OZ ESDM PTY LTD v Fair Work Ombudsman [2026] FedCFamC2G 378

(a) OZ ESDM Pty Ltd (ACN 655 012 490) ("OZ ESDM") ;

(b) Best Future Child Development Centre Pty Ltd (ACN 644 340 643) ("Best Future"); and

(c) Australian Allied Early Intervention Pty Ltd (ACN 652 285 736) ("AAEI").

1. It was common ground that at least one of those companies employed Ms Zoe Smith as a therapist.
2. The Ombudsman considered that OZ ESDM was Ms Smith's employer and that OZ ESDM paid her at a lower rate than was required, due to an incorrect classification of her qualifications and skills. The Ombudsman issued a compliance notice on that basis to OZ ESDM. OZ ESDM initially accepted that it was Ms Smith's employer, but disputed that it had incorrectly classified her and underpaid her. Later, OZ ESDM said that it was not Ms Smith's employer. Relying on the principle of substance over form, OZ ESDM said that Ms Smith's initial employer was Best Future, which later transferred her employment to AAEI.
3. Mr Guo is the sole director of OZ ESDM. It was registered on 3 November 2021 and remains registered.
4. Mr Guo was the sole director of Best Future throughout its existence. It was registered on 15 September 2020 and deregistered on 11 August 2024.
5. AAEI was registered on 5 August 2021 and deregistered on 5 August 2024. Mr Guo's mother, Ms Min Zhi Bao, was its sole director during that time.
6. The proceeding brought by the Ombudsman against OZ ESDM and Mr Guo, as an accessory, for non-compliance with the compliance notice ("the compliance notice proceeding") has been stayed pending the outcome of the present application for review of the compliance notice.

(a) its amended statement of claim filed on 4 September 2025;

(b) the affidavits of Ziran Guo:

(i) affirmed on 5 August 2024;

(ii) dated 29 August 2025; and

(iii) dated 10 September 2025, including the statement made by Helen Falieros;

(c) OZ ESDM's submissions filed on:

(i) 5 November 2025; and

(ii) 2 December 2025; and

(d) the exhibits it tendered.

(a) her amended defence filed on 5 September 2025;

(b) her written submissions filed on:

(i) 29 April 2025; and

(ii) 20 November 2025;

(c) the affidavits affirmed by Luke Patrick Finegan on:

(i) 29 April 2025; and

(ii) 27 August 2025;

(d) the affidavit of Nicole Maree Byrne affirmed on 25 February 2025;

(e) the affidavit of Zoe Clare Smith affirmed on 25 February 2025; and

(f) the exhibits the Ombudsman tendered.

1. Mr Guo, Mr Finegan, Ms Byrne and Ms Smith were all cross-examined. In addition, a lawyer employed by the Ombudsman, Olivia Francesca Candaloro, was called to give evidence and was cross-examined. Also, Helen Falieros made a statement which appears at ESDM-11 to the affidavit of Mr Guo dated 10 September 2025. That statement was admitted into evidence by agreement. The Ombudsman did not require Ms Falieros for cross-examination.

1. The compliance notice was issued to OZ ESDM on 18 April 2023. It is contained in the annexure marked ESDM-1 to the affidavit sworn on 5 August 2024 by Mr Guo. The compliance notice alleged contraventions as follows:
   1. The Employer employed Zoe Smith (Employee) on a full-time basis, classified as a Health Professional Level 1 employee in the Award.
   2. The Employer,

(a) between 4 July 2022 and 12 August 2022 (Period 1) contravened a clause of the Award set out in Table 1- Period 1 below; and

(b) on 20 August 2022 (Period 2) - being 8 days after the Employee's entitlement ended pursuant to clause 21.3(a) of the Award - contravened the provision of the FW Act set out in Table 2 - Period 2 below.

Minimum Wage contravention (Full-time Health Professional Employees)

failing to pay the applicable minimum weekly rate to the Employee in respect of ordinary hours worked (Full-time Health Professional Minimum Wage Entitlement)

Accrued annual leave upon termination contravention

failing to pay the Employee their accrued untaken paid annual leave at the end of their employment (Annual leave Entitlement)

Note: When the employment of an employee ends, section 90(2) of the FW Act requires an employer to pay the employee an amount that would have been payable to the employee for any period of untaken paid annual leave (including any applicable annual leave loading entitlement), had the employee taken that period of leave.

1. The compliance notice required OZ ESDM to rectify the alleged underpayments by 18 May 2023. OZ ESDM did not do so. On 4 December 2023, the Ombudsman filed proceedings seeking declarations that:

(a) OZ ESDM had not complied with the compliance notice; and

(b) had not issued payslips; and

(c) Mr Guo was involved in the contraventions by OZ ESDM.

1. While that application was in its interlocutory stages, OZ ESDM filed the present proceedings on 5 August 2024. The compliance notice proceedings were stayed on 6 August 2024, pending the resolution of the present proceedings.
2. The first question for determination is who was Ms Smith's employer.

1. Mr Guo gave unchallenged evidence in his affidavit affirmed on 10 September 2025 that:

(a) he established Best Future in September 2020;

(b) his then wife, Sharon, worked at Best Future;

(c) their relationship broke down in late 2021;

(d) they contemplated Sharon taking over Best Future;

(e) Mr Guo established OZ ESDM on 3 November 2021 in contemplation of starting a similar business to Best Future; and

(f) Ms Smith was recruited by OZ ESDM.

1. Ms Smith said in her affidavit affirmed on 25 February 2025 that:

(a) in about October 2021, she saw an advertisement on Seek.com for a job at OZ ESDM;

(b) she attended an online interview with Mr Guo on 19 October 2021; and

(c) she received an email dated 19 October 2021 offering her a full-time position at OZ ESDM as a child therapist.

1. In fact, the email (annexure ZS-03) does not say that the position is with OZ ESDM. It says "We are pleased to offer you the position of child therapist ...". The email was sent from "Ziran Guo > This contract of employment does not become effective until you commence employment. If employment is not commenced on the date specified in this contract, the contract of employment is not binding on the Company.

