s.365 - Application to deal with contraventions involving dismissal

Al-Ihsan Foundation International Limited, Mr Abu Ahmad Wehbe

Application to deal with contraventions involving dismissal - jurisdictional objection - that Applicant not employed by the Respondent but engaged as an independent contractor - whether Applicant dismissed within the meaning of s.386 of the Act - s.15AA considered - ordinary meaning of employee and employer considered - real substance, practical reality and true nature of the relationship considered - employment relationship found - jurisdictional objection dismissed - application to proceed.

[1] This decision concerns an application by Mrs Wafa Bettayeb (the Applicant) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) in which she alleged she was dismissed by the Al-Ihsan Foundation International Limited & Mr Abu Ahmad Wehbe (the Respondents). Mrs Bettayeb's application asserts she was dismissed in contravention of Part 3-1, General Protections, of the Act.

[2] The Respondents have objected to the application on the basis that the Applicant was not dismissed by the First Respondent because she was not an employee. The Respondents' position is that at all material times, the Applicant was an independent contractor engaged by them.

[3] Section 365 of the Act provides as follows:

365 Application for the FWC to deal with a dismissal dispute

(a) A person has been dismissed; and

(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.

• [4] For the Commission to proceed to deal with a dispute arising from an application under s.365 it must first determine that the Applicant has been dismissed within the meaning of the Act.[1] Section 386 of the Act sets out when a person is taken to have been dismissed for the purposes of s.365. It relevantly provides:

(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.

[5] A contravention of s.365 requires a dismissal to have occurred. The Commission must conclude this to be so as a matter of jurisdictional fact.

[6] It is clear from the terms of s.386(1) above, that a person can only be dismissed when their employment comes to an end in the circumstances described. In the absence of a relationship of employer and employee, a person cannot be dismissed within the meaning of s.386 and an application under s.365 cannot proceed. This decision deals with the issue of whether an employer and employee relationship existed between the Applicant and the First Respondent.

[7] The relevant background to the matter I am required to determined can be briefly summarised. In early April 2025, the Applicant first contacted the First Respondent expressing an interest in available work opportunities. On the 10th of April, the Applicant was invited to an extended interview to discuss a potential role in event management. Following this meeting, on the 22nd of April, the First Respondent sent the Applicant an email seeking clarification of her ABN and personal details. A proposed service contract was subsequently provided to her on April 24th. On the 28th of April, the Applicant sent a series of questions about terms in the proposed contract. Included in the Applicant's queries were questions in relation to the:

• Role and scope of the proposed contract,
• Work location and flexibility of the proposed work,
• The mechanism of the contract to be extended after a 3-month review,
• Equipment required and to be provided,
• Proposed performance reviews,
• Payment terms,
• Clarification required for community speaking engagements,
• The proposed title for the role as "Event Coordinator".

• [8] On the 29th of April, the Applicant replied to the First Respondent as follows:[2]

"Thank you very much for your detailed clarifications regarding the Contractor Agreement.

I have reviewed everything carefully and I am happy to confirm my agreement..."

[9] Later that same day, the Applicant was informed by the First Respondent they were not ready to proceed with her engagement. She understood at this time that the proposed contract was not going to be entered into.

[10] In early June, the Applicant was contacted by the First Respondent and advised things were moving again and that they were ready to procced to enter the proposed contract. Following discussions, the Applicant was provided with an amended services contract on the 20th of June and advised her commencement date was to be Monday, June 23rd. The Applicant signed a copy of the services contract provided on that day and commenced working under its terms. The contract signed by the Applicant was substantially the same contract that was provided to her on the 24th of April 2025.

[11] The First Respondent is an Islamic Faith foundation focused on providing humanitarian aid and sustainable development for communities in need around the globe. At the time of the Applicant's engagement, it had 14 employees and 6 independent contractors - 3 domestically and 3 overseas. As part its 10-year anniversary in 2025, it aimed to open a Melbourne Branch office and planned to promote and celebrate these milestones by holding as series of events and fundraisers. To assist in these pursuits, the First Respondent determined to engage an Event Co-ordinator and resolved to engage the Applicant for this work.

