Q I AM a contract employee in the marine industry.
My pay is based on a rate of $280 for eight hours a day and with overtime at $35 per hour.
Besides the Central Provident Fund (CPF) contribution from my employer, I get no other benefits - that means, no medical or annual leave, or medical reimbursement.
Is this legal under the contract of service? If not, what are my rights?
A YOUR case raises the question as to who is an 'employee'.
If you are treated as an employee or an independent contractor, different legal consequences flow, for example, whether you are entitled to the benefits under the Employment Act, whether your employer is liable for acts committed by you in the performance of your work, whether CPF is payable and so on.
As the Employment Act and CPF Act do not give any useful definitions, guidance is found at common law or in court cases.
At one time, the 'control' test used to be applied to see if a person is an employee.
The test basically involves ascertaining whether the employer can order or require what is to be done but also direct how it shall be done.
This test was found unworkable in the case of professional employees such as doctors in a hospital and these days 'control of an employee' is just one factor the court considers.
Other factors include method of payment, the obligation to work for that employer only, working hours, overtime pay, holidays, medical leave, the right to dismiss, who provides the tools, who bears the risk and chance of the profit.
This is not an exhaustive list and some of the factors have been applied by the courts to conclude that freelance lounge hostesses were employees because the lounge had complete control over the hostesses.
That is, they could not choose their customers, could not charge as they wished and could be dismissed on one day's notice for misconduct.
The courts have also stated that it would be easier to conclude that the hirer had absolute control where the workman is unskilled as opposed to a skilled worker and, hence, an employee.
In your case, given that the hirer is paying your CPF, you may have a stronger case for arguing that you are really an employee based on the factors listed here.
It is also possible for you to argue that each time you take on work, you actually enter into a separate contract of employment.
You may wish to consult a lawyer to properly explore the scope and extent of your duties and obligations, in order to say with some conviction the chances of your being considered an employee.
Amolat Singh
Lawyer
Amolat & Partners
Advice provided in this column is not meant as a substitute for comprehensive professional advice. E-mail questions to a1admin@sph.com.sg.
