Fair Work cases Employee or contractor? Part 1

Here are some interesting observations from a recent unfair dismissal case about the distinction between the relationship of employer and employee and principal and independent contractor.
“The High Court has recently revised the applicable legal principles to determine whether a person is an employee or an independent contractor in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek (Jamsek). 19
[50] In the decisions, the High Court held that where the contractual terms are entirely in writing, the rights and obligations established in the contract exclusively determine the relationship between the parties. 20
[51] Furthermore, where the contractual terms are entirely in writing, consideration of subsequent conduct is not permitted in construing the contract. 21
[52] In ACE Insurance Limited v Trifunovski 22 Buchanan J distinguished contracts of employment from contracts for services as follows:
“Contracts of employment (contracts of service traditionally so-called) are contracts for personal service. Benefits and obligations of contracts of individual service of this kind are not unilaterally assignable by either party. The requirement for personal service has the effect that a contract which truly permits discharge in another fashion or by another person, is not a contract of employment. Thus, contracts with corporations, contracts with partnerships, contracts permitting unlimited delegation and contracts which do not actually compel the performance of work but pay only on results, are each prima facie not contracts of the necessary quality (although the last category is more contestable than the first three).”
[53] In this matter, the contract is entirely in writing and between the Respondent and Custodian Content, two corporate entities. 23 There is no evidence of any employment contract between the Respondent and Mr Kortelainen.
[54] The contract describes the services to be provided and does not dictate how or when Custodian Content must perform the work. The contract provides for the services to be undertaken at the office of Custodian Content and payment is based on an agreed daily rate and subject to the presentation of a tax invoice. There are no entitlements to superannuation or any type of paid leave.
[55] While some matters may point towards an employment relationship, on balance, it is clear that Mr Kortelainen is operating a business, Custodian Content, where the Respondent is one of its clients. In these circumstances, I do not consider the provision of access to an email account or the attendance by Mr Kortelainen at the Respondent’s Christmas Function is indicative of an employment relationship between Mr Kortelainen and the Respondent.
[56] I find that Mr Kortelainen is not an employee of the Respondent.”
Extract from Claringbold v Fairfax and Roberts (2022) FWC 1538 delivered 17 June 2022 per Ryan C