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\begin{document}
\subsection*{Hierarchy}
\begin{small}
\begin{trivlist}\item[]
\begin{tabular}{|r|l|}\hline
\multicolumn{1}{|c|}{$c$}&\multicolumn{1}{c|}{\it Court\/}\\\hline\hline
1&five justices of the High Court of Australia\\
2&four justices of the High Court of Australia\\
3&three justices of the High Court of Australia\\
4&a single justice of the High Court of Australia\\
5&three judges of the Federal Court of Australia\\
6&the Judicial Committee of the Privy Council\\
7&the English Court of Appeal\\
8&the King's Bench Division of the English High Court\\
&the Queen's Bench Division of the English High Court\\\hline
\end{tabular}
\end{trivlist}
\end{small}
\subsection*{Employee area}
\begin{small}
\begin{tabular}{*{2}{|c}*{17}{@{\hspace{0.4em}}c}|r|c|}\hline
&\multicolumn{18}{|c|}{\it Attributes\/}&&\\
\smash{\raisebox{0.6\ht\strutbox}{\it Case\/}}&$A_{1}$&$A_{2}$&$A_{3}$&$A_{4}$&$A_{5}$&$A_{6}$&$A_{7}$&$A_{8}$&$A_{9}$&$A_{10}$&$A_{11}$&$A_{12}$&$A_{13}$&$A_{14}$&$A_{15}$&$A_{16}$&$A_{17}$&$A_{18}$&\multicolumn{1}{c|}{\smash{\raisebox{0.6\ht\strutbox}{$c$}}}&\smash{\raisebox{0.6\ht\strutbox}{\it Result\/}}\\\hline\hline
$C_{1}$&$\times$&$\bullet$&$\bullet$&$\times$&$\bullet$&$\bullet$&$\bullet$&$\times$&$\times$&$\times$&$\bullet$&$\bullet$&$\times$&$\times$&$\bullet$&$\times$&$\times$&$\times$&1&\\
$C_{2}$&$\bullet$&$\bullet$&$\bullet$&$\times$&$\bullet$&$\times$&$\times$&$\times$&$\bullet$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&2&\\
$C_{3}$&$\bullet$&$\times$&$\bullet$&$\times$&$\bullet$&$\bullet$&$\bullet$&&$\times$&$\times$&$\bullet$&$\times$&$\bullet$&$\times$&$\times$&$\times$&$\times$&$\times$&4&\\
$C_{4}$&$\bullet$&$\times$&$\bullet$&$\bullet$&$\times$&$\bullet$&$\bullet$&$\times$&&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&5&{\sf Employee}\\
$C_{5}$&$\bullet$&$\times$&$\bullet$&$\times$&$\bullet$&$\times$&$\bullet$&$\times$&$\times$&$\times$&$\bullet$&$\bullet$&$\times$&$\times$&$\times$&$\times$&$\times$&$\bullet$&7&\\
$C_{6}$&$\times$&$\bullet$&$\bullet$&$\times$&$\bullet$&$\times$&&$\times$&$\times$&$\times$&$\bullet$&&&&&&&$\times$&7&\\
$C_{7}$&$\bullet$&$\bullet$&$\bullet$&$\bullet$&$\times$&$\bullet$&$\bullet$&$\times$&$\times$&$\bullet$&$\bullet$&$\bullet$&$\times$&$\bullet$&$\times$&$\times$&$\times$&$\times$&8&\\\cline{2-20}
$I_{\mbox{\scriptsize\sf Employee}}$&$\bullet$&$\times$&$\bullet$&$\times$&$\bullet$&$\bullet$&$\bullet$&$\times$&$\times$&$\bullet$&$\bullet$&$\bullet$&$\times$&$\bullet$&$\bullet$&$\bullet$&$\bullet$&&&\\\hline\hline
$C_{8}$&$\times$&$\bullet$&$\times$&$\bullet$&$\times$&$\times$&$\times$&$\times$&$\bullet$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&3&\\
$C_{9}$&$\times$&$\bullet$&$\times$&$\bullet$&$\times$&$\times$&$\bullet$&$\bullet$&$\bullet$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\bullet$&$\times$&3&\\
$C_{10}$&$\times$&$\bullet$&$\bullet$&$\bullet$&$\times$&$\times$&$\times$&$\times$&$\bullet$&$\times$&$\times$&$\times$&$\times$&$\times$&$\bullet$&$\times$&$\times$&$\times$&5&\\
$C_{11}$&$\times$&$\bullet$&$\bullet$&$\bullet$&$\times$&$\times$&$\times$&$\bullet$&$\bullet$&$\bullet$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\bullet$&6&{\sf Contractor}\\
$C_{12}$&$\bullet$&$\bullet$&$\bullet$&$\times$&$\bullet$&$\bullet$&$\times$&$\bullet$&$\bullet$&$\times$&$\bullet$&$\bullet$&$\times$&$\times$&$\times$&$\bullet$&$\times$&$\bullet$&7&\\
$C_{13}$&$\times$&$\bullet$&$\times$&$\times$&$\bullet$&$\times$&&$\times$&$\times$&$\times$&$\bullet$&&&&&&$\bullet$&$\times$&7&\\
$C_{14}$&$\times$&$\bullet$&$\bullet$&$\bullet$&$\times$&$\times$&$\times$&$\times$&$\bullet$&$\bullet$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\times$&$\bullet$&8&\\\cline{2-20}
$I_{\mbox{\scriptsize\sf Contractor}}$&$\times$&$\bullet$&$\times$&$\bullet$&$\times$&&$\times$&$\bullet$&$\bullet$&$\times$&$\times$&$\times$&$\bullet$&$\times$&$\times$&$\times$&&$\bullet$&&\\\hline
\end{tabular}
\end{small}
\subsubsection*{Opening}
\begin{list}{}{\leftmargin=0mm}\item[]
The law distinguishes between a contract of service
(between employer and employee) and a contract for
services (between principal and independent
contractor). This distinction affects the terms that
will be implied in the absence of an express
agreement, the liability of the employer to third
parties, the applicability of industrial awards, the
applicability of statutes which may affect workers'
compensation, occupational health and safety,
long-service leave, fringe benefits tax, etc.\par The
terms ``employer'' and ``worker'' are used here to
mean ``employer'' and ``employee'' (in the case of a
contract of service) or ``principal'' and
``independent contractor'' (in the case of a contract
for services).
\end{list}
\subsubsection*{Results}
\begin{description}
\item[\rm{\sf Employee}:]
the worker is an employee.
\item[\rm{\sf Contractor}:]
the worker is an independent contractor.
\end{description}
\subsubsection*{Attributes}
\begin{description}
\item[\rm$A_{1}$:]
Did the employer direct not only what work was to be
done, but also the manner in which it was to be
done?
\begin{description}
\item[\sc yes:]
the employer directed the manner in which
the work was to be done.
$\Rightarrow$ {\sf Employee}
\item[\sc no:]
the employer did not direct the manner in
which the work was to be done.
$\Rightarrow$ {\sf Contractor}
\item[\sc unknown:]
it is not known whether the employer
directed the manner in which the work was to
be done.
\end{description}
If the employer had a right of control over how the
worker did the work then the employer had the power
to direct not only what work was to be done, but
also the manner in which it was to be done.
\item[\rm$A_{2}$:]
Was the worker allowed to use her/his own discretion
in doing an aspect of the work that was not
specified beforehand?
\begin{description}
\item[\sc yes:]
the worker was allowed to use her/his own
discretion in doing an aspect of the work
that was not specified beforehand.
$\Rightarrow$ {\sf Contractor}
\item[\sc no:]
the worker was not allowed to use her/his
own discretion in doing an aspect of the
work that was not specified beforehand.
$\Rightarrow$ {\sf Employee}
\item[\sc unknown:]
it is not known whether the worker was
allowed to use her/his own discretion in
doing an aspect of the work that was not
specified beforehand.
\end{description}
\item[\rm$A_{3}$:]
Was the worker an integral part of the employer's
business?
\begin{description}
\item[\sc yes:]
the worker was an integral part of the
employer's business.