[12] At the time of her engagement, the Applicant understood she was to report directly to Mr Ihssan Wehbe (also known as Mr Abu Ahmad Wehbe). Due to changes in Mr Wehbe's circumstances and being based in Sydney, on the 3rd of July the Applicant was informed her direct report would thereafter be the Melbourne branch manager, Mr Suvay. The Applicant and Mr Suvay worked from the same office at the First Respondent's facilities in Melbourne. The Applicant acknowledged and welcomed this change.

• [13] Not long after the Applicant commenced working, Mr Suvay became concerned with her capacity and experience to perform the work required and aspects of her behaviour. In early July, Mr Suvay raised these concerns with directors of the First Respondent. On the 4th of July, the First Respondent's director and HR Manager Ms Dahbache discussed these concerns with the Applicant. The following day, Ms Dahbache sent an email to the Applicant following up their discussions, advising the Applicant as follows:[3]

"Subject: Confirmation of Discussions and Areas of Focus

Thank for your time yesterday during our phone meeting, this email is to confirm what we had discussed, I want to acknowledge that your dedication and efforts that you have demonstrated have not gone unnoticed and we appreciate the hard work you've contributed so far. There are some key areas where we need you to direct your focus this week to ensure the continuation of your employment opportunity.

When feedback or direction is given, it's not personal - it's about improving outcomes and supporting one's or teams' growth, being open to direction and not taking feedback too sensitively is important to your development of your role and responsibilities," (emphasis added)

[14] The email Ms Dahbache provided the Applicant continued to identify several areas the First Respondent expected her to focus on, including reporting; following direction; communication; technical familiarity; feedback/team collaboration; and professionalism.

[15] On the 7th of July, Mr Suvay provided the Applicant with a copy of an Acknowledgement Agreement that commenced as follows:

"Subject: Confirmation of Discussion and Areas of Focus

There are some key areas where we need you to direct your focus this week to ensure the continuation of your employment opportunity." (emphasis added)

[16] The Applicant signed and returned this agreement the same day. Relevantly, this document also states above the signature that:

"I acknowledge that I will have a focused effort in these areas over the next week and that continued employment will depend on the progress made..." (emphasis added)

[17] By the 15th of July, Mr Suvay remained concerned about the Applicant's performance and suitability for the First Respondent. He raised these concerns with Ms Dahbache. On the afternoon of the following day, he advised the Applicant that the First Respondent had determined to terminate the contractor services agreement with notice at the end of that week.

• [18] The contractor services agreement entered into by the parties is comprehensive.[4] It totals 30 pages, inclusive of one schedule, a non-disclosure agreement at Annexure A; Privacy Policy at Annexure B; and a copy of the Al-Ihsan Foundation Statement of Commitments at Annexure C. Relevantly, Clause 1 provides the terms of the agreement and Clause 2 provides the Role, Deliverables and Responsibilities.

[19] Additional terms set out the responsibilities of the parties, including the responsibility of the Contractor to maintain their own relevant insurances and terms pertaining to conflicts of interest, intellectual property, security and surveillance and confidentiality. Clause 8 sets out several general terms such as: Termination, Notices, Entire Understanding and Legal Advice.

[20] There is no dispute the Applicant and the First Respondent signed and executed this services contract on the 23rd of June 2025, agreeing to be bound by its terms. Nor is there a dispute the Applicant commenced providing the services she had committed to for the First Respondent on the same day. I accept that this is the case.

[21] The services agreement the parties entered into is an important document. It clearly sets out the rights and obligations the parties sought to create for themselves with respect to the relationship they had contracted to create. I regard this document as creating a set of rights and obligations of the parties that are relevant to the assessment of whether an employment relationship existed between them.

[22] No other documents were presented to the Commission that records the rights and obligations agreed to by the parties. The Applicant's evidence is that she understood she was entering an independent contracting relationship. The Respondents' evidence is the same.

• [23] The Applicant also presents evidence that in the period when her engagement was being discussed, the First Respondent referred to her being an 'employee'[5] when making inquiries as her "boss", that she regarding less than reflective of a professional contracting relationship. The First Respondent's evidence is that the use of the term employee was nothing more than a turn of phrase, not descriptive of the relationship the parties were discussing and agreed to create.

