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Pauline Bomball[1]*
While the relationship between statute and common law has attracted increased interest in the labour law field, limited attention has been directed at exploring this relationship in cases involving the characterisation of contracts for the performance of work. The characterisation of a work contract as an employment contract or an independent contract carries significant consequences in a number of different contexts, including tort law, employment law and taxation law. Many Australian statutes invoke the common law concept of employment as a criterion by which to confer rights and impose obligations. In determining whether a contract is one of employment and thereby covered by the relevant statute, Australian courts have not generally had regard to the purposes of the statute. However, in some Australian cases, it has been suggested that statutory purpose can, and should, guide the characterisation exercise. This article explores that suggestion, focusing particularly on statutes that confer rights and entitlements upon employees. In doing so, it draws upon decisions of the Supreme Courts of Canada and the United States that have adopted a ‘purposive approach’ to the employment concept. This article seeks to begin a conversation about the utility and viability of a purposive approach to the employment concept in Australia. It does so by canvassing the arguments in favour of a purposive approach and identifying some of the primary barriers to the adoption of such an approach by Australian courts.
Contents
In recent years, the relationship between statute and common law has attracted increased interest.[1] In the labour law context, a burgeoning body of academic work has examined the interaction between statute and common law in relation to the implied term of mutual trust and confidence in employment contracts.[2] Far less attention, however, has been directed at exploring this interaction in cases involving the characterisation of contracts for the performance of work.[3]
The characterisation of a work contract as an employment contract, under which a worker performs work as an employee, or an independent contract, under which a worker performs work as an independent contractor, carries significant consequences in a range of contexts.[4] The distinction between employees and independent contractors is important in the law of vicarious liability, because employers are vicariously liable for the torts of their employees but principals are not vicariously liable for the torts of their independent contractors.[5] The distinction is also relevant to the operation of various statutes that confer rights or impose obligations by reference to the concept of employment. For example, the Fair Work Act 2009 (Cth)
(‘FW Act’), which is the primary labour statute in Australia, generally confers rights upon employees only.[6] Workers who are not employees, such as independent contractors, are generally not entitled to these rights. As a result, the employment concept operates as a gateway to the rights in the FW Act.
The employment concept is also used in other statutes, such as those dealing with superannuation and taxation. For example, state payroll taxation statutes impose tax upon the wages that employers pay to their employees.[7] Under the Superannuation Guarantee (Administration) Act 1992 (Cth), employers must make superannuation payments on behalf of their employees.[8] Employers must also withhold income taxation from the wages of their employees under the Taxation Administration Act 1953 (Cth).[9]
Despite their widespread adoption by statutes, the terms ‘employee’ and ‘employer’ are often left undefined, or are only minimally defined, by those statutes. For example, s 15 of the FW Act, headed ‘[o]rdinary meanings of employee and employer’, simply states that ‘[a] reference in this Act to an employee within its ordinary meaning: (a) includes a reference to a person who is usually such an employee; and (b) does not include a person on a vocational placement’, and ‘[a] reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer’.[10] The Explanatory Memorandum that accompanied the Fair Work Bill 2008 (Cth) stated that the terms ‘employee’ and ‘employer’ in the legislation referred to those concepts as understood ‘at common law’.[11]
The ‘common law concept of employment’[12] was developed primarily in tort law cases involving claims of vicarious liability.[13] Australian courts have had recourse to this common law concept when determining whether a worker is an employee for the purposes of a statute that invokes the term ‘employee’ as a criterion for its operation. For example, in ACE Insurance
Ltd v Trifunovski,[14] a case involving a claim by a group of workers to certain leave entitlements under the Workplace Relations Act 1996 (Cth),[15] Perram J stated that the question of whether these workers were ‘employees’, and thereby covered by the Act, was to be answered by reference to the common law concept of employment. The question was, therefore, to be ‘approached from the common law’s perspective on the imposition of vicarious liability and with it a subsisting policy debate about the distributive allocation of losses between tortfeasors and their victims’.[16] His Honour observed that the common law concept of employment was unaffected by the purposes underpinning any statute that engaged the concept.[17]
There is, however, reason to question such an approach to the employment concept in statutory contexts. In the special leave hearing in ACE Insurance Ltd v Trifunovski, Hayne J suggested that there may be
a ‘deeper question of principle’[18] relating to whether ‘the question of employment for the purposes of entitlements of the kind now in issue was to be determined according to considerations that made, for example, the vicarious responsibility cases irrelevant’.[19] The application for special leave was ultimately refused,[20] and the deeper question of principle that Hayne J identified lingers, unanswered, in Australian law.
Some judges have addressed the point briefly in obiter dicta. For example, in Day v The Ocean Beach Hotel Shellharbour Pty Ltd, Leeming JA stated that ‘a conclusion that a person is an “employee” or “independent contractor” for a particular purpose (such as payroll tax, or superannuation, or employment law) cannot determine whether the relationship is such as to engage the rules of vicarious liability’.[21] More recently, in Tattsbet Ltd v Morrow, Allsop CJ observed that ‘[t]he statutory and factual context will always be critical in a multifactorial process of characterisation of a legal and human relationship: employment’.[22] His Honour referred to the approach of the United States Court of Appeals for the Second Circuit (‘US Second Circuit Court of Appeals’) in Lehigh Valley Coal Co v Yensavage (‘Lehigh Valley’),[23] one of the early cases in the United States (‘US’) that expounded a purposive approach to the employment concept. Allsop CJ did not, however, elaborate upon why or how the statutory context was relevant to the characterisation exercise.
A purposive approach to the employment concept has been adopted by courts in some overseas jurisdictions, including the Supreme Court
of Canada[24] and, for a time, the Supreme Court of the United States
(‘US Supreme Court’).[25] Under such an approach, the purposes underpinning a common law doctrine (for example, the doctrine of vicarious liability) that engages the employment concept, or the purposes underpinning a statute that operates by reference to the employment concept, are taken into account in determining whether a worker is an employee in a particular context.[26] One consequence of adopting a purposive approach to the employment concept is that a worker may be an employee in one context but not another.[27] For example, a worker may be characterised as an employee for the purposes of a labour statute conferring employment rights and protections, but an independent contractor for the purposes of a taxation statute or vicarious liability in tort law, or vice versa.[28] The reason for this is that different statutes with different purposes operate by reference to the employment concept.[29] These purposes also differ from the purposes informing the common law doctrine of vicarious liability.
Purposive approaches to labour law have attracted interest in other jurisdictions[30] but received limited attention from the judiciary and scholars in Australia.[31] This article seeks to begin a conversation about the utility and viability of a purposive approach to the employment concept in Australia. It does so by canvassing the arguments in favour of a purposive approach and identifying some of the primary barriers to the adoption of such an approach by Australian courts. It critically evaluates several strands of reasoning in the Australian case law, both within and outside of the labour law context, that have a bearing upon the viability of a purposive approach to the employment concept. It also draws upon Canadian and US case law for comparative insights. This article focuses on statutes that confer employment entitlements and protections, such as leave entitlements and protections from unfair dismissal, upon those who are ‘employees’. These statutes will be referred to as ‘protective labour statutes’.[32] The reason for focusing on these statutes is that much of the Canadian and US case law on the purposive approach to the employment concept involves protective labour statutes.[33] Despite this focus, some of the arguments made in this article have implications for other types of statutes in Australia that engage the employment concept.
This article proceeds in three parts. Part II critically analyses Australian cases concerning the characterisation of work contracts. It demonstrates that in determining whether a worker is an employee in respect of a particular statute that engages the employment concept, courts have generally applied the common law concept of employment as expounded in vicarious liability cases without regard to the purposes underlying the relevant statute. In several cases, however, this approach has been called into question and it has been suggested that statutory purpose should be taken into account in the characterisation exercise.[34] Part III and Part IV of this article assess the utility and viability of this alternative approach. To this end, Part III undertakes a comparative analysis, drawing upon decisions of the Supreme Court of Canada and the US Supreme Court that have adopted a purposive approach to the employment concept in respect of protective labour statutes. Part IV then identifies and examines some of the key barriers to the adoption of such an approach by Australian courts.
The common law concept of employment was developed primarily in vicarious liability cases.[35] Historically, the ‘control test’ was applied to distinguish employees from independent contractors.[36] Under this test, courts had regard to the ‘nature and degree’[37] of control that the ‘hirer’[38] exercised over the worker. If the worker was subject to the hirer’s control in respect of the manner in which the work was to be performed, then the worker was an employee.[39] An independent contractor was a worker who ‘[undertook] to produce a given result, but ... in the actual execution of the work ... [was] not under the order or control of’ the hirer.[40]
Australian courts no longer apply the control test. Instead, in determining whether a worker is an employee or an independent contractor, the courts apply a multi-factor test.[41] This multi-factor test requires a court to assess and balance a range of factors against each other. These factors include: whether the hirer exercises control over the worker; whether the worker is required to provide personal service; whether the worker is responsible for the supply and maintenance of tools and equipment; whether the worker assumes the risk of loss and has an opportunity for profit; whether the worker is paid on a time basis or a piece rate; and whether the hirer has assumed responsibility for matters such as leave, superannuation, insurance and taxation.[42] Although control remains a significant factor, it is not the only one, and the High Court of Australia has stated that ‘it is the totality of the relationship between the parties which must be considered’.[43] None of the factors, apart from the requirement of personal service,[44] is alone conclusive.[45] Instead, in arriving at a conclusion on the character of a work contract, the court considers the factors holistically.[46]
The common law concept of employment is informed and moulded by the policy considerations underlying the doctrine of vicarious liability. The High Court made this clear in Hollis v Vabu Pty Ltd (‘Hollis’), where the issue was whether a company which ran a courier business was vicariously liable for the negligent conduct of one of its bicycle couriers.[47] The majority stated that ‘[t]erms such as “employee” and “independent contractor”, and the dichotomy which is seen as existing between them, do not necessarily display their legal content purely by virtue of their semantic meaning’.[48] Rather, the content of these terms ‘will reflect, from the facts of case to case, the particular force given to the considerations supporting the doctrine of vicarious liability’,[49] and ‘guidance’ on whether a worker is an employee or an independent contractor ‘is provided by various matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability’.[50]
The common law concept of employment is purposive, in the sense that it is moulded by the purposes of the vicarious liability doctrine.[51] The remainder of this article is concerned with whether this concept can be moulded by the purposes of a statute that engages the concept. Unless otherwise indicated, references in the rest of the article to a purposive approach should be understood as references to this statutory purposive approach.