$\Rightarrow$ {\sf Employee}
\item[\sc no:]
the worker was not an integral part of the
employer's business, but was accessory to
it.
$\Rightarrow$ {\sf Contractor}
\item[\sc unknown:]
it is not known whether the worker was an
integral part of the employer's business or
was merely accessory to it.
\end{description}
If the worker was ``part and parcel'' of the
employer's business then she/he was an integral part
of the business, not merely accessory to it.
\item[\rm$A_{4}$:]
Did the worker own the tools or provide the
transport with which she/he performed the work?
\begin{description}
\item[\sc yes:]
the worker owned the tools or provided the
transport with which she/he performed the
work.
$\Rightarrow$ {\sf Contractor}
\item[\sc no:]
the worker neither owned the tools nor
provided the transport with which she/he
performed the work.
$\Rightarrow$ {\sf Employee}
\item[\sc unknown:]
it is not known whether the worker owned the
tools or provided the transport with which
she/he performed the work.
\end{description}
\item[\rm$A_{5}$:]
Would the employer make a profit/loss if the work
performed by the worker cost less/more than
expected?
\begin{description}
\item[\sc yes:]
the employer would make a profit/loss if the
work performed by the worker cost less/more
than expected.
\item[\sc no:]
the employer would not make a profit/loss if
the work performed by the worker cost
less/more than expected.
\item[\sc unknown:]
it is not known whether the employer would
make a profit/loss if the work performed by
the worker cost less/more than expected.
\end{description}
\item[\rm$A_{6}$:]
Was the work performed on the employer's premises?
\begin{description}
\item[\sc yes:]
the work was performed on the employer's
premises.
\item[\sc no:]
the work was not performed on the employer's
premises.
$\Rightarrow$ {\sf Contractor}
\item[\sc unknown:]
it is not known whether the work was
performed on the employer's premises.
\end{description}
\item[\rm$A_{7}$:]
Did the employer supervise or inspect the work?
\begin{description}
\item[\sc yes:]
the employer supervised or inspected the
work.
$\Rightarrow$ {\sf Employee}
\item[\sc no:]
the employer neither supervised nor
inspected the work.
$\Rightarrow$ {\sf Contractor}
\item[\sc unknown:]
it is not known whether the employer
supervised or inspected the work.
\end{description}
\item[\rm$A_{8}$:]
Was the worker in business on her/his own account?
\begin{description}
\item[\sc yes:]
the worker was in business on her/his own
account.
$\Rightarrow$ {\sf Contractor}
\item[\sc no:]
the worker was not in business on her/his
own account.
$\Rightarrow$ {\sf Employee}
\item[\sc unknown:]
it is not known whether the worker was in
business on her/his own account.
\end{description}
\item[\rm$A_{9}$:]
Was the worker allowed to employ others to assist
with her/his work?
\begin{description}
\item[\sc yes:]
the worker was allowed to employ others to
assist with her/his work.
$\Rightarrow$ {\sf Contractor}
\item[\sc no:]
the worker was not allowed to employ others
to assist with her/his work.
$\Rightarrow$ {\sf Employee}
\item[\sc unknown:]
it is not known whether the worker was
allowed to employ others to assist with
her/his work.
\end{description}
\item[\rm$A_{10}$:]
Was the worker obliged to work only for the
employer?
\begin{description}
\item[\sc yes:]
the worker was obliged to work only for the
employer.
$\Rightarrow$ {\sf Employee}
\item[\sc no:]
the worker was not obliged to work only for
the employer.
$\Rightarrow$ {\sf Contractor}
\item[\sc unknown:]
it is not known whether the worker was
obliged to work only for the employer.
\end{description}
\item[\rm$A_{11}$:]
Was the worker required to work at specified times?
\begin{description}
\item[\sc yes:]
the worker was required to work at specified
times.
$\Rightarrow$ {\sf Employee}
\item[\sc no:]
the worker was not required to work at
specified times.
$\Rightarrow$ {\sf Contractor}
\item[\sc unknown:]
it is not known whether the worker was
required to work at specified times.
\end{description}
\item[\rm$A_{12}$:]
Did the employer pay the worker by time?
\begin{description}
\item[\sc yes:]
the employer paid the worker by time.
$\Rightarrow$ {\sf Employee}
\item[\sc no:]
the employer did not pay the worker by time.
$\Rightarrow$ {\sf Contractor}
\item[\sc unknown:]
it is not known whether the employer paid
the worker by time.
\end{description}
The employer could pay the worker by time (e.g. by
the hour, or by the week) or by results.
\item[\rm$A_{13}$:]
Was the money that the employer paid to the worker
stated to be a ``fee''?
\begin{description}
\item[\sc yes:]
the money that the employer paid to the
worker was stated to be a ``fee''.
$\Rightarrow$ {\sf Contractor}
\item[\sc no:]
the money that the employer paid to the
worker was not stated to be a ``fee''.
$\Rightarrow$ {\sf Employee}
\item[\sc unknown:]
it is not known whether the money that the
employer paid to the worker was stated to be
a ``fee''.
\end{description}
\item[\rm$A_{14}$:]
Was the money that the employer paid to the worker
stated to be ``wages'' or ``salary''?
\begin{description}
\item[\sc yes:]
the money that the employer paid to the
worker was stated to be ``wages'' or
``salary''.
$\Rightarrow$ {\sf Employee}
\item[\sc no:]
the money that the employer paid to the
worker was not stated to be ``wages'' or
``salary''.
$\Rightarrow$ {\sf Contractor}
\item[\sc unknown:]
it is not known whether the money that the
employer paid to the worker was stated to be
``wages'' or ``salary''.
\end{description}
\item[\rm$A_{15}$:]
Did the employer deduct PAYE tax instalments from
the worker's pay?
\begin{description}
\item[\sc yes:]
the employer deducted PAYE tax instalments
from the worker's pay.
$\Rightarrow$ {\sf Employee}
\item[\sc no:]
the employer did not deduct PAYE tax
instalments from the worker's pay.
$\Rightarrow$ {\sf Contractor}
\item[\sc unknown:]
it is not known whether the employer
deducted PAYE tax instalments from the
worker's pay.
\end{description}
\item[\rm$A_{16}$:]
Did the employer pay the worker sick pay or holiday
pay?
\begin{description}
\item[\sc yes:]
the employer paid the worker sick pay or
holiday pay.
$\Rightarrow$ {\sf Employee}
\item[\sc no:]
the employer paid the worker neither sick
pay nor holiday pay.
$\Rightarrow$ {\sf Contractor}
\item[\sc unknown:]
it is not known whether the employer paid
the worker sick pay or holiday pay.
\end{description}
\item[\rm$A_{17}$:]
Did the employer and the worker express an intention
that the relationship would be one of employer and
employee?
\begin{description}
\item[\sc yes:]
the employer and the worker expressed an
intention that the relationship would be one
of employer and employee.
$\Rightarrow$ {\sf Employee}
\item[\sc no:]
the employer and the worker did not express
any intention that the relationship would be
one of employer and employee.
\item[\sc unknown:]
it is not known whether the employer and the
worker expressed an intention that the
relationship would be one of employer and
employee.
\end{description}
For example, if the employer and the worker
characterized their agreement as being a ``contract
of service,'' that would be an expression of an
intention that the relationship would be one of
employer and employee.
\item[\rm$A_{18}$:]
Did the employer and the worker express an intention
that the relationship would be one of principal and
independent contractor?
\begin{description}
\item[\sc yes:]
the employer and the worker expressed an
intention that the relationship would be one
of principal and independent contractor.
$\Rightarrow$ {\sf Contractor}
\item[\sc no:]
the employer and the worker did not express
any intention that the relationship would be
one of principal and independent contractor.
\item[\sc unknown:]
it is not known whether the employer and the
worker expressed an intention that the
relationship would be one of principal and
independent contractor.
\end{description}
For example, if the employer and the worker
characterized their agreement as being a ``contract
for services,'' that would be an expression of an
intention that the relationship would be one of
principal and independent contractor.
