Since earlier this calendar year the Fair Work Act (see sec 15AAA) has endeavoured to re-define the legal meanings of the terms “employer” and “employee”, and thus the legal distinction between to the two terms for the purposes of the national fair work system.
For now at least, on the question whether a person is a worker or an independent contractor is to be determined by ascertaining “the real substance, practical reality and true nature of the relationship between the individual and the person by focussing on the “totality of the relationship” which is to be gleaned both from the words used in any written contract between the parties and how the work under the contract is expected to be performed together with other practical nuances of the relationship.
This has come about to tackle the legal effects of the startling High Court decisions in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 in which a number of judges expressed the view that the legal characterization of such relationships was to be, in most cases, determined by black letter law by interpreting a legal relationship in employment law contexts by reference to the words used in contracts rather than the reality of the relationship and is thus a return to how the question was historically determined before those cases.