s.365 - Application to deal with contraventions involving dismissal

General protections dismissal dispute - whether employee or contractor - multi-factorial test - labels not determinative - various factors suggest employment relationship - applicant was an employee - applicant was dismissed - jurisdictional objection dismissed

[1] Torbay Lifestyles and Care Limited (Torbay) is a public company limited by guarantee and a registered charity. Torbay owns and operates an aged care facility and a retirement village in Torquay, which is located near Hervey Bay in Queensland. Torbay owns a construction company named Torbay Constructions Pty Ltd (Torbay Constructions) which performs renovation and construction work on Torbay's aged care and retirement village facilities and some external work. Matthew Holmes is a certified builder who performed work on Torbay's facilities from late 2019 until 10 September 2025. Mr Holmes operates under the business name Elev8 Constructions and Maintenance. The business name was owned by Mr Holmes as the Trustee for the Matthew Holmes Family Trust (ABN: 21 565 931 233) during the period that Mr Holmes performed work on Torbay's facilities. Mr Holmes registered a company named Elev8 Together Pty Ltd (ACN: 691 715 456) on 10 October 2025 which now owns the business name. Mr Holmes issued invoices for the work he performed at Torbay's facilities in accordance with a purported independent contracting relationship. There is no written contract between Mr Holmes and Torbay Constructions or Torbay. Mr Holmes now alleges he was an employee of Torbay Constructions and that he was dismissed in breach of the general protections in the Fair Work Act 2009 (FW Act). This decision concerns whether Mr Holmes was an employee or independent contractor when he ceased performing work on 10 September 2025.

[2] Mr Holmes relied on evidence from himself and Vanessa Evans (former Administration Officer) in support of his case. Torbay Constructions relied on evidence from John Sheehan (Construction Manager - Torbay Constructions), Julie McDonald (Operations Manager - Torbay and Torbay Constructions), and Carrie Chappell (CEO - Torbay and Torbay Constructions). The witnesses provided evidence during a hearing via video on 16 January 2026. I heard closing submissions and some additional evidence from Mr Holmes during a hearing via video on 12 February 2026. I granted permission for both parties to be represented at the hearings because I was satisfied granting permission would enable the matter to be dealt with more efficiently. There was no opposition to permission being granted to either party.

• [3] The legal test for determining whether a person was an employee or independent contractor was significantly altered on 26 August 2024.[1] The FW Act was amended on 26 August 2024 to essentially override the High Court precedent established by the majority of the High Court in Personnel Contracting[2] and Jamsek.[3] This was achieved by inserting a new s.15AA into the FW Act the effect of which is to mandate consideration of the real substance, practical reality, and true nature of the relevant relationship, including by reference to how the contract was performed in practice, when determining if the person was an employee or independent contractor. The change nullifies the High Court's previous determination that how the contract was performed by the parties is largely irrelevant when the rights and duties of the parties are comprehensively recorded in a written contract. New provisions allowing individuals to opt out of the legal impact of s.15AA were also inserted in ss.15AB, 15AC, and 15AD of the FW Act.

• [4] The transitional provisions[4] regarding the operation of s.15AA of the FW Act are as follows:

• 1. Section 15AA applies following commencement to a relationship in existence on 26 August 2024 which was entered into prior to 26 August 2024, and to relationships entered into after 26 August 2024.[5]

• 2. When determining an individual's length of service and period of employment under the FW Act, whether service prior to 26 August 2024 is to be counted as service as an employee is determined by reference to the High Court precedent in Personnel Contracting and Jamsek, and without reference to s.15AA of the FW Act.[6]

• 3. The amendments do not apply in relation to applications that were already "on foot"[7] when the amendments commenced on 26 August 2024.[8]

[5] It is therefore conceivable that Mr Holmes' status as an employee or independent contractor changed when s.15AA of the FW Act commenced operating on 26 August 2024.

[6] For the purposes of this decision, I am only required to assess the relationship between Mr Holmes and Torbay Constructions with reference to the test identified in s.15AA of the FW Act. That is because the jurisdictional objection turns only on whether Mr Holmes was an employee at the time of the purported dismissal on 10 September 2025.

• [7] Section 15AA of the FW Act states whether an individual is an employee to be determined by "ascertaining the real substance, practical reality, and true nature of the relationship." The "totality of the relationship" must be considered. The definition means the multi-factorial approach adopted in Stevens v Brodribb Sawmilling Co Pty Ltd[9] and Hollis v Vabu[10] must be applied.