\end{description}
\subsubsection*{Cases in which the worker is an employee}
\begin{description}
\item[\rm$C_{1}$:]\frenchspacing
{\it Zuijs v. Wirth Brothers Pty Ltd\/} \nonfrenchspacing
(1955) 93 CLR 561
(``\frenchspacing
{\it Zuijs v. Wirth\/}\nonfrenchspacing'')
\begin{description}
\item[\rm$A_{1}$:]
the employer did not direct the manner in
which the work was to be done.
\item[\rm$A_{2}$:]
the worker was allowed to use her/his own
discretion in doing an aspect of the work
that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was an integral part of the
employer's business.
\item[\rm$A_{4}$:]
the worker neither owned the tools nor
provided the transport with which she/he
performed the work.
\item[\rm$A_{5}$:]
the employer would make a profit/loss if the
work performed by the worker cost less/more
than expected.
\item[\rm$A_{6}$:]
the work was performed on the employer's
premises.
\item[\rm$A_{7}$:]
the employer supervised or inspected the
work.
\item[\rm$A_{8}$:]
the worker was not in business on her/his
own account.
\item[\rm$A_{9}$:]
the worker was not allowed to employ others
to assist with her/his work.
\item[\rm$A_{10}$:]
the worker was not obliged to work only for
the employer.
\item[\rm$A_{11}$:]
the worker was required to work at specified
times.
\item[\rm$A_{12}$:]
the employer paid the worker by time.
\item[\rm$A_{13}$:]
the money that the employer paid to the
worker was not stated to be a ``fee''.
\item[\rm$A_{14}$:]
the money that the employer paid to the
worker was not stated to be ``wages'' or
``salary''.
\item[\rm$A_{15}$:]
the employer deducted PAYE tax instalments
from the worker's pay.
\item[\rm$A_{16}$:]
the employer paid the worker neither sick
pay nor holiday pay.
\item[\rm$A_{17}$:]
the employer and the worker did not express
any intention that the relationship would be
one of employer and employee.
\item[\rm$A_{18}$:]
the employer and the worker did not express
any intention that the relationship would be
one of principal and independent contractor.
\end{description}
In \frenchspacing
{\it Zuijs v. Wirth Brothers Pty Ltd}\nonfrenchspacing,%
\footnote{(1955) 93 CLR 561.}
a 1955 decision of
five justices of the High Court of Australia,
Zuijs was an acrobat who fell during a trapeze act
at one of Wirth Brothers' circuses. He sought
compensation under the Worker's Compensation Act
1926 (NSW), claiming to be an employee of Wirth
Brothers. Wirth Brothers claimed that, because of
the high degree of skill and personal judgment
that he had to exercise in his work, Zuijs was an
independent contractor and therefore not entitled
to compensation.\par The High Court unanimously
agreed with Zuijs. ``Even if [one of the circus
managers] could not interfere in the actual
technique of the acrobats and in the character of
the act, no reason appears why [Zuijs] should not
be subject to his directions in all other respects
\dots\ There are countless examples of highly
specialized functions in modern life that must as
a matter of practical necessity and sometimes even
as a matter of law be performed on the
responsibility of persons who possess particular
knowledge and skill and who are accordingly
qualified. But those engaged to perform the
functions may nevertheless work under a contract
of service.''\footnote{ibid. at 571--2 per Dixon
CJ, Williams, Webb and Taylor JJ.}
\item[\rm$C_{2}$:]\frenchspacing
{\it Cam and Sons Pty Ltd v. Sargent\/} \nonfrenchspacing
(1940) 14 ALJ 162
(``\frenchspacing
{\it Cam v. Sargent\/}\nonfrenchspacing'')
\begin{description}
\item[\rm$A_{1}$:]
the employer directed the manner in which
the work was to be done.
\item[\rm$A_{2}$:]
the worker was allowed to use her/his own
discretion in doing an aspect of the work
that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was an integral part of the
employer's business.
\item[\rm$A_{4}$:]
the worker neither owned the tools nor
provided the transport with which she/he
performed the work.
\item[\rm$A_{5}$:]
the employer would make a profit/loss if the
work performed by the worker cost less/more
than expected.
\item[\rm$A_{6}$:]
the work was not performed on the employer's
premises.
\item[\rm$A_{7}$:]
the employer neither supervised nor
inspected the work.
\item[\rm$A_{8}$:]
the worker was not in business on her/his
own account.
\item[\rm$A_{9}$:]
the worker was allowed to employ others to
assist with her/his work.
\item[\rm$A_{10}$:]
the worker was not obliged to work only for
the employer.
\item[\rm$A_{11}$:]
the worker was not required to work at
specified times.
\item[\rm$A_{12}$:]
the employer did not pay the worker by time.
\item[\rm$A_{13}$:]
the money that the employer paid to the
worker was not stated to be a ``fee''.
\item[\rm$A_{14}$:]
the money that the employer paid to the
worker was not stated to be ``wages'' or
``salary''.
\item[\rm$A_{15}$:]
the employer did not deduct PAYE tax
instalments from the worker's pay.
\item[\rm$A_{16}$:]
the employer paid the worker neither sick
pay nor holiday pay.
\item[\rm$A_{17}$:]
the employer and the worker did not express
any intention that the relationship would be
one of employer and employee.
\item[\rm$A_{18}$:]
the employer and the worker did not express
any intention that the relationship would be
one of principal and independent contractor.
\end{description}
In \frenchspacing
{\it Cam and Sons Pty Ltd v. Sargent}\nonfrenchspacing,%
\footnote{(1940) 14 ALJ 162.}
a 1940 decision of
four justices of the High Court of Australia,
Sargent was the master of a ship. He entered into an
agreement with Cam and Sons that claimed that the
ship was hired by Cam and Sons to Sargent and his
fellow contractors (called ``the partnership'').
However, it was doubtful whether that agreement
actually deprived Cam and Sons of any control over
the ship. The partnership was to use the ship only
to carry coal from Swansea to Sydney. Cam and Sons
were sole agents of the partnership for securing
cargoes for the ship, and for collecting money due
to the partnership. The partnership paid nothing
for the ``hire'' of the ship, but received a
specified sum for each return trip of a certain
tonnage plus (in certain circumstances) 5\% of the
earnings, the balance of which was retained by Cam
and Sons. Cam and Sons had to approve people
employed by the partnership.\par Sargent claimed
that he (and others in the partnership) were
employed by Cam and Sons, and therefore came
within the terms of an industrial award. Cam and
Sons claimed that members of the partnership were
independent contractors.\par The High Court
unanimously agreed with Sargent. Rich J came to
the conclusion that the agreement was an attempt
to evade the terms of the industrial
award.\footnote{ibid. at 163.}
\item[\rm$C_{3}$:]\frenchspacing
{\it Federal Commissioner of Taxation v. J. Walter Thompson (Australia) Pty Ltd\/} \nonfrenchspacing
(1944) 69 CLR 227
(``\frenchspacing
{\it FCT v. Thompson\/}\nonfrenchspacing'')
\begin{description}
\item[\rm$A_{1}$:]
the employer directed the manner in which
the work was to be done.
\item[\rm$A_{2}$:]
the worker was not allowed to use her/his
own discretion in doing an aspect of the
work that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was an integral part of the
employer's business.
\item[\rm$A_{4}$:]
the worker neither owned the tools nor
provided the transport with which she/he
performed the work.
\item[\rm$A_{5}$:]
the employer would make a profit/loss if the
work performed by the worker cost less/more
than expected.
\item[\rm$A_{6}$:]
the work was performed on the employer's
premises.
\item[\rm$A_{7}$:]
the employer supervised or inspected the
work.
\item[\rm$A_{8}$:]
it is not known whether the worker was in
business on her/his own account.
\item[\rm$A_{9}$:]
the worker was not allowed to employ others
to assist with her/his work.
\item[\rm$A_{10}$:]
the worker was not obliged to work only for
the employer.
\item[\rm$A_{11}$:]
the worker was required to work at specified
times.
