Adriano Zuccon v Powa Productions Pty Ltd T/A Powa Productions Pty Ltd
[2024] FWCFB 339
•14 AUGUST 2024
| [2024] FWCFB 339 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Adriano Zuccon
v
Powa Productions Pty Ltd T/A Powa Productions Pty Ltd
(C2024/4837)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 14 AUGUST 2024 |
Appeal against decision [2024] FWC 1640 of Commissioner Lee at Melbourne on 24 June 2024 in matter number C2024/1239 – permission to appeal refused.
First Instance Decision
On 24 June 2024, Commissioner Lee issued a decision in Mr Adriano Leslie Zuccon v Powa Productions Pty Ltd [2024] FWC 1640 (Decision). The Commissioner upheld a jurisdictional objection from Powa Productions Pty Ltd (Powa Productions) to Mr Zuccon’s general protections application, finding that Mr Zuccon was engaged as an independent contractor and not an employee. Given that finding, the Commission found Mr Zuccon was not “dismissed” within the meaning of s.386 of the Fair Work Act 2009 (FW Act) and hence is not able to make a general protections application involving dismissal. The Commissioner dismissed Mr Zuccon’s application.
The Decision provides a comprehensive summary of the evidence relied upon by both parties.[1] The Decision then identifies that there was not a comprehensive written contract between Mr Zucco and Powa Productions and cites the recent judgment of the Full Court of the Federal Court of Australia in EFEX Group[2] as an authority regarding the principles to be applied when assessing a relationship when there is not comprehensive written contract. The Commissioner applied those principles and determined:
“While there are some as aspects of the evidence that point towards the contractual relationship between the Applicant and the Respondent as one of employment, overwhelmingly the evidence shows that the relationship was one of principal and contractor.”[3]
The Commissioner identified the following evidence as supporting a finding of an independent contracting relationship:
Mr Zuccon expressly sought to be engaged and paid through his business, TBB Music Tuition and Artist Services.[4]
(ii)Invoices were provided for work performed and PAYG tax was not deducted.[5]
Mr Zuccon gave evidence that staff were free to carry out work “as they saw fit.” There was a degree of autonomy for Mr Zuccon to decide how to perform the relevant work.[6]
(iv)Mr Zuccon was free to accept or reject assignments as he saw fit.[7]
Mr Zuccon was free to perform other work during the relationship and did so.[8]
(vi)Mr Zuccon supplied his own tools, vehicle, and phone.[9]
In contrast, the Commissioner found there is “overall no significant evidence to suggest that the Applicant was working in the Respondent’s business as opposed to his own business.”[10]
The Appeal
On 15 July 2024, Mr Zuccon filed a Form F7 notice of appeal pursuant to s.604 of the FW Act in relation to the Decision together with a document containing Mr Zuccon’s response to the Decision. The grounds identified in the notice of appeal can be summarised as follows:
The Commissioner misapplied the law and the Decision is contrary to advice given by the Australian Tax Office (ATO) and Fair Work Ombudsman (FWO).
(ii)The Commissioner made an error of fact and ignored documentary and other evidence filed by Mr Zuccon.
There are errors contained in the transcript and the Decision erroneously refers to a Digital Court Booklet rather than the Digital Hearing Booklet.
(iv)It is unclear whether the Commission adhered to fair hearing obligations and was free of apprehended bias.
Confidence in the Commission will be diminished if a jurisdictional objection precludes the Commission from properly investigating a matter.
In relation to the public interest, Mr Zuccon submitted that various young people are engaged by Powa Productions on similar terms, and so are other people in the audio/visual industry. Mr Zuccon submitted this demonstrates the case has implications beyond the interests of the parties involved.
Mr Zuccon also filed an outline of submissions on 2 August 2024. This document identified grounds of appeal, alleged legal and factual errors, and a list of authorities.
A hearing concerning whether Mr Zuccon should be granted permission to appeal the Decision was listed for 7 August 2024 via video. Mr Zuccon represented himself at the hearing. We granted permission for Powa Productions to be represented by Mr. Ryan of counsel because we were satisfied granting permission would enable the matter to be deal with more efficiently, having regard to its complexity. Assessing whether there is an employment or independent contracting relationship is a complicated area of law that has even divided the High Court in recent cases.
