Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - whether applicant dismissed - whether more than one possible employer - foreign corporation - national system employer - whether relationship one of employer and employee or principal and independent contractor

[1] On 1 October 2025, Ms. Cortes-Brown (applicant) made an application to the Fair Work Commission (Commission) to deal with a dispute involving what the applicant claimed was her dismissal by Search Education Pty Ltd (first respondent) in contravention of the general protections provisions in Part 3-1 of the Fair Work Act 2009 (Cth) (Act). The first respondent objected to the application on the basis that the applicant was not an employee and so could not have been 'dismissed' within the meaning of s.386 of the Act. Further, the first respondent said that the applicant was at all material times engaged by their overseas agent, a Chilean-based corporate entity, CHENAUS SpA, and 'worked under the direct supervision and control of that entity.'

• [2] The Commission is required to deal with and determine an objection that an applicant has not been dismissed prior to conducting a conference under s.368 of the Act.[1] For that purpose, a hearing was conducted on 15 January 2026. At that hearing, Mr. Oyarzun, sole director of CHENAUS SpA appeared for the first respondent. Evidence, including witness statements, was received from the applicant and first respondent, including a witness statement from Mr. Oyarzun on behalf of the first respondent. The witnesses were not required for cross-examination. At the end of that hearing, the applicant made an application under s.586 of the Act to add CHENAUS SpA as a respondent to the proceeding. That application was dealt with on the basis of written submissions and was granted on 2 February 2026.

[3] CHENAUS SpA (second respondent) then filed a response to the application. The response contended that CHENAUS SpA was not a national system employer as it was a foreign entity incorporated and domiciled in Chile and secondly, that the applicant was not employed by them but was engaged as an independent contractor. Consequently, the second respondent maintained that the applicant was not 'dismissed' as that term is defined in s.386. The parties consented to that objection being determined on the papers.

[4] The primary position of the applicant is that she was employed and dismissed by the first respondent in contravention of Part 3-1 of the Act and that the second respondent was 'involved in' those contraventions within the meaning of s.550 of the Act. In the alternative, the applicant says that she was clearly an employee at the time of her dismissal and on the basis of the evidence, if the Commission concludes that the applicant was not employed by the first respondent, the applicant must have been employed (and dismissed) by the second respondent.

[5] The applicant was engaged in the role of 'Student Advisor' from late December 2023 until 10 September 2025. She initially became aware of that position through an Instagram story posted on an account named 'Chilenos en el Mundo' (in English, 'Chileans around the World'). The applicant responded to the story and was interviewed by Mr. Oyarzun. Mr. Oyarzun does not live in Australia. The applicant was advised that the role involved selling courses to students from the Chilean and South American market generally for those students to study in Australia. The name of the first respondent was mentioned at the interview. The applicant was not told that she was to be engaged by CHENAUS SpA and did not receive any correspondence relating to that entity.

[6] The applicant was offered the Student Advisor role and accepted the offer. She began working in that role in Sydney for 20 hours per week from 27 December 2023 until 31 May 2024.

[7] On 30 May 2024, Mr. Oyarzun sent the applicant an email offering her a 'full-time job' consisting of 38 hours work per week with set working hours and payments to be made on the basis of a base weekly rate of pay and commissions based on sales, or 'closings.' The email came from an email address called 'Latinos en el Mundo' (Latinos around the World). The email did not specify the name of the employing entity. On 31 May 2024, the applicant verbally accepted the 'full-time' offer but worked 30 hours per week during a transitional period from 1 June 2024 until 30 June 2024 before commencing to work 38 hours per week from 1 July 2024 until the engagement ended on 10 September 2025.

[8] The applicant worked at the Sydney premises of the first respondent and was paid by electronic transfer by the first respondent. The monthly commission fees earned by the applicant were calculated by Mr. Oyarzun. The applicant 'clocked in' and 'clocked out' on an iPad at the first respondent's office. The applicant generated invoices fortnightly and addressed them to the first respondent. The invoices set out the hours worked and commission payments claimed. Although the first respondent paid the applicant, Mr. Oyarzun's unchallenged evidence, which I accept, was that this was a practical and administrative measure put in place at the second respondent's request and using funds provided by the second respondent to the first respondent, being deductions from commission payments owed by the latter to the former, to facilitate local payments in Australia.

