s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection not employee, contractor - Applicant a contractor - Application dismissed.

• [1] On 10 January 2025, Mrs Fay Newson (Ms Newson / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with an unfair dismissal dispute. The Respondent in the matter was named as Brumbycare Pty Ltd (Brumbycare / the Respondent).

• [2] The Respondent raised a jurisdictional objection that the Applicant was not an employee, but an independent contractor.

• [3] On 28 February 2025, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. A jurisdictional hearing was held on 4 April 2025.

• [4] The Applicant provided evidence on her own behalf, and the Respondent submitted statements from the following people:
  • Ms Danielle Lindgren, NDIS Support Coordinator, dated 19 March 2025;
  • Ms Rebekah Emmerson, legal guardian of the NDIS participant relevant to the Applicant's work, dated 17 March 2025;
  • Ms Cheryl Ward, Key Support Worker of the NDIS participant relevant to the Applicant's work, dated 19 March 2025;
  • Ms Elvee Brisbane, Bookkeeper, dated 17 March 2025; and
  • Ms Pamela Wharton, biological mother of the NDIS participant relevant to the Applicant's work, dated 19 March 2025.

• [5] Ms Newson represented herself at the hearing and Ms Lindgren, the sole director of Brumbycare, represented the Respondent. Ms Lindgren did not wish to cross examine Ms Newson, and Ms Newson did not wish to cross examine any of those who provided witness statements for the Respondent.

• [6] The relevant working relationship involves an NDIS Participant receiving support (the NDIS Participant). The NDIS Participant was previously being supported in a Supported Independent Living (SIL) arrangement with another Participant. However, this arrangement ended in September 2023.

• [7] Ms Emmerson's evidence was that she had approached the Applicant several months prior to the SIL provider giving their cancellation notice, asking if she would be interested in filling some extra 1:1 shifts with the NDIS Participant. She submitted that whilst the Applicant showed interest at the time of their discussion, she did not accept or commence any work with the NDIS Participant at that time.

• [8] Ms Emmerson's evidence was that the Applicant only agreed to start working with the NDIS Participant in early September 2023 and soon after that was arranged, the SIL provider gave formal notice of their withdrawal of services stating they could not work with independent contractors. Due to these circumstances the Applicant could not start until after the current SIL provider's notice period had ended.

• [9] On 16 November 2023, a formal meeting was held, attended by Ms Emmerson, Ms Ward, the Applicant, Ms Lindgren, Ms Wharton, and the NDIS Participant.

• [10] Ms Lindgren's evidence was that during this meeting, the terms of independent contracting were discussed in detail and all the options available. Her evidence was that all support workers, including the Applicant, voluntarily agreed to work as independent contractors for the Respondent company, and acknowledged their responsibilities under this arrangement including:
  • Providing their own ABN;
  • Submitting their own invoices to the Respondent for payment;
  • Maintaining their own professional indemnity and public liability insurance;
  • Controlling their own work schedules and availability;
  • Not receiving employment benefits such as superannuation, leave entitlements, or PAYG tax deductions; and
  • The ability to work for other clients or businesses with no exclusivity requirements.

• [11] Ms Emmerson's evidence was that all of the new team started working from the 23 November 2023, after the notice period had expired.

• [12] On 16 December 2024, the Applicant received an email from Ms Lindgren, copied to Ms Emmerson, outlining some 'significant workplace concerns' that had been brought to her attention. The letter concluded by stating:

"To discuss these matters further, we would like to arrange a phone conversation with you at the earliest opportunity. This will allow us to outline these concerns in more detail, clarify expectations moving forward, and hear your perspective. Please let us know a suitable time for this discussion by 5pm Wednesday [18 December 2024]. If we do not hear from you by then, we will proceed with making decisions regarding the next steps. I have availability later in the week after Wednesday 18th December.

It is important to emphasize the seriousness of these concerns and the need for immediate resolution. Please let us know your availability for this conversation."

• [13] On 17 December 2024, the Applicant submitted that she attempted to contact Ms Emmerson four times regarding the email. The allegations and whether the Applicant was unfairly dismissed are not within my consideration at this time, prior to the jurisdictional issue being determined.

