Alexandra Jervis v Melbourne Pub Group Pty Ltd

[2013] FWC 7633

[2013] FWC 7633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexandra Jervis
v
Melbourne Pub Group Pty Ltd
(U2013/10073)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 1 OCTOBER 2013

Application for relief from unfair dismissal remedy - jurisdiction - independent contractor or employee.

[1] On 29 May 2013 Ms Alexandra Jervis (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the FW Act) alleging that the termination of her employment by the Melbourne Pub Group Pty Ltd (the Respondent) on 22 May 2013 was harsh, unjust or unreasonable.

[2] The Respondent filed a response on 26 June 2013 which raised a jurisdictional objection. The Respondent asserted that the Applicant had been engaged as an independent contractor and was therefore not an employee within the meaning of s.380 of the FW Act.

[3] The matter was referred for conciliation on 28 June 2013 but the matter was not resolved. A jurisdictional hearing was conducted on 30 August 2013.

[4] Mr Joel Zyngier appeared with permission for the Applicant and Mr Mark Champion appeared with permission for the Respondent.

[5] The Applicant gave evidence on her own behalf and Mr Thomas Walker, Managing Director of the Melbourne Pub Group Pty Ltd (MPG), gave evidence for the Respondent.

Background

[6] The Respondent operates four hotels in Melbourne which provide various dining and accommodation services. 1

[7] It is agreed that in August 2011 the Applicant rejected the Respondent’s offer of employment as the Marketing and Events Manager for MPG with a base salary of $80,000 per annum plus superannuation. 2 The Applicant rejected the offer of employment as she considered the level of remuneration inadequate.3

[8] It is further agreed that the Applicant subsequently proposed an arrangement whereby she would work as a contractor and invoice MPG weekly for an amount of $360 per day/$1800 per week plus Goods and Services Tax (GST). The arrangement was set out in an email of 10 August 2011 from Mr Walker to the Applicant which indicated that “... let’s get going on that basis discussed today. $1800PW invoiced weekly + GST. Contract from start date till 31/1/2012. January will be the time to appraise and look at forward decisions re package and employment.” 4 The Applicant indicated her acceptance by email later that day.5

[9] The Applicant commenced providing services on 29 August 2011, though prior to that she did come in for two days (15 and 16 August 2011) for a handover from the previous occupant of the role. The contracting arrangement continued until 22 May 2012, the Applicant’s final day. The Respondent had on 24 April 2013 given the Applicant notice it would not require her services beyond one month. 6

The Respondent’s evidence

[10] The Respondent’s evidence reflected the background as set out at [7] and [8] above. As to other aspects of the arrangement, the Respondent’s evidence was that it was agreed that she would not invoice MPG for any periods of leave and that the engagement was only temporary. 7 The Respondent’s further evidence was that the Applicant invoiced the Respondent in the name of Miss Peanut Jackson, charged and was paid GST by MPG, informed the Respondent when she would be unavailable to provide services and never requested nor invoiced MPG for any periods of leave or public holidays on which services were not provided.8

[11] As indicated at [8] above, in confirming the arrangement by email Mr Walker indicated that the contract was “from start date till 31/1/2012. January will be time to appraise and look at forward decisions re package and employment.” On the proposed review, Mr Walker’s evidence was that he did discuss with the Applicant her engagement in early 2012 but that the meeting “didn’t take place till after the end of January 2012.” 9 His evidence under cross-examination was that “it was a discussion of a general nature about how we were going to move forward. It was really informally decided that we would remain [with] the status quo, we would continue to pay the invoices and that there was no firm decision about any change to that arrangement.”10 Mr Walker’s further evidence was that the only subsequent revisiting of the Applicant’s status as a contractor occurred “in relation to an enquiry from the Victorian Payroll Tax Office”, though he acknowledged that it did not involve a discussion about altering the nature of the Applicant’s engagement.11

[12] Under cross-examination Mr Walker stated that:

(i) the Directors of MPG were responsible for “overall sign off for our marketing strategy”; 12

(ii) at the commencement of her engagement, he had never discussed with the Applicant her being precluded from undertaking other work, with his discussions “focussed around her being able to fulfil the duties that we gave her”; 13

(iii) he did not ask the Applicant whether or not she was undertaking other business activities when she commenced providing services to MPG; 14

(iv) the Applicant did not ask to work elsewhere, nor had he told her that she could not work elsewhere; 15

(v) with regard to the Applicant’s hours of work, on most occasions she worked five days per week in the business, occasionally she worked on weekends and, in the first few months of her engagement, she was certainly working long hours; 16

(vi) the Applicant had during busy times sought assistance from the Respondent in the way of extra staff; 17 and

(vii) the Applicant had on a number of occasions asked for time off without pay which he approved, though Mr Walker characterised these requests as the Applicant informing him when she would be available to provide services. 18

The Applicant’s evidence

[13] The Respondent objected to a number of aspects of the Applicant’s witness statement on the grounds that they either reflected how the Applicant felt about issues or went to issues of merit rather than the jurisdictional issue to be determined. Several aspects of the Applicant’s witness statement were struck out on that basis. 19 For reasons of clarity, I indicate that I have not taken into consideration those aspects of the Applicant’s evidence which were struck out.

[14] The Applicant’s evidence was that immediately prior to her engagement by the Respondent she worked for a national retailer, performing “project-based work across that business on a series of non-consecutive short term contracts.” The Applicant stated that she invoiced the retailer for her services through an entity known as Miss Peanut Jackson. The entity, which had been established in 2002, had an Australian Business Number (ABN) and had been registered for GST purposes in 2004. 20

[15] The Applicant’s evidence was that at no stage since establishing the entity had she maintained professional indemnity insurance, that she did not advertise the business or its services, that the entity does not have a separate place of business and that it does not operate a transactional financial system such as Mind Your Own Business (MYOB). 21

[16] As to the position of Marketing and Events Manager at MPG, the Applicant’s evidence was that she commenced discussions with the Respondent about the possibility of taking up the position in late July. 22 The Applicant’s evidence is that in those discussions she made it clear to the Respondent that she wanted a salary package of approximately $100,000 per annum. Her expectation was based on what she understood about the position and its requirements, MPG’s likely expectations of her and the skills, experience and contacts she would bring to the position.23

[17] The Applicant’s further evidence was that on 7 August 2011 the Respondent emailed to offer her employment on a base salary of $80,000 per annum plus superannuation. The email acknowledged that the remuneration was below the Applicant’s asking salary and indicated that the Respondent was “very circumspect about the business in the next 6 months.” The email went on to state “... it is really a matter of getting in and assessing as we progress throughout the year.” 24

[18] The Applicant’s evidence was that she contacted the Respondent the following day to make it clear that the terms of the offer of employment were not satisfactory to her. 25 Several days later when she formed the view that the Respondent was unlikely to make “a clear or quick decision about the position”, the Applicant contacted the Respondent and proposed a possible solution which she “considered a suitable compromise in the short term.” The solution involved the Applicant being paid “as a contractor in the interim with a review in a couple of months.” 26 The discussion lead to the email from the Respondent on 10 August 2011 discussed at [8] above. The Applicant disputes that the issue of whether or not she would invoice for periods of leave was discussed with the Respondent.27

[19] Other aspects of the Applicant’s evidence are that:

(i) it was not possible for her to delegate her work; 28

(ii) she had no authority to incur expenses, with all expenses to be pre-approved by the Respondent; 29

(iii) she was assigned a company email address which she was required to use at all times; 30

(iv) she was at all times held out as part of the Respondent’s business, citing her inclusion in the Respondent’s internal telephone lists; 31

(v) at no time did she undertake work for others, that her hours of work for the Respondent precluded her from doing so and that she did not consider that the Respondent would have permitted her to do so and certainly never mentioned to her the scope to do so; 32

