Employer of Record Arrangements: Not the panacea you were hoping for?

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Recently, I was asked to comment on how an employer-of-record (EoR) arrangement might affect an on-hire firm’s employment and labour hire licensing responsibilities. It seems that there’s a bit of a view circulating to the effect that, if you put in place one of these EoR arrangements with a payroll company, you can avoid both sets of responsibilities. Frankly, I doubt that you can.

And if you try to do so, I think you could end up with egg on your face… or worse still, with residual employment obligations (for tax, super, redundancy, unfair dismissal and the like), as well as leaving yourself open to a range of claims for anything from involvement in misleading conduct in respect of an offer of employment[i] all the way through to sham contracting and labour hire licence avoidance.

Employer of Record (EoR)

Firstly, let’s clarify what I mean by an EoR.

Corporate Groupings

An EoR is a third party that appears “on the record” as the employer of your workers. It’s a common arrangement within corporate groups of related entities. One entity in the group will go “on record” as employer for workers in the group.  It will handle payroll and will probably be the named employer in the employment contract. It will issue pay slips and pay summaries and remit tax and super.  These arrangements are often unravelled in insolvency proceedings, where group entities that thought they were shielded from employer responsibilities can be left having to pay up.

Payroll Services Providers

It’s also a common feature of many arrangements made by on-hire firms for the appointment of a payroll services provider. The contract of appointment might even include the individual worker as a party and might go to considerable lengths to insist that the payroll company must employ the individual. I’ll talk some more about those contracts (and some of their common flaws) in a later post on the topic.

Incorporated Worker Entities (IWEs)

You can also encounter aspects of employer-of-record issues when you’re dealing with a worker owned and controlled through which the worker operates. 

We’re talking, here, about those entities that are effectively the alter ego of the individual who actually performs the work.  Usually, the entity is engaged to provide the required services (e.g., ITC services) and it is left to the entity to employ or engage the individual worker.

If that’s the arrangement you’re working with, you’d want to make pretty sure that the IWE has employed the individual and that the terms of the employment are comprehensively set out in a written contract between the IWE and the worker. Otherwise, you might find that any looseness or uncertainty, or any mistake about the form of contract used, opens the door to an inquiry about whether you, in fact, might be the employer.

We’ve now looked briefly at three different arrangements under which a third party might be identified as the EoR, and we’ve looked at the sort of things that the EoR might be doing.

But, for present purposes, none of that means that the EoR is necessarily the true employer.

The True Employer and How To Find It

The true employer will be the entity which, on an examination of the totality of the relationship, actually controls the work relationship. 

Now, you’re probably going to say that the Golden Trio of recent High Court Cases[ii] put an end to the multi-factor/ totality of the relationship test, and that we can only now have regard to the terms of the contract. 

Well, that is mostly true … if we’re trying to decide if a worker is an employee or an independent contractor – that is to say, if were trying to decide the work status question.  

But it seems it may not be true if we’re trying to answer the different question of who is the employer – the employer identity question.  At least, that’s what the NSW Supreme Court recently said in Spitfire Corp.[iii]

And it seems that the FWC is now finding reasons to distinguish the Golden Trio Cases – even on the work status question.[iv] So, unless your contract is wholly in writing, pretty tight, not a sham, and not unsuited to the use to which you’ve put it, you might still find yourself having to answer some embarrassing questions about how your relationship actually works.

A Panacea?

Taking all this into account, can we be confident that entering into an EoR arrangement with a related entity, a payroll provider, or an Incorporated Worker Entity will relieve an on-hire provider from its employer or labour hire responsibilities.

I don’t think we can. That’s my take on it.

But you can make your own mind up about that!

Andrew C. Wood


[i] Australian Consumer Law s. 31.

[ii] WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681; [2021] HCA 23 (“Workpac”); Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (“Personnel Contracting”); ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (“ZG Operations”).

[iii] In the matter of Spitfire Corporation Limited (in liq.) and Aspirio Pty Ltd (in liq) [2022] NSWSC 340 (“Spitfire Corp”).

[iv] See Waring v Hage Retail Pty Ltd [2022] FWC 540, where, at paras [52] to [56] Deputy President Anderson summarized the principles in the High Court’s decisions in Personnel Contracting and ZG Operations. DP Anderson’s summary was subsequently cited with approval by the Full Bench in Azad v Hammond Park Family Practice Pty Ltd T/A Jupiter Health Warnbro [2022] FWCFB 66 at para [14]. Hage Retail is noteworthy because of the way in which DP Anderson applied the legal principles to the facts of that case in order to find scope to conduct an inquiry which extended well beyond the strict terms of what purported to be the employment contract.