[8] Factors that are likely to be relevant to the multi-factorial test include:

• The degree of control over the work of the putative employee.
• Whether the worker performs work for other businesses.
• Whether the worker has a separate place of work and advertises their services to the world at large.
• Whether the worker provides their own tools and equipment.
• Whether the worker can delegate or subcontract the relevant work.
• How the worker is compensated.
• Whether the putative employer has the right to suspend or dismiss the person engaged.
• Whether the worker is presented to the world as emanation of the putative employer's business.
• Whether income tax is deducted from remuneration paid to the worker.
• 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.
• Whether the worker creates goodwill or saleable assets in the course of their work.

• • Whether the worker spends a significant portion of his remuneration on business expenses.[11]

• [9] 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. The parties cannot deem the relationship between themselves to be something it is not.[12] Terms that are merely consequential upon the labelling adopted by the parties such as those directed at taxation, superannuation, and insurance coverage, can be considered but are not conclusive.[13]

[10] I find the evidence establishes the following in relation to Mr Holmes' relationship with Torbay Constructions from 26 August 2024 until 10 September 2025:

(i) The parties agreed to label their relationship as an independent contracting relationship and conducted themselves accordingly. Mr Holmes issued invoices to Torbay Constructions and Torbay for the work he performed. Mr Holmes did not have income tax deducted from his earnings. Mr Holmes was not provided with paid holidays or sick leave. This all weighs in favour of finding that Mr Holmes was engaged as an independent contractor rather than an employee.

• (ii) Mr Holmes performed a senior role which involved supervising employees and contractors working on Torbay's sites. Mr Sheehan referred to Mr Holmes' role as Site Manager.[14] Mr Holmes was responsible for opening the site each morning at around 6:30am in preparedness for external contractors to commence work at 7:00am.[15] It would be unusual for an important ongoing and highly responsible managerial role in a business to be performed by an independent contractor. The Site Manager role performed by Mr Holmes weighs in favour of finding he was an employee rather than an independent contractor.

(iii) Mr Holmes worked regular, ongoing, and systematic hours at Torbay's facilities. Mr Holmes' invoices for the period of 26 August 2024 to 10 September 2025 demonstrate Mr Holmes was regularly working around 40 hours per week at Torbay's facilities. Mr Holmes worked less hours in weeks where there was a public holiday and when he had to care for his son after a bike accident. Aside from those periods, Mr Holmes was invoicing Torbay Constructions and Torbay for a total of around 40 hours per week. That was also a consistent pattern for most of the time that Mr Holmes worked on Torbay's facilities, at least since 2021. The extent of regular and ongoing work that Mr Holmes performed at Torbay's facilities weighs in favour of finding Mr Holmes was an employee rather than an independent contractor.

• (iv) Mr Holmes was provided with Torbay Constructions' uniforms to wear when he performed work on site.[16] The fact that Mr Holmes performed work in a Torbay Constructions uniform, as opposed to an Elev8 Constructions and Maintenance uniform, weighs in favour of finding he was an employee rather than an independent contractor.

• (v) Mr Holmes was provided with a Torbay Constructions work vehicle to perform his duties on site.[17] Mr Sheehan also referred to Mr Holmes being subject to Torbay's vehicle use rules.[18] The provision of a work vehicle for Mr Holmes to use in accordance with Torbay's policies weighs in favour of finding Mr Holmes was an employee rather than an independent contractor.

• (vi) Mr Holmes performed other work under the business name Elev8 Constructions and Maintenance during the years that he performed work at Torbay's premises. That included building residential houses and varied work for friends on the weekend.[19] The performance of this other work weighs in favour of finding Mr Holmes was an independent contractor rather than an employee. However, I consider less weight should be afforded to this factor than would often be the case because of the large number of regular hours that Mr Holmes worked at Torbay's premises. Many full-time employees perform work in side businesses outside of their regular working hours. Mr Holmes performing work through his own business during hours he was not working at Torbay's facilities is not overly inconsistent with an employment relationship.

• (vii) Mr Holmes used tools provided by Torbay Constructions to perform work on site.[20] Mr Holmes not being required to provide his own tools weighs in favour of finding he was an employee rather than an independent contractor.

