Case Analysis Stevens V Brodribb Sawmilling Co Pty Ltd Essay

Introduction The Classification between an independent contractor and employee has raised a number of issues throughout the past 50 years. Failing to create an effective formality to be applied by the courts to any particular case, it has lead to commercial uncertainty through Australia. This essay will analysis Stevens V Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 decision regarding the high court process in distinguishing between whether there was an relationship between the employer of employer/employee or employer/independent contractor. Facts While working for Brodribb Sawmilling Co, Stevens and Gray were employed by Sawmilling Co Pty Ltd as a trucker and snigger. During 1985, while Gray was moving a Log onto Stevens truck, the log fell off and rolled off the truck, as a result, Stevens was injured1. These truckers and sniggers used their own vehicles, worked during the time they set out, were paid by the amount of timber delivered and did not deduct income tax installments2. Both employees owned and used their own equipment and vehicles, were never guaranteed work from the Sawmill3 and were free to seek other work if factors such as the weather prevented them from working4. Issue 1. To establish whether Gray and Stevens were employees or independent contractors while employed by Sawmilling Co. Rationale Decidendi The legal principle that the High Court applied in Stevens5, in regards to employee/independent contractor, was the ‘multiple indicia test’. This test is used to identify a number of criteria that the court can use, when distinguishing between employees or contractors. In regards to Stevens, Control was weighed as the significant factor when deciding between employee/contractor during the case. Judgement and Analysis Stevens6 was held in favour of Sawmilling Co Pty Ltd, classifying the two as  independent contractors through the application of the ‘indicia’. The test was originally established in 1968 in the UK 7, recognising a number of criteria to be used when assessing relationships. The test was established in response to a collapse of the previous test, the control test, which had been found to be more suited to the social conditions of earlier times, becoming obsolete in modern society8. It was found that due to technological developments, the control test had become inconsistent with the retention of effective control9, as employees skills now exceed that of their employers 10. This meant by using the application of the ‘indicia’ test, Stevens would be able to determine the relationship between the two workers. When applying the test in Stevens, the outcome of the courts decision failed to clarify which criteria was to be used when determining future cases. Stevens had adapted its ratio from previous cases, looking at the whole relationship between the individuals, making a decision on balance11 through the application of the particular criteria; the relationship of master and servant, mode of remuneration, provision and maintenance of equipment, obligation to work, hours or work, deduction of income tax and the delegation of work by the employee12. This left a problem open for interpretation, the weight that the court applied to the different ‘indicia’ on any particular case13. Previous cases before Stevens offered little help in defining the relationship between the employer and contractor, as the legal concept remains largely undefined except in terms of the various indicia, which varies between cases 14. In modern society many employers don’t process the knowledge to be able to tell their employees what to do, failing to address distinction between the relationship between employer/employee15. Stevens’ decision used control as the significant factor when determining control, weighing the balance in favor that they were contractors. Therefore, when attempting to make a judgement between employee/contractor, it can be misleading for future cases where control isn’t the significant factor, as it is no more than a guide to the existence of the relationship between master and servant. Furthermore, Stevens was self-employed, therefore in performing his contract, he used his own tools, which indicates that he was not a servant16. However,  Stevens places too little emphasis on what defines a contractors tools, which was seen in 2001 Hollis v Vabu17. The court applied the legal principles held in Stevens18, however held that the courier was an employee, not a contractor. Although the couriers provided their own tools and equipment, it actually involved ‘little capital outlay as such tools were not only capable for use as a courier, but could be used for other general purposes’19. This provides a great example of the weight that Hollis places on another particular criteria that the test, when applied in Stevens, was able to effectively establish whether they were contractors, but left much open, leading to commercial uncertainty. Impact on Subsequent Cases The impacts that followed Stevens20 saw major changes in the Industrial Relations Act 1988, the Superannuation Guarantee Act 1992 and the liability to deduct pay as your earn installments21. Businesses started avoiding the statutory obligations owed to their employees, saving up to 17% by classifying its employees as contractors22. Consequently an entirely new industry rose, attempting to take advantage of the multi-test, structuring their business so it appeared to be one of employer to independent contractor, then employer to employee23. The consequences of this was subsequently seen in Vabu v Taxation24, having avoided lodging superannuation guarantee statements, Vabu was found guilty of avoiding the minimum level of payment of superannuation for all of its couriers25. Future and Commercial implications The commercial implications that arose form Stevens26 found large corporations using the capacity of the Multi-Test to ‘minimise social wage costs, providing legal validation for the businesses to classify employees as contractors’27. These individuals became stand-in employees, still under the control of these corporations, with the ‘formality of freedom as an illusory trap’28. Therefore this has meant, that by applying Stevens multi-factor test, more times than less, the type of worker will be classified as an independent contractor, which means they will only have limited rights under the Act 29. By wrongfully labeling employees, it can have potentially serious consequences for the employer, opening up claims  for unfair dismissal, vicarious liability, potential prosecution and financial penalties, particular in regard to company’s failure to pay tax30. The effect of Stevens has meant that many businesses are now exposed to having to pay hundreds of thousands of dollars back to the government from past taxes31. Conclusion In conclusion there seems that the Multi-Indicia test is without its faults, but it is without doubt that Stevens32 was an independent contractor. However without further legislation, further developments in regard to the employee or independent contractor will be limited to the interpretation of the test by future judges, as businesses will try and continue to avoid payments and mandatory benefits to its employee’s. Bibliography Case Law Federal Commissioner for Taxation v J Walter Thompson Pty Ltd (1944) 69 CLR 227 (at 231) Hollis V Vabu Pty Ltd (2001) 207 CLR 21 Jackson & Wilson v Monadelphous Engineering Associates Pty Ltd (1997) 42 AILR 3-658 Leichhardt Municipal Council v. Montgomery (2005) NSWCA 432 Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance (1968) 2 QB 497 Stevens V Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Translators Agency Pty Ltd v Commissioner of Taxation (2011) FCA 366 Vabu Pty Ltd v Commissioner of Taxation (1996) 81 IR 150 Vabu Pty Ltd V FC 96 ATC 4898 Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561 Legislation Fair Work Act 2009 (Cth) Independent Contractors Bill 2006 (Cth) Industrial Relations Act 1988 (Cth) Superannuation Guarantee (Administration) Act 1992 (Cth) Articles/Books/Journals Carrigan, F. ‘A Blast From the Past: The Resurgence of Legal Formalism’ (2003) 27 (1) Melbourne University Law Review 186-199 Catanzanti, J. ‘Two limbed test distinguishes employees from contractors’ (2011) 49 (6) Law Society Journal 52-56 Chan, T. E. ‘Organisational Liability in a health care system’ (2010) 18 (3) Torts Law Journal, 228 Chin, D. ‘Losing Control: the Difference Between Employees and Independent Contractors after Vabu v Commissioner of Taxation’ (1996) 52 Law Society Journal 52 De Plevitz, L. ‘Dependent Contractors: can the test from Stevens v Brodribb protect workers who are quasi-employees?’ (1997) 13 Queensland University of Technology Law Journal 263-275 Franklin, G., Lilburne, R. ‘Joint Employment: Possible pitfalls with the use of labour hire in the resources industry’ (2005) Australian Mining and Petroleum Law Association Yearbook 275-299 Gava, J., ‘Another blast from the past or why the left should embrace strict legalism: a reply to Frank Carrigan’ 27 (1) (2003) Melbourne University Law Review 186-199 Jay, D. J. ‘Employees and Independent contractors, (1999) 73 Australian Law Journal Volume 30-34 Lockton, D. Employment Law (4th ed. 2005) 137 Marshall, B. ‘Working it out – Employee or independent contractor’ (2006) 12 (5) The National Legal Eagle 14-19 Nieuwenhuysen, J. ‘Towards flexibility in academic labour markets?’ (1985) 11 Australian Bulletin of Labour 271-81 Steckfuss, K. ‘The Regulation of Unpaid Superannuation Contributions: The Inspector-General of Taxation’s Review into the ATO’s Administration of the Superannuation Guarantee Charge’ (2011) 24 (3) Australian Journal of Labour Law 281-294 Stuhmcke, A. Essential Tort Law (2nd ed 2001) Terry, A. and Ginugni D. Business and the law (5th ed 2009) 819- 8-20 Vincent, R. ‘What are the tax effects of incorporating legal practises?’ (2002) The Law Society of New South Wales 45 Other Sources Australian Government, Fair Work: Independent contractors and Employees Fact Sheet (2012) at 15 May 2012 Australian Government, Facts sheets: Independent Contractors (2012) http://www.abcc.gov.au/Factsheets/Independentcontractors/Pages/AmIanIndependentContractor.aspx> at 16 May 2012 Australian Government, Independent Contractors: The Essential Handbook (2012) at 12 May 2012 [pic] 1 De Plevitz, L. ‘Dependent contractors: can the test from Stevens v Brodribb protect workers who are quasi-employees?’ (1997) 13 Queensland University of Technology Law Journal 263-275 2 Stevens V Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 3 Gava, J., ‘Another blast from the past or why the left should embrace strict legalism: a reply to Frank Carrigan’ 27 (1) (2003) Melbourne University Law Review 186-199 4 De Plevitz, L. ‘Dependent contractors: can the test from Stevens v Brodribb protect workers who are quasi-employees?’ (1997) 13 Queensland University of Technology Law Journal 263-275 5 Stevens V Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 6 Stevens V Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 7 Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance (1968) 2 QB 497 8 De Plevitz, L. ‘Dependent contractors: can the test from Stevens v Brodribb protect workers 9 Carrigan, F. ‘A Blast From the Past: The Resurgence of Legal Formalism’ (2003) 27 (1) Melbourne University Law Review 186-199 10 De Plevitz, L. ‘Dependent contractors: can the test from Stevens v Brodribb protect workers who are quasi-employees?’ (1997) 13 Queensland University of Technology Law Journal 263-275 11 Australian Government, Facts sheets: Independent Contractors (2012) 12 Stevens V Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 13 Terry, A. and Ginugni D. Business and the law (5th ed 2009) 819- 8-20 14 Stevens V Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 15 Stuhmcke, A. Essential Tort Law (2nd ed 2001) 16 Franklin, G., Lilburne, R. ‘Joint Employment: Possible pitfalls with the use of labour hire in the resources industry’ (2005) Australian Mining and Petroleum Law Association Yearbook 275-299 17 Hollis V Vabu Pty Ltd (2001) 207 CLR 21 18 Stevens V Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 19 Franklin, G., Lilburne, R. ‘Joint Employment: Possible pitfalls with the use of labour  hire in the resources industry’ (2005) Australian Mining and Petroleum Law Association Yearbook 275-299 20 Stevens V Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 21 Jay, D. J. ‘Employees and Independent contractors, (1999) 73 Australian Law Journal Volume 30-34 22 De Plevitz, L. ‘Dependent contractors: can the test from Stevens v Brodribb protect workers who are quasi-employees?’ (1997) 13 Queensland University of Technology Law Journal 263-275 23 De Plevitz, L. ‘Dependent contractors: can the test from Stevens v Brodribb protect workers who are quasi-employees?’ (1997) 13 Queensland University of Technology Law Journal 263-275 24 Vabu Pty Ltd v Commissioner of Taxation (1996) 81 IR 150 25 Catanzanti, J. ‘Two limbed test distinguishes employees from contractors’ (2011) 49 (6) Law Society Journal 52-56 26 Stevens V Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 27 Carrigan, F. ‘A Blast From the Past: The Resurgence of Legal Formalism’ (2003) 27 (1) Melbourne University Law Review 186-199 28 Carrigan, F. ‘A Blast From the Past: The Resurgence of Legal Formalism’ (2003) 27 (1) Melbourne University Law Review 186-199 29 Catanzanti, J. ‘Two limbed test distinguishes employees from contractors’ (2011) 49 (6) Law Society Journal 52-56 30 Jackson & Wilson v Monadelphous Engineering Associates Pty Ltd (1997) 42 AILR 3-658 31 Translators Agency Pty Ltd v Commissioner of Taxation (2011) FCA 366 32 Stevens V Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Critical Essay of Mark Twain’s “The Damned Human Race”

