Precarious Work in the High Court

Abstract

Three recent High Court decisions dealing with forms of precarious work have reaffirmed the ‘primacy of contract’ in determining the rights of workers to the protections of the Fair Work Act 2009 (Cth) (‘Fair Work Act’). The court’s approach represents a turn towards what critical contract theorist Roberto Unger has called ‘retro formalism’, curtailing any prospect for the common law of employment to recognise the economic reality of working relationships in determining employment status. This article argues that three aspects of the Court’s reasons produce this outcome: (i) the articulation of a ‘rights and duties’ rule to distinguish employment from independent contracting; (ii) the application of strict commercial contract principles to employment relationships; and (iii) the likelihood that the Court’s emphasis on the primacy of written contracts will thwart the exercise of some statutory powers of the Fair Work Commission under the Fair Work Act’s protective provisions. This development signals the urgency for statutory reform to ensure that the most precarious forms of work are captured in statutory labour laws.