Two key points can be discerned from Australian cases involving the characterisation of work contracts in statutory contexts. The first is that when a statute uses the term ‘employee’ as a criterion for its operation, recourse is had to the common law concept of employment to determine whether a worker is an employee or an independent contractor in respect of the statute. In R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (‘Foster’), Dixon, Fullagar and Kitto JJ stated that the terms ‘employee’ and ‘employer’, when used in s 4 of the Conciliation and Arbitration Act 1904 (Cth), referred to the ‘relation called at common law master and servant’.[52] Stephen J took the same approach in Federal Commissioner of Taxation v Barrett, which involved a taxation statute that used the term ‘employee’ as a criterion of liability.[53] His Honour stated:
The Act thus employs the term ‘employee’, unaffected by statutory definition, as the ultimate touchstone of liability of tax; it relies for its operation upon the meaning of this term of art in the law and in doing so necessarily refers to a concept which owes its origin and refinement to the common law and the meaning of which is to be found in the decisions of the courts and cannot be divorced from them. So long as those decisions are not affected by special statutory context they will be decisive of the meaning of ‘employee’ or of its more ancient but now somewhat anachronistic synonym, ‘servant’.[54]
The second and related point is that the common law concept of employment is unaffected by statutory context. That is, it is not moulded or informed
by the purposes of any of the statutes that engage it. In ACE Insurance
Ltd v Trifunovski, Perram J observed that the term ‘employee’ in the Workplace Relations Act 1996 (Cth) referred to the common law concept
of employment, and that the various statutes which engage the employment concept ‘do not have any impact upon the common law’s content
which remains concerned with, and focused upon, the imposition of vicarious liability’.[55]
More recently, in C v Commonwealth, the Full Federal Court stated that the terms ‘employee’ and ‘employer’ in the FW Act ‘are rooted in the common law’ and that the ‘terms refer to parties to a contract of service or employment’.[56] The Court referred in this regard to Hollis, where the High Court had observed that the common law concept of employment is informed by the policy considerations underpinning the doctrine of vicarious liability.[57] Significantly, the Court in C v Commonwealth also distinguished an earlier Full Federal Court decision, Konrad v Victoria (‘Konrad’), in
which a purposive approach had been taken to the term ‘employee’ in a statutory context.[58]
The issue in Konrad was whether members of the Victorian police force were entitled to the protections of the termination of employment provisions in div 3 of pt VIA of the Industrial Relations Act 1988 (Cth) (‘IR Act’).[59] This turned upon whether they were ‘employees’ for the purposes of these statutory provisions.[60] The constitutional underpinning of these provisions was the external affairs power in s 51(xxix) of the Australian Constitution.[61] Finkelstein J had regard, among other things, to s 170CA(1) of the IR Act,[62] which stated that the object of these provisions was to give effect to the Termination of Employment Convention[63] and the Termination of Employment Recommendation.[64] His Honour also had regard to s 170CB of the IR Act, which stated that ‘[a]n expression has the same meaning ... [in the termination of employment provisions] as in the Termination of Employment Convention’.[65] There were cases that indicated that police officers were
not ‘employees’ under Australian common law.[66] Finkelstein J observed, however, that the term ‘employee’ in div 3 of pt VIA of the IR Act should not be ‘confined to its common law meaning’.[67] Rather, the term should be interpreted with regard to its purpose, which was to give effect to the Termination of Employment Convention.[68] His Honour concluded that the term captured the police officers in this case.[69] In adopting this purposive approach to the interpretation of the term ‘employee’, Finkelstein J referred, among other things, to the US Supreme Court’s decision in National Labor Relations Board v Hearst Publications Inc (‘Hearst Publications’).[70] In Hearst Publications, which will be discussed below, the Court adopted a purposive approach to the employment concept in a protective labour statute.[71]
The Court in C v Commonwealth distinguished Konrad on the basis that the FW Act does not contain a section such as s 170CB of the IR Act.[72] Rather, the Court noted that the relevant provisions of the FW Act refer to the ‘ordinary meaning’[73] of employer and employee, and this ‘narrower definition’[74] was to be taken as a reference to the common law concept of employment.[75] Further, the Court in C v Commonwealth stated that pt 3-1 of the FW Act,[76] upon which the applicant relied, is for the large part underpinned by the corporations power in s 51(xx) of the Australian Constitution.[77] Unlike the provisions under consideration in Konrad, pt 3-1 of the FW Act is not supported by the external affairs power. As a result, the Court also rejected the argument that a broader approach to the concept of employment was needed to comply with Australia’s international obligations.[78]
Courts have not engaged with the purposes of the relevant statute, even in those cases where it has been stressed that regard should be had to the reality of the relationship in determining whether a worker is an employee or an independent contractor.[79] In order to develop this point, it is necessary to examine briefly the cases that have addressed matters of form and substance in the characterisation of work contracts. An approach that privileges form over substance in characterisation accords primacy to the terms of the contract and disregards, or places limited weight upon, how the parties conduct their relationship in practice.[80] An approach to characterisation that focuses on the substance or reality of the relationship directs attention to the way the parties conduct themselves in practice.
In Hollis, a majority of the High Court stated that ‘the relationship between the parties ... is to be found not merely from [the] contractual terms’ but also from ‘[t]he system which was operated thereunder and the work practices imposed by Vabu’.[81] Some scholars have regarded this statement as an endorsement of an approach to characterisation that focuses on the substance of the relationship,[82] though others have pointed to alternative interpretations of it.[83] Following Hollis, some judges of the Federal Court have explicitly adopted an approach to the characterisation of work contracts that focuses on the substance of the relationship. For example, in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd, North and Bromberg JJ observed that ‘when determining whether a relationship is one of employment’, it is necessary ‘to ensure that form and presentation do not distract the Court from identifying the substance of what has been truly agreed’.[84] It should be acknowledged that there have been decisions of other Australian courts, subsequent to Hollis, which have adhered to an approach that privileges form over substance.[85]
It is important to note that an approach to characterisation that focuses on the substance of the relationship is not the same as a purposive approach to characterisation. The two are related; indeed, an approach that focuses on substance over form is a component of the purposive approach. However, a purposive approach goes further than an approach that is attentive to the substance of the relationship. Professor Guy Davidov made this point in his seminal work on purposive approaches to labour law.[86] He observed that ‘sensitivity to economic realities, with a focus on the real arrangements between the parties instead of a formalistic reliance on the written terms of the contract’ is ‘important’ but ‘not sufficient’.[87] As the analysis of the US and Canadian cases in Part III of this article will show, a purposive approach that is attentive to statutory purpose goes further and results in a reorientation of the multi-factor test.[88] For now, it suffices to note that even in those cases where courts have focused on the substance of the relationship in the characterisation exercise, the purposes of the relevant statute have not been taken into account.[89]
The preceding analysis demonstrates that Australian courts have generally not had regard to statutory purpose when determining whether a worker is an employee or an independent contractor. There are, however, several exceptions.[90] In Articulate Restorations & Development Pty Ltd v Crawford, a decision of the New South Wales Supreme Court, the issue was whether a worker was an employee or an independent contractor for the purposes of the Workers Compensation Act 1987 (NSW).[91] Mahoney JA stated that ‘the Workers Compensation legislation should, in my opinion, be regarded as beneficial legislation in the sense at least that it is directed to ensuring that industry bears the burden, or most of the burden, of the accidents which, as experience has shown, it inevitably produces’.[92] His Honour observed that ‘[i]n such legislation, it is proper that the entitlements of the injured person not depend upon distinctions which are too nice’.[93]
Borg v Olympic Industries Pty Ltd dealt with the distinction between employees and independent contractors for the purposes of the Industrial Conciliation and Arbitration Act 1972 (SA).[94] In this case, the Industrial Court of South Australia suggested that ‘the answer to the question’ of whether a worker is an employee or an independent contractor ‘appears sometimes to depend on the purpose or reason behind the question’.[95] The Court observed that the answer to the question in the context of a taxation matter might be different to the answer reached in a vicarious liability case.[96]
In R v Allan; Ex parte Australian Mutual Provident Society, Bray CJ observed that matters ‘of legislative policy are involved’ in the question of whether a worker is an employee or an independent contractor ‘for the purpose of fiscal statutes or statutes of social, economic or industrial regulation’.[97] The Full Federal Court adopted these statements in Rowe v Capital Territory Health Commission.[98] Despite these judicial observations, limited attention has been directed at ascertaining why or how statutory purpose may be relevant to the characterisation exercise. Is a purposive approach to the employment concept in statutory contexts viable in Australia? What does a purposive approach entail? The next part of this article turns to Canadian and US cases for guidance on these issues. It focuses on cases where statutory purpose has been used to guide the characterisation of a work contract in respect of a protective labour statute.
Those who engage in comparative analysis must exercise caution. As Sir Otto Kahn-Freund has observed, ‘any attempt to use a pattern of law outside the environment of its origin continues to entail the risk of rejection’.[99] In a similar vein, French CJ, Bell and Keane JJ stated in Commonwealth Bank of Australia v Barker (‘Barker’) that ‘[j]udicial decisions about employment contracts in other common law jurisdictions ... attract the cautionary observation that Australian judges must “subject [foreign rules] to inspection at the border to determine their adaptability to native soil”’.[100] Those advocating for the adoption of a particular principle or approach from a different jurisdiction need to be mindful of the context in which that principle or approach was developed.[101] Comparative law is misused when ‘it is informed by a legalistic spirit which ignores this context of the law’.[102]
There are three contextual matters that suggest that the Canadian and US cases serve as appropriate comparators here. The first is that in each of Australia, Canada and the US, the common law concept of employment was developed primarily in vicarious liability cases.[103] In all three countries, a multi-factor test is applied to determine whether a worker is an employee or an independent contractor for the purposes of vicarious liability.[104] The second is that in all three countries, multiple statutes invoke the employment concept as a criterion for their operation. The types of statutes engaging the employment concept are also similar, including labour statutes and taxation statutes.[105] The third is that in all three countries, the statutes that engage the employment concept generally leave the term ‘employee’ either undefined or only minimally defined.[106] The similarities with respect to these three matters indicate that it is appropriate to have regard to Canadian and US cases to assess the utility and viability of a purposive approach to the employment concept in Australia.
