DECISION

Fair Work Act 2009
s.604—Appeal of decision

EFEX Group Pty Ltd
v
Gerrard Bennett
(C2020/5748)

Appeal against decision [2020] FWC 2503 of Commissioner Hampton at Adelaide on 2 July 2020 in matter number U2019/13355.

Overview

[1] EFEX Group Pty Ltd (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against a Decision 1 of Commissioner Hampton issued on 2 July 2020. The Decision dealt with an application (the application) by Gerrard Bennett (the Respondent) for an unfair dismissal remedy. The Appellant opposed the application on the basis that the Respondent was not protected from unfair dismissal as he was not an employee. In the Decision, the Commissioner found that the Respondent was engaged as an employee, thereby enlivening the jurisdiction of the Commission to deal with the matter.

[2] On 29 July 2020, the Commission made an order by consent to stay the Decision pending the hearing and determination of this appeal or until further order of the Commission. 2

[3] The matter on appeal was the subject of a telephone hearing on 3 September 2020. The Appellant and the Respondent sought permission to be legally represented. The Full Bench granted the parties’ applications for permission to be represented on the appeal.

[4] The Full Bench has heard the parties on permission to appeal and the substantive appeal.

The decision under appeal

[5] We note the factual matrix summarised by the Commissioner at [33]-[73] in the Decision. In short, the following was outlined:

•  The Appellant conducts a services business providing voice, data, printing management and other technology-based services. The Respondent commenced with the Appellant on 1 February 2018. The Respondent’s role essentially was to find and follow-up on sales leads, and seek to make sales of the Appellant’s services.

•  The Commissioner noted that in late October 2019, the Respondent was advised that the payment structures and other arrangements were to change in the Adelaide office (where the Respondent was primarily working) to reflect those applying elsewhere. On 1 November 2019, the Appellant made a written offer of employment to the Respondent which detailed, among other matters, that the Respondent would be employed full-time, work 38 hours per week with reasonable additional hours, and be remunerated on a fixed base salary of $60,000 per annum plus certain commissions. The nature of the work and reporting lines were proposed to be largely the same.

•  The Respondent communicated his discontentment with the proposed arrangement. On 8 November 2019, Mr Nick Sheehan, the Chief Executive of the Appellant, advised the Respondent through a text message conversation concerning the Respondent 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.” [footnote omitted]

•  The Commissioner noted that the Respondent was not given notice or paid in lieu of notice.

[6] After applying various indicia relevant to a consideration of whether there was an employment or contractor relationship between the Respondent and the Appellant at [74]-[109] of the Decision, the Commissioner made the following relevant findings:

“[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 Ltd, at [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.

…

[117] In this case, I consider that the real substance and the practical reality is the [sic] 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.”

[7] The Commissioner went on to conclude:

“[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.”

Relevant principles

[8] In the Decision under appeal, the Commissioner was required, given the jurisdictional objection at first instance, to determine whether the Respondent was an employee for the purposes of the application. As such, the question before the Commissioner was one of jurisdictional fact. Accordingly, we must determine whether the Commissioner reached the right conclusion as to whether the Respondent was an employee or contractor, 3 not simply whether the Commissioner’s ultimate finding was reasonably open to him.

[9] In Sammartino v Commissioner Foggo 4, the Full Court of the Federal Court noted the approach to be taken by a Full Bench of the former Australian Industrial Relations Commission in an appeal from a decision concerning whether a worker was an employee at law:

“[9] On an appeal from such a decision, if leave to appeal is given, the Commission is plainly not confined, in its consideration of the case, by principles that are found in cases such as House v The King (supra). In dealing with the appeal, the Commission is under a duty to consider all of the proven facts and those facts that have been admitted, and any inferences to be drawn from those facts, to arrive at its decision. It is also under a duty to determine the content of any point of law upon which its decision might depend. If, in undertaking any of these tasks, it finds that the Commissioner has made an error of law or an error of fact, it can exercise its powers under s 45(7).

[10] It will find an error of law or an error of fact if the Commission reaches a different conclusion on the facts or on the law than that arrived at by the primary decision-maker. Further, what must be shown in order to succeed on an appeal will plainly have a bearing on whether leave should be granted.”

