[2020] FWCFB 6760
The attached document replaces the document previously issued with the above code on 17 December 2020.
Correction to typographical errors in [3] (first and second bullet points) and [12].
Associate to Vice President Hatcher
Dated 23 June 2021
| [2020] FWCFB 6760 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Aster Home Nursing Service Pty Ltd
v
Lisa Peel
(C2020/7305)
VICE PRESIDENT HATCHER |
SYDNEY, 17 DECEMBER 2020 |
Appeal against decision [2020] FWC 4782 of Commissioner Simpson at Brisbane on 8 September 2020 in matter number U2020/3569.
Introduction and background
[1] Aster Home Nursing Service Pty Ltd (Aster) has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Simpson issued on 8 September 2020 1 (decision) in relation to an application by Ms Lisa Peel for an unfair dismissal remedy against Aster. The decision concerned whether Mr Peel was a “person protected from unfair dismissal” within the meaning of s 382 of the Fair Work Act 2009 (FW Act) such as to entitle her to seek an unfair dismissal remedy. Before the Commissioner, Aster contended that Ms Peel had not been, at law, its employee, but had rather been an independent contractor. In the decision, the Commissioner rejected that contention and found that Ms Peel had been an employee of Aster and consequently was a person protected from unfair dismissal. Aster contends in its appeal that the Commissioner erred in reaching that conclusion.
[2] The statutory framework relating to the decision is as follows. Part 3-2 of the FW Act provides for a scheme pursuant to which persons may in prescribed circumstances apply for and obtain an unfair dismissal remedy. Relevant to these proceedings, s 390(1)(a) provides that the Commission must be satisfied that a person was “protected from unfair dismissal” at the time of being dismissed before it may make an order in the person’s favour for an unfair dismissal remedy. Section 382 defines when a person is “protected from unfair dismissal”, and the definition includes (in paragraph (a)) a requirement that the person be “an employee”. “Employee” in that provision means a “a national system employee” (s 380), which expression is defined by s 13 to mean, relevantly “…an individual so far as he or she is employed, or usually employed … by a national system employer…”. “National system employer” is defined in s 14, and it is sufficient for present purposes to say that it is not in contest that Aster falls within that definition. It is also not in dispute that, in order for a person to be a “a national system employee” in accordance with the definition in s 13, the person must be an employee at law of the relevant national system employer.
[3] The principal facts that were not in dispute or were firmly established by the evidence appear to be as follows. Aster is a business which provides nursing services to patients in their homes. Its patient base and revenue are obtained via contractual arrangements with government and other health organisations, principally the Department of Veterans Affairs (DVA). It engages qualified nurses for the purpose of providing its services. Ms Peel was engaged by Aster in November 2013 as a community registered nurse. It was a term of her engagement that she obtain an Australian Business Number (ABN) and enter into an agreement as a contractor. Ms Peel has entered into three successive contractor agreements with Aster during the period of her engagement. Each of these were in a standard form determined by Aster for the purpose of the engagement of all its in-home nursing workers. The most recent of these contracts, which was in place at the time her engagement terminated, was entered into on 5 February 2020 (2020 Contract). The 2020 Contract is entitled “Independent Contractor Agreement” and relevantly provides as follows:
• Clause 2.1 requires “the Contractor” (identified in Schedule 1 Item 1 as Ms Peel with an ABN of 20 731 658 858) to dedicate an appropriate time for the provision of the “Services” (defined in Schedule 1 Item 2 as being “In-home clinical nursing and/or personal care services asset out by the DVA "Notes for community nursing providers - Effective February 2019" which is located at: [internet address omitted] and the DVA "Terms and Conditions for the provision of Community Nursing Services" which is located at: [internet address omitted], and any other relevant DVA material”), and to provide the Services to a commercially acceptable and professional standard.
• Clause 2.2 provides that if the Contractor becomes incapable of performing the Services through illness or involuntary injury, then the Contractor must immediately notify “The Company” (Aster) so that the Company may engage another contractor to provide the Services.
• Clause 2.3 provides that the Company may vary the Services by increasing, decreasing or omitting any of them, changing their character or content, changing their direction or dimensions, or requiring the Contractor to perform additional duties.
• Clause 3.1(a) requires the Contractor to ensure that the Services are provided properly and carefully, in a reasonable and professional, businesslike manner, and promptly and to industry standard.
• Clause 3.1(c) requires the Contractor to comply with the DVA Service Charter and Australian Public Service values.
• Clause 3.1(g) requires the Contractor to follow any lawful direction of the Company in providing the Services.
• Clause 3.1(k) requires the Contractor to ensure that the performance of the Services are not interfered with, delayed or hindered by any other work the Contractor may be doing under any other contract or arrangement with any other person or organisation.
• Clause 3.4 requires the Contractor to provide its own tools of trade to enable it to provide the Services.
• Clause 4.1 provides that the “Service Fee” (specified in Schedule 1 Item 3 in a table of monetary amounts payable for visits which vary depending upon when the visit is conducted and how long is spent at the client’s premises to deliver the requisite care) is payable within 7 days of receipt by the Company of a fortnightly tax invoice and worksheet.
• Clause 4.2 allows the Company to vary the Service Fee by notice in writing to the Contractor.
• Clause 5.2 provides that the Contractor may engage in other work and assignments provided that they do not involve a conflict with their duties and responsibilities to the Company under the 2020 Contract.
• Under clause 5.4, the Company may require the Contractor to give absolute priority at any time to the provision of the Services to the Company under the 2020 Contract over any other work or assignments they may be engaged in.
• Clause 6.1 provides that “The relationship of the parties is such that the Contractor is appointed as an independent contractor and not as an agent or an employee of the Company. Nothing in this Deed shall be deemed to create an employment relationship between the Company and the Contractor”.
• Clause 6.4 provides that the “Contractor is solely responsible for all payments to the Contractor” in respect of annual leave, sick leave, long service leave, public holidays, redundancy payments and other similar benefits under any law or industrial instrument, superannuation, workers’ compensation and taxation “for and on behalf of the Contractor and any other persons employed or engaged by the Contractor to provide, or assist in providing, the Services to the Company”.
