[2020] FWC 2503 [Note: An appeal pursuant to s.604 (C2020/5748) was lodged against this decision - refer to Full Bench decision dated 13 November 2020 [[2020] FWCFB 6112] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Gerrard Bennett
v
EFEX Group Pty Ltd
(U2019/13355)

COMMISSIONER HAMPTON

ADELAIDE, 2 JULY 2020

Application for an unfair dismissal remedy – jurisdictional objection – business development manager with sales role – whether an employee – required approach identified – multifactorial test applied – relationship stated to be that of an independent contractor – no written contract and superficial discussions only about nature and terms of engagement – various competing considerations arising from practical conduct of relationship – more significant factors consistent with employment – on balance, applicant an employee – jurisdictional objection dismissed – application to be heard.

1. What this decision is about

[1] Mr Gerrard Bennett has made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (the FW Act) claiming to have been unfairly dismissed by the Respondent, EFEX Group Pty Ltd (EFEX).

[2] In opposing the application, EFEX contests Mr Bennett’s eligibility to make this application and contends that he was not a person protected from unfair dismissal on the basis that he was not an employee.

[3] EFEX conducts a services business providing voice, data, printing management and other technology-based services. It has a strong presence in Eastern Australia and an office in Adelaide, where Mr Bennett was based.

[4] Mr Bennett was engaged to undertake what was fundamentally a sales role in the stated capacity as a Business Development Manager with EFEX. He did so from February 2018 to November 2019.

[5] It is not in dispute that for Mr Bennett to make and advance this application, he must have been an employee within the contemplation of the FW Act. This arises from, amongst other sources, the requirement in s.382 that in order to be protected from unfair dismissal, the person (the applicant) must be an employee who has served at least the minimum employment period. Under s.380 of the FW Act the terms “employee” and “employer” are defined by reference to the concepts of national system employee and national system employer as defined in s.13 and s.14 respectively.

[6] Relevantly for present purposes, employee has its normal meaning which imports the common law test as to what constitutes an employee and employment.1

[7] After conducting a conference with the parties and considering the jurisdictional question to be determined and the evidence involved, I concluded that a hearing would be the most effective and efficient way to resolve this matter.2 This hearing was delayed because of the impact of the COVID-19 pandemic and the control responses of the Governments and ultimately conducted by utilising a video-based conferencing platform.

[8] During the course of earlier proceedings permission was given to both parties to be represented in this matter by a Lawyer under s.596 of the FW Act.

[9] This decision deals with the jurisdiction of the Commission to hear and determine the substantive unfair dismissal application.

2. The cases presented by the parties

2.1 Mr Bennett

[10] Mr Bennett contends that he was an employee at all times whilst engaged by EFEX. Relying upon the approach adopted by the Commission in French Accent3 he contends that each of the following propositions support his position:

Exclusivity

  During the period of 1 February 2018 and 8 November 2019 he worked solely for the Respondent.

  The entirety of his annual salary (being $120,000 plus GST) was exclusively paid by the Respondent.

  He was unable to delegate or subcontract any work.

Control

  EFEX exercised control over him as illustrated by the fact that he was:

  precluded from attending a lunch invitation to Sydney and was instructed by the Respondent that he was to return to work;

  prevented from collaborating with the Respondent’s Branch Manager on tasks, being directed to work by himself;

  instructed by the Respondent to attend compulsory training conferences interstate; and

  required to complete mandatory ongoing training every fortnight, as part of the work performed for the Respondent.

  The Respondent maintained a high degree of control over the work performed by the Applicant.

  At the commencement of his work with EFEX, he was provided the following equipment by the Respondent:

  company branded business cards;

  company branded polo shirt;

  a company email; and

  a laptop, which he was required to return upon his dismissal. He was then precluded from accessing his company email.

Payment arrangements

  Although he provided monthly invoices and was paid after the submission of these invoices, the following factors mean that this should be given little weight when assessing the relationship as a whole: 4

  He was instructed by a representative of the Respondent, Dean Brogan, to set up a trust account for payment;

  He had never previously held an ABN;

  The ABN has not been associated with any other contract for service;

  He submitted an invoice each month to the Respondent; and

  He was required to work a minimum of 38 hours per week for the Respondent and did so.

Leave and other arrangements 5

  He was required to notify the Respondent if he was to be absent from work.

  His remuneration remained unaltered when on leave, sick or away from the office.

  His travel expenses and associated costs relating to attendance at sales conferences and training were all met by EFEX.

[11] Mr Bennett also contended that there was no written contract and there were no discussions about the nature of the engagement before or at the time of commencement. He further submitted that the trust account established to receive payments from EFEX was arranged by an Accountant, who also provided services to Mr Brogan, and that payments to and from that account included both business and personal matters. As a result, no implications against employment could be drawn from these arrangements.

[12] In relation to what EFEX described as an offer to enter into an employment relationship near to the conclusion of his engagement, Mr Bennett contends that this was largely irrelevant. He also observed that there were no changes in the substance of the work to be performed, only to the reporting arrangements. In that light, Mr Bennett contended that if anything, this was a further indication that he had been employed for the entire time of his engagement.

[13] Finally, Mr Bennett posited that he was not operating a business for himself but rather was a representative of EFEX. This, he submitted, was the ultimate test and confirmed that he was an employee and not a contractor.

[14] Mr Bennett provided a witness statement, 6 tendered documents including a copy of his Outlook calendar for the period of his engagement and gave sworn evidence in this matter.

