Contract, Labour Law and Reality in the High Court of Australia

The recent turn towards legal formalism and the common law of contract in the High Court of Australia’s landmark redefinition of the employment relationship in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd and ZG Operations Australia Pty Ltd v Jamsek (a companion appeal), has concerning ramifications for workers. This article explains this decision through critical contract theory, contextualising it as the latest edition to a series of cases that have applied formalist legal reasoning to redefine key areas within Australian labour law including: implied terms; adverse action; prohibited matters; and industrial action. It argues that eclipsing the reality of work with the ‘form’ of an employer’s contract or other narrow, individualistic forms of reasoning, undermines the protective purposes of labour law, enhancing employer power while marginalising workers. The paper concludes with an analysis of proposals — mostly legislative in nature — to stem the destructive influence of formalism and the law of contract upon labour law.