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CFMMEU v Personnel Contracting

[2022] HCA 1

(Decision by: Gordon J)

Construction, Forestry, Maritime, Mining and Energy Union
v Personnel Contracting Pty Ltd

Court:
High Court of Australia

Judges: Kiefel CJ
Gageler J
Keane J

Gordon JEdelman J
Steward J
Gleeson J

Legislative References:
Fair Work Act 2009 - 13; 14

Hearing date: 31 August 2021
Judgment date: 9 February 2022

Canberra


On appeal from the Federal Court of Australia

Decision by:
Gordon J

161 The central question is whether Mr McCourt was "employed, or usually employed" by a "national system employer" (Personnel Contracting Pty Ltd, trading as "Construct") so as to be a "national system employee" for the purposes of ss 13 and 14 of the Fair Work Act 2009 (Cth) ("the Act"). In Pt 1-2 of the Act, which contains ss 13 and 14, "employee" and "employer" have their "ordinary meanings" [263] There was no dispute that the "ordinary meanings" of employee and employer in the Act are the common law meanings of those terms [264] The Act makes minor statutory amendments to the common law meanings [265] , none of which were at issue in this appeal.

162 The resolution of the central question requires consideration of the totality of the relationship between Construct and Mr McCourt, which must be determined by reference to the legal rights and obligations that constitute that relationship. Where the parties have entered a wholly written employment contract, as in this case, the totality of the relationship which must be considered is the totality of the legal rights and obligations provided for in the contract, construed according to the established principles of contractual interpretation. In such a case, the central question neither permits nor requires consideration of subsequent conduct and is not assisted by seeing the question as involving a binary choice between employment and own business. The totality of the relationship between Construct and Mr McCourt was that of employer and employee.

Background

163 Mr McCourt arrived in Australia in June 2016 on a working holiday visa, having previously worked in the United Kingdom as a part-time brick-layer and in hospitality jobs. While looking for work in Western Australia, Mr McCourt obtained a "white card", which he needed to work on construction sites.

164 Mr McCourt contacted Construct, which described itself as a labour hire company, to express interest in obtaining work. During an interview at Construct's office on 25 July 2016, Mr McCourt indicated that he was prepared to do any construction labouring that he was capable of and to work on weekends; that he had his own means of transport to get to jobs; that he was available to start work immediately; and that he had a hard hat, steel-capped boots and hi-vis clothing. Mr McCourt was informed of the rate at which he would be paid and was given an "Administrative Services Agreement" ("the ASA"), a "Most Frequently Asked Questions" document, a "Contractor Safety Induction Manual" and a document entitled "Guide to Work at a Glance".

165 The contract between Construct and Mr McCourt was wholly in writing. The terms of the contract were set out in the ASA, supplemented by the Contractor Safety Induction Manual, which was found by the Full Court of the Federal Court of Australia to be "contractual in nature". Mr McCourt signed the ASA on the day of his interview. The terms of the ASA are addressed later in these reasons. The ASA made separate provision for the rights and obligations of each party.

166 No one suggested that the written contract between Mr McCourt and Construct was subsequently varied or that it was a sham.

167 On 26 July 2016, the day after the interview, Construct informed Mr McCourt that there was work at a site run by Hanssen Pty Ltd ("Hanssen"), "the Concerto Project", and that the work would start the following day and would likely run until at least Christmas. Mr McCourt confirmed that he was happy to commence work the next day.

168 Construct's relationship with Hanssen was governed by a "Labour Hire Agreement" ("the LHA"). The LHA described Construct as "an administrative services agency, liaising between the client [ie, Hanssen] and self-employed contractors for the provision of labour by self-employed contractors to the client" [266] Under the LHA, among other things:

(1)
Construct's "contractors" were "referred on a daily hire basis" and charged out "on flat hourly rates" negotiated between Hanssen and Construct [267] , the minimum period of hire was four hours on any given day (subject to specified exceptions) [268] , and the contractors were subject to Hanssen's "direction and supervision from the time they report[ed] to [Hanssen] and for the duration of each day on the assignment" [269]
(2)
Construct agreed to invoice Hanssen on a weekly basis (including amounts due, with regard to the agreed charge-out rate and the hours or pieces completed) [270] and, if notified by Hanssen of the unsuitability of a "contractor" within four hours on the first day of an assignment, to not charge for the contractor and to replace them as soon as practicable [271]
(3)
Hanssen agreed to "comply with all applicable workplace health and safety laws, codes and standards applicable to self-employed contractors" [272] ; "not to employ or contract" any contractor referred by Construct, "either directly or indirectly through an interposed entity, within twelve months of their commencement of work" with Hanssen [273] ; to ensure that a weekly schedule of units (with hours or pieces completed by each Construct contractor per week) was accurately compiled and sent to Construct in a specified manner and by a specified time [274] ; and to pay invoices received from Construct within seven days [275]