Mr Zuccon provided oral submissions during the hearing on 7 August 2024. Mr Ryan provided brief oral submissions in reply. We reserved our decision at the end of the hearing.
Statutory provisions
Section 604 of the FW Act allows for appeals of decisions by Commission members and states:
“Appeal of decisions
(1) A person who is aggrieved by a decision:
(a)made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b)made under the Registered Organisations Act by the General Manager (including a delegate of the General Manager);
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note:Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.”
Authorities
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(1) requires the Commission to grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[11] The public interest is not satisfied simply by the identification of error or a preference for a different result.[12] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[13]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[14] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
Mr Zuccon has primarily argued that the Commissioner did not properly consider all the evidence he relied upon, particularly in relation to the following issues:
-How shifts were allocated.
-An increase in the frequency of Mr Zuccon’s work for Powa Productions in 2023.
-The extent of control Powa Productions had over the work of Mr Zuccon.
-The extent of tools and equipment provided by Powa Productions to Mr Zuccon.
We do not consider Mr Zuccon’s position to be arguable. It is clear from the Decision that the Commissioner considered Mr Zuccon’s evidence on all these issues and the evidence is specifically referred to in the Decision.[15]
The Commissioner identified the correct legal principles and applied them to the evidence in a detailed and orthodox manner. The Decision provides a thorough assessment of the relationship between Mr Zuccon and Powa Productions and explains why there was not an employment relationship based on clear and detailed findings linked to the evidence. Mr Zuccon’s written and oral submissions before us generally failed to engage with the specific findings made by the Commissioner which led him to conclude there was not an employment relationship. Mr Zuccon focused on rearguing points that were raised and considered in the first instance proceeding and argued on appeal that a different conclusion should have been reached by the Commissioner. Mr Zuccon also suggested the Commissioner was biased or did not provide a fair hearing, seemingly because the Commissioner did not agree with Mr Zuccon’s argument. There is no merit to that submission. We are not satisfied Mr Zuccon has identified any arguable legal or factual errors in the Decision.
Mr Zuccon’s written submissions and those made orally during the hearing were heavily focussed on cases that Mr Zuccon contends were overlooked at first instance. However, it is clear from the Decision that the Commissioner was aware of the relevant authorities and cited a recent summary of the applicable principles which have emerged from the various cases, particularly in circumstances where, as in this case, the rights and duties of the parties were not comprehensively committed to a written contract. There was clearly no error in that approach. In this area of law, all the facts and evidence must be considered, and an overall assessment made based on the correct legal principles and the contractual rights and obligations created by the parties. In our view, that is precisely what the Commissioner did. The identification by Mr Zuccon of a particular similarity between his circumstances and another case in relation to an isolated issue does not demonstrate an arguable case of appealable error in the Decision. High-level summaries of the legal principles by bodies such as the ATO or the FWO also provide minimal, if any, assistance in characterising the relevant relationship. The Commissioner was correct to focus on the legal authorities and the facts of the specific case.
We are also not satisfied that the public interest is enlivened by the appeal. The appeal does not raise any genuine issue of law, principle, or wider application, but rather turns upon its own facts. We do not consider the fact that Powa Productions may have similar arrangements with other individuals to be sufficient to enliven the public interest.
We reject Mr Zuccon’s argument that resolving jurisdictional objections as an initial step before the Commission exercises its powers under the FW Act gives rise to any constitutional or other legal issue. As identified in the Decision,[16] the Commission is required to follow this process because of the Full Federal Court’s judgment in Coles v Milford.[17] It would be an error not to apply this authority.
Orders and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Mr Zuccon for himself.
Mr Ryan of counsel for Powa Productions.
Hearing details:
2024.
Sydney (by video):
7 August.
[1] Decision at [3] to [24].
[2] EFEX Group Pty Ltd v Bennett [2024] FCAFC 35; 330 IR 171.
[3] Decision at [29].
[4] Decision at [30].
[5] Decision at [30].
[6] Decision at [31].
[7] Decision at [32].
[8] Decision at [33].
[9] Decision at [34].
[10] Decision at [36].
[11] O’Sullivan v Farrer (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 at [44]-[46].
[12] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28].
[13] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[14] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[15] Decision at [3] to [24].
[16] Decision at [2].
[17] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591.
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