[24] Other evidence was presented by both parties about the realities of the working relationship that commenced on the 23rd of June and concluded on July 16th. The Applicant's evidence is that she was treated and managed as an employee. She says that from the day she commenced she was subject to strict instructions to work on site and remain on site during her entire shifts. That she was instructed to comply with a strict dress code and was not allowed more than a 30-minute break for meals each day. That she had no control over her schedule, had to seek approval for every decision, was told not to work independently and had to send a report on her work tasks and progress at the start and end of each day. Also, that it was made clear to her she could only take any leave after the end of Eid celebrations.

[25] The First Respondent relied on the written services contract that the Applicant freely entered into after clear consideration as evidence of the agreement between the parties. Accepting that the express terms of the agreement are not necessarily determinative, they say in the circumstances of this case, the written agreement is significant. Adding that the Applicant sought to perform her work in accordance with the terms of the contract, invoiced the First Respondent for her work and was remunerated for it, with no income tax withheld, as an independent contractor.

[26] The First Respondent's position is that the degree of control it exercised over the Applicant was limited and consistent with an independent contracting relationship where the contractor is informed of the precise tasks they are required to undertake at the direction of, and for the benefit of, the principal. Adding further, that in the Applicant's case the fact the relationship had only commenced meant there may have been a higher level of direction as the First Respondent took steps to ensure the Applicant was adequately introduced into its business. The First Respondent maintains, however, that the Applicant continued to have a significant degree of autonomy on how her work was to be undertaken by her. Adding that she was free to choose where she worked and was not directed to work on site or told what she had to wear. That she could delegate her work, and work for other organisations, so long as the First Respondent granted its consent, which was required to ensure no conflict of interest existed. That in fact the Applicant understand her independent relationship having previously worked as an employee and establishing her on own hobby business (KleanTea).

[27] Other evidence from the First Respondent is that the Applicant supplied and used her own equipment and maintained her own insurance during her engagement. That she was not subject to any type of restraint, free to take leave as she saw fit and bore the risk of having her services contract terminated, as was ultimately the case.

[28] The First Respondent presented supporting material indicating the Applicant's flexibility in terms of her attendance on site, the time she attended, and the conversational nature of the relationships and daily reports. Their evidence also clearly indicates the Applicant understood and agreed to her responsibilities under the terms of her contract. Their material included several emails from the Applicant to this end, including the following sent on the 7th of July:

Thank you for your email and summary, I have acknowledged and accepted my responsibilities and will ensure to follow these guidelines from now on inshaa Allah,

And as discussed, I will be reporting everything to brother Oz from now on and stay focus on my tasks and work..."

[29] The Applicant submitted that the First Respondent had misrepresented the true nature of the relationship as one of principal and independent contractor, contrary to s.357 of the FW Act when in truth the relationship was one of employment. The Applicant says that for the duration of her employment she was subject to considerable control, including direction of what she could wear and where she worked. That she was directed not to act "independently", required to report on tasks daily and seek approval from management prior to making any decision. She says that she was integrated into the First Respondent's business and required to work exclusively for the First Respondent, prohibited from working elsewhere or delegate her work, and that she relied on the First Respondent's premises and resources to perform her work. She submits that she bore no commercial risk from the relationship and that she did not operate a separate business, accepting the previous entity she had established was a hobby that had not operated for some time. Adding that the terms of the contract reinforce the relationship was one of employment by explicitly fixing her work hours and location, prohibiting delegation, seeking exclusivity and providing unilateral rights for the First Respondent to terminate their agreement.

[30] The First Respondent submits that the Applicant freely entered an independent contracting relationship. It states that she sought to provide her skills and expertise in event organising and clerical administration as an independent sole trader contractually providing these services to the First Respondent. That she provided her own tools and equipment, and she was not required to wear a uniform and was free to determine from where and how she performed her work. In terms of control, the First Respondent's position is the Applicant was not subject to significant actual control other than an amount customary for a new contractor being introduced to a business. The First Respondent submits the Applicant bore the risk of having her contract terminated. That she provided her own insurance, was free to work elsewhere, maintained a separate entity and was paid in accordance with the terms of the contract she entered based on invoices she issued in accordance with its terms.

[31] In determining whether the Applicant was an employee of the First Respondent, s.15AA of the Act requires 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.

