Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled 'Determining Whether an Employment or Independent Contractor Relationship
Exists and the Relevance of Contractual Performance to its Interpretation'. The article appears in Volume 50 of the Australian Business Law Review. Here is the abstract:
"A recent High Court decision considered important questions regarding principles of contractual interpretation when actual performance differs from the form of the contract, and how a court should determine the true nature of a working relationship. On the former, a majority of the Court took a formalist view of contract interpretation; on the latter, a majority signalled a return to a kind of organisation test that earlier decisions had discarded. On the former, this position isolates Australian law from that pertaining in jurisdictions elsewhere. It is submitted the position of the second joint reasons is preferred, taking into account actual performance in interpreting the contract. It also defends the multi-factorial approach traditionally taken to questions regarding the true nature of a working relationship."