s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - whether the applicant an independent contractor or an employee of the respondent - section 15AA of the Fair Work Act 2009 applied - applicant a registered psychologist - applicant engaged by the respondent as an independent contractor at the respondent's private psychology practice - terms of written contract between the parties carried out in practice - totality of relationship considered - applicant not an employee - jurisdictional objection upheld - general protections involving dismissal application dismissed

[1] Mr Douglas Williams (Applicant) has filed a Form F8, general protections involving dismissal application (Application), under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that he was dismissed by Mind Matters Sydney Pty Ltd (Respondent) in contravention of Part 3-1 of the Act.

[2] The Respondent objects to the Application proceeding on the basis that the Applicant was never its "employee".[1] It says that the Applicant's engagement was terminated because he was never going to be the right fit for its business. Further, in the context of his unhappiness with this outcome, the Applicant is now wrongly attempting to portray himself (in an opportunistic manner) as an employee.

[3] The issue to be resolved in this case is whether the relationship between the Applicant and the Respondent was that of employee and employer, or independent contractor (Contractor) and principal. Section 15AA of the Act applies to the resolution of these proceedings. If the Applicant was not an employee of the Respondent, it could never have dismissed him. The requirement for a "dismissal" (within the meaning of s.12 and s.386 of the Act) is a jurisdictional prerequisite to the making of a valid general protections involving dismissal claim.

[4] Directions were issued for the filing of submissions and evidence, and the listing of the matter for hearing. The parties complied with those Directions.[2] At the hearing, the Applicant was represented by Ms Shareeza Mohammad, Industrial Officer, Health Services Union, and the Respondent was represented (with permission) by Ms Bianca Gallifuoco of Counsel, instructed by Ms Brittany Morgan, Solicitor, Walter Baden lawyers.

[5] The business of the Respondent is that of a psychology practice, operating in Woollahra, New South Wales.[3] The business operates out of a single building that has been modified and renovated by the Respondent into a 12 room clinic, with skylights and garden views. Each room is airconditioned, relevantly decorated and appointed with furniture, and has been professionally sound proofed. One room is large enough for group therapy sessions. Psychologists engaged by the Respondent (relevantly, as Contractors) are able to conduct their sessions with clients in one of these rooms.

[6] Ms Karen Martin is the founder (November 2020), owner, sole director, and sole shareholder of the Respondent. She is a clinical psychologist, with around 18 years of experience, and oversees the Respondent's business operations. She holds a Bachelor of Education (Sydney University, 1999), Bachelor of Psychology, Honours (University of New South Wales, 2004), and a Masters of Psychology (Macquarie University, 2007).

[7] There is a clear delineation between the manner in which the Respondent engages employees and Contractors.[4] The Respondent employs around seven employees, including one clinical psychologist (Clinical Team Lead, Mr Shane Greentree), and a group of administrative employees. It engages a further mixture of clinical psychologists and registered psychologists (around 17) via written Contractor agreements.

[8] All registered psychologists engaged by the Respondent have attended (at least) 6 years education and training (including university studies), and have varying years of post-graduation experience. To become a clinical psychologist, being a psychologist who holds one or more specialties (and is able to diagnose and treat complex mental health disorders), a person must additionally complete a further 2 years of supervised 'experience'.

[9] Some psychologists engaged by the Respondent as Contractors have become employees of the Respondent, but only on the basis that they work solely for the Respondent, and vary their psychologist role to be directly involved in specific projects, marketing, psychometric assessments, and broader business administrative tasks.

[10] Supervision, also known as peer consultation, is a common and mandated practice within psychology in order to maintain registration as a psychologist. All psychologists, irrespective of experience, are required to complete a certain number of supervision hours, Continuing Professional Development (CPD) hours, and client hours every 12 months. Under the CPD Guidelines, every psychologist within Australia must complete 10 hours per year of supervision in order to maintain their registration with Australian Health Practitioner Regulation Agency (AHPRA). The Respondent assists its Contractors (and relevant employees) to meet their supervision obligations.

[11] In addition to the standard 10 hours of supervision per year for CPD purposes, psychologists seeking to attain the qualification of a clinical psychologist must complete a clinical registrar program that requires a minimum of 80 hours of supervision within a minimum period of 88 weeks (Clinical Psychologist Supervision (CPS)). This supervision can be conducted across multiple service providers and by various supervisors. Ms Martin and Mr Greentree are Board Approved providers of CPS.

[12] The Respondent provides administrative support to each psychologist (i.e. as to reception services, scheduling, rescheduling, marketing, advertising, newsletters, internet connection, kitchen facilities, website profiling, bookings and appointments, and payments), and has a triage process to match clients with appropriately experienced psychologists in the relevant field (e.g. addiction, trauma, depression, anxiety, transition, identity, relationship challenges, couples, parenting, grieving, eating disorders, improving health and mental well-being, etc).[5] Specifically, the Respondent's Client Support Team (CST) provides the following services to psychologists:

(b) responding to, logging and case noting (where appropriate) client enquiries;

(c) billing and booking of appointments (individual and third party);

(e) support and undertaking of client follow ups and contacts (where appropriate);

(f) referrer contacts (not related to treatment) and approvals;

(g) administration of non-clinical client related paperwork;

(i) ensuring clients have a welcoming and professional experience at the practice.

[13] The Respondent assists the business of its Contractors via:

(a) offering clients - the Respondent sources clientele from a variety of platforms including its own website, GP and specialist referrals, Google advertisements, and word of mouth referrals;

(b) providing the facilities for client sessions;

(c) providing a booking system of new client intake and continued client reception, utilising a shared calendar whereby Contractors allocate their chosen times to see clients;

(d) providing administrative support including a Gmail account and Google Chat that includes the administrative support team; and

(e) providing the Respondent's website as a marketing platform for the Contractors, including publishing hours available, their own written biography, and offering inbound callers the opportunity to be seen by the Contractors.[6]

[14] In short, the Respondent's business provides a service to psychologists to enable (and allow) them to seamlessly engage with, and deliver their services to clients, without any personal capital investment, and absent the need for them to enter into arrangements that become on-going overhead costs (e.g. commercial leases). Whilst the Respondent's costs of doing business entail capital investment and differing on-going cost bases (e.g. employee wages, utilities, marketing, etc), the Respondent equally has to contend with compliance requirements (red and black tape) associated with its revenue and funding streams (i.e. derived from privately paying clients, the Medicare Better Access Program and other relevant Medicare schemes, the Better Start Program, WorkCover claims, other insurance agency claims, and the National Disability Insurance Scheme (NDIS)). Much of this comes down to documentation and record keeping, as Ms Martin states:

"38. Record-keeping is an obligation set out in the Australian Psychological Society (APS) Ethical Code of Conduct and the APS Ethical Guidelines on Record Keeping and further set out in the Mental Health Standards, in publications issued by the Psychology Board of Australia and requirements pertaining to each of the various referral schemes. ...

39. In order to reflect the record-keeping obligations applying to all psychologists, Mind Matters requires Contractors to provide a "completed service" pursuant to the Service Delivery Guidelines and IC Agreement, which includes:

a. ensuring case notes associated with the client session are completed, signed and uploaded to a confidential database within 48 hours of the session;

b. ensuring any relevant GP reports are completed and uploaded to the file, such as the initial acknowledgement letter, a "6-session" letter and a closure report; and

c. ensuring any appropriate risk assessment or other report such as WorkCover is completed and uploaded to the file.

40. As a Contractor's completed service to Mind Matters requires the uploading of client notes and any required referral or other letters, Mind Matters follows up with Contractors where these compliance requirements have not been met in order to process their invoice."[7]

[15] Further to the foregoing, Contractors invoice the Respondent for each client session which is inclusive of writing progress notes, uploading of client notes, and drafting of any general practitioner or other letters (Completed Service). This is not a separate or optional administrative task to a client session, but an externally mandated requirement. For example, if a Contractor does not keep files notes, or draft general practitioner letters, the Contractor would not be deemed as Medicare compliant if they were the recipient of a Medicare audit, and would be required to repay any Medicare rebates received.[8]

[16] The Applicant describes himself as a self-employed practising psychologist.[9]

[17] Prior to commencing his engagement with the Respondent, the Applicant was a psychology graduate, undertaking the clinical registrar program, and performing work as an employed provisional psychologist in a public hospital. To the extent that the Applicant conducted sessions with individuals ('clients') at the hospital, none of those individuals carried over with him as clients at the Respondent (i.e. the Applicant had no client base to draw from upon commencing his engagement with the Respondent). It follows that the Applicant's engagement with the Respondent signalled the very beginning of his professional practice as a post-graduate registered psychologist.

The engagement and termination of the Applicant by the Respondent

[18] On or about 18 December 2023, the Applicant responded to an advertisement for a psychologist role with the Respondent. After meeting separately with Ms Martin and Mr Greentree, the Applicant had a further meeting (interview) with Ms Martin on 22 December 2023, and was offered a psychologist role (as a Contractor) that day. He was sent via email (on 22 December 2023) an Independent Contract Agreement (ICA)[10] and a Clinical Endorsement Supervision Contract (CESC).[11] He chose to return executed copies of the ICA and the CESC to the Respondent on 30 December 2023. His official start date with the Respondent was 4 March 2024. He began client sessions at the Respondent's business premises on 11 March 2024.[12]

[19] The Applicant also determined that he wanted to become qualified as a clinical psychologist, hence his entry into the CESC with the Respondent, so as to gain clinical endorsement and/or accreditation. I note that clinical supervision is a service provided by the Respondent (at its discretion) to psychologists engaged by the Respondent, and involves both time and cost in its delivery.[13] The Applicant stated to Ms Martin that he wanted to pay for the Respondent's clinical supervision services so as to claim such costs as a tax deduction.[14]

[20] At the same time that he commenced his engagement as a registered psychologist with the Respondent (4 March 2024), he also commenced an engagement as a registered psychologist with the Schema Therapy Sydney Clinic (being a psychology practice located in Liverpool, New South Wales) (Schema).[15] He continued to be engaged by, and work at, Schema's business during his period of engagement with the Respondent, and has continued to be engaged by, and work at, Schema's business post the cessation of his engagement with the Respondent.

