ARTICLE · 08 AUGUST 2022

Employees v contractors—where are we at?

Worrells

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The written contract determines if a person is an employee or contractor, not post-contractual conduct.

AustraliaEmployment and HR

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The tide is changing, again.

Last August, I wrote about the Latest clarity on casual v permanent employees, which dealt with the intersection of two issues: Rossato case law and workplace reforms/Fair Work precedents. Since then, the High Court has followed the changing tide, allowing the appeals and overturning the Full Federal Court decisions in:

Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119 (ZG Operations).
CFMMEU v Personnel Contracting Pty Ltd [2020] FCAFC 122 (Personnel Contracting).

Effectively, the High Court said, barring sham contracting, it was only the written contract that determines if a person is an employee or contractor, not post-contractual conduct.

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