1. Schedule 1 of the contract specified the date of commencement as 10 January 2022. Mr Guo said that Ms Smith did not commence employment on 10 January 2022 and therefore the contract was not binding on OZ ESDM. The Ombudsman said that Mr Guo authorised a later start date.
2. Ms Smith said at paragraph 11 of her affidavit that she "was employed by OZ ESDM from 24 January 2022 to 12 August 2022". That is, she conceded that she did not commence employment with OZ ESDM on 10 January 2022. Mr Guo submitted that the effect of that was that the contract was not binding on OZ ESDM and that, when she did commence work, it was with Best Future. The Ombudsman submitted that Ms Smith was authorised by OZ ESDM to commence work after 10 January 2022, and OZ ESDM was her employer.
3. Exhibit 3 contains an email dated 3 January 2022 from Ms Smith to Mr Guo saying that she was with a friend who had tested positive to COVID-19 and would have to quarantine until 10 January 2022. Ms Smith said that she would have to start work on 11 January 2022. She asked if there was anything she could do or needed to do on 10 January 2022.
4. In cross-examination, Mr Guo prevaricated about whether he received that email. The hardcopy of the email that he was taken to in the court book just showed the recipient as his name, without including the email address it was sent to. After repeated attempts, he eventually agreed that, if the email was sent to any of his email addresses, including hr@bestfuture.com.au, he would have received it. In the electronic copy in exhibit 3, clicking on Mr Guo's name shows that the email was indeed sent to hr@bestfuture.com.au.
5. Exhibit 3 also contains a series of text messages between Ms Smith and Mr Guo. The first appears to have been sent on 10 January 2022, because it is followed by the date of 11 January 2022 at 9.08am. The text said that Ms Smith had tested positive and would let Mr Guo know how she was the next morning.
6. On 11 January 2022, Mr Guo asked Ms Smith if she would be able to attend the advanced course that day at 3pm by Zoom. On 12 January 2022, Ms Smith said that she still had symptoms, and someone on the COVID-19 hotline informed her that, if she had a negative RAT in the morning, she would still have to isolate that day. Mr Guo replied that it would probably be best if Ms Smith started on Monday, which would have been 17 January 2022. He also asked how the advanced course went. Ms Smith replied that it was very good.
7. On 16 January 2022, Ms Smith messaged Mr Guo to the effect that she had heard that the Centre (that is, the Best Future Centre) would be closed on Monday 17 January 2022 due to a positive COVID-19 case, and asking if he still wanted her to come in. Mr Guo replied that the Centre would be closed on Monday 17 January 2022 and would probably reopen on Wednesday 19 January 2022.
8. On 18 January 2022, Ms Smith messaged Mr Guo to check about the reopening date. Mr Guo replied, "Reopening tomorrow. But Can we start on Monday?" That referred to Monday 24 January 2022. Ms Smith replied, "Yeah no problem! See you then". On 23 January 2022, Mr Guo sent Ms Smith a message saying, "See you tomorrow morning". Ms Smith replied with a thumbs up emoji. On 24 January 2022, Ms Smith texted Mr Guo saying that she was at the front door. Mr Guo sent her the entry code, and Ms Smith entered the centre at about 8.20am on 24 January 2022.
9. Mr Guo agreed in cross-examination that he did not tell Ms Smith that she did not have a job because she did not start on 10 January 2022.
10. From the bar table, Mr Guo told the court just after the lunch break on the first day of the hearing, during his cross-examination, that he had another version of the contract. The words were the same, but this version was dated 1 December 2021. It was signed by Mr Guo on behalf of OZ ESDM. It was signed by Ms Smith on 13 December 2022. This version of the contract became exhibit 5.
11. Mr Guo then told the court, from the bar table, that:

I now recall that, when this was sent to her, a cover letter would have indicated to her that she would be - not be - working with Oz ESDM, or she would be - you know ---

1. Mr Guo said, from the bar table, that he did not have the cover letter "right now". In cross-examination, he denied saying from the bar table that the cover letter said that Ms Smith would not be working for OZ ESDM. He said:

I think the cover letter would have talked about her arrangement, where she might not be working exclusively for Oz ESDM, or for Oz ESDM.

1. Mr Guo agreed in cross-examination that he had not produced this alleged cover letter to the court in this proceeding, or produced it to the Ombudsman in her investigation into this matter, which Mr Guo had been aware of since November 2022. Mr Guo said that he no longer had access to the alleged cover letter, because Best Future was sold to AAEI. He did not cross-examine Ms Smith about whether she had received the alleged cover letter, and he did not subpoena the alleged cover letter from her.
2. The contract also stated, in clause 25, that:

Except as otherwise provided in this contract, this contract may only be varied by a signed written agreement of the parties.

1. There was no evidence of any written variation of the contract.

1. Mr Guo said in his affidavit dated 10 September 2025 that Ms Smith submitted her tax declaration form in the name of Best Future. That form is exhibit ESDM-3 to Mr Guo's affidavit dated 10 September 2025. It shows that the tax declaration form was pre-printed, with the name of Best Future pre-inserted. The form is not dated, but it is customary for such forms to be completed shortly before or after the commencement of employment.
2. Mr Guo said in paragraph 4(c) of his affidavit dated 29 August 2025 that OZ ESDM never had or maintained a bank account, and never paid wages to Ms Smith. Those claims were unchallenged.
3. Mr Guo said in paragraph 4(c) of his affidavit dated 29 August 2025 that Ms Smith was paid by another company. That claim was unchallenged. The company in question was Best Future. The claim is supported by payslips in the name of Best Future. There were no payslips for Ms Smith in the name of OZ ESDM or AAEI.
4. It was common ground that Ms Smith's pay slips for the periods 28 March 2022 to 10 April 2022 and 23 May 2022 to 5 June 2022 were issued in the name of Best Future. In addition, a spreadsheet, also in the name of Best Future, showed details of Ms Smith's wages for the period 4 to 17 July 2022. On the other hand, Ms Smith's bank statement shows that her salary on 8 July 2022 was paid by AAEI.
5. Mr Guo said in paragraph 4(c) of his affidavit dated 29 August 2025 that OZ ESDM never received funds in relation to Ms Smith. That seems to mean that OZ ESDM never received any money from any clients for the therapy Ms Smith provided. That claim was unchallenged. The implication, which I accept, is that Best Future was paid for Ms Smith's services.
6. It was common ground that Ms Smith's PAYG statement identified OZ ESDM as the employer. Ms Smith agreed in cross-examination that the PAYG statement was emailed to her by Best Future.
7. Mr Guo said in paragraph 4(c) of his affidavit dated 29 August 2025 that Ms Smith was under the day-to-day supervision of another company, meaning Best Future. That claim was not challenged, and was accepted by Ms Smith.
8. Ms Smith said in cross-examination that she understood that Sharon was her boss, and that Sharon was the clinical manager at Best Future. Ms Smith agreed that Sharon was her supervisor. Ms Smith agreed in cross-examination that there was no conversation, email or text message to the effect that Sharon may have been working for OZ ESDM. Ms Smith agreed in cross-examination that Mr Guo rarely attended the premises, and the day-to-day management of the business was run by Sharon.
9. Mr Guo produced in re-examination a copy of Ms Smith's LinkedIn profile, in which she said she worked for Best Future, and described herself as a behaviour support practitioner, rather than as a professional therapist. That document was marked for identification. It was never tendered. However, Ms Smith accepted in cross-examination that she presented herself to the world, including on LinkedIn, as an employee of Best Future. She agreed that, in May, June and July 2022, she was paid by AAEI. She agreed that, on the Best Future website, she was an employee of Best Future.
10. Ms Smith said in cross-examination that her work email and work signage were in the name of Best Future. She said that she attended continuing professional development as a member of the Best Future team. She agreed that she was required to follow Best Future policies, such as the daily start time.
11. Ms Smith agreed in cross-examination that her work colleagues were part of Best Future, and they attended her farewell. She agreed that she was an integral member of the team at Best Future or AAIE. She agreed that Best Future had a website, where good reviews might lead to it getting more clients, but OZ ESDM did not have a website.
12. Mr Guo said from the bar table on 3 September 2025 that he controlled Best Future until April 2022 and he then ceased to be a director or shareholder of Best Future. He also said that he had never been a director of AAEI.
13. Mr Guo said in his affidavit affirmed on 10 September 2025 that:

(a) on 12 January 2022, Sharon established another company instead of taking over Best Future;

(b) Best Future remained with Mr Guo;

(c) by the time Ms Smith started work on 24 January 2022, she began work with Best Future instead of OZ ESDM;

(d) OZ ESDM never had any business activities and never traded;

(e) in their matrimonial settlement on 17 March 2022, Mr Guo and Sharon agreed that OZ ESDM was worth $1,000 and Best Future was worth $50,000;

(f) soon after the settlement, Sharon worked more intensively in her new company, in competition with Best Future;

(g) Sharon took some clients from Best Future and some staff resigned;

(h) by April 2022, Best Future could not meet its obligations;

(i) it sold its intellectual property and website to AAEI;

(j) AAEI is owned by Mr Guo's mother, Min Bao;

(k) Mr Guo owes Ms Bao some money;

(l) she has obtained County Court orders against him;

(m) from April 2022, all staff were employed and paid by AAEI, although the paperwork might not have been fully in order;

(n) by January 2022, OZ ESDM was dormant, having done nothing of substance except enter into a contract with Ms Smith in November 2021; and

(o) Sharon had no involvement with OZ ESDM.

1. Except for the points about which company employed Ms Smith, that evidence was unchallenged.
2. Mr Guo claimed in cross-examination that AAEI acquired Best Future on 26 April 2022. When shown Ms Smith's payslip for the period 23 May 2022 to 5 June 2022 (CB168), showing her employer as Best Future, Mr Guo said that there was a transition, and Ms Smith's payslips were not updated.
3. Helen Falieros signed a statement dated 10 September 2025. It is annexure ESDM-11 to the affidavit affirmed by Mr Guo on 10 September 2025. It was admitted into evidence by agreement, although it was not in affidavit form. The Ombudsman did not require Ms Faileros for cross-examination. That is, her evidence was unchallenged.
4. Ms Falieros said in her statement that she and Ms Smith worked alongside each other from late January or early February 2022 until around August 2022. Ms Falieros said:
   1. We worked at Best Future Child Development Centre Pty Ltd until around April or May 2022. Thereafter, we transitioned to Australian Allied Early Intervention Pty Ltd, trading as Best Future. The payslip system was updated, and the transition was completed in or around July 2022.
   2. This transition was communicated to all staff. I believe Ms Smith was aware of it, as I recall casual conversations about the transition in which she participated.
5. Ms Smith agreed in cross-examination that there was a degree of general mismanagement of accounts and payroll at the business, and it needed improvement.
6. It was common ground that Ms Smith's resignation letter, dated 18 July 2022, was addressed to Mr Guo at "Best Future Child Development Centre". Ms Smith sent her resignation letter by email to hr@bestfuture.com.au. Ms Smith said in her resignation letter that she was "legally required" to work for four weeks from the date of her resignation letter. Her written contract with OZ ESDM specified that six weeks' notice was required. It was put to Ms Smith that her giving four weeks' notice, which was consistent with the contracts her colleagues at AAEI worked under, was consistent with her knowing that her employment had been transitioned from Best Future to AAEI. Ms Smith denied that she was aware of any transition and said that she had given four weeks' notice because it was her understanding that people were meant to give their employers four weeks' notice.

1. In about October 2022, Ms Smith contacted the Ombudsman, saying that she had not been paid by Best Future for the last six weeks of her employment or paid for accrued but untaken annual leave upon termination.
2. Ms Smith agreed in cross-examination that, when she contacted the Ombudsman about her entitlements, she said her employer was Best Future. Ms Smith signed a statement dated 27 October 2022, on the letterhead of the Ombudsman, saying that she was employed by Best Future from 10 January 2022 until 12 August 2022: annexure NB-02 to the affidavit sworn by Ms Byrne on 25 February 2025.
3. In an email to Ms Smith dated 13 February 2022, Ms Byrne noted that Ms Smith's contract of employment was with OZ ESDM: annexure NB-10 to the affidavit sworn by Ms Byrne on 25 February 2025. The heading of the email was "... Further Information Requested ... Best Future ...". Ms Byrne said in the email that she wished to ask Ms Smith about the relationship between OZ ESDM and Best Future.
4. In her reply email dated 14 February 2023 to Ms Byrne, Ms Smith referred to the work environment at Best Future, and her time at Best Future: annexure NB-10 to the affidavit sworn by Ms Byrne on 25 February 2025. Ms Smith did not mention OZ ESDM.
5. Ms Byrne made a note of a telephone call she had with Mr Guo on 23 February 2023: annexure NB-14 to the affidavit sworn by Ms Byrne on 25 February 2025. Mr Guo did not dispute the accuracy of the note. Ms Byrne's note of that conversation records that:

(a) she told Mr Guo that she was investigating allegations by Ms Smith against Best Future;

(b) Mr Guo said that the contract Ms Smith signed was with OZ ESDM;

(c) Ms Byrne noted that Ms Smith's payslips were issued by Best Future, and Mr Guo agreed;

(d) Ms Byrne noted that Ms Smith's wages were deposited into her bank account by AAEI, and Mr Guo agreed, saying that his mother was the director of that company;

(e) when Ms Byrne asked who Ms Smith's employer was, Mr Guo said:

she signed up with OZ ESDM but then she was paid through AAEI, it was a bit of a transition ... I can only tell you the [employer] is OZ ESDM but the payment has been done through agency by AAEI. ... Payment has been made through another company and there is probably an accounting error that had the payslips issued by Best Future because Best Future is a client of OZ ESDM Pty Ltd;

(f) when Ms Byrne asked what the relationship between OZ ESDM and Best Future was, Mr Guo said:

OZ ESDM provide services of staff and management to Best Future and it is done this way because there are different interests involved in Best Future. ... Best Future should have paid OZ ESDM to pay [Ms Smith], but it was somehow just done directly. The payslips were issued by Best Future because the accountant thought the employees were all from Best Future[;] and

(g) when Ms Byrne said that, if OZ ESDM was the employer, and the payslips did not say that, they would not comply with legal requirements, Mr Guo said, "I suspect that is the case."

1. Mr Guo said in his affidavit dated 29 August 2025 that, when he spoke on the telephone to Ms Byrne, the Senior Fair Work Inspector, on 23 February 2023, he was exhausted because he was in the midst of intense family law litigation. Ms Byrne said in cross-examination that he did not sound exhausted when she spoke to him.
2. Mr Guo also said in his affidavit dated 29 August 2025 that he had admitted to the Ombudsman that OZ ESDM was Ms Smith's employer, but he said that was before he learned about the substance over form principle in employment contracts. In effect, he sought to withdraw his admission.
3. Following the interview with Mr Guo on 23 February 2023, and in view of other information, Ms Byrne formed the view that:

(a) OZ ESDM was Ms Smith's employer;

(b) Ms Smith was classified as a Health Professional - Level 1 (Pay Point 2) ("HP 1.2") under the Health Professionals and Support Services Award 2020;

(c) OZ ESDM had failed to pay Ms Smith at the correct rate for the period 4 July 2022 to 12 August 2022; and

(d) OZ ESDM had failed to pay Ms Smith for her accrued but untaken annual leave at termination.

