CFMMEU v Personnel Contracting
[2022] HCA 1-
The impact of this case on ATO policy is discussed in Decision Impact Statement: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (Published 31 March 2022).
(Judgment by: Steward J)
Construction, Forestry, Maritime, Mining and Energy Union
v Personnel Contracting Pty Ltd
Judges:
Kiefel CJ
Gageler J
Keane J
Gordon J
Edelman J
Steward JGleeson J
Legislative References:
Fair Work Act 2009 - 13; 14
Judgment date: 9 February 2022
Canberra
Judgment by:
Steward J
203 I respectfully agree with Gordon J's expression of the test to determine whether a person is an employee. Subject to three observations, I would nonetheless dismiss the appeal, confined to the reasons expressed below.
The three observations
204 First, care should be taken before concluding that even very unskilled or simple activities are not capable of constituting a business. A business can arise from limited activities which are passive in nature [355] and can exist in the absence of any entrepreneurial skill [356] It can also exist where a profit motive is entirely lacking [357] Secondly, it is arguable that cl 4(a) of the Administrative Services Agreement ("the ASA") did not confer on the respondent significant control over the second appellant ("Mr McCourt"). In a contractual context in which the respondent specifically sought to avoid a legal conclusion whereby Mr McCourt became its employee - an objective acknowledged by Mr McCourt [358] - the use of the word "co-operate" in cl 4(a) may be significant. It suggests that the parties intended to reserve to Mr McCourt a degree of independence and wished to avoid a relationship of subservience. Thirdly, it is also arguable that the ASA did not give the respondent a right to terminate its arrangement with Mr McCourt following any breach by him of cl 4(a) (or (c)) of the ASA. The ASA conferred no express right of termination [359] It would otherwise depend on the facts whether Mr McCourt's hypothetical conduct in breaching the ASA would permit the respondent to terminate that agreement.
Reasons for dismissing the appeal
205 In 1989, Woodward J handed down his decision in Odco Pty Ltd v Building Workers' Industrial Union of Australia [360] His Honour decided that workers supplied by a business, trading as "Troubleshooters Available", to participants in the building industry were not employees of that business, but were instead independent contractors. The arrangement considered by Woodward J is materially the same as the one used here by the respondent, whereby the labour of Mr McCourt was supplied to a building company in Perth. The essence of these arrangements is the supply of labour rather than some product or result.
206 Woodward J's decision was upheld on appeal by a unanimous decision of the Full Court of the Federal Court of Australia in Building Workers' Industrial Union of Australia v Odco Pty Ltd [361] A subsequent application for special leave to this Court was unsuccessful on the ground that the proposition, amongst others, that there was no contract of employment between the worker and Troubleshooters Available was not attended with sufficient doubt [362]
207 In the years which followed, many businesses sought to implement the same arrangement upheld in Odco - they became known as "Odco" arrangements. When businesses conformed materially to that arrangement, the workers they supplied were found to be independent contractors; it did not matter what type of labour was to be supplied. An example is found in the Industrial Appeal Court of Western Australia's decision in Personnel Contracting Pty Ltd t/as Tricord Personnel v Construction, Forestry, Mining and Energy Union of Workers [363] As Allsop CJ observed below, that case concerned an "earlier version" of the contract entered into here between Mr McCourt and the respondent [364] Another example is the decision of the Full Court of the Supreme Court of Tasmania in Young v Tasmanian Contracting Services Pty Ltd [365]
208 On occasion, arrangements which differed in some respects from "Odco" arrangements led to a conclusion being drawn that the worker was an employee of the labour hire company. An example of this is found in the decision of the Court of Appeal of the Supreme Court of Victoria in Drake Personnel Ltd v Commissioner of State Revenue [366] In that case, Phillips JA observed that the labour hire company had taken on more obligations of responsibility for the worker [367] and, as a result, the worker was found to be a casual employee. On another occasion, the labour hire company that was party to the original decision of Woodward J was found to be an employer of labourers working under a contract of service by reason of specific statutory deeming provisions. This occurred in relation to certain workers in this Court's decision in Accident Compensation Commission v Odco Pty Ltd [368] , which concerned the Accident Compensation Act 1985 (Vic). The arrangement considered by the Court was described as follows [369] :
"When a builder needs a tradesman [she or he] contacts [Troubleshooters Available ('TSA')] and places an order. An employee of TSA then completes an order sheet recording the builder's name, the person to whom the tradesman should report at the building site, the type of tradesman required and the duration of the work. The employee of TSA then contacts an appropriate tradesman and advises the tradesman of the builder's requirements. If the proposal is acceptable to the tradesman, [she or he] attends at the building site and performs the necessary work at the direction of the builder. Subsequently, the tradesman telephones TSA to advise details of hours worked during the previous seven days. TSA raises an invoice to the builder charging the hours worked by the tradesman at a previously agreed hourly rate (which includes remuneration to TSA for its services to the builder). The tradesman is paid by TSA at the hourly rate or set price agreed between TSA and the tradesman. The tradesman makes no payment to TSA for having placed [her or him]. TSA's reward comes from the difference between the amount it charges the builder and the amount it pays the tradesman."
209 It was not then suggested that the tradesmen under the foregoing arrangement were casual employees at common law.
210 In 2005, the House of Representatives Standing Committee on Employment, Workplace Relations and Workforce Participation published the result of its inquiry into "independent contracting and labour hire arrangements". The Standing Committee noted that the growth in "independent contracting and labour hire employment" had "clearly" indicated that it had "become a preferred employment choice for many Australians" [370] It also observed that "over 10 per cent of the workforce" at that time identified themselves as being "independent contractors across a wide variety of industries" [371] The Committee specifically referred to the use of "Odco" arrangements. The report thus stated [372] :
"3.14 Labour hire of contractor services involves the labour hire agency hiring contractors (that is workers with their own Australian Business Numbers (ABNs), as determined by taxation legislation) to host businesses to meet the client's production or service requirements.
3.15 The contractor services model is based on 'Odco' arrangements, which are independent contracting arrangements in the labour hire industry. 'Odco' arrangements create an independent contracting arrangement where the workers are neither employees of the labour hire agency nor the host business. These kinds of arrangements were upheld in a full Federal Court decision, Building Workers['] Industrial Union of Australia v Odco Pty Ltd. On other occasions, courts have found that contractual arrangements did not conf[o]rm to 'Odco' arrangements, and have held on the facts that the workers in question were 'employees', notwithstanding having been described in contractual documents as 'contractors'.