• [32] Section 15AA took effect on 26 August 2024. In practical terms its effect is to reinstate the position and authority applied in the common law by Australian Courts prior to the High Court of Australia's decision in CFMMEU v Personnel Contracting (Personnel Contracting)[6] and ZG Operations v Jamsek (Jamsek).[7]

[33] Section 15AA requires that regard must be had to the totality of the relationship, including the terms of the contract governing the relationship and other factors relating to the totality of the relationship, including how the contract is performed in practice.

[34] This approach draws the distinction as an employment relationship being when an individual provides their personal service (skill, time, effort etc) under a contract of service to be discharged by the individual personally. Whereas an independent contracting relationship is a contract for services where an individual is conducting their own independent business with a degree of control over how their services are provided.

• [35] To assist drawing this distinction, numerous decisions applying the common law, including of this Commission, has identified a multi-factorial to be applied in ascertaining the true nature of the relationship.[8] Various indicia may be considered. Included amongst these are the degree of discretion and control over how and when works is to be performed; the degree of freedom to perform work for others; the requirement to provide and maintain tools and equipment; the mode of remuneration, including taxation arrangements, the provision of clothing, livery and the extent of integration within the business, the provisions of leave and other entitlements usually associated with relationships of employment along with the opportunity profit and risk of loss. No one factor is determinative, and the totality of the relationship - including its terms and how it is performed in practice must be considered.

[36] I have set out the principles in the authorities to the circumstances of this case.

• [37] The parties clearly committed the terms of their relationship to writing in this case. The terms are contained in the services agreement contract that the Applicant signed and entered on 23 June 2025. While there is some limited evidence of the First Respondent making references to "employees" in conversations prior to the contract being signed, the Applicant's own evidence is that she engaged in detailed analysis and consideration of the contract's terms and agreed to enter the arrangement in April. In cross examination, the Applicant accepted the contract she signed and entered was the same document that she had previously considered and reviewed.[9] There is no further evidence of any additional oral terms agreed to by the parties which are inconsistent with the written services contract that was agreed and entered.

• [38] The Applicant submits that the First Respondent has misrepresented the true nature of the relationship and that the service contract was a 'sham arrangement' designed to avoid employment obligations. In support of this position, the Applicant identifies several clauses in the services contract that are analogous to those discussed by the High Court in Personnel Contracting.[10] Included amongst these are those at clauses 1.3, 1.4 and 8.1 specifying fixed hours, fixed locations, no delegations, exclusivity and unilateral termination rights.

[39] The Applicant argues the disparity between the written terms and actual practice, her repeated concerns about misclassification, her immediate termination without being afforded the protections under the contract and the level of control exerted over her by the First Respondent are further indicators the contract was a sham.

[40] The existence of a 'sham' entitles the Commission to look beyond the written terms. Section 15AA of the FW Act reinforces this as a requirement. What a determination of the existence of an employment relationship requires is an assessment of "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."

[41] I have considered the Applicant's submissions that the contract is a sham. I am not of the view that the evidence in this matter goes so far as to show that the validity of the contract itself could be successfully challenged on this basis. While I accept there is some disparity between the terms of the contract and its practice, the evidence is neither all for the First Respondent, or all against the Applicant. For example, I am not persuaded that the Applicant was at her desk working each day by 9:00am despite this being a clear term of the contract. Nor am I persuaded that the evidence supports the Applicant's assertions that she made repeated concerns about her misclassification. Furthermore, the Applicant's own evidence of her active and informed engagement with the terms proposed that she agreed to enter does not support a conclusion the contract is a sham.

[42] This being the case, I must consider the legal rights and duties created by the written terms of the contract to assist in determining the true character of the relationship between the parties.

• [43] The services agreement makes clear at 1.1 that the Applicant is a contractor and not an employee for any purposes. Further terms at 1.5 are also explicit that the contractor has no entitlement to those benefits usually associated with relationships of employment. Strangely, however, both clause 5.1(b) and (c.), along with 6(a) make reference to the relationship being one of employment. Despite these observations, the plurality in Personnel Contracting said that generally speaking, the opinion of the parties on a matter of law is irrelevant and that it is wrong to use the parties' descriptions of their relationship to resolve uncertainty.[11] Therefore, I regard these terms to have limited weight in the overall analysis of the totality of the relationship.

