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[2026] FWC 478
respondent. Application for an unfair dismissal remedy dismissed because the applicant was not a national system employee and therefore was not dismissed within the meaning of s.386 of the Fair Work Act;...
The Commission found that although the written Contract called the applicant an 'employee', the real-world arrangements showed she worked after-hours while holding a separate full‑time job, had autonomy over hours and how she worked, received no salary or usual employment benefits (only equity), used her own equipment without reimbursement, and therefore was not an employee. Because she was not an employee she could not have been 'dismissed' under the Fair Work Act, so her unfair dismissal application was dismissed.
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1 cited instrument linked from this judgment.
1,563 words · generated 15/06/2026
Stacey Davies applied to the Fair Work Commission for an unfair dismissal remedy under s.394 of the Fair Work Act 2009. The Respondent, OneRD Pty Ltd, raised a jurisdictional objection: that Ms Davies was not an employee and therefore could not have been dismissed within the meaning of s.386. A hearing on that objection occurred on 2 December 2025, before Commissioner Walkaden. The Commissioner was supplied with the parties' written Contract and heard evidence from Ms Davies, her father and the Respondent's CEO, Mr Williamson. No cross‑examination occurred. The Contract labelled Ms Davies an 'Employee' and Co‑Founder, provided a three‑year term, equity (5%) vesting provisions, conditional cash compensation tied to customer/user milestones, and termination provisions allowing dismissal for cause or without cause (clause 6) [3]-[11]. In practice, Ms Davies worked for OneRD after‑hours while retaining an unrelated full‑time job, used her own equipment and home workspace without reimbursement, received no wages or paid leave or other usual employment benefits, had autonomy as to hours and timing of work, attended an optional weekly 'whip' meeting and was remunerated primarily by equity rather than periodic wages or salary [12]-[16], [21], [30]-[31]. The Respondent terminated the relationship under the contractual termination clause. Commissioner Walkaden concluded that, on the totality of the relationship, Ms Davies was not an employee and therefore could not have been dismissed under the FW Act; the unfair dismissal application was dismissed [4], [35]-[36].
Statutory framework: the Commissioner applied s.15AA of the Fair Work Act, which requires assessment of the totality of the relationship to ascertain the ordinary meaning of 'employee' by looking to the contract terms and how the contract was performed in practice [17], [19]. The decision returns to the multifactorial approach historically used to determine employment status, using the indicia drawn from authorities such as Stevens v Brodribb and Hollis v Vabu as aids to the inquiry, but emphasising the primacy of s.15AA's reversion to practical reality [17]-[18].
Treatment of contract labels: the Contract repeatedly described Ms Davies as an 'employee', but the Commissioner gave that label very little weight. The statutory and common law position is that the parties cannot alter the true nature of their relationship simply by labelling it; the real substance and practical reality prevail [19].
Application of multifactorial indicia: the Commissioner considered the indicia as an aide (control, hours, exclusivity, provision of equipment, method of payment, leave and benefits, capacity to delegate, whether the worker is presented as emanation of the business, etc.). Key findings included:
Weighing the factors together, the Commissioner concluded the real substance and practical reality of the relationship was not one of employment; accordingly, Davies was not an employee and could not have been dismissed under s.386 [35]-[36].
Before: Prior to the s.15AA amendment (commenced 26 August 2024), the High Court's decisions in the personnel contracting line had altered the landscape; however, s.15AA reintroduces a legislative command to assess the ordinary meaning of 'employee' by reference to the totality of the relationship, including terms and practical performance, effectively restoring the multifactorial, common law‑aided inquiry (as explained in Mrs Keogh and Doessel, cited in the decision) [17], [19].
After: This decision demonstrates the operation of s.15AA in a start‑up/co‑founder setting. It confirms that a written agreement labelling a person as 'employee' will not be decisive where the factual matrix (autonomy, absence of wages/benefits, after‑hours contribution, separate full‑time employment, own equipment and equity‑based remuneration) points to non‑employment. Practitioners should therefore expect s.15AA inquiries to focus heavily on practical performance, not labels; the multifactorial indicia remain the primary analytic tool under the statutory framework [17]-[19], [35].