3.16 'Odco' arrangements operate in a range of industries. Independent contractors working under this system include farm hands, doctors, secretaries, personal assistants, family day-care workers, fishermen, salespeople, cleaners, security guards and building workers." (footnotes omitted)
211 Following the publication of that report, the Federal Parliament passed the Independent Contractors Act 2006 (Cth). The relevant Explanatory Memorandum referred to the foregoing report, as well as to a discussion paper prepared by the Department of Employment and Workplace Relations entitled "Proposals for Legislative Reform in Independent Contracting and Labour Hire Arrangements" [373] That discussion paper also referred to industry use of "Odco" arrangements, which were described as follows [374] :
"The contractor services model is based on 'Odco' arrangements which are independent contracting arrangements in the labour hire industry. These kinds of arrangements were upheld in a Full Federal Court decision, Building Workers['] Industrial Union of Australia v Odco Pty Ltd. Odco arrangements create independent contracting arrangement[s] where the workers are neither employees of the labour hire company nor of that company's clients." (footnote omitted)
212 Section 3 of the Independent Contractors Act states that the objects of the Act include protecting "the freedom of independent contractors to enter into services contracts"; the recognition of "independent contracting as a legitimate form of work arrangement that is primarily commercial"; and the prevention of "interference with the terms of genuine independent contracting arrangements". The term "independent contractor" is not defined in this Act, but the Explanatory Memorandum describes such a contractor as someone who might work for a labour hire firm and states as follows [375] :
"An 'independent contractor' is a person who contracts to perform services for others without having the legal status of an employee. The term is generally used to refer to a person who is engaged by a principal, rather than an employer, on a labour only contract. Under such a contract, the principal pays the independent contractor a one-off flat rate. There are generally no legislatively prescribed minimum entitlements or other employee-style benefits and the independent contractor is responsible for a number of aspects of the relationship that would usually be the responsibility of an employer (for instance, remitting income tax to the Australian Tax Office and contributing to a superannuation fund). Independent contractors' work arrangements take a variety of forms, for example, they may have a direct relationship with another enterprise or work through an intermediary (such as a labour hire firm), and they may or may not employ staff."
213 The Independent Contractors Act permits, amongst other things, an application to be made to a federal court to review a "services contract" (as defined) [376] on the grounds that it is unfair or harsh [377] An "unfairness ground" is defined to include being paid "less than the rate of remuneration for an employee performing similar work" [378]
214 Mr Peter Wieske is a director of the respondent. He gave evidence before the Federal Court that he had discovered "ODCO" and had "learned much from their website and precedent court cases". His unchallenged evidence was that the arrangement used in this case was "modelled on the ODCO system".
215 In the Full Court's decision below, Lee J observed that "[w]hatever else may be unclear, what is pellucid is that [the respondent] sought to replicate an 'Odco' style arrangement" [379] Lee J also observed that the "'Odco' style arrangement [had] been replicated on a multitude of occasions, with courts then tasked with adjudicating upon whether such arrangement [had] been successfully implemented" [380] Lee J concluded that the respondent had, if anything, sought to buttress further its contention that it was not the employer of its workers after its success in the Industrial Appeal Court of Western Australia. Lee J said [381] :
"To simplify an exercise in semantics, which is neither productive nor helpful, what has in effect happened, is that [the respondent], following its success in 2004, has sought to make assurance doubly sure by backfilling any gaps in the written agreement which could be construed as contra-indicating an independent contractor relationship. These include factors such as: the removal of an express right to terminate the arrangement on the part of [the respondent]; the removal of a non-compete clause; the introduction of an express right to negotiate rate increases; the removal of the express incorporation of occupational health and safety, discrimination and equal opportunity guides in the agreement; the removal of the term that stated the engagement commences on the day of this agreement and expires when either terminated by the company or contractor (implying instead that a contract arises only in relation to a particular offer of work and only for a duration that is required by the builder). Indeed, as senior counsel for the [appellants] engagingly conceded, 'the situation has got worse for us'." (citations omitted)
216 Before this Court, senior counsel for the appellants described some of the language contained in the ASA as "weasel" words, although he did not allege that any part of the ASA was a "sham". Given that concession, the brandishing of such adjectives adds little to the necessary legal analysis. The law, generally speaking, has always recognised the right of free women and men to choose the form of their arrangements [382] ; the choice of that form may well have particular legal consequences. As Windeyer J said in Federal Commissioner of Taxation v Casuarina Pty Ltd [383] :
"A proprietary company may well seem to be, in reality, merely the trade-name in which a [woman or man] carries on some part of [her or his] affairs. But by a following of correct legal forms the name becomes in law a thing. Formalism produces a legal substance, and its 'owner' can by careful bookkeeping get all the advantages, be they limited liability, relief from taxation or other benefit, which the law annexes to [her or his] sedulous use of the corporate name."
217 Ultimately, Lee J was of the view that "if approached tabula rasa", he would have thought it "somewhat less than intuitively sound" to consider Mr McCourt to have been an independent contractor [384] However, Lee J considered himself bound by the "Odco" authorities [385] , in particular by the decision of the Industrial Appeal Court of Western Australia [386] In deciding that these decisions were not plainly wrong, Lee J was influenced by the fact that a number of entities, in the past, must have relied upon the "Odco" authorities in developing their "mode of doing business", and that to overturn those authorities now would throw the respondent's "whole enterprise", and that of those other entities, into "uncertainty" [387] In addition, it would expose the respondent and those entities to "numerous civil penalties of some seriousness" for contravening the Fair Work Act 2009 (Cth) [388] Allsop CJ expressed a very similar opinion [389] With respect, their Honours were both correct.
218 Longstanding authorities that have had important legislative and/or very significant commercial impact should not be overruled unless it is clear that they are plainly wrong [390] That is especially the case where parties have ordered their affairs in reliance, over a long period of time, on the effect of the authority in question. In that respect, one of the reasons given by Lord Buckmaster in Bourne v Keane for this judicial restraint is especially apt and should be repeated [391] :
"[D]ecisions that affect the general conduct of affairs, so that their alteration would mean that taxes had been unlawfully imposed, or exemption unlawfully obtained, payments needlessly made, or the position of the public materially affected, ought in the same way to continue."