• [9] The applicant used a 'Latinos en el Mundo' email address for her work. The first respondent provided the applicant with a mobile telephone and computer that she used to perform her work. The applicant's day-to-day duties and performance were generally monitored and managed by Mr. Oyarzun.[2]

[10] There was a commercial relationship between the first and second respondents. Mr. Kunwar, the director of the first respondent, described the business of the first respondent as education consultancy. He said the company works with international students and education providers in Australia and engages international sub-agents to perform marketing and referral activities in foreign countries. He said one of those sub-agents is the second respondent. He said the second respondent's role was to promote Australian education providers to prospective students in Chile and refer students to the first respondent.

• [11] A sub-agency agreement between the first and second respondents was in evidence.[3] The agreement provided that the first respondent appointed the second respondent 'to provide student recruitment services from the territory of Chile, but not exclusively, and refer them to' the first respondent. It provided that the first respondent could accept or reject a referred student at its sole discretion and that the first respondent was to assess student applications submitted by the second respondent and pay the second respondent a 50% enrolment commission for each successfully enrolled student referred by the second respondent.

[12] The second respondent had established the two projects, 'Chilenos en el Mundo' and 'Latinos en el Mundo,' for the purpose of recruiting students from Chile and other South American nations. The former operates exclusively in the Chilean domestic market. The latter operates outside Chile and services international markets. These were essentially equivalent to trading names owned and operated by the second respondent. They were not separate legal entities.

[13] The Facebook profile for both "Chilenos en el Mundo' and Latinos en el Mundo' lists the first respondent's business address as their own.

[14] In or about August 2025, the applicant became concerned that she had been engaged under a sham contracting arrangement. On 26 August 2025 she raised these concerns with Mr. Oyarzun by telephone. On the same day the applicant wrote a letter of demand addressed to the first respondent but directed to Mr. Oyarzun's attention, claiming certain entitlements.

[15] On 28 August 2025 the applicant was called to a meeting with Mr. Kunwar to discuss the letter. She was told by Mr. Kunwar, amongst other things, that Mr. Kunwar was responsible for 'fixing problems,' that the issue could be fixed by putting the applicant on a formal full-time employment contract from 1 September 2025, and that Mr. Kunwar would tell Mr. Oyarzun that he was putting the applicant on an employment contract.

[16] On 1 September 2025 Mr. Oyarzun made an offer to the applicant to resolve the matter. The offer was formalised and provided in writing to the applicant on 4 September 2025. On the same day, Mr. Kunwar provided the applicant with a proposed 'contract amendment' document. The document did not identify who the employing entity was. On 9 September 2025 the applicant advised Mr. Oyarzun that the offer was not accepted.

[17] On 10 September 2025 Mr. Oyarzun sent the applicant an email terminating the engagement of the applicant. The correspondence provided, amongst other things, that Mr. Oyarzun had decided to end the 'collaboration' and that if there were additional issues pending 'they must be resolved outside the framework of the employment relationship.'

Identifying the true employer from two or more possibilities

[18] I propose to consider firstly with the issue of which if either of the respondents could be the employer of the applicant such that the applicant can be said to have been dismissed for the purposes of s.365. The question of the true identity of an employer from multiple possibilities often arises in situations where there are multiple related entities in a single corporate group. It appears to have arisen less often in circumstances in which a putative employer contends that the person involved was not an employee of any entity because that person was at all relevant times, an independent contractor. The issue of whether the applicant entered into a contract of employment at all is obviously linked to the question of the identity of the other contracting party, which is discussed in more detail below.