2.2 EFEX

[15] EFEX contends that the Commission was required to adopt a multifactorial approach as summarised in French Accent. However, to the extent that Mr Bennett relies upon the “ultimate question” being whether he was “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”, 7 EFEX contends the correct approach is that this consideration is one of the indicia for ascertaining whether the applicant was an employee and not the ultimate question.8

[16] In relation to the relevant indicia, EFEX contends that:

  While Mr Bennett may have been requested to attend some sales conferences and training, in order to assist his performance, and also asked to perform some limited operational tasks, EFEX did not exercise control as to how he performed his sales work. In particular:

  he was not required to work specific hours, and was able to fulfil his University commitments and go to the gym during business hours; and

  he was not directed as to how he should perform his sales duties, nor which prospective clients he should visit.

  Mr Bennett was judged by his performance, rather than being required to work at any particular time or for any particular period of time. There was no detailed supervision of his work.

  In relation to Mr Bennett’s entitlement to perform other work, Mr Bennett was in fact performing some informal work for others to help them win cleaning contracts while engaged by EFEX Group. His direct manager was aware of this and was not concerned about it.

  The fact that income tax was not deducted from the payments made to Mr Bennett’s trust enterprise, and that Mr Bennett claimed and was paid GST, both point strongly against the relationship being one of employment. 9

  Although Mr Bennett was provided with a laptop, he also used his own laptop during working hours. More importantly, he was required to provide his own car and mobile phone, both essential tools for his sales work, and did not claim reimbursement for those expenses.

[17] EFEX accepted that:

  although Mr Bennett was not required to wear a uniform, he presented himself to the world as representing EFEX;

  Mr Bennett was paid a fixed monthly amount, rather than an amount by reference to the completion of tasks;

  Mr Bennett continued to receive his monthly payment even if he was absent during the month; and

  Mr Bennett did not generate his own goodwill.

[18] However, EFEX submits that when one looks at the totality of the relationship, it presents a picture of Mr Bennett working and being paid as an independent contractor rather than as an employee. In particular, he was not required to adopt any particular method of performing his work, he was judged by sales results rather than by reference to when or how much he worked, and he was not closely supervised.

[19] Further, EFEX contends that to the extent that the nature of the relationship is ambiguous, the parties’ understanding of their relationship may be decisive. Further, the ‘label’ which the parties themselves place on their relationship is relevant but not conclusive. The respondent accepts that the parties cannot deem the character of their relationship to be something it is not. However, when the competing indicia are reasonably evenly balanced, the parties’ own understanding of their relationship may be decisive. 10 In that regard, EFEX posited that in this case the facts disclose that both parties were aware at the outset that Mr Bennett was to be engaged as a contractor and that he was aware of the difference and expressly agreed to join as a contractor. Mr Bennett should not be allowed to retrospectively recharacterise the way that he agreed to be engaged, because it now suits him to do so.

[20] In relation to the offer of employment near to the conclusion of the relationship, EFEX contends that this was undertaken to implement more accountability and rigour in the arrangements and reinforced that the engagement at the time of the dismissal was not that of employment.

[21] EFEX contends that the Commission can properly conclude that Mr Bennett was not an employee of EFEX Group, and his unfair dismissal application should be dismissed for that reason.

[22] EFEX provided written evidence, and led evidence in the form of witness statements and oral evidence from the following:

  Mr Nick Sheehan - Chief Executive Officer of EFEX; and

  Mr Dean Brogan - Branch General Manager of EFEX in South Australia.

3. Observations on the evidence

[23] There is some factual conflict in the witness evidence provided in this matter. Whilst this generally involves matters of perspective, degree and emphasis, there is some direct conflict particularly between the evidence of Mr Bennett and Mr Brogan. I have resolved those matters having regard to the nature of that evidence, the degree to which the witness was able to give direct first-hand evidence about the issue, and my view about the credibility of the evidence generally. In that regard, the evidence of Mr Brogan and Mr Sheehan about much of the practical day to day working arrangements and requirements of the sales role was not significantly challenged by Mr Bennett.

[24] In general terms I found that each of the witnesses gave their evidence openly and with conviction, making appropriate concessions. I did however consider that some of the witnesses’ statements tended to subjectively summarise the proponent’s view about the thrust of some of the exchanges, rather than the detail of the discussion. As a result, I have treated those elements with caution. This includes that the witnesses for EFEX tended to overstate the degree to which Mr Bennett undertook personal activities or work, based upon limited direct observations.

[25] Subject to the stated caveats, where there is a factual conflict between Mr Bennett and Mr Brogan on matters each directly observed, I generally prefer the evidence of Mr Brogan, particularly as he was not challenged on some of the disputed factual matters. I was also not persuaded by Mr Bennett’s position that he was not aware of the stated nature of the relationship and that the term “contractor” was not used at the formation of the relationship. Given his education, business experience, some of the preceding discussions, and at least one email raising the issue, I consider that Mr Bennett sought to underplay this aspect of the discussion leading to the formation of the relationship. I do however accept that the discussions about these matters were superficial and focused upon the nature of, and administrative arrangements for the remuneration.

[26] Where witnesses have purported to give evidence about the implications of the facts for the respective cases, I have treated those elements as submissions, noting that it is the Commission’s role to determine those matters.

4. The required approach to assessing the nature of the relationship

[27] Both parties have relied to varying degrees upon the decision of the Full Bench in French Accent11 as summarising the general approach to distinguishing between employees and independent contractors. For convenience, that summary is in the following terms:

“[30] The general law approach to distinguishing between employees and independent contractors may be summarised as follows:

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

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

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

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

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

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

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

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

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

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

  Whether the worker provides and maintains significant tools or equipment.

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

  Whether the work can be delegated or subcontracted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(6) If the result is still uncertain then the determination should be guided by “matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” including the “notions” referred to in paragraphs [41] and [42] of Hollis v Vabu.”12 (citations omitted)

[28] The reference to the extracts from Hollis v Vabu13 above, is as follows (footnotes omitted):

“[41] In Bazley v Curry, the Supreme Court of Canada saw two fundamental or major concerns as underlying the imposition of vicarious liability. The first is the provision of a just and practical remedy for the harm suffered as a result of the wrongs committed in the course of the conduct of the defendant's enterprise. The second is the deterrence of future harm, by the incentive given to employers to reduce the risk of accident, even where there has been no negligence in the legal sense in the particular case giving rise to the claim.

