By Dr Michelle Sharpe -
Key decisions
- Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1
- ZG Operations Australia Pty Ltd v Jamsek & Ors [2022] HCA 2
Industrial law
Nature of employment relationship
Rather unusually, on 9 February 2022, the High Court handed down two separate decisions (allowing both appeals) in which the Court was required to answer the same legal question: What is the nature of the employment relationship? In these twin decisions, the High Court applied the same approach to answer this legal question with opposite results. That approach being to focus on, and construe the terms of, the written contract pursuant to which the work was performed.
Case 1
In the High Court decision of Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1 the High Court was required to determine whether an unskilled labourer, Mr McCourt (‘McCourt’), was engaged as an employee or an independent contractor.
Personal Contracting Pty Ltd (trading as ‘Construct’) carries on a business of supplying labour to building clients under a triangular labour-hire arrangement. Construct provides labour to its clients under a written Labour Hire Agreement (‘LHA’) (a contract between Construct and its client) and then engages labourers under a separate written Administrative Services Agreement (‘ASA’) (a contract between Construct and the labourer).
McCourt was a 22-year-old British backpacker who had travelled to Australia on a working visa. After McCourt satisfied a Construct representative that he had purchased a hard hat, steel capped boots and hi-vis clothing (all for the princely sum of $100), he was provided with the ASA to sign. The ASA described McCourt as a ‘self-employed contractor’. The following day Construct offered McCourt work on Hanssen’s Concerto project site. Sometime later, McCourt was also offered work on Hanssen’s Aire project site. On both sites, McCourt performed basic labouring tasks under the supervision of Hanssen supervisors. McCourt and the Union commenced proceedings against Construct for compensation and penalties pursuant to ss 545, 546 and 547 of the Fair Work Act 2009 (Cth) (‘FW Act’).