\item[\rm$A_{12}$:]
the employer did not pay the worker by time.
\item[\rm$A_{13}$:]
the money that the employer paid to the
worker was stated to be a ``fee''.
\item[\rm$A_{14}$:]
the money that the employer paid to the
worker was not stated to be ``wages'' or
``salary''.
\item[\rm$A_{15}$:]
the employer did not deduct PAYE tax
instalments from the worker's pay.
\item[\rm$A_{16}$:]
the employer paid the worker neither sick
pay nor holiday pay.
\item[\rm$A_{17}$:]
the employer and the worker did not express
any intention that the relationship would be
one of employer and employee.
\item[\rm$A_{18}$:]
the employer and the worker did not express
any intention that the relationship would be
one of principal and independent contractor.
\end{description}
In \frenchspacing
{\it Federal Commissioner of Taxation v. J. Walter Thompson (Australia) Pty Ltd}\nonfrenchspacing,%
\footnote{(1944) 69 CLR 227.}
a 1944 decision of
a single justice of the High Court of Australia,
the FCT claimed that payments made to radio artists
by Thompson were ``wages'' within the meaning of
the {\it Pay-roll Tax Assessment Act 1941\/} (Cth)
and therefore taxable. The artists were selected
by a producer and paid to appear in radio plays.
They were paid a ``fee'' for each performance, but
were paid nothing for attending (compulsory)
rehearsals. Thompson claimed that the artists were
presumed to know their work and ``to render
services in the same manner as a professional man,
such as a surgeon or an architect, not being
subject \dots\ to detailed control as to the
manner in which those services are to be
performed.''\footnote{ibid. at 231.} Hence,
Thompson claimed, they were independent
contractors.\par Latham CJ held that the radio
actors were employed ``to co-operate with others
in a team under the control of the producer to
bring about a result, the details of which must in
great measure be determined by the
producer.''\footnote{ibid. at 232.} Hence the
artists were employed by Thompson; the fee they
were paid was subject to payroll tax.
\item[\rm$C_{4}$:]\frenchspacing
{\it Australian Timber Workers Union v. Monaro Sawmills Pty Ltd\/} \nonfrenchspacing
(1980) 29 ALR 322
(``\frenchspacing
{\it ATWU v. Monaro\/}\nonfrenchspacing'')
\begin{description}
\item[\rm$A_{1}$:]
the employer directed the manner in which
the work was to be done.
\item[\rm$A_{2}$:]
the worker was not allowed to use her/his
own discretion in doing an aspect of the
work that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was an integral part of the
employer's business.
\item[\rm$A_{4}$:]
the worker owned the tools or provided the
transport with which she/he performed the
work.
\item[\rm$A_{5}$:]
the employer would not make a profit/loss if
the work performed by the worker cost
less/more than expected.
\item[\rm$A_{6}$:]
the work was performed on the employer's
premises.
\item[\rm$A_{7}$:]
the employer supervised or inspected the
work.
\item[\rm$A_{8}$:]
the worker was not in business on her/his
own account.
\item[\rm$A_{9}$:]
it is not known whether the worker was
allowed to employ others to assist with
her/his work.
\item[\rm$A_{10}$:]
the worker was not obliged to work only for
the employer.
\item[\rm$A_{11}$:]
the worker was not required to work at
specified times.
\item[\rm$A_{12}$:]
the employer did not pay the worker by time.
\item[\rm$A_{13}$:]
the money that the employer paid to the
worker was not stated to be a ``fee''.
\item[\rm$A_{14}$:]
the money that the employer paid to the
worker was not stated to be ``wages'' or
``salary''.
\item[\rm$A_{15}$:]
the employer did not deduct PAYE tax
instalments from the worker's pay.
\item[\rm$A_{16}$:]
the employer paid the worker neither sick
pay nor holiday pay.
\item[\rm$A_{17}$:]
the employer and the worker did not express
any intention that the relationship would be
one of employer and employee.
\item[\rm$A_{18}$:]
the employer and the worker did not express
any intention that the relationship would be
one of principal and independent contractor.
\end{description}
In \frenchspacing
{\it Australian Timber Workers Union v. Monaro Sawmills Pty Ltd}\nonfrenchspacing,%
\footnote{(1980) 29 ALR 322.}
a 1980 decision of
three judges of the Federal Court of Australia,
Wales was a tree feller who cut timber exclusively
for Monaro Sawmills. He performed his work in an
area allotted to him by Monaro Sawmills. He, and
other fellers, were paid by the amount of millable
wood they cut. Wales provided his own tools and
transport, but was (with the other fellers)
covered by Monaro Sawmill's workers' compensation
policy.\par The union sought an order that a
penalty be imposed on Monaro Sawmills for
breaching the Timber Industries Consolidated Award
1974 by failing to pay Wales money in lieu of
annual leave. Monaro Sawmills claimed that Wales
was an independent contractor, and so was not
subject to the award.\par Sweeney and Evatt JJ
examined the circumstances of Wales's employment
and held that those circumstances clearly pointed
to the existence of a relationship of employer and
employee. They could not see ``any sense in which
it could be said that Wales was conducting some
sort of business of his own.''\footnote{ibid. at
329.}
\item[\rm$C_{5}$:]\frenchspacing
{\it Ferguson v. John Dawson and Partners (Contractors) Ltd\/} \nonfrenchspacing
[1976] 1 WLR 1213
(``\frenchspacing
{\it Ferguson v. Dawson\/}\nonfrenchspacing'')
\begin{description}
\item[\rm$A_{1}$:]
the employer directed the manner in which
the work was to be done.
\item[\rm$A_{2}$:]
the worker was not allowed to use her/his
own discretion in doing an aspect of the
work that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was an integral part of the
employer's business.
\item[\rm$A_{4}$:]
the worker neither owned the tools nor
provided the transport with which she/he
performed the work.
\item[\rm$A_{5}$:]
the employer would make a profit/loss if the
work performed by the worker cost less/more
than expected.
\item[\rm$A_{6}$:]
the work was not performed on the employer's
premises.
\item[\rm$A_{7}$:]
the employer supervised or inspected the
work.
\item[\rm$A_{8}$:]
the worker was not in business on her/his
own account.
\item[\rm$A_{9}$:]
the worker was not allowed to employ others
to assist with her/his work.
\item[\rm$A_{10}$:]
the worker was not obliged to work only for
the employer.
\item[\rm$A_{11}$:]
the worker was required to work at specified
times.
\item[\rm$A_{12}$:]
the employer paid the worker by time.
\item[\rm$A_{13}$:]
the money that the employer paid to the
worker was not stated to be a ``fee''.
\item[\rm$A_{14}$:]
the money that the employer paid to the
worker was not stated to be ``wages'' or
``salary''.
\item[\rm$A_{15}$:]
the employer did not deduct PAYE tax
instalments from the worker's pay.
\item[\rm$A_{16}$:]
the employer paid the worker neither sick
pay nor holiday pay.
\item[\rm$A_{17}$:]
the employer and the worker did not express
any intention that the relationship would be
one of employer and employee.
\item[\rm$A_{18}$:]
the employer and the worker expressed an
intention that the relationship would be one
of principal and independent contractor.
\end{description}
In \frenchspacing
{\it Ferguson v. John Dawson and Partners (Contractors) Ltd}\nonfrenchspacing,%
\footnote{[1976] 1 WLR 1213.}
a 1976 decision of
the English Court of Appeal,
Ferguson fell off a roof while removing some
scaffolding boards. He claimed damages against
Dawson (the building contractors) for breach of
statutory duty relying on the Construction
(Working Places) Regulations 1966 (UK). This duty
would only be owed if Ferguson was an employee of
Dawson.\par Megaw and Browne LJJ held that,
despite the fact that both parties labelled
Ferguson a ``self-employed labour only
subcontractor'', the reality of the relationship
between them was that of employer and
employee.\footnote{ibid. at 1219 per Megaw LJ, at
1228--9 per Browne LJ.}
\item[\rm$C_{6}$:]\frenchspacing
{\it Stevenson Jordan and Harrison Ltd v. Macdonald and Evans (2)\/} \nonfrenchspacing
[1952] 1 TLR 101
(``\frenchspacing
{\it Stevenson v. Macdonald (2)\/}\nonfrenchspacing'')
\begin{description}
\item[\rm$A_{1}$:]
the employer did not direct the manner in
which the work was to be done.