• [14] On 20 December 2024 at 5:03pm, the Applicant received an email terminating her services, stating:

"Following discussions among the management team and [the NDIS Participant]'s nominees, we have decided to terminate our working relationship with you as her support worker, effective immediately.

This decision reflects concerns raise over the past week, your failure to respond within the given timeframe, and the manner in which you addressed the support worker involved in the accusations. Addressing the issue with the worker in the workplace, and in front of [the NDIS Participant], was deemed unprofessional and reinforced our decision.

In the best interest of the support team and [the NDIS Participant], we believe this is the most appropriate course of action.

• [15] Sections 15 and 15AA of the Act relevantly state:

"15 Ordinary meanings of employee and employer

(1) A reference in this Act to an employee with its ordinary meaning:

(a) includes a reference to a person who is usually such an employee; and

(b) does not include a person on a vocational placement.

Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State.

(2) A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer.

Note: Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State.

15AA Determining the ordinary meanings of employee and employer

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

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

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

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

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

(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."

• [16] Ms Lindgren's evidence was that after the withdrawal of SIL care, she worked with Ms Emmerson as the NDIS Participant's legal guardian, to assemble a team of independent contractors who could provide ongoing support under an independent contractor model. Ms Lindgren submitted that independent contractors were recruited with the understanding that they would operate under their own ABNs, manage their own tax and superannuation obligations and work autonomously.

• [17] The Respondent submitted a document titled "Key Support Worker (Independent Contractor) Role Description" which it appeared to rely on as the Applicant's duties statement. However, the Applicant's evidence was that she had never seen this page/document before.

• [18] The Applicant submitted that in summary, after researching and consideration of her interpretation of the actual true working relationship between herself and the Respondent, she believed there can be no doubt she was actually an employee and not a contractor. She submitted that it may be that the Respondent does indeed employ contractors through their business for other places of work, but for the NDIS Participant, her interpretation of the definitions and examples on the Commission's website, is that she and all support workers working for the NDIS Participant are in fact employees, not contractors.

• [19] The parties' positions on a range of factors to be considered when determining the true nature of the agreement are set out below.

• [20] It was undisputed that the Applicant had an ABN. The Respondent submitted this was evidence of the independent contractor relationship.

• [21] The Applicant submitted that prior to the 23 November 2023, she had never held an ABN. Her evidence was that it was sourced solely for the NDIS Participant's support.

• [22] Ms Emmerson's evidence was that initially, the contractors were going to invoice the NDIS plan manager directly, but due to reports of frequent delays in payment, the Respondent offered the contractors to contract their hire supply company to offer consistency in processing payments on a regular schedule. This was also to avoid the ATO super ruling for independent contractors who are directly contracted to the participant. As the NDIS Participant's funding did not meet her needs if the contractors were to directly bill her plan manager, they could only work 29 hours or less per week to avoid further unnecessary costs to the NDIS Participant's plan. If they contract through a 3rd party as offered by the Respondent, then there would be no restriction of hours worked per week and the ATO superannuation ruling would not apply. This arrangement was put in place at the request of the independent contractors, including the Applicant, so they could receive consistent payments and not be restricted on hours of support provided.

• [23] Ms Ward's evidence was that the Respondent company's role was solely to process payments on a predictable schedule, but it did not dictate their work arrangements. Ms Wharton, also a previous contractor of the Respondent confirmed this evidence.

• [24] Ms Brisbane's evidence, as the bookkeeper of the Respondent, was that the Respondent does not have any employees on payroll. Instead, the company exclusively engages independent contractors to supply services. Her evidence was that from her experience and financial records, all workers engaged by the Respondent company operate as independent contractors. They are responsible for their own tax, superannuation, and insurance obligations, and they invoice the Respondent for the services they provide. The Respondent does not dictate their hours, methods of work, or provide employment entitlements such as paid leave or superannuation contributions. She continued that the Respondent does not exert control over the way work is performed beyond what is necessary to ensure service delivery standards. Contractors have the discretion to determine their work methods and operate their own businesses, further reinforcing their independent status.

• [25] Additionally, Ms Brisbane's evidence was that Ms Lindgren has referred numerous contractors who provide services to the Respondent to her for professional assistance with their ATO financial obligations.

