Laws Flashcards
1
Q
Topic 3;
Employer - Employee Relationship
A
- Employee vs. Independent Contractor
- Employer vs. Principle
- Consequences that flow from a person being an employee rather than being an independent contractor
- Contract of Service vs. Contract for Service
- Common Law Tests for an ‘employee’
- Integration/Organisation Test
- Control Test
- Multi-indicia Test (multi-factorial test)
2
Q
Topic 3;
Integration/Organisation Test
A
- does the worker carry out their activities as an integral part of the business?
- Recognised that the control test should not be used in isolation
- May be used in determining whether the worker providing the services is conducting a business or is part of the operations of the employer/principal.
3
Q
Topic 3;
Control Test
A
- Is control exercised by the party for whom the work is performed?
- Oldest test; the primary test for an employer/employee relationship is that of ‘control’
4
Q
Topic 3;
Multi-Indicia Test
A
- weigh up the factors
- example; the right to have a particular person do the work
- The right to hire/fire, the right to exclusive services of the person engaged, te right to dictate the place/hours of work, long-term arrangements, regular/periodic payment of monies, work of a profession/trade, provision of own equipment, creation of own goodwill, payment of own business expenses from remuneration, no deduction of income tax from remuneration, etc.
5
Q
Topic 3;
Hollis v Vabu Pty Ltd (1996)
A
- Employee
- Contract of Service
- Multi-indicia Test (multi-factorial test)
- weigh up the factors
- Mr. Hollis hit by ‘Crisis Couriers’ rider, suffering a significant knee injury.
- Juge found cyclist to be an employee of Vabu; that he was on Vabu’s business at the time of the accident, wearing Vabu uniform.
- Also noted that Vabu had known prior to accident that couriers were disobeying traffic rules and posed danger to pedestrians.
- $176,313 damages paid
6
Q
Topic 3;
Humberstone v Nothern Timber Mills
A
- Independent Contractor
- Contract for Service
- Control Test:
- is control exercised by the party for whom the work is performed?
- Oldest test; primary test for an employer/employee relationship is that of ‘control’.
- used own truck, paid for maintenance, paid for petrol, took out a carrier’s license annually in his own name, therefore, he was not considered a worker.
- maintenance to truck lead to his death, however, Widow was not eligible for workers comp, as he was not considered a worker.
7
Q
Topic 5;
Workers Compensation
A
- A ‘no-fault’ system
- a liability of employer’s that cannot be ‘contracted out’
- compensation is instalments (eg. prescribed amount)
- Note; lump sum payments
- Covers ‘Workers’
- Objectives of Workers Compensation and Injury Management Act of 1981
- make provisions for the;
- compensation of workers who suffer an injury
- compensation for dependants
- injury management
- Disentitlement
- make provisions for the;
- Following must be met;
- Personal Injury by Accident
- Arising out of or in the course of employment
- Whilst acting under employer’s instruction
8
Q
Topic 5;
Definition of a Worker
A
(A) any person whose service any industrial award or industrial agreement applies; and
(B) any person engaged by another person to work for the purpose of the other person’s trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services…
9
Q
Topic 5;
La Macchia v Spera (1980)
A
- Bricklayer looked like an independent contractor
- However, the bricks were not his and he was employed to lay the bricks.
- This case was the court use the extended definition, so the injured bricklayer was entitled to workers compensation
10
Q
Topic 5;
Davidson and Anor v Mould
A
- Arising out of or in the course of employment
- Nasty lacerations to face when attempting to get a top off a bottle with a chisel, during lunch time.
- Lunch time is in the course of employment, therefore, eligible for workers compensation
11
Q
Topic 5;
Kavanagh v The Commonwealth
A
- Personal injury by accident (also note ‘diseases’)
- Ruptured gullet and therefore died
- As it occurred at work; wife (dependent) received compensation
12
Q
Topic 6;
Occupational Safety & Health Duties Under the Law
Employer Duties
A
- Safety and Environmental Health Law
- Employment Relationship; tests control, organisation & multi-factor
- Duties of Employers
- Duty to take reasonable care, safe plant, equipment, system
- Non-delegable duty
- Relationship with common law
- Not absolute only ‘reasonable practicality’
- has to be proved this was not done by prosecutors, the employer does not have to prove they did.
- ‘calculus of negligence’ – weighting of risk both in terms of its likelihood and consequences against the cost, time & trouble associated with measures required to control the risk (note high-risk environments)
13
Q
Topic 6;
Kondis v State Transport Authority
A
- Independent contractor caused injury to employee
- Employer is responislble for any injuries that occur to employees by independent contractors
- Kundis injured by crane being used by independent contractors and therefore compensation paid by employer
14
Q
Topic 6;
Kirk v Industrial Relations Commission of NSW
A
- Kirk’s were farm owners/directors who employed farm management
- The farm Manager suggested that they buy special equipment; which the Kirk’s did.
- Manager rode all-terrain vehicle down steep hill, whilst wet, which resulted in the vehicle rolling and the death of the farm manager
15
Q
Topic 7;
Occupational Safety & Health Duties Under the Law
Employee Duties (Part 1)
A
- take reasonable care (as the employee) Occupational Safety & Health Act 1984 (WA) s.20
- No single standard of care-job dependant
- Scope of Duties
- Prosecutions rare-usually negligence, bullying, practical jokes etc
- Employee may refuse to work s.26(1) –where he or she has reasonable grounds
- Appropriate test = objective test = reasonable person in the same circumstances of the employee
- Duty to cooperate
- Duty to notify
- Duty to use protective clothing/equipment