Labour Hire Licensing & Payroll Providers: A simplified or simplistic explanation?

A female temp desk consultant looking over some documents, whilst discussing an assignment with her labour hire worker.The worker is wearing hi vis jacket , and their safety clothing is scattered about the office.

Discussion of the topic, “Who needs a labour hire licence” often gets diverted by red herring issues about whether a payroll provider is the employer, or at least the employer-of-record, and whether the worker is an employee or not.

My simplified or perhaps simplistic explanation of the licensing schemes is that, regardless of whether you are an on-hire firm or a payroll provider, you’ll need a licence if:

  • you have an arrangement with an individual to supply the individual perform work for someone else;
  • the individual qualifies as one of your “workers” (as defined); AND
  • your arrangement with the individual includes an obligation to pay the worker for the work.

This is what we call having a labour hire “supply arrangement”.

There are some subtle variations between the four existing state and territory schemes. There are also additional circumstances in which you might need a licence in Victoria.

Now, some payroll providers do have such an arrangement; others don’t.

Payroll providers which do have such an arrangement with a worker would seem to need a licence.

Those which don’t would not seem to require a licence. Indeed, I’m aware that this is a view that has been confirmed by at least one scheme regulator and that some payroll providers may be in a position to provide regulator confirmation that they do not require a licence. Of course, it’s always important to make sure that you fully understand the facts and circumstances on which that confirmation is given. Don’t assume that one-size-fits-all in this space.

The fact that a payroll provider, which has such an arrangement, requires a licence will not necessarily relieve the on-hire firm that appoints the payroll provider from having a licence as well.

It won’t matter whether the individual is an employee of the person who has the arrangement or not.

The supply of the worker can be direct or indirect; and it needn’t be contractual.

And if the arrangement needn’t be contractual, then it would seem to follow that the payment obligation needn’t be contractual either. Perhaps a moral or equitable obligation, arising from representations or a loose understanding, would suffice.

So, it would seem to make no difference to the licensing requirement whether the payroll provider is the employer or not.

The focus of the inquiry is always on identifying the presence of the labour hire supply arrangement/s. The involvement of multiple parties: typically, on-hire firms, payroll providers, and incorporated worker entities (IWEs) just makes the inquiry that little bit more difficult.

I’ll say something more about contracts with IWEs in a later post. That’s a whole other story!

Andrew C. Wood

A National Labour Hire Scheme … Really?

If anyone is talking to you about a national labour hire licensing scheme, just ask them what they would do with the four current state and territory schemes.

Perhaps the only justification for visiting the regulatory burden of a another licensing scheme on the Australian labour market would be that it might pave the way to dismantle the four existing schemes – at least in part. One set of regulatory burdens in place of four. Maybe that could be justified. But can you see anyone actually doing it?

And even if it could be achieved, what would stop the states and territories from retaining local schemes to licence labour hire supply to their own public sectors, which are substantial users of labour hire services – though some of them might not like to admit it.

Those with longer memories might recall the measures that were included in the intergovernmental Competition Principles Agreement to encourage the dismantling of anti-competitive state licensing schemes during the Hilmer reform era. Perhaps that’s a history that should be revisited.

Andrew C. Wood

Professional Applicant Screening: Always Check for Conditions

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A recent NCAT decision in the Health Care Complaints Commission’s proceedings against an Enrolled Nurse (2021/00171685) should serve as a reminder to staffing and recruitment professionals of the importance of conducting thorough inquiries into nurse registration conditions when screening job applicants.

Background

A candidate, who completed a qualification as an Enrolled Nurse in South Africa in 2004, was first registered in South Australia as an Enrolled Nurse in 2009. In 2016, she moved from South Australia to New South Wales, where her registration under the National Law was subjected to conditions imposed by the Nursing and Midwifery Council of NSW (“the NSW Council”).

The Conditions

In summary, the relevant conditions were:

  1. Administer medications only under direct supervision.
  2. Must be supervised by a Nurse Manager who has been informed of conditions.
  3. Must inform all current and future employers of conditions.
  4. Must only be employed in circumstances where the employer has agreed to notify the Council of any breach of conditions.

