s.365 - General protections

RPM Automotive Holdings Pty Ltd & Clive Finkelstein

Application to deal with contraventions involving dismissal -jurisdictional objection -whether dismissed within the meaning of s 386(1)(a) - application dismissed.

• [1] On the 31 July 2025, Mr Stephen Nash (the Applicant) lodged an application pursuant to s 365 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment on 11 July 2025 by the RPM Automotive Group Limited (RPM) & Clive Finkelstein (collectively the Respondents) contravened his workplace rights. In their Form F8A response the Respondents raised a jurisdictional objection to the application, that being the Applicant was not an employee and was therefore not dismissed within the meaning of s 386 of the Act.

• [2] The Respondent's jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application[1]. Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s 368 of the Act[2]. Consequently, the issue for determination is whether the Applicant was dismissed from his employment within the meaning of s 386 of the Act.

• [3] Following allocation of the matter to my Chambers on 25 August 2025, Directions were issued on 29 August 2025 for the filing of material in relation to the Respondents' jurisdictional objection. The hearing to deal with the jurisdictional objection was listed for 10 November 2025. Both parties filed material in accordance with the Directions and were granted permission to be legally represented pursuant to s 596(2) of the Act. At the hearing, the Applicant was called to give evidence while Mr Clive Finklestein (CEO) and Ms Rebecca Blacklaws (General Manager Group People and Culture) gave evidence for the Respondents.

• [4] During proceedings, the Applicant made an oral application to amend its application to ensure the correct legal entity was identified as the First Respondent. The original application identified the First Respondent as RPM Automotive Group Limited (RPM). Both parties agree that the correct legal entity is in fact RPM Automotive Holdings Pty Ltd (RPMAH) although the Respondents resist amendment of the application to reflect the correct legal entity of the First Respondent. RPMAH is a subsidiary of RPM within the meaning of s 46 of the Corporations Act 2001 (Cth) (the Corporations Act) and the two companies are associated entities within the meaning of s 50AAA of the Corporations Act.

• [5] I am satisfied that the controlling minds of RPMAH are the same as RPM and that RPMAH would suffer no prejudice in the matter, as all relevant decision makers were notified of the Applicant's claim at the time the application was filed. The Applicant submits that RPMAH should be identified as the First Respondent in the matter in order to clarify the issue of the employer identity raised by the Respondents. I accede to that submission and exercise my discretion to amend the identity of the First Respondent to that of RPMAH.

• [6] The Applicant states that he was employed by Chapel Corner Service Centre (CCT) until it was purchased by RPMAH on 1 September 2023. During his employment with CCT, he was appointed CEO and CFO of the Nash Group of Companies (the Nash Group) which is a family business that incorporates a number of entities, including CCT up to the sale of that business. He also states that during his employment with CCT, he became an expert in the Marlin GTX, Marlin HR and Marlin Tyre and Mechanical Workshop Software (together Marlin), which is a suite of advanced point-to-point-of-sale, accounting and business management software package specifically designed for the automotive industry. The Applicant went on to state that he was a leading expert in the use of Marlin in the Australian automotive parts sale industry.[3]

• [7] Mr Finklestein states that RPM is listed on the Australian stock exchange, operates in all Australian states and territories and is a leading provider of wheels, tyres, accessories and apparel for both wholesale and retail customers across business to business (B2B), commercial, industrial, fleet and consumer markets[4]. Mr Finklestein was the CEO of RPM between 2019 and February 2024 at which point he moved into the Chief Commercial Officer role for an interim period before resuming as CEO in September 2024. For the brief interim period, Mr Guy Nicholls assumed the role of CEO[5].

• [8] Mr Finklestein states that discussions and negotiations between RPMAH and the Applicant (on behalf of the Nash Group) held between August 2022 and 30 June 2023 led to the execution of a Business Sale Agreement[6] (BSA) in which RPMAH purchased CCT from the Nash Group. The sale was appealing to RPMAH because CCT consisted of an importing business as well as a sub-distribution business with Goodyear and Dunlop Tyres. Mr Finklestein saw the acquisition as potentially supporting further expansion of RPMAH's business even though RPMAH was already a mature business[7].

• [9] The BSA included various terms that enabled the Applicant to continue operating other businesses, including an on-line accessories business under the business name of 'Bits for Blokes' (B4B), maintenance work, maintaining a property business amongst other interests as well as continuing as CEO of the Nash Group. There was however a restraint of trade provision that prevented the Applicant undertaking work or business in competition with the CCT business RPMAH had acquired. As part of the business sale, RPMAH employed transferring employees (as defined in clause 1.1 of the BSA), which specifically excluded the Applicant. Clause 12.1 of the BSA made clear that RPMAH would not employ the Applicant[8].

• [10] Separate negotiations were conducted to develop the terms of the Consulting Agreement[9] entered into between the Applicant and RPMAH which was required as a condition of the BSA[10]. The services to be provided by the Applicant to RPMAH under the Consultancy Agreement were management, transition and consultancy services to RPMAH in relation to operating and growing the CCT business[11]. The Consultancy Agreement which was expressed to operate for a period of three years included the following relevant conditions;

• the Applicant was required to provide services 5 days per week on normal business days, based on 48 weeks per year, allowing for 4 weeks holidays per year, with flexibility to work shorter weeks if required but making up hours elsewhere (clause 5);

• the Applicant was required to provide invoices on a monthly basis no later than the 5th day of each month which RPMAH was required to pay within 30 days;

• an agreed weekly payment was $4,944 (exclusive of GST) which was for an average of 8 hours per day, 40 hours per week and was to be paid 52 weeks per year;

• RPMAH would reimburse the Applicant for reasonable expenses incurred;

• the Applicant's engagement under the agreement could be terminated with notice at any time after 1 September 2023 with 4 weeks' notice in Year1, 8 weeks' notice in Year 2, 12-weeks' notice in Year 3 or by making a payment in lieu of notice equivalent to the fees that would have been received had the notice period been worked out;

• the Applicant's engagement under the agreement could be terminated without notice for material breaches of the agreement, wilful neglect of obligations under the agreement or for serious misconduct in connection with the provision of services;

• the Applicant was able to provide services to any other persons provided that doing so did not create a potential or actual conflict of interest; and

• acknowledgement that the Applicant would provide services under the agreement as an independent contractor and that nothing in the agreement constituted a relationship of employer and employee, principal and agent or partnership between RPMAH and the Applicant and that he was not entitled to any employment related entitlements or similar benefits.

• [11] The Applicant states that in discissions leading to the BSA and Consultancy Agreement being executed, Mr Finklestein raised that once engaged by RPMAH, the Applicant's remuneration would be greater than executive management level employees. The Applicant states this was because Mr Finklestein was concerned that if the Applicant were employed as an Executive Director or COO of the RPMAH it would have been required to publish his remuneration details in its annual report. The Applicant states that Mr Finklestein suggested a contractor arrangement as an alternative as it would avoid the need for publication of his remuneration. The Applicant says he was assured by Mr Finklestein that his pay would be aligned with the executive pay cycle[12]. Mr Finklestein described this evidence of the Applicant as a 'complete fabrication' as the ASX remuneration reporting requirements would not have applied to the Applicant had he been employed [13].