(vi) she did not create or account for any goodwill for the entity Miss Peanut Jackson; 33

(vii) her invoices cited a private email address and her personal address and mobile telephone number; 34

(viii) she was required to seek permission from the Respondent to take leave and during some periods of leave her duties were undertaken by employees of the Respondent; 35

(ix) after October 2012 the Applicant invoiced the Respondent for public holidays on which she worked; 36 and

(x) she persisted with the contracting arrangement for economic reasons, despite forming the view in January 2012 that it was unlikely that she would be offered employment by the Respondent. 37

[20] Under cross-examination, the Applicant:

(i) confirmed that she had been contracted to provide services to a number of companies since 2004; 38

(ii) acknowledged that it was she who had proposed the contracting arrangement, indicating that she was happy to be a contractor until 31 January 2012 when the arrangement was to be reviewed; 39

(iii) emphasised that she considered the contracting arrangement a short-term arrangement and a means of getting the job that she wanted; 40

(iv) indicated that her proposal was partially motivated by a desire to have some handover with the current occupant of the position before that person finished working for the Respondent; 41

(v) stated that she knew she was not going to be paid superannuation and annual leave, at least for the period of the short-term arrangement, and suspected that she would not be entitled to paid personal leave; 42

(vi) disputed that the intended review of the contracting arrangement in January 2012 occurred; 43

(vii) expressed the view that she did not consider Mr Walker willing to have a conversation about reviewing the arrangement, adding that when she did “agitate towards review of my situation” that “it was either not acknowledged or ignored”; 44

(viii) accepted that discussions with the Respondent had occurred in January 2012 in the context of discussing “the pressures I was under, how we were going to move forward, how my role was going to be structured and what my status would be”; 45

(ix) rejected Mr Walker’s evidence that arising from their discussion in early 2012 she was happy to maintain the status quo; 46

(x) accepted that she charged and was paid GST by MPG; 47 and

(xi) indicated that she had changed the frequency of invoices from weekly to fortnightly at the Respondent’s request. 48

The submissions of the Respondent

[21] The Respondent submitted that the nature of the relationship was ambiguous, with indicia supporting a finding that it was a contracting relationship as well as indicia supporting a finding that it was an employment relationship.

[22] As the indicia were not determinative, the Respondent submitted that the Commission should attach great weight to the characterisation placed on the relationship by the parties. 49 In support of that submission, the Respondent cited ACT Visiting Medical Officers Association v Australian Industrial Relations Commission and Others50 (ACT VMO’s).

[23] The Respondent further submitted that the relationship “could have been structured as an employment relationship, but the parties knowingly, consciously and in good faith structured it as they did, business to business, ... and that came at the suggestion of the Applicant.” 51

[24] As to the indicia, the Respondent submitted that beyond the characterisation which the parties put on the arrangement, a number of indicia supported the finding that the Applicant was a contractor. In particular, the Applicant:

(a) had operated a pre-existing business, Miss Peanut Jackson, which had been registered in 2002 and had been providing consultant services to a national retailer immediately prior to commencing to provide services to the Respondent;

(b) had been registered for GST purposes since 2004, with her invoices in this case describing MPG as the client and specifying GST which the Respondent paid;

(c) was free to work for others;

(d) was not entitled to annual or sick leave; and

(e) did not have taxation deducted from her payments and was not issued with a PAYG certificate.

[25] The Respondent also acknowledged that there were a number of factors which pointed to an employment relationship. Those being that the Applicant:

(a) was subject to an element of control in that she was answerable to the Board of MPG regarding marketing and event management;

(b) provided her services by personal, non-delegable labour;

(c) operated from MPG’s premises; and

(d) was integrated into MPG’s operations and held out to external parties as part of MPG.

