Fair Work Commission|2025-06-18

Ho Wong v Sal National Pty Ltd [2025] FWC 1701 (18 June 2025)

s.536LU - Application for an unfair termination remedy

Application for an unfair termination remedy - whether applicant was a regulated road transport contractor - whether the person performs all, or a significant majority, of the work to be performed under the services contract - application dismissed.

[1] Mr Wong has made an application to the Fair Work Commission for an unfair termination remedy pursuant to s 536LU of the Fair Work Act 2009 (Cth). SAL National Pty Ltd is the respondent to the application.

[2] Mr Wong is the sole director of Maxma Transportation Pty Ltd. Maxma provides delivery services for a range of customers.

[3] SAL is a lighting wholesaler, with branches across Australia. SAL's head office is located at 40 Biloela Street, Villawood, New South Wales.

[4] In about May 2023, Maxma entered into a Contract with SAL to deliver goods to SAL's customers.

[5] On 1 April 2025, SAL terminated the Contract.

[6] Mr Wong contends that the termination of the Contract was unfair. SAL denies that assertion. SAL also contends that Mr Wong is not protected from unfair termination because he was not, at the time of termination of the Contract, a regulated road transport contractor.

[7] On 13 June 2025, I held a hearing, by video conference, in relation to whether, at the time of the termination of the Contract, Mr Wong was a regulated road transport contractor.

[8] Part 3A-3 of the Act governs the unfair deactivation or unfair termination of regulated workers. The objects of Part 3A-3 include establishing a framework for dealing with unfair deactivation of employee-like workers that balances the needs of regulated businesses and the needs of regulated workers (s 536LC(1) of the Act).

[9] The Commission may order a remedy for unfair termination if it is satisfied that the person was protected from unfair termination and the person has been unfairly terminated (s 536LR(1) of the Act). Section 536LE of the Act governs when a person is protected from unfair termination. It provides:

"536LE When a person is protected from unfair termination

A person is protected from unfair termination at a time if, at that time:

(a) the person is a regulated road transport contractor; and

(b) a road transport business receives services under a services contract (whether or not the business is a party to the services contract) under which the person performs work in the road transport industry; and

(c) the person has been performing work in the road transport industry under a services contract, or a series of services contracts, under which that road transport business receives services for a period of at least 6 months."

[10] SAL's jurisdictional objection concerns paragraph 536LE(a) of the Act.

[11] Paragraph 536LE(a) of the Act requires a point-in-time inquiry. It asks whether, at the time the person is terminated, the "person is a regulated road transport contractor". Section 15Q of the Act defines a regulated road transport contractor in the following terms:

"(1) A person is a regulated road transport contractor if:

(i) an individual who is a party to a services contract in their capacity as an individual (other than as a principal), and performs work under the contract; or

(ii) if a body corporate is a party to a services contract (other than as a principal) - an individual who is a director of the body corporate, or a member of the family of a director of a body corporate, and performs work under the contract; or

(iii) if a trustee of a trust is a party to a services contract in their capacity as a trustee (other than as a principal) - an individual who is a trustee of the same trust and performs work under the contract, whether or not the individual is a party to the contract; or

(iv) if a partner in a partnership is a party to a services contract in their capacity as a partner (other than as a principal) - an individual who is a partner in the same partnership, and performs work under the contract, whether or not the individual is a party to the contract; and

(b) the person performs all, or a significant majority, of the work to be performed under the services contract; and

(c) the person does not perform any work under the services contract as an employee; and

(d) the work performed under the services contract is work in the road transport industry; and

(e) the person is not an employee-like worker who performs work in the road transport industry under the services contract."

[12] The proper construction of paragraph 15Q(1)(b) of the Act is at the heart of the present case.

[13] The plurality in SZTAL v Minister for Immigration and Border Protection[1] succinctly described the contemporary approach to statutory construction:

"The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected."[2](footnotes omitted)

[14] The observations of Gageler J in SZTAL are also important:

"The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and in so far as, it assists in fixing the meaning of the statutory text".

The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from "a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", in which case the choice "turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies".

Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, "the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation" "is in that respect a particular statutory reflection of a general systemic principle"."[3] (footnotes omitted)

[15] Taking a purposive approach to construction is also required by s 15AA of the Acts Interpretation Act 1901 (Cth). It requires that a construction that would promote the purpose or object of the Act is to be preferred to one that would not promote that purpose or object. The purpose or object of the Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the Act, and another does, the latter interpretation is to be preferred.[4] Of course, s 15AA requires one to construe the legislation in the light of its purpose, not to rewrite it.[5]

[16] Paragraph 15Q(1)(b) of the Act requires an understanding of what is meant by the performance of work "under" the services contract.

