The respondent disputes the claim, asserting the applicant was an independent contractor.
Pre-trial orders required the parties to file and serve statements of facts and supporting documentary evidence. Both parties did so.
The matter then came on for hearing before me. The applicant attended; the respondent did not. No explanation for the non-attendance has been received.
The applicant gave sworn evidence confirming his statement[1] and answered further questions from me. In the absence of contrary sworn evidence, I am satisfied that his evidence provides a reliable basis for findings of fact.
I find as follows.
The applicant commenced providing IT services to the respondent in late 2023 as a contractor through his own company, IT Plus Pty Ltd, at an agreed rate of $40 per hour.
In mid 2024 the applicant requested that he be made a direct employee of the respondent, and says the respondent agreed. He was to be paid a wage at the same rate of $40 per hour.
At first blush, one may query why the company would pay the same rate as a wage, bearing in mind the additional costs it would thereby incur such as superannuation. Nevertheless, by virtue of what followed I am satisfied that is what they did.
The applicant commenced receiving wages on a fortnightly basis. His payslips were tendered in evidence[2]. In its written statement, the respondent says these payments were made in error. I do not accept that. The payments continued for 6 months on this basis, although with a gap between October and December which, the applicant explains, was because of financial issues being experienced by the respondent. I do not believe payments would have been commenced, let alone continued, without confirmation of employment status.
I therefore find that the applicant commenced employment with the respondent on 8 July 2024.
The next issue raised is whether the applicant was underpaid pursuant to the Professional Employees Award 2020 (PEA).
The applicant's evidence is that he holds a Master's degree in Computer Programming. His work for the respondent involved designing and developing the respondent's mental health software platform. He was required to produce system architecture diagrams and technical policies. He was required to co-ordinate with other contributors and report to management. I accept that evidence.
The applicant contends such work equates to a Developer Programmer - Level 4 under the PEA. I agree.
The casual rate at that level is $56.51 per hour.
The applicant has calculated wages not paid and the shortfall in the hourly rate in the sum of $19,493.25. That calculation appears correct.
The applicant also claims non-payment of the last of his contractor invoices. I have no jurisdiction to make such an order. That aspect of his claim is therefore dismissed.
Additionally, the applicant is entitled to superannuation on the unpaid salary. I grant to the applicant liberty to apply in relation to the quantum of same and as to interest.