s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - whether the applicant was dismissed - whether the applicant was an employee - found to be an independent contractor - not dismissed within the meaning of s.386 - application dismissed.

• [1] This is a decision concerning the application by Mr Christian Turner (the Applicant) pursuant to s.365 of the Fair Work Act 2009 (Cth) in which he alleges that he was dismissed by InfraBuild Trading Pty Ltd (the Respondent or InfraBuild), in contravention of the general protection provisions contained in Part 3-1 of the Act.

• [2] The Respondent raised a jurisdictional objection to Mr Turner's application being considered by the Commission, namely that Mr Turner was not dismissed within the meaning section 386 of the Act as he was not an employee of the Respondent. This jurisdictional objection is a matter that must be determined before the Commission can proceed to consider Mr Turner's application by conducting a conference under s.368 of the Act.[1]

• [3] The procedural background to the matter is as follows. Directions were provided to the parties for the filing of material. The matter was listed and heard on 22 January 2025 in Melbourne. Mr Turner provided written submissions and gave sworn evidence in proceedings. InfraBuild was represented by Mr Daniel Murray of Ai Group, who made written submissions. The Respondent's evidence was support by the witness statements and sworn evidence of Ms Tina Johns, Mr Nick Woods, Mr Steven Clark and Ms Rita Ren.

• [4] A court book, containing all materials filed by the parties was compiled and distributed to the parties prior to the Hearing. I received the entirety of the court book into evidence, subject to appropriate weight being given to the evidence that was tainted by opinion, irrelevance or hearsay.

• [5] The issue to be determined in the case is whether Mr Turner was an employee of the Respondent. If so, in the event there is no dispute that his employment relationship with the Respondent has come to an end, his general protections application can be considered by the Commission in accordance with s.368. If he is found not to be an employee, his application must be dismissed.

• [6] In determining whether Mr Turner was an employee of the Respondent, s.15AA of the Act requires as follows:

15AA 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.

• [7] Section 15AA took effect on 26 August 2024. In practical terms its effect is to reinstate the position and authority applied in common law by Australian Courts prior to the High Court of Australia's decision in CFMMEU v Personnel Contracting (Personnel Contracting)[2] and ZG Operations v Jamsek (Jamsek)[3].

• [8] The transitional provisions[4] regarding the operation of s.15AA of the Act can be summarised 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.

1. 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 to be determined by reference to the High Court precedent in Personnel Contracting and Jamsek, and without reference to s.15AA of the FW Act.

1. The amendments do not apply in relation to applications that were already "on foot" when the amendments commenced on 26 August 2024.

• [9] Mr Turner filed his application on 21 October 2024, and it was not 'on foot' when the amendments commenced. It is also not in dispute that his relationship with the Respondent was in existence prior to 26 August 2024, and ended on 3 October 2024. On this basis, the transitional provisions require I must assess his relationship with the Respondent with reference to the provisions of s.15AA.

• [10] Section 15AA requires regard must be had to the totality of the relationship, including the terms of the contract governing the relationship and other factors relating to the totality of the relationship, including how the contract is performed in practice.

• [11] This approach draws the distinction as an employment relationship being when an individual provides their personal service (skill, time, effort etc) under a contract of service to be discharged by the individual personally. Whereas an independent contracting relationship is a contract for services where an individual is conducting their own independent business with a degree of control over how their services are provided.

• [12] To assist IN drawing this distinction, numerous decisions applying the common law, including of this Commission, has identified a multi-factorial test to be applied in ascertaining the true nature of the relationship. Key factors to be considered include:[5]

• The degree of discretion and control over how and when works is to be performed.

• The degree of freedom to perform work for others.

• The requirement to provide and maintain tools and equipment.

• The mode of remuneration, including taxation arrangements.

• The provision of clothing and livery and the extent of presentation within the business.

• The provisions of leave and other entitlements usually associated with relationships of employment.

• [13] I have considered these, and the principles set out in the authorities to the circumstances of this case below.