169 On 27 July 2016, Mr McCourt arrived at the Concerto Project and participated in a site induction. During the induction, he was given a Hanssen site safety induction form and the Hanssen site rules. No contract existed between Mr McCourt and Hanssen. Mr McCourt worked at the Concerto Project from 27 July 2016 to 6 November 2016. After finishing work at the Concerto Project in November 2016, Mr McCourt left Perth temporarily. He returned in March 2017. On 9 March 2017, Mr McCourt contacted Ms O'Grady, the "Finishing Foreman" at the Concerto Project, to ask if there was any work available. He resumed work at the Concerto Project on 14 March 2017 and continued until 24 June 2017. Mr McCourt subsequently worked at another Hanssen site, "the Aire Project", from 26 June 2017 to 30 June 2017. On 30 June 2017, Mr McCourt was informed that he was not to go back to the Aire Project to work. Mr McCourt did not receive any further work from Construct.

170 Mr McCourt and the Construction, Forestry, Maritime, Mining and Energy Union ("the CFMMEU") brought claims against Construct and Hanssen under ss 545, 546 and 547 of the Act for orders for compensation and penalties. They alleged that Mr McCourt was not paid or treated according to the Building and Construction General On-Site Award 2010 ("the Award"). Mr McCourt was only entitled to be paid under the Award if he was an "employee" of Construct under the Act.

The meaning of employee and employer

171 As we have seen, there was no dispute that the "ordinary meanings" of employee and employer in the Act are the common law meanings of those terms and that the Act recognises that those terms have legal content.

172 In deciding whether a relationship between two parties is one of employment, it is the "totality of the relationship" which must be considered [276] That approach must be understood in light of the view, recently re-affirmed by six judges of this Court in WorkPac Pty Ltd v Rossato [277] , that "[a] court can determine the character of a legal relationship between the parties only by reference to the legal rights and obligations which constitute that relationship" (emphasis added). In modern times, those legal rights and obligations derive from a contract of employment. That is because "[t]he employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment" [278] Indeed, the evolution of the employment relationship is "a classic illustration of the shift from status (that of master and servant) to that of contract (between employer and employee)" [279]

173 It follows that, in the case of a wholly written employment contract, the "totality of the relationship" which must be considered is the totality of the legal rights and obligations provided for in the contract [280] To ascertain those legal rights and obligations the contract in issue must be construed according to the established principles of contractual interpretation [281] The statutory command to give "employee" and "employer" their ordinary meanings requires no less and permits no more [282]

174 The task is to construe and characterise the contract made between the parties at the time it was entered into [283] The nature of the contracting parties, such as where a contracting party is a separate entity or a partnership, rather than an individual, may suggest that the relationship between the parties is not that of employer and employee [284] The way that the contractual terms address the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the delegation of work, and where the right to exercise direction and control resides may together show that the relationship is not one of employer and employee [285]

175 Recourse may be had to events, circumstances and things external to the contract which are objective, which are known to the parties at the time of contracting and which assist in identifying the purpose or object of the contract [286] The nature of the specific job that the purported employee applied for as well as the nature and extent of the equipment to be supplied by that purported employee for that particular job may well be relevant to the question of characterisation of the contract [287] Indeed, it is often relevant, but not determinative, to observe that the purported employee must supply some uniform, tools or equipment [288] But again that observation must be made in context. The context is the nature and extent of what is required to be provided under the contract. In many forms of employment, employees provide their own uniform and bring their own tools to work.

176 One "general principle" of construction of contracts is that "it is not legitimate to use as an aid in the construction of [a] contract anything which the parties said or did after it was made" [289] (what might be described as "subsequent conduct" [290] ). The rationale of the general principle, identified by Lord Reid in James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [291] , is to avoid the result "that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later". The general principle may permit exceptions [292] No party contended that any exception should be recognised in this appeal.

