s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] On 30 May 2025, Mr Christopher Donnelly (the Applicant) lodged an application (the Application) in the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act), against KWB Group Pty Ltd (KWB/the Respondent).

• [2] The Respondent raised jurisdictional objections to the Application, being:

(a) That the Applicant was not dismissed within the meaning of s.386 of the Act because:

• [3] Directions were issued to program the manner in which the Application was to proceed to hearing. In response to those Directions each party filed materials, and the materials relied upon by the parties at the Hearing were:

(a) The Applicant filed an Outline of Submissions and a Statutory Declaration of Christopher Donnellly dated 7 July 2025;

(b) The Respondent filed an Outline of Submissions dated 21 July 2025, with multiple Annexures, and;

(c) On 28 July 2025, the Applicant filed a Reply Submission.

• [4] The Hearing of the Application occurred on 31 July 2025 (the Hearing). Other than various annexures to submissions, the only evidence relied on in the matter was the Statutory Declaration of Christopher Donnellly, and there was no cross-examination of Mr Donnelly regarding his evidence.

• [5] On 13 January 2021, an agreement titled "Independent Contractor Agreement" (the Agreement) was executed between KWB on the one hand, and CMI Joinery Pty Ltd (CMI) on the other. CMI is a company of which the Applicant is the sole director and shareholder.

• [6] The Agreement defined CMI as "the Contractor" and Mr Donnelly as "the Nominated Representative". The Agreement contained a number of important provisions. Those provisions included the following:

The engagement of the Contractor by KWB will commence on the Commencement Date set out in Item 1 of Schedule 1 and will continue until the engagement is terminated in accordance with clause 11 of this Agreement (Term). The Contractor can provide KWB with a written request in respect of a period or periods not exceeding 4 weeks in one year, in which it will not provide the Services.

(b) Clause 2 "Provision of Services" defined "Services" as "Wardrobe Installation", and provided in part:

During the Term, the Contractor will provide the Services set out in Item 2 of Schedule 1 (Services) to KWB through the Nominated Representative (set out in Item 6 of Schedule 1) or any other person, subject to the prior written approval of KWB.

The Contractor and the Nominated Representative do not have authority to act on behalf of or bind KWB. The Contractor is solely responsible for providing the Services and controlling the manner in which the Nominated Representative performs the Services.

The Contractor will provide the Services at the location set out in Item 3 of Schedule 1 but also at such other locations as directed by KWB from time to time, including interstate locations. The Contractor procures that the Nominated Representative will report to the person set out in Item 4 of Schedule 1 [being the Queensland Logistics & Robes Manager], or such other person or persons as directed by KWB from time to time.

Although the Contractor may provide services to other persons or entities during the Term, the Contractor must not provide such services where there may be a conflict of interest with the interests of KWB or any Related Company (Group) or carry on or provide services to any business or activity which is in competition with, or of a similar nature to, any business carried on by the Group.

The Contractor must perform the Services in a proper and efficient manner in the best interests of KWB and must work such hours and at such times as may be necessary for the satisfactory provision of the Services. The Contractor must also comply with all lawful and reasonable directions given by KWB, all applicable legislation and any policies, practices and procedures of KWB so far as they relate to the provision of the Services by the Contractor.

(c) Clause 3 "Nature of Relationship and Warranty" defined "Services" provided:

The Contractor is engaged by KWB as an independent contractor to provide the Services and the Contractor warrants that its relationship with KWB is that of an independent contractor and principal in accordance with the guidance material provided by the Australian Taxation Office. The Contractor acknowledges and agrees that nothing in this Agreement constitutes the Contractor or any person engaged by the Contractor in any capacity, to be an employee, agent or partner of KWB.

