Being an employee or an independent contractor

Other methods of determining whether a person is an employee or an independent worker have frequently been ineffective. Other variables that the control mechanism does not take into account are included in the multi-factor tests. Moss, an IT professional employed by CAJIOP Pty Ltd in Australia, was given a contract outlining the terms and conditions. (Creighton, Breen, and Stewart, 2005). In order to determine whether a person is an employee or an independent contractor of a specific business, the method considers a number of indicators. The research focuses on the variables that a multi-factor test takes into account. Secondly, it will look at the terms of the contract given by the CAJIOP Pty

Ltd to Moss when the later joined the company. In so doing, a comparison will be made between the factors and terms of the contracts before deciding whether Moss is an independent contractor or an employee of the firm.

The item of the multi-factor test is the control that the management has over Moss. The factor also extends to whether Moss is in control of the operations of the business. According to the test, an employee is someone who can make decisions on his own to stimulate the progress of the company (Hollifield, James, Martin, and Orrenius, 2014). Additionally, if the management always controls the person’s activities, then he falls into the category of an employee. The terms included in the document indicates that his manager controls moss activities. The terms state that he must follow all the reasonable directions and legal procedures given to him by the IT administrator.

Another important part is that the manager is not an IT expert like Moss but the latter must follow orders from the latter. Also, Moss complains that the meetings he is forced to attend weekly have nothing to do with information technology and, thus, he considers it as a waste of time. Despite his genuine complaints, the manager insisted that it is mandatory for Moss to attend meetings when invited. Thus, it’s clear that Moss does not have the control over what he should do in the company. Instructions are given and must adhere to that as required by the management (Bamber, Greg, and Lansbury, 1998). Secondly, he cannot delegate his work to someone else in the company without the permission of the IT manager.

Superannuation and payment of tax are factors that determine whether one is an independent contractor or employee of the enterprise. The superannuation deals with payments of an employee to a particular pension. Thus, an employee is someone whom the company cuts his salary and pays an appropriate pension on behalf of the worker. Nevertheless, the contract that Moss signed with CAJIOP Pty Ltd stipulates that he is supposed to pay the pension via his means. Thus, the management does not dictate how and where Moss should put his pension funds (Doyle, Carolyn, and Bagaric, 2005). More so, Moss is paid after every fortnight by the CAJIOP Pty Ltd and advised to use the payments to settle his taxes. In most companies, the employer cuts the employee’s salary to pay the taxman.

The case Moss versus CAJIOP Pty Ltd is different because the latter distanced her with any form of tax payment or superannuation. Location of the work is the third item used to distinguish an employee from an independent contractor. For instance, employees of the company work within the premises of the institution. According to the Australian Employment laws, a person who is designated to work on the facilities of the company is an employee. The contractors are free to move around since their job specification falls under the contract of services. The Moss case is different because he has to report work day like any other employee. More so, Moss has an office within the institution so that his boss can control activities. In case of absence, Moss must have permission from his seniors. Also, the IT manager cannot allow many cases of absence because he is not an expert in that field. Moss must be within the institution to run the affairs that require computer expertise. The fourth factor is the number of working hours that Moss spends. The terms of the contract state that Moss must report at 9 am in the morning and leave at 5 p.m. The strict timeline that has been put into place falls under the employment contract. Their employer does not dictate most independent contractors’ working hours.

The independent contractors are given tasks which they can complete at their own time. Such contractors, nevertheless, like other employees must complete their assignments on time. The fifth issue that determines whether a person is an employee or independent contractor is the ability to delegate their duties. The delegation, in this case, means that a worker can assign another person to complete his or her job as long as they are experts (Zhu, et al, 2004: 16-26). Thus, if Moss is an independent contractor, he must be free to delegate another particular person job and supervise it to ensure it is completed. Independent contractors can easily assign someone their duties because they are not limited to a specific location of work. Such a case would have been if Moss was working at home or a restaurant without close supervision of his manager. In that case, Moss would share the workload with a friend or colleague without asking for permission from the manager. Nevertheless, due to limited space and strict observation by the manager Moss cannot delegate duties.

As a result, his position can be described as that of an employee and not an independent contractor (Bowen, et al, 1987: 791-809). Ownership of the materials and equipment used by a worker are also used to determine whether he or she is an employee or independent contractor. Independent contractors use their equipment to do the job assigned by the company. Thus, the institution does not need to invest much on the computers that Moss is using if he is not an employee. In that case, Moss would use his personal computer at home or any other place to complete the assignments. However, the CAJIOP Pty Ltd has provided Moss with computers and an office where he can operate from in the company. Deciding on whether Moss was an independent contractor or an employee will also rely on the factor of ownership of tools of work. The sixth item under the multi-factor test is whether the employees have a uniform. The factor is critical, but the determination of the case should also take into account the fact that not all companies wear uniforms.

Most companies allow their employees to wear clothes of their choice in Australia. The factor of uniforms can, however, be ignored if CAJIOP Pty Ltd has employees who wear uniforms. The Australian Employment Law states that in a firm that workers wear uniforms then clothing becomes an important factor in distinguishing employees of the company and independent contractors. A section of laborers in a certain industry who have uniforms is categorized as employees while any other person in everyday clothes is an independent contractor (Martin, et al., 2015: 103-114). For instance, a manufacturing company may require its members to wear protective gear to prevent injuries. Most employees work on the premises and are thus required to be in the said uniforms. Independent contractors might not be required to put on uniforms since they spend less time within the premises of the company.