219 In Babaniaris v Lutony Fashions Pty Ltd, Brennan and Deane JJ declined to overturn a longstanding decision of the Victorian Workers' Compensation Board [392] , because to have done so would have created "serious embarrassment" for workers who, because of that decision, considered themselves to be independent contractors [393]
220 In Dow Jones & Co Inc v Gutnick, Kirby J helpfully summarised the applicable principles as follows [394] :
"Sometimes, asked to reformulate an established principle of the common law, this Court will decline the invitation, considering that any alteration of the law should be left to the legislature. Factors relevant to such decisions have included the effect on competing interests that should be consulted before any alteration of the law; the existence of significant economic implications of any change; the enactment of legislation evidencing parliamentary attention to the subject; the perceived undesirability of imposing retrospective liability, especially criminal liability, on persons; and the desirability, in particular cases, of not making any change until after intensive analysis of social data and public consultation, facilities typically unavailable to a court. The fundamental restraint upon substantial judicial innovation in the expression of the law is imposed by the character of a court's functions as such and an acceptance that, under the Constitution, major legal changes in the Australian Commonwealth are the responsibility of the other branches of government, not of the courts." (footnotes omitted)
221 More recently, a majority of this Court declined to overrule a decision of the Victorian Court of Appeal [395] concerning the concept of recklessness in criminal law, even though doubts arose concerning its correctness [396] Edelman J observed that the principle of judicial reluctance to overthrow a longstanding decision applied "a fortiori" to criminal law cases [397] Gageler, Gordon and Steward JJ also referred to the same type of "unfairness", noting that [398] :
"unfairness would follow if the meaning of recklessness was changed retrospectively by this Court with the result that potentially criminal conduct which occurred before this Court's decision - if that conduct has not yet been charged, or if it has been charged but not tried - would attract the lower standard of recklessness contended for by the DPP and where the DPP conceded that the decision of this Court on s 17 of the Crimes Act would have a 'flow-on effect' for other offence provisions in Victoria." (footnote omitted)
222 Whilst this is not a criminal law case, overturning the Full Court's decision in Odco [399] would expose the respondent to significant penalties on a retrospective basis. That is unfair. It will also, as Lee J observed, greatly damage the respondent's business and the businesses of many others [400] That is undesirable. It will also potentially deny to workers a choice they may wish to make to supply their labour as independent contractors, thus possibly undermining one of the objects of the Independent Contractors Act. Given the severity of these potential consequences, which will apply retrospectively [401] , the fate of the Full Court's decision in Odco [402] should be a matter left for the legislative branch of government to consider [403] The decision, and those that have followed it, are not plainly wrong. The cogency of the reasons of the learned primary judge in this case is a sufficient basis for that conclusion.
223 I would dismiss the appeal.
Construction, Forestry, Maritime,Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 645 [46]-[47].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 644 [42], 649 [55].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 649 [57]-[58], 650 [60].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 649-650 [54], [59]-[60].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 644 [42].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 649-650 [59].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [176]-[178].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 642-644 [31]-[40], 667-670 [125]-[134].
(2004) 141 IR 31.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 666 [121].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 682 [185]. See also 641-642 [28]-[29].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 644 [40], 682 [185].
cl 1 of the LHA.
cll 3, 9 of the LHA.
cl 1 of the LHA.
cl 2 of the LHA.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 673 [151], 676 [160].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [14].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [115], [119].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [138], [140], [147].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [135]-[141].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [156].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [153], [157].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [164].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [163].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [167]-[169].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [170].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [177].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [172].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [177].
See, eg, Recital A and cl 3(b) of the ASA.
cl 4(h) of the ASA.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [177]-[178], [181].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 654 [73].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 656-658 [81]-[86].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 656 [81].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 658 [87]-[88]. See also 679 [170].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 660 [96].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 681 [181].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 665-666 [116]-[117], 682 [183]-[184].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 666 [117].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 682 [185].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 682 [185].
(2004) 141 IR 31.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 669-670 [128]-[132].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 669 [129].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 670 [133]-[134].
Allsop CJ would have favoured a characterisation of Mr McCourt as a casual employee: see Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 642 [31].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 642 [29], [31].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 643-644 [36], [38].
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 597.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 655 [76]; cf Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 49.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 654-655 [74]-[75].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 655 [76].
(1986) 160 CLR 16 at 29.
(2001) 207 CLR 21 at 33 [24].
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 597-598.
(1922) 233 NY 122 at 124.
(1963) 109 CLR 210 at 217.
(1986) 160 CLR 16 at 35.
(2001) 207 CLR 21 at 39 [40].
Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 39 [39], citing Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48.
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346 at 389 [176]-[177], 391 [184].
Tattsbet Ltd v Morrow (2015) 233 FCR 46 at 61 [61].
See [40]-[54] below.
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at 515; Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 at 184-185.
(2014) 253 CLR 169 at 178 [1]. See also WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681 at 693 [56]; 392 ALR 39 at 52.
Concut Pty Ltd v Worrell (2000) 75 ALJR 312 at 315-316 [17]; 176 ALR 693 at 697-698.
Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at 182-183 [16].
Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at 178 [1].
See s 65(2)(b)(ii) of the Act.
cf Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 41-45 [47]-[57].
WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681 at 693 [56]-[57], 694 [63]; 392 ALR 39 at 52-53.
Gouriet v Union of Post Office Workers [1978] AC 435 at 501.
[1983] 2 NSWLR 597 at 600-601.
(1978) 52 ALJR 407 at 409-410; 18 ALR 385 at 389-390.
Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597 at 601.
(1994) 55 IR 73 at 74.
Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597 at 601.
See, eg, TransAdelaide v Leddy (1998) 71 SASR 413 at 426; Tobiassen v Reilly (2009) 178 IR 213 at 233-234 [100]-[101]; Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346 at 379-380 [148]-[150] (reversed on other grounds: (2015) 256 CLR 137); Mutch v ISG Management Pty Ltd [2020] FCA 362 at [68].
See, eg, ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146 at 174 [107]; Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358 at [83].
See Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 636 [8], 637 [11]-[12], 639-640 [21], 654 [73], 661 [98]-[99], 663 [106], 673 [150], 676 [160].
(2004) 141 IR 31 at 39 [33], 44 [52].
(1952) 85 CLR 138.
(1952) 85 CLR 138 at 144.
(1952) 85 CLR 138 at 155.
(1952) 85 CLR 138 at 151.
See, eg, Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346 at 379-380 [149].
[1963] SR (NSW) 260 at 272.
[1963] SR (NSW) 260 at 271.
[1963] SR (NSW) 260 at 267.
Western Australia v Ward (2002) 213 CLR 1 at 229 [521].
Street v Mountford [1985] AC 809 at 819. See also Bruton v London & Quadrant Housing Trust [2000] 1 AC 406 at 413.
(1927) 33 ALR 321.
(1927) 33 ALR 321 at 322 (emphasis added), quoting Bain v Central Vermont Railway Company [1921] 2 AC 412 at 416.
(1927) 33 ALR 321 at 322.
(1945) 70 CLR 539 at 551. See also 544 per Latham CJ, asking whether "the contracts created the relation of employer and employee". See further 548 per Rich J.
(1949) 79 CLR 389 at 404. See also Wright v Attorney-General for the State of Tasmania (1954) 94 CLR 409 at 418.
(1944) 69 CLR 227 at 233 (emphasis added), quoting in part from the American Law Institute, Restatement of the Law, Agency , vol 1 at 483.
(1940) 14 ALJ 162 at 163.
See also Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 571, "the terms of the engagement fixed the character of the act"; Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 215, the requirements of the contract "by its terms".
TransAdelaide v Leddy (1997) 76 IR 341 at 348-349. Not doubted on appeal on this point: TransAdelaide v Leddy (1998) 71 SASR 413.
(1955) 94 CLR 419 at 422.
(1955) 94 CLR 419 at 428.
(1986) 160 CLR 16 at 29.
See (1986) 160 CLR 16 at 39.
(2001) 207 CLR 21 at 33 [24].
(1986) 160 CLR 16 at 26, 39.
Stewart, "Redefining Employment? Meeting the Challenge of Contract and Agency Labour" (2002) 15 Australian Journal of Labour Law 235 at 250-251, quoting Express & Echo Publications Ltd v Tanton [1999] ICR 693 at 697. See also Bomball, "Subsequent Conduct, Construction and Characterisation in Employment Contract Law" (2015) 32 Journal of Contract Law 149 at 157.
