essence of civil law

The essence of civil law is to regulate the relationship between persons. One of the
fundamental relationships in the human resource sphere is the employment relationship. To
distinguish the forms of relationship that exist in human resource, the following are the laws and
regulations that govern the relationship:

 Law of contract- it expressly defines and extrapolates on the role, relationship of
the employees in the contract.;
 The Fair Work Act- this law governs the employment of the majority of
employees working in Australia. There are other federal and state laws that
supplement this law.
The purpose of these laws and international regulations is to regulate the relationship
between the employer and the employee. The purpose is to promote healthy working
environment and a stable relationship that will afford the parties the opportunity to grow. This
paper shall analyze the causes of conflicts within employment. The first case is the potential
conflict between Total Tutelage Pty Ltd and a tutor, while the second case relates to an
employment conflict between Virat and Unicorn Technologies.

Question 1

Summary of the Facts
Total Tutelage Pty Ltd is a company that is in the business of linking tutors to learners.
The company matches tutors with students who need a tutor. The student pays fees from which
the tutor is paid after every six lessons by Total Tutelage Pty, less the service charge that Total
Tutelage charges. The amount that the tutor is paid is tax inclusive. My sister joined the Total
Tutelage platform as a mathematics tutor 18 months ago. Last year, her ratings dropped due to
study pressure. Eventually, Total Tutelage terminated her services without any notice and she
only received $15 an hour for her tutoring. Now, she has seen a copy of Fair Work Information
Sheet and wonders if its provisions apply to her case.

Issues

The main issue in this case, is whether the information provided under the Fair Work
Information Statement applies to my sister’s working relationship with Total Tutelage Pty Ltd.
Wage
To be able to answer the question of whether the Fair Work Information Statement applied my
sister, it will be necessary to address the issue of employment relationship. In addressing this
relationship, it will be able to display the rights and duties that my sister had while interacting
with Total Tutelage Pty Ltd.

Rule

The Fair Work Act, 2009 applies to employment relationships. However, section 357 of
the Act prohibits sham employment arrangement, protects even those in contractor relationships.
However, if the relationship between the two persons is that of a contractor, then the operating
law in this field is the independent contractor's Act, 2006. If the contents that my sister saw on
my Fair Work Information Worksheet does not cover contractors, and we find that she is a
contractor, then the same will not be applicable in her case. Therefore, to arrive at a decision to a
ascertain whether the said issues in the Fair Work information sheet applies to my sister, we need
to establish the legal nature of the relationship between her and Total Tutelage Pty Ltd.
There are two likely situations in the case of my sister. She is either an employee at Total
Tutelage Pty, or she is a contract. An employment relationship gives rise to a contract of service.
Under this kind of relationship, an employer agrees to pay the employee monthly salary or
wages. In exchange, the employee agrees to render services to the employer at his business in the
form of personal labor (Markey & McIvor, 2018). The main factor of the employment
relationship is the degree of control. In that if the employer controls much of what is done by the
employee then the employment relationship will be said to have existed. On the other hand, a
contractual relationship arises where an individual or individuals are considered by the
organization to undertake a task on their behalf. The distinguishing factor here is that the
employer does not control much or at all the work or scope of work of the contractor.

In Australia, courts have recognized that in an employment relationship, the employer
must be subservient to the employer, and the employees must act according to the employer’s
instructions. However, it becomes hard to distinguish between an employee and an independent
contractor in some cases. The distinction is not defined in law, but it is based on legal tests in the
common law. One of the tests is the multifactor test (de Flamingh & Bell, 2020). Here, the
question must be whose total business the employee was working. To answer the Total
multifactorial test, the indicia of the employment relationship and the indicia of business must be
analyzed.
In the end, several factors can be used to distinguish the relationship. These include the
question as to the level of control, the mode of remuneration, and the issue of taxation. If a
person is paid monthly instead of a one-time payment, then they are employees. Independent
contractors are also a bit more independent than employees in terms of control. Concerning tax,
sections 85 of the Income Tax Assessment Act 1997 (Cth) provides that an employee is paid for
tax by the employer, and the employer remits the tax to the government. Schedule 1 of
the Taxation Administration Act 1953 (Cth) requires an employer to remit the taxes belonging to
their employees.  However, an independent contractor is paid his gross dues, and he is
responsible for paying their taxes.

Application
In the present case, Total Tutelage advertises their services. They link the tutor to the
learner. However, they are paid the fees, and they pay the tutor after every six lessons. The tutor
is paid without tax being deducted. The company even deducts a service charge from the tutor’s
fee. Taking into consideration the multifactor test and the degree of control, it is apparent that my
sister was working as an independent contractor of Total Tutelage.

Conclusion

Having established that the relationship between my sister and Total Tutelage is that of
an independent contractor. The provisions of Fair Work Information Sheet are not applicable to
my sister. The act only applies to an employment relationship, which in this case is lacking.