[10] In the Decision, reference was made at [27]-[32] to the relevant principles concerning the approach to distinguishing between employees and independent contractors, including the principles summarised in Jiang Shen Cai trading as French Accent v Do Rozario (French Accent). 5 As we have noted earlier, the Commissioner applied various indicia relevant to a consideration of whether there was an employment or contractor relationship between the Respondent and the Appellant and made relevant findings on the evidence before him.

Consideration

Ground one

[11] Ground one of the appeal contends that the Commissioner erred in holding at [117] that the practical reality was that the Respondent was working for the Appellant as an employee. This is because such a holding was glaringly improbable and contrary to a compelling inference to the opposite effect arising from facts found by the Commissioner or facts which were not the subject of challenge by the Respondent. Such facts included the Respondent underplaying the nature and extent of discussions regarding his engagement as a contractor, the use of the word “contractor” and references to invoicing arrangements in such pre-engagement discussions, the Respondent’s education and business background demonstrating that his engagement as a contractor constituted a free choice on his behalf (rather than one involving a dominant contracting party or a sham arrangement), the relevant taxation arrangements and/or obligations and discussions around those matters, and the flexibility, autonomy and free rein provided to the Respondent in respect of working arrangements including assisting a former colleague win a contract.

[12] In advancing this ground of appeal, the Appellant made oral submissions in relation to the Commissioner’s treatment of the indicium of control and the taxation arrangements between the parties, to which we will turn to shortly. However, first it is necessary to examine the multi-factorial assessment undertaken by the Commissioner and his ultimate finding at [117] in the Decision.

[13] In ascertaining the overall effect of the relationship between the Appellant and the Respondent, which requires an informed, considered and qualitative appreciation of the whole relationship, 6 it is apparent that a number of significant factors point to the existence of an employment relationship. These include the factors mentioned at [112] in the Decision.

[14] The first ground of appeal, as identified by the Respondent, in substance is that the Full Bench ought re-weigh the indicia of the multi-factorial test with a different emphasis, in turn producing a different result for the Appellant. This contention does not disclose appealable error. There is no error in the approach taken by the Commissioner in weighing the importance of certain indicia and subsequently finding that an employment relationship existed because certain indicia outweighed other indicia (including the indicia that indicated an independent contractor relationship).

[15] However, in any event, having reviewed all the evidence before the Commissioner, including the transcript of the proceedings, we are satisfied that the evidentiary material is sufficient to enable to us to reach the conclusion that an employment relationship existed between the Appellant and the Respondent. Specifically, we agree with the Commissioner’s assessment that factors militating against the finding of an employment relationship, including (in this matter) the Respondent’s entitlement to work for others and payments arrangements, 7 are of limited weight. We reject the contention that the Commissioner’s finding at [117] was “glaringly improbable” in the sense discussed in Fox v Percy8.

[16] We now turn to the indicium of control in the relationship and taxation arrangements, which, for the reasons which follow, do not change our conclusion at [15] above.

Control

[17] The Appellant contended that the Commissioner failed to adopt the nuanced approach required when dealing with the indicium of control.    In Jensen v Cultural Infusion (Int) Pty Ltd (Jensen), Wheelehan J observed that “[t]here are degrees of control, and control can manifest in various ways, and may take on different complexions.” 9 We accept the Respondent’s submission that the principle relied on by the Appellant in Jensen was one expressed at a high level of generality. Accordingly, we are unable to discern how the Commissioner’s approach was disharmonious with this principle. The Commissioner assessed the elements of control in the relationship, and we would agree with his findings and the approach taken at [76]-[80] in the Decision.

Taxation arrangement

[18] We accept that taxation arrangements between the parties was a relevant consideration and one that weighed in favour of a finding of a contractor relationship.

