February 11, 2022
The High Court’s decisions on Tuesday in ZG Operations Australia Pty Ltd v Jamsek(Jamsek) and CFMMEU & Anor v Personnel Contracting Pty Ltd (Personnel Contracting) provide a refreshing reset on how to assess whether a person is a contractor or employee.
The decisions provide more certainty to business’ that have genuinely and comprehensively committed the terms of their relationship with a contractor in a written contract. Instead of engaging in a subjective, checklist approach, Courts will now consider the question of employee vs contractor through the prism of normal principles of contractual interpretation, consistent with the High Court’s decision last year in WorkPac Pty Ltd v Rossato. The indicia set out in the multifactorial test will now only be relevant to the extent they are concerned with the rights and duties established by the parties’ contract.
Less about totality
Determining the nature of the relationship has, to date, not been an easy task – despite the fact that there is usually a written contract entered into at the outset of either relationship which purports to make it clear.
This is because, historically, Courts have looked beyond the terms of the written contract, considering the “totality of the relationship” between the parties. Commonly known as the multifactorial test, Courts have considered the totality of the relationship between parties by reference to a range of indicia including the degree of control the worker is under and whether workers operate their own business.
In applying the multifactorial test, Courts have long grappled with the notion of whether a person is truly a contractor in circumstances where the weight accorded to each indicium is wholly in its discretion.
The application of this discretion has meant that, to date, the well-settled multifactorial relationship test applied by Courts has yielded different and sometimes inconsistent assessments of whether a person is a contractor or not.
Take Jamsek as an example.
In this case, two truck drivers provided delivery services to ZG Operations Pty Ltd (and its predecessors) (ZG Operations), initially as employees and subsequently as contractors. On agreeing to “become contractors”, the drivers set up partnerships (with their respective wives). Via their newly formed partnerships, the drivers purchased vehicles from ZG Operations and executed contracts with it for the provision of delivering services. The drivers subsequently made deliveries as requested by ZG Operations. Lawyers for ZG Operations argued that from this point, each driver owned their own business and there was no basis to conclude they were employed.
At first instance, the primary judge found that the truck drivers were contractors for the relevant period that they operated their partnerships, owned their trucks, and contracted their services to ZG Operations. The primary judge reached this view applying the multifactorial test, emphasising the drivers’ provision of vehicles and provision of services via partnership arrangements as significant factors.
On appeal, the Full Bench of the Federal Court of Australia disagreed with the primary judge and unanimously held that, when viewed in totality, the relationship remained one of employment. One factor that weighed heavily with the Full Court was the exercise of superior bargaining power by ZG Operations.
In the High Court, the majority rejected the Full Court’s invocation of the disparity of bargaining power, finding that such considerations cannot alter the bargains that were struck between ZG Operations and the partnerships. The majority pointed to existing remedies within Australian law which deal with injustices arising from the disparity of bargaining power, such as sham or unfair contract provisions. On the basis that no claim had been made challenging the validity of the contracts between the ZG Operations and the partnerships (via sham contracting provisions or otherwise), the majority proceeded to interpret the contracts, finding that the drivers were individual contractors.
The finding that day-to-day instruction or expectations of ZG Operations in relation to the drivers wearing a uniform or displaying a company logo on their trucks (factors that weighed in favour of the Federal Court’s decision in assessing the drivers as employees) did not alter the contractual rights and obligations which characterised the relationship between the parties.
Unsurprisingly, in reaching this conclusion, the majority in Jamsek – Kiefel CJ, Keane J and Edelman J – followed the principles set out by the same majority in Personnel Contracting. Published moments earlier, Personnel Contracting makes it clear that it is erroneous for Courts to apply the multifactorial test by reference to how the parties have conducted themselves over the decades of their relationship. Instead, where the parties have entered into a comprehensive written contract, the various indicia in the multifactorial test only bear on the nature of their relationship to the extent that they are concerned with the rights and duties established by the parties’ contract.
For example, in Personnel Contracting, the majority considered whether the worker was subject to the control of Construct (the trading name of Personnel Contracting, which is a labour-hire company). In interpreting the contract, the majority found that the worker had no right to exercise any control over what work he was to do and how that work was to be carried out. Specifically, the majority referenced a clause in the contract which stated that the worked was obliged to “[c]o-operate in all respects with Construct and the [host company] in the supply of labour to the [host company]”. This duty, along with others, led to the majority concluding that the parties’ description of their relationship as principal and agent in the contract was not determinative.
What does this mean in practice?
The High Court’s ruling simplifies the analysis for determining whether a person is a contractor or employee in circumstances where the character of the relationship between the parties can be determined by the reference to terms of the written agreement.
Is the multifactorial test dead?
As mentioned above, where the rights and duties of the parties are found exclusively within a written contract, the various indicia in the multifactorial test are still relevant. However, the indicia only bear on the nature of the parties’ relationship to the extent that they are concerned with the rights and duties established by the parties’ contract.
Importantly, the conduct of the parties is no longer relevant in applying the multifactorial test. Instead, the conduct of the parties is only relevant as per established contractual principles. For example, the subsequent conduct of the parties may be relevant to ascertain whether the terms of the original contract have been varied.
Do I need to review my independent contractor contracts?
As mentioned above, the parties’ description of their relationship as principal and agent in the contract is not determinative. Instead, the terms of the contract when read as a whole must reflect the status of the relationship as principal / independent contractor.
Contract terms which may suggests a relationship of employment include:
- terms that fix the worker’s remuneration;
- terms that state a principal is a worker’s paymaster;
- terms which oblige the worker to perform work as directed by the principal or host; and
- terms which authorise a principal to terminate a worker’s engagement should they fail in any respect to obey directions.
As such, it is important that principals check contractors’ terms and conditions to ensure they could not be interpreted in favour of an employment relationship.
It is also important to review current practices with contractors to ensure that there can be no argument that their current contract is a sham, or its terms have been varied by conduct.
Are there specific implications for labour hire entities?
The majority in Personnel Contracting found that “there is nothing in the tripartite nature of a labour-hire arrangement that precludes recognition of [a principal’s] contractual right to control the provision of [the worker’s] labour to its customers, and the significance of the right to the relationship between [the principal] and [the worker]”. In other words, although a host entity may supervise and direct every aspect of a worker’s work, if this subordination is attributable to the terms of the contract between the worker and the principal (i.e. via a term stating that the worker is obliged to perform work as directed by a host), this will suggest that a worker is subject to the control of a principal. This will weigh towards a Court finding that a worker is an employee rather than a contractor.
  HCA 2.
  HCA 1.
  HCA 23.