• [44] I also give limited weight to other terms in the contract that are of a kind which the Full Bench in Deliveroo Australia Pty Ltd v Franco described as "merely consequential upon the labelling adopted in the agreement". There, as recently identified,[12] the Bench cited with approval the decision of the Full Court of the Federal Court in ACE Insurance Pty Ltd v Trifunovski where it said:[13]

"It is also difficult, in my view, to give much independent weight to arrangements about taxation, or even matters of insurance cover or superannuation. These are reflections of a view of one party (or both) that the relationship is, or is not, one of employment. For that reason, in my view, those matters are in the same category as declarations by the parties in their contract (from which the often proceed). They may be taken into account but are not conclusive."

[45] Several clauses in the services contract fall within this category, including clauses 1.5, 3, and 4 amongst others. I attribute limited weight to these terms consistent with these authorities.

Was the Applicant conducting an independent business or serving in the business of the First Respondent?

• [46] Though not determinative, the question of whether someone is conducting their own independent business as opposed to serving in the business of another can be a useful framework to guide the characterisation of their relationship.[14] The Respondent in this case is a registered charity. It is engaged in humanitarian aid and community support work. It was intent on expanding its operations with the opening of a new Melbourne Branch as part of its 10-year anniversary. It envisaged organising community fundraising events and celebrations as part of this process, and it determined it would benefit from an experienced event organiser with administrative skills to assist in these endeavours. There is no contest that the First Respondent determined to engage the Applicant to provide these services.

[47] I have found that the terms of this engagement were committed to writing in the services contract entered by the parties. Various terms of the services contract create obligations that are consistent with the notion that the Applicant was operating an independent business. These include the recitals that make clear the First Respondent's desire to exclusively engage and contract for the services of an independent contractor to perform the work of an Event Coordinator and Administrative Clerk for an agreed time. Clause 1.5 makes clear the contract intends to provide no entitlement to leave, tax payments, other requirements or superannuation. Clause 2.1 sets out indicative roles to be performed by the contractor. Clauses 2.2 and 2.3 set out a process whereby the company assigns and specifies tasks to be performed and a mechanism for review. Clause 3 specifies the contractor is to maintain their own relevant insurance, if required. In large part, each of these terms follow on from the label given to the arrangement by the parties as being a contract for services. I have taken these terms into account, but they are not conclusive.

[48] Clause 2.6 provides the contractor is responsible for providing and maintaining all necessary equipment or resources required to complete the work for the Company. This term points to the relationship being one of principal and independent contractor. That the Applicant provided her own phone and computer is not in dispute. She identifies being provided use of the First Respondent's systems, email and office space as indicative of a level integration reflective of a relationship of employment. I have considered these terms in their totality and practice. I am not persuaded they are determinative of the character of the arrangement.

[49] Other key provisions in the services agreement and the relationship in practice, however, point tellingly to the Applicant serving in and being integrated into the business of the First Respondent. Indicative duties of the Applicant's role were specified without limitation at Clause 2.1. Amongst other things, the duties required included unspecified day to day office administration; ensuring the office is kept tidy, organised and functional; scheduling meetings; promoting events; and ensuring alignment with the values and branding of the First Respondent. These are duties often, though not always, performed within contracts of service. In cases where they are provided within contracts for service, the company procuring the service is often a provider of labour services.

[50] This is not the case here. The Applicant was engaged to provide services to support the First Respondent's work and explicitly required to perform this work from their place of business within their standard hours of work.[15] I consider these factors and the totality of the relationship to point to the Applicant being integrated into the business of the Frist Respondent. I am reinforced in this view by the fact roles within the contract are without limitation and consider that in providing this term the Respondent reserved for itself the right to specify further duties as it required. That the contract sought to bind the Applicant to provide her services to the First Respondent exclusively further reinforces this conclusion. As do the terms at 1.3(c.), 1.4(b) and (d) relating to hours of work, delegation, additional work or volunteering. In each of these terms, the First Respondent has reserved the right for itself to approve whether the Applicant can work outside the standard hours; delegate work; work, or volunteer for another entity. Furthermore, these rights are not limited by a requirement consent not be unreasonably withheld.