• [19] In Golden Plains Fodder Australia Pty Ltd v. Millard[4] Gray J of the Supreme Court of South Australia said:

Where there is an issue of identifying the employer of an employee when there might be two (or more) possible employers, courts have adopted the approach of resolving the issue by the application of the principles developed for determining whether a person was an employer at all.

The touchstone is the practical reality of the relationship. Courts have consistently emphasised that in determining whether a relationship between parties is one of employment or independent contract, the court should focus on the practical reality of the relationship.

The totality of the circumstances surrounding the relationship of the various parties, including conduct subsequent to the creation of the alleged employment relationship, is relevant.

Documentation created by one or more of the parties describing or evidencing an apparent employment relationship will be relevant to, but not necessarily determinative of, the true character of the relationship. The documentation may have been brought into existence for other purposes, for example, for tax minimisation or the reduction of insurance premiums, without reflecting the reality of the parties' relationship. The payment of wages by a particular entity is not conclusive of the existence of an employment relationship. The beliefs of the employees as to the identity of the employer is admissible and is entitled to be given weight.[5] (citations omitted)

• [20] In the same matter, his Honour White J summarised the principles drawn from the decision of Finn J in In the Matter of C & T Grinter Transport Services Pty Ltd (In Liquidation) & Grinter Transport Pty Ltd (In Liquidation); Ex Parte Fitzgerald & Adams ('Grinter')[6] as follows:
  1. Regard is to be had to the totality of the circumstances surrounding the relationship of the parties.

1. The circumstances may include the factors considered in determining whether a given relationship is an employment relationship at all.

1. Events which occurred after the relevant contract was formed may also be considered.

1. It is the reality of the contractual arrangements which is to be considered. Effect may be given to that underlying reality despite the absence of any submission that certain arrangements are a sham.

1. Payment of wages and issuing a taxation group certificate by one entity is important but not conclusive as to the identity of the employer. It may reflect no more than financial convenience between entities within one corporate group. Nevertheless, such factors will in most cases require active consideration.

1. Documents created by one or more of the entities describing or evidencing their relationship will be relevant, but not necessarily conclusive as to the true character of the relationship. The Court should consider the purpose for the creation of the documents. For example, certain documents may have been prepared for a purpose other than describing the contractual relationship, such as taxation minimisation or reduction of insurance premiums.

1. Conversations and conduct at the time of the engagement of the worker are of considerable significance. The belief of the worker as to the identity of the employer is admissible and should be given due weight.

• 8. When new employees are engaged to work in a business in which a number of separate corporate entities participate other than as partners, it is open to those controlling the business to select the company which is to be the employer. However, that selection must be consistent with the financial and administrative organisation of the business and not otherwise be a sham.[7](citations omitted)

• [21] In the matter of Gothard, AFG Pty Limited (Receivers and Managers appointed) (in liq) v Davey (Gothard) Edmonds J referred to the observations of Kirby ACJ (with whom Clarke and Cole JJA agreed) in Dalgety Farmers Ltd (t/as Grazcos) v Bruce[8] as follows:

In disputes concerning the existence of employment-type arrangements, and the characterisation of those arrangements, the proof of paper documentation, although relevant, will not necessarily he determinative ... Priestley JA and Handley JA in Pitcher ... made it plain that, in determining the identity of a disputed employer, the Court is entitled to consider the reality of the purported contractual arrangements ...

[T]he paper arrangements [are] not irrelevant, and should not be ignored ... In determining whether a contract of service has been entered, and if so with whom, it is necessary to look to the circumstances of the engagement and to ascertain who it was that offered employment, and whether the worker accepted that offer. To determine whether what then ensued was indeed employment (in the sense of a contract of service) it is necessary to look to the whole of the relationship.... Thus the search which is on is for the essence of the relationship, not the simple touchstone of actual control, or the right of control.'

