Classification: employee

(b) In CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1, the High Court adopted a "primacy of contract" approach to characterising work relationships. Where the contract is comprehensive, wholly in writing, and not a sham, the question of whether a worker is an employee or an independent contractor is to be determined by construing the rights and obligations created by that written contract at the time it was made, not by reference to the parties' subsequent conduct or a broad multifactorial assessment of how the relationship actually operated in practice (the "totality of the relationship" approach used pre-2022, e.g. under Stevens v Brodribb, no longer governs where the contract is comprehensive). A label the parties attach to the relationship (e.g. "self-employed contractor" or "independent contractor") is not determinative and will be disregarded if it is inconsistent with the substance of the rights and obligations the contract actually confers. Applying that approach here: although the written contract labels the man a "self-employed contractor," its substantive terms - the company's right to direct what work he does and when and where he does it, its right to control how he performs the work, his inability to delegate, his lack of his own business, and his lack of significant equipment - are the hallmarks of an employment relationship (subordination/control, personal service, integration into the business) rather than a contractor running their own independent enterprise. Because the contract itself confers these rights on the company, he is, in substance, an employee notwithstanding the contractual label.

(c) The engaging business is exposed to employee-only statutory and contractual liabilities it would not owe a genuine contractor - most directly, it must pay superannuation guarantee contributions (and is liable for the SG charge plus penalties if it has not done so), and it carries PAYG withholding, payroll tax, workers' compensation insurance, and minimum employment entitlement obligations (e.g. annual and personal leave, minimum wages/award coverage), with attendant back-pay and underpayment-claim exposure for having treated him as a contractor.