The Applicant: "Never had issue passing police check. Done it last time for you not sure how long goes that one. Happy to do another one if previous one is expired. You know my work tell me your faur (sic) offer and hope we will find good line that is suitable for both" and then "Cheers Joel"[13]

[17] There was no evidence of the Employer imposing a rate of pay on the Applicant. The Applicant was free to accept or reject the rate, and the work. The Applicant later stated an increased rate for some work performed at a different location. The Respondents agreed to that rate. The parties formed a further working relationship, with the Applicant again on the same basis as he had sought previously, performing his work as an independent contractor. The Applicant worked on that basis as a contractor for approximately three months until the Applicant injured himself at work. The Respondents supported him with his injury whilst he received workers compensation payments until he received a return-to-work plan.

Events of alleged dismissal/finalisation of contractor arrangement

• [18] In relation to the Applicant's submission that an alleged dismissal occurred, the Respondents stated that on 12 August 2025, they provided the Applicant with the regular information in relation to the work address and site for a job at the University of Queensland. This work was to take place on 14 August 2025.[14]

• [19] At around 6:00am on 14 August 2025, the Applicant attended the University of Queensland to undertake the work. The Applicant submitted that he could not access the building and therefore contacted the Second Respondent at around 6:30am. The Respondents submitted that the Applicant had ignored the 'out of hours' access signs at the University. The signage advised to call UQ Security for access. Instead the Applicant elected to contact the Respondent for information on access and the access issue was resolved. At around 10:00am, the Second Respondent arrived at the building and he submitted that he found the Applicant working on a ladder, which Mr J Di Lizio said the Applicant should not have been doing. This was contrary to his WorkCover return-to-work plan. This was stated to the Applicant on the basis that the Respondents had supported the Applicant in a Workers' Compensation claim and the work on a ladder was not required and did not align with the limitations of the management of his injury which the company had continued to assist him with. The Applicant had been on Workers' Compensation for a number of months, and the Respondent was frustrated with the Applicant's disregard for his return-to-work plan. An exchange occurred and the Applicant submitted that the Second Respondent stated to the Applicant that he "no longer had a place" with the Respondents. Contrary to this, the Respondents had submitted in their Form F8A that, during the conversation with the Applicant, the Second Respondent stated that part of this exchange was "because I've had enough of how you treat me, constantly telling me I don't know what I'm doing, and no longer believe you want to be here at all or work with this company."[15] The Respondents stated that the comments related to the developing difficulties with the Applicant.

• [20] The Applicant stated that after this conversation, he emailed the Respondents at 10:08am stating his concerns regarding this exchange and that the Second Respondents then returned his email, ending their relationship effective immediately at 10:31am.[16]

• [21] The Applicant's representative submitted that this was a matter of sham contracting, and that the Applicant was an employee of the First Respondent.[17] The Respondents submitted that the Applicant was an independent contractor and that the Applicant had actively sought to reform the previous independent contractor arrangement by nominating his terms. The Applicant had previously undertaken work in the capacity of an independent contractor in 2020.[18] The Applicant stated that he was not provided with either a written employment contract or a contractor agreement.[19] There was evidence of the Applicant in the discussions and text messages, as referred to establishing the basic terms of the independent contractor arrangement as it had previously worked.

Characteristics of the Purported Employment Relationship - Consideration of the Indicia

• [22] The Applicant stated that the Second Respondent was 'in full control' over his work and would typically send a text message in the morning directing him in regard to his work for that day.[20] In relation to this, the Applicant filed a series of text messages between himself and the Second Respondent[21]:

Joel De Lizio: "Thanks for that. Yes please head to Enoggera Monday morning. Do you remember where the concierge office is?"

Joel De Lizio: "[Address], Raby Bay. 7am start. Paint is already onsite. Tim [redacted] is the site supervisor [phone number]"

The Applicant: "Hey mate, just checking with you am I going back Monday to Raby Bay? Have a good weekend"

The Applicant: "Hi Joel, could you please advise where you want me to be tomorrow. Is it at Fortitude Valley? Thanks"

• [23] The Respondents submitted that the Applicant had full control over his hours worked, and that he would arrive late or leave early.[22] No particular control was imposed over the discharge of his trade or work; a minimum of information was generally given, usually confirming the location the Applicant was to complete work on the given day.