[17] The expression "under a contract" has been considered in many cases. In Chan v Cresdon Pty Ltd,[6] Mason CJ, Brennan, Deane and McHugh JJ treated a reference to monies "under this lease" as referring to an obligation "created by, in accordance with, pursuant to or under the authority of, the lease". This interpretation was applied in Amaca Pty Ltd (under New South Wales Administered Winding Up) v Messrs A G McGrath (as liquidators of the HIH Group of Companies).[7] In Federal Commissioner of Taxation v Energy Resources of Australia Ltd,[8] Gummow J said (at 53) that the words "under a contract" could be used in a strict sense or a loose sense. As to a strict sense, his Honour said that "in ordinary parlance, to speak of a gain made 'under' an eligible contract suggests that the gain was made in exercise of a right or discharge of an obligation conferred or imposed, as the case may be, by the terms of the eligible contract... gain as a subcontractor would not suffice as a gain under the head contract...". His Honour then said that more loosely "it is enough that the contract is, in a broad sense, a source of the gain made by the party in question". In the same case, Justice Hill said, "The expression 'under a contract' must, of necessity, be construed by reference to the context in which it appears." The phrase "under a contract" in s160U of the Income Tax Assessment Act 1936 was considered by the Full Federal Court in Kiwi Brands Pty Ltd v Commissioner of Taxation.[9] The Court followed in this respect what Wilcox J had decided in Elmslie v Federal Commissioner of Taxation[10] that "'under' usually imports a direct connection between the relevant act and the instrument." These principles were applied in Butterell v The Douglas Group Pty Ltd.[11] In Federal Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd,[12] Gleeson CJ, Gaudron, McHugh and Hayne JJ applied the earlier High Court decision in Chan v Cresdon and held that the words "under a contract", in s 160U(3) of the Income Tax Assessment Act 1936, direct attention to the source of the obligation which was performed by the transfer of assets which constituted the relevant disposal. In Downe v Sydney West Area Health Service (No 2),[13] Justice Rothman was required to construe the statutory definition of "remuneration package" in the Industrial Relations Act (NSW): "'remuneration package' means the total value of monetary remuneration and employment benefits payable or receivable under a contract of employment". His Honour rejected (at [244]) the contention that the word "under" should be given a broad meaning of "in connection with", "with respect to" or "because of". His Honour held (at [270]) that the word "under" in the context of the definition of "remuneration package", and usually in like context, means "pursuant to", "in accordance with" or "by".

[18] Part 3A-3 of the Act was introduced for the purpose of protecting regulated workers against unfair deactivation or unfair termination. A "regulated worker" is defined in s 15G of the Act to mean an employee-like worker or a regulated road transport contractor. The definition of an "employee-like worker" in s 15P of the Act has many similar features to the definition of a "regulated road transport contractor" in s 15Q, with the main difference being that an "employee-like worker" performs work on or by means of a digital labour platform. Both definitions require there to be in existence a "services contract" under which a person performs all, or a significant majority, of the work. The meaning of "services contract" is governed by s 15H of the Act. It relevantly provides:

(1) A services contract is a contract for services:

(a) that relates to the performance of work under the contract by an individual; and

(b) that has the requisite constitutional connection specified in subsection (2) or (3).

Note: Conditions or collateral arrangements relating to a services contract may be taken to be part of the services contract: see subsection (4).

[19] It is apparent from the reference to a "contract for services" in the chapeau to s 15H(1), as distinct from a "contract of service", that a "services contract" within the meaning of s 15H is a contract between a principal and an independent contractor. It does not include a contract between an employer and an employee. This is consistent with the notion that Part 3A-3 of the Act was introduced to provide protections for some classes of independent contractors against the unfair termination of their contract. Employees already have such protections in Part 3-2 of the Act.

[20] The reference to the "performance of work under the contract by an individual" in the definition of "services contract" also emphasises the fact that the protections against unfair deactivation and unfair termination are focused on independent contracting arrangements where "an individual" performs work under the contract. The same point can be made in respect of s 15Q(1)(a) and s 15P(1)(a) where the definitions of regulated road transport contractor and employee-like worker require a person to perform work under the services contract and the person to be a party to the services contract or, if a corporate or other structure is used, to have a close connection to the entity which is a party to the services contract. The intention of these subsections is to capture relevant individuals performing work under a services contract regardless of the type of entity involved.[14] The legislative note to s 338A of the Act also confirms that a regulated worker must be an individual.

