minimum wage …. 1.5–1.6 under modern awards …. 9.1–9.20 under NES …. 8.13–8.25 public holidays …. 8.23 state-enacted legislative provision …. 1.3, 1.5 transfer to new employer under Fair Work Act …. 6.48 see also Leave arrangements

Employee rights freedom of association …. 7.2, 8.25 Ombudsman information regarding …. 8.9 right to request flexible working arrangements …. 8.16 rights to strike …. 11.19–11.23 statutory rights …. 1.6 Employees conduct …. 2.2 aggressive behaviour …. 11.1 misconduct …. 1.7, 5.33, 5.36, 7.7, 8.24 tortious …. 11.9 valid dismissal reason …. 7.10 criminal charges against …. 6.41 defined …. 1.15, 2.6–2.7 dual legal status …. 2.60–2.62, 2.77 earnings reduction …. 4.8 employee records …. 4.46 explaining enterprise agreement terms …. 10.5 as fiduciary …. 5.16 fixed-term employees …. 6.5, 7.5 groups or collectives …. 11.1 hypothetical employees …. 7.24 imperfect employees …. 4.34 imprisonment …. 6.38, 6.40 independent contractors, distinction …. 2.9, 2.27 industrial action …. 11.1 ‘keeping in touch’ days …. 8.17 labour hire …. 2.54–2.56 liability …. 4.39

more than one employer …. 5.22–5.24 national system application …. 1.3 needs of …. 10.6 permanent employees …. 2.42–2.44, 2.52–2.53 legislative entitlements …. 2.42 privacy employer provision of …. 4.46 orders compliance despite privacy impingement …. 5.9 refusal to work beyond maximum hours …. 8.15 reputation of …. 4.7 resignation …. 7.9 restraining trade of …. 3.46 restructured business, impacts …. 6.45–6.48 retrenchment …. 11.2 seasonal employees …. 2.42, 7.5 skills …. 5.11–5.12 new or peculiar knowledge …. 5.38 special skills improvement …. 4.10–4.12 training …. 4.10–4.12, 4.26 use to own advantage …. 3.46 statutory job protections …. 2.4, 7.1–7.29 relating to minimum wages and conditions …. 7.1 suspension or ‘stand down’ …. 4.19–4.20 trainee employees …. 7.5 unfair dismissal claim eligibility …. 7.5–7.6 unsecured creditors on employer bankruptcy …. 6.53 Employer duties …. 1.12, 4.1–4.46 absolute …. 12.14

accommodation, provision of …. 4.44 breach …. 4.5 categories …. 4.25 duty of care …. 4.21–4.24, 4.45 aspects …. 4.25–4.35 bullying and harassment …. 4.5, 4.27–4.28 competent fellow staff …. 4.26 imperfect employees …. 4.34 non-delegable …. 12.15 personal nature of …. 4.23–4.24 precautionary measures …. 4.33 safe plant and equipment …. 4.30 safe system of work …. 4.31–4.32 substance testing …. 4.29, 5.9–5.10 employees earnings reduction …. 4.8 reputation of …. 4.7 special skills improvement …. 4.10–4.12 suspension or ‘stand down’ …. 4.19–4.20 WHS duties …. 12.13–12.17 employment references, duty to provide …. 4.41–4.43 hazard minimisation …. 4.27 indemnify, duty to …. 4.36–4.40 lapse on employee negligence …. 4.38 interdependent duties …. 4.1 personal service contract …. 4.3 wages–work bargain …. 1.6–1.7, 3.21, 4.2 medical care, provision of …. 4.45 no mutual trust and confidence duty …. 4.4–4.5

obligations …. 6.50, 7.8 legal obligations sources …. 1.9–1.35 legislative creation of new …. 1.23 personal …. 4.3 return to work …. 12.28 statutory …. 1.3 performance of office or special duties …. 4.9 privacy compliance despite privacy impingement …. 5.9 provision of …. 4.46 remuneration, duty to pay …. 4.13–4.18, 5.2 no work (as directed), no pay …. 4.2, 4.15–4.18 overpayments by employer …. 4.14 standard of care …. 4.35 work, provision of …. 4.6 Employers bargaining ability …. 1.7 common law claims …. 12.28 defined …. 2.6, 2.8 employer policies express terms …. 3.61–3.63 as lawful order source …. 5.6 enterprise agreement copies …. 10.5 false statements …. 2.40 industrial action …. 11.2 post-action improved employment conditions …. 9.1 insurance policies …. 4.39 liability

insurance policies–employee liability …. 4.39 precautionary measures …. 4.33 vicarious liability …. 2.2, 2.70 loyalty to …. 5.16 mistreatment …. 7.1 modern award coverage …. 9.4 national system employers …. 8.1 needs of …. 10.6 no notice entitlement reciprocity …. 6.11 ownership …. 5.32 protecting interests of …. 3.49 public campaigns against …. 11.7 reputation of …. 4.46 restructuring business …. 6.46, 6.47, 6.48, 7.3 union consultation …. 9.1 Employment beyond fixed-term contact expiry see Employment contracts of indefinite duration of children …. 3.32 in conflict …. 5.19 defined …. 2.1–2.78 course of employment …. 2.2 dismissal harsh, unjust or unreasonable feature of see Unfair dismissal mutual agreement, false claims in light of …. 6.4 employer’s characterisation …. 2.50 employment restraint–post-employment restraint, distinction …. 3.57–3.58 employment–work distinction …. 2.4, 2.28

