(a) The definition of employee is a person who engaged under a contract of service or employment whereas independent contractor means a person engaged under a contract for service. In section 2 of Employment Ordinance, a contract of employment means any agreement, whether in writing or oral, express or implied, whereby one person agrees to employ another and that other agrees to serve his employer as an employee and also a contract of apprenticeship. Although there are statutory definitions about employee and independent contractor, the distinction between them is still not very clear. There is gradual development of control test, integration test and multiple test in order to help the court figure out whether a person is under employment of service or employment for service from time to time.
First of all, the court might use control test to decide whether Tan is an employee or an independent contractor. Control test is about if the employer could decide the type of work, duration of work and the manner of employee performed his work. If the answer is affirmative, there is probably a contract of employment according to Yuen Mei v Hop Sze Machine Shop 1961. Applying the control test to Tan, Tan is an independent contract. As XYZ Haulage Company could not control how Tan perform his job, Tan could drive which route he chose to deliver the goods. There is a required amount of goods to be delivered by Tan but he could make the delivery on his discretion. Therefore, his working hour is not controlled by XTZ Haulage Company.
The control test is effective in 19th Century, however, the employment of modern society is different and the control test is less effective now. For instance, there are associate solicitors employed in the solicitors firms. They could handle the cases on their own and they can utilize their times on their discretion. According to control test, these associate solicitors are not employee whereas they are employee indeed.