This-case-study-examines the distinctions between a contract of service and a contract for service in order to determine whether “Mr Hemingway” and crewmembers are employees of the taxpayer (Dominic B Fishing Pty Ltd (“DBF”)). In this report, an analysis based on the multi-factor test from the case of Hollis-v-Vabu - (“HV”), will be applied to determine if Hemingway is an employee, thereby an obligation to make superannuation contributions to its employees is required by the tax payer. However, it was recently decided in the Full Federal Court in ACE-v-Trifunovski held that there is “no single or unifying test to determine whether or not contract of employment exists.” Nonetheless, the multi-factor test is important in analysing this case.
Control
Control is one of the considerations of the multi-factor test used to determine whether a contract of employment exists. An assessment of supervision control is required to determine the existence of employment whereby the employer has control to how work is to be performed. In this case study, it is stated that crew members operated independently, were free to fish and did not take instructions from the skippers or from their crew mates. Hemingway noted that whenever he wanted to work, he would make himself known to the taxpayer who then “invites” him to work. Furthermore, the agreement and evidence from witnesses implied little possibility for the exercise of supervision and control by the taxpayer. However, it was held by McCabe J that high levels of autonomy is enjoyed by crewmembers during their fishing operation. Autonomy is a difficult issue to determine the employment relationship, as this method is a growing industrial strategy that encourages “self-managed control” by the...
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...h. Therefore Hemingway is paid by commission and could hypothetically make a profit or loss thereby suggesting that he is in the business on his own account.
Right of suspension or dismissal
A right to suspend or dismiss is an indicator of employment relationship. In this case, the taxpayer had no control to this right as he gave his crewmembers freedom to exit the arrangement. Thereby indicating this relationship is an independent contract.
Conclusion
With the application of the multi-factor test applied to this case, it is conclusive that the relationship between DBF and Hemingway and other crewmembers are independent. It is important that not all tests were applied in this case study, as there was a lack of evidence to support the tests. Therefore there is no obligation to make superannuation contributions to DBF’s independent contractors.
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Reasoning: The Court held that Mr. Faretta has the constitutional right to refuse appointed counsel. However, he may not complain later that he received inadequate assistance of and to legal counsel.
We see initial leadership within Shackleton in his ability to make decisions. With a voyage like this, the decisions made would determine the likelihood of success. From the purchase ...
The captain is characterized as incompetent even at sailing a ship despite his title. The captain should have been the one to lead the castaways but his incompetence caused the island dwellers to despise him. Ten years after being marooned on the island, “the captain become a very boring person, without enough to think about, without enough to do.”(294). Trying to find a purpose to his boring life, the captain hovered around a spring, the island’s only water supply. He would tell the kanka-bono girls the kind of mood the spring was in on that day despite the fact that “The dribbling [from the spring] was in fact quite steady, and had been for thousands of years”(295). The kanka-bono girls did not speak english and therefore the captain’s attempt at humanising the spring were lost on the girls making it a completely pointless endeavor. Moreover,If not for the lack of tools on the island, the captain would have tried to improve the springs and consequently might have clogged it(296) potentially putting the life of castaways at risk. The captain was desperate to find a purpose to his mundane life on the island, so much that he was willing to put his and the island’s inhabitant 's life at risk. The captain’s attempt at accomplishing something to find a purpose in his life was useless and even
Captain Aubrey exhibits and demonstrates leadership characteristics that inspire his crew to be the best that they can be. One of the most important leadership traits that Captain Jack has is a single-minded focus on his purpose. All of his decisions are held up against the g...