It is necessary, too, to explain why the approach of the Supreme Court of the United Kingdom (‘UK Supreme Court’) in Autoclenz Ltd v Belcher (‘Autoclenz’)[107] is not examined in this article. In Autoclenz, the Court explicitly adopted a ‘purposive approach’[108] in determining whether workers were employees or independent contractors for the purposes of protective labour legislation.[109] The purposive approach examined in this article is different from the purposive approach propounded in Autoclenz. This article considers whether the employment concept can be moulded by reference to the purposes of a statute that engages the concept. The core aspect of Autoclenz was its privileging of substance over form in characterisation. In characterising the work contract, the UK Supreme Court focused on the substance of the relationship, as revealed by how the parties conducted themselves in practice, rather than the form of the relationship, as set out in the contractual documentation.[110] As noted above,[111] a focus on substance is only one aspect of the purposive approach examined in this article.
There are difficulties with applying, to different statutory contexts, a common law concept of employment that is rooted in the policy considerations underpinning the doctrine of vicarious liability. Leading labour law scholars in Australia have suggested that ‘the application of a universal test, with little regard for the context in which the existence of a contract of service falls to be determined, may arguably defeat the policy objectives of the different regulatory schemes involved’.[112] In ACE Insurance Ltd v Trifunovski,
Buchanan J alluded to the challenges of applying a concept developed in vicarious liability cases to questions of employment for the purposes of statutory employment entitlements:
The two areas where the distinction [between employees and independent contractors] is important concern the duties and obligations owed by the contracting parties to each other and the duties and obligations that one of them may owe to third parties. It is in the latter field that much of the learning has been expressed, although that circumstance has introduced some difficulties into the former.[113]
Buchanan J did not elaborate upon these difficulties. One of these difficulties is the disjunction between the purposes of the vicarious liability doctrine and the purposes of protective labour statutes that engage the employment concept. Professor Harry Arthurs made this point in 1965 in a highly influential article concerning, among other things, judicial approaches to the employment concept in collective bargaining legislation in Canada.[114] He noted that the concerns of vicarious liability, which centre upon the allocation of losses between a person or entity who engages another to perform work and the third party who has been injured as a result of the worker’s negligence, are unconnected to the purposes underlying protective labour statutes.[115] He expressed concern about the failure of the Canadian courts to adopt a purposive approach to the employment concept in statutory contexts and observed that ‘[s]urely any meaningful definition [of employee] must be formulated in light of ... statutory purpose’.[116]
Courts in Canada and, for a time, the US identified the disjunction between the purposes of the vicarious liability doctrine and the purposes of protective labour statutes as a reason for taking a different approach to the term ‘employee’ in cases involving such statutes. In a series of cases, the US Supreme Court adopted an approach to the characterisation of work contracts that was informed by the purpose of the relevant statute. Influential in these cases was an early exposition of the purposive approach to characterisation in Lehigh Valley, a decision of the US Second Circuit Court of Appeals.[117]
The issue in Lehigh Valley was whether a worker was an employee for the purposes of a protective labour statute.[118] Learned Hand J stated that the term ‘employed’ in the legislation ‘must be understood with reference to the purpose of the act, and where all the conditions of the relation require protection, protection ought to be given’.[119] His Honour observed that ‘the whole purpose of such statutes ... [is] to protect those who are at an economic disadvantage’[120] and that ‘[s]uch statutes are partial; they upset the freedom of contract ... they should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them’.[121]
The reasoning in Lehigh Valley was influential in the US Supreme Court’s judgment in Hearst Publications, which concerned the National Labor Relations Act (‘NLRA’).[122] At issue in Hearst Publications was whether newsboys who distributed newspapers for the defendant newspaper companies were employees for the purposes of the NLRA, such as to require the defendant companies to bargain collectively with the union
that represented the newsboys.[123] The term ‘employee’ was defined in the NLRA to ‘include any employee, and shall not be limited to the employees
of a particular employer, unless the Act explicitly states otherwise’.[124]
In determining whether the newsboys were employees, Rutledge J,
who delivered the opinion of the Court, adopted and applied a
purposive approach.
In his elaboration of the purposive approach, Rutledge J reiterated the statement of Learned Hand J in Lehigh Valley that ‘[w]here all the conditions of the relation require protection, protection ought to be given’.[125] Rutledge J observed that ‘technical concepts pertinent’ to an employer’s vicarious liability should not be invoked ‘to restrict the scope of the term “employee”’ in the NLRA.[126] Adoption of the restrictive common law test would not be ‘consistent with the statute’s broad terms and purposes’.[127] Instead, the term ‘employee’ in the NLRA ‘“takes color from its surroundings ... [in] the statute where it appears”[128] ... and derives meaning from the context of that statute, which “must be read in the light of the mischief to be corrected and the end to be attained”’.[129]
In this case, the newsboys worked full time and were subject to supervision in the performance of their work by the companies’ district managers.[130] This supervision and control extended to matters such as their hours and location of work and the sales techniques they adopted (including how to advertise and display the papers).[131] Poor performance could result in sanctions of varying severity, including dismissal.[132] The defendant companies supplied the newsboys with the relevant sales equipment, such as advertising placards and racks.[133] The newsboys received the difference between the price they paid the companies for the newspapers and the price at which they sold the newspapers, both of which were controlled by the company.[134] The companies also controlled the number of papers that each newsboy was allocated.[135] Accordingly, the defendant companies effectively dictated the remuneration of the newsboys. Viewing these facts as a whole, Rutledge J concluded that the newsboys were employees of the defendant companies.[136] Rutledge J observed that ‘the particular workers in these cases are subject, as a matter of economic fact, to the evils the statute was designed to eradicate’.[137]
In United States v Silk (‘Silk’),[138] the US Supreme Court followed the approach in Hearst Publications. Reed J delivered the opinion of the Court in Silk. The issue in that case was whether the workers in question were employees for the purposes of the Social Security Act (‘SSA’).[139] The term ‘employment’ was defined in the SSA to mean ‘any service, of whatever nature, performed ... by an employee for his employer ...’[140] but, as Reed J noted, ‘[n]o definition of employer or employee applicable to these cases’ appeared in the SSA.[141] Reed J stated that the term ‘employee’ was ‘to be construed to accomplish the purposes of the legislation’.[142] The factors in the multi-factor test for employment were applied, but they were approached with the understanding that the statute favoured broader coverage and protection.[143] Reed J observed that ‘[a]s the federal social security legislation
is an attack on recognized evils in our national economy, a constricted
interpretation of the phrasing by the courts would not comport with
its purpose’.[144]
Following the decisions in Hearst Publications and Silk, amendments to the NLRA and the SSA were passed by the US Congress. These amendments made it clear that the common law concept of employment, uncoloured by reference to statutory purpose, was to be applied to determine whether a worker was an employee for the purposes of these statutes.[145] These amendments prompted the US Supreme Court to abandon the purposive approach to the employment concept.[146] Despite its abandonment in the US, the purposive approach articulated in Hearst Publications influenced the writings of leading labour law scholars, including Professor Harry Arthurs and Professor Guy Davidov.[147] Their work on the purposive approach has, in turn, been influential in Canada.[148]
Canadian courts have adopted a purposive approach to the employment concept in respect of protective labour statutes. This approach is informed more generally by the way Canadian courts view the purposes of statutes that confer employment rights and protections. In Machtinger v HOJ Industries Ltd, the Supreme Court of Canada observed that the purpose of such statutes is ‘to protect the interests of employees’.[149] In Dynamex Canada Inc v Mamona,[150] the Federal Court of Appeal of Canada made a similar point in respect of the Canada Labour Code.[151] The Court stated that ‘[a] review of Part III [of the Canada Labour Code] as a whole indicates that it falls into the category of labour standards legislation’.[152] The Court observed that while
the ‘terms and conditions of employment were once considered a private matter ... exploitation in the workplace’ had prompted the Canadian Parliament to pass legislation providing for minimum standards in respect of matters such as wages, leave, protection upon dismissal and hours of work.[153] Such legislation was intended, among other things, to ‘protect individual workers and create certainty in the labour market by providing minimum labour standards and mechanisms for the efficient resolution of disputes arising from its provisions’.[154] The provisions in protective labour statutes are given a broad and liberal interpretation consistent with the beneficial nature of these statutes.[155]
Canadian courts apply this beneficial interpretive stance to the term ‘employment’ in protective labour statutes.[156] Importantly, while they take the common law concept of employment as a starting point for characterisation of the work contract, they mould this multi-factor test by reference to the protective purpose of these statutes.[157] Whereas in vicarious liability cases the considerations underpinning that doctrine are used to inform the application of the multi-factor test,[158] in cases involving statutory labour protections, the factors in the test are assessed by reference to the purposes underlying the relevant legislation.
