s.394 - Unfair dismissal

[1] Jason Erdes (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Oncore Consulting Pty Ltd (Respondent). The Applicant seeks financial compensation.

[2] The Respondent objected to the application on the basis that:

1. it was not the Applicant's employer; and
2. it did not dismiss the Applicant.

[3] This decision deals with those objections.

[4] The Respondent sought to be represented by a lawyer. The Respondent submitted there was complexity in relation to the application due to the jurisdictional objection, which raised complex legal considerations. The Applicant did not object to the Respondent being represented by a lawyer.

[5] I considered that complexity did arise in relation to the matter which involved a novel factual matrix in which the Applicant and Respondent provided services to a third party that is not a party to these proceedings. The matter raised complex legal considerations regarding whether the Respondent was the Applicant's employer and if so, whether it dismissed him from his employment. These considerations arose in the context of the recent inclusion of s.15AA in the Act which describes how the Commission is now required to ascertain whether a person is 'employee' or 'employer'. I was satisfied that permitting the Respondent to be represented by a lawyer who could focus on the legal principles and facts relevant to the determination of these questions would support the efficiency of the proceedings. As such I granted permission for the Respondent to be represented by a lawyer pursuant to s.596(2)(a) of the Act on the basis that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[6] After hearing from the parties about how to deal with the matter, a hearing was held to deal with the objections as a threshold matter.

[7] The Applicant appeared to make an application for orders for production by way of email to the Commission on 9 September 2025. While the Applicant had not completed the appropriate form, a conference was held on 11 September 2025 to deal with this given the close proximity of the Applicant's request to the date of the hearing. The Applicant sought a number of categories of documents. The nature of the documents requested was somewhat confusing and during the conference I sought clarification from the Applicant about what he was seeking and what documents had already been provided, noting the Respondent indicated it had produced some of the documents voluntarily. During the conference, I sought the views of the parties on refined orders and neither party objected to the form of the orders I proposed. Following the conference, I made orders for production of documents in the revised form I proposed, on the basis that those documents were apparent relevance to the issues in dispute.

[8] The Applicant gave evidence on his own behalf. The following people gave evidence for the Respondent:

• Damian Bridge, the Respondent's Chief Executive Officer;
• Emilie Bansel, the Respondent's Head of Customer Success.

[9] At the conclusion of the hearing the Respondent requested that the parties provide their closing submissions in writing due to the complexity of the matter. The Applicant agreed and both parties provided final closing submissions in written form.

[10] The facts as agreed between the parties are set out below:

• On 11 March 2024 the Applicant entered into an employment contract with 'ResearchMy Users Pte Ltd' trading as 'f'ileAI' (Bluesheets Contract). This entity was later renamed to Bluesheets Pte Ltd (Bluesheets).
• The Bluesheets Contract stated that the Applicant's remuneration was $100,000.
• The Respondent did not interview the Applicant to determine whether he had the skills for any role at Bluesheets. Rather, the Applicant was interviewed by Bluesheets.
• On 22 March 2024 the Applicant entered into an agreement with the Respondent.
• On 22 March 2024 the Applicant completed the Respondent's work health and safety compliance modules.
• On 25 March 2024 the Applicant commenced providing services to Bluesheets.
• The Respondent remitted superannuation contributions in respect of the Applicant, made all payments regarding wages and termination payments to the Applicant, withheld PAYG from payments made to the Applicant and issued the Applicant's payslips.
• The Respondent did not set the Applicant's hours, review his work or provide performance feedback to the Applicant.
• The Applicant had access to the Respondent's systems for the purposes of completing an initial work health and safety compliance module.
• The Applicant had access to the Respondent's 'OncoreFlex' portal for the purposes of accessing payslips and submitting expense claims and some timesheet functionality.
• The Respondent was not requested to and nor did it approve any applications by the Applicant for leave.
• The Respondent did not provide any equipment to the Applicant.
• The Applicant did not have a Respondent email address.
• The Applicant was not provided with Respondent business cards.
• On 11 April 2025 Bluesheets provided the Applicant with a letter terminating his employment, indicating his last day would be 10 May 2025 (Termination Letter).
• Bluesheets provided a company laptop to the Applicant which was returned to Bluesheets by the Applicant following the termination of his employment.
• The Respondent processed the Applicant's termination pay following termination of his
• employment.

• [11] The Respondent submitted that the question of whether the Respondent or Bluesheets was the Applicant's employer is a difficult question to answer but that the answer does not matter because the Respondent did not issue a letter of termination of employment or otherwise initiate the termination of the Applicant's employment.[1] I return to this below.

• [12] Despite the Respondent's submission that it matters not who the Applicant's employer was for the purpose of the jurisdictional objections,[2] the Respondent also submitted that:

• • an organisation can be an "employer of record" for tax purposes but not meet the test of an "employer" under the FW Act or definition of "employer" at common law;[3]
• • it was not the Applicant's employer for the purposes of the FW Act.[4]

• [13] The Respondent also pointed out that an individual can be a contractor for the purposes of the FW Act and common law but can be deemed an employee for superannuation and taxation purposes and this was because of the extended definitions contained in the taxation and superannuation legislation in Australia.[5]

• [14] The Respondent conceded it was the "employer of record"

for matters of withholding tax and superannuation.[6] However the Respondent submitted that this is a matter of "form"[7] and s.15AA of the FW Act requires the Commission to focus on the practical reality of the relationship and that requires it to prefer "substance" over "form".[8] It submitted that the contractual structure of the Applicant having an employment contract with Bluesheets and no contract with the Respondent other than a consulting agreement for the Respondent to provide payroll services, are matters of "form" that favour the Respondent's position.[9]

• [15] The Respondent submitted that while the question of whether it was the employer for the purposes of the FW Act is a difficult question to answer, the multi-factor test enunciated in Stevens v Broadribb Sawmilling Co Pty Ltd[10] has been restored and the overwhelming majority of all of the factors or indicia favour the relationship, if anything of substance, being one of principal and independent contractor.[11]

• • a critical aspect of being an "employer" is having work required to be carried out by the individual where the nature of and manner of doing the work can be controlled by the "employer";[12]

• typically, under a contract of service the employer has the right to control not just what work is to be done but how it is to be done;
• the hallmark of a contract of service is that an employee, in return for payment of remuneration, is required to perform work for the benefit of his employer and in doing so is liable to obey orders in respect of how the work is performed;

• • the mere fact that work is done for the benefit of another at the direction of the employer does not mean that the work cannot be done in pursuance of a contract of service between the employee and that employer; [13]
• • the ability to control what work the Applicant did and the manner in which it was performed rested with Bluesheets;[14]
• • the relevant factors, in terms of "substance", indicate that Bluesheets is the Applicant's employer and the only factors which indicate in favour of the Respondent being the "employer" are matters of "form", such as the Respondent's name being on the payslips and the Respondent being the "employer of record" for matters of PAYG withholding tax and superannuation.[15]

[17] The Respondent submitted it need to be considered that:

• the Applicant first entered into communications with Bluesheets regarding being employed by Bluesheets and pre and post-employment communications between the Applicant and Bluesheets were quite extensive;
• only then did Bluesheets and the Applicant approach the Respondent to provide payroll and administration services;
• on 19 March 2024 Bluesheets sent an email to the Applicant titled 'Introduction to Oncore consulting for Payroll services - Jason Erdes' and that email specifically states that Bluesheets had engaged the Respondent as its Australian payroll contractor for the purposes of superannuation and salary disbursements;
• the contract between the Applicant and Respondent was only regarding payroll and related administrative matters and there was no contact involving the performance of work, unlike the extensive contact between Bluesheets and the Applicant regarding the performance of work;
• the taking and approval of annual and sick leave was managed by Bluesheets;
• the Applicant was provided with equipment by Bluesheets which he was required to return to Bluesheets;

• • performance management, including feedback and related processes were conducted by Bluesheets.[16]

• [18] The Respondent submitted that the evidence shows that it had no work it could give the Applicant, and no work it could give the Applicant where it could control the manner of the Applicant performing the work.[17] The Respondent submitted that the jurisdiction of the Commission would be undermined if was determined that an "employer of record" with no work to provide and control could be an "employer" under the FW Act because it would enable organisations to set up "shelf companies", call the company and "employer" and defeat any unfair dismissal claims because there would be no work to do for the entity and an application for reinstatement would be defeated before the process began.[18]

