There are a number of ways in which unfair dismissal can occur, and Fair Work Australia will consider that a person has been unfairly dismissed if it is satisfied:

· the employee has been dismissed, which can include constructive dismissal;

· the dismissal was harsh, unjust or unreasonable, and considerations can include whether there was a valid reason for the dismissal, or whether the employee was informed of the reason, and provided with a chance to respond;

· the dismissal was not consistent with the Small Business Fair Dismissal Code;

· the dismissal was not a case of a genuine redundancy.

The terms and conditions within an employment contract can be derived from a number of sources which may include:

>> the terms within a written or oral, express agreement;

>> terms implied by law relating to the relationship between the employer and employee;

>> the duties of fidelity and good faith;

>> terms implied from the custom or practice of the business or the particular industry.

Upon the conclusion of the bargaining process and a draft agreement has been created, a number of steps are to be followed to ensure the validity of the agreement.

>> Explanation of terms: the terms of the agreement and its effects are to be explained to employees, and must be provided in the appropriate manner;
>> Voting on the agreement: the agreement must be endorsed by employees via a vote, and the vote must not occur until at least 21 days after employees were provided notice of their representative rights. During the seven day period before the vote, the employer must provide a copy to employees of the agreement and any other material incorporated by reference in the agreement. Additionally, information of the time of the vote, the location, and the voting method to be used must also be provided.

>> Making the agreement: an agreement is made when a majority of employees vote in favour for the agreement, however, the process will differ depending on the type of enterprise agreement:
>> single-enterprise agreements (single employer or a joint enterprise)

>> multi-enterprise agreements (at least two employees that are not single interest employees

>> Greenfields agreement (one or more employers make a proposal for an enterprise agreement, but have not engaged with employees. Greenfields agreements are agreed between the employer and unions.

An application will then be made to the FWC for approval. For an enterprise agreement to receive approval from the FWC, it must consider a number of requirements, such as the agreement were genuinely made with those involved, and that it satisfies the “better off overall test” for example.

In trying to ascertain whether or not an employee is a contractor, a useful gauge is to look at the relationship between the employer and employee with some of the following factors which may be indicative of a contractor:

· whether a written or oral agreement exists;

· the level of direct supervision in relation to the work undertaken;

· evidence of a separate business.

Generally speaking, employees are deemed to be an agent of the principal employer and will be paid for the provision of labour, and as a consequence, employees will usually be engaged under a contract of service. In contrast, contractors are usually independent actors with employers having vicarious liability for the actions of a contractor, and as a consequence, contracts will usually be engaged under a contract for services.

The general rule of thumb for contractors is that such employees are usually asked to perform a particular assignment, or to produce a particular result, with payment tied with the completion of the assignment, or achieving the desired result.

In trying to establish whether a person is a contractor or an employee, the following factors will generally be considered:

· if the functions, or part of the functions, can be delegated or subcontracted;

· the person who gives the instructions relating to the work;

· the nature of the instructions relating to the work; and

· the freedom of action in the performance of the work.

Some other indicators that may point to a person being a contractor is, whether they own or maintain the tools or equipment required to undertake the work, whether there is a chance for profit, or alternatively, a risk of loss, and whether an invoice is provided to the other party upon the carrying out of the specified work.

In contrast to the ‘supply of necessities’, the courts tend to construe the concept of ‘benefit’ more narrowly, as a consequence, when assessing whether the contract is beneficial to