Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2015] FWC 38 of Commissioner Spencer at Brisbane on 4 March 2015 in matter number U2014/5107.

[1] This is an appeal by Ms Louise Kimber (the Appellant) against a decision 1 (Decision) of Commissioner Spencer upholding a jurisdictional objection brought by Western Auger Drilling Pty Ltd (Respondent) against the Appellant’s application for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (Cth) (the Act).

[2] Prior to the hearing of the appeal, Ms Anderson of Counsel sought permission to appear for the Appellant and Mr Reed of Counsel sought permission to appear for the Respondent. Given the complexity of the matter, and having regard to s.596 of the Act, permission was granted to both parties to be represented.

Background

[3] The matter at first instance concerns a jurisdictional decision only in relation to a determination of the length of the employment relationship between the parties and the date of dismissal.

[4] The Respondent raised jurisdictional objections in relation to the Appellant’s unfair dismissal application on the basis of s. 382(a) of the Act, contending that the Appellant had not served the minimum employment period under s. 383 of the Act. The Respondent submitted that the Appellant was an independent contractor for the Respondent from 13 March 2013 and then commenced employment with the Respondent on 2 January 2014. The Respondent submitted that in these circumstances the Appellant did not meet the minimum employment period of six months required by the Act. The Appellant conceded that she worked as an independent contractor for the Respondent between 13 March 2013 and 11 July 2013, but contended that from 11 July 2013, her role changed to that of an employee of the Respondent.

Relevant Provisions of the Act

[5] The relevant statutory provisions are set out, as to whether the Appellant is an employee who has completed a period of employment of at least the minimum employment period and whether there was a dismissal at the initiative of the employer.

[6] Section 382 of the Act provides as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[7] The minimum employment period is defined in the Act as follows:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[8] Section 386 of the Act provides as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

Decision at First Instance

[9] The key issue in the Decision was whether the Appellant was an employee or an independent contractor during the relevant period (11 July 2013 to 2 January 2014).

[10] In the Decision, the Commissioner reviewed some relevant authorities on the approach to be taken to distinguish between employees and independent contractors. In particular, she adopted the approach taken in ACE Insurance Limited v Trifunovski and others 2 and Abdalla v Viewdaze Pty Ltd3 as endorsed and set out by the Full Bench of the Commission in Jiang Shen Cai T/A French Accent v Michael Anthony Do Rozario (French Accent)4 namely to make an assessment of a variety of factors or indicia. For completeness we will set out the general approach to distinguishing between employees and independent contractors as found in French Accent and [21] of the Decision:

“(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf 5: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own6 of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.7

(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.

(3) The terms and terminology of the contract are always important. 8 However, the parties cannot alter the true nature of their relationship by putting a different label on it.9 In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole10: the parties cannot deem the relationship between themselves to be something it is not11. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract12.

(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd 13 and the other authorities as are relevant in the particular context. For ease of reference the following is a list of indicia identified in the authorities:

• Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like. 14



Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of an independent contract 15. While control of this sort is a significant factor it is not by itself determinative16. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise17. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee18.

“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.” 19 “[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.”20

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



The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, working for others (or the genuine and practical entitlement to do so) suggests an independent contract.

• Whether the worker has a separate place of work 21 and or advertises his or her services to the world at large.



• Whether the worker provides and maintains significant tools or equipment. 22



Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary 23.

• Whether the work can be delegated or subcontracted. 24



If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor 25. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.

• Whether the putative employer has the right to suspend or dismiss the person engaged. 26



• Whether the putative employer presents the worker to the world at large as an emanation of the business. 27



Typically, this will arise because the worker is required to wear the livery of the putative employer.

• Whether income tax is deducted from remuneration paid to the worker. 28



• Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks. 29



Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.

• Whether the worker is provided with paid holidays or sick leave. 30



• Whether the work involves a profession, trade or distinct calling on the part of the person engaged. 31



Such persons tend to be engaged as independent contractors rather than as employees.

• Whether the worker creates goodwill or saleable assets in the course of his or her work. 32



• Whether the worker spends a significant portion of his remuneration on business expenses. 33



It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.

(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other 34.

