//
[2020] FWC 4782
General information, not legal advice.
Fair Work Commission
2020-09-08
Original judgment source is linked above.
[2020] FWC 4782 [Note: An appeal pursuant to s.604 (C2020/7305) was lodged against this decision.]
s.394 - Unfair dismissal
Application for unfair dismissal - Jurisdictional objection - Whether applicant was employee or contractor.
[1] Ms Lisa Peel has made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Aster Home Nursing Service Pty Ltd (Aster).
[2] In the Form F3 - Employer Response to unfair dismissal application, Aster objected to the application on the basis Ms Peel was not an employee, but rather an independent contractor under the Act.
[3] The matter did not settle at conciliation and was allocated to me. I issued directions for the filing of material, and the matter was listed for Hearing of the jurisdictional objection by telephone on 23 June 2020. Evidence in the matter was heard on both 23 and 24 June 2020. Ms Peel represented herself with the assistance of her support person Mr Michael Brown and Mr Mark Curran of DWF (Australia) was granted leave to represent Aster.
[4] Ms Peel filed submissions and a witness statement dated 19 June 2020. The Respondent also filed submissions and two witness statements of Mr Andrew Ning (Director).
[5] On Thursday 18 June, Aster sought to file a further witness statement of Mr Mark William Molesworth in response to the material filed by Ms Peel. Ms Peel objected to the late admission of the statement on the basis the document was some 50 pages in length and would prejudice her case. I ultimately decided to allow the statement of Mr Molesworth into evidence[1].
[6] Section 382 of the Fair Work Act outlines the requirements for a person to be protected from unfair dismissal:
"382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold."
[7] The Full Bench decision in Kimber v Western Auger Drilling Pty Ltd[2] provides the factors/indicia this Commission needs to consider in assessing whether an Applicant was an employee or an independent contractor during the relevant period of employment. The Full Bench endorsed the general approach to distinguishing employees and independent contractors provided in Jiang Shen Cai T/A French Accent v Michael Anthony Do Rozario which follows:
"(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other's business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.
(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.
(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.
(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the particular context. For ease of reference the following is a list of indicia identified in the authorities:
Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of an independent contract. While control of this sort is a significant factor it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee.
"The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions.""[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract."
Whether the worker performs work for others (or has a genuine and practical entitlement to do so).
The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, working for others (or the genuine and practical entitlement to do so) suggests an independent contract.
Whether the worker has a separate place of work and or advertises his or her services to the world at large.
Whether the worker provides and maintains significant tools or equipment.
Where the worker's investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.
Whether the work can be delegated or subcontracted.
If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.
Whether the putative employer has the right to suspend or dismiss the person engaged.
Whether the putative employer presents the worker to the world at large as an emanation of the business.
Typically, this will arise because the worker is required to wear the livery of the putative employer.
Whether income tax is deducted from remuneration paid to the worker.
Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.
Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.
Whether the worker is provided with paid holidays or sick leave.
Whether the work involves a profession, trade or distinct calling on the part of the person engaged.
Such persons tend to be engaged as independent contractors rather than as employees.
Whether the worker creates goodwill or saleable assets in the course of his or her work.
Whether the worker spends a significant portion of his remuneration on business expenses.
It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.
(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other.
(6) If the result is still uncertain then the determination should be guided by "matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability" including the "notions" referred to in paragraphs [41] and [42] of Hollis v Vabu.
[8] The Full Bench in Kimber further provided;
"The courts have developed a multi-factorial approach, in which there is no single decisive criterion to determine whether a contractual relationship is one of employment or one subject to a contract for services. This approach requires the consideration of the various indicia as summarised in French Accent set out above. It is also clear from the decision of the Full Bench of the Federal Court in ACE Insurance Limited v Trifunovski[3] and others, that no one single criterion will necessarily be determinative and that each matter will turn upon the particular circumstances of the case, with the decision maker weighing all the relevant factors."[4]
[9] The ultimate question for the Commission as stated in Abdalla v Viewdaze Pty Ltd t/a Malta Travel[5] and endorsed in French Accent;
"... will always be whether the worker is the servant of another in that other's business, or whether the worker carries on a trade or business of his or her own behalf: that is whether, viewed as a practical matter, the punitive worker could be said to be conducting a business of his or her own. This question is answered by considering the terms of the contract and the totality of the relationship."
[10] Ms Peel said all contracts were drafted and prepared by Aster. She said she never participated in any negotiations on rates of pay or conditions contained therein. Ms Peel submitted that she was of the believe that if she did not sign it, she would not have a job.
Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like.
[11] Mr Ning gave evidence that on 8 August 2019, Aster Home Nursing Services (Qld) Pty Ltd became the sole shareholder of Aster Home Nursing Service Pty Ltd as a result of a share sale. He said Aster Home Nursing Services (Queensland) Pty Ltd is now controlled by himself and his wife Wei Chen.
[12] Mr Ning said Aster is a small contracting company with fluctuating seasonal work which is highly dependent upon securing patients with nursing needs. He said all workers of Aster are aware of and conscious of the fluctuating work level and adapt to changing demand levels.
[13] During cross-examination it was put to Mr Ning that the business was not a small contracting company with fluctuating seasonal work, as the business has been going for 23 years and workers such as Ms Peel have had regular work over six and a half years. Mr Ning disagreed and said over that time the work has gone up and down depending on patients' needs.
