Judging the employment status of workers: an analysis of commonsense reasoning

When judges make decisions about the employment status of workers, they are often required to draw on commonsense reasoning to resolve contested issues. These findings are typically drawn from the judges’ general knowledge or intuition and may be presented as ‘obvious’ or ‘well-known’ commercial or social realities. Given the consequences that flow from categorising a worker as an employee, it is important that these assumptions represent an understanding of workplace relationships that is both contemporary and socially inclusive. Drawing on Australian court decisions, this article identifies three examples of commonsense assumptions and argues that these should be subjected to a process of critical reflection that takes into account changing sociocultural contexts and the experience and expectations of the wider community.