[26] On the issue of goodwill, the Respondent submitted that many businesses do not generate goodwill. 52

[27] In summary, the Respondent’s submission was that in circumstances where most indicia point to a contracting relationship there are insufficient grounds for the Commission “to overturn the structure which the parties freely and genuinely adopted in the business relationship.” 53

The submissions of the Applicant

[28] The Applicant submitted that the indicia point overwhelmingly to an employment relationship. 54 In support of that view it was submitted that the Applicant:

(a) was unable to delegate or subcontract her work and had no practical ability to perform work for others; 55

(b) answered to the Directors of MPG and was subject to their ultimate direction”; 56

(c) was held out to the world at large as part of MPG, evidenced by her email address and email footer which included MPG’s logo and branding and her inclusion in the Respondent’s telephone list; 57

(d) had no capacity to accrue goodwill to her business, Miss Peanut Jackson; 58

(e) sought staffing assistance from the Respondent during busy times, adding that if the Applicant had been operating a business she would simply have engaged additional staff and charged the client more; 59 and

(f) was directed by the Respondent to alter the frequency of invoices from weekly to fortnightly, describing this as inconsistent with “the inherent right of a business to determine its terms of trade.” 60

[29] On the other hand, the Applicant submitted that the only indicia of a contracting arrangement were the treatment of taxation and no entitlement to annual or personal leave. 61

[30] The Applicant also submitted that “an offer of employment is a significant indicator that the relationship which follows is in fact the same nature as the relationship which the offer went to.” 62 In support of that submission the Applicant cited Macdougall v Health Axis63 (Macdougall).

Employee or independent contractor?

[31] In Abdalla v Viewdaze Pty Ltd 64 (Abdalla) the Full Bench of the Australian Industrial Relations Commission (AIRC) set out in detail the common law approach to the determination of whether a person is an employee or independent contractor and provided a summary of the law.65 I have followed the approach taken by the Full Bench.

1. Was the Applicant conducting a business of her own?

[32] The Respondent submitted that the Applicant had established the entity Miss Peanut Jackson in 2002 and had since 2004 had a number of contracting engagements, including an arrangement where she was providing services to a national retailer immediately prior to providing services to the Respondent. The Applicant’s curriculum vitae states that she had been providing these services to the retailer from June 2010. 66 The Applicant under cross-examination acknowledged this as correct. In addition, the Respondent pointed to the submission of invoices in the name of Miss Peanut Jackson as further evidence that the Applicant was conducting a business.

[33] On the other hand, the Applicant submitted that although the Applicant did have an ABN, and was registered for GST, she was not running her own business. In support of that view it was submitted that the Applicant did not advertise the entity Miss Peanut Jackson in any way, the entity did not have a separate place of business, the entity did not have any goodwill, assets, insurance or identifiable clients, customers or suppliers, that the entity did not have internal transactional systems such as MYOB, and that invoices were issued to the Respondent headed with the Applicant’s name, personal address and mobile phone number. 67 Further, the Applicant was not able to undertake work for others and was held out by the Respondent as part of the Respondent’s business.68

[34] The key factors which favour a finding that the Applicant was conducting her own business is the existence of the entity Miss Peanut Jackson and the Applicant’s history of performing work for various clients, through that entity, on a contract basis since 2004 together with the characterisation which the parties put on the arrangement. However, the weight that can be attached to these factors is diminished by the factors highlighted by the Applicant and set out at [33] above.

2. The nature of the work performed and the manner in which it is performed

[35] The work performed by the Applicant required her to implement “high level marketing strategies developed by the Directors of the business across MPG venues and business units.” 69 It included duties such as developing, delivering and maintaining a marketing and events strategy; developing an annual marketing calendar; procuring and managing sponsor relationships; managing external and internal communications regarding marketing and events; and assisting with the recruitment of employees and contractors of the Respondent.70

[36] No evidence was presented indicating that the nature of the work undertaken by the Applicant as a contractor differed in any way from that contemplated under the previously offered employment arrangement.