1. Ms Byrne issued the compliance notice on that basis.
2. Mr Guo said in his affidavit dated 29 August 2025 that the Ombudsman had referred OZ ESDM to the Labour Hire Authority for investigation into whether OZ ESDM had engaged in labour hire in respect of Ms Smith without a licence. Mr Guo said in his affidavit dated 29 August 2025 that he spoke to Mr Ho, of the Labour Hire Authority, on 17 July 2025 who told him that it appeared that OZ ESDM did not engage in labour hire and OZ ESDM was not Ms Smith's employer. That is obviously hearsay and cannot be given weight.
3. Exhibit 1 is an email dated 2 September 2025 from the Labour Hire Authority saying that it did not intend to conduct further investigations into OZ ESDM because it did not consider that OZ ESDM fell within the definition of labour hire provider. The email said nothing about whether OZ ESDM was Ms Smith's employer. Such a statement would have been of little weight anyway, because it is for this court determine that question for itself on the basis of all of the evidence before it. The view of the Labour Hire Authority would have been of little assistance.
4. In cross-examination, Mr Guo was taken to the PAYG statement at CB202, which states that it was for Ms Smith for the period 1 July 2021 to 30 June 2022. It identified the employer as OZ ESDM. Mr Guo acknowledged that the document bore his electronic signature. Mr Guo acknowledged that he emailed the PAYG statement to Ms Byrne within a few minutes of their conversation finishing on 23 February 2023. However, Mr Guo said that he was not sure that the document he emailed to Ms Byrne was the one that appeared at CB202. He said that, on his computer, he had another PAYG statement for Ms Smith that showed Best Future as her employer.
5. Mr Guo did not ever produce a PAYG statement showing Best Future as Ms Smith's employer. Nor did he explain how Ms Byrne could have got a PAYG statement signed by him with OZ ESDM as the employer if he did not send it to Ms Byrne.
6. In his affidavit sworn on 5 August 2024, Mr Guo did not dispute that Ms Smith was employed by OZ ESDM. Mr Guo agreed in cross-examination that he did not formally raise the substance over form issue until March 2025. He said that, at that stage, he believed that the actual employer was Best Future, and later, it was AAEI.
7. Ms Smith said in cross-examination that OZ ESDM and Best Future were the same. In re-examination, Ms Smith clarified that her understanding was that Best Future was the trading name and the name that was presented to the public and OZ ESDM was the contractual name.
8. Ms Byrne said in cross-examination that she was not familiar with the idea of substance over form in employment contracts.
9. Ms Byrne said in cross-examination that she did not challenge that OZ ESDM:

(a) had never had a bank account;

(b) had never had a child customer or client; and

(c) had never received any money.

1. Ms Byrne was unsure whether OZ ESDM had ever issued a pay slip for Ms Smith, but said that Ms Smith had never told her that she had received a payslip from OZ ESDM. The only pay slips in evidence for Ms Smith are all from Best Future, and cover the periods 28 March 2022 to 10 April 2022, and 23 May 2022 to 5 June 2022 (CB116 and CB168). The latter covered a period after Mr Guo said Ms Smith's employment had transitioned from Best Future to AAEI. There was also in evidence two copies of a document Mr Guo described as excel worksheets, which was in the names of Best Future and Ms Smith, and covered the period 4 July 2022 to 17 July 2022 (CB121 and CB186). That was after Mr Guo said that Ms Smith's employment had transitioned from Best Future to AAEI.
2. Ms Byrne said in cross-examination that the payslips were issued with the incorrect employer name stated on them.
3. Ms Byrne conceded in cross-examination that, when Ms Smith contacted her by email on 14 February 2023, she referred to her employer as Best Future (CB192). Ms Byrne also accepted that, earlier, when Ms Smith first contacted the Ombudsman, she complained about Best Future underpaying her (CB197).
4. In cross-examination, Ms Byrne was taken to her file note of a call with Ms Smith on 16 February 2023, where the following is recorded:

I noted the [employee's] contract of employment listed the [employer] as OZ ESDM Pty Ltd not Best Future - the [employee] advised she was employed by Best Future but her contract was with this company and she was paid by another company called AAEI but she does not know why.

1. Ms Byrne said that she believed Ms Smith was being truthful. Ms Byrne confirmed that Ms Smith told her that her contract with OZ ESDM, her employer was Best Future but she was paid by AAEI. Ms Byrne agreed that there appeared to be some inconsistencies, and she was unable to reconcile the inconsistencies by applying the substance over form principle because she did not know what it was.

CROSS-EXAMINATION OF MR GUO RE HIS FAMILY COURT CONDUCT

1. In cross-examination, Mr Guo was taken to annexure ESDM-7 to his affidavit dated 10 September 2025. That annexure was a copy of the decision made in 2024 in Mr Guo's appeal to the Full Court of Division 1 of this court. In that decision, Mr Guo was criticised by the Full Court for relying on an affidavit supposedly witnessed by a particular solicitor. The solicitor said in an affidavit filed in that proceeding that he had not witnessed that affidavit. The Full Court said that the solicitor's evidence did not appear to be in issue. The Full Court said that the witnessing of affidavits went to the heart of the judicial process and referred Mr Guo to the Legal Services Commissioner. The decision of the Legal Services Commissioner was pending at the time of the hearing in this court. Mr Guo said that the criticism of him by the Full Court concerned the witnessing of an affidavit. Mr Guo implied that was different to issues with the content of an affidavit.

PREVIOUS STATEMENTS TO THE COURT ABOUT LABOUR HIRE

1. In cross-examination, Mr Guo was taken to the transcript of an interlocutory hearing on 31 January 2024 before this court in the compliance notice application, which has been stayed pending the outcome of this proceeding. The transcript is annexure LF-14 to the affidavit affirmed by Luke Patrick Finegan on 27 August 2025. In relation to Mr Guo's claim that OZ ESDM had overpaid Ms Smith, because she was frequently absent from work, the following exchange occurred at page 16:

Court: ...why were you paying her if she wasn't attending work and didn't have any right to leave?

Mr Guo: The - the - I think - look, it's just a - it was the first time that I was involved in a company that provided early intervention services and - and also, the - and labour hire, and it was our client that paid her. So she was overpaid by our client.

Court: So she doesn't owe you money; she owes the client money?

Mr Guo: And the client is saying "Well, we overpaid her. You should pay us back." So, in that sense, perhaps that might be - - -

Court: Well, I'm not sure - are you obliged to pay them? What does the contract between you and the client require?