• [14] Mr Turner has been performing work for the Respondent for almost 20 years. His work has generally involved machinery and plant maintenance work, as well as engaging and facilitating the work of contractors on-site in associated activities.

• [15] Initially, he performed work as an employee of a company previously engaged by the Respondent to undertake on-site machinery and plant maintenance work. When his former employer said they were no longer going to undertake this work, he was asked if he was interested in taking on the role. He stated he was and then set up his own propriety limited company called CB Industries to provide services to the Respondent.[6]

• [16] Since this time, Mr Turner has been working for CB Industries, providing plant machinery and maintenance work to the Respondent. He states this involved him consistently working 5 or 6 standard working days a week from 5.45am-2.30pm. Up until 1 July 2020, the basis of his engagement was a verbal contract, supported by invoices and performance.

• [17] The terms of the contract were understood to be that Mr Turner would perform or organise the performance of plant machinery and maintenance work as required or requested by the Respondent. Mr Turner, in turn, through CB Industries would invoice the Respondent for the work he performed. It was understood that if additional work was performed, or additional expenses incurred, the Respondent would be invoiced for these costs by CB Industries.

• [18] On occasion, Mr Turner would engage employees or contractors through CB Industries to assist in the provisions of his services to the Respondent. The Respondent would be invoiced for relevant costs associated with these engagements by CB Industries. Also, on occasion, during this period Mr Turner has been requested and provided similar services for the Respondent at other work sites. CB Industries has issued invoices for this work.

• [19] Invoices issued by CB Industries were inclusive of GST. Mr Turner was paid an income and, when possible, superannuation from CB Industries as an employee. CB industries operated as a company providing services, almost exclusively, for the Respondent for over 15 years. CB Industries had its own workers compensation insurance and, until recently, public liability insurance.

• [20] On 1 July 2020, Mr Turner signed a contract for the purchase of services on behalf of CB Industries with the Respondent. The terms of the contact provided hourly, overtime and public holiday rates of payment of invoices to CB Industries for completed maintenance and related services at the Scoresby site or other service locations as specified on an order-by-order basis in a Purchase Order.[7]

• [21] Other terms included freedom for CB Industries to accept or decline a purchase order; freedom for CB Industries to engage competent employees, agents or subcontractors[8]; freedom for the Respondent to procure maintenance services from alternative sources; express reference to the relationship being one of independent contracting; requirements of CB Industries to retain certain insurances, including workers compensation, public and professional liability and requirements for CB Industries to supply and maintain equipment[9].

• [22] Following a health and safety incident investigation regarding an incident involving an overhead crane and scissor lift, the Respondent wrote to Mr Turner on 19 September 2024 advising that the Contract for the Purchase of Services dated 1 July 2020 between CB Industries and InfraBuild would be terminated effective 3 October 2024.[10]

• [23] Mr Turner's position is that this letter terminated his employment relationship. The Respondent's position is that it was CB Industries contract that was terminated. That as far as it is aware, Mr Turner remains employed by CB Industries. And that he was only in receipt of the termination letter because he was CB Industries nominated contact for the services contract.

• [24] Mr Turner provided written submissions and supporting documents to the Commission that he supplemented with oral evidence. As the Hearing commenced, he sought leave to present a series of additional documents and witness statements from former site managers that were objected to by the Respondent. The documents were not filed in accordance with the directions of the Commission, nor were the proposed witnesses present and ready to give evidence.

• [25] In these circumstances I declined to allow the witness statements to be admitted. In relation to the supporting material, I advised Mr Turner he may refer to it as necessary during submissions and admissibility would be determined as required.[11]

• [26] In presenting his case, Mr Turner accepted that he had entered into a contract of service with the Respondent. That he was an employee and owner of CB Industries, an independent company he set up to provide services to the Respondent.

• [27] He also accepts that on occasion he would engage other employees or contactors to work for CB Industries providing services to the Respondent. Also, that on occasion he provided services to the Respondent at other sites and locations. And that he provided about 50% of the tools and equipment need to perform his work, using the Respondent's equipment for the remaining 50% of his time.