[22] Edmonds J in Gothard also said that insofar as identifying the true employer from a number of possibilities:

'The courts have adopted the position that in undertaking this exercise, they are entitled to take a wide view of the putative relationship, beyond the terms of the contractual documentation, to examine how the parties conducted themselves in practice and whether, where there is contractual documentation, the reality of the situation accords with the terms of that documentation or whether it points to another entity being the employer.'[9]

[23] His Honour listed the aspects of the 'practical realities of the relationship' which have been considered relevant by the authorities referred to as including a consideration of the entity which:

(a) had practical and legal control and direction of the employees;

(b) made decisions about hiring;

(c) made decisions about disciplinary issues;

(d) made decisions about the level of remuneration;

(e) actually paid remuneration;

(f) communicated with employees about leave;

• (g) made decisions about termination of employment.[10]

• [24] More recently, and in an insolvency context, the courts have come to the view that the fact that employment contracts (and payslips) record one entity as the relevant employing entity in a corporate group is merely the starting point and is not determinative.[11]

[25] Having regard to the principles referred to in the authorities above, I have come to the view that the first respondent was not the true employer of the applicant. It is clear enough on the evidence that the first and second respondents are separate business and legal entities that have a longstanding commercial relationship with each other. It is also clear that, as part of that relationship, certain logistical arrangements were entered into by those parties in their mutual interests. This included Australian-based workers such as the applicant being able to work from the premises of the first respondent. It also included an administrative arrangement whereby the first respondent received the applicant's invoices and paid the applicant for the work performed. I accept the evidence of Mr. Oyarzun that the payment arrangements were entered into between the first and second respondent as a matter of administrative convenience and that the amounts paid ultimately came from the funds of the second respondent. In that situation, in the assessment of whether the first respondent was the true employer of the applicant, little weight should be accorded to the fact that the applicant was physically paid by the first respondent.

[26] I also accept Mr. Oyarzun's evidence that the first respondent did not ultimately determine the applicant's remuneration, commissions or continued engagement. These were matters that were determined by the second respondent. Further, as Mr. Oyarzun confirmed, it was he who interviewed the applicant and made the decision to engage her on the 'Latinos en el Mundo' project. It was Mr. Oyarzun who oversaw and coordinated the applicant's work on a day-to-day basis. In Mr. Oyarzun's own words:

At no point did Search Education direct Claudia's work, manage her performance, approve her leave, make decisions regarding her remuneration or commissions, or have authority to hire or dismiss her. All of these functions were exercised by me, on behalf of the Chilean company.[12]

[27] Although Mr. Kunwar met with the applicant on 28 August 2025 to try to 'fix' the complaint that the applicant had raised, I consider that this was done on behalf of the second respondent and as a matter of practical convenience, since Mr. Kunwar was based in Australia and Mr. Oyarzun was not. It is also noteworthy that the applicant first raised her concerns directly with Mr. Oyarzun both verbally and in writing and it was he who formalised the proposed settlement of the matter.

[28] Insofar as other documentation of the relationship is concerned, the correspondence of 30 May 2024 from Mr. Oyarzun to the applicant is significant. It contains an offer of terms upon which the relationship between the applicant and the second respondent was to be continued. It was an offer that was ultimately accepted by the applicant. The applicant said, and I accept, that she was never told that she was engaging with the second respondent and was unaware of its existence before these proceedings. Although the correspondence of 30 May 2024 may not have identified the second respondent company by name, the applicant was plainly engaging with Mr. Oyarzun on behalf of the second respondent and not the first respondent. It was the agreement that was reflected in that document which was entered into by the applicant and second respondent and which endured up to the point at which the applicant's engagement came to an end.

[29] On any view, when the totality of the circumstances is considered and the practical realities of the relationship assessed, it could not be said that the first respondent was the true employer of the applicant. The applicant's principal contention to the contrary must therefore be rejected. The evidence and indicators discussed above point strongly towards a relationship between the applicant and the second respondent. Whether that relationship was one of employment from which the applicant was 'dismissed' for the purpose of s.365 of the Act, is a matter to which I now turn.