(6) If the result is still uncertain then the determination should be guided by “matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” including the “notions” referred to in paragraphs [41] and [42] of Hollis v Vabu.

[11] The Commissioner considered the evidence before her and applied the above indicia to determine the nature of the overall working relationship at [24]-[63] of the Decision. Based on her review of the relevant indicia, the Commissioner made the following relevant findings:

“[64] On the material provided, taking into account a review of the indicia, it is concluded that the Applicant’s arrangement with the Respondent transitioned from an independent contractor to an employment relationship on 2 January 2014. It was agreed the Applicant commenced as an independent contractor and the parties had operated via a contractor arrangement via the provision of an ABN since March 2013 and the Applicant was remunerated in response to her invoices until late December 2013.

[65] The terms of an employment relationship were then negotiated between the parties in late December 2013, and the Applicant became an employee of the Respondent on 2 January 2014. The finish of the invoicing and the payments reflect this change.

[66] The nature of the working relationship prior to that point has been considered according to the indicia in the relevant case authorities. This is not a case where the Respondent has deliberately avoided their obligations to an employee. Whilst, on the evidence, the parties had been contemplating the Applicant’s transition from contractor to employee, the varying invoices occurred up to December 2013. Although the Applicant’s invoices changed from an hourly rate to a daily rate in July 2013, the Applicant neither received any annual leave or payment for public holidays. The actual commencement of an agreed employment relationship with a negotiated salary began on 2 January 2014 with the changed remuneration arrangements and the end of invoicing.

[67] On the evidence, the Applicant was conducting her own business until such a time as the terms of an employment relationship were negotiated and commenced. A contractor or health and safety consultant may well start providing services as a contractor and transition to employment with a company, if the company decides to offer a role as an employee. This does not mean that the period performed as a contractor must be deemed to be employment by the company prior to engagement as such, even though the role and the work performed has not significantly changed. Given the nature of the initial and on-going work, the Applicant continued to maintain autonomy over her work.

[68] That the Applicant worked as a contractor commencing in March 2013 is not disputed. A contractor relationship was in place until the Applicant commenced as an employee on 2 January 2014. On this basis, (given the period of employment), it cannot be construed that when the Applicant’s employment ended, the Applicant was protected from unfair dismissal. The application is jurisdictionally barred pursuant to s.382(a), on the basis that the Applicant has not met the minimum period of employment, as the Applicant, between 2 January 2014 and either of the alleged end of employment dates (14 February 2014 or 11 March 2014), had not been employed for six months.”

[12] In relation to the question of dismissal, the Commissioner found:

“[84] Whilst the conflicting circumstances surrounding the end of the employment relationship have been set out, on the evidence, the Applicant was initially an independent contractor and then an employee from 2 January 2014, but the period of the employment relationship, on either final date, was less than the statutory requirement of six months to afford protection from unfair dismissal. Therefore, a determination is not required as to whether a dismissal occurred, given the application is already jurisdictionally barred in accordance with s.382(a).”

[13] The Commissioner went on to conclude:

“[85] It is determined that the Applicant commenced as an employee on 2 January 2014. Prior to this she was an independent contractor. Accordingly, the Applicant is not a person protected from unfair dismissal under s.382(a) of the Act, as she has not met the minimum period of employment of six months. The application for unfair dismissal remedy, made pursuant to s.394, is jurisdictionally barred and is therefore dismissed.”

The Appeal

[14] The Appellant raised, under 8 different headings, a series of multi-faceted grounds of appeal in the Notice of Appeal. These were amplified in the Appellant’s written submissions and in oral submissions at the hearing. They relate to the Commissioner’s treatment of the various indicia and have been set out under the relevant indicia headings below:

(1) Personal Services

[15] The Appellant submitted that the Commissioner erred at paragraph [31]-[33] of the Decision in the application of the law relating to the definition of an employee in failing to find that the Appellant was an employee at least from 11 July 2013 by:

a) failing to consider, or properly consider, any criteria other than the method of remuneration;

b) placing undue consideration on the fact that the Appellant issued a small number of invoices for 4 days rather than 5;

c) failing to place sufficient weight on the fact that the bulk of the invoices were issued for a 5-day week and a consistent day rate;

d) failing to consider the Appellant’s submissions where they point to the other indicia supporting her claim to have been an employee at least from 11 July 2013;

e) failing to consider and apply the principles set out in French Accent in particular where the court said: “Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result” in circumstances where the other indicia, in the main, favour a finding that the Appellant was an employee from at least 11 July 2013;

f) failing to consider that the Court in French Accent said that the method of remuneration is the least important factor in considering whether someone meets the test of “employee”; and

g) failing at paragraph [33] of the Decision to properly consider the evidence of the Appellant that she had no ability to subcontract her work to third parties.”