• Clause 6.5 requires the Contractor to hold and maintain any necessary insurance relating to or arising out of providing the Services, including workers’ compensation insurance, public liability insurance and other insurances required by law or regarded as good commercial practice, and provide proof of such to the Company on request, provided that the Company may elect to assist the Contractor in taking out professional indemnity insurance and/or reimburse the Contractor for the cost of this.
• Clause 7.1 provides that “The Contractor acknowledges that, as an independent contractor, it is responsible for the cost of providing the Services and for any loss or damage to any third party caused by the manner in which the Services are provided, or arising out of providing the Services, or any related activities or conduct by the Contractor in providing the Services”, and clause 7.2 provides for an indemnity in this respect.
• Clause 8 provides for a restraint clause which operates during the term of the 2020 Contract and for a subsequent restraint period, and requires among other things that the Contractor not seek or accept the custom of any of the Company’s customers and not interfere with the relationship between the Company and its customers, franchisees, employees or suppliers.
• Under clause 9.5, the Contractor assigns all intellectual property rights to the Company.
• Clause 10.1 provides that the 2020 Contract may be terminated by either party on 4 weeks’ notice, and clause 10.2 provides that the Company may in its sole discretion terminate the 2020 Contract immediately without notice upon the occurrence of various specified events, including that (in (f)) the Contractor in the Company’s reasonable opinion fails to remedy its failure to properly perform the Services within one week of the Contractor being advised in writing by the Company of any complaint or performance issues relating to the provision of the Services.
• Clause 13.8 provides: “The Contractor must not sub-contract all or part of its obligations under this Deed without the prior approval of the Company. Any permission to sub-contract all or part of the Contractor's obligations under this Deed does not discharge the Contractor from any liability for the performance of its duties and obligations under this Deed”.
[4] The two earlier contracting agreements entered into by Ms Peel and Aster (in 2013 and 2018) were not, for relevant purposes, substantially different to the 2020 Contract.
[5] Ms Peel was provided with induction training upon engagement. She was assigned patients to whom she had to provide home nursing services. She initially worked only part-time hours providing the services, and also provided nursing services for another business, Home Support Services (Qld) Pty Ltd (Home Support Services). However, after a period of time, Aster increased the work assigned to her to a degree which constituted full-time hours, and Aster either instructed or requested that she resign from her role with Home Support Services.
[6] It was up to Ms Peel to determine when and how regularly services would be provided subject to the patient’s requirements and management’s approval. When Ms Peel visited a patient’s residence, she would wear an Aster name badge and provide the patient with an Aster business card which contained her personal details. These were supplied by Aster. Patient paperwork and folders were supplied by Aster and bore the Aster logo. At the time of the termination of her engagement, Ms Peel had ordered Aster uniforms, which were provided to nurses to wear on a voluntary basis at their expense.
[7] Aster had a management structure which oversaw the provision of the services. It would from time to time issue instructions to Ms Peel about the performance of her nursing work, including instructions to attend staff meetings from time to time. If Ms Peel wished to take any period of unpaid leave, the approval of management was required. As a matter of practice, if Ms Peel was going to be absent and unable to provide nursing services to the patients allocated to her, she had to arrange another of Aster’s nursing contractors to cover for her. Ms Peel assisted in the training of other newly-engaged nursing contractors.
[8] Ms Peel used her own car to travel to and from patients’ homes, and she bore the expense of this. Ms Peel has also provided “tools of trade” at her expense, at least on a replacement basis, including a stethoscope, oximeter, pen torch, blood pressure monitor, thermometer and blood sugar measurer. Consumables such as gloves, aprons, sacrum protection, anti-microbial alginate dressings, bandages, wound care dressings, numerous creams, incontinence pads, protective sheets and catheter packs were provided by Aster, and Ms Peel took these as needed from Aster’s storeroom at its place of business. Any administrative duties were performed by Ms Peel in her own home using her own computer.
[9] Ms Peel was responsible for the payment of tax on her income, and no tax was deducted by Aster from the fees which it paid to her. Ms Peel began charging for GST only towards the end of her engagement, when she was prompted to do so by Aster after it became aware her annual income exceeded $75,000. Ms Peel reported to the Australian Taxation Office (ATO) that she was a Sole Trader/Contractor in her tax returns. She claimed deductions for business expenses in her tax returns over the course of her engagement, with the highest amount claimed being $26,563 in 2015.
[10] The engagement of Ms Peel terminated on or about 4 March 2020, in circumstances which are the subject of dispute.
The decision
[11] In his decision, the Commissioner proceeded on the basis of the multi-factor test for distinguishing between employer-employee relationships and principal-independent contractor relationships as summarised, on the basis of the relevant court authorities, in the Full Bench decision in Kimber v Western Auger Drilling Pty Ltd. 2 The Commissioner also identified the ultimate question to be determined, by reference to the Full Bench decision in Abdalla v Viewdaze Pty Ltd t/a Malta Travel,3 as being whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business on his or her own behalf such that the worker could be said to be conducting a business of his or her own.
[12] The Commissioner then proceeded to analyse and make findings in relation to each of the factors in the multi-factor test identified in the Kimber decision. The Commissioner first dealt with “[w]hether 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” and, after referring to the evidence given and some of the provisions of the 2020 Contract, made the following findings:
“[47] On the basis of the evidence it is apparent that the patients were assigned to Ms Peel by Aster and Ms Peel did not seek to obtain patients to provide care herself independently of Aster. Further, she needed approval for leave and any work not performed by her was required to be performed by another nurse connected to Aster. I am also satisfied on the evidence that Ms Peel was directed to assist in the training of others in connection with the performance of nursing work for Aster. Mr Ning accepted in his oral evidence that Aster retained the ability to reallocate a particular patient from one nurse to another if for example a patient raised a concern about a particular nurse. The evidence was also that in the event of a patient ceasing to use the services provided to Aster the patient file was returned to Aster.
[48] While the Independent Contractors Agreement on its face is written with a clear intent to establish a contracting and not employment agreement, a range of clauses within the Agreement provide Aster a greater right of control and direction over Ms Peel then is often the case in a contracting arrangement. The overall picture also includes that of Ms Peel appearing to be required to report through a structure of management at Aster. This is indicative of Aster exercising a level of control more indicative of employment than a contracting arrangement.”
