TY - JOUR
T1 - Shifting and Ignoring the Balance of Power
T2 - The High Court's New Rules for Determining Employment Status
AU - Stewart, Andrew
AU - Irving, Mark
AU - Bomball, Pauline
N1 - Publisher Copyright:
© 2023, University of New South Wales Law Journal. All rights reserved.
PY - 2023/12
Y1 - 2023/12
N2 - In 2022 the High Court rewrote the rules for determining whether a worker is an employee, favouring a contract-centric approach that confines attention to agreed rights and obligations, not substance or reality. We explain how previous debates and disagreements were resolved, and examine how the new rules are being applied. By ignoring the balance of power in work relations, and the protective purpose of labour laws, the Court has made it much easier to contract out of labour standards. To protect the integrity of those standards, and prevent a growth in arrangements that disguise what is functionally employment as independent contracting, a new statutory definition of employment is needed.
AB - In 2022 the High Court rewrote the rules for determining whether a worker is an employee, favouring a contract-centric approach that confines attention to agreed rights and obligations, not substance or reality. We explain how previous debates and disagreements were resolved, and examine how the new rules are being applied. By ignoring the balance of power in work relations, and the protective purpose of labour laws, the Court has made it much easier to contract out of labour standards. To protect the integrity of those standards, and prevent a growth in arrangements that disguise what is functionally employment as independent contracting, a new statutory definition of employment is needed.
UR - http://www.scopus.com/inward/record.url?scp=85179935533&partnerID=8YFLogxK
M3 - Article
SN - 0313-0096
VL - 46
SP - 1214
EP - 1251
JO - The University of New South Wales law journal
JF - The University of New South Wales law journal
IS - 4
ER -