[19] As noted above, the Respondent submitted it does not matter who the Applicant's employer was because it did not dismiss him. In this regard the Respondent did not dispute that the Applicant's employment ended but submitted:

• it did not initiate the termination or ending of the Applicant's employment;

• • it was not consulted in relation to the decision by Bluesheets to end the Applicant's employment;[19]

• it did not provide the Applicant with written notice of termination;

• • the Applicant received verbal and written notification of his termination by Bluesheets and not the Respondent[20] and it did not authorise or approve the written letter of termination issued by Bluesheets;[21]
• • all of the Respondent's involvement related to "offboarding" payroll type functions;[22]

• while there was much focus by the Applicant on the email he received from Ms Bansel on 11 April 2025:
• that email was entirely consistent with the Applicant being employed by Bluesheets and Respondent being responsible for payroll services for the benefit of Bluesheets and the Applicant;

• • terminating the payroll services agreement with the Applicant was logical because the Respondent was no longer required to carry out payroll services for the Applicant.[23]

• • the Respondent was his employer, having regard to s.15AA of the Act; and[24]
• • he was dismissed at the initiative of the Respondent as per s.386(1)(a) of the Act on 10 May 2025.[25]

[21] The Applicant submitted he was an employee of the Respondent because:

• he was a labour hire employee;
• he was paid wages by the Respondent;
• the Respondent issued payslips, withheld PAYG and remitted superannuation to his fund and accepted statutory employer burdens;

• • the Respondent controlled his access to its systems OncoreFlex and WorkPro;[26]
• • the Respondent's own email marketing referred to the Applicant as "our valued employee";[27]
• • the Respondent onboarded him and the Applicant completed WorkPro WHS onboarding, provided identification, his tax file number and bank details via the Respondent's systems;[28]
• • the Applicant's Australian Taxation Office income statement for FY25 lists the Respondent as the payer;[29]
• • the Respondent's witnesses accepted that the Applicant's wages were included in the Respondent's payroll tax returns;[30]
• • the Respondent implemented end-of employment steps, including cessation of ordinary wages payroll adjustment;[31]
• • the Respondent arranged professional indemnity, public liability and workers compensation insurance as part of its service;[32]
• • the practical and commercial reality of the relationship is that the Respondent held and exercised the employment levers.[33]

• [22] The Applicant submitted that while Bluesheets provided day to day tasks, this did not mean he was not employed by the Respondent[34] and Bluesheets's day to day direction of sales tasks is orthodox in an employer-of-record/labour hire model.[35] The Applicant submitted that in an 'employer of record context' the decisive factors are who controls:

• engagement status;
• pay/tax/superannuation;
• records; and
• termination processing

• [23] The Applicant submitted the agreement he entered into with the Respondent is ambiguous and that the Commission should give greater weight to the practical operation evidenced by the Respondent's systems and conduct.[37]

[24] The Applicant submitted that the Respondent did not merely "pass through" payments but:

• configured and administered the relationship as a full-time, salary and wages arrangement under its own ABN;
• assumed statutory employer burdens for PAYG withholding, superannuation, payroll tax and insurance;
• controlled onboarding and records; and
• gave formal notice and executed off-boarding

which are things that a 'payroll agent' does not and cannot do. [38]

[25] During the hearing the Applicant said that while the 'host' directed his day to day work, the Respondent held the "legal levers of employment" and was the entity that employed him, paid him and ended his employment and should therefore be considered his employer otherwise any business could avoid unfair dismissal laws by pushing payroll paperwork through a third party, defeating the Act's objective.

• [26] As to whether the Applicant was dismissed by the Respondent, the Applicant submitted that the question is whether the Respondent's acts were the operative cause of termination.[39] The Applicant submitted that his employment ended at the Respondent's initiative as the Respondent:

• • ceased paying ordinary wages after 10 May 2025; [40]
• • issued formal notification;[41]
• • set the end date in its systems[42] and communicated and implemented the end date;[43]
• • effected offboarding;[44]
• • controlled finalisation of pay[45] and tied release of the Applicant's final pay to him returning the laptop;
• • processed end of employment payroll adjustments on 13 June 2025 after the Applicant returned the laptop on 11 June 2025.[46]

[27] Mr Bridge and Ms Bansel gave evidence that:

• • the Respondent's business is payments, contingent workforce management programs and technology solutions;[47]

• employers, recruitment agencies or individuals approach the Respondent to handle the payroll of individual employees and/or contractors;
• the Respondent does not have work or actual tasks for individuals to carry out for the Respondent;

• • the Respondent has no capacity practically to control what work the individuals do.[48]

• the Respondent manages payroll and payments for thousands of individuals;
• contracts are signed with the client and individuals concerned for the Respondent to manage the payroll;
• the Respondent will invoice the client each month, including a fee for carrying out the payroll services, and the client will pay the invoice;
• the Respondent will then process the pay for the individual;

• • this was the process carried out for the Applicant as the Respondent would invoice Bluesheets who would pay each invoice and then the Respondent would handle the payroll for the Applicant.[49]

[29] During cross examination Mr Bridge also indicated that:

• the Respondent's clients ended employment;
• the Respondent acted on the client's behalf;
• the Respondent did not have the ability to redeploy people or on-hire people elsewhere because it did not have the work and this was not its 'business'.

• he signed two documents entitled "Oncore Consulting Agreement" (Oncore Agreements);

• • he was also provided with a document entitled "Employment Agreement" with Bluesheets.[50]

Agreements between the Applicant and the Respondent

[31] The first Oncore Consulting Agreement is dated 21 March 2024 (First Oncore Agreement) and states that it is between the "Consultant", the "Company" and the "Manager" as specified in the Schedule. The First Oncore Agreement goes on to state:

• "The "Consultant" is "a professional person who provides consultancy services in Australia and/or internationally as either an individual or through the services of a Pty Ltd company structure".
• "The "Company" is "a professional service company that provides salary packaging arrangements to such professional persons".
• "The "Manager" is a services business with the ability to administer the personal and financial affairs of an individual Consultant".

[32] The Schedule identifies that the "Consultant" is the Applicant and the "Company" is the Respondent. It does not identify who the "Manager" is but does identify a client name being "Researchmyusers Pte Ltd", i.e. Bluesheets.

[33] During the hearing Mr Bridge indicated that the term "Consultant" is a reference to the Applicant and that the "Company" is a reference to the Respondent. Mr Bridge and Ms Bansel were unsure who the term "Manager" was intended to capture. Ms Bansel did however indicate that the First Oncore Agreement was between the Applicant and Respondent.

[34] Under the heading "Association" the First Oncore Agreement states:

"The Consultant agrees that they shall provide their services to the Company and to the Company's clients in a professional and competent manner, with care, skill and diligence, at such times and locations as may be reasonably required by the Company or the Company's clients, having regard to the nature of the services."

[35] Under the heading "Services and Deductions" the First Oncore Agreement states:

"The Consultant appoints the Manager to provide services from time to time, as requested by the Consultant, in relation to the structure of the Consultants (sic) salary package and assist in the management of their income, expenditure and financial affairs. The Consultant shall be entitled to receive a salary package, an amount determined by deducting from all monies referred to in the schedule including costs, fees, expenses, motor car, superannuation sacrifice and legitimate deductions. Such legitimate deductions are determined by the current ATO rulings associated with salary packaging.

Payments to the Consultant shall be made progressively, from the net amount remaining after deduction and payment of the costs, fees, expenses and legitimate deductions. The Company shall not be obliged to make any payments to or on behalf of the Consultant except from the net amount of monies actually received by the Company in respect of the services performed by the Consultant. The Company reserves the right to reclaim any overpayment made to the Consultant by the Company during the Assignment.

All government charges, taxes and levies payable in Australia or elsewhere in relation to the assignment of the Consultant including, without limitation, payroll taxes, fringe benefit taxes, compulsory workers compensation premiums and compulsory superannuation contributions shall be deducted from the Consultants gross earnings. It is the Consultant's obligation to be aware of any government charges, taxes and levies in accordance with this agreement including any changes to payroll tax legislation".