[13] The Commissioner then dealt with “[w]hether the worker performs work for others (or has a genuine and practical entitlement to do so)”. The Commissioner found:
“[51] The evidence established that Ms Peel performed hours of work for Aster commensurate with what would be regarded as approximating full time employment. While Ms Peel did perform brief periods of work for other entities in years gone by this had not been the case for a lengthy period of time. Whilst her most recent employment contract included a term allowing her to engage in other work, the reality is given the amount of work provided by the Respondent to Ms Peel, that such work could only have been performed on the two days of the week she was otherwise not engaged by Aster, or in the evening after 5.30pm when she had already completed a full day of work with Aster. This indicia [sic] tends more to indicate employment rather than a contracting arrangement.”
[14] As to “[w]hether the worker has a separate place of work and or advertises his or her services to the world at large”, the Commissioner found that “The evidence does not indicate Ms Peel had a separate place of work and Ms Peel did not advertise her services to the world at large. This indicia [sic] is more indicative of employment than of contracting.” 4 In relation to “[w]hether the worker provides and maintains significant tools or equipment”, the Commissioner stated the following conclusions:
“[65] The Full Bench decision in Gupta v Portier Pacific Pty Ltd, Uber Australia Pty Ltd t/a Uber Eats ([2020] FWCFB 1698, 296 IR 246 at [65]) did not consider that because Ms Gupta in that matter was required to provide her own vehicle in order to carry out her work necessarily pointed to her being an independent contractor as the vehicle in that case was not a specialised item of equipment and was already owned and used for personal purposes, and the provision of a vehicle is common feature of employment relationships. The same can be said in this case.
. . . .
[69] Based on the evidence, despite what was claimed by Mr Ning, it would appear that besides the fact Ms Peel used her own vehicle to travel, virtually all equipment and medical supplies required by Ms Peel to perform her nursing role were provided to her by Aster. Ms Peel gave evidence concerning Aster maintaining an inventory of such supplies. Ms Peel appears not to have made any significant investment in capital equipment. This evidence is indicative of employment and not an independent contracting arrangement.”
[15] In relation to “[w]hether the work can be delegated or subcontracted”, the Commissioner found:
“[78] Based on the evidence it is apparent that Ms Peel did not have an unfettered ability to delegate or subcontract work in that it was not a matter entirely within her discretion. The evidence is that Ms Peel had to follow certain protocols in providing work to someone else and it was also the case that such work had to be provided to another person also engaged by Aster, presumably so Aster could still retain a degree of control over the performance of that work.
[79] On the evidence I am also inclined to accept that Ms Fleming who was engaged by Aster, provided relief for other persons engaged by Aster while away for an extended period of leave, however it appears there may have been the subject of change in more recent times since the departure of Ms Peel. Overall the evidence concerning the extent that Ms Peel could delegate or subcontract her duties tends more to indicate employment than independent contracting.”
[16] The Commissioner found in relation to whether the putative employer has the right to suspend or dismiss the person engaged that clause 10.2(f) of the 2020 Contract tended to indicate employment rather than contracting. 5 As to “[w]hether the putative employer presents the worker to the world at large as an emanation of the business”, the Commissioner found that “Given Ms Peel wore an Aster name badge and had a business card, used an Aster email address, and used Aster paperwork, folders and an Aster bag during consultations with patients, Ms Peel was presenting to the world at large as a emanation of Aster which tends to indicate employment rather than a contracting arrangement”.6
[17] In relation to “[w]hether income tax is deducted from remuneration paid to the worker”, the Commissioner made reference to the evidence given by Mr Molesworth, a taxation accountant who was called by Aster to give evidence, to the following effect:
“[92] In cross-examination, Mr Molesworth was asked whether Ms Peel would be able to claim expenses if she was an employee. Mr Molesworth said she would. Mr Molesworth was asked whether she could claim the same amount on her motor vehicle if she were an employee and was entitled to a travel allowance. Mr Molesworth said the ability to claim as an employee would not be impacted by a travel allowance.
[93] It was put to Mr Molesworth that if an employee uses equipment as part of their role, they could still claim these and that there would be no difference between an employee and a contractor making these claims and Mr Molesworth agreed.”
[18] The Commissioner then concluded: “The evidence is that Aster did not deduct income tax from remuneration paid to Ms Peel which tends to indicate a contracting arrangement and not employment. It is notable however that much of what was claimed by Ms Peel could also be claimed by an employee.” 7
[19] As to “[w]hether the worker is remunerated by periodic wage or salary or by reference to completion of tasks”, the Commissioner found:
“[101] The evidence is that Ms Peel was paid fortnightly on the basis of the amount of time she had recorded spent with clients as provided by her. Its seems the method of payment does not fall neatly into the category of a periodic wage or salary in that it was subject to Ms Peel reporting the number and length of visits with clients. However, it also cannot be said that the method of payment is based on purely completion of tasks in that it is not based on a completion of a tasks such, but on the amount of time spent with a client. If anything, the overall method of remuneration tends more to indicate contracting then employment.”
[20] In relation to “[w]hether the worker is provided with paid holidays or sick leave”, the Commissioner found that Ms Peel was not paid for holidays or sick leave and on that basis this was more indicative of contracting. 8 As to “[w]hether the work involves a profession, trade or distinct calling on the part of the person engaged”, the Commissioner found that: “Given that in order to practice as a Registered Nurse, a tertiary level qualification and specialist skills are required, this tends to favour the prospect of the engagement being a contracting relationship rather than employment.”9
[21] In relation to “[w]hether the worker creates goodwill or saleable assets in the course of his or her work”, the Commissioner accepted Mr Peel’s evidence that she did not obtain goodwill or saleable assets in the course of her work over 6˝ years, and this tended to support a conclusion that the engagement was employment and not independent contracting. 10 Finally, the Commissioner considered “[w]hether the worker spends a significant portion of remuneration on business expenses” and made the following findings:
“[115] The primary costs Ms Peel incurred were in relation to running costs associated with her vehicle. However, as was observed in the matter, in the event that Ms Peel was an employee there are means to recover a significant portion of these costs. Ms Peel said that she purchased gloves on one occasion when she could not access the inventories of Aster, and replaced the blood pressure machine she had initially been given by Aster on commencement herself when it became outdated.
