s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - whether Applicant dismissed - jurisdictional objection upheld - found that Applicant was not dismissed within the meaning of s 386(1) of the Fair Work Act.

[1] On the 15 December 2025, Mr Andrew Shaw (the Applicant) lodged an application pursuant to s 365 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment on 26 November 2025 by Sales Accent (Qld) Pty Ltd (the Respondent) contravened his workplace rights. In its Form F8A response, the Respondent raised a jurisdictional objection to the application, that the Applicant was not dismissed within the meaning of s 386 of the Act.

• [2] The Respondent's jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application.[1] Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s 368 of the Act.[2] Consequently, the issue for determination is whether the Applicant was dismissed from his employment within the meaning of s 386 of the Act.

[3] Following allocation of the matter to my Chambers, Directions were issued on 16 January 2026 for the filing of material in relation to the jurisdictional objection. The Respondent filed material on 30 January 2026 in accordance with the Directions. The material filed included submissions, a witness statement of Mr Peter Hopkinson (Director of the Respondent) and other documents on which the Respondent sought to rely. The Applicant failed to file any material in reply by the required filing date, that of 13 February 2026. In correspondence sent by my Chambers at 9.15am on 16 February 2026, the Applicant was advised the following;

I draw your attention to the Notice of Listing and Directions sent on the 18 December 2026. These Directions required submissions from the Applicant by 5pm, Friday 13 February 2026. At this time, Chambers has not received these submissions.

Chambers requires these submissions by close of business today 16 February 2026. Otherwise, the Deputy President will determine the current matter on-the-papers, that is, without a Hearing.

If you object to that course of action or require an extension of time, you are required to notify Chambers by 5:00pm today.

[4] The Applicant failed to respond to the above correspondence; by way of filing his material, objecting to my proposed course of action of dealing with the matter on the material before me, or seeking an extension of time to file his material. Having received no response, further correspondence was sent to the parties advising that the notice of listing and directions were vacated and that I would proceed to determine the Respondent's jurisdictional objection on the papers. It is to that I now turn to.

[5] In a document attached to his Form F8 application the Applicant made a number of assertions which may be summarised as follows;

• While described as an independent contractor, he personally performed the core operational work of the business and was not engaged to deliver a discrete project.

• The ABC Tissue/Quilton relationship arose from the Applicant's initiative, resulting in him securing the sale of those products through Chemist Warehouse for the Applauder group.

• He established and managed the Quilton Amazon presence, which required significant effort on his part.

• Through Applauder Vic. Pty Ltd of which he was a director and 75% owner, he personally undertook head office management of pharmacy accounts nationally for the Applauder group.

• Applauder Vic accounted for 98% Quilton sales nationally for Applauder.

• His final major contribution to the business was securing Quilton's re-entry into New Zealand via Australia.

• Throughout this period, he says his performance was consistently strong.

• In November 2025, a narrative emerged that ABC was experiencing a deterioration in service and that following a dispute with Mr Hopkinson, his engagement was terminated and all revenue streams relating to Marketing Brokers Australia accounts, ABC Tissue/Quilton, Applauder Vic field activity, and Applauder Australia field activity were removed from entities under his control.

• The work removed from entities controlled by the Applicant, was reallocated to Ovation Brands Pty Ltd, a newly established entity controlled by Mr Hopkinson and a Ms Eva Judd.

• Third party correspondence discloses that representations were made to brand owners describing Ovation as a direct replacement for Applauder.

• As a result of these actions, his field teams lost work, his income ceased and accounts he personally managed transferred to others.

[6] Mr Hopkinson gave the following unchallenged evidence on the background to the relationship between the Applicant and Respondent which may be summarised as follows;

• The Respondent is a broker of food and other products based in Queensland.

• Mr Hopkinson was first introduced to the Applicant in 2017 during which conversation the Applicant expressed interest in the Respondent providing services to some of the Applicant's clients in Queensland.

• The Respondent proceeded to enter an arrangement whereby it distributed products in Queensland for the Applicant's company, Applauder Vic.

• From that initial discussion between Mr Hopkinson and the Applicant, a commercial arrangement was established which involved a number of separate commercial entities including the Respondent, Applauder Vic, Strategic Partnership Brokerage Pty Ltd (SPB) which is based in South Australia and P.F. Rogers & Sons Pty Ltd (P F Rogers) which is based in Western Australia, collectively referred to as the Applauder affiliation; selling a range of products across Australia.

• While the agreement between the companies involved in the Applauder affiliation was not in writing, it had the following effect;

(1) Each company in the affiliation had and obtained its own clients.

(2) If one of the respective clients wanted to reach customers in another State, one of the companies would be able to pass work on to the other companies in the affiliation and leverage their experience and connections in the relevant State.