The Manager may appoint the Company as its agent to provide services in association with the Consultants (sic) income."

[36] Under the heading "Termination" the First Oncore Agreement states:

"The Consultant may terminate this Agreement at any time by giving the Company not less than the notice period specified in the Schedule of the Consultants (sic) intention to terminate. However, if the Company has entered into a contract with the client of the Company for fixed period, and such a contract specifically requires that the Consultant be available to provide the services for that client, the Consultant must not give notice of termination until the contract has expired..."

[37] Under a heading "Post Employment Restrictions" the First Oncore Agreement states:

"For a period of N/A months after the termination or expiry of this Agreement for any reason, the Consultant must not be directly or indirectly employed by or contracted to the Customer of the Client (or any related body corporate of the Customer of the Client as defined in the Corporations Act) unless the Client gives its prior written consent or you are engaged as a Consultant of the Client".

[38] The First Oncore Agreement includes confidentiality and intellectual property provisions and states:

"Subject to the terms of any express agreement between the Consultant and the Client to the contrary, the Consultant acknowledges that the Client owns all right, title and interest to any and all inventions, discoveries or designs created by the Consultant solely or jointly with others during the term of their assignment and arising out of their assignment with the Client or relating to the business or activities of the Client. The obligations of the Consultant contained within this section shall survive the expiration or termination of this Agreement".

[39] The Schedule to the First Oncore Agreement stipulates:

• a monthly contract rate including superannuation;
• a superannuation rate of 11 percent;
• that the required hours are 8 hours per day;
• that the "Contractor" has payroll tax responsibility;
• a commencement date of 25 March 2024 and an end date of 24 March 2025;
• a notice period of two weeks and that termination/notice period conditions will be as "As per Termination Provisions in Researchmyusers Pte Ltd contract";
• a "Basic Service Fee" will be paid by the client;
• "PI, PL & Workcover" will be paid by the client;
• other agreed fees will be paid by the client;
• as a payroll condition, "Payment will be processed upon receipt of funds from the client".

[40] A further Oncore Consulting Agreement (Second Oncore Agreement) is dated 14 March 2025 and is in the same terms as the First Oncore Agreement but includes a revised monthly rate and increased superannuation rate. It is signed by both the 'Consultant', being the Applicant and 'Company', being the Respondent.

[41] During the hearing I asked Mr Bridge who the term "Contractor" was referring to in the Schedule and he was unsure. I then asked who paid payroll tax in respect of payments made to the Applicant and Mr Bridge indicated that the Respondent paid payroll tax. I then asked who the term "client" was referring to in the Schedule and Mr Bridge indicated that the "client" was Bluesheets. However during the hearing Mr Bridge gave evidence that the Respondent paid "PI, PL and Workcover" insurance premiums and not the "client", contrary to what was indicated in the Schedule to the Oncore Agreements.

[42] During the hearing I took the Applicant to his contract with the Respondent and asked him to describe what he understood it to be. The Applicant:

• described it as an arrangement between himself and the Respondent;
• said the Respondent paid him;
• described Bluesheets was the 'host company';
• said the company he was working for was the Respondent;
• said he felt the contract was incorrectly presented regarding whether he was a consultant or employee and that he should have been referred to as an "employee" in the contract.

[43] During cross examination, the Applicant asked Ms Bansel whether the Second Oncore Agreement would still "be applicable" if Bluesheets decided it did not want to use the Respondent anymore. Ms Bansel replied that if Bluesheets terminated the contract with the Respondent, the Respondent's contract with the Applicant would end because the Respondent would no longer be providing services to Bluesheets.

[44] During cross examination, the Applicant also asked Ms Bansel whether there had been instances where the Respondent had redeployed workers and Ms Bansel gave evidence that the Respondent is not a labour hire provider and did not redeploy people into roles.

[45] The Applicant filed a copy of a document entitled 'Contract of Employment' dated 11 March 2024 which is between the Applicant and Bluesheets (Bluesheets Contract). The Bluesheets Contract:

• states that the Applicant's "employment with [Bluesheets] will be deemed to have commenced on 25 March 2024" (clause 2.1);
• indicates that the Applicant was employed as an "Account Executive" and was "required to report to the Head of Revenue (Global)" (clause 3);
• set out a range of employee duties, including duties to:
• "faithfully and diligently perform the duties and responsibilities associated with the Position" (clause 4.1)
• "devote his time, ability and attention in normal working hours, and as reasonably required outside those hours, to the business of" Bluesheets (clause 4.2.1)
• "comply with all reasonable directions given by" Bluesheets (clause 4.2.3);
• "use his best endeavours to promote the interests of" Bluesheets (clause 4.2.4);
• "comply with the applicable policies, procedures, rules, or codes of conduct...generally in effect for employees of" Bluesheets (clause 4.5);
• seeks to prevent the Applicant, except with the prior written consent of Bluesheets, from being "directly or indirectly engaged, concerned or interested in any other business or occupation whatsoever which interferes or conflicts with the duties of [the Applicant's] employment or is adverse or contrary to the interests of Bluesheets or any related corporation" or from sending "Confidential Information to a third party other than in the performance of the" Applicant's duties (clause 4.6);
• provides that the Applicant's normal place of work is Australia but may vary from time to time (clause 5);
• provides that the normal office hours are 9am to 6pm Monday to Friday, inclusive of a one hour lunch break and that the Applicant will work full time, five days per week (clause 6);
• sets out a monthly base salary (clause 7.1) and a performance-based bonus scheme (clause 7.2);
• includes a probationary period (clause 7.3);
• provides that the Applicant will be reimbursed for all reasonable expenses properly and necessarily incurred in the performance of his duties upon production of valid receipts and submission of properly completed expense reports (clause 10);
• sets out an entitlement to 16 days of annual leave per year (clause 11.1) and requires the Applicant to give at least 4 weeks' notice of proposed annual leave which must then be approved (clause 11.2);
• provides that Bluesheets will pay the Applicant for public holidays and that the Applicant may need to work on public holidays (clause 11.3);
• sets out an entitlement to sick leave and notice requirements (clause 12);
• provides that either party may terminate the employment by giving one month notice of termination (clause 14.1) and that Bluesheets may terminate the employment without notice for gross misconduct or a serious breach of the agreement (clause 16);
• sets out a requirement to return company property on termination (clause 14.3);
• provides that the Applicant will not represent himself as being connected with or interested in the business of Bluesheets or its Related Corporations post termination (clause 14.5);
• sets out gardening leave provisions (clause 15);
• provides that intellectual property rights relating to the Applicant's work with Bluesheets will be owned by Bluesheets (clause 19.1);
• includes a requirement for the Applicant to indemnify Bluesheets for loss and damage arising from a breach of certain obligations (clause 20.1);
• sets out a number of employee warranties (clause 21);
• states that each party agrees to submit to the jurisdiction of the courts of Singapore over any claim or matter arising under or in connection with the agreement (clause 25.2).

• • On 20 March 2024 the Respondent and Bluesheets executed a client (payroll) agreement outlining the terms of business.[51]
• • The Respondent did not fund the Applicant's employment costs but rather, Bluesheets funded the Applicant's employment and all associated costs.[52]
• • The Respondent issued an invoice to Bluesheets in advance of each month for managing the payroll payments to the Applicant.[53]

[47] I sought to understand the commercial arrangement with Mr Bridge who clarified that the client pays the Respondent a rate and out of that rate the Respondent deducts and remits PAYG withholding tax and pays professional indemnity insurance, public liability insurance, workers compensation insurance, payroll tax and superannuation. During cross examination Ms Bansel confirmed that the Respondent included the Applicant's wages in its payroll tax return.