Therefore, a multi-factor test uses some items to decide whether a particular person is an employee or an independent contractor. The six things looked at in the case of Moss v CAJIOP Pty Ltd reduces the probability of making a wrong decision. Several factors provide better evidence as to why a judge made a particular determination. Unlike when the only factor like control was used to make a decision, the multi-factor test takes into account other items. Thus, it is considered the best test that can be used to distinguish an independent contractor and an employee. The Moss contract document indicates that the company contracted him to be an independent contractor. On the contrary, factors that have been looked at in the multi-factor test suggest otherwise. For example, lack of control and ability to delegate duties indicate that Moss is an employee of the company who must follow laid down rules and regulations. Moss must strictly follow what the IT manager asks him to do for the enterprise. The working hours also confirms that Moss is an employee of the company. Thus, from the evidence provided in this case analysis Moss is an employee of the CAJIOP Pty Ltd.

Question 2

Moss has been working from the offices of the CAJIOP Pty Ltd since he signed his first contract with the company. The equipment was provided, and he was assigned working hours by the management of the enterprise. Recently, his IT manager wants him to sign another contract as an independent contractor. According to his manager, Moss will have the opportunity to work from home under new terms. His salary will also be better than the one he receives under the first contract (Whelan, James, and Lyons, 2005: 596-610). However, Moss sees the offer as a plan by the manager to participate in a sham contracting. Sham contracting does not follow the laws of employment because the manager engages in acts that make the contract as personal businesses. Thus, to distinguish whether the new contract will be a case of sham contracting the study looked as utilitarianism as an ethical theory governing the employment laws. In this case, the analysis focuses on the possible consequences of the new work contact between the IT manager and Moss.

The motives or intrinsic nature of the IT manager are not taken into consideration. The manager might be having other motives, but utilitarianism will only focus on the aftermath of the contract (Beauchamp, et al., 2004). Firstly, Moss has been complaining of the meetings that he is forced to attend weekly because he considers them a waste of time. In that case, the new contract will offer Moss an opportunity not to attend the weekly meetings. In so doing, and based on the utilitarianism ethical theory the new contract is better than the current one. The consequences of signing the contract have a positive impact on how Moss can concentrate on matters of information technology rather than attending meetings. The second factor to consider is consequences of the new contract to Moss monthly salary.

The IT manager has promised that the new terms would be better than the current ones. I believe Moss desires to have improved terms of the contract. Thus, the signing of the new contract will allow him to spend less in transport and earn more as promised by the IT manager. The working hours under the new contract will also be flexible because no one will demand that he must be in the office at 9 am and leave at 5 pm. Also, working at home will enable Moss to do other tasks at the same time since he can complete the workloads at night. Taking into consideration these repercussions of signing the new contract, Moss should not be worried that the IT manager wants to engage in a sham contract.

The documents of the agreement can be used in a court of law in case Moss realizes that the manager had intrinsic motives. Moss should weigh the options at hand and make the right decision. The principles of utilitarianism that Moss should look at in this case are whether the action will promote happiness but not whether the manager has some ill motives (Michalos, Alex, 2017). Moreover, in the event of any doubts, Moss should leave a message to the management of the company informing them that he has signed another contract. In conclusion, the action of signing a new contract will be of benefit to Moss based on utilitarianism ethical theory.

Bibliography

Bamber, Greg, and Russell D. Lansbury. International and comparative employment relations: a study of industrialised market economies. Sage Publications Ltd, 1998.

Beauchamp, Tom L., Norman E. Bowie, and Denis Gordon Arnold, eds. “Ethical theory and business.” (2004).

Bowen, Harry P., Edward E. Leamer, and Leo Sveikauskas. “Multicountry, multifactor tests of the factor abundance theory.” The American Economic Review (1987): 791-809.

Creighton, William Breen, and Andrew Stewart. Labour law. Sydney: Federation Press, 2005.

Doyle, Carolyn, and Mirko Bagaric. Privacy law in Australia. Federation Press, 2005.

Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global perspective. Stanford University Press, 2014.

Martin, Andrew J., Kai Yu, Brad Papworth, Paul Ginns, and Rebecca J. Collie. “Motivation and engagement in the United States, Canada, United Kingdom, Australia, and China: Testing a multi-dimensional framework.” Journal of Psychoeducational Assessment 33, no. 2 (2015): 103-114.

Michalos, Alex C. “Multiple discrepancies theory (MDT).” In Development of Quality of Life Theory and Its Instruments, pp. 39-95. Springer International Publishing, 2017.

Whelan, James, and Kristen Lyons. “Community engagement or community action: choosing not to play the game.” Environmental politics 14, no. 5 (2005): 596-610.

Zhu, Weichun, Douglas R. May, and Bruce J. Avolio. “The impact of ethical leadership behavior on employee outcomes: The roles of psychological empowerment and authenticity.” Journal of Leadership & Organizational Studies 11, no. 1 (2004): 16-26.