Protection of independent contractors under WorkChoices and the Fair Work Act: improvement or continuity?

The focus of the policy debates surrounding both the Howard Government’s reforms and the Rudd Government’s recently enacted Fair Work Act 2009 remains ‘unremittingly on employers and employees’.  Virtually nothing has been said about ‘the regulation of work performed outside the confines of the traditional employment relationship [despite an] increasing scope of atypical employment arrangements, [including] a large number of workers who provide their personal labour as “self-employed” contractors’. The aim of this essay is to investigate the impact that this period of radical reform has had on the protection of independent contractors. It begins by setting out the distinction that has developed under Australian labour law between an employee and an independent contractor, and it then explains the key concerns that have arisen in relation to the regulation of independent contractors over the past three or so decades. The essay then examines the various ways in which regulators have sought to meet these concerns, by providing a comparative assessment of key job security protections afforded to independent contractors through a three-stage process. Firstly, it sets out the key protections afforded to independent contractors before the introduction of the Howard Governments’ reforms. It then investigates how these protections were affected by the introduction of the Howard Government’s WorkChoices Act and Independent Contractors Act. It then looks to the responses to these reforms under the Rudd Government’s ‘Forward with Fairness’ policies. The essay concludes with an analysis of these different regimes, ultimately answering the key question of whether, compared with the federal industrial regime governed by the WorkChoices Act and the Independent Contractors Act, the Fair Work Act improves the protection of independent contractors