Mr Guo: That contract was that they pay our staff, plus 10 per cent to us, but they have - - -

Court: I'm just a bit confused about who actually paid the employee.

Mr Guo: Not - another company, our client. And the payslips were from our client as well.

1. It was put to Mr Guo in cross-examination in the present proceeding that he had told the court in the compliance notice proceeding that Best Future was his client. He said he did not say that. When pressed about who he was thinking of when he referred to the client, he eventually, after several questions, said he had been thinking of Best Future. That was apparent from the continuation of the exchange on 31 January 2024, when the following occurred:

Mr Guo: But you've got the copy of the payslips, which clearly indicate that the payslip was issued by another company.

Court: Who was the other company?

Mr Guo: Best Future Child Development Centre

1. When asked about the contract between OZ ESDM and Best Future for Best Future to pay the staff and give OZ ESDM an extra 10%, Mr Guo conceded that it was not in documentary form. When it was put that there was no contract in reality, Mr Guo said, "Maybe". He agreed that he was the sole director of both OZ ESDM and Best Future, and that his mother, Mingzhi Bao, was the sole director of AAEI.

MR GUO'S FAILURE TO CALL HIS MOTHER TO GIVE EVIDENCE

1. Exhibit 6 is a company search of AAEI showing that it was registered on 5 August 2021 and deregistered on 30 June 2024. It shows that Ms Bao, who is Mr Guo's mother, was the director of AAEI between those dates.
2. Mr Guo agreed in cross-examination that he had not called his mother to give evidence, and had not produced any documents evidencing the acquisition by AAEI of Best Future. Mr Guo said that he had not called his mother because she had a minor stroke and because of their relationship.
3. The following day, on 12 September 2025, Mr Guo produced two documents. The first document was a letter dated 13 November 2023 (exhibit 10) from a general practitioner saying that Ms Bao has had a "TIA/Stroke" and reported some impairment of her cognitive function. I understand a TIA to be a transient ischemic attack. The letter did not contain any assessment by the doctor of Ms Bao's cognitive function, but only recorded Ms Bao's own assessment. The letter was written almost two years prior to the hearing. It did not say that Ms Bao could not attend court to give evidence. The second document was an emergency discharge summary from The Alfred Hospital (exhibit 11). It indicated that Ms Bao had been assessed in the emergency department on 6 September 2023 for a possible TIA/Stroke following facial numbness, and that she was discharged the same day. Again, the discharge summary was written two years before the hearing and it did not say that Ms Bao was unfit to give evidence.
4. I do not accept that the failure by OZ ESDM to call Ms Bao was adequately explained.

1. Mr Guo conceded in cross-examination on 11 September 2025 that he had not produced any of his bank statements, by which it is clear he meant no bank statements of OZ ESDM or Best Future. He said that he had no access to the bank statements of Best Future because it had been deregistered, without the involvement of a liquidator. However, he agreed that he could have subpoenaed the bank records from the relevant bank.
2. Notwithstanding that, on the second day of the final hearing, 12 September 2025, Mr Guo produced a bundle of bank statements for Best Future (exhibit 9). They showed that Ms Smith, and a number of other people, were paid wages by Best Future. The last payment of wages to Ms Smith by Best Future was on 26 April 2022, although Best Future made a couple of subsequent payments to her for expenses.

1. In re-examination, Mr Guo produced a bundle of employment contracts showing that Best Future and AAEI employed people. Best Future employed four people on a casual basis as early intervention therapists: exhibits 12 to 15. They were all employed before OZ ESDM was registered. OZ ESDM was registered on 3 November 2021. Best Future employed two people on 14 August 2021, one person on 12 October 2021 and another on 28 September 2021. AAEI employed two people as early intervention therapists, one, on 27 April 2022, on a full-time basis (exhibit 17), and one, on 5 May 2022, on a part-time basis (exhibit 16).

1. Mr Guo cross-examined Mr Finegan about whether his affidavits conformed to the requirements of s.27(1A)(b) of the Oaths and Affirmations Act 2018 (Vic), which requires that, if the affidavit taker has used an electronic copy of the affidavit for the purposes of complying with s.26 of that Act, the affidavit taker must state that in completing the jurat. Mr Finegan conceded that his affidavits did not include that statement from the affidavit taker and that constituted a mistake. Mr Guo asked whether the Ombudsman accepted that small businesses might also make mistakes in their paperwork. The Ombudsman then objected, but moments later conceded that the question was unobjectionable. Mr Finegan agreed that, as a general proposition, small businesses can make mistakes.

1. Mr Guo relied on three authorities in support of his substance over form argument in determining which of two or more entities was the employer. He said, firstly, that Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 stood for the proposition that the court must look to practical and economic reality, and control and integration, not contractual labels. He said, secondly, that CFMMEU v Personnel Contracting Pty Ltd [2020] HCA 19; (2022) 271 CLR 1 stood for the proposition that contract terms are relevant, but the court must look to the practical relationship and substance can override labels. He said, thirdly, that ZG Operations Australia Pty Ltd v Jamsek [2020] HCA 19; (2022) 271 CLR 1 stood for the proposition that employment status is determined by the real working relationship and substance prevails.
2. The full citations for Hollis are [2001] HCA 44; (2001) 207 CLR 21; (2001) 22 NSWCCR 428; (2001) 181 ALR 263; (2001) 75 ALJR 1356; (2001) 22(14) Leg Rep 2; (2001) 33 MVR 399; 2001 ATC 4508; (2001) 47 ATR 559; (2001) Aust Torts Reports 81-615; (2001) 106 IR 80; [2001] HCA 44. The citations given by Mr Guo for the other two cases are incorrect. The correct citations for CFMMEU v Personnel are (2022) 275 CLR 165; (2022) 398 ALR 404; (2022) 96 ALJR 89; (2022) 312 IR 1; [2022] HCA 1. The correct citations for ZG are (2022) 275 CLR 254; (2022) 398 ALR 603; (2022) 96 ALJR 144; (2022) 312 IR 74; [2022] HCA 2.
3. Hollis is not directly on point. It concerns whether a person is an employee or an independent contractor, not which of two possible employers is the true employer. Nevertheless, Mr Guo submitted in his submissions in reply that it was held in Hollis at [40] to [48] that:
   • Labels used by parties are not determinative.
   • The relationship must be characterised by actual conduct and practical reality.
   • Courts look to who integrated the worker into its business and who exercised real supervision.
4. Paragraphs [40] to [42] of Hollis appear under the heading, "Vicarious liability". They do not appear to have any significant bearing on the present enquiry. Paragraphs [43] to [45] appear under the heading, "Control". They begin with a reference to "the discrimen between employees and independent contractors." They basically say that, in applying the control test to decide whether a particular person is an employee or an independent contractor, the emphasis is now on the right to exercise control rather than the actual exercise of control. Paragraphs [46] to [48] concerned the facts of that case, particularly in relation to whether a particular person was an employee or an independent contractor. That is not the question in the present case. The summary of Hollis provided by Mr Guo is not accurate.
5. CFMMEU v Personnel is similar, in that it concerns the distinction between an employee and an independent contractor. Mr Guo relied particularly on paragraphs [59] to [62], which he said confirm that the relevant contract is the contract that the parties actually performed. That is not at all what those paragraphs say. Paragraph [59] begins as follows:

Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract.

