Fair Work Act 2009

s.365 - General protections

Perpetual Health And Fitness Industries Pty Ltd

Application to deal with contraventions involving dismissal - jurisdictional objections - Whether employee and whether dismissed - objections upheld.

• [1] This decision concerns a general protections involving dismissal application made by Ms Tayla Xerri (the Applicant) under s.365 of the Fair Work Act (the Act) in relation to her engagement with Perpetual Health and Fitness Industries Pty Ltd (the Respondent). The Respondent operates Anytime Fitness Broadmeadows Gym (the Gym) which services its own members. Personal Trainers are free agents and may enter into a Service Agreement to use the Gym facility for a weekly fee to deliver services to their own paying clients.

• [2] The Respondent objects to the application submitting that Ms Xerri was not an employee and not dismissed within the meaning of s.386 of the Act. It submits that the Applicant was not hired as an employee, rather she engaged with the Respondent through her own business to deliver services as a Personal Trainer in the Gym having signed a Service Agreement (the Agreement).[1] The written Agreement between the Respondent and the Applicant's business was terminated on 6 April 2025.[2] The Applicant concedes that she signed the Agreement and delivered services as a Personal Trainer but maintains that the true nature of the relationship with the Respondent was of an employee.

• [3] A hearing on 25 July 2025 was scheduled for the jurisdictional objections. Both parties were self-represented.

• [4] It is not contested that the Applicant entered the Agreement commencing on 19 April 2019 to deliver personal training (PT) services to members of the Respondent's Gym or her own clients that are not members. Ms Xerri's clients that were not members of the Gym were required to pay a casual access fee to the Gym, for use of the facilities. The Agreement provides for the payment of a facility fee (a weekly rental fee) by the Applicant for use of the Gym facility, including conditions that waiver the fee. The parties confirmed that the weekly payment of the facility fee was waivered by the Respondent in return for free consultations by the Applicant to interested Gym members.

• [5] The Agreement contains conditions such as completing free consults with prospective or current members of the Respondent's Gym. While not all consults convert into regular clients for the Applicant, it is not disputed that this process generates interest and growth to the Applicant's client base. The Respondent does not pay the Applicant for this work, rather it is at cost to the Applicant unless the Gym members convert to clients of the Applicant. All of the Applicant's clients pay the Applicant direct for her PT services at a rate dictated by the Applicant.

• [6] The Agreement further provides obligations on the Applicant to be suitably qualified before utilising the Gym facility in first aid and to hold appropriate insurances (public liability and professional indemnity) to deliver her PT services in the Gym. In addition, the Agreement makes clear that a client agreement entered into between the Applicant and her own client is at the Applicant's discretion. That the Respondent's Gym neither endorses or sponsors the Applicant and further states that the Trainer is not affiliated with the Gym. The Applicant sets her own prices, terms and conditions without any involvement by the Respondent. The Applicant does not provide any financial benefit to the Respondent nor from the Respondent to the Applicant.

• [7] The Applicant wore a Gym branded t-shirt when in the Gym and while she could use social media to promote her services, she had to ensure the social media posts did not adversely bring the Gym into disrepute.

• [8] While the Gym was closed briefly in March 2025 for renovations, the Respondent secured rent free premises at a Gym within the Anytime Fitness network nearby, where personal trainers with an Agreement with the Gym could continue to service their clientele.

• [9] The Respondent contends that the Applicant was a self-employed Personal Trainer although she had a brief period of casual employment in 2019.[3] The Applicant confirmed the brief period of casual employment and referred to the limited number of payslips while employed as a casual. Other than this brief period of employment there was no evidence of employment nor any evidence of payment from the Respondent to the Applicant.

• [10] The Respondent submits that the Service Agreement with the Applicant was terminated because she breached the service standards which included permitting non-members to access the Gym facilities without the payment of the casual access fee, and her behaviour did not align with the professional standards and values of the Gym. It is alleged that she verbally harassed Gym team members and spread rumours.