[21] Paragraph 34 of the Explanatory Memorandum supports the foregoing analysis:

"Part 16 of Schedule 1 would implement amendments to the FW Act and associated legislation to ensure that certain independent contractors are entitled to greater workplace protections than they are currently. The majority of the amendments are targeted at independent contractors who are either:

employee-like workers performing digital platform work; or

[22] It is apparent from these features of the legislative regime that Part 3A-3 of the Act is not intended to provide protection against the unfair termination of commercial contracts between businesses where the business which has been engaged to perform the work employs multiple employees to do the work. The protections are limited to circumstances where a person, who earns less than the contractor high income threshold, "performs all, or a significant majority, of the work to be performed under the services contract". Owner drivers are one example of the type of regulated worker who may fit the definition of regulated road transport contractor.

[23] Having regard to the relevant statutory context and purpose, I consider that work will be performed "under" a services contract within the meaning of paragraph 15Q(1)(b) of the Act if it is performed pursuant to or in accordance with the terms of the services contract. Adopting a broader or looser construction of the word "under" would be inconsistent with the statutory context and purpose. For example, if it was sufficient for work which had some connection with a services contract to satisfy the requirement of the work being performed "under" the services contract, a wide range of tasks, including, for example, preparing a quarterly business activity statement to be submitted to the Australian Taxation Office, would be included in the assessment of whether the person was performing all, or a significant majority, of the work to be performed under the services contract.

[24] During the term of the Contract, Maxma had a fleet of two vans and eight trucks which it used to provide daily courier services to three to four customers, including SAL. One of the two vans was used to provide daily courier services for SAL.

[25] Maxma employs about 7-10 employees, including Mr Wong's wife, Ms Ka Man Chan, who works mainly in administration and undertakes occasional driver duties. The other employees work for Maxma as drivers.

[26] Mr Wong works in Maxma's business, in his capacity as a director, on a full-time basis. I accept that Mr Wong is not employed by Maxma. He is not paid a wage, but receives director's fees from time to time. Mr Wong is responsible for managing Maxma's employees as well as the relationships with Maxma's customers.

[27] On 22 May 2023, Mr Wong saw an advertisement posted by SAL for the provision of courier services. Mr Wong met with Mr Zheng Feng Lu, known as 'Jeff', Logistics Manager for SAL, to discuss the opportunity advertised by SAL. Both parties accept that no written agreement was entered into between SAL and Maxma, but they agree that an oral Contract was made. I am satisfied on the evidence before the Commission that the main terms of the Contract were as follows:

(a) Maxma would arrange for one of its drivers to attend SAL's premises at about 9am each day from Monday to Friday. The Maxma driver would load their Maxma van with goods to be delivered to SAL's customers, mainly in the western suburbs of Sydney.

(b) Initially, Mr Wong would drive the Maxma van and deliver the goods to SAL's customers, but in the future Maxma's drivers would take over the daily runs. Mr Wong would remain as the main point of contact for Maxma and be the person responsible for delivery of goods by Maxma.

(c) SAL would pay Maxma a daily rate for the delivery of goods to SAL's customers. If overtime was required to be undertaken by Maxma, an hourly rate equivalent to one eighth of the daily rate would be paid.

[28] On 29 May 2023, Mr Wong undertook a trial run for SAL. After completing the trial run, Mr Wong requested a higher daily rate than the daily rate initially offered by SAL. Jeff later contacted Mr Wong and they agreed on a daily rate.

[29] On 13 June 2023, Maxma commenced providing daily (Monday to Friday) courier services from SAL's premises in Villawood to its customers. I accept Mr Wong's evidence that he drove the Maxma van on a daily basis to deliver goods to SAL's customers from 13 June 2023 until his new driver, Chris, commenced work on 29 June 2023.

[30] From 29 June 2023 until February 2024, Chris's primary responsibility was delivering goods on behalf of Maxma for SAL. For the balance of 2024, Maxma's regular drivers for SAL were Aakash, Jack and Andy. For a bit of time in 2024 and most of 2025, prior to the termination of the Contract, Maxma's regular driver for SAL was Sahil. Occasionally, Ms Chan delivered goods for SAL when a driver was not available. In addition, Mr Wong filled in for drivers and delivered goods for SAL, on average, a few times a month (about 10-15 hours a month).

[31] When a Maxma driver attended SAL's premises at about 9am each weekday, SAL provided the driver with the paperwork relevant to their deliveries for the day, including instructions as to the order in which the deliveries were to be made on that day and any special instructions from a customer about, for example, the time of their delivery.

[32] If a Maxma driver had a question about the deliveries assigned to them by SAL, including whether or not they should make a delivery, they would contact Mr Wong for instructions. Mr Wong was responsible for managing those employees in relation to their driving duties for SAL. Mr Wong also communicated with Jeff, about 3-4 times per week, in relation to issues associated with either Maxma's drivers or the deliveries they were allocated by SAL.