(footnote omitted)

1. The High Court continued:
   1. To say that the legal character of a relationship between persons is to be determined by the rights and obligations which are established by the parties' written contract is distinctly not to say that the "label" which the parties may have chosen to describe their relationship is determinative of, or even relevant to, that characterisation.
   2. Subject to statute, under the common law the parties are free to agree upon the rights and obligations by which they are to be bound. But the determination of the character of the relationship constituted by those rights and obligations is a matter for the court.

1. Essentially, the High Court was there saying that a contract stating that a person is an employee or an independent contractor is not determinative, because the court must look at the other terms of the contract and assess the rights and obligations they create, to decide for itself whether the person is an employee or an independent contractor. This case does not assist in deciding which of two possible entities is the employer of a person who is accepted to be an employee of one or the other of them.
2. ZG is similar, in that it also concerns whether a person was an employee or an independent contractor. Mr Guo said in his reply submissions that ZG stresses at [50] that:

characterisation turns on the rights and obligations that actually governed the work, not hypothetical possibilities.

1. However, paragraph [50] of ZG was a summary of the decision appealed from, which was overturned by the High Court. That case concerns the distinction between employees and independent contractors, and is not directly on point.

1. The Ombudsman relied on Agrigrain Pty Ltd v Rindfleish (2024) 335 IR 400; [2024] NSWCA 295 at [38], where Kirk JA said:

If there was at the relevant time an extant written employment contract, which is not alleged to be a sham, or invalid for some other reason, or to have been overtaken by a subsequent contract, or to have in fact been made for an undisclosed principal, or such like, then the answer to the true employer will readily be found in the document. (emphasis added by the Ombudsman)

1. Mr Guo also referred to paragraphs [36] to [40] of Agrigrain, where Kirk JA said:
   1. Consistently with the distinction identified in Resilient, the issue of characterising a contractual relationship as one of employment or independent contracting (the characterisation issue) is different from the issue of identifying who are the parties to a contract which it is accepted establishes a relationship of employment (the "true employer" issue). That being said, insofar as post-contract conduct is relevant to the true employer issue it is necessary to identify what sort of conduct might throw light on which entity was the true employer. Notions from the characterisation context may assist in that regard. For example, the nature and degree of control exercised may be relevant to determining whether a person is an employee or contractor (see below at [61]). Analogously, identifying who exercises control may be relevant to identifying the true employer. Insofar as account is taken in the true employer context of factors identified in the characterisation context, they should be factors which are still relevant in that context in light of the recent trio of High Court decisions.
   2. In Personnel Contracting Kiefel CJ, Keane and Edelman JJ made the point that in characterising a relationship as employment or contractor it was still permissible to consider the totality of the relationship between the parties (at [61]). But that had to be on the understanding that "for a matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties' contract, and not simply an aspect of how the parties' relationship has come to play out in practice" (ibid). A similar point applies here. There is some danger in using language such as having to assess the "totality of the relationship between the parties", as though that were the legal test, without keeping a steady eye on the fact that the issue in the "true employer" cases is one of contract law, and that any assistance from the characterisation cases is analogical and must also take account of the law on that topic as it now stands.
   3. If there was at the relevant time an extant written employment contract, which is not alleged to be a sham, or invalid for some other reason, or to have been overtaken by a subsequent contract, or to have in fact been made for an undisclosed principal, or such like, then the answer to the true employer will readily be found in the document.
   4. If the contract was not wholly written then it is permissible to refer to post-contractual conduct. Care should be taken to avoid a "roaming inquiry beyond the contract" except to the extent permitted by contract law principles (quoting Personnel Contracting at [188] per Gordon J). In this context, as in the context considered in Workpac, "it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter" (Workpac at [62]). As Gordon J explained in Personnel Contracting (footnotes omitted):

[178] ... The parties' conduct may also demonstrate "a tacit understanding or agreement" sufficient to show that there was a contract in the absence of an earlier express contract. In a dynamic relationship where "new terms [may] be added or [may] supersede older terms", it may also be necessary "to look at the whole relationship and not only at what was said and done when the relationship was first formed". The reference to the "whole relationship" should not be misunderstood. The inquiry remains an objective inquiry the purpose of which is to ascertain the terms the parties can be taken to have agreed. It is not an approach directed to inquiring into the conduct of parties which is not adduced to establish the formation of the contract or the terms on which the parties contracted.

1. The ultimate question in cases such as this is the contractual one of what a reasonable person in the position of all the potentially relevant parties would understand as to which entity was party to the employment contract as employer, taking account of the permissible evidence. ...

1. In C & T Grinter Transport Services Pty Ltd (In Liq); ex parte Fitzgerald and Adams [2004] FCA 1148, Finn J said at [20]:

The principles to be applied in the identification of the employer of an employee where there are two or more possible employers, are reasonably well settled. For present purposes I would note the following:

(1) A contract of service cannot be transferred by one employer to another or novated as between them without the employee's consent: Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014; Re Coogi Nominees Pty Ltd (Administrators appointed); McCluskey v Karagiosis [2002] FCA 1137; (2002) 120 IR 147. Questions of estoppel apart: Smith v Blandford Gee Cementation Co Ltd [1970] 3 All ER 154; the employee's consent must be a real one whether express or implied and is "not to be raised by operation of law": Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 at 443.

(2) The totality of the circumstances surrounding the relationships of the various parties including conduct subsequent to the creation of an alleged employment relationship is relevant to the assessment to be made: Romero v Auty (2001) 19 AGLC 206 at [10] and [42]-[44].

(3) 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 that relationship: Pitcher v Langford (1991) 23 NSWLR 142; Marrs Fabrics Pty Ltd & Nathan Wholesale Fabrics Pty Ltd v Whipps (1991) 33 AILR 167. In determining the identity of a disputed employer, the Court is entitled to consider "the reality of purported contractual arrangements": Dalgety Farmers Ltd t/a Grazcos v Bruce, NSWCA, 3 August 1995. The documentation may have been brought into existence for other purposes, for example, tax minimisation or the reduction of insurance premiums, without reflecting the reality of the parties relationship: ibid; Pitcher v Langford, at 149; Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454.

(4) Conversations and conduct at the time of the alleged engagement of the employee is of considerable significance: Romero, at [9]. The beliefs of the employees as to the identity of their employer is admissible and is entitled to weight: Pitcher v Langford.

(5) In cases of the engagement of new employees to work in a business in which a number of separate corporate entities participate otherwise than as partners:

"... it was open to those controlling the business to select which company should be the employer provided that the selection was consistent with the financial and administrative organisation of the business and was not otherwise a sham."

See Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd, FCA, Ryan J, 19 November 1998.