The Private Hospital Placements

The candidate obtained a position as an Enrolled Nurse at a private hospital, which provided sub-acute healthcare services, having previously worked there as a temp agency nurse. The evidence suggested that the private hospital was not aware of the conditions when it employed her; or, if it was aware, did not follow through.

The candidate gave evidence that she was approached by the private hospital manager to join the hospital because the manager saw her performance at work while she was working as an agency nurse. She never went through any interview, except to be asked to bring relevant documents which she did. She said that she never said anything about her registration because she was aware that companies were not employing nurses whose registration was subject to conditions.

Her employment was subsequently terminated after the hospital became aware of the conditions.

The Respite Facility Placement

The candidate thereafter applied, through a different recruitment agency, for a position as a Medically Enrolled Nurse with a facility, which offered short term accommodation and respite for people with an intellectual disability, high physical support and/or complex health needs.

The evidence indicated that she did not disclose the registration conditions to either the new recruitment agency or to the respite facility, neither of whom seem to have been aware of them.  

Having successfully obtained the position, she undertook various duties unsupervised, including performance of tracheostomy management.

The Tribunal Proceedings

In proceedings against her by the NSW Council for unsatisfactory professional conduct and professional misconduct arising from breach of conditions, the Tribunal held that her conduct constituted “a flagrant disregard for [her] obligations … and a serious risk to the public”.

The Tribunal ordered that the EN’s registration be cancelled, and that she not be permitted to apply for review of the cancellation for a period of two years.

Observations

The outcome, of course, was a very unhappy outcome for the EN.  

However, what is of equal concern is that the staffing and recruitment agencies, the private hospital, and the respite facility all seem to have been unaware of the conditions that attached to the EN’s registration. It would surely have been easy enough to have checked. They were fortunate, perhaps, to have escaped adverse comment.

The case highlights the importance of developing and monitoring rigorous and reliable controls to ensure that applicants and candidates are thoroughly screened – not only in terms of their having current vaccinations and work entitlements; but also in terms of ascertaining any limiting or disqualifying aspects that could adversely impact the candidate’s suitability. It also higlights the need to follow through if your inquiries do reveal the presence of conditions.

It is no longer satisfactory (if it ever was), in this writer’s opinion, for staffing and recruitment professionals to occupy an all-care-no-responsibility stance, when the care fails to identify what may prove to be “a flagrant disregard for [the candidate’s] obligations … and a serious risk to the public”.

But you can make your own mind up about that.

Andrew C. Wood

CFMMEU v Personnel Contracting Back in Court

Judges running to the bar by The British Library is licensed under CC-CC0 1.0

If you’ve been following the CFMMEU v Personnel Contracting saga, you may be interested to know that the case is back in the Federal Court, with the HCA Remittal Order having been filed on 30 March 2022.

What that means, is that the FCA will now have to decide if Personnel Contracting breached award terms and conditions when it engaged, supplied, and paid its labour hire worker as though he were an independent contractor, when in reality, he was its employee.

This story still has a way to go, and the shouting is not over yet.

Andrew C. Wood

Recruiter Privacy: Can You Tick The Boxes?

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The Office of the Australian Information Commissioner’s insights from its 2021-22 Assessment Program, recently published in Information Matters through its Privacy Professionals’ Network (29/04/2022), lists the following four steps that you should be taking.

  1. clearly document and regularly review your practices and procedures to ensure you outline the measures that are in place to manage privacy risks;
  2. implement regular and mandatory refresher privacy training for staff. This is an important part of entities’ privacy programs. Best practice is annual refresher training for all staff (including contractors and short-term staff);
  3. regularly review and test data breach response plans to ensure their plans are up to date and staff know what actions they are expected to take in the event of a data breach. It is also important that entities proactively monitor audit logs to help identify unauthorised access and disclosure of personal information;
  4. clearly document the operational relationship between your privacy and cyber security teams, as well as the roles and responsibilities of each business area. This will facilitate a coordinated response in the event of a suspected or actual cyber security incident or an eligible data breach.

How many can you tick off?

I especially like No #2. When did you last conduct refresher training for your staff? If you’ve not done it recently, you might like to register for the WorkAccord/ The Recruiters’ Casebook webinar on 3 May 2022, when we’ll be Talking Privacy and What Recruiters Need to Know.

Let’s talk!

