Q1 . Before she commences work she signs a contract that says she will fill a central role in the serial and must be prepared to work at all times but that there is no guarantee of any continued work and that she is free to accept work from other production companies. The contract also requires her to make herself available to the media as directed by Monks.
Amanda works 50-60 hours a week (including evening and weekend call backs to re-shoot scenes) and after four weeks Monks Pty Ltd. pay her $10,000 without making any deduction for tax. The next day she receives a nasty gash on her arm on set when the director throws a prop at her in an angry tantrum, requiring her to be off work for the following week. In haste, the director alters the story line and completely writes Amanda’s character out of the serial.
Suggest, with reference to cases, whether Amanda is (or at least was) an employee or an independent contractor? (Amanda believes employee status would entitle her to pay for the time she is recovering from her injury & for her effective dismissal but you are not required to advise her on these matters) (22 MARKS)
Q2 Ken and Bob are drivers for Ore Ltd. Ken has been employed by the company for 20 years, while Bob, though better qualified than Ken, has worked as his assistant for the last 18 months.
Ore Ltd has recently included Ken but not Bob on a list of employees to be made redundant due to an economic downturn. Ken was surprised as he expected the customary ‘last on / first off’ (last employed / first made redundant) rule to be applied as it has been by the company and indeed across the mining industry more generally in previous downturns.
Ken was also surprised to see that there was no mention of the rule in his contract, which said only that the employer may determine redundancies by reference to the level of employee qualification. Can Ken argue that the ‘last on / first off’ rule forms part of his contract and that he should therefore not be made redundant before Bob? (8 MARKS) (You are not required to advise Ken more generally in relation to his possible redundancy)
(Source of questions: Van Der Waarden, Employment Law 1st ed)