[116] Besides expenses associated with her vehicle I have not been persuaded that Ms Peel did spend a significant proportion of her remuneration on other business expenses despite her submitting a number of tax returns which appeared to claim significant business expenses that on her own evidence she is unlikely to have incurred. For example, her evidence was to the effect that she did not do a significant amount of work from home however has claimed reasonably significant home office expenses in several tax returns.”
[22] The Commissioner then stated the following overall conclusions:
“[117] I have made findings in relation to each of the indicia as set out above. I have considered the various employment contracts which describe the relationship as one of contracting however as was stated in French Accent ([2011] FWAFB 8307) the parties cannot alter the true nature of their relationship by putting a different label on it.
[118] I have also given consideration to the fact while Ms Peel said the much of the work was equivalent to that of Assistant Nursing or Enrolled Nursing work, at times Ms Peel would have exercised a high degree of skill and expertise given her qualifications as a Registered Nurse. As was observed in Stevens v Brobribb ((1986) 160 CLR 16) 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.
[119] Using the multi-factorial approach, whilst certain indicia would indicate the relationship was that of independent contracting, and it is clear Ms Peel submitted tax returns and claimed expenses as if she were an independent contractor, the overall picture on the evidence is not ambiguous to the extent that the Independent Contracting Agreement of itself sways the matter in favour of Aster. The evidence is sufficiently clear to weigh in favour of concluding that Ms Peel was performing work for Aster in the capacity of an employee rather than an independent contractor.
[120] In the recent Full Bench decision of the FWC in Gupta v Portier Pacific ([2020] FWCFB 1698, 296 IR 246) the Full Bench gave significant weight in that matter to there being no control over the when and how long Ms Gupta performed work, Ms Gupta’s ability to accept work through other competitors, and Ms Gupta not presenting as an emanation of Uber ([2020] FWCFB 1698, 296 IR 246 at [69]). This matter is distinguishable on all three counts. The evidence indicates that in practical terms Aster did exercise a degree of control over when and how long Ms Peel worked. Given Ms Peel’s ongoing commitments to the same patients Aster had allocated to her to provide care for on a week in week out, year in year out basis occupying the equivalent of full time employment, and given her contract required her to ensure performance of the service is not interfered with or delayed by the performance of any other work with any other person or organisation (clause 3.1) it is not realistic to say that Ms Peel was free to accept work from others of her own choosing. Finally, as was concluded earlier unlike the case in Gupta, Ms Peel did present as an emanation of Aster.
[121] The ultimate question is whether Ms Peel was a servant in Aster’s business or viewed practically, she was carrying on a trade or business of her own. I am satisfied on the evidence that in practical terms Aster retained rights of control over Ms Peel to such an extent that Ms Peel was an employee of the Respondent and was not conducting her own business…”
Appeal grounds and submissions
[23] Aster’s notice of appeal contains numerous and detailed grounds of appeal. Ground 1 of the appeal is a general contention that the Commissioner erred in fact and/or in law in concluding that Ms Peel was an employee of Aster. Grounds 2 and 3 contend that the Commissioner erred by treating the terms and evident intent of the contract entered into by the parties, which were demonstrative of the mutual intent of the parties to engage in an independent contracting relationship, as of little significance, and placing greater focus on the actions and the manner of implementation of the contract by the parties. This led, it was contended, to an erroneous conclusion that the parties should be taken to have concluded a legal relationship which is different to that described in their contract. It was also contended in this connection that the Commissioner failed to attach significance to Ms Peel’s sworn statements to the ATO as to her contractor status and the significant deductions she claimed on that basis.
[24] In Ground 4 of the appeal, it is contended that the Commissioner erred in failing to assign any appropriate differential weight to the factors considered in the decision, in circumstances where the significance of the various factors considered is not the same and will differ according to the circumstances in which the work is to be performed. In respect of this ground, it was submitted by Aster that the Commissioner should have ascribed greater weight to the following indicia:
(a) that Ms Peel was paid by results;
(b) Ms Peel’s substantial claims in her income tax returns for deductions on account of business expenses against contracting income;
(c) that Ms Peel had an ABN;
(d) Ms Peel delegated her work to others; and
(e) Ms Peel’s clear, unequivocal and repeated sworn statements to the ATO as to her contractor status.
[25] In relation to the first of the above indicia, Aster submitted that a payment system for the production of a given result is one where a party in the performance of a service for another party is free to employ their own means (such as by the use of third-party labour, plant and equipment) to achieve the contractually specified outcome. Under such a system, it was submitted, consideration was often a fixed sum on completion of a particular job as opposed to an amount paid by reference to hours worked. In this case, Aster submitted, Ms Peel was paid by completion of a task generally in the form of a piece rate, and payment based on time was only a small aspect of the mode of remuneration.
[26] In relation to the second of the above indicia, Aster submitted that the claiming of significant expenses against income is a significant factor indicating a contractor relationship, and referred in that respect to the decisions in D’Ambrosio v Jakroas, 11 Leffanue v Southern Cross Community Healthcare12 and Jamsek v ZG Operations Australia Pty Ltd.13 Aster further submitted that Ms Peel supplied her own car and computer, as well as equipment to perform her work, and claimed significant tax deductions for this. Aster also relied on the fact that Ms Peel had an ABN, which she was only permitted to hold if she ran her own enterprise and did not work in someone else’s enterprise. Aster also contrasted the fact that Ms Peel declared to the ATO in five successive tax returns that she was a “Contractor/Sole trader” and her claim before the Commission that she was an employee, and characterised this conduct as “duplicitous and selfserving” and said it “should not be countenanced by the Commission”.