• [26] Ms Brisbane provided a payment summary from the Respondent company's Xero invoicing system, which details payments made to the Applicant as an Independent Contractor. These records demonstrate that all payments have been processed as contractor invoices, without payroll deductions or employee-related entitlements.

• [27] The Applicant's evidence was that she received regular weekly payments from the Respondent. She stated that invoices were to be put in on Sunday, payday was Wednesday by direct debit from the Respondent. The Applicant stated that according to the ATO, submitting an invoice for work done or being 'paid on invoice' does not make a worker an independent contractor.

• [28] Regarding Ms Brisbane's evidence, the Applicant submitted that she has never met or spoken with her and was only aware of the existence of a payroll worker, but until now was not aware of her name. The Applicant contended that the regular invoices were just proof that she was paid wages on a regular set basis.

Maintaining her own professional indemnity and public liability insurance

• [29] Ms Lindgren and Ms Emmerson's evidence was that the Applicant held her own professional indemnity and public liability insurance.

• [30] The Applicant submitted that she believed that she held no financial responsibility in her support work with the NDIS Participant in regard to making profit or loss. Further, although she states she was told that it was a mandatory requirement that she get indemnity insurance before being able to support the NDIS Participant, in her view, the actual risk of having to use that insurance was very minimal to no risk at all under the circumstances and in relation to how her support of the NDIS Participant was performed.

• [31] The Respondent submitted the Applicant provided her own tools, equipment, and resources necessary for the role. The Respondent did not provide uniforms, IT equipment, or workstations, as would be expected for employees.

• [32] The Applicant submitted that she had no financial outlay regarding work related tools, equipment or products in relation to her support of the NDIS Participant. Everything was either supplied or purchased by the NDIS Participant or her family. Stationary including pens, paper and communication diary, motor vehicle, work desk, cleaning products, everything was provided. On the odd occasion when it was necessary to provide or purchase anything, the Applicant's evidence was that she was always promptly reimbursed.

The ability to work for other clients or businesses with no exclusivity requirements.

• [33] The Respondent submitted that the Applicant was not restricted from working with other clients or businesses. The Applicant submitted that this was true, however the NDIS Participant was her sole client under her ABN.

• [34] She also submitted that lots of people work two jobs these days, especially in this line of work due to issues getting hours. Further, not all employers and businesses have exclusivity requirements. Her contention was that it may be a key indicator of contractor status, but it does not necessarily mean that you are a contractor.

• [35] Her evidence was that her secondary job, where she is employed as an employee, does not have an exclusivity requirement nor do they supply uniforms. She submitted this was also true of the NDIS Participant's previous SIL provider, who also did not supply uniforms. Her evidence was that a lot of disability businesses no longer require staff to wear uniforms. The fact that you are not wearing logo specific clothing does not automatically make you a contractor and not an employee.

• [36] Ms Lindgren submitted that the Applicant working simultaneously for the Respondent and another business demonstrates an understanding of the nature of different employments and contracts, the obligations and the key distinction between employment and contracting.

• [37] The Applicant strongly refuted this, noting that this was mere opinion, belief and interpretation of what Ms Lindgren thinks she may or may not know or have full understanding of.

Freedom over schedule / setting own hours / freedom to take leave when want to

• [38] The 16 November 2023 meeting as outlined earlier, was a discussion about working arrangements to support the NDIS Participant.

• [39] Ms Lindgren's evidence was that the Respondent company had no involvement in controlling or rostering shifts, and the WhatsApp group created by Ms Emmerson was in no way a management communication tool.

• [40] The Applicant's recollection of the 16 November 2023 meeting was that Ms Lindgren was very much involved in the discussion regarding shifts, and she was making suggestions regarding shifts and what each support worker could maybe do at that meeting. The Applicant recalled that it was decided towards the end of the meeting that the shifts could be worked out after the conclusion of the current meeting, due to time constraints and maybe even have another meeting to work out who does what shifts. This meeting never took place. The Applicant submitted this was because Ms Ward took it upon herself to do up a roster.

• [41] Ms Ward's evidence was that following the 16 November 2023 meeting she, Ms Diane Aberdeen, and the Applicant worked together to organize their shifts independently. Her evidence was that they all had complete control over their schedules, selecting shifts based on their own availability, and they communicated directly with one another to swap or cover shifts when necessary. Her evidence was that there was no oversight from the Respondent company.

