Identify and state the rules
This step may also refer to Research or Resources.
1. Identify the legal principles, and from there, the legal rules that apply. Legal rules consist of the primary sources of law -- legislation and/or case law. If you are unfamiliar with the area of law involved, these can be identified using secondary sources such as legal dictionaries, legal encyclopedias, textbooks, and legal commentaries relevant to specific areas of law (eg contract, criminal law, company law, etc). See the Legal Commentaries or Areas of Law Library guides.
Example:
Using the example of our issue: "Is Matthew an employee or an independent contractor?" we can turn to the Encyclopaedic Australian Legal Dictionary (LexisNexis) as a first step to help us understand the relevant legal principle and authorities. This identifies the multi-factor test as established by the High Court of Australia in Stevens v Brobribb.|
Encyclopaedic Australian Legal Dictionary Employment A person who engages another to work under a contract of employment. The distinction between an employment relationship and a contractor relationship is made according to a multi-factor test, including an assessment of the degree of control of a putative employee's work. In principle, the employer exercises control over how the work is performed, although the extent of control may be limited: Stevens v Brodribb Sawmilling Co Pty Ltd(1986) 160 CLR 16; 63 ALR 513. A statute also may define ‘employer’ for the purposes of that statute. For example, ‘employer’ means a person, whether an individual, a corporate or unincorporated body, or the State, who employs an employee; it does not matter that the person does so on behalf of some other person: (NSW) Industrial Relations Act 1996 s 4. In South Australia, in relation to an unpaid worker, ‘employer’ means an organisation for which the unpaid worker performs services: (SA) Equal Opportunity Act 1984 s 5. Legislation may designate a person of a certain description to be the employer of a person carrying out specified work: for example, (NSW) Industrial Relations Act 1996 s 5(3), read with (NSW) Industrial Relations Act 1996 Sch 1Sch 1. The (CTH) Fair Work Act 2009 does not contain a specific definition of ‘employer’, but instead refers to the ‘ordinary meaning’ of the term ‘mployer’(for example, (CTH) Fair Work Act 2009 s 11s 11) and at times adopts an extended meaning of 'employer’ (for example, (CTH) Fair Work Act 2009 s 30Es 30E); however, the Act does contain a specific definition of ‘ustralian-based employer’ (CTH) Fair Work Act 2009 s 35(1),(3)s 35(1),(3)) and 'national system employer’ ((CTH) Fair Work Act 2009 s 14s 14).
See also contract of employment; employee; employer; employer's duty of care; multi-factor test; national system employer; proprietor; vicarious liability. |
2. State the legal rules applied to the issue. The rule should be stated as a general principle, and not a conclusion to the particular case being analysed.
Example:
The current common law test for determining whether a worker is an employee or an independent contractor is the multi-factor test, confirmed by Stevens v Brodribb.
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