Automatic language translation
Our website uses an automatic service to translate our content into different languages. These translations should be used as a guide only. See our Accessibility page for further information.
Issued: 4 March 2022
In two recent decisions, the High Court held that when determining if a person is an employee, the central (and usually sole) role for the Court is to examine the rights and obligations in the contract governing the relationship between the parties: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd  HCA 1; ZG Operations Australia Pty Ltd v Jamsek  HCA 2.
These decisions highlight the importance of closely considering the terms of any contractual agreements reached between government agencies and independent contractors.
CFMEU v Personnel Contracting Pty Ltd, the Court found that a man working on construction sites purportedly as an independent contractor for a labour hire company was in fact an employee of the labour hire company. This was because the contract, despite using the language of contracting, in substance provided for an employment relationship.
In reaching this conclusion, the Court had regard to the fact that the terms of the contract provided that the employee had no right to exercise any control over the work performed, that he was obliged to comply with all directions of the labour hire company, and that the labour hire company could fix the employee's remuneration.
In ZG Operations Australia Pty Ltd v Jamsek, the Court applied the same legal test but reached the opposite result. The Court found that two men had ceased to be employees when they (upon the insistence of their former employer) each purchased their own trucks and, in partnership with their respective spouses, entered into a contract to provide delivery services to their former employer.
Whether the parties in each case were employees was significant for determining the whether certain entitlements were available, including under the Fair Work Act 2009 (Cth) and Long Service Leave Act 1955 (NSW).
In both cases, a majority of the Court emphasised that the focus of the enquiry is on examination of the rights and obligations of the parties under contract. The majority criticised the approach of the courts below, which involved undertaking a wide-ranging review of the parties’ dealings in order to determine if the workers were employees: CFMMEU at , , -; -, ; Jamsek at .
For example in Jamsek the majority held that the non-contractual expectation that the drivers wear a company uniform or display a company logo on their vehicles did not alter the contractual rights or obligations between the parties or render the drivers employees: -.
Labels (e.g. 'employee' or 'contractor') used by parties in contracts to describe their relationship are not determinative or often even relevant to determining whether an employment relationship exists: CFMMEU at -, , , .
The task for a court is to identify whether the 'totality of the relationship' between the parties, as embodied in the contract reflects an employment relationship: CFMMEU at .
The decisions are significant when dealing with the status of employees and contractors, clarifying that circumstances outside the contract between the parties are of limited relevance.
Government agencies who engage independent contractors to perform work should closely consider the terms of any contractual agreement to ensure that they could not be interpreted as indicating the existence of an employment relationship.
Marina Rizzo, Director
02 9474 9156
Sophie Roden, Senior Solicitor
02 9474 9546
16 Nov 2022
We acknowledge Aboriginal people as the First Nations Peoples of NSW and pay our respects to Elders past, present, and future.
Informed by lessons of the past, Department of Communities and Justice is improving how we work with Aboriginal people and communities. We listen and learn from the knowledge, strength and resilience of Stolen Generations Survivors, Aboriginal Elders and Aboriginal communities.
You can access our apology to the Stolen Generations.