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

Lower Court Judgment

17/07/2020 Federal Court of Australia (Allsop CJ, Jagot and Lee JJ)

[2020] FCAFC 122

Catchwords

Industrial law – Employee and independent contractor – Proper test for distinguishing – Labour hire agreement – Definition of “employee” –Where second applicant signed Administrative Services Agreement with respondent labour hire agency and offered work cleaning and moving materials for builder – Where contract between second applicant and respondent for work, contract between respondent and builder for labour supply, but no contract between second applicant and respondent – Where builder “controlled” second applicant – Where arrangement of casual nature included right to reject assignment – Where second applicant not integrated into respondent’s business and not given uniform – Where work required personal service and second applicant not in business on own account – Where second applicant 22 -year old backpacker on working holiday visa – Where express term of contract categorises relationship not employment – Where applicants allege respondent contravened various National Employment Standards and s 45 of Fair Work Act 2009 (Cth) by not paying second applicant in accordance with relevant award – Where Standards apply only if second applicant “employee” – Where primary judge, applying multi-factorial test, found second applicant not employee – Where Full Court preferred approach second applicant employee but for authority of intermediate appellate court in Personnel Contracting v Construction, Forestry, Mining and Energy Union [2004] WASCA 312 decided in similar circumstances, which Full Court held not plainly wrong – Whether second applicant “employee” of respondent – Whether, in triangular labour hire agreement, control test satisfied when second applicant controlled by builder and not respondent – Whether multi-factorial test correctly applied.