Mark Twain, through a heavy dose of satire, irony, and a not-so-subtle attempt at the scientific method, provides readers with an effective, but flawed, argument as to why humans are the lowest of animals in his essay The Damned Human Race. While the essay is successful in providing facts that support Twain's claim of humans have descended from animals, and not the other way around, his bias and pessimism towards the human race in general strongly emanates from the essay, and he does not provide any opportunity for the reader to gather any evidence to the contrary of his beliefs, further limiting the legitimacy of his argument.Twain provides several sound reasons for stating that humans are worse than animals, all conveyed in an effective manner. He makes simple and definitive statements which are generally believed to be true of humans and not animals, and elaborates on these statements to pinpoint just what is wrong with human beings. For example, Twain states â€Å"Man is the onl y Patriot† (Twain). While most believe this to be a positive trait of humans, Twain immediately follows this statement by stating that humans are the only species to kill one another for their countries, writing: Man is the only Patriot.He sets himself apart in his own country, under his own flag, and sneers at the other nations, and keeps multitudinous uniformed assassins on hand at heavy expense to grab slices of other people’s countries, and keep them from grabbing slices of his. And in the intervals between campaigns he washes the blood off his hands and works for the universal brotherhood of man, with his mouth.(Twain) Twain goes to on to point out that humans are the only species that take slaves, are the only species to take more than they need, and the only species that claim religions, and provides specific examples of different types of animals behaving differently in this regard (Twain). His points are effective arguments because he uses facts and strong lang uage to solidify each point that he makes, and does so in a way that leaves little for argument.While the points that Mark Twain makes in his essay are for all intents and purposes true, and he conveys his beliefs in a very effective manner, the essay as a whole is not a successful argument, largely because he primarily uses only one of the three main means of persuasion. Twain provides facts throughout his essay that are generally hard to argue with in regards to the bad things that humans are capable of that animals are not, but does not use emotion to trigger a response from the reader.This could be by design because of his use of heavy satire, and the fact that this was written in a scientific manner rather, which generally are written to not contain the author's emotions. There is a clear lack of ethical appeal, or ethos, in Twain's essay because of the fact that he is writing this in an official scientific capacity, though he is clearly not a scientist. He also does not provid e information that may contradict his beliefs, which prohibits the reader from gathering opposing views of the story.Twain could have easily provided facts and arguments that point out the good things that human beings are capable of that animals are not, such as charities, social welfare programs, and medical care. With that said, The Damned Human Race is an essay containing heavy satire, something that Twain makes apparent almost immediately by stating â€Å"I have not guessed or speculated or conjectured, but have used what is commonly called the scientific method† (Twain).By the time that this essay was published in 1905, Twain was an established as a well-known author, known for his humor and famous works rather than scientific prowess. Also, at this point in his life, Twain was also very open about his overall disdain for the human race in general, perhaps due to circumstances regarding his family and life experiences, though it has been debated that Twain had no more o f a troubled life than most normal people (Byrne 19).All of these things prohibit his essay from being considered a legitimate argument, and points to it being more a rant by the author, however effective it may be. While Mark Twain provides many solid facts about the human race that are true and should be noted by the reader, the heavy doses of clear bias and satire overwhelm any legitimacy the essay could possibly carry. It is also difficult to ignore the cynicism throughout the piece, even in the last line when Twain is describing the human races declension from animals, stating, â€Å"Below us, nothing† (Twain).