[42] In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise. In delivering the judgment of the Supreme Court of Canada in Bazley v Curry, McLachlin J said of such cases that "the employer's enterprise [has] created the risk that produced the tortious act" and the employer must bear responsibility for it. McLachlin J termed this risk "enterprise risk" and said that "where the employee's conduct is closely tied to a risk that the employer's enterprise has placed in the community, the employer may justly be held vicariously liable for the employee's wrong". Earlier, in Ira S Bushey & Sons, Inc v United States, Judge Friendly had said that the doctrine of respondeat superior rests:

"in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities".”14

[29] I also note that the plurality of the High Court in Hollis v Vabu illustrated the import of its approach as follows:

"[47] In classifying the bicycle couriers as independent contractors, the Court of Appeal fell into error in making too much of the circumstances that the bicycle couriers owned their own bicycles, bore the expenses of running them and supplied many of their own accessories. Viewed as a practical matter, the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations. A different conclusion might, for example, be appropriate where the investment in capital equipment was more significant, and greater skill and training were required to operate it. The case does not deal with situations of that character. The concern here is with the bicycle couriers engaged on Vabu's business. A consideration of the nature of their engagement, as evidenced by the documents to which reference has been made and by the work practices imposed by Vabu, indicates that they were employees."15

[30] As a result, the Commission is obliged to consider the totality of the relationship having regard to various indicia that might shed light on the true nature of the relationship.16

[31] The Full Bench in French Accent also provided some important context for the present matter in the following terms:

[24] The benefits and protections enjoyed by employees may be seen as reflecting a social consensus, expressed in legislation, that workers who are properly characterised as employees should have the benefits and protections of superannuation, workers’ compensation insurance, sick leave, annual leave and award entitlements (and it is not to the point that other protections, for example unfair dismissal protection, have been more contentious in recent years).

[25] The FW Act imposes obligations on employers in relation to their “employees” and confers benefits and rights on “employees” without defining when a worker is an employee as distinct from an independent contractor. The definition of “employee” leaves it to the general law to supply that distinction. The nature of the established general law approach to distinguishing between employees and independent contractors may be seen as contributing to the problem precisely because the nature of the general law test is such that it does not admit a clear answer in every case. Once one adopts the position, as the general law has done, that the distinction is rooted in the objective character of the work relationship two things follow. First, the infinite variety of human affairs means that work relationships present as a spectrum, some of which are clearly relationships of employment and others of which are clearly relationships of independent contract but some of which are less clear cut. Secondly, that character of a work relationship is what it is and cannot be changed simply because the parties agree to label it differently (unless, of course, the relationship is sufficiently ambiguous that a clear determination is not possible, the situation addressed by the Massey Proposition). That is a matter clearly recognised by the courts and tribunals.

[26] Moreover, the nature of the ultimate question is such that in any given case that is not clear cut, reasonable judicial minds may differ as to the correct answer in any given case. This was explicitly recognised in Roy Morgan. This necessarily means that there is an area of uncertainty for businesses that wish to engage only on the basis of independent contract and not on the basis of employment. Any change to the present approach is a matter for the legislature. Our duty is to continue to apply the established general law approach until legislation or the High Court requires otherwise.”(emphasis in original)

[32] Whilst the consideration as to whether Mr Bennett was conducting a business for himself is an important factor, the ultimate question is whether the true nature of Mr Bennett’s relationship with the Respondent was that of an employee, which is be assessed taking into account the entirety of the relationship and the various (competing) indicia. 17

5. Was Mr Bennett an employee of EFEX?

5.1 The facts of the matter

[33] EFEX conducts a services business providing voice, data, printing management and other technology-based services. EFEX’s head office is located in North Sydney, New South Wales. Mr Bennett’s and Mr Brogan’s roles were both based out of the Adelaide Office.

[34] Mr Brogan was initially engaged in September 2017 primarily to ascertain sales leads, once those leads generated business for EFEX the business established the first Adelaide office in or around mid-January 2018. Mr Brogan was engaged on what he and the respondent considered to be an independent contractual basis until December 2019, when he became expressly engaged as an employee with a written contract reflecting that arrangement.

[35] Throughout the time that Mr Bennett was engaged by EFEX, Mr Brogan was the South Australian Branch Manager, and he reported to the General Manager, Sales and Marketing, who was based in the Sydney head office. Mr Sheehan is the Chief Executive Officer of EFEX and is also based in the Sydney head office, but travels frequently to, and has a home in, Adelaide, and would sometimes work from the Adelaide office.

[36] The formation of the relationship between Mr Bennett and EFEX was strongly influenced by the friendship between the key players; being Mr Bennett, Mr Brogan and Mr Sheehan. All had an involvement in AFL and an awareness of each other’s work interests and activities. In particular, Mr Bennett had an awareness of Mr Brogan’s role at EFEX and there had been discussions between all three at some stage in the lead up to the commencement of the engagement about the applicant undertaking a similar role. On balance, I am satisfied that Mr Brogan had indicated to Mr Bennett as part of these discussions that he was engaged in what he described as a contractor relationship who was providing invoices to EFEX and being paid in that manner.

[37] It is also clear that through Mr Bennett’s education – including studying and later completing an MBA, his time in conducting a cleaning business that engaged what he had described as both “contractors” and “employees”, and at least some awareness of Mr Brogan’s arrangements with EFEX, Mr Bennett had a general understanding of the difference between employment and independent contractual arrangements. This awareness, and the nature of the personal relationships underpinning the engagement, are consistent with him seeking clarification in the early stages of discussions via an email to Mr Sheehan on 23 November 2017 in the following terms:

“Firstly mate thanks for the consideration of having me join the team and work with yourself and Broges, from what I see I like the concept, the product and agree that Adelaide has great upside for Efex, and as discussed I have some questions around how my role would work within the group.