[21] The Applicant requested that his client sessions at the Respondent be conducted over three days each week (15 sessions per week). Hence, he was provided with a room by the Respondent during these times to enable him to deliver such client sessions, whereby clients could book in to see him on Mondays until 2pm, Wednesdays from 2.30pm, and Thursdays from 3.30pm. These room bookings were supplemented by any telehealth appointments that the Applicant could accept and undertake himself remotely.[16] Rather than paying rent or a fee for the Respondent's rooms he agreed to book, the parties entered into a fee splitting arrangement.

[22] On and from 21 March 2024, the Applicant began issuing tax invoices (as a sole trader, marked with his ABN) to the Respondent, and charged GST to the Respondent for the provision of his services to clients seen by him.[17] The Applicant remitted GST amounts (that he charged to the Respondent) to the Australian Taxation Office, and also claimed input tax credits and other expense deductions (i.e. in respect of Professional Development, Work Phone, Working with Children, Office Consumables, CPR Refresher, Insurance, Membership and Supervision). The Respondent deducted no income tax from payments it made to the Applicant (i.e. the Applicant dealt with income tax himself, directly with the ATO).

[23] In April 2024, the Applicant described himself as a sole trader with an ABN, in a questionnaire.[18]

[24] On 2 December 2024, the ICA was amended (via written Amendment Deed) to provide for the Respondent to deduct superannuation from relevant payments it makes to the Applicant, and remit same to the Applicant's nominated superannuation fund (Super Amendment).[19]

[25] The Respondent issued the Applicant a termination notice on 13 January 2025, effective (with notice) on 10 February 2025.[20] As at this time, the Applicant had completed 35.25 hours under the clinical supervision of Ms Martin and Mr Greentree.[21]

Thanks for partnering with us in the provision of clinical psychological services to Mind Matters' clients. Please read this document in full as it details your rights and obligations.

Throughout the Agreement we use some capitalised words and phrases, like the word Agreement. These capitalised words and phrases are defined in clause 15 and throughout the body of the Agreement. They aid to clarify the terms and conditions. Please feel free to email us at karen@mind-matters.com.au if you have any questions.

You will be provided with a copy of our Service Delivery Guidelines as part of your onboarding process. This Agreement prevails to the extent of any inconsistency with the Service Delivery Guidelines.

This Agreement (Agreement) is between Mind Matters Sydney Pty Limited of 58 Grosvenor Street, Woollahra, NSW 2025 (Mind Matters, we, us, our and other similar terms) and your business, as set out in the Details Schedule, which we refer to in this Agreement as the Contractor, (Contractor, you, your and other similar terms), together referred to as the Parties (Parties).

You acknowledge and agree, this is a contract between the two businesses referred to as the Parties above. This is not an employment contract and nothing in this Agreement is intended to create such a relationship. Furthermore, you acknowledge that as a business contracting to us, you have been engaged to provide the Services which includes treatment of our clients. We have worked long and hard to build up our business and just because we have engaged you to assist us does not mean you can take our clients from us. This Agreement, notably clause 12, strictly prohibits you from engaging with our clients beyond the term of the Agreement.

Services, locations and sessions The Services which you agree to undertake are set out in the Details Schedule.

You must provide them in accordance with the terms of this Agreement, Service Delivery Guidelines and our Policies, as amended from time to time.

You must perform the Services at the Approved Locations and where no location is Specified then from our premises.

Where the Details Schedule specifies Nominated Personnel, those individuals specified must provide the Services. Where no Nominated Personnel are listed, you may appoint employees or agents to provide all or part of the Services.

You must not sub-contract the provision of the Services under this Agreement without our prior written consent, which we may permit or deny in our sole discretion.

It is your responsibility to ensure your Personnel comply with the terms of this Agreement as sub-contracting the Services or assigning employees to perform the Services does not relieve you of your obligations under this Agreement.

If in our sole discretion the Personnel you provide to perform the Services do not meet the Performance Standards, we may request, and you must provide, alternate Personnel.

Where you engage a sub-contractor to perform the Services on your behalf, you must have a written agreement with them including corresponding confidentiality, privacy and Intellectual Property clauses. Those clauses must be sufficient to ensure they can and will comply, and assist you to comply, with your obligations under this Agreement.

(a) in accordance with the Service Delivery Guidelines and any Policy made available to you from time to time;

(b) with due care, skill and diligence to our reasonable satisfaction;

(c) professionally (including by maintaining a professional appearance), honestly, ethically, efficiently, to industry standards applicable in Australia and in accordance with the lawful customs of the psychology profession;

(d) in any event, in a timely manner so as to ensure your prompt attendance to Sessions with Mind Matter's clients;

(e) where this Agreement requires Equipment, using Equipment which is fit for purpose; and

(f) using Personnel with sufficient skills, training, professional accreditation and experience necessary to provide the Services.

(g) use your best endeavours to, and require your Personnel to use their best endeavours to, promote our professional and commercial reputation;

(h) comply with all relevant occupational health and safety policies and report any accidents, incidents or hazards to us as soon as practicable;

(i) comply with relevant laws including state, federal and local government laws and regulations;

(j) comply with the standards of any professional bodies to which you or we belong;

(k) maintain written reports regarding clients and consultations as required by us or our referral systems, including those required for Medicare, Better Outcomes in Mental Health, Employee Assistance Programmes, WorkCover, other relevant agencies and programs, replacement programs and as otherwise required by us;

(l) maintain records of any money received associated with the provision of the Services and ensure the timely delivery of those records to us;

(m) maintain, and ensure your Personnel maintain, any professional registration required for the performance of the Services, including but not limited to registration with the Australian Health Practitioner Regulation Agency;

(n) treat confidential, personal and sensitive information in a manner anticipated by this Agreement, our Privacy Policy and in accordance to applicable laws;

(o) not do any act or thing which may infringe any Intellectual Property we or any third party have;

(p) comply with any anti-discrimination policies we have and respect the diversity of our Personnel, clients and associates by helping to prevent direct or indirect discrimination based on race, religion, nationality, age, gender identity, physical or mental disability, marital status, sexual preference, pregnancy, family responsibilities, political opinion or other such characteristics; and

(q) observe our reasonable directions in relation to security, use of any facilities or equipment.

We may require you to provide certain Equipment in order to provide the Services. If we do, we will set that out in the Details Schedule. You are responsible for providing that Equipment to your Personnel and ensuring it remains in good working order.

You acknowledge and agree that we are not liable for any loss or damage to that Equipment, even where that loss or damage occurs on our premises or otherwise arises in the performance of the Services.

We will make payments to you, for the Completed Services, in accordance with the Payment Arrangements set out in the Details Schedule. You acknowledge and agree that neither you nor any of your Personnel are entitled to any other fees, payments or any Entitlements from us.

You are solely responsible for providing any employee Entitlements which are due to your Personnel and you indemnify us against any claim against us for Entitlements made by you or your Personnel.

Before we make any payment, you must provide us a valid tax invoice for the Completed Services in accordance with the Payment Arrangements. At our reasonable request, each tax invoice must be accompanied by timesheets, service records, expense receipts or other such material necessary for us to confirm the accuracy of the tax invoice or satisfy our customers' and other regulatory requirements.

We are not liable for any expenses you incur in providing the Services other than Authorised Expenses. Where you incur Authorised Expenses, we will reimburse you for those, upon receipt of an invoice setting out the recoverable amounts, in accordance with the Payment Arrangements, providing it is accompanied by a valid tax invoice evidencing the relevant expense.

Unless specified otherwise, all fees are in Australian dollars, exclusive of GST. You must itemise any applicable GST on each tax invoice.

If this Agreement requires a party to pay for, reimburse or indemnify against any expense or Liability incurred by the other party to a third party, the amount to be paid, reimbursed or indemnified is the amount of the reimbursable expense net of any input tax credit to which the payee is entitled in respect of the reimbursable expense.

Where you and your Personnel request ongoing internal Clinical Supervision by us for the purpose of achieving Clinical Endorsement or any other type of Endorsement under the Australian Health Practitioner Regulation Agency (AHPRA) or Clinical Accreditation under Medicare, this Clinical Supervision may be undertaken, in our sole discretion, under one of the following arrangements:

(a) you pay the regular session fee for such Clinical Supervision as provided on a session-by-session basis to us; or

(b) you or your Personnel receives such Clinical Supervision, the costs of which will be absorbed by us. However, should this Agreement be terminated within 12 months of achieving Clinical Endorsement and/or Clinical Accreditation you will be required to repay the full cost of such Clinical Supervision (which will be charged out according to standard session fees) to us. That repayment will be due four weeks prior to the last day of the relevant person's Services to us, unless agreed upon in writing by the parties.

Nothing in this Agreement is intended to require us to offer or provide Clinical Supervision, unless otherwise set out in the Clinical Endorsement Supervision Contract.

6 Your rights and obligations in the performance of the Services

(a) provide you with access to a pool of consultation rooms which may be used to undertake the Sessions;

(b) provide access to a pool of administrators to assist with Administrative Services;

(c) supply clear instructions regarding the nature of the Services; respond to any questions you have about the nature of the Services promptly and clearly;

(d) provide you with all relevant login details and passwords, and access to our computer systems, if they are required by you to carry out the Services.

You acknowledge and agree that access to consultation rooms and Administrative Services (Pooled Resources) must be arranged with us in advance. Whether or not these Pooled Resources are available as and when you require them, you are solely responsible for providing the Services pursuant to this Agreement. Our failure to provide access to the Pooled Resources from time to time does not constitute a breach of this Agreement.

