Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - whether applicant dismissed - whether applicant an employee - applicant not an employee -objection upheld - application dismissed

• [1] Mrs Narcisa Daniloni has applied to the Commission to deal with a dispute under the general protections part of the Fair Work Act 2009 (Cth) ("the Fair Work Act"). She has made her application under section 365 which relates to contraventions involving dismissal. The Respondent, Majosalu Pty Ltd, which trades as Better Homes and Gardens Real Estate Connect ("Majosalu"), said that it could not have dismissed Mrs Daniloni within the meaning of that term for the purposes of section 365 because Mrs Daniloni was an independent subcontractor, not an employee. This decision deals with that objection.

• [2] For the reasons that follow I find Mrs Daniloni was not an employee. Accordingly, the Commission does not have jurisdiction to deal with this matter under section 368 of the Fair Work Act, and the application must be dismissed.

• [3] Part 3-1 of the Fair Work Act provides general workplace protections, including in relation to workplace rights, freedom of association, and protection from discrimination. Various provisions prohibit a person from taking adverse action against another person for particular reasons,[1] in particular circumstances. The protections are not limited to adverse action taken by employers against employees. They apply in other situations as well, including in relation to some forms of action taken by principals against independent contractors.[2]
• [4] Section 365 of the Fair Work Act allows a person to apply for the Commission to deal with a dismissal dispute. The person can do so if, relevantly, they have been dismissed.[3] Section 12, headed "Dictionary," provides for definitions for words used in the Fair Work Act. In relation to "dismissed," s 12 refers the reader to s 386. Subsection 386(1) provides that a person has been dismissed if their employment has been terminated on the employer's initiative or if they were forced to resign from their employment. This means that employment is a prerequisite for dismissal for the purposes of section 365. It follows that if the Applicant was not an employee, the jurisdiction, under that section, is not enlivened.
• [5] Given the matters discussed above and the Respondent's objection, it is necessary to consider whether the Applicant was dismissed, that is, whether their employment had been terminated at the employer's initiative or alternatively they had been forced to resign their employment. The Fair Work Act does not define "employment." Section 335 provides that in the relevant Part of the Act, Part 3-1 - General Protections, "employee" and "employer" have their ordinary meanings.
• [6] Determining whether the Applicant was dismissed will therefore turn on whether she was an employee within the ordinary meaning of that term. Deciding this question is not necessarily straight-forward. There is a long history of decisions in this tribunal and the courts in relation to deciding whether a person is an employee.
• [7] Section 15AA of the Fair Work Act, which took effect from 26 August 2024, deals with determining the ordinary meanings of "employee" and "employer." The new s 15AA applies even if the relationship between the parties commenced before 26 August 2024.[4] Also, if a person has an accrued right or obligation from before that date, it is not extinguished by the amendment of the Fair Work Act to insert s 15AA.[5]

• [8] Having made those observations about the legislative framework I now turn to the application in these proceedings.

• [9] Mrs Daniloni filed her application in the Commission on 25 March 2025. She claims she was employed by, and dismissed by, Majosalu.
• [10] Majosalu filed an employer response on 9 April 2025. It opposed the application and objected on the ground that the Applicant was not an employee and was not dismissed within the meaning of that term for the purposes of s 365 of the Fair Work Act.
• [11] Majosalu filed an outline of submissions on 6 May 2025. Mrs Daniloni filed an outline of submissions on 20 May 2025. The Respondent did not file an outline of submissions in reply.
• [12] A hearing to decide the Respondent's objection was held on 13 June 2025. Neither party was legally represented. The proprietor of Majosalu, Ms Tracy Kennedy, appeared for it. Mrs Daniloni was assisted at the hearing by her husband. Ms Kennedy, Ms Kristen Taylor, and Ms Anna Schroder gave evidence for the Respondent. Mrs Daniloni gave evidence for herself.
• [13] The parties made closing submissions in writing. Majosalu filed its closing submissions on 19 June 2025. Mrs Daniloni filed hers on 27 June. Majosalu filed its reply submissions on 3 July.

• [14] I have considered all of the parties' evidence and submissions, and I have referred to the evidence and submissions as I have considered appropriate.

• [15] The following facts were not in dispute.

• [16] Mrs Daniloni's engagement with Majosalu commenced in May 2024, and came to an end on 4 March 2025.

• [17] There was a written contract ("the contract"), which Mrs Daniloni signed on 10 May 2024, prior to commencement.

• [18] Mrs Daniloni was required to obtain an ABN to take up the engagement with Majosalu.

