All Employees are Workers But not All Workers are Employees - Coursework Example

Topic: In Broadbent v. Crisp (1974) it was d, "All employees are workers but not all workers are employees". Introduction This paper aims to critically evaluate the statement: “All employees are workers but not all workers are employees". Cases will be cited including that of Broadcasting Entertainment Cinematograph and Theatre Union (BECTU) vs. The British Broadcasting Corporation (BBC) and Broadbent v. Crisp (1974). The first part will comment on the legal consequences and the second part will refer to the tests of the proposition. The result of evaluation will result into drawing the line between the concepts of employees and workers. It is common knowledge that not all employees enjoy the same rights. This is illustrated by the fact that managers are employees but they don’t have what the rank and file employees have. But here, we are posed with the question that they are workers who are not employees. Who are these workers is the subject of search of this paper. Any conclusion that will be arrived at will set the path clearer for decision makers like management and government bureaucrats to respect the boundary created by the interpretation of labour laws. Legal consequence The statement would mean that workers constitute a bigger group than employees. Hence, we ask: what are those workers that are not employees? Separating workers from employees (Fossum, 505-507) is only proper because each group has different rights, privileges and obligations under the law. Test of the proposition. In applying the test, an analysis of the cases of BBC and Broadbent will have to be made. Any conclusion will be compared with the truthfulness of the proposition. The Facts of the Case Union’s submission BECTU (or the Union) submitted an application to the CENTRAL ARBITRATION COMMITTEE (CAC) sometime in March, 2003 for the purpose of being recognised for collective bargaining (Fossum,312,313) by the BBC (or the Company) concerning the ‘wildlife cameramen/women engaged on freelance contracts by the BBC Natural History Unit. The CAC notified both parties notice of receipt of the application (Fossum, 149-151) about one week after the application by BECTU and invited a response to the application from the BBC. The Company submitted a response about one week after receipt of notice. Company’s response BBC responded stating that it did not know which individuals were included in the bargaining unit proposed by BECTU and that in the absence of such information it refused to comment on whether any of the individuals were workers for the purposes of TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT of 1992 (hereinafter called ACT). It demanded the Union to identify the individuals included in the proposed bargaining unit and requested a preliminary hearing. The purpose of the hearing is to determine whether any of those individuals, and if so how many, were workers for the purposes of the ACT. It argued that many of those under contract to the BBC History Unit, from time to time, operate through their own companies and/or carry on a professional practice servicing many clients. (Paraphrasing made) BECTU’s response to BBC Through a letter made a few days after BBC responded, the BECTU responded that the question of whether or not an individual is a worker is determined not by their identity but by their contractual relationship with an employer. The Union also posited that the freelance contracts issued to wildlife cameramen/women by the BBC Natural History Unit< en.wikipedia.org/wiki/BBC_Natural_History_Unit> showed that they were workers. The Union manifested that it was more concerned with wildlife cameramen/women providing services in a personal capacity and with other persons operating through service companies. (Paraphrasing made) BBC is unconvinced. BECTU’s arguments BECTU submitted that the adoption of a wider category of professionals (Fossum,66) (for example, those with special skills) would not conform to the policy of the ACT. It cited Broadbent v Crisp [1974] 1 All ER 1052, 1058 in support of the propositions that a `worker’ can be in business on his or her own account and that the exclusions should be narrowly interpreted. It argued that other case law cited by the BBC on this issue related to the narrower definition of a ‘worker’ in other legislation and should not be relied upon by the CAC. BBC’s counter arguments BBC maintained that wildlife cameramen/women are not workers using as basis Section 296(1) of the ACT, which states that the word “worker” connotes: (a) an individual who works, or normally works or seeks to work –under a contract of employment, or (b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his, or (c) in employment under or for the purposes of a government department (otherwise than as a member of the naval, military or air forces of the Crown) in so far as such employment does not fall within paragraph (a) or (b) above. In addition, BBC’s insisted that wildlife cameramen/women are not workers because they may be considered professionals pursuant to the case of Broadbent