HYPOTHETICAL ILAC QUESTION

Jonesy has worked for multiple rendering and painting businesses over the past 30 years. In 2017, after having made many industry contacts Jonesy decided to branch out and work for himself through his own construction company, 'Jolly Jonesy's Odd Jobs Pty Ltd. (JJOJPL)'. Unfortunately for Jonesy, this was badly timed because of the downturn in the global economy the following year. By early 2018, Jonesy, on the advice of his wife, decided that he would have to "seek more permanent work to enable him to pay the bills and feed his family." His problem was that he always "underquoted on jobs because he always wanted to do the right thing by people, but people did not respect this in return and his contacts took advantage of him, because of his naivety with business dealings." Those that had promised him work wanted him to complete it at cut-price mates' rates due to the downturn in the economy.

Therefore, as a way of having regular work, from early 2018, Jonesy worked on behalf of an employment agency known as 'Trouble-Shooters Pty Ltd., (TSPL)' which provides workers to large construction companies across Australia. In return for the services provided to the construction companies, the companies pay TSPL a weekly 'hire fee' for the engagement of its workers. TSPL then pay its workers for the hours worked under a labour hire agreement contract as independent contractors. When workers are first engaged by TSPL, its director Bill Odco explains that they are to be "engaged as an independent contractor" so that they can "write-off their expenses to minimise their tax." Jonesy signed a one-page document agreeing that he was to be engaged as an independent contractor as part of a labour hire agreement to provide his services to other companies and that he would be independently contracted for a permanent 38 hours per week. Separately he verbally agreed that he was to be paid an agreed flat hourly based on the relevant award plus $50 per week in return for paying his own worker entitlements and using his own company work ute (vehicle) "as a matter of convenience and for tax purposes." Initially he worked on a day-to-day hire basis, but within a few weeks from when he started working for TSPL, he worked at Trump Enterprises Limited (TEL) construction sites four days per week and a different site for various companies on Fridays. At the start of 2020, TSPL, TEL and Jonesy verbally agreed that he would work permanently at TEL construction sites, and be paid by TEL for hours worked, without the involvement of TSPL. At the time TEL paid TSPL a placement fee and since that time it (TSPL) has not been part of the ongoing relationship.

TEL and Jonesy signed a contract stating that Jonesy was "engaged as an independent contractor" via Jonesy's company 'JJOJPL' "to provide skilled services of rendering and painting." The document also stated that he would pay for his own "worker entitlements" and "follow TEL's company policies and procedures while on site." Jonesy worked for TEL mainly on Mondays to Thursdays between 6.30am-2.30pm for which he was paid an agreed hourly rate. His company was required to invoice TEL at the end of each week for work completed. TEL produced payment summaries fortnightly on Tuesdays and Jonesy was required to dispute errors by 5pm Friday of the same week. Throughout the day, Jonesy was regularly checked on by TEL's foreman Mr Gerry Attrick, who would also help him with lifting heavy materials. Last financial year Jonesy earned $120,000. Around $100,000 of this was from TEL and the rest from work completed through his own company (JJOJPL) in his own time.

TEL was aware that Jonesy worked on other jobs on his days off and thought this was only reasonable considering he provided his own low-cost tools and equipment when on their sites and was contracted to them only 4 days per week. When Jonesy completed work on other jobs in his spare time, JJOJPL on his behalf, sometimes subcontracted workers to help with painting, as he disliked that part of the job. TEL was reluctant to allow Jonesy to have any of his subcontractors work onsite with him but did allow one of his subcontractors to work on his behalf if he wanted a day off, as long as the worker had been first approved by TEL and he gave them a week's notice.

A work vehicle was made available to Jonesy during work hours with TEL, but as a matter of convenience he normally used his companies' (JJOJPL's) second-hand ute whilst working for TEL. In return, TEL paid for his ute's general running expenses when he invoiced them for work onsite. None of TEL's workers at its construction sites were required to wear a specific uniform. However, TEL did provide workers with free shirts, with its logo (company's logo and director's face) printed on it, to wear if they chose.

Last Wednesday one of the other workers at TEL told management that he had seen Jonesy taking home some extra painting supplies in his company's ute, which Jonesy denies. On hearing this, TEL's HR Manager Ms Ivanka told Jonesy last Thursday that he would have to respond to these allegations on the following Monday morning. According to Jonesy last Thursday, Ms Ivanka now claims that at that time he responded by mumbling "what the f*ck" and that she has used this as an excuse to no longer provide Jonesy with any future work.

Using the ILAC format, advise Jonesy whether he is entitled to bring any claims based on whether he was previously engaged as an employee, and not an independent contractor, as he had been told, and agreed to in writing. You do not need to discuss any of the actual claims in detail but should refer to the possible lodgement of any claim or complaint and whether he may be successful.

~ END OF HYPOTHETICAL FACTS ~

Answer using the ilac method

ILAC Short Overview ANSWERING LEGAL QUESTIONS There are four stages to correctly answer legal problem questions. 1. Identifying the legal issues involved in the problem. Issues are the questions which need to be resolved or answered. 2. Identifying the area of law. This means referring to the relevant cases and statutes. 3. Applying these legal principles to the facts of the problem so as to answer the questions raised in the issues. This requires you to use the relevant law to argue your case and also respond to arguments that may be raised by your opponents. 4. Reaching a conclusion. This requires you to state who you think shall win the case and what remedy the complainant is likely to obtain from the courts. This is known as the ILAC method and must be used in answering hypothetical problem question(s). It is there to help you properly structure your answer to demonstrate your knowledge