177 Of course, the general principle against the use of subsequent conduct in construing a contract wholly in writing says nothing against the admissibility of conduct for purposes unrelated to construction, including in relation to: (1) formation - to establish whether a contract was actually formed and when it was formed [293] ; (2) contractual terms - where a contract is not wholly in writing, to establish the existence of a contractual term or terms [294] ; (3) discharge or variation - to demonstrate that a subsequent agreement has been made varying one or more terms of the original contract [295] ; (4) sham - to show that the contract was a "sham" in that it was brought into existence as "a mere piece of machinery" to serve some purpose other than that of constituting the whole of the arrangement [296] ; and (5) other - to reveal "probative evidence of facts relevant to rectification, estoppel or any other legal, equitable or statutory rights or remedies that may impinge on an otherwise concluded, construed and interpreted contract" [297] The relevance of subsequent conduct for the purposes of a particular statutory provision, legislative instrument or award was not in issue in this appeal.

178 It is necessary to say something further about the admissibility of conduct. Where a wholly written contract has expired but the parties' conduct suggests that there was an agreement to continue dealing on the same terms, a contract may be implied on those terms (save as to duration and termination) [298] The parties' conduct may also demonstrate "a tacit understanding or agreement" sufficient to show that there was a contract in the absence of an earlier express contract [299] In a dynamic relationship where "new terms [may] be added or [may] supersede older terms", it may also be necessary "to look at the whole relationship and not only at what was said and done when the relationship was first formed" [300] The reference to the "whole relationship" should not be misunderstood. The inquiry remains an objective inquiry [301] the purpose of which is to ascertain the terms the parties can be taken to have agreed [302] It is not an approach directed to inquiring into the conduct of parties which is not adduced to establish the formation of the contract or the terms on which the parties contracted.

179 The decision in R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd [303] is instructive. It was an application for an order nisi for a writ of prohibition directed to three judges of the Commonwealth Court of Conciliation and Arbitration ("the Arbitration Court") to restrain further proceedings in relation to an industrial award [304] The award had been made in respect of adults engaged by an insurance company to sell insurance under a standard form agreement. This Court refused relief. It refused relief because there was a live issue that the standard form agreement was a sham [305] The Court expressly decided not to determine that issue [306] Whether a particular adult engaged by the insurance company was or was not an employee was a matter to be determined by the Arbitration Court. In particular, references to what was happening "in practice" [307] were provoked by and addressing the allegation of sham and, no less significantly, seeking to explain why the High Court could not resolve that issue. Foster illustrates the necessity of identifying the precise question being addressed - there, a question of sham - and the relevance of evidence and statements of judicial principle to that question.

180 In construction of an employment contract it is not necessary to ask whether the purported employee conducts their own business [308] That is, the inquiry is not to be reduced to a binary choice between employment or own business. The question must always focus on the nature of the relationship created by the contract between the parties.

181 Asking whether a person is working in their own business may not always be a suitable inquiry for modern working relationships. It may not take very much for a person, be they low-skilled or otherwise, to be carrying on their own business [309] The reality of modern working arrangements, the gig economy, and the possibility that workers might work in their own business as well as one or more other businesses in the same week, suggest that focusing the analysis on "own business" considerations distracts attention from the relevant analysis - whether the totality of the relationship created by contract between the person and a purported employer is one of employee and employer [310] The parties to, and the terms of, the contract may show that the purported employee entered into the contract as part of their own business.

182 Another reason for not asking whether a person is carrying on a business of their own is that that inquiry will ordinarily direct attention to matters which are not recorded in the contract, such as what "the parties said or did after it was made" [311] For instance, in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [312] , North and Bromberg JJ said that some of the "hallmarks of a business" are conducting a commercial enterprise "as a going concern", the "acquisition and use of both tangible and intangible assets in the pursuit of profit", the "notion of system, repetition and continuity", and "operat[ing] in a business-like way". But, unless those matters are provided for in the contract, they are not relevant and should be put to one side.

183 The better question to ask is whether, by construction of the terms of the contract, the person is contracted to work in the business or enterprise of the purported employer [313] That question is focused on the contract, the nature of the relationship disclosed by the contract and, in this context, whether the contract discloses that the person is working in the business of the purported employer. It invites no inquiry into subsequent conduct [314] A consequence of a negative answer to that alternative question may be that the person is not an employee. Another consequence may be, but does not have to be, that they have their own business. As five judges of this Court said in Hollis v Vabu Pty Ltd [315] , both employees and contractors can work "for the benefit of" their employers and principals respectively, and so that, "by itself", cannot be a sufficient indication that a person is an employee (emphasis added). That does not detract from the fact that where the contract is oral, or partly oral and partly in writing, subsequent conduct may be admissible in specific circumstances for specific purposes - to objectively determine the point at which the contract was formed, the contractual terms that were agreed or whether the contract has been varied or discharged [316]

