When “Becoming a Contractor” Becomes the Law: ZG Operations v Jamsek
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Published: 11 November 2025 | Reviewed: 5 December 2025
(3-minute read)
The Background: From Employees to “Contractors”
Between 1977 and 2017, Martin Jamsek and Robert Whitby delivered goods for the same lighting business. For nearly a decade they were employees, driving company trucks. But in 1986, the company offered an ultimatum:
“Buy your own truck and work as contractors — or we can’t guarantee you a job.”
They agreed. Each formed a partnership with his wife, bought a truck, and began invoicing the company for deliveries. Over 30 years, their daily routine hardly changed. They wore the company’s logos, worked regular hours, and made the same runs. Yet the paperwork said they were independent contractors.
When their agreements ended in 2017, they claimed employee entitlements under the Fair Work Act 2009 (Cth), Superannuation Guarantee (Administration) Act 1992 (Cth), and Long Service Leave Act 1955 (NSW).
The question for the High Court:
Were they truly contractors - or still employees in disguise?
The Legal Issue
At the centre was whether a contract’s written form should decide the relationship, or whether the practical reality of decades of work should override it.
The Federal Court had ruled that despite the contracts, the men were really employees - citing “the substance and reality” of the relationship.
But the High Court of Australia took a stricter view.
The High Court’s Decision
The Court allowed the appeal, holding that:
The partnerships - not the individuals - contracted with the company.
The contracts were not a sham and comprehensively governed the relationship.
Because the partnerships provided and maintained their own trucks, bore expenses, and invoiced for work, they were conducting businesses of their own.
Chief Justice Kiefel, Keane and Edelman JJ wrote:
“The respondents were members of partnerships which carried on the business of providing delivery services... The circumstance that entry into the contract was brought about by superior bargaining power did not alter its meaning or effect.”
Other judges agreed.
Gageler and Gleeson JJ noted that where substantial equipment is provided, such as trucks, the mechanical outweighs the personal.
Gordon and Steward JJ confirmed that the partnerships, not the drivers, contracted and invoiced the company, creating independent business relationships.
The workers were independent contractors, not employees.
Why It Matters
ZG Operations v Jamsek sits beside CFMMEU v Personnel Contracting (2022) as part of the High Court’s “contract primacy” doctrine. Together, they redefine how Australia determines employment.
Key takeaways:
The written contract rules - unless it’s a sham or has been varied.
History and conduct are irrelevant if the contract is genuine.
Partnerships and business structures matter: a person trading through their own entity may not be an employee.
Power imbalance alone does not change legal character - though it may invite legislative or equitable intervention.
The Court drew a clean, formal line: substance lies in the document itself, not the lived experience - unless injustice is expressly pleaded.
Clean Law Connection - Power and Fair Structure
This judgment exposes a deeper issue in Australian law: where fairness ends and freedom of contract begins.
The High Court’s reasoning was technically correct - but morally uneasy.
The drivers had little real choice in 1986. The “contracting” structure simply preserved the company’s control under a new label. Yet, because the agreements were genuine, the law treated them as binding.
Clean Law’s Client Protection - Advocacy Boundaries directly confronts this paradox.
We ensure that:
Contracts reflect real agency, not pressure.
Clients understand their legal position before signing.
Independent Statements capture informed consent - a modern safeguard against the illusion of choice.
Where the Court saw only form, Clean Law adds ethical substance.
Reflection - When Freedom Masks Dependence
Jamsek teaches that law protects clarity, not always fairness.
A contract can be real but still unjust - if power dictated its making.
By reaffirming that words bind even when choice is constrained, the High Court preserved stability at the cost of empathy. It’s a sober reminder: clean law requires more than precision — it requires conscience.
At Clean Law, we embed that conscience at the drafting table, not in the courtroom.
Request a Confidential Call to review your contractor and employment agreements to ensure your business operates with integrity - not imbalance.
By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.
Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.