[33] Mr Wong gave evidence, which I accept, that because the work Maxma performed for SAL was very stable, it did not take Mr Wong long each week to manage the Contract. Mr Wong's management of the Contract on behalf of Maxma included arranging a replacement vehicle if a van was out of service, arranging a replacement driver if a regular driver was not available, communicating with Maxma's drivers on a regular basis and resolving logistical issues including helping a driver to split their run, and communicating with Jeff about 3-4 times per week, which took about one hour per week.

[34] I accept Mr Wong's evidence that, on average, Maxma's drivers finished their deliveries for SAL at about 3-3:30pm each day.

[35] Ms Chan's administrative duties included preparing regular invoices to SAL in respect of the deliveries undertaken by Maxma's drivers each week for SAL.

[36] There is no dispute between Mr Wong and SAL, and I am satisfied on the evidence before the Commission, that:

(a) the Contract is a services contract within the meaning of s 15H of the Act;

(b) Mr Wong is a person who is a director of Maxma, and performs work under the Contract (s 15Q(1)(a)(ii) of the Act);

(c) Mr Wong does not perform any work under the Contract as an employee (s 15Q(1)(c) of the Act);

(d) the work performed under the Contract is work in the road transport industry (s 15Q(1)(e) of the Act); and

(e) Mr Wong is not an employee-like worker who performs work in the road transport industry under the Contract (s 15Q(1)(e) of the Act).

[37] The issue for determination in the present case is whether, at the time the Contract was terminated, Mr Wong was performing all, or a significant majority, of the work to be performed under the Contract (s 15Q(1)(b) of the Act).

[38] Mr Wong did not perform all the work to be performed under the Contract. Maxma's delivery drivers performed much of the work under the Contract because, for the most part, they delivered the goods to SAL's customers on a daily basis.

[39] I accept that Mr Wong's duties in managing the Contract was work he performed "under" the Contract within the meaning of paragraph 15Q(1)(b) of the Act. That is so because the Contract required Mr Wong to remain as the main point of contact for Maxma and be the person responsible for the delivery of goods by Maxma on behalf of SAL. It follows that Mr Wong performed his work managing the Contract pursuant to or in accordance with the terms of the Contract.

[40] Mr Wong's work in delivering goods for SAL, on average, a few times a month (10-15 hours a month) also constituted the performance of work by Mr Wong "under" the Contract within the meaning of s 15Q(1)(b) of the Act. So much is clear from the fact that the terms of the Contract required Maxma, as its primary obligation, to provide daily delivery services to SAL's customers.

[41] I do not accept Mr Wong's argument that the issue is who delivered, or was responsible for the delivery of, the Contract, not who drove the Maxma van delivering goods for SAL. Section 15Q(1)(b) of the Act focuses on the performance of work under the services contract. It is the performance of work, not who is ultimately responsible for such work, that must be assessed.

[42] It is beyond question that, at the time the Contract was terminated, the majority of the work being performed under the Contract was being performed by the employees of Maxma who attended SAL's premises on a daily basis to collect and deliver SAL's goods to its customers. Those Maxma employees performed such work for about 6-6.5 hours per day (about 9am until about 3-3:30pm), from Monday to Friday each week. That equates to about 30-32.5 hours per week, save for the 2-3 times per month when Mr Wong did the delivery work for SAL. This is to be contrasted with Mr Wong's time spent managing the Contract, which he accepts did not take very long on account of the stable nature of the work, and the 2-3 times, on average, he undertook delivery work for SAL each month, which he estimates took about 10-15 hours per month (about 2.5-3.75 hours per week). Accordingly, I am satisfied on the evidence that, at the time the Contract was terminated, Mr Wong was not performing a significant majority of the work to be performed under the Contract. It follows that the requirement in s 15Q(1)(b) of the Act has not been met and Mr Wong was not a regulated road transport contractor at the time the Contract was terminated.

[43] Mr Wong is not protected from unfair termination because, at the time of the termination of the Contract, he was not a regulated road transport contractor.

[44] Mr Wong's application for an unfair termination remedy is dismissed.

[1] [2017] HCA 34 (Kiefel CJ, Nettle and Gordon JJ)

[2] Ibid at [14]; also see Australian Mines and Metals Association Inc v CFMMEU [2018] FCAFC 223 at [76] - [86]

[4] Huntsman Chemical Company Australia Pty Limited [2019] FWCFB at [12]

[14] Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 at [1092]

Printed by authority of the Commonwealth Government Printer

Interpretation Act 1901

Ho Wong v Sal National Pty Ltd [2025] FWC 1701

At a glance

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Judgment (94 paragraphs)

Ho Wong v Sal National Pty Ltd [2025] FWC 1701 (18 June 2025)

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Legislation Cited (2)

Cases Cited (7)