• [12] When cross-examined on the Consultancy Agreement, the Applicant stated that he had not done any consulting work for any other companies during the engagement. He also maintained that the agreed rate of $4,944 per week took into account annual leave and superannuation entitlements but rejected Mr Finklestein's claim that the rate recognised a requirement for him to supply and maintain a motor vehicle. He agreed however that he invoiced RPMAH, expected to get paid per submitted invoices, was paid monthly in arrears and that he was responsible for managing any tax liability. He further agreed that the term of the Consultancy Agreement was three years, could be terminated early, did not permit disciplinary action to be taken and did not provide for any short-term or long-term incentives. He also accepted that he was identified in clause 14 of the BSA as a 'consultant', that the Consultancy Agreement was not an exclusive arrangement, he never raised or challenged the validity of the Consultancy Agreement and agreed it was not a sham.

• [13] The Applicant further states that he understood his above-referred discussions with Mr Finklestein's and the assurance regarding his pay being aligned with executives to mean that he would be effectively engaged and treated as an employee on a salary. As regards working from home, this was discussed and agreed between the Applicant and Mr Finklestein as part of the negotiations; although Mr Finklestein asked whether the Applicant would work from the RPMAH office at some future point for a couple of days per week, which the Applicant agreed to do when the time was right[14].

• [14] Ms Blacklaws disputed the Applicant's characterisation of his consulting fee as a salary, on the basis that employees on annualised salaries do not charge GST and are entitled to standard benefits such as leave and superannuation. She further stated that there were no annual review, performance appraisals or at-risk payments in the Applicant's case. The consulting fee was paid whether the Applicant worked or not[15].

• [15] RPMAH's acquisition of CCT was completed on 1 September 2025 although there were 'earn out arrangements' under the BSA by which a combination of cash payments and shares in RPMAH were provided to the Nash Group subject to defined performance criteria[16]. The 'earn out period' was from 1 September 2023 to 1 September 2024. Mr Finklestein states that as the 'earn out arrangements' were in place, the Applicant continued to provide services to ensure the CCT business continued and had an effective handover[17]. When cross-examined on the Applicant's role after 1 September 2023, Mr Finklestein expressed his belief there was no change in the way the Applicant operated the CCT business during the 12-month earn out period. He clarified however that he did not know exactly what the Applicant did before 1 September 2023.

• [16] Mr Finklestein claims, that in practice, the Applicant continued to service and ensure the effectiveness of his on-line business B4B. As regards provision of consultancy services, he states that the Applicant provided the services remotely and was not required to attend RPMAH's premises. In doing so, Mr Finklestein states the Applicant had full control over the performance of work, provided his own phone and car, invoiced RPMAH through a separate entity 'Starchild Advisory Pty Ltd,' was registered for GST and took time off at his discretion and without requiring approval. While Mr Finklestein conceded that the Applicant liaised as necessary with Mr Finklestein's predecessor Mr Guy Nicholls about budgets and performance, there was limited interference given the potential impact on the 'earn out amounts'[18].

• [17] Ms Blacklaws confirmed that the Applicant did not work from RPMAH's business premises and provided his services by working from home. She states that from about September 2024, the CCT business was integrated into RPMAH and from then the Applicant's point of contact was with the General Manager for Tyres, Joe DeSensi and Mr Finklestein. From that point, the Applicant was responsible for integration of systems for the tyre division which were project related tasks and continued throughout the period that the consulting arrangements were in place[19]. Ms Blacklaws further stated that the Applicant used his consultancy company to render his monthly tax invoices[20], was not in the payroll system, did not accrue and was not entitled to leave or any other employee entitlements. She clarified that the monthly consultancy fee was invoiced each month regardless of hours completed as the Consultancy Agreement was not time and materials, but outcome based[21]. She speculated that it was possible that the Applicant spent minimal time on providing the services to RPMAH[22].

• [18] When cross-examined on the nature of the arrangement entered into with the Applicant, Ms Blacklaws agreed that the Consultancy Agreement was not time and material based, there was no evidence of a particular output, the contract was based on 8 hours per day, 5 days per week, the rate paid to the Applicant was initially based on a daily rate and there was no relationship between the payment and actual hours worked by the Applicant.

• [19] The Applicant states that for the whole of his 'employment' with RPMAH, he worked 12-14 hours per day and 5-6 days per week. He states his hours of work were aligned with the business hours of RPMAH, generally beginning at 7.15am each day and formally ending at 6.00 pm although he says he would regularly continue working until 8.30pm or later. He states these were the same hours he worked during his employment with CCT. He claims that following completion of the sale on 1 September 2023, he was primarily directed to continue operating CCT in the same manner he had when he was CEO of CCT[23]. He further states that he had general operational freedom but was subject to direction from the RPMAH at times in the manner of operating CCT, including directions to reduce holdings of particular stock or to stop ordering particular stock. One of the key restrictions imposed on him was that he had no authority to hire employees without permission. Nor was he permitted to conduct wage reviews for CCT staff without approval from Mr De Sensi or Mr Finklestein[24].

• [20] The Applicant also confirmed during cross-examination that he always advised Mr De Sensi before taking any time off, accepted that there was no record or means of confirming the hours that he worked, that he worked from home throughout the period of the engagement and rarely went to the office. When pressed on the latter point, he confirmed that in the final six months of the engagement he only attended the office on two occasions.

• [21] During cross-examination, Mr Finklestein disputed that the Applicant was subject to direction during the earn out period and that he (the Applicant) had considerable freedom to operate CCT and maximise the value of payments under the earn out arrangements in the BSA. Mr Finkelstein agreed however that the Applicant would have been subject to general directions regarding stock control and that RPMAH could give directions to the Applicant under clause 4 of the Consultancy Agreement. Mr Finklestein also maintained that the Applicant was able to work when and how he saw fit, did not have to ask for leave and could take time off when he wanted. Further, the Applicant got paid the same amount regardless of how many hours he worked but had no reason to doubt the Applicant's evidence on the periods of 'leave' he took[25], or that he 'often worked on public holidays'[26]

• [22] The Applicant states that during the 12-month earn out period, he was primarily involved in operating the CCT business but was also directed to assist with various other projects including;

• managing RPMAH's corporate insurance policy;
• assisting Mr Finklestein with energy infrastructure for the impending tyre recycling plant;
• procuring a company-wide energy plan with AGL;
• assisting the Equipt Group Pty Ltd;
• developing a sales incentive program for CCT Sales Executives; and

• • assisting RPM Wildcat in developing and streamlining their on-line sales platform.[27]

• [23] Mr Finklestein disputed that the Applicant undertook the tasks listed above in [22]. In rejecting the Applicant's evidence, Mr Finklestein stated that;

• Ms Payne had responsibility for RPMAH's group insurance policy, not the Applicant;
• beyond introducing Mr Finklestein to a family member who worked at AGL, the Applicant did not assist Mr Finklestein with the energy infrastructure;
• the Applicant did not procure a company-wide energy plan with AGL;
• the Applicant did not assist The Equipt Group (a separate business unit within RPM) which was simply provided access to some available space within the CCT warehouse due to its expansion into Victoria; and

• • the Applicant had no involvement in the development or streamlining of on-line sales in Wildcat, another part of RPM.[28]

• [24] When cross-examined on the additional tasks he claims to have undertaken during the earn out period, the Applicant disputed Mr Finklestein's evidence and maintained the accuracy of his evidence set out above at [22].