• [28] He maintains that he was really an employee of the Respondent and that his employment relationship was unilaterally terminated on 3 October 2024. In support of this position, a summary of his submissions are as follows:

• He was paid on an hourly basis with no requests to quote for work, or to provide evidence of job completion.

• He worked this way on a regular weekly basis for over 15 years with little variation.

• He had little independence or financial risk arising from his working relationship and had not maintained public liability insurance for some time.

• In addition to maintenance work, he was also a contractor controller for the Respondent.

• That he used and was provided with use of tools and equipment by the Respondent.

• He was required to attend daily tool- box meetings that no other contractor attended.

• He was regularly required to work overtime and weekends.

• He had an expectation of continuing work with no ability to delegate work.

• The day-to-day work was expected to be done by him.

• He had little control over where his work was performed.

• The contract of services he signed only applied to the Scoresby site, and he had been working without a written contract for over 10 years.

• He was provided with company shirts and PPE, along with a company email address.

• He was required to train other contract controllers and perform additional tasks and duties as directed by the Respondent.

• [29] Mr Turner's supporting documents provide evidence of additional duties he performed, such as contacting suppliers. Invoices submitted attest to the services he has provided for an extensive period. Further, that he was provided with a company shirt, email address and received directions from the Respondent.

• [30] On this evidence, he submits he was an employee of the Respondent and that his application should be permitted to proceed.

• [31] The Respondent accepts that in determining the existence of employment relationship the terms and labels of the services contract in existence between the parties is not determinative. That the requirement of s.15AA is for the Commission to have regard to the totality of the relationship, including the terms of the contract governing the relationship and other factors relating to the totality of the relationship, including how the contract is performed in practice.

• [32] Considering the relationship between Mr Turner and the Respondent by reference to both the terms and reality of the performance of the services contract it is their position the true characterisation of the relationship is one of contracting. A contractual relationship between CB Industries and the Respondent.

• [33] In support of this position, the evidence and submissions of the Respondent can be summarised as follows:

• The terms of the services contract between the Applicant and the Respondent clearly set out the relationship between the parties as a contract for the provisions of services.

• That the practical reality of the relationship between the parties is also one of independent parties engaged in a contract for services.

• The Applicant did not work regular or fixed hours and was not expected to do so.

• The Applicant's payments for services varied regularly, consistent with the amount of work performed.

• The Respondent identified tasks it required the Applicant to perform on site. The Applicant was free to determine how these were to be performed, when and by whom.

• CB Industries was free to, and did, engage other employees or contactors to perform work providing services requested by the Respondent.

• CB industries invoiced the Respondent for all work performed by the Applicant and other persons or contactors engaged by CB Industries for that purpose.

• The Applicant was free to provide services to other parties and was not exclusively obliged to perform work for the Respondent.

• CB Industries was required to maintain its own insurances and ensure compliance with legal and taxation obligations.

• CB Industries was required to provide and maintain its own tools and equipment.

• Services were requested to be performed by purchase orders and payments were made to CB Industries by way of tax invoice on completion of services requested.

• The Applicant was not required, or permitted, and did not present himself as an employee of the Respondent.

• The Applicant was never provided paid leave and was free to take leave as he wished.

• CB Industries was not provided with a guarantee of work or requests for service and bore a commercial risk of no guaranteed earnings.

• CB Industries was required to make good any damage or defective work.

• [34] On the above basis, the Respondent's position is that Mr Turner was not an employee of the Respondent and that his application should be dismissed.

• [35] The overwhelming evidence in this case supports the position of the Respondent. Much is also not contested.

• [36] Mr Turner accepts he signed a services contract with the Respondent in 2020. He accepts he created CB Industries as an independent proprietary limited company to provide services to the Respondent.[12] That on occasion he engaged employees and contractors through CB Industries to assist providing services to the Respondent.[13] That he invoiced for services provided and anything additional he was requested to do. And that he paid GST for services rendered, and that he was an employee of CB Industries.[14]

• [37] These concessions alone suggest that the true nature of the relationship between Mr Turner and the Respondent was not one of employment. That he had freedom to engage contractors and/or employees and did. That his mode of remuneration was one of payment for invoices for services rendered, not hours of service. And that he had established an independent company, with appropriate taxation arrangements, for the purposes of providing services to the Respondent.