[19] However, we reject the proposition that this ought to have been determinative or that the Commissioner ought to have gone further and found that the relationship was entered into for taxation purposes. We note the Respondent’s submissions on this topic, with which we are in substantial agreement. The Commissioner reviewed the evidence concerning the taxation implications of the relationship between the parties at [95]-[96] in the Decision. The Commissioner noted the fact that the Respondent received payments that included GST, and this weighed against a finding that an employment relationship existed. However, when the relationship was assessed as a whole and weighed against competing indicia, this factor was deemed not enough for the relationship to be characterised as a contractor relationship.

[20] The Appellant in substance advanced the submission that the taxation arrangements between the parties created a tax advantage for the Respondent. The Commission’s task in this matter was to deal with the question of whether the Respondent was an employee. The Commission is not a court (or the Australian Taxation Office) empowered to deal with the tax arrangements entered into by parties. The evidence before the Commission, consistent with how one weighs whether there existed an employment relationship, was that the matter of GST and PAYG arrangements between the parties weighed “against a finding that an employment relationship existed.” We agree. The role of the Commission is to weigh all the relevant indicia and determine the appropriate characterisation of the relationship. That is what the Commissioner did.

[21] No appealable error is disclosed from the Commissioner’s approach. Appeal ground one would fail and does not enliven the public interest.

Ground two

[22] The second ground of appeal contends that the Commissioner erred by not giving effect to matters incontrovertibly established by the evidence, including what the Commissioner himself found at [113] of the Decision, in respect of the parties’ understanding that the engagement would be a non-employment relationship. Further, the Appellant orally submitted that the Commissioner’s preference for the evidence of Mr Dean Brogan, the Appellant’s Branch General Manager, South Australia, over that of the Respondent, together with the uncontested evidence, warranted a stronger finding than that made at [113].

[23] There is no error of fact or finding in the Decision that is glaringly improbable. No counterintuitive result arises from the Commissioner identifying the way in which the parties understood the nature of their engagement and his subsequent finding that an employment relationship existed. That the parties had a general understanding that the engagement would be a non-employment relationship is not determinative. As stated by Isaacs J in Curtis v Perth & Fremantle Bottle Exchange Co Ltd:

“Where parties enter into a bargain with one another whereby certain rights and obligations are created, they cannot by a mere consensual label alter the inherent character of the relations they have actually called into existence. Many cases have arisen where Courts have disregarded such labels, because in law they were wrong, and have looked beneath them to the real substance.” 10

[24] A summary of recent judgments of the Full Court of the Federal Court concerning the effect of labels in the context of the substantive nature of the relationship was conveniently provided by a Full Bench of the Commission in Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats 11:

“[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.” [footnotes omitted]

[25] The authorities make clear parties cannot deem the character of their relationship to be something it is not. 12 We concur with the Commissioner’s ultimate finding at [117] that the relationship was one more consistent with the notion of employment, notwithstanding the label applied and the relevant payment arrangements. We see no error in the Commissioner’s conclusion, notwithstanding his general preference for the evidence of Mr Brogan over that of the Respondent at [23]-[25]. Having considered the totality of the evidence, it is apparent that the general understanding of the parties as to the nature of their working arrangement belied the true substance of the relationship. Therefore, appeal ground two would fail and does not enliven the public interest.

Ground three

[26] Ground three seeks to impugn the Commissioner’s observations at [114]-[116] in the Decision in relation to the parties’ general understanding of the way in which they would treat their relationship. It was contended that, after having found that both parties had a common understanding of their relationship at [113], the Commissioner erred by dismissing the contention that this was “decisive”, as it was based on a statement made by one party about the nature of the relationship. It is said that this contradicts the Commissioner’s finding at [113], did not appropriately deal with the argument advanced and misapplied the stated passage from Fair Work Ombudsman v Ecosway Pty Ltd 13 (“Ecosway”’) to the facts. Further, the Appellant submitted that the label of independent contractor used in preliminary conversations between October to November in 201714 was not without substance, having regard to the Respondent’s background, education and the fact that the Appellant was not a dominant contracting party.

[27] It is apparent from [117] of the Decision that the Commissioner did not deem the indicia to be evenly balanced, meaning that the parties’ own understanding of their relationship was not decisive in the sense described in Ecosway. This is evident at [117] where the Commissioner observed that when considering the “totality of the relationship”, it was “much more consistent with the notion of employment” 15. Accordingly, the Commissioner in substance rejected the Appellant’s submission.

