Posted: June 20th, 2022

BU1112 Business Law

Question:

PRX is a Perth-based public relations firm.

Save Time On Research and Writing
Hire a Pro to Write You a 100% Plagiarism-Free Paper.
Get My Paper

They offer a variety of services to businesses that want to improve their public image.

Stella is a full-time salesperson.

At the end 2012, she signed an agreement to be a full-time salesperson from January 2013 through December 2016. It stated that she was not an employee of PRX and would follow all PRX rules.

Stella used to wear a shirt with a PRX logo on it and she received a percentage of any sales.

Save Time On Research and Writing
Hire a Pro to Write You a 100% Plagiarism-Free Paper.
Get My Paper

A monthly base payment was also paid to Stella.

Stella paid tax directly to the tax department on this income.

PRX suggests that workers register a business entity for such purposes.

Stella did not have set hours and drove her own car to see clients.

She was responsible for maintaining her car, and she did not receive any allowance.

PRX did not train her, nor the other salespeople. Instead, they attended a specialised training company and PRX paid for it.

Stella was required by PRX to always have her mobile phone on her, so she could answer calls from clients and PRX at any hour.

Stella was eligible to receive a top-up payment if work occurred on weekends or public holidays, as she always had the right to.

Stella has never been able to discuss her entitlements to holiday or personal leave during her four years of employment with PRX. She also has never received any paid holidays.

Stella suffered a stroke on December 1, 2016. She will be unable to work for many years.

Her high stress levels, obesity and inability to take time off or have weekends off work all contributed to the stroke.

Stella is Stella an employee?

The current common law test is used.

Assuming Stella is an employee, PRX is in contravention of a common-law duty to Stella not being given any holidays or days off work?

Assuming Stella is an employee of PRX, does she have a right to notice at common law or legislative if PRX wants to replace her?

Answer:

Part A

Stella is PRX’s employee?

Below is the main difference between an employee and an independent contractor:

Contract of service was signed by employee, contract for services was signed by contractor.

The employer has control over the employee, but not on the contractor.

It is a traditional test that was established in Zuijs V Wirth Bros (Zuijs/Wirth Brothers Pty Ltd 1995).

The employer has control over the employee, but not the contractor.

Common Law introduced the multiple indicia test in Stevens v Broadribb Sawmilling Co Pty Ltd. (Stevens V Brodribb Sawmilling Co Pty Ltd, 1986).

In Australia, Hollis v Vabu Pty Limited (Hollis V Vabu Pty Ltd 2001), confirmed this test.

These are the factors that make up this test:

FACTORS

CONTRACTOR INDEPENDENT

EMPLOYEE

Training

Employers may not offer training.

If the training is provided by an employer.

Integration

Worker is not integrated into the business.

Worker is integrated into the business, such as wearing uniforms or using vehicle of employer.

Tax arrangements

If worker manages it.

If managed by an employer.

Service duration

Worker is assigned a task

If worker is employed indefinitely.

Remuneration

Salary

Control of hours and place

Worker stated the hours and place of work

The employer stated the hours and place of work

Work delegation

Worker should be able to assign work to others.

Worker who is unable to assign work to others (teacher n.d.).

Support and maintenance of tools and equipment.

If worker supplies, then independent contractor.

If provided by employer.

Stella was employed by PRX. Stella signed a contract with PRX stating that she is not an employee of PRX, but that all rules and regulations of PRX apply to her.

Stella works at her own discretion. Stella’s working hours are not set by the PRX. According to multiple indicia tests, if the employer does not decide the working hours of Stella, such person will be considered an independent contractor.

She drove her own car, but she did not receive any allowance. An independent contractor is someone who uses his own vehicle to perform his job.

She is paid a percentage based on her sales, as well as a fixed monthly amount.

While the employee is paid wages, Stella receives percentage on the sale basis.

She handles her taxes herself. A person who manages her taxes by themselves is called an independent contractor.

PRX did not conduct training for Stella. The employer also does not offer training to independent contractors.

Stella is the Independent Contractor of PRX. This is because all of the indicia tests are applicable to Stella.

This is the traditional control test.

Stella’s activities are not under the control of PRX, which means Stella can work according to PRX’s instructions.