• [25] Following the earn out period, the Applicant states that for a period of 6-8 months, CCT was slowly integrated more directly with the RPMAH and his role changed to focussing on Marlin integration across the RPMAH more generally and being a part of the RPMAH management team. Apart from being a 'port of call' for CCT staff, the Applicant says he performed the following tasks/duties after conclusion of the earn out period;

• worked to fix Marlin processes and data management for each of RPMAH's branches;
• managed RPMAH's corporate insurance policy;
• was invited to monthly financial management meetings;
• travelled to Brisbane to work with RPMAH's Brisbane warehouse; and
• had RPMAH employees reporting to him including 8 members of the CCT branch, 3 members of the RPMAH Tyre Division, 2 members of the RPMAH Head Office accounting and 14 members of the wider RPMAH retail stores;
• had banking authority for the RPMAH in relation to CBA, NAB and Westpac accounts in Retail and Autoparts; and

• • had authority to deal with vendors and suppliers for the RPMAH (within his scope) and to form and execute agreements with those vendors or suppliers on behalf of RPMAH, unless a director's guarantee was required.[29]

• [26] When cross-examined on his post earn out period duties, the Applicant stated that RPMAH needed his Marlin expertise to integrate CCT into its business. He further stated that while he was primarily engaged on Marlin after 1 September 2024, he did do other work as required by RPMAH.

• [27] In response to the Applicant's claims about his post earn out period activities, Mr Finklestein stated that;

• the Applicant did not have responsibility for direct reports, and while he no doubt maintained close working relationships, the post earn out period transition saw the CCT staff report to the Region A Manager, Mr Trampevski;
• the Applicant was not included in the management team and did not attend monthly financial management meetings;
• in line with his project to consolidate the Marlin database, the Applicant travelled to Brisbane to visit the Sherwood Tyre warehouse; and

• • banking practices were necessarily reviewed and improved to correct risks identified in an earlier audit, one result of which was adding a second approver and reducing the Applicant's authority.[30]

• [28] Mr Finkelstein clarified during cross examination that the Applicant had two direct reports and 13 indirect reports during the earn out period. That was because he maintained responsibility for running the CCT business during that 12-month period.

• [29] The Applicant states that in addition to the primary elements of his work for RPMAH, he was frequently contacted to assist other members of the team with ad hoc work, was regularly contacted by Mr Akila Perera, the Divisional Accountant for Retail to assist with the Marlin system on which the Applicant claimed unique expertise. On the Marlin work, the Applicant reported to Ms Rebecca Payne, RPMAH Group's CFO. He further states that all work performed for RPMAH from 31 August 2024 was at the direction of Group management representatives such as Mr Finklestein, Ms Payne, Ms Blacklaws and Mr De Sensi whom he understood to be his superiors within the organisation, and he would only act on their written or verbal approval[31].

• [30] When cross-examined on his evidence that he maintained direct reports after the earn out period, the Applicant responded that CCT sales staff continued to send him reports and that when Mr Trampevski was unavailable, staff would contact the Applicant instead. He accepted however that as the CCT transition progressed after the earn out period, there was less contact from CCT staff. He claims however that he was not formally advised that CCT staff would cease to report to him at the end of the earn out period. He claimed that he attended one monthly financial meeting in October 2024 but agreed that he had not attended any such meetings in 2025 or management meetings after the end of the earn out period.

• [31] The Applicant claims that from 1 September 2023 to 30 August 2024, the former employees of CCT who were employed by RPMAH following its acquisition of CCT, reported to him in the same way they had when he was CEO of CCT. From 31 August 2024 till termination of the Consultancy Agreement, he further claims that RPMAH employees in the Tyre Division reported to him. He refers to an email received from Ms Blacklaws on 8 February 2024 in relation to staff movements and other matters where she relevantly stated; "You're receiving this email because you have people reporting to you at RPM Automotive Group."[32] The Applicant's responsibilities for employees extended he says to leave approvals in the Xero HR system and to his views being sought in relation to pay increases on a number of occasions[33].

• [32] Mr Finklestein declared that the services performed by the Applicant after 1 September 2023 were limited to and associated with the wholesale trye business (CCT) that RPMAH had acquired from him, that he had no involvement in the management of others and was never integrated into RPMAH's business[34]. Ms Blacklaw stated her understanding that in the initial period after September 2023, the Applicant focussed on the wholesale ordering and worked on KPIs, budgets, delivery and logistics whilst his sister Ms Judy Nash managed the retail, business and employees in the former CCT business[35]. After integration of the CCT business, responsibility for the supervision of others was transitioned to align with the rest of the business reporting to the regional manager followed by the General Manager of the Tyre Division. She says the Applicant continued to work from home throughout this period with the exception of a handful of meetings he was requested to attend[36].

• [33] Ms Blacklaws agreed that the Applicant did have staff reporting to him during the earn out period, but this ceased after the period ended. This explained the communication sent to the Applicant on 8 February 2024, as this was still during the earn out period. According to Ms Blacklaws, the Applicant was expressly excluded from people management communication after the earn out period. The change in the reporting structure was communicated to former employees of CCT by Mr Trampevski (Regional Manager) and Ms Blacklaws in face-to-face meetings after 1 September 2024[37].

• [34] Ms Blacklaws conceded that there may have been leave approvals by the Applicant during the 'earn out period' but not after September 2024 when integration of CCT in the RPMAH business was proceeding. Any approvals after the earn out period would according to Ms Blacklaws have been ad-hoc and not because of any formalised approval process, this being potentially attributable to limitations in the Xero system which allowed individuals to select the approver of their leave. In preparing her witness statement Ms Blacklaw reviewed leave approvals for a range of employees and identified there were a range of RPMAH employees who did not submit their leave approvals to the Applicant after the earn out period[38]. As to the Applicant's views on salary increases being sought, Ms Blacklaws explained that the remuneration of former CCT employees that moved to RPMAH as part of the sale of CCT, was reviewed at the request of the Applicant in 2024 because full integration of CCT staff into the RPMAH annual salary review process had not yet occurred[39].

• [35] Ms Blacklaws rejected that the Applicant had authority for vendors and suppliers other than in relation to CCT and only during the earn out period. She did however accept that he may have had broader authority when directed on a project for example to consolidate electricity or mobile phones. As to the Applicant's claim to have had full authority for various bank accounts, Ms Blacklaws referred to an email dated 2 June 2025 to Ms Payne in which the Applicant when referring to a particular CBA account specifically stated that he did not have authority in relation to that account[40].

• [36] The Applicant also refers to a number of other matters that indicated his employment status and level of integration into the RPMAH's organisation. The Applicant variously states that he;

• • used his own personal car when performing work however RPMAH provided a fuel card, an eTag, paid for the registration, servicing and maintenance of the vehicle and the vehicle was covered by RPMAH's group fleet insurance plan[41];
• • used his own mobile phone when performing work for RPMAH with his phone bill[42] being paid for by the RPMAH while he was engaged;
• • was supplied with a laptop by RPMAH in August 2024[43];
• • had all of his stationery, tea and coffee paid for by RPMAH[44];
• • was issued several pieces of RPMAH branded clothing which he says he regularly wore to meetings with vendors, suppliers and other parties[45];
• • received paid time for annual holidays and public holidays, this being clearly contemplated in the Consultancy Agreement[46];

• was held out to the public (including vendors and suppliers) and to most staff of the RPMAH as an employee and representative of RPMAH;

• • was referred to as the Operations Manager - Tyre Division in an email from Mr De Sensi on 1 October 2024[47];
• • was issued with printed business cards reflecting the Operations Manager - Tyre Division title[48];
• • was referred to in an ASX Release on 18 November 2024 in the following terms - "Stephen Nash now joins Joe De Sensi's team as a key executive in the Tyre Division, taking on the role of Operations Manager"[49];
• • was at no stage during his engagement by RPMAH described to staff, vendors and suppliers as other than an employee of RPMAH and that only a select few employees were aware of his consultant status, those being Mr Finklestein, Mr De Sensi, Ms Payne and Ms Blacklaws[50];
• • was covered by RPMAH's group travel insurance but otherwise maintained his own WorkCover insurance and Management Liability insurance which he maintained since 2011[51]; and
• • he received an email from Ms Blacklaws on 17 April 205[52] in which she detailed proposed responsibilities to be included in a Position Description for the Operations Manager position.

