As the chamber knows, various state legislatures have attempted to grapple with this but at the federal level the common-law provisions continue to prevail. Indeed, the bill only includes a very minimal definition of an independent contractor. Instead it defers to the common-law definition, which in any case is subject to change over time as jurisprudence advances. Many, including the Democrats, believe relying on the common-law definition of employment is fraught with the problems.
Murray mentions that the common-law version of independent contractor has no real definition, it is kind of what an employee is not. It is also malleable; meaning that the judicial of the time can interpret what an independent contractor is depending on the current accepted meaning is. So at any one moment the definition may change depending on the current Judicial view of the definition. Gavin Marshall listed the current tests in his speech on the issue.
Eric Abetz replied with;
More fundamentally, however, the government opposes the definition of “employee” proposed by the Democrats because that definition would include an exhaustive list of factors that point to a person being either an employee or an independent contractor. This is less flexible and narrower than the existing common-law test that allows consideration of all relevant factors and circumstances impacting upon the relationship between the parties. The government will not support amendments that reduce flexibility by departing from the long-established and well-understood common-law tests.
The choice becomes; explicit legislation where the definitions are hardened in the Senate and House (the same method the States undertook) or, implicit legislation where the courts can advance, modify or maintain the definitions.
That is more than a divergence on policy. It is a difference in the philosophy of governance.
Andrew Murray is arguing for the Legislative to be the temporal arm of government with the Judicial being the conservative body that is restricted in their decisions by explicit legislation. Eric Abetz is arguing for the Legislative as a conservative body and the Judicial to be the temporal and progressive arm of government.