Application of the general protections provisions in Part 3-1

• [30] In order for a valid application to be made under s.365 of the Act, a person must have been 'dismissed' and the person must allege that the dismissal was in contravention of Part 3-1 of the Act.[13] Section 12 provides that the meaning of 'dismissed' for the purposes of the Act is to be derived from s.386. Section 386 appears in Part 3-2 of the Act which concerns unfair dismissals. It provides, relevantly:

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

• [31] For the purposes of Part 3-2 of the Act, s.380 defines an 'employer' as a 'national system employer.' A 'national system employer' is defined in turn in s.14 to include, relevantly, a constitutional corporation so far as it employs or usually employs an individual.[14] This may be contrasted with s.335 which appears in the general protections provisions in Part 3-1 and provides that, for the purposes of that Part, the terms 'employer' and 'employee' have their ordinary meanings.

[32] A point was raised in these proceedings that there may be a question as to whether, by importing the definition of 'dismissed' in Part 3-2 into s.365 (which appears in Part 3-1), it was intended that, notwithstanding s.335, the term 'employer' insofar as it is relevant to the question of whether a person has been dismissed for the purpose of s.365, is to be confined to 'national system employer' because of the operation of s.380. The applicant claimed that this was not the case and that for the Commission's jurisdiction to be enlivened in a s.365 matter, the person's employment with an 'employer' was a reference to an employer within the ordinary meaning of the term, consistent with s.335.

• [33] Given the text of the provisions in Division 2 of Part 3-1, it is apparent that the legislature has gone to considerable effort to differentiate the application and operation of the provisions of Part 3-1 from other Parts of the Act. The Explanatory Memorandum to the Fair Work Bill 2008 confirms that that the intended operation of the Part includes but also extends beyond action by national system employers.[15] Sections 30G and 30R further extend the operation of Part 3-1 to action taken in a referring state.

[34] Section 15AA, including s.15AA(3), about which more will be said below, also supports the view that except in the limited circumstances where Part 3-1 applies only because of the operation of ss.30G and 30R, it is the ordinary meaning of the terms employer and employee that are relevant for the purposes of Part 3-1including s.365. I think it unlikely that the combined effect of the provisions is that s.365 is only engaged where an employee is dismissed by a national system employer, but for the reasons discussed below it is unnecessary to express a concluded view on the matter.

• [35] For present purposes it is sufficient to note that s.338(1)(a) provides that Part 3-1 of the Act applies to action taken by a 'constitutionally-covered entity.' Such entities include constitutional corporations.[16] A 'constitutional corporation' is one to which paragraph 51(xx) of the Constitution applies.[17] Paragraph 51(xx) provides that a constitutional corporation includes 'foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.' A 'foreign corporation' is one that is formed outside the Commonwealth.[18] The second respondent is clearly a foreign corporation. It is incorporated and domiciled in Chile. On the face of the provisions of s.338, its actions are actions to which Part 3-1 of the Act apply.

[36] In any event, as the applicant correctly contends, even if the reliance on s.386(1) necessitated that the employer has to be a national system employer for the purposes of an application in relation to a dismissal under s.365, for similar reasons, the second respondent would be covered by the provisions. A 'national system employer' includes a constitutional corporation, which in turn includes a foreign corporation, so far as it employs or usually employs an individual. The second respondent is such a corporation.

• [37] Of course, not all of the employment-related activities of foreign corporations are covered by the operation of the Act.[19] There must be a sufficient connection with Australia 'either so far as the constitutional corporation is concerned, or so far as its employees are concerned.'[20] The second respondent contended that notwithstanding the physical presence of the applicant in Australia, it did not carry on business in Australia in a manner sufficient to attract the jurisdiction of the Commission in respect of the applicant's engagement and that the Act did not apply to the relationship. Those submissions must be rejected.

