Rethinking Independent Contractor Status

This might be unorthodox; but I’ll ask the question anyway. Can I choose not to be an employee?

Do the current common law tests, which are used to distinguish employment from independent contracting, override my decision to work for someone but not be their employee; to work for them, but not have them as my master?

Can the common law force upon me the status of employee against my will by virtue of a judicial consideration of all relevant factors?

If I do not consent, and never did consent, to be an employee, can I really have an enforceable contract of employment?

I’m not talking here about “sham contracting” or disguised employment. I’m talking about a genuine exercise of a volition not to enter into an employment relationship. And can “contracting out” really be a problem if I have never “contracted in”?

Looking forward to seeing what guidance the High Court will give when it hands down decisions in two cases that have recently been argued before it.

Andrew C. Wood

Who’s in charge? Independent contractors and the unfair terms in small business contracts reforms.

On 12 November 2016, what has been described as “the single biggest change in the way Australian enterprises do business for decades.”[1] took place.

Judging from the lack of registrations at one industry association workshop[2], there may be reason to think that it might have passed in some sectors of the recruitment and contracting industry without too much notice[3]. That is a pity because, amongst the seven industry sectors that the ACCC has been viewing closely as it prepares to administer the reforms, is the independent contracting sector.

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