Class Analysis And The Contract Of Employment

• Author: Frank Carrigan
• Position: Senior Lecturer, Macquarie Law School
• Pages: 207-234

207

CLASS ANA LYSIS AND THE CONTRACT

OF EMPLOYMENT

F C*

A

e aim of the article is to establish how class analysis has underpinned common

law contract of employment cases. It was axiomatic that judges would turn to

class analysis in this eld of law. For, in each case, the question that had to be

resolved was whether someone was an employee or independent contractor. ese

two groups shared many similar characteristics and in order to settle a case people

had to be put in their right class and this factor drove judges to engage in class

analysis. e article will pinpoint how the successive rules that have evolved to

distinguish whether a person was an employee or independent contractor casts a

light on how sociological forces have played a fundamental role in shaping legal

tests in labour contract law.

I. I 

In this paper, I want to tackle two related ta sks. First, I will seek to

illuminate how, over a long historical period at common law, judges

have utilised class analysis to draw a distinct ion between an employee

and an independent contractor. Second, I will examine how well the law

of employment has operated in dealing with the dichotomy between an

employee and independent contractor. In brief, the paper will examine

whether the class ana lysis adopted by judges in dening the common law of

contract of employment has resulted in a clear exposition of the legal status of

an employee and independent contractor.

e fundamental aim of the paper is to show how, in the eld of the

common law contract of employment, judges engage in class analysis. is

is not a matter of voluntarism. e inescapable reality of having to allocate

people to a social class as par t of the settlement of cases ensures judges engage

in class analysis. A distinction between t hose who buy and sell labour hours

has to be established in the course of a labour contract case and thus, judges

simply cannot avoid sociological reasoning being part of their reasoning

process.

From the outset, the judges had to distinguish whet her a person was

an employee or independent contractor, for these two groups shared many

* Senior Lectu rer, Macquarie Law School.

208 Canterbury Law Re view [Vol 22, 2016]

similar characteristics in their work relationship. In order to settle a case,

people had to be put in their right class and this empirica l reality drove judges

to engage in class analysis.

Strict legalism with its theor y that law is a system of rules proved exible

enough in practice to allocate for the rea lity that judges were engaged in

categorising classes when t hey gradually adapted or updated the common law

test for employment in line with the changing dyna mics of class composition.

Facts are stubborn things a nd judges were adroit enough to understand

that their task in labour contract cases was to put people in a class if an

employment case was to be cogently addressed. e theoretica l niceties of

strict legalism had to adapt to the material reality of a social structure based

on class distinctions when employment cases ca me before the judiciary.

Judges are not immune to the inuences of extra-legal fac tors but they

also operate within the strict ures of legal reasoning. However, through a glass

darkly, it is possible to view their legal reasoning as a form of concentrated

economics and politics. Also, the cultu ral superstructure plays a role in shaping

legal principles. In the case of the common law employment test, Australia’s

status as a British Empire client state ensured English law impacted strongly

on shaping the contours of the Australian c ommon law employment test. e

interconnection between English law and its Australian counterpart in the

eld of the legal test for employment will be a feature of this paper.

Beginning in the late Middle Ages, master and ser vant statutes legally

regulated the wage-labour form.1 But, as capitalism developed and the

coercive obligations of status and punitive rules centra l to the master and

servant statutes beca me anachronistic, the organising principles of contract

law, with its theme of liberal individualism and free labour operating in a

market economy, became the conceptual framework of the employment

relationship in the common law world.2 e common law was less oppressive

than the supplanted master and ser vant statutes but it was not to be free

of expressing power relationships. e class dimensions of the common law

contract of employment and how judges have dealt with that problematic

issue when undertaking the classication task of identif ying those caught up

in a wage-labour relationship is central to this paper.

II. T L  C I

e individual employment relationship has, in the modern era, been

the pivot of labour law. Sir Otto Kahn-Freund has depicted the contract of

1 Christopher Fran k Master and Servant Law : Chartists, Trade Unions, Radical Lawyers and the

Magistracy in En gland, 1840-1865 (Ashg ate, Farnha m, 2010) at 6. Douglas Hay and Paul

Craven (eds) Masters, Se rvants, And Magi strates in Brit ain and the Empire, 1562-1955 (e

University of North C arolina Press, Chapel Hi ll, 2004) at 1.

2 Hu gh Collins e Law of Cont ract (Lexis Nexis , London, 2003) 4.