Primacy of contract in employment cases: Australia’s High Court rejects British - and its own – jurisprudence

In 2022, the High Court of Australia handed down two decisions which overturned the previous understanding of the law relating to characterising a work relationship: Construction, Forestry, Maritime, Mining and Energy Union & Anor v. Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd & Anor v. Jamsek & Ors [2022] HCA 2. In a context where, unlike the United Kingdom, there is no intermediate “worker” category, the Court determined that characterising a work relationship as either one of employment or of independent contracting depended on ascertaining the rights and duties under the written contract, not on how the parties conducted their relationship in practice.

The decision has been widely criticised and appears likely to lead to intervention by the current Labor federal government. This presentation will discuss the reasoning of the High Court majority and show how it differs from the approach in the United Kingdom, and in relevant instruments of the International Labour Organization.

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