Contractual Autonomy, Public Policy and the Protective Domain of Labour Law

Recent changes in the nature of work relationships have drawn into sharp focus the way that employing entities may disguise employees as independent contractors and thereby remove those employees from the protective domain of labour law. In many cases, the avoidance of labour statutes is facilitated by the use of contractual terms that disclaim employment status. Clarity is required as to the circumstances in which a court may intervene to thwart such avoidance techniques, particularly by disregarding, or assigning limited weight to, the express terms of a work contract. An analysis of the Australian case law reveals inconsistencies in the judicial treatment of express terms in work contracts. This article argues that these inconsistencies are symptomatic of an underlying tension between the concepts of contractual autonomy and public policy in the law of the employment contract. When a court places limited weight upon, or disregards altogether, some of the express terms of a work contract, the court is engaged in a form of judicial intervention in a private bargain. This article analyses the concepts of contractual autonomy and public policy, and uses this analysis to develop a conceptual framework that rationalises and justifies such judicial intervention.