Without limiting the generality of the matters set out in preceding paragraph, the Contractor shall be solely liable and shall have no claim upon KWB in respect of annual leave, public holidays, sick leave, long service leave, superannuation, severance payments on redundancy, all other entitlements and otherwise in respect of any claims by any contractor, agent, or person claiming through the Contractor under any applicable workers' compensation law or other law affecting or relating to the relationship between an employee and employer.

a) KWB will pay you for each Purchase Order you complete (Fees), in accordance with the terms of the Purchase Order. The Fees or the Purchase Order may be varied by agreement in writing between KWB and you.

b) The Fees are exclusive of any goods and services tax (GST). Where GST is payable on a supply made by you under this agreement, you may charge KWB an additional amount equal to the GST payable on that supply.

1. KWB must pay the Fees and any GST amount within 7 business days of receipt of a valid tax invoice from you. The tax invoice must include your ABN, details of the Services performed and details of the Purchase Order.

d) If the engagement is terminated pursuant to clause 11 of this Agreement, the Contractor is only eligible for the payment of any commissions earned up to and including the termination date.

KWB will provide the Contractor with two uniform shirts each financial year for use by the Nominated Representative. Should the Contractor require additional uniform shirts, it will be required to purchase these from KWB at its own expense.

A photograph of the uniform was in evidence. It had "Wardrobe Connection Contractor", with a logo, embroidered on it, though apparently the "Contractor" part was only inserted at some time during the Applicant's engagement.

(f) Clause 6 "Equipment to be provided by KWB" outlined that the Contractor agreed to accept responsibility for the loss or damage of any equipment provided to them by KWB and agreed to cover any replacement or repair costs. The Clause also provided:

Should you elect to use KWB's tools and equipment, the Purchase Order will reflect your hire cost for their use, which will be 20% of the Fees.

(g) Clause 7 "Insurances" provided that the Contractor must maintain public liability insurance, workers compensation insurance as required by law, and professional indemnity insurance.

The Contractor acknowledges and agrees that the Contractor is responsible for all taxes required by law in respect of the Contractor's engagement as a contractor under this Agreement. The Contractor must also pay all taxes required by law in respect of any employees or contractors of the Contractor (if any). If KWB becomes liable for any of these payments, the Contractor indemnifies KWB on a full indemnity basis for such payments and any other amounts including but not limited to any penalties, charges, fines, or legal costs relating to such payments. KWB is also entitled to make any deduction from the amounts payable to the Contractor in respect of tax that it considers by law it is required to deduct.

(i) The Termination provision at Clause 11 provided:

Either the Contractor or KWB may terminate this Agreement at any time by giving the other party the amount of notice set out in Item 5 of Schedule 1, or in the case of KWB by making a payment in lieu of notice (calculated on the average monthly commissions that have been payable to the Contractor during the Term of this Agreement). KWB may require the Contractor not to perform some or all of the Services during that notice period. KWB may also terminate the engagement immediately and without notice if the Contractor engages in any conduct that warrants immediate termination, including but not limited to serious misconduct, refusing or failing to comply with any lawful or reasonable direction, engaging in conduct that would bring KWB into disrepute, materially failing to perform the Services and/or committing any serious or persistent breach of this Agreement.

If on the termination of this Agreement, the Contractor owes KWB an amount, KWB may off-set that amount against any amount that KWB owes to the Contractor under this Agreement.

(j) The Agreement also included provisions for protection of KWB's Confidential Information, Intellectual Property and Goodwill, as well as providing an indemnity from the Contractor to KWB and an entire agreement clause. The Applicant additionally signed a "Confidentiality and Intellectual Property Deed Poll".

(a) Unchallenged Evidence Regarding the Nature of the Engagement

• [7] The Applicant stated that he commenced work with KWB on or about the 4 January 2021, under an induction/training program. During that period, he was given a 4-week roster and paid an hourly rate of approximately $44 per hour. He was assigned jobs, addresses and

supervisor details along with dates and times to be at worksites.

• [8] At the conclusion of the induction/training program, the Applicant was informed that he would have to register a company to continue getting work from KWB. The Applicant subsequently registered the company CMI Joinery Pty Ltd, in order to continue getting work.