(2) Control Test

[16] The Appellant submitted that in relation to paragraphs [34]-[41] of the Decision, the Commissioner erred in failing to properly consider the evidence about the level of supervision provided to the Appellant contained in the letter of Mr Riwoe dated 5 March 2014 (exhibit KCB1 to the affidavit of Kara Burgess sworn 12 November 2014) when concluding at paragraph [41] of the Decision that “There was continuing autonomy by the Applicant in the performance of her work, in the creation of systems and documents for the Respondent”.

(3) Superannuation

[17] The Appellant submitted that the Commissioner erred in failing to find at paragraphs [42]-[44] of the Decision that the payment of the equivalent of 9.71 months of superannuation at 9% was indicative of an employment relationship for that period.

(4) Uniform

[18] The Appellant submitted that the Commissioner erred at paragraph [55] of the Decision in failing to find that:

(a) the Appellant was required to wear a uniform;

(b) she was not required to pay for it 35; and

(c) this was an indicia supportive of an employment relationship.

(5) Provision of Tools and Transport

[19] The Appellant submitted that the Commissioner erred at paragraphs [58]-[60] of the Decision in failing to find that the fact that the Appellant used the Respondent’s tools and equipment was indicative of an employment relationship. The Appellant worked from the offices of the Respondent from 11 July 2013 and used their tools for her work. 36

(6) Periodic Wage

[20] The Appellant submitted that the Commissioner erred at paragraphs [47]-[49] of the Decision in failing to find based on the evidence that:

(a) from 11 July 2013 the Appellant was paid to work 5 days per week and paid on a daily rate;

(b) there is no element of a task related payment;

(c) the Appellant noted ‘employee status’ on invoices; and

(d) this was indicative of an employment relationship.

(7) Professional Trade or Distinct Calling

[21] The Appellant submitted that the Commissioner erred in failing:

(a) to place sufficient weight on the fact that all of the Appellant’s work was with the Respondent;

(b) to find that this is an indicia that tends to confirm an employment arrangement unless it is clearly negated by other evidence; and

(c) to place sufficient weight on the fact that the Appellant’s employment was ‘formalised’ by putting her ‘on the books’.

(8) Goodwill or Saleable Assets

[22] The Appellant submitted that the Commissioner erred in failing to consider this indicia of employment because:

(a) the authorities establish this as an important criteria;

(b) it is more important indicia than method remuneration;

(c) a contractor has interest in establishing value in their business. Running a business is associated with risk and reward. Payment tends to reflect that fact;

(d) there was no evidence that the task of establishing workplace health and safety practices was defined by timeframe and in fact, it was an on-going requirement;

(e) the evidence points to the necessity to employ a person to establish and supervise on an on-going basis the necessary procedures within the Respondent company;

(f) there was no evidence that the Appellant could “sell” the contract she had with the Respondent to a third party as part of some business she had established to provide workplace health and safety advice generally.

[23] On the basis of the evidence before the Commission, the Appellant submitted that the Commissioner should have made a finding that the Appellant was an employee of the Respondent from 11 July 2013 and therefore the jurisdictional objection of the Respondent should have failed.

[24] With respect to the issue of public interest, the Appellant submitted that the Decision:

• manifested a substantial injustice and is counterintuitive, disharmonious and inconsistent with legal principles set out by the Full Court in French Accent and other relevant decisions as to the factors to be considered in deciding whether someone meets the test of “employee”;



• if allowed to stand would not only prejudice the Appellant and others in her position but encourage employers to contract out of employment obligations. It is in the public interest to grant permission for the appeal to ensure consistency and continuity in defining the factors that determine “employment”; and



• the decision was illogical, irrational, contrary to established legal principles, and so lacking evidentiary basis for the findings made as to involve jurisdictional error on the part of the decision maker. To allow the decision to stand would be so manifestly unjust as to be against the public interest.