Passage: "Section 15AA(2) requires a consideration of the totality of the relationship which involves a consideration of, amongst other things, the terms of the contract between the parties and an assessment as to how the contract is performed in practice." [17]
Passage: "I give very little weight to the fact that Contract defines Ms Davies as an employee and describes the relationship as one of employment." [19]
Passage: "The absence of any such control ... with respect to the hours worked by Ms Davies is a factor that weighs heavily ... that Ms Davies was not an employee." [21]
Passage: "In making that finding, I have given considerable weight to the fact that Ms Davies performed work ... 'after-hours' with total autonomy ... and without the payment of wages, salary or any other form of remuneration (other than equity) ..." [35]
This decision will be directly relevant where:
Key triggers: absence of salary/wages and usual employee benefits; performance outside ordinary working hours while holding another job; use of own equipment without reimbursement; autonomy of hours and no exclusivity.
This decision itself is a first‑instance Commissioner's determination applying s.15AA and multifactorial indicia. The judgment cites and relies on FWC Full Bench and other Commission decisions (Doessel, Mrs Keogh, the Full Bench summary in Jiang Shen Cai) to explain the statutory approach [17]-[19]. The decision does not identify later appellate treatment of this particular decision because it is a contemporaneous determination of a jurisdictional issue (and the decision is dispositive). As at the date of this decision, it stands as a Commission determination illustrating the application of s.15AA in the start‑up/co‑founder context; any subsequent treatment by higher tribunals or courts would indicate whether this approach is followed or distinguished, but no such subsequent treatment is recorded in the decision itself.
Weight of equity versus cash: This decision gives considerable weight to absence of periodic wages and presence of equity as signalling non‑employment [30], [35]. How future tribunals will treat mixed remuneration packages (e.g. modest periodic retainer plus equity) remains to be fleshed out in subsequent decisions.
Start‑up/co‑founder norms: Co‑founder arrangements vary considerably. This case treats after‑hours, non‑exclusive, equity‑driven contributions as indicative of non‑employment. Whether roles that are more operational, full‑time, or where the founder ceases external employment will alter the outcome is an open factual issue for future cases.
Remote work and 'place of work': The Commissioner treated working from home in 2026 as a neutral factor [24]. As remote and hybrid work arrangements evolve, the relevance of 'place of work' to employment status will require further authority to clarify its weight.
Optional attendance at meetings and task allocation: The presence of allocated tasks and optional meetings was treated as neutral rather than indicative of employment here [14], [22]. Future decisions may need to delineate when task allocation and participation in governance contribute decisively to an employment character.
Legislative bounds of s.15AA: Section 15AA re‑emphasises practical reality. How courts will balance textual contract certainty against practical reality in varied commercial contexts (gig economy, founders, consultants) will be clarified by subsequent decisions.
Practitioners advising founders, start‑ups and purported employees should assess not only contractual labels but the totality of arrangements: hours, exclusivity, remuneration form, supervision, equipment, and the practical manner of performance. This decision is a reminder that labels are not dispositive; fact patterns demonstrating autonomy and equity‑based, contingent compensation risk falling outside the FW Act's unfair dismissal jurisdiction.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - jurisdictional objection - whether the applicant was an employee - whether the applicant was dismissed - found that the applicant was not an employee - found that the applicant was not dismissed - application dismissed
[1] This decision determines a jurisdictional objection made against an application for an unfair dismissal remedy commenced by Ms Stacey Davies (the Applicant) under section 394 of the Fair Work Act 2009 (FW Act) (the Application). The Application identified Oneroad Aus International Trading Co Pty Ltd as the respondent. Without objection, and pursuant to section 586 of the FW Act, I have exercised my discretion to amend the application to identify the respondent as OneRD Pty Ltd (the Respondent).
[2] The jurisdictional objection was that Ms Davies was not an employee and that she had not been dismissed. In summary, Ms Davies contends she was an employee and she had been dismissed. The Respondent contends that Ms Davies was a 'co-founder contributing sweat equity'[1] and not an employee and therefore that Ms Davies had not been dismissed.