[27] In Ground 5 of the appeal, Aster contends that the Commissioner erred in concluding that the degree of control exercised by it over Mr Peel was indicative of an employment relationship, and pointed to the following matters as indicating to the contrary:
(a) Aster did not seek to exercise any control over how the services were provided to patients in their homes;
(b) it was up to Ms Peel when she provided the services and how frequently the services were provided, subject to patient requirements, including, for example choosing to work on Saturdays and Sundays despite not being requested or directed to do so;
(c) Aster had no control over appointment times and allocation of sessions;
(d) Aster did not schedule when Ms Peel had to attend to provide services to patients;
(e) Ms Peel was responsible for taking care of patients in terms of their needs, health assessments, visit allocations, delegation to other Aster care workers and attending at the homes to provide care;
(f) if Ms Peel could not provide the services on a particular occasion it was her responsibility to find another of Aster's care workers to provide the services;
(g) in that instance, it was Ms Peel’s responsibility to communicate the patient notes to other case workers and to provide instructions to the worker about provision of services to the relevant patient;
(h) Ms Peel was able to and did delegate her services if she was unable to provide them; and
(i) Aster provided no instructions to Ms Peel as to how she was to provide services to the patients.
[28] Aster did acknowledge in its submissions that it required Ms Peel to attend meetings from time to time and that its approval was required for periods of unpaid leave.
[29] Aster contends in Ground 6 of the appeal that the Commissioner erred in finding that the indicium of whether the worker performs work for others, or has a genuine and practical entitlement to do so tended to indicate employment, because clause 5.2 of the 2020 Contract allowed Ms Peel to work for others provided that there was no conflict of interest, she in fact worked for third parties in the financial years 2013/14, 2014/15 and 2015/16, and the Commissioner wrongly determined the issue on the basis of a general assumption as to Ms Peel’s available free time rather than her proven legal right and ability under the contract to undertake such work.
[30] In Ground 7 of the appeal, Aster contends that the Commissioner erred in finding that the indicium of whether the worker has a separate place of work or advertises their services to the world at large was more indicative of employment, because that part of the services which was not spent at patients’ homes was done at Ms Peel’s home using her own computer, Ms Peel did not perform any substantial work at the premises of Aster and Ms Peel provided the services in patients’ homes. In Ground 8 of the appeal, Aster contends that the Commissioner erred in finding that the indicium of whether the worker provided and maintained significant tools and equipment was indicative of employment, because Ms Peel provided her tools of trade, some consumables (which she claimed as expenses), her car and her own computer. Her tax returns, it was submitted, showed that the expense of providing these was significant.
[31] Aster contends in Ground 9 of the appeal that the Commissioner erred in respect of the indicium of delegation, since Ms Peel had to communicate instructions and advice to another contractor if she handed over a patient, she had to arrange another Aster care worker if she could not provide her services on a particular occasion, and there was an ability to subcontract work in the 2020 Contract. In Ground 10, Aster contends that the Commissioner erred as to Ms Peel presenting herself to the world as an emanation of Aster because there was no requirement, authorisation or encouragement for her to put a logo on her car, the business card did not have Aster’s logo on it, and she was never provided with or purchased an Aster uniform during her engagement.
[32] Aster contends in Ground 11 that the Commissioner’s finding that, apart from expenses associated with her vehicle, Ms Peel did not spend a significant proportion of her remuneration on other business expenses was contrary to the evidence. Her tax returns showed that she accrued expenses amounting up to as high as 63.9% of her remuneration in 2015/2016. In Ground 12, Aster contends that the Commissioner erred in finding that Ms Peel used an Aster bag during consultations with patients.
[33] In Ground 13, Aster contends that the Commissioner erred in finding that Aster exercised a degree of control over when and how long Ms Peel worked, in that the evidence did not support such a finding. Rather, it was submitted, the evidence demonstrated that Aster did not seek to exercise any control over how the services were provided to patients in their homes. It was up to Ms Peel when she provided the services and how frequently the services were provided, subject to patient requirements. Ms Peel could for example choose to work on Saturdays and Sundays without being requested or directed to do so. Aster had no control over appointment times and allocation of sessions, and Aster did not schedule when Ms Peel had to attend to provide services to patients.
[34] In Grounds 14 and 15, Aster contends that the Commissioner failed to take into account whether Ms Peel bore any risk of loss or had a chance of making a profit in accordance with the principles stated in On Call Interpreters & Translators Agency Pty Ltd v Commissioner of Taxation (No 3) 14 and, in that connection, failed to take into account that Ms Peel was contractually obliged to:
(a) indemnify Aster for any costs or expenses incurred as a result of her unlawful conduct;
(b) assume responsibility for any acts or omissions by her and any person provided by her to provide the Services;
(c) hold all necessary insurances or those regarded as good commercial practice;
(d) accept liability for any loss or damage Aster incurred to any third party caused by the manner in which the Services were provided or arising out of providing the Services; and
(e) indemnify Aster against any loss or damage Aster suffered or incurred or was liable for as a result of the manner in which the Services are provided or arising out of the provision of the Services.
[35] Finally, in Ground 16, Aster contends that the Commissioner erred in law in failing to take into account the acknowledgements in the 2020 Contract and the earlier contracts that Ms Peel was a contractor as a primary consideration against which the other factors are to be assessed.
[36] Aster submitted that permission to appeal should be granted because it raised issues of importance and general application, there having been no previous Full Bench consideration of whether in-home care/support workers are employees or independent contractors. It also noted that the decision in this matter appeared to contradict the single-member decision in Leffanue v Southern Cross Community Healthcare, 15 in which on very similar facts it was determined that a support worker for high-needs disabled persons living in shared accommodation was an independent contractor. Aster submitted that the appeal should be upheld, the decision quashed and Ms Peel’s unfair dismissal application dismissed.
[37] Ms Peel submitted that the grant of permission to appeal was not in the public interest and should be refused because the appeal did not raise any issue of importance or general application, the decision in Leffanue turned on its own facts and was distinguishable, the decision was not counter-intuitive, and Aster’s grounds of appeal merely sought a different result and did not identify any significant error of fact. In the event that permission was granted, Ms Peel submitted that the appeal should be dismissed because the Commissioner had not proceeded upon any demonstrable error of fact, had applied the multi-factor test in an orthodox way, and had considered, made findings about and assigned weight to each of the relevant factors in a way which was reasonably available to him.