(a) upon our request, nominate a key representative to liaise with us who has the authority to make decisions on your behalf in relation to the Services, unless otherwise advised that person will be the Authorised Representative;

(b) ensure you and your Personnel attend individual supervision with one of our representatives for one hour per month, or as otherwise required by us in our sole discretion, acting reasonably;

(c) ensure you meet any supervision requirements for your Personnel, as required by the Australian Psychological Society, Psychologists Board of Australia and Australian Health Practitioner Regulation Agency, at your own expense;

(d) ensure you and your Personnel undertake any continuing professional development or clinical supervision required to maintain specialist accreditation or endorsement which relates to the provision of the Services, at your own expense;

(e) immediately advise us of any changes to your or your Personnel's professional status which impact on your ability to provide the Services;

(g) remunerate your Personnel in accordance with any agreements you have with them and all laws including but not limited to the Fair Work Act 2009 (Cth), relevant state laws and laws relating to income tax and superannuation;

(h) take responsibility for the health and safety of you and your Personnel and ensure they have received appropriate workplace training to safely perform the Services and operate any equipment; and

(i) respond in a timely manner if we bring an issue to your attention in relation to your Personnel or Equipment where it affects your capacity to provide the Services.

6.3 Conditions you must satisfy for the duration of this Agreement

You promise to us, and it is a condition of this Agreement that, for the duration of this Agreement:

(a) you and your Personnel have all necessary licences and legal right(s) to provide the Services;

(b) you and your Personnel have sufficient skills, qualifications, training and experience required to provide the Services; and

(c) in the provision of the Services, you and your Personnel will follow all reasonable instructions given by us, the Service Delivery Guidelines and our Policies including those relating to workplace health and safety, workplace conduct, security, privacy, confidentiality and our exit Policy.

You must obtain and maintain the following insurance coverage for the term of this Agreement:

(a) public and product liability Insurance for $XX,XXX,XXX on any one claim, $XX,XXX,XXX in the aggregate;

(b) professional indemnity for $XX,XXX,XXX on any one claim, $XX,XXX,XXX in the aggregate

(c) workplace health and safety (WorkCover) insurance as required by law.

If we request it, you must provide us with a certificate of currency or other evidence confirming the insurance coverage.

11.1 Termination for breaches of this Agreement

Either party may terminate this Agreement immediately by written notice if the other party:

(a) fails to remedy a notice of default within 14 days;

(b) breaches a material term of this Agreement which is incapable of being remedied;

(d) is guilty of dishonesty, serious misconduct or serious neglect of duty (including where you fail to attend Sessions).

If the Personnel or Equipment provided by you fails to meet the Performance Standards including those set out in the Service Delivery Guidelines, we will provide you with 30 days' notice during which time you may replace the Personnel and Equipment in order to meet the Performance Standards. If after 30 days' notice the Performance Standards have not been met this Agreement terminates immediately.

(a) with 14 days' written notice if the Services being provided relates to a third party contract and that third party contract is terminated; or

(b) any other reason with 28 days' written notice.

You may terminate this Agreement for any reason by giving us 42 days written notice.

If this Agreement ends for any reason, then in addition to any other rights accrued at that time:

(a) each party must return to the other any material, document or Equipment which belongs to the other;

(b) you must comply with any exit Policy and undertake tasks necessary to give effect to the requirements within;

(c) you and your Personnel will no longer have access to our computer systems, and we may in our sole discretion access, and maintain active any account (email or otherwise), for the purpose of maintaining relationships with our clients or third party practitioners who you engage with while you provided the Services to us;

(d) you must, and you must ensure your Personnel, facilitate the smooth transition of all clients requiring ongoing treatment sessions to one of our practitioners; and

(e) you must leave with us all records, client files, books, drawings, note books and other documentation, any Intellectual Property or our Confidential Information, whether prepared by you, your Personnel or any other person, and any equipment, tools or devices owned by us which is in your possession or the possession of your Personnel; and

(f) ensure you and your Personnel complete all administrative and reporting responsibilities, including but not limited to, the writing of all general practitioner reports, insurance reports, client termination letters, and any other such paperwork, to our reasonable satisfaction.

We may defer payment of any invoice received from you until your obligations pursuant to this clause 11.3 have been satisfied.

12 Restraints during, and following the end of, this Agreement

(a) After the termination of this Agreement, you must not directly or indirectly, whether solely or jointly or as director, manager, agent or servant of any person or corporation, do any of the following acts within the Restraint Area during the Restraint Period:

(i) carry on or be engaged or interested in any business of a nature similar to ours;

(ii) canvas, solicit or endeavour to entice away from us any person, who you engaged with during the provision of the Services and who was at any time during the 12 months preceding termination of this Agreement our client or customer;

(iii) solicit, interfere with or endeavour to entice away any of our employees, practitioners, contractors or referrers to our business (including but not limited to general practitioners);

(iv) counsel, procure or otherwise assist any person to do any of the acts described in sub-clauses (i)- (iii), above.

(b) You acknowledge and agree the restraints provided in this clause 11 apply as if they consisted of several separate covenants and restraints consisting of the Restraint Period and the Restraint Area and:

(i) each of these separate provisions is a fair and reasonable restraint that goes no further than reasonably necessary to protect our goodwill and business including the protection of our relationships with our clients;

(ii) each restraint is a separate and independent provision severable from the other restraints such that the declared invalidity of a restraint does not affect the remainder;

(iii) this clause is intended to operate to the widest lawful extent;

(iv) the Fees paid to you represents substantial and valuable consideration for each separate covenant and restraint in this clause; and

(v) a breach of this clause would cause damage to our goodwill and business and represent a substantial loss to us.

(i) before entering into this Agreement, you had a fair and reasonable opportunity to seek independent legal and financial advice about this Agreement including the provisions of this clause 12; and

You and your Personnel must not at any time, either during the term of this Agreement, or at any time after termination, disparage or otherwise make any statement, or permit or authorise any statement to be made, which is calculated or reasonably likely to damage the reputation or cause other damage to Mind Matters or any related entity, or any of their respective employees or officers.

This Agreement contains the entire agreement between the Parties. Any previous understanding, agreement, representation or warranty is replaced by this Agreement and has no further effect.

This Agreement is governed by the laws of New South Wales and the parties submit to the jurisdiction of any court having jurisdiction there.

Neither party has entered into any contract under this Agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this Agreement.

The parties' rights and obligations under clauses 7, 9, 10, 12 and 13 survive the termination of this Agreement for whatever reason.

Any variation or amendment to this Agreement must be in writing signed by all parties.

(b) responding to, logging and case noting (where appropriate) client enquiries;

(c) billing and booking of appointments (individual and third party);

(d) support and undertaking of client follow ups and contacts (where appropriate);

(e) referrer contacts (not related to treatment) and approvals;

(f) administrating non-clinical client related paperwork;

(h) ensuring clients have a welcoming and professional experience at the practice (i.e. tea and coffee).

Agreement means this contractor agreement and any variation made to it pursuant to clause 14.12.

Approved Location means the location(s) set out in the Details Schedule.

Authorised Expenses means Pre-Approved Expenses, set out in the Details Schedule, or expenses we authorise in writing.

Authorised Representative means the person who warrants they are authorised to bind their respective party to this Agreement, as set out on the execution page.

Business Day means a day other than a Saturday, Sunday, or a public holiday in Sydney.

Claim means any claim, notice, demand, investigation, action, proceeding, litigation, or judgment however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort (including negligence) or statute and whether involving a party to this Agreement or third party.

Completed Service is the status of the Service when the Contractor has completed all of the following:

(a) ensuring case notes associated with the appointment / service are completed and uploaded to the Power Diary file;

(b) case notes are entered for all correspondence (or attempted correspondence) regarding a file including emails and texts if applicable;

(c) any relevant GP reports are completed. These include (but are not limited to) the initial acknowledgement letter and all Medicare mandated reports;

(d) any appropriate risk assessment is completed and uploaded to the file; any other report is completed i.e. WorkCover, NDIS, assessment report, any agreed additional services; and

(e) the client has a further appointment booked or there is a note on file to determine further action required on the file.

Confidential Information means information that is by its nature confidential, including but not limited to information relating to:

(a) personnel, policies, practices, clientele or business strategies of the parties;

(b) Intellectual Property Rights of either party;

(c) security credentials including usernames and passwords; and

(e) already rightfully known to the receiving party at the time of disclosure by the other party; or

(f) in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Agreement.

Consequential Loss includes, without limitation, loss of opportunity, loss of anticipated profits or savings, expenses incurred through default or breach, wasted overheads, loss of contract, loss of business, loss of production, loss of use, loss of goodwill, all other pure economic loss and disappointment, distress, stress, and inconvenience.

Entitlements means any salary, wages, allowances, annual leave or payment in respect of annual leave, long service leave or payment in respect of long service leave, personal leave, compassionate leave, notice of termination or payment in lieu of notice of termination, severance pay, commissions, bonuses, reimbursement of expenses, superannuation and any entitlement which may be owed or payable under any award, agreement or other industrial instrument, statute or employment contract to which an employee may be entitled in respect of their employment or the termination of that employment.

Equipment means any personal property required to be provided by you which is necessary to perform the Services and as set out in the Details Schedule.

Fees means any money payable to you by us for any Services as set out in the Details Schedule.

Force Majeure Event means an unforeseen event beyond the control of the affected party, including an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, hacking, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, ransomware or other malicious code.

Insolvency Event in relation to a party means any of the following, the party:

(a) enters into a scheme of arrangement with its creditors;

(b) is wound up or dissolved, or an administrator, liquidator or receiver is appointed; or

(c) is placed under official management, commits an act of bankruptcy or is charged with a criminal offence.

Intellectual Property means all intellectual property rights, including copyright, inventions, patents (including patent applications), trade marks (whether registered or not), designs (whether registrable or not), eligible circuit layout rights, domain names, licences, know-how, trade secrets, and includes the right to register any intellectual property rights.