[3] On 2 December 2025, the jurisdictional objection was the subject of a hearing before me. Ms Davies appeared for herself. Mr James Williamson, Chief Executive Officer[2] of the Respondent, appeared for the Respondent. Ms Davies, Mr Craig Davies (the Applicant's father), and Mr Williamson gave evidence. Neither party sought to cross-examine. I asked Ms Davies and Mr Williamson some questions as they gave evidence. All the evidence, documents and submissions made by the parties has been considered.
[4] For the reasons explained below, I am satisfied that Ms Davies was not an employee and Ms Davies was not dismissed within the meaning of section 386 of the FW Act. Consequently, I have dismissed Ms Davies's application for an unfair dismissal remedy.
[5] Ms Davies engaged in tasks for the benefit of the Respondent that required physical and mental effort on her part. For the purposes of simplicity, I will describe that as work. That description should not be misinterpreted to infer an employment relationship between Ms Davies and the Respondent. Ms Davies commenced performing work for the Respondent in June 2024. Ms Davies performed such work pursuant to a written contract (the Contract).[3] The Contract is reproduced below:
This Contract Agreement ("Agreement") is made and entered into as of June 1st 2024, by and between:
OneRoad (the "Company"), represented by James Williamson, CEO, located at [Redacted]
Stacey Davies (the "Employee"), located at [Redacted]
Whereas, the Company desires to employ Stacey Davies in the capacity of Co‑Founder with the dual role of Chief Marketing Officer and Chief Sales Officer, and the Employee desires to accept such employment, upon the terms and conditions set forth herein;
Now, Therefore, in consideration of the mutual covenants and promises herein contained, the parties hereto agree as follows:
1.2 Duties: The Employee shall perform the duties and responsibilities described in Exhibit A attached hereto and incorporated herein by reference, along with any other duties as may be assigned from time to time by the Company's CEO or Board of Directors.
2.1 Initial Term: This Agreement shall commence on 1st July and continue for a period of three (3) years, unless terminated earlier in accordance with the provisions of this Agreement.
3.1.1: The Employee will be granted an initial 5% equity stake in OneRoad, with the following vesting schedule:
3.1.2: 3% equity vests annually at 1% each year over a period of three years, contingent upon continued employment.t
3.1.3: An additional 1% equity will vest upon reaching 5,000 active users on the platform, vested in the year this was achieved.
3.1.4: A further 1% equity will vest upon reaching 15,000 active users, vested in the year this was achieved, completing the total potential equity at 5%.
3.2.1: Initial Salary: Upon achieving 2,500 customers, the Employee will receive a monthly retainer of $4,000.
3.2.2: Salary Increase: Upon reaching 10,000 active users, the monthly salary will increase to $8,000.
3.2.3: Salary Cap: All C-Suite members, including the Employee, will be capped at a salary of $100,000 per annum until the company is established, profitable, and secure.
3.2.4: Post-Stability Compensation: Once OneRoad achieves stable profitability, the Employee's salary will increase to $25,000 per month ($300,000 annually), alongside potential growth bonuses and dividend payments reflective of the Employee's equity stake.
The Employee will initially lead both the marketing and sales departments, with the freedom to shape these roles in alignment with the Company's strategic goals. The Employee may choose to focus on one of these roles as the Company scales and staffs up accordingly.
The Employee's responsibilities include, but are not limited to, the following:
6.1 Termination for Cause: The Company may terminate the Employee's employment at any time for Cause. "Cause" shall include, but is not limited to, gross misconduct, fraud, theft, embezzlement, or a material breach of this Agreement.
6.2 Termination Without Cause: The Company may terminate the Employee's employment at any time without Cause, upon providing thirty (30) days' written notice. In such an event, any unvested equity will be forfeited.
6.3 Termination by Employee: The Employee may terminate their employment at any time, upon providing thirty (30) days' written notice.
The Employee agrees to maintain the confidentiality of all proprietary information, trade secrets, and other confidential information of the Company, both during and after the term of this Agreement.
8.1 Governing Law: This Agreement shall be governed by and construed in accordance with the laws of Australia.
8.2 Entire Agreement: This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter hereof.
8.3 Amendment: This Agreement may only be amended by a written instrument signed by both parties.
8.4 Severability: If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be severed, and the remaining provisions shall remain in full force and effect.
