'Two Bob Each Way' : Employee or Independent Contractor?

Abstract

The relationship of employer and employee continues to be accepted as essentially one of contract. Although special incidents may attach to the employment contract because of its inherent nature, and at times the application of the general law of con tract may seem conceptually artificial, the contract, with its theoretical basis of mutual agreement, remains the 'cornerstone' of our industrial regulatory system. The law also continues to be bedevilled by the question of what is a contract of employment. This torment is a response to the inability of the law to provide any guidelines of universal application for answering that question. This article seeks to determine whether or not the judicial adherence to, or preoccupation with, contractual principle is maintainable given the current state of the law. Analysis is divided into considera tion of the traditional distinction between employee and independent contractor and also of the various 'tests' applied by the courts, and of the attempts to avoid the vagaries of the law by the use of detailed contracts.