• [11] The Applicant contends that she attempted on multiple occasions to raise concerns about sexual harassment by male gym members. In response to the alleged sexual harassment and other alleged inappropriate conduct, she says that she obtained intervention orders against specified men.[4] Because of her concerns, the Applicant says that she refused to deliver personal training services to men.

• [12] While delivering services at the other gym, during the brief period the Respondent's Gym was closed, the Applicant posted on social media allegations of sexual harassment.[5] The Respondent says the other gym owner complained about the post as it affected its reputation. It is contended that the other gym owner advised that CCTV footage did not support the allegations of sexual harassment and the alleged perpetrator was a regular patron with a physical impairment requiring assistance. The gym owner informed the Respondent that the Applicant failed to raise her concerns through its internal process, instead she used social media to publish unverified allegations, and this conduct was prejudicial to both the individual concerned and the gym. Further, the gym informed the Respondent that a staff member complained of intimidation and bullying by the Applicant. It was following these complaints from the other gym that the Respondent terminated the Agreement.

• [13] The Applicant contends that despite entering into the Agreement and no record of payment received from the Respondent other than the brief casual periods in 2019, the relationship in her view was better identified as an employment relationship. In support of this, the Applicant says that she only "worked" for the Respondent, in lieu of the waiver to pay rent she was expected to conduct free consultations for gym members, and she often performed other duties such as cleaning. A number of communications and documents the Applicant relied upon are undated and have limited context; they are requests for assistance or relate to the short period of casual employment.[6]

• [14] The Applicant says she was integrated into the business and given access to the Gym's social media page and the Gym's Canva account to create promotional material using the corporate templates if she wanted to. Her own business income was connected to the Gym as she relied on leads, use of the Gym facility and therefore was not required to find alternative locations to train her clients. Other than having her own insurance, she had minimal business expenses and held no real commercial risk.[7]

• [15] Subdivision A of Part 3.1 of the Act - general protections deals with contraventions involving dismissal. Section 365 concerns an application for the Commission to deal with a dismissal dispute. Relevantly the provision provides:

"365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute."

• [16] Section 365 requires that the person that alleges the dismissal is a contravention of the Act must be "dismissed". The Act further defines dismissed. The relevant provision is s.386:

(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 their employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."

• [17] Section 365 requires that should a general protections dismissal application be made, it must be by a person that is dismissed from their employment as defined by s.386 of the Act. Specifically relevant to this matter is s.386(a) which provides that a person is dismissed if their employment with their employer has been terminated on the employer's initiative. Therefore, before exercising its powers under s.368[8] of the Act, the Commission must first be satisfied that the person was dismissed in fact.[9] To be dismissed by the Respondent, the Applicant must be an employee capable of being dismissed and not an independent contractor or self-employed business partner subject to a business agreement with the Respondent.

• [18] Section 15 and 15AA of the Act define employee and employer. Relevantly, these provisions provide as follows:

"15 Ordinary meanings of employee and employer

A reference in this Act to an employee with its ordinary meaning:

(a) includes a reference to a person who is usually such an employee; and

(b) does not include a person on a vocational placement.

A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer."

"15AA Determining the ordinary meanings of employee and employer

(1) [Determining ordinary meanings of employee and employer]

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) [Real substance, practical reality and true nature of relationship]

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."

• [19] These provisions require the Commission to consider the totality or real substance and practical reality of the relationship and not just the terms of the contract between the parties. Section 15AA requires the application of the multifactorial test.[10] This multifactorial approach requires evaluative judgement of various indicia, rather than ticking off a number of factors on a list.

• [20] The indicia in the authorities include consideration of control in the relationship, whether the person works for others, whether the person supplies their own tools, whether they can delegate work and whether they are remunerated amongst other considerations. The indicia are now applied to the facts in this matter.