See, eg, Independent Contractors Act 2006 (Cth), Pt 3; Contracts Review Act 1980 (NSW), Pt 2; Industrial Relations Act 1996 (NSW), Ch 2 Pt 9; Industrial Relations Act 2016 (Qld), Ch 11 Pt 2 Div 4 Subdiv 7.
WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681 at 694 [62]-[63]; 392 ALR 39 at 53; cf Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180.
Autoclenz Ltd v Belcher [2011] 4 All ER 745 at 752-757 [20]-[35].
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29; Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 33 [24].
(2021) 95 ALJR 681; 392 ALR 39.
(2001) 207 CLR 21 at 33 [24].
WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681 at 700 [101]; 392 ALR 39 at 61, citing R v Foster ; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 151.
R v Foster ; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 151; Australian Mutual Provident Society v Chaplin (1978) 52 ALJR 407 at 409-410; 18 ALR 385 at 389-390; Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597 at 600-601; WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681 at 699-700 [97]; 392 ALR 39 at 60.
(1978) 52 ALJR 407 at 409; 18 ALR 385 at 389.
Citing Massey v Crown Life Insurance Co [1978] 1 WLR 676; [1978] 2 All ER 576.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [150].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 642 [29]. See also 681 [181].
(1914) 218 F 547 (2nd Cir).
(1914) 218 F 547 (2nd Cir) at 552-553.
cl 4(a) of the ASA.
(1955) 93 CLR 561 at 571.
(1986) 160 CLR 16 at 24, 36.
(1955) 93 CLR 561 at 571.
cll 1(a)-(c), 3(c) of the ASA.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 658 [87]-[88], 679 [170].
Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd (2016) 250 FCR 136 at 147-149 [48]-[58].
Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36 at 60.
Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36 at 57.
See, eg, Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [143].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [146].
(2004) 141 IR 31.
(1991) 29 FCR 104.
[2012] TASFC 1.
(2004) 141 IR 31 at 40-41 [38]-[42], 61-63 [139]-[150].
(2004) 141 IR 31 at 62 [145]. See also 40-41 [40].
Odco Pty Ltd v Building Workers' Industrial Union of Australia (unreported, Federal Court of Australia, 24 August 1989) at 126; Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 at 126-127.
[2005] IRLR 557.
[2005] IRLR 557 at 561 [29].
Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 571; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24, 29, 36; Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 41 [44].
Section 12 (definitions of "employee" and "national system employee") and ss 13-14, 15 of the Fair Work Act .
Section 11 of the Fair Work Act .
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78].
Australia, House of Representatives, Fair Work Bill 2008 , Explanatory Memorandum at 5. See C v The Commonwealth (2015) 234 FCR 81 at 87 [34]-[36].
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 167 [12].
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 173 [33].
Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 217.
Atiyah, Vicarious Liability in the Law of Torts (1967) at 31.
Gray, Vicarious Liability (2018) at 197-199.
See Carlson, "Why the Law Still Can't Tell an Employee When It Sees One And How It Ought to Stop Trying" (2001) 22 Berkeley Journal of Employment and Labor Law 295 at Pts II-IV.
Labor Management Relations Act 1947 (US). See National Labor Relations Board v United Insurance Co of America (1968) 390 US 254 at 256.
Commonwealth Conciliation and Arbitration Act 1947 (Cth). See R v Foster ; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 150. See now also Superannuation Guarantee (Administration) Act 1992 (Cth); Independent Contractors Act 2006 (Cth).
Rutherford Food Corp v McComb (1947) 331 US 722 at 727-728; Nationwide Mutual Insurance Co v Darden (1992) 503 US 318 at 326.
Uber BV v Aslam [2021] 4 All ER 209 at 226 [68], 227 [71], explaining Autoclenz Ltd v Belcher [2011] 4 All ER 745.
Attorney-General for NSW v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 250.
Amalgamated Society of Carpenters and Joiners v Haberfield Pty Ltd (1907) 5 CLR 33 at 39.
cf Gardner, "The Contractualisation of Labour Law", in Collins, Lester and Mantouvalou (eds), Philosophical Foundations of Labour Law (2018) 33 at 42, referring to Emmens v Elderton (1853) 13 CB 495 at 506.
(1979) 26 ALR 18.
(1979) 26 ALR 18 at 40.
(1979) 26 ALR 18 at 36.
Dietrich v Dare (1980) 54 ALJR 388 at 391, 392; 30 ALR 407 at 412, 414.
Dietrich v Dare (1980) 54 ALJR 388 at 390; 30 ALR 407 at 411.
Freedland, The Contract of Employment (1976) at 20, quoted in Commonwealth Bank of Australia v Barker (2013) 214 FCR 450 at 513 [291].
(2021) 95 ALJR 681; 392 ALR 39.
(2021) 95 ALJR 681 at 687 [13], 696-697 [76]-[80]; 392 ALR 39 at 43, 55-56.
Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 427.
Mynott v Barnard (1939) 62 CLR 68 at 91 (cleaned up).
Mynott v Barnard (1939) 62 CLR 68 at 91 (cleaned up).
Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428.
Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 427, applying Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 469. See also Visscher v Giudice (2009) 239 CLR 361 at 379-380 [53]-[55].
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 454, 465-466, 469.
Visscher v Giudice (2009) 239 CLR 361 at 382 [59].
Laugher v Pointer (1826) 5 B & C 547 [108 ER 204]; Quarman v Burnett (1840) 6 M & W 499 [151 ER 509]; Federal Commissioner of Taxation v J Walter Thompson (Aust) Pty Ltd (1944) 69 CLR 227 at 232-233; Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539 at 545, 548-549, 550-552; Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 396; Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 571-573; Neale v Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419 at 426, 428; Federal Commissioner of Taxation v Barrett (1973) 129 CLR 395 at 400-401; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24, 27-29.
Milligan v Wedge (1840) 12 Ad & E 737 [113 ER 993]; Allen v Hayward (1845) 7 QB 960 at 975 [115 ER 749 at 755]; Montreal v Montreal Locomotive Works Ltd [1947] 1 DLR 161 at 169; Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 217; Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 39 [40]; Tattsbet Ltd v Morrow (2015) 233 FCR 46 at 61-62 [61]-[62].
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24.
Stevenson Jordan and Harrison Ltd v Macdonald and Evans [1952] 1 TLR 101 at 111; Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 at 295; Federal Commissioner of Taxation v Barrett (1973) 129 CLR 395 at 402; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 26-27, 35-36.
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 35.
Restatement of the Law of Agency §220.
Restatement (Second) of the Law of Agency §220; Restatement (Third) of the Law of Agency §7.07, Comment f.
(1944) 69 CLR 227.
(1944) 69 CLR 227 at 233. See also Attorney-General for NSW v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 299; Commissioner of Taxation v De Luxe Red and Yellow Cabs Co-operative (Trading) Society Ltd (1998) 82 FCR 507 at 520-521.