[14] It was put to Mr Ning that Ms Peel had regular patients seen on an ongoing basis over six and a half years and therefore would not be aware that there was a need to adapt to fluctuating work. Mr Ning agreed Ms Peel had regular and ongoing patients.
[15] Mr Ning said most of Aster's revenue is through arrangements with health and other organisations to provide nursing services to private patients. He said he has never met any of the patients as Aster's care workers, such as Ms Peel, have the direct contact with the patients.
[16] Mr Ning said Ms Peel has provided services to Aster since on or around 25 November 2013. He referred to three contracting agreements which Ms Peel signed with Aster, that were annexed to his statement.[6] Mr Ning said the services Ms Peel would provide to patients included both clinical and personal nursing care services.
[17] Aster submitted it is apparent that it had no control and did not seek to exercise any control over how the services were provided at patient's homes. It also submitted that based on Mr Ning's evidence it was up to Ms Peel when she provided the services and how frequently the services were provided.
[18] Mr Ning said Aster had no control over appointment times and allocations of sessions with patients. Aster did not schedule when Ms Peel had to attend to provide services to patients. He said it was up to Ms Peel when she saw the patients and how often. At one point in his evidence Mr Ning said that patients sometimes have preferences for which nurse sees them and it appeared from his evidence that was something that Aster arranged. Ms Peel disputed Mr Ning's claim that he was not involved in scheduling of patients claiming he was quite involved in it.
[19] Mr Ning said Aster did not exercise any control over how the services were provided by Ms Peel to patients in their own home. He said Aster relied upon the professional expertise of Ms Peel as a Registered Nurse to provide the services appropriately.
[20] In relation to Exhibit 7 of Ms Peel's Statement where Ms Peel submitted the text message was an example of Aster providing instructions to visit patients at a particular time, Mr Ning said this simply passed on updated information or requests from the patient's daughter with a request to increase the times the services were provided. Mr Ning said normally, Aster did not seek to exert control over when care workers such as Ms Peel provide the services and how often as the patient or their family would discuss this with the care workers directly.
[21] Mr Ning gave evidence that when Aster received a referral of a new patient for a client it handed over the matter to Ms Peel (or other care workers) who had responsibility for taking care of patients in terms of their needs, health assessments, visit allocations, delegation to other Aster care workers and, most importantly, physically attending at their homes and providing care. Mr Ning gave evidence that to his knowledge a Nurse Manager position and 2IC position recently established did not direct Ms Peel in her work.
[22] Ms Peel said she commenced working for Aster in or about November 2013 as a community registered nurse. Ms Peel said the engagement was subject to, and dependant on obtaining an ABN and signing a contactors agreement. Ms Peel said having recently migrated from the UK at the time, and in desperate need of a job, she agreed.
[23] Ms Peel said upon commencement with Aster she was provided with induction training, where she was trained in Aster processes and procedures. Ms Peel confirmed this was with the old employer and has not undergone training with the new employer.
[24] Ms Peel said in the initial phase of her employment with Aster she was effectively employed on a part time or casual basis and because she was not receiving sufficient income, she also worked as a registered nurse, with Home Support Services. Ms Peel said however, after a period of time, Aster increased the volume of work to a full-time level and instructed her to resign her position with HSS and work full time with Aster.
[25] It was put to Ms Peel during cross-examination that it was requested that she resigned rather than an instruction to resign. It was put that it was never put to her that she must resign. Ms Peel said it she was told to resign from the role because of the round of work she was doing for Aster. Ms Peel insisted she was told she had to resign from the other role.
[26] Ms Peel said she worked five days per week, every Monday, Wednesday, Friday, Saturday and Sunday of every week, averaging 37.5 hours per week except for periods of unpaid annual leave or sick leave.
[27] Ms Peel said she was not a seasonal worker, as she was provided with regular patients of Aster, many of which she attended once or twice a day every day for the duration of her employment. She said she believed all of her Aster co-workers also had regular patients.
[28] Ms Peel said each day she worked an AM shift commencing at 7am to 11am and a PM shift commencing at 2pm to 5.30pm. Shift times would vary due to patient numbers and specific requirements. Ms Peel said the order of patient visits per shift is determined by the specific health care requirements of each patient on any given day. Ms Peel said for each visit she was paid a set amount and if a visit exceeded one hour she would be paid additional amounts by reference to time. For example, she would be paid an additional $7 per 20 minutes during the week and in effect, Aster took on the risk, not herself. Ms Peel said if she did a "night sit" at a patient's residence she would have a specific start and finish time and be paid by the hour.
[29] Ms Peel said when she visited a patient's residence, she would wear an Aster Nursing name badge and provide the patient with an Aster Nursing business card with her personal contact details, supplied to her by Aster. Ms Peel said prior to her termination from Aster, she had on order uniforms with the Aster logo, which is currently worn, to her knowledge by all Aster workers. Ms Peel said all patient paper work and folders were supplied by Aster with the company logo.
