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Case Law: Employee vs Independent Contractor in Australia

The issue of whether a worker is an employee or an independent contractor has always been a source of confusion for many employers in Australia. This confusion stems from the fact that there is no clear-cut definition of the two terms under Australian law.

Employers who misclassify workers as independent contractors instead of employees risk breaching various employment laws and regulations, including minimum wage laws, superannuation, and workers’ compensation. On the other hand, employees who are classified as independent contractors often miss out on entitlements such as leave, unfair dismissal protection, and redundancy pay.

In this article, we will explore some of the most prominent case laws that have helped to define the distinction between employees and independent contractors.

Hollis v Vabu Pty Ltd (2001)

In this landmark case, the High Court of Australia had to determine whether bicycle couriers working for Vabu Pty Ltd were employees or independent contractors. Vabu argued that the couriers were independent contractors because they provided their own bicycles and were not subject to direct supervision.

The Court, however, rejected this argument and held that the couriers were employees because they were not operating their own businesses and had a “fundamental commitment” to the work of Vabu. The Court emphasized that the key challenge in determining the status of the worker was to identify the true nature of the relationship between the parties.

Given the complexity of the tests applied in the case, it is important for employers to be cautious about classifying workers as independent contractors simply because they have a high degree of autonomy.

On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (2011)

In this case, the Full Federal Court had to determine whether interpreters and translators working for On Call Interpreters and Translators Agency Pty Ltd were employees or independent contractors. On Call argued that its interpreters and translators were independent contractors because they had the autonomy to choose their own working hours and determine their own fees.

The Court, however, held that the workers were employees because On Call exercised significant control over their work, including the power to allocate work and determine their fees. The Court also noted that the interpreters and translators relied on On Call’s business structure to earn their income, which reinforced the employment relationship.

This case underscores the importance of examining the entire relationship between the parties and not just one or two aspects of the relationship. Employers must be able to demonstrate that their workers operate their own businesses and exercise a high degree of control over their work to be classified as independent contractors.


The cases discussed in this article illustrate the challenges that employers face when determining whether a worker is an employee or an independent contractor. Employers must take a holistic approach and consider all relevant factors, including the degree of control over the worker, the ability to delegate work, the ownership of equipment, and the nature of the work relationship.

Misclassifying workers as independent contractors can lead to significant legal liabilities and reputational damage. Employers must, therefore, exercise due diligence and seek legal advice if they are in doubt about the classification of their workers.