Independent Contractor Characterization Hangs in the Balance

Back in April, I reported on two cases presently before the High Court, which have put the spotlight back on the distinction between employment and independent contracting. Since then, the High Court in Rossato[1] has questioned the extent to which the characterisation of a work relationship can be determined by anything other than strictly “by reference to the legal rights and obligations which constitute that relationship”.

The High Court preferred to rely on the contract to determine whether any “firm advance commitment” had been made for the purpose of deciding if work was casual, rather than characterising the relationship according to a sense of its “practical reality” gained from consideration of “all the circumstances”.

Notwithstanding that Rossato was not a case about the distinction between employment and independent contracting, its effect seems to have spilled over into the Fair Work Commission, with the Full Bench deciding, on 13 August 2021, to put the case of Deliveroo Australia Pty Ltd v Diego Franco [2021] FWCFB 5015 on hold until the two cases presently before the High Court that do concern the distinction between employment and independent contracting have been decided.

Although submissions have been filed in both High Court cases, a decision might be some months away. In the meantime, the status of some platform workers, whose contracts state that they are “independent contractors” will remain uncertain.

Andrew C. Wood


[1] WorkPac Pty Ltd v Rossato [2021] HCA 23.

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