\item[\rm$A_{2}$:]
the worker was allowed to use her/his own
discretion in doing an aspect of the work
that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was an integral part of the
employer's business.
\item[\rm$A_{4}$:]
the worker neither owned the tools nor
provided the transport with which she/he
performed the work.
\item[\rm$A_{5}$:]
the employer would make a profit/loss if the
work performed by the worker cost less/more
than expected.
\item[\rm$A_{6}$:]
the work was not performed on the employer's
premises.
\item[\rm$A_{7}$:]
it is not known whether the employer
supervised or inspected the work.
\item[\rm$A_{8}$:]
the worker was not in business on her/his
own account.
\item[\rm$A_{9}$:]
the worker was not allowed to employ others
to assist with her/his work.
\item[\rm$A_{10}$:]
the worker was not obliged to work only for
the employer.
\item[\rm$A_{11}$:]
the worker was required to work at specified
times.
\item[\rm$A_{12}$:]
it is not known whether the employer paid
the worker by time.
\item[\rm$A_{13}$:]
it is not known whether the money that the
employer paid to the worker was stated to be
a ``fee''.
\item[\rm$A_{14}$:]
it is not known whether the money that the
employer paid to the worker was stated to be
``wages'' or ``salary''.
\item[\rm$A_{15}$:]
it is not known whether the employer
deducted PAYE tax instalments from the
worker's pay.
\item[\rm$A_{16}$:]
it is not known whether the employer paid
the worker sick pay or holiday pay.
\item[\rm$A_{17}$:]
it is not known whether the employer and the
worker expressed an intention that the
relationship would be one of employer and
employee.
\item[\rm$A_{18}$:]
the employer and the worker did not express
any intention that the relationship would be
one of principal and independent contractor.
\end{description}
In \frenchspacing
{\it Stevenson Jordan and Harrison Ltd v. Macdonald and Evans (2)}\nonfrenchspacing,%
\footnote{[1952] 1 TLR 101.}
a 1951 decision of
the English Court of Appeal,
Evans-Hemming was an accountant who had been
employed (first as a servant, then as an executive
officer) by Macdonald and Evans. Shortly after he
left them, he wrote a textbook on business
management and submitted the manuscript to
Stevenson Jordan and Harrison (a firm of
publishers). He died before the book was
published. Macdonald and Evans claimed that the
book was written while Evans-Hemming was their
employee, and so they owned the copyright in the
work under s. 5(1)(b) of the Copyright Act 1911
(UK).\par The book was divided into five sections.
The second section was written in its final form
while Evans-Hemming was employed by Macdonald and
Evans. The Court of Appeal held that he wrote the
second section as an employee, and hence the
copyright in the second section was in Macdonald
and Evans.
\item[\rm$C_{7}$:]\frenchspacing
{\it Performing Right Society Ltd v. Mitchell and Booker (Palais de Danse) Ltd\/} \nonfrenchspacing
[1924] 1 KB 762
(``\frenchspacing
{\it PRS v. Palais de Danse\/}\nonfrenchspacing'')
\begin{description}
\item[\rm$A_{1}$:]
the employer directed the manner in which
the work was to be done.
\item[\rm$A_{2}$:]
the worker was allowed to use her/his own
discretion in doing an aspect of the work
that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was an integral part of the
employer's business.
\item[\rm$A_{4}$:]
the worker owned the tools or provided the
transport with which she/he performed the
work.
\item[\rm$A_{5}$:]
the employer would not make a profit/loss if
the work performed by the worker cost
less/more than expected.
\item[\rm$A_{6}$:]
the work was performed on the employer's
premises.
\item[\rm$A_{7}$:]
the employer supervised or inspected the
work.
\item[\rm$A_{8}$:]
the worker was not in business on her/his
own account.
\item[\rm$A_{9}$:]
the worker was not allowed to employ others
to assist with her/his work.
\item[\rm$A_{10}$:]
the worker was obliged to work only for the
employer.
\item[\rm$A_{11}$:]
the worker was required to work at specified
times.
\item[\rm$A_{12}$:]
the employer paid the worker by time.
\item[\rm$A_{13}$:]
the money that the employer paid to the
worker was not stated to be a ``fee''.
\item[\rm$A_{14}$:]
the money that the employer paid to the
worker was stated to be ``wages'' or
``salary''.
\item[\rm$A_{15}$:]
the employer did not deduct PAYE tax
instalments from the worker's pay.
\item[\rm$A_{16}$:]
the employer paid the worker neither sick
pay nor holiday pay.
\item[\rm$A_{17}$:]
the employer and the worker did not express
any intention that the relationship would be
one of employer and employee.
\item[\rm$A_{18}$:]
the employer and the worker did not express
any intention that the relationship would be
one of principal and independent contractor.
\end{description}
In \frenchspacing
{\it Performing Right Society Ltd v. Mitchell and Booker (Palais de Danse) Ltd}\nonfrenchspacing,%
\footnote{[1924] 1 KB 762.}
a 1924 decision of
the King's Bench Division of the English High Court,
the defendant was the occupier of a dance hall. It
engaged a band to provide music in the hall. The
agreement provided that the band should not
infringe copyright, and that the band would be
liable for damages and costs caused by any such
infringement. There was also a notice displayed in
the hall stating that ``[o]nly such music as may
be played without fee or licence is allowed to be
played in this Hall.''\footnote{ibid. at 764.}\par
The band performed several pieces of music, the
copyright in which was held by the Performing
Right Society, without its permission. The
defendant did not know, and had no reasonable
grounds for suspecting, that the infringement was
to take place.\par The PRS abandoned its earlier
claim that the defendant had ``permitted'' the
infringement under s. 2(3) of the Copyright Act
1911 (UK). However, it claimed that the band
members were the defendant's employees, and so the
defendant was vicariously liable for the
infringement.\par McCardie J examined the
agreement and found that it gave to the defendant
``the right of continuous, dominant, and detailed
control on every point, including the nature of
the music to be played''.\footnote{ibid. at 771.}
Hence the band members were employees of the
defendant, which was liable for the infringement.
\item[$I_{\mbox{\scriptsize\sf Employee}}$]
(the ideal case in which
the worker is an employee):
\begin{description}
\item[\rm$A_{1}$:]
the employer directed the manner in which
the work was to be done.
\item[\rm$A_{2}$:]
the worker was not allowed to use her/his
own discretion in doing an aspect of the
work that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was an integral part of the
employer's business.
\item[\rm$A_{4}$:]
the worker neither owned the tools nor
provided the transport with which she/he
performed the work.
\item[\rm$A_{5}$:]
the employer would make a profit/loss if the
work performed by the worker cost less/more
than expected.
\item[\rm$A_{6}$:]
the work was performed on the employer's
premises.
\item[\rm$A_{7}$:]
the employer supervised or inspected the
work.
\item[\rm$A_{8}$:]
the worker was not in business on her/his
own account.
\item[\rm$A_{9}$:]
the worker was not allowed to employ others
to assist with her/his work.
\item[\rm$A_{10}$:]
the worker was obliged to work only for the
employer.
\item[\rm$A_{11}$:]
the worker was required to work at specified
times.
\item[\rm$A_{12}$:]
the employer paid the worker by time.
\item[\rm$A_{13}$:]
the money that the employer paid to the
worker was not stated to be a ``fee''.
\item[\rm$A_{14}$:]
the money that the employer paid to the
worker was stated to be ``wages'' or
``salary''.
\item[\rm$A_{15}$:]
the employer deducted PAYE tax instalments
from the worker's pay.
\item[\rm$A_{16}$:]
the employer paid the worker sick pay or
holiday pay.
\item[\rm$A_{17}$:]
the employer and the worker expressed an
intention that the relationship would be one
of employer and employee.
