s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - that Applicant not employed by the Respondent but engaged as an independent contractor - whether Applicant dismissed within the meaning of s.386 of the Act - s.15AA considered - ordinary meaning of employee and employer - real substance, practical reality and true nature of the relationship - relationship found to be that of principal and independent contractor - evidence not contested by the Applicant - no employment relationship found - application dismissed.

• [1] Mr Kirra Roberts (the Applicant) has made an application to deal with contraventions involving dismissal to the Fair Work Commission, pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to this application is Level 9 Fitness Pty Ltd.

• [2] A contravention of s.365 requires a dismissal to have occurred, as defined in s 386. The Respondent in its F8A Form has argued the Applicant does not meet this requirement because they were not employed by the Respondent but engaged by them as an independent contractor. For this reason, they argue that the Applicant could not have been, and was not, dismissed within the meaning of s.386 of the Act.

• [3] The Respondent's jurisdictional objection must be determined before the Commission can proceed to deal with the dispute by conducting a conference under s.368 of the Act.[1]

• [4] Directions were issued for the parties to file evidence and submissions. On 8 August 2025, parties were advised the jurisdictional objection was listed for a hearing on Thursday, 11 September at 10:00am and directed to attend a Mention on August 20th. Both parties filed relevant materials, including an Independent Contractor Agreement entered between them, and attended the Mention and confirmed their attendance at the scheduled hearing.

• [5] However, only the Respondent presented to provide evidence and submissions at the hearing. After being contacted by my Chambers prior to the hearing commencing, the Applicant indicated he was unable to attend because he was at work. The Applicant did not attend, despite being aware the matter would proceed. Later the same day, the Applicant emailed my Chambers indicating he was sorry about the confusion, was recovering from injury and that he would have been in attendance if he properly understood the hearing would proceed without him.

• [6] I have considered the Applicant's submissions, explanations and material provided to support his position with respect to the Respondent's objection. In the circumstances, I consider it appropriate to determine this question on the material available. This decision records that determination.

• [7] In responding to my directions, the Applicant made me aware of challenges he was dealing with including sick family members, illness and the forced change of employment that had limited his ability to provide more detailed submissions and material. The material he did provide included a copy of his Independent Contractor Agreement (the Contract) and short submissions of the major issues in support of his argument that he was an employee.

• [8] The Applicant's arguments included that Clause C of the Contract indicated it was subject to change which he submitted seemed unfair and unbalanced. That he had no ability to subcontract his work. That under Clause 2 of the Contract, the Respondent reserved the right to modify the scope of services offered at its discretion and without notice, which he says happened to him. That he was required to perform extra duties, including preparing classes, passing on membership enquiries and attend meetings. That Clause 3 of the Contract indicated it remained in full force and effect indefinitely. And further, that the Respondent had control over when and where he worked.[2]

• [9] Mr Terence Hooi, the Respondent's CEO, provided sworn oral evidence to the Commission in support of the Respondent's submissions, which was uncontested. The Respondent's material also included a copy of the Independent Contactor Agreement signed by the Applicant, invoices provided by the Applicant and paid by the Respondent, along with material demonstrating the Applicant making requests for classes he had organised to be covered, and proposing new classes, along with details of the termination notice provided and post termination settlement agreement.

• [10] Section 365 of the Act provides as follows:

365 Application for the FWC to deal with a dismissal dispute

(a) A person has been dismissed; and

(b) The person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

• [11] Section 386 of the Act sets out when a person is taken to have been dismissed for the purposes of s.365. If relevantly provides:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

• [12] It is clear from the above, a person can only be dismissed when their employment comes to an end in the circumstances described by s 386 subsections (1)(a) or (b). In the absence of a relationship of employee and employer, a person cannot be dismissed within the meaning of the Act and an application under s.365 cannot proceed.

• [13] The means by which the ordinary meaning of the terms "employer" and "employee" are to be determined for the purposes of the FW Act are set out in s.15AA.

Section 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.

• [14] Section 15AA took effect on 26 August 2024. In practical terms, its effect is to reinstate the position and authority applied in the common law by Australian Courts prior to the High Court of Australia's decision in CFMMEU v Personnel Contracting (Personnel Contracting)[3] and ZG Operations v Jamsek (Jamsek)[4].

• [15] Section 15AA requires regard to 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.

• [16] 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.

• [17] To assist drawing this distinction, numerous decisions applying the common law, including of this Commission, have identified a multi-factorial 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,
• The opportunity for profit and risk of loss.

• [18] In Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario,[6] the Full Bench of the predecessor of this Commission identified a similar approach, cautioning however, 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."[7]

• [19] I have reviewed the available evidence and material with respect to the relationship between Mr Roberts and Level 9 Fitness in the present case. The contract between them is clearly set out as an Independent Contracting Agreement. It includes terms with respect to services, performance, term, invoicing, non-exclusivity, payment, and makes explicitly clear their relationship is one of independent contractor, not employment. My assessment is there is nothing particularly onerous or unusual about these terms for them to be considered by a contracting party to freely enter.

• [20] I have further considered the Applicant's submissions and evidence of the Respondent with respect to the totality of their relationship and its true and practical effect, including how the contract was performed in practice. I consider this evidence indicates that the real substance, practical reality and true nature of their relationship was one of principal and independent contractor.

• [21] In reaching this conclusion I am persuaded by the uncontested evidence of the Respondent. This evidence includes the invoicing terms by which the Applicant was paid for services rendered; the freedom of the Applicant to determine when and at which facility he conducted class; and the freedom of the Applicant to perform other work and organise substitute instructors for work he had arranged; that the Applicant was not paid superannuation or leave entitlements and was responsible for his own insurances and ABN.

• [22] I have also considered whether it can be said the Applicant was integrated into the business of the Respondent. However, I do not think that this was the case, as opposed to carrying out a business on his own behalf. The uncontested evidence is that the Applicant had considerable control and independence in relation to the classes he organised and conducted, the time of his work, its location and how in fact it was performed. In my view, the Applicant was not an employee of the Respondent.

• [23] It is important to recognise this conclusion has been reached without the benefit of any active participation from the Applicant in proceedings. As the outcome of these matters is dependent in large measure on findings of fact relating to the practical reality and true nature of the relationship and the performance of the contact over the course of that relationship, it is possible a contested hearing and different findings would have yielded an alternative result.

• [24] In the brief material the Applicant provided for consideration, he referred to being subject to control and requirements to attend meetings and perform services beyond his contract's terms. As no evidence was provided to this effect, these matters can be taken no further.

• [25] Accordingly, the Respondent's jurisdictional objection is upheld, and the application is dismissed for want of jurisdiction.

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

[2] Applicant's email submissions dated 2 September 2025, Court Book p.3-4.

[3] [2022] HCA 1.

[4] [2022] HCA 2.

[5] For example, Hollis v Vabu Pty Ltd [2001] HCA 44; Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1.

[6] [2011] FWAFB 8307.

Printed by authority of the Commonwealth Government Printer