High Court decision to which s 15AA of the Fair Work Act was enacted as a response, reverting to multi-factorial test approach for determining employee status.

Section 15AA took effect on 26 August 2024 and reinstates the position and authority applied in the common law by Australian Courts prior to the High Court's decisions in Personnel Contracting and Jamsek.

The focus when determining employment status is on the parties' contractual rights and obligations as written, with post-contractual conduct generally irrelevant unless it establishes that the contract was a sham, had been varied, or involved estoppel.

Prior to amendments to s.15AA, the High Court in Personnel Contracting established principles for determining employment status that have now been reinstated through s.15AA.

The approach to determining whether a person is an employee requires ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person (Note to s.15AA citing this decision as the basis for the statutory reform).

The High Court decision in Personnel Contracting (addressing contractual rights and obligations in determining employment status) informed the legislative response in s15AA of the Fair Work Act 2009 (Cth).

High Court decision to which s 15AA of the Fair Work Act was enacted as a response, reverting to multi-factorial test approach for determining employee status.

Section 15AA applies the common law position prior to Jamsek regarding employment characterisation by reference to real substance, practical reality and true nature of the relationship.

Section 15AA overrides the common law in determining employment relationships by requiring the totality of the relationship to be considered.

Post-contractual conduct may not be used to characterize the relationship when the rights and duties are comprehensively set out in a written contract; the characterization is not affected by circumstances or facts that bear no relation to the legal rights established.

The focus in determining employee versus contractor status is on the written contract terms; however, s.15AA legislation was inserted to shift focus to an assessment of the totality of the parties' relationship, including how the contract is performed in practice.

Prior to amendments to s.15AA, the High Court in Jamsek established principles for determining employment status that have now been reinstated through s.15AA.