I also understand that you have already invested substantially in bringing Efex into Adelaide, helping set up Broges here, and also continuing to support in the infancy of the Adelaide operation. Without knowing exact margins etc I have a fair understanding of where the operation needs to be to firstly cover the cost of Broges, before investing in a tech as you mentioned and then obviously adding me into the mix.

With this in mind I know there must be certain levels met and budgets maintained in both sales and expenses for all to be sustainable, so please know that we can talk honestly about timelines, expectations etc, I would think that at times having mates in the mix could potentially be hard but I know you have the bigger picture to look after.

Initial Question

The Feb 1st timeline sounds good if all things progress as discussed, do you think that this is definitely achievable or does this depend on what falls between now and that date? Is this timeline potentially going to be pushed out if things do not fall as planned?

Apologies too for the jumping the gun a little with Broges on a set-up between now and a Feb 1st or later start - eg getting paid for some hours worked or days, as it was something that Broges had thrown up initially and that is why I had brought it up Tuesday morning. Should have just waited till we had spoken in more detail.

Questions (these are not to create any pressure I just have limited knowledge of how it all works within Efex)

How does GB I create Efex revenue?

How does GB become valuable for Efex? (pure sales, retention, customer service, ongoing relationships etc)

Is GB on the books as an employee or does he invoice Efex as contractor?

How is remuneration set for GB? (eg base rate + commissions/set rate initially etc)

Is there a incentive program? Is this the same for everyone or does it depend on different roles or regions? What KPI's come with the aligned incentive programs if present?

Are there any other entitlements, eg phone, car allowances etc

Is there an ongoing profit share of the portfolio that is signed and managed by GB?

Is there going to be the opportunity for GB to grow with Efex? (Role and Responsibilities) If this is the case could you elaborate on possible opportunities? (I know that you don't have a crystal ball!)

If you could let me know your thoughts that would be great, as mentioned the questions are so that I understand as much as I can on how things work.

Not sure of your thoughts, but, I would love to come up and spend some time with a couple of the guys in Sydney who have been there a while to see how they go about their business. Let me know if you think its a good Idea and I will fly up for a few days next week or the week after.

GB” 18

[38] Although there is no evidence of a written response from EFEX, the actual arrangements subsequently entered into involved Mr Bennett gaining an ABN, establishing a formal trust arrangement, providing invoices to EFEX and having payments made to an account operated in the name of the trust.

[39] It is also the case that the background friendship of the key players influenced the degree of informality in the arrangements, including that there was no written contract or other written outline of the terms of that arrangement.

[40] The above-referenced conversation and email between Mr Bennett and Mr Sheehan followed an earlier discussion between the applicant and Mr Brogan. During or around October 2017, Mr Brogan advised Mr Bennett about the general arrangements surrounding his work with EFEX, including that he was engaged as a “contractor”, and was paid $10,000 per month after issuing a monthly invoice. Mr Brogan indicated that he would approach Mr Sheehan and propose that EFEX engage Mr Bennett on the same basis, which he subsequently did.

[41] Mr Sheehan met with Mr Bennett in January 2018 and Mr Brogan attended only for the start of that discussion. During the meeting, Mr Bennett agreed to join EFEX on the same basis as was then operating for Mr Brogan. The evidence does not reveal any details of that discussion or the arrangements beyond that broad understanding and that Mr Bennett was happy to be treated in the same manner as Mr Brogan with the same terms and (sales) targets.

[42] At some point, both Mr Sheehan and Mr Bennett formally advised Mr Brogan that the proposed arrangement with the applicant was to go ahead. Armed with that information, Mr Brogan advised Mr Bennett to seek some advice from Mr Brogan’s Accountant about setting up an appropriate trust agreement and associated arrangements, which he did.

[43] Mr Bennett, based upon that advice, established a formal discretionary trust structure for the Bennett Enterprises Trust and made arrangements for regular invoices to be sent monthly to EFEX for an agreed monthly payment. Payments were by EFEX to an account operated in the name of the Bennett Enterprises Trust and Mr Bennett used that account to keep track of business and some personal expenses and paid himself what amounted to a “wage” by regularly transferring money from the trust account to another (personal) account.

[44] Mr Bennett commenced with EFEX on 1 February 2018. Upon commencement he was provided with business cards, which stated that he was a Business Development Manager with EFEX, a company laptop, access to an EFEX email address and at some point, an EFEX polo shirt. It is likely that this shirt was provided in the context of an EFEX promotional golf day. Mr Bennett was not required to wear the polo shirt or any other uniform in the course of his dealings with or for EFEX.

[45] Mr Bennett’s role was essentially to find and follow-up on sales leads and seek to make sales of EFEX services. This involved contacting and meeting clients and potential clients and promoting the various IT services provided by EFEX. Mr Bennett would also create proposals using EFEX template documents.

[46] Mr Bennett had an annual sales budget. He received a monthly report tracking his sales targets and EFEX considered that the sales leader-board and associated reward was a critical business tool and an incentive for the sales team to perform and hit their targets.

[47] As stated earlier, Mr Bennett worked from the Adelaide office along with Mr Brogan. Mr Brogan had the experience with the EFEX business and Mr Bennett had some business experience and for the early part of the applicant’s engagement they worked collaboratively. Over time, and particularly following a direction from Mr Sheehan, Mr Bennett became more independent of Mr Brogan and there was less collaboration on sales activities. Mr Bennett also generally reported sales results, at least in a practical sense, directly to the General Manager, Sales and Marketing, Mr Hatherley who was based in Sydney.