• [51] How the contract was performed in practice further supports this conclusion. In this regard, I prefer the Applicant's version of events to that of the First Respondent. In practice, she was expected to perform worked from the First Respondent's premises, within the First Respondent's standard hours of work, using the First Respondent's resources and reporting twice daily to her "Branch Manager". The email that welcomed the Applicant to the First Respondent sent by Siara Tahir further supports this conclusion, as follows:[16]

I hope this message finds you well. I would like to schedule your induction meeting as part of our onboarding process at Al-Ihsan. Our aim is to ensure that every new team member feels welcomed, receives all necessary information, and has the opportunity to share initial feedback within the first two weeks of joining."

• [52] As to remuneration, these terms are set out at clause 2.4. They provide an agreed hourly rate, that this sum is inclusive of all associated costs, that no additional payments would be made unless expressly approved and that no overtime, leave, public holidays or time off would be paid for by the Company. The total weekly hours of work were capped at 37.5 hours.[17] Clause 1.5(d) also required that if the contractor was unable to work these hours, she was required to notify the principal and make up the time not worked "in order to meet the work hours or tasks due".

[53] For payment, the contract required the contractor to provide a valid tax invoice for the hours worked each week. There is no contest this is what occurred. While this and other terms are consistent with the relationship being a traditional contract of service, other terms such as the requirement to make up time are not. These terms are more indicative of a relationship for service. They required the contractor to work a set number of hours each week and retained any discretion over whether the Applicant was free to work less than this amount, or remunerated for working more, with the First Respondent. The Applicant's evidence, which I accept, is that she was required to work the full 37.5 hours each week. While not determinative, I consider these factors weigh in favour of a finding the contract was one of service.

• [54] While not all contractors are entrepreneurs,[18] the utility of the "own business/employers' business" dichotomy is a helpful indicator in considering the totality of the relationship between the parties. Applying this dichotomy to the entirety of the contractual arrangements between the parties in the present case, I am of the view that there was little, if any, scope for entrepreneurship on behalf of the Applicant.

[55] These matters, in combination with the control the First Respondent reserved for itself in relation to the Applicant's work that are discussed below, lead me to the view that in considering the totality of the relationship between the parties, including the terms of their agreement and how it was performed, the Applicant did not operate an independent business for her own purposes but was integrated into the business of the First Respondent in a way an employee would be.

[56] The terms of the services contract are exclusive for the term of the agreement. The terms require the Applicant to work for a specified work location. The hours of work required are specified. There is no provision in the terms for any variation to the location of work. Any variation to the exclusive nature of the contract or payment for additional hours of work are at the absolute discretion of the Company, subject to prior written consent and approval. The Applicant does not have a contractual right or freedom to determine where she works from, the number of hours that she works, or whether she offers to perform her services, or volunteer, for another Company.

• [57] As discussed above, the event coordination and administration roles specified in the contract are general in nature and without limitation. Furthermore, through clause 2.2 the Company retains for itself the contractual right to specify and assign the task, deliverables, times and any other relevant specifications for each task assigned to the contractor. It has the right to monitor these tasks, and the Applicant is required to communicate and cooperate with the Company on task progress daily. It is not in dispute that this was an expectation of the First Respondent in practice. Mr Suvay's evidence further illustrates that this level of supervision was not applied to other contractors.[19]

• [58] I consider that these terms, and their practice, make clear the Applicant had little right to determine how she performed her work. Despite Mr Suvay's reference to deliverables that are not supported by any documentation there is no clear evidence the obligation of the Applicant was to carry out agreed tasks or achieve specific results. Rather, the overarching obligation for the Applicant appears to have been to perform the work and duties as directed by the direct reports specified, namely Mr Ahmad and Mr Suvay.[20]

• [59] While not determinative, the repeated references to what was expected for the employment opportunity to continue (cited above at [15]-[17]) by the First Respondent's Human Resources representative supports this conclusion. As does the explanation of what was meant in these communications by the reference to employment Mr Suvay provided in cross examination:[21]

"So there are things that - the deliverables need to be pretty much in line for us to procced with this employment or agreement."