Andrew C. Wood

How Much Do Recruiters Really Understand About Recruitment Privacy?

In my experience, most are pretty good. But I have to ask, because I’m staggered to see that, after 20 years, there are still a few recruitment firms out there that believe they are bound by something called the “Recruitment Industry Privacy Code”. They proudly publish the fact in their privacy policies and on their websites.

Fact check…

The Recruitment Industry Privacy Code was the brainchild of ITCRA (APSCo Australia). It was never approved or implemented.  It did not become “a thing”.

It gets worse…

Despite the fact that the RIPC originally contemplated that ITCRA would be the Code Adjudicator, several recruitment firms, perhaps because they weren’t members of ITCRA, simply swapped out references to ITCRA for references to either RCSA or the Privacy Commissioner. And perhaps, because they weren’t members of ITCRA, they didn’t get the memo about the RIPC being withdrawn from the approval process.

Rubbing salt into the wounds

To make matters worse, most of those firms that are still proclaiming their adherence to the RIPC, claim to be committed to protecting the privacy of their clients and candidates … in compliance with the National Privacy Principles … which were replaced in 2014.

I’m sure they are committed, in their own way. But it can’t be much of an advertisement for professionalism if you’re a couple of decades out of date.

Update your awareness

If you need to update your awareness of recruitment privacy, you might like to register for WorkAccord/ The Recruiters’ Casebook webinar on 3 May 2022, when we’ll be Talking Privacy and What Recruiters Need to Know.

Let’s talk!

Andrew C. Wood

Employer of Record v. True Employer: Distinguishing the High Court’s “Golden Trio” Cases

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You might not want to place all your trust in the written contract and the “Golden Trio” of recent High Court cases[i] if you’re still using an employer-of-record payroll arrangement in the belief that it relieves you from your employer responsibilities. That’s because the NSW Supreme Court has recently held[ii] that the High Court’s guidance about characterizing employment relationships by reference solely to the terms of the contract does not apply to the challenge of identifying the “true employer” – at least, not where the provisions and policy of Part 5.6, Div. 6 of the Corporations Act 2001[iii]are engaged.

Whether the NSW Supreme Court’s decision withstands challenge on appeal and whether it stands for any broader principle are matters that remain to be seen. In the meantime, what many may have regarded as having been clarified by the Golden Trio cases may still be a “grey area”.

Background

Spitfire Corporation was the holding company of seven wholly-owned subsidiaries, including Aspirio. Aspirio was set up as employer-of-record for the group. Aspirio:

  • was party to the employment contracts, which provided for the payment of wages, superannuation and other entitlements to employees of the Spitfire Group;
  • took out workers’ compensation insurance and paid premiums for employees of the Spitfire Group;
  • reported PAYG for employees in BAS lodged through the ATO portal;
  • recorded leave entitlements of the employees; and
  • was identified as the payer on payslips issued to the employees.

Before going into liquidation, Spitfire Corporation gave security over its assets to Resilient Investment Group Pty Ltd (Resilient). In the course of the liquidation, a question arose as to whether assets of Spitfire should be used to pay the workers, who were apparently employees of Aspirio, in priority to Resilient as secured creditor.

Determination of the issue required the Court to decide whether Spitfire Corporation or Aspirio was the true employer. If Spitfire Corporation were the true employer, its assets would have been available for payment of the employees ahead of any payment to Resilient.

Argument

Resilient argued, relying on the Golden Trio of recent High Court cases, that determination of the true employer’s identity “does not permit inquiry beyond the employment contract (other than in cases of sham or contractual variation) and that, by reference to the written employment contracts and orthodox contractual principles, Aspirio was the relevant employer of the employees”. It contended that reference to the “totality of the relationship” or to a “multifactorial analysis” was no longer available after the High Court’s decisions.[iv]

In support of a less constrained approach, the liquidators and the Commonwealth (with an interest in payment in the employees’ superannuation) argued that the High Court’s decisions did not deal with a question of who, between competing entities within a corporate group, was the true employer, and that they did not address the question of how the identity of the employer, for the purposes of the insolvency provisions of the Corporations Act, was to be approached. On those grounds, they argued that the High Court decisions did not overrule existing case law that required the true employer’s identity to be determined by reference to the “totality of the relationship” or on the basis of a multifactorial analysis.[v]

Decision

The workers were held to be the employees of Spitfire Corporation.