The workers do not in seem to mind the job when it comes to the amount of payment they receive for their jobs. In the article “Life on a Great Lakes Freighter: Crew misses family, but pay’s good” Jim Schaefer states:
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
According to Corporation Act 2001 s124(1), it illustrates that ‘’A company has the legal capacity and powers of an individual both in and outside the jurisdiction” . As it were, company as a legal individual must be freely with all its capital contribution shall embrace liability for its legal actions and obligations of the company’s shareholders is limited to its investment to the company. This ‘separate legal entity’ principle was established in the case of Salomon v Salomon & Co Ltd [1987] as company was held to have conducted the business as a legal person and separate from its members. It demonstrated that the debt of company is belonged to the company but not to the shareholders. Shareholders have only right to participate in managing but not in sharing the company property. Besides ,the Macaura v Northern Assurance Co Ltd [1925] demonstrates that the distinction between the shareholders and company assets. It means that even Mr Macaura owned almost all the shares in the company, he had no insurable interest in the company’s asset. The other recent case is the Lee v Lee’s Air Farming Ltd [1961] which illustrates that the distinct legal entities between employee ad director allows Mr.Lee function in dual capacities. It resulted that the corporation can contract with the controlling member of the corporation.
Alienation of labor is a concern when considering truck drivers and their job. Karl Marx noted alienation to be a “subjective feeling of powerlessness, of isolation, of estrangement, and located its origin not in our separation from god or nature but from genuine human activity, from activity that connected us to ourselves and to others” (Retrieved from Module 10, Alienation at Work). Truck divers are always isolated and have a feeling of being powerless; driving for long hours and not having employees to communicate with. There is a sense of alienation and emotional labor since drivers are expected to mange their feelings and needs. They are left alone for the most part and there is a sense of separation for both truck drivers and office employees.
Psychological contract is the unwritten contract that illustrates a set of expectations exists between the individual and the organisation (Sonnenberg et al, 2011). Svensson & Wolven (2010) point out that it can be a relationship between the members of a group, the people who work in the same company, department or organisation, several groups or parties in an organization, etc. It includes the work performance requirement, job security, training, potential development, compensation and subside. Psychological contracts are the mental representation based on belief or perception, so it may help the employees and employers get rid of a complicated employment relationship. For instance, the employees and employers may understand very clearly about the terms and conditions and what they have been agreed upon. The perception of each individual is very important and essential (Ekelund et al, 2010, 1438). Thus, when they work in a high competitive group, it could motivate them to implement their work consciously. Combined with a few exceptions, some researches cite that psychological contract is only regarding to the employee–manager relation and the term that mostly...
Helmreich, R. L., Merritt, A. C. and Wilhelm J.A. (1999). The Evolution of Crew Resource
Management maintains the right to direct all business activities. In order to retain as much authority as possible in the direction of the workplace, management has sought to include certain provisions in collective bargaining agreements. Management has no rights over individual people within the organization, but does maintain rights to property, which are real and legally enforceable. Management has sole discretion and flexibility in deployment and discipline issues and maintains the right to assign measures to people within the compa...
The Auditor-Firm Conflict of Interests: Its Implications for Independence: A Reply. By: Goldman, Arieh; Barlev, Benzion. Accounting Review, Oct75, Vol. 50 Issue 4, p857-859, 3p
The Principle of Separate Corporate Personality The principle of separate corporate personality has been firmly established in the common law since the decision in the case of Salomon v Salomon & Co Ltd[1], whereby a corporation has a separate legal personality, rights and obligations totally distinct from those of its shareholders. Legislation and courts nevertheless sometimes "pierce the corporate veil" so as to hold the shareholders personally liable for the liabilities of the corporation. Courts may also "lift the corporate veil", in the conflict of laws in order to determine who actually controls the corporation, and thus to ascertain the corporation's true contacts, and closest and most real connection. Throughout the course of this assignment I will begin by explaining the concept of legal personality and describe the veil of incorporation. I will give examples of when the veil of incorporation can be lifted by the courts and statuary provisions such as s.24 CA 1985 and incorporate the varying views of judges as to when the veil can be lifted.
Felstead, Jewson and Walters (2003) conclude that managerial control is directly related to the visibility and presence of employees in the office because it enables managers to ascertain that employees are actually working and enables managers more discretion on how the job is completed and an ease in monitoring the productivity levels of employees. When these control strategies are linked back to managerial prerogative it is easy to see that managers’ discretion is increased because the decisions relating to tasks in the workplace are decided on without consultation with employees or unions. This is because the employment contracts do not establish the details relating to the completion of tasks in the organisation. (Bray, Waring and Cooper, 2011)