[38] The evidence shows that the applicant performed work in Australia,[21] attended an office in Australia to perform that work, was paid in Australia in Australian currency and the applicant's engagement was terminated while the applicant was in Australia. Moreover, the second respondent's own evidence shows that the applicant responded to a job application form provided by the second respondent which contemplated the second respondent carrying on a business in Australia through the person proposed to be engaged. The form provides that the position is titled "Student Advisor - Sydney (Australia)" and the job "must be carried out from the city of Sydney, Australia." It says that it is 'important' that the candidate has been in Australia for more than 9 months and plans to stay for a second year or longer. It says the candidate would be the first point of contact for Chileans and Latin American people who are already in Australia and are interested in extending their stay with a student visa.

• [39] The applicant's unchallenged evidence was that she worked at the first respondent's premises in Sydney every day unless she was ill in which case she worked remotely.[22] She said she was told by Mr. Oyarzun when she started that she would have to work at those premises for at least a year.[23] I accept that evidence. Mr. Oyarzun's submitted that the second respondent intended for the first respondent's premises in Sydney to be the office location for the applicant and that it was a good selling point to be able to show that the second respondent could provide a physical service in Australia if needed. All of this is more than sufficient to demonstrate the necessary connection between Australia and the applicant and the work that she performed in Australia for the second respondent. The fact that the second respondent did not have an Australian Business Number and had not registered with the Australian Securities and Investment Commission might raise other compliance issues but it is of no assistance to the second respondent in establishing that there is no sufficient connection with Australia given its operations in Australia. I reject the second respondent's argument that it was not a national system employer and that the Commission lacks jurisdiction to deal with the matter under Part 3-1 on that basis.

Whether there was an employment relationship between the applicant and the second respondent, and a dismissal

[40] It is necessary to come to a view as to whether or not there was a relationship of employment between the applicant and the second respondent from which the applicant was dismissed. As to whether a relationship is one of employment as opposed to a contract for services, that matter is now dealt with in s. 15 and s.15AA of the Act which 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.

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.

[41] Section 15AA commenced operation from 26 August 2024.

[42] Section 15AA applies in this case because of s.116 in Part 17 of Schedule 1 of the Act. That section sets out the transitional provisions which apply to the operation of s.15AA and relevantly provides that the section applies on and after commencement to a relationship entered into before commencement that is in existence as at commencement. This is such a relationship.

[43] It was not argued that s.15AA(3)(b) applies here. However, the effect of that subsection is that in order to be able to apply the statutory definition of employer and employee now provided for in s.15AA to the present circumstances, it must be the case that Part 3-1 of the Act would apply to this case because of the operation of ss.338-339 and not because of the operation of ss.30G or 30R which extend the operation of the Part to 'action taken' in referring states. I have concluded above that Part 3-1 would apply in these circumstances because the second respondent is a national system employer whose actions fall within the scope of ss.338-339.

[44] I am therefore required to determine the status of the relationship between the applicant and the second respondent by applying s.15AA and ascertaining the real substance, practical reality and true nature of the relationship between the parties. In doing so I must have regard to the totality of the relationship, including the terms of the contract and how the contract is performed in practice.

[45] The second respondent advanced three broad arguments as to why the relationship between itself and the applicant was not one of employment. First, the second respondent contended that it did not exercise control over the applicant's working hours or attendance. It was put that an early email referring to a full-time equivalent number of working hours was for remuneration calculation purposes and was 'indicative only.' It was said that there was no contractual obligation to work fixed hours and no mandatory contractual attendance requirement. The second respondent said the applicant's hours were not monitored, enforced or treated as a condition of engagement and that as a matter of practice, the applicant determined her own working hours. The second respondent relied on records showing discrepancies between the hours worked and the hours invoiced by the applicant. They said that the electronic entry and exit recording system was operated by the first respondent as an access procedure for their premises and was not used by the second respondent either to monitor the applicant or as a system of payroll verification.