Question 2

Summary of Facts

Virat Started working at Unicorn technologies in January 2015, as a junior software
engineer. His contract of employment provides a generic job description. Earlier this year, the
company decided to change the programming language that was to be used by the developers.
Virat is hugely disappointed with this news as he considers himself an expert in the current
programming language. He refuses to enroll in the training that the company notified its
employees to enroll in. Additionally, he complains bitterly on Twitter, and he writes negative
comments about Unicorn Technologies, despite the company having a social media use policy
for its employees. He states that the company is ‘the worst tech company in the world.’

Issues
In the present case, the issues are as follows;
i. Whether Virat is legally required to sign up for the training
ii. Whether Virat should desist from making disparaging Twitter remarks about the
company.

The Rule
The first issue in the case of Virat is whether he is legally required to attend the training.
According to section 7 of the Corporations Act, 2001, an employee owes the duty of loyalty to
his employer. This duty is both implied and expressly stated in the contract. Where the duty to

loyalty is not explicitly stated, it is implied. Part of the duty to loyalty is to respect and adhere to
the rules and regulations at the employer’s workplace.
The duty to loyalty also requires the employees to act in the best interest of their
employer. In Schindler’s Lifts v Debelak (1989), it was held that employee’s duty to loyalty
includes obedience and fulfillment of the obligations under the contract. The companies’ Act
also prohibits employees from selfishly benefit from their position at the employer’s company.
The most important duty of the employee is to serve the interests of the employer, according to
the contract between the two, without getting greedy.
Section 45 of the Fair Work Act, 2009 requires an employer to provide an ample working
environment. The compensation that an employee gets should be commensurate to the work
done he or she does. A contract must be drawn to safeguard the interests of both the employer
and the employees. Once the employer fulfills their duties and obligations under the agreement,
the employee must also act in the best interest of the employer and also act in good faith
(Golding, 2020).
Virat is subject to the provisions of the Enterprise Agreement. Clause 31 of the Enterprise
agreement stipulates the various conditions that the company should meet if it desires to
implement a “major change.” Sub-clause (b) outlines that a “major change” includes the skills
required of the employees. A change of a programming language is a change of skills required of
Virat, a programmer. To successfully implement a major change, clause 31 of the Enterprise
Agreement requires the company to consult with the employees and their representatives. In
Virat’s case, the company consulted with his representative, who agreed to the change. Having
followed the provisions of the Enterprise Agreement, the company rightly introduced the change,
and Virat ought to adhere to it.

On the second issue, Virat is prohibited from bringing disrepute to his employer.
According to Australian contract law, this is an implied term of the employment contract. An
employee is prohibited from damaging the reputation of their employers while still under their
contract. Section 7, subsection 3 of the Corporations Act 2001 prohibits employees from causing
shame to their company. Further, Virat is an employee of Unicorn Technologies, therefore he
should restrain himself from publishing defaming information. Part of his obligations as an
employee of the said company is to follow the established rules and regulations. The company
policy of Unicorn Technologies prohibits employees from causing disrepute to the company
through the use of social media.
The relationship between employer and employees through company policies is regulated
by section 29 of the Fair Work Act 2009. Section 43 (1)(b) provides that enterprise agreements
are a part of the contract of employment. Clause 7 of the Enterprise agreement requires all
employees to adhere to the company policies and required to obey the provisions of this
company policy. Section 50 of the Fair Work Act 2009 prohibits employees from disobeying the
provisions of Enterprise Agreements. If he continues to cause disrepute to his employer, Virat be
liable for violating section 50 of the Fair Work Act thereby he can be fined by the Australian
Securities and Investment Commission (ASIC) (Ramsay & Saunders, 2019). Other penalties that
the commission may deem fit may be applicable.
Application
Virat is an employee of the company, his status as an employee of the company is
determined by the employer-employee relationship that exists. The relationship implies to the
enterprise agreement that was entered between the company and Virat. In this case, the company

deemed it fit to change the programming language used by the developers. In order to fulfill the
obligations of the company set out in the enterprise agreement, the company met and discussed
the new changes with the employee representatives. The company also made a case for why the
change was required. Finally, the company promised to offer training for the new programming
language to enable the employees to adjust.
The decision by the company is a purely business decision, and Virat has no right to force
the company to stick to one practice just because he is an expert in it. Virat has to serve the
company’s interest and not his own. Virat’s employer approached the employee representative of
Virat, and they agreed. To that end, and given the contract between Virat and the company, Virat
is under contractual obligation to attend the training.
The second issue is whether Virat should desist from posting negative comments about
the company on twitter. Virat is an employee of the company, thereby he is bound by the social
media policy that is set out by the company. He owes the company a duty of loyalty and
reputation, therefore he should not engage in making posts that would otherwise taint the image
and name of the company. He is therefore bound by the law to desist from his negative twitter
comments about the company.
Conclusion
Based on foregoing analysis, it is concluded that the Unicorn Technologies followed the
law in implementing the changes it implemented. Virat’s reaction on the other hand was illegal,
and he is bound by the law to respect the decisions made by his employer. Consequently, it is
concluded that Virat is legally required to sign up for the training. Additionally, Virat should
desist from making disparaging Twitter remarks about the company as this is contrary to the
company’s interest and provisions of the Australian law. Failure to comply can lead to Virat

being found culpable of violating the Fair Work Act and can be held liable by the Australian
Securities and Investment Commission (ASIC) for penalties.