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Following on from the May 2020 Full Federal Court decision in Rossato, in July 2020 the Full Federal Court handed down its judgment in another labour hire case, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd  FCAFC 122, this time in relation to a labour hire worker engaged as an independent contractor and performing work in a manner consistent with casual employment, but with very different results to the decision in Rossato.
The case involved an appeal by the CFMMEU seeking orders that a worker, Mr McCourt, was a casual employee of Personnel Contracting for the purposes of work performed by him at two sites operated by Hanssen Pty Ltd, and therefore Mr McCourt was entitled to the benefits of the Building and Construction General On-Site Award 2010 and the Fair Work Act 2009 (Cth). At first instance, Justice O’Callaghan determined that the contracting relationship was not a sham, and that Mr McCourt was a self-employed independent contractor who had been engaged by Personnel Contracting and supplied to Hanssen for the purposes of performing work on site.
On appeal, the Full Court considered that determining the relationship between Mr McCourt and Personnel Contracting required “characterisation of the facts involved in the whole relationship, including, but not limited to, the terms and proper objective construction of the underlying constituent contract”. Although the Full Court determined that the manner of the work performed by Mr McCourt for Hanssen resembled casual employment, the Court was required to consider those circumstances in the context of the relevant case law regarding labour hire arrangements involving contractors to labour hire providers who are then contracted to perform work for third parties. Within that context, the Court determined that:
This case highlights the importance of properly drafted agreements to document independent contractor relationships, and also of the intent of the parties in respect of the type of relationship that is to be created when using a contractor agreement. It is also important to note that the arrangement was not a direct contractor relationship in which Mr McCourt provided services to Personnel Contracting, but a tripartite relationship in which Personnel Contractor subcontracted the services of Mr McCourt to a third party client of Personnel Contracting, and the case law regarding such tripartite contractor relationships indicates that there is less scope for a contractor to be regarded as an employee absent other evidence indicating that the contractor arrangement is intended to conceal the true nature of the relationship.
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