• [37] During cross-examination, the Applicant stated that while his personal car was not listed on the asset transfer list in Schedule 4 of the BSA, Mr Finklestein and he had agreed that RPMAH would pay the registration, insurance, running and maintenance costs of his personal vehicle. When pressed on his evidence on issued clothing, the Applicant conceded RPMAH did not impose a uniform requirement. He maintained however that he was provided with branded clothing and disputed Ms Blackshaw's evidence that he never wore such clothing. He agreed however, that he was never directed to wear said clothing. He also agreed that the ASX Release did not state he was an employee and while he did have discussions with RPMAH after that announcement about taking on a role, those discussions did not lead to a formal offer of employment.

• [38] Mr Finklestein was cross-examined on the 'Operations Manager' title referred to in the ASX Release, the Applicant's email signature and on the business card issued to the Applicant. He confirmed that he and the Board approved the above-referred ASX release but disputed that the Applicant was held out as an executive of RPMAH. He accepted however that a reasonable person might have assumed the Applicant held that role based on the various communication referred to above. He also accepted that he was not aware of the Applicant having been corrected in his use of that title in his communications via email or otherwise. Mr Finklestein then contended that the fact the Applicant may have used that title or been described as the Operations Manager did not establish that he was an employee. He also stated that while there was discussion about the Applicant taking on a role as an employee of RPMAH, such role did not eventuate.

• [39] Mr Finklestein also maintained during cross-examination that RPMAH was unaware that it had continued to pay for the Applicant's motor vehicle and phone expenses after the earn out period. He confirmed that RPMAH ceased to pay for those expenses after the earn out period when it became aware of them.

• [40] Mr Finklestein rejected much of the Applicant's evidence set out above in [36] and variously stated as follows;

• the Applicant did not have any employees reporting to him after 31 August 2024;
• he was unaware that RPMAH was incurring the costs of the Applicant's vehicle's registration, fuel, maintenance and eTag, noting that such expenditure was inconsistent with the Consultancy Agreement;
• the issue of leave was a matter for the Applicant to manage as the agreed commercial rate took that into account;
• the Applicant was not held out as an employee and was always referred to as a consultant and that all parties, both within and outside RPMAH, understood this;
• the Applicant conducted himself as both a supplier and customer of RPMAH through his B4B company;
• the Applicant was not included in any remuneration reports or HR updates;
• the travel insurance policy extends to both contractors and employees; and

• • holding separate WorkCover and liability insurance was consistent with a contractor arrangement.[53]

• [41] Ms Blacklaws also rejected much of the Applicant's evidence referred to above in [36], variously stating;

• • she denied the Applicant was issued with an RPMAH uniform, stated there is no uniform policy nor a requirement to wear branded clothes and while she met the Applicant about six times between February 2024 and 11 July 2025, she never saw the Applicant wearing branded clothing[54];
• • there were no records of the Applicant taking leave as he was not on RPMAH's internal system, and no one approved his leave in the manner of an employee[55];
• • she confirmed the travel insurance policy covers contractors[56];
• • the expenses claimed by the Applicant and paid by RPMAH were carried over from the business purchase under the BSA and were paid under the expectation of reasonable business expenses[57];
• • the email dated 17 April 2025 setting out certain responsibilities for a position description was a prompt to progress discussions rather than a settled position and no employment contract was agreed or implemented following that email[58];
• • the ASX Release on 18 November 2025, does not expressly refer to the Applicant being an employee and while an employment arrangement going forward may have been contemplated, it did not eventuate and Ms Blacklaw was not directed to prepare an employment contract or other documentation following the ASX Release[59]; and
• • she recalls a discussion with Mr Finklestein and Mr De Sensi after conclusion of the earn out period on or about August/September 2024 about the next steps for the Applicant, and while there was discussion about roles, nothing eventuated[60].

• [42] Ms Blacklaws also disputed the Applicant's evidence regarding direct reports. She conceded that he may have had direct reports during the earn out period and during the immediate transition; but not thereafter. She states that as soon as the earn out period ended, the reporting arrangements changed; while some employees may have taken direction from the Applicant, there was never a direct reporting relationship between any member of the tyre division, accounting team or retail stores. As to responsibility for banking arrangements, that authority was removed after the earn out period[61].

• [43] Mr Finklestein went on to describe what he understood to be the Applicant's other business interests, noting that the independent contractor arrangements allowed him the flexibility to manage those other interests, including B4B, which Mr Finklestein claimed was a significant on-line business conducted by the Applicant both before and after completion of the CCT sale[62]. Mr Finklestein further states that the Applicant was a director and shareholder of Samanash Pty Ltd as Trustee for the Nash Investment Trust, the owner and landlord of premises at 33-15 Kilpa Road Moorabbin, Victoria which was leased to RPMAH Autoparts. Mr Finklestein further stated it that the Applicant was a director and shareholder of Kalawanti Pty Ltd, which was the landlord of premises at 17-21 Kilpa Road Moorabbin, Victoria which was also leased to RPMAH Autoparts[63]. Based on an ASIC search, Mr Finkelstein identified the following interests of the Applicant;

• Six Eastern Investments Pty Ltd;
• Kalawanti Pty Ltd;
• Samanash Pty Ltd;
• Starchild Advisory Pty Ltd; and

• [44] Ms Blacklaws also gave evidence on her understanding that the Applicant ran e-commerce and property management businesses, the former being run out of the Moorabbin warehouse that RPMAH leases from the Applicant. She also refers to the Applicant's LinkedIn profile obtained by her on or about 11 September 2025 in which the Applicant identifies himself as the CEO of the Nash Group of Companies[65].

• [45] The Applicant confirmed that he has various business interests as follows;

• Director and Company Secretary of Six Eastern Investment Pty Ltd for which no wage or remuneration is received;
• Director, Company Secretary and sole shareholder of Starchild Advisory Pty Ltd, which is the company that invoiced RPMAH for his consultancy services, but otherwise does not trade;
• Director and Company Secretary of Kalawanti Pty Ltd, for which only trust distributions are received; and

• • Director, Company Secretary and Shareholder of Mackie & Boochie, which is an entity purely used for investments for the Applicant and his wife and for which no wage or remuneration is otherwise received.[66]

• [46] In responding to Mr Finklestein's evidence on his business interests, the Applicant states that he was not and never had been a director of Samanash Pty Ltd[67]. He also states that given the long hours he had worked for RPMAH, he did not turn his mind to working for other businesses and regarded himself as exclusively working for RPMAH[68]. He also claimed that contrary to Ms Blacklaw's speculation about his hours of work, he spent significant time working for RPMAH, more than full time hours each week[69]. He also refers to an email dated 17 April 2025[70] from Ms Blacklaws which sets out matters to be included in a Position Description, which he says indicates that Ms Blacklaws understood that the Applicant performed a significant number of functions for RPMAH.