‘genuine occupational qualification’ …. 7.27 identifying legal consequences …. 2.1–2.5 legislative definitions …. 2.6–2.8 legislative protection …. 7.1 dependence on worker being an employee …. 2.4 maximum weekly hours …. 8.15 of non-citizens …. 3.33 offers of …. 3.3 period of, minimum …. 7.5 regulation of work see Regulation reinstatement …. 6.2, 7.3, 7.12 safety sensitive …. 5.9 types of …. 2.42–2.78 casual employment …. 2.45–2.53 contracts of indefinite duration …. 2.43 dual status employees …. 2.60–2.62 labour hire employees …. 2.54–2.56 outworkers …. 2.57–2.59 part-time employment …. 2.44 self-employment …. 2.4 short or temporary …. 7.5 Employment advertisements …. 3.1, 3.2–3.4 offers to negotiate …. 3.10 Employment contracts acceptance communication by offeree …. 3.18 complete and unqualified …. 3.16 express or implied …. 3.17

offeror-prescribed method …. 3.19 in reliance of offer …. 3.15 rules regulating …. 3.14–3.19 associated costs …. 2.5 awards and agreements, impact of …. 1.31–1.32 breach damages under common law …. 6.7, 7.1 early fines, imprisonment, payment orders …. 1.3 express term as to notice, non-compliance …. 6.8 Fair Work Act recompense see Fair Work Act 2009 premature termination …. 6.7 capacity to contract …. 3.27–3.34 children …. 3.29–3.32 corporations and associations …. 3.34 intoxication and mental illness …. 3.28 migrants …. 3.33 certainty …. 3.26 consideration …. 3.21–3.25 legal, and not vague or uncertain …. 3.22 movement from each party …. 3.25 present or future, not past …. 3.23 sufficient, not necessarily adequate …. 3.24 continuance impermissible …. 6.41 ‘contracts of service’ …. 1.2 defined/fixed-term contracts …. 6.5–6.7 enforceability …. 2.62, 3.7 express terms …. 3.46, 4.13

formation agreement on performance of work …. 3.1 employment advertising …. 3.1, 3.2–3.4 honest responses for validity …. 5.34 interviews and pre-contractual negotiations …. 3.5–3.6 pre-contractual negotiations …. 3.1 frustration of contract …. 6.38–6.42 implied terms …. 1.17–1.21 implied terms in all …. 3.65 of indefinite duration see Employment contracts of indefinite duration indefinite duration …. 2.43 industrial action, interference with contractual relations …. 11.11 intention …. 2.31, 3.20 interpretation of …. 1.14–1.16 common law, terms and …. 1.14–1.15 labelling as aid …. 2.34 legislative provisions, effect of …. 1.26–1.28 limited lifespan …. 6.5 mistake …. 3.36 vitiation …. 3.36, 3.43 mutual consent and legality …. 3.35–3.44 duress and undue influence …. 3.41–3.42, 3.43 lawful objects …. 3.44 misrepresentation …. 3.37–3.40, 3.43 mistake …. 3.36, 3.43 unconscionable employment contracts …. 3.43 mutual trust and confidence duty, lack of …. 4.4–4.5

mutuality of obligation …. 4.2 nature of …. 1.10–1.12, 1.31–1.32 scrutiny to determine …. 2.34 offer acceptance reliance of …. 3.15 communication of …. 3.12 definite terms …. 3.9 elements of …. 3.7 invitation to treat, distinction …. 3.10 revocation …. 3.13 rules regulating …. 3.8–3.13 to whom …. 3.11 other contract types, distinguished …. 1.11 parties to common law term additions …. 1.18 determination of …. 2.1 ‘fair go all round’ …. 7.3 imprisonment of a party …. 6.38, 6.40 movement from each party …. 3.25 no opting out for …. 1.27 ousting employer’s indemnity duty …. 4.37 restraint of trade clause …. 3.48 restraint of trade clauses …. 3.44, 3.45–3.48 ‘blue pencil’ rule …. 3.56 restraint during employment …. 3.57–3.58 sham contracting …. 2.35–2.41 termination see Termination of employment contract terms see Terms of employment contracts triangular arrangements avoiding prohibitions …. 2.37