• (viii) Mr Holmes had unrestricted access to Torbay's facilities through keys and fobs.[21] It would be unusual for an independent contractor to be given unrestricted access to Torbay's facilities, particularly in the highly regulated aged care sector. I consider Mr Holmes' unrestricted site access weighs in favour of finding he was an employee rather than an independent contractor.

• (ix) Mr Holmes operated as a sole trader when he performed work at Torbay's facilities, and he did not engage any other employees.[22] Although Mr Holmes had established a family trust to manage the funds he received from his work, a trust is not a separate legal entity. Mr Holmes was the trustee of his family trust in his personal capacity as a sole trader. [23] Mr Holmes did not operate through an incorporated company. I consider Mr Holmes operating as a sole trader with no other employees weighs in favour of finding he was an employee rather than an independent contractor.

• (x) Mr Holmes was provided with PowerPass cards issued by Torbay Constructions to purchase tools and materials for his work.[24] I consider Mr Holmes' access to company funds to make purchases weighs in favour of finding he was an employee rather than an independent contractor.

• (xi) Mr Holmes did not provide quotes for specific construction or renovation jobs that he was requested to perform. Mr Holmes was paid an hourly rate for the time it took to complete the relevant jobs.[25] I consider the absence of quotes and the payment of an hourly rate for regular ongoing work weighs in favour of finding Mr Holmes was an employee rather than an independent contractor.

• (xii) It does not appear that Torbay Constructions required Mr Holmes to source his own insurance. Ms McDonald was uncertain about what insurance, if any, Mr Holmes was required to have sourced.[26] Mr Holmes provided evidence that he was told on multiple occasions that Torbay Constructions or Torbay had the necessary insurance in place to cover him.[27] I consider the absence of a clear requirement for Mr Holmes to have sourced insurance weighs in favour of finding he was an employee rather than an independent contractor.

(xiii) Mr Holmes was regularly directed to invoice Torbay rather than Torbay Constructions from 26 August 2024 until 10 September 2025. Ms McDonald provided the following explanation for this requirement:

"In August 2024, certain refurbishment and renovation works temporarily transitioned from Torbay Constructions to Torbay Lifestyles and Care for administration and invoicing clarity, costing, and reconciliation. Contractors, including Mr Holmes, continued performing work during this period and were required to direct invoices to the relevant entity. The change in primary contact from Mr Sheehan to Ms Neck was administrative only and did not change Mr Holmes' status or engagement as a contractor..."[28]

Ms McDonald's evidence is consistent with Mr Holmes' evidence that he was told the invoicing change was for "coding reasons."[29] Mr Sheehan also confirmed Ms McDonald directed Mr Holmes as to which entity to invoice.[30]

Contrary to Torbay Constructions' submission, I do not consider Mr Holmes invoicing two separate entities weighs in favour of finding he was an independent contractor rather than an employee. I consider Mr Holmes simply complied with an invoicing direction given by Ms McDonald for internal administrative reasons. I consider the issuing of invoices to two separate companies is a neutral factor to the overall assessment of the relationship.

(xiv) There is no evidence that Mr Holmes created any goodwill for his Elev8 Constructions and Maintenance business from his work at Torbay's facilities. Mr Holmes presented to the outside world as a representative of Torbay Constructions using their uniform and their labelled work vehicle to perform work on Torbay's facilities. The absence of any goodwill creation weighs in favour of finding Mr Holmes was an employee rather than an independent contractor.

• (xv) Torbay Constructions had the power to dismiss Mr Holmes and that is what Mr Sheehan did on 10 September 2025.[31] Ms Chappell confirmed she was also involved in the decision to end Mr Holmes' tenure as the Site Manager.[32] I consider the ability for Torbay Constructions to dismiss Mr Holmes weighs in favour of finding Mr Holmes was an employee rather than an independent contractor.

• (xvi) An email that Mr Holmes sent to Ms McDonald on 26 June 2025 suggests that Mr Holmes had the ability to unilaterally increase his rate of pay.[33] However, an email sent by Mr Holmes to Mr Sheehan on 10 September 2025 states he "did not increase [his] rate until discussion with Carrie and she said there was a 4% increase that was to be coming through."[34] Earlier emails exchanged by Mr Holmes and Mr Sheehan in 2022 suggested Mr Holmes was required to seek approval for any rate increases.[35] I consider the evidence about whether Mr Holmes was able to unilaterally increase his rate of pay is not clear. I consider this to be a neutral factor to the overall assessment.