[46] The applicant disputed the claim that she was not subjected to control in relation to her work hours and attendance. She said her day-to-day duties and performance were monitored and managed by Mr. Oyarzun, including attendance and work patterns. She said she was permitted to adjust her working hours on occasions but was always required to notify Mr. Oyarzun of this and if she arrived late or left early, she was still required to complete the prescribed number of hours each day. The applicant described any discrepancies between hours worked and invoiced as small errors such as forgetting to record clock-in or clock-out times or recording them the wrong way round. She said she was reminded by the accounts manager of the first respondent to pay closer attention to the system and had on occasions been required to correct errors such as recording hours of work on a public holiday when she had not in fact worked.

• [47] Where a worker has the capacity to and does in fact determine the times at which work is to be performed, this will generally favour a conclusion that they are working as an independent contractor rather than an employee.[24] I do not accept in this instance that the applicant was at liberty to determine her hours of work or that she did so as a matter of practice. The email of 30 May 2024, which described the 'full-time job opening' that the second respondent wanted to fill, was more than 'indicative.' It was a written offer that was very specific as to both the number of hours to be worked and the days and times on which they were to be worked. The offer was accepted by the applicant. These were binding terms of a contract entered into between the applicant and the second respondent. The terms did not confer on the applicant the right to determine her own hours of work.

[48] The applicant accepted, as do I, that in practice there were variations to the hours of work stipulated in the email correspondence and some discrepancies between the hours nominated by the applicant in invoices and the hours actually worked. However, I am not satisfied on the evidence that the applicant simply worked whatever hours or days that she chose. It is implausible given the degree of control over hours of work and the extension of those hours to the 'full-time job' that the second respondent sought in the email of 30 May 2024, that the arrangement would become one where the applicant simply worked when she pleased. Mr. Oyarzun's own evidence about the degree of supervision and control which he exercised on a day-to-day basis over the work that the applicant performed also does not sit comfortably with the notion that the applicant had complete autonomy over her hours of work and that Mr. Oyarzun took no interest in or exercised no influence over that matter.

[49] The second argument advanced by the second respondent was that the applicant did not receive paid leave or superannuation contributions typically accompanying an employment relationship. The second respondent said that the parties conducted themselves consistently with the understanding that the typical entitlements associated with employment did not apply to the arrangement. That latter proposition does not hold for the full term of the relationship since it was a concern that the applicant was not being treated as an employee, and specifically not receiving paid leave entitlements or superannuation contributions, that prompted the complaint that preceded the termination of her engagement. It was also the case that the applicant was provided with a contract amendment form on 1 September 2025 that referred to 'all other conditions of the employment contract remaining unchanged.' (italics added) There was also no evidence that the parties had discussed the payment or non-payment of leave entitlements or superannuation and agreed that they should be foregone because the relationship was to be one of principal and independent contractor. I do not regard the absence of paid leave entitlements as being a particularly persuasive factor in favour of the second respondent's contention in these circumstances.

[50] The final argument advanced was that the invoicing and remuneration arrangements were inconsistent with an employment relationship. It was said that the second respondent did not operate an Australian payroll in respect of the applicant; there were no payslips issued, no PAYG withholding and no payroll reconciliation against attendance records. Further, the second respondent said the applicant voluntarily adjusted an invoice to exclude payment for a public holiday which she would have been entitled to be paid for as an employee. It was submitted that the remuneration structure - 'self-declared' hours combined with commission payments detailed in invoices reflected a commercial services arrangement rather than an employment relationship.

• [51] The means by which a worker is remunerated,[25] including invoicing arrangements of this kind, should be taken into account in determining the status of the relationship. Generally, invoicing for work done is more likely to reflect a contract for services arrangement but the circumstances as a whole must be considered.[26] The invoices that were provided here were not particularly sophisticated, generally recording an Australian Business Number for the applicant, the hours worked and dates and, where relevant, the commission payment claimed. There was nothing in the invoices to suggest that the applicant supplied and invoiced for anything other than the labour that she supplied. The invoices were supplied and processed fortnightly. Regularity of payment is more likely to feature in an employment relationship.[27] The inclusion of commission payments is of limited assistance as employees can also be paid by way of commission.[28] Overall, the mode of remuneration is a relevant factor but not ultimately determinative.

