Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application for an order requiring a person to produce documents, records or other information - documents do not have apparent relevance - order not made

• [1] Mr Matthrew Priestley and Ms Mika-Rose Tyson have made applications to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of allegations that they were dismissed from their employment with Blackfisch Films Pty Ltd (Blackfisch Films) in contravention of Part 3-1 of the FW Act.

• [2] Blackfisch Films claims that Mr Priestley and Ms Tyson were independent contractors rather than employees and were not dismissed. As the Commission must be satisfied that Mr Priestley and Ms Tyson were dismissed before dealing with the dispute under s.368, the matters were initially set down for a jurisdictional hearing. The applications were dismissed by the Commission after Mr Priestley and Ms Tyson did not comply with directions to file material in reply. The decision to dismiss the applications was quashed by a Full Bench on appeal. The matters have been remitted to me to determine the jurisdictional issues raised by Blackfisch Films. These matters will be determined following a hearing listed on 9 July 2025.

• [3] Blackfisch Films has made an application for orders for production of the following documents held by financial institutions which Mr Priestley and Ms Tyson hold accounts with:

• Bank statements issued to Ms Tyson in the period from 20 May 2024 to 3 September 2024.

1. Bank statements issued to Mr Priestley in the period from 1 January 2024 to 19 September 2024.

• [4] Blackfisch Films states in the application that its Director Ms Malinda Rutter believes that Ms Tyson and Mr Priestly were in receipt of unemployment benefits during the period that they claim to be employed by Blackfisch Films and that the bank statements will show whether they were in fact receiving these payments.

• [5] Blackfisch Films states that the documents sought in the applications will assist the Commission in reaching a decision as Ms Tyson's and Mr Priestley's claims that they were employed by Blackfisch Films in the relevant period is inconsistent with them also claiming to be unemployed in that period.

• [6] Blackfisch Films was directed to make submissions in support of its application and did so on 4 June 2025.

• In order to be eligible for the youth allowance or the jobseeker payment, an applicant has to be unemployed, and accordingly, while Blackfisch Films does not have a copy of the application documents (which are now completed online), it is self-evident that an applicant for these benefits will have to make a declaration or other formal representation to Centrelink that he or she is unemployed.
• It believes that the bank statements will show the receipt by Ms Tyson and Mr Priestley of the youth allowance and jobseeker payments respectively from Centrelink throughout the relevant periods, and if they do, then the receipt of those benefits which are premised on them being unemployed will be inconsistent with Ms Tyson and Mr Priestley now claiming to the Fair Work Commission in respect of the same periods that each of them was employed by Blackfisch Films.
• The labels the parties use to describe their relationship are always important, although not determinative. But while they are not determinative, the labels used are always important and must be considered. While Ms Tyson's and Mr Priestley's descriptions of themselves as being unemployed is not a label used inter partes, it is nonetheless a label which Ms Tyson and Mr Priestley have given to their status in the relevant period and Blackfisch Films submits is -
  • as important in the consideration of the parties' respective relationships as the labels the parties use inter partes, whether in their contract or elsewhere,
  • probative of the fact that Ms Tyson was not an employee of Blackfisch Films, and similarly that Mr Priestley was also not an employee of Blackfisch Films, and
  • a fact which the Commission should take into account in determining whether Ms Tyson and Mr Priestley were each an employee or independent contractor.
• Further, the bank statements will also indicate the extent to which Ms Tyson and Mr Priestley earned income from other sources in the relevant periods, which is also relevant to the determination of the parties' respective relationship.
• Blackfisch Films respectfully submits that it should be allowed to adduce evidence and reasonably believes that the bank statements will provide that evidence.

• [8] Ms Tyson and Mr Priestley were provided with an opportunity to respond to the submissions of Blackfisch Films but did not do so.

• [9] Section 590(2)(c) of the FW Act gives the Commission the discretionary power to make orders requiring a person to provide copies of documents or records, or any other information to the Commission, for the purpose of the Commission informing itself as to a matter before it.

