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"Impossible" to conclude on-hire worker was a contractor: High Court

It was "impossible to conclude" that an on-hire worker was a contractor rather than an employee, the High Court has found in one of two rulings with important ramifications for all employers and staffing providers.

The first case arose when the CFMMEU argued on behalf of a worker that Personnel Contracting (trading as Construct) had misclassified him as an independent contractor and therefore hadn't paid him entitlements under the building award.

In November 2019, the Federal Court dismissed that claim but on appeal, the Full Court noted that were it not for the relevant authorities it would have considered the worker to be a casual employee, and it said this case raised important questions about tripartite labour hire arrangements.

It said the evolution of the employee/contractor dichotomy had "produced ambiguity, inconsistency and contradiction" due to the rise of digital platforms and changing nature of employment relationships, but these considerations were beyond the scope of this case, and it dismissed the appeal.

The High Court subsequently granted the CFMMEU special leave to appeal this ruling...