A recent example of this approach at ultimate appellate level is
McCormick v Fasken Martineau DuMoulin LLP (‘McCormick’),[159] a case involving the term ‘employment’ in the British Columbia Human Rights Code.[160] The Supreme Court of Canada observed that the various factors in the multi-factor test ‘are unweighted taxonomies, a checklist that helps explore different aspects of the relationship’.[161] The Court noted that these factors are ‘helpful in framing the inquiry [but] they should not be applied formulaically’.[162] Instead, these factors are to be viewed through the ‘animating themes’[163] of control and dependency and ‘[w]hat is more defining than any particular facts or factors is the extent to which they illuminate the essential character of the relationship and the underlying control and dependency’.[164] The existence of control and dependency indicates that the particular worker possesses the ‘kind of vulnerability’ that the statute ‘intended to bring under its protective scope’.[165] In explaining these concepts of control and dependency, the Court made the following observation:
Deciding who is in an employment relationship for the purposes of the Code means, in essence, examining how two synergetic aspects function in an employment relationship: control exercised by an employer over working conditions and remuneration, and corresponding dependency on the part of a worker. In other words, the test is who is responsible for determining working conditions and financial benefits and to what extent does a worker have an influential say in those determinations? The more the work life of individuals is controlled, the greater their dependency and, consequently, their economic, social and psychological vulnerability in the workplace.[166]
The Supreme Court stated that this broad and liberal approach to the employment concept was consistent with the remedial and protective purposes of the Human Rights Code.[167] The concept was broader than the ‘unduly restrictive traditional test for employment’ developed in the vicarious liability cases.[168] Importantly, while this approach was expounded in respect of a human rights statute, the Court noted that it applied more generally to other protective labour statutes, subject to any unique features of the particular statute.[169] Indeed, in articulating the approach, the Court in McCormick cited Pointe-Claire v Labour Court (Quebec) (‘Pointe-Claire’),
an earlier decision of the Supreme Court of Canada dealing with
collective bargaining legislation.[170] In Pointe-Claire, the Court stated that in approaching the characterisation exercise, regard should be had to the purposes of the labour statute.[171]
The purposive approach to protective labour statutes adopted in Canada and, for a time, the US, moulds the common law concept of employment by reference to the protective purposes of those statutes. Drawing principally upon the work of Professor Guy Davidov,[172] the Supreme Court of Canada identified control and dependency as the ‘kind of vulnerability’ that is targeted by protective labour statutes.[173] As Professor Davidov has argued, employees are different from independent contractors because they are vulnerable, with the concept of ‘vulnerability’ comprising subordination[174] and dependency.[175] This conception of vulnerability captures what is unique about employees and thus is tailored to the questions that courts should be seeking to answer when they engage in the characterisation of work contracts for the purposes of protective labour statutes.[176] In the words of Learned Hand J in Lehigh Valley, it captures the ‘conditions of the relation [that] require protection’.[177]
This section has discussed the shortcomings of applying an employment concept moulded by the concerns of vicarious liability to protective labour statutes. These shortcomings have been identified in Canadian and US cases as a reason for adopting a broader and more beneficial approach to the employment concept in respect of these statutes. A related reason for adopting such an approach is that it coheres with the prevailing approach to statutory interpretation in Australia, which requires courts to have regard to statutory purpose.
In the Canadian and US cases discussed above, courts placed primary emphasis on the need to construe the words of a statute, such as the term ‘employee’, in a manner consistent with the purposes of the statute. For example, in Hearst Publications, Rutledge J stated that the term ‘employee’ ‘derives meaning from the context of [the NLRA], which “must be read in light of the mischief to be corrected and the end to be attained”’.[178] This is consistent with the prevailing approach to statutory interpretation in Australia.[179]
In Australia, purposive statutory construction has been statutorily enshrined in s 15AA of the Acts Interpretation Act 1901 (Cth) and its state and territory counterparts.[180] Section 15AA provides that ‘[i]n interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation’. The High Court of Australia has on numerous occasions directed attention to the importance of having regard to purpose in statutory construction. For example, in Federal Commissioner of Taxation v Unit Trend Services Pty Ltd,[181] French CJ, Crennan, Kiefel, Gageler and Keane JJ quoted the following passage from French CJ and Hayne J’s judgment in Certain Lloyd’s Underwriters v Cross:
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ ... That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.[182]
In the labour law context, the High Court of Australia has in a recent case interpreted s 357(1) of the FW Act[183] in a purposive manner and referred explicitly to the mischief that was sought to be remedied. In Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd, a unanimous Court focused on the ‘purpose of the prohibition’[184] in s 357(1) and concluded that ‘[t]he misrepresentation attributed to Quest was squarely within the scope of the mischief to which the prohibition in s 357(1) was directed and is caught by its terms’.[185] Thus, the concepts of purpose and mischief, which are central to the operation of the statutory purpose approach in the Canadian and US cases, are not foreign concepts to Australian law. Rather, they form the foundations of the prevailing approach to statutory construction in Australia.
The purposive approach to the employment concept coheres with the general approach to statutory interpretation in Australia. Despite the apparent utility of the purposive approach to the employment concept, there are some barriers to the adoption of it by Australian courts. The final part of this article identifies and examines these barriers.
Where a statute invokes a term that has a technical meaning at common law, then, in the absence of a contrary intention, the statutory term is to be understood in that technical legal sense.[186] In giving content to that statutory term, recourse is to be had to the relevant common law doctrine or concept. This is an established principle of statutory interpretation.[187] In Commiss-ioners for Special Purposes of the Income Tax v Pemsel (‘Pemsel’), a majority of the House of Lords held that the word ‘charitable’ in a taxation statute was to be taken as a reference to the concept of a charity as understood in the law of equity.[188] Lord Macnaghten held that the word ‘“charity” in its legal sense comprises four principal divisions’ and went on to identify the four ‘heads’ of charity.[189] The Privy Council adopted the same interpretive approach in Chesterman v Federal Commissioner of Taxation (‘Chesterman’).[190]
More recently, in Aid/Watch Inc v Federal Commissioner of Taxation (‘Aid/Watch’),[191] a majority of the High Court followed the interpretive approach in Pemsel and Chesterman and held that the word ‘charitable’ in several taxation statutes was to be understood in its technical legal sense.[192] The majority made two important statements that are relevant here. First, their Honours stated:
Where statute picks up as a criterion for its operation a body of the general law, such as the equitable principles respecting charitable trusts, then, in the absence of a contrary indication in the statute, the statute speaks continuously to the present, and picks up the case law as it stands from time to time.[193]
Second, their Honours stated:
[W]here, as here, the general law comprises a body of doctrine with its own scope and purpose, the development of that doctrine is not directed or controlled by a curial perception of the scope and purpose of any particular statute which has adopted the general law as a criterion of liability in the field of operation of that statute.[194]
The interpretive principle laid down in Pemsel, and elaborated upon by the majority in Aid/Watch, appears to preclude a purposive approach to the common law concept of employment. It prevents the purpose of any statute that engages the employment concept from moulding or informing the development of the concept. This interpretive principle has, however, been questioned.[195] Professor Matthew Harding, a leading equity scholar,
has argued that while this interpretive principle is well accepted,[196] it is also the case that ‘contemporary understandings of statutory interpretation, according to which interpreters must look to the ordinary meaning
of the statutory text in context, and to relevant legislative purposes,
have ... received the imprimatur of the High Court of Australia in highly authoritative terms’.[197]
Pemsel was handed down prior to the rise of the purposive approach to statutory interpretation. Professor Harding suggested that the interpretive principle in Pemsel ‘may now need to be revisited in light of those understandings’[198] and that further analysis was required by courts in
future cases to determine whether, and how, the Pemsel principle
could be ‘reconciled with the contemporary understandings of statutory interpretation’.[199] The same argument could be made in respect of the current Australian approach to the employment concept in statutory contexts. In ACE Insurance Ltd v Trifunovski, Perram J held that the term ‘employee’, when used in a statute, is to be understood in its technical legal sense.[200] In this regard, his Honour followed the approach of the High Court in Foster.[201] However, Foster, like Pemsel, was decided before the ascension of the purposive approach to the construction of statutes in Australia.
It is important, then, to consider the impact of the purposive approach to statutory interpretation upon the Pemsel interpretive principle. Professor Harding did not put forward a definitive position on this issue, but he did suggest that Kirby J’s judgment in Central Bayside General Practice Association Ltd v Commissioner of State Revenue (Vic) (‘Central Bayside’)[202] provided a useful starting point.[203] Central Bayside involved the interpretation of the phrase ‘charitable body’ in the Pay-Roll Tax Act 1971 (Vic). The plurality did not address the relationship between the Pemsel interpretive principle and the purposive approach to statutory construction. The parties had assumed that the Pemsel interpretive principle applied, and the plurality observed that there was ‘no occasion to call the rule in question’.[204] Accordingly, the plurality proceeded on the basis that the term ‘charitable’ in the statute was to be given its technical legal meaning.[205]
Although Kirby J ultimately agreed with the conclusion of the plurality in Central Bayside, his Honour questioned the Pemsel interpretive principle, as well as the meaning of ‘charity’ expounded in Pemsel.[206] As to the interpretive principle, Kirby J suggested that ‘there is no reason, in principle, why the problem of statutory interpretation presented by the present appeal should be approached in a way different from other cases involving statutory interpretation’.[207] This meant that in discerning the meaning of ‘charity’ in the taxation statute, the ‘starting point [was] the statute’, including the language itself, as well as ‘the context of the contested phrase’ and ‘the general purpose and object of the statute’.[208] His Honour concluded, however, that the Pemsel interpretive principle (and the meaning of charity propounded in that case) should be followed in Central Bayside.[209] There were several reasons for this conclusion. Two of those reasons are instructive in assessing the viability of a purposive approach to the employment concept in Australia. These reasons relate to the limits of judicial lawmaking.
In Central Bayside, Kirby J observed that a re-expression of the term ‘charity’ would ‘have wide-ranging implications’[210] for those who had arranged their affairs to come within the meaning of charity in Pemsel. Furthermore, his Honour had regard to the decision of the Supreme Court of Canada in Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue.[211] This case involved the meaning of the word ‘charitable’ in a taxation statute. The Supreme Court of Canada acknowledged the shortcomings of adopting the meaning of charity laid down in Pemsel,[212] but rejected an invitation to depart from that meaning.[213] Importantly for present purposes, this refusal was made, in part, on the basis that ‘for the Court to attempt a re-expression of the law, having so many applications of great variety, would go beyond the proper judicial function to re-express the general law’[214] and, accordingly, ‘any such re-expression should be left to Parliament’.[215] Kirby J observed that these considerations militated against a departure from the Pemsel interpretive principle and meaning of charity in Central Bayside.[216]
Kirby J’s references to the wide-ranging consequences of any re-expression of the term ‘charity’, and the concern that such a re-expression would extend beyond the proper boundaries of judicial lawmaking, find parallels in a recent decision of the High Court of Australia in the area of employment contract law. In Barker, the High Court rejected the implied term of mutual trust and confidence.[217] This term has been accepted at ultimate appellate level in the United Kingdom.[218] The term is implied as a matter of law into all employment contracts in that jurisdiction.[219]
In Barker, French CJ, Bell and Keane JJ observed that the implication of this term into Australian employment contracts would involve an ‘exercise of the judicial power in a way that may have a significant impact upon employment relationships and the law of the contract of employment in this country’.[220] Their Honours stated that the term is rooted in ‘a view of social conditions and desirable social policy that informs a transformative approach to the contract of employment in law’.[221] The wide-ranging consequ-
ences of accepting the term and the ‘complex policy considerations’[222]
involved meant that implication of such a term was beyond the limits of
judicial lawmaking.[223]
The reasoning in Barker may not necessarily prevent Australian courts from adopting a purposive approach to the employment concept in statutory contexts. It could be argued that the exercise in which a court engages when interpreting the employment concept purposively is different from the exercise that the High Court was invited to undertake in Barker. In Barker, the High Court was invited to create, by way of development of the common law, a ‘broadly framed normative standard’[224] of conduct for employees and employers.[225] This ‘new standard’ was to be ‘embodied in a new contractual term implied in law’ into all contracts of employment.[226] French CJ, Keane and Bell JJ were of the view that the implication of a term in law is, by its very nature, a process that involves judicial lawmaking. Their Honours observed that ‘implications in law ... are a species of judicial law-making and are not to be made lightly’.[227] For the reasons outlined above,[228] the implication that the High Court was asked to make in Barker was a ‘step beyond the legitimate law-making function of the courts’.[229]
On the other hand, a purposive approach to the employment concept does not involve the kind of judicial lawmaking at issue in Barker. The purposive approach involves a court applying well-accepted principles of statutory interpretation to give meaning and content to a term in a statute. A court engaged in a process of purposive statutory interpretation is not acting beyond the limits of the judicial function. It is, instead, performing a judicial function that has received, by way of s 15AA of the Acts Interpretation Act 1901 (Cth) and its counterparts,[230] the express endorsement of the legislature. Accordingly, the reasoning in Barker, insofar as it relates to implied terms, does not lead inexorably to the conclusion that the purposive approach to the employment concept is beyond the limits of judicial lawmaking.