• [42] The Applicant stated that the roster shown to her had both Ms Ward and Ms Aberdeen's preferred shifts already on it, and the vacancies left were offered to her. The vacancies were not the same as she had been told she could do by Ms Lindgren. The Applicant's evidence was that Ms Ward had given herself most of the shifts when creating a roster and had said that the shifts claimed were hers only. The Applicant submitted that Ms Ward said she was promised whatever hours she wanted by Ms Emmerson, and that she was not to lose any hours as a result of leaving the SIL and coming over to continue to support the NDIS Participant.

• [43] The Applicant contended that she compromised on her first choice and the shift allocations that she wanted. She also submitted that she distinctly recalled saying to Ms Ward at the time that she was not 100% happy with the shifts given, but she guessed that was the way it was.

• [44] The Applicant's evidence was that she felt there was no give or compromise on Ms Ward's part in regard to the shifts. Ms Ward got exactly what she wanted, and everyone else got what was left, this in time became the norm as anyone who was sick or wanted any time off would have to notify Ms Ward. Ms Ward then took whatever shifts she wanted or that didn't conflict with her other job's shifts, before offering the remaining shifts that she could not fill to the NDIS Participant's other support staff.

• [45] Ms Lindgren's evidence was that the workers coordinated their shifts among themselves and then any ongoing shift changes were arranged directly between themselves or via a WhatsApp communication group established by Ms Emmerson.

• [46] Ms Emmerson submitted that once the team was formed, all workers selected their own preferred shifts in consultation with her. She submitted that this gave the workers maximum flexibility and ownership over their schedules. Ms Emmerson's evidence was that the Applicant and the other workers set their own hours in consultation with each other and managed shift swaps and leave coverage, without involvement from the Respondent.

• [47] Ms Lindgren and Ms Ward also submitted that the Applicant had the freedom to accept or decline shifts without consequences, set her own work schedule and that the Applicant operated independently, making her own decisions regarding availability, shifts, and professional responsibilities.

• [48] The Applicant rejected the notion that she had the ability to decline work without consequences as this was listed as one of the concerns in the email she received on 16 December 2024, prior to the termination of her work. Some of the allegations set out in that email included:

2. Reluctance to Participate as a Team Member

• Resistance to filling in for others during holidays or absences, which creates additional strain on the team

• Comments about your uncertainty regarding returning to work after Christmas, which has created instability within the team
• Ongoing issues with specific shifts, such as swimming duties, where the focus has been on individual priorities rather than the needs of the team or [the NDIS participant]

• [49] The Respondent submitted several sets of messages which it contended demonstrated the flexibility the Applicant was able to exert over her own hours. Attached in an annexure labelled "Correspondence showing work flexibility" were two main message threads:

• [50] The first was an exchange where the Applicant notified the group that she had tested positive for COVID-19, and therefore to limit exposure, she would not work her shifts with the NDIS Participant.

• [51] The Applicant submitted that Support Workers were not permitted to come to support the NDIS Participant if they were COVID-19 positive. She was confused as to why this would be submitted as proof that she could pick and choose hours to work.

• [52] The second was a message sent on 31 December 2023 by Ms Ward to the group chat, notifying that the Applicant would be starting work at 9am. The Applicant submitted that this was sent after a phone conversation with Ms Ward. Her evidence was that she rang Ms Ward to inform her that she would be late due to waiting for the police to arrive due to a home invasion of sorts. Her evidence was that people had broken into her home while the family were still in bed, and stole items from bedside tables, including a wallet, car keys, and her vehicle. The Applicant submitted that this is why she needed to start late, not because she chose to.

• [53] The Applicant also submitted that the length and or hours of the shifts were preset. Her evidence was that the shifts were dictated from the beginning, and she was just informed of the times. The Applicant submitted that when the length of a shift changed, she was merely informed of the reduction in hours. She submitted that these shifts were fixed and worked on a two-week rotation with each of the NDIS Participant's support workers. The Applicant's evidence was that she had no say at all in how the shifts on a whole were set.

