Assignment Question

Musclz Pty Ltd is a local Gym located in Perth, Western Australia. They provide both one-on-one and group classes to members and have qualified personal trainer staff. Musclz operates out of a circular bright green building with big windows, which is iconic and known for its striking shape and colour. Ebony, aged 22, is one of their personal trainers.

She signed an agreement at the end of 2021. It was to operate from 1 January 2022 until 31 December 2023. The agreement stated that she was not an employee but in business for herself, agreeing to offer her personal training services on a casual basis when she wanted to.

The agreement stated that she would be subject to an induction and would abide by all Musclz’s rules about service procedures and customer relations. She was also required to wear a shirt that had a Musclz embroidered logo and Musclz would stipulate an hourly rate for all services she performed. Ebony also received a small bonus payment on a monthly basis if clientele numbers
increased.

Ebony paid tax on that income directly to the taxation department. Musclz recommends their workers register a business name for these purposes. Ebony had set hours and received a half price discount on Musclz services. Musclz have not trained Ebony or the other personal trainer staff; rather they have all attended a specialised training agency which was paid
for by Musclz.

Musclz have a social media policy that includes a prohibition on personal trainers posting comments that can be linked to Musclz or its clients. On December 1, 2023, Ebony posted a comment on Facebook about an “overly-hairy” and “obese” man who had come into her work for a one-on-one training session, indicating he smelt bad and “left the green building smelling like
sweat”.

One of Musclz’s managers read the post dismissed Ebony the next day as soon as she arrived at the gym. The same manager also noted that part of Ebony’s dismissal was due to her online promotion of her own “home-run” weekends-only personal training classes focusing on muscle growth.

Using the IRAC method, advise Ebony in relation to the following questions. Ensure you refer to relevant legislation and case law for your answers.

1. Is Ebony an employee or another type of worker?
2. If we assume Ebony is an employee, is the Musclz policy enforceable as a term, and has it been breached?
3. If we assume Ebony is an employee, is she in breach of any duty to Musclz in relation to her “home run” business?