• • the Respondent's role was simply to manage the payroll arrangements with respect to the Applicant;[54] and
• • the Respondent had been instructed by Bluesheets to raise an invoice for a flat monthly amount no matter what time was worked by the Applicant.[55]

[49] Agreements between the Respondent and Bluesheets (Client Agreements) were produced to the Commission dated 20 March 2024 and 10 March 2025 which were in the same terms, excepting an adjustment to the contract rate. The Client Agreements:

• require the Respondent to supply the services of the Applicant in accordance with the Schedules to the Client Agreements (clause 2);
• provide that the hours worked by the Applicant will be recorded on a timesheet and approved by an appropriate representative of Bluesheets (clause 3);
• provide that the Respondent will invoice monthly (clause 3);
• require Bluesheets to promptly pay the Respondent upon receipt of the invoice to ensure it receives the funds in time to pay the Applicant on the 30th of each month or next business day (clause 3);
• record Bluesheets' agreement concerning work health and safety responsibilities and require Bluesheets to undertake risk assessments and prepare safe work method statements (clause 4);
• require Bluesheets to report all workplace hazards, incidents and work-related injuries to the Respondent (clause 4);
• record the Respondent's agreement to procure an 'OH&S induction' relevant to the Applicant's role and workplace/site requirements of Bluesheets (clause 4);
• require the Respondent to 'procure that the [Applicant] complies with all lawful directions, supervision, rules, regulations, policy or procedures prescribed by [Bluesheets](or its client) in relation to the conduct of persons providing services' which 'includes but is not limited to cyber security, occupational health and safety, equal opportunity, anti-discrimination, sexual harassment, and privacy legislation requirements' (clause 4);
• require the Respondent to 'procure that the [Applicant] complies with occupational health and safety laws' and 'procure that the [Applicant] report all workplace hazards, incidents, and work related injuries to both [Bluesheets] and the Respondent on the day an event occurs' (clause 4);
• require, on the termination of the Client Agreement, that the Respondent deliver to Bluesheets 'all documents and materials containing information which have been provided to or otherwise come into the possession of [the Respondent] or which the Applicant has prepared under or in connection with services rendered by the [Respondent] to [Bluesheets] or to any clients of [Bluesheets]'(clause 5);
• requires that the Respondent hold and keep current certain insurances (clause 6);
• provides that following the end date in the Schedule, the services of the Applicant may be extended if agreed by both parties in writing (clause 7);
• enables Bluesheets to terminate the contract if it is dissatisfied with the Applicant's conduct or performance or in the case of other specified events (clause 7);
• requires the Respondent to ensure that the [Applicant] immediately ceases work on termination of the agreement (clause 7);
• provides that expenses incurred by the Respondent or Applicant in the course of performing their role under the Agreement can be invoiced to Bluesheets for payment/reimbursement (clause 8);
• includes a Schedule which:
• identifies the Applicant as the 'Nominated Contractor';
• states the 'Role' as being 'Account Executive';
• describes the 'Services' as 'Finance, Accounting & Data Automation Software';
• includes a commencement and end date;
• states a 'Contract Rate', being a specified amount per calendar month plus GST.

Hiring process and commencement of work by the Applicant

[50] During cross examination the Applicant was asked how his contact with Bluesheets came about to which he responded that Bluesheets emailed him.

• Bluesheets' Global Head of Revenue (Yee), emailed the Applicant thanking him for his interest in a position at Bluesheets, advising that he would be moving to an interview process and seeking his availability for that purpose;
• the Applicant responded confirming a time and seeking relevant information so he could prepare;
• Yee responded indicating some of the things they wanted to know about the Applicant.

[52] On 23 February 2024, after this initial interview:

• Yee indicated that they wanted the Applicant to meet others and sought his availability for that purpose;
• the Applicant confirmed his availability.

[53] On 7 March 2024 Yee emailed the Applicant:

• thanking him for the interview;
• stating they were "excited to have [the Applicant] onboard";
• providing a job title and salary details;
• indicating that adjustments would be made to the Applicant's targets for the purposes of his variable income component;
• requesting that the Applicant look over the email and indicate whether he was happy to accept the offer by 11 March 2024;
• stating that once the Applicant accepted the offer in principle, the office manager would share a detailed contract for his review;
• requesting two references.

[54] That same day the Applicant emailed back accepting the offer.

[55] The Applicant then entered into an employment contract with Bluesheets on 11 March 2024.

[56] It is clear from the evidence that it was not the Respondent that sought work for the Applicant as may be expected under an on-hire arrangement. Rather, the Applicant found his own work with Bluesheets and reached agreement with Blueesheets about the terms on which he would be engaged to do that work, as reflected in the Bluesheets Contract. The involvement of the Respondent came later.

[57] In particular, on 19 March 2024 Bluesheets' Office Manager emailed the Applicant stating:

I wanted to inform you that our company has recently engaged Oncore Consulting as our Australia Payroll contractor. They will be handling your Super payments and salary disbursements moving forward..."

and that the designated consultant from the Respondent would be in touch with him.

[58] A further exchange of emails between the Applicant and Bluesheets' Office Manager took place in which:

• the Office Manager sought to clarify the state in which the Applicant worked for payroll tax purposes; and
• the Applicant sought to understand whether his salary was inclusive or exclusive of superannuation, with the Office Manager confirming it was exclusive.

[59] On 21 March 2024 the Applicant and Respondent entered into the First Oncore Agreement.

[60] On 22 March 2024 Bluesheets' People Operations Manager wrote to the Applicant indicating that he would receive account credentials for 'Google Workplace & Slack' and that Yee had the Applicant's first week planned out.

[61] On 24 March 2024 a person with a Bluesheets email address emailed the Applicant:

• stating that the Applicant would be reporting to Yee;
• stating that "onboarding will be mostly online with the broader team";
• providing instructions about the Applicant's first day of work and seeking that the Applicant attend an event in Bondi;
• advising that the Applicant's system logins would be shared the following day.

• [62] The Applicant gave evidence that he commenced working on 25 March 2024 and worked from Sydney for the duration of his engagement.[56]

• [63] Mr Bridge gave evidence that the Respondent did not interview the Applicant to determine whether he had the skills for any role at Bluesheets.[57]

[64] On 28 March 2024 the Respondent sent the Applicant an email which stated it included information about the commencement of the Applicant's "contract role" as well as "timesheet entry, payment timing, payment advice access and salary packaging information". The email:

• provided information about how to access the "Oncore Freedom portal" via "OncoreFlex" which the email indicated provided access to timesheets, payment information, personal details and relevant expense processing;
• asked the Applicant to email timesheets to a Respondent email address by the close of business every Friday;
• indicated that payment would be forwarded to the Respondent by Bluesheets as per the terms of the Applicant's contract and that funds would be paid to the Applicant on the first of the month;
• indicated that access to payment advice would be via the portal;
• indicated that the Oncore Freedom portal provided access to the Respondent's salary packaging service;
• requested that the Applicant complete a "WH&S new worker checklist";
• requested that the Applicant "follow" the Respondent, if he had a LinkedIn profile.

• [65] Mr Bridge gave evidence that the Applicant reported to and carried out services for Bluesheets on a day-to-day basis[58] and that the Applicant never provided services to the Respondent.[59]

• • The Applicant's hours of work, including attendance, were never set nor monitored by the Respondent.[60]
• • The Respondent did not know, and nor did it make enquires about, where the Applicant physically worked each day.[61]
• • The Respondent did not control the types nor manner of work to be done by the Applicant for Bluesheets[62] and nor did it review the the Applicant's work activities.[63]

[67] During cross examination the Applicant was asked what services he provided to Bluesheets and he indicated that his scope involved working as an Account Executive which included sales to businesses looking to expand within Australia and the Asia-pacific region. The Applicant was also asked how those tasks were allocated to which he indicated that there were no set day to day tasks, the job needed to be done, and it was "pretty much go out and do it".

• [68] Ms Bansel gave evidence that the Applicant did not submit any time sheets or tracking to the Respondent.[64]

[69] The Client Agreement appears to impose obligations on the Respondent to:

• supply the services of the Applicant in accordance with the Schedules to the Client Agreements (clause 2);
• 'procure that the [Applicant] complies with all lawful directions, supervision, rules, regulations, policy or procedures prescribed by [Bluesheets] (or its client) in relation to the conduct of persons providing services' which 'includes but is not limited to cyber security, occupational health and safety, equal opportunity, anti-discrimination, sexual harassment, and privacy legislation requirements' (clause 4); and
• ensure that the [Applicant] immediately cease work upon termination of the agreement (clause 7).