184 This Court has previously cautioned against ascribing too much weight to "labels" used by parties to describe their relationship [317] The whole of the contract is to be construed including whatever labels the parties have used to describe their relationship, but those labels are not determinative: "parties cannot deem the relationship between themselves to be something it is not" [318] Adopting and adapting what was said by Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ in Bluebottle UK Ltd v Deputy Commissioner of Taxation [319] in relation to a clause of deeds of assignment headed "Equitable and Legal Assignments": the classification adopted by the parties in the contract is not determinative. The classification turns upon the identification of the nature and content of the rights created by the contract and the identity of those parties which enjoyed those rights. The contract can have no greater efficacy than that given by the rights which provided its subject matter.

185 Two further matters remain to be addressed: rejection of the "multifactorial approach" applied by the Courts below; and the authorities which have considered the employment relationship in the context of vicarious liability.

186 The primary judge and the Full Court (following Personnel Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [320] ) approached the question of whether Mr McCourt was an employee of Construct for the purposes of the Act by applying a "multifactorial approach" that had been developed by lower courts following this Court's decisions in Stevens v Brodribb Sawmilling Co Pty Ltd [321] and Hollis [322] It has been the subject of criticism [323] , including on the basis that it "is somewhat empty" [324] and "does not provide any external test or requirement by which the materiality of the elements may be assessed" [325] The indicia that might be regarded as relevant are unconfined and "[t]here are no consistent rules about the weight that should be given to the different indicia" [326] This creates considerable uncertainty.

187 Moreover, that multifactorial approach directs attention to subsequent conduct, and potentially to matters which are peculiarly within the knowledge of one party. For reasons explained, this is contrary to principles of contractual interpretation, namely, that recourse may be had to events, circumstances and things external to the contract which are objective, which are known to the parties at the time of contracting and which assist in identifying the purpose or object of the contract [327] and, relatedly, that it is not legitimate to have regard to subsequent conduct to construe a contract [328] There are good reasons for adhering to those principles. Otherwise, contrary to those principles, consideration of subsequent conduct might in some cases result in the nature of an employment relationship changing over time [329] - on the day after a contract is formed, the parties may be in an employer/employee relationship, but six months or a year later, having regard to the parties' subsequent conduct, their relationship may have changed to one of principal/independent contractor, without any suggestion that there was any variation to the terms of their contractual agreement. Matters such as the degree of control or direction in fact exercised by an alleged employer in relation to the way an alleged employee performs their work, the extent to which an alleged employee provides their own equipment and tools, and whether uniforms are worn [330] may change over the course of an employment relationship. The potential for the legal character of a relationship between two parties to be affected by "unilateral" conduct of one party that may be unknown to the other party (for example, how one party administers their tax affairs; the extent to which an alleged employee operates in a "business-like" manner, with systems and manuals [331] ; how significant an alleged employee's investment in capital equipment is [332] ; or the extent to which an alleged employee is financially self-reliant [333] ) is equally problematic.

188 The multifactorial approach was applied not merely without any central principle to guide it but also by reference to a roaming inquiry beyond the contract. It allowed consideration of what had happened after the entry into the contract to characterise the nature of "the status or relationship of parties" [334] That is not appropriate. Such an inquiry slips away from - slips over - the critical consideration that the relationship between the parties is the relationship established by contract [335] Conduct may be looked at to establish the formation [336] , variation [337] or discharge by agreement and the remaking of a contract [338] But evidence that is relevant to inquiries of those kinds is limited by the purpose of the inquiry. The evidence of what was done is relevant only if and to the extent that it shows or tends to show that a contract was made between the parties or a contract previously made between the parties was varied or discharged.

189 Following WorkPac [339] , the multifactorial approach applied in previous authorities must be put to one side when characterising a relationship as one of employment under a contract. The approach in WorkPac seeks to avoid the difficulties just identified with the multifactorial approach and, in particular, seeks to avoid "employee" and "employer" becoming legal terms of meaningless reference. It focuses the task of characterisation by reference to established doctrine, rather than inviting an assessment of the relationship between two parties which is "amorphous" and "inevitably productive of inconsistency" [340] The need for judgment is unavoidable, but this approach promotes certainty by providing identified and well-established limits: admissible evidence to identify the formation and the terms of the contract and the established principles of contractual interpretation.

