Rule: Identify and state the rules

Identify the legal principles relevant to the issues you have identified. The principle is also known as the rule. Legal rules are found in legislation and case law. A helpful first step is to look at your notes from lectures and tutorials/workshops, and your reading guide, to help you find the relevant rules.

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 (e.g. contract, criminal law, company law, etc). See the Legal Commentaries or Areas of Law Library guides.

Example

Identify the legal rule

Using the example of our issue: "Is Matthew an employee of the company or working for them as 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 ‘employer’(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 ‘Australian-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 .

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

Let’s see how to state the rule in the example from above: Matthew, a 50-year old independent contractor from Victoria, has been engaged for some work by X Pty Ltd (a company). Matthew attends a number of staff meetings as well as a training course provided by the company.

As discussed above under Issue, one of the legal issues here is whether Matthew is an employee of the company or working as an independent contractor.

A statement of the relevant rule could be:

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.

Note

  • Break down the relevant rules of law into elements. Each element is a sub-issue to which you will need to apply IRAC reasoning.
  • Do not use parties’ names or specific facts from the case. The rule will be the definition of the principle of law applicable in the case.
  • Legal principles should be stated with precision and accuracy.
  • Always support legal principles with authorities: write the case name or title of the Act you are applying
  • Make sure you know how to research and find authorities using the sources recommended on the Law Library Guide.