Consideration
[38] We consider that it is in the public interest to grant permission to appeal in this case. The question of whether an applicant for an unfair dismissal remedy was, at the time of the alleged dismissal, an employee of the party against which a remedy is sought is one of jurisdictional fact. This means, for the purpose of the exercise of the appellate function, that the decision is not be treated as one involving the exercise of a discretion; rather it involves the application of a legal standard to a given set of facts. Appealable error will be found if on appeal a different conclusion on the facts and the law is reached than that arrived at by the primary decision-maker. 16 Further, notwithstanding the conclusion we reach later in this decision, it cannot be said that the question of whether Ms Peel was an employee of Aster or performed services for Aster in the capacity of an independent contractor has an easy and obvious answer. Appellate review is appropriate in these circumstances. Accordingly, permission to appeal is granted.
[39] For the most part, Aster’s grounds of appeal invite us to reach a different conclusion concerning Ms Peel’s status than the conclusion reached by the Commissioner by reconsidering the proper conclusion to be reached on a number of the factors relevant to the multi-factor test identified in a number of High Court decisions, most notably Stevens v Brodribb Sawmilling Co Pty Ltd. 17 We will turn to consideration of the relevant factors shortly. However, it is necessary at the outset to consider Grounds 2, 3 and 16 of the appeal, by which Aster contends that primacy in the analysis is to be given to the characterisation of the relationship between Aster and Ms Peel in the 2020 Contract and its predecessors, and that the way in which the contracts were implemented in practice should not have been given more significance than the contractual labelling.
[40] We do not accept this contention, and we agree with the approach taken by the Commissioner whereby he considered the substance of the rights and obligations under the 2020 Contract, and how those rights and obligations were applied in practice, to be the primary considerations. The correct approach, derived from the relevant court authorities, was described in the recent Full Bench decision in Gupta v Portier Pacific Pty Ltd 18 as follows:
“[39] However all the above provisions may be regarded as merely labelling or characterising the nature of the contractual relationship between Ms Gupta and Portier Pacific/Uber; none of them set out the substantive rights and obligations of that relationship. It is well established that such labels cannot alter the substantive nature of the relationship. As was stated by Isaacs J in Curtis v Perth & Fremantle Bottle Exchange Co Ltd ([1914] HCA 21, 18 CLR 17):
‘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.’
[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” ([2013] FCAFC 3, 209 FCR 146, 235 IR 115 at [91]). 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...” ([2015] FCAFC 37 at [142], Barker J agreeing at [316]). 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 ([2018] FCAFC 131 at [180]).”
[41] To the above summary might be added the following statement made by the High Court majority (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) in Hollis v Vabu Pty Ltd: 19
“It should be added that the relationship between the parties, for the purposes of this litigation, is to be found not merely from these contractual terms. The system which was operated thereunder and the work practices imposed by Vabu go to establishing "the totality of the relationship" between the parties; it is this which is to be considered.”
[42] Accordingly, although not irrelevant, the characterisation of Ms Peel’s status in the 2020 Contract and its predecessors as that of an independent contractor and not employee is of lesser significance in the face of substantive contractual rights and obligations which, as applied in practice, point in a different direction.
[43] Aster, in Ground 4 of its appeal, seeks that significant and indeed decisive weight be placed on the fact that Ms Peel arranged her affairs as if she were an independent contractor, consistent with the contractual characterisation of her relationship with Aster. This included that she operated with an ABN, issued tax invoices to Aster, eventually charged Aster with GST, and declared in her tax returns that she was a contractor. It is to be accepted that these are matters which weigh to some degree in favour of a conclusion that Ms Peel was a contractor. However, we do not consider that these matters are to be given the decisive weight contended for by Aster since they are all consequential upon the contractual characterisation of the relationship – a characterisation in substance determined by Aster through the standard-form contracts it used as the sole basis for the engagement of its in-home nursing staff, including Ms Peel. As was stated in the Federal Court Full Court decision in ACE Insurance Limited v Trifunovski 20 (per Buchanan J, with whom Lander and Robertson JJ agreed):
“One of the strongest arguments in favour of the appellant’s position was that the agents themselves had organised their affairs on the basis that they were not employees, an arrangement which met Combined’s requirements. The arrangements to which the trial judge referred, whereby for taxation purposes the agents were treated as non-employees, are clearly not decisive in their own right. They follow the prior assumption about employment (or more correctly non-employment). That assumption led to what was done about income tax deductions, GST, payroll tax, superannuation contributions and the like.”
[44] Buchanan J added:
“It is also difficult, in my view, to give much independent weight to arrangements about taxation, or even matters such as insurance cover or superannuation. These are reflections of a view by one party (or both) that the relationship is, or is not, one of employment. For that reason, in my view, those matters are in the same category as declarations by the parties in their contract (from which they often proceed). They may be taken into account but are not conclusive.” 21
[45] In respect of Ms Peel’s tax returns, Aster submitted that the work expenses claimed by Ms Peel as deductions from her taxable income should have been treated as a substantial indicator of her being a contractor. We disagree, for a number of reasons. First, the mere fact that a person performing work for another claims expenses incurred in the performance of that work as tax deductions, even when the amounts claimed are of significance, is not of itself determinative of the person’s status, as the decisions in ACE Insurance Limited 22 and Jamsek v ZG Operations Australia Pty Ltd23 demonstrate.
[46] Second, the expenses claimed were primarily for the provision of Ms Peel’s motor vehicle and for her home office. It is not uncommon for workers who are undeniably employees to use their personal motor vehicle for work travel, and also to establish home offices for the purpose of working from home. In this connection it may be noted that clause 16.5(a) of the Nurses Award 2010 provides for an allowance of $0.80 per kilometre for an employee “required and authorised to use their own motor vehicle in the course of their duties”. The tax expert called by Aster to give evidence, Mr Molesworth, said that there is no distinction in the capacity of employees or contractors to claim tax deductions for the cost of personal motor vehicle and home office use for work purposes. He gave the following evidence:
MR BROWN: …So I guess the better way to phrase the question would be, if the person was - if the person, or the employee, was entitled to a travel allowance, that still wouldn't have any bearing on what she could claim?---That's correct, if I understand the question correctly. The ability to claim a deduction for motor vehicle expenses is - by an employee or a contractor, is not, in the case of the employee, determined by whether a travel allowance or a motor vehicle allowance is received or not.
