It has been around 170 years since the phrases ‘contract of employment’ and ‘employer and employee’ first appeared in the law reports. Since then there have been numerous decisions, including from the High Court, explaining these phrases. One author of a well-known textbook around 40 years ago lamented the lack of consistency and ventured that the courts have ‘contrived to make it virtually impossible to draw a clear and consistent distinction between employees and independent contractors’. It was hoped that the ongoing uncertainty around these concepts would be addressed by the High Court once again re-visiting the characterisation issue in CFMMEU v Personnel Contracting  HCA 1 and ZG Operations v Jamsek  HCA 2, but are the waters any clearer?
This session will focus on these recent High Court decisions and how it has affected the state of the law. What is the importance of the written contract? How useful is the multifactorial checklist that has guided the characterisation process the last few decades? How will these decisions affect the behaviour of employers and employees, including those in gig economies or using tripartite models? Where will the battle lines be drawn in future case? Senior counsel who appeared in these High Court cases, Mark Irving QC and Marc Felman S.C., will be sharing their insights while Jennifer Batrouney AM QC, counsel appearing in Dental Corporation Pty Ltd v Moffet  FCAFC 118, will be chairing the session and providing her own insights including how the characterisation issue intercepts with taxation law.