8.5 Waiver: The waiver by either party of any breach of any provision of this Agreement shall not operate as a waiver of any subsequent breach.
Develop and implement an integrated marketing and sales strategy to drive brand recognition and revenue growth.
Collaborate with the executive team to align marketing and sales strategies with overall business objectives.
Leverage existing relationships with truck manufacturers and other industry partners to secure endorsements and strategic partnerships.
Identify and cultivate new opportunities for collaboration to enhance market presence.
Build a cohesive brand strategy that resonates with the target audience and differentiates OneRoad's solution in the market.
Oversee the creation of compelling marketing campaigns to drive customer acquisition and retention.
Develop and lead a high-performing sales team focused on driving revenue through customer acquisition and expanding existing accounts.
Establish a robust sales pipeline by identifying key customer segments and developing targeted strategies for each.
Ensure that marketing and sales strategies align with telematics regulations and any digital accreditation regulations.
Educate potential clients on how OneRoad's solution supports compliance and enhances operational efficiency.
Lead and manage the implementation of a rewards program offering EWD members prize draws and merchandise packages.
Collaborate with the marketing team to promote program engagement and ensure members receive value-added incentives.
Design and oversee a video training program for truck drivers featuring leading experts in the Australian regulatory and occupational health and safety market.
Ensure training videos include comprehensive content on heavy vehicle logistics, compliance, and safety standards, with quizzes to assess drivers' understanding.
Facilitate the adoption of digital toolbox meetings and other key training opportunities through this video-based platform.
Hire and develop a team to fulfil the aspects of the role where the Employee adds the least value.
Mentor team members to help them reach their full potential, fostering a culture of innovation and collaboration.
Office Location: Given the vision to operate nationally and eventually expand internationally, establishing multiple offices is on the horizon. The hybrid working model allows for remote work, but physical offices will be essential for collaboration and team cohesion. The decision on where to establish the first office will be made by the C-Suite based on strategic business needs and market analysis. The Employee will be part of this decision-making process.
[6] There are a few observations to make about the Contract.
[7] One, the Contract defines and then repeatedly describes Ms Davies as an employee. The Contract also describes the relationship between Ms Davies and the Respondent as one of employment. This is evident from the opening words in clause 1.1 of the Contract, namely "The Company hereby employs Stacey Davies..." (emphasis added).
[8] Two, the Contract (at clause 1.2) identifies the duties and responsibilities of Ms Davies. The duties and responsibilities are identified at Exhibit A of the Contract and supplemented by clauses 4 - 5 of the Contract. Additionally, clause 1.2 of the Contract states that Ms Davies may be assigned other duties from time to time by Mr Williamson or the Respondent's Board of Directors. Based upon the evidence given by Ms Davies and Mr Williamson, I am satisfied that the duties and responsibilities performed by Ms Davies can be described in very summary terms as marketing, sales and brand development. There was no evidence before me that, in practice, the Respondent exercised the contractual right under clause 1.2 of the Contract and assigned other duties to Ms Davies.
[9] Three, the term of the Contract (at clause 2) was three years from 1 July 2024, albeit with capacity to terminate earlier in accordance with clause 6 of the Contract.
[10] Four, the Contract does not provide for the payment of wages or salary, or the provision of other typical employment benefits (leave, superannuation etcetera) to Ms Davies. Rather, the Contract (at clause 3.1) provided Ms Davies with an initial 5% equity stake in the Respondent in accordance with the vesting schedule in clause 3. The Contract also provided Ms Davies with cash compensation (at clause 3.2) on satisfaction of the targets set out at clause 3.2. These contractual terms are consistent with how contract was performed in practice. I make this finding based on the evidence given by Ms Davies and Mr Williamson that Ms Davies was not paid wages or salary, or provided with any other typical employment benefits.
[11] At the hearing, Mr Williamson explained that he considered the arrangements involving Ms Davies to be a collaboration of founders who were all playing a role in a start-up business. There were five such founders, including Ms Davies, Mr Williamson, and Jason Perry (Chief Operating Officer), Cameron Peters and Tom Rumble.