[28] The Commissioner’s approach at [115] does not contradict his finding at [113]. The Commissioner observed that no significant weight was to be placed on the label ascribed by the parties in the preliminary conversations. 16 This was because, for instance, the preliminary conversations were “superficial”, non-substantive in nature and “were based around the form of payment arrangements”. We would agree with this assessment. The final sentence at [115] merely observes that, in Ecosway, White J placed no weight upon statements made by one of the parties about the nature of the relationship. The Commissioner’s approach does not amount to a misapplication of the cited passage from Ecosway.17

[29] Notwithstanding the “general understanding” of a non-employment relationship with payments based on invoices and associated taxation arrangements, as identified by the Commissioner at [113], the substance of the relationship, considered overall, indicated one of employment. For the reasons aforementioned, appeal ground three would fail and does not attract the public interest.

Ground four

[30] The fourth ground of appeal contends that on a rehearing of the matter on appeal, the Full Bench should give appropriate weight to the Commissioner’s preference of the evidence of the Appellant’s witness (Mr Brogan) over the evidence of the Respondent. To the extent necessary, we have dealt with this matter. The Appellant did not further press this ground of appeal in its submissions, a matter noted in the hearing by the Respondent without any demur from the Appellant. In such circumstances, it is unnecessary for the Full Bench to further deal with this ground.

Ground five

[31] The fifth ground of appeal is that the Commissioner failed to provide adequate reasons for his finding that the indicium of control favoured the relationship being one of employment, and for his dismissal of the Appellant’s contention that the parties’ common understanding of their relationship may be decisive. It was contended that the Commissioner’s findings at [77] of the Decision were not weighed against his preference of the evidence of Mr Brogan where it conflicted with the Respondent’s evidence and the unchallenged evidence surrounding the working arrangements. It was contended that, in finding that an employment relationship existed without explaining how that holding could be reconciled with his findings, the Commissioner’s reasons were inadequate.

[32] The Full Bench of Fair Work Australia in Barach v University of New South Wales 18 (“Barach”) enunciated some of the principles concerning the obligation for a decision-maker to provide reasons in a decision:

“[16] The duty to give adequate reasons for decision has been considered on many occasions. Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.” [references omitted]

[33] On a fair reading of the Decision, and having regard to the principles outlined in Barach, we are unable to discern a failure on the Commissioner’s behalf to sufficiently express reasons concerning his finding on the indicium of control. The Commissioner at [78]-[79] acknowledged the freedom that the Respondent had over when, for example, he was to perform his work activities. However, this evidence was weighed against the nature of the work undertaken, as is apparent at [80] in the Decision.

[34] Finally, we reject the contention that the Commissioner failed to provide adequate reasons concerning the parties’ common understanding of their relationship, a matter referred to in the Appellant’s outline of written submissions (but not in the appeal grounds themselves). We have dealt with this contention in substance in the context of the third ground of appeal. No appealable error is disclosed. Appeal ground five would fail and does not attract the public interest.

Should permission to appeal be granted?

[35] The Appellant submitted that permission to appeal should be granted because:

•  the manner in which the Commissioner applied the legal principles to the facts of this matter is disharmonious when compared to recent decisions concerning similar matters;

•  the Commissioner’s approach to the authorities involved an erroneous and confused application of the authorities or, at the very least, there is a tension between the application of various propositions or authorities - which should be resolved by a Full Bench to determinatively provide for consistency across the range of future applications involving issues on the distinction between employees and independent contractors;

•  the Commissioner applied an incorrect approach to a number of material issues before him, such that it is in the public interest to correct that approach; and

•  an injustice may result if leave to appeal is refused.

[36] We note that in referring to the “tension” the Appellant highlighted the judgment of the recent Full Court of the Federal Court, namely, Construction, Forestry Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd 19 (“Personnel Contracting”). The Respondent submitted that recent decisions said to be disharmonious with the Decision are not identified, that the Appellant does not identify the “tensions” between the authorities relied on and that the Appellant did not develop the nature of the material issues the Commissioner was said to have incorrectly approached.