unconscionable …. 3.43 work arrangements, distinguished …. 2.1 workability …. 1.18 Employment contracts of indefinite duration …. 2.43, 6.5 Employment law constitutional basis …. 8.2–8.3 English origins early legislative scope …. 1.3 indenture system …. 1.1–1.2 international standards …. 1.33–1.35 regulation of work …. 1.1–1.8 in Australia …. 1.4–1.8 sources common law …. 1.9–1.21 legal obligation …. 1.9–1.35 legislation …. 1.22–1.28 Employment references employer duties …. 4.41–4.43 forms …. 4.41 versus statements of service …. 4.42 unfavourable …. 4.43 Employment relationship …. 2.61 abandonment …. 6.33 agreed terms …. 3.64 aspects …. 1.24 efficient outcomes …. 1.8 factual circumstances of …. 5.4 federal regulation of …. 1.3

federal tribunal for see Fair Work Commission full circumstances considered …. 6.42 fundamental duties involved …. 5.2 gaining response via industrial action …. 11.1 governance …. 1.32 identifying …. 1.13, 2.23, 2.6, 2.75 interdependent nature …. 4.1 labelling of …. 2.31–2.34 legislative supplement …. 1.26 partnership disguising …. 2.75 personal nature …. 5.15 procedures for dealing with …. 1.24 regulatory function of legislation, dual systems …. 8.1–8.7 reinstatement …. 7.12 sham contracting …. 2.35–2.41 statutory direction …. 1.5 versus potentially unfair work conditions …. 1.8 subservience of …. 4.4 truthful and accurate answers to questions …. 5.34–5.35 wages–work bargain …. 1.6–1.7, 3.21, 4.2 Employment terms and conditions …. 1.8, 7.1, 8.1–8.25 ‘all in one’ documentation …. 10.1 awards determination …. 9.1 minimum set …. 9.2, 9.5 bargained conditions …. 1.8 collective agreements at enterprise level see Enterprise agreements discontent reflected in media coverage …. 11.1 by employer and union consent …. 9.1

enterprise-level determination of …. 10.1 industrial disputes power determination …. 8.2 inefficiencies and rigidity in …. 9.1 minimum conditions …. 1.5, 8.1 undisplaceable …. 8.14 same conditions in similar circumstances …. 1.21 tailoring beyond minimums …. 10.1 see also Terms of employment contracts Employment tests common law …. 2.9–2.41 business/economic reality test …. 2.18–2.19 control test …. 2.10–2.15 80 per cent test …. 2.29–2.30 integration/organisation test …. 2.16–2.17 labelling …. 2.31–2.34 multi-factor test …. 2.21–2.28, 2.54, 2.58 Ready Mixed Concrete test …. 2.20 sham contracting …. 2.35–2.41 legal consequences …. 2.1–2.5 legal purposes of using, labelling of legal relationship …. 2.31–2.34 legislative definitions employee …. 2.6–2.7 employer …. 2.8 Employment types casual employment …. 2.45–2.53 dual status employees …. 2.60–2.62 labour hire employees …. 2.54–2.56 under modern awards …. 9.9

outworkers …. 2.57–2.59 part-time employment …. 2.44 Enterprise agreements …. 6.42, 7.5, 8.6 agreement approval …. 10.6–10.11 ‘no disadvantage’ test …. 10.11 pass the ‘better off overall’ test …. 10.10–10.11 registration …. 10.8 agreement making …. 8.25, 10.1–10.7 good faith bargaining …. 8.8, 10.11, 10.12–10.13 incentives over awards …. 10.1 procedures …. 10.4–10.5 bargaining process …. 10.12–10.15 absence of employee representation …. 10.1 advancing agreement towards approval …. 10.5 good faith bargaining …. 8.8, 10.13 low-paid bargaining …. 10.15 power differentials …. 1.6–1.8 strategic bargaining …. 11.20 cashing out provisions …. 8.19 compliance with …. 7.8 coverage …. 10.9 dispute settlement procedure term …. 10.6 employment conditions determination …. 9.1 greenfield agreements …. 10.2–10.3, 10.5 increased productivity via …. 8.1 interactions with employment contracts …. 1.31–1.32 involving a person’s identity …. 1.11 mandatory terms …. 10.6–10.7

testing for …. 10.9 multi-enterprise agreements …. 10.2–10.3, 10.5 ‘no further claims’ provision …. 10.16 progressive reform …. 1.30 residual ‘legacy’ clauses …. 10.16 single enterprise agreements …. 10.2–10.4 protected action …. 11.20 superior entitlements pursuant to …. 10.1 termination …. 10.16 terms …. 10.5 discriminatory …. 10.7 flexibility term …. 10.6 objectionable …. 10.7 unlawful …. 10.7, 10.10 types of …. 10.2–10.3 unlawful content …. 10.7 variation …. 10.16 voting for …. 10.5, 10.16