Mule Killers Essay

â€Å"Mule Killers†, 2004 by Lydia Peele is the gripping story of love and the difficulties around it. It deals with issues such as fatherhood, friendship and marriage, including the conflicts surrounding these. Lydia Peele presents the story of a father telling his son, who is the narrator, an anecdote from his early life. The anecdote is an unhappy love story of the narrator’s father’s love life, and the relationship to the narrator’s grandfather. In a story with its roots in rural America, a much deeper story appears. This is a story of love, hope and the decisions of life. It is the story of the struggles and difficulties that are a part of life. The story, set in the countryside of the USA, presents a group of interesting characters with strong personalities, that each have their way of participating to the story. It is especially the father and the grandfather that have great significance to the Lydia Peele’s short story. The grandfather is presented as a man who is afraid of letting go of his usual surroundings and habits. This is seen on line 77-78, page 4. The grandfather tells the father: †You’re gonna see a future I can’t even stretch my mind around. Not any of it. I can’t even begin to imagine†. The fact that he has such difficulties imagining the future, points towards the conclusion that he would rather live in the present. He would rather live his old fashioned life and not worry about the future. The grandfather’s way of thinking seems old fashioned and generally conservative. When his son explains how he accidentally impregnated a young woman, without having any intentions of marrying her, the conservatism shines through. The grandfather replies on line 86-87, page 4â€Å"This is wrong†¦You got no choice but to take care of it. This is wrong†. The two different worlds of son and father clash, and the true differences are shown. Even though father and son look upon the world with different points of view, the son still has massive respect for his old man. His father is actually his role model, which is also shown throughout the text: â€Å"My father has his father’s height, and he carries it apologetically†(line 7, page 2). The word â€Å"apolegitacally† points towards the fact that the son is aware of the superiority that his father possesses. The son has difficulties living up to his father and his way of life. He wants to possess his father’s ability to show no emotion and how to be â€Å"a real man†. He hides the feelings that strong men traditionally do not feel: He is trying hard to keep certain things inside his chest: things like fear, sadness, and uncertainty†. (line 7-9, page2). This could very likely be a typical trend of the time and environment that the story takes place in. The final main character in the anecdote is the narrator, who is the son to the young man with love problems in the short story. The son is a first person narrator, so the point of view is limited to him. His main function is to tell the story. An actual presentation of his personality is not included. As stated earlier, the setting has great importance for the personalities of the main characters in the story. The setting is in Nashville, just before industrialization modernized the farming life with tractors. The father in the story carries typical traits of a farmer dedicated to old norms, such as no illegitimate children. A possible explanation of this could be that the state of Tennessee is located in the Bible belt, which is known as a highly religious area. There are also other elements of the setting that point out the religious beliefs that the two main characters have: â€Å"At church she always sits with the same girl† (line 14), page 2. The use of the adverb â€Å"always† proves that the son and father attend church on a regular basis. Whilst reading â€Å"Mule Killers† several obvious themes jump out on the page. The main theme seen in the short story is the generational difference between father and son. As stated earlier, the father tries to hold on to his old norms and principals, whereas the son believes in a modern way of life. The difference is illustrated when the son decides not to marry the girl whom he impregnated. The father regards this as uncaring and irresponsible. The views of the son seem to relate to the modern world of today. It becomes more and more ordinary to have a baby outside of marriage without the intentions of helping the mother nurture the child. A specific example is seen in MTV’s â€Å"Teenage Mom† television program where several teenage girls give birth. The program also shows the way the father typically tends to leave the mother after birth. If this had happened in the time where the â€Å"Mule Killers† takes place or prior to it, it would have had major consequences for the father of the child. One can therefore conclude that the times constantly change and some people will always be â€Å"caught† in the past, which in this case is the father. This could also be a possible message