s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - whether applicant employed by respondent and "dismissed" within the meaning of s.386(1)(a) of Fair Work Act 2009- whether applicant engaged as an independent contractor - meaning of employee for purposes of Act - section 15AA - real substance, practical reality and true nature of the relationship

• [1] The question for determination in these proceedings is whether the applicant, Mr. Cull, was "dismissed" by the respondent, Yannec Developments Pty Ltd (Yannec, or respondent) within the meaning of s.386 of the Fair Work Act 2009 (Cth) (Act). That question arises because Yannec has objected to the applicant's application under s.365 of the Act for the Fair Work Commission (Commission) to deal with a dispute involving the applicant's alleged dismissal which, the applicant contends, was carried out in contravention of the general protections provisions in Part 3-1 of the Act. Yannec's objection is that there was no relevant dismissal because the applicant was never employed by them but rather was engaged as an independent contractor.

• [2] The question of whether a person has been 'dismissed' is one which must be determined before the Commission can deal with the dispute by conducting a conference under s.368 of the Act.[1] I have concluded below that the applicant was not an employee and therefore was not dismissed by the respondent. If follows that no conference can be conducted and the application must be dismissed.

• [3] The evidence in this matter was provided by Mr. Taouk, the respondent's director. The applicant did not file evidence in response to directions and did not attend at the hearing. Mr. Taouk's evidence was therefore unchallenged, and I accept the accuracy of the matters deposed to by Mr. Taouk. Those matters include the following:

(i) The respondent is a business engaged primarily in construction work.

(ii) There was no written contract between the applicant and the respondent. In 2022 the applicant told Mr. Taouk that he conducted his own business importing and exporting wine and meat products, making various items such as sailing jackets and performing work on different properties. The applicant said to Mr. Taouk that he was interested in obtaining more work. Mr Taouk told the applicant that the respondent would be willing to engage his business on a subcontract basis to perform work for the respondent from time to time. The applicant agreed with this arrangement and said it suited him as he also had other interests.

(iii) The respondent engaged the applicant to work on various properties at different times from 2022 onwards. Mr. Taouk would send a message to the applicant to offer work at a particular site. The applicant would decide whether or not to accept the work that was offered.

(iv) The work performed by the applicant for the respondent included cleaning services, some manual labour, some landscaping, and various other odd jobs. The applicant performed the work personally.

(v) In the period in which the applicant was performing work for the respondent, the applicant was at liberty to perform work for other businesses if he chose to do so.

(vi) The applicant held an Australian Business Number (ABN) and would invoice the respondent for work performed using that ABN. The invoices included a business logo and referred to the applicant as a subcontractor. The footer of the invoices included the words "Subcontracting Within Australia Since 2022. JOHN ADDISON CULL ABN. 82 536 446 540 Australian Property Developer Subcontractor".

(vii) According to Australian Business Register records, the applicant's ABN has been 'active' since 2009. The records show that the applicant has been registered as a sole trader for the goods and services tax since July 2020.

(viii) The applicant advertises his business on a social media website using the same logo as was on the invoices provided to the respondent.

(ix) The respondent paid the applicant as per the invoices provided by the applicant. The applicant was paid a daily rate. On occasions he was paid for one half or one quarter of a day. The applicant was not paid an hourly rate or any employee entitlements such as annual leave or personal leave.

(x) On at least one occasion the applicant invoiced the respondent for materials he had purchased and used to perform the work.

(xi) The applicant worked irregularly for the respondent for periods of varying duration. In some weeks the applicant worked for six days, in others he may work as little as one day in a week.

(xii) When the applicant would be offered work by the respondent and accepted the work that was offered, the applicant would ordinarily determine the hours during which the work was performed.

(xiii) The applicant wore his own clothing and did not wear a uniform or other branded clothing of the respondent referring to the respondent.

(xiv) The applicant provided his own transportation and when required, brought his own tools and equipment to perform the work he performed for the respondent.

(xv) The applicant had his own business card referring to his business.