• [10] In considering whether to exercise its discretion, the Commission is guided by the practice followed by courts in civil proceedings when issuing subpoenas.[1] It is necessary to establish grounds for a belief that a document or class of document exists, and that such a document or class of documents may be or have been in the possession, custody or power of the person required to produce.[2] The documents sought must be identified with sufficient particularity.[3] The documents sought must have apparent relevance to the issues in the proceedings.[4] The test for relevance does not require that a party demonstrate direct relevance, rather, the documents must have some potential relevance.[5] The documents sought must be used to support the requesting party's existing case.[6] An order to produce cannot be used for the purpose of a 'fishing expedition'; that is, used for the purpose of exploring if there is a supportable basis for a case that might potentially be advanced.[7]

• [11] The issue before the Commission is not whether Mr Priestley and Ms Tyson performed work and received remuneration from Blackfisch Films but whether they were employees of Blackfisch Films at the time that they ceased working for Blackfisch Films in September 2024. In this regard, documents filed by Blackfisch Films in the proceedings show that Mr Priestley was regularly paid amounts by Blackfisch Films of usually $500 or $1000 per week from 19 December 2023 to 19 September 2024.[8] These amounts were usually referred to as 'Matt fees on account'. There were also invoices issued by Mr Priestley to Blackfisch Films dating back to July 2019.[9] In addition, Blackfisch Films has filed tax invoices issued by Ms Tyson to Blackfisch Films from 26 July 2024 to 4 September 2024 specifying an hourly rate of $25 per hour for working as a Production Assistant.[10]

• [12] Whether an individual is an employee of a person or whether a person is an employer of an individual for the purposes of the FW Act is to be determined in accordance with s.15AA by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person. In examining the relationship between the parties, relevant matters include whether the putative employee's work was so subordinate to the employer's business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise[11] and the existence of a right of control by a putative employer over the activities of the putative employee.[12]

• [13] Other matters which may be relevant in determining the nature of the relationship include the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the deduction of income tax and the delegation of work.[13]

• [14] Having regard to s.15AA of the FW Act and the relevant authorities, it is difficult for me to accept the contention of Blackfisch Films that a person's characterisation of themselves as 'unemployed' (if indeed this has occurred) could assist in the determination of the relation between Blackfisch Films and each of Mr Priestley and Ms Tyson. If Blackfisch Films claimed that Mr Priestley and Ms Tyson never performed work for it, at a time that Mr Priestley and Ms Tyson were in receipt of unemployment benefits, the receipt of such benefits might support a finding that no work was performed and that hence there was no employment relationship. However, in this case, where there is no such dispute, the receipt of unemployment benefits by Mr Priestley and Ms Tyson, or any declaration made by Mr Priestley and Ms Tyson about their employment status (if this occurred) does not support a finding that they were independent contractors rather than employees of Blackfisch Films when they ceased working. Similarly, the extent to which Ms Tyson and Mr Priestley may have earned income from other sources in the relevant periods, without other probative evidence that they were each running a business, is unlikely to support a finding that they were independent contractors rather than employees of Blackfisch Films, in circumstances where there is no dispute that work was performed and paid for.

• [15] Taking the above matters into account, I find that the documents sought by Blackfisch Films do not have any apparent relevance to establishing whether Mr Priestley and Ms Tyson were independent contractors or employees of Blackfisch Films when they ceased working for Blackfisch Films in September 2024. For these reasons, I do not make the orders sought by Blackfisch Films.

[1] Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 3847, [23].

[2] McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233, [36].

[4] Clermont Coal Pty Ltd v Brown [2015] FWCFB 2460, [19].

[5] McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233, [35].

[6] Kirkman v DP World Melbourne Ltd [2015] FWCFB 3995, [19].

[11] CFMMEU [2022] HCA 1, [39].

[12] CFMMEU [2022] HCA 1, [42]; Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21, 41-45 [47]-[57].

[13] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 24.

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