\item[\rm$A_{18}$:]
it is not known whether the employer and the
worker expressed an intention that the
relationship would be one of principal and
independent contractor.
\end{description}
\end{description}
\subsubsection*{Cases in which the worker is an independent contractor}
\begin{description}
\item[\rm$C_{8}$:]\frenchspacing
{\it Humberstone v. Northern Timber Mills\/} \nonfrenchspacing
(1949) 79 CLR 389
(``\frenchspacing
{\it Humberstone v. NTM\/}\nonfrenchspacing'')
\begin{description}
\item[\rm$A_{1}$:]
the employer did not direct the manner in
which the work was to be done.
\item[\rm$A_{2}$:]
the worker was allowed to use her/his own
discretion in doing an aspect of the work
that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was not an integral part of the
employer's business, but was accessory to
it.
\item[\rm$A_{4}$:]
the worker owned the tools or provided the
transport with which she/he performed the
work.
\item[\rm$A_{5}$:]
the employer would not make a profit/loss if
the work performed by the worker cost
less/more than expected.
\item[\rm$A_{6}$:]
the work was not performed on the employer's
premises.
\item[\rm$A_{7}$:]
the employer neither supervised nor
inspected the work.
\item[\rm$A_{8}$:]
the worker was not in business on her/his
own account.
\item[\rm$A_{9}$:]
the worker was allowed to employ others to
assist with her/his work.
\item[\rm$A_{10}$:]
the worker was not obliged to work only for
the employer.
\item[\rm$A_{11}$:]
the worker was not required to work at
specified times.
\item[\rm$A_{12}$:]
the employer did not pay the worker by time.
\item[\rm$A_{13}$:]
the money that the employer paid to the
worker was not stated to be a ``fee''.
\item[\rm$A_{14}$:]
the money that the employer paid to the
worker was not stated to be ``wages'' or
``salary''.
\item[\rm$A_{15}$:]
the employer did not deduct PAYE tax
instalments from the worker's pay.
\item[\rm$A_{16}$:]
the employer paid the worker neither sick
pay nor holiday pay.
\item[\rm$A_{17}$:]
the employer and the worker did not express
any intention that the relationship would be
one of employer and employee.
\item[\rm$A_{18}$:]
the employer and the worker did not express
any intention that the relationship would be
one of principal and independent contractor.
\end{description}
In \frenchspacing
{\it Humberstone v. Northern Timber Mills}\nonfrenchspacing,%
\footnote{(1949) 79 CLR 389.}
a 1949 decision of
three justices of the High Court of Australia,
Humberstone carried goods for NTM. He had originally
held himself out as a carrier, prepared to carry
for anyone, but for over twenty years he had
carried goods solely for NTM (although he would,
infrequently, carry back-loads for NTM's
customers). Humberstone owned the truck, and paid
for petrol and repairs. He was paid weekly on a
weight-mileage basis. He was a licenced carrier,
and had his name printed on the side of his truck
with the description ``carrier.''\par On the way
back from a job, he had a puncture. He went home
to change the wheel, but exerted himself so
strenuously in trying to remove the tyre from the
wheel that he became ill and later lapsed into a
coma, from which he did not recover. Section 3 of
the {\it Worker's Compensation Act\/} 1928 (Vic)
had been amended about a year before Humberstone's
death so as to include independent contractors in
its definition of a ``worker'' covered by the Act.
However, the High Court held that the amendment
applied only to contracts entered into after it
came into operation. Further, the Court decided
that Humberstone was not an employee of NTM.
Hence, he was not a ``worker'' under the Act, and
his widow was not entitled to compensation under
the Act.
\item[\rm$C_{9}$:]\frenchspacing
{\it Queensland Stations Pty Ltd v. Federal Commissioner of Taxation\/} \nonfrenchspacing
(1945) 70 CLR 539
(``\frenchspacing
{\it Queensland Stations v. FCT\/}\nonfrenchspacing'')
\begin{description}
\item[\rm$A_{1}$:]
the employer did not direct the manner in
which the work was to be done.
\item[\rm$A_{2}$:]
the worker was allowed to use her/his own
discretion in doing an aspect of the work
that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was not an integral part of the
employer's business, but was accessory to
it.
\item[\rm$A_{4}$:]
the worker owned the tools or provided the
transport with which she/he performed the
work.
\item[\rm$A_{5}$:]
the employer would not make a profit/loss if
the work performed by the worker cost
less/more than expected.
\item[\rm$A_{6}$:]
the work was not performed on the employer's
premises.
\item[\rm$A_{7}$:]
the employer supervised or inspected the
work.
\item[\rm$A_{8}$:]
the worker was in business on her/his own
account.
\item[\rm$A_{9}$:]
the worker was allowed to employ others to
assist with her/his work.
\item[\rm$A_{10}$:]
the worker was not obliged to work only for
the employer.
\item[\rm$A_{11}$:]
the worker was not required to work at
specified times.
\item[\rm$A_{12}$:]
the employer did not pay the worker by time.
\item[\rm$A_{13}$:]
the money that the employer paid to the
worker was not stated to be a ``fee''.
\item[\rm$A_{14}$:]
the money that the employer paid to the
worker was not stated to be ``wages'' or
``salary''.
\item[\rm$A_{15}$:]
the employer did not deduct PAYE tax
instalments from the worker's pay.
\item[\rm$A_{16}$:]
the employer paid the worker neither sick
pay nor holiday pay.
\item[\rm$A_{17}$:]
the employer and the worker expressed an
intention that the relationship would be one
of employer and employee.
\item[\rm$A_{18}$:]
the employer and the worker did not express
any intention that the relationship would be
one of principal and independent contractor.
\end{description}
In \frenchspacing
{\it Queensland Stations Pty Ltd v. Federal Commissioner of Taxation}\nonfrenchspacing,%
\footnote{(1945) 70 CLR 539.}
a 1945 decision of
three justices of the High Court of Australia,
agreements were entered into between Queensland
Stations and some drovers. The agreements stated
that the drovers would ``serve'' Queensland
Stations and take charge of a specified number of
cattle, and deliver them to a specified place. The
drovers were paid a specified rate per head of
cattle successfully delivered. Each drover was
responsible for hiring help, and paying for feed
for the cattle. The drovers were to ``obey and
carry out all lawful instructions and to use the
whole of [their] time, energy and ability in the
careful droving of the stock.''\footnote{ibid. at
540.} The FCT claimed that payments made to
drovers were ``wages'' within the meaning of the
{\it Pay-roll Tax Assessment Act 1941\/} (Cth),
and that Queensland Stations was liable to payroll
tax.\par The High Court held that the drovers were
independent contractors, so the payments were not
``wages.'' Rich J pointed out that drovers were
traditionally free from the control of owners of
cattle. ``The obligation imposed on the drover to
obey and carry out all lawful instructions is not
a reservation of detailed control and possession
having regard to the terms of the agreement as a
whole.''\footnote{ibid. at 549.}
\item[\rm$C_{10}$:]\frenchspacing
{\it Price v. Grant Industries Pty Ltd\/} \nonfrenchspacing
(1978) 21 ALR 388
(``\frenchspacing
{\it Price v. Grant\/}\nonfrenchspacing'')
\begin{description}
\item[\rm$A_{1}$:]
the employer did not direct the manner in
which the work was to be done.
\item[\rm$A_{2}$:]
the worker was allowed to use her/his own
discretion in doing an aspect of the work
that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was an integral part of the
employer's business.
\item[\rm$A_{4}$:]
the worker owned the tools or provided the
transport with which she/he performed the
work.
\item[\rm$A_{5}$:]
the employer would not make a profit/loss if
the work performed by the worker cost
less/more than expected.
\item[\rm$A_{6}$:]
the work was not performed on the employer's
premises.
\item[\rm$A_{7}$:]
the employer neither supervised nor
inspected the work.
\item[\rm$A_{8}$:]
the worker was not in business on her/his
own account.
\item[\rm$A_{9}$:]
the worker was allowed to employ others to
assist with her/his work.