[37] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. 20  There is no right to appeal and an appeal may only be made with the permission of the Commission.

[38] Section 400 of the Act applies to this appeal. It provides:

“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

[39] 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 of the Act as “a stringent one”. 21 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.22 The public interest is not satisfied simply by the identification of error, or a preference for a different result.23 In GlaxoSmithKline a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“… 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.” 24

[40] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 25 That the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[41] We are not satisfied that the grounds of appeal, individually or collectively, identify an arguable case of appealable error, so as to engage the public interest. Additionally, we reject the contention that the manner in which the Commissioner applied relevant legal principles to the facts was disharmonious when compared to recent decisions dealing with the characterisation of employer or contractor relationships. Rather, the Commissioner approached the question before him in accordance with established principles and authorities.

[42] Moreover, the Full Court of the Federal Court in Personnel Contracting observed that whilst limitations may exist to the multi-factorial approach when characterising a relationship that involves new and novel labour arrangements, the Court nevertheless did not disturb this approach. To this extent, the Commissioner’s application of the multi-factorial inquiry is consistent with Personnel Contracting, and we are unable to discern any “tension” arising from the authorities relied upon by the Commissioner.

[43] In considering whether this appeal attracts the public interest, we are not satisfied that:

•  there is a diversity of decisions at first instance for which guidance from a Full Bench is required;

•  the appeal raises issues of importance and/or general application to the Commission’s jurisdiction;

•  the Decision manifests an injustice, or the result is counter-intuitive; or

•  the legal principles applied by the Commissioner were disharmonious when compared with other Commission decisions dealing with similar matters.

Conclusion

[44] We find that, in totality, the evidence weighs in favour of the Respondent having been characterised as an employee. Having considered all the evidence, we find that the Commissioner’s conclusion that the Respondent was an employee of the Appellant was not an error on a jurisdictional fact. For these reasons, we are not satisfied, for the purpose of s 400(1) of the Act, that it would be in the public interest to grant permission to appeal. We are not persuaded that there is any other basis upon which permission should, as a matter of discretion, be granted. Were we minded to grant permission to appeal, we would, for the reasons stated, dismiss the appeal.

Order

[45] We order as follows:

•  Permission to appeal is refused.

•  The substantive part of the application in U2019/13355 is remitted to Commissioner Hampton.

VICE PRESIDENT

Appearances:

Mr A Harris QC for the Appellant.

Mr P Dean of counsel for the Respondent.

Hearing details:

2020.

Telephone hearing:

3 September.

Printed by authority of the Commonwealth Government Printer

<PR724549>

 1   Gerrard Bennett v EFEX Group Pty Ltd [2020] FWC 2503 (the Decision).

 2   PR721387.

 3   Voros v Dick [2013] FWCFB 9339 at [11]; Asia Pacific Cleaning Services Pty Ltd v Cook [2013] FWCFB 5320 at [24].

 4   Sammartino v Commissioner Foggo [1999] FCA 1231.

 5   [2011] FWAFB 8307.

 6   French Accent at [30].

 7   See paragraphs including [76]-[80], [89]-[90], [93]-[94], [98], [105]-[106] and [109].

 8   (2003) 214 CLR 118; [2003] HCA 22.

 9   [2020] FCA 358 at [50].

 10   [1914] HCA 21, 18 CLR 17.

 11   [2020] FWCFB 1698.

 12   Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 at [58] citing authorities mentioned therein.

 13   [2016] FCA 296.

 14   Decision [37], [39]-[40].

 15   Decision [117].

 16   Decision [37], [39]-[40].

 17   Ecosway at [75].

 18   [2010] FWAFB 3307; (2010) 194 IR 259.

 19   [2020] FCAFC 122.

 20   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.

 21   (2011) 192 FCR 78; (2011) 207 IR 177 [43].

 22   O’Sullivan v Farrer and another (1989) 168 CLR 210 at [216]-[217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 at [44]-[46].

 23   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266 (“GlaxoSmithKlineI”); Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

 24   GlaxoSmithKline at [27].

 25   Wan v AIRC (2001) 116 FCR 481 at [30].