Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

CONSTRUCTION, FORESTRY, MARITIME,

MINING AND ENERGY UNION & ANOR APPELLANTS

AND

PERSONNEL CONTRACTING PTY LTD RESPONDENT

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

[2022] HCA 1

Date of Hearing: 31 August 2021

Date of Judgment: 9 February 2022

P5/2021

ORDER

1. Appeal allowed with costs.

2. Set aside the order of the Full Court of the Federal Court of Australia made on 17 July 2020 and, in its place, order that:

(a) the appeal be allowed;

(b) the order of the Federal Court of Australia made on 6 November 2019 be set aside;

(c) it be declared and ordered that, between 27 July 2016 and 6 November 2016 and 14 March 2017 and 30 June 2017, the second appellant was employed by the respondent; and

(d) the matter be remitted to the primary judge for determination according to law.

On appeal from the Federal Court of Australia

Representation

B W Walker QC with M A Irving QC and T J Dixon for the appellants (instructed by Construction, Forestry, Maritime, Mining and Energy Union)

J B Blackburn SC with M L Felman for the respondent (instructed by Hotchkin Hanly Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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

Industrial law (Cth) – Nature of employment relationship – Employee or independent contractor – Where second appellant backpacker with limited work experience sought construction work from respondent – Where respondent in business of labour‑hire – Where respondent and second appellant entered written contract describing second appellant as "self‑employed contractor" – Where respondent assigned second appellant to work on construction site run by respondent's client – Where second appellant agreed with respondent to co‑operate with respondent and client in all respects in supply of his labour to client – Where no contract between second appellant and client – Where respondent paid second appellant for work performed for client – Whether second appellant employee of respondent.