Athena, a Chinese migrant studying in Perth, commenced employment with Chinatown Restaurant in December 2012. She waited on tables, took orders, delivered meals and helped with food preparation and cleaning in the kitchen. Joe, the restaurant manager, supervised Athena while she was working and also organised her days and hours of work.She was engaged as a waitress on a full time basis up until December 2016. In that month Athena resigned from her employment in writing. Chinatown's Human Resources Manager, Joanne, had asked her to contract her services to Restaurant Services Pty Ltd, telling her that if she didn't resign she would not be provided with any more work. Athena also signed a letter stating she understood the information supplied to her and agreedto accept the Restaurant Services offer as detailed in an information pack provided. At a meeting of Chinatown employees Joanne told Athena and other employees that nothing would change.Athena understood she was now a sub-contractor but was not clear on who she was contracted to, since Joanne still approved her weekly hours of work, provided her uniform, and issued her pay.

Athena's pay decreased following her resignation and her signing the new agreement.Instead of receiving a penalty rate for her weekend and public holiday work, she now received a flat rate of pay regardless of the days and times she worked. When she asked Joanne about it, Joanne told her that as a sub-contractor she was only entitled to the flat rate. Joanne also said that if Athena was not happy with that, she could say so and that she would not be provided with any more work.

(a)Is Athena able to be party to a valid contract of employment?

(b)If we assume Athena is able to be a party to a valid contract of employment, was she still one of Chinatown's employees after resigning? Refer to cases that use the current common law test.

(c)If we assume Athena is an employee, has Chinatown or Joanne breached any federal legislation in relation to requiring Athena to contract her services to Restaurant Services?