Black J accepted that earlier “true employer” cases directed to Pt 5.6 Div 6 of the Corporations Act comprised a discrete line of authority which the Court was bound to follow unless the line of authority was overruled by an appellate court.[vi] 

His Honour did not consider the High Court, in Workpac, Personnel Contracting or ZG Operations  expressly or impliedly overruled the earlier line of authority, where the Golden Trio cases “did not need to address and did not address the terms, functions or policy of Pt 5.6 Div 6 of the Corporations Act and the High Court did not there need to consider the implications of treating employment contracts with corporate shells, that have no assets or nominal assets and perform no real business functions, as a means of defeating employee entitlements in insolvency or shifting the liability for them to the Fair Entitlements Guarantee scheme”.[vii]

Although the employment contract named Aspirio as the employer, a number of provisions imposed on the employee obligations owed to members of the Spitfire Group. To that extent, they indicated that Aspirio was merely the agent of the true employer.[viii]

Moreover, the evidence did not establish any business reason for Aspirio, a company without assets, to be the employer of record for all but the managerial employees.[ix]

Significantly, Aspirio:

  • did not carry out any business activities, other than as a formal employer of record;
  • did not have any external clients or customers;
  • had no substantial assets or revenue stream to meet its employment liabilities
  • held only minimal amounts in its bank accounts, except when other entities in the Spitfire Group transferred money to Aspirio to enable it to make tax payments
  • did not make payments to employees from its bank accounts, and Spitfire Corporation made those payments, which were recorded as loans from Spitfire Corporation to Aspirio
  • did not repay the resulting debt that it owed to Spitfire Corporation, and could not do so where it had no assets of substance and did not charge management or other fees to Spitfire Corporation or any other entity in the Spitfire Group.[x]

Further:

  • employees nominally employed by Aspirio undertook work for other companies in the group, each of which conducted different and separate business activities;
  • each business unit had its own supervisors, who made their own decisions about bringing on more staff, dismissing staff, and employee entitlements;
  • each business unit entity was responsible for managing the day-to-day operations of each entity, including giving directions to employees;
  • Aspirio did not carry out any business activities and had no assets or revenue streams to meet its employment liabilities
  • Spitfire Corporation paid the employees and relinquished, without consideration, its formal entitlement to pursue Aspirio for the value of those payments; and
  • there was no evidence of a contractual arrangement between Aspirio and Spitfire Corporation (such as a management services agreement) which would have allowed Aspirio to receive payment for the services it undertook in making its employees available for the benefit of the Spitfire Group, or to fund the payment of their salaries.[xi]

When those factors were considered, and the totality of the relationship examined, the Court held that there was no “intelligible business objective” consistent with the “financial and administrative organisation of the business” in Aspirio’s being the employer of the relevant employees[xii] and that Spitfire Corporation rather than Aspirio was the true employer of the relevant employees, at least for the purposes of Pt 5.6 Div 6 of the Corporations Act.[xiii]

Observations

This seems to have been a fairly clear case in which the evidence overwhelmingly pointed to Aspirio being nothing more than an employer of record or agent for Spitfire Corporation. Its significance lies not so much in the outcome of the multifactorial approach, as in the fact that the multifactorial approach was applied at all following the High Court’s decisions in the Workpac, Personnel Contracting and ZG Operations

The NSW Supreme Court felt able to distinguish those cases because of what the High Court had not dealt with – the question of identity; application in a corporate group situation, where questions of agency might arise; and the circumstance that the provisions and policy of the insolvency protections in the Corporations Act were engaged. 

That should be enough at least to start alarm bells ringing for anyone who might have thought that the Golden Trio cases represented the last word on the topic, and that it was now safe to rely wholly on the terms of the written contract.

Andrew C. Wood


[i] WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681[2021] HCA 23 (“Workpac”); Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (“Personnel Contracting”); ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (“ZG Operations”).

[ii] In the matter of Spitfire Corporation Limited (in liq.) and Aspirio Pty Ltd (in liq) [2022] NSWSC 340 (“Spitfire Corp”).

[iii] Proof and ranking of claims in insolvency. The division includes s. 561 Priority of employees’ claims over circulating security interests.

[iv] Summarised at para [72].

[v] Summarised at paras [73]-[74].

[vi] At para [74].

[vii] At para [76].

[viii] At para [80].

[ix] At para [82].

[x] At para [83].

[xi] At para [84].

[xii] At para [85].

[xiii] At para [90].