• [47] Mr Finklestein disputed the Applicant's evidence regarding his hours of work and that he worked exclusively for RPMAH. He refers to a China trip in April 2025 when he was accompanied by the Applicant and Mr De Sensi, during which trip he says the Applicant was not present at all times, had private meetings with other parties and stayed on in China for a further week after Mr Finklestein and Mr De Sensi had left. Mr Finkelstein says he was aware of at least one meeting the Applicant had with a supplier to the Applicant's Extreme Wheels Business and that he also travelled to another city in Central China to meet with another supplier related to his personal business[71].

• [48] The Applicant rejected during cross-examination that he had undertaken personal business while travelling in China with Mr Finkelstein. He claimed that apart from meeting three of RPMAH's suppliers he also met up with friends that he had formed through previous business dealings and explained that he took a period of two days leave while he was in China.

• [49] Ms Blacklaws also disputed the Applicant's evidence that he worked exclusively for RPMAH. She refers to the fact that the Applicant retained the B4B ecommerce business which continued to trade after 1 September 2023 selling to and purchasing products from RPMAH. To facilitate this, RPMAH allowed the Applicant to use a section of the Kilpa Road, Moorabbin warehouse for the B4B business and was also supplied by RPMAH with two staff who would work in that business picking, packing and shipping. She provided reports for the B4B business showing stock orders that traversed the whole period of the Consultancy Agreement[72]. Ms Blacklaws further states that she did a search of email addresses used by the Applicant while he was engaged by RPMAH and found the frequency of his use of both RPMAH email addresses involved less traffic than she would expect to see form someone working full-time as claimed by the Applicant[73].

• [50] The Applicant agreed during cross-examination that the BSA allowed him to continue running B4B which he did, contended it largely ran itself although he accepted that RPMAH allowed him to use some of its leased warehouse space and two employees of RPMAH for picking, packing and shipping. Nor did he dispute the value of B4B transactions[74] referred to in Ms Blacklaw's evidence.

• [51] Both Mr Finklestein and Ms Blacklaws gave evidence on the decline in the relationship with the Applicant. This was traced to the loss of Goodyear/Dunlop as a supplier which was seen by Mr Finklestein as a key element of the CCT acquisition. This loss was notified within three weeks of the CCT sale completion and was to take effect in or around April 2024. According to Mr Finklestein, this was a major financial concern that adversely impacted the viability of the CCT purchase, the effect of which was to see the CCT business move from a $1.0m EBIT in the full year for 2023/2024 to a $200,00 loss per month in the latter part of 2024[75]. Mr Finklestein states he was not advised prior to signing the BSA that this may happen and he charged the Applicant with securing a replacement for Goodyear, improving the performance of the CCT business and returning it to a profitable entity[76].

• [52] In late May or early June 2025, Mr Finklestein states he met with Ms Blacklaws and Mr De Sensi to discuss termination of the Consultancy Agreement because of the Applicant's alleged;

• delays in completing tasks;
• inability to provide budget information;
• inability to action a performance improvement strategy;
• provision of inaccurate information about the sale of B4B, specifically the Applicant's incorporation of a requirement for the removal of restraint of trade as a condition of sale;
• behaviour since his return from a business trip to China which caused Mr Finklestein to question his trust and integrity;
• demand to be released from his restraint of trade; and

• • that Mr Finklestein no longer had an effective working relationship with the Applicant.[77]

• [53] Ms Blacklaws emailed the Applicant a letter advising him of the termination of the Consultancy Agreement on 11 July 2025. In doing so, Ms Blacklaws says she incorrectly used the letterhead of the holding company as it was the only letterhead she had available at the time. She agrees she should have used the letterhead of RPMAH[78].

• [54] Mr Finklestein detailed the various payments made to the financial benefit of the Applicant during the period of operation of the Consultancy Agreement and following its termination. They were;

• settlement payments for the acquisition of CCT post completion totalling approximately 2.7 million made up of cash and RPM shares;
• final earn out payments for the acquisition of CCT post 1 September 2024 totalling approximately $1.95 million;
• consultant fees between 1 September 2023 and 11 July 2025 plus 8 weeks in accordance with clause Item 9 of the Consultancy Agreement;

• • lease fees between 1 September 2023 and July 2025 for the Kilpa Road, Moorabbin properties totalling $445,000 (plus annual increases), noting that lease fees continued to be paid after termination of the Consultancy Agreement.[79]

• [55] The Applicant agreed during cross-examination that the earn out period provided an opportunity for him to maximise payments he and other beneficiaries of the Nash Group would receive, which in reality is what occurred with various payments made under the terms of the BSA. While not agreeing with Mr Finklestein's calculation, he accepted that the value of payments made to the Nash Group arising from the BSA was approximately $4 million. He also agreed that he continued to receive consulting fees during the period of operation of the Consultancy Agreement and was an indirect beneficiary of lease payments by RPMAH for the 12-21 Kilpa Road property, the lease cost for which increased to over $500,000 per year from 1 September 2025.

• [56] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute in the event that an application is made under s 365.

• [57] The circumstances in which a person is taken to be "dismissed" are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:

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

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

• [58] In the present case, the Respondents contend that the Applicant was not an employee and therefore could not have been dismissed within the meaning of s 386(1). Determination of whether the Applicant is an employee is to be determined by reference to s 15AA of the Act which relevantly provides as follows;

"15AA Determining the ordinary meanings of employee and employer

(1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.

(2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:

(a) the totality of the relationship between the individual and the person must be considered; and

(b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.

Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

• [59] Section 15AA of the Act was inserted by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) and commenced on 26 August 2024. By reason of Clause 116(1)(a) of Schedule 1 to the Act, s 15AA applies to a relationship entered into before the commencement date and that is in existence as at that date. It is not contested that the Applicant entered into a relationship with RPMAH before 26 August 2024 and that the relationship was in existence at that date.

• [60] Section 15AA(2) requires a consideration of the totality of the relationship which involves in turn 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[80] and Hollis v Vabu Pty Ltd[81] 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[82] and ZG Operations v. Jamsek[83].

• [61] The relevant authorities on the distinction to be drawn between an employee and an independent contractor are well established and were helpfully summarised by a Full Bench of the Commission in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario[84] (French Accent) where it set out the relevant principles to be applied including consideration of various indicia as identified in Stevens v Brodribb Sawmilling Co Pty Ltd.

• [62] More recently another Full Bench in Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats[85] (Gupta) reaffirmed French Accent as the relevant authority but in doing so cautioned against the use of the multi-factorial approach as merely an arithmetic exercise when they stated;

[64] In French Accent, a Full Bench of this Commission usefully summarised the considerations, derived from various court authorities, which may be relevant in the application of the multi-factorial test referred to in Brodribb. However as was stated by Winneke P in the Victorian Court of Appeal decision in The Roy Morgan Research Centre P/L v The Commissioner of State Revenue, the task in applying the test is not to be approached as a mechanical exercise of running through items on a checklist, but is rather "a matter of obtaining the overall picture from the accumulation of detail". This involves "an assessment and evaluation of evidence for the purpose of identification and isolating factors or indicia which are capable of pointing in one direction or the other, and then weighing or balancing those factors in accordance with established principles, none of which is conclusive, in order to reach a conclusion". (footnotes omitted)

• [63] As also stated by the Full Bench in Gupta, conduct of the "multi-factorial evaluative approach" proceeds on the premise that "the individual in question personally performs work pursuant to a contractual relationship with another person or entity"[86]. On that premise, the question to then be answered by use of the multifactorial approach is that of whether the work is performed as a contractor or as an employee.

