Question

Please provide the proper legal “Primary Citation” for determining whether a worker is an independent contractor.

Answer 1

1)First of all, we need to identify whether the person is an employee or just a contract worker which is also known as independent contractor.

Employee and independent contractor may do the same work but they both are different in the terms of employment law.

2.a)Meaning of employee:An employee is a person who performs the work for an employer under a verbal or written understanding where the employer gives direction or guidance on what has suppose to be done according to the employee’s job designation.

b)Meaing of independent contractor:An independent contractor however, is a person who is doing an independent trade, business, or profession in which they offer their services to the public. The person who contracts or hire them for their services must have the right to control or direct only the result of the work, not the ways and methods of getting the result.

3)The employers only liable for the wrongdoings of their employees. Independent contractors who did any mistake only liable for their own, it does not include the employer.

4)Therefore, first of all, we need to find out whether the person is an employee or an independent contractor. In order to identify that, there are 3TESTS to find out whether it is an employee or an independent contractor. The three tests are

the control test,

the integration test and finally,

the multiple test.

CONTROL TEST;The control test is widely known as the traditional test. This is also an earliest test. This test is used to identify whether the master who is the employer, can tell the servant who is the employee, not only to tell what to do but how to do the job. If the conclusion is yes, then the servant is an employee. If the conclusion is no, then the servant is an independent contractor.

INTEGRATION TEST:The integration test which also known as the organization test, was brought in due to the control test was not suitable for the employees who have high skills. The integration test is done to find out whether, if a person who is doing the work and the work he does is integral or component to the business, then he is an employee. If the work he does is just an accessory to the business or the organization, then he is an independent contractor.

MULTIPLE TEST:The multiple test is a combination of control and integration test. There are several ways in this test to find out whether the person is an employee or an independent contractor.

Few examples:First of all, if the remuneration of the worker is paid monthly, then he is an employee. If it is paid hourly, then he is an independent contractor.

Secondly, if the worker is a member of the company’s pension scheme, then he is an employee, if not he is an independent contractor.

Thirdly, if the worker has all the benefits such as annual leave medical leave, hospitalization, paid holidays and so on, then he is an employee, if not, he is an independent contractor.

Fourthly, if the worker has prohibition from working for a third party or a rival company, then he is an employee, if not, he is an independent contractor. If the worker gets a uniform to wear, and he is an employee, if not, he is an independent contractor.

PRACTICAL CASE STUDY:In the case of Ready Mixed v JSW , the worker of this company which is a lorry driver, have to buy a lorry and fit it with a cement mixer. The company will provide the necessary loans to the worker to buy the lorry. However, the lorry must be in the company’s logo and colour, the driver must wear company’s uniform, the driver have to spend their own for maintenance, road tax and insurance and also they cannot work for anyone else. By using the multiple test, this shows that the lorry driver are the employee of the company.

By using the tests above, we can find out whether the person is an employee or an independent contractor to the company.