Fair Work Act 2009

s.604 - Appeal of decision

Chandler Macleod Group Limited, Fujitsu Australia Ltd

Appeal against decision [ [2025] FWC 3177] of Deputy President Colman at Melbourne on 23 October 2025 in matter number C2025/9039 - permission to appeal refused.

[1] Mr Damien Phelan has lodged an appeal under s 604 of the Fair Work Act 2009 (the Act) against a decision of Deputy President Colman (the Decision) delivered on 23 October 2025. In the Decision, the Deputy President dismissed Mr Phelan's application under section 365 of the Act on the basis that he was not an employee.

[2] Having regard to the grounds of appeal described below, it is not necessary to set out in detail the factual background to the matter. It is sufficient to record that, in the Decision, the Deputy President found that a company controlled by Mr Phelan, called 'H4X', was engaged by the first-named respondent, Chandler Macleod Group Limited, by a contract titled 'Incorporated Independent Contractor Agreement'. The particulars to the contract record that H4X is a trading name, with an Australian Company Number given for the corporate entity. The 'client' of Chandler Macleod Group, for whom H4X was to perform work, was Fujitsu Australia Ltd. Fujitsu Australia Ltd is the second-named respondent to Mr Phelan's application.

[3] Section 365 of the Act is available to an applicant who has been "dismissed". The term "dismissed" here has a technical meaning, although that is not immediately apparent from its terms, particularly to a person without a legal background. However, section 12 of the Act defines the term "dismissed" by reference to section 386 of the Act. Section 386 of the Act is in Part 3-2 'Unfair dismissal', which applies to employees. Section 386 of the Act states that a person has been dismissed if (among other matters) "the person's employment with his or her employer" (our emphasis) has been relevantly terminated. There are numerous decisions of the Commission reflecting that an application under section 365 of the Act is only applicable to an "employee".

[4] The Deputy President concluded that Mr Phelan was not an employee of Chandler Macleod or Fujitsu. As the Deputy President found that Mr Phelan was not an employee of either of the respondents, he upheld the respondents' jurisdictional objection and dismissed the application.

[5] Mr Phelan seeks to appeal the Deputy President's decision. There is no right to appeal, and an appeal may only be made with the permission of the Commission. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[1] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[6] By section 604(2) of the Act, and without limiting when the Commission might grant permission, the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. The public interest is not satisfied simply by the identification of error, or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest. Those considerations included where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.

[7] Mr Phelan's first ground of appeal is a compound complaint touching upon a number of matters. Saliently, Mr Phelan's written submissions clarify his first ground of appeal, which he called 'Error of Law: Failure to recognise jurisdiction under Part 3-1'. The submission stated "The Deputy President erred in law by limiting s.365 to employment relationships and failing to recognise that Part 3-1 expressly extends general protections to independent contractors (ss.340-363). The dismissal of the application on this basis was legally incorrect.". In summary, a key aspect of Mr Phelan's application for appeal concerned his contention that the procedural processes for section 365 of the Act ought to apply to employees and non-employees equally.

[8] The Deputy President did not misconstrue his jurisdiction. Contrary to Mr Phelan's urging, if the Deputy President did construe section 365 of the Act as extending to applications by independent contractors, that would have been a legal error but this is not what the Deputy President did. As indicated above, section 365 of the Act is a gateway through which an employee (but not a contractor) must pass before he or she can proceed to judicial arbitration of their general protections allegation in a court or, in some cases, arbitration by the Commission.

[9] The remaining grounds of appeal are titled 'The decision failed to consider the adverse action claim', 'Failure to address relevant statutory provisions' (which the submissions explain are the substantive provisions for an adverse action claim as applicable to contractors), 'Procedural fairness - corporate veil reasoning', and 'Inconsistent reasons for termination and differential treatment'. With respect to the procedural fairness complaint, this ground asserts "Had [the corporate veil reasoning] been put, the Appellant would have addressed it by reference to the operation of ss.340-363, which protect individuals irrespective of the interposition of a company." These grounds are collectively aimed at Mr Phelan's substantive adverse action allegations. Shortly before the hearing of permission to appeal, Mr Phelan filed a further document raising another four grounds of alleged error. They were: 'Misapprehension and Failure to Consider Material Evidence' (with reference to timesheets prepared by Fujitsu, training he undertook, onboarding, a leave plan, and references to daily directions he received by Fujitsu for the work he performed); a 'Failure to Identify Who Exercised Dismissal Power'; an 'Error in Applying the Wrong Jurisdictional Test under s 365' (that is, he confirms "the Appellant expressly submitted that this was a General Protections matter involving adverse action, not an unfair dismissal"); and a 'Failure to Engage with Adverse Action Framework' (with the complaint that the Decision does not reference s 340-342 or s 361 and focuses solely on employment status).

[10] Our observations above concerning the role of the Commission in dealing with an application under section 365 of the Act are sufficient to explain why the remaining grounds of appeal disclose no error. Even if the Deputy President dealt with the dispute by convening a conference, the Deputy President would not be deciding Mr Phelan's substantive adverse action claim, even if he was an employee.

[11] For completeness, one ground of Mr Phelan's supplementary submissions potentially suggested that he might have been in an employment relationship, so far as Mr Phelan referred to the timesheets prepared by Fujitsu, training, leave plans, and daily direction by Fujitsu for work. In his oral submissions, Mr Phelan confirmed that he was a contractor. Rather, Mr Phelan drew attention to these matters in support of his argument that the procedures under section 365 (which are for employees) ought also extend to persons other than employees. We have addressed those matters above.

[12] Finally, we are not satisfied that the grant of permission to appeal would be in the public interest. We are not satisfied that the appeal raises any issue of importance or general application to enliven the public interest. Permission to appeal is refused.

J. Elias and J. Henderson from Chandler Macleod Group Limited.

[1] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].

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