• [64] I am satisfied on the basis of the material before me that the Applicant personally performed work for RPMAH pursuant to a contractual relationship. It is therefore necessary for me to determine whether he did so as an independent contractor or as an employee. In doing so, I will apply the approach set out in the relevant authorities referred to above.

• [65] In considering the terms of the contract (i.e. Consultancy Agreement), it is necessary to consider the broader commercial context, including the terms of the BSA as may be relevant to establishing the nature of the Applicant's engagement by RPMAH. The first thing to be said is that the BSA and Consultancy Agreement are clearly 'interrelated and interdependent commercial arrangements' as submitted by the Respondents.

• [66] Turning firstly to the BSA, the following operative terms are relevant;

• the Applicant was defined as 'Key Personnel' and under clause 3.1(a) was required to enter into a consultancy agreement as one of the conditions precedent;
• schedule 5 expressly cites the Applicant as a Consultant and not an employee, which under clause 19.1 of the BSA was warranted by the Applicant to be correct;
• the BSA provided for certain financial outcomes for the benefit of the Nash Group, both on completion of the sale on 1 September 2023 and then on completion of the earn out period on 1 September 2024, the latter payments linked to the performance of the CCT business during the earn out period;
• the BSA provided for specific lease arrangements by which RPMAH would lease properties from the Nash Group;
• clause 1.1 of the BSA also permitted the Applicant to continue running certain businesses (including B4B); and
• clause 18 restrained the Applicant and the Nash Group from engaging in business or activities in competition with RPMAH.

• [67] Turning now to the Consultancy Agreement, it is expressed to operate for a period of three years included the following relevant conditions;

• the Applicant was required to provide services 5 days per week on normal business days, based on 48 weeks per year, allowing for 4 weeks holidays per year, with flexibility to work shorter weeks if required but making up hours elsewhere (clause 5);
• the Applicant was required to provide invoices on a monthly basis no later than the 5th day of each month which RPMAH was required to pay within 30 days
• an agreed weekly payment was $4,944 (exclusive of GST) which was for an average of 8 hours per day, 40 hours per week and was to be paid 52 weeks per year;
• RPMAH would reimburse the Applicant for reasonable expenses incurred;
• the Applicant's engagement under the agreement could be terminated with notice at any time after 1 September 2023 with 4 weeks' notice in Year 1, 8 weeks' notice in Year 2, and 12-weeks' notice in Year 3; or by making a payment in lieu of notice equivalent to the fees that would have been received had the notice period been worked out;
• the Applicant's engagement under the agreement could be terminated without notice for material breaches of the agreement, wilful neglect of obligations under the agreement or for serious misconduct in connection with the provision of services;
• the Applicant was able to provide services to any other persons provided that doing so did not create a potential or actual conflict of interest; and
• acknowledgement that the Applicant would provide services under the agreement as an independent contractor and that nothing in the agreement constituted a relationship of employer and employee, principal and agent or partnership between RPMAH and the Applicant and that he was not entitled to any employment related entitlements or similar benefits.

• [68] It is patently clear that the interdependence of the PSA and the Consultancy Agreement presented potential commercial risk and reward for the Applicant. That is evident by the payments the Nash Group was contractually entitled to receive under the BSA, the quantum of certain payments being linked to the financial performance of the CCT business during the earn out period. During that period, the Applicant was largely free to continue running the CCT business as an independent business, with the clear incentive to maximise earn out payments for the Nash Group and with the attendant consequence of maximising returns for RPMAH as the purchaser. These features of the commercial and consulting arrangements establish an important context within which to view the engagement of the Applicant by RPMAH under the Consultancy Agreement. The significance of the commercial arrangements can be seen in the value of the financial transaction between the Nash Group and RPMAH which was valued in the order of $4-5 million.

• [69] The Consultancy Agreement was not a normal contractual arrangement in the sense that the Applicant was not simply engaged to deliver a defined service for an agreed payment. While the regular monthly payments made to the Applicant under the terms of the Consultancy Agreement might arguably support the existence of an employment arrangement; to view it so narrowly ignores the related and more fundamental element of the engagement, that of the terms of the BSA. That was to allow the Applicant to maximise the commercial benefit for the Nash Group from the sale of CCT to RPMAH through the Applicant running CCT during the earn out period. The nature of those commercial arrangements, particularly as they applied to the earn out period, strongly supports a finding that the Applicant was an independent contractor.

• [70] After the earn out period ended on 1 September 2024, the focus of the Applicant's engagement shifted to one of supporting integration of CCT into RPMAH's business, delivering Marlin system expertise and specific project outcomes. While the terms of the BSA continued to operate, including with respect to the Applicant's warranties and indemnities expressly given to RPMAH, it is the case that the commercial drivers present during the earn out period were not as strong after that period ended. The Applicant continued of course, to draw his monthly consultancy fee up until the termination of his engagement.

• [71] It is also significant that at no stage during his engagement under the Consultancy Agreement did the Applicant challenge or dispute the validity of the independent contractor arrangement and he agreed during cross examination that it was not a sham.

• [72] The terms of the BSA and Consultancy Agreement, when viewed as interdependent commercial arrangements, strongly supports a conclusion that the Applicant was an independent contractor. I have reached this conclusion not just because of the express language in the BSA and Consultancy Agreement, but because of the broader commercial context in which the Applicant was clearly seeking and able to maximise the commercial benefit for the Nash Group in the earn out period with limited interference from RPMAH.

• [73] A significant factor to be assessed in determining the true nature of the relationship between the Applicant and RPMAH, is the right of control that resides with RPMAH; not just the practical exercise of that right[87]. The High Court in Stevens v Brodribb emphasised that while the degree of control was significant, it was not however the "sole criteria by which to gauge whether the relationship is one of employment." Before turning to consider other indicia, it is appropriate to firstly consider both the right of control and actual exercise of that control by RPMAH over the Applicant in his performance of work. These are considered below.

• [74] The Consultancy Agreement did not permit the Applicant to delegate or sub-contract the provision of services to RPMAH. To the contrary, the 'Contractor' (the Applicant) was specifically required to provide the services. Moreover, the BSA identified the Applicant as 'Key Personnel' and required him at clause 3.1 of the BSA to enter into the Consultancy Agreement. It is also the case that the Applicant was required to deliver the services by reason of his familiarity with and former role as CEO of CCT. It is also the case that the Applicant had particular expertise in the Marlin software and was required to ensure its integration into RPMAH. These services did not lend themselves to delegation or sub-contracting. The terms of the BSA and Consultancy Agreement, along with the required expertise the Applicant possessed, required him to deliver the services personally to RPMAH and did not permit delegation or sub-contracting. This indicates a high degree of control exercised by the RPMAH over the Applicant which weighs in favour of a finding that an employment relationship existed.