Liability means any liability (whether actual or prospective), loss, damage, cost or expense of any description, including legal fees on a solicitor and own client basis.

Nominated Personnel means any Personnel who must provide the Services on your behalf.

Payment Arrangements means the terms set out in the Details Schedule.

Performance Standards takes its meaning from clause 4.3.

Personnel means employees, agents and contractors you use to provide the Services to us.

Policy means any Mind Matters policy document, process or operational directive as notified to the Contractor from time to time.

Pooled Resources mean Administrative Services and consultation rooms.

Pre-Approved Expenses means expenses you may recover from us as set out in the Details Schedule.

(a) Australia, or if that area is found to be unreasonable by a court of competent jurisdiction, then the area in sub-clause (b), below;

(b) New South Wales, or if that area is found to be unreasonable by a court of competent jurisdiction, then the area in sub-clause (c), below;

(c) Sydney, or if that area is found to be unreasonable by a court of competent jurisdiction, then the area in sub-clause (d), below;

(d) 5 km from the location where the Services were provided, or if that area is found to be unreasonable by a court of competent jurisdiction, then the area in sub-clause (e), below;

(a) 12 months, or if that period is found to be unreasonable by a court of competent jurisdiction, then the period in sub-clause (b), below;

(b) 9 months, or if that period is found to be unreasonable by a court of competent jurisdiction, then the period in sub-clause (c), below;

(c) 6 months, or if that period is found to be unreasonable by a court of competent jurisdiction, then the period in sub-clause (d), below;

Services means services we request, order or purchase under this Agreement, the details of which are set out in the Details Schedule.

Service Delivery Guidelines means the guidelines in the document headed Service Delivery Guidelines.

Special Conditions take their operative meaning from clause 3 and are set out in the Details Schedule.

Us, we or our means Mind Matters Sydney Pty Limited ACN 628 622 908.

Refer to the Services details in Schedule 2 and the Service Delivery Guidelines.

15 Sessions per week, at least 46 weeks per year and the timing of those sessions to be agreed upon. Or such other days or sessions as are mutually agreed upon in writing by both parties.

$XXX per initial 75 minute assessment and $XXX for after hour sessions, $XXX for subsequent therapy Sessions. Contractor fees will change proportionally with client fee changes.

Subject to Mind Matters' payment protocol invoices to be provided twice a month by the Contractor to Mind Matters and paid within 14 days of the submission deadline following receipt of a valid tax invoice and any associated records.

Notwithstanding anything to the contrary, no Session payments will be made unless the services are complete, as defined by the Completed Services set out in clause 15.1 and then only after payment has been received by Mind Matters' for the Session.

58 Grosvenor Street Woollahra NSW 2025 & other locations as appropriate.

Contractor agrees to pay for headshots, which will be utilised on Mind Matters' website and will be owned by the contractor.

Contractors are required to meet and maintain a competent level of knowledge, expertise and skill in working with persons with mild to severe mental health problems spanning across all ages.

This includes maintaining all requirements set out by the Australian Health Practitioner Regulation Agency and Psychology Board of Australia for continuing professional development (peer consultation/supervision, active continuing professional development activities, learning plan and reflective journals).

If there is any anticipated issue with meeting this ongoing requirement, this should be communicated as soon as practicably to the Principal Psychologist or Team Lead. It is the responsibility of the contractor to identify remediation strategies.

Contractors are engaged by Mind Matters to provide comprehensive expert psychological assessment and intervention services to persons of all ages with diagnosed and subclinical mental health disorders. This may include other presenting issues or requests for support. The work must include the application of the principles of evidence-based best practice, in accordance with the identified needs of the client, observing mental health and professional ethical standards. This includes standalone assessments, individual therapy and group work.

It is expected that a comprehensive and holistic intervention will include working cooperatively and effectively within the broader multidisciplinary care team (i.e. Psychiatrist, General Practitioner, Psychologist) and as required by various funding bodies, in the management of individuals to promote safe practice and positive outcomes.

Prepare professional and timely reports and maintain up to date clinical records in accordance with documentation standards and Mind Matters' policies, in addition to maintaining current data requirements of the practice.

Contractors are supported at Mind Matters to maintain their professional standards and registration requirements through access to professional development activities including supervision (individual and peer), training and skills sessions, and regular updates regarding the operation of the practice and changes to funding requirements e.g. Medicare.

Specific service deliverables are set out in the Service Deliverables Guidelines. Performance against service deliverables will be monitored and reviewed by the Principal Psychologist and/or Team Lead on a regular basis. Opportunities for improvement and growth may be discussed within the supervision framework and/or separate meetings to ensure Contractors are meeting their contractual obligations.

Whilst delivering services for Mind Matters Psychology, contractors are expected to behave in a professional and courteous manner, consistent with the values and ethos of the practice and being mindful of the reputation of the business at all times.

For the purpose of clarity, whilst Mind Matters provides extensive administrative support, non-clinical administrative and business requirements are the responsibility of individual contractors. This includes maintaining invoicing, administration and individual marketing and networking with referral networks and providers of choice.

Contractors are to be mindful of workplace health and safety requirements at all times, including to comply with anti-discrimination practices and behaviour in the work environment. Availability to provide these clinical services across all practice sites."[22]

[27] The Applicant makes various contentions as to him either not understanding, fully appreciating, or being pressured into signing or entering into the ICA.[23] From an evidentiary and legal perspective in this case, such contentions travel nowhere, and can be quickly disposed of per the comments on Latham CJ in Wilton v Farnworth:[24]

"In the absence of fraud or some other of the special circumstances of the character mentioned, a man cannot escape the consequences of signing a document by saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. Any weakening of these principles would make chaos of every-day business transactions."[25]

[28] Many contracts or other instruments are signed by people who have not read and understood them. They are nevertheless committed to those terms by the act of signature or execution.[26] There is no reason to depart from this principle. In other words, this principle does not change or cease to apply simply because the document being signed concerns an employment, or an independent contractor and principal, relationship.[27]

[29] For completeness, I find that the ICA (as executed by the Applicant) is a valid, binding and enforceable contract between the parties according to its express terms. On the evidence before me, no issue arises as to fraud, misrepresentation, coercion, undue pressure, oppression, etc.[28] If the Applicant wanted to work for the Respondent he needed to sign the ICA. There is nothing unlawful, unfair, or wrong in the Respondent requiring that this occur as a condition of the Applicant's engagement. Indeed, it is a simple matter of offer and acceptance. The terms of the ICA are written in straight forward and plain English. Nothing from the Applicant's written and oral evidence before the Commission points to him having any difficulty in reading or understanding plain English.

[30] Beyond the academic, and/or the speculative, this is not a case in which relative bargaining power between the parties arises for consideration. In other words, this is not a case in which an undisputed employer and employee relationship was in existence, and the employer was requesting the employee to alter that relationship and convert it into an independent contracting relationship under threat of dismissal or redundancy or other alike sanction.

[31] As to the Applicant's allegations of 'sham' contracting, I concur with the following submissions of the Respondent:

"23. It is also noted that an allegation of sham contracting has been made by the Applicant in their Form F8. In addition, the word 'sham' has been used by the Applicant in paragraph [57] of his opening submissions and [85] of his reply submissions.

1. However, this has not formed part of his factual evidence (to be contrasted against the submissions contained in evidence), nor has the legal test of sham contracting formed any part of their argument or before the Commission. It should also be noted that the factual elements required to make out an allegation of sham contracting were not put to Ms Martin at any time during her evidence, so the Respondent does not consider it a live issue for consideration in these jurisdictional proceedings.

1. Nevertheless, for the purposes set out in paragraphs [9] to [20] above, and the relevance of 'vitiating factors' on the status of contractual terms, it is necessary to make brief observations [in] this regard.

1. There is a critical difference between a 'sham' contract, and a mere 'mischaracterisation' of an employment relationship as one of independent contractor. While these concepts can be used synonymously in both colloquial and political dialogue, they are critically distinct. In essence:

1. A 'sham' contract, is a form of misrepresentation, which is a vitiating factor at common law: rendering void ab initio any contract which is formed as the direct result of either a knowing, or negligent, misrepresentation. The common law origins of 'sham' contracts are rarely relied upon in this jurisdiction because the concept is defined in far more robust terms (for the purposes of separate statutory remedies) in the FW Act. A 'sham contract' under section 358 of the FW Act contemplates any circumstance where a contract of employment for a person, is misrepresented to that person as an independent contractor relationship, unless the person making the representation 'reasonably believed' that it was an independent contractor relationship.

1. The mere 'mischaracterisation' of an employment relationship, on the other hand, can occur in circumstances not involving 'sham', following the retrospective application of the multifactorial test. This could be inadvertent, as a result of an incorrect 'reasonable belief' of the principal, or it could be the case that a relationship commences as a genuine independent contractor relationship, but the manner in which it is carried out evolves into one of employment without the contract being varied.

1. All contracts that meet the definition of a 'sham' (whether at common law or under the FW Act) are ipso facto mischaracterisations of the relationship. However, not all mischaracterisations are shams.

1. The importance of this distinction is that a 'sham' contract is void ab initio, whereas a 'mischaracterised' contract remains on foot (albeit in a differently characterised form as to the nature of the relationship it governs).

1. There has been no effective allegation made against Ms Martin that she did not reasonably believe the contract was an independent contractor agreement, and as such, the Respondent respectfully submits that it is not presently open for the Commission to make this finding in these proceedings.

1. As a result, the terms of the contract remained on foot during the entirety of the engagement between the Applicant and Respondent, and as such are a necessary feature of the assessment of the totality of the relationship ..."[29]

[32] I find that, on the evidence,[30] no issue of sham contracting arises for determination or resolution in these proceedings. More specifically, on the evidence, and as a matter of law, I reject that the ICA, or the relationship between the parties (as a matter of practical reality), is in any way a sham, or the product of any misrepresentation by the Respondent.