[11] I consider an overall assessment of the evidence identified above leads to the conclusion that Mr Holmes was an employee of Torbay Constructions when he was dismissed on 10 September 2025.

[12] The factors that weigh in favour of finding Mr Holmes was an independent contractor, such as the issuing of invoices and taxation arrangements, are largely consequential on the labelling adopted by the parties. The parties cannot deem the relationship to be something that it is not. Mr Holmes also did perform some separate building work through his Elev8 Construction and Maintenance business, but he continued working around 40 hours per week at Torbay's facilities when he was performing that work.

[13] In contrast, there are various factors identified above that indicate Mr Holmes was employed by Torbay Constructions in a managerial role to perform regular hours of work in a Torbay Constructions uniform and vehicle. Mr Holmes was given directions about what renovation or construction work to perform by Mr Sheehan or Ms Neck on behalf of Torbay Constructions or Torbay. Mr Holmes was treated like a senior employee in that he was given full access to Torbay's facilities and provided with access to company funds to make purchases. These are all strong indicators of an employment relationship.

• [14] I consider that Mr Holmes remained an employee of Torbay Constructions from 26 August 2024 until 10 September 2025, despite the issuing of invoices to Torbay. I do not consider the existence of an employment relationship between Mr Holmes and Torbay Constructions was disturbed merely because Mr Holmes was directed by Ms McDonald to issue invoices to Torbay. Ms McDonald confirmed this was an administrative change that was not intended to alter the legal relationship. Mr Sheehan also confirmed he made the decision to dismiss Mr Holmes from his Site Manager role.[36] Mr Sheehan is employed by Torbay Constructions.

• [15] In any event, the identification of the correct respondent is not a jurisdictional issue that the Commission must resolve before conducting conciliation and potentially issuing a certificate in relation to a s.365 general protections application involving dismissal.[37] The finding of an employment relationship is sufficient to resolve Torbay Construction's jurisdictional objection.

[16] I find Mr Holmes was an employee of Torbay Constructions and that Mr Holmes was dismissed by Torbay Constructions on 10 September 2025.

[17] Torbay Constructions' jurisdictional objection is dismissed.

[18] Mr Holmes' application will be listed for conciliation at a time to be advised.

Ms K Ansen from Ignite HR & Employment Law for Torbay.

[1] The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 amends the definition of "employee" under the FW Act. The new definition in s.15AA will expressly require consideration of how the contract is performed in practice. That in broad terms overrules the current High Court precedent on the issue.

[2] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 96 ALJR 89; [2022] HCA 1.

[3] ZG Operations Australia Pty Ltd v Jamsek (2022) 96 ALJR 144; [2022] HCA 2.

[4] Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Amending Act), Schedule 1, Part 18.

[5] Amending Act, Schedule 1, Part 18, clause 116.

[6] Amending Act, Schedule 1, Part 18, clause 118.

[7] Which is defined broadly in the Amending Act, Schedule 1, Part 18, clause 119.

[8] Amending Act, Schedule 1, Part 18, clause 119.

[9] (1986) 160 CLR 16.

[10] [2001] HCA 44; (2001) 207 CLR 21.

[11] Jiang Shen Cai v Do Rozario [2011] FWAFB 8307 at [30](4).

[13] ACE Insurance Ltd v Trifunovski (2013) 235 IR 122 Buchanan J at [37].

[15] Transcript at PN151, PN559 and PN560.

[16] Mr Holmes' witness statement - DHB page 27; Mr Sheehan's witness statement - DHB page 103.

[17] Mr Holmes' witness statement - DHB page 27; Mr Sheehan's witness statement - DHB page 103.

[18] Mr Sheehan's witness statement - DHB page 103 - 104.

[19] This is established by the building records provided by Torbay Constructions - DHB page 89 to 95 and Mr Holmes' additional evidence during the hearing on 12 February 2026.

[23] Trusts, trustees and beneficiaries | Australian Taxation Office.

[28] Ms McDonald's witness statement - DHB page 109.

[30] Mr Sheehan's witness statement - DHB page 106.

[37] Joshua Zhou v I-Ping Yang [2025] FWCFB 206 at [20].

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