[30] Ms Peel submitted she worked at the direction of the management structure of Aster. Ms Peel submitted she provided numerous examples of directions from Aster's management. Ms Peel said some examples of control of Aster over her employment included:
• Aster compels me to attend meetings, and requires me to rearrange the patients visit times to attend such meetings.[7]
• Aster has to approve my unpaid leave.[8]
• Aster has instructed me to visit some patients at particular times and or time frames.[9]
• The Nurse Manager instructs me on specific patient requirements on a regular basis.[10]
[31] In cross-examination, Ms Peel said it was up to her determine when and how regularly services would be provided subject to the patient's requirements and management approval. Ms Peel was asked if she ever prepared progress notes in her own home. Ms Peel said she did not and this was done in the patient's home.
[32] Mr Ning said if Ms Peel could not provide the services on a particular occasion it was her responsibility to find another of Aster's care workers to provide the services. In that instance, he said it was her responsibility to communicate the patient notes to the other care worker and provide instructions to the worker about the provision of the services to the relevant patient. Ms Peel agreed she was able to delegate these services if she was unable to provide them, but it had to be to someone within Aster. She said she could not delegate to her friends that were nurses outside of Aster. Ms Peel said on occasions she did arrange for another person engaged with Aster to provide services for a patient when she could not, a representative from Aster management would arrange for someone else to visit the patient.
[33] Mr Ning gave evidence concerning files that pertain to a particular patient that are kept at the residence of the patient. Mr Ning said that in the event a patient changed provider or was relocated or in circumstances of a death the file would be collected and returned to Aster.
[34] Mr Ning said Aster provides no instructions to care workers such as Ms Peel as to how they are to provide the services to patients. He said often care workers simply advise Aster when they cannot provide the services and Aster works around them in terms of looking after patients.
[35] With respect to the invoices provided by Ms Peel for her services, Mr Ning said Aster had no involvement in the calculations in relation to preparing them. Mr Ning said Ms Peel simply provided Aster with the invoices together with a list of her visits. He said Aster did not do any calculations as part of the provision of the invoices, except to verify them once received.
[36] Mr Ning gave evidence that the text message exchange referred to in Ms Peel's evidence at Exhibit 5 was around Christmas time 2019. He said the messages referred to a Christmas function to thank staff.
[37] Mr Ning said Ms Peel chose to work weekends and he never arranged that. Mr Ning said in his oral evidence that the time of appointments cannot be organised in advance and Ms Peel's invoices are retrospective for this reason. He said therefore he does not have control as an employer would.
[38] Mr Ning said Ms Peel did not have access to Aster's computer systems and would only send emails from her work email account on rare occasions.
[39] Ms Peel said during her employment with Aster, she provided induction training for other persons engaged by Aster internally referred to as "Buddy runs" for new workers. She said on behalf of Aster she would also be required to assist other Aster workers with clinical skills that they were not confident in.
[40] It was put to Ms Peel that Mr Ning never asked Ms Peel to provide induction training. Ms Peel said Mr Ning did make this request.
[41] Ms Peel said in cross-examination that services she provided also included drafting patient progress notes and circulating them to her colleagues. Patient notes were completed in the patient's home.
[42] During cross-examination, Ms Peel agreed she provided services to patients in their own private homes. It was put to Ms Peel that it was up to her as to how the services were provided i.e. when and how regularly they would be provided subject to a patient's requirements. Ms Peel said that was correct, but it was also subject to management.
[43] It was put to Mr Ning that Ms Peel was instructed to cease performing progress reports and this function was taken over by other nurses engaged by Aster. Mr Ning rejected that.
[44] The last of the three Independent Contractor Agreements which is the Agreement that Ms Peel and Aster are both party to includes terms that if Ms Peel is unable to provide a service she must immediately advise Aster so it can arrange for the service to be provided by someone else (clause 2.2) Under the Agreement Aster may vary the services by increasing, decreasing or omitting any part of them, changing their character or content, changing their direction or dimensions, or requiring Ms Peel to perform additional duties (clause 2.3).
[45] Ms Peel is required under the Agreement to immediately notify Aster of any change in a client's health or circumstances; follow any lawful direction of Aster in providing the services; not introduce into the residence of a client any third party unless required for the performance of the service; ensure performance of the service is not interfered with or delayed by the performance of any other work with any other person or organisation. (clause 3.1)
[46] Aster can change the service fee by notifying Ms Peel in writing. (clause 4.1) Ms Peel is required under the Agreement to give "absolute priority at any time" to the provision of services to Aster (clause 5.4).
[47] On the basis of the evidence it is apparent that the patients were assigned to Ms Peel by Aster and Ms Peel did not seek to obtain patients to provide care herself independently of Aster. Further, she needed approval for leave and any work not performed by her was required to be performed by another nurse connected to Aster. I am also satisfied on the evidence that Ms Peel was directed to assist in the training of others in connection with the performance of nursing work for Aster. Mr Ning accepted in his oral evidence that Aster retained the ability to reallocate a particular patient from one nurse to another if for example a patient raised a concern about a particular nurse. The evidence was also that in the event of a patient ceasing to use the services provided to Aster the patient file was returned to Aster.
[48] While the Independent Contractors Agreement on its face is written with a clear intent to establish a contracting and not employment agreement, a range of clauses within the Agreement provide Aster a greater right of control and direction over Ms Peel then is often the case in a contracting arrangement. The overall picture also includes that of Ms Peel appearing to be required to report through a structure of management at Aster. This is indicative of Aster exercising a level of control more indicative of employment than a contracting arrangement.