• [24] The Applicant stated that the Second Respondent required him to obtain an ABN and provide the company with invoices so that he was not put "on the books".[23] The Applicant stated that he did not receive annual leave, sick leave or public holiday pay, and when he asked about leave, he said that he was told that he did not receive these benefits.[24] There was no persuasive evidence that the Applicant had enquired about these benefits in terms of his first contractor period or the second engagement.

[25] The Respondents stated that the tax invoices clearly displayed that the Applicant was not provided with paid leave, and they submitted that the Applicant was responsible for his own taxation. This was how the Applicant had previously sought to be engaged with the Respondents and the Applicant had automatically operated on this same basis. The Respondents stated that the business associated with the Applicant's ABN (Novo's Painting Prompt & Professional) was the entity from which he provided the invoices to them for the work he had done. The Applicant was also on the trade websites for attracting contract work of Service Tasker, Service Seeking, Service, Yellow Pages, Google, and Instagram.

• [26] The Applicant accepted the current contract with the Respondents on the same basis as he had undertaken work as an independent contractor for the company in 2020. He engaged as he was required and provided invoices to the company. The Applicant provided invoices to the Respondents based on the hours worked at their agreed contractor rate which included work between work sites as he had required from the Respondents. The rate of payment was in excess of the Award rate for an employee undertaking the same work. The Applicant, at the time of his first engagement as a contractor with the Respondents in 2020, had also nominated his payment rate. DiLizio provided the Applicant with higher rates of remuneration than other workers engaged as employees. [25] The Applicant had sought $50 per hour on most work sites and $60 per hour for work situated further than the ordinary working areas. The rate was significantly higher than the hourly rate paid under the relevant Award for an experienced painter. [26]

[27] The Applicant stated that he did not claim business deductions or employ staff. He stated that his only work was from the Respondent, generally completing 38 to 40 hours per week. The Applicant also stated that he attended Toolbox Talks and safety inductions by the Respondents. The Respondents stated that the Applicant had the freedom to work the hours he requested of the company and for which he invoiced them for payment. His attendance at Toolbox Talks was of his own volition. Safety inductions are a regular requirement for contractors and employees to enter particular sites to undertake their work.

• [28] The Applicant stated that, if any repairs resulting from the work undertaken were required to be made, he would return to the site and be paid the hourly rate to undertake the repair work.[27] The Applicant stated that he could not subcontract the work to another worker, and that if he could not attend to undertake the work, the Second Respondent would send someone else in his place.[28] The Respondent stated that the Applicant had not ever requested to send another worker in lieu of himself. [29] The Respondent stated that the Applicant had accepted the second contracting engagement on a similar basis as an independent contractor, with jobs presented and paid at a higher rate on the number of hours worked. The Respondent stated there was no restriction on the Applicant taking other jobs, although he had never raised subcontracting the work or seeking to reduce or increase his hours.

• [29] The Applicant claimed that the Respondents would introduce him to builders and clients as part of "the DiLizio team". The Respondent stated that the offer of the contractor work on the second engagement, like the first was made, on a straightforward clear, flexible, contractor arrangement which the Applicant had sought and voluntarily accepted. During the Determinative Conference, it was stated by the Respondents that the Applicant referred to himself as an independent contractor or sub-contractor:[30]

MR P DI LIZIO: (Indistinct) keeps saying that. The use of the word 'wages' is just so not on, and Sanel knows that. He told everybody he's a subbie. The other thing about the 40 hours a week he did it once. Once. And as far as WorkCover goes I did that to protect us, and thank God we did, because he would have had no income. And all the superannuation was paid, and do you know why I do that? Because that's to protect my company. That's the only reason.