[12] Ms Davies, and it appears the other four co-founders of the Respondent, held a full-time job in addition to the work performed for the Respondent. This meant that Ms Davies performed work for the Respondent 'after-hours', such as early mornings or in the evenings. I am satisfied that Ms Davies did not require approval of Mr Williamson or anyone else at the Respondent to hold and maintain what can be fairly described as her primary employment.
[13] I am satisfied that Ms Davies was not required or directed to work a prescribed number of hours for the Respondent. I am satisfied that Ms Davies was not required or directed to perform work for the Respondent at any prescribed time. Ms Davies estimated that she worked approximately up to 5 hours each week for the Respondent in the first one to four months, then approximately between 5 hours to 10 hours each week in what she described as the growth phase, and then approximately in excess of 10 hours each week in what she described as the intensive launch phase. Given Ms Davies' hours of work for the Respondent were not recorded or reported, Mr Williamson was unable to comment on Ms Davies' estimate. It is clear from these findings that Ms Davies had total autonomy in her hours of work - both the total number of hours worked and when she worked.
[14] A 'whip' meeting was held once per week. It appears this meeting went for about 1 hour. The five co-founders, including Ms Davies, were invited to attend this meeting. I am satisfied that no one, including Ms Davies, was required or directed to attend this meeting. I am satisfied that there were no consequences for non-attendance. I am satisfied that Ms Davies, and the other co-founders, attended this meeting because she, and the other co-founders, were invested in the success of the business and not pursuant to a requirement or direction. It appears that the entire business was discussed at this weekly meeting. I am satisfied that the discussion at this weekly meeting included certain tasks being allocated to Ms Davies and the other attendees at this meeting. Tasks were also allocated through WhatsApp messages and emails throughout the week. I am satisfied that tasks were allocated to Ms Davies primarily by Mr Williamson or Mr Perry.
[15] I am satisfied that Ms Davies was not directed how to perform these tasks. In her own words, Ms Davies was "generally left to execute the task". I am satisfied there were certain deliverables or targets that Ms Davies was required to meet. This is clear from the correspondence sent by the Respondent to Ms Davies prior to her exit from the Respondent.[4] I am satisfied that Ms Davies provided an update, primarily at the weekly 'whip' meeting, as to her progress in completing her tasks.
[16] In performing work for the Respondent, Ms Davies worked from home. There was no face to face interaction with the other co-founders or anyone else. Ms Davies used her own equipment, such as computer, tablet and phone, to perform work for the Respondent. Ms Davies used her own home furniture, such as a desk and chair, to perform work for the Respondent. Ms Davies was not reimbursed by the Respondent for using her own equipment or to cover the running costs, such as furniture, power, lighting, air conditioning etcetera. Ms Davies performed work using an email address associated with the Respondent.[5]
[17] Section 394(1) of the FW Act provides that a person who "has been dismissed" may apply to the Commission for an order granting an unfair dismissal remedy.[6] Dismissed is defined at section 386 of the FW Act.[7] A person must first have been an employee to be dismissed. Section 380 of the FW Act provides that, for the purposes of Part 3-2 of the FW Act, "employee" means a national system employee and "employer" means a national system employer.[8] The term "national system employee" and "national system employer" are defined in sections 13 and 14 of the FW Act,[9] which are found in Part 1-2 of the FW Act. Section 11 of the FW Act provides that in Part 1-2, employee and employer have their ordinary meanings. The method to be used to ascertain the ordinary meanings of the term employee and employer is set out at section 15AA of the FW Act, which commenced in operation on 26 August 2024 following legislative amendment.[10] Section 15AA applies to a relationship entered into before that commencement date that is in existence as at that date,[11] which is the case here. As explained by Deputy President Roberts in Mrs Ann Marie Keogh v Onyx Developments Pty Ltd:[12] (citations omitted)
[9] Section15AA(2) requires a consideration of the totality of the relationship which involves a consideration of, amongst other things, the terms of the contract between the parties and an assessment as to how the contract is performed in practice. The approach to a consideration of the totality of the relationship under s.15AA is guided by the common law principles established by cases such as Stevens v. Brodribb Sawmilling Co. Pty Ltd and Hollis v Vabu Pty Ltd and involves a reversion to the multifactorial test that was well known and widely applied prior to the High Court decisions in CFMMEU v. Personnel Contracting and ZG Operations v. Jamsek.