Thank you, Mr Molesworth. The next question is in relation to office and, you know, the normal things, computers and the normal things that Lisa has claimed for in her tax returns. It's fair to say that a lot of employees would also claim similar deductions?---That is correct, where the use of the equipment is for income producing purposes, where that is in the course of an employee's employment, yes, they can claim deductions for those types of expenses, yes.
So there is, effectively, no difference between the employee and a contractor, when it comes to claiming expenses, either for the vehicle or for home office equipment?---That's correct. That is correct. 24
[47] The motor vehicle provided by Ms Peel was not a specialised piece of equipment requiring particular skill or expertise to operate, but simply a car which could equally be used for private purposes. There is no basis to conclude that it constituted a capital investment of significance for the purpose of the operation of a business. The same can be said of the establishment by Ms Peel of a home office. 25 The evidence as to the “tools of trade” did not establish that any substantial cost was involved in their purchase.
[48] Third, Aster’s characterisation in Ground 4, 8 and 11 of its appeal of the amount of expenses claimed as deductions as being “substantial” or “significant” requires scrutiny. The tax returns for the earlier years of her engagement with Aster, which nominally show a high proportion of her income being consumed in business expenses, are problematic. In those years Ms Peel was also earning income from Home Support Services, with this appearing to be her primary income source initially, so they do not necessarily provide an accurate picture with respect to her engagement with Aster. Additionally, in the 2014/15 financial year, Ms Peel seems to have obtained an instant asset write-off for the purchase of a car, which added $14,692 to her deductions for that year, resulting in an unusually high 63.9% of her income being deductible in that year. The later years for which tax returns were available, during which Ms Peel was working exclusively for Aster, give a more consistent picture: in 2016/17, Ms Peel earned $96,420 and had expenses of $13,858 and, in 2017/18, Ms Peel earned $104,155 and had expenses of $15,493. We do not regard tax deductions of this order necessarily to be indicative of a contracting rather than employment relationship.
[49] There are, as the Commissioner found, a number of indicia which firmly point to the existence of an employment relationship. The first is that it cannot be said that Ms Peel was conducting a business of her own. The patients she provided services to were obtained by Aster through its commercial contractual arrangements and allocated to Ms Peel. There was no evidence that Ms Peel had the capacity on her own initiative to increase the number of her patients and thus increase her income. The patients had no separate contractual or commercial relationship with Ms Peel and the 2020 Contract expressly restrained Ms Peel from such arrangements. As a consequence, Ms Peel acquired no goodwill or saleable asset. Aster did not challenge the conclusions reached in this regard by the Commissioner.
[50] The second is that there was no effective right for Ms Peel to subcontract or delegate the performance of the services under the 2020 Contract or its predecessors, as the Commissioner found, with the consequence that the arrangement was in substance one for personal service. Under clause 13.8 of the 2020 Contract, Ms Peel was not permitted to sub-contract her obligations under the contract without the prior approval of Aster, and there was no evidence that such approval was ever sought or obtained. She was not permitted or required to supply another nurse to replace herself if she was sick or injured, since clause 2.2 simply required her to immediately notify Aster in this eventuality so that Aster could arrange another contractor to provide the services. In practice, Ms Peel was required if absent to arrange for another nurse contracted to Aster to replace her. However, we reject the contention advanced by Aster in Ground 9 that this amounted to a right of delegation. The proper characterisation of this practice is that Aster assigned to Ms Peel its administrative task under clause 2.2 of arranging another contracted nurse to replace her. The evidence showed that she was certainly not allowed to arrange anyone external to Aster to replace her. We also reject Aster’s contention that the requirement for Ms Peel to communicate instructions and advice to another contracted nurse if handing over a patient was in some way indicative of a right to delegate. This was a sensible administrative arrangement required by Aster to ensure quality and continuity of care, and is indicative of Ms Peel being employed in a business conducted by Aster.
[51] Third, Aster controlled the work of Ms Peel in important ways. The legal means of control were provided by the 2020 Contract (and its predecessors). Clause 2.3 of the 2020 Contract gave Aster the power to determine the quantity and nature of the services to be provided by Ms Peel, and under clauses 2.1 and 3.1(a) Ms Peel was required to perform those services promptly to a commercially acceptable and professional and industry standard and to dedicate an appropriate time for the provision of the services. Clause 3.1(g) required Ms Peel to follow any lawful direction made by Aster as to the provision of those services. Assessed cumulatively, these provisions gave Aster legal control over what amount of work was to be performed by Ms Peel, what the nature of the work was to be, and how it was to be performed.
[52] The evidence showed that, in practice, Aster gave considerable latitude to Ms Peel as to when and how the work was to be performed. This may be regarded as consistent with allowing Ms Peel to exercise quasi-professional judgment as to the degree and timing of the nursing care to be provided to individual patients. However, Aster certainly did exercise its legal powers of control over the allocation of work, to the extent that in or about 2016 it instructed or requested that Ms Peel resign her engagement with Home Support Services in order for her to provide services to additional patients. Additionally, it exercised control through the arrangements required to be made when Ms Peel was sick or injured, as previously discussed, the requirement that Ms Peel attend staff meetings from time to time, and the requirement for her to obtain permission from Aster before taking any period of unpaid leave. We therefore agree with the Commissioner’s conclusions that the extent of Aster’s control over the performance of work by Ms Peel was indicative of the existence of an employment relationship, and we reject the contentions advanced in Ground 4 of Aster’s appeal.
[53] Fourth, Aster had the legal right to, and did in practice, require Ms Peel to work exclusively for Aster. Although, as Aster submitted, clause 5.2 of the 2020 Contract allowed Ms Peel to engage in other work provided that this did not conflict with her duties and responsibilities to Aster, clause 5.4 empowered Aster to require Ms Peel to give absolute priority to the provision of services to Aster under the contract over any other work or assignments. This provision, together with the capacity of Aster under clause 2.3 of the 2020 Contract to require Ms Peel to provide a quantity of services amounting to full-time work, meant that Aster had the legal means to require exclusivity. The evidence did not establish that Aster invoked its equivalent powers under earlier contracts to achieve exclusivity, but it is clear that this is what it did by increasing the allocation of patients to Ms Peel to a level that required a full-time commitment and instructing or her requesting her to resign from her engagement with Home Support Services. We consider that the Commissioner was correct in concluding that this indicium supported a finding that an employment relationship existed, and we reject Aster’s contention to the contrary in Ground 6 of its appeal.