• [75] Clause 5 of the Consultancy Agreement required the Applicant to provide services 5 days per week, based on 48 weeks per year, at times reasonably required by RPMAH. Pursuant to clause 7 of the Consultancy Agreement, the Applicant's agreed weekly rate of $4944 (excluding GST) was also calculated on the basis of the Applicant being available to work 8 hours per day. Timesheets and/or records of hours worked were neither required nor kept, although the Applicant gave evidence that he consistently worked in excess of 8 hours per day and on public holidays. To work such hours as claimed by the Applicant was clearly to his financial benefit in terms of maximising earn out payments through the successful operation of CCT.

• [76] Ms Blackshaw expressed scepticism on the hours claimed to have been worked by the Applicant. There was however an insufficient evidentiary basis advanced by the Respondents to discredit or rebut the Applicant's evidence on his hours worked. I do accept however that the Applicant worked from home throughout the engagement and it may be reasonably inferred this afforded the Applicant a degree of flexibility but that does not persuade me the Applicant was not working the hours claimed in his evidence.

• [77] While the Applicant was contractually required to work 5 days per week and could be required to work up to 8 hours per day, he had flexibility given that he worked from home, was not required to account for time worked and was free to continue managing his other business interests which he did in fact do. This indicates a limited right of control able to be exercised by RPMAH over the Applicant and weighs in favour of a finding that an independent contractor relationship existed.

Whether RPMAH presents the worker to the world at large as an emanation of the business.

• [78] The Respondents contend that RPMAH did not present the Applicant as an employee or as an emanation of RPMAH or that he was integrated into its business. The Respondents rely in part on an organisational chart which identified the Applicant as a consultant, that he was not part of the management team and did not regularly attend financial management meetings. It is also apparent that the Applicant ran the CCT business during the 12-month earn out period, largely independently from RPMAH, in the same manner as when CEO of CCT before the acquisition of that business by RPMAH. This included employees of the acquired CCT business continuing to report to him during the 12-month earn out period.

• [79] Balanced against the above factors is the ASX Release, the use by the Applicant of the title of Operations Manager and the issuing of business cards to the Applicant with that title. The Respondents explained all of these matters as having been premature given moves to establish an employment arrangement were ultimately not carried forward. Finally, the fact that the Applicant may have received and worn some RPMAH branded clothing at times does not establish he was required to wear a uniform. In fact, I am satisfied that there was no uniform requirement.

• [80] On balance I am not satisfied that the Applicant was presented to the world as an emanation of the business or that he was integrated into its business. This indicates an absence of a right of control able to be exercised by RPMAH over the Applicant and weighs against a finding that an employment relationship existed.

Whether the Applicant performs work for others (or has a genuine and practical entitlement to do so).

• [81] Clause 11 of the Consultancy Agreement permitted the Applicant to provide services to other persons during the term of the agreement provided that doing so did not adversely affect the provision of services or give rise to a potential or actual conflict of interest. The Applicant gave evidence, which I accept, that he did not provide consulting services to other parties during the period of his engagement, for the practical reason that the time demands of his engagement with RPMAH were such that he did not have time to engage in other consulting assignments.

• [82] Notwithstanding the above, it is also the case that the Applicant was able under the terms of the BSA to continue operating his other business interests, including B4B, and that is in fact what occurred. The Applicant downplayed the time demands of running his other business interests but the right to do so is important. In fact, RPMAH directly supported the Applicant in the maintenance of the B4B business by providing him with use of warehouse space and two of RPMAH's staff to pick, pack and load goods sold by B4B. It is also the case that B4B both purchased from and sold products to RPMAH as evidenced by the detailed transaction record evidence tendered by RPMAH.

• [83] While I accept that the Applicant devoted much of his time to that of providing services to RPMAH under the Consultancy Agreement; the legal right existed for him to engage in other activities including the provision of services to other persons and companies. While he may not have provided consulting services to other parties of the type provided to RPMAH, he remained directly engaged in conducting his non-consulting businesses including B4B. This latter point weighs in favour of a finding that a contractor relationship existed.

• [84] There are some factors that point to RPMAH having a right to control the Applicant's performance of work, including the inability of the Applicant to delegate or sub-contract the work. Balanced against these factors are a number of matters that tell in favour of RPMAH exercising limited control. These include the commercial arrangements put in place in the BAS and the largely independent manner in which the Applicant was able to operate the CCT business during the earn out period. After that period, he was engaged on project related activities including in respect of the Marlin software integration.

• [85] I am satisfied that on balance the matters considered above in relation to the right and practical capacity of RPMAH to exercise control over the Applicant, this points to the Applicant being an independent contractor and not an employee. Most decisive is the practical capacity of the Applicant to operate largely independently and in his best commercial interests under the BSA, particularly during the earn out period.

Whether the Applicant has a separate place of work and or advertises his or her services to the world at large.

• [86] The Applicant worked from home throughout the period of the engagement. While that may have historically been more indicative of a contractor arrangement, it is far less the case now because of the rise in working from home arrangements. That said, the Applicant asserts he was engaged in a senior role within the business yet only went into the office twice in the last six months of his engagement. While there is no evidence that he advertised the consulting services that were the subject of the Consultancy Agreement, the Applicant also continued to operate his pre-existing businesses, including B4B, presumably from his residential address. All of these circumstances tell in favour of a finding that an independent contractor relationship existed.

Whether the Applicant provides and maintains significant tools or equipment.

• [87] The Applicant did not provide and maintain significant tools or equipment. The only relevant equipment supplied was a motor vehicle, a laptop initially and a mobile phone. While the Respondents claimed not to have been aware that it was bearing the vehicle and phone costs after the end of the earn out period, the reality is it paid for those costs after 1 September 2023 and then beyond the earn out period which ended on 1 September 2024. Given that this equipment remained the property of the Applicant but was maintained by RPMAH during the engagement; I regard this factor as a neutral consideration.

Whether RPMAH has the right to suspend or dismiss the person engaged.

• [88] Clause 9 and 10 of the Consultancy Agreement permitted RPMAH to terminate the Applicant's engagement, both with and without notice. The contractual right to terminate the Applicant's services without notice for reasons of wilful misconduct and for any reason with notice are features that are routinely present in a contract of employment. It is also the case that contracts for services normally contain termination of contract provisions based on contractual breach, misconduct of the service provider and with notice for other reasons (i.e. without cause). The right to terminate the contract in the Consultancy Agreement is in my view not determinative of either an employment or independent contractor relationship. I regard it as a neutral factor.

Whether income tax is deducted from remuneration paid to the Applicant.

• [89] Income tax was not deducted from the monthly consultancy fee paid to the Applicant and the Applicant was responsible for managing any tax liabilities arising from the consultancy arrangement. There are a number of factors associated with the Applicant's taxation arrangements that point towards an independent contracting relationship. They are the absence of PAYG deductions and superannuation contributions by RPMAH, and collection of GST by the Applicant. These matters point towards an independent contractor relationship.

Provision of invoices or payment of periodic wage/salary

• [90] The Applicant was required to submit a monthly invoice in arrears within 5 days of the end of each month, following which RPMAH was required to pay the Applicant within 30 days. The structure of invoicing and payment in arrears tells against a finding that an employment relationship existed.

• [91] The Applicant did not accrue annual leave or other forms of paid leave that would be available to employees. Nor was he required to seek approval of leave before taking it. I accept however, that as a matter of practical reality, the Applicant took periods of leave during the period of his engagement by RPMAH and notified Mr De Sensi of such leave. Furthermore, the Consultancy Agreement clearly anticipated that the Applicant would take periods of leave as evidenced by clause 5 of the Agreement, which stated that the Applicant was required to provide services on a '5 days per week basis...(based on a 48-week year, allowing for 4 weeks holidays....'. Clause 7 of the Consultancy Agreement also stated that the Applicant would be paid for 52 weeks each year. The combination of these two clauses ensured that the Applicant accessed periods of leave during the engagement.