Whether the worker performs work for others (or has a genuine and practical entitlement to do so).
[49] In cross-examination, Ms Peel was drawn to clause 5.2 of her latest contract with Aster which provided her with the ability to engage in other work or assignments provided there was no conflict of interest with her duties and responsibilities with Aster. Ms Peel said that she worked for a third party for approximately 18 months and then worked for Aster until her then manager instructed her to stop working for a third party. Ms Peel later said during oral evidence that she worked for the third party for six months only.
[50] During cross-examination Ms Peel accepted that her 1 July 2013 - 30 June 2014 tax return provided that she worked for both Aster and a third party organisation during that period. Ms Peel agreed but said she only worked for the third party organisation for 2 shifts. Ms Peel also accepted she worked for a third party as well as Aster in 2015 and 2016.
[51] The evidence established that Ms Peel performed hours of work for Aster commensurate with what would be regarded as approximating full time employment. While Ms Peel did perform brief periods of work for other entities in years gone by this had not been the case for a lengthy period of time. Whilst her most recent employment contract included a term allowing her to engage in other work, the reality is given the amount of work provided by the Respondent to Ms Peel, that such work could only have been performed on the two days of the week she was otherwise not engaged by Aster, or in the evening after 5.30pm when she had already completed a full day of work with Aster. This indicia tends more to indicate employment rather than a contracting arrangement.
Whether the worker has a separate place of work and or advertises his or her services to the world at large.
[52] Mr Ning said he spends most of his spare time in Aster's office, and rarely saw Ms Peel in this office. He said that part of the services Ms Peel provided that did not involve attending patient's homes, such as drafting and maintaining patient notes was to the best of his knowledge done at Ms Peel's home using her own computer.
[53] Ms Peel said due to her role being constantly on the road, most communications relating to Aster patient requirements was done by mobile phone and texting daily.
[54] Ms Peel said she would attend the office often to collect stock from Aster's storeroom as Aster supplied essentially everything she needed to carry out her job on a day to day basis, including bandages, wound care dressing, numerous creams, incontinence pads, protective sheets catheters, gloves, aprons and hand sanitizers.
[55] Ms Peel said she would attend Aster's office for compulsory group staff meetings or one on one meetings with management to obtain company paper work for patient care. On this, Mr Ning said since 8 August 2019, he could recall Ms Peel attending two meetings in the office with other people, and he had approximately two to three one-on-one meetings with her.
[56] Ms Peel said the only work-related function she would perform from home was filling in her timesheet for her pay and responding to work related texts and telephone calls and checking emails.
[57] Ms Peel submitted in cross-examination that she provided services to clients in the clients' homes and most of the time provided services on her own. At times a joint visit to a client with a colleague was done if one of Ms Peel's colleagues did not know how to do a certain procedure and needed to cover her while she was away.
[58] The evidence does not indicate Ms Peel had a separate place of work and Ms Peel did not advertise her services to the world at large. This indicia is more indicative of employment than of contracting.
Whether the worker provides and maintains significant tools or equipment.
[59] Mr Ning said Ms Peel provided her own tools of trade required to provide the services including a stethoscope, oximeter, pen torch, blood pressure monitor, thermometer and blood sugar measurer. He said a significant amount of clinical experience in nursing is required to interpret the results and linking health correlations to each individual patient associated with operating some of the equipment. Mr Ning said he estimated the cost of these tools of trade would be approximately $350.
[60] Mr Ning said general nursing consumables such as sacrum protection, anti-microbial alginate dressings and catheter packs are usually provided by their clients. During cross-examination it was put to Mr Ning that all consumables were provided to Ms Peel. Mr Ning agreed this was the case, but that in the past Ms Peel had claimed for things like gloves in her tax returns. He said general nursing consumables are paid for by Aster's clients in that Aster purchases the items and seeks reimbursement from its clients. He said the items are provided to its care workers on that basis.
[61] Mr Ning said Aster does not provide the following pieces of equipment to its care workers - stethoscope, blood pressure machine, thermometer and blood sugar machine. During cross-examination Mr Ning conceded that Aster provided all consumables required for patient care. Mr Ning noted that Ms Peel had claimed in her tax for some consumables.
[62] Ms Peel said that when she commenced in 2013 the previous business owner supplied her with a blood pressure machine, a blood sugar monitor machine and a saturations machine to test oxygen levels. Ms Peel said she replaced the blood pressure machine herself years later. Ms Peel said she still has the machines, but they are now outdated.
[63] Mr Ning said Ms Peel also provided her own motor vehicle to transport her to and from patients' homes when providing the services. He said Ms Peel was responsible for maintaining, insuring and providing fuel for her car. He said Aster does not require, authorise or encourage care workers to place any Aster logos or insignias on the cars they use to provide the services.
[64] Ms Peel said in cross-examination that she drove to and from the patient's home using her own car and paid for the upkeep and petrol for the car to be able to get to and from the patient's home.