• [9] The Applicant worked exclusively for KWB as part of their Wardrobe Installation Team operations, until his termination on Tuesday 6 May 2025. He was required to attend monthly team meetings.

• [10] Over the course of his engagement with KWB, the Applicant performed the role of a wardrobe installer for KWB's Wardrobe Connection division. He attended customer homes each day to complete wardrobe installations that were supplied and delivered by KWB. The specific jobs, addresses, and dates were assigned to him by KWB's internal scheduling team, often weeks or months in advance. All billing and job pricing were handled internally by KWB.

• [11] The contracts between KWB and their customers were sent to the Applicant, and he had

no control over which jobs he received, when they were scheduled, or how they were to be completed. The Applicant followed detailed job sheets and plans provided by KWB for each installation. All customer contact, job management, and invoicing flowed through KWB's internal systems. Prices, discounts, and terms of sale were all set by KWB.

• [12] The Applicant was required to introduce himself to customers as "Chris from Kitchen

Connection" and to represent himself accordingly while on-site.

• [13] On 14 August 2023, the KWB National Operations Manager, Mike Hubbard, provided a reference letter to the Applicant (the Reference). It stated:

We wish to confirm that Chris Donnelly director CMI Joinery Pty Ltd, has been a Sub-Contract Wardrobe installer with KWB Group Pty Ltd on a permanent booking basis since November 2021.

KWB Group supply bespoke wardrobe solutions to the retail market under the brand Wardrobe Connection through our 13 Kitchen Connection showrooms in Southeast Queensland.

Our sales order book is regularly booked out between 6-8 weeks with our clients.

Chris's installation booking calendar is regularly booked out at a minimum of 90% of his available capacity in any given month.

Please find attached screen shots of Chris' diary from our internal booking system

We note that Chris is unavailable from mid-August 2023 through until mid-September 2023 as he is returning to England to attend his brothers wedding and visit family.

We have already begun booking installations for Chris for the remainder of September 2023 and early October 2023. By the time Chris returns from leave we expect that he will be booked out to the end of October 2023 as we ramp up installations for the usual Christmas rush.

We ask that this information is accepted to support Chris' current application for travel with his children to England as he has significant work to return to for KWB Group.

• [14] During his engagement with KWB, the Applicant was asked to encourage customers to leave public reviews for Kitchen Connection and was told that in order to receive a cash incentive for those reviews, the customer had to specifically mention his name in the feedback.

• [15] The Applicant could not unilaterally decide to take days off, come in late, or organise his own schedule without requesting and seeking approval of any changes from KWB. The Applicant was required to notify unavailability for specific days.

• [16] KWB issued and used fixed rate sheets that set prices per task, which the Applicant was required to use without negotiation.

• [17] The Applicant's work hours and job assignments were set entirely by KWB management. The standard arrangement was for check measures to begin at 7:00 AM, with installations commencing at 8:00 AM. The Applicant followed the assigned times and locations. The Applicant was provided with instructions on how to install wardrobes in accordance with KWB's standards and procedures.

• [18] The Applicant was required to personally perform the work assigned to him and was not permitted to subcontract or delegate any part of it to others. In the Hearing it became apparent that the Applicant had twice engaged a labourer, however it also became apparent that on the first occasion the labourer was assisting him due to his suffering an injury, and the second occasion was because the work schedule was requiring the performance of work in a manner the Applicant considered unsafe.

• [19] In an undated email from KWB Scheduling Officer Beverly Watson, it was confirmed that the Applicant was assigned to train a new installer over a 4-day period as part of KWB's onboarding process.

• [20] KWB required all installers to complete mandatory Hafele LED strip lighting training at Hafele's showroom. That training was organised and tracked by KWB's Scheduling Officer and treated as part of the installers' work duties, with session times set and confirmed in advance. The training was paid at an hourly rate.