• [92] On its face, access to periods of paid leave in each 12 months would normally tell in favour of a finding that an employment relationship arrangement existed. There was however no annual leave accrual or a need for the Applicant to seek approval of leave. On balance, I am satisfied this weighs in favour of a finding that an independent contractor relationship existed.

Nature of the work (profession, trade or special calling)

• [93] The Applicant was the CEO of CCT before its acquisition by RPMAH, identifies himself within his LinkedIn profile as 'future focussed Senior Executive' and in his evidence states he is an expert in the 'Marlin' software suite. While the Applicant may be a highly skilled professional, such skills are routinely held by senior employees in organisations and are not exclusively found in contractors. I regard this as a neutral factor in my assessment.

Whether the worker creates goodwill or saleable assets in the course of his or her work.

• [94] There is no evidence that the Applicant generated goodwill or saleable assets during the course of providing services to RPMAH under the Consultancy Agreement. Nor is it likely he would have done so given the services delivered were specifically tied to the acquisition of CCT by RPMAH, which required the Applicant's unique knowledge and experience in running CCT. The absence of generation of goodwill or saleable assets tells in favour of a finding that an employment relationship existed.

• [95] RPMAH did not make superannuation contributions to or on behalf of the Applicant who also held separate WorkCover and liability insurance. RPMAH did however extend travel insurance cover to the Applicant but explained that this was its standard approach in respect of both employees and contractors. The balance of these matters tells in favour of a finding that an independent contractor relationship existed.

Whether the worker spends a significant portion of his remuneration on business expenses.

• [96] There was no evidence that the Applicant spent a significant portion of his remuneration on business expenses. In fact, the evidence was to the contrary in that any 'reasonable' business expenses were paid by RPMAH, including vehicle and telephone costs. The Applicant was, however, required to maintain some of his own insurance coverage, but this does not appear to have comprised a significant portion of his remuneration. This weighs in favour of a finding of the existence of an employment relationship

• [97] Having considered the various indicia, it is evident that a number of matters are neutral considerations. Some matters point towards an employment relationship existing such as the inability to delegate or sub-contract the work performed under the Consultancy Agreement, that the Applicant would have been unlikely to generate goodwill or saleable assets through his engagement by RPMAH, and the small percentage of the Applicant's revenue stream that comprised business expenses.

• [98] Balanced against these matters above, there are a significant range of factors that point to the Applicant being an independent contractor. The most compelling of these are;

(1) The explicit terms in both the BSA and Consultancy Agreement that identified the Applicant as a contractor, which the Applicant warranted to be correct and did not otherwise challenge or claim to be a sham during the term of his engagement.

(2) The strong commercial driver for the Applicant to maximise the payments to the Nash Group under the BSA, based on the performance of the CCT business during the earn out period.

(3) The practical control exerted by RPMAH was limited, which allowed the Applicant to work from home on a full-time basis, did not require him to account for hours worked, seek leave approval, and allowed him to continue managing his other business interests including B4B.

(4) The manner in which the Applicant arranged his business and taxation affairs were consistent with that of an independent contractor. Specifically, he furnished monthly invoices in arrears, accounted for GST, was responsible for his own tax, did not receive superannuation contributions from RPMAH, and maintained his own relevant insurance arrangements.

• [99] I do not consider that the relationship between the Applicant and RPMAH, when looked at in its totality, contains the essential features that would ordinarily characterise an employment relationship: that being the relevant contractual terms and the right of RPMAH to exclusively control when and how work was to be performed by the Applicant. The weight of the matters considered, lead me to conclude that the Applicant was not an employee of RPMAH and was in fact carrying on a business of his own.

• [100] It necessarily follows from the foregoing that the Applicant was not an employee of RPMAH, was not dismissed within the meaning of s 386 of the Act and is therefore unable to make a general protections dismissal dispute application The application must be dismissed. An order giving effect to this decision will be separately issued.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.

[3] Exhibit A1, Witness Statement of Mr Stephen Nash, dated 30 September 2025, at [2]-[4]

[4] Exhibit R1, First Witness Statement of Clive Finklestein, dated16 September 2025, at [6]-[8]

[6] Exhibit R1, Annexure CF1, Business Sale Agreement, dated 30 June 2025

[9] Exhibit R1, at [18], Annexure CF2, Consultancy Agreement, dated 1 September 2025

[10] Exhibit R1, Annexure CF1, Clause 3.1(a)

[13] Exhibit R2, Second Witness Statement of Clive Finklestein, dated 14 October 2025, at [20]-[22]

[15] Exhibit R4, Second Witness Statement of Rebecca Blacklaws, dated14 October 2025, at [12]

[16] Exhibit R1, Annexure CF1, clause 8

[19] Exhibit R3, First Witness Statement of Rebecca Blacklaws, dated 16 September 2025, at [12]-[14]

[20] Exhibit R3, Annexure RB2, Tax Invoices received by RPM from Applicant

[32] Exhibit A1, Annexure SN4, Email from Rebecca Blacklaws, dated 8 February 2024

[33] Exhibit A1, at[46]-[51], Annexure SN5, Email exchange between Applicant, Rebecca Blacklaws and Joe De Sensi, dated 6-25 November 2024

[38] Exhibit R4, at [40]-[42], Annexure RB9, Xero leave request/approvals

[40] Exhibit R4, at[26], Annexure RB6, Email from Applicant dated 2 June 2025, titled 'BPOINT'

[42] Exhibit A1, Annexure SN6, October 2024 Telephone Bill

[44] Exhibit A1, Annexure SN8, April 2025 Invoice from Lavazza

[47] Exhibit A1, Annexure SJ9, Email from Joe De Sensi, dated 1 October 2024, titled 'Position'

[48] Exhibit A1, Annexure SN10, Business card for Applicant

[52] Exhibit A1, Annexure SN13, Email from Rebecca Blacklaws, dated 17 April 2025, titled 'Stephen Nash - Position Description - Operations Manager'

[56] Exhibit R4, Annexure RB10, Travel Insurance Policy

[62] Exhibit R1, at [32], Annexure CF3, Financial Reports for Six Eastern Investments Pty Ltd, Annexure CF4, 2023/2024 Profit and Loss with EBIT for Bits 4 Blokes

[64] Exhibit R1, Annexure CF6, ASIC Extracts

[65] Exhibit R3, At [24]-[29], Annexure RB3, Applicant LinkedIn Profile

[70] Exhibit A1, Annexure SN13, Email from Rebecca Blacklaws, dated 17 April 2025, titled 'Stephen Nash - Position Description - Operations Manager'

[72] Exhibit R4, at [13]-[16], Annexure RB5, RPM Autoparts Chapel Corner Combined Customer Transaction List Report

[76] Exhibit R1, at [41]-[44], Exhibit R3, at [42]

[80] (1986) 160 CLR 16

[81] [2001] HCA 44; (2001) 207 CLR 21

[82] [2022] HCA 1

[83] [2022] HCA 2

[84] [2011] FWAFB 8307 at [30].

[85] [2020] FWCFB 1698.

[87] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) CLR 16 at [19].

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