(3) The commission received from the client would be shared based on the sales achieved in each State.

• At all times since 2018 when the Applauder affiliation began, all payments and receivables were paid or received by the four companies and not any individuals and at no stage was the Applicant entitled to receive any payments or commissions in a personal capacity.

• The Applicant conducted all business related to the Respondent through a contractual arrangement between the Respondent and Applauder Vic and at no stage claimed to have been an employee of the Respondent.

• Applauder Vic engaged its own clients on a contractual basis but did pass on work to the Respondent for some of its clients in Queensland or would receive work from the Respondent in respect of servicing the Respondent's clients in Victoria. The same arrangements applied to SPB and P F Rogers.

• Each of the Applauder affiliation companies was at liberty and did in fact engage other entities to undertake work for their respective clients outside the Applauder arrangement.

• The arrangement between the Respondent and Applauder Vic was a contractual arrangement and the Applicant was never an employee of the Respondent.

• Applauder Vic was engaged by its own individual clients on a contractual basis.

• Applauder Vic had its own clients and Sales Accent would service some of those clients in Queensland, and Applauder Vic would pay the Respondent a commission based on sales made in Queensland.

• Independent of the Applauder affiliation, each of the brokerage companies also had their own clients that they would service by themselves and were not subject to any commission payments to the other Applauder companies.

• Further, each of the Applauder companies were at liberty and did in fact engage other entities to undertake work for their respective clients outside the Applauder arrangement. For instance, the Respondent engaged other entities to market products in Victoria.

[7] Mr Hopkinson went on to state that the Respondent;

• only ever paid the Applicant by payments to the company, Applauder Vic;

• had no control over the business of Applauder Vic or the Applicant and at all times, Applauder Vic managed its own business, employed its own staff and operated without any direction from the Respondent as to how Applauder Vic should operate and conduct the works it undertook;

• did not supply Applauder Vic with any equipment, such as computers or mobile telephones and which were provided by the Applicant;

• had no control over the hours in which the Applicant worked and he was free to set his own hours of work;

• was only obligated to pay Applauder Vic for sales it had completed and did not pay a set wage;

• is not responsible for any profit or loss incurred by Applauder Vic, it simply paid Applauder Vic a percentage on sales, and that Applauder Vic employed its own team;

• were not responsible and have never paid Applauder Vic staff;

• did not roster or require the Applicant to do timesheets;

• did not withhold any payment to Applauder Vic for PAYG tax or any other tax;

• did not pay holiday leave or sick leave to Applauder Vic or the Applicant;

• never required the Applicant to attend routine meetings or provide weekly or periodic reports regarding the hours that he worked; and

• paid Applauder Vic more than $400,000 in the financial year ended 30 June 2025 which was used by Applauder Vic to pay its staff and to conduct its operations.

[8] Finally, Mr Hopkinson states that Applauder Vic was free to delegate or have any of its employees do work and that the Applicant used his own Applauder Vic email address and was never given an email account by the Respondent.

[9] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute in the event that an application is made under s 365.

[10] The circumstances in which a person is taken to be "dismissed" are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[11] In the present case, the Respondents contend that the Applicant was not an employee and therefore could not have been dismissed within the meaning of s 386(1). Determination of whether the Applicant is an employee is to be determined by reference to s 15AA of the Act which relevantly provides as follows;

"15AA Determining the ordinary meanings of employee and employer

(1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.

(2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:

(a) the totality of the relationship between the individual and the person must be considered; and

(b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.

Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

[12] Section 15AA of the Act was inserted by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) and commenced on 26 August 2024. By reason of Clause 116(1)(a) of Schedule 1 to the Act, s 15AA applies to a relationship entered into before the commencement date and that is in existence as at that date. It is not contested that the Applicant entered into a relationship with RPMAH before 26 August 2024 and that the relationship was in existence at that date.

• [13] Section 15AA(2) requires a consideration of the totality of the relationship which involves in turn a consideration of, amongst other things, the terms of the contract between the parties and an assessment as to how the contract is performed in practice. The approach to a consideration of the totality of the relationship under s 15AA is guided by the common law principles established by cases such as Stevens v. Brodribb Sawmilling Co. Pty Ltd[3] and Hollis v Vabu Pty Ltd[4] and involves a reversion to the multifactorial test that was well known and widely applied prior to the High Court decisions in CFMMEU v. Personnel Contracting[5] and ZG Operations v. Jamsek[6].

• [14] The relevant authorities on the distinction to be drawn between an employee and an independent contractor are well established and were helpfully summarised by a Full Bench of the Commission in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario[7] (French Accent) where it set out the relevant principles to be applied including consideration of various indicia as identified in Stevens v Brodribb Sawmilling Co Pty Ltd.