• [19] The engagement was terminated in writing, by email of 4 March from Ms Kennedy to Mrs Daniloni.

• [20] In determining whether the Commission's jurisdiction has been enlivened for the purposes of section 365, the question is whether Mrs Daniloni was an employee on the date the engagement came to an end, and therefore was susceptible to being dismissed on that date. This requires consideration of the meaning of "employee" as affected by section 15AA of the Fair Work Act 2009 as in force at the time the engagement ended in March 2025. In Murray v 239 Brunswick Pty Ltd,[6] Roberts DP was faced with a similar task. With respect I adopt the Deputy President's summary of the approach to be taken.
• [21] Mrs Daniloni says she was an employee and that Majosalu had disguised genuine employment arrangements as independent contracting arrangements to avoid its responsibilities. Majosalu denies the arrangement was a sham. In these proceedings both the words "subcontractor" and "contractor" were used. Nothing turns on the distinction for present purposes.

• [22] The contract is before me in these proceedings.[7] I consider it to be a fairly typical independent contractor agreement, and it describes Mrs Daniloni as an independent contractor. It also includes a provision making explicit that the relationship is not one of employer and employee (cl 14). However, the parties' label is not determinative of the relationship.

• [23] Mrs Daniloni says she performed work under the direction and control of Majosalu, including the requirement to comply with its policies and procedures, and to meet KPIs. She did not have full ownership over her work nor control over her own business as a contractor should have; she was viewed as a representative of the business to owners, tenants and third parties, performing work on behalf of Majosalu's business, to further that business and its reputation. She says she was required to report to Ms Kennedy, and later another person, and had to answer to them for all the work she completed and how she completed it.

• [24] Majosalu agrees that Mrs Daniloni was required to comply with policies and procedures. It says it wanted things done consistently for clients and any subcontractor, including bookkeepers and cleaners, would be required to comply with its policies and procedures. It argues establishing KPIs is an essential aspect of monitoring service under a contract and does not indicate an employment relationship. There was some contest about the extent to which Mrs Daniloni was able to, or did, refuse to comply with a procedure regarding the keys for the managed properties. Mrs Daniloni's evidence was that she did not refuse to comply but sought to explain why she thought the policy was not best practice. Majosalu also says it did not exercise control over the order in which the work was performed.

• [25] I accept that Majosalu required Mrs Daniloni to comply with its policies and procedures, and that it set KPIs. I do not accept that it had the right to issue directions to her in the day-to-day performance of her property management work. I consider Majosalu exercised only limited control over Mrs Daniloni's performance of the property management services. The degree of control tends to point against a finding that Mrs Daniloni was an employee.

• [26] Mrs Daniloni's evidence was that when she started she wanted to work four days a week. The number of properties would not have warranted full time hours at that point. However, the number of properties increased over time and at the end, when she finished, she had 75 properties. Under questioning she agreed that she was not forced to take on more properties, but instead wanted to take on more properties to grow her income. She said that was how the contract was sold to her.

• [27] I accept that Mrs Daniloni substantially set her own hours, and that she was not required to work a fixed number of hours. I accept that the number of properties under management required Mrs Daniloni to devote a substantial amount of time to the work, and by the end of the engagement the amount of work was at least equivalent to the hours of a full time employee. However, as I understood the evidence Mrs Daniloni took on that amount of work not because she was obliged to but because it was in her financial interest to do so. This ability to set her own number of hours tends to point against an employment relationship.

• [28] As to the location and times at which work was to be performed, Ms Kennedy's evidence was that Mrs Daniloni preferred to work from home, and often worked in the afternoons and evenings rather than the mornings. Ms Kennedy said this was Mrs Daniloni's prerogative as a subcontractor.[8] This was ultimately not in dispute. During cross-examination, Mrs Daniloni put to Ms Kennedy in cross-examination that Ms Kennedy had told her "I don't care what hours you work. Whenever you work, as long as the job is completed. Simple as that. So if you choose to work in the morning or choose to work in the afternoon or evenings you choose, it's your choice. I don't set up certain hours when to work, as long as the job is being completed." Ms Kennedy agreed she had said that to Mrs Daniloni. This is consistent with Ms Kennedy's evidence referred to above. This ability to decide when and where she worked tends to point against Mrs Daniloni being an employee.

• [29] Despite this general flexibility, Mrs Daniloni's evidence was that Ms Kennedy had strict requirements in relation to when she and others had to work in the office, and what meetings they were required to attend. Specifically, she says a mandatory office roster was distributed shortly after she commenced the engagement,[9] and she also refers to a regular Wednesday meeting.