(xvi) The applicant corresponded with third parties on occasions in relation to work he was performing for the respondent. The applicant did not represent himself to third parties as an employee of the respondent. The applicant's email signature said that the applicant was sending the email on behalf of the applicant's business. On at least one occasion the applicant described himself as a subcontractor working closely with Mr. Taouk as his 'representative.'

• [4] Section 15 of the Act provides:

15 Ordinary meanings of employee and employer

(1) A reference in this Act to an employee with its ordinary meaning:

(a) includes a reference to a person who is usually such an employee; and

(b) does not include a person on a vocational placement.

Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State.

(2) A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer.

Note: Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State.

• [5] The method by which the ordinary meaning of the terms 'employer' and 'employee' is to be ascertained for the purposes of the Act is now set out in s.15AA. Section 15AA of the Act was inserted by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) and commenced on 26 August 2024. It applies to a relationship entered into before that commencement date that is in existence as at that date[2] which is the case here. Section 15AA provides 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.

Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

(3) Subsections (1) and (2) do not apply to the following provisions of this Act:

(a) Divisions 2A and 2B of Part 1‑3;

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

• [6] Section 15AA(2) requires a consideration of the totality of the relationship which involves a consideration of, amongst other things, the terms of the contract between the parties and an assessment as to how the contract is performed in practice. The approach to a consideration of the totality of the relationship under s.15AA is guided by the common law principles established by cases such as Stevens v. Brodribb Sawmilling Co. Pty Ltd[3] and Hollis v Vabu Pty Ltd[4] and involves a reversion to the multifactorial test that was well known and widely applied prior to the High Court decisions in CFMMEU v. Personnel Contracting[5] and ZG Operations v. Jamsek.[6]

• [7] Where there is no written contract the terms of any contract must nonetheless be ascertained by reference to the evidence as to oral terms and/or evidence of conduct from which available inferences may be drawn as to whether there was a meeting of the minds necessary for a binding contract and if so, what legal obligations the parties assumed for themselves as part of any contract.[7] In this case the evidence, such as it is, supports the conclusion that the parties intended to and did enter into an independent contracting arrangement. Mr. Taouk offered work on the basis that the applicant would be engaged as a subcontractor and that work would be offered on an 'as needed' basis. The evidence as to the applicant's acceptance indicates that it was understood that he was able to accept or reject any work that was offered and that this was a convenient and workable arrangement for the applicant given his other business interests. There was no evidence to suggest that the contractual terms included terms which conferred on the respondent the right to control how or precisely when the work was to be performed and no evidence of any contractual right to limit the applicant's capacity to work elsewhere during the period when he was performing work for the respondent.

• [8] As is referred to above, the terms of the contract between the parties is one important consideration in determining the legal status of a person engaged to perform work for another but it is the totality of the relationship which must be assessed to ascertain the real substance, practical reality and true nature of the relationship. Here the performance of the contract in practice also supports a conclusion that the applicant was an independent contractor. The applicant provided his own vehicle and tools and equipment. The applicant determined his commencement times once he had agreed to work on a particular job. There was no evidence that he was supervised or directed by the respondent in the work that he did. The applicant was not paid a regular periodic wage but invoiced the respondent for the work undertaken. The applicant did not appear or present himself to third parties as an employee of the respondent. The other evidence as to the applicant's business card, logo and website, the possession by the applicant of an ABN and his description of his status as being one of independent contractor are not determinative but nonetheless all point in favour of a conclusion that the applicant was conducting his own enterprise rather than being employed by the respondent.

• [9] On the basis of the limited evidence before me, I conclude that the applicant was engaged by the respondent as an independent contractor and was not an employee capable of being dismissed for the purposes of s.365.

• [10] The respondent's objection is upheld and the application is dismissed.

Mr Khoury, of Daniel Jude Lawuers Pty Ltd, on behalf of the respondent.

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

[2] Fair Work Act 2009 (Cth), Schedule 1 clause 116(1)(a).

[3] (1986) 160 CLR 16.

[4] [2001] HCA 44; (2001) 207 CLR 21.

[5] [2022] HCA 1.

[6] [2022] HCA 2.

[7] See Personnel Contracting at [177] per Gordon J, Chiodo v. Silk Contract Logistics [2023] FCA 1047.

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