The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has failed to prove that an on-hire worker engaged by Personnel Contracting Services Pty Ltd (trading as Construct) was an employee and not an independent contractor.

In a November 2019 decision, a Federal Court Judge dismissed the Union’s claim on behalf of the worker that Construct had breached the Fair Work Act and building award by misclassifying him, and found the relationship between the parties was that of principal and self-employed contractor.

Hearing the Union’s appeal, another Judge noted that were it not for the relevant authorities, he would have considered the worker to be a casual employee of Construct, and that this case raised important questions about tripartite labour hire arrangements.

Traditionally, the employee/contractor test is “deep-rooted” in common law and requires courts to “draw a binary divide” between two types of workers. However, the “evolution of this dichotomy has produced ambiguity, inconsistency and contradiction”, due to the rise of digital platforms and the changing nature of worker relationships.

Nonetheless, noting these considerations were beyond the scope of the case, the bench found the primary judge’s findings were not erroneous and dismissed the Union’s appeal.

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