[65] The Full Bench decision in Gupta v Portier Pacific Pty Ltd, Uber Australia Pty Ltd t/a Uber Eats[11] did not consider that because Ms Gupta in that matter was required to provide her own vehicle in order to carry out her work necessarily pointed to her being an independent contractor as the vehicle in that case was not a specialised item of equipment and was already owned and used for personal purposes, and the provision of a vehicle is common feature of employment relationships. The same can be said in this case.
[66] Ms Peel said Aster provided her with a work email address. Mr Ning said Ms Peel was required to send the patient notes to Aster or other care workers, and she used her own private email account. Mr Ning said Ms Peel did not have access to Aster's computer systems, and only sent emails to him from her work email address on less than five occasions.
[67] Ms Peel said she had no significant investment in equipment to perform her duties with Aster. She said upon commencement she was provided with a stethoscope, blood pressure machine, thermometer, and a blood sugar machine. She said further there was no significant ongoing investment in the upkeep of such equipment. She said the consumables for patient care were the most significant cost which was supplied by Aster.
[68] Ms Peel said all consumables such as, bandages, wound care dressings, numerous creams, incontinence pads, protective sheets, catheters, etc was provided to her by Aster. She said she would obtain these supplies from the Aster storeroom located at the company's place of business. She said the consumables mentioned here was the single biggest cost in the provision of patient care that she provided. She said Aster would also supply her personal protection equipment such as gloves, aprons and hand sanitisers. Ms Peel said in the event she was required to attend a palliative patient, she would obtain the palliative care equipment from the storeroom also. In her oral evidence, Ms Peel submitted that there was one occasion that she had bought a box of gloves at her own expense but it was due to not being able to access the office at the time.
[69] Based on the evidence, despite what was claimed by Mr Ning, it would appear that besides the fact Ms Peel used her own vehicle to travel, virtually all equipment and medical supplies required by Ms Peel to perform her nursing role were provided to her by Aster. Ms Peel gave evidence concerning Aster maintaining an inventory of such supplies. Ms Peel appears not to have made any significant investment in capital equipment. This evidence is indicative of employment and not an independent contracting arrangement.
Whether the work can be delegated or subcontracted.
[70] Mr Ning said Ms Peel was responsible for generating and maintaining the files of the patients in the course of providing the services. Patient files included new patient or client assessments and ongoing records of treatment provided by Ms Peel and patient health status. No files or patient notes were generated by Aster.
[71] Mr Ning said Aster also paid for Ms Peel to produce patient progress reports every three to four months. This information was then used to report such progress notes to each patient's doctor for their information. Mr Ning confirmed this in oral evidence. It was put to Mr Ning this responsibility was taken off Ms Peel and given to other workers some months before her termination. Mr Ning said this was not the case.
[72] In oral evidence Ms Peel accepted she was paid $15 for each progress report completed.
[73] Mr Ning said if Ms Peel had to hand over a patient to another contractor, she would communicate instructions and advice to the other contractor. This was a common occurrence with Ms Peel and other care workers.
[74] Ms Peel said that during periods of unpaid annual leave it was not possible to sublet her work to an outside entity and that to her knowledge it has never occurred. Ms Peel said any periods of unpaid leave required notice and the approval of Aster and that on a number of occasions she would have to vary her requirements to suit Aster. She said for most of her period of engagement by Aster, all Aster workers were required by Aster to give their patient rounds to Ms Lorraine Fleming, who was employed by Aster for that purpose. Mr Ning said Ms Fleming does not provide relief work for other workers of Aster, and Ms Fleming is fully involved in providing services to patients of Aster which she sees on a regular basis.
[75] Ms Peel said on some occasions, Aster required her to assist in the allocation and the handover of patients to other Aster workers, and the company had the final say in these allocations and would often amend such distribution. Ms Peel said on her most recent unpaid leave period this function was undertaken entirely by Aster. Ms Peel said as of the last compulsory meeting she attended prior to her termination, the approval of leave and allocation of patients was to be completely undertaken by the Nurse Manager Ms Debbie Hergenhan.
[76] On the topic of arranging replacements, Ms Peel said during cross-examination that she found her own replacement with assistance from Aster. Aster would suggest more suitable replacements and would complete the assignment of the replacement for her as replacements could not be someone external to Aster. Ms Peel said she would complete handovers to her replacement including providing the patient history.
[77] Ms Peel submitted in her oral evidence that it was her knowledge since she had begun at Aster that Ms Fleming had always been the relief worker and could be relied upon if needed. During cross-examination, it was put to Ms Peel that since Mr Ning's involvement in the business Ms Fleming was busy providing services to her own patients and was not performing relief for other patients. Ms Peel said she spoke to Ms Fleming and was under the impression that she was providing relief work but was unsure of the situation since Ms Peel left Aster.
[78] Based on the evidence it is apparent that Ms Peel did not have an unfettered ability to delegate or subcontract work in that it was not a matter entirely within her discretion. The evidence is that Ms Peel had to follow certain protocols in providing work to someone else and it was also the case that such work had to be provided to another person also engaged by Aster, presumably so Aster could still retain a degree of control over the performance of that work.
[79] On the evidence I am also inclined to accept that Ms Fleming who was engaged by Aster, provided relief for other persons engaged by Aster while away for an extended period of leave, however it appears there may have been the subject of change in more recent times since the departure of Ms Peel. Overall the evidence concerning the extent that Ms Peel could delegate or subcontract her duties tends more to indicate employment than independent contracting.
