Introduction This paper will examine the facts and with the use of common laws to recognize if Johnny

is an employee. Then we review if Johnny able to rely on promise made about his ability to increase the hourly rate. We will be focusing on using the control test and multi-factors. Although there are other common-law tests such as integration test, Australia does not generally accept such test. This is because the test required the consideration on whether Johnny is part of Autumn Fashion and thus insufficient to differentiate an independent contractor and employee. Statutory provision Section 15(1) of the Fair work Act 2009 defines an employee in its ordinary meaning as a reference to person who usually such as an employee and does not include a person on a vocational placement. However, this definition is insufficient to help us too. Control test. The control test provides that an employee (or servant) is subject to command or control of the employer (or master). In Federal Commissioner of Taxation v Walter Thompson (Aust) Pty Ltd, the court concluded that actors are employee because the company has exercised a detailed and extensive control over the artists during rehearsal and actual performance. In Zujis v Wirth Brothers Pty Ltd, the court referred that the acrobat is an employee to the circle proprietor since he was subject to the instruction of the proprietor in most aspects of work. Referencing the two cases above to our case, Johnny is much restricted to the Autumn Fashions instructions even when he felt there is a better approach to its current system. This exercise Autumn Fashions control over how Johnny can work. It would appear that Johnny has very little or no say over how to carry out his work since his job instructions are provided to him every day. Even when Johnny feels that his work can be done better, he still has to follow the supervisor instructions. Multi- factors test The application of multi-factors test is extensive by the courts and is commonly adopted by Australian courts too. With it together with control test, it will be clear to determine if Johnny is an employee or a contractor. Johnny is required to wear the safety wear, used the data collection sheets and work allocation instructions given to him. The machinery that Johnny uses also belongs to Autumn Fashion. Like common employees that will use the tools provided for them to do their work, this point to Johnny is an employee. Unlike case like Australian Air Express v Langford when part of the reasons that the court found Langford was not an employee during the multi-factor test is that Langford uses his own tools. Consider the factor that Johnny may have self funded his own licenses but this reason is not strong to point him as a contractor since this may regard him as a worker self obtain his bachelor degree certificate.
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In Hollis v Vabu, the bicycle couriers are part Vabus employee since the couriers were not in a business himself and could not generate goodwill. Compare to our case, there is no indication that Johnny could be in a business himself and could generate goodwill. However Johnny was comparing his work value and skill could have a better-offered elsewhere. Johnnys usual working hours from 630am to 4pm Monday to Friday did not indicate that these are his regular working hours and days as seen for regular employees. Even so given the terms of a causal employee, an employee may not necessary have a regular working hours. While it can be argued that Johnny is a contractor that is paid based on invoices he rendered to autumn Fashion. Payment to Johnny is calculated on hourly rate and the weight of the stock he moved. However like a casual worker and part-timer, they have to indicate in their timesheet and submit their working hours to the management. The invoice act as another means of indication that how a casual employee could be paid. Johnny also invoiced the company at the end of every week, this is like a restricted rule by the company and it also acted like a routine. It may not be a clear indication whether there is a choice by Johnny or the day of his payment but this may be seems that Johnny will be paid on a schedule basis like an employee. Johnny did enjoy some employment benefits like when the warehouse is closed for at Christmas but he still get paid. Although it can also be debated that he does not enjoy personal leave or annual leave like a regular employee. However as a whole considering all the factors, Johnny could fall under the casual employee category to enjoy limited employment benefits and protection. Contract A contract is an agreement, written or otherwise, between two or more parties. It gives rise to enforceable legal rights and obligations. In this situation, it is a valid verbal agreement between Johnny and his supervisor. There is present for all the elements of the contract; offer, acceptance, consideration and intention to create legal intention. The offer for the work, acceptance made and there is consideration of work to be done for payment and lastly there is an legal intention since Johnny and his supervisor are not in a social or domestic relationship. So a contract is formed. Since it is not written in the contract, it is an oral term that Johnny is eligible to increase his hourly rate annually. The contract is valid and will be enforceable if contents of the contract have no present of duress, misrepresentation, mistake and illegality body. However, it is more difficult to prove an oral terms existence unless Johnny has a witness when his supervisor made the promise. Conclusion The rate of casual employment in Australia is about 26%. The main difference about a usual employee and casual employee is those causal employees have lesser protection
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and lesser entitlement to their employment. Causal employees usually are doubtful about the duration and their future employment in their organization. While this scenario ask for the likely-hood if Johnny is to be recognized as an employee or contractor, one should also take account that a causal employee is also an employee of the organization. Hence this paper concluded that Johnny is an employee and he could bring Autumn Fashion to court in order to have the law enforce the agreement made about his ability to increase the hourly rate annually.

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References: FAIR WORK ACT 2009. Available at: http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s15.html (accessed 1 February 2013). SMa Institute of Higher Learning. (2011) Introduction to Commercial Law Singapore: Pearson Education South Asia Pte Ltd. Waarden N.V.D. (2010) Employment Law: An Outline 2nd Edition. Australia: LexisNexis Butterworths. Workplace Info New& Info for Australian HR/IR Professionals. Available at: http://www.workplaceinfo.com.au/payroll/payments-and-expenses/casuals (accessed 1 February 2013).

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