29/09/2026
Recent “Gateway Test” Clarifies Employee vs Contractor Status
The Employment Relations Amendments Act 2026 has introduced a new Gateway Test designed to provide greater clarity when determining whether a worker is legally an employee or independent contractor.
Under the new test, a worker will be considered a Specified Contractor if the following five key criteria are met:
Written Agreement: There is a written agreement stating that the worker is an independent contractor and not an employee; and
Freedom to Work Elsewhere: The worker is allowed to work for another person or company; and
Control Over Work: The worker can choose when to work or can sub-contract work to a third party (with or without vetting, depending on the circumstances); and
Ability to Decline Work: The worker can decline additional offers of work; and
Independent Advice: The worker had a reasonable opportunity to obtain independent advice before signing the agreement.
If a working arrangement meets all the Gateway criteria, employment status can be determined at an earlier stage, providing greater certainty for both business and workers regarding their rights, protections, and obligations.
Importantly, if a worker does not meet the criteria in the new Gateway Test, employers and workers must then apply the existing common law tests to determine if the individual is legally a contractor or employee.
Overall, this change aims to reduce disputes over employment status, improve consistency across employment decisions, and provide stronger guidance across modern working arrangements.