Whether the punitive employer has the right to suspend or dismiss the person engaged.
[80] Clause 10.1 of the Independent Contracting Agreement provides a basis for either party to bring the relationship to an end at four weeks' notice. However, Clause 10.2 then goes on to provide Aster with the sole discretion to terminate the Agreement on six separate grounds including if Ms Peel in the reasonable opinion of Aster fails to remedy a failure to properly perform the services within one week of being advised by Aster of any complaint or performance issues. This tends to indicate employment rather than contracting.
Whether the putative employer presents the worker to the world at large as an emanation of the business.
[81] Mr Ning said Ms Peel was never provided with or purchased a uniform from Aster to wear while providing the services and said she wore her own clothes when doing this. Ms Peel disputed the uniform was not compulsory and said it was. Ms Peel said on 2 March 2020 there was a meeting with all staff members, and Mr Ning introduced the new uniforms and she placed an order. Ms Peel said Mr Ning showed the staff approximately six different styles on what could be worn and that she ordered some for herself.
[82] During cross-examination Ms Peel was asked what the exact words were used by Mr Ning in relation to staff purchasing uniforms. Ms Peel said she could not recall the exact words.
[83] Mr Ning also referred to a request to the Committee of the Body Corporate of Pavilions Beach regarding overdue levies where Ms Peel stated in her own handwriting in the document that she was a subcontractor.[12]
[84] Ms Peel said at no stage during her employment with Aster did she consider herself as running her own enterprise. She said she had never advertised operating a business.
[85] In cross-examination, Ms Peel said that she did not wear the Aster work uniform but an order for the uniform had been made but not paid for. Ms Peel said that she used the company bag and email. Ms Peel agreed that her business card did not have the Aster business logo on it.
[86] The evidence also indicated that Ms Peel wore an Aster name badge, and all patient paperwork and folders were supplied by Aster with an Aster logo. Mr Ning accepted that Aster provided Ms Peel with an Aster name badge to wear which identified her as a nurse from Aster and a business card which identified her with Aster. Mr Ning said the reason Aster provided nurses with a business card was for it to be used as a calling card.
[87] Given Ms Peel wore an Aster name badge and had a business card, used an Aster email address, and used Aster paperwork, folders and an Aster bag during consultations with patients, Ms Peel was presenting to the world at large as a emanation of Aster which tends to indicate employment rather than a contracting arrangement.
Whether income tax is deducted from remuneration paid to the worker.
[88] Evidence for Aster was given by Mr Molesworth in relation to Ms Peel's taxation arrangements. Mr Molesworth is a partner at BDO specialising in taxation, in particular income tax, fringe benefits tax and superannuation. Mr Molesworth was admitted as a Chartered Accountant in 2001.
[89] Mr Molesworth referred to various tax returns of Ms Peel attached to his statement,[13] and provided that Item 1 of the returns for the tax years 2014, 2015 and 2016 disclose that Ms Peel earnt income as an employee from the entities nominated in those items. Mr Molesworth said these are the sections of the tax returns where income from employment is included.
[90] Mr Molesworth said that with respect to the Tax Return for the 2014, 2015, 2016, 2017 and 2018 year, the net income is disclosed by a person working as a Sole Trader/Contractor and expenses were claimed against that income for each of those years.
[91] Ms Peel accepted in her oral evidence that an amount of $8,365 for personal expenses was deducted from her 2013-14 tax return. Ms Peel also accepted she claimed $26,563 in 2015, $20,160 in 2016 and other expenses in 2017.
[92] In cross-examination, Mr Molesworth was asked whether Ms Peel would be able to claim expenses if she was an employee. Mr Molesworth said she would. Mr Molesworth was asked whether she could claim the same amount on her motor vehicle if she were an employee and was entitled to a travel allowance. Mr Molesworth said the ability to claim as an employee would not be impacted by a travel allowance.
[93] It was put to Mr Molesworth that if an employee uses equipment as part of their role, they could still claim these and that there would be no difference between an employee and a contractor making these claims and Mr Molesworth agreed.
[94] It was put to Mr Molesworth that if a contractor works exclusively for another principal's business, it may affect the eligibility of that person obtaining an ABN. Mr Molesworth said it would only be impacted if they were an employee of the business. He said if a person is an employee they are not entitled to an ABN.
[95] Mr Ning referred to sample invoices Ms Peel rendered to Aster also annexed to his statement.[14] He said that two of these invoices included GST. Mr Ning said Ms Peel started including invoices with GST after she was prompted to do so by him, as he became aware her annual fees rendered exceeded $75,000 and she should therefore be charging GST. Mr Ning said Aster did not deduct any taxes from the fees paid to Ms Peel.
[96] Ms Peel said she did not charge GST on any of her invoices, except toward the end of her employment, when Mr Ning instructed her to do so. Ms Peel said if there needs to be any adjustments in respect of taxation, she can and will attend to that with the ATO as required.
[97] The evidence is that Aster did not deduct income tax from remuneration paid to Ms Peel which tends to indicate a contracting arrangement and not employment. It is notable however that much of what was claimed by Ms Peel could also be claimed by an employee.
Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.