Emancipated Labour Contracting: Could it be a thing?

Over the past couple of weeks, I’ve been talking about the unintended consequences of the recent High Court decisions that have led to the supposed demise of the Odco model of labour hire contracting. I’ve been writing about and discussing the legal significance of those cases and what they really mean. You can find most of what I’ve been writing here. on the Recruiters’ Casebook.

Today, and in the lead up to WorkAccord’s Tuesday TalkAbout on 29 March, when we’ll be discussing the topic: Independent Contracting On-Hire: Where to from here? I want to shift direction and plant the seeds for a forward-looking discussion about something that I’ll call, emancipated labour contracting.

Emancipated Labour Contracting

Emancipated labour contracting is simply labour contracting that is freed from the type of contractual dependency, subservience, and control which led the High Court to find that the Odco contractors in CFMMEU v Personnel Contracting were employees.

In Personnel Contracting, Kiefel CJ and Keane & Edelman JJ said that the labour hire firm:

 “…was exercising, and commercialising, its right to control the work that [the worker] would do and how he would do it. The marketability of … a labour‑hire agency turned on its ability to supply compliant labour; without that subservience, that labour would be of no use to [its] clients. That right of control was therefore the key asset of [its] business.”

para [76]

That largely untested understanding of the nature of a labour hire business led those three judges to conclude:

“[the worker’s] work was dependent upon, and subservient to, [the labour hire firm’s] business. That being so, [the worker’s] relationship with [the labour hire firm] is rightly characterised as a contract of service rather than a contract for services. [The worker] was [the labour hire firm’s] employee.” [89] – [90]

paras [89] – [90]

Gageler & Gleeson JJ said much the same thing

…by supplying his labour to [the Host], [the worker] was at the same time supplying his labour to [the labour hire firm] for the purposes of [the labour hire firm’s] business. He was not in any meaningful sense in business for himself”

para [158]

Gordon J similarly said that:

“[the worker] agreed to work in the business or enterprise of [the labour hire firm] promising he would work at its direction for the benefit of [the labour hire firm’s] business of supplying labour to [its] customers and, in return, he was paid by [the labour hire firm].”

para [200]

Control + Integration = Subservience

Can you see what is happening here; how the court has commodified the labour hire firm’s control of the worker (and the work opportunity) to make it appear that the worker is working in the labour hire firm’s business so as to reject any notion that the worker might have retained a measure of independence?

Although the judges are using the language of “control”, they really appear to be applying  a version of the integration test.

New Questions

So, the questions that we might now ask begin to look like this:

  • Is it possible to free or emancipate contractors from the type of control that the Court now regards as indicative of employment in a labour hire context?
  • What would emancipation involve? How would you present it in a contract – given that the court will focus on the terms of the contract to determine the nature of the legal relationship?   
  • Could an on-hire engagement and supply model that doesn’t promise “compliant” or “controlled” labour really work? Is it marketable? Are the on-demand platforms already doing something similar?
  • Why would anyone NOT want to be an employee?  Is it possible to point to any intelligible business purpose that could underpin an emancipated labour contracting model?

Join the Conversation

I hope you’ll start to ask some questions of your own and either bring them along to WorkAccord’s Tuesday TalkAbout on 29 March 2022, or engage in the extended discussion via the Labour Hire Licensing & Regulation (Aust. & N.Z.) LinkedIn Group? We’d love to hear from you.

Let’s talk!

Andrew C. Wood


When your “contractors” turn out to be your employees (#10) …

  • Is it possible to free or emancipate contractors from the type of control that the Court now regards as indicative of employment in a labour hire context? What sort of control is that, anyway?
  • What would emancipation involve? How would you present it in a contract – given that the court will focus on the terms of the contract to determine the nature of the legal relationship.   
  • Could an on-hire engagement and supply model that doesn’t promise “compliant” or “controlled” labour really work? Is it marketable? Are the on-demand platforms already doing something similar?
  • Why would anyone NOT want to be an employee?  Is it possible to point to any intelligible business purpose that could underpin an emancipated labour contracting model?

Join the Conversation

I hope you’ll start to ask some questions of your own and either bring them along to WorkAccord’s Tuesday TalkAbout on 29 March 2022, or engage in the extended discussion via the Labour Hire Licensing & Regulation (Aust. & N.Z.) LinkedIn Group? We’d love to hear from you.

Let’s talk!