• [21] In respect to control, the Applicant exercises and has a right to control her own work and how she performs it. She can accept or decline new clients, and she manages the full relationship with the client including the program, its length, when, where and how often. Further the payment for services or Applicant's income derives directly from the client to the Applicant. The Gym does not exercise control over the Applicant's work in the context of her services to her client, nor influence the fee for her services. While the Applicant submits that she only worked at the Gym, there was no restriction to her performing her services elsewhere.

• [22] The Applicant entered into a services Agreement with the Respondent to use the equipment and facilities. Ordinarily there is a rental charge, described as a facility fee. In the Applicant's case this fee was waivered and in return she agreed to conduct free consults to new Gym members. This arrangement further benefitted the Applicant because the new Gym members could convert to her own paying clients. These consults were a lead generation opportunity to grow her own business. The convenience of the Services Agreement, particularly as the facility fee was waivered benefitted the Applicant as she was not required to rely on her own equipment and source a location to deliver PT services. The use of the Respondent's equipment does not support the contention that the Applicant was an employee having considered the real and total relationship.

• [23] The ability to delegate is not a useful indicium in the context of this relationship. The Respondent does not delegate but provides leads which the Applicant may choose to accept or reject, In the case of her work, the Services Agreement is between the Applicant as sole trader and the Respondent. While conceivably the Applicant may have scope to delegate her services, it is not ideal because the client and the Applicant enter a commercial relationship presumably on the basis of the service offering specifically from the Applicant.

• [24] The relationship between the Applicant and Respondent was not an employment relationship, no remuneration for services was paid to the Applicant and she was not expected to comply with obligations ordinarily required of an employee. She was not required to seek permission to take leave, her tax and insurance was not paid by the Respondent and the success of her business depended on her own goodwill with her clients. The financial risk sat with the Applicant. The Applicant was in control of her income stream and this was aided through the leads from the Gym. Importantly her income depended on how many paying client relationships she wanted to manage.

• [25] In addition to consideration of the relevant indicia, the parties entered the Service Agreement before commencement of the relationship, which is not challenged and describes unambiguously the commercial relationship. This contract provides no indication that the relationship is of an employer and employee. On review of the terms, I am satisfied that the relationship is clearly one of a self-employed personal trainer engaging with the Respondent to secure access to the facilities on certain conditions including the securement of insurance and first aid training qualifications.

• [26] Having assessed the materials submitted by the parties, the Applicant was not an employee but rather a self-employed personal trainer to provide direct services to clients that may or may not be members of the Respondent's Gym. There is no evidence to conclude a direct employment relationship between the parties in this matter.

• [27] This dispute does not concern an employee that was dismissed and eligible to make an application under s.365 for contravention of general protections involving dismissal. On this basis the jurisdictional objection is upheld and the application is to be dismissed for the reason that the application was not made in accordance with the Act.

• [28] On the matter of the jurisdictional objection this application must be dismissed. I do not find that the Applicant was capable of being "dismissed" as there was no employee and employer relationship with the Respondent. As there was no direct employment relationship, the application made under s.365 of the Act cannot succeed as it was not made in accordance with the Act.

• [29] Accordingly, the general protections application made by Ms Tayla Xerri is dismissed.

[1] Personal Trainer Agreement commencing 19 April 2019, page 31-42 Digital Hearing Book ('DHB').

[2] Email confirming termination of the subcontractor agreement on 6 April 2025, page 101 DHB.

[3] Rosters and payslips for brief periods in July and August 2019 resulting in payment over two pay periods.

[4] The Applicant tendered into evidence an interim intervention order against one male obtained in 2024, page 27-30 DHB.

[6] Examples include an email in 2019 where the Applicant was asked to spend 45 minutes to 1 hour to help cover an absence of the cleaner, an invitation to a meeting in 2020, emails introducing the personal trainers to Gym members and occasional requests to complete a free consultation to a prospective client of personal services.

[8] Dealing with a dismissal dispute other than by arbitration.

[9] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591, 54.

[10] See Stephen's v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21, and more recently traversed in Jiang Shen Cai trading as French Accent v Do Rozario [2011] FWAFB 8307.

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