International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 at 652; Scott v Davis (2000) 204 CLR 333 at 408 [227]. See earlier Wilson v Darling Island Stevedoring and Lighterage Co Ltd (1956) 95 CLR 43 at 70.
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 49. See Scott v Davis (2000) 204 CLR 333 at 408-413 [227]-[239], 435 [299] (cf at 345-373 [31]-[121]); Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 168-172 [14]-[28].
Restatement of Employment Law §1.01(a).
Restatement of Employment Law §1.01(b).
Riley, "The Definition of the Contract of Employment and Its Differentiation from Other Contracts and Other Work Relations", in Freedland et al (eds), The Contract of Employment (2016) 321 at 324.
Sunstein, One Case at a Time (1999) at 24, citing Dewey, How We Think and Selected Essays 1910-1911 , in The Middle Works of John Dewey (1985), vol 6 at 93.
National Labor Relations Board v United Insurance Co of America (1968) 390 US 254 at 258. See also Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29.
Stewart et al, Creighton and Stewart's Labour Law , 6th ed (2016) at 204 [8.21], 206 [8.23]; Sappideen et al, Macken's Law of Employment , 8th ed (2016) at 36 [2.160].
Sappideen and Vines (eds), Fleming's The Law of Torts , 10th ed (2011) at 446 [19.70].
Neil and Chin, The Modern Contract of Employment , 2nd ed (2017) at 23-24 [1.110].
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29.
Freedland, The Personal Employment Contract (2003) at 20.
ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146 at 153 [38].
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29.
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 37.
(1994) 55 IR 73 at 74, citing Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597 at 601.
[1983] 2 NSWLR 597.
Section 11 of the Australia Act 1986 (Cth).
(1978) 52 ALJR 407; 18 ALR 385.
Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597 at 601 (emphasis added), quoting Massey v Crown Life Insurance Co [1978] 1 WLR 676; [1978] 2 All ER 576 (cleaned up).
Cam & Sons Pty Ltd v Sargent (1940) 14 ALJ 162 at 163.
See Re Porter ; Re Transport Workers Union of Australia (1989) 34 IR 179 at 184.
(1940) 14 ALJ 162 at 163.
[2022] HCA 2.
(1952) 85 CLR 138.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 639-640 [21].
(1952) 85 CLR 138 at 151.
(1952) 85 CLR 138 at 155 (note the corrigendum).
[1963] SR (NSW) 260.
See Handley, "Sham Self-Employment" (2011) 127 Law Quarterly Review 171 at 173; Bomball, "Subsequent Conduct, Construction and Characterisation in Employment Contract Law" (2015) 32 Journal of Contract Law 149 at 167-168.
[1963] SR (NSW) 260 at 269. See also Pitcher v Langford (1991) 23 NSWLR 142 at 161-162.
[1963] SR (NSW) 260 at 272.
(1986) 160 CLR 16.
(2001) 207 CLR 21.
Logan v Gilchrist (1927) 33 ALR 321 at 322 (Higgins J), but see at 322 (Isaacs J).
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41; Cam & Sons Pty Ltd v Sargent (1940) 14 ALJ 162; Federal Commissioner of Taxation v J Walter Thompson (Aust) Pty Ltd (1944) 69 CLR 227; Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539; Humberstone v Northern Timber Mills (1949) 79 CLR 389; R v Foster ; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138; Wright v Attorney-General for the State of Tasmania (1954) 94 CLR 409; Neale v Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419; Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561; Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210; Federal Commissioner of Taxation v Barrett (1973) 129 CLR 395; Dietrich v Dare (1980) 54 ALJR 388; 30 ALR 407.
(2001) 207 CLR 21 at 33 [24], quoting from Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29.
(2001) 207 CLR 21 at 42 [47].
(2001) 207 CLR 21 at 42 [48].
(2001) 207 CLR 21 at 42 [49].
(2001) 207 CLR 21 at 42 [50].
(2001) 207 CLR 21 at 43 [54].
(2001) 207 CLR 21 at 44 [57].
eg Lenzoot Haulage Pty Ltd v Sinclair (1986) 42 SASR 506 at 515.
ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146 at 168-169 [91].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 637 [11], 661 [98].
[2022] HCA 2, on appeal from Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 118 [9], 119 [14], 147-148 [182]-[184].
See (2021) 95 ALJR 681 at 700 [101]; 392 ALR 39 at 61.
Clause 1(a) of the ASA.
Clause 1(b) of the ASA.
Clause 2(a) of the ASA.
Clause 5(b) of the ASA.
Clause 4(c) of the ASA.
Clause 5(c) of the ASA.
Clause 4(c) of the ASA.
Clause 4(b) of the ASA.
Clause 1(d) of the ASA.
Clause 4 of the LHA.
Clause 9 of the LHA.
(1990) 64 ALJR 606; 95 ALR 641.
(1990) 64 ALJR 606 at 610; 95 ALR 641 at 647.
(1990) 64 ALJR 606 at 613; 95 ALR 641 at 652.
(1990) 64 ALJR 606 at 609; 95 ALR 641 at 646.
Odco Pty Ltd v Building Workers' Industrial Union of Australia (unreported, Federal Court of Australia, 24 August 1989).
(1991) 29 FCR 104.
(1991) 29 FCR 104 at 127.
(2000) 2 VR 635.
(2000) 2 VR 635 at 638-639 [4], 657-658 [55]-[56], 665 [78].
[2005] IRLR 557.
[2005] IRLR 557 at 561 [29] (emphasis in original).
(2004) 141 IR 31 at 44 [52].
(1991) 29 FCR 104 at 110.
(1991) 29 FCR 104 at 110.
(1991) 29 FCR 104 at 110-113.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 642 [31], 643-644 [33]-[40], 644 [41], 669-670 [128]-[134], 682 [185].
Act, s 11.
Australia, House of Representatives, Fair Work Bill 2008 , Explanatory Memorandum at 5 [28]. See Aid / Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539 at 549 [23].
Section 15(1)(a) provides that a reference in the Act to an employee with its ordinary meaning "includes a reference to a person who is usually such an employee". See Australia, House of Representatives, Fair Work Bill 2008 , Explanatory Memorandum at 11 [67]. Section 14(1) limits the meaning of "national system employer" to, among other things, constitutional corporations, the Commonwealth and Commonwealth authorities, so far as they employ or usually employ an individual; and also persons, so far as they, in connection with constitutional trade or commerce, employ or usually employ an individual as a flight crew officer, maritime employee or waterside worker.
LHA, cl 1.
LHA, cl 3.
LHA, cl 6.
LHA, cl 4.
LHA, cl 9.
LHA, cl 1.
LHA, cl 2.
LHA, cl 7.
LHA, cl 8.
LHA, cl 9.
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29; Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 33 [24], 41 [44]; Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at 123-124 [81]. See also Logan v Gilchrist (1927) 33 ALR 321 at 322; Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539 at 552; Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561; Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 218; Federal Commissioner of Taxation v Barrett (1973) 129 CLR 395 at 401.