[33] The terms "employee" and an "employer" carry their ordinary meanings[31]. Section 15AA of the Act deals with how to determine the "ordinary meanings" of the terms "employee" and "employer". It was inserted by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, and commenced operation on 26 August 2024. It does not apply to an application that was already "on foot" before 26 August 2024, but does apply to applications filed after 26 August 2024, such as this one, with respect to relationships in existence or entered into before 26 August 2024.[32]

"(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.

(3) Subsections (1) and (2) do not apply to the following provisions of this Act:

(a) Divisions 2A and 2B of Part 1‑3;

(b) Part 3‑1, to the extent that Part 3‑1 applies only because of the operation of section 30G or 30R."[33]

[35] In determining whether the Commission's jurisdiction has been enlivened for the purposes of s.365 of the Act, the question in this case is whether or not the Applicant was an employee of the Respondent as at the date that the engagement between him and the Respondent came to an end, such that the Applicant was susceptible to being "dismissed" within the meaning of s.386 of the Act on that date. As to this task, Deputy President Roberts stated in Murray v 239 Brunswick Pty Ltd:[34]

"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 and Hollis v Vabu Pty Ltd 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 and ZG Operations v Jamsek.

The common law approach has been set out in numerous decisions of the courts and in decisions of this Commission. In Jiang Shen Cai trading as French Accent v Do Rozario the Full Bench summarised the approach to the determination of the employee/contractor issue including whether the worker is the servant of another in that other's business or whether the worker carries on a trade or business of his or her own behalf, the nature of the work performed and the manner of its performance, the identification and application of the relevant indicia to the circumstances, and the terms of the contract between the parties.

In the same decision, the Full Bench identified the various indicia that are ordinarily considered in an assessment as to the nature of the relationship. They include the actual exercise, or the right to exercise, control over the putative employee, whether the worker performs work for others, or provides 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. The Bench also cautioned that "no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances."[35]

[36] The following principles, including extracts from case law, are also applicable:

(a) As Deane J stated in Stevens v Brodribb Sawmilling Co Pty Ltd,[36] there are always "a circumfluence of competing criteria and indicia"[37] when determining whether a particular relationship is or was one of independent contractor and principal, or employer and employee. A decision maker (when resolving a dispute as to the nature of a relevant relationship) is required to paint a picture from the accumulation of detail. The overall effect (or outcome) can only be appreciated by standing back from the picture, and viewing it from a distance.[38] This "frequently results (as cases both in Australia and elsewhere illustrate) in borderline decisions upon which different legal minds, properly instructed, can reach different conclusions."[39]

(b) The terms and terminology of the relevant contract are always important.[40] It is appropriate to pay close regard to the manner in which the parties themselves have sought to characterise their relationship.[41] Importantly, the manner in which the parties have chosen to characterise their relationship (both under the terms of the contract, and pursuant to their interactions and/or conduct) is a matter of objective intention and motivation. The fact that such matters might also be described as "labels" does not detract from the significance of objective intention and motivation when determining the nature of the relationship between two parties.[42]

(c) Working in the business of another is not necessarily inconsistent with working in a business of one's own.[43] The ultimate question which is to be asked and answered is whether the person is an employee, not simply whether the person is conducting their own business.[44]

(d) "By itself, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that [the] person is an employee."[45]

(e) Specifying in detail how work or contracted services are to be performed does not in and of itself point to an employment relationship (i.e. "[a] man does not cease to run a business on his own account because he agrees to run it efficiently or to accept another's superintendence").[46] Importantly, and relevantly, a person does not cease to run a business on his or her own account simply because he or she agrees to abide by or comply with a principal's (or business') requirements, procedures or standards.

(f) Although 'control' is an important indicium, it is not the sole or determinative criterion. The extent of such control, and the reasons for its imposition (including its nature) will in many cases not ultimately point strongly one way or the other in the assessment of whether a person is an employee or an independent contractor.

(g) The substantive question as to control is whether the principal retained a significant degree of control in how the person actually utilised their skills in providing or delivering the relevant service (or performing the work). The fact that an external standard needs to be met, to which the principal requires compliance, is not an issue of control, but a matter as to the proper delivery of the service or work. For example, an electrician who is required (as part of their trade qualification) to comply with an Australian standard, to which the principal also requires compliance, is a requirement of the electrical trade, not an element of control. Likewise, if relevant documentation needs to be completed as part, or at the conclusion, of a particular service (so as to ensure documentation is compliant with statutory record keeping requirements, or so as to enable a payment from a funding source), this is an external imposition arising for statutory and/or funding compliance purposes. The fact that the principal requires compliance in this regard does not give rise to the principal controlling the manner in which the work is performed, or the manner in which the service is delivered, because such compliance would be required irrespective of whether or not the person is an employee or an independent contractor.

(h) When it comes to 'control', the real question is one of 'ultimate authority' over the work being performed. For example, in this case, did the Respondent have ultimate authority as to the manner in which the Applicant delivered his sessions to clients. The question is not whether in practice the work was done subject to direction and control exercised by supervision, or whether supervision was possible. Rather, the question is whether ultimate authority over the person in the performance of his or her work resided in the employer so that the person was subject to orders and directions in the 'actual performance' of such work.[47] In this case, the relevant 'work' being the actual delivery of sessions with clients.

(i) A prominent factor in determining the nature of the relationship between a person who engages another to perform work, and the person so engaged, is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it.[48] In this case, the question to be answered is: did the Respondent have the right to exercise control over the Applicant's actual delivery of sessions with clients (e.g. the content of the sessions with clients, and the advice provided by the Applicant to a client during a psychology session).

(j) Work that involves a profession, trade or distinct calling on the part of the person engaged (i.e. special qualifications and/or experience) will in many cases be indicative of a contract for services (independent contractor) as opposed to a contract of service (employment).[49]

(k) Health professionals, like doctors, psychologists, etc, will often run their own practice while also working within a group practice or setting. In relation to goodwill in these circumstances, the majority of the Full Court of the Federal Court of Australia in Dental Corporation Pty Ltd v Moffet[50] concluded:

"Confusingly, sometimes two sets of distinct goodwill may simultaneously exist side by side. This is illustrated by the cases concerning the conduct of medical centres. Often these centres are conducted such that each doctor in the centre conducts their own business as a general practitioner and pays fees to the owner of the medical centre for the use of the premises and for administrative support. It has been established in cases of that kind that both the doctors and the medical centre have a separate goodwill in the two businesses being conducted from the same premises. The fact that the medical centre has its own goodwill in the operation of the centre is what grounds its entitlement to the restraint covenants preventing the doctors working in competition with it. But at the same time, each doctor practising on their own account, albeit from the medical centre, can have a goodwill in that practise.

These kinds of situations are, perhaps, not the usual but they are more likely to arise where there is a divesting by a professional person of their back office operations to an agglomerated service provider. The architecture of that kind of situation may lead to the existence of two businesses each with its own goodwill. It will in each case depend on a close analysis of the relationship which has been created."[51]

(l) How each party conducts their own taxation and related compliance affairs, including what is disclosed in tax returns, is a relevant consideration.[52]

(m) If a relationship is ambiguous and is capable of being one or the other, the terms of the relevant contract become the best material from which to determine the true legal relationship between two parties[53] (the Massey Proposition[54]). The Massey Proposition was cited with approval in Cai (t/as French Accent) v Do Rozario,[55] where the Full Bench of Fair Work Australia stated:

"The Massey Proposition should be treated as a matter of common sense that allows for the resolution of the ultimate question in cases where, after considering the nature of the work, the terms of the contract and the indicia, real ambiguity remains and the contract declares the relationship to have a particular character."[56]

[37] As to the law, I also endorse and adopt the following submissions of the Respondent:

"7. Caselaw also exists dealing with the specific industrial context of medical practices and allied health, which often involve a 'fee split' on percentage basis. Three observations are to be made in this regard:

1. Firstly, the notions of 'goodwill' and business independence have been recognised by cases specifically to this industry. The 'goodwill' in a medical practice, and the 'goodwill' of an individual practitioner, while related, are capable of existing and evolving concurrently, and separately. While medical practices have a tendency to own the 'brand', control premises, and also sometimes generate and maintain the connection to clients, this is not to be considered to be a factor that derogates from a practitioner's capacity to develop their own independent business goodwill as a practitioner, often as part of the wider practice.[57]

1. Secondly, where part of the services provided by the practice involves scheduling patients, and particularly the scheduling of practice resources, such as rooms, the degree of prima facie control by the practice over those schedules is not to be regarded as the same as the control that an employer exercises over an employee's work. To the contrary, the scheduling of room allocation and patients in circumstances such as in these proceedings is to be characterised as forming part of the service that the practice provides to the practitioner.[58]

1. Thirdly, the fact that the clinical nature of these professions, such as psychology, does not necessarily lend itself easily to sub-contracting or delegation is to be regarded as a clinical barrier, not a barrier imposed as a part of the relationship between worker and principal. A fortiori, any clinical barrier to sub-contracting does not indicate a degree of control such that the practitioner is running anything other than their own practice. This is a clinical feature of the profession itself.[59]

1. The Respondent submits that these industry specific factors should be considered in relation to each factor of the multi-factorial test to which they relate, as well as part of the 'overall picture' that the Commission must assess to make a determination.

1. The parties in this case, and the Commission in the few previous cases involving section 15AA, are in broad agreement that the substantive or practical effect of section 15AA is to reinstate the application of the multifactorial test.[60]

1. It would be a gross simplification, however, (albeit one that is commonly made), to consider that the law had merely reverted to the previous state. This is because:

1. it is not the case, at common law, that the decisions of Personnel Contracting and Jamsek in 2022 had the effect of completely 'displacing' or 'overturning' the multifactorial test in Hollis and Stevens, but merely distinguished their cases from the former precedents, and resolved a pre-existing tension; and

1. equally, as a question of statutory interpretation, the parliamentary enactment of section 15AA in 2024 has not had the effect of 'displacing' or 'overturning' Personnel Contracting, nor has it directly or expressly 'reinstated' the multifactorial test.