It should be acknowledged, however, that the adoption of a purposive approach to the employment concept might still engage the broader concerns raised in Barker about the limits of judicial lawmaking where complex
matters of social policy are at stake. As the comparative analysis above demonstrates,[231] a purposive approach to the employment concept in respect of protective labour statutes results, in essence, in a broadening of the coverage of these statutes. The broad and beneficial approach taken by the Canadian and US courts extends the boundaries of coverage to capture ‘a wider field than the narrow technical legal relation’[232] expounded in the vicarious liability cases. In light of the approach taken in Barker to the boundary between legislative and judicial lawmaking, Australian courts might form the view that extensions of coverage are a matter that should be left to the legislature.
There are many examples of Australian legislatures broadening the scope of labour statutes explicitly by using deeming provisions or other provisions that extend coverage beyond employees.[233] For example, the FW Act contains a provision that deems ‘outworker[s] in the textile, clothing or footwear industry’[234] to be employees for the purposes of the Act.[235] The Industrial Relations Act 1996 (NSW) deems a large number of workers to be employees, such as carpenters performing certain contract work and deliverers of bread and milk.[236] In the superannuation context, the Superannuation Guarantee (Administration) Act 1992 (Cth) extends its coverage beyond the employee at common law to a person who ‘works under a contract that is wholly or principally for the labour of the person’.[237]
A further relevant consideration is the fact that a wide range of statutes engage the employment concept. As noted in the introduction to this article, many statutes, including those pertaining to employment, taxation and superannuation, invoke the employment concept as a criterion for their operation. Adoption of a purposive approach to the employment concept would lead to different judicial formulations of the concept in each statutory context, because each statute has a different purpose. The fact that the employment concept has ‘so many applications of great variety’[238] is another matter that Australian courts would likely take into account in considering the ‘wide-ranging implications’[239] that may follow from the adoption of a purposive approach. In Sweeney v Boylan Nominees Pty Ltd, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ observed that the distinction between employees and independent contractors is ‘now too deeply rooted to be pulled out’.[240] Any extrication of these well-entrenched concepts or any significant adjustments to the boundary between them might, following Barker, be regarded by Australian courts as being within the realm of legislative, rather than judicial, lawmaking.
This article has addressed one aspect of the interaction between statute and common law in the characterisation of work contracts. There are shortcomings with the current Australian approach, which eschews statutory purpose in the characterisation exercise. The ‘deeper question of principle’ that Hayne J identified in the special leave hearing in ACE Insurance Ltd v Trifunovski[241] is an important one. There is force in the proposition that ‘employment’ for the purposes of statutory employment entitlements should be assessed by reference to considerations that are different from those invoked to assess ‘employment’ for the purposes of vicarious liability. There is a need for further and sustained scholarly analysis of the viability of a purposive approach to the employment concept in Australia. This article has sought to lay a foundation for that analysis by drawing together and critically evaluating various lines of reasoning from the Australian cases, both within and beyond the labour law context, that are of relevance to the viability of this purposive approach. In doing so, it has identified some of the key barriers to the adoption of such an approach by Australian courts. The strength of these barriers, and the arguments that may be advanced against them, warrant further examination.
The characterisation of contracts for the performance of work is an important issue. The common law concept of employment lies at the heart of the characterisation exercise. The fact that this concept is ‘consistently adopted and legitimated by legislation’[242] gives rise to challenging questions about the relationship between statute and common law in that exercise. As labour statutes invoke the employment concept as a gateway to many employment rights and entitlements, the concept is of ‘fundamental’ importance in determining the scope of labour law’s protection.[243] In the era of the ‘fissured workplace’,[244] in which there has been increasing use of alternative work arrangements such as labour hire and subcontracting,
the erosion of labour law’s protection is a matter of pressing concern.
Such concerns are compounded by the emergence of new forms of
work relationships in the gig economy.[245] A purposive approach to the
employment concept might go some way to addressing these concerns.[246]
This approach thereby merits further attention and analysis from Australian labour law scholars.
* BEc, LLB (Hons) (ANU); Senior Lecturer, ANU Law School, Australian National University. I thank Professor Peta Spender for her valuable feedback on the ideas presented in this article. I also thank Associate Professor Heather Roberts and the anonymous referees for their helpful comments on an earlier version of this article. All errors and omissions are my own.
[1] See, eg, Anthony Mason, ‘A Judicial Perspective on the Development of Common Law Doctrine in the Light of Statute Law’ in Andrew Robertson and Michael Tilbury (eds), The Common Law of Obligations: Divergence and Unity (Hart Publishing, 2016) 119; Elise Bant, ‘Statute and Common Law: Interaction and Influence in Light of the Principle of Coherence’ [2015] UNSWLawJl 13; (2015) 38(1) University of New South Wales Law Journal 367; Stephen McLeish, ‘Challenges to the Survival of the Common Law’ [2014] MelbULawRw 29; (2014) 38(2) Melbourne University Law Review 818; Mark Leeming, ‘Theories and Principles Underlying the Development of the Common Law: The Statutory Elephant in the Room’ (2013) 36(3) University of New South Wales Law Journal 1002; Andrew Burrows, ‘The Relationship between Common Law and Statute in the Law of Obligations’ (2012) 128 (April) Law Quarterly Review 232; Paul Finn, ‘Statutes and the Common Law: The Continuing Story’ in Suzanne Corcoran and Stephen Bottomley (eds), Interpreting Statutes (Federation Press, 2005) 52; Paul Finn, ‘Statutes and the Common Law’ (1992) 22(1) University of Western Australia Law Review 7; J Beatson, ‘The Role of Statute in the Development of Common Law Doctrine’ (2001) 117 (April) Law Quarterly Review 247; WMC Gummow, Change and Continuity: Statute, Equity, and Federalism (Oxford University Press, 1999) ch 1; Jack Beatson, ‘Has the Common Law a Future?’ (1997) 56(2) Cambridge Law Journal 291; PS Atiyah, ‘Common Law and Statute Law’ (1985) 48(1) Modern Law Review 1; Guido Calabresi, A Common Law for the Age of Statutes (Harvard University Press, 1982); Roscoe Pound, ‘Common Law and Legislation’ (1908) 21(6) Harvard Law Review 383.
[2] See, eg, Joellen Riley, ‘The Future of the Common Law in Employment Regulation’ (2016) 32(1) International Journal of Comparative Labour Law and Industrial Relations 33; Douglas Brodie, ‘The Dynamics of Common Law Evolution’ (2016) 32(1) International Journal of Comparative Labour Law and Industrial Relations 45; Gabrielle Golding, ‘The Role of Judges in the Regulation of Australian Employment Contracts’ (2016) 32(1) International Journal of Comparative Labour Law and Industrial Relations 69; Alan Bogg and Hugh Collins, ‘Lord Hoffmann and the Law of Employment: The Notorious Episode of Johnson v Unisys Ltd’ in Paul S Davies and Justine Pila (eds), The Jurisprudence of Lord Hoffmann: A Festschrift in Honour of Lord Leonard Hoffmann (Hart Publishing, 2015) 185; Alan Bogg, ‘Express Disciplinary Procedures in the Contract of Employment: Parliamentary Intention and the Supreme Court’ (2015) 131 (January) Law Quarterly Review 15; Joellen Riley, ‘Uneasy or Accommodating Bedfellows? Common Law and Statute in Employment Regulation’ (Phillipa Weeks Lecture in Labour Law, Australian National University, 25 September 2013); Catherine Barnard and Louise Merrett, ‘Winners and Losers: Edwards and the Unfair Law of Dismissal’ (2013) 72(2) Cambridge Law Journal 313; Douglas Brodie, ‘Legal Coherence and the Employment Revolution’ (2001) 117 (October) Law Quarterly Review 604. Some contributions have addressed the relationship between statute and common law in the labour law context more generally: see, eg, Breen Creighton and Richard Mitchell, ‘The Contract of Employment in Australian Labour Law’ in Lammy Betten (ed), The Employment Contract in Transforming Labour Relations (Kluwer Law International, 1995) 129; Steven Anderman, ‘The Interpretation of Protective Employment Statutes and Contracts of Employment’ (2000) 29(3) Industrial Law Journal 223.
[3] Two exceptions are Alan Bogg, ‘Common Law and Statute in the Law of Employment’ (2016) 69(1) Current Legal Problems 67; ACL Davies, ‘The Relationship between the Contract of Employment and Statute’ in Mark Freedland et al (eds), The Contract of Employment (Oxford University Press, 2016) 73. These contributions consider the interaction between statute and common law in a range of different contexts in labour law in the United Kingdom, including the characterisation of work contracts.