• [30] As to the issue of being required to come into the office, Mrs Daniloni provided a copy of an email from Ms Kennedy of 20 May 2025 which attached a roster on which Mrs Daniloni appeared along with two others. The roster related to attendance on Fridays, and the covering email stated:[10]

Hi team, thank you again for agreeing to be on a Friday in office roster to allow me to have a day off. I will be in sometimes of course, but you being here will give Anna some company and back up in case she needs to go out.

Attached is the roster. Please let me know if any of these days don't work for you. Alternatively you can swap around between yourselves through our Messenger chat also. You don't need to be in the office bang on opening at 8.30. Would you please aim to be there by 10am and stay until at least 2.30, later if you can, but I understand some of you need to get to school pick up.

• [31] Ms Taylor's evidence was that the roster was a request, rather than mandatory. Ms Taylor said Mrs Daniloni had come in according to the roster two or three times and then did not continue doing so. She said there were no consequences for not coming in as rostered. Ms Schroder's evidence was that Ms Kennedy had asked 'everybody' if they would be prepared to participate in a roster so that Ms Schroder would not be left alone in the office. She said it was encouraged but not forced. She estimated Mrs Daniloni had attended the office according to the roster around two times. She said she was not aware of any consequence for failing to come in according to the roster, and thought that there would not be because coming in was not part of the contract. Mrs Daniloni says she attended most of the rostered days.

• [32] There was also a regular meeting at 10 am on Wednesdays for at least part of the period of Mrs Daniloni's engagement. Majosalu submitted that the request to attend meetings was a request only.[11] Ms Taylor's evidence was that people often dialled in rather than attending in person, and there were no consequences for not attending. Mrs Daniloni's evidence was that she attended most of the time, and especially at the beginning, in May, June, and July. She accepted there were no consequences for not attending the meeting.

• [33] I do find that these attendances on some Fridays, or at the Wednesday morning meeting, were not obligatory.

• [34] Mrs Daniloni says she was on the agency website (and realestate.com.au) classified as an employee under the title "Senior Property Manager" and was issued business cards with a work email and phone number. Mrs Daniloni provided a screenshot of realestate.com.au, which does not show her as being referred to as an employee, but as a "team member." It shows Ms Kennedy as "Principal, Sales Agent."[12] These terms are neutral and do not refer to employment. Majosalu denies referring to Mrs Daniloni as an employee, including on its website. It agrees Mrs Daniloni's contact details were on its website. It agrees it provided business cards and says it was Mrs Daniloni's choice whether to use them.

• [35] Mrs Daniloni says that Majosalu provided equipment and materials such as phone, access to software and all website subscriptions (Docusign, IRE, Console, TICA, DATO,). Majosalu agrees it provided a phone service and website access, but says Mrs Daniloni supplied the phone, as well as providing her own computer and a vehicle, and paying for her own fuel and other licensing and insurance costs. There is a minor factual contest about this in that Mrs Daniloni says Majosalu provided her with a phone (i.e., not just the phone service), as well as incidental consumables including access to a printer and paper.[13] In their closing submissions, the parties both sought to assert additional facts about the issue of whether a phone was provided, though I had not been asked to give and had not given leave for them to do so. In any event I do not consider it necessary to make a finding of fact as to which of them provided the phone. It is clear from the matters about which there were no contest that each party to the contract provided some equipment. This consideration provides little assistance to me in this matter.

• [36] Majosalu submits that in Mrs Daniloni's position of Senior Property Manager she contributed to generating goodwill for the benefit of Majosalu and was also generating goodwill for Mrs Daniloni's own business of providing Property Management Services. I consider the fact that Mrs Daniloni and her direct contact details were promoted on Majosalu's website is a consideration that shows that Majosalu was representing Mrs Daniloni as part of its business. I also accept the submission that in providing the services to the clients, Mrs Daniloni was generating some goodwill for her own property management business.

• [37] Mrs Daniloni says she was not able to work for another business, particularly a competitor, during the engagement. Majosalu denies Mrs Daniloni was prevented from working for another business, and points to the restraint provision of the contract, which restrains Mrs Daniloni from approaching its clients and prospective clients that she came into contact with through Majosalu's business, unless she had a pre-existing relationship with them (my paraphrasing). This is not a complete restraint; it is essentially aimed at preventing poaching. The main impediment to Mrs Daniloni taking on other work seems to have been a practical one, namely that Majosalu provided sufficient work to fill the four days Mrs Daniloni initially wanted to work, and ultimately to fill the whole week.

