Broadbent v. Crisp - Case Study Example

Topic: In Broadbent v. Crisp (1974) it was d, "All employees are workers but not all workers are employees" Introduction In an economic society where people are grouped under certain categories, it is not surprising to see a conflict on interest or variety of interest. One explanation is that different groups have different situations and different situations call for different approaches. The laws in every state in particular try to address the classification created as society moves or progresses with time. Not to be far from this phenomenon is the issue on the concept of workers and employees. Hence, this paper aims to critically evaluate the statement: “All employees are workers but not all workers are employees". To resolve this, jurisprudence on the matter 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 test the proposition: “All employees are workers but not all workers are employees". Legal consequences As introduced, the term “worker” is broader in scope than that of “employees”. What are those workers that are not employees? If a law confers rights to workers but not to employees, the latter would course react and assert their right (Chruden & Sherman, 373) that they be workers. However, if the law imposes obligations on employees but not all workers, naturally a part of the latter would complain and say, “Excuse us, not all workers are employees.” So we see a conflict created bywords having different meaning not only in dictionary but more importantly in the statutes or legislations under which these words are defined. However, most of time or sometimes, words are not clearly defined, and they only find their true meaning if a real conflict is created and a body authorised by law is made to decide on the issue. Test of the proposition. To test a proposition, there must be a basis for doing so. We need a parameter under which it must be tested. In a society where words have their technical meaning, that is, different professions or trades have adapted their own meaning of words, it is not surprising if an issue could arise across these different trades or professions and so a body like a court or an arbitration panel is created by law to decide and settle the issue. Therefore, in applying the test, we will analyse of BBC and Broadbent. Any conclusion that will be made by the body will set a guide as to the truthfulness of the proposition. The reason for this is that court’s decisions have the force of law and they must be respected by the parties. The Facts of The Case Union’s submission At the outset, BECTU (the Union) submitted an application to the Central Arbitration Committee (CAC) dated 7 March 2003 that it should be recognised for collective bargaining (Chruden & Sherman, 370-375) by the BBC (the Company) for ‘wildlife cameramen/women engaged on freelance contracts by the BBC Natural History Unit. The union (Chruden & Sherman, 113) filed its application based the provision of Trade Union And Labour Relations (Consolidation) Act 1992 (to be called Act from hereon). The CAC gave both parties notice of receipt of the application on 10 March 2003 and invited a response to the application from the Company. The Company submitted a response to the application on 17 March 2003. Company’s response In its response to the application, the Company stated that it did not know which individuals were included in the bargaining unit proposed by the Union. It said that in the absence of such information it could not comment on whether any of the individuals were workers for the purposes of the Act. It asked the Union to identify the individuals included in the proposed bargaining unit and requested a preliminary hearing at which the issue of whether any of those individuals, and if so how many, were workers for the purposes of the legislation could be determined. It stated that many of those under contract to the Natural History Unit from time to time operate through their own companies and/or carry on a professional practice (Chruden & Sherman, 113) servicing many clients. ….” Union’s response to company On March 20, 2003, the Union responded, through a letter, 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. It also affirmed that the freelance contracts issued to wildlife cameramen/women by the BBC Natural History Unit< en.wikipedia.org/wiki/BBC_Natural_History_Unit> demonstrated that they were workers. The Union stated that it was concerned with wildlife cameramen/women providing services in a personal capacity. However, it also said that it was not concerned with other persons operating through service companies. The company could not just agree with the union, hence this case. Union’s arguments The Union submitted that the adoption of a wider category of professionals (for example, those with special skills) would be in violation to the policy of the Act, and cited Broadbent v Crisp [1974] 1 All ER 1052, 1058. It argued that in the case of Broadbent, a `worker’ can be in business on his or her own account and that the exclusions should be narrowly interpreted. Company’s counter arguments The position of the Company side is based on Section 296(1) of the Act, which defines the word “worker” as follows: (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. The company interpreted that the wildlife cameramen/women are not workers because they may be considered professionals pursuant to the case of Broadbent v. Crisp (1974). It argued, saying that 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. The Company 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.” The Company did produce a spreadsheet detailing the engagements of 49 freelance cameramen and women in the period March 2001 to December 2002, which it stated showed a wide variety of levels of employment between individuals, with many of them working for the Company for only a small percentage of their time. According to the Company, the 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) Panel’s role in the issue The Panel is mandated (Chruden & Sherman, 341-345) by the Act to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5-8; is made in accordance with paragraphs 11 or 12; and is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act, and is therefore to be accepted. (BECTU vs. BBC) The issues and basis of decision First Issue The first issue that the Panel is required to determine is 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. Panel’s explanation The Panel interpreted that cameramen and women are engaged for the expertise appropriate to particular work, and that pay rates are agreed on an individual basis. It said, “We are not persuaded by the Company’s argument that personal service is not the dominant purpose of the engagement.” The Panel noted that clause 7 of the Freelance Terms of Trade gives Freelances only a limited ability to substitute, and there was a confirmation from a certain Mr. Hellier at the hearing that it was exceptionally rare for substitution to take place. The Panel also observed that the Terms of Trade permit the Freelance to sub-contract his or her rights and obligations but the Company must have prior consent. The Panel is satisfied that wildlife cameramen and women engaged on freelance contracts with the Company’s Natural History Unit undertake to do or perform personally work or services for the Company. Second Issue The second issue for the Panel to determine is whether the relationship of the wildlife cameramen/women with the Company is that of professional and client. Panel’s Explanation The Panel considered that what is material t is the relationship between these individuals and the Company and not the individuals’ general status. That a professional cannot, therefore,be compared merely with an amateur is position taken by the Panel. In upholding the argument of the Union, it was persuaded that, as an exception to the definition of a ‘worker’, the term professional should be narrowly construed. The Panel 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.” The panel observed that it was a 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 it observed that membership of the association was not compulsory. It pointed out the voluntary nature of membership, which was not disputed by the Company. It considered 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) Decision Panel’s decision is that the individuals within the Union’s proposed bargaining unit are ‘workers’ for the purposes of section 296(1) of the Act. Conclusion As we stated earlier decisions made by court or any body created by law to hear and decide a case have the force of law among the parties, that is, they must be respected. It settled by the panel that "All employees are workers but not all workers are employees." The cameramen and women engaged in BBC History Unit are not employees but are workers for purposes of recognition under the Act. Their being workers of course are settled after the panel interpreted that they are not professionals as meant in the Act. Bibliography: 1. 2. 13. The New Lexicon Webster’s Encyclopedic Dictionary of the English Language, De Luxe Edition, Lexicon Publications, Inc., USA, 1992 Read More