1. As a formal question of law, the legal framework is therefore not identical to the situation prior to Personnel Contracting, which will involve some degree of analysis of the history of the provision.

1. Stevens involved a contract that was wholly oral. Hollis concerned a contract which was partly written, and party oral. By contrast, the principal consideration of the court in Personnel Contracting and Jamsek was to the situation where a contract at issue was wholly written. The High Court in Personnel Contracting considered the Privy Council's authority in Narich Pty Ltd v Commissioner of Pay‑roll Tax,[61] and the subsequent High Court decision of Connelly v Wells (Connelly),[62] which had both provided that when parties have established a written contract defining their relationship, a court's role in determining the nature of that relationship is limited to examining the express and implied terms of the contract and the court should not take into account how the parties behaved after entering into the contract. The exceptions to this arose only in circumstances where the conduct of the parties could be taken as a variation of the contract, or where waiver, estoppel, or other vitiating circumstances applied.

1. Thus, the court in Personnel Contracting was tasked with reconciling apparently conflicting authorities of Narich and Connolly, against Hollis and Stevens. In doing so, it determined that the legal nature of both employment and independent relationships (subject to any relevant statute saying otherwise) are contractual, and that courts should only concern themselves with legal relationships.[63] As such, it could only be the contractual terms between the parties that were relevant features in determining the nature of that relationship. On this basis, the court held that:

1. where a contract is wholly in writing, it has not been varied, and the legality of that contract was not subject to challenge, the legal rights and duties arising from that contract are the only relevant considerations to define the relationship, and a court should not look to the subsequent conduct of the parties; but

1. If a contract is not wholly or partly in writing (as it had been in both Hollis and Stevens), the performance of the contract may be relevant to determining what the contractual terms were as a question of fact.

1. The authorities in Personnel Contracting and Jamsek are still good law in Australia, but they are now subject to a further statutory overlay by virtue of section 15AA (which is explicitly described by parliament as a 'response' to those cases). It would not be appropriate for the Commission to disregard the authorities in Personnel Contracting and Jamsek, as if they had not been decided, as there remains features of these cases which are capable of being persuasive and informative concerning the nature of a relationship which is governed by a comprehensive written contract (a feature which is missing from many of the previous seminal authorities). However, this law must now be applied with further regard to the terms of section 15AA.

1. Section 15AA(1), provides that determining whether someone is an employee is to be done by reference to "the real substance, practical reality and true nature of the relationship", and section 15AA(2) further provides that:

(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 (emphasis added).

1. It is clear from the language of section 15AA, particularly the words 'not only' and 'but also', that there was no parliamentary intention to undermine or derogate the relevance of the terms and conditions of the contract, but merely to extend the enquiry to other matters relevant to the relationship outside the contract itself. The contract itself is the logical starting point and is mandated by the words "regard must be had". Section 15AA(2)(b) then requires the Commission to look beyond the contractual rights and responsibilities in assessing the totality of the relationship.

1. The phrase 'not limited to' makes it abundantly clear that a judicial or Commission decision maker should not be bound to consider only how the contract was performed in practice; rather, it is but one factor available to the Commission.

1. As such, in addressing the Deputy President's Question, the Respondent submits that:

1. the rights and obligations arising from that contract remain critical and persuasive factors that need to be considered in assessing the totality of the relationship between the parties; and

1. there are a variety of matters that may directly speak to the 'real substance' and 'practical reality' of a relationship outside of the strict legal terms of the contract that relate to the consent of the worker in entering into the contract, the following of which are a sample that apply to the present proceedings:

1. the intentions of the workers on entering the contract, including the extent to which a worker consents to the characterisation of the relationship under that contract;

1. the circumstances under which the contract is formed, including extrinsic documentation and the content of any negotiation;

1. the sophistication of the worker, and the extent to which they are capable of understanding and negotiating for themselves;

1. the profession of the worker and industry norms within that profession to the extent that they were known or understood between the parties;

1. other similar professional relationships held by that worker; and other similar business to business relationships held by the principal; and

1. the extent to which the worker cavils with, or queries, the characterisation during the life of the contract, and how this may contrast with their position beyond the termination of that contract."[64]

[38] The Applicant did not work exclusively for the Respondent.[65] In other words, the Applicant did not have exclusive economic dependency in respect of his relationship with the Respondent,[66] and the Respondent was not his sole source of income. Further, given his work for the Respondent occurred over three days per week, he had ample time to perform work for others when he was not working for the Respondent (which he did). He was not supplied with, nor required to wear, a uniform or other branded clothing when working with the Respondent.

[39] The Applicant says that the work he performed at the Respondent was subject to the Respondent's "day to day" control, which left little room for him to work autonomously, or the freedom to do as he wished. In this regard, he says (in summary) that:

(a) his work as a psychologist was supervised by Ms Martin and Mr Greentree;

(b) instructions were provided to him as to how tasks were to be performed, and the Respondent unilaterally set key performance indicators (KPIs) for the Applicant;

(c) he was required to perform various administrative tasks (i.e. beyond the delivery of client sessions, including stacking the dishwasher, assisting the Respondent's Customer Service Team, and making tea/coffee for clients on weekends), extending to the completion of client notes and administrative paperwork (so as to comply with record keeping requirements and standards imposed by the Respondent);

(d) he was not free to take or not take on clients, with the allocation of work a process controlled by the Respondent; and

(e) he was required to provide 6 weeks' notice if he wanted to suspend his room rental arrangement (i.e. to take leave).[67]

[40] The ability to work autonomously, and/or the freedom to perform work as you wish, are never absolute in an independent contractor and principal relationship. Like an employee to his or her employer, an independent contractor is always answerable and/or accountable to someone other than themselves (i.e. the principal who has engaged them, and/or the client or end recipient of the service provided). The fact that a principal may require that an independent contractor perform their work at a certain time or place, document the completion of such work, or demand that a particular standard be met, does not mean that 'control' over the work performed is being exercised by the principal. In other words, neither an employee, nor an independent contractor, are autonomous or free to work as they wish, whenever they wish. Rather, to more or less degrees, both an independent contractor and an employee need to 'fit in' (at some level) to the manner in which a principal or employer requires the work to be done or the service to be performed. Any suggestion that for a person to be a 'true' independent contractor they must exist in some form of unbridled utopia, free from all direction and control in the performance of their work, ought never be countenanced. As the Respondent states in its submissions:

"81. The Applicant outlined his expectations of working with Mind Matters as an independent contractor as extremely liberal, and subject to virtually no control, inter alia suggesting that, if he was genuinely an independent contractor:

1. Mind Matters could not insist upon the rooms being utilised by him;

1. he should be able to block out his calendar freely with no explanation or consultation, despite Mind Matters committing to him to make a room available for 15 hours per week;

1. he should be able to use the rooms for other work with other businesses;

1. he should be able to not work anytime he chose, ostensibly without any notice;

1. refused to engage with the proposition that Mind Matters had a legitimate interest in increasing the revenues it achieved from rooms, saying that:

1. he had no 'knowledge' of the financial affairs of Mind Matters; and

1. there were regularly 'empty rooms there', so providing him with a room would make no difference.

1. When it was put to him by counsel that what Mr Williams was describing was effectively a 'Utopia' which could not possibly exist in any commercial reality, he disagreed."[68]

[41] Missing from the Applicant's assertions as to control is relevant context, i.e. the circumstances to which the matters as to control raised by the Applicant came to be, or were, exercised. In this regard:

(a) The Applicant was not trained by the Respondent to be a psychologist or practice psychology. Nor was he trained by the Respondent to perform the work of a psychologist.[69] The supervision of the Applicant was a mandated requirement of his registration as a psychologist, and was required as part of him seeking to obtain clinical psychologist status. The position would be the same whether or not the Applicant was an employee or a Contractor.

(b) The evidence does not establish that any control exercised by the Respondent in the performance of the Applicant's work extended to how he provided his psychologist services to clients (i.e. how he diagnosed clients, or what ultimate advice he provided to clients as a registered psychologist). I find that the reality is that the Respondent (through Ms Martin or anyone else) had no control as to the manner in which the Applicant performed his core work, being the conduct of sessions with clients as a registered psychologist.[70]

(c) There is no evidence that the Applicant was subject to KPIs. When the Applicant chose to enter into the ICA, he promised to provide the Respondent with a Completed Service in accordance with the terms of the ICA. A Completed Service has nothing to do with a KPI. Indeed, as Ms Martin's evidence identified, KPIs were in place for employees and centred around, amongst other things, meeting a set number of billable hours.[71]

(d) The administrative tasks that the Applicant was required to perform did not extend beyond what he promised to do when he signed the ICA. In short, the Applicant was not engaged to simply hold psychology sessions with clients, and do nothing else. Again, the Applicant was engaged to undertake a Completed Service in accordance with the terms of the ICA and the Service Delivery Guidelines. This included not only holding psychology sessions with clients, but doing all necessary paperwork to ensure mandated government and/or funding requirements around a client session were met. The suggestion that a registered psychologist's compliance with record keeping requirements would not need to be undertaken if he or she were a contractor, and/or that any direction to do so gives rise to 'control' akin to an employment relationship, is not only nonsense, but runs counter to basic principles of personal and professional responsibility.

(e) The Applicant's claim that he was not free to take, or not take, on clients, is contrary to the evidence. He had control over his work calendar, and he could (and did), block out time in his calendar which resulted in client bookings not being able to be made during such block out periods.[72] Clients were booked in after consultation with the relevant psychologist, and were moved to telehealth appointments at the request of the relevant psychologist.[73] The Applicant was consulted about any clients being allocated to him, and had the right to refuse a client.

