ABC Workers Agency (the Agency) assigns Pong to work as a pest control specialist at Ramworth Jockey Club (the Club). The arrangement between the Agency and the Club stipulates that Pong is an independent contractor. All the paper work relating to this arrangement is signed by Pong using his business name “Pong Pest Control Services” on the Agency’s letterhead. Pong is required to supply the Australian Business Number to both the Club and the Agency.
Pong works at the Club’s premises and is also required to work at the Club’s affiliated associations as and when the Club directs him to do so from time to time. The associations pay the Club for Pong’s work. As part of the arrangement Pong’s wages are paid on an hourly basis by the Club to the Agency fortnightly on receiving a tax invoice from Pong Pest Control Services. Pong is provided with the Club’s uniform. The Club allows Pong to use its vehicle during office hours. The Club pays for the vehicle’s operational expenses. The vehicle is however registered in Pong’s name.
Pong is allowed to delegate his work to another specialist of his choice and is permitted to work for others provided the Club consents.
As a pest control specialist Pong has absolute discretion over the manner of performance of the work. All equipment and chemicals for the performance of the work are purchased by the Agency and subsequently reimbursed by the Club. Although Pong is required to obtain his own public liability insurance, the Club pays for this.
While working with the Club over a period of two years on a regular basis, Pong commences business of his own providing similar services for other customers. Pong spreads negative publicity to the members of the Club’s affiliated associations by falsely stating that the Club requires him to use inferior pest control chemicals when performing work at their premises. As a result a number of these associations decide to engage Pong directly.
On one occasion Gordon, a member of the Club, is enjoying a drink at the Club’s premises. Pong tells Gordon to leave the premises so that Pong can complete the pest control work before closing time. Gordon refuses and Pong verbally abuses and then physically assaults him. Gordon suffers a fractured jaw. Due to this incident, the Club wants to dismiss Pong.
Discuss, based on case authorities, whether Pong is an independent contractor, an employee of the Club or the Agency. Also, advise the parties concerning the issue on liability as Gordon intends to commence legal action in relation to his injuries.
(Word limit 1000 words).
Advice the parties as to their rights, obligations, any breach of implied duties, and relevant remedies (if any) both at common law and under the Fair Work Act 2009 (Cth).
(Word limit 1000 words).