Stuart Henry (Hasluck, Liberal Party) Share this | Hansard source

It is typical that the member for Hotham wants to regulate and define everything so that you cannot move outside of it. As I said a little while ago, he wants to reduce everything to the lowest common denominator—a level of mediocrity that most Australians do not want anymore. They do not want the labour movement representing them, defining them or telling them who they are or what they can do. You need to move on.

This approach was recommended in the committee’s report Making it work—and I support the retention of the common-law definitions. A distinction between employees and independent contractors has been made in common law for a very long time. A subtle distinction is that employees are engaged under a contract ‘of’ service whereas a contractor is engaged under a contract ‘for’ service. This essentially semantic distinction is the expression of a range of common-law tests which take into account the totality of the relationship between the two contracting parties. The matters considered range from the level of direction provided by the employer to whether the employee or contractor provides their own tools. The tests are most clearly set out in the Australian common law in the High Court cases of Hollis v Vabu Pty Ltd and Stevens v Broadribb Sawmilling Company.

I noted that, in his second reading speech and in the text of the bill, the minister has not implemented the committee’s recommendation to include some elements of the tests used by the Australian Taxation Office to determine independent contractor employment status. The ATO requires that some independent contractors be taxed as though they were employees. However, independent contractors will not be taxed as employees if they are found to be running a personal services business, as defined by the ATO. While I agree with the minister that the test used by the ATO is a self-assessment, is easily manipulated, was developed to address tax issues and is much narrower than the common-law tests, I still believe some measure of consistency between employment status for the purpose of contracts, industrial rights and taxation can and should be achieved.

The Howard government is enshrining the rights and protections in separate legislation in recognition—

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