[60] Clause 2.3 provides for an initial review period of 30 days. In addition, however, it also provides a right for the Company to conduct regular performance reviews at its discretion for the term of the agreement. Clause 3.5(d)(iv) requires the contractor to "comply with the Company's policies and procedures as amended from time to time...", and Clause 3.5(d)(v) requires the contractor to provide "any and all documents or information as requested by the Company".

[61] Further terms in Clause 5, at clause 5.1(e.) required and directed that the contractor "read and agree with attached Non-Disclosure Agreement...".

[62] The contract does not provide a right for the Applicant to refuse direction or to perform a specified task. The only apparent mechanism for the Applicant to exercise this right under the contract is the dispute clause and 1.6 which provides a mechanism through informal good faith discussions, followed by written notice and ultimately mediation through an agreed independent mediator. To the extent the Applicant had other rights, many were constrained.

[63] As mentioned above for example, the Applicant had to inform and be provided written consent for any paid work beyond the cap of 37.5 hours each week and was required to make up time if she was unable to meet this minimum requirement. Consequently, this weighs further in support of a conclusion that the real substance, practical reality and true nature of the relationship between the parties in this case was one of employer and employee.

[64] The First Respondent in this case was actively engaged in the business of providing humanitarian aid and community support. It determined it would benefit from the assistance of an Event Coordinator and Administrative clerk in this undertaking. On the 23rd of June, they contractually engaged the Applicant to perform this work. In doing so, my consideration of the terms of the contract agreed between the parties has found that the First Respondent contractually reserved for themselves significant rights over how the Applicant was to perform her work, when, where and under what conditions it was to be performed. I have discussed these contractual terms above. I have also considered and discussed the evidence presented by the parties of how these terms were applied in practice.

[65] In my view, when considered as a whole, these terms and the totality of the relationship between the parties, supports a conclusion that the real and practical nature of the character of the arrangement between the parties was a relationship of employee and employer.

[66] In reaching the above conclusion, I have also considered the various other submissions of the parties with respect to the requirements to meet certain dress standards, risk, the period of employment and post contractual conduct. I do not consider these submissions to be determinative or of significant weight that make any addition to the discussion above.

[67] In terms of the how the relationship ended, I note, however, that the Applicant was not provided the written notice that the contract she had entered entitled her to.

[68] Having considered the various rights and obligations the parties created for themselves by their contractual arrangements, including how these were performed in practice, and having regard to the totality of the relationship between the parties for the reasons discussed above, I have formed the view that, on balance, the relationship between the Applicant and the First Respondent in this case was one of employee and employer.

[69] Accordingly, the Respondents' jurisdictional objection is dismissed.

[70] Being satisfied that the Applicant was an employee of the First Respondent who has been dismissed within the meaning of the Act, it follows that her general protections application be allowed to proceed.

[71] The matter will now be programmed for a Conciliation Conference by my Chambers pursuant to s.368 of the Act.

Mr H Pararajasingham on behalf of the First and Second Respondent.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

[2] Applicants Documents, Court Book ('CB') p.22.

[3] Annexure F, Witness Statement of Ihssan Wehbe, CB p.142.

[4] Contractor Agreement Service Provider, Court Book (CB) p.81.

[5] Applicant's Documents, CB p.44 and Witness Statement of Wafa Bettayeb, CB p.15.

[6] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1.

[7] ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

[8] For example, Hollis v Vabu Pty Ltd [2001] HCA 44; Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 among others.

[9] Transcript of Proceedings on 3 December 2025 at PN216.

[10] See [2022] HCA 1, Gordon J at [177] and Kiefel CJ, Keane and Edelman JJ at [54].

[12] See Tidmarsh v Aspire 2 Life Pty Ltd [2024] FWC 289.

[13] [2013] FCAFC 3 at [37].

[14] Personnel Contracting at [35].

[15] Clause 1.3, Contractor Agreement Service Provider, CB p.83.

[16] Annexure E, Witness Statement of Ihssan Wehbe, CB p.140.

[17] Clause 1.5(d), Contractor Agreement Service Provider, CB p.84.

[18] Personnel Contracting at [39].

[20] Schedule 1, Contractor Agreement Service Provider, CB p.95.

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