[25] The Respondent submitted that no error had been shown in the approach adopted by the Commissioner, the factual findings made or the application of the relevant legal principles and as such the appeal should be dismissed. In the Respondent’s submission, the conclusions of the Commissioner were open to her on the evidence available and manifested no error.

[26] The Respondent addressed all 8 grounds of appeal raised by the Respondent in written and oral submissions.

[27] First and in relation to the issue of “personal services” and the Appellant’s submission that the Commissioner at paragraph [33] of the Decision failed to properly consider the evidence of the Appellant that she had no ability to subcontract her work to third parties, the Respondent submitted that this was a misconstruction of the Commissioner’s findings. In the Respondent’s submission, the Commissioner correctly noted that neither party had addressed whether it was contemplated that the Appellant subcontracted the work to another party. As such, the point made by the Commissioner was that there was no evidence of a contractual entitlement to subcontract. In the Respondent’s submission there was no error in this conclusion in circumstances where there was no evidence led either way.

[28] Further, in relation to the Appellant’s submission that the Commissioner at paragraph [13] of the Decision could have found that employment might be constituted by something less than full time employment, the Respondent submitted that this argument should not be allowed to run as the matter at first instance was run by the Appellant on the basis that she was full time employed by 11 July 2013. Moreover it did not point to any error on the part of the Commissioner in the Respondent’s submissions.

[29] Second, in relation to the “control test” issue, the Respondent submitted that the Commissioner correctly weighted up the evidence as to control and concluded that the Appellant had a degree of autonomy over the work performed by her. In resolving the conflict between the evidence of the Appellant and Ms Giles (the Respondent manager), the Commissioner properly pointed to the evidence that the Appellant by her billing procedures between July and December 2013 had held herself out as an independent contractor. As such, the Respondent submitted that the Appellant’s submission was merely a complaint that the Commissioner did not accept her evidence where it conflicted with the evidence led by the Respondent.

[30] Third, in relation to the “superannuation” issue, the Respondent submitted that the evidence of late payment of superannuation on behalf of the Appellant in June 2014 was neutral. There was no evidence as to why the payment was made and s. 12(3) of the Superannuation Guarantee (Administration) Act 1992 obliged the Respondent to treat a contractor working wholly or principally for labour only as an employee for the purposes of the superannuation legislation.

[31] Fourth and in relation to issue of uniform”, the Respondent submitted that while the Appellant was required to wear a uniform with the Respondent’s insignia on site, the Appellant conceded that the contractors to the Respondent were required to wear the uniform. 37 The Appellant’s evidence38 that persons she identified as subcontractors were required to pay for their uniform, whereas she was not so required, was not able to be tested. As such, the Respondent submitted that the Commissioner made no error in concluding that the wearing of a uniform was not conclusive of an employment relationship.

[32] Fifth and in relation to the “provision of tools and equipment”, the Respondent submitted that the Commissioner did not err in concluding that no significant weight could be attributed to the Appellant using the Respondent’s laptop and mobile phone given that the work performed under the contract was of an intellectual nature, compiling workplace health and safety documents to ensure the Respondent’s compliance with the relevant regulatory framework. As the Appellant recorded in her evidence, the phone was an old phone belonging to Ms Giles which was given to the Appellant in April 2013, at a time when it is not disputed by the Appellant that she was a contractor, and the Appellant used the phone thereafter, even when working remotely from the Respondent’s site. Likewise, nothing significant could have been attached to the Appellant having worked from the Respondent’s offices after 11 July 2013 in the Respondent submission. The Respondent noted Buchanan J’s comments in Ace Insurance Limited v Trifunovski 39: “Working in the business of another is not inconsistent with working in a business of one’s own”.

