The ‘Entrepreneurship Approach’ to Determining Employment Status: A Normative and Practical Critique

Abstract

Recently, the concept of entrepreneurship has attracted increased attention in the Australian case law on employment status. Some judges have adopted an ‘entrepreneurship approach’ in determining whether a worker is an employee or an independent contractor, while others have rejected this approach. Although the concept of entrepreneurship has appeared increasingly frequently in the cases, it remains an under-theorised concept. This article critically evaluates the concept from a normative worker-protective perspective. It assesses the entrepreneurship approach by reference to theories of power and vulnerability in the employment relationship, and critically examines cases from the United States of America (‘US’) that illustrate the nature and practical operation of the entrepreneurship approach. The article argues that an entrepreneurship approach that operates in a manner similar to the ‘ABC’ test in the US warrants consideration by those seeking to revitalise the tests for employment status in Australia.