• [21] The Applicant did not have any other clients or business outside of KWB. He did not advertise his services, operate a website, or generate work through referrals.

• [22] The Applicant was expected to supply personal tools and consumables, including fixings specified by KWB, at his own cost. The Applicant bore the cost of fuel, phone use, and wear and tear on his vehicle.

• [23] The Applicant's engagement with KWB ended in early May 2025 after a prolonged and escalating dispute over pricing and working conditions. On 6 May 2025, after again challenging the price of a specific job and requesting the ability to quote for future work that the Applicant believed was underpriced, he received a text message from Mr Hubbard stating: "Mate I am over the constant bullshit from you. Bev will no longer be booking you. Consider this notice."

After some correspondence KWB responded to confirm that all outstanding invoices would be paid in the next payment cycle and that the Applicant's engagement would be considered terminated on 12 May 2025.

• [24] The Applicant contended that the engagement was, in substance, an employment relationship disguised as an independent contracting arrangement, and so a sham.

• [25] Although the Agreement is styled as an "Independent Contractor Agreement" and is supplemented by a "Confidentiality and Intellectual Property Deed Poll", the Applicant submitted that terms of the contract and the operational realities aligned more closely with employment than with genuine business-to-business contracting.

• [26] The Applicant submitted there existed key indicia of employment, including:

(a) Control - Clause 2 of the Agreement provides that the Applicant was to work at locations determined by KWB, report to a KWB manager, comply with KWB policies, and work such hours as deemed necessary. In practice, KWB exercised full control over daily schedules, allocated jobs directly, required attendance at briefings and monthly installer meetings.

(b) Personal Service - The Applicant was the designated "Nominated Representative" and could not subcontract or delegate work without prior written consent (Clause 2). This reflected

a non-delegable personal obligation, a characteristic of employment.

(c) Integration into the Business - The Applicant was supplied with KWB uniforms, used KWB check measure forms, installation reports, and invoiced KWB according to KWB's instructions and allocated pricing. He was provided with a contract for each job between KWB and their customers, along with detailed installation plans that he was expected to follow precisely. The Applicant introduced himself in messages and conversations as "Chris from Kitchen Connection" and was presented to customers as a representative of KWB. He was fully integrated into KWB's operations and did not represent or promote himself as an independent business.

(d) Economic Dependence - The Applicant's income was derived exclusively from KWB. He did not maintain a client base, advertise, or perform work for other companies. KWB was his sole source of income, reinforcing his economic dependency and lack of autonomy.

(e) Leave and Working Hours - Clause 1 of the Agreement limited leave to four weeks per year and required prior written approval. This mirrored the typical approach to leave in employee contracts.

(f) Termination Provisions - Clause 11 provides for termination by either party on 4 weeks notice, or immediate termination for misconduct or failure to follow instructions - further reflecting traditional employment structures. In practice, the Applicant's engagement came to

an end shortly after he raised concerns about pricing.

• [27] The Applicant submitted that, despite being structured as a contractor arrangement, the Agreement the Applicant functioned in every material way as an employee. Specifically:

• He was required to attend work sites determined solely by KWB;

• His job list, start times, and routing were dictated via KWB's scheduling systems;

• He had no website, branding, or advertising presence; and

• He could not choose his own clients, reject jobs, or negotiate terms.

• [28] Regarding the submission that the Agreement was a sham, the Applicant submitted that the Agreement included several terms commonly associated with attempts to obscure employment through artificial structuring, including:

• Clause 3 - denying any employment relationship or entitlements;

• Clauses 7 and 8 - requiring the Applicant to obtain insurances and assume tax liabilities;

• Clause 14 - imposing an indemnity regime that shifts all commercial risk onto the Applicant; and

• The Applicant was employed and put through a four-week training program and paid an hourly rate before being required to form a company in order to continue receiving work.