[70] The Oncore Agreements also record the Applicant's agreement to provide his services to the Respondent and its clients in a professional and competent manner, with care, skill and diligence, at such times and locations as may be reasonably required by the Respondent or its clients, having regard to the nature of the services.

[71] While the Oncore Agreements suggest that the Respondent had a right to tell the Applicant where and when he was working, the practical reality of the relationship was that the Respondent did not provide any direction to the Applicant concerning the work he carried out. Such direction was provided to him by Bluesheets.

• [72] However as indicated in Stevens v Broadribb Sawmilling Co Pty Ltd.[65], the importance of control lies not so much in its actual exercise, although clearly that it is relevant, as in the right of the employer to exercise it. I consider this further below.

• [73] Mr Bridge gave evidence that the Respondent did not give performance feedback to the Applicant[66] and nor did it conduct any performance evaluations or KPI reviews in relation to the Applicant's work.[67] Ms Bansel also gave evidence that she had no involvement in any performance management process regarding the Applicant.[68]

[74] During cross examination the Applicant indicated that he reported to Yee from Bluesheets. The Applicant was asked how often he would talk to Yee, and he indicated it could be once a week, twice a week or multiple times in a day and that there was no set standard. The Applicant was asked whether performance reviews and feedback were provided by Yee or someone else and the Applicant indicated feedback was provided in part by Yee as well as other parts of the business including human resources and 'C-level' executives from Bluesheets.

Work health and safety and workers' compensation insurance

• [75] As noted above, Mr Bridge gave evidence that Applicant completed a work health and safety compliance module through a third-party system Workpro, which the Respondent provides to contractors and employees engaged directly by the client.[69]

• [76] Mr Bridge gave evidence that the Respondent never carried out any safety or site inspections of the Applicant's workplace.[70]

[77] The Client Agreement required the Respondent to procure an 'OH&S induction' relevant to the Applicant's role and workplace/site requirements of Bluesheets (clause 4). The Applicant does not appear to have actually carried out any work for the Respondent, and it is likely that it required the Applicant to undertake its safety compliance module due to its contractual commitment to Bluesheets.

[78] However during cross examination the Applicant asked Ms Bansel a question to the effect that if a safety incident happened whether the Applicant would be required to report it to the Respondent to which she replied "yes you would report that to [the Respondent] ... and Bluesheets". The Applicant asked Ms Bansel whether the Respondent would report that to the relevant board and "follow the process" to which she replied that there was an internal process to follow for any work, health and safety incidents. It is unclear what that 'internal process' was and it likely that the Respondent, who paid for workers' compensation insurance covering the Applicant, required this as it assumed some responsibility for the Applicant from an insurance standpoint.

[79] It was not in contest that the Respondent provided insurance coverage in respect of professional indemnity and public liability insurance.

Who was responsible for errors in the Applicant's work?

• [80] Mr Bridge gave evidence that Bluesheets (with professional indemnity cover arranged by the Respondent but cost re-charged) bore liability for the Applicant's work errors and any potential professional negligence.[71]

[81] It is somewhat difficult to reconcile the proposition that Bluesheets bore liability for the Applicant's work errors and any potential professional negligence with the fact that the Respondent did take out professional indemnity insurance covering the Applicant's services.

• he was paid wages by the Respondent;
• the Respondent issued payslips, withheld PAYG and remitted superannuation to his fund. A copy of a payslip provided by the Applicant states the Respondent's name as the "Employer's name" on the payslip;

• • he did not invoice under an ABN and did not charge GST. [72]

[83] During cross examination Ms Bansel confirmed the ABN on the Applicant's payslips was the Respondent's ABN.

[84] It was not in contest that the Respondent withheld PAYG withholding tax from payments made to the Applicant which would generally point to payment of wages in an employment context.

[85] However as earlier stated, the facts in this matter are novel. The Oncore Agreements stipulate a monthly contract rate including superannuation, a superannuation rate and state that payment "will be processed upon receipt of funds from the client". This suggests that the payments made to the Applicant by Respondent did not depend on the Applicant completing particular services for the Respondent but instead depended on Bluesheets paying money to the Respondent.

• [86] The commercial arrangement between the Respondent and Bluesheets saw the Respondent paid a flat monthly fee by Bluesheets from which the Respondent paid the Applicant the monthly salary he had agreed with Bluesheets as well as certain employment on costs in respect of the Applicant. While the Respondent had a separate agreement with Bluesheets about what it charged Bluesheets to do this, in practice the amount to be paid to the Applicant by the Respondent had already been agreed between the Applicant and Bluesheets[73] and this informed the contract rate in the Oncore Agreements. This not typical of an employment relationship where it would ordinarily the case that the employer and employee agree on what an employee's wages or salary will be.

[87] The Applicant filed a copy of an email sent to the Respondent when he did not receive his pay for the month of April 2024. The Respondent's Payroll Officer replied stating that they had "processed a funded pay" while she checked on the reason for the delay. While the Respondent had on one occasion "processed a funded pay" to the Applicant, it is apparent this was not its typical practice as payment was made when Bluesheets provided funds to the Respondent. The Oncore Agreements suggest that it was not required to pay the Applicant until it was paid by the client, Bluesheets. Payment contingent on receiving funds from a client, rather than based on time worked or services provided, is not typical of an employment relationship.

[88] During cross examination Ms Bansel confirmed that the Respondent included the Applicant's wages in its payroll tax return.

• [89] The Applicant gave evidence that his superannuation fund transactions show employer contributions from the Respondent during financial year 2024/2025 (FY25). The Applicant filed a copy of his transaction history from his fund which shows the contribution was made by the Respondent. [74]

[90] The Respondent clearly remitted superannuation to the Applicant's fund and identified itself to both the fund and Australian Tax Office for this purpose.

"The Consultant shall be entitled to receive as a salary package, an amount determined by deducting from all monies referred to in the schedule including costs, fees, expenses, motor car, superannuation sacrifice and legitimate deductions. Such legitimate deductions are determined by the current ATO rulings associated with salary packaging".

[92] The salary the Applicant had initially agreed to be paid by Bluesheets in his employment contract was $100,000. In March 2024 when the Applicant entered into contracts with Bluesheets and the Respondent, the superannuation guarantee contribution rate was 11 percent. The First Oncore Agreement stipulates a monthly rate of $9,250 inclusive of superannuation guarantee contributions. This means that under the First Oncore Agreement ,and in respect of a full 12 month period, the Applicant would be paid $100,000 with $11,000 paid as superannuation. However the rate of the superannuation guarantee contribution increased to 11.5% from 1 July 2024. Noting that Bluesheets had agreed to pay the Applicant a salary of $100,000 plus superannuation, if the Respondent had no capacity to decide what the Applicant's salary was and was merely processing payment for Bluesheets, it would have been expected that the Applicant would have continued to receive his agreed salary of $100,000 plus superannuation calculated at the statutory rate.

[93] However the Applicant filed a copy of a communication from the Respondent advising of an increase in the Superannuation Guarantee Contribution rate and which stated:

"This is a courtesy email to advise you that as a result of this change, unless there is a change to your rate, the additional SGC will be deducted and remitted to your nominated fund from your existing rate, meaning that your take-home pay will be marginally reduced.

If your rate will be increasing to cover the additional SCG amount, please ensure that you notify us by the 31st of May 2024 so our team can ensure that we reconfigure your details in our system, ready to go for payments processed from the 1st of July 2024."

[94] A communication of a further increase in the same form was provided on 5 May 2025 addressing a further increase in the rate of superannuation.

