Fair work system; employee or contractor?

Here is a good concise summary of the current state of the law in Australia about whether a person is an employee or has some other status, for example a contractor.

“Consideration

[85] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (CFMMEU)52 and ZG Operations Australia Pty Ltd v Jamsek (ZG Operations)53 are the most recent High Court authorities in relation to the employment relationship.

[86] These cases held that where the parties’ relationship was comprehensively committed to a written contract, the validity of which was not challenged as a sham, and the terms of which were not varied, waived or the subject of an estoppel – the question of whether a person was an employee or an independent contractor was to be resolved solely by a consideration of the terms of the contract and not by reference to performance of the contract.54

[87] Where the terms of the relationship between the parties has not been committed comprehensively to a written agreement, the characterisation of a relationship as being either one of employment or one of principal and independent contractor is to be determined by reference to “the totality of the relationship between the parties”.55 In examining the totality of the relationship between the parties, relevant matters include whether the putative employee’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise56 and the existence of a right of control by a putative employer over the activities of the putative employee.57

[88] Other matters which may be relevant in determining the nature of the relationship include the mode of remuneration, the provision and maintenance of equipment, the obligation

to work, the hours of work, the provision for holidays, the deduction of income tax and the delegation of work.58

[89] In the current case, the dispute is not whether Mr Williamson performed work for ATT as an employee or independent contractor, but rather whether Mr Williamson performed work at all for ATT.

[90] I accept ATT’s submission that Mr Williamson bears the onus of establishing that he was employed by ATT.

[91] In the current matter, there is no written agreement between the parties about the relationship between them or which dealt with the regular payments which Mr Williamson received from ATT. I am therefore required to examine the totality of the relationship between ATT and Mr Williamson for the purpose of determining whether Mr Williamson was an employee. Both Mr Williamson and ATT agree that Mr Williamson attended the workplace and that he received regular payments from ATT. However they disagree about whether Mr Williamson performed work while attending the workplace and whether the payments were wages or in relation to Mr Williamson’s role as a shareholder.”

 

Williamson v Active Towing & Transport Pty Ltd (2023) FWC 3480 delivered 28 December 2023 per Wright DP