[48] On some occasions, Mr Bennett was required to perform non-sales functions – including deliveries, due to the small size of the Adelaide Office and absence of technical staff on the ground. These aspects were relatively limited. In addition, Mr Bennett was also requested on occasions to attend Mr Sheehan’s Adelaide home to await deliveries of personal items. In reality, these occasions were associated with both the business and personal relationships between the parties.

[49] Mr Bennett worked from some leads provided by Mr Brogan and by EFEX more generally; however, he was also expected to, and did, develop his own leads and utilise previous business contacts.

[50] There is a significant dispute about the requirements for Mr Bennett to work standard business hours. There is no evidence of any formal policy or express requirements although I accept that a requirement might arise more informally.

[51] Based upon the evidence, I find that Mr Bennett would be in the EFEX office for a period on most weekdays and that most of the appointments with clients occurred during normal business hours, with some limited weekend work. However, the evidence is that this was largely the result of the desirability for Mr Bennett and Mr Brogan to liaise and work together on matters and that most of the clients were available at these times. Mr Bennett was not expressly required to seek permission to be “absent” or necessarily to advise when and where he was working. He was able to attend to University commitments and private matters largely as he chose and made appointments with EFEX clients that suited both the clients and himself.

[52] The flow of information and accountability expectations was focused upon sales results. Although there was apparently product information and related sales information, and Mr Bennett did participate in sales conferences and training, there is no evidence that he was formally instructed about the detailed manner in which he was to pursue sales.

[53] There is also a dispute about the context and implications of the sales training provided to Mr Bennett and EFEX. Amongst other training that may have been involved, Mr Bennett attended the annual sales conference, which occurred in about September each year, and a 2-day “Sales Extra” training conference together with follow-up on-line sessions. It is a reasonable inference that Mr Bennett was expected to attend the annual sales conferences, which were organised and paid for by EFEX. Mr Bennett also attended sales training in the immediate lead up to his commencement. There is no direct evidence that he was formally directed to attend or that such a direction would have been required given that the expectation was clear and Mr Bennett wished to do so.

[54] However, in relation to the “sales extra” training, I find that this was offered to Mr Bennett, he was invited to attend, and that such was not expressly required by EFEX. This was also funded directly by EFEX.

[55] There are some other examples of control exercised by EFEX. In July 2019, Mr Sheehan required Mr Bennett and Mr Brogan to work more independently of one another in an attempt to increase the overall sales productivity of the Adelaide office. Further, in the same year, Mr Bennett had returned from an overseas holiday, during which he continued to submit invoices and be paid, and was intending to travel to Sydney a day earlier than was otherwise expected to attend a function for the Chief Operating Officer. Mr Sheehan instructed the applicant not to do so. In addition, I find that after Mr Bennett had attended a client’s premises in the light of a complaint about how the site was left by installers being used by EFEX, Mr Sheehan instructed the applicant, in effect, that he should not be doing that, but rather concentrating on sales.

[56] The evidence reveals that Mr Bennett did undertake some very limited personal work for other people or organisations while engaged by EFEX. This was largely associated with former business clients and some potential or actual EFEX clients but did not involve any conflict with EFEX or its business activities. Mr Brogan and EFEX did not hold any concerns about this activity or when it was undertaken provided that the sales targets were met. There is no indication that Mr Bennett was formally required to seek permission or to report any such activities.

[57] Mr Bennett, through the provision of the invoices from the Bennett Enterprises Trust to EFEX, was paid $10,000 plus 10% GST, making a total of $11,000 per month. This amount was paid without deduction of any PAYG or any other tax and no superannuation contribution was made by EFEX or Mr Bennett.

[58] The monthly payment did not vary according to sales results or any other variable factor.

[59] Mr Bennett did not have an EFEX issued mobile phone but rather used his personal mobile phone for work purposes. No phone allowance or similar reimbursement was included in the monthly invoice sent to EFEX and Mr Bennett did not otherwise claim any form of reimbursement from the respondent for his phone use.

[60] Mr Bennett was issued with an EFEX laptop. However, he had a personal Apple laptop and another device that he brought to work on most occasions. Other than some very limited use where the Apple software was preferred by Mr Bennett, the evidence is that he did not regularly use his own IT equipment for EFEX work purposes. Rather, when on the limited occasions he was using his own equipment in the office, Mr Bennett was generally undertaking his study or other non-work related activities.

[61] Mr Bennett used his own car to undertake his sales work, such as to travel to clients and potential clients. He did not claim, and was not paid any form of, reimbursement for the use of his private car during his engagement with EFEX.

[62] In relation to absences where Mr Bennett was not performing EFEX activities, it is clear that these did not impact upon the payments that were made. Invoices were issued without reference to these absences and there was no suggestion that he would not be paid in full. Other than the courtesy to advise EFEX when he would be absent for a significant period, such as during the overseas or other holidays, there does not appear to be any requirement or firm expectation that he was to advise EFEX of his absence. I do however accept that Mr Bennett generally did so and kept in regular contact with Mr Brogan as the State Manager.

[63] Mr Bennett regularly attended the company’s corporate box at the football to entertain clients. He also was invited to, and did, attend company race days and the Christmas party. The costs of these events were met by EFEX.

[64] In late October 2019, Mr Brogan advised Mr Bennett that the payments structures and related arrangements were to change in the Adelaide Office to reflect those applying elsewhere. He was further advised that these new arrangements would involve more emphasis upon performance rather than a flat payment. I observe that the concentration on the basis of the payment evident in this discussion, rather than any broader conceptualisation of the nature of the engagement, is consistent with the earlier discussion leading to the formation of the relationship. In the absence of further information being provided to Mr Bennett from head office about these changes, Mr Brogan subsequently prompted some contact with the applicant from the Chief Operating Officer (COO) to that end.