\item[\rm$A_{10}$:]
the worker was not obliged to work only for
the employer.
\item[\rm$A_{11}$:]
the worker was not required to work at
specified times.
\item[\rm$A_{12}$:]
the employer did not pay the worker by time.
\item[\rm$A_{13}$:]
the money that the employer paid to the
worker was not stated to be a ``fee''.
\item[\rm$A_{14}$:]
the money that the employer paid to the
worker was not stated to be ``wages'' or
``salary''.
\item[\rm$A_{15}$:]
the employer deducted PAYE tax instalments
from the worker's pay.
\item[\rm$A_{16}$:]
the employer paid the worker neither sick
pay nor holiday pay.
\item[\rm$A_{17}$:]
the employer and the worker did not express
any intention that the relationship would be
one of employer and employee.
\item[\rm$A_{18}$:]
the employer and the worker did not express
any intention that the relationship would be
one of principal and independent contractor.
\end{description}
In \frenchspacing
{\it Price v. Grant Industries Pty Ltd}\nonfrenchspacing,%
\footnote{(1978) 21 ALR 388.}
a 1978 decision of
three judges of the Federal Court of Australia,
Grant Industries manufactured and sold wardrobes,
which Price (and others) delivered and installed.
Price and each of the other ``contractors'' (as
Grant Industries called them) had to provide and
maintain a suitable truck to deliver the
wardrobes, and provide the tools required to
install them. Price sought an order that a penalty
be imposed on Grant Industries for breaching the
Furnishing Trades (Consolidated) Award 1975 by not
paying him the appropriate rate of wages, and not
giving him annual leave. The award only applied to
``employees'' of specified employers.\par The
Federal Court examined the facts, and the
provisions of the agreement, and held that Price
was an independent contractor and, therefore, not
subject to the award.
\item[\rm$C_{11}$:]\frenchspacing
{\it Australian Mutual Provident Society v. Chaplin\/} \nonfrenchspacing
(1978) 18 ALR 385
(``\frenchspacing
{\it AMP v. Chaplin\/}\nonfrenchspacing'')
\begin{description}
\item[\rm$A_{1}$:]
the employer did not direct the manner in
which the work was to be done.
\item[\rm$A_{2}$:]
the worker was allowed to use her/his own
discretion in doing an aspect of the work
that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was an integral part of the
employer's business.
\item[\rm$A_{4}$:]
the worker owned the tools or provided the
transport with which she/he performed the
work.
\item[\rm$A_{5}$:]
the employer would not make a profit/loss if
the work performed by the worker cost
less/more than expected.
\item[\rm$A_{6}$:]
the work was not performed on the employer's
premises.
\item[\rm$A_{7}$:]
the employer neither supervised nor
inspected the work.
\item[\rm$A_{8}$:]
the worker was in business on her/his own
account.
\item[\rm$A_{9}$:]
the worker was allowed to employ others to
assist with her/his work.
\item[\rm$A_{10}$:]
the worker was obliged to work only for the
employer.
\item[\rm$A_{11}$:]
the worker was not required to work at
specified times.
\item[\rm$A_{12}$:]
the employer did not pay the worker by time.
\item[\rm$A_{13}$:]
the money that the employer paid to the
worker was not stated to be a ``fee''.
\item[\rm$A_{14}$:]
the money that the employer paid to the
worker was not stated to be ``wages'' or
``salary''.
\item[\rm$A_{15}$:]
the employer did not deduct PAYE tax
instalments from the worker's pay.
\item[\rm$A_{16}$:]
the employer paid the worker neither sick
pay nor holiday pay.
\item[\rm$A_{17}$:]
the employer and the worker did not express
any intention that the relationship would be
one of employer and employee.
\item[\rm$A_{18}$:]
the employer and the worker expressed an
intention that the relationship would be one
of principal and independent contractor.
\end{description}
In \frenchspacing
{\it Australian Mutual Provident Society v. Chaplin}\nonfrenchspacing,%
\footnote{(1978) 18 ALR 385.}
a 1978 decision of
the Judicial Committee of the Privy Council,
Chaplin was a representative of AMP. A clause of the
agreement between them stated that the
relationship was one of ``principal and agent''
and not one of ``master and servant.'' Chaplin
claimed that he was employed under a contract of
service, and was therefore a ``worker'' under the
{\it Long Service Leave Act, 1967\/} (SA) and
entitled to certain benefits.\par The Privy
Council found that there was no reason to think
that the clause was not a genuine statement of the
parties' intentions. Examining the agreement,
their Lordships concluded that it provided for a
contract of agency. The fact that Chaplin was
given the power of unlimited delegation of the
whole performance of his work was ``almost
conclusive against the contract being a contract
of service.''\footnote{ibid. at 391.}
\item[\rm$C_{12}$:]\frenchspacing
{\it Massey v. Crown Life Insurance Co.\/} \nonfrenchspacing
[1978] 1 WLR 676
(``\frenchspacing
{\it Massey v. Crown Life\/}\nonfrenchspacing'')
\begin{description}
\item[\rm$A_{1}$:]
the employer directed the manner in which
the work was to be done.
\item[\rm$A_{2}$:]
the worker was allowed to use her/his own
discretion in doing an aspect of the work
that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was an integral part of the
employer's business.
\item[\rm$A_{4}$:]
the worker neither owned the tools nor
provided the transport with which she/he
performed the work.
\item[\rm$A_{5}$:]
the employer would make a profit/loss if the
work performed by the worker cost less/more
than expected.
\item[\rm$A_{6}$:]
the work was performed on the employer's
premises.
\item[\rm$A_{7}$:]
the employer neither supervised nor
inspected the work.
\item[\rm$A_{8}$:]
the worker was in business on her/his own
account.
\item[\rm$A_{9}$:]
the worker was allowed to employ others to
assist with her/his work.
\item[\rm$A_{10}$:]
the worker was not obliged to work only for
the employer.
\item[\rm$A_{11}$:]
the worker was required to work at specified
times.
\item[\rm$A_{12}$:]
the employer paid the worker by time.
\item[\rm$A_{13}$:]
the money that the employer paid to the
worker was not stated to be a ``fee''.
\item[\rm$A_{14}$:]
the money that the employer paid to the
worker was not stated to be ``wages'' or
``salary''.
\item[\rm$A_{15}$:]
the employer did not deduct PAYE tax
instalments from the worker's pay.
\item[\rm$A_{16}$:]
the employer paid the worker sick pay or
holiday pay.
\item[\rm$A_{17}$:]
the employer and the worker did not express
any intention that the relationship would be
one of employer and employee.
\item[\rm$A_{18}$:]
the employer and the worker expressed an
intention that the relationship would be one
of principal and independent contractor.
\end{description}
In \frenchspacing
{\it Massey v. Crown Life Insurance Co.}\nonfrenchspacing,%
\footnote{[1978] 1 WLR 676.}
a 1977 decision of
the English Court of Appeal,
Massey was the manager of a branch of Crown Life. He
had been an employee for two years, then he and
Crown Life entered into a new agreement whereby
Massey continued to perform the same duties as
before, but was self-employed. This arrangement
had tax advantages for Massey. After a further two
years, Crown Life terminated the agreement and
Massey sought compensation for unfair dismissal
under the Trade Union and Labour Relations Act
1974 (UK). Compensation was only payable if Massey
was employed under a contract of service.\par Lord
Denning MR stated that ``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.''\footnote{ibid. at 679.}
However, Lord Denning (and the rest of the Court
of Appeal) held that the agreement was genuinely
intended to establish Massey as being
self-employed; he was an independent contractor.
\item[\rm$C_{13}$:]\frenchspacing
{\it Stevenson Jordan and Harrison Ltd v. Macdonald and Evans (1)\/} \nonfrenchspacing
[1952] 1 TLR 101
(``\frenchspacing
{\it Stevenson v. Macdonald (1)\/}\nonfrenchspacing'')
\begin{description}
\item[\rm$A_{1}$:]
the employer did not direct the manner in
which the work was to be done.