[33] Sixth and regarding the “periodic wage” issue, the Appellant relied on being paid at a fixed daily rate for working 5 days a week from 11 July 2013, however, the Appellant continued to supply invoices. The Respondent submitted that the Commission was not in error in concluding at paragraphs [47]-[49] and [61] of the Decision that the change from an hourly rate to a daily rate was equally consistent with a change in the mode of remuneration under a contractor for services. Further, apart from 22 December 2013, the Respondent submitted that there was no evidence of the hours worked on any particular day. There was also evidence of working on at least 2 Sundays without explanation. The Respondent noted that the Appellant was an experienced and mature aged worker with relevant knowledge of correct practices. In these circumstances, the Respondent submitted that the Commissioner correctly pointed out that the Appellant continued to supply invoices until 23 December 2013 and did not invoice the Respondent for public holidays.

[34] Seventh and in relation to the issue of “goodwill or saleable assets”, the Respondent submitted that the Appellant was overreaching by suggesting that this criteria is more important than others. In the Respondent’s submission, French Accent does not elevate its importance. 40 In Stevens v Brodribb Sawmilling Company Pty Limited,41 Wilson and Dawson JJ listed this criteria amongst a group of criteria which might points towards a contract for services and observed that “none of these [indicia] leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance”.42 In the Respondent’s submission the Commissioner made no error in regarding the criterion as not determinative.

[35] In the Respondent’s submission the Commissioner paid heed to the relevant authorities which provided that, in determining whether a particular relationship is one of employer and employee or principal and independent contractor, it is necessary to look at the totality of the relationship to determine whether the Appellant served the Respondent in the Respondent’s business or was a person who carried on a trade or business of her own. The Respondent submitted that the Commissioner did not err in having regard to the proposition that when the relationship is ambiguous, the parties may remove the ambiguity by the agreement which they make with one another. The best objective evidence of that agreement between 11 July 2013 and 21 December 2013 in the Respondent’s submission, was the continued adoption by the Appellant of the invoice method of billing the Respondent’s for services rendered with the conscious inclusion of GST.

Consideration

[36] The decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’. 43 In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’.44

[37] The test of assessing whether the public interest is enlivened is discretionary, involving a broad value judgement. 45 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,46 a Full Bench summarised the concept of public interest in the following terms:

“Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”

[38] Otherwise, the grounds for granting permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 47

[39] The matter was conducted as a telephone conference at first instance by way of the Commissioner questioning the Appellant and Ms Giles. Both parties were legally represented but chose to rely on their written submissions. As such, there was no detailed examination of the various conflicting factual assertions made by the parties. Given the factual nature of the determination required to be made to establish whether the Appellant could be characterised as an employee for the relevant time period, to not allow the appeal in circumstances where key evidence was not fully tested could manifest an injustice and result in an outcome that is inconsistent or incongruous with the relevant existing authorities. We are satisfied that the public interest has been sufficiently enlivened and we therefore grant permission to appeal.

[40] The question of whether a person is an employee for the purposes of an application for an unfair dismissal remedy made under s. 394 of the Act is one of jurisdictional fact as is the related question in this case; whether the appellant had completed the minimum employment period at the time of her dismissal. In this appeal we must therefore determine whether the Commissioner reached the right conclusion as to whether the Appellant was an employee or contractor during the relevant period and whether she had completed the minimum employment period, not simply whether the Commissioner’s finding in this respect was reasonably open to her.

[41] The courts have developed a multi-factorial approach, in which there is no single decisive criterion to determine whether a contractual relationship is one of employment or one subject to a contract for services. This approach requires the consideration of the various indicia as summarised in French Accent set out above. It is also clear from the decision of the Full Bench of the Federal Court in ACE Insurance Limited v Trifunovski and others, that no one single criterion will necessarily be determinative and that each matter will turn upon the particular circumstances of the case, with the decision maker weighing all the relevant factors. 48

[42] French Accent also endorses the following propositions in Abdalla v Viewdaze Pty Ltd t/a Malta Travel that:

“the ultimate question will always be whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf 49: that is whether, viewed as a practical matter, the punitive worker could be said to be conducting a business of his or her own50. This question is answered by considering the terms of the contract and the totality of the relationship51.”