So he's sitting there telling everybody, and Ms Demarco's saying about the wages, the wages, the wages, there's not a person he talks to ever that he said that he was working on wages, that it was '(Indistinct) pay me.' Ever. He tells everybody he's a subcontractor, or 'I am a subcontractor.' There's text messages to say, 'I am a subbie who you call.' 'I'm a subcontractor.' I supplied my truck. When he came to me I said, 'I supply my truck. I supply all my gear. I supply' - 'The only thing you need to do is grab the paint from me and have that on site and I'll do the rest.'"

• [30] The Applicant agreed that DiLizio was making superannuation contributions, which he stated was a total of $2,087.85.[31] These payments included four contributions in 2025 on 30 April 2025, 16 May 2025, 16 June 2025 and 24 June 2025.[32] The Respondents submitted that all work arrangements for their business, including employees and contractors, are paid superannuation. None of this evidence or the reality of their working relationship between the parties reflected a level of control indicative of an employment relationship. Contrary to this, the assessment of these relevant indicia support the conclusion that the Applicant was engaged as an independent contractor.

• [31] The Applicant stated that he did not provide his own insurance for his work.[33] The Respondents submitted that all work arrangements for the DiLizio business, including employees and contractors, are covered by WorkCover Queensland, Public Liability Insurance and the QBCC contractor licencing held by the Respondents.[34]

• [32] On 26 June 2024, the Applicant suffered a workplace injury and in mid-July 2024, he lodged a Workers' Compensation claim with WorkCover Queensland.[35] The claim was accepted on 23 July 2024. In early 2025, the Applicant was placed on a suitable duties plan, which he remained on, as at 14 August 2025. His WorkCover claim ceased on 21 August 2025.[36]

[33] In an email from the Respondents to WorkCover, the Respondents characterised the working relationship as one of independent contracting, stating:

"Sanel is employed with us on an hourly rate ABN basis - standard hours range from 38-40 hours per week." [37]

• [34] The Applicant stated that when he had injured himself at work, that WorkCover Queensland had treated him as an employee of the Respondent, whereby his weekly compensation payments had tax withheld.[38] The Respondent stated that their policy covered the Applicant and this is referred to later in the decision. However, the Respondent stated that the Applicant had affirmed to WorkCover that he would have received no income but for the support of the Respondent. Having supported the Applicant being away from work on WorkCover, Mr J Di Lizio's frustration was evident when the Applicant disregarded his WorkCover return to work limitations and was found working up on a ladder. This, and the other events on the final day, led to the separation of the parties' working arrangement. The Applicant's receipt of the WorkCover payments does not exclude him from being engaged by the business as a contractor. The Respondent having supported the Applicant for the majority of his engagement whilst he was on WorkCover, was understandably concerned when the Applicant was not complying with the limitations of his return to work program to manage his injury. This, and other exchanges, led to the separation of the work agreement between the parties.

• [35] The Applicant stated that when he first joined the Respondents, he was provided by the Second Respondent with a company t-shirt with the DiLizio logo on it.[39] The Respondents submitted that the Applicant was not required to wear a uniform, that he was offered a shirt branded with the DiLizio business logo that he could choose to wear. The Respondents further submitted that while it was accepted by them that the Applicant not only did not wear the logo shirt, the Applicant also did not comply when asked to simply wear white work wear to distinguish him as a painter, and the Applicant continued to wear darker clothing.[40]

• [36] The Applicant stated that all tools, equipment, and materials for his jobs were provided by the Respondents.[41] For example, he stated that he would be directed by the Respondents to purchase materials using the DiLizio Dulux Trade Account where required.[42] For example, the Applicant filed a text message from the Second Respondents stating the following:[43]

Joel De Lizio: "Yes correct, if you have to park in the Secure Parking that's ok just flick me the receipt and I'll reimburse you..."

Joel De Lizio: "[Address], Raby Bay. 7am start. Paint is already onsite. Tim [redacted] is the site supervisor [phone number]"

• [37] However, the Respondents submitted that the Applicant provided all of his own tools and equipment for the work; including brushes and ladders, apart from large plant equipment, such as scaffolding, which was supplied by the Respondents.[44] The Applicant did not object to this. This weighs is in favour of the applicant being engaged as a contractor.