• [54] The Applicant contended that, to her that did not constitute being able to 'work whenever you want,' that constitutes being able to work when offered a shift that has become available due to a staff member being away.

• [55] She further contended that to fill in or be called into work for whatever reason does not make you a contractor. In her view, to come to work when asked or needed to is something that she was aware of happening in most, if not all businesses, when someone is off for whatever reason. Or, if you swap a shift with a fellow worker that does not make you a contractor because you chose to do that or chose those extra hours. Her evidence was that being able to swap shifts or do extra work is an option to both contractors and employees.

• [56] Ms Emmerson and Ms Lindgren's collective evidence was that there was no employment contract with the Applicant as there was no employment relationship.

• [57] The Applicant submitted that she could not consider how her working relationship performed when contrasted against a contract as she did not have a written or signed contract with the Respondent. She concluded that if she had had a contract, that it would have more than likely been a sham contract due to the true working relationship and true nature of the actual work.

No Superannuation contributions / payment of own tax / no Paid leave entitlements (sick leave, annual leave, etc.)

• [58] The Respondent witnesses all attested to lack of these entitlements. Ms Ward's evidence was that the independent contracting relationship allowed for greater financial independence.

• [59] Ms Lindgren's evidence was that the Applicant received gross payments without PAYG tax deductions, confirming that she was responsible for her own taxation obligations. Further, the Applicant was not included on the company's payroll or issued payslips, as would be required for an employee.

• [60] The Applicant rejected Ms Ward's assertion, stating that it was not true for her. She stated that she found it a hindrance to have to take out her own tax and ultimately, she was earning less working with the NDIS Participant, after having to take out her own tax and super.

• [61] Ms Emmerson's evidence was that there were great negotiated hourly rates that fit in with the NDIS Participant's NDIS support budgets. She also noted that workers had the ability to work independently as contractors, without being tied to an agency's employment structure, restricted hours of work and award legalities.

• [62] Ms Ward seconded this and submitted that signing on to work for the NDIS Participant afforded her better pay rates compared to working under an agency. The Applicant submitted that while that may be the case for Ms Ward, it wasn't for her. There is only a difference of 0.6125 cents between hourly rates.

• [63] Ms Lindgren's evidence was that the Applicant was paid per service provided rather than receiving a fixed salary or wage, this being paid in accordance with NDIS specifications for services per hour. There was no provision for overtime, penalty rates, or annual leave as would apply to an employee. She submitted that payments were made upon submission of invoices rather than through a payroll system.

• [64] The Applicant's evidence was that the length and/or hours of the shifts, and the pay rate were not negotiable and were preset. Her evidence was that she did not negotiate the rate of pay, and instead, to her knowledge, hourly rates were conceived by Ms Lindgren and the NDIS Participant's family.

• [65] An annexure to the Respondent's material is a text message at the commencement of the relationship which shows that while the workers were not paid 'penalties' as expressed, they were paid more on certain days:

• Weekdays $45
• Saturdays $60
• Sundays $70
• Public Holidays $90

• [66] The Applicant submitted that she did not have the ability to do either of these in her support of the NDIS Participant. Her evidence was that she did not have the authority to outsource support work to just anyone or subcontract her support of the NDIS Participant to just anyone.

• [67] The Respondent appeared to argue that the Applicant could refuse shifts and was then required to inform the other workers so that coverage of that shift could be organised. This is opposed to a delegation or subcontracting option where the Applicant was able to source external people to perform any work she was not willing or able to perform.

• [68] The Applicant submitted that if she could not do a shift, Ms Ward was to be notified. Her evidence was that it was Ms Ward who would then organise or find one of the NDIS Participant's support workers to fill the shift. She submitted that, usually though Ms Ward just took on that shift herself. In her submission, as with any job, whether it be an employee or a contractor, it was simply filling a shift for a fellow worker or swapping shifts for a myriad of reasons.

• [69] Ms Lindgren stated that some guidance on general support or NDIS compliance questions/responses were provided by her in her Support Coordinator role, but that was the extent of her and the Respondent company's role in the WhatsApp group. Her evidence was that the Respondent had no control over how the Applicant performed her work, beyond reasonable expectations of safe and professional care for the NDIS Participant.