F Fair Work Act 2009 (Cth) …. 8.22 awards Fair Work Commission assessment …. 9.5 legislative reform to …. 9.4 bullying defined …. 7.29 jurisdiction …. 7.29 casual employee rights exclusion …. 2.51 controls on protected/unprotected industrial action …. 11.22

employee entitlements transfer …. 6.48 enterprise agreements provisions …. 10.2 inconsistency with …. 10.16 general protections dismissal …. 5.41, 7.13–7.17 adverse action …. 7.15 industrial action definition …. 11.3 payments prohibition …. 11.22, 12.24 protected …. 10.14 ineffective contract terms …. 3.69 minimum conditions …. 8.13–8.14 payment in lieu of notice …. 6.16 scope …. 7.4, 8.1 termination remedies …. 7.12 compensation …. 7.12 ‘fair go all round’ for all parties …. 7.3 reinstatement …. 6.2, 7.3, 7.12 unfair dismissal protections …. 7.4, 7.18 see also National System Fair Work Commission (FWC) …. 1.9, 1.24, 1.29, 7.17, 7.19, 8.8, 8.24–8.25, 11.19 advancing agreement towards approval …. 10.5 early award-making power …. 9.1 enterprise agreements creation facilitating …. 10.15 ‘scope’ orders …. 10.3 jurisdiction …. 7.5 lockout termination …. 11.2 modern awards considerations …. 9.5

creation and maintenance …. 9.2 four-yearly assessment cycle …. 9.5–9.6 orders bargaining orders to assist …. 10.15 for bullying …. 7.29 ‘scope’ orders …. 10.3 serious breach declaration …. 10.14 registration of agreement with …. 10.8 social inclusion …. 9.5 unfair dismissal applications …. 7.6 consistency with Code …. 7.7 validity of reason for dismissal …. 7.10 Fair Work Ombudsman …. 8.9–8.11, 8.25 Federal Circuit Court …. 7.22, 11.19, 11.22 special jurisdiction …. 8.12 Federal Court …. 11.19 special jurisdiction …. 8.12 Federal legislation …. 1.3, 2.8 anti-discrimination legislation …. 7.21–7.28 bullying provisions …. 7.29 casual employees–permanent employees, distinction …. 2.52 diminution of state system coverage …. 8.3 national system …. 1.3, 8.1–8.25 protective legislation …. 1.5, 7.1–7.29 disclosure …. 5.41 worker as employee criteria …. 2.4 protective objective …. 1.5, 7.1–7.29, 8.1 shared concurrent powers …. 8.2

regulation of employment relationship …. 1.3, 1.22, 8.1 main functions …. 1.23–1.25 scope …. 8.3 vilification prohibitions …. 7.28 Federal system, registrable individual agreements removal …. 10.1 Fixed-term contracts …. 6.5–6.7 expiry fresh contract versus term extension …. 6.5 no employee dismissal …. 6.6, 7.5 premature termination, liability on …. 6.7 Frustration of contract employment contracts …. 6.38–6.42 compulsory military service …. 6.38–6.39 frustrating event, defined …. 6.38 imprisonment of a party …. 6.38, 6.40 long-term illness or injury …. 6.38, 6.42 Full-time employment …. 2.42, 2.44, 9.9

G General protections …. 7.13–7.17 Good faith bargaining …. 8.8, 10.13

I Importers, WHS duties …. 12.18 Indemnification employee duties indemnify, duty to …. 5.14 employer duties express and implied terms …. 4.36–4.37

lapse on employee negligence …. 4.38 making good property damage …. 4.40 modification or ousting …. 4.37 Independent contractors …. 1.13, 2.5, 2.54, 2.63–2.68, 12.28 authorisation of hired worker …. 2.3 contracts of service …. 4.3 ‘for’ and ‘of ’ …. 2.9 transforming? …. 2.13 employee, distinction …. 2.9 employment relationship disguised as independent relationship see Sham contracting little common law protection …. 2.67 restraints treatment – reasonableness …. 3.55 Industrial action …. 11.17 bans on non-union member employment …. 11.26 overtime bans …. 11.4 payments for partial bans …. 4.18, 11.22 protected action …. 4.18 boycotts …. 11.4, 11.24–11.28 common law immunity …. 11.19 defining …. 11.3–11.5, 12.24 employee action …. 11.1 employee rights to strike …. 11.19–11.23 employer action …. 11.2 examples …. 11.4 go-slows …. 11.4 industrial torts …. 11.6–11.18 involving non-disputants …. 11.23

legislation …. 11.20–11.23 refusal to work considered as …. 11.3–11.4, 11.8, 12.24 occasioning dismissal …. 11.5 sit-ins and occupations …. 11.4 work-to-rules …. 11.4 Industrial disputes power, dispute resolution, legally enforceable outcomes …. 8.2 Industrial torts …. 11.6–11.18 as civil wrong …. 11.6 conspiracy …. 11.14–11.16 types of …. 11.14 by unlawful means …. 11.15 injunction …. 11.6, 11.17, 11.19 interference with contractual relations …. 11.11 intimidation …. 11.12–11.13 elements …. 11.13 justification …. 11.18 more than one …. 11.17 picketing …. 11.7–11.10 constituting offence pursuant to criminal law …. 11.10 online …. 11.7 Integration/organisation test (employment) …. 2.16–2.17 criticisms …. 2.17 International Labour Organization (ILO) principles …. 1.35 standards …. 1.33 International law, common law and …. 1.33–1.35 Intimidation …. 11.12–11.13 Intoxication, capacity to contract …. 3.28

