s.365 - Application to deal with contraventions involving dismissal

Chulo Enterprises Pty Ltd, Heidelberg Materials Australia Pty Ltd

Application to deal with contraventions involving dismissal - whether applicant dismissed for the purposes of s.365 - whether applicant engaged as an employee or independent contractor - whether circumstances amounted to a dismissal

[1] The applicant in this matter Mr. Savovski, has commenced proceedings under Part 3-1 of the Fair Work Act 2009 (Cth) (Act) alleging that he was dismissed in contravention of the general protections provisions in that Part of the Act. The respondents to the proceedings are Chulo Enterprises Pty Ltd (Chulo, or first respondent) and Heidelberg Materials Australia Pty Ltd (Heidelberg, or second respondent).

[2] Chulo objected to the application on the basis that the applicant was not employed by them but was engaged at all times as an independent contractor. In that event they said that the applicant could not have been 'dismissed' by them as that term is defined in s.386 of the Act. They also maintained that even if the applicant had been employed by them, he had not, as a matter of fact, been dismissed by them but rather had simply left the workplace of his own accord and not returned. Heidelberg also objected to the application on the basis that Mr. Savovski had a working relationship with Chulo which was a company with whom Heidelberg itself contracted with, but that the applicant did not have an employment relationship or a commercial contractual relationship with Heidelberg and therefore was not and could not have been dismissed by them.

• [3] Objections of the kind referred to above must be determined before the Commission is able to deal with the dispute by conducting a conference under s.368 of the Act.[1] For the reasons that follow I have determined that the applicant was not 'dismissed' for the purposes of Act and that the application itself must therefore be dismissed.

[4] The parties were self-represented. Notwithstanding the directions that were made for the filing of evidence and submissions, the evidence was, to say the least, sparse and the submissions were of only very limited assistance. The following facts were either uncontentious or can be gleaned from the available evidence.

[5] Heidelberg supplies pre-mixed concrete to various customers. It uses the services of various entities to deliver that concrete. Heidelberg has a contractual arrangement with Chulo to deliver concrete to its (Heidelberg's) customers.

[6] During the period in question, the applicant drove a concrete agitator truck. The truck itself was owned by Chulo. The agitator barrel on the back of the truck was owned by Heidelberg.

[7] The applicant delivered loads of concrete in Chulo's truck to various sites as assigned by Heidelberg. The applicant commenced that truck driving work in or about May 2024. At the commencement of his engagement by Chulo, the applicant worked three times per week delivering concrete whilst working twice a week for another business. Eventually the applicant began to work driving Chulo's truck approximately five times per week. The applicant worked mostly during the night when driving the truck owned by Chulo.

[8] There was no written contract between the applicant and Chulo. Prior to the commencement of work by the applicant there was a conversation between the applicant and Chulo's director, Mr. Gorgioski in which the applicant agreed to drive Chulo's truck to deliver Heidelberg's concrete. The details of the conversation were limited. The discussion centred around how the applicant would be paid.

[9] Prior to commencing work with the first respondent the applicant had held an Australian Business Number (ABN). The applicant's possession of an ABN was discussed during this initial conversation with Mr. Gorgioski prior to the applicant commencing his truck driving work. When asked about an ABN during this conversation, the applicant told Mr. Gorgioski that he had an ABN and agreed to work for Chulo using that ABN. The agreement was that the applicant would be paid a fixed amount of $400 to attend and deliver up to three loads of concrete during a 'shift' irrespective of the number of hours worked. Additional loads were paid by Chulo at the rate of $50 per load. That amount was unrelated to the time taken to deliver the loads. The number of loads to be delivered and the destination of the loads were determined by Heidelberg.

[10] The applicant invoiced Chulo for the work performed and he was paid by Chulo on a weekly basis for that work. The applicant quoted his ABN on invoices provided to Chulo. Chulo also paid the applicant an amount for GST, at least for part of the period of his engagement.

[11] Heidelberg supplied a uniform to the applicant that had the applicant's name on it.

[12] Chulo had workers' compensation insurance that covered persons performing work for it.

[13] The applicant accepted that Chulo did not tell him when, where or how he was to perform his work.

[14] 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.

• [15] The method by which the ordinary meaning of the terms 'employer' and 'employee' is to be ascertained for the purposes of the Act is 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). That amendment commenced operation on 26 August 2024. Section 15AA 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.