[38] Shortly before the Determinative Conference, the Applicant's representative introduced a draft individual tax return of Mr Novo for the financial year ending 30 June 2025. This opened the door to a consideration of the material presented in the Applicant's tax return with respect to the matters under consideration. It was agreed between the parties that the Applicant had been on a period of Workers' Compensation during this financial year; and these payments were reflected on the tax return. However, the Applicant's separate income paid by the Respondent was not included on the document. There were invoices before the Commission that the Applicant had billed to the Respondent during this financial year, including on 4 and 10 July 2024 (of which there was no dispute that the Applicant received payment for). The receipt of this income paid in response to the invoices was not declared as income or evident on the tax return in any way or any associated taxation paid. After this discrepancy was raised by the Respondents, the Commission received the following response from the Applicant's representative:

We wish to bring to Commissioner Spencer's attention the reason for the discrepancy in the document provided to the Commission on 2 December 2025.

We contacted WorkCover to confirm the amounts paid and our client went to see his accountant after the hearing yesterday to understand why the employer's figures were different to ours.

Our client's accountant provided him with the attached pre-filing report. It appears that Di Lizio Panting had only submitted our client's wages to the ATO on 28 November 2025 which explains the difference.

Our client had lodged his tax return for the FYE 30 June 2025 in September 2025. A copy of the attached Notice of Assessment issued on 29 September 2025. A copy of that return from Mr Novo's MyGov ATO is attached. ...

Mr Novo amended his tax return last night to include the additional $9,225 wages received from Di Lizio Painting. A copy of the amended Tax Return is also attached.

Copies of the Tax Return and Notice of Assessment for the financial year ending 30 June 2024 are also attached as requested.

It was neither my or my client's intention to mislead the Commission and we sincerely apologise for any confusion caused."

[39] The explanation of the incomplete tax return tendered on behalf of the Applicant cannot be shifted to the Respondent's responsibility. The Applicant's Workers' Compensation payments were paid directly to him. The Respondents submitted that they report their contractor payments under the ATO's required Taxable Payment Annual Reporting, which is on a different timeframe to employee wages. The Applicant's payments, done by invoices, had never been the subject of tax withholding by the Respondent (in accordance with the contractor arrangement) and the Applicant had not raised this previously despite being an experienced individual in the industry who has worked professionally for years. The Applicant had created, and had access to his own invoices, which the DiLizio business paid out; it is not reasonable to suggest he was dependent upon the reporting of the Respondents for the declaring of his taxable income.

[40] The consideration of the tax return as initially presented on behalf of the Applicant did not include all of his earnings or the associated payment of taxation for the relevant financial period. Whilst it is recognised that the tax return was incomplete; this was not clarified when the document was first attended, but the document was objected to by the Respondent on this basis. The later explanation of the document provided on behalf of the Applicant (above); that the Respondent in terms of the presentation of earnings documents and was somewhat responsible for the omissions in earnings (as paid by the DiLizio business) in response to the Applicant's invoices, and the omission of the taxation elements, was disingenuous.

[41] This explanation could not be reconciled with the omission from the tax return document of the actual payments made by the DiLizio business on provision of the invoices by the Applicant, or with regard to the obligations of the Applicant to include the earnings and taxation payments. He was responsible for this as an independent contractor for the payment of tax in line with the company payments made in response to the invoices. The Applicant had not included in his Tax Return any payments from the Respondent on his invoices with the engagement as an employee. The Applicant was also responsible for any of his business expenses, for example, the document reflected a $17,446 deduction for the cost of managing tax affairs.

[42] The Respondent was not responsible for these omissions, and the presentation of the Applicant's tax return that had been included in the Applicant's case of their own volition could not be reconciled against any alleged conduct by the Respondent. The document was incomplete but it was clear that the income paid in response to the invoices needed to be included and this was reflective of an independent contractor arrangement.

[43] As per the above, the consideration of whether the Applicant is an employee of the First Respondent or an independent contractor requires an assessment of the totality of the relationship between the parties based on the indicia as set out. That is, an assessment or a question of what the true substance and reality of their relationship is required given the terms of any verbal contract and how this was implemented in practice.