L Labour hire employees …. 2.54–2.56 transfer of …. 2.56 two contractual relationships …. 2.55 workers registry …. 2.54 Leave arrangements …. 2.4 annual leave …. 8.18 carer’s leave …. 8.19 community service leave …. 8.21 compassionate leave …. 8.20 concurrent leave …. 8.17 exhausted leave provisions (illness) …. 6.42 long service leave …. 8.22 modern awards …. 9.16 National Employment Standards …. 8.17–8.22 parental leave …. 8.17 personal leave …. 8.19 Legislation anti-discrimination legislation …. 4.27, 7.2, 7.21–7.29 clarification of common law …. 1.25 common law interpretation …. 1.16 corporation legislation …. 2.71 definitions – employers/employees …. 2.6–2.8 derivative …. 12.25 early scope …. 1.3 employment contracts and …. 1.26–1.28 ineffective terms …. 3.69 as employment law source …. 1.22–1.28

federal …. 1.3, 2.8 anti-discrimination legislation …. 7.21–7.28 bullying provisions …. 7.29 federal system …. 8.1–8.25 protective legislation …. 1.5, 5.41, 7.1–7.29, 8.1 regulation of employment relationship …. 1.3, 8.1 industrial action …. 11.20–11.23 international law and …. 1.33–1.34 legislative reform, to awards …. 9.4 legislative remedies for dismissal, contract termination remedies, distinguished …. 6.2 pre-contractually relevant …. 2.4 procedures …. 1.24 protected action ballot order application …. 11.22 common requirements …. 11.20 notice requirement …. 11.21 protective …. 1.5, 1.7, 5.14, 7.1–7.29, 8.1 inequity considerations on minimising …. 1.8 worker an employee, dependence criteria …. 2.4 relating to freedom of association …. 7.2, 8.25 relating to minimum notice …. 7.2 rights and obligations creation …. 1.23 rights existence and assertion despite terms and inconsistency of …. 3.69 state …. 2.8, 12.22, 12.26 anti-discrimination legislation …. 7.23 colonial …. 1.3, 1.3–1.4 disclosure …. 5.42

due diligence …. 12.19 own health and safety …. 12.21 protective legislation …. 8.1 regulation of employment relationship …. 8.1 unfair dismissal protections …. 7.4 work health and safety (WHS) legislation …. 12.1–12.6 WHS legislation …. 1.26, 12.1–12.28 work cessation …. 12.23–12.24 Legislative instruments common law interpretation …. 1.16 see also Awards; Collective agreements; Modern awards Liability employee liability …. 4.39 immunity in respect of disclosure …. 5.41 precautionary measures …. 4.33 premature termination – fixed-term contract …. 6.7 vicarious liability …. 2.2, 2.35, 2.68, 2.70 Long service leave …. 8.22

M Manufacturers, WHS duties …. 12.18 Master and servant law Australian reception …. 1.3 power to discipline …. 1.2 Media, disclosure in certain circumstances …. 5.42 Mediation …. 7.19, 8.4, 8.8, 10.6 Medical care, employer provision …. 4.45 Mental illness, capacity to contract …. 3.28 Migrants, capacity to contract …. 3.33

Minimum wage …. 4.13 award-granted entitlements …. 9.1 entitlements …. 1.5–1.6, 2.35 legislative protection …. 7.1 worker as employee dependency …. 2.4 in modern awards …. 9.1, 9.10 Ministers of religion …. 2.69–2.70 Minors, capacity to contract …. 3.29–3.32 Misleading conduct CCA prohibition …. 3.2 conduct liable to mislead, extension …. 3.3 Misrepresentation employment contracts …. 3.37–3.40 contractual vitiation …. 3.36, 3.43 fraudulent misrepresentation …. 3.40 innocent misrepresentation …. 3.38 negligent misrepresentation …. 3.39 Mistake contract formation …. 3.36 contractual vitiation …. 3.36, 3.43 imperfect employees …. 4.34 Modern awards …. 8.25 allowances …. 9.15 arrangements annualised wage …. 9.14 individual flexibility …. 9.19 leave, leave loadings and leave arrangements …. 9.16 for when work is performed …. 9.11

binding …. 1.29 cashing out provisions …. 8.19, 9.16 compliance with …. 7.8 content mandatory …. 9.7 minimum standards …. 9.4, 10.1 permitted …. 9.4 variations …. 9.6 coverage terms …. 9.8 employment types …. 9.9 increased productivity via …. 8.1 mandatory content …. 9.7 minimum wages and other payments …. 9.10 other clauses …. 9.20 outworker terms …. 9.20 overtime …. 9.12 penalty rates …. 9.13 procedures consultation and representation …. 9.18 for dispute settlement …. 9.18 superannuation …. 9.17 Multi-factor test (employment) …. 2.21–2.28, 2.54, 2.58

N National Employment Standards (NES) …. 8.13–8.25, 9.16, 9.18 annual leave …. 8.18 awards inconsistencies …. 9.6 minimum safety net of terms and conditions …. 1.30,