[65] On 1 November 2019, EFEX made a written offer of employment to Mr Bennett. Amongst other features of this offer:

  The contract was stated to be for full-time employment underpinned by the Business Equipment Industry Award 2010;

  It purported to provide for a six-month probationary period;

  It provided for 38 hours per week with reasonable additional hours;

  The remuneration was to be a fixed base salary of $60,000 per annum (to be reviewed annually), superannuation, a motor vehicle and telephone allowance plus “uncapped” commission on sales above the sales required to meet the base employment costs based upon a formula set out as an appendix to the contract;

  Leave entitlements in accordance with the National Employment Standards; and

  Provisions relating to company expenses, travel and equipment; and relatively standard employment related provisions dealing with notice, intellectual property and related matters that would be present in many professional contracts.

[66] The nature of the work to be undertaken was largely the same as that already being performed by Mr Bennett and it confirmed that he would continue to report to Mr Brogan. I note that Mr Brogan has been engaged on what appears to be a similar (employment) relationship from December 2019.

[67] The letter of offer also provided the following:

“Once this document is signed by you, it will become a binding contract of employment between you and EFEX.

However, if you do not return a signed copy of this letter to EFEX by 7 days from date of this document, but attend work, we will assume by your attendance and behaviour that you accept the terms being offered to you.” 19

[68] During a discussion on that same day, Mr Bennett indicated concerns to the COO at the absence of notice and was advised that as a contractor he had “given up rights and benefits” and Mr Bennett indicated, in effect, that his status could be seen as employment as he doesn’t “work for anyone else.” Mr Bennett’s evidence is that the COO stated “You do not want to go legal”  20 and indicated that further information would be provided.

[69] On 6 November 2019, Mr Bennett received a phone call from Mr Sheehan and Mr Bennett confirmed that he was not happy about the change and that there was no previous conversation with him about a performance-based contract.

[70] On 8 November 2019, Mr Sheehan advised Mr Bennett, through a text message conversation that involved Mr Bennett seeking further time to consider the impact of the offer upon him, that:

“Ok I understand. I’m finishing your current contract arrangement up, effective today. If you’d like to take a sales role I’ll leave that decision up to you, but until I get some clarity on which way you’d like to go, I’ll take it that you no longer work here and have your email etc closed down. Please leave your notebook with Dean.”. 21

[71] Mr Bennett was not given notice or paid in lieu of notice.

[72] As at the time of the hearing, Mr Bennett had not completed either personal or business taxation returns covering the period of his involvement with EFEX. Mr Bennett claimed that this was on the basis that he was unsure about the correct characterisation of the relationship. However, although the issue is now being litigated, there is no evidence that Mr Bennett questioned this aspect with EFEX prior to the events leading to the cessation of the contract.

[73] There is no indication that Mr Bennett was obliged by EFEX, or did, hold any insurances in relation to his work with the respondent.

5.2 Application of the indicia

[74] In matters of this kind, the written arrangements between the parties provide at least some context for the assessment of the terms of that arrangement. In this case, there are no written arrangements summarising the engagement, and this means that the assessment of the respective rights and obligations must be made primarily from what was actually done, and to a degree, said about those rights.

[75] The underpinning close personal relationships between the parties that has influenced the formation of the arrangements and operated through the period, also provide some additional context and complexity when assessing the relevant indicia.

Control

[76] In applying this consideration, it is important to observe that “the indicium of a principal or employer’s control over an independent contractor or employee is not an absolute measure. There are degrees of control, and control can manifest in various ways, and may take on different complexions.” 22 Further, there are elements of control in every contractual relationship and it is the nature and extent of the control that is relevant.

[77] In this case, there are elements of control evident in how the relationship was conducted more consistent with employment. These included the apparent capacity for EFEX to control the extent to which Mr Bennett and Mr Brogan collaborated on their work. It is also evident that EFEX had the capacity to direct that non-sales related activities be, or not be, undertaken by Mr Bennett. Further, EFEX controlled when Mr Bennett would travel interstate and he was required to work within the EFEX systems and utilise the respondent’s templates and commercial documentation for sales activities.

[78] Although Mr Bennett was given and required to undertake EFEX sales training, the evidence does not reveal that EFEX sought to control how Mr Bennett went about the details of his sales activities and he had some freedom to choose which leads were to be followed up and, generally, when he was to perform his work activities. Further, for reasons set out earlier, the performance of some non-sales related activities associated with Mr Sheehan’s Adelaide residence by Mr Bennett is not a strong indicator of control given the circumstances evident in this case.

[79] I have earlier found that Mr Bennett had capacity to influence when he performed his work. This must be assessed in the context of the nature of the work - being the professional sales role, the practical implications of the reporting arrangements and the requirements to work within the EFEX systems, and the friendships between the three main players.

[80] In this particular case, the indicium of control when assessed on balance is a factor that weighs for a finding that an employment relationship existed.

The entitlement to work for others

[81] This consideration is about the entitlement for the applicant to undertake work for others. There were very limited examples of such work and in practice this would be no more than one could expect in a professional type employment relationship. However, I have found that EFEX was aware of the actuality or potential for such work and indicated that there were no concerns about such taking place. Given the discussions between Mr Brogan and Mr Bennett relating to these matters, such would also have been reasonably understood by Mr Bennett.

[82] On that basis, I find that there as an entitlement for Mr Bennett to work for others whilst subject to the engagement with EFEX. In practice, this always operated subject to the requirements of Mr Bennett’s sales performance and was not undertaken as a commercial element of Mr Bennett’s activities to any realistic degree.

[83] In the circumstances, this is a factor that weighs very marginally against a finding that an employment relationship existed.

A separate place of work and the advertising of the services

[84] Mr Bennett worked from an office provided by EFEX, used the respondent’s email system and documentation, and there is no suggestion that he marketed or promoted his services independently of the respondent’s business. Indeed, Mr Bennett was marketed as being EFEX’s Business Development Manager.