[4] Andrew Stewart et al, Creighton and Stewart’s Labour Law (Federation Press, 6th ed, 2016) 196–7; Carolyn Sappideen et al, Macken’s Law of Employment (Lawbook, 8th ed, 2016)
18–20 [2.50].
[5] Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161, 167 [12] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) (‘Sweeney’).
[6] See, eg, Fair Work Act 2009 (Cth) pts 2-2 (National Employment Standards), 2-3 (Modern Awards), 2-4 (Enterprise Agreements), 3-2 (Unfair Dismissal) (‘FW Act’). FW Act pt 3-1, which contains the ‘General Protections’ provisions, extends its coverage beyond employees and employers.
[7] Payroll Tax Act 2007 (NSW) ss 6, 11.
[8] Superannuation Guarantee (Administration) Act 1992 (Cth) s 12(1), pt 3.
[9] Taxation Administration Act 1953 (Cth) sch 1 s 12-35.
[10] FW Act (n 6) s 15 (emphasis in original).
[11] Explanatory Memorandum, Fair Work Bill 2008 (Cth) 5 [28]. See also C v Commonwealth [2015] FCAFC 113; (2015) 234 FCR 81, 87 [34]–[36] (Tracey, Buchanan and Katzmann JJ); Stewart et al, Creighton and Stewart’s Labour Law (n 4) 196 [8.04]; Cameron Roles and Andrew Stewart, ‘The Reach of Labour Regulation: Tackling Sham Contracting’ (2012) 25(3) Australian Journal of Labour Law 258, 258–9.
[12] ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532, 543 [28] (Perram J) (‘Trifunovski (Trial)’).
[13] Ibid 542 [25] (Perram J). See also Joellen Riley, ‘The Definition of the Contract of Employment and its Differentiation from Other Contracts and Other Work Relations’ in Mark Freedland et al (eds), The Contract of Employment (Oxford University Press, 2016) 321, 324; Roles and Stewart (n 11) 259.
[14] Trifunovski (Trial) (n 12).
[15] The Workplace Relations Act 1996 (Cth) was a precursor to the FW Act (n 6). The workers also relied upon the Insurance Industry Award 1998 (Cth). It is not necessary for present purposes to discuss the Award.
[16] Trifunovski (Trial) (n 12) 543 [28]. See also ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146, 149 [14] (Lander J), 182 [126]–[127] (Buchanan J) (‘Trifunovski (Appeal)’).
[17] Trifunovski (Trial) (n 12) 542–3 [27].
[18] Transcript of Proceedings, ACE Insurance Ltd v Trifunovski [2013] HCATrans 190, 21 (‘Trifunovski (Special Leave Hearing)’).
[19] Ibid 9–12.
[20] Ibid 188–96 (Hayne J). Hayne and Keane JJ, who determined the application, concluded that there would be insufficient prospects of success on an appeal to the High Court. In light of the way the arguments had been put at trial and on appeal to the Full Federal Court, Hayne and Keane JJ were of the view that this case was not a suitable vehicle for exploring the deeper question of principle to which Hayne J alluded.
[21] [2013] NSWCA 250; (2013) 85 NSWLR 335, 341–2 [15] (Meagher JA agreeing at 337 [1], Emmett JA agreeing
at 338 [4]).
[22] [2015] FCAFC 62; (2015) 233 FCR 46, 50 [5] (‘Tattsbet’).
[23] 218 F 547 (2nd Cir, 1914) (‘Lehigh Valley’).
[24] See, eg, McCormick v Fasken Martineau DuMoulin LLP [2014] 2 SCR 108 (‘McCormick’).
[25] National Labor Relations Board v Hearst Publications Inc, [1944] USSC 91; 322 US 111 (1944) (‘Hearst Publications’); United States v Silk, [1947] USSC 104; 331 US 704 (1947) (‘Silk’); Rutherford Ford Corp v McComb, [1947] USSC 102; 331 US 722 (1947).
[26] See Guy Davidov, A Purposive Approach to Labour Law, ed Paul Davies, Keith Ewing and Mark Freedland (Oxford University Press, 2016) ch 6.
[27] Brian A Langille and Guy Davidov, ‘Beyond Employees and Independent Contractors:
A View from Canada’ (1999) 21(1) Comparative Labor Law and Policy Journal 7, 18.
[28] Ibid.
[29] Ibid.
[30] See, eg, Davidov, A Purposive Approach to Labour Law (n 26); Julie McClelland, ‘A Purposive Approach to Employment Protection or a Missed Opportunity?’ (2012) 75(3) Modern Law Review 427; Alan L Bogg, ‘Sham Self-Employment in the Supreme Court’ (2012) 41(3) Industrial Law Journal 328; Guy Davidov, ‘A Purposive Interpretation of the National Minimum Wage Act’ (2009) 72(4) Modern Law Review 581; Guy Davidov, ‘The Three Axes of Employment Relationships: A Characterization of Workers in Need of Protection’ (2002) 52(4) University of Toronto Law Journal 357.
[31] Exceptions include Adrian Merritt, ‘“Control” v “Economic Reality”: Defining the Contract of Employment’ (1982) 10(2) Australian Business Law Review 105; Adrian Brooks, ‘Myth and Muddle: An Examination of Contracts for the Performance of Work’ [1988] UNSWLawJl 11; (1988) 11(2) University of New South Wales Law Journal 48. There is a brief discussion of the purposive
approach in Stewart et al, Creighton and Stewart’s Labour Law (n 4) 220–1 [8.56].
For Australian cases that have referred to the relevance of statutory purpose in
the characterisation of work contracts, see above nn 21–3 and accompanying text; below
nn 90–8 and accompanying text.
[32] See Steven Anderman, ‘The Interpretation of Protective Employment Statutes and Contracts of Employment’ (2000) 29(3) Industrial Law Journal 223. The present article refers to ‘protective labour statutes’ because it discusses cases dealing with collective bargaining statutes as well as those dealing with statutes that confer employment rights and entitlements. The term ‘labour statutes’ is used broadly to capture both types of statutes.
[33] See below Part III(B).
[34] See above nn 21–3 and accompanying text; below nn 90–8 and accompanying text.
[35] See above nn 12–13 and accompanying text.
[36] See Performing Right Society Ltd v Mitchell & Booker Ltd [1924] 1 KB 762, 767–8
(McCardie J) (‘Performing Right Society’).
[37] Ibid 767 (McCardie J).
[38] The term ‘hirer’ is used as a neutral term to refer to a person or entity who hires a person to perform work: Andrew Stewart, ‘Redefining Employment? Meeting the Challenge of Contract and Agency Labour’ (2002) 15(1) Australian Journal of Labour Law 235, 235 n 2.
[39] Performing Right Society (n 36) 768 (McCardie J).
[40] Ibid.
[41] See, eg, Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (‘Stevens’); Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 (‘Hollis’); Trifunovski (Appeal) (n 16).
[42] See Stevens (n 41) 24 (Mason J), 36–7 (Wilson and Dawson JJ).
[43] Ibid 29 (Mason J). See also Hollis (n 41) 33 [24] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).
[44] Personal service is an essential aspect of the employment relationship. Accordingly, if the contract confers upon the worker a genuine and unqualified right to delegate the work to a third party, then this will generally preclude a finding of employment: Australian Mutual Provident Society v Chaplin [1978] UKPC 7; (1978) 18 ALR 385, 391 (Lord Fraser for the Court); Stevens
(n 41) 38 (Wilson and Dawson JJ); Trifunovski (Appeal) (n 16) 150 [25] (Buchanan J).
[45] Mark Irving, The Contract of Employment (LexisNexis Butterworths, 2012) 40.
[46] Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939; Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448, 460 (Keane CJ, Sundberg and
Kenny JJ); Stevens (n 41) 29 (Mason J); Hollis (n 41) 33 [24] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ). Recently, a disagreement has emerged between members of the Federal Court of Australia as to the proper approach to the test for characterising work contracts. It is not necessary for present purposes to examine these divergent approaches. None of these approaches direct attention to the purpose of the relevant statute. See On Call Interpreters & Translators Agency Pty Ltd v Federal Commissioner of Taxation [No 3] [2011] FCA 366; (2011) 214 FCR 82 (‘On Call Interpreters’); Trifunovski (Appeal) (n 16); Tattsbet (n 22). For a discussion of these divergent approaches, see Stewart et al, Creighton and Stewart’s Labour Law (n 4) 211–13 [8.35]–[8.39].
[47] Hollis (n 41) 35 [29] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).
[48] Ibid 38 [36] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).
[49] Ibid.
[50] Ibid 41 [45] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).
[51] Ibid.
[52] [1952] HCA 10; (1952) 85 CLR 138, 153 (‘Foster’).
[53] [1973] HCA 49; (1973) 129 CLR 395.
[54] Ibid 403. See also Mutual Life v Citizens’ Assurance Co Ltd v A-G (Qld) [1961] HCA 51; (1961) 106 CLR 48, 55, 57 (Dixon CJ), 58 (Kitto J), 58–9 (Taylor J), 59 (Windeyer J).
[55] Trifunovski (Trial) (n 12) 542–3 [27].
[56] [2015] FCAFC 113; (2015) 234 FCR 81, 87 [34] (Tracey, Buchanan and Katzmann JJ).
[57] Hollis (n 41) 41 [45] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).
[58] [1999] FCA 988; (1999) 91 FCR 95 (‘Konrad’).
[59] Ibid 97 [2] (Ryan J).
[60] Ibid 101 [13] (Ryan J).
[61] See ibid 118 [71] (Finkelstein J).
[62] Ibid 110 [43], 120 [81].
[63] Convention concerning Termination of Employment at the Initiative of the Employer, opened for signature 22 June 1982, 1412 UNTS 159 (entered into force 23 November 1985).
[64] Recommendation concerning Termination of Employment at the Initiative of the Employer, ILC, 68th sess, ILO Doc R166 (22 June 1982).
[66] Ibid 120–1 [83]–[84] (Finkelstein J).
[67] Ibid 127 [103] (Ryan J agreeing at 101–2 [14]–[15], North J agreeing at 104 [22]). North J disagreed only in one respect that was irrelevant to the characterisation of the work contract: at 104 [22]. See also New South Wales v Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467, 481–3 [50]–[57] (Leeming JA), which discusses the status of police officers in various statutory contexts.