• [70] Ms Lindgren submitted that the Applicant was not subject to performance management processes or formal disciplinary actions, as would apply to an employee. However, when ongoing performance concerns were identified, to salvage the relationship with the contractor, the client's legal guardian allowed the Applicant to address the concerns and discuss them within a set timeframe. Ms Lindgren's evidence was that the Applicant provided support on her own terms, with client duty of care in mind.

• [71] The Applicant was of the belief that she had very little control in how she performed her duties as a Support Worker to the NDIS Participant. Apart from the usual mandatory requirements and regulations specific to NDIA and NDIS, she submitted that she had constant management from Ms Ward to the point where Ms Ward would answer questions asked by others that had been directed to the Applicant.

• [72] The Applicant's evidence was that Ms Ward would either send personal text messages to her phone, or by WhatsApp, leave messages in the communication book or tell her on arrival what she would have to do that day, what she wanted the Applicant to do or how she should do her work. Anything that staff did in the house would have to be run by Ms Ward first, for her input or approval.

• [73] The Applicant also submitted that she had at times had messages from the NDIS Participant's family directing her regarding how or what she could or should do with the NDIS Participant on or during her shift. The Applicant stated that Ms Lindgren had also voiced her opinion on what was to be done on shifts.

• [74] Ms Lindgren's evidence was that the Respondent did not require attendance at a fixed location. The Applicant refuted this, noting that she was required to attend work at the NDIS Participant's residence.

• [75] Ms Newson accepted that it was Ms Emmerson who originally reached out to her about working with the NDIS participant. I accept that Ms Lindgren explained to Ms Newson the reason why it had been decided, in conjunction with Ms Emmerson, to support the NDIS Participant by engaging independent contractors, because the SIL support arrangement was coming to an end when the NDIS Participant's plan rolled over, and the funding did not support an employment model. I accept an offer was made on the basis that the support workers would be engaged as independent contractors, and an offer of independent contracting work was accepted by Ms Newson on that basis.

• [76] Ms Lindgren could only make the offer to Ms Newson with the authority of Ms Emmerson, and not as Brumbycare in its own right. The November 2023 meeting was to finalise the previously discussed implementation of the independent contracting support model arrangements that Ms Emmerson had decided upon and initially discussed with Ms Newson and the other support workers.

• [77] I am satisfied that Brumbycare never offered employment to Ms Newson and Ms Newson never accepted an offer of employment from Brumbycare. Brumbycare was facilitating the wishes of the legal guardian, Ms Emmerson, on behalf of the NDIS Participant. Brumbycare became a SIL provider because of its arrangement with the NDIS Participant, but Brumbycare did not become an employer of the persons providing support to the NDIS Participant. The persons supporting the NDIS Participant were offered the option to provide their invoices to Brumbycare for payment or to go directly to the initial Plan Manager, Connect Plan Management and who is now changed to PSR Plan Management. The Plan Manager pays the invoices sent to them by Brumbycare. The three Support Workers at the time of the meeting in November 2023 elected to adopt the option of sending their invoices to Brumbycare.

• [78] I am satisfied that Brumbycare did not have the level of control that is consistent with being an employer and was more consistent with that of a coordination role, including of ensuring the payment of invoices. Ms Lindgren provided general guidance but did not have, as a Support Coordinator, the same authority that an employer has. The primary authority rested with Ms Emmerson as the legal guardian. However, it seems that the matters such as which Support Worker would work at which times were resolved as a matter between the Support Workers themselves, even though Ms Newson was clear that she believed the hours she worked were not negotiated with her. It seems clear Brumbycare did not set the hours. It appears Ms Ward drove these arrangements, but she was not acting on behalf of Brumbycare. Had a dispute between the Support Workers been escalated because it could not be resolved, it would have been Ms Emmerson, as the legal guardian that had the final say, not Brumbycare.

• [79] On the basis of the conclusions above, I have determined that the Applicant was not an employee of Brumbycare and was instead an independent contractor. On that basis this application is not within the jurisdiction of the Commission and must be dismissed. An order to this effect will be issued separately and concurrently with this decision. I would add that even if the conclusion that Ms Newson was not an employee is wrong, which I reject, it would still

be the case that she was not an employee of Brumbycare.

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