The December 1st Senate Hansard is almost entirely consumed by the Independent Contractors Workplace Amendment. Andrew Murray has an interesting statement on the determination of what constitutes an independent contractor.

Unfortunately it is a hard debate to follow and requires a knowledge and understanding of the history of Workchoices related legislation - one of the reasons why we elect specialist legislators - though the flipside is that the people who are required to follow the law should be able to do so easily and without excess specialist knowledge of the law. ie it should be easy to read and understand.

During his speech Andrew Murray is recorded as saying;

These items related to the definition of employee, which I will be moving later in the Workplace Relations Act amendment. I think I need to put these in context now, because obviously if they relate to provisions that are going to go into another act you need to put them in their context.

The bill claims that one of its objectives is to recognise independent contracting as a legitimate form of work arrangement that is primarily commercial; but in fact the bill offers no solution and no further enlightenment as to who is a genuine contractor or employee or who is a disguised contractor or employee.

As the chamber knows, various state legislatures have attempted to grapple with this but at the federal level the common-law provisions continue to prevail. Indeed, the bill only includes a very minimal definition of an independent contractor.

Instead it defers to the common-law definition, which in any case is subject to change over time as jurisprudence advances. Many, including the Democrats, believe relying on the common-law definition of employment is fraught with the problems.

Murray is arguing for explicit legislation that is definitive rather than the common law style of implicitability which remains a non-concrete entity until it is forced into definition by a High Court case. By the sounds of it the States have created explicit definitions in their now obsolete industrial relations legislation.

As noted in my minority report to this bill, the common-law definition of an independent contractor is not a definition as such; it is a set of principles established through jurisprudence and it is not about defining who is an independent contractor but defining who is not an employee.

The common-law approach relies on a test which involves the consideration of a number of court established factors or indicia. This means effectively a case-by-case approach, which is an unsatisfactory way to proceed with employee-contractor definitional disputes that may affect many hundreds of thousands of Australians.

I think it is important to recognise that this particular issue is at the heart of a genuine policy contest between the government and people of my persuasion.

Both the government and the Democrats agree that there should be a national regime which establishes the nature of independent contracting. The difference between us really comes down, at its heart, to the issue of the definition of an employee.

The government has, as a policy matter, adopted the common-law approach. We think--and we agree with the states, because they have tried to address this fundamental issue as well--that you do need a definition of employment.

The government, in another field, of course, has attempted to address this issue in a different way in tax law, through the alienation of personal service income test, which does seek to provide specific indicia of what constitutes an employee.

The Democrats are a national party who are comfortable with the ongoing centralisation of power to Canberra. That has been obvious over the years. Not surprising as they formed in a period when Australia was becoming comfortable with Australian nationalism and Australia as an independent nation-state.

I don't agree with that approach however. I think increasing decentralisation is a virtue under globalisation, as well as the security and stability challenges in the modern world. Federalism is a good technology, but only as much as the system is capable of restricting centralised control.

Murray's point that when disputes arise under this legislation, that common-law form that is permanently being moulded by Judicial decisions is inefficient and time-consuming. If the government is creating legislation to recognize independent contracting then it should be an explicit category. I side with Andrew Murray on this despite my opposition to Canberra having unitary control of industrial relations.

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More Reading on Andrew murray

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