[37] As to the manner in which the work was performed, it is not disputed that the Applicant answered to the Directors of MPG and was subject to their ultimate direction in respect of marketing and event management.

3. The terms of the contract

[38] No formal written contract was entered into by the parties. However, the email of 10 August 2011 from Mr Walker to the Applicant sets outs the terms of the arrangement. In short, the arrangement involved the Applicant invoicing the Respondent $360 per day/$1800 per week plus GST on a weekly basis. The arrangement was for the period from the Applicant’s start date, i.e. 29 August 2011, until 31 January 2012 when it was to be appraised. As it turned out, the arrangement continued until 22 May 2013.

[39] Much evidence was led on the issue of whether or not the intended review in late January 2012 actually occurred. The Respondent’s evidence was that a discussion did occur but not until after January 2012 where it was “informally decided we would remain [with] the status quo.” 71 The Applicant’s evidence was that the review did not occur, though she did acknowledge that a conversation with Mr Walker did occur in January 2012. As noted above, the Applicant rejected Mr Walker’s evidence that arising from their discussion in early 2012 she was happy to maintain the status quo.

[40] Based on the evidence, I am unable to determine conclusively whether or not the parties ever explicitly reviewed the arrangement.

4. The indicia of an employment relationship

4.1 Whether the Respondent exercises, or has the right to exercise control over the manner in which the Applicant’s work is performed, place of work, hours of work and the like

[41] The Respondent acknowledged that the Applicant was subject to an element of control in that she was answerable to the Board of MPG regarding marketing and event management. Reinforcing this point, is the evidence of Mr Walker when discussing the scope for the Applicant to work for others, when he said that his discussions with the Applicant at the time of her commencement were “focussed around her being able to fulfil the duties that we gave her” [emphasis added]. 72

[42] Some additional factors submitted by the Applicant which go to the issue of control were that the Applicant sought staffing assistance from the Respondent during busy times, that she had no authority to incur expenses, with all expenses to be pre-approved by the Respondent and that the Applicant changed the frequency of invoices from weekly to fortnightly at the Respondent’s request.

[43] As to the Applicant’s hours of work, the Respondent submitted that on most occasions she worked five days per week in the business, occasionally she worked on weekends and, in the first few months of her engagement, she was certainly working long hours. The Applicant submitted that the terms of the agreement with the Respondent were that the Applicant would work five days per week and on weekends as required. 73

[44] It is not disputed that the Applicant operated from MPG’s premises.

[45] The evidence favours a finding that the Respondent did exercise a degree of control over the manner in which the Applicant’s work was performed and that the Applicant regularly worked a five day week and additional hours as necessitated by events.

4.2 Whether the Applicant works for others (or has a genuine and practical entitlement to do so)

[46] Mr Walker for the Respondent submitted under cross-examination that he had never discussed with the Applicant her being precluded from undertaking other work and that “the Applicant did not ask to work elsewhere, nor had he told her that she could not work elsewhere”. 74

[47] The Applicant submitted that at no time did she undertake work for others, that her hours of work for the Respondent precluded her from doing so and that she did not consider that the Respondent would have permitted her to do so and certainly never mentioned to her the scope to do so.

[48] There was no evidence presented which indicated that the Applicant undertook work for others while providing services to the Respondent.

4.3 Does the Applicant have a separate place of work and/or advertise his or her services to the world at large?

[49] The Applicant’s submission pointed to the invoices she forwarded to the Respondent being headed with the Applicant’s name, her private email address and her personal address and mobile phone number. This favours a finding that the Applicant did not have a separate place of work.

[50] No evidence was presented that the Applicant advertised her services to the world at large or to anyone else during her engagement with the Respondent.

4.4 Whether the Applicant provides or maintains significant tools or equipment?

[51] The Applicant did not provide or maintain any significant tools or equipment. In July 2012 the Applicant did seek approval from Mr Walker for a new PC or to upgrade her Mac as a result of problems with her existing PC provided by the Respondent regularly crashing. 75 The response to that request is not known. Beyond that there is no suggestion of the Applicant providing or maintaining any significant tools or equipment.