1. In Gothard v Davey (2010) 80 ACSR 56; [2010] FCA 1163, Edmonds J said:

Identifying an employer from two or more possibilities: The relevant principles to be applied

[52] Unsurprisingly, the outcome in cases which have been concerned with identifying an employer of a person or group of persons from two or more possibilities, whether from within the same group of companies or otherwise, has turned on their own facts and, in consequence, the case law in this area is of limited assistance. Nevertheless, it is possible to discern certain general principles that the courts have applied in the identification process. 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.

[55] The majority of the NSW Court of Appeal (Basten JA dissenting) made the following observation in Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 at [59] regarding the court's earlier decision in Pitcher v Langford (1991) 23 NSWLR 142:

'The result in Pitcher v Langford turned on its own facts, and on the need for error in point of law. There is no doubt, however, that without going so far as to find a sham the "reality of purported contractual arrangements" (per Handley JA) can be considered, and the case illustrates that it can extend to the identity of a contracting party and that it can be found that a purported contracting party was not in reality party to the contract even where a written contract gives it as the party.'

[56] The majority further noted (at [61] - [62]) that determination of the entity that entered into a contract is based upon an objective assessment of the state of affairs between the parties.

[57] In Dalgety Farmers Ltd (t/as Grazcos) v Bruce (1995) 12 NSWCCR 36, Kirby ACJ (with whom Clarke and Cole JJA agreed) made the following observations:

'Disputes concerning the employment of shearers are not uncommon. Specifically, disputes have quite frequently arisen out of "paper" arrangements designed to settle the assignment of employment to a particular organisation ... There is no alternative in such cases but to examine the detailed evidence.

...

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.'

[58] In Pitcher, at 150, the NSW Court of Appeal observed that establishment of an employment relationship, where in dispute, will often take a court into a detailed examination of the features of the relationship between the parties. This case was recently followed in Sturesteps v McGrath [2010] NSWSC 169, a case involving the identification of the employer in a corporate group.

[59] It is open to persons controlling a business in which a group of companies is involved to select an entity within the corporate group to be the employer. However, as Ryan J pointed out in Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd [1998] FCA 1465, if such a selection is to be made, the arrangement must be consistent with the financial and administrative organisation of the business in order to be effective.

[60] Aspects of the practical realities of the relationship which have been considered relevant in the cases referred to above, include 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.

[61] In Australian Insurance Employees Union v WP Insurance Services Pty Ltd (1982) 42 ALR 598 at 606, Evatt J held that the fact that Mrs Roberts' salary was paid by WPA and that tax group certificates issued to her showed that company as her employer was not conclusive evidence of the fact that it was the employer. Evatt J was satisfied that that arrangement was one of financial convenience to the Watkins Group, with the result that those facts were 'neutral indicia' in determining the issue which company was her employer in the legal sense during the relevant period.

[62] In Textile Footwear and Clothing Union, Ryan J observed that despite the introduction of 'Bellechic Pty Ltd' as the name on the pay slips and group certificates, the preferable analysis was that they remained employees of David Keys Australia Pty Ltd, or Bellhop Pty Ltd as it became, and that company made their services available to Bellechic Pty Ltd upon the latter agreeing to pay their wages and attend to the tax deductions on behalf of Bellhop Pty Ltd.

[63] In Romero v Auty [2000] VSC 462; (2001) 19 ACLC 206 ('Romero'), Warren J held that insofar as documents such as pay advice slips, group certificates and superannuation documents may have referred to a new or different employer, namely, Westbury Joinery Services an implied assignment does not arise.

[64] In Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 330D, the NSW Court of Appeal held actual subjective intention to be a factor the law takes into account in determining whether a contract exists.

1. In Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174; (2011) 214 IR 306; [2011] FCA 1176 at [57], Buchanan J said that identifying which or two or more entities is the actual employer involves a search "for substance and reality", rather than legal niceties.

1. The written contract dated 1 and 13 December 2022 between OZ ESDM and Ms Smith provided that:

If employment is not commenced on the date specified in this contract, the contract of employment is not binding on the Company.

1. As discussed above, Ms Smith did not commence employment on 10 January 2023, being the date specified in the contract for the commencement of her employment, because she could not attend the office due to exposure to a person with COVID-19. That would mean that the written contract did not apply.
2. However, it is possible that OZ ESDM waived that term of the contract. The possibility that that term was waived arises from the circumstances that:

(a) there was no evidence that Mr Guo told Ms Smith that she did not have a job with OZ ESDM;

(b) Mr Guo, apparently on behalf of OZ ESDM, asked Ms Smith to attend an online course on 11 January 2023;

(c) Mr Guo, apparently on behalf of OZ ESDM, communicated with Ms Smith by text message between 11 January 2023 and 24 January 2023 about her start date and her entry into the work premises on 24 January 2023, without suggesting in any way that the contract he had signed on behalf of OZ ESDM with Ms Smith had been terminated; and

(d) Mr Guo, apparently on behalf of OZ ESDM, let Ms Smith commence work on 24 January 2023.

1. However, Mr Guo implicitly suggested that, in taking steps b, c and d above, he was not acting on behalf of OZ ESDM but was acting on behalf of Best Future, because, at an unspecified time between 10 January 2023 and 24 January 2023, he decided that Ms Smith would be working for Best Future rather than OZ ESDM.
2. In theory, Mr Guo, with Ms Smith's consent, could have substituted Best Future for OZ ESDM in the contract, such that Best Future was the employer. However, clause 25 of the contract required any variation of the contract to be in writing signed by both parties. There is no evidence of any such variation.
3. Also, in theory, the written contract between OZ ESDM and Ms Smith could have been not binding on OZ ESDM, by reason of Ms Smith not commencing work on 10 January 2023, and an oral contract of employment could have been created between Best Future and Ms Smith. However, there was no evidence of any discussion between Mr Guo and Ms Smith about her working for Best Future rather than OZ ESDM. It follows that an oral contract was not created.
4. Also, in theory, the written contract between OZ ESDM and Ms Smith could have been not binding on OZ ESDM, by reason of Ms Smith not commencing work on 10 January 2023, and an implied contract of employment could have been created between Best Future and Ms Smith. In this event, there would not have needed to be any notice of termination, because the contract did not become effective because Ms Smith did not commence employment on 10 January 2023 and the contract was simply not binding on OZ ESDM.
5. There are a number of factors supporting the possibility that Ms Smith had an implied contract of employment with Best Future. Those factors are:

(a) Ms Smith's tax declaration form was in the name of Best Future;

(b) Ms Smith understood that she was employed by Best Future, as evidenced by:

(i) her describing herself as working at Best Future in her LinkedIn profile;

(ii) her representing herself to the world as working for Best Future;

(iii) her sending her letter of resignation to Best Future; and

(iv) her telling the Ombudsman, from October 2022 until February 2023, that she was employed by Best Future, in the context of complaining about her pay;

(c) Ms Smith was supervised by Sharon, who was employed by Best Future;

(d) Ms Smith was shown as an employee of Best Future on its website;

(e) Ms Smith's work email and work signage were in the name of Best Future;

(f) Ms Smith attended professional development as a member of the Best Future team;

(g) Ms Smith knew that she was required to follow Best Future policies;

(h) Ms Smith was an integral member of the team at Best Future;

(i) Ms Smith's wages were paid by Best Future, until they were paid by AAEI;

(j) Ms Smith's payslips were issued by Best Future;

(k) Best Future emailed Ms Smith's PAYG statement to her;

(l) Best Future was paid for Ms Smith's services;

(m) Helen Falieros gave unchallenged evidence that "We [meaning her and Ms Smith] worked at Best Future"; and

(n) Ms Smith gave four weeks' notice to Best Future, which was less than required under the contract with OZ ESDM, but which Ms Smith understood to be the notice period required by industry practice.

