ON 9 AUGUST 2001, the High Court of Australia delivered Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 (9 August 2001).

http://www.austlii.edu.au/au/cases/cth/HCA/2001/44.html

The plaintiff was a pedestrian who was injured on a footpath by a bike courier. The defendant was the courier company who engaged the cy list. The company denied liability for the pedestrian’s injuries on the basis that the cyclist was an independent contractor. The trial judge awarded damages to the pedestrian, finding that the cyclist was an employee. The Court of Appeal allowed an appeal by the company, finding that the cyclist was an independent contractor.

The High Court allowed an appeal by the cyclist,  holding that the cyclist was not an independent contractor because:

• no discretion to accept or reject work.
• stringent roster system.
• clear rules on taking annual leave.
• little or no scope for freelancing.
• no special skills.
• cyclists were identified with the company with uniforms and a dress code.
• pay and conditions were consistent with an employment relationship.
• no scope for bargaining of rates.
• the provision of the bikes as necessary tools and equipment was not inconsistent with an employment relationship
• the exercise of control by the company over the courier’s activities.

The relevant considerations for determining whether or not a person is an independent contractor include:

• Who owns the business?
• Who controls the operation/work?
• Who owns the office space?
• Who owns the tools?
• Who does the contractor provide duties to?
• Does the independent contractor bear a risk of profit or loss?
• Is there a creation of goodwill?
• How is the independent contractor paid?

Sydney, Australia

1300 00 2088