• [16] 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]. The assessment 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]

[17] There was no submission to the effect that s.15AA(3)(b) applies here and I proceed on the basis that Part 3-1 of the Act applies because of the operation of s.338 and not because of the operation of ss.30G or 30R, which extend the operation of the Part in the case of referring states.

• [18] There is no single exhaustive list of factors to be considered and the considerations and the weight to be attached to them are likely to vary depending on the facts and circumstances of each case. It has been said on numerous occasions by courts and tribunals that the task of assessing the relationship is not carried out by simply ticking off indicia on a checklist and adding up the results. The exercise involves an evaluative judgment. The terms of the contract between the parties remains an important consideration. Where, as was the case here, there was no written contract, the identification of the parties' contractual rights 'must proceed somewhat differently but the fundamental task is the same: the parties contractual rights are to be ascertained and characterised.'[7] Contractual rights are important but the totality of the relationship must be assessed to determine the real substance, practical reality and true nature of the relationship.

• [19] The right to control the work of a person is an indicator of an employment relationship.[8] The substance of the right to control was described by Wilson and Dawson JJ in Stevens v. Brodribb[9] as whether the contractual arrangement "subjects the person engaged to the command of the person engaging" not just as to what shall be done, but how it shall be done.[10] In this case the evidence did not establish that the respondent had the contractual right to control the applicant's work. The evidence as to the oral terms entered into at the commencement of the contract did not include a term conferring a right on the respondent to control the applicant's work.

[20] There was a disagreement between Mr. Gorgioski on behalf Chulo and the applicant in early October 2025 which contributed to the ending of the relationship. Mr. Gorgioski expressed dissatisfaction to the applicant that the applicant had not washed out the truck after the end of a night shift. However, on the evidence I am unable to conclude that there was a direction by Chulo to the applicant or that the interaction reflected an assertion of a general right of Chulo to control the applicant's work. The applicant accepted that as a matter of practice, the respondent did not seek to exercise control over the applicant's work. When asked what if any instructions about his work he received from Mr. Gorgioski on behalf Chulo, the applicant said 'pretty much nothing.' The absence of a right to control and the exercise of control as a matter of practice supports a conclusion that the relationship was one of principal and independent contractor.

[21] The applicant agreed that Chulo had no real role in determining the amount of work he performed. He said that he would work if he was available or if required by Heidelberg. The applicant acknowledged that at least at the commencement of his engagement by Chulo he worked for another business at the same time. In the absence of any contractual terms or other indicators of a casual employment relationship, the applicant's capacity to determine his availability for work in this instance weighs in favour of a conclusion that he was an independent contractor.

[22] To some limited extent it might be said that the applicant was integrated into the business of Chulo. Chulo provided delivery services to Heidelberg on a commercial basis and the applicant was a regular and integral part of the delivery of those services by Chulo. Such indicators point to the existence of an employment relationship but are not determinative. However, I also note that the applicant did not present to third parties such as customers, as an emanation of Chulo's business.

• [23] Although not determinative, an analysis of whether someone is conducting their own independent business as opposed to serving in the business of another can be a useful framework to guide the characterisation of the relationship.[11] The applicant supplied only his labour and the critical piece of equipment - the truck - was supplied by Chulo. The scope for entrepreneurship on the part of the applicant was limited. His earnings depended in large part on the extent to which he made himself available for work at night and there was potentially some risk to the applicant that a lack of availability to deliver Heidelberg's concrete at night would reduce the allocation of work to him. There was no contractual right for Chulo to require the applicant to work at particular times and no assertion of such a right as a matter of practice. In one instance Chulo made a request of the applicant to work on day shifts for a limited period but the request was declined by the applicant.

• [24] The payment arrangements were, from the outset, consistent with an independent contractor arrangement although again this is not necessarily determinative given that payment arrangements and matters such as taxation or insurance cover can in some circumstances simply reflect the subjective views of parties as to the nature of the relationship.[12] The possession of an ABN does not create a separate legal entity for the ABN holder and is of limited assistance in determining the true nature of the relationship. Nonetheless there was no dispute that the parties had set out to create an independent contracting arrangement. The contract was offered and accepted on that basis and reference was made to the use of the ABN. There was no evidence of any discussion of any terms that would be consistent with an employment relationship. The invoicing for the work that was carried out at a fixed rate for specific tasks was consistent with the notion that the parties were conducting themselves on the basis of a relationship of principal and independent contractor.