• [29] The Respondent submitted that the Applicant was at all material times a nominated representative of CMI, engaged by KWB, never as an employee because:

• The only relevant relationship was a commercial contract between KWB and CMI, a separate legal entity, for the services as defined in the contract and

• All actions undertaken by KWB related strictly to the management of this contractual relationship, not to an employment relationship.

• [30] The Respondent submitted that as the contractual relationship spanned past 26 August 2024, the totality of the relationship test (s.15AA) of the Act applies. That test evaluates:

• [31] The Respondent addressed those indicia and the relevant facts relied on in the form of a table, which excluding evidence references was as follows:

KWB Coordinated dates with CMI Joinery to set installation schedules. However, CMI Joinery chose when and how jobs were completed without KWB's control. CMI Joinery regularly adjusted jobs independently.

CMI Joinery indicated they engaged labourers from time to time independently to perform tasks, reinforcing contractor status.

CMI Joinery independently determined pricing, evidenced by price negotiations and adjustments.

CMI Joinery provided all tools and vehicles required to perform the contracted work, with no reliance on KWB tools.

Invoices were issued by CMI Joinery, reflecting business-to-business transactions.

CMI Joinery held its own Public Liability and Product Indemnity insurance, assuming full commercial risk independently.

Applicant wore uniform explicitly marked as "Contractor", publicly presenting as an independent business, not KWB staff.

Applicant explicitly acknowledged operating through a separate legal entity, never as a direct employee of KWB.

• [32] The Respondent submitted that on all evidence under the totality of the relationship test, the Applicant was clearly not an employee, but the nominated representative of CMI, and an independent contractor.

• [33] In the test for "real substance, written contract, practical reality and true nature of the relationship", the relationship between CMI and KWB was that of the Agreement, where the CMI was contracted to provide services to KWB. The Agreement was not with an individual or a sole trader or a self-employed contractor, and therefore any representative employed by CMI cannot be deemed as an employee of KWB. The Respondent submitted that the Applicant was neither employed nor dismissed within the meaning of s.386 of the Act because the person was not an employee.

• [34] Regarding claims the Applicant had control over which jobs were undertaken and how they were performed, The Applicant rejected that contention and submitted that job allocations were generated by KWB's internal scheduling system, which sent automated calendar invitations directly to the Applicant's Gmail account. The Applicant had no approval function, acceptance workflow, or option to reject jobs through this system. Jobs were automatically added to the Applicant's schedule and were expected to be completed without discussion or negotiation. The Applicant was rostered for five days per week and provided with job details,

times, and locations without input. The Applicant was pre-booked up to two months in advance.

• [35] Regarding claims the Applicant determined how work was carried out, the Applicant submitted that KWB directed how wardrobes were to be installed, including which fixings and methods to use, and completion of standardised reports in KWB's format.

• [36] The Applicant submitted that while the Agreement contained a clause suggesting delegation was permissible, which was only with prior consent, in practice that right was illusory. The Applicant was expected to personally perform all work and had no meaningful ability to send a substitute. On the rare occasion assistance was sought, it was due to safety concerns and involved the Applicant bringing a friend to assist with a physically demanding job involving oversized materials.

• [37] The Applicant submitted that the Respondent's reliance on the issuance of tax invoices by "CMI Joinery" to establish a business-to-business relationship ignores the reality that these invoices were generated purely as a procedural formality dictated by KWB. The Applicant was expressly instructed to operate under a company name and ABN, not as a matter of choice or commercial independence, but because KWB required it. The tax invoices referenced were created using KWB issued purchase orders, KWB determined pricing structures, and submitted in a format and system defined entirely by KWB. The process was administrative, not autonomous.

• [38] The Applicant's public liability insurance was not indicative of independent commercial risk but was instead a requirement imposed by KWB in order to be allocated jobs. While the Respondent sought to elevate the presence of insurance and invoicing as hallmarks of independence, such formality holds limited weight when viewed in the context of the totality of the relationship.

