Click here to watch the video
In this week’s It All Depends, lawyer Elise Emmerson talks about the differences between employees and contractors.
Welcome to It depends. Today I will talk about the differences between employees and contractors.
How was the distinction between employees and contractors historically defined?
Historically, courts have taken a multi-factorial approach in determining whether an individual is an employee or contractor, and this includes considering all the circumstances between the parties and deciding whether the individual was an employee or contractor. Thus, some of the factors taken into account in the multifactorial approach included the control exercised over the individual as to whether training was provided, whether equipment was provided, whether the individual could delegate his work, and the label that the parties attached to their relationship. So, the most famous case is probably the Hollis and Babu case, which involved a courier on a bicycle who had an accident with a pedestrian, and the court had to determine whether this person was an employee or a contractor in order to be able to determine whether courier company was held liable for the accident.
How does recent jurisprudence change this approach?
In the High Court cases ZG Operations and Jamsek and CFMMEU, and personal contracts, this approach was modified by emphasizing that when the parties are fully committed to the terms of their contractual relationship and that contract is not in dispute, the determination of whether an individual is The employee or contractor looks at all the rights and obligations under the terms of the contract. Thus, this means that if there is a comprehensive contract that does not give rise to disputes, there is no need to take into account the wide range of factors that are taken into account in a multi-factor approach.
How can I influence these changes in my business?
The most important step businesses can take to influence these changes is to make sure that comprehensive contracts are in place with workers. And it is important to remember that these cases do not imply that contracts can include clauses to recognize an individual as an employee or contractor, while all the terms of the contract will be taken into account. Therefore, it is important to get legal advice and make sure that all the terms of the contract correspond to the intentions of the parties.