[98] In cross-examination Mr Ning was asked whether any consideration was given to relevant award rates when negotiating rates in the contracting agreement. Mr Ning said this was comparing apples with oranges as he was not engaging employees therefore the award was not relevant. Mr Ning said the rates of pay were influenced by what was paid by the client.
[99] Ms Peel said at the end of a fortnightly pay period she would provide Aster with a list of her visits, which would be calculated by Aster and paid by direct debt into her bank via electronic fund transfer every fortnight.
[100] In cross-examination Ms Peel agreed that she was paid $23.10 for a weekday visit lasting less than an hour; for a Saturday, Sunday or public holiday visit less than 60 minutes she was paid $32; for overnight nursing care she was paid a set rate for active work of $50p/h and $37.50p/h for inactive work under the 5 February 2020 contract.
[101] The evidence is that Ms Peel was paid fortnightly on the basis of the amount of time she had recorded spent with clients as provided by her. Its seems the method of payment does not fall neatly into the category of a periodic wage or salary in that it was subject to Ms Peel reporting the number and length of visits with clients. However, it also cannot be said that the method of payment is based on purely completion of tasks in that it is not based on a completion of a tasks such, but on the amount of time spent with a client. If anything, the overall method of remuneration tends more to indicate contracting then employment.
Whether the worker is provided with paid holidays or sick leave.
[102] Mr Ning referred to a schedule[15] which shows the fees Ms Peel invoiced Aster over the last three financial years. Mr Ning said this schedule was prepared based on information in Aster's accounting system. The fees invoiced in the last financial year were less than what they would have been normally because Ms Peel did not provide the services for approximately ten weeks due to a personal family matter. Mr Ning said Ms Peel was not paid any monies for this absence as Aster does not pay contractors sick or carers' leave, compassionate leave or annual leave.
[103] Ms Peel was not paid for holidays or sick leave and on that basis this indicia is more indicative of contracting.
Whether the work involves a profession, trade or distinct calling on the part of the person engaged.
[104] Mr Ning said Ms Peel is a Registered Nurse. He said it was his understanding that Ms Peel previously worked as an Enrolled Nurse for approximately eight years in the United Kingdom and subsequently completed a Diploma of Higher Education in Registered Nursing. Mr Ning said her qualifications are accepted by the Nursing and Midwifery Board of Australia and the Australian Health Practitioner Agency as entitling her to practice as a Registered Nurse in Australia.
[105] Ms Peel said approximately 90% of the patients she visited on behalf of Aster are "Assistant in Nursing" and "Enrolled Nurse" duties, requiring very little of her Registered Nursing skills and qualifications. However, in cross-examination, Ms Peel submitted that she drew on her own nursing experience to determine how services were provided to patients in their homes.
[106] Mr Ning said the care workers Aster engages include Registered Nurses, Enrolled Nurses and Assistant Nurses. He said Assistant Nurses generally have a relevant diploma certificate from TAFE or a registered training organisation, whereas Enrolled Nurses have a relevant certificate from TAFE or a university requiring two years of vocational education training. Mr Ning said in his experience, Registered Nurses in the community are expected to do the duties not only of a Registered Nurse but also that of an Enrolled Nurse or an Assistant Nurse. He said in other words they are required to get their hands dirty, especially when they clinically assess patients' conditions for say shower assistance tasks, which an Assistant Nurse would not have been suitably trained, qualified or as necessarily competent as a Registered Nurse.
[107] Mr Ning referred to a bundle of Renewal Proposals for Medical Malpractice Combined Liability Insurance which Ms Peel signed[16]. Mr Ning said this insurance was in Ms Peel's name but paid for by Aster. Mr Ning said Aster had regard to the amount of premiums paid for such insurance when setting the rates contained in Ms Peel's contracts.
[108] Ms Peel said in cross-examination she had never seen the Medical Malpractice Combined Liability Insurance documents contained in "AK-8" before the Hearing. It was put to Ms Peel that her signature was on page three of both documents. Ms Peel agreed this was the case.
[109] Ms Peel said Aster has apparently always paid public liability and medical malpractice insurance on her behalf. Ms Peel said she did not know the cost of premiums, the name of the insurance company, whether such policies exist or whether such policies were adequate because Aster handled all of this. Ms Peel said she was never advised that her rates of pay were varied to offset the cost of such premium amounts.
[110] Ms Peel said in a recent meeting with the principle of Aster, when she raised this issue she was met with laughter telling her "not to concern yourself with this matter as Aster takes care of it." Ms Peel said as far as she was aware there has never been a claim made against such policies. Ms Peel confirmed she was referring to Mr Ning. It was put to Ms Peel that Mr Ning never said this, and Ms Peel disputed this saying that he did. I am inclined accept Ms Peel's evidence regarding her version of the conversation concerning the insurance issue as that is consistent with what appeared to have been the pattern for the entirety of her engagement.
[111] Ms Peel said Mr Ning did provide instructions to care workers. Ms Peel disputed this in her oral evidence saying Mr Ning had much involvement in telling workers where to go and at what time.
[112] It was put to Ms Peel that she met with Mr Ning regarding the latest contracts. Ms Peel said the only issue discussed was regarding insurance and who was going to pay for it. Ms Peel was asked if she recalled commenting that she was happy with the fee increases. Ms Peel said no not at all, the amount was well below average. It was put to Ms Peel that during this meeting, Ms Peel said she was happy with the recent fee increases in the contract. Ms Peel disputed this.