• [39] The Applicant submitted that the Respondent's assertion that the Applicant publicly presented as an independent business is not supported by the evidence. Throughout the engagement, the Applicant consistently represented himself to customers as "Chris from Kitchen Connection" or "Wardrobe Connection", never under the name CMI Joinery. This was reinforced by KWB's own communications with customers, in which the Applicant was referred to by first name only, not his company name, and described as their installer.

Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association_, may apply to the FWC for the FWC to deal with the dispute._

• [41] In order for the Commission to be able to deal with the dispute under s.368 of the Act it must determine that the Applicant has been dismissed within the meaning of s.365.[1] The Commission must conclude that the relevant dismissal has actually occurred as a matter of jurisdictional fact. It is not sufficient that the applicant merely alleges that they were dismissed. If there is a contest as to whether the alleged dismissal the subject of the application has occurred, this is an antecedent question which has to be determined before the powers to deal with the dispute conferred by s.368 can be exercised.

• [42] Section 386 of the Act sets out the circumstances in which an employee can be said to have been 'dismissed' for the purposes of s.365. That section provides:

(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_._

• [43] In order to be dismissed under s.386(1)(a), a person's 'employment' has to be terminated and terminated on the employer's initiative. For employment to be terminated it has to have commenced in the first place. The Act does not define "employment." Section 335 provides that in the relevant Part of the Act, Part 3-1 - General Protections, "employee" and "employer" have their ordinary meanings.

• [44] Employment contracts and employment relationships are related but distinct concepts. In Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (Personnel Contracting),[2] the High Court observed:[3]

In Commonwealth Bank of Australia v Barker, French CJ, Bell and Keane JJ said:

"The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment."

An employment relationship will not always be defined exclusively by a contract between the parties. Historically, the employment relationship was recognised and regulated by the law before the law of contract came to govern the relationship. An employment relationship, though principally based in contract, may be affected by statutory provisions and by awards made under statutes.

• [45] Section 357 prohibits an employer from representing that an employment relationship is one of independent contract, a prohibition colloquially referred to as "sham contracting".

• [46] Section 15AA, inserted by the Fair Work Legislation Amendment (Closing Loopholes) Act 2024, directs courts and tribunals to determine whether a person is an employee by reference to the "real substance, practical reality and true nature" of the relationship having regard to the totality of the work arrangements. Section 15AA of the Fair Work Act, which took effect from 26 August 2024, is entitled "Determining the ordinary meanings of employee and employer." Section 15AA relevantly provides:

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

(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

(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.

• [47] The note in s. 15AA refers to High Court decisions in Personnel Contracting and ZG Operations Australia Pty Ltd v Jamsek (Jamsek),[4] where the High Court applied the principles of contract interpretation, which it described as the long-standing approach in determining the nature of the relationship between parties. The Court criticised the multi-factorial approach that had been adopted following the decisions in Stevens v Brodribb Sawmilling Co Pty Ltd (Stevens v Brodribb),[5] and Hollis v Vabu Pty Ltd (Hollis)[6] and went on to explain that Stevens v Brodribb and Hollis had not departed from the long-standing approach to contract interpretation that predated those decisions. In particular reference was made to the earlier cases of Narich Pty Ltd v Commissioner of Pay-roll Tax (Narich),[7] approving the earlier decision in Australian Mutual Provident Society v Chaplin (Chaplin).[8]

• [48] Narich and Chaplin stood for the proposition that where there is a written contract between the parties a court is confined, in determining the nature of that relationship, to a consideration of the terms, express or implied, of the contract in the light of the circumstances surrounding the making of it, and it is not entitled to consider the manner in which the parties subsequently acted in pursuance of such contract. In Personnel Contracting the Court said that Stevens v Brodribb and Hollis did not alter the orthodox principle that courts are not concerned with what has actually occurred in a relationship but rather were concerned with the obligations by which the parties were bound.