[54] Fifth, the payment system is one more relatable to Ms Peel being an employee rather than an independent contractor. Under the 2020 Contract, the rate of payment was as provided for in Item 3 of Schedule 1, or as varied by Aster on notice pursuant to clause 4.2. There was no capacity for Ms Peel to set or bargain for a price for the provision of her services to Aster. The rate structure provided for in the 2020 Contract was a hybrid of a piece rate and a time-based rate, in that Ms Peel was paid per visit to patients at their homes, but the payment varied depending on the length of the visit. Because, as earlier explained, the 2020 Contract was in substance one for personal services, the payments were made for the provision of Ms Peel’s personal labour, and not for the production of a result by whatever means Ms Peel selected. Accordingly, we agree with the Commissioner’s conclusion in this respect.
[55] Finally, to a limited degree, Ms Peel presented herself to the patients as an emanation of Aster in that she had an Aster-branded name badge, business card, folder and paperwork and, at the time of the termination of her engagement, she had Aster uniforms on order. There was no countervailing evidence to the effect that she presented herself to the patients or the public at large as operating her own business. There was no error in the Commissioner’s conclusion in respect of this factor, and accordingly we reject Ground 10 of the appeal. If the Commissioner made an error with respect to whether Aster supplied Ms Peel with a bag, as alleged in Ground 12 of the appeal, it was an error of no significance to the question to be determined.
[56] The other grounds of Aster’s appeal concern matters which we consider to be of little import as to Ms Peel’s status. The essential nature of her work required her to perform it at the home of the patients, so that little significance can be attached to the fact that she did not perform work on Aster’s premises. We therefore reject Ground 7 of the appeal. As to Grounds 14 and 15 of the appeal, the evidence did not support the proposition that the requirements in the 2020 Contract and its predecessors for Ms Peel to obtain her own insurances and provide indemnities to Aster meant that she realistically bore a “risk of loss” in relation to the performance of the work. We accept that these contractual requirements do not weigh in favour of a finding of the existence of an employment relationship, but their significance is limited since they are merely reflective of and consequential upon the subjective characterisation of the nature of the relationship in the 2020 Contract.
[57] There is one conclusion reached by the Commissioner with which we disagree. In paragraph [113] of the decision, the Commissioner found that because Ms Peel, as a Registered Nurse, held a tertiary level qualification and exercised specialist skills, this “tends to favour the prospect of the engagement being a contracting relationship rather than employment”. This cannot be correct. The same proposition is true of all nurses, as well as other occupations such as teachers, engineers and lawyers, the large majority of whom work as employees. In the absence of evidence that Ms Peel performed her work as a nurse in a business of her own, we consider that this must be treated as a neutral consideration. This conclusion is, of course, not one that favours Aster in its appeal.
[58] The degree of control which Aster had over Ms Peel’s work, its capacity to require her to work exclusively for Aster, the system by which she was remunerated, her lack of capacity to subcontract or delegate her work, the lack of any evidence that Ms Peel ran a business on her own account, and her presentation as working in Aster’s business rather than her own, lead us to conclude that she was an employee of Aster. These are matters going to the substance of the relationship. Ms Peel’s conduct of her tax affairs and the fact that she held an ABN, charged GST (at Aster’s insistence) and rendered tax invoices are matters of lesser weight because they are merely consequential upon the contractual label given to the relationship – a label which arose because Aster required its nurses to contract with it on that basis.
[59] Accordingly, we agree with and affirm the Commissioner’s conclusion that Ms Peel was, at the time of her alleged dismissal, an employee of Aster and thus was a person protected from unfair dismissal.
[60] We do not necessarily agree with Aster’s submission that this conclusion is inconsistent with the decision of Asbury DP in Leffanue v Southern Cross Community Healthcare. 26 That case turned on its own facts which, in some instances, were significantly different from the facts of this case. In particular, we note that in Leffanue it was found that the applicant claiming to be an employee could accept or reject work offered by the respondent as she pleased, and performed the same work for a number of different entities as a contractor.27 Beyond this, it is unnecessary for us to express any view about the correctness of the conclusion reached in that matter.
Orders
[61] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is dismissed.
(3) Matter U2020/3569 is remitted to Commissioner Simpson for further determination.
VICE PRESIDENT
Appearances:
Mr M Curran on behalf of the Appellant.
Mr P Jeffery of counsel with Mr N Kershler for the Respondent.
Hearing details:
2020.
Sydney (via video-link):
November 6.
Printed by authority of the Commonwealth Government Printer
<PR725456>
2 [2015] FWCFB 3704, 252 IR 1
3 [2003] AIRC 504, 122 IR 215 at [34]
4 [2020] FWC 4782 at [58]
5 Ibid at [80]
6 Ibid at [87]
7 Ibid at [97]
8 Ibid at [103]
9 Ibid at [113]
10 Ibid at [114]
13 [2020] FCAFC 119, 297 IR 210
14 [2011] FCA 366, 214 FCR 82, 206 IR 252
16 Sammartino v Foggo [1999] FCA 1231, 93 IR 52 at [9]-[10]; Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119, 297 IR 210 at [2] per Perram J and at [171]-[174] per Anderson J
17 [1986] HCA 1, 160 CLR 16
18 [2020] FWCFB 1698, 296 IR 246
19 [2001] HCA 44; 207 CLR 21, 106 IR 80 at [24]
20 [2013] FCAFC 3, 209 FCR 146, 235 IR 115 at [122]
21 Ibid at [37]
22 [2013] FCAFC 3, 209 FCR 146, 235 IR 115 at [133], [137]
23 [2020] FCAFC 119, 297 IR 210 at [189]-[190]
24 Transcript, 23 June 2020, PNs 209-211
25 See Roy Morgan Research Pty Ltd v Commissioner of Taxation [2010] FCAFC 52, 184 FCR 448 at [40]-[41]; ACE Insurance Limited v Trifunovski [2013] FCAFC 3, 209 FCR 146, 235 IR 115 at [133]; Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119, 297 IR 210 at [206]-[207]
27 Ibid at [68], [70]