• [38] This is not to say Mr Turner's application is without some merit. Or that there are not legitimate reasons why there may be a degree of confusion about the relationship between the parties from his perspective.

• [39] In advancing his position, Mr Turner is of the perspective that he has been working for the Respondent almost exclusively for over 15 years. That he performed his work on-site on an almost daily basis and that he would go out of his way to help the Respondent where he could if he was asked, which was usually always the case.

• [40] He felt like he was required to present, and to perform the work asked of CB Industries personally. He submits the fact that he was provided a company shirt and email address support this conclusion.

• [41] Explaining his position and considering the evident freedom and independent nature of his relationship with the Respondent, Mr Turner's evidence is that while he may not be required to perform work for the Respondent, he was obligated. That the reality was "[i]f I want to keep working there, I have no choice".[15]

• [42] I accept this was Mr Turner's perspective, and that he is legitimately aggrieved about how a long-term relationship has come to an end. Ultimately, however, he has not presented any substantive evidence to lead to a conclusion that the true nature of his relationship between himself and the Respondent was one of employment. His own concessions, as indicated above, do not support this to be the case.

• [43] Furthermore, in evidence Mr Turner accepted he had the freedom to seek to unilaterally raise prices for the services he provided and successfully did so.[16] And that he had freedom to not provide his services and at least on one occasion did so as part of a late payment dispute.[17] These freedoms to unilaterally raise prices and withdraw services do not support his position that he was in an employment relationship.

• [44] The evidence of invoices and payment terms presented by both Mr Turner and the Respondent is uncontested and consistent with a relationship between independent contracting parties. Mr Turner would cause CB Industries to invoice for work performed and CB Industries would be paid on receipt of invoices. If he performed additional work, he accepts he would invoice for this and then be paid for it.[18]

• [45] The fact that Mr Turner was paid hourly, was paid a higher rate for work performed on a weekend and that Ms Ren had cause to have some oversight of the hours charged to the Respondent does not take his argument much further in the present circumstances. I also accept Ms Ren's evidence that in seeking to know if the Applicant was working on weekends and public holidays, she had regard to site safety as much as costs incurred.[19]

• [46] The summary of monthly earnings showing a significant variance in Mr Turner's earnings are also indicative he was not paid a regular wage, and his earnings from the Respondent were subject to variance and risk.[20] Again, these are not characteristics indicative of an employment relationship.

• [47] I have no reason to doubt Mr Turner's assertion that he was present at Toolbox meetings and may have often been asked to provide relevant updates on maintenance works and related items. The Respondent accepts he may have been present, but maintains he was not required to attend. Ultimately, however, in proceedings Mr Turner accepts that his presentations at toolbox meetings were as a contractor acting within the scope of his contract.[21]

• [48] Similarly, Mr Turner's submissions that he was able to use company tools and equipment onsite to assist in his duties does little to advance his case. His evidence is that he used his tools for at least 50% of the time. And that he relied on the Respondent's tools for the remainder of the time. Usually this involved use of cranes and lifts on-site that made his tasks easier and did not require him to bring large pieces of equipment on-site.[22]

• [49] With regard to Mr Turner's contention that there was some distinction between the duties he was expected to do as a contract controller and his maintenance duties, I do not accept this to be the case. In reaching this conclusion, I accept Ms Ren's evidence that he was not the only controller the Respondent relied on. Furthermore, the terms of the services contract make clear provisions for contract controller duties within the scope of services to be provided by CB Industries.[23]

• [50] Mr Turner's evidence is that he was initially reluctant to take on the contract controller role because it was not "a good look to have a contractor looking after other contractors".[24] Whilst I agree this may well be the case, the facts of this case remain that he ultimately agreed to take on this work, and performed it as requested. He agreed to do so in his written contract. He invoiced for this work when performed and was paid for his services.

