Worker or independent contractor? Supreme Court clarifies the distinction in Hussain

In Noor Hussain v Gardens of Distinction Pty Ltd [2026] VSC 489, the Supreme Court of Victoria has clarified the distinction between workers and independent contractors under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

Background

Noor Hussain commenced common law proceedings against Gardens of Distinction in respect of a back injury suffered after using an auger at a flower farm in January 2021.

The Court was asked to determine the preliminary question of whether Mr Hussain was a “worker” within the meaning of s 3 of the Workplace Injury Rehabilitation and Compensation Act 2013.

The public liability insurer of the defendant was present during the hearing and made submissions on the deemed worker issue.

The decision

The Court emphasised that the distinction between an employee and an independent contractor is concerned with the rights and obligations established by any contract between the parties. Where that contract is wholly or partly oral, surrounding circumstances can assist the Court in understanding the parties’ legal rights and obligations.

In this case, contemporaneous financial records demonstrated that Mr Hussain operated an independent business supplying labour and flowers and foliage to Gardens of Distinction and others. Furthermore, the nature of the relationship between the parties pointed to Mr Hussain operating his own business, in which he was not subordinate to, or controlled by, Gardens of Distinction.

On that basis, Mr Hussain was not a common law employee of Gardens of Distinction.

The Court also rejected an argument that Mr Hussain was a deemed worker pursuant to clause 9 of Schedule 1 of the Act, finding that:

• Mr Hussain’s gross income from Gardens of Distinction did not comprise 80% of his total gross income in the relevant period;
• Mr Hussain was carrying on an independent business.

Takeaways

Contemporaneous records — in this case, tax returns, bank statements and invoices — can provide important evidence about the independence of a business and assist in identifying the true legal relationship between the parties.