[85] Accordingly, this is a factor that weighs for a finding that an employment relationship existed.

The provision and maintenance of tools and equipment

[86] There are competing elements arising from this indicium. Mr Bennett had a laptop and business cards provided to him by EFEX. EFEX also provided the email system and computer-based tools and applications to perform his work. Mr Bennett also utilised the office and the associated facilities supplied by EFEX without any costs being applied to him.

[87] However, Mr Bennett supplied his mobile phone and used his own vehicle, without seeking or being paid any reimbursement. These are also essential tools of trade given the nature of the activities being undertaken.

[88] On balance, this is a factor that marginally weighs for a finding that an employment relationship existed.

The entitlement to delegate or sub-contract work

[89] There is no indication that Mr Bennett had an entitlement to delegate or subcontract the work being undertaken by EFEX. Rather, the presumption appears to be that he was required to undertake that work personally. Albeit, for a period by working in conjunction with the State Manager, Mr Brogan.

[90] Accordingly, this is a factor that weighs for a finding that an employment relationship existed.

The right to suspend or dismiss

[91] There are no express rights of this kind evident in this relationship. The capacity to terminate the relationship would be implied by necessity and this is what EFEX did in the context of the absence of agreement from Mr Bennett to move to the new arrangements.

[92] Such rights tend to exist in any business or employment relationship and this aspect is not significant in this case.

The public presentation of the workers (uniforms and other badging)

[93] Although Mr Bennett was not required to wear a uniform, he was presented to the world and the clients of EFEX as representing the respondent.

[94] Accordingly, this is a factor that weighs for a finding that an employment relationship existed.

Deduction of income tax – Goods and Services Tax (GST)

[95] The taxation arrangements were evident from how payment obligations were created and met. These were knowingly entered into by both parties as a result of the agreement to adopt the same arrangements applying to Mr Brogan.

[96] The fact that the payments claimed and made to Mr Bennett expressly included GST and he was expected to deal with any applicable GST and make the necessary arrangements, and given that none of the income was treated as being subject to PAYG taxation, weighs against a finding that an employment relationship existed.

The provision of invoices/periodic payment of “wages”

[97] The provision and payment linked to invoices weighs against a finding that an employment relationship existed. Although Mr Bennett modelled these arrangements on the those applying to Mr Brogan, I find that he did have some understanding about the implications and agreed to provide invoices and be paid on that basis. However, it was a reasonable for Mr Bennett to understand that as he was to be engaged upon the same basis as Mr Brogan, the provision of invoices was required by EFEX.

[98] The fact that a set payment was made to Mr Bennett that was not referenced to the completion of tasks completed is more consistent with employment.

[99] On balance, the payment arrangements marginally weigh against a finding that an employment relationship existed.

Paid holidays and leave

[100] There was no express provision of paid leave of any description as part of the arrangements. However, Mr Bennett’s capacity to issue the full invoice amount and to be paid the agreed payment was not impacted by his absence from the workplace or any interruption to the performance of work due to illness or personal absence.

[101] Whilst this may be consistent with the notion that there was a form of “leave” provided, it is also consistent with the notion that there was an expectation of work output that was not reliant upon hours worked or any particular commitment to a set pattern of work. There was also no express limitation on the extent of any “leave” or any of the normal parameters or records that one would expect in leave arrangements applicable to employment.

[102] I have found that he was not expressly required to provide notice of his absences or seek permission but there was a general expectation that he would advise of any significant time away which he did.

[103] As a result, in this case, this arrangement was not a form of leave in the conventional sense and I do not consider that this factor is of particular assistance in determining the nature of the relationship. 23

The nature of the work (profession, trade or special calling)

[104] Mr Bennett was described as being EFEX’s Business Development Manager. He was, in effect, a professional salesperson. The nature of sales-related occupations does not inform the present assessment, other than to provide some context in which the practical elements of control and remuneration are assessed.

The creation of goodwill and other saleable assets

[105] Mr Bennett did not have any capacity to generate goodwill or saleable assets as a result of his work with EFEX.

[106] Accordingly, this is a factor that weighs in favour of a finding that an employment relationship existed.

The proportion of remuneration on business expenses

[107] There is very little objective material before the Commission to inform this consideration. There are a range of business expenses that are evident from the bank account operated by the Bennett Enterprises Trust; 24 however the evidence is that some personal expenses were also put through that account.

[108] I would accept that there were some business expenses incurred by Mr Bennett and put through the trust including the (additional) operating costs of the vehicle and the mobile phone (and potentially the personal laptop) to the degree that they were used for work purposes. In the case of the vehicle and phone, this was more significant; however, the overall business expenses are likely to have been a relatively small proportion of the remuneration.

In business for himself?

[109] When viewed as practical matter, it is evident that Mr Bennett was not in business for himself. Rather, he was working for, and in, the business of EFEX. EFEX carried all of the risks in the relationship and there is no sense in which Mr Bennett conducted a business beyond the impression created by the payment arrangements. This is a factor that weighs in favour of a finding that an employment relationship existed.

5.3 The overall assessment

[110] As would be clear from French Accent, the Commission’s present role is to ascertain the objective character of the relationship having regard to the terms of the contractual arrangements and the totality of the relationship. The indicia discussed earlier in this Decision are part of this assessment but are not exhaustive and must also be weighed according to their importance in the circumstances being considered. It is also not appropriate to treat them as part of a mechanical exercise; rather, it is the overall effect that must be assessed.

[111] As stated by White J in Fair Work Ombudsman v Ecosway Pty Ltd25 at [77]:

“:… having examined the totality of the relationship and all the various indicia the Court should come to a conclusion by standing back and examining the overall effect of the facts as found: Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448 at [35].”