9.2–9.3, 9.5 modern award minimum standards …. 9.4 community service leave …. 8.21 compassionate leave …. 8.20 Fair Work Information Statement …. 8.25 flexible working arrangements …. 8.16 long service leave …. 8.22 maximum weekly hours …. 8.15 modern award coverage …. 9.4 beyond minimums …. 10.1 notice of termination …. 8.24 parental leave …. 8.17 personal or carer’s leave …. 8.19 public holidays …. 8.23 redundancy pay …. 8.24 National system …. 1.3, 8.1–8.25 coverage …. 2.6 employees …. 2.6, 7.4, 10.1 entitlements transfer on business transfer …. 6.48 protected action …. 11.20 employers collective bargaining …. 10.1 statutory fit …. 8.1 law-making power …. 8.2 Negligence …. 1.12 contributory negligence …. 4.21 employee negligence …. 5.14 in course of employment …. 2.2

lapse of employer indemnity duty …. 4.38 negligent misrepresentation …. 3.39 Negotiation …. 1.29, 3.19, 10.1, 10.4, 10.5 advertisements as offers to negotiate …. 3.10 exaggerated statements or puffery …. 3.6 pre-offer communication non-binding environment …. 3.12 ‘in trade or commerce’ requirement …. 3.5

O Office holders company directors …. 2.71 dual status …. 2.77 independence …. 2.76 legislative direction …. 2.78 Officers …. 4.40 WHS duties …. 12.19–12.21 Outworkers …. 2.57–2.59 as employees …. 2.59 Overtime …. 9.12

P Parental leave …. 8.17 Partnerships …. 2.75, 6.36 exemptions for less than six partners …. 7.27 Part-time employment …. 2.42, 2.44, 9.9 employer constraints to …. 9.1 Penalty rates …. 9.13 Personal leave …. 8.19 Persons conducting a business or enterprise

duties of …. 12.7–12.9, 12.11–12.12 who manage or control a workplace …. 12.11–12.12 Plant and equipment work health and safety …. 4.30 duties of installers of plant …. 12.18 without risk …. 12.12 Privacy …. 4.46 Productivity damage from bullying …. 7.29 increased/decreased incentives over awards …. 10.1 via awards …. 8.1, 9.1 via industrial action …. 11.4 Puffery …. 3.6, 3.37

R Ready Mixed Concrete test …. 2.20 Recruitment and selection …. 3.1 Redundancy …. 1.19 arising from restructuring …. 7.3 genuine redundancy exclusion …. 7.4, 7.8–7.9 no redeployment, no exclusion …. 7.8 redundancy pay …. 8.24 scheme for …. 9.18 Regulation CCA employment advertising regulation …. 3.2 compliance requirements …. 1.7 dual systems …. 8.1–8.7 federal regulation

of employment advertising …. 3.2 of employment relationship …. 1.3, 1.22 of individual and collective employer–employee relationships …. 2.5, 8.1 of industrial action …. 11.9 industry-wide regulation versus enterprise-level determinations …. 10.1 regulatory landscape – custom and practice …. 1.20 of work …. 1.1–1.8 Remuneration employer’s duty to pay …. 4.13–4.18, 5.2 no work (as directed), no pay …. 4.2, 4.15–4.18 overpayments by employer …. 4.14 no entitlement for incomplete work …. 11.5 see also Minimum wage; Wages Restraint of trade employment contracts …. 3.44, 3.45–3.48 ‘blue pencil’ rule …. 3.56 combined clauses …. 3.57–3.58 restraint during employment …. 3.57–3.58 enforceable clauses …. 3.54 invalid clauses …. 3.50 ‘trade secrets’ …. 3.49 unenforceable …. 3.48, 3.51 unless reasonable …. 3.45 valid clauses …. 3.53 Rights employees …. 2.53, 8.1 freedom of association …. 7.2, 8.25

good faith and fidelity obligations …. 4.4, 5.20, 5.21 individual and collective …. 1.6 industrial disputes power granting …. 8.2 non-award covered see National Employment Standards rights on termination …. 2.4 rights to strike …. 11.19–11.23 statutory rights …. 1.6 employers, employee payment – defined and bounded obligation …. 5.1 flowing from employment contract …. 4.3 new …. 1.23 notice of representational rights, ‘as soon as is practicable’ …. 10.4 on termination …. 2.4 transforming to permanent employment …. 2.53 workers as employment contract party giving rise to …. 2.1

S Safe Work Australia bullying …. 7.29 WHS legislation application …. 12.1 WHS legislation policy …. 12.2 Safety see Work health and safety Self-employment …. 2.4, 12.10 taxation testing …. 2.29–2.30 Sham contracting …. 2.35–2.41 Small Business Fair Dismissal Code (the Code) …. 7.4, 7.7 Sovereignty (parliamentary) …. 1.27 Standard of care …. 4.35