[95] While the Applicant's employer would have been required to pay superannuation at the rate of 11.5% from 1 July 2024 it appears that the Respondent did not adjust the Applicant's contract rate and instead deducted the 0.5% from the payment made to him for a period of seven months until the Second Encore Agreement was entered into. While the First Oncore Agreement stipulated a contract rate from which a deduction for superannuation was to be made, the practical reality of the arrangement was that Bluesheets had a requirement to pay the Applicant's salary plus superannuation and it paid the Respondent a fee that was to cover the Applicant's salary, superannuation and other overheads. While the Respondent and Applicant had agreed to a contract rate and the Respondent was to make deductions from the rate for this purpose, the practical reality of the arrangement was that the Respondent would be handling the Applicant's superannuation and salary disbursements and provided Bluesheets paid the Applicant, there was no understanding that the Applicant would experience a reduction in the pay that had been agreed with Bluesheets. The Respondent appears to have sought to make adjustments to deal with the shortfall as indicated in adjustment calculations produced to the Commission.

• [96] Mr Bridge gave evidence that the Applicant did not have access to any of the Respondent's systems or business processes used for employees of the Respondent, other than completing the initial work health and safety compliance module through a third-party system Workpro, which the Respondent provides to contractors and employees engaged directly by the client.[75]

• [97] The Applicant gave evidence that the Respondent onboarded him via a system called 'WorkPro' and provided him with access to an 'OncoreFlex' portal for payslips and expenses.[76]

[98] During cross examination Ms Bansel confirmed:

• between March 2024 and May 2025, the Applicant had access to the Respondent's OncoreFlex portal and that access was later restricted;
• as part of the Respondent's standard offboarding process, upon receipt of confirmation that the Applicant's contract had ended and after final payment is processed, access to the portal is updated.

[99] Having access to a portal for managing expenses and accessing payslips is more typical of an employment relationship than another type of commercial relationship.

Who provided the property and equipment to do the work?

• • The Respondent did not provide any equipment to the Applicant.[77]
• • The Applicant was never provided a Respondent email address.[78]

[101] During cross examination the Applicant gave evidence that he used Bluesheets' emails.

• [102] Mr Bridge gave evidence that the Respondent was not requested to, nor did it approve any applications by the Applicant for sick leave, personal leave or annual leave.[79]

• [103] Ms Bansel also gave evidence that leave requests and leave taken were managed between the Applicant and Bluesheets and neither she nor anyone else of the Respondent had visibility over leave that had been taken.[80]

[104] It is clear that the Respondent did not manage the Applicant's leave arrangements and this is understandable given it did not direct his work. This weighs against a finding of an employment relationship between the Applicant and Respondent.

• [105] Mr Bridge gave evidence that the Applicant was never invited to attend (and nor did he attend) any of the Respondent's staff events or communication web events.[81]

[106] However, the Applicant filed a copy of an email from the Respondent's marketing team on 15 May 2024 which invited the Applicant to an information event, and which stated:

"As our valued employee, you're invited to an exclusive live event brought to you by our Benefits Partner, Flare...Join us on Thursday 23rd of May as we unpack everything you need to know about a novated lease with Flare Cars, one of the most significant employee benefits available to you."

[107] While the communication calls the recipient "our valued employee", it is likely that this was a template email sent to others and I do not consider the label assists in understanding the true nature of the relationship.

[108] During cross examination Mr Bridge was asked what information was recorded in 'Onboarded' and Mr Bridge gave evidence that:

• Onboarded is a piece of onboarding software that enables the Respondent to capture documents.
• The Respondent kept a record of verification documents requested on behalf of the client, such as 'right to work' and other documents depending on the client requirements.

[109] During cross examination Mr Bridge was asked what data was recorded in the Respondent's OncoreFlex portal in respect of the Applicant and Mr Bridge indicated that it recorded contracts, contract time sheets, superannuation payment items, invoice details for clients and any specifics regarding the services the Respondent provided to a client. The Applicant asked whether it recorded his name, address, employment type and pay rate and Mr Bridge indicated that this information would be in Oncore Flex as well as the Applicant's tax file number, date of birth, telephone number, address, personal details and anything the Respondent it needed to fulfil the obligations of its service to ensure people were paid and clients were invoiced. Mr Bridge also gave evidence that 'receipting' was done through OncoreFlex.

[110] The types of records kept by the Respondent are records of the nature that an employer would ordinary keep in respect of their employees. However the reason that the Respondent kept these records needs to be consider in the broader factual context and I return to this below.

• [111] Mr Bridge gave evidence that the Applicant represented on LinkedIn that he was employed by FileAI.[82] Attached to Mr Bridge's statement was a screenshot of what appears to be a summary of his career history, and which states he was employed as an Account Executive at FileAI between March 2024 and June 2025. During the hearing the Applicant clarified that FileAI is Bluesheets.

• [112] Mr Bridge gave evidence that the Applicant did not have authority to represent to any customer or colleague that he was employed by the Respondent.[83]

• [113] The Applicant gave evidence that his ATO Income Statement for FY25 records the Respondent as the payer with PAYG withholding and superannuation liability.[84] A copy of the Income Statement was provided confirming this.

[114] The Applicant also gave evidence that his Superannuation fund transactions show employer contributions from the Respondent during financial year 2024/2025 (FY25). The Applicant filed a copy of his transaction history from his fund which shows the contribution was made by the Respondent.

Events leading up to the termination of the Applicant's employment/engagement

• [115] In his application the Applicant said that in January 2025 'management' unilaterally broadened his role scope, without any contract amendment or compensation change, to help build an SDR function.[85] During cross examination the Applicant clarified that the reference to 'management' was intended as a reference to Bluesheets' management.

[116] In his application, the Applicant said that in his final one on one on 8 April 2025:

• 'CRO Yee' stated he was "being stretched too thin" trying to hit AE quota while leading SDRs;
• CRO Yee removed his ARR target so he could focus solely on SDR-Lead duties;
• at that point his probationary review period had three weeks to go.

[117] The Applicant also said that a CRM activity feed visible to all users contained an entry dated 7 April 2025 scheduling his off boarding for 10 May 2025.

The termination of the Applicant's employment/engagement

[118] In his application the Applicant indicated that on 11 April 2025 he was told his employment would end on 10 May 2025 due to a "combination and accumulation of" of the following:

• failure to meet AE, SDR and SDR-Lead targets;
• "lack of proactiveness and poor communication";
• "slow execution" and an "inability to drive cross-functional efforts";
• not "setting the right standard" for the SDR team";
• under performance against an SDR-Lead probationary review, notwithstanding his original probationary period had passed.

[119] During cross examination the Applicant said the initial termination discussion was held with Yee from Bluesheets.

[120] The also Applicant said he asked to review the metrics supporting dismissal but management declined a collaborative review and later emailed selective figures.

• payment of his ordinary wages ceased on 10 May 2025;
• the Respondent communicated and implemented the end-of-employment handling;
• the Respondent tied the release of his final pay to the return of the laptop;
• he returned the laptop by courier on 11 June 2025;
• on 13 June 2025, the Respondent made two deposits into the Applicant's bank account described as "Direct Credit Oncore Consultin - Salary Adj";

• • after his employment ended his access to the OncoreFlex portal was restricted.[86]

• [122] Ms Bansel gave evidence that on 11 April 2025 the Respondent received an email from Bluesheets, a copy of which was attached to her statement, advising that the Applicant's engagement had been terminated that day, with the Applicant's last working day to be 10 May 2025.[87] The email stated:

Hope this email finds you well. I am writing to formally inform you that Jason's employment has been terminated today, with his official last working day being 10 May 2025. We kindly request your assistance in preparing the necessary offboarding procedures to ensure a smooth transition.

Furthermore, regarding the payroll deposit for Jason if any, we would like to ask if it is possible to refund the deposit via bank transfer?

[123] Ms Bansel gave evidence that the same day, on 11 April 2025, she emailed the Applicant:

• to confirm that the Respondent had received the notice of termination from Bluesheets and that the Respondent would update his contract end date; and

• • to advise that the Respondent would continue to raise invoices and process payment until everything had been finalised.[88]

[124] Ms Bansel attached a copy of an email dated 11 April 2025 to her statement which said:

Today we've received notification in writing from Researchmyusers Pty Ltd regarding the early conclusion of your contract. They've let us know that they've communicated this with you already, and that you'll be finishing up on the 10th of May 2025.

Please accept this email as formal notification from Oncore of your updated contract end date.

We'll continue to write invoices and process payments to you until everything is finalised, and if there's anything else that we can do to provide support then please let us know".[89]

[125] During cross examination the Applicant indicated that he did not dispute his dismissal with Ms Bansel when he received her email.