• [49] By contrast, as noted above, section 15AA sets a statutory test for ascertaining the real substance, practical reality and true nature of the relationship between the parties by considering the totality of the relationship having regard to 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.

• [50] Consequently, for the purpose of the Act, in determining the issue of whether a person

is an employee or independent contractor, the Commission is required to ascertain the real

substance, practical reality and true nature of the relationship between the parties. This adopts

It should be added that the relationship between the parties, for the purposes of this litigation, is to be found not merely from these contractual terms. The system which was operated thereunder and the work practices imposed by Vabu go to establishing "the totality of the relationship" between the parties; it is this which is to be considered.

• [51] The approach to be taken under s. 15AA adopts the multi-factorial test that was eschewed in Personnel Contracting.

• [52] The multifactorial test was summarised by a Full Bench of the Commission in Jiang Shen Cai trading as French Accent v Do Rozario[10] (Jiang Shen), wherein the Full Bench described the focus of the enquiry in Hollis as whether the person carries on a trade or business of his or her own or is working in the business of another, the nature of the work performed and the manner of its performance, and the terms of the contract between the parties. Various indicia may be considered. They include the actual exercise, or the right to exercise, control over the putative employee, whether the worker performs work for others, whether they provide tools and equipment, whether the work can be delegated, whether the worker is remunerated by periodic wages or salary or by reference to completion of tasks, and whether the worker is presented to the world at large as an emanation of the putative employer's business.

• [53] While in Personnel Contracting the High Court's focus was on the contract between

the parties it still had regard to the control and business tests. In Personnel Contracting the

In this Court, the appellants submitted that the question whether a labourer is conducting his or her own independent business, as distinct from serving in the business of the employer, provides a more meaningful framework to guide the characterisation of the parties' relationship. There is force in that submission.

• [54] The right to control as an indicator of an employment relationship was described by

Wilson and Dawson JJ in Stevens v Brodribb at [9] as whether the contractual arrangement

"subjects the person engaged to the command of the person engaging" not just as to what shall

Consideration: whether the applicant was an employee

• [55] While the Agreement states in clause 3 that "the Contractor is engaged ... as an independent contractor" and that "nothing in this Agreement constitutes the Contractor ... to be an employee, agent or partner of KWB", section 15AA requires that the true relationship between the parties be determined by reference to the totality of the relationship between the parties. Regard must be had not only to the terms of the contract governing the relationship, but also to other factors including, but not limited to, how the contract is performed in practice.

• [56] The totality of the Agreement, however, discloses significant levels of control by KWB over the Applicant. In particular:

(a) The requirement that the Applicant provide KWB with a written request in respect of a period or periods not exceeding 4 weeks in one year, in which it will not provide the Services, akin to an employee's annual leave (Clause 1).

(b) Provision of wardrobe installation services by the Applicant to KWB through the Applicant, or any other person, subject to the prior written approval of KWB (Clause 2).

The Contractor must also comply with all lawful and reasonable directions given by KWB, all applicable legislation and any policies, practices and procedures of KWB so far as they relate to the provision of the Services by the Contractor.

(d) Clause 4 "Payment" provided for the provision of purchase orders by KWB for work to be performed, that could only be varied by agreement in writing by KWB and the Applicant.

(e) KWB provided the Applicant with Uniforms pursuant to Clause 5, with "Wardrobe Connection Contractor", and a logo, embroidered on it. I accept that the "Contractor" part of the embroidery was only inserted at some time during the Applicant's engagement.

(f) The Applicant agreed to accept responsibility for the loss or damage of any equipment provided to him by KWB and agreed to cover any replacement or repair costs (Clause 6).

• [57] Additionally, the inclusion in the Agreement of provisions for protection of KWB's Confidential Information, Intellectual Property and Goodwill, as well as the "Confidentiality and Intellectual Property Deed Poll", were indicative of control by KWB.

