A major High Court decision in February this year has sent unions and labour lawyers into a panic. The High Court declared that when deciding whether a worker is an employee or self-employed that the written contract is king!
We’ve waited until we received detailed legal analysis of the decision before making comment, which we can now do. We’ll send out several news alerts on this. It’s extremely important.
In simple layperson’s terms the High Court has said that:
- If a written contract is clear and comprehensive, a court must primarily rely on the written contract in coming to a decision.
This seemingly knocks out what’s been used for the last 40 years or more. Courts have applied the ‘multifactorial’ test, which is a basket of behavioural indicators only one of which is the written contract. The High Court has said that the lower courts have misunderstood the situation and that the High Court has always had the view that the written contract is supreme.
This has sent unions and labour lawyers into a spin. The multifactorial test has been great for lawyers and unions because they could retrospectively examine a case going back years. It is a great source of income for lawyers and has allowed unions to intimidate businesses and self-employed people.
But the High Court has said that it has a duty to create certainty, stating that the multifactorial test:
“… is apt to generate considerable uncertainty, both for parties and for the courts.”
And
“It is the task of the courts to promote certainty with respect to a relationship of such fundamental importance.”
We see this as extremely important. There are 2.1 million self-employed people in Australia. We have a right to clarity and certainty. The High Court has done the right thing by society in its drive for clarity.
But there are others who want uncertainty. This is bad. And the pressure is already coming on the Albanese government to pass legislation to create uncertainty. We will campaign strongly against this.
But first we want to ensure that there is clarity about what the 99-page High Court judgement says.
We’ve prepared the following links for SEA members:
- A layperson’s summary. We’ve had lawyers check this.
- Key excerpts from the judgment.
- A PDF of the judgement with important quotations highlighted.
We’ll have more information and comments soon.