Section 15AA — Fair Work Act 2009 (Cth)

(1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.

(2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:

(a) the totality of the relationship between the individual and the person must be considered; and

(b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.

Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

(3) Subsections (1) and (2) do not apply to the following provisions of this Act:

(a) Divisions 2A and 2B of Part 1‑3;

(b) Part 3‑1, to the extent that Part 3‑1 applies only because of the operation of section 30G or 30R.

Related sections

• s 14 — Meaning of national system employer
• s 14A — Transitional matters relating to employers etc. becoming, or ceasing to be, national system employers etc.
• s 15 — Ordinary meanings of employee and employer
• s 15AB — Individual may elect that section 15AA does not apply
• s 15AC — Effect of an opt out notice
• s 15AD — Opt out notice may be revoked by an individual

Research how courts apply s 15AA

BriefBridge searches Australian caselaw by meaning — every answer cited to the paragraph.