(2021) 95 ALJR 681 at 693 [57]; 392 ALR 39 at 52; see also 95 ALJR 681 at 699 [97]; 392 ALR 39 at 60, citing R v Foster ; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 151.
WorkPac (2021) 95 ALJR 681 at 693 [56]; 392 ALR 39 at 52, quoting Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at 178 [1]. The idea that the character of a legal relationship between parties depends entirely or substantially on the practical assumption of direction and control does not reflect the law in Australia: cf Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48; Attorney-General for NSW v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 249, 299; Foster (1952) 85 CLR 138 at 151, 155; R v Alley ; Ex parte NSW Plumbers & Gasfitters Employees' Union (1981) 153 CLR 376 at 392-393, 397; see also Bunce v Postworth Ltd [2005] IRLR 557 at 561 [29].
Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 436; Barker (2014) 253 CLR 169 at 182-183 [16]; WorkPac (2021) 95 ALJR 681 at 693 [58]; 392 ALR 39 at 52.
See fn 276 above.
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352; Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597 at 601; Connelly v Wells (1994) 55 IR 73 at 74; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at 656-657 [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at 116-117 [46]-[52].
Act, s 11 read with ss 13 and 14.
See, eg, Connelly (1994) 55 IR 73 at 74.
See, eg, Australian Mutual Provident Society v Chaplin (1978) 52 ALJR 407 at 410; 18 ALR 385 at 391; Hollis (2001) 207 CLR 21 at 48-49 [68].
cf Stevens (1986) 160 CLR 16 at 24. See, eg, Queensland Stations (1945) 70 CLR 539 at 548, 550, 551-552.
Codelfa (1982) 149 CLR 337 at 350, 352; Mount Bruce Mining (2015) 256 CLR 104 at 117 [50]. See also Prenn v Simmonds [1971] 1 WLR 1381 at 1385; [1971] 3 All ER 237 at 241; Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 996; [1976] 3 All ER 570 at 574-575, citing Lewis v Great Western Railway Co (1877) 3 QBD 195 at 208; DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 429; Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 606.
See, eg, Federal Commissioner of Taxation v J Walter Thompson (Aust) Pty Ltd (1944) 69 CLR 227 at 231-232.
See, eg, Stevens (1986) 160 CLR 16 at 24, 25, 37; Hollis (2001) 207 CLR 21 at 41 [47], 42 [50], 44 [56].
Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at 582 [35], quoting James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 at 603, repeated in Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 446. See also Chaplin (1978) 52 ALJR 407 at 411; 18 ALR 385 at 392; Codelfa (1982) 149 CLR 337 at 348, quoting L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 at 261.
See Seddon and Bigwood, Cheshire and Fifoot Law of Contract , 11th Aust ed (2017) at 448 [10.16]; Herzfeld and Prince, Interpretation , 2nd ed (2020) at 601 [29.150]. This is also sometimes referred to as "post-contractual conduct" or "extrinsic evidence".
[1970] AC 583 at 603. See also Bacchus Marsh Concentrated Milk Co Ltd (In liq) v Joseph Nathan & Co Ltd (1919) 26 CLR 410 at 451-452, cited in Seddon and Bigwood, Cheshire and Fifoot Law of Contract , 11th Aust ed (2017) at 424 [10.4]. See also Codelfa (1982) 149 CLR 337 at 347-348; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 at 483-484 [35].
Daera Guba (1973) 130 CLR 353 at 446; L Schuler [1974] AC 235 at 261; Equuscorp (2004) 218 CLR 471 at 483-484 [35]. See also Herzfeld and Prince, Interpretation , 2nd ed (2020) at 601 [29.150].
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at 163-164 [25], citing, among other cases, Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 at 77 and Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 at 668, 669, 672; Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 at 616 [13]; GC NSW Pty Ltd v Galati [2020] NSWCA 326 at [92]. See, eg, Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 398, 403; Neale v Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419 at 426-428; Zuijs (1955) 93 CLR 561 at 567-568, 575.
Byrne (1995) 185 CLR 410 at 442. See, eg, Humberstone (1949) 79 CLR 389 at 398, 403; Humberstone v Northern Timber Mills [1949] VLR 351 at 357-358; Neale (1955) 94 CLR 419 at 426-428; Zuijs (1955) 93 CLR 561 at 567-568, 575; Marshall (1963) 109 CLR 210 at 212, 218; Barrett (1973) 129 CLR 395 at 400 but see also Barrett v Federal Commissioner of Taxation 72 ATC 457 at 460-461.
Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221 at 243-244; Humberstone (1949) 79 CLR 389 at 398; Humberstone [1949] VLR 351 at 357-358; Zuijs (1955) 93 CLR 561 at 567-568; Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 at 112-113; Chaplin (1978) 52 ALJR 407 at 411; 18 ALR 385 at 392-393; ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue (NSW ) (2012) 245 CLR 338 at 350-351 [31]-[32]. See also Chitty on Contracts , 33rd ed (2018), vol 1 at 1087 [13-124], citing Goss v Lord Nugent (1833) 5 B & Ad 58 at 64 [110 ER 713 at 716] and Morris v Baron and Company [1918] AC 1.
Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 238 CLR 516 at 531 [34]-[35]. See also Cam and Sons Pty Ltd v Sargent (1940) 14 ALJ 162 at 163; Foster (1952) 85 CLR 138 at 144, 153-154.
Franklins (2009) 76 NSWLR 603 at 616 [13]. See also Herzfeld and Prince, Interpretation , 2nd ed (2020) at 601 [29.160].
Brambles Ltd v Wail (2002) 5 VR 169 at 184-189 [54]-[62]; CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121 at [88]-[118]. A majority of the High Court allowed an appeal from Brambles on a different point and considered that it was not necessary to address the question whether the contractual terms relied on continued in force after their formal expiry: Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 at 438 [29].
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,117, quoted in Brambles Holdings (2001) 53 NSWLR 153 at 178 [77].
Integrated Computer Services (1988) 5 BPR 11,110 at 11,118, quoted in PRA Electrical Pty Ltd v Perseverance Exploration Pty Ltd (2007) 20 VR 487 at 489 [5].
See, eg, Meates v Attorney-General [1983] NZLR 308 at 377, quoted in Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 at 82. See also Codelfa (1982) 149 CLR 337 at 353; PRA (2007) 20 VR 487 at 489 [6].
Integrated Computer Services (1988) 5 BPR 11,110 at 11,117-11,118, quoted in Brambles Holdings (2001) 53 NSWLR 153 at 177 [74], 178 [77].
(1952) 85 CLR 138.
Foster (1952) 85 CLR 138 at 149.
Foster (1952) 85 CLR 138 at 144, 153-154, 155.
Foster (1952) 85 CLR 138 at 144, 155.
Foster (1952) 85 CLR 138 at 151.
Stevens (1986) 160 CLR 16 at 27-28; Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 at 639. See also Montreal v Montreal Locomotive Works Ltd [1947] 1 DLR 161 at 169.