• [15] More recently another Full Bench in Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats[8] (Gupta) reaffirmed French Accent as the relevant authority but in doing so cautioned against the use of the multi-factorial approach as merely an arithmetic exercise when they stated;

[64] In French Accent, a Full Bench of this Commission usefully summarised the considerations, derived from various court authorities, which may be relevant in the application of the multi-factorial test referred to in Brodribb. However as was stated by Winneke P in the Victorian Court of Appeal decision in The Roy Morgan Research Centre P/L v The Commissioner of State Revenue, the task in applying the test is not to be approached as a mechanical exercise of running through items on a checklist, but is rather "a matter of obtaining the overall picture from the accumulation of detail". This involves "an assessment and evaluation of evidence for the purpose of identification and isolating factors or indicia which are capable of pointing in one direction or the other, and then weighing or balancing those factors in accordance with established principles, none of which is conclusive, in order to reach a conclusion". (footnotes omitted)

• [16] As also stated by the Full Bench in Gupta, conduct of the "multi-factorial evaluative approach" proceeds on the premise that "the individual in question personally performs work pursuant to a contractual relationship with another person or entity"[9]. On that premise, the question to then be answered by use of the multifactorial approach, is that of whether the work is performed as a contractor or as an employee.

[17] Turning now to consider whether the Applicant was an employee or contractor. In doing so I note that the evidence of Mr Hopkinson was unchallenged. That leads me to find as follows;

• while there was no contract in writing between the four companies that formed the Applauder affiliation, each of the four companies carried on their own businesses and shared commissions according to the state in which the sales of the Applauder group were made;

• the Applicant ran his own business, Applauder Vic and was not subject to control by the Respondent;

• each of the four companies that formed the Applauder alliance were able to sub-contract and/or delegate work;

• the hours of work performed by the Applicant were not subject to control by the Respondent;

• The Respondent did not present the Applicant as an emanation of the Respondent's business; and

• the Applicant conducted his own business and in that capacity was able to maintain and attract clients independently of the Respondent; and

• the Applicant also engaged his own 'field staff'.

[18] All of the above matters which go to the practical control the Respondent was able to exert over the Applicant tells strongly against a finding that the Applicant was an employee of the Respondent.

[19] Turning to other indicia, the following findings are made;

• the Applicant conducted his business in Victoria, that being a geographically separate workplace of that of the Respondent, which is based in Queensland, although the Applicant's Applauder Vic business had some clients in Queensland;

• the Applicant was responsible for maintaining all necessary 'tools and equipment' in relation to the conduct of his business;

• the Applicant was not paid a periodic salary by the Respondent and in fact all commission payments were made between the various companies, including to Applauder Vic rather than to individuals ;

• no income tax was deducted by the Respondent from any payments made to Applauder Vic;

• the Applicant did not receive paid leave from the Respondent;

• the Respondent did not make superannuation contributions for the Applicant and nor did it pay or maintain insurances for the Applicant or Applauder Vic; and

• there is no evidence going to the proportion of remuneration/revenue that was incurred by the Applicant in expenses.

[20] Having considered the various indicia, it is evident that the matters set out above point overwhelmingly to the Applicant carrying on his own business and that he was not an employee of the Respondent. The most compelling of these factors are;

(1) The Applicant ran his own business which was based in Victoria and while it formed part of the Applauder alliance, it was free to operate independently, engage its own clients and sub-contract or delegate work.

(2) The practical control exerted by the Respondent was limited.

(3) The manner in which the Applicant arranged his business and taxation affairs were consistent with that of an independent contractor. Specifically, his company Applauder Vic received commission payments from the Applauder group for sales generated in the area Applauder Vic serviced.

(4) The Applicant did not receive a salary, superannuation, paid leave or other entitlements from the Respondent that would normally characterise an employment relationship.

(5) The Applicant employed his own staff through the Applauder Vic entity.

[21] I do not consider that the relationship between the Applicant and Respondent, when looked at in its totality, contains the essential features that would ordinarily characterise an employment relationship: that being the relevant contractual terms and the right of the Respondent to exclusively control when and how work was to be performed by the Applicant. The weight of the matters considered, lead me to conclude that the Applicant was not an employee of the Respondent and was in fact carrying on a business of his own.

[22] It necessarily follows from the foregoing that the Applicant was not an employee of the Respondent, was not dismissed within the meaning of s 386 of the Act and is therefore unable to make a general protections dismissal dispute application The application must be dismissed. An order giving effect to this decision will be separately issued.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.

[3] (1986) 160 CLR 16

[4] [2001] HCA 44; (2001) 207 CLR 21

[5] [2022] HCA 1

[6] [2022] HCA 2

[7] [2011] FWAFB 8307 at [30].

[8] [2020] FWCFB 1698.

Printed by authority of the Commonwealth Government Printer