4.5. Whether the work can be delegated or subcontracted

[52] It was not disputed that the Applicant did not have the ability to delegate or subcontract her work to others.

4.6 Did Respondent have the right to suspend or dismiss the person engaged?

[53] The email of 10 August 2011 which sets out the terms of the arrangement between the Applicant and the Respondent is silent on this issue. The Applicant submitted that the Respondent exercised its right to dismiss the Applicant on 24 April 2013 when it gave the Applicant notice it would not require the Applicant’s services beyond one month.

4.7 Did the Respondent present the Applicant to the world at large as an emanation of the business?

[54] It was not disputed that the Applicant was integrated into MPG’s operations and held out to external parties as part of MPG.

4.8 Was income tax deducted from remuneration paid to the Applicant?

[55] No income tax was deducted by the Respondent.

4.9 Was the Applicant paid a periodic wage or salary or by reference to completion of tasks?

[56] The Applicant was paid a set fee of $360 per day/$1800 per week.

4.10 Was the Applicant provided with paid holidays or sick leave?

[57] It is agreed that the Applicant was not provided with paid holidays or sick leave.

4.11 Did the work performed by the Applicant involve a profession, trade or distinct calling on the part of the person engaged?

[58] While the Applicant’s work did not involve a profession, trade or distinct calling it did draw on her public relations experience.

4.12 Whether the Applicant created goodwill or saleable assets in the course of his or her work

[59] The Applicant submitted that she “had no capacity to accrue goodwill for the business Miss Peanut Jackson”. 76 The Respondent submitted that many businesses do not generate goodwill. The evidence favours a finding that the Applicant did not create any goodwill or saleable asset in the course of her work.

4.13 Whether the Applicant spends a significant proportion of his or her remuneration on business expenses

[60] No evidence was led indicating that the Applicant was required to spend any of her remuneration on business expenses.

Summary of the evidence

[61] The features that support the contentions of the Applicant that she was an employee are that she:

• was subject to a degree of control by the Respondent;



• was paid a set fee of $360 per day/$1800 per week;



• did not have a separate place of work or advertise her services to the world at large;



• did not maintain any significant tools or equipment;



• was not able to delegate or subcontract her work;



• was presented to the world at large as an emanation of the Respondent;



• did not create any goodwill or saleable asset; and



• did not spend any part of her remuneration on business expenses.

[62] The features that support the contentions of the Respondent that the Applicant was an independent contractor are that the:

• parties knowingly and willingly entered into a contractual relationship which had been proposed by the Applicant;



• Applicant submitted invoices to the Respondent;



• Applicant was not subject to PAYG taxation; and



• Applicant was not paid annual leave, sick leave or any other entitlement normally associated with employment;

[63] As noted above, the evidence suggests that the issue of whether the Applicant was able to undertake work for others was not explicitly discussed by the parties. However, as also noted above, no evidence was presented that the Applicant did undertake work for others during the period she was providing services to the Respondent.

Conclusion

[64] Following the approach adopted by the Full Bench of the AIRC in Abdalla I have considered the totality of the relationship.

[65] From [61]-[63] above it is evident that there are indicia which support a finding that the Applicant was a contractor and that there are indicia which support a finding that she was an employee. Factors such as the degree of control exercised by the Respondent together with the evidence that the Applicant was held out to the world at large as an emanation of the Respondent point to an employment relationship. Conversely, evidence that the Applicant had since 2004 been continuously working as a contractor through the entity Miss Peanut Jackson and had herself proposed the contracting arrangement after rejecting an employment offer from the Respondent point to a contracting relationship.

[66] I set out these factors to highlight the ambiguous nature of the relationship.