See, eg, Federal Commissioner of Taxation v Stone (2005) 222 CLR 289 at 305 [55]. See also G v Commissioner of Inland Revenue [1961] NZLR 994 at 999.
See Tattsbet Ltd v Morrow (2015) 233 FCR 46 at 61 [61].
Gardiner (2008) 238 CLR 570 at 582 [35], quoting James Miller & Partners [1970] AC 583 at 603, repeated in Daera Guba (1973) 130 CLR 353 at 446. See, eg, United States v Silk (1947) 331 US 704 at 713; Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 at 185.
(2015) 228 FCR 346 at 390 [179], quoting On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation [ No 3 ] (2011) 214 FCR 82 at 123 [210]. See also Stevens (1986) 160 CLR 16 at 37; Hollis (2001) 207 CLR 21 at 42 [48]; ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532 at 543 [29].
See Hollis (2001) 207 CLR 21 at 39 [40]. See also Barrett (1973) 129 CLR 395 at 401, citing Zuijs (1955) 93 CLR 561.
cf Silk (1947) 331 US 704 at 713; Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 at 295; Market Investigations [1969] 2 QB 173 at 185.
(2001) 207 CLR 21 at 39 [40].
See [177] above and [188] below.
Curtis v Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17 at 25-26, citing Weiner v Harris [1910] 1 KB 285 at 292; Scott v Davis (2000) 204 CLR 333 at 341 [14], 411 [235], 422-423 [268], 435 [299]; Hollis (2001) 207 CLR 21 at 38 [36], 45 [58]; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 167 [13], 169 [19], 172 [29]. See, more generally, Re Porter ; Re Transport Workers Union of Australia (1989) 34 IR 179 at 184, where Gray J rightly adopted the submission of Mr M E J Black QC, who said "the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck"; Bluebottle UK Ltd v Deputy Commissioner of Taxation (2007) 232 CLR 598 at 618 [52]. See also Kennedy v De Trafford [1897] AC 180 at 188; Colonial Mutual (1931) 46 CLR 41 at 50; Foster (1952) 85 CLR 138 at 151.
Hollis (2001) 207 CLR 21 at 45 [58], citing Ex parte Delhasse ; In re Megevand (1878) 7 Ch D 511 at 526, 528, 532, Adam v Newbigging (1888) 13 App Cas 308 at 315, Foster (1952) 85 CLR 138 at 150-151 and TNT Worldwide Express (NZ) Ltd v Cunningham [1993] 3 NZLR 681 at 699.
(2007) 232 CLR 598 at 618 [52].
(2004) 141 IR 31.
(1986) 160 CLR 16 at 24, 29, citing Queensland Stations (1945) 70 CLR 539 at 552, Zuijs (1955) 93 CLR 561, Marshall (1963) 109 CLR 210 at 218 and Barrett (1973) 129 CLR 395 at 401.
(2001) 207 CLR 21. See, eg, Personnel (2004) 141 IR 31 at 38-39 [29]-[33], 44 [51]-[52], 54 [106]; On Call Interpreters (2011) 214 FCR 82 at 121-127 [204]-[220]; Young v Tasmanian Contracting Services Pty Ltd [2012] TASFC 1 at [3]-[5], [17]-[18], [43]-[44]; ACE Insurance v Trifunovski (2013) 209 FCR 146.
See, eg, Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 597; On Call Interpreters (2011) 214 FCR 82 at 122 [206]; Roles and Stewart, "The Reach of Labour Regulation: Tackling Sham Contracting" (2012) 25 Australian Journal of Labour Law 258 at 267; Irving, The Contract of Employment , 2nd ed (2019) at 68-72 [2.15]-[2.18]; Stewart and McCrystal, "Labour Regulation and the Great Divide: Does the Gig Economy Require a New Category of Worker?" (2019) 32 Australian Journal of Labour Law 4 at 8.
Irving, The Contract of Employment , 2nd ed (2019) at 69 [2.16].
Ellis (1989) 17 NSWLR 553 at 597. See also Neil and Chin, The Modern Contract of Employment , 2nd ed (2017) at 7 [1.30]; Irving, The Contract of Employment , 2nd ed (2019) at 71 [2.18].
Victoria, Report of the Inquiry into the Victorian On-Demand Workforce (June 2020) at 105 [732]. See also Ellis (1989) 17 NSWLR 553 at 597; On Call Interpreters (2011) 214 FCR 82 at 121-122 [204]-[205]; Neil and Chin, The Modern Contract of Employment , 2nd ed (2017) at 16 [1.60]; Irving, The Contract of Employment , 2nd ed (2019) at 67 [2.14].
Codelfa (1982) 149 CLR 337 at 352; Mount Bruce Mining (2015) 256 CLR 104 at 117 [50]. See also Prenn [1971] 1 WLR 1381 at 1385; [1971] 3 All ER 237 at 241; Reardon Smith [1976] 1 WLR 989 at 996; [1976] 3 All ER 570 at 574-575, citing Lewis (1877) 3 QBD 195 at 208; DTR Nominees (1978) 138 CLR 423 at 429; Secured Income Real Estate (1979) 144 CLR 596 at 606.
Gardiner (2008) 238 CLR 570 at 582 [35], quoting James Miller & Partners [1970] AC 583 at 603, repeated in Daera Guba (1973) 130 CLR 353 at 446.
James Miller & Partners [1970] AC 583 at 603.
On Call Interpreters (2011) 214 FCR 82 at 126 [218]; ACE Insurance (2011) 200 FCR 532 at 543 [29]; Eastern Van Services Pty Ltd v Victorian WorkCover Authority (2020) 296 IR 391 at 400 [36].
ACE Insurance (2011) 200 FCR 532 at 543 [29].
cf Hollis (2001) 207 CLR 21 at 41 [47].
On Call Interpreters (2011) 214 FCR 82 at 126 [218].
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 636 [8] (" Personnel (No 2 )"). See On Call Interpreters (2011) 214 FCR 82 at 121-122 [204]; ACE Insurance (2011) 200 FCR 532 at 543 [29]; Quest (2015) 228 FCR 346 at 389-390 [176]-[181].
WorkPac (2021) 95 ALJR 681 at 693 [57]-[58]; 392 ALR 39 at 52; see also 95 ALJR 681 at 699 [97]; 392 ALR 39 at 60, citing Foster (1952) 85 CLR 138 at 151.
Brambles Holdings (2001) 53 NSWLR 153 at 163-164 [25], citing, among other cases, Howard Smith (1907) 5 CLR 68 at 77 and Barrier Wharfs (1908) 5 CLR 647 at 668, 669, 672; Franklins (2009) 76 NSWLR 603 at 616 [13].
Phillips (1941) 65 CLR 221 at 243-244; Tallerman (1957) 98 CLR 93 at 112-113; Chaplin (1978) 52 ALJR 407 at 411; 18 ALR 385 at 392-393.