State legislation …. 2.8 anti-discrimination legislation …. 7.23 colonial …. 1.3, 1.3–1.4 disclosure …. 5.42 protective objective …. 8.1 shared concurrent powers …. 8.2 regulation of employment relationship …. 8.1 unfair dismissal protections …. 7.4 uniform legislation …. 12.4, 12.22, 12.26 due diligence …. 12.19 duties under …. 12.6, 12.7, 12.9 own health and safety …. 12.21 similar non-uniform provisions …. 12.3 work health and safety (WHS) legislation …. 12.1–12.6 preventing work-related injury and death …. 12.1 Statutory law, regulation of work …. 1.4–1.8 Strike action …. 11.1, 11.4, 11.19–11.23 covenants and conventions …. 11.18 Substance testing …. 4.29 compliance considerations …. 5.9–5.10 Summary dismissal …. 6.8, 6.18–6.30, 7.7 no remedy unless contractual breach …. 7.3 Superannuation …. 9.17 Suppliers, WHS duties …. 12.18

T Termination of employment contract …. 6.1–6.53 abandonment …. 6.33 as agreed …. 6.3–6.16

defined/fixed term contracts …. 6.5–6.7 expressly agreed notice …. 6.8–6.9 mutual termination …. 6.4 payment in lieu of notice …. 6.15–6.16 quantifying notice …. 6.12 reasonable notice …. 6.5, 6.9, 6.10–6.11 automatic termination …. 6.34 bankruptcy, receivership and liquidation …. 6.49–6.53 change of employer …. 6.43–6.48 transmission and contract termination …. 6.44 contractual rules …. 6.2 by court-ordered appointment …. 6.50 death of a party …. 6.35–6.37 dismissal constructive …. 6.31–6.32 on employer initiative …. 6.41, 7.4, 7.9 grounds …. 5.34, 6.17, 6.42 legislative remedies for …. 6.2, 7.2–7.17 summary …. 6.8, 6.18–6.30, 7.3, 7.7 early termination clause …. 6.7 frustration of contract …. 6.38–6.42 grounds prohibited …. 7.18–7.20 specified expressly …. 6.3 legislative remedies for dismissal contract termination remedies, distinguished …. 6.2 general protections dismissal …. 7.13–7.17 unfair dismissal …. 6.2, 7.2–7.12 notice of termination …. 7.3, 7.7

in accordance with express notice term …. 6.8 expressly agreed …. 6.8–6.9 frustration of contract exclusion …. 6.38 payment in lieu of …. 6.15–6.16 quantifying …. 6.12 reasonable notice …. 6.3, 6.5, 6.9, 6.10–6.11 withdrawing notice …. 6.13–6.14 prematurely …. 6.7 recognition …. 6.1 rights on termination …. 2.4 statutory protections for employees …. 7.1–7.29 triggers for …. 6.5 unlawful termination …. 7.18–7.20 Terms of employment contracts adherence to …. 11.4 breach …. 7.3 industrial action tantamount to …. 11.4 occasioning dismissal …. 11.5 repudiatory …. 5.8 compliance …. 5.8, 6.2 express terms …. 3.60–3.63, 3.71, 6.42 employer policies …. 3.61–3.63 inventions …. 5.29 as to notice …. 6.8–6.9 reasonable notice in absence …. 6.9 specific person conducting work …. 4.3 specified duration …. 6.5 specified termination grounds …. 6.3

implied by fact …. 3.70–3.71 ‘officious bystander test’ …. 3.70 policies, practices and terms interactions …. 3.71 implied by law …. 3.65–3.69 common law …. 3.66 custom and practice …. 1.19, 1.21, 3.67–3.68, 4.44 implied by fact, contrast …. 3.70 legislative right …. 3.69 implied terms …. 3.64, 3.71, 4.36, 5.37 common law additions …. 1.17 industry practices …. 3.67–3.68 UK’s mutual duty …. 4.5 ineffectiveness …. 1.31 lawful orders in accordance …. 5.6 policy as terms …. 3.63 written or oral …. 2.31, 3.59, 3.60 Torts see Industrial torts Training …. 4.10–4.12, 4.26, 10.7 less than adequate …. 12.17

U Unconscionability unconscionable conduct …. 3.4 unconscionable employment contracts …. 3.43 Undue influence, employment contracts …. 3.41–3.42 Unfair dismissal …. 6.2, 6.41, 7.2–7.12 claims …. 6.2 eligibility …. 7.5–7.6 speedy and fair resolution …. 7.3

genuine redundancy exclusion …. 7.4, 7.8–7.9 no redeployment, no exclusion …. 7.8 small business, Small Business Fair Dismissal Code …. 7.4, 7.7 unlawful dismissal, distinguished …. 7.2 see also Fair Work Act 2009 Unions …. 1.7, 1.29, 10.3, 10.5, 10.7 improved employment conditions consent …. 9.1 interference tort …. 11.11 representation role …. 10.4 restraining …. 11.17 secret ballot of union members …. 11.22 United Nations …. 1.33 Unlawful termination …. 7.18–7.20 unfair dismissal, distinguished …. 7.2