[25] On balance, I am of the view that the real substance, practical reality and true nature of the relationship between the applicant and Chulo was one of principal and independent contractor. In making the overall assessment of the relationship, I have considered the evidence in its totality. It follows from this conclusion that the applicant could not have been dismissed by Chulo because he was not employed by them. The applicant did not seriously contend that he was at any stage employed by Heidelberg and the evidence in this matter does not support a conclusion that he was. The was no evidence of a contract of employment between the applicant and second respondent on which an employment relationship could be based.

[26] In the event that I am wrong in relation to the conclusions set out above, and for the sake of completeness, I have also considered the question of whether, if the applicant had been employed by Chulo, he was, as a matter of fact, 'dismissed' by them as that term is defined in s.386 of the Act. I have concluded that he was not.

(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.

[28] The applicant contended that he was threatened by Mr. Gorgioski when the disagreement arose over the cleaning of the barrel on the back of the vehicle, that Mr. Gorgioski hid the truck keys from him and failed to properly service the vehicle making it dangerous to drive. He said in the circumstances he was 'pretty much forced' to a position where he was unable to continue his work for Chulo. The applicant said that after his disagreement with Mr. Gorgioski on or about 2 October 2025 he (the applicant) blocked any calls from Mr. Gorgioski. The applicant accepted that Mr. Gorgioski did not at any stage say to him that he was no longer required to work for Chulo.

[29] Mr. Gorgioski also gave evidence as to the circumstances in which the relationship ended. He said he was unhappy that the applicant had not cleaned the barrel on the truck and that he hid the keys so that the applicant would have to approach him and he could then have the conversation with him about cleaning the barrel. Mr. Gorgioski denied engaging in threatening behaviour towards the applicant. He said after the conversation he told the applicant where the keys were and the applicant did one last job. He said the following morning he found out that the applicant had notified Heidelberg of multiple defects with the vehicle, including a blown light globe, and that the applicant had claimed that the truck was unroadworthy. Mr. Gorgioski said he sent the applicant a text message to tell him that there was a spare globe in the vehicle and did not hear from the applicant again. He denied ever telling the applicant that he did not want the applicant to work for him again. I accept Mr. Gorgioski's version of these events.

• [30] The evidence does not disclose that there was a termination of the applicant's employment on Chulo's initiative. There was no action by Chulo that directly and consequentially resulted in the termination of the applicant's employment.[13] Nor was there any action that was intended to bring the employment to an end or had that probable result.[14]

[31] In relation to the allegations about vehicle defects, Mr. Gorgiovski denied this was an issue and said that after the defect notifications by the applicant he was required to take the vehicle to be inspected by Heidelberg's mechanics who concluded that there was nothing wrong with the truck and that it did not require any repairs. He suggested that the complaints were retaliation by the applicant because of the disagreement about the cleaning of the vehicle.

• [32] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v. Tavassoli[15] the Full Bench said in relation to the application of s.386(1)(b):

The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably (sic) result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[16]

[33] There is nothing to suggest that Chulo engaged in conduct with the intention of bring the relationship with the applicant to an end. Further, on the available evidence I am unable to come to the view that the vehicle was unroadworthy and unsafe as alleged by the applicant. Consequently, even if the applicant had been employed by the first respondent, I could not be satisfied that the applicant had no effective or real choice but to resign because of Chulo's failure to maintain a safe workplace.

[34] Even if the applicant had been employed by the respondent there was no 'dismissal' for the purposes of s.365 because the circumstances did not fall within either limb of s.386.

Mr. N Gogioski, appearing on behalf of the first respondent

Mr. C Niven, appearing on behalf of the second respondent

[1] Coles Supply Chain Pty Ltd v. Milford [2020] FCAFC 152.

[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] Chiodo v. Silk Contract Logistics [2023] FCA 1047 at [8]- [9], referred to in EFEX Group Pty Ltd v. Bennett [2024] FCAFC35 at [8].

[9] (1986) 160 CLR 16.

[10] JMC Pty Ltd v. Commissioner of Taxation [2023] FCAFC 76 at [91].

[11] CFMMEU v. Personnel Contracting Pty Ltd [2022] HCA 1 at [35].

[12] ACE insurance Ltd v. Trifunovski [2013] FCAFC 3 at [37] referred to in Chambers and O'Brien v Broadway Homes Pty Ltd t/a Broadway Homes [2022] FWCFB 129 at [86].

[13] Mohazabv Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200 at p. 205]. See also Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162at [75(2)] and Pawel v Advanced Precast Pty Ltd Print S5904

[14] Barkla v. G4S Custodial Services Pty Ltd [2011] FWAFB 3769; Khayam ibid_._

[15] [2017] FWCFB 3941.

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