(f) The Applicant asserts that being required to provide notice to the Respondent to suspend his room rental agreement with the Respondent (so as to take leave) was "at odds with his status as an independent contractor". He also complains that when he was on leave, he was not paid. The starting point is that Contractors are not entitled to 'leave', unless such a term is included in their contract. It is also clear that the Applicant was only paid when he undertook a Completed Service, and he was provided with a room by the Respondent to do so. The Respondent made the following points in relation to the Applicant's assertions about leave:

"66. Mr Williams had claimed in his statement that it was when he read the 'service delivery guidelines' that he began to suspect he was not an independent contractor, and this was as early as February 2024. When pressed on which aspects of this document concerned him, he replied 'control over leave'. However, the Service Delivery guidelines (see DHB pages 132-142) is silent on the issue of leave.

1. In cross examination, Mr Williams conceded that the Service Delivery Guidelines provided only that a psychologist should make themselves available for 46 weeks per year, and that leave was 'able to be negotiated with the practice'.

1. he did not raise any questions with Ms Martin about leave; and

1. he 'could not recall' ever being prevented from taking leave;

1. Mr Williams also claimed that his request for parental leave had been 'denied', but then conceded that he was no longer engaged by Mind Matters before this occurred, and could not speak to whether this ultimately could have been taken.

1. Mr Williams stated in cross examination his belief that as an independent contractor he should have been able to take leave at any time that he wanted without notice, and further stated that this was what he was able to do at Schema Therapy. However, when pressed:

1. he conceded that he still would have been required to pay rent on his room in this circumstance;

1. that Mind Matters would not have made revenues on the room in that circumstance; but

1. refused to acknowledge the distinction between these two states."[74]

[42] I accept the submissions of the Respondent going to the Applicant's ability to make profit, and risk loss, in his practice as a registered psychologist, as follows:

"72. In addition, the following concessions are notable from the cross examination of the Applicant:

1. if he did not see any clients, he would not make any profits;

1. he did not have any clients come to him at Mind Matters from previous roles;

1. if he didn't see clients, Mind Matters would also not make revenues from the rooms he occupied;

1. Mind Matters' revenue from the arrangement depended on him seeing clients;

1. he believed as a contractor, he should have had the right to use the room for whatever he wanted, even if Mind Matters was not receiving revenue for it; and

1. he should be free to do work for other businesses, even where he had committed that time and availability to Mind Matters, and this was not a 'fanciful' or 'non-commercial' view.

1. Mr Williams conceded that if he was present at Mind Matters but booked for a session, he was never required or directed by other persons at Mind Matters to do alternative work, yet when it was put to him that he therefore 'owned his own time', he refused to concede this.

1. Mr Williams gave evidence that he could not set his own fee, yet refused to commit to answering (other than via a very vague hypothetical) whether he would have in fact increased or decreased his fee, admitting only on a 'hypothetical' basis that the fee would have been less.

1. Mr Williams' statement in reply contained an assertion that his remuneration was only equivalent to the award, however, when confronted with the proposition that this would have depended on him working 40 hours a week (rather than the 15 hours that he was scheduled at Mind Matters), he became extremely evasive and inconsistent, stating that:

1. he disagreed that the effect of his evidence was that he actually earned the remuneration of a salaried employee's 40-hour week in 15 hours per week;

1. he had on occasions 'worked' 40 hours per week; and

1. he was directed to do 'additional duties' but was unable to specify what these additional duties were.

1. Evidence from the Respondent, that was not subject to substantial challenge in cross examination, that independent contractors at Mind Matters were treated entirely differently to employees, as such:

(a) Employees were scheduled to work certain hours per week, and they had limited control over what patients they saw (subject to clinical factors)

(b) They were subject to KPI's requiring minimum patient numbers; and

(c) Employees took no risk over their time, they were guaranteed income at certain levels, and in term, overall, their rate of pay per hour was substantially less - as it almost always is in relation to the employment."[75]

[43] For legal purposes, goodwill is a species of property and consists of the right or privilege to conduct a business in substantially the same manner and by substantially the same means that have attracted custom to it.[76] It follows that whilst the Applicant was not able to create goodwill in the legal sense, he was able to create personal goodwill (or intangible value) by reference to his reputation, skills, relationships, and expertise, which would follow him if he moved to another practice. The fact that the ICA restrained the Applicant's ability to utilise such personal goodwill, generated at the Respondent, for a period of up to 12 months, reflects a contractual term agreed to by the Applicant. Further, there is no suggestion that the Applicant could not market his work (or time) at the Respondent when marketing or furthering his own business interests moving forward, including when working at other psychology practices. Whether or not he chooses to do so is a matter for him.

[44] The manner in which the Applicant was remunerated was via the payment of tax invoices issued by him to the Respondent. The Applicant never sought to be remunerated in any other manner. He was paid on the basis of a Completed Service, not on the basis of general hours of service. The fact that such invoices were to be issued and paid fortnightly is neither here nor there. Both independent contractors and employees can be paid weekly, fortnightly, or monthly. Billing cycles for invoices, like wages for employees, are about consistent and reliable cash flow. With the wide use of same or next day electronic banking and payment systems, having a consistent time period for when payments are made is hardly of significance in resolving whether or not a person is an independent contractor or an employee.

[45] The Applicant makes an issue of him being guided by the Respondent as to how to draft the contents of an invoice, including so as to provide invoices to the Respondent that are compliant with taxation and funding requirements. In the circumstances, I see no relevant issue in the Applicant being advised or guided as to how his invoices should be drafted so as to ensure compliance with relevant accounting standards or funding requirements.

[46] As required by the ICA, the Applicant provided his own laptop. He says that in order to complete his work, the Respondent provided him with tools and equipment to undertake his work, including printers and scanners, access to Google Suite software (used as a repository for work and training documentation), IQ testing kits, and practice management software. On the Applicant's case, he submits that the provision of these items demonstrates a level of control over his work and integration into the Respondent's business. But again, working in the business of another is not necessarily inconsistent with working in a business of one's own.[77] Further, to obtain the benefit or use of the Respondent's CST, the Applicant needed to use the same systems (or software tools) as the Respondent's administrative staff. It was a term of the ICA that the Applicant be able to utilise the Respondent's CST. Absent providing the Applicant with the with tools and equipment to do so, the Respondent would not be compliant with the terms of the ICA. The practical reality of this issue reflects the terms of the ICA, that the Applicant signed, and in doing so, promised to be bound by.

[47] The Applicant was presented on the Respondent's website as an available psychologist in the Respondent's business. However, this is in circumstances where the Applicant, as graduate psychologist, starting out for the first time at the Respondent, had no presence or brand of his own. He was not required himself to engage in advertising for the Respondent's business or brand. The advertising that was done in respect of the Applicant (at the Respondent's business) was very much all about him (in terms of his skills, experience, and approach). The Applicant in turn used his headshot photograph from the Respondent to advertise himself to the world at large of his status as a self-employed practising psychologist.[78] In these circumstances, no significant weight is to be attributed to the Applicant being presented as an available psychologist in the Respondent's business. Rather, the Applicant's own advertising points to him being what he says he is, i.e. a self-employed practising psychologist.

[48] An unusual aspect of this case is the fact that many of the Applicant's contentions rub up awkwardly against the Applicant's position in respect of his engagement with Schema (being the other psychology practice that the Applicant was engaged by whilst working with the Respondent). Indeed, the Applicant has never been able to satisfactorily explain as to why he considers his engagement with Schema to be an independent contractor and principal relationship,[79] whilst his relationship with the Respondent is that of employee and employer. Despite his inconsistent and conflicting evidence in this regard, only raised by him post his relationship with the Respondent, I treat the Applicant's understanding and motivations as to his relationship with the Respondent to be as set out in the ICA that he signed and promised to be bound by (i.e. an independent contractor).[80]

[49] I have not considered it necessary to deal with the Respondent's concerns (or allegations) around the Applicant's dishonesty. Whilst grounded by reference to the Applicant's evidence (including his answers in cross-examination), my preference is to reject those aspects of the Applicant's evidence that lack credibility, consistency or foundation (as opposed to making findings as to his dishonesty).[81] I would observe that in many areas of the Applicant's statement of reply evidence he stoops to making various argumentative, overly critical, unnecessary, unsupported, and/or egregious statements of opinion and conclusion in relation to the witness evidence of other witnesses in these proceedings.[82] Given such matters are not evidence, or are otherwise objectionable and/or prejudicial, I have given them no weight.

[50] A defining feature of the Applicant's engagement by the Respondent in this case is that the manner in which the contract (ICA) was performed in practice is consistent with its express terms. In other words, the practical reality of the relationship between the parties is wholly consistent with (and reflected in) the terms of the ICA.

[51] Indeed, there is no suggestion by the Applicant in these proceedings that the contracting parties, by their conduct subsequent to the execution of the ICA, impliedly varied (by conduct (act or omission)) the terms of the ICA.[83] Nor is there any suggestion by the Applicant that the terms of the ICA should be regarded as ineffectual because such terms do not reflect the agreement between the parties, or the manner in which the parties conducted themselves during their relationship. Rather, the Applicant's case is simply that his relationship with the Respondent was that of employer and employee, as opposed to independent contractor and principal.

[52] In determining whether or not the Applicant was an employee of the Respondent, I need to assess the true substance, practical reality and true nature of the relationship between the Applicant and the Respondent, having regard to the totality of the relationship between them, the terms of any contract between them, and how that contract was performed in practice.

[53] I have considered various factors (or criterion), including the manner in which work was performed, the degree of control, the mode of remuneration, the provision of equipment, the obligation to work, entitlements to leave, taxation, profit and risk, the supply of a uniform, the terms of the ICA, and the description by the parties of their relationship in the ICA. I have also considered the conduct and functions of the respective parties during their relationship. I find that all of the matters I have considered, having regard to their specific and overall context, either:

(a) weigh in favour of a finding as to the Applicant's status being that of an independent contractor;[84] or

(b) would apply equally to an independent contractor and principal relationship and/or an employer and employee relationship.[85] The fact that certain criteria will arise in, or apply to, both types of relationships, does not green light such matters as weighing in favour of an employment relationship. Rather, they essentially become neutral considerations, that do not to point one way or the other.

