This is the first of The Recruiters’ Casebook’s micro-analyses of the recent Australian High Court’s decision in CFMMEU v Personnel Contracting.
The case is important to the recruitment and on-hire community because it challenges established workforce services business models, and because it may leave some suppliers of on-hire contractor services exposed to employment claims.
The case concerned the status of a young UK backpacker, who was engaged and on-hired, as an independent contractor, to work as a labourer on a construction site. The Court, held that he was not an independent contractor, but was, instead, an employee.
Issue: The “Own Business Test”
The case is about how the court decides if a person is an employee, when the contract is wholly in writing. Different principles might possibly apply to a contract that is not wholly in writing.
At issue was a question about the extent to which a court should consider whether independent contractors must necessarily be in business on their own account.
Kiefel CJ, Keane & Edelman JJ said the own business requirement, though not essential, was still useful when checking whether the terms of the work contract preserved the worker’s legal right to perform the contracted work, independently in their own business. They said that the legal relationship had to be determined from the terms of the contract, and that the absence of a contractual right to carry on business highlighted the subordinate or subservient nature of the relationship,  leading to a conclusion that the worker, in this case, was an employee. 
Gageler & Gleeson JJ thought that the “own business ” test really only posed the ultimate question of whether the worker was an employee in a different way. They departed from current orthodoxy in holding that the court should go beyond the terms of the contract to consider the manner in which it was performed and its interaction with performance of the labour hire agreement between the labour hire provider and its client. 
They said that it was legitimate for a court to consider the extent to which the worker can be seen to work in his or her own business as distinct from the business of the putative employer .
For that purpose, regard could be had to whether the work was performed under a labour hire arrangement involving back-to-back contracts between a labour hire provider and a host,  which they considered to be a strong indicator that the work was for the benefit of the labour hire business and that the worker, in this case, “was not in any meaningful sense in business for himself.”
They used the “own business” test as a sort of intuitive cross-check against a conclusion, which they reached on an application of what was, in reality, a version of teh “control test” or “integration test”. 
Gordon J thought that the Court was “not assisted by seeing the question as involving a binary choice between employment and own business”.  She thought that it was “not necessary to ask whether the purported employee conducts their own business”  and that it “may not always be a suitable inquiry for modern working relationships,  because that inquiry will “ordinarily direct attention to matters which are not recorded in the contract”. 
The “better question to ask”, according to her Honour, is “whether, by construction of the terms of the contract, the person is contracted to work in the business or enterprise of the purported employer” 
Construing the terms of the work contract, Gordon J found that the worker had agreed to perform his work so as to enable the respondent to carry on its labour hire business,  in consequence of which he had agreed to work in its business or enterprise and was therefore its employee. 
Steward J agreed with Gordon J’s statement of the test to determine whether a person is an employee; but was not prepared to overrule the long line of authorities on which the legitimacy of the on-hire contractor services (Odco) model was based.
The attention given by the judges to the interaction between the work contract and the labour hire contract seems problematic. In a later post, I’ll discuss whether it indicates that the control test and the integration test have merged, in a labour hire setting, into a new “subservience test”, the application of which will, in nearly every case, produce the result that the contracted worker is the employee of the labour hire firm.
In the meantime, it’s worth recalling the context in which the question of the worker’s status arose.
The union and the worker sought compensation from the on-hire firm for contraventions of the FW Act and modern award. The union also sought compensation from the on-hire firm’s client on the basis that it was accessorily liable for the on-hire firm’s alleged breaches.
The appeal has not resolved the claims for compensation. Those claims will now go back to the primary judge to be determined on the basis that the worker was an employee. The claim against the host is likely to raise fresh questions about the circumstances in which a host can be liable as an accessory to an on-hire firm’s contraventions of the FWA and award. Those questions were not considered at first instance, or on appeal.
The shouting is not over yet.
Andrew C. Wood