Who Is A Workman? A Critical Evaluation Of The Tests To Differentiate A Workman From An Independent Contractorin The Light Of Judicial Decisions

Abstract

A workman is governed by contract of service, and an independent contractor is governed by contract for service. However, the decision as to the nature of the contract to identify whether a person providing services to an organization is a workman under a contract of service or an independent contractor under a contract for service becomes difficult with globalization, changes in employment methods, flexibilities in employments, developments in science and technology and the devices designed by employers to circumvent their obligations. The courts have developed many tests to apply to the facts and decide whether the person who provides his services is a workman or an independent contractor. The tests developed by the courts include control test, integration test, economic reality test and multiple test. There is no hierarchy or any rule to apply these tests to the facts to decide the nature of relationship between parties. When the cases have ambiguous and complicated facts, the courts abandon the single test approach and adopt a combined test approach to produce satisfactory results. In many cases, employers who have power to include clauses favourable to them due to unequal bargaining power between the parties have included designations such as self-employed persons, agents, consultants, free-lancers and sub-contractors to label the workmen as independent contractors with the belief that they could circumvent their statutory obligations. However, the courts have creatively applied the tests to the facts and decided that they were workmen. The decisions made by the Appellate Courts as to the nature of the contracts convince that the tests are still adequate to make decision as to the nature of relationship, and to find who is a workman.