• [44] There were text messages filed by the Respondent, which they submitted is evidence of that being a contractor relationship as the Applicant stated that he was a subcontractor in those exchanges on 16 December 2020:[45]

The Applicant: "Forgot to let you know. I will be at Ruby Bay around 8am. Dropping my car for a service and taking loan car."

Mr J Di Lizio: "Really? Wasn't it just serviced 2 months ago and when we did McDonalds?" and "Sure no probs"

The Applicant: "Was not a service it was replacing under warranty drivers cover seat. If you dont believe can proof it to you with paper work with dates. Anyways I am your subbie and no need to proof my self but happy to do so on your request"

Mr J Di Lizio: "That's fine, no proof needed. Thanks"

The Applicant: "If we dont trust each other we dont have nothing to look forward to be honest with you"

[45] The Applicant did not put any evidence before the Commission as to any relevant differences between the contractor relationship he openly referred to conducting with the Respondent in 2020, and the same reformed relationship from May 2024 to August 2025. The Applicant in the above text messages was clearly of the understanding that he was working as a contractor, rather than as an employee. These factors weigh in favour of the second engagement similarly being an independent contracting relationship.

• [46] For the purposes of WorkCover, which is subject to its own statutory tests, it appears that the Applicant was considered to be covered by the Workers' Compensation and Rehabilitation Act 2003 (Qld) (Workers' Compensation Act). The Respondents stated this was on the basis of its Workers' Compensation insurance policy, which it states covers contractors.[46] Under ss.23-25 of the Workers' Compensation Act, contractors can be eligible persons entitled to WorkCover without being a worker. The Respondents clearly communicated that the Applicant was working with them under an ABN to WorkCover, and the Respondents made submissions in relation to matters such as superannuation and insurance, that no matter the work arrangement with them, including employee or contractor, that there was an expectation that all workers would be covered by the DiLizio business in terms of their third-party liability insurance. Therefore, the coverage of the Applicant by WorkCover is not indicative or determinative of an employee relationship as submitted by the Applicant. In this sense, this factor is neutral in the indication.

[47] The Applicant was again, as in 2020, paid by invoice on an hourly basis as presented by the Applicant using his ABN, as such, no tax was withheld and no leave was accrued or provided as one would have ordinarily expected for an employee. The Applicant did not object to this. Further, the Applicant did not receive paid holidays or sick leave, which you would similarly expect for an employee. These factors are indicative of a contractor relationship.

[48] The Applicant was also listed on various websites offering his painting services individually, rather than through the DiLizio entity. As a matter of practical reality, this means that the Applicant was, in effect, competing in the local painting market with the DiLizio business. The Applicant referred to working on his own client's job at the time that the Applicant and Respondents reformed the relationship. There is no evidence of how active the Applicant was in the use of these sites for his services. When he last conducted this work, the Respondents did not oppose that he was listed in his own right there. Further, while the Applicant presented that he was only completing work for the Respondents at the time, there was no indication from the Respondents that he could only perform work for them. This suggests the Applicant was in business with the Respondents on his own account as a contractor, as opposed to an employment relationship.

[49] On the evidence, in relation to the indicia of control, the weight of the responses indicated a contractor relationship with the Respondent. The Respondents directed the Applicant to where he would be working, on which jobs, at which location, and at around what time. In the professional painting industry where the businesses regularly undertake a variety of daily jobs, rather than as an employee or a painter performing work at only one workplace, it is not irregular for an employer or principal to direct an employee or a contractor to different jobs at different sites as they progress through the required work.