• [58] Beyond the Agreement, and in practice, the Respondent exercised significant control over the work performed by the Applicant. I accept that job allocations were generated by KWB's internal scheduling system, which sent automated calendar invitations directly to the Applicant's Gmail account. Jobs were automatically added to the Applicant's schedule and were expected to be completed. The Applicant had no control over which jobs he received, when they were scheduled, or how they were to be completed. The Applicant could not unilaterally decide to take days off, come in late, or organise his own schedule without requesting and seeking approval of any changes from KWB.

• [59] The Applicant was rostered for five days per week and provided with job details, times, and locations. The specific jobs, addresses, and dates were assigned to the Applicant by KWB's internal scheduling team, often weeks or months in advance. All billing and job pricing were handled internally by KWB. The Applicant was presented as part of KWB's business.

• [60] The Applicant followed detailed job sheets and plans provided by KWB for each installation. All customer contact, job management, and invoicing flowed through KWB's internal systems. Prices, discounts, and terms of sale were all set by KWB, and KWB issued and used fixed rate sheets that set prices per task, which the Applicant was required to use without negotiation.

• [61] A telling document regarding the level of integration of the Applicant into the business of KWB was the Reference provided on 14 August 2023, that described the Applicant as "... a Sub-Contract Wardrobe installer with KWB Group Pty Ltd on a permanent booking basis since November 2021", and noted "Chris's installation booking calendar is regularly booked out at a minimum of 90% of his available capacity in any given month."

• [62] Although the Agreement permitted delegation, with KWB's prior written approval, it is clear that delegation never occurred, and the Applicant only secured the assistance of a Labourer due to injury on one occasion, and safety on the other.

• [63] The indicia that pointed to the Applicant being a Contractor rather than an Employee arose from the formal structure imposed by KWB rather than how the relationship was performed in practice. Those indicia included that the Applicant was responsible for his own taxes and insurances and provided his own vehicle and some tools. In the overall balance, however, those indicia can be accorded little weight in determining the totality of the relationship.

• [64] Section 15AA requires the Commission to decide the "true nature" of the relationship. Taking account of control, integration, economic dependency, branding and restraints I find that the relationship was one of employment notwithstanding the Agreement and the description of the relationship therein. The Applicant was for all intents and purposes working in the business of KWB.

• [65] Accordingly, the first limb of the jurisdictional objection fails.

Consideration: whether the applicant was dismissed

• [66] Mr Hubbard's text message on 6 May 2025 was not a preliminary warning but an unequivocal proclamation that "Bev will no longer be booking you ... Effective immediately". The message plainly communicated KWB's decision to end the working relationship and left the Applicant with no choice in the matter, but for finishing already scheduled jobs if he wished.

• [67] The Respondent's submission that there was no dismissal because the Applicant was free to tender quotes is untenable. An offer to consider quotations on a different commercial footing does not negate the termination of the existing employment.

• [68] I therefore find that KWB terminated the Applicant's employment on 6 May 2025 and that the statutory definition of dismissal is satisfied.

• [69] The second limb of the jurisdictional objection accordingly also fails.

• [70] For the foregoing reasons, the Respondent's objections to the Application are dismissed.

• [71] The matter will be relisted for a conference pursuant to s.368 of the Act on a date to be fixed.

[1] Coles Supply Chain Pty Ltd v. Milford [2020] FCAFC 152; (2020) 279 FCR 591 and see Lipa Pharmaceuticals v Jarouche [2023] FWCFB 101.

[2] [2022] HCA 1.

[3] At [40] and [41] per Kiefel CJ, Keane and Edelman JJ, footnotes omitted.

[4] [2022] HCA 2.

[5] (1986) 160 CLR 16.

[6] ([2001] HCA 44; 2001) 207 CLR 21.

[8] [1978] UKPC 7; (1978) 52 ALJR 407.

[10] [2011] FWAFB 8307.

[11] Personnel Contracting at [35].

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