s.604 - Appeal of decision

Appeal against decision [2025] FWC 3006 of Commissioner Platt at Adelaide on 10 October 2025 in matter number C2025/7467 - permission to appeal refused

[1] Adrian Smith has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Platt issued on 10 October 2025 ( [2025] FWC 3006) in which the Commissioner concluded that Mr Smith had not been employed or dismissed by Amart Furniture (Amart) and consequently dismissed his s 365 application. The matter was listed for hearing in relation to permission to appeal only. The parties consented to the matter being determined without a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions (see s 607(1) of the Act).

[2] Section 365 provides that if a person has been dismissed, and alleges that the dismissal was in contravention of Part 3-1 of the Act, the person may make an application to the Commission to deal with the dispute. Section 386 defines when a person has been dismissed. This section applies to applications under s 365 (see Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152). 'Dismissed' means dismissed from employment. Amart objected to Mr Smith's s 365 application on the ground that he had been a contractor, not an employee, and that he was therefore ineligible to bring his application under s 365 of the Act. In his decision, the Commissioner summarised the evidence, noting the following uncontested facts: Mr Smith is the beneficial owner of a company called Adrian Smith Enterprise Pty Ltd (ASE); ASE rents a warehouse, owns delivery trucks, employs drivers and other workers, and provides house moving services to its clients; ASE provides its services to a number of furniture retailers; some 50% of ASE's revenue is received from Amart; in January 2025 Mr Smith executed a service agreement with Amart, on behalf of ASE, for the provision of delivery and other services; ASE submitted invoices to Amart in accordance with the schedule of rates in the contract; the contract ended on 12 July 2025.

[3] The Commissioner noted Mr Smith's arguments in support of his contention that he had been an employee of Amart, having regard to s 15AA of the Act and all the circumstances, including that Amart had control over invoicing, had oversight of him and his staff, and had imposed strict deadlines and responsibilities. Mr Smith also said that he was dependent on Amart for income. The Commissioner concluded that he was not persuaded that Mr Smith was an employee of Amart at the time of the alleged dismissal. The Commissioner said that Mr Smith was and remained the managing director of a company providing services to clients including Amart, and that the majority of his time was spent running his own business. The Commissioner concluded that Mr Smith could not fairly be described as an employee of Amart, and that therefore Mr Smith had not been dismissed.

[4] An appeal may only be brought with the permission of the Commission under s 604(1). Section 604(2) provides that the Commission must grant permission if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCA 54; (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or if the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27]). Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. The fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[5] Mr Smith's notice of appeal contained six grounds. First, he submitted that the Commissioner erred in determining his status because he should have applied s 15Q instead of s 15AA. But s 15Q concerns the meaning of a regulated road transport contractor and has nothing to do with whether he was an employee. The second to fifth grounds all pertain to alleged errors associated with s 15Q and related provisions. They are misconceived. So too is appeal ground 6 which submitted that the Commissioner had referred to irrelevant precedent instead of focusing on the provisions relating to road transport contractors. In his appeal submissions, Mr Smith said that the proceeding was affected by procedural irregularities; that he was surprised by the presence at the hearing of Amart representatives whom he did not know and that the process was unfair; that Amart had submitted its materials late and also filed a bundle of documents just before the hearing, which disadvantaged him (what these were and why they were important is not explained); and that the Commissioner failed to understand the nature of Amart's operational control over the invoicing process. Mr Smith also contended that he had other tasks outside the contract between the two companies, including managing certain software, and that he had dual roles, one of which was involved with his company, while the other was as an employee of Amart. Mr Smith also submitted that the Commissioner applied the wrong legal test and relied on a misapprehension of the evidence.

[6] None of the appeal grounds advance an arguable case of appealable error in the Commissioner's decision or in the conduct of the proceeding. Mr Smith wrongly believes that s 15Q is the relevant reference point to determine whether he was an employee. It is not relevant. There was no failure by the Commissioner to afford Mr Smith procedural fairness. Mr Smith disputes the Commissioner's conclusions and seeks to reargue the case that he put to the Commissioner, however a preference for a different outcome does not speak to any error; appeals exist for the correction of error, and an application for permission to appeal must identify alleged appealable error. We perceive there to be no arguable case of error. Moreover, it seems plain that Mr Smith was running his own business, that this business provided services to Amart, that the contract was a commercial one and not one of employment, and that Mr Smith's contention that he was nevertheless somehow an employee of Amart is not borne out by the evidence. In short, his case was a weak one, and the Commissioner's disposition of it contains no indication of an arguable case of error.

[7] We are not satisfied that it is in the public interest to grant permission to appeal, or that permission should be granted on general discretionary grounds. It appears to us that the decision reflects an entirely orthodox approach to a jurisdictional objection that a person was not dismissed for the purposes of s 365. Permission to appeal is refused.

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