Ethos Autumn 2022

Page 24


‘Ducks and roosters’ The High Court on the distinction between an employee and an independent contractor

What is meant by ‘employee’ and ‘contractor’ has changed over the years as the nature of work has evolved. John Wilson and Kieran Pender discuss the complexities of this distinction in light of two recent High Court cases.

For almost two centuries, the binary distinction between employees and independent contractors has been a central feature of employment law in Australia (and its predecessor colonial states). This longevity masks evolution and complexity — in that time, what is meant by employee and contractor has changed as the nature of work in the modern world evolved. Distinguishing between the two forms of contractual engagement was never straightforward, as consistent litigation over decades made clear. In February, the High Court of Australia provided clarity in two cases decided in parallel. In


Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd2 and ZG Operations Australia Pty Ltd v Jamsek,3 the High Court revised the approach for determining whether a worker is an employee or independent contractor. These cases are the Court’s most significant employment law judgments in some time; their implications will reverberate in sectors across the country for years to come. The plurality decisions, which reflect a conservative, black letter approach, are notably business-friendly. Despite the union winning on the facts in

Personnel, the new jurisprudence will make it easier for organisations to engage labour as independent contractors, rather than employees, and thereby avoid employment entitlements. The decisions have therefore caused much furore; Labor has signalled its intent to consider legislative intervention if successful at the forthcoming federal election. It is not our intent here to canvass those deeply-politicised debates. Instead, we will undertake a more limited task: a case note on the High Court’s decisions in Personnel and Jamsek, focusing on the plurality judgment of Kiefel CJ, Keane and

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