The High Court has made another in a series of judgments aiming to unwind decades of legal progress, returning employment law to a black-letter fantasy-land where there is no power imbalance between bosses and workers, and where the words on the page are more real than the actual circumstances of employment: “A majority of the High Court, led by Chief Justice Susan Kiefel, overruled the long-running approach by some courts to look beyond a worker’s contract to the social reality of the work relationship, and instead relied almost solely on the terms of the contract itself. … Experts say the decision effectively means that if lawyers draft a contract correctly businesses can avoid minimum award pay and conditions, workers’ compensation, superannuation, redundancy and other statutory requirements. … University of Adelaide law professor Andrew Stewart said the decision ‘widened a loophole’ that had existed in other rulings… ‘What the High Court majority has said carries with it the implication that it will be much easier for businesses to source labour from contractors rather than employees and achieve significant cost savings from doing so,’ he said. … Barrister David Chin, SC, said the ruling was a ‘significant shift’ in the courts’ approach to employment contracts that explicitly rejected an unequal power relationship between worker and employer as a relevant factor. ‘There can be little doubt that the approach of the High Court is to treat the construction of employment contracts like any other contract.'”
10 February 2022