The employer exercises control over the employee, but not on contractor.

This is the traditional test that was established in Zuijs V Wirth Bros (Zuijs/Wirth Brothers Pty Ltd 1995).

Stella works as an independent contractor.

Stella is an independent contractor and not an employee of PRX.

Part B

What rights does Stella have under Australian employment law to be granted a day off work or holiday?

The Australian employment law gives employees the right to take leave for various reasons. These minimum leave entitlements can be found in National Employment Standards (NES).

The company’s employees may take leave for various reasons. Employer has no right to deny the employee their entitlement to leave.

The employer is required to offer these minimum leave entitlements for their employees.

The Act Sections 86 and 87 define the employee’s annual leave entitlement. Employees are entitled to one year of paid service.

4 weeks paid annual leave

If applicable, 5 weeks of annual paid leave (Act Section 86 2009).

Section 114 of Act provides that employees have the right to take time off for public holidays (Act section 114 2009).

This section allows employees to be absent from work for part or the whole day on public holidays.

If the request is reasonable, an employer may request that employees work on public holidays.

If the request is unreasonable in nature, and reasonable refusal is made by an employee, then the employee has the right to decline it.

Stella is an employee of the company in the present case. However, PRX fails her leave requests which violate Stella’s employment law rights.

PRX has not complied with section 86, section 87 and section 114.

PRX is in violation of the Fair work Act, section 86 and section 87 if it fails to give Stella leave. As stated above, Employer has an obligation to provide minimum leave entitlements for their employees.

The Act Sections 86 and 87 define the employee’s annual leave entitlement. Employees are entitled to one year of paid service.

4 weeks paid annual leave

If applicable, 5 weeks of annual paid leave

An employee who isn’t a casual employee can accumulate four weeks of paid annual leaves for every year that they have worked with the employer.

Annual leave is earned based on how many hours an employee works on a continuous basis for their employer.

Annual leave accumulates continuously if an employee is on paid annual leave, or paid personal/carer leave.

Unpaid leave cannot be used to accumulate annual leaves. This is unless the leave is community service or is covered by an award or registered agreement.

PRX also violate section 114. This section states that employees have the right to be absent from work for part or all of a public holiday.

PRX also fails to grant Stella this right.

PRX will violate sections 86 and114 if they do not give Stella leave.

Part C

Is Stella under the obligation of PRX to give notice of termination?

Section 117 of Fair Work Act 2009 states (Act, section117 2009) that an employer must give proper notice to an employee before terminating their employment. This notice must be in writing.

The employee has the right to terminate the employment relationship. This right is described in section 117.

The minimum notice period is based entirely on the length of continuous service of the employee with the employer. This period is shown below:

Service length

Employer – Service rendered by an employee for less than one year

Minimum notice period: One week

Employer requires service for at least one year, but not more than three years.

Minimum notice period 2 weeks

Service rendered by an employee for at least three years, but less than five years with the employer.

Minimum notice period: 3 weeks

Employees who have been providing service for over 5 years.

Notice of cancellation for a minimum period 4 weeks

Stella was employed by PRX from 2013 through 2016. This means that her continuous service period with PRX is three years. Stella can request a termination notice for a minimum of three weeks.

Section 117 requires that the employer gives proper notice to terminate an employee. This notice must be in writing.

The minimum notice period is determined on the basis service. If service is provided by an employee for at least three years but less than five years with the employer, then the employer is required to give notice within three weeks.

PRX is in violation of section 117.

PRX violates section 117 of The Act by failing to serve Stella a 3 week termination notice.

Annual leave.

Hollis v Vabu Pty Ltd. 44 [HCA 2001].

Termination of employment.

Stevens v Brodribb Sawmilling Co Pty Ltd

An Independent Contractor Or Employee.

Zuijs V Wirth Brothers Pty Ltd

Expert paper writers are just a few clicks away

Place an order in 3 easy steps. Takes less than 5 mins.

Calculate the price of your order

You will get a personal manager and a discount.
We'll send you the first draft for approval by at
Total price:
$0.00
Open chat
1
Order through WhatsApp!
professionalsessays.com
Hello!
You Can Now Place your Order through WhatsApp

Order your essay today and save 30% with the discount code 2022DISCOUNT