• [38] Mrs Daniloni says Majosalu carried risk and responsibilities of the business and delegated, contracted, and subcontracted work. Majosalu relies on cl 5.1(h) of the contract as requiring Mrs Daniloni to take out all insurances required to be effected by law. I also observe there is an indemnity provision at clause 9 apparently allocating a significant amount of risk to Mrs Daniloni.

• [39] Mrs Daniloni says that under cl 6.1 of the contract she was to supply weekly invoices in arrears for services performed, but this did not happen. She says she received weekly invoices from Majosalu and most of the time she had to remind them to send those invoices to make sure that the payment was correct. Majosalu agrees it generated the invoices because it was an easier system, and it was open to a subcontractor to tell it that the subcontractor wanted to issue their own invoices. Mrs Daniloni obtained an ABN for the purpose of entering into that contract. Though Majosalu generated the invoices, they were invoices to Majosalu in favour of Mrs Daniloni.

• [40] Mrs Daniloni says that in relation to the weekly fees for property management she was also getting a commission of 50% of the letting fee for any new property rented out. Majosalu also says the property managers were paid a weekly fee per property for management, and then 50% of letting fees. The payments to Mrs Daniloni were calculated by reference to the number of properties under management, and a commission on letting fees. They were not calculated by reference to time worked. It was common ground that Majosalu did not provide any paid leave. The remuneration arrangements tend more towards a finding that Mrs Daniloni was not an employee.

• [41] Mrs Daniloni says that from May 2024 to September 2024 no payments were made to Mrs Daniloni's superannuation fund, but after raising this with Ms Kennedy, Majosalu commenced paying superannuation contributions from 9 September 2024. However, the superannuation amount was not included on the weekly payment invoice. Majosalu says that it arranged superannuation payments to be made monthly rather than quarterly after the conversation on 9 September 2024. The payment of an amount said to be for superannuation also does not assist. The expanded definition of employee under superannuation legislation encompasses independent contractors, and domestic workers' superannuation entitlements turn on the number of hours worked per week, not the nature of the relationship.[14]

• [42] Majosalu started withholding tax on 5 February 2025. Mrs Daniloni says she protested on the basis she was not an employee, but a contractor. She says that at that time she was not aware that she was actually in a sham contracting arrangement. Majosalu says Mrs Daniloni's raising of this issue confirms she understood she was a subcontractor, not an employee. It further says that the withholding was the product of a miscommunication between Ms Kennedy and the business's accountant, whose advice had actually been to terminate the subcontractor agreements and engage the people who were presently subcontractors as employees. This matter was explored in the hearing. It is clear that at least until the events of September 2024 neither party held the view that any amount should be withheld for tax.

• [43] Mrs Daniloni's evidence was that she was not allowed to delegate her work.[15] Majosalu submitted that Mrs Daniloni could have delegated the work. On my reading, cl 5 of the contract contemplates Mrs Daniloni, as a person with requisite qualifications and skills, carrying out the services personally, and cl 13 prohibits delegation, assignment, and subcontracting without Majosalu's prior written consent. Ms Kennedy's evidence was that she would have been open to considering a request if made. However, having regard to the contract, the ability to delegate was at least significantly constrained.

• [44] Mrs Daniloni also argued she had an ongoing expectation of work. The contract was, on its face, ongoing, determinable in accordance with cl 10 which provided for, among other things, termination on twenty business days' written notice. This consideration does not assist me in deciding whether Mrs Daniloni was an employee.

• [45] Having taken the foregoing into account, and considering the real substance, practical reality and true nature of the relationship, I find that Mrs Daniloni was not an employee capable of being dismissed on 4 March 2025.

• [46] I find Mrs Daniloni was not an employee. The Respondent's objection is upheld. The application is dismissed.

3 July 2025, Respondent's closing submissions in reply.

[1] Including those in Fair Work Act 2009 (Cth) ss 341, 347 and 351.

[2] Fair Work Act 2009 (Cth) subs 342(1) item 3.

[3] Fair Work Act 2009 (Cth) s 365(a).

[4] Fair Work Act 2009 (Cth) sch 1 subcl 116(1).

[5] Fair Work Act 2009 (Cth) s 40A and sch 1 subcl 116(2) and Acts Interpretation Act 1901 (Cth) s 7.

[6] [2025] FWC 978.

[7] Exhibit 3, Annexure A, and exhibit 4, annexure LD-1.

[11] Respondent's written submissions, filed 19 June 2025, [6](d).

[14] Superannuation Guarantee (Administration) Act 1992 (Cth) s 12.

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