[43] Both Counsel for the Appellant and Respondent made much of the application of the recent Full Federal Court case of Tattsbet Limited v Morrow (Tattsbet) 52 to the present matter. However, we note that each case will turn upon its own facts and this is simply one unremarkable case which discusses the characterisation of a person as employee or contractor in a particular factual context. It is clear at paragraphs [63]-[71] of the Tattsbet decision that the consideration required was of the matters which were relevant in the particular situation and as His Honour Chief Justice Allsop noted at paragraph [5], “The statutory and factual context will always be critical in a multifactorial process of characterisation of a legal and human relationships: employment”. We have already noted the relevant leading authorities setting out the approach to be taken when deciding whether to characterise someone as employee or contractor. It is necessary to look at the totality of the relationship to determine whether the Appellant served the Respondent in the Respondent’s business or whether she was carrying on a trade or business of her own. This must be an objective test taking into account all of the indicia and looking at what the evidence actually demonstrates on an objective basis.

[44] We have considered all the evidence before the Commission and the submissions of both parties and we find that the evidence overwhelming indicates that the Appellant was an employee from at least 11 July 2013. We find that the Commissioner erred in overly relying on the manner in which the Appellant was remunerated to decide whether or not she was an employee or a contractor and failing to properly consider any other criteria other than the method of remuneration. Indeed it is somewhat unfortunate that the matter was conduct as a jurisdictional conference without an adequate opportunity to properly test some of the conflicting factual assertions. There was not adequate examination of the conflicting factual assertions nor was sufficient time afforded to going into any details as to those testimonial matters that might have gone to assisting the Commission in determining whether those assertions where in fact, correct or not. If other evidentiary issues had been properly explored, it would have been found that the method of remuneration was merely one element in a relationship in which all the other elements pointed to employment.

[45] There is no dispute that the Appellant started off as a contractor of the Respondent. However, we find that on balance the evidence goes to the fact that this relationship changed on 11 July 2013. The Appellant says at paragraph 24 of her Affidavit that she informed the Respondent manager, Ms Giles, that she would like to take up the opportunity of full time employment and this is corroborated by email annexed LK2 to her affidavit. 53 We note that the Appellant continued to remit invoices until December 2013 and the Respondent says that this is evidence of the fact that she was still a contractor at that time. However, the Appellant contends that she regularly asked Ms Giles to be put on the payroll and her understanding was that she would be put on the payroll in July 2013. As this did not occur she was told by Ms Giles that it would occur when Ms Giles got around to it. There is confirmation of this mutual understanding from Ms Giles where she is speaking to this issue on transcript at first instance and says “Louise kept asking me could she go back on the payroll, blah, blah, blah and yes, basically”.54 It was the Appellant’s expectation that when she relocated to the premises of Western Augur Drilling there would be an employment relationship in place between the parties. Indeed, the undisputed fact that the Appellant relocated to the premises of the Respondent is in itself indicative of a more fundamental change in the relationship. We also note that from 11 July 2013 the bulk of the invoices were issued for a 5-day week and a regular day rate rather than the previous hourly rate, which is consistent with the Appellant’s understanding that she was an employee from 11 July 2013. We accept that the Appellant continued to remit invoices as a matter of practicality in circumstances where the Respondent was too busy to update her method of remuneration in a timely manner. However, even if we did not accept the Appellant’s evidence on this point, the remaining indicia discussed below still overwhelmingly weigh against characterising the Appellant as an independent contractor.

[46] Regarding the control test and issue of supervision, in the supplementary affidavit of the Appellant 55, the Appellant purports that she had direct supervision by Mr Gary Atkinson who as the Chief of Operations, was her superior. That Mr Atkinson gave directions and was in a supervisory position over the Appellant is consistent with the contents of the letter that was written by solicitors for the Respondent in response to questions asked of Mr Atkinson with respect to allegations of sexual harassment and bullying.56 The Appellant’s evidence is that she relocated to work directly from the premises of the Respondent, not for her convenience, but so that she could engage in her work under the supervision of the Respondent.57 The Appellant’s evidence is that the Appellant was represented as the safety officer for the Respondent and that it was a necessary legislative requirement of the Respondent to employ someone to establish and supervise workplace health and safety practices. The Appellant’s evidence is that the Respondent had previously employed Ms Giles to do this work until she became too busy.58 On the basis of the evidence led before the Commission, we find that the Appellant was working under the control of the Respondent as an employee.

