|Issue No 106||10 August 2001|
High Court: Courier Was Employee
The High Court has extended the definition of 'employee' in a landmark decision overturning the NSW Court of Appeal's Vabu ruling that a bicycle courier was a contractor.
The Labor Council has welcomed the decision for placing a "legal limit" around structuring employees as contractors.
The court this week ruled that a courier company was liable for injuries its bicycle courier inflicted on a pedestrian, because the courier was an employee rather than an independent contractor.
Workplace Express reports that the majority - Chief Justice Murray Gleeson and Justices Mary Gaudron, Bill Gummow, Michael Kirby and Kenneth Hayne - found that on the basis of the control test and other indicators, the bicycle couriers were clearly employees.
The High Court majority said the Court of Appeal had made "too much of the circumstances that the bicycle couriers owned their own bicycles, bore the expenses of running them and supplied many of their own accessories". "
"Viewed as a practical matter, the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations", the bench said.
The couriers had to arrive at work by 9am or go to the back of the queue for work, they couldn't refuse work, they were required to wear uniforms bearing Vabu's logo, they had no chance to negotiate their remuneration (rates hadn't changed between 1994 and 1998, according to evidence) and had restrictions on when they could take annual leave.
Vabu also had substantial scope to exercise control, because it had control over allocation and direction of deliveries. Couriers had to deliver goods in the manner specified by Vabu and the company's business involved the "marshalling and direction of labour of the couriers, whose efforts comprised the very essence of the public manifestation of Vabu's business".
"It would be unrealistic to describe the couriers other than as employees", the majority concluded.
Labor Council secretary John Robertson says the High Court decision sends the message to employers that they just can't call their workers 'contractors' and strip[ of their legal entitlements.
"Employees rights have been built up over 100 years of collective struggle," Robertson says. "The High Court has recognised that these right can not be easily wiped out just be changing the formal title of a worker."
Interview: In Exile
Burmese's government in exile's Minister for Justice U Thein Oo talks about a struggle for democracy that has become a test of international solidarity.
Politics: A National Disgrace
Labor's IR spokesman Arch Bevis gives his take on the workers entitlements issue and its mismanagement by the Howard Government.
E-Change: 2.2 The Information Organisation
Peter Lewis and Michael Gadiel look at how network technologies will change the way organizations operate in the Information Age.
Media: The Fine Print
Mark Hebblewhite looks at how the major dailies handled the Tri-Star dispute and finds that the story really does depend on the telling.
Human Rights: A People Besieged
Labor MLC Janelle Saffin, an active supporter of the pro-Democracy movement in Burma, sets out the issues behind the ILO sanctions.
International: Postcard From Brazil
The CFMEU’s Phil Davey reports on a rural movement that puts our National Farmers Federation to shame.
History: Indonesia Calling
They needed no resolutions. Soldiers and workers who did not know one another moved together, the black ban started to reach out across the harbour from the noisy, smoke-filled room.
Solidarity: On the Frontline
Australian trade unionists are providing practical help for the Burmese through projects funded by APHEDA-Union Aid Abroad.
Satire: Skase 'Too Ill' to Fly Home for Burial
Spanish authorities have deemed Christopher Skase too ill to return to Australia for his own funeral.
Review: Living Silence
In these extracts from her new book, Christina Fink goes inside Burma to find a world where military repression is slowly crushing a people.
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Last Modified: 15 Nov 2005