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CLQ Vol35 No2 June-August 2021

So, you think they’re a contractor?
By Matthew McKee
This paper recaps the various employer-contractor tests and considers how they are to be applied in modern work relationships. In doing so, the paper explores a number of recent cases in a variety of contexts. These cases include:
1. Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122 (Personnel Contracting) and Jamsek v ZG Operations Australia Pty Ltd (No 2) [2020] FCAFC 179 (Jamsek), both of which have been granted special leave to appeal to the High Court of Australia. To the writer’s understanding, the appeals have been scheduled to be heard together by the High Court;
2. Commissioner of State Revenue v The Optical Superstore Pty Ltd [2019] VSCA 197 (Optical Superstore);
3. Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118 (Moffet); and
4. Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats [2020] FWCFB (Gupta v Portier) and Klooger v Foodora Australia Pty Ltd [2018] FWC 6836 (Foodora).
Some of these cases merely re-affirm long understood principles, but others represent a fundamental shift in the conventional view as to the operation of the applicable tests.
The analysis in this article has been, seemingly, impacted by the decision of the High Court on 4 August 2021 in WorkPac Pty Ltd v Rossato [2021] HCA 23 (WorkPac). WorkPac was not a case about whether person was or was not an employee but, instead, concerned whether an employee was or was not a casual employee. Accordingly, the impact of the decision on the following analysis is not entirely clear. WorkPac is discussed later in this paper.
Building bridges to get over broken contracts: restitution in Ironbridge v O’Grady
By Tristan Taylor
A recent decision by the Supreme Court of Victoria ordered restitution of instalment payments made by a defaulting party pursuant to a complex contract for the sale of land, holding that there was a total failure of the basis for the payments in unjust enrichment. Following the High Court’s decision in Mann v Paterson Constructions Pty Ltd, the case illustrates the care which courts must give when contract and unjust enrichment intersect. In particular, in heeding the contractual allocation of risk in applying the unjust factor of total failure of basis and the change of position defence. The case also charts new territory in the remedial orders made in order to restore the parties to their former positions. However, the judge’s creative use of counter-restitution warrants closer consideration for its potential utility beyond the traditional domain of rescission, and its relationship with the change of position defence.
Proportionate liability and the contractual allocations of risk. Part 3 of 3.
By Jeffrey Goldberger
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