of the story. The message could be that norms change throughout history, but not all people follow the change. Regardless of this, it is still important to respect the people who have a hard time dealing with the future. Lydia Peele manages to take the reader on a journey of love and the relationship between the narrator’s father and grandfather. She also shows the reader the different norms and beliefs that the two generations have, and the clashes than can rise to the surface due to this. She also presents the stereotypical religious middle class farmer at this time. This is done by using a small farmer town located in the Bible belt as a setting. The short story is a touching and mind bobbling tale portraying the relationship between two sets of father and son. It tells the tale of the relationship between the narrator’s father and grandfather. The relationship between the narrator’s father and grandfather is presented as a relationship built on a general respect for the elderly. The narrator’s father respects the grandfather since he listens to what he says, and obeys the rules that the grandfather upholds. It is also the tale of how the setting, which is the farmer community in the US during the industrialization, has a major importance for the outcome of the story. The highly religious setting is represented in the Narrator’s grandfather’s point of view regarding childbirth. All in all the short story shows the difficulties surrounding love and how to deal with it in a sensible matter.

Correctional Institution , Criminology major Essay - 2

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Wk2 Progress a Assign. INTL304 Assignment Example | Topics and Well Written Essays - 500 words

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Non require Essay Example | Topics and Well Written Essays - 750 words

Non require - Essay Example inning as a renegade sect of Judaism that was banned by the Roman government (largely because it did not allow for the kind of religious pluralism that the Roman state was based on), to a tolerated, legal but minority religion (under the reign of Constantine),1 very briefly back to being an illegal religion (under Julian the Apostate) before finally becoming the official religion of the Roman state.2 Along with these changes in official status came changes in church structure – early Christian churches likely operated on a very small scale, with priests and bishops (where they existed) mainly serving the role of teachers and communicators, without actually wielding much power.3 As Christianity became more officially recognized, it became a more strongly organized church in itself, with greater emphasis put on hierarchy and the power and authority of church elders and leaders, and less emphasis on the importance of individual believers. Through these broad changes many disagree ments emerged: questions about who were church leaders, how their power was exercised, who got to set doctrinal legitimacy, and theological questions such as the nature of the divine. Through the broad history of Christianity, it becomes apparent that more and more of these conflicts were solved by the creation of a strict hierarchy, which put older, educated men at the head, forming church policy, while diminishing the importance and voice of anyone else. The role of women in the Church was an early issue that demonstrates the shift of power from ordinary believers into the hands of the same kind of people that ruled Roman society, older, patriarchal men. Women played an incredibly important role in early Christianity – Mary Magdalene and Mary, mother of Jesus were both incredibly important members of the early church. Likewise, Paul had many â€Å"coworkers† that demonstrate that women were indeed an important part of the early church.4 Women may have even had a role in

Divorce and the Coase Theorem Essay Example | Topics and Well Written Essays - 250 words

Divorce and the Coase Theorem - Essay Example I would not advocate for a change in the current law. This is for the rationale that alternative arrangement divorce would be time consuming and would even cause or start hateful issues to develop during the arrangements and can ruin friendships. It is also confident for spouses to formulate one of the reasons for divorce essential in ruling. No-fault divorce, on the other hand, accepted that a marriage collapse might not be the cause of one spouses misbehavior. They cut down the divorce procedure and made it more reliable countrywide, hence obviating the necessitaty for distressed couples to cross position lines in look for of simpler break up laws. Ronald Coase is for no fault divorce and he said that, if the amount of a couple’s mesh gains from matrimony, as seen by the couple, is negative, then no conformity on distributing the gains from the marriage can keep them as one. Despite of its merits it is not the best way to divorce because it can cover up serious matrimonial misbehavior and I don’t advocate for