• [51] In terms of his ability to determine how his work was performed, I accept Mr Turner was told what tasks he needed to complete. It was not the case, however, that he was instructed how, when and who would perform these tasks for CB Industries. Rather, as Mr Turner accepted in proceedings, how tasks were done was left up to him, but he was told when they needed to be completed.[25]

• [52] He also accepted in evidence that he signed the contract for services on behalf of CB Industries in July 2020 and that it provides scope for services at locations as per purchase orders. Also, that CB Industries invoiced the Respondent and was paid for services at sites other than Scoresby, including Dandenong.[26]

• [53] Mr Turner accepted that he was not provided with annual leave and could have taken leave if he wished.[27]

• [54] I have considered that it is not disputed Mr Turner was provided with a company shirt and email. Considering the weight and balance of the evidence above however, these facts do not alter my conclusion that the true nature and practical reality of his relationship with the Respondent was one of independent contracting.

• [55] Mr Turner suggests on one occasion when he was working on another site (MRC) he was called by a former operations manager, Mr Robin Durrants, and told "I don't want you working for any other contractor, or for any other company. We've got enough work for you here...".[28]

• [56] Mr Turner submits a similar request was made by Mr Durrants' successor on-site.[29] Neither him or Mr Durrants has provided evidence to the Commission and Mr Turner's assertions can only take this contention so far. While there is no conclusive evidence Mr Turner provided services to anyone but the Respondent, I accept his evidence this was most likely not the case.

• [57] Ultimately, however, the overwhelming evidence set out above is that he was not restricted from doing so. In cross examination, Mr Turner acknowledged this himself, accepting he also had freedom to work for others.[30] The freedom to work for others is again not a factor consistent with a relationship of employment.

• [58] Considering this final factor along with those set out above and the overall circumstances of this case, it is clear to me the real substance, practical reality and true nature of the relationship between Mr Turner and the Respondent was not one of employment, but independent contracting. Therefore, it cannot logically follow that the Applicant was dismissed by the Respondent within the meaning of s.386 of the Act as the Applicant alleges.

• [59] Accordingly, Mr Turner's application cannot proceed for want of jurisdiction and is dismissed.

[1] Coles Supply Chain Pty Ltd v Mitford [2020] FCAFC 152; (2020) 279 FCR 591.

[2] [2022] HCA 1.

[3] [2022] HCA 2.

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

[5] For example, Hollis v Vabu Pty Ltd [2001] HCA 44; Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, among others.

[6] See Transcript of Proceedings at [PN654].

[7] Contract for Purchase of Services, Court Book pages 148 - 163.

[11] Transcript of proceedings at [PN634].

[12] Transcript of proceedings at [PN610].

[13] Transcript of proceedings at [PN688] - [PN690].

[14] Transcript of proceedings at [PN872] - [PN901] and [PN1085] - [PN1096].

[15] Transcript of proceedings at [PN820] - [PN821].

[16] Transcript of proceedings at [PN912] - [PN913].

[17] Transcript of proceedings at [PN950] - [PN956].

[18] Transcript of proceedings at [PN706] and [PN727] - [PN732].

[19] Transcript of proceedings at [PN558].

[20] Witness Statement of Ms Tina Johns, Annexure A_,_ Court Book page 105.

[21] Transcript of proceedings at [PN1024] - [PN1027].

[22] Transcript of proceedings at [PN791].

[23] Transcript of proceedings at [PN860] - [PN868].

[24] Transcript of proceedings at [PN667].

[25] Transcript of proceedings at [PN1080].

[26] Transcript of proceedings at [PN739] - [PN744] and [PN839] - [PN855].

[27] Transcript of proceedings at [PN764].

[28] Transcript of proceedings at [PN670].

[29] Transcript of proceedings at [PN680].

[30] Transcript of proceedings at [PN950] - [PN951].

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