Driven by the need to provide certainty, the High Court of
Australia delivered two decisions on 9 February 2022 that have
reset the way we determine whether a worker is really an employee
or contractor. Consistent with its earlier decision in WorkPac
Pty Ltd v Rossato [2021] HCA 23 dealing with casual employees,
the High Court has again emphasised the central importance of the
contract to resolving issues of a worker's status.
These two decisions of the High Court are widely viewed as a win
for business. By limiting the focus of the inquiry to the contract,
significant opportunity is given to businesses to achieve certainty
of outcome. However, as we explore in this bulletin, there can
still be uncertainty if the contract is poorly drafted, or the
business departs from the contractual framework. There also remain
legislative traps for the unwary.