[54] My task in this case is not a mechanical one. I must paint a picture from the accumulation of detail, and view that picture by standing back and viewing it from a distance, with an appreciation of the whole (i.e. the overall effect of the details, not the sum total of specific parts).[86]

[55] In the ultimate sense, I find that the Respondent is correct in the comprehensive case that it has advanced (being a case soundly based upon the correct principles in the facts and circumstances of this case). The conduct and functions of the respective parties in this case, in totality, and in a practical and 'real' sense, are not indicative (or do not display) an employment relationship between the parties. Rather, the overall picture that has been painted is clearly one of independent contractor and employee.

[56] I have determined that the Respondent's case must succeed, and that the Commission does not have the jurisdiction to further consider the Applicant's case. I will therefore order that the Applicant's case be dismissed [PR798360].

Ms Shareeza Mohammad, Industrial Officer, Health Services Union, appeared for Mr Douglas Williams (Applicant).

Ms Bianca Gallifuoco, of Counsel, instructed by Ms Brittany Morgan, Solicitor, Walter Baden lawyers, appeared (with permission) for Mind Matters Sydney Pty Limited (Respondent).

[1] For the purposes of Part 3-1 of the Fair Work Act 2009 (Act).

[2] Note application of Amended Confidentiality Order dated 13 May 2025.

[3] The Respondent's Woollahra property was purchased in August 2018.

[4] Ms Martin Statement, [67]. CB, pp.158-159.

[5] Ms Meg Ryann Witness Statement, CB, pp.396-400.

[6] Ms Martin Statement, [53]. CB, p.157.

[9] Transcript, PN108. Mr Williams is also a casual academic, and has published his own research papers in that role.

[12] Ms Martin Statement, [90]. CB, p.161.

[14] Ibid, [73], [75]. CB, pp.159-160.

[16] Ms Martin Statement, [78]. CB, p.160.

[21] Ms Martin Statement, [88]. CB, p.161.

[23] Willaims Statement, [8]-[9]. CB, p.99. Applicant's Closing Submissions, 12 May 2025, [18]-[21].

[24] [1948] HCA 20; (1948) 76 CLR 646.

[25] Wilton v Farnworth [1948] HCA 20; (1948) 76 CLR 646, per Latham CJ at 649 (cited with approval in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, [43]). See also Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1988) 165 CLR 197, per Brennan J at 228: "If a passenger signs and thereby binds himself to the terms of a contract of carriage containing a clause exempting the carrier from liability for loss arising out of the carriage, it is immaterial that the passenger did not trouble to discover the contents of the contract."

[26] L'Estrange v Graucob [1934] 2 KB 394, 402-403.

[27] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, [42]-[48]).

[28] Ms Martin Statement, [41]-[47], CB, p.156.

[29] Respondent's Closing Submissions, 12 May 2025, [23]-[30].

[30] Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; 228 FCR 346, [144] (citing, amongst other authorities, Raftland Pty Ltd v Federal Commissioner of Taxation [2008] HCA 21; 238 CLR 516 at [33]-[35] per Gleeson CJ, Gummow and Crennan JJ).

[31] Fair Work Act 2009, s.335.

[32] Fair Work Legislation Act 2024, Schedule 1, Part 17, cl 116-119.

[33] Section 15AA(3) of the Act has no application in this case.

[34] [2025] FWC 978

[35] Ibid, [17]-[19], footnotes excluded.

[36] (1986) 160 CLR 16

[38] Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939, 944.

[39] Dalgety Farmers Ltd (t/as Grazcos) v Bruce (1995) 12 NSWCCR 36 at 46, per Kirby A-CJ (as he then was), with whom the other members of the New South Wales Court of Appeal agreed.

[40] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, per Wilson and Dawson at 37.2.

[42] ACE Insurance Limited v Trifunovski [2013] FCAFC 3; 209 FCR 146, [102]. This is not to discount the principle that by labelling their relationship an independent contract, the parties cannot alter what is in reality an employment relationship: Australian Mutual Provident Society v Allan [1978] UKPC 7; (1978) 52 ALJR 407, at 409 per Lord Fraser for the Privy Council (otherwise reported as Australian Mutual Provident Society v Chaplin [1978] UKPC 7; (1978) 18 ALR 385 at 389); Re Porter; Re Transport Workers Union of Australia [1989] FCA 226; (1989) 34 IR 179, at 184 per Gray J; WorkPac Pty Ltd v Rossato [2020] FCAFC 84, at [590] per White J.

[43] ACE Insurance Limited v Trifunovski [2013] FCAFC 3; 209 FCR 146, 182 [128] per Buchanan J; Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118.

[44] Tattsbet Limited v Morrow [2015] FCAFC 62; 233 FCR 46, 61 [61] per Jessup J (Allsop CJ and White J agreeing).

[45] Per the observations of the joint judgement of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21, [40].

[46] Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 487, per MacKenna J at 526.

[47] Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389, per Dixon J at 404.

[48] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, per Mason J at [24].

[49] Explanatory Memorandum, Fair Work Legislation Amendment (Closing Loopholes No. 1) Bill 2023, at [972]-[974], and [979]-987], especially ay [986].

[50] [2020] FCAFC 118; (2020) 278 FCR 502.

[51] Ibid, at [69]-[70], per Perram and Anderson JJ. See also Mariana Jansen v Lives Lived Well T/A Headspace Southport/ Upper Coomera [2021] FWC 6567.

[52] ACE Insurance Limited v Trifunovski [2013] FCAFC 3; 209 FCR 146, [29] per Perram J. See also Barro Group Pty Ltd v Fraser [1985] VicRp 59; [1985] VR 577 at 580 per Kaye, McGarvie and Marks JJ; Climaze Holdings Pty Ltd v Dyson (1995) 13 WAR 487 at 495 per Steytler J, with Malcolm CJ and Rowland J agreeing; Wesfarmers Federation Insurance Ltd v Stephen Wells trading as Wells Plumbing [2008] NSWCA 186 at [39]-[42] per Basten JA, with Hodgson and Handley JJA agreeing.

[53] Australian Mutual Provident Society v Allan [1978] UKPC 7; (1978) 52 ALJR 407, 409; [1978] UKPC 7; 18 ALR 385, 389 (endorsed in Cai (t/as French Accent) v Do Rozario (2011) 215 IR 235; [2011] FWAFB 8307, [21]).

[54] Massey v Crown Life Insurance Co [1977] EWCA Civ 12; [1978] 1 WLR 676; [1978] 2 All ER 576: "If, after considering all other matters, the relationship is ambiguous and is capable of being one or the other, then the parties can remove that ambiguity by the very agreement itself which they make with one another."

[55] (2011) 215 IR 235; [2011] FWAFB 8307.

[56] Ibid, [22]. It has not been necessary to apply the Massey Principle in this case as I have not found that the relationship between the parties is ambiguous.

[57] Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118, [65].

[58] See, for example, Mariana Jansen v Lives Lived Well T/A Headspace Southport/ Upper Coomera [2021] FWC 6567 at [126].

[60] See for example Redford C's comments at [44] of AB v Free Hearts Free Minds [2025] FWC 353.

[61] [1983] 2 NSWLR 597 at 601.

[62] (1994) 55 IR 73 at 74.

[63] CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1, [44].

[64] Respondent's Closing Submissions, 12 May 2025, at [7]-[8], and [11]-[20].

[65] On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) [2011] FCA 366; 214 FCR 82, [285]-[286], per Bromberg J.

[66] Molfetas v Dwiar (1991) 33 AILR 266.

[67] Applicant's Closing Submissions, 12 May 2025, [5]-[8]. Applicant's Submissions, [14], CB, p.94. William's Statement, [10]-[17]. CB, pp. 100-102. Williams Reply Statement, [6]-[10], [13]-[14], [16]-[26], [37]-[38], [42]-[43], [67]-[69]. CB, pp.491-504.

[68] Respondent's Closing Submissions, 12 May 2025, [81]-[82].

[69] Compare, ACE Insurance Limited v Trifunovski [2013] FCAFC 3; 209 FCR 146, [148] per Buchanan J, with the agreement of Lander and Robertson JJ.

[70] Transcript, PN866. See also Respondent's Closing Submissions, 12 May 2025, [39]-[49].

[72] Ibid,, PN622-PN624, PN836, PN1054.

[73] Ibid. See also Respondent's Closing Submissions, 12 May 2025, [39]-[49].

[74] Respondent's Closing Submissions, 12 May 2025, [66]-[70].

[76] Commissioner of Taxation v Murry [1998] HCA 42; 193 CLR 605, 615 [23].

[77] ACE Insurance Limited v Trifunovski [2013] FCAFC 3; 209 FCR 146, 182 [128] per Buchanan J.

[78] Ms Martin Statement, [126], CB, pp. 164, 380-395. Applicant's Reply Statement, [52], CB, p.500.

[80] The Applicant's views and 'opinions' as to whether or not he was an independent contractor, or an employee, in the Respondent's business, or at Schema, go to the ultimate issue, and are from that perspective, irrelevant.

[81] Respondent's Closing Submissions, 12 May 2025, [35]-[38], and [90].

[82] See, for example, Applicant's Reply Statement, [40], [43], [48]-[51]. CB, p.500. See also Respondent's Closing Submissions, 12 May 2025, [32]-[33].

[83] Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; 228 FCR 346, [149].

[84] See paragraphs 7, 9, 13, 14, 15, 16, 18, 20, 21, 22, 23, 26, 29, 38, 41(b), (c), (e) and (f), 42, 43, 44, 45, 46, 47, 50, 51 of this decision.

[85] See paragraphs 10, 11, 17, 24, 40, 41(a) and (d) of this decision.

[86] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (1997) 37 ATR 528, per Winneke P, with whom JD Phillips and Kenny JJA agreed at 533 (citing Mummery, J. in Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939, 944).

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