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Issue: Whether Mary is an employee or an independent contractor of Drake Education Solutions (DES).

Rule: The relevant rule is the Australian Fair Work Act 2009 (FW Act). The FW Act sets out the factors that are considered in determining whether a person is an employee or an independent contractor. These factors include:

• The degree of control exercised by the employer over the worker;
• The degree of financial risk borne by the worker;
• The degree of skill required for the work;
• The degree of integration of the worker into the employer's business;
• The worker's opportunity for profit or loss;
• The worker's ability to exercise independent judgment;
• Whether the worker is engaged as part of a regular business; and
• Whether the worker has the power to hire and fire other workers.

Analysis: Applying these factors to the case of Mary and DES, it is clear that Mary is an employee of DES.

• DES specifies the work that Mary must do, the deadlines for completing the work, and the software that Mary must use. This shows that DES has a significant degree of control over Mary's day-to-day activities.
• Mary also bears little financial risk. DES pays Mary a fixed fee for each project, regardless of whether the project is successful or not. This means that Mary does not have to worry about losing money if the project is not successful. This is a factor that suggests that Mary is an employee, not an independent contractor.
• The skills required to develop training packages are not specialized or unique. This means that Mary does not have a high level of skill that would allow her to operate her own business. This is another factor that suggests that Mary is an employee, not an independent contractor.
• Mary is closely integrated into DES's business. Mary works exclusively for DES, and she uses DES's equipment and facilities. This shows that Mary is not running her own business, but is instead part of DES's business.
• Mary does not have the opportunity to make a profit or loss. Mary is paid a fixed fee for each project, and she does not have any control over the price that DES charges its clients. This means that Mary does not have the same financial risks and rewards as an independent contractor.
• Mary does not have the ability to exercise independent judgment. Mary is required to follow DES's instructions about the work that she must do. This shows that Mary does not have the same level of autonomy as an independent contractor.
• Mary is not engaged as part of a regular business. Mary does not have her own business, and she does not hire or fire other workers. This shows that Mary is not running her own business, but is instead working for DES.

The analysis above is based on the Australian Fair Work Act 2009 (FW Act). The FW Act sets out the factors that are considered in determining whether a person is an employee or an independent contractor. These factors are:

• The degree of control exercised by the employer over the worker;
• The degree of financial risk borne by the worker;
• The degree of skill required for the work;
• The degree of integration of the worker into the employer's business;
• The worker's opportunity for profit or loss;
• The worker's ability to exercise independent judgment;
• Whether the worker is engaged as part of a regular business; and
• Whether the worker has the power to hire and fire other workers.

Conclusion: Based on the above analysis, it is clear that Mary is an employee of DES and not an independent contractor.

Relevant legal precedents:

• The following cases are relevant to the determination of whether Mary is an employee or an independent contractor:
  • Hollis v Vabu Pty Ltd (2001) 207 CLR 21;
  • Construction, Forestry, Mining and Energy Union v Spotless Services Pty Ltd (2007) 235 CLR 168;
  • Nationwide News Pty Ltd v Wills (1992) 176 CLR
  • WorkPac Pty Ltd v Rossato & Ors [2021] HCA 23

In these cases, the courts have held that the following factors are important in determining whether a person is an employee or an independent contractor:

• The degree of control exercised by the employer over the worker;
• The degree of financial risk borne by the worker;
• The degree of integration of the worker into the employer's business; and
• The worker's opportunity for profit or loss.

In all of these cases, the courts found that the workers were employees, not independent contractors. This is because the employers exercised a high degree of control over the workers' work, the workers bore little financial risk, and the workers were closely integrated into the employers' businesses.

Based on the above precedents, it is clear that Mary is an employee of DES.

QUESTION:

For over thirteen (13) years, Mary Taylor has been developing training packages for Drake Education Solutions (DES). Originally, the training packages she designed and compiled were for face-to-face training, however now most of the work involves developing online training courses. The online training industry is extremely competitive and training designers are increasingly using sophisticated software programs to provide animation, interactive events, and personalised learning. Llast week, DES sent Mary a text message terminating her contract. The termination was effective immediately. DES advised that its client organisations were nding her training packages dull and boring compared to those of developers working for other rms. Mary sent a return text message to DES saying that they could notjust terminate her as she was an employee with industrial rights and entitlements. Mary has subsequently visited an industrial lawyer and sought advice as to whether she could make a claim for unfair dismissal and, in the process, claim reimbursement under the Fair WorkAct 2009 for various entitlements that DES had never paid her over the past 13 years, such as annual leave, sick leave, carer's leave when her mother was terminally ill, long service leave and superannuation. Mary provided her lawyer with a copy of her contract with DES. The contract which Mary had signed with DES stated that she was hired to provide training resources when requested, that she was also free to work for other organisations in the same type of business, but that she must always be available to meet the deadlines that DES set and communicated to her. The contract also stated that DES would take a no- tolerance approach to Mary missing deadlines due to outside work. While working for DES, Mary has had a permanent desk allocated to her, with her name attached and which she has decorated with a collection of cat gurines, his favourite animal. DES celebrates workers' birthdays with a morning tea and a gift (for which the staff collect money), and each year on her birthday, Mary has received another cat gurine for her desk. DES has always required Mary to be in the office Monday to Thursday from 9.00am to 5.00pm. Mary normally worked on several projects simultaneously for DES and to meet deadlines, often worked till 7.00pm or 8.00pm at night and on additional days. Mary was required to provide her own laptop at DES, but she used all their other equipment such as printers, scanners and expresso machine. Mary had a DES business card for use if she visited clients to discuss their training requirements. DES required Mary to use the company's software packages to design the training programs; she was not allowed to use any alternative, additional software. DES has invested heavily in this training software that provides for training that has a particular brand appearance that ts the DES 'vision'. As her contract with DES states, Mary is paid for each training 'project' she completes for DES's clients. To receive her pay, Mary must invoice DES for the completed 'project' using her ABN". On her invoices, Mary refers to herself as The Training Cat. On her training packages for DES, Mary names two authors: The Training Cat and DES. The sole owner of the copyright for the training programs is DES. The contract also states specically that Mary was engaged on a contract for service, that she is not entitled to any form of paid leave mentioned in the National Employment Standards, and that DES is not entitled to cover Mary for workers' compensation or superannuation. The contract also required her to make her own tax arrangements. Over the 13 years, Mary has not created training resources for any other company and she tells her lawyer, it would have been impossible to t such work in, given how much work she did at DES. After listening to all that Mary has to say, and reviewing the contract with DES, Mary's lawyer says to her: Before I can answer any question about your industrial entitlements, we must work out whether you are an employee or an independent contractor. * ABN is the Australian Business Number Question. After reviewing the facts, if you were Mary's lawyer, would you advise her that she is an employee or an independent contractor in his arrangement with DES? Using relevant law, provide a reasoned justication for your answer. Note: you are not to address the question of whether Mary has been unfairly dismissed or the industrial entitlements she may or may not have. You must conne your analysis entirely to justifying your response concerning whether Mary is an employee or an independent contractor in this case