\item[\rm$A_{2}$:]
the worker was allowed to use her/his own
discretion in doing an aspect of the work
that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was not an integral part of the
employer's business, but was accessory to
it.
\item[\rm$A_{4}$:]
the worker neither owned the tools nor
provided the transport with which she/he
performed the work.
\item[\rm$A_{5}$:]
the employer would make a profit/loss if the
work performed by the worker cost less/more
than expected.
\item[\rm$A_{6}$:]
the work was not performed on the employer's
premises.
\item[\rm$A_{7}$:]
it is not known whether the employer
supervised or inspected the work.
\item[\rm$A_{8}$:]
the worker was not in business on her/his
own account.
\item[\rm$A_{9}$:]
the worker was not allowed to employ others
to assist with her/his work.
\item[\rm$A_{10}$:]
the worker was not obliged to work only for
the employer.
\item[\rm$A_{11}$:]
the worker was required to work at specified
times.
\item[\rm$A_{12}$:]
it is not known whether the employer paid
the worker by time.
\item[\rm$A_{13}$:]
it is not known whether the money that the
employer paid to the worker was stated to be
a ``fee''.
\item[\rm$A_{14}$:]
it is not known whether the money that the
employer paid to the worker was stated to be
``wages'' or ``salary''.
\item[\rm$A_{15}$:]
it is not known whether the employer
deducted PAYE tax instalments from the
worker's pay.
\item[\rm$A_{16}$:]
it is not known whether the employer paid
the worker sick pay or holiday pay.
\item[\rm$A_{17}$:]
the employer and the worker expressed an
intention that the relationship would be one
of employer and employee.
\item[\rm$A_{18}$:]
the employer and the worker did not express
any intention that the relationship would be
one of principal and independent contractor.
\end{description}
In \frenchspacing
{\it Stevenson Jordan and Harrison Ltd v. Macdonald and Evans (1)}\nonfrenchspacing,%
\footnote{[1952] 1 TLR 101.}
a 1951 decision of
the English Court of Appeal,
Evans-Hemming was an accountant who had been
employed (first as a servant, then as an executive
officer) by Macdonald and Evans. Shortly after he
left them, he wrote a textbook on business
management and submitted the manuscript to
Stevenson Jordan and Harrison (a firm of
publishers). He died before the book was
published. Macdonald and Evans claimed that the
book was written while Evans-Hemming was their
employee, and so they owned the copyright in the
work under s. 5(1)(b) of the Copyright Act 1911
(UK).\par The book was divided into five sections.
The first section consisted of the text of three
public lectures that Evans-Hemming had given while
employed by Macdonald and Evans. The Court of
Appeal held that he had given these lectures as an
independent contractor. As Denning LJ said,
``under a contract of service, a man is employed
as part of the business, and his work is 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 \dots\ The lectures were, in
a sense, part of the services rendered by Mr
Evans-Hemming for the benefit of the company. But
they were in no sense part of his service. It
follows that the copyright in the lectures was in
Mr Evans-Hemming.''\footnote{ibid. at 111.}
\item[\rm$C_{14}$:]\frenchspacing
{\it Ready Mixed Concrete (South East) Ltd v. Minister of Pensions and National Insurance\/} \nonfrenchspacing
[1968] 2 QB 497
(``\frenchspacing
{\it Ready Mixed v. Minister\/}\nonfrenchspacing'')
\begin{description}
\item[\rm$A_{1}$:]
the employer did not direct the manner in
which the work was to be done.
\item[\rm$A_{2}$:]
the worker was allowed to use her/his own
discretion in doing an aspect of the work
that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was an integral part of the
employer's business.
\item[\rm$A_{4}$:]
the worker owned the tools or provided the
transport with which she/he performed the
work.
\item[\rm$A_{5}$:]
the employer would not make a profit/loss if
the work performed by the worker cost
less/more than expected.
\item[\rm$A_{6}$:]
the work was not performed on the employer's
premises.
\item[\rm$A_{7}$:]
the employer neither supervised nor
inspected the work.
\item[\rm$A_{8}$:]
the worker was not in business on her/his
own account.
\item[\rm$A_{9}$:]
the worker was allowed to employ others to
assist with her/his work.
\item[\rm$A_{10}$:]
the worker was obliged to work only for the
employer.
\item[\rm$A_{11}$:]
the worker was not required to work at
specified times.
\item[\rm$A_{12}$:]
the employer did not pay the worker by time.
\item[\rm$A_{13}$:]
the money that the employer paid to the
worker was not stated to be a ``fee''.
\item[\rm$A_{14}$:]
the money that the employer paid to the
worker was not stated to be ``wages'' or
``salary''.
\item[\rm$A_{15}$:]
the employer did not deduct PAYE tax
instalments from the worker's pay.
\item[\rm$A_{16}$:]
the employer paid the worker neither sick
pay nor holiday pay.
\item[\rm$A_{17}$:]
the employer and the worker did not express
any intention that the relationship would be
one of employer and employee.
\item[\rm$A_{18}$:]
the employer and the worker expressed an
intention that the relationship would be one
of principal and independent contractor.
\end{description}
In \frenchspacing
{\it Ready Mixed Concrete (South East) Ltd v. Minister of Pensions and National Insurance}\nonfrenchspacing,%
\footnote{[1968] 2 QB 497.}
a 1967 decision of
the Queen's Bench Division of the English High Court,
Latimer worked for Ready Mixed as an
``owner-driver.'' He was paid at mileage rates,
and was obliged to buy the truck through a
financial organization associated with Ready
Mixed. The truck was painted in the company's
colours, and he had to wear a Ready Mixed uniform.
Latimer was obliged to meet the costs of
maintenance, repair and insurance of the truck
(and the attached mixing unit, which belonged to
Ready Mixed). The Minister determined that Latimer
was employed under a contract of service, and was
therefore an ``employed person'' under s. 1(2) of
the National Insurance Act 1965 (UK), making Ready
Mixed liable to make weekly contributions.\par
MacKenna J examined the contract and held that the
rights it conferred, and the duties it imposed,
between Latimer and Ready Mixed were not such as
to make it a contract of service.
\item[$I_{\mbox{\scriptsize\sf Contractor}}$]
(the ideal case in which
the worker is an independent contractor):
\begin{description}
\item[\rm$A_{1}$:]
the employer did not direct the manner in
which the work was to be done.
\item[\rm$A_{2}$:]
the worker was allowed to use her/his own
discretion in doing an aspect of the work
that was not specified beforehand.
\item[\rm$A_{3}$:]
the worker was not an integral part of the
employer's business, but was accessory to
it.
\item[\rm$A_{4}$:]
the worker owned the tools or provided the
transport with which she/he performed the
work.
\item[\rm$A_{5}$:]
the employer would not make a profit/loss if
the work performed by the worker cost
less/more than expected.
\item[\rm$A_{6}$:]
it is not known whether the work was
performed on the employer's premises.
\item[\rm$A_{7}$:]
the employer neither supervised nor
inspected the work.
\item[\rm$A_{8}$:]
the worker was in business on her/his own
account.
\item[\rm$A_{9}$:]
the worker was allowed to employ others to
assist with her/his work.
\item[\rm$A_{10}$:]
the worker was not obliged to work only for
the employer.
\item[\rm$A_{11}$:]
the worker was not required to work at
specified times.
\item[\rm$A_{12}$:]
the employer did not pay the worker by time.
\item[\rm$A_{13}$:]
the money that the employer paid to the
worker was stated to be a ``fee''.
\item[\rm$A_{14}$:]
the money that the employer paid to the
worker was not stated to be ``wages'' or
``salary''.
\item[\rm$A_{15}$:]
the employer did not deduct PAYE tax
instalments from the worker's pay.
\item[\rm$A_{16}$:]
the employer paid the worker neither sick
pay nor holiday pay.
\item[\rm$A_{17}$:]
it is not known whether the employer and the
worker expressed an intention that the
relationship would be one of employer and
employee.
\item[\rm$A_{18}$:]
the employer and the worker expressed an
intention that the relationship would be one
of principal and independent contractor.
\end{description}
\end{description}
\end{document}