[68] Konrad (n 58) 118 [71], 127 [103] (Finkelstein J).
[69] Ibid 127 [104].
[70] Hearst Publications (n 25).
[71] See below Part III(B).
[72] C v Commonwealth (n 11) 87 [33]–[34] (Tracey, Buchanan and Katzmann JJ).
[74] C v Commonwealth (n 11) 87 [34] (Tracey, Buchanan and Katzmann JJ).
[75] Ibid 87 [36] (Tracey, Buchanan and Katzmann JJ).
[76] Part 3-1 of the FW Act (n 6) contains the ‘General Protections’ provisions.
[77] C v Commonwealth (n 11) 87 [37] (Tracey, Buchanan and Katzmann JJ), citing New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1.
[78] C v Commonwealth (n 11) 87 [37] (Tracey, Buchanan and Katzmann JJ).
[80] See Tobiassen v Reilly [2009] WASCA 26; (2009) 178 IR 213; Australian Air Express Pty Ltd v Langford [2005] NSWCA 96; (2005) 147 IR 240; Young v Tasmanian Contracting Services Pty Ltd [2012] TASFC 1. Reference is made to these cases, among others, in Stewart et al, Creighton and Stewart’s Labour Law
(n 4) 212–13 [8.38], 212 n 150.
[81] Hollis (n 41) 33 [24] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ). See also Trifunovski (Appeal) (n 16) 174 [107]–[108] (Buchanan J).
[82] See, eg, Ian Neil and David Chin, The Modern Contract of Employment (Lawbook, 2nd ed, 2017) 22–3 [1.100]; Sappideen et al (n 4) 47 [2.260]; Rosemary Owens, ‘Decent Work for the Contingent Workforce in the New Economy’ (2002) 15(1) Australian Journal of Labour Law 209, 221.
[83] See, eg, Stewart, ‘Redefining Employment? Meeting the Challenge of Contract and Agency Labour’ (n 38) 250–1, quoting Express & Echo Publications Ltd v Tanton [1999] EWCA Civ 949; [1999] ICR 693, 697 (Gibson LJ); Irving (n 45) 62–3; Pauline Bomball, ‘Subsequent Conduct, Construction and Characterisation in Employment Contract Law’ (2015) 32(2) Journal of Contract Law 149, 156–7.
[84] [2015] FCAFC 37; (2015) 228 FCR 346, 378 [142] (‘Quest’). See also On Call Interpreters (n 46) 119–21
[189]–[200] (Bromberg J); Trifunovski (Appeal) (n 16) 174 [107]–[108] (Buchanan J).
[86] Davidov, A Purposive Approach to Labour Law (n 26).
[87] Ibid 115.
[88] Ibid 117.
[89] See Quest (n 84); Trifunovski (Appeal) (n 16); On Call Interpreters (n 46). In On Call Interpreters, Bromberg J mentioned in passing that ‘the Supreme Court of the United States (at least in the context of defining “employee” in industrial legislation) has applied what has been called the economic reality test, a test which is focused on the economic facts of the relationship’: at 120 [195]. His Honour cited two US Supreme Court cases, Hearst Publications (n 25) and Silk (n 25), which applied the statutory purpose approach to the characterisation of work contracts. His Honour did not return to the reasoning in these cases in the course of his judgment.
[90] In addition to the cases discussed here, see above nn 21–3 and accompanying text. See also Stewart et al, Creighton and Stewart’s Labour Law (n 4) 221 nn 206–7.
[92] Ibid 380.
[93] Ibid.
[94] (1984) 26 AILR 363.
[95] Ibid 364 (Di Fazio IM).
[96] Ibid.
[97] (1977) 16 SASR 237, 247 (Hogarth J agreeing at 252).
[98] [1982] FCA 106; (1982) 2 IR 27, 28 (Northrop, Deane and Fisher JJ).
[99] O Kahn-Freund, ‘On Uses and Misuses of Comparative Law’ (1974) 37(1) Modern Law Review 1, 27.
[100] [2014] HCA 32; (2014) 253 CLR 169, 185 [18] (‘Barker’), quoting Paul Finn, ‘Statutes and the Common Law’ (1992) 22(1) University of Western Australia Law Review 7, 13, quoting Roger J Traynor, ‘Statutes Revolving in Common Law Orbits’ (1968) 17(4) Catholic University Law Review 401, 409.
[102] Ibid.
[103] As to Australia, see above nn 12–13 and accompanying text. As to the US, see Richard R Carlson, ‘Why the Law Still Can’t Tell an Employee When It Sees One and How It Ought to Stop Trying’ (2001) 22(2) Berkeley Journal of Employment and Labor Law 295, 305–6. As to Canada, see HW Arthurs, ‘The Dependent Contractor: A Study of the Legal Problems of Countervailing Power’ (1965) 16(1) University of Toronto Law Journal 89, 94–5; Langille and Davidov (n 27) 15–16.
[104] As to Australia, see above nn 41–6 and accompanying text. As to the US, see Nationwide Mutual Insurance Co v Darden, [1992] USSC 33; 503 US 318, 323–4 (Souter J for the Court) (1992) (‘Darden’), quoting Community for Creative Non-Violence v Reid, [1989] USSC 102; 490 US 730, 751–2 (Marshall J for the Court) (1989). As to Canada, see 671122 Ontario Ltd v Sagaz Industries Canada Inc [2001] 2 SCR 983, 1000–5 (Major J for the Court) (‘Sagaz Industries’).
[105] For a discussion of the Canadian statutes, see Judy Fudge, Eric Tucker and Leah F Vosko, ‘Employee or Independent Contractor? Charting the Legal Significance of the Distinction in Canada’ (2003) 10 Canadian Labour and Employment Law Journal 193; Langille and
Davidov (n 27). As to the US statutes, see Marc Linder, ‘Dependent and Independent
Contractors in Recent US Labor Law: An Ambiguous Dichotomy Rooted in Simulated
Statutory Purposelessness’ (1999) 21(1) Comparative Labor Law and Policy Journal 187;
Carlson (n 103).
[106] For a discussion of the Canadian statutes, see Fudge, Tucker and Vosko (n 105); Langille and Davidov (n 27). As to the US statutes, see Linder (n 105); Carlson (n 103). See also
above nn 10–11 and accompanying text.
[107] [2011] UKSC 41; [2011] 4 All ER 745 (‘Autoclenz’).
[108] Ibid 757 (Lord Clarke JSC for the Court).
[109] See Bogg, ‘Sham Self-Employment in the Supreme Court’ (n 30) 341–4; Bogg, ‘Common Law and Statute in the Law of Employment’ (n 3) 99–100; Davies (n 3) 84–6.
[110] Autoclenz (n 107) 756–9 (Lord Clarke JSC).
[111] See above nn 86–8 and accompanying text.
[112] Stewart et al, Creighton and Stewart’s Labour Law (n 4) 220–1 [8.56], citing Brooks (n 31)
90–101.
[113] Trifunovski (Appeal) (n 16) 151 [26].
[115] Ibid 94–5.
[116] Ibid 95.
[118] Ibid 552 (Learned Hand J). As Professor Carlson observed, ‘[t]he exact nature of the statute is unclear’: Carlson (n 103) 312 n 78; although it ‘apparently provided compensation for work-place accidents’: at 312. The reason for this lack of clarity is that the statute is not identified by name in the judgment: at 312 n 78.
[119] Lehigh Valley (n 23) 552.
[120] Ibid.
[121] Ibid 553.
[122] 29 USC §§ 151–69 (1940).
[123] Hearst Publications (n 25) 113 (Rutledge J for the majority).
[124] 29 USC § 152(3) (1940), as amended by Labor Management Relations Act, Pub L No 80-101,
§ 101, 61 Stat 136, 136–52 (1947).
[125] Hearst Publications (n 25) 129.
[126] Ibid.
[127] Ibid 125 (Rutledge J for the majority).
[128] Ibid 124 (Rutledge J for the majority), quoting United States v American Trucking Ass’ns Inc[1940] USSC 100; , 310 US 534, 545 (Reed J for the majority) (1940).
[129] Hearst Publications (n 25) 124 (Rutledge J for the majority), quoting South Chicago Coal & Dock Co v Bassett, [1940] USSC 41; 309 US 251, 259 (Hughes CJ for the Court) (1940), quoting Warner v Goltra, [1934] USSC 157; 293 US 155, 158 (Cardozo J for the Court) (1934).
[130] Hearst Publications (n 25) 116 (Rutledge J for the majority).
[131] Ibid 118–19.
[132] Ibid.
[133] Ibid 119.
[134] Ibid 117.
[135] Ibid.
[136] Ibid 132.
[137] Ibid 127.
[139] 42 USC §§ 301–1307 (1946), as repealed by Act of 30 October 1972, Pub L 92-603, § 303(a), 86 Stat 1484, 1484.
[140] 42 USC § 410 (1946), as repealed by Act of 30 October 1972, Pub L 92-603, § 303(a), 86 Stat 1484, 1484.
[142] Ibid 712.
[143] Ibid 712–16 (Reed J for the majority).
[144] Ibid 712.
[145] National Labor Relations Board v United Insurance Co of America, 390 US 245, 256 (Black J for the Court) (1968); Darden (n 104) 324–5 (Souter J for the Court); Carlson (n 103) 321–5; Linder (n 105) 191–5.
[146] Darden (n 104) 324–5 (Souter J for the Court).
[147] Arthurs (n 103); Davidov, ‘The Three Axes of Employment Relationships’ (n 30).
[148] In McCormick (n 24), the Supreme Court of Canada adopted a purposive approach to
the employment concept. In doing so, the Court referred, among other things, to the
work of Professor Arthurs and Professor Davidov: at 122–3 [22]–[24] (Abella J for the Court), citing Davidov, ‘The Three Axes of Employment Relationships’ (n 30) 377–94;
Arthurs (n 103) 89–90.
[149] [1992] 1 SCR 986, 1003 (Iacobucci J for La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ) (‘Machtinger’). This case dealt with the Employment Standards Act, RSO 1980, c 137. The Supreme Court of Canada made the same point in Re Rizzo & Rizzo Shoes Ltd [1998] 1 SCR 27, 41–2 (Iacobucci J for the Court) (‘Re Rizzo’).
[150] (2003) 228 DLR (4th) 463 (‘Dynamex Canada’).