[112] There are some competing indicia however in my view the more significant factors tend to weigh in favour of this particular relationship being that of employment. These include the personal contractual obligations, the existence of some features of control more consistent with employment, the nature and basis of the remuneration, the presentation of Mr Bennett as being part of EFEX’s business and the inability for Mr Bennett to generate goodwill and related features. Further, Mr Bennett was not to any realistic degree conducting a business of his own in dealings with EFEX. All of the contrary factors outlined earlier, including the capacity to perform other work and study (provided that it did not detract from sales efforts for EFEX), the absence of close supervision and day to day instruction, and the invoice-based payment arrangements, must also be weighed into the assessment to inform the overall picture.

[113] The most troubling aspect of this case is that both parties entered into the relationship with at least some general understanding that they were going to treat this as a (non-employment) relationship with payments based upon invoices. The discussions about this aspect were superficial and were based around the form of payment arrangements; however, it is evident to me that Mr Bennett did have at least some understanding about the implications of this characterisation and he operated in that context, including that there would be no PAYG taxation deducted from the payments made, which were also to include GST.

[114] EFEX contends that in this case, the parties’ understanding of their relationship should be decisive. It relied upon the decision of White J in Fair Work Ombudsman v Ecosway Pty Ltd26at [75], (references excluded):

“The ‘label’ which the parties themselves place on their relationship is relevant but not conclusive. The parties cannot deem the character of their relationship to be something it is not ... However, when the competing indicia are reasonably evenly balanced, the parties’ own understanding of their relationship may be decisive ...”

[115] This statement, and the authorities supporting the conclusion, appear to be in the context of a written agreement between the parties expressly labelling the relationship and setting out some or most of the operative terms. I have considered this matter on the basis that this approach is also applicable here, despite the absence of those factors. I observe that in the present application, the label was used in conversation without any real discussion about the consequences, other than the payments would be based upon a set amount invoiced to EFEX. Further, White J in the same matter also placed no weight upon statements made by one of the parties about the nature of their relationship and treated them as the subjective intentions of the parties. 27

[116] The role to be played by the labels and self-description used by the parties was also recently summarised by the majority of the Full Bench in Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats 28 when it referred to existing Court authority and said:

“[40] More recent decisions of the Federal Court Full Court have elucidated this principle in the context of the identification of whether an employment relationship exists. In ACE Insurance Limited v Trifunovski, Buchanan J (with whom Lander and Robertson JJ agreed) said that “the nature of the relationship may be legitimately examined by reference to the actual way in which work was carried out”. In Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd, North and Bromberg JJ (with whom Barker J relevantly agreed) said that: “...appellate courts in Australia and the United Kingdom have been particularly alert, when determining whether a relationship is one of employment, to ensure that form and presentation do not distract the court from identifying the substance of what has been truly agreed. It has been repeatedly emphasised that courts should focus on the real substance, practical reality or true nature of the relationship in question...”. And in WorkPac Pty Ltd v Skene the Full Court said “The conduct of the parties to the employment relationship and the real substance, practical reality and true nature of that relationship will need to be assessed.” (references omitted)

[117] In this case, I consider that the real substance and the practical reality is the Mr Bennett was working for EFEX as an employee. The totality of the relationship, when considered in context is much more consistent with the notion of employment and the label applied (and the payment arrangements) are not such as to lead to a contrary outcome.

6. Conclusions

[118] I have found that Mr Bennett was engaged as an employee. I also find that he was an employee for the full period of his engagement with EFEX. Given satisfaction with the other requirements to make this application, I find that the Commission has the necessary jurisdiction to deal with the matter.

[119] In the circumstances, I will shortly convene a directions conference to program the hearing of the substantive application. I will also have the matter assigned to another Member of the Commission to convene a conciliation conference in advance of any scheduled hearing.

COMMISSIONER

Appearances:

W Snow, of Finlaysons Lawyers, with permission for Mr Bennett, the Applicant.

P Moorhouse, of counsel, with N Town of Kardos Scanlan, both with permission for EFEX Group Pty Ltd, the Respondent.

Hearing details:

2020
Adelaide by Skype conference to various locations
May 29.

Printed by authority of the Commonwealth Government Printer

<PR719336>

1 Kaseris v Rasier Pacific V.O.F [2017] FWC 6610 at [46].

2 Section 399(1) of the FW Act.

 3   [2011] FWAFB 8307.

 4   Relying upon Stephanie Prosdocimi v Addiction Treatment T/A Dayhab [2019] FWC 4586 (Addiction Treatment).

 5   Relying upon Agampreet Singh v Arief Family Trust T/A Arva Freight [2019] FWC 8259 (Arva Freight).

 6   Exhibit A1.

 7   French Accent at [30](1).

 8   Relying upon the authorities summarised in CFMMEU v Personnel Contracting Pty Ltd [2019] FCA 1806 and Tattsbett Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46.

 9   Citing Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29; Tattsbett Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62 at [70].

 10   Citing Fair Work Ombudsman v Ecosway Pty Ltd [2016] FCA 296 at [75].

11 [2011] FWAFB 8307.

12 [2011] FWAFB 8307 at [30].

13 Hollis v Vabu (2001) 207 CLR 21.

14 Per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ.

15 Hollis v Vabu (2001) 207 CLR 21.

16 See also On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 [(2011) 206 IR 252 per Bromberg J for a further discussion of the ‘ultimate question’ cited in French Accent at [30].

 17   See the discussion of the various authorities in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [148] to [154].

 18   Exhibit R1. References to “Broges” are Mr Brogan and “GB” means Mr Bennett himself.

 19   Letter of offer – exhibit A2.

 20   Applicant’s witness statement – exhibit A1 at 32.

 21   Para 38 of exhibit A1.

 22   Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358 at [50].

 23   See also Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358 at [45].

 24   Exhibit R4.

 25   [2016] FCA 296.

 26   [2016] FCA 296.

 27   [2016] FCA 296 at [171], citing Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352.

 28   [2020] FWCFB 1698.