[126] During cross examination it was put to Ms Bansel that the email ended his employment with the Respondent and in response Ms Bansel indicated that the email served to provide confirmation that the contract had ended in the Respondent's systems. Ms Bansel said the employment relationship with Bluesheets ended, Bluesheets instructed the Respondent to finalise the Applicant's contract so it could finalise its payroll obligations which it was contracted to provide. Ms Bansel said this initiated a sequence of updating the contract end date in the Respondent's systems, raising a client invoice to Bluesheets so they could pay an invoice so that payment could be made to the Applicant and then the system would be updated.

• she went about working with Bluesheets via email to confirm what the Applicant's final payment would be, as he was finishing mid-month and the Respondent had only been provided with flat monthly payment details from Bluesheets;
• she had communication with the Applicant as they worked through payment timings and kept him updated on pending payment information and details from Bluesheets;
• the question of annual leave was brought up, and she had communications with Bluesheets and the Applicant about potential outstanding leave;

• • it was difficult to navigate potential payment calculations as neither the Applicant nor Bluesheets were able to produce written evidence (in the form of a timesheet) of leave taken or owing.[90]

• [128] Ms Bansel gave evidence that on 7 June 2025 she was provided with a copy of the letter of termination from Bluesheets that Bluesheets had given to the Applicant.[91] A copy of that letter (Termination Letter) was attached to Ms Bansel's statement,[92] was dated 11 April and said:

"We regret to inform you that your Contract of Employment with BLUESHEETS PTY. LTD. (the "Company") Is hereby terminated with effect from 11 April 2025. In accordance with the Contract of Employment, you shall be placed on gardening leave until your last day of service with the Company on 10 May 2025.

You are required to immediately return all Company property by your last day of service, lookout of and not attempt to re-access all Company accounts/systems. Any non-compliance is subject to penalties which you will be liable for. As you continue to be employed during the period of your notice, please remain contactable for work purposes.

Your basic salary will be computed up to 10 May 2025, less any deductions or withholding required or permitted by applicable laws. Olio outstanding claims submitted prior to date will go through the required approval process and once approved, will be credited to your bank account.

As outlined in your Contract of Employment, we would like to remind you of your ongoing obligation to maintain confidentiality with respect to any proprietary information, intellectual property, and any other confidential details related to the Company. This includes, but is not limited to, information about our clients, business plans, financial details, and internal operations. Your obligation to preserve confidentiality continues even after the termination of your employment.

• [129] Mr Bridge gave evidence that the Respondent did not terminate the Applicant's employment, was not consulted in relation to the decision and neither Mr Bridge nor anyone with authority approved the termination of the Applicant's employment.[93] Similarly Ms Bansel also said she was not consulted about the proposed termination of the Applicant's employment and did not approve the issuing of the Termination Letter.[94]

[130] During cross examination it was put to Mr Bridge that the Respondent terminated the Applicant's employment however Mr Bridge responded that the Respondent did not terminate the employment but acted on behalf of Bluesheets to process payment.

[131] During cross examination it was put to Ms Bansel that the Respondent ran the 'final payment and collection of device process' and tied final payment to the Applicant returning his laptop. Ms Bansel did not agree and gave evidence that:

• Bluesheets instructed the Respondent that they would not process payment for the final invoice the Respondent had raised until the laptop had been returned;
• no payment was held by the Respondent that was conditional on the return of the laptop;
• the payment to be made to the Respondent was withheld by Bluesheets.

[132] During cross examination Ms Bansel further clarified that the way in which the relationship worked was that:

• the Respondent raised an invoice to Bluesheets for the Applicant's services;
• Bluesheets would pay the invoice;
• the Respondent would immediately release payment to the Applicant once the Respondent received payment;
• Bluesheets would not pay an invoice raised to the Respondent until the laptop had been returned;
• the Respondent was not holding funds pending return of the laptop;
• had Bluesheets chosen to pay the invoice prior to the laptop being returned, funds would have been released to the Applicant.

Was the Respondent the Applicant's employer and did it dismiss him?

• [133] Section 394(1) of the FW Act provides that a person who has been dismissed may apply to the Commission for an order under Division 4 granting a remedy. A person cannot be found to have been unfairly dismissed unless they have been dismissed.[95]

[134] Section 386(1) provides that a person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer,

• [135] Section 394(1) of the FW Act provides that a person who has been dismissed may apply to the Commission for an order under Division 4 granting a remedy. A person cannot be found to have been unfairly dismissed unless they have been dismissed.[96]

(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'.

**'**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:

(b) Part 3-1, to the extent that Part 3-1 applies only because of the operation of section 30G or 30R''.

[138] The Applicant has made the application against the Respondent, and it is the only other party to the application. As noted above, the Respondent's position is that it was not the Applicant's employer and it did not dismiss him.

• [139] Section 15AA of the FW Act was introduced by the Fair Work Legislation Amendment Act (Closing Loopholes No.2) Act 2024. In respect of this amendment the Explanatory Memorandum indicated that prior to the High Court's decisions in CFMMEU v Personnel Contracting Pty Ltd[97]and ZG Operations Australia Pty Ltd v Jamsek,[98] it was broadly believed that the correct approach was to apply the 'multi-factorial' test and that the intention of the amendments was to facilitate a return to the 'multi-factorial' test previously applied by the courts and tribunals in characterising a relationship as one of employment or of principal and contractor.[99] As noted by the Respondent a multi-factorial test was applied in Stevens v Broadribb Sawmilling Co Pty Ltd.[100] The following principles arise from that decision:

• "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".
• The importance of control lies not so much in its actual exercise, although clearly that it is relevant, as in the right of the employer to exercise it.
• The "existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment" and it is one of a number of indicia which must be considered.

• • "Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation or work by the putative employee".[101]

[140] The uncontested evidence suggests an employment relationship between Bluesheets and the Applicant. Bluesheets:

• hired the Applicant and provided him with an employment contract that clearly describes:
• employee duties;
• required working hours;
• salary;
• an entitlement to reimbursement for work related expenses; and
• leave entitlements;
• provided him with a Bluesheets email address and laptop for his work;
• provided him with performance feedback;
• determined his role scope and duties;
• terminated the relationship, citing performance reasons.

[141] However, whether Bluesheets is the Applicant's employer is not the question before the Commission. Rather, I need to decide whether the Respondent is the Applicant's employer within the ordinary meaning of that expression which is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the Respondent and Applicant. In doing so, I need to consider the totality of the relationship having regard 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. As noted above, a novel factual matrix exists in undertaking this task.

[142] The terms of the written contract between the Applicant and Respondent are set out in the First Oncore Agreement and Second Oncore Agreement (Oncore Agreements). The terms suggest the agreement is between the Applicant, Respondent and a "Manager" which is described as "a services business with the ability to administer the personal and financial affairs of" the Applicant. The Oncore Agreements are only signed by the Applicant and Respondent, and it is unclear who the "Manager" is and whether there is a "Manager" that has any relationship with the parties at all.

[143] Considered together, the definitions of "Consultant" and "The Company" suggest the relationship is one in which the Respondent is providing a salary service to the Applicant as a "professional person who provides consultancy services". However, the text under the heading "Association" contradicts this and suggests that the Applicant is required to "provide his services to the Company and to the Company's client", rather than the Respondent providing services to the Applicant. The Oncore Agreements also set out an obligation for the Applicant to provide these services:

• "in a professional and competent manner, with care, skill and diligence" which could reasonably be expected of either an employee or contractor; as well as
• "at such times and locations as may be reasonably required by the Company or the Company's clients, having regard to the nature of the services". This requirement is indicative of the Respondent having control over when and where the Applicant is required to work.

[144] In this regard the Oncore Agreements are confusing and are of little assistance in understanding the substance and true nature of the relationship between the Applicant and Respondent.