[67] The Respondent cited ACT VMO’s as providing authority for the Commission attaching great weight to the characterisation placed on the relationship by the parties in circumstances where the indicia were not determinative. In ACT VMO’s, the Full Federal Court said at [32] that:

“Each of the VMO contracts contained an express stipulation that the contract did not create and employer and employee relationship. The Full Bench correctly accepted that such a stipulation is not conclusive of the position it postulates; the parties cannot by the nature of their agreement change the nature of the relationship. Where, however, the nature of the relationship is otherwise ambiguous such a provision may remove the ambiguity ...”

[68] Beyond the absence of an express stipulation in the contract referred to in the above passage in the case before me, one other factor which distinguishes this case from the circumstances in ACT VMO’s is that there was no evidence led in this matter that the Applicant did undertake work for others during the period she was providing services to the Respondent. In ACT VMO’s, the visiting medical officers provided services to a range of public and private patients. 77

[69] It was submitted on behalf of the Applicant that some weight should be attached to the Respondent’s offer of employment, citing Macdougall as authority for such an approach. In that case it was found that:

“The offer of employment ... is a strong indicator that the essential character of the relationship was employment.” 78

[70] However, again there are factors in that case which distinguish it from this case. For instance in that case, the Applicant, Mrs Macdougall, considered that from the time of an offer of employment was made to her that she was entitled to paid leave. 79 Further, it was she that had requested a continuation of the invoicing arrangement because of arrangements she had with a leased vehicle.80 This led to a finding in Macdougall that:

“I am satisfied that the contract for service and the payment by invoice arrangements were tax minimisation arrangements rather than indicators of the real character of the situation.” 81

[71] Based on the evidence in this case I consider the contracting arrangement proposed by the Applicant was intended as a short term arrangement designed to get her “foot in the door” with the Respondent and lead to her preferred outcome of employment at an acceptable level of remuneration. The short term nature of the arrangement is supported by the period of engagement which was to continue until 31 January 2012 after which it would be reviewed. Consistent with that, the evidence suggests the Applicant was prepared to trade off some of the entitlements she would have received as an employee, such as paid leave and employer funded superannuation contributions, to bring the level of remuneration closer to what she was seeking. This is reinforced by the Applicant’s acknowledgement under cross-examination that she knew she was not going to be paid superannuation and annual leave, at least for the period of the short-term arrangement, and suspected that she would not be entitled to paid personal leave. 82

[72] Mr Walker’s comments under cross-examination that his discussions with the Applicant at the commencement of her engagement were “focussed around her being able to fulfil the duties that we gave her” 83 [emphasis added] suggest that, despite the label the parties put on their arrangement, the Respondent would treat the Applicant as an employee. The Respondent’s submission that the Applicant was subject to an element of control in that she was answerable to the Board of MPG regarding marketing and event management and was integrated into MPG’s operations and held out to external parties as part of MPG reinforces that view. Also relevant in this regard is the absence of any evidence indicating that the nature of the work undertaken by the Applicant as a contractor differed in any way from that contemplated under the previously offered employment arrangement.

[73] While it is not disputed that the Applicant had provided services on a contractual basis to a range of clients since 2004 through the entity Miss Peanut Jackson, as noted above the evidence favours a finding that the Applicant did not have a separate place of work. Further, no evidence was presented that the Applicant advertised her services to the world at large or to anyone else during her engagement with the Respondent or that she undertook work for others while providing services to the Respondent. This supports a finding that the Applicant was not in reality conducting a business of her own.

[74] In the context of what is described at [34] in Abdalla as the ultimate question, that is:

“... 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”

I consider that taken together these factors point to a relationship where the Applicant was a servant of and in the Respondent’s business.

[75] For these reasons I find that the arrangement was an employment relationship. In coming to this conclusion I have not only given consideration to the totality of the relationship, with particular regard to the various indicia discussed at [32]-[60] above, the fact that the Applicant proposed the contracting arrangement to the Respondent and the label which the parties knowingly put on their relationship. However, despite