Tallerman (1957) 98 CLR 93 at 112-113; ALH (2012) 245 CLR 338 at 350-351 [31]-[32]. See, generally, Olsson v Dyson (1969) 120 CLR 365 at 388-389, quoting Scarf v Jardine (1882) 7 App Cas 345 at 351. See also Chitty on Contracts , 33rd ed (2018), vol 1 at 1087 [13-124], citing Goss (1833) 5 B & Ad 58 at 64 [110 ER 713 at 716] and Morris [1918] AC 1.
(2021) 95 ALJR 681; 392 ALR 39.
Personnel (No 2 ) (2020) 279 FCR 631 at 655 [76].
(2001) 207 CLR 21 at 33 [24].
(1986) 160 CLR 16 at 39. See also Marshall (1963) 109 CLR 210 at 212, 218; Barrett (1973) 129 CLR 395 at 400; Barrett 72 ATC 457 at 460-461.
Byrne (1995) 185 CLR 410 at 442. See BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283; Hawkins v Clayton (1988) 164 CLR 539 at 573; Chattis Nominees Pty Ltd v Norman Ross Homeworks Pty Ltd (In liq) (1992) 28 NSWLR 338 at 343.
Byrne (1995) 185 CLR 410 at 442. See BP Refinery (1977) 180 CLR 266 at 283; Hawkins (1988) 164 CLR 539 at 573.
Henry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31 at 104, quoting McCutcheon v David MacBrayne Ltd [1964] 1 WLR 125 at 134; [1964] 1 All ER 430 at 437; Chattis Nominees (1992) 28 NSWLR 338 at 343.
See Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd (2016) 250 FCR 136 at 147-149 [48]-[58] and the authorities cited there.
Sweeney (2006) 226 CLR 161 at 167 [12]; see also 171 [23]. See Atiyah, Vicarious Liability in the Law of Torts (1967) at 31.
See Stevens (1986) 160 CLR 16 at 43; New South Wales v Lepore (2003) 212 CLR 511 at 535 [40], 588 [221], 594 [242]; see also 582 [202]; Sweeney (2006) 226 CLR 161 at 167 [12]; Prince Alfred College Inc v ADC (2016) 258 CLR 134 at 159-160 [80]-[81]. See also Colonial Mutual (1931) 46 CLR 41 at 48-49; Wright v Attorney-General for the State of Tasmania (1954) 94 CLR 409 at 414.
See ASA, cl 5(a).
See WorkPac (2021) 95 ALJR 681 at 698 [88]-[90]; 392 ALR 39 at 58-59.
ASA, cll 1(d) and 5(a).
See Stevens (1986) 160 CLR 16 at 24, 36-37.
See [184] above.
(1931) 46 CLR 41 at 48, quoted in Hollis (2001) 207 CLR 21 at 39 [39].
Ferguson v Federal Commissioner of Taxation (1979) 37 FLR 310; Puzey v Commissioner of Taxation (2003) 131 FCR 244.
Federal Commissioner of Taxation v Stone (2005) 222 CLR 289.
Federal Commissioner of Taxation v Stone (2005) 222 CLR 289 at 305 [55] per Gleeson CJ, Gummow, Hayne and Heydon JJ. See also G v Commissioner of Inland Revenue [1961] NZLR 994.
See Recital A and cl 3(b) of the ASA.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 667 [122] per Lee J.
Unreported, Federal Court of Australia, 24 August 1989.
(1991) 29 FCR 104.
Transcript of Proceedings, Building Workers' Industrial Union of Australia v Odco Pty Ltd (High Court of Australia, No M13 of 1991, Mason CJ, Dawson and McHugh JJ, 7 June 1991).
(2004) 141 IR 31.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 642 [31] (Jagot J agreeing), see also at 666-667 [121] per Lee J.
[2012] TASFC 1.
(2000) 2 VR 635.
Drake Personnel Ltd v Commissioner of State Revenue (2000) 2 VR 635 at 655 [52] (Buchanan JA agreeing), see also at 639 [5] per Ormiston JA.
(1990) 64 ALJR 606; 95 ALR 641.
Accident Compensation Commission v Odco Pty Ltd (1990) 64 ALJR 606 at 607-608 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ; 95 ALR 641 at 644.
Australia, House of Representatives Standing Committee on Employment, Workplace Relations and Workforce Participation, Making it Work : Inquiry into independent contracting and labour hire arrangements , 17 August 2005 at ix.
Australia, House of Representatives Standing Committee on Employment, Workplace Relations and Workforce Participation, Making it Work : Inquiry into independent contracting and labour hire arrangements , 17 August 2005 at ix.
Australia, House of Representatives Standing Committee on Employment, Workplace Relations and Workforce Participation, Making it Work : Inquiry into independent contracting and labour hire arrangements , 17 August 2005 at 34.
Australia, House of Representatives, Independent Contractors Bill 2006 , Explanatory Memorandum at 26.
Australia, Department of Employment and Workplace Relations, Discussion Paper : Proposals for Legislative Reforms in Independent Contracting and Labour Hire Arrangements (2005) at 25.
Australia, House of Representatives, Independent Contractors Bill 2006 , Explanatory Memorandum at 3.
Independent Contractors Act 2006 (Cth), s 5.
Independent Contractors Act 2006 (Cth), s 12.
Independent Contractors Act 2006 (Cth), s 9(1)(f).
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 666 [118] (Allsop CJ and Jagot J agreeing).
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 666 [120] (Allsop CJ and Jagot J agreeing).
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 667 [122] (Allsop CJ and Jagot J agreeing).
See, eg, Printing and Numerical Registering Company v Sampson (1875) LR 19 Eq 462 at 465 per Jessel MR.
(1971) 127 CLR 62 at 77.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 682 [185] (Allsop CJ and Jagot J agreeing).
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 682 [185] (Allsop CJ and Jagot J agreeing).
Personnel Contracting Pty Ltd t / as Tricord Personnel v Construction, Forestry, Mining and Energy Union of Workers (2004) 141 IR 31.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 669 [129] (Allsop CJ and Jagot J agreeing).
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 669 [130] (Allsop CJ and Jagot J agreeing).
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 644 [39] (Jagot J agreeing).
Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 28-29 per Brennan and Deane JJ.
[1919] AC 815 at 874.
Little v Levin Cuttings Pty Ltd (1953) 3 WCBD (Vic) 71.
(1987) 163 CLR 1 at 30.
(2002) 210 CLR 575 at 614-615 [76].
R v Campbell [1997] 2 VR 585.
Director of Public Prosecutions Reference No 1 of 2019 (2021) 95 ALJR 741; 392 ALR 413.
Director of Public Prosecutions Reference No 1 of 2019 (2021) 95 ALJR 741 at 765 [96]; 392 ALR 413 at 440.
Director of Public Prosecutions Reference No 1 of 2019 (2021) 95 ALJR 741 at 756 [59]; 392 ALR 413 at 429.
Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at 669 [129] (Allsop CJ and Jagot J agreeing).
Giannarelli v Wraith (1988) 165 CLR 543 at 584-586 per Brennan J; Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 at 358-359 per Lord Browne-Wilkinson.
Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104.
cf Nelson v Nelson (1995) 184 CLR 538 at 602 per McHugh J.