[145] When considering the real substance, practical reality and true nature of the relationship, there are a number of factors that point toward an employment relationship including:

• the Respondent withheld PAYG withholding tax from payments made to the Applicant, and remitted PAYG withholding tax to the Australian Taxation Office;
• the Respondent paid and arranged for professional indemnity insurance, public liability insurance and workers compensation insurance coverage in respect of the Applicant;
• the Respondent paid payroll tax and included payments made to the Applicant for this purpose;
• the Respondent remitted superannuation to the Applicant's superannuation fund and was named as;
• the Respondent provided payslips to the Applicant, which identified the Respondent as the Applicant's employer;
• the Respondent identified itself as the Applicant's employer in respect of payments remitted to the Australian Taxation Office;
• the Respondent provided the Applicant with access to its systems for the purposes of accessing payslips and managing expense claims.

[146] When considering the real substance, practical reality and true nature of the relationship, the following factors suggest the relationship may not be one of employer and employee:

• despite the indication in the Oncore Agreements that the Applicant work 8 hours per day, in practice the Respondent did not set the Applicant's hours of work;
• the Respondent did not direct the Applicant's work activities and tasks;
• the Respondent did not review the Applicant's work or provide performance feedback to him;
• the Respondent did not approve the Applicant's leave;
• the Respondent did not provide any equipment to the Applicant to enable him to do his work and it was Bluesheets who supplied the Applicant with a laptop;
• the Applicant did not have an email address issued by the Respondent and used a Bluesheets email address for his work.

[147] While it is often the case that in an on-hire arrangement a host will take on many of the responsibilities outlined above, the relationship between the Applicant and Respondent is not typical of an on-hire arrangement in which a business hires an employee and then provides their services to other businesses. Instead, the relationship between the Applicant and Respondent came about in the following way:

• Bluesheets emailed the Applicant approaching him about a work opportunity;
• the Applicant expressed an interest in that position with Bluesheets and was interviewed by Bluesheets;
• on 7 March 2024 Bluesheets made an in principle offer of employment that was accepted by the Applicant;
• on 11 March 2024 the Applicant entered into an employment contract with Bluesheets;
• on 19 March 2024 Bluesheets' Office Manager emailed the Applicant stating:

"I wanted to inform you that our company has recently engaged Oncore Consulting as our Australia Payroll contractor. They will be handling your Super payments and salary disbursements moving forward..."

• on 20 March 2024 the Respondent entered into a commercial contract with Bluesheets;
• on 21 March 2024 the Applicant entered into the First Oncore Agreement with the Respondent.

[148] While some caution in considering pre-contractual conduct is generally warranted, as noted above the written contracts in this case are of limited assistance. How the relationship came about and ended is relevant context in understanding the real substance, practical reality and true nature of the relationship. In this regard the evidence establishes the Applicant was employed by Bluesheets who then entered into a contract with the Respondent to manage payments to and in respect of the Applicant under a commercial arrangement. The Applicant then entered into a written contract with the Respondent. In circumstances where the Respondent did not source or provide work for the Applicant and already had an employment contract with Bluesheets in respect of the work he was to perform, it is difficult to comprehend what benefits the Applicant was to derive from the relationship with the Respondent or why a contract between the Applicant and Respondent was required at all. The facts in this regard are most unusual. While the written terms of the contract are confusing and there are factors that weigh both in favour of and against a finding of an employment relationship, there are factors that weigh strongly against a finding of an employment relationship. In particular:

• unlike what might be typical in a labour hire arrangement, the Respondent did not source work for the Applicant. The Applicant secured work with Bluesheets himself;
• the Respondent did not decide upon the scope of the work to be performed. This was arranged between the Applicant and Bluesheets;
• while the terms of the Oncore Contracts are confusing, the Respondent did not in practice determine what the Applicant was to be paid in respect of his work. Again, this was a matter agreed between the Applicant and Bluesheets;
• the Respondent did not in practice direct the Applicant's work activities or when and where he worked. Rather, the Applicant provided his services to Bluesheets and the Respondent did not exercise control over him in any practical sense. While there are some contractual provisions that may suggest some right of control, as I have noted the contracts are confusing and are of little assistance in understanding the real substance, practical realty and true nature of the relationship;
• the Respondent would generally pay the Applicant when it had received the funds from Bluesheets. This is consistent with the Respondent with giving effect to the arrangement communicated to the Applicant by Bluesheets on 19 March 2024, after he had accepted employment with Bluesheets, that the Respondent was its "Australia payroll contractor" and would be handling the Applicant's superannuation payments and salary disbursements moving forward.

[149] Having considered the totality of the relationship having regard 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, I find that the real substance, practical reality and true nature of the relationship between the Respondent and Applicant is not one of employment and the Respondent was not the Applicant's employer. While the Respondent's email of 11 April 2025 was clumsy in its drafting, it was simply putting the Applicant on notice that the arrangement it had to process payments would end as Bluesheets had communicated that the Applicant's employment with Bluesheets would be "finishing up" on 10 May 2025 and that it would continue to "write invoices and process payments" until the arrangement with Bluesheets was finalised. The Respondent was not his employer and did not 'dismiss' him within the meaning of s.386(1) of the Act.

[1] Respondent's Outline of Submissions at [7].

[2] Respondent's Outline of Submissions at [7].

[3] Respondent's Outline of Submissions at [15].

[4] Respondent's Outline of Submissions at [15].

[5] Respondent's Closing Submissions at [7].

[6] Respondent's Closing Submissions at [3].

[7] Respondent's Closing Submissions at [3].

[8] Respondent's Closing Submissions at [3].

[9] Respondent's Closing Submissions at [3].

[10] (1986) 160 CLR 16.

[11] Respondent's Closing Submissions at [4].

[12] Respondent's Outline of Submissions at [17], Respondent's Closing Submissions at [3].

[13] Respondent's Outline of Submissions at [18].

[14] Respondent's Outline of Submissions at [19].

[15] Respondent's Outline of Submissions at [23].

[16] Respondent's Closing Submissions at [5].

[17] Respondent's Outline of Submissions at [3].

[18] Respondent's Closing Submissions at [3].

[19] Respondent's Outline of Submissions at [11].

[20] Respondent's Closing Submissions at [5].

[21] Respondent's Outline of Submissions at [13].

[22] Respondent's Closing Submissions at [11].

[23] Respondent's Closing Submissions at [5].

[24] Applicant's Closing Submissions at [8].

[25] Applicant's Closing Submissions at [9].

[26] Applicant's Closing Submissions at [14].

[27] Applicant's Closing Submissions at [16];

[28] Applicant's Closing Submissions at [14].

[29] Applicant's Closing Submissions at [11].

[30] Applicant's Closing Submissions at [12].

[31] Applicant's Outline of argument: objections, section 6.

[32] Applicant's Closing Submissions at [13].

[33] Applicant's Closing Submissions at [5].

[34] Applicant's Closing Submissions at [7].

[35] Applicant's Closing Submissions at [24].

[36] Applicant's Closing Submissions at [7].

[37] Applicant's Closing Submissions at [29].

[38] Applicant's Closing Submissions at [20].

[39] Applicant's Closing Submissions at [23].

[40] Applicant's Outline of argument: objections, section 5.

[41] Applicant's Closing Submissions at [23].

[42] Applicant's Closing Submissions at [23].

[43] Applicant's Outline of argument: objections, section 5.

[44] Applicant's Closing Submissions at [23].

[45] Applicant's Closing Submissions at [23].

[46] Applicant's Outline of argument: objections, section 5.

[47] Bridge Statement at [4]; Bansel Statement at [4].

[48] Bridge Statement at [5]; Bansel Statement at [5].

[50] Applicant's Statement of evidence.

[56] Applicant's Statement of evidence.

[65] (1986) 160 CLR 16.

[72] Applicant's Statement of evidence.

[74] Applicant's Statement of evidence.

[76] Applicant's Statement of evidence.

[84] Applicant's Statement of evidence.

[85] Applicant's Application, response to q.2.1.

[86] Applicant's Statement of evidence.

[87] Bansel Statement at [8], Annexure A.

[95] Fair Work Act 2009 (Cth), s.385(a).

[96] Fair Work Act 2009 (Cth), s.385(a).

[97] [2022] HCA 1.

[98] [2022] HCA 2.

[99] Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 at [32] - [33.]

[100] (1986) 160 CLR 16.

[101] (1986) 160 CLR 16.

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