[47] It is undisputed that between 11 July 2013 and 2 January 2014, the Appellant solely worked for the Respondent. During this time the Appellant worked full time hours and overtime. As a matter of practicality, she could not work for anyone else but the Respondent. Moreover, she was not creating general documents that were being used by the Respondent, but rather creating documents solely for the use of the Respondent which she did not retain. 59 There is no evidence that the Appellant ran a business of her own during this period. Nor is there any evidence that the Appellant subcontracted her work to third parties during the relevant period. We find that the fact that the employee worked solely for the employer and did not subcontract any work weighs in favour of the finding that she was an employee.

[48] Regarding the issue of uniform, the evidence before the Commission indicates that upon relocation, the Appellant was required to wear a uniform but was not requested to pay for it whilst other sub-contractors were required to pay for their uniforms. 60 The requirement of the uniform weighs in favour of the finding that the Appellant was an employee.

[49] The Appellant’s evidence is that she worked from the offices of the Respondent from 11 July 2013 and used their tools for her work including a phone and labtop. 61 The evidence before the Commission is that she did not spend any of her own money on business expenses or purchasing supplies for the Respondent during this time. We find that this factor weighs in favour of finding the Appellant was an employee during the relevant period.

[50] On the evidence before the Commission, the Appellant could not sell her contract with the Respondent. We find that absence of a goodwill or saleable asset is factor that weighs in favour of a finding that the Appellant was an employee during the relevant period.

[51] Regarding the issue of superannuation, the Appellant contends that it is indicia of employment. We find that the Appellant fell within the expanded meaning of “employee” under s. 12(3) of the Superannuation Guarantee (Administration) Act 1992 and if payment is made pursuant to this meaning, it is not indicative of anything other than that the person comes within the expanded meaning of the legislation. We find that the issue of superannuation is a neutral factor.

[52] The Respondent seeks to rely on Justice Jessups’s comments in Tattsbet to assert that the presence of GST collections by the Appellant and her compliance with the regulatory requirements which apply to the provisions of services by persons who are not employees, weighs against the relationship being characterised one of employment. 62 We note that Justice Jessup’s comments were made in the context where the relevant agent was engaged not merely to provide personal services by way of labour but to run a business for the Respondent and was free to utilise other labour employed by the agent. It is in that context that the GST discussion occurs, not in a vacuum, and as such the present case may be distinguished from the circumstances in Tattsbet. Even if we are to apply Tattsbet, there is a real question of whether the Appellant’s participation in the GST system could perhaps be better characterised as tokenistic.

Conclusion:

[53] We find that in totality, the evidence weighs in favour of the Appellant being characterised as an employee of the Respondent for the minimum employment period pursuant to s. 383 of the Act.

[54] We find that the Commissioner’s conclusion that the Appellant was not an employee of the Respondent for the relevant time period was an error on a question of jurisdictional fact. In these circumstances and consistent with s.400(1) of the Act, we consider that it is in the public interest to grant permission to appeal, that the appeal must be upheld. On a rehearing we find that the Appellant was an employee of the Respondent at all times from 11 July 2013 until the date of her dismissal. Consequently we find that the Appellant had completed the minimum period of employment and is therefore protected from unfair dismissal.

[55] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The Commissioner’s decision in Kimber v Western August Drilling Pty Ltd [2015] FWC 38 is quashed.

(4) The Respondent’s jurisdictional objection is dismissed.

(5) The matter is to be remitted to Commissioner Simpson for conciliation.

VICE PRESIDENT

Appearances:

S D Anderson of Counsel instructed by J Johnson of Johnson Solicitors for the Appellant.

R Reed of Counsel instructed by D Riwoe of Aden Lawyers for the Respondent.

Hearing details:

1 June

2015

Brisbane

 1   Kimber v Western August Drilling Pty Ltd [2015] FWC 38.

 2   [2013] FCAFC 3.

 3   (2003) 122 IR 215.

