Shifting and Ignoring the Balance of Power: The High Court's New Rules for Determining Employment Status

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.