[113] Given that in order to practice as a Registered Nurse, a tertiary level qualification and specialist skills are required, this tends to favour the prospect of the engagement being a contracting relationship rather than employment.
Whether the worker creates goodwill or saleable assets in the course of his or her work.
[114] Ms Peel said she did not obtain goodwill or saleable assets during the course of her six and a half years' continuous employment with Aster. There is no evidence to suggest otherwise. This tends to support a conclusion that the engagement was employment and not independent contracting.
Whether the worker spends a significant portion of remuneration on business expenses.
[115] The primary costs Ms Peel incurred were in relation to running costs associated with her vehicle. However, as was observed in the matter, in the event that Ms Peel was an employee there are means to recover a significant portion of these costs. Ms Peel said that she purchased gloves on one occasion when she could not access the inventories of Aster, and replaced the blood pressure machine she had initially been given by Aster on commencement herself when it became outdated.
[116] Besides expenses associated with her vehicle I have not been persuaded that Ms Peel did spend a significant proportion of her remuneration on other business expenses despite her submitting a number of tax returns which appeared to claim significant business expenses that on her own evidence she is unlikely to have incurred. For example, her evidence was to the effect that she did not do a significant amount of work from home however has claimed reasonably significant home office expenses in several tax returns.
[117] I have made findings in relation to each of the indicia as set out above. I have considered the various employment contracts which describe the relationship as one of contracting however as was stated in French Accent[17] the parties cannot alter the true nature of their relationship by putting a different label on it.
[118] I have also given consideration to the fact while Ms Peel said the much of the work was equivalent to that of Assistant Nursing or Enrolled Nursing work, at times Ms Peel would have exercised a high degree of skill and expertise given her qualifications as a Registered Nurse. As was observed in Stevens v Brobribb[18] the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise.
[119] Using the multi-factorial approach, whilst certain indicia would indicate the relationship was that of independent contracting, and it is clear Ms Peel submitted tax returns and claimed expenses as if she were an independent contractor, the overall picture on the evidence is not ambiguous to the extent that the Independent Contracting Agreement of itself sways the matter in favour of Aster. The evidence is sufficiently clear to weigh in favour of concluding that Ms Peel was performing work for Aster in the capacity of an employee rather than an independent contractor.
[120] In the recent Full Bench decision of the FWC in Gupta v Portier Pacific[19] the Full Bench gave significant weight in that matter to there being no control over the when and how long Ms Gupta performed work, Ms Gupta's ability to accept work through other competitors, and Ms Gupta not presenting as an emanation of Uber.[20]This matter is distinguishable on all three counts. The evidence indicates that in practical terms Aster did exercise a degree of control over when and how long Ms Peel worked. Given Ms Peel's ongoing commitments to the same patients Aster had allocated to her to provide care for on a week in week out, year in year out basis occupying the equivalent of full time employment, and given her contract required her to ensure performance of the service is not interfered with or delayed by the performance of any other work with any other person or organisation (clause 3.1) it is not realistic to say that Ms Peel was free to accept work from others of her own choosing. Finally, as was concluded earlier unlike the case in Gupta, Ms Peel did present as an emanation of Aster.
[121] The ultimate question is whether Ms Peel was a servant in Aster's business or viewed practically, she was carrying on a trade or business of her own. I am satisfied on the evidence that in practical terms Aster retained rights of control over Ms Peel to such an extent that Ms Peel was an employee of the Respondent and was not conducting her own business. On that basis Aster's jurisdictional objection is dismissed. The matter will be listed for directions and programing of the substantive matter.
Mr M. Curran of DWF Australia appearing for the Respondent.
[1] Exhibit 1, Statement of Mark William Molesworth dated 19 June 2020.
[6] Exhibit 2, Statement of Andrew Ning dated 5 June 2020 annexure "AK2".
[7] Exhibit 4, Statement of Ms Lisa Peel dated 19 June 2020 at "Exhibit 5".
[8] Exhibit 4, Statement of Ms Lisa Peel dated 19 June 2020 at "Exhibit 6".
[9] Exhibit 4, Statement of Ms Lisa Peel dated 19 June 2020 at "Exhibit 7".
[10] Exhibit 4, Statement of Ms Lisa Peel dated 19 June 2020 at "Exhibit 8".
[12] Exhibit 2, Statement of Andrew Ning dated 5 June 2020 annexure "AK10".
[13] Exhibit 1, Statement of Mark William Molesworth dated 19 June 2020, "MWM-2".
[14] Exhibit 2, Statement of Andrew Ning dated 5 June 2020 annexure "AK3".
[15] Exhibit 2, Statement of Andrew Ning dated 5 June 2020 annexure "AK4".
[16] Exhibit 2, Statement of Andrew Ning dated 5 June 2020 annexure "AK8".
[17] Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario [2011] FWAFB 8307.
[18] Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16.
Printed by authority of the Commonwealth Government Printer
Lisa Peel
Aster Home Nursing Service Pty Ltd [2020] FWC 4782
(2003) 122 IR 215
(1986) 160 CLR 16