[151] Canada Labour Code, RSC 1985, c L-2.
[152] Dynamex Canada (n 150) 478 [31] (Sharlow JA for the Court).
[153] Ibid (citations omitted).
[154] Ibid 479 [35] (Sharlow JA for the Court).
[155] Machtinger (n 149) 1003 (Iacobucci J for La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ), quoted in Re Rizzo (n 149) 42 (Iacobucci J for the Court). See also Dynamex Canada (n 150) 477–9 [28]–[35] (Sharlow JA for the Court).
[156] McCormick (n 24) 119–20 (Abella J for the Court).
[157] Ibid 119–24 (Abella J for the Court).
[158] Sagaz Industries (n 104) 998–1005 [33]–[46] (Major J for the Court).
[160] Human Rights Code, RSBC 1996, c 210.
[161] McCormick (n 24) 125 [28] (Abella J for the Court).
[162] Ibid.
[163] Ibid 124 [26] (Abella J for the Court).
[164] Ibid 125 [28] (Abella J for the Court).
[165] Ibid 120 [19] (Abella J for the Court).
[166] Ibid 122 [23] (Abella J for the Court), citing Davidov, ‘The Three Axes of Employment Relationships’ (n 30) 377–94, Arthurs (n 103) 89–90, International Woodworkers of
America v Atway Transport Inc [1989] OLRB Rep 540 and Pointe-Claire v Labour Court (Quebec) [1997] 1 SCR 1015 (‘Pointe-Claire’).
[167] McCormick (n 24) 119–22 (Abella J for the Court).
[168] Ibid 121 [21] (Abella J for the Court).
[169] Ibid 123–4 [25] (Abella J for the Court).
[170] Pointe-Claire (n 166), cited in McCormick (n 24) 122 [23] (Abella J for the Court).
[171] Pointe-Claire (n 166) 1052 (Lamer CJ, La Forest, Gonthier and Cory JJ agreeing).
[172] The Supreme Court of Canada cited, among other things, Davidov, ‘The Three Axes of Employment Relationships’ (n 30): McCormick (n 24) 122 [23], 123 [25] (Abella J for the Court).
[173] McCormick (n 24) 120 [19] (Abella J for the Court).
[174] Professor Davidov argues that employment involves ‘a structure of governance with democratic deficits’: Davidov, A Purposive Approach to Labour Law (n 26) 36 (emphasis omitted). This emerges from the power of employers to control employees: at 38. Control is conceptualised broadly; it is not limited to the employer’s control over the work to be performed, but rather refers ‘generally to the superior power of the employer vis-à-vis the employee within their relationship, and the ensuing inability of the employee to control her own (working) life’: at 39. Professor Davidov uses the term ‘subordination’, broadly conceived, to capture these democratic deficits in the employment relationship.
[175] Davidov, ‘The Three Axes of Employment Relationships’ (n 30) 375–95. See also Davidov,
A Purposive Approach to Labour Law (n 26) chs 3, 6.
[176] Davidov, ‘The Three Axes of Employment Relationships’ (n 30) 398–409; Davidov,
A Purposive Approach to Labour Law (n 26) chs 3, 6.
[177] Lehigh Valley (n 23) 552.
[178] Hearst Publications (n 25) 124.
[179] Stephen Gageler, ‘Common Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law Process’ [2011] MonashULawRw 17; (2011) 37(2) Monash University Law Review 1, 2.
[180] See, eg, Interpretation Act 1987 (NSW) s 33; Interpretation of Legislation Act 1984 (Vic)
s 35(a). See also Dennis C Pearce and Robert S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 41–53.
[182] Ibid 539–40 [47], quoting Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, 389 [24] (citations omitted).
[183] FW Act (n 6) s 357(1) provides:
A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.
See also Caroline Kelly, ‘Sham Arrangements, Third Parties and s 357 of the Fair Work Act 2009: Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd’ (2016) 29(1) Australian Journal of Labour Law 110.
[184] [2015] HCA 45; (2015) 256 CLR 137, 145 [20] (French CJ, Kiefel, Bell, Gageler and Nettle JJ).
[185] Ibid 146 [22] (French CJ, Kiefel, Bell, Gageler and Nettle JJ) (emphasis added).
[186] See, eg, Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531, 580 (Lord Macnaghten) (‘Pemsel’). See also Pearce and Geddes (n 180) 161; Matthew Harding, ‘Equity and Statute in Charity Law’ (2015) 9(2) Journal of Equity 167, 172–7.
[187] Pearce and Geddes (n 180) 161.
[189] Ibid 583. Lord Macnaghten set out the four ‘heads’ of charity at 583: ‘trusts for the relief
of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads’.
[190] [1925] UKPCHCA 2; (1925) 37 CLR 317, 319–20 (Lord Wrenbury for the Court). See also Harding (n 186) 173–5.
[191] [2010] HCA 42; (2010) 241 CLR 539 (‘Aid/Watch’).
[192] Ibid 550 [24] (French CJ, Gummow, Hayne, Crennan and Bell JJ).
[193] Ibid 549 [23] (French CJ, Gummow, Hayne, Crennan and Bell JJ). See also Chief Justice Robert French, ‘Trusts and Statutes’ (2015) 39(2) Melbourne University Law Review 629, 640; Gummow (n 1) 7.
[194] Aid/Watch (n 191) 549 [23] (French CJ, Gummow, Hayne, Crennan and Bell JJ).
[196] Ibid 172. Professor Harding referred, among other things, to Aid/Watch (n 191): Harding
(n 186) 173 n 30.
[197] Harding (n 186) 177 (citations omitted).
[198] Ibid 175.
[199] Ibid 177.
[200] Trifunovski (Trial) (n 12) 541–3 [23]–[29].
[202] [2006] HCA 43; (2006) 228 CLR 168 (‘Central Bayside’).
[204] Central Bayside (n 202) 179 n 28 (Gleeson CJ, Heydon and Crennan JJ).
[205] Ibid 178–9 n 28 (Gleeson CJ, Heydon and Crennan JJ).
[206] Ibid 195–205 [76]–[109].
[207] Ibid 200 [91].
[208] Ibid.
[209] Ibid 205–8 [110]–[120].
[210] Ibid 206 [114].
[211] 1999 CanLII 704 (SCC); [1999] 1 SCR 10 (‘Vancouver Society of Immigrant Women’).
[212] Ibid 106–7 [149] (Iacobucci J for Cory, Iacobucci, Major and Bastarache JJ).
[213] Ibid 107 [150], 134–7 [200]–[203] (Iacobucci J for Cory, Iacobucci, Major and
Bastarache JJ).
[214] Central Bayside (n 202) 207 [115] (Kirby J), summarising part of the reasons in Vancouver Society of Immigrant Women (n 211) 107 [150] (Iacobucci J for Cory, Iacobucci, Major and Bastarache JJ).
[215] Central Bayside (n 202) 207 [115] (Kirby J).
[216] Ibid 206–7 [115].
[217] Barker (n 100) 195 [40]–[41] (French CJ, Bell and Keane JJ), 214 [109] (Kiefel J), 216–17 [115]–[118] (Gageler J).
[218] Malik v Bank of Credit and Commerce International SA (in liq) [1997] UKHL 23; [1998] AC 20 (‘Malik’); Eastwood v Magnox Electric plc [2004] UKHL 35; [2005] 1 AC 503 (‘Eastwood’).
[219] Malik (n 218); Eastwood (n 218).
[220] Barker (n 100) 194 [36].
[221] Ibid 195 [41].
[222] Ibid 195 [40] (French CJ, Bell and Keane JJ).
[223] Ibid 178 [1], 195 [40]–[41] (French CJ, Bell and Keane JJ). See also Riley, ‘The Future of the Common Law in Employment Regulation’ (n 2) 34; Golding (n 2) 70–1.
[224] Barker (n 100) 185 [20] (French CJ, Bell and Keane JJ).
[225] An employee already owes his or her employer a duty of fidelity: Barker (n 100) 190 [30] (French CJ, Bell and Keane JJ). The duty of fidelity requires an employee to refrain from conduct that ‘impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee’: Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66, 81 (Dixon and McTiernan JJ), quoted in Barker (n 100) 190 [30]
(French CJ, Bell and Keane JJ).
[226] Barker (n 100) 185 [20] (French CJ, Bell and Keane JJ).
[227] Ibid 189 [29]. Cf JW Carter et al, ‘Terms Implied in Law: “Trust and Confidence” in the High Court of Australia’ (2015) 32(3) Journal of Contract Law 203, 223–4.
[228] See above nn 220–3 and accompanying text.
[229] Barker (n 100) 178 [1] (French CJ, Bell and Keane JJ).
[230] See above Part III(B)(2).
[231] See above Part III(B).
[232] Hearst Publications (n 25) 124 (Rutledge J for the majority).
[233] See Stewart et al, Creighton and Stewart’s Labour Law (n 4) 198–9 [8.07]–[8.10].
[234] FW Act (n 6) s 12 (definition of ‘TCF outworker’).
[235] Ibid ss 789BA–789BB. See also Stewart et al, Creighton and Stewart’s Labour Law (n 4)
254 [10.18].
[236] Industrial Relations Act 1996 (NSW) s 5(3), sch 1. See also Stewart et al, Creighton and Stewart’s Labour Law (n 4) 198 n 36.
[237] Superannuation Guarantee (Administration) Act 1992 (Cth) s 12(3). See also Stewart et al, Creighton and Stewart’s Labour Law (n 4) 198–9 [8.09].
[238] Central Bayside (n 202) 207 [115] (Kirby J).
[239] Ibid 206 [114] (Kirby J).
[241] Trifunovski (Special Leave Hearing) (n 18) 21.
[242] Stewart, ‘Redefining Employment? Meeting the Challenge of Contract and Agency Labour’ (n 38) 235.
[243] Rosemary Owens, Joellen Riley and Jill Murray, The Law of Work (Oxford University Press, 2nd ed, 2011) 153.
[244] David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (Harvard University Press, 2014).
[245] See, eg, Andrew Stewart and Jim Stanford, ‘Regulating Work in the Gig Economy: What Are the Options?’ (2017) 28(3) Economic and Labour Relations Review 420.
[246] See Davidov, A Purposive Approach to Labour Law (n 26) ch 6.
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