V Vicarious liability …. 2.35, 2.68 of employer …. 2.2, 2.70 Voluntary workers …. 2.73–2.74, 12.28

W Wages annual review …. 8.8 annualised arrangements …. 9.14 inefficiencies and rigidity in …. 9.1 leave arrangements …. 9.16 wage rates assessment …. 9.5 base rates …. 8.18

changes to …. 9.6, 10.1 wages–work bargain …. 1.6–1.7, 3.21, 4.2 see also Minimum wage Whistleblower protection …. 5.40–5.42 Work bargained conditions of …. 1.8 employment–work distinction …. 2.4, 2.28 homework …. 2.57 hours of work, uncertainty …. 2.48 nature of …. 2.11, 4.29 performance of work …. 1.13, 2.20, 8.17, 12.27 agreement on see Employment contracts …. 3.1 bailment …. 2.72 contractual relationship …. 1.10–1.12 delaying, limiting, restricting …. 11.3 hours of work …. 9.11 by one person for another …. 2.73 refusal to work …. 11.8, 12.24 relevant laws …. 2.5 restrictions and freedoms in agreements …. 1.5 provision of work as separate consideration …. 4.6 repetitive work …. 4.34 wages–work bargain …. 3.21, 4.2, 4.15–4.18 equal pay for equal work …. 9.5 work-to-rules …. 11.4 Work arrangements contractual …. 2.69 employment contract, distinguished …. 2.1 flexible working arrangements …. 2.42, 8.16

indenture …. 1.1–1.2 modern awards annualised wage arrangements …. 9.14 arrangements for when work is performed …. 9.11 individual flexibility arrangements …. 9.19 leave arrangements …. 9.16 Work health and safety …. 12.26 consultation, representation and participation …. 12.22 due diligence …. 12.20 duties of designers, manufacturers, importers, suppliers, constructors and installers of plant …. 12.18 employer’s duty to employees …. 12.13–12.17 ensuring health and safety of workers …. 7.29 of officers …. 12.19–12.21 to other persons …. 12.10 of other persons …. 12.19–12.21 of persons conducting a business or enterprise …. 12.7–12.9 of persons conducting a business or enterprise who manage or control a workplace …. 12.11–12.12 of workers …. 12.19–12.21 health and safety committees and work groups …. 12.22 penalties …. 12.26 for criminal offences …. 12.6 refusal to work in certain situations …. 12.23–12.24 safe plant and equipment …. 4.30 safe work policy …. 4.33 safe work systems …. 4.31–4.32 state legislation …. 12.1–12.6

objectives …. 12.4 scope …. 12.5–12.6 workers compensation legislation …. 12.27–12.28 workplace change …. 12.25 Work relationships bargaining power inequalities …. 1.6–1.8 shifts …. 10.16 categorising …. 2.9, 2.32 a contractual relationship …. 1.10–1.12 employment, defined …. 2.1–2.78 nature of …. 2.26 non-employment relationships …. 2.12 see also Employment relationship; Workplace relations system Work standards award-set labour standards …. 9.1 legislative imposition …. 1.4 regulation of …. 1.4–1.8 Workers becoming independent contractors …. 2.66 ‘casual worker’ …. 2.46 ensuring health and safety of workers …. 7.29 legal status …. 2.31, 2.60–2.62, 2.77 not tradeable chattels …. 1.10 ‘part and parcel of the organisation’ …. 2.16 party to employment contract, determination …. 2.1 rehabilitation of …. 12.28 separate legal entity incorporation …. 2.5

types of …. 2.63–2.78 employees see Employees independent workers …. 2.3 see also Employees WHS duties …. 12.19–12.21 Workers compensation …. 4.22, 7.17 legislation …. 1.26, 12.2, 12.27–12.28 coverage …. 12.28 lump sums …. 12.28 schemes …. 12.27 unfair dismissal remedy …. 6.2 when reinstatement inappropriate …. 7.12 Workplace bullying and harassment in …. 4.5, 4.27–4.28, 7.29 change …. 12.25 defined …. 12.11 disadvantage in …. 7.21–7.22 equitable …. 1.8 management/control of …. 12.11–12.12 Ombudsman inspections …. 8.10 risk minimisation in …. 12.4, 12.8–12.9 Workplace relations system, enterprise agreements centrality …. 10.1

Related LexisNexis Titles Catanzariti & Egan, Workplace Bullying, 2015 Catanzariti, Byrnes, Young, Latham, Fagir & Turnbull, Annotated Fair Work Act and Related Legislation, 2017 ed Donaghey, Termination of Employment, 2012 Foster, Workplace Health and Safety Law in Australia, 2nd ed, 2016 Irving, The Contract of Employment, 2012 Harpur, LexisNexis Case Summaries: Employment Law, 2015 Kennedy, Work Health and Safety: What You Need to Know, 2012 Naughton, The Shaping of Labour Law Legislation – Underlying Elements of Australia’s Workplace Relations System, 2017 Pittard & Naughton, Australian Labour and Employment Law, 2015 Sangkuhl, Quick Reference Card: Employment Law, 2011