190 It is necessary to address other aspects of Hollis and Stevens. Unlike the present case, the contract in issue in Hollis was partly oral and partly in writing [341] and the relevant contractual arrangements in Stevens were not "formalized" [342] As explained, when an oral contract or a partly oral, partly written contract is in issue, recourse to conduct may be necessary to identify the point at which the contract was formed and the contractual terms that were agreed. In relation to the latter, "[s]ome terms may be inferred from the evidence of a course of dealing between the parties", "[s]ome terms may be implied by established custom or usage", and "[o]ther terms may satisfy the criterion of being so obvious that they go without saying" [343] But in each of these cases, the question is whether the particular term "is necessary for the reasonable or effective operation of the contract in the circumstances of the case" [344] In this way, even where the contract has not been reduced to a complete written form, the admissible evidence is limited to identifying those matters - formation and terms - objectively and for those limited purposes [345] Further, it must be recalled that Hollis and Stevens concerned vicarious liability.

191 Whatever might be the principles upon which vicarious liability operates [346] , there is an important distinction between whether there is an employer/employee relationship and whether what was done was done in "the course of [that] employment" [347] The relevant inquiry is not only about whether an alleged tortfeasor was an employee. There is a separate question about whether the relevant act or omission of the alleged employee took place in the course of that employment [348] That second question necessarily directs attention to the state of affairs at the time the cause of action accrues. The second question is asked for a different purpose and at a different point in time. The state of affairs relevant to that inquiry necessarily includes facts and matters, including subsequent conduct, that are not relevant to answering the first question. To the extent that a fact or matter may be considered relevant to both questions, not only is that fact or matter considered for a different purpose in answering each question but the weight to be attached to that consideration is likely to be different.

Mr McCourt and Construct

192 Mr McCourt worked at the Concerto Project over two separate periods - 27 July 2016 to 6 November 2016 and 14 March 2017 to 24 June 2017 - and he briefly worked at the Aire Project from 26 June 2017 to 30 June 2017. Each of those periods was a period in which Mr McCourt and Construct were in an employment relationship. The legal rights and obligations which constituted the employment relationship for each period derived from the same written contract of employment.

193 The contract between Construct and Mr McCourt was wholly in writing and the relevant provisions were set out in the ASA. Under the heading "Construct's Responsibilities", cl 1(c) provided that Construct was obliged to "[l]iaise between builders and the Contractor [ie, Mr McCourt] regarding the means by which the Contractor shall supply labour to such builders, including the duration that the builder requires such labour, the place at which labour is to be supplied, the daily hours of work during which labour is to be supplied and any other terms and conditions upon which labour is to be supplied by the Contractor to the builder" (emphasis added). This clause is significant. It gave Construct the central role in relation to, and control over, key aspects of the work to be performed by Mr McCourt - when, where and how. There was no contract between Mr McCourt and the builder, Hanssen.

194 Clause 1(d) then relevantly provided that Construct was obliged, "[s]ubject to performance by the Contractor of his or its obligations under [the ASA] ... [to] underwrite payment to the Contractor" (emphasis added). Despite the ASA using the word "underwrite", only Construct was responsible for paying Mr McCourt [349] No party suggested that Hanssen (or any entity other than Construct) was bound to pay Mr McCourt. Clause 1(d) tied Mr McCourt's performance of his obligations under the ASA to his entitlement to payment from Construct. It is necessary to address those two tied aspects - obligations and entitlement to payment - in turn.

195 First, Mr McCourt's obligations. Mr McCourt's obligations - set out in cl 4 of the ASA - were owed to Construct to enable Construct to carry on its business as described in Recital A - supplying labour to builders. Mr McCourt owed no relevant obligations to Hanssen. Under cl 4(a), he was obliged to "[c]o-operate in all respects with Construct and the builder in the supply of labour to the Builder" (emphasis added). Next, under cl 4(c), Mr McCourt was obliged to "[a]ttend at any building site as agreed with the Builder at the time required by the Builder, and ... supply labour to the Builder (subject to notification under [cl] 5(c)) for the duration required by the Builder in a safe, competent and diligent manner".

