Building Workers Industrial Union of Australia & Ors v Odco Pty Limited

The applicants, the Building Workers' Industrial Union of Australia and others, sought special leave to appeal to the High Court of Australia against a decision concerning the employment status of certain workers. The dispute centred on whether these workers were employees of Odco Pty Limited or another entity, or if their employment arrangements were structured to avoid the creation of an employer-employee relationship.

The central legal issue before the High Court was whether a contractual arrangement could effectively negate the existence of an employer-employee relationship, particularly where the functions typically associated with an employer were divided between two parties. This involved examining a structure where one party controlled the worker's activities but did not make payments, while another party made the payments but did not exercise direct control. The court also considered the significance of a worker's autonomy in choosing their working days and hours.

The applicants argued that the trial judge erred by focusing on the parties' intention to avoid an employer-employee relationship and by applying a checklist of criteria derived from existing case law, such as *Stevens v Brodribb*. They contended that the judge's weighing of these criteria, which resulted in a finding that the workers were not employees of either potential employer, overlooked fundamental aspects of the employment relationship and the principles for determining such status. The applicants submitted that the case raised significant questions about the ability to circumvent employment law through contractual design.