• [52] In my assessment, many of the remaining aspects of the relationship point strongly towards the existence of an employment relationship. The right to control a person's work and the degree of control actually exercised remain prominent factors in the assessment. The legal right to determine when and how much work is to be performed is a relevant factor. The agreement of 30 May 2024 conferred that right on the second respondent. Mr. Oyarzun's evidence was that he co-ordinated and oversaw the applicant's work on a day-to-day basis. He said he 'coordinated tasks, priorities and reporting expectations' and that he 'managed (the applicant's) performance, approved her leave, made decisions regarding her remuneration or commissions and had the authority to hire and dismiss' the applicant on behalf of the second respondent.[29] These factors favour a conclusion that an employment relationship existed.

• [53] The applicant was also integrated into the business of the second respondent. The second respondent provided corporate marketing materials indicating the applicant was part of its 'Latinos en el Mundo' project and the applicant had a corporate email address and signature associated with that project. Mr. Oyarzun said that the applicant's professional identity formed part of the 'Latinos en el Mundo' project. The applicant's work involved selling courses to international students and that work was undertaken for the benefit of the second respondent. There was little if any real scope for independent entrepreneurship on the part of the applicant. She could not in any meaningful sense be said to be conducting a business on her own account.[30] These are factors which point towards an employment relationship.

• [54] There was no suggestion that the applicant either had the right to delegate work to others or did so as a matter of practice. The applicant performed work personally for the second respondent. Mr. Oyarzun accepted in his submissions that the equipment used by the applicant for her work, a mobile phone and computer, was provided by the second respondent.[31] In the termination letter from Mr. Oyarzun on 10 September 2025, the applicant was instructed to leave those things and 'other work equipment provided to you' at the first respondent's office. These factors also support a conclusion that the applicant was in an employment relationship with the second respondent.

[55] Having taken all of the relevant factors into consideration I am comfortably satisfied that those matters which point in favour of a contract for services are outweighed by those factors which are consistent with an employment relationship and that viewed as a whole, the real substance, practical reality and true nature of the relationship between the applicant and the second respondent was one of employer and employee.

[56] I therefore conclude that the applicant was not employed or dismissed by the first respondent but was employed by the second respondent and dismissed by that company on that employer's initiative by the correspondence from them dated 10 September 2025. The jurisdictional objections of the respondents are dismissed.

[57] The matter will be listed for conference on a date to be fixed.

Ms J MacGinley, of Clayton Utz, appearing on behalf of the applicant.

Mr G Oyarzun, appearing on behalf of the first and second respondents.

[4] [2007] SASC 391.

[6] [2004] FCA 1148.

[8] (1995) 12 NSWCCR 36.

[10] Op cit at [6]. See also Robinson v BMF Pty Ltd (in liq) (No 2) [2022] FCA 1191 at [160] and following.

[11] In the matter of matter of Mosaic Brands Limited (admins apptd) (recs and mgrs apptd) [2025] NSWSC 959 at [36] per Black J.

[13] Civmec Construction & Engineering Pty Ltd v. Minchin [2025] FWCFB 2.

[15] See Explanatory Memorandum at [1346] to [1352].

[18] New South Wales v Commonwealth (1990) 169 CLR 482;

(1990) 90 ALR 355, 358.

[19] Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397 at [43].

[20] Fair Work Ombudsman v Valuair Limited (No 2) [2014] FCA 759 at [68] per Buchanan J.

[21] Glenn Gardner v Milka-Ware International Ltd [ 2010] FWA 1589 at [29].

[24] Stevens v. Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 38.

[25] On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366; (2011) 279 ALR 341 at [276] and following.

[26] See for example Shay v Christopher Shannon [2021] FWC 2815 at [47].

[27] Articulate Restorations & Development Pty Ltd v Crawford (1994) 57 IR 371 at 379.

[28] Chambers and O'Brien v. Broadway Homes Pty Ltd t/a Broadway Homes [2022] FWCFB 129 at [84].

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

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