 4   French Accent v Michael Anthony Do Rozario [2011] FWAFB 8307.

 5   Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at p. 217 per Windeyer J approved by the majority in Hollis v Vabu (2001) 207 CLR 21 at para [40]; see also Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Brodribb) at p. 37.3 per Wilson and Dawson JJ.

 6   Hollis v Vabu (2001) 207 CLR 21 at [47] and [58].

 7   Brodribb esp Mason J at p. 29.3.

 8   Brodribb per Wilson and Dawson at p. 37.2.

 9   “The parties cannot create something which has every feature of a rooster, but call it a duck and insist that everyone else recognise it as a duck.” Re Porter (1989) 34 IR 179 at p. 184 per Gray J; Massey v Crown Life Insurance [1978] 2 All ER 576 at p. 579 per Lord Denning approved by the Privy Council in AMP v Chaplin (1978) 18 ALR 385 at p. 389.

 10   AMP v Chaplin (1978) 18 ALR 385 at 389.

 11   Hollis v Vabu (2001) 207 CLR 21 at para [58].

 12   AMP v Chaplin (1978) 18 ALR 385 at p. 394.

 13   (1986) 160 CLR 16.

 14   Brodribb.

 15   Flows from the reasoning of Mason J in Brodribb at p 24.

 16   Brodbribb esp Mason J at p 24.4.

 17   Zuijs v Wirth Bros. Pty. Ltd (1955) 93 CLR 561 at p. 571.

 18   Hollis v Vabu (2001) 207 CLR 21.

 19   Humberstone v Northern Timber Mills (1949) 79 CLR 389 at p. 404 per Dixon J.

 20   Brodribb per Wilson and Dawson JJ at p. 36.

 21   Ibid at p. 37.1.

 22   Brodribb per Mason J at p 24.6.

 23   Hollis v Vabu (2001) 207 CLR 21 at [47] see also [58].

 24   Brodribb per Mason J at p. 24.7.

 25   Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539; AMP v Chaplin (1978) 18 ALR 385 at p. 389.

 26   Brodribb per Wilson and Dawson JJ at p. 36.9.

 27   Hollis v Vabu at [50].

 28   Brodribb per Mason J at p. 24.6; Wilson and Dawson JJ at p. 37.2.

 29   cf Brodribb per Mason J at p. 24.6.

 30   as to paid holidays, see Brodribb per Mason J at p. 24.6.

 31   Brodribb per Wilson and Dawson JJ at p. 37.1.

 32   Ibid at p. 37.2.

 33   Ibid at p. 37.2.

 34   Massey v Crown Life Insurance [1978] 2 All ER 576 at page 579 per Lord Denning.

 35   Affidavit of Ms Kimber at [29].

 36   Affidavit of Ms Kimber at [24]-[27].

 37   Kimber supplementary affidavit at paragraphs 8; AB p 126.

 38   Ibid.

 39   (2013) 209 FCR 146 at 182 [128].

 40   [2011] FWAFB 8307 at [30].

 41   (1986) 160 CLR 16.

 42   (1986) 160 CLR 16 at 36-37.

 43   Section 400(2).

 44   (2011) 192 FCR 78 at [43].

 45   Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210 at [6].

 46   [2010] FWAFB 5343 at [27].

 47   Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210 at [7].

 48   ACE Insurance Limited v Trifunovski and others[2013] FCAFC 3 per Lander J at [9].

 49   Marshall v Whittaker’s Building Supply Co (1963) 109 CLR 210 at 217 per Windeyer J approved by the majority in Hollis v Vabu (2001) 207 CLR 21 at para [40]; see also Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Brodribb) at 37.3 per Wilson and Dawson JJ.

 50   Hollis v Vabu (2001) 207 C:R 21 at [47] and [58].

 51   Brodribb esp Mason J at 29.3.

 52   [2015] FCAFC 62.

 53   Appeal Book 84.

 54   At FN110.

 55   Appeal Book page 127.

 56   Appeal Book 152-154.

 57   Affidavit of Ms Kimber filed 18 July 2014 at [4].

 58   Affidavit of Ms Kimber filed 18 July 2014 at [4].

 59   Appeal Book page 128.

 60   Affidavit of Ms Kimber at [29].

 61   Affidavit of Ms Kimber at [24]-[27].

 62   Tattsbet at [70].

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