[50] There was no discernible difference in terms of the treatment by the Respondents of the Applicant in relation to the allocation of painting jobs as compared to its other contractors or employees. However, no supervision of the Applicant's work was evident. In addition, it is noted that repair painting work being undertaken in additional hours did, however, attract an agreed hourly rate of pay for the Applicant rather than inclusion as part of the ordinary hours. At the worksites, the Applicant could generally determine to commence work and finish work earlier or later. The Applicant had sufficient latitude to determine which parts of the contracted area he would work on and inform the Respondents' other workers, who would perform the other parts of the work as they were directed. The Applicant did collect paint to buy with the company account. The Respondents' provided all large equipment such as scaffolding and paint, but the Applicant provided other equipment such as the truck, brushes, and ladder. This indicated provision of some of his own equipment and a reduced level of control and direction by the Respondents in relation to the discharge of his duties. Differing levels of control can be explained by the degree to which some of these terms were dictated by the host of the work sites' stipulations, such as the specific paints to use and their limitations on hours. Some of these sites included defence contracts. It is reasonable to expect that this contract would include strict parameters for the Respondents to work with. For example, the supply of certain paint to ensure consistency in the whole building, is entirely reasonable. Therefore, when considering the control that the Respondents exercised, it is also necessary to take into account that the work being undertaken was that involving a trade, specifically the painting trade. However, there was no evidence of the Respondent monitoring the nature or quality of the Applicant's work. However, it is recognised that the Respondent freely referred to the Applicant being a very good painter not requiring supervision.

[51] The supply of paint and other materials by the Respondents, including the provision of a company work shirt, or the wearing of white workwear as reflective of the industry standard to distinguish painters from other trades on a worksite, did not exhibit any mandatory obligation by the Applicant, consistent with an employment relationship. The Applicant demonstrated his control over his own work in a manner indicative of a contractor-principal relationship by disregarding these directions. The reference to the Applicant by the Respondents on a site as forming part of the company team of workers and the Applicant's attendance at Tool Talks conducted by the Respondents, represents some recognition of the role of the Applicant, and other people performing work for the Respondents as contractors, as providing employee-like work in this industry. Therefore, when the indicia are considered against the facts of the work and arrangements, the basis and true reality of the work relationship was a sub-contractor / contractor with a principal.

[52] For all of the circumstances and reasons set out above, I am satisfied that considering the legislative tests and the indicia, the real substance and the true reality of the practical nature of the relationship is that the Applicant was an independent contractor. Accordingly, no employment relationship was present and no dismissal pursuant to s.386 of the Act could have occurred. The jurisdictional objection is therefore upheld, and the Applicant's s.365 application is dismissed.

[1] [2020] FCAFC 152.

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

[3] [2025] FWC 978.

[4] Ibid at [17]-[18], footnotes excluded.

[5] [2011] FWAFB 8307 at [30].

[6] Witness Statement of Sanel Novo, Digital Hearing Book page 15.

[11] Respondents Submission in Reply - Annexure TM 10, Digital Hearing Book page 97.

[14] Form F8A - Response to a General Protections Application Involving Dismissal, Digital Hearing Book page 59.

[16] Form F8 - General Protections Application Involving Dismissal, page 9.

[18] Respondents Submission in Reply, Digital Hearing Book page 94.

[19] Witness Statement of Sanel Novo, Digital Hearing Book page 15.

[20] Ibid, Digital Hearing Book page 16.

[21] Ibid, Annexure SN-2, Digital Hearing Book page 22.

[23] Witness Statement of Sanel Novo, Digital Hearing Book page 15.

[26] Building and Construction General On-site Award 2020 [MA000020] 19.1.

[27] Witness Statement of Sanel Novo, Digital Hearing Book page 16.

[31] Witness Statement of Sanel Novo, Digital Hearing Book page 17.

[32] Ibid, Digital Hearing Book page 47.

[33] Ibid, Digital Hearing Book page 16.

[34] Form F8A - Response to a General Protections Application Involving Dismissal, Digital Hearing Book page 61.

[35] Witness Statement of Sanel Novo, Digital Hearing Book page 17.

[38] Witness Statement of Sanel Novo, Digital Court Book, page 17 at [37].

[40] Respondent's Submissions in Reply at [8]; Transcript PN74.

[41] Witness Statement of Sanel Novo, Digital Hearing Book page 16.

[43] Ibid - Annexure SN-2, Digital Hearing Book page 24.

[45] Respondents Submission in Reply - Annexure TM 2, Digital Hearing Book page 98.

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