196 While cll 4(a) and 4(c) were expressed in terms of Mr McCourt's obligation to co-operate with and to perform work as agreed with and as required by the "Builder", these obligations were owed to Construct in a contract with Construct. That is, in the event that Mr McCourt did not co-operate with the builder, Hanssen, or perform work as agreed with and as required by Hanssen, Construct would be entitled, in appropriate circumstances, to terminate the contract or to bring a claim against Mr McCourt for breach of contract under the terms of the ASA. Clause 4(d) was related to cl 4(c). It provided that the "Contractor" was obliged to "[i]ndemnify Construct against any breach by the Contractor of [cl] 4(c)". This clause was directed to ensuring that Construct did not suffer loss caused by the non-performance of work by the Contractor. And, finally, under cl 5(c), if Mr McCourt was no longer available to supply labour under the terms of the ASA, he was entitled to notify the builder and Construct on four hours' notice. The fact that Mr McCourt could give such notice may be indicative of a relationship of casual employment (so too might the fact that, under cl 3(c) of the ASA, Mr McCourt warranted that he did not require Construct to guarantee work of any duration) [350]

197 The second aspect to be addressed is payment. As explained above, Construct, not the builder, was obliged to pay Mr McCourt for work undertaken by him under the ASa [351] Pursuant to cl 2(a), under the heading "Construct's Rights", Construct was entitled to "[n]egotiate with any builder a payment rate for the supply by the Contractor of labour to the builder", provided that the "Contractor" was also at liberty to negotiate the payment rate and other terms and conditions with the builder. Other clauses are relevant. Clause 2(c) provided that Construct had a right to "[n]egotiate with the builder for remuneration in respect of any increase in the payment rate negotiated directly by the Contractor with the builder". Although cll 2(a) and 3(d) contemplated that Mr McCourt was able to independently negotiate an increase to his salary with Hanssen, cl 5(a) provided that the "Contractor" was entitled to receive payment from Construct, not Hanssen. Moreover, cl 2(d) provided that Construct could "[w]ithhold from the Contractor payment of any monies reasonably required by Construct to compensate it for any claim made against Construct by the builder in respect of the supply of labour by the Contractor to the builder".

198 As is apparent, Construct was owed obligations by Mr McCourt which enabled it to carry on its labour hire business, and the discharge of those obligations by Mr McCourt was a necessary condition of Mr McCourt receiving payment for his work. The contractual terms also reveal that the contract was for Mr McCourt's personal performance of work and his mode of remuneration was consistent with that of an employment relationship [352]

199 There are some aspects of the ASA which suggest that Mr McCourt was not Construct's employee. In the Recitals and various terms of the ASA, Mr McCourt was expressly identified as an independent contractor, or as not an employee of Construct: Recital A referred to Construct liaising between builders and "self-employed contractors for the provision of labour by self-employed contractors to builders and supplying to the self-employed contractors financial administrative services"; under cl 3(b) the "Contractor" warranted that "[h]e [was] self-employed"; under cl 3(e) the "Contractor" warranted that "Construct [was not] liable to pay the Contractor any amounts in respect of annual leave, sick leave, long service leave or any other statutory entitlement required in an employer-employee relationship"; and under cl 4(h) the "Contractor" was obliged to "[n]ot represent himself as being an employee of Construct at any time or otherwise represent himself as authorised to act on behalf of Construct other than strictly under the terms of [the ASA]". As has been observed, those matters are relevant but not determinative [353]

200 The totality of the relationship between Construct and Mr McCourt provided for by the ASA was that of employer and employee. The totality of that relationship can be contrasted with the description of an independent contractor given by Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd [354] , namely: "[t]he work ... is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place". Under the ASA, Mr McCourt agreed to work in the business or enterprise of Construct. Construct's business was labour hire and Mr McCourt agreed with Construct that in return for Construct paying him for the work he would do, he would provide his labour to Hanssen (the entity to which Construct had agreed it would provide labour). Put in different terms, under the ASA Mr McCourt contracted with Construct and promised Construct that he would work at its direction for the benefit of Construct's business of supplying labour to Construct's customers and, in return, he was paid by Construct.

201 Nothing in the context objectively known to the parties at the time of making the ASA detracts from that characterisation of that relationship as one of employer and employee. Rather, the context of an individual on a working holiday visa being contracted to perform labouring work as directed by Construct and required to provide nothing but basic personal protective equipment reinforces that characterisation. Given that both parties accepted that the contract between Construct and Mr McCourt was wholly in writing (relevantly, in the ASA), it is neither necessary nor appropriate to look at how the ASA was performed. In this appeal, subsequent conduct is irrelevant.

Conclusion and orders

202 For these reasons, I agree with the orders proposed by Kiefel CJ, Keane and Edelman JJ. The appeal should be allowed and the matter should be remitted to the primary judge to determine the application made by the CFMMEU and Mr McCourt for compensation for contraventions of the Award according to law.


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