1. On the other hand, the factors that suggest that OZ ESDM waived Ms Smith's failure to commence employment on 10 January 2022 and Ms Smith was employed by OZ ESDM pursuant to the written contract are:

(a) Ms Smith's PAYG statement was in the name of OZ ESDM; and

(b) Mr Guo conceded to Ms Byrne on 23 February 2023 that OZ ESDM was Ms Smith's employer.

1. Either Ms Smith was confused about who her employer was or Mr Guo was confused about who her employer was. Ms Smith attempted to resolve this issue in cross-examination by saying that OZ ESDM and Best Future were the same, and in re-examination by saying that Best Future was the trading name and OZ ESDM was the contractual name. However, that sounds to me like an after-the-event reconstruction. She told Ms Byrne, of the Ombudsman's office, numerous times that Best Future was her employer.
2. I do not consider that Ms Smith would have been confused about who her employer was, but Mr Guo may well have been confused about who her employer was. Ms Smith had only one employer between January and August 2022. When she contacted the Ombudsman's office, it was only about two months after finishing that employment. On the other hand, Mr Guo, through his companies, had a number of employees, and a number of companies. He did not work hands on in the ESDM business, but had another occupation. His telephone call with Ms Byrne was about 12 months after Ms Smith commenced employment with one of his companies. At the time of the telephone call with Ms Byrne, he was in the midst of very stressful family law legal proceedings.
3. Additionally, either Ms Smith's tax declaration form, and her payslips, contained administrative errors in describing her employer as Best Future, or her PAYG statement contained an administrative error in describing her employer as OZ ESDM.
4. It seems to me to be more likely that Ms Smith's PAYG statement contained an administrative error. That is because the tax declaration form would have been completed close to the commencement of Ms Smith's employment, when it is to be expected that everyone was mindful of who the employer was, and the payslips would have been issued fortnightly from immediately after the commencement of employment until the cessation of employment, so, if there had been an error, it could have been seen early and often and corrected. Also, the tax deduction form and the payslips coincide with all the other circumstances listed above. On the other hand, the PAYG statement was a one off, so it was more likely to be an error. I note in this regard that Ms Smith herself conceded that there was a degree of general mismanagement in the accounts and payroll of the business. That must have meant Best Future's business, as OZ ESDM did not actually have a business.
5. Of course, as discussed above, the employee's perception of who their employer was is not determinative. However, in all the circumstances of this case, and taking into account all the other matters listed above, it seems to me that Best Future was Ms Smith's employer, from 24 January 2022, and OZ ESDM was not, pursuant to an implied contract of employment. I consider that the written contract of employment was not binding on OZ ESDM, because Ms Smith did not commence employment on 10 January 2022. I consider that OZ ESDM did not waive that requirement, but rather, Ms Smith's proposed employment with OZ ESDM was instead taken up by Best Future.
6. This conclusion is not based on the principle of substance over form, which applies particularly where the issue is whether a person is an employee or an independent contractor. The principle is intended to ensure that employees are not deprived of their employment rights by being described in contracts as independent contractors, when they are in truth employees.
7. Rather, this conclusion is based on contract law. On all the evidence, it seems to me to be clear that Ms Smith and Mr Guo intended that she would work for Best Future, and she did.
8. As to Mr Guo's claim that he sold Best Future to AAEI, and the employees were all transferred as part of that process, there is very little evidence in support of that claim. Obviously, a sale of a business would involve a good deal of documentation, none of which was provided to the court. Ms Falieros said, without challenge, that the transition was communicated to all staff and Ms Smith was aware of it. However, that is not the same thing as her consenting to it, which was an essential step. The entry in Ms Smith's bank statement showing a payment by AAEI does not necessarily mean that her employment was transferred. There might have just been a private arrangement between Best Future and AAEI for AAEI to pay the wages owed by Best Future, and Best Future might have a debt to AAEI for those wages.
9. In any event, the issue of the transfer of employees from Best Future to AAEI does not really matter in the present proceeding. That is because the compliance notice was issued to the wrong employer. It follows that it should be cancelled.
10. For the same reason, it is unnecessary to determine in this proceeding whether Ms Smith was paid correctly.
11. There will be orders accordingly.
12. I would add that I was very sceptical when Mr Guo asserted from the bar table on the first day of the hearing that he had recalled that a cover email was sent to Ms Smith with the December version of the contract saying that she would not be working for OZ ESDM. The implication was that Mr Guo told Ms Smith by email that she would be working for Best Future.
13. There are many reasons to doubt that assertion.
14. Firstly, it was only an assertion from the bar table and was never the subject of any affidavit evidence.
15. Secondly, the matter was touched on in cross-examination, but Mr Guo was only able to say what the email "would have" said, not what it did say, and said that he could not "recall that much".
16. Thirdly, Mr Guo said he was unable to produce the email because Best Future had been sold to AAEI, when he could have attempted to subpoena the email from AAEI or Ms Smith, and, in any event, OZ ESDM would most likely have been copied into any such email.
17. Fourthly, Mr Guo's claim about the alleged email had the hallmarks of recent invention, because he did not raise the alleged email during the investigation by the Ombudsman, or during the compliance notice proceedings, or during the interlocutory stages of the present proceedings.
18. Fifthly, Mr Guo did not put to Ms Smith in cross-examination that he had sent her a covering email saying that Best Future would be her employer.
19. Sixthly, Mr Guo was not an entirely reliable witness. He prevaricated about whether he received Ms Smith's email dated 3 January 2022, although he eventually accepted that he would have received it. He denied saying in the compliance notice proceeding that Best Future was his client, when he clearly had said that, as shown by the transcript. In the witness box, Mr Guo appeared to be trying to be clever rather than truthful. In his family law matter, the Full Court referred him to the Legal Services Commissioner for stating that his affidavit had been taken by a particular solicitor when it had not.
20. Nevertheless, if such an email had been sent, it would explain why Ms Smith understood that she was employed by Best Future. While it seems inconceivable that Mr Guo could have forgotten a fact as important to this case as the alleged covering email, he himself put it to Ms Smith in cross-examination that the business, meaning him, suffered from "general mismanagement" at least in the accounts and payroll areas. Ms Smith agreed with that proposition.
21. I am not in a position to find that the alleged email was sent, because it was not the subject of anything remotely resembling sufficient evidence. However, if the alleged email had existed, and if it had been the subject of cogent evidence, it would have reinforced the conclusion reached above.

I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.