v. Crisp (1974). It argued by saying it is necessary for each putative worker within the Union’s proposed bargaining unit to prove that he or she is a worker within section 296(1) (b) of the Act. It said, “The issue could not be approached on a global basis; rather the only appropriate way to resolve the matter is for each putative worker to demonstrate that he or she is a worker by evidence before the CAC, which may be subject to cross-examination.” BBC produced a spreadsheet giving details of the engagements of 49 freelance cameramen and women in the period March to December 2002. From the list, it tried to show a wide variety of levels of employment between individuals, with many of them working for the BBC for only a small percentage of their time. Hence, unperturbed, BBC submitted that “individual cameramen and women do not undertake or perform personally work or services or, alternatively, if they do, that the relationship is one of professional and client.”(BECTU vs. BBC) (Paraphrasing made) CAC’s role in the issue CAC is the body or by the TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT of 1992 to decide, whether BECTU’s application to the CAC is valid within the terms of paragraphs 5-8 of the ACT. CAC must also determine whether application complies with paragraphs 11 or 12; and if is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act. Without those three requirements, BECTU’S application cannot be accepted. The issues and basis of decision Issue 1: Whether the wildlife cameramen and women engaged on freelance contracts with the Company’s Natural History Unit undertake to do or perform personally any work or services for the Company CAC discussions CAC noted that cameramen and women are engaged for the expertise appropriate to particular work, and that pay rates are agreed on an individual basis. CAC refused to be convinced by the BBC’s argument that personal service is not the dominant purpose of the engagement. The CAC noted that clause 7 of the Freelance Terms of Trade gives Freelances only a limited ability to substitute and that an officer of BBC confirmed at the hearing that it was exceptionally rare for substitution to take place. CAC also noted that the Terms of Trade permit the Freelance to sub-contract his or her rights and obligations only with the BBC’s prior consent. CAC is convinced that wildlife cameramen and women engaged on freelance contracts with the BBC’s Natural History Unit undertake to do or perform personally work or services for BBC. Issue No. 2 Another is whether the relationship of the wildlife cameramen/women with the Company is that of professional and client. CAC concluded that it is the relationship between these individuals and BBC that is material and not the individuals’ general status. A professional, the CAC said, “cannot, therefore, be compared merely with an amateur.” It was persuaded that, as an exception to the definition of a ‘worker’, the term professional carries a narrower construction. The CAC, said, “We do not seek to put forward a comprehensive definition of the term. However, we consider that some form of regulation of a professional’s field of activity by a body covering those engaged or seeking to be engaged in that activity is required in order for an individual to be categorised as a ‘professional’. This test is not met by the cameramen/women engaged by the Company.” CAC went further by saying that it was common ground between the parties that they may be members of the International Association of Wildlife Filmmakers, which was described by the Union in its application as a ‘professional association’ but that membership of the association was not compulsory. Further sustaining its previous statements, CAC said, “The voluntary nature of membership was not disputed by the Company. We consider that the other arguments put forward by the Company for a professional/client relationship are more consistent with the relationship of the client or customer of a business undertaking than with a professional/client relationship.” (BECTU vs. BBC) (Paraphrasing made) Decision The CAC decided that the individuals within the Union proposed bargaining (Fossum, 326) unit are ‘workers’ for the purposes of section 296(1) of the Act. Conclusion With CAC having made its decision, we have seen the proposition “All employees are workers but not all workers are employees" is clearly resolved. Not all workers are employees. The wildlife cameramen and women are granted the status of workers but they are not employees of BBC. Said cameraman and woman are also not considered as professional under the act. The CAC, having set the distinction between a worker and an employee, has in effect interpreted to confer the rights to wildlife cameramen and women of being part the group to be recognized for collective bargaining with BBC although they are not employees. Although said workers are not employees, there are cases in law where they have similar rights with the latter. They may have some similar rights but they may have also different obligations and that is the essence of having their legal status. Bibliography 1. 2. Read More