[18] The multifactorial test has traditionally been used to determine the binary question of whether a person is an employee or an independent contractor. That is not the distinction here. It is not suggested by the Respondent that Ms Davies was an independent contractor. The Respondent's contention is that Ms Davies was not an employee. That is the extent of the question that I am required to determine. I do not need to determine whether any particular label - such as a 'co-founder contributing sweat equity' - can accurately be placed on the relationship between Ms Davies and the Respondent. I intend to determine the question before me by reference to section 15AA of the FW Act. In doing so, I consider the multifactorial test to be a useful aide. However, it is only an aide, and not determinative, especially considering the origins of the multifactorial test. A Full Bench of the Commission in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario[13] provided a summary of the approach to resolving the binary question discussed above and the multifactorial test. That summary is reproduced below (citations omitted):
[30] The general law approach to distinguishing between employees and independent contractors may be summarised as follows:
(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other's business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.
(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.
(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.
(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the particular context. For ease of reference the following is a list of indicia identified in the authorities:
● Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like.
Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of an independent contract. While control of this sort is a significant factor it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee.
"The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions." "[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract."
● Whether the worker performs work for others (or has a genuine and practical entitlement to do so).
The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, working for others (or the genuine and practical entitlement to do so) suggests an independent contract.
● Whether the worker has a separate place of work and or advertises his or her services to the world at large.
● Whether the worker provides and maintains significant tools or equipment.
Where the worker's investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.
● Whether the work can be delegated or subcontracted.
If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.
● Whether the putative employer has the right to suspend or dismiss the person engaged.
● Whether the putative employer presents the worker to the world at large as an emanation of the business.
Typically, this will arise because the worker is required to wear the livery of the putative employer.
● Whether income tax is deducted from remuneration paid to the worker.
● Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.
Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.
● Whether the worker is provided with paid holidays or sick leave.
● Whether the work involves a profession, trade or distinct calling on the part of the person engaged.
Such persons tend to be engaged as independent contractors rather than as employees.
● Whether the worker creates goodwill or saleable assets in the course of his or her work.
● Whether the worker spends a significant portion of his remuneration on business expenses.
It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.
(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other.
(6) If the result is still uncertain then the determination should be guided by "matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability" including the "notions" referred to in paragraphs [41] and [42] of Hollis v Vabu. (emphasis added).
[19] Section 15AA of the FW Act requires consideration of the terms of the contract between Ms Davies and the Respondent. I have made four observations about the Contract. The first observation, which concerns the Contract defining Ms Davies as an employee and describing the relationship as one of employment, suggests that Ms Davies was an employee of the Respondent. However, the enquiry required by section 15AA of the FW Act is not confined to the terms of the Contract. Rather, the real substance, practical reality and true nature of the relationship is to be considered. Section 15AA(2) of the FW Act provides guidance as to how those matters are to be considered. As already explained, section 15AA of the FW Act is a reversion to approach whereby the real substance, practical reality and true nature of the relationship is considered. Prior to the enactment of section 15AA of the FW Act, where the rights and duties of the parties are "comprehensively committed to a written contract" the validity of which is not challenged on the basis it is a sham and the terms of which have not been varied, waived or the subject of an estoppel, the rights and obligations established by the contract are determinative as to the legal character of the relationship.[14] The terms and terminology of the Contract are important and I have taken them into account. However, I give very little weight to the fact that Contract defines Ms Davies as an employee and describes the relationship as one of employment. That is because the parties cannot alter the true nature of their relationship by putting a different label on it.
[20] The first indicia of the multifactorial test is whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like_._ I have found that Ms Davies was not directed how to perform tasks and that she was generally left to execute the task. Ms Davies was the Chief Marketing Officer and Chief Sales Officer. I am satisfied that duties that Ms Davies performed involved a high degree of skill and expertise. I am satisfied that the tasks performed by Ms Davies would - irrespective of how the relationship is characterised - be performed with a high degree of autonomy. The lack of control exercised by the Respondent over the way in which Ms Davies performed work is a neutral factor in reaching an overall conclusion as to whether Ms Davies was an employee.
[21] I have found that Ms Davies could choose how many hours she worked for the Respondent, and when she performed work. There was no direction or prescription about these matters. The hours that Ms Davies worked were not recorded or reported. I have made findings about the weekly 'whip' meeting. I have found that no one, including Ms Davies, was required or directed to attend the 'whip' meeting. There were no consequences for non-attendance. Ms Davies, and the other co-founders, attended the 'whip' meeting because she, and the other co-founders, were invested in the success of the business and not pursuant to a requirement or direction. These matters all demonstrate that the Respondent exercised no control over the hours worked by Ms Davies. The terms of the Contract provide the Respondent with no control over the hours worked by Ms Davies. I am satisfied that the absence of any such control under the terms of the Contract, and how the contract was performed in practice, with respect to the hours worked by Ms Davies is a factor that weighs heavily in favour of reaching an overall conclusion that Ms Davies was not an employee of the Respondent.
[22] I have found that there were certain deliverables or targets that Ms Davies was required to meet. The meeting of certain deliverables or targets is not simply a feature of (some) employment relationships. Many commercial relationships or transactions require the satisfaction of certain deliverables or targets. This factor does not assist one way or the other in determining whether Ms Davies was an employee. This is a neutral factor in reaching an overall conclusion as to whether Ms Davies was an employee.
[23] The second indicia of the multifactorial test is whether the worker performs work for others (or has a genuine and practical entitlement to do so). Ms Davies performed work for others. Ms Davies had a full-time job with another (unrelated) employer. Ms Davies performed work for the Respondent 'after-hours'. The second indicia was formulated many decades ago. It may be the case that the second indicia is less relevant in contemporary times given that owing to changes in society and in the workplace that it is unremarkable that an employee may have a second or third job. However, this is not the case to take that observation any further. The fact that Ms Davies had a full-time job elsewhere and performed work for the Respondent 'after-hours' with total autonomy as to her hours of work and without the payment of wages or salary is a factor that weighs heavily in favour of reaching an overall conclusion that Ms Davies was not an employee of the Respondent.
[24] The third indicia of the multifactorial test is whether the worker has a separate place of work and / or advertises his or her services to the world at large. Ms Davies worked from home. In 2026, Ms Davies working from home, as opposed to an office owned or leased by the Respondent, is a neutral factor in reaching an overall conclusion as to whether Ms Davies was an employee. There was no material before me as to whether Ms Davies advertised her services to the world at large.
[25] The fourth indicia of the multifactorial test is whether the worker provides and maintains significant tools or equipment. I have found that Ms Davies used her own equipment and own home furniture to perform work for the Respondent. The Respondent did not reimburse Ms Davies or cover the other running costs. I do not consider the equipment, home furniture or other running costs to be significant tools or equipment. However, it is equipment none the less. This is a factor that weighs in favour of reaching an overall conclusion that Ms Davies was not an employee of the Respondent
[26] The fifth indicia of the multifactorial test is whether the work can be delegated or subcontracted. The Contract is silent with respect to this matter. I asked some questions about this matter of Ms Davies at the hearing. It does not appear that the issue of delegation or subcontracting was realistic. That is because it appears that there was no one that Ms Davies could delegate the work to. In these circumstances, this is a neutral factor in reaching an overall conclusion as to whether Ms Davies was an employee.
[27] The sixth indicia of the multifactorial test is whether the putative employer has the right to suspend or dismiss the person engaged. The terms of the Contract (at clause 6) gave the Respondent the right to dismiss Ms Davies. The Respondent exercised that right and bought the relationship with Ms Davies to an end.[15] That is, there was consistency between the terms of the Contract and how the contract was performed in practice. This factor does not assist one way or the other in determining whether Ms Davies was an employee. This is a neutral factor in reaching an overall conclusion as to whether Ms Davies was an employee.
[28] The seventh indicia of the multifactorial test is whether the putative employer presents the worker to the world at large as an emanation of the business. The only material before me with respect to this matter is that Ms Davies performed work for the Respondent using an email address associated with the Respondent. This is a factor that weighs in favour of reaching an overall conclusion that Ms Davies was an employee of the Respondent.
[29] The eighth indicia of the multifactorial test is whether income tax is deducted from remuneration paid to the worker. There was no remuneration paid to Ms Davies. As such, there was no income tax to deduct. This is a factor that weighs in favour of reaching an overall conclusion that Ms Davies was not an employee of the Respondent
[30] The ninth indicia of the multifactorial test is whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks. The terms of the Contract concerning equity and cash compensation have been discussed above. As a matter of fact, Ms Davies was not paid wages, salary or any other form of remuneration. It appears that Ms Davies held a 1% share in the Respondent.[16] The absence of any wages, salary or other form of remuneration (other than equity), both under the terms of the Contract and as a matter of fact, is a factor that weighs heavily in favour of reaching an overall conclusion that Ms Davies was not an employee of the Respondent.
[31] The tenth indicia of the multifactorial test is whether the worker is provided with paid holidays or sick leave. Under the terms of the Contract and as a matter of fact, Ms Davies was not provided with holidays or sick leave. The absence of such benefits and the other usual benefits of employment, under the terms of the Contract and as a matter of fact, is a factor that weighs heavily in favour of reaching an overall conclusion that Ms Davies was not an employee of the Respondent.
[32] The eleventh indicia of the multifactorial test is whether the work involves a profession, trade or distinct calling on the part of the person engaged. Under the terms of the Contract and as a matter of fact, Ms Davies was the Respondent's Chief Marketing Officer and Chief Sales Officer. This is a professional role. This factor does not assist one way or the other in determining whether Ms Davies was an employee. This is a neutral factor in reaching an overall conclusion as to whether Ms Davies was an employee.
[33] The twelfth indicia of the multifactorial test is whether the worker creates goodwill or saleable assets in the course of his or her work. The work performed by Ms Davies is likely to have created goodwill and saleable assets. This factor does not assist one way or the other in determining whether Ms Davies was an employee. This is a neutral factor in reaching an overall conclusion as to whether Ms Davies was an employee.
[34] The final indicia of the multifactorial test is whether the worker spends a significant portion of their remuneration on business expense. It does not appear that the costs incurred by Ms Davies (equipment, home furniture, and running costs) would be a significant portion of Ms Davies' total remuneration. The equipment, home furniture and running costs are unlikely to be used by Ms Davies exclusively for performing work for the Respondent. This is a factor that weighs in favour of an overall conclusion that Ms Davies was not an employee of the Respondent.
[35] I have used the indicia as an aide to examine the real substance, practical reality and true nature of the relationship between Ms Davies and the Respondent. I am satisfied that the real substance, practical reality and true nature of the relationship was not of employment. In making that finding, I have given considerable weight to the fact that Ms Davies performed work for the Respondent, in addition to her primary employer, 'after-hours' with total autonomy as to her hours of work, and without the payment of wages, salary or any other form of remuneration (other than equity) and without the usual benefits of employment, and by using her own equipment, home furniture without reimbursement. These factors have been decisive in my overall conclusion that Ms Davies was not an employee of the Respondent. In reaching that conclusion, I have considered the terms of the Contract. In doing so, I note that the Contract was silent with respect to several factors considered under the multifactorial test.
[36] I am satisfied that Ms Davies was not an employee or a national system employee. Therefore, Ms Davies was not dismissed by the Respondent within the meaning of section 386 of the FW Act. I am required to dismiss Ms Davies' application for an unfair dismissal remedy. An order to that effect will be issued separately to this decision.
[1] Paragraph 1 of the Respondent's Outline of Submissions (RS), Digital Hearing Book (DHB) page 90.
[6] Doessel Group Pty Ltd v Joanna Pascua [2025] FWCFB 43 at [35].
[11] Mrs Ann Marie Keogh v Onyx Developments Pty Ltd [2025] FWC 3274 at [8].
Printed by authority of the Commonwealth Government Printer
Stacey Davies
OneRD Pty Ltd [2026] FWC 478
Application for an unfair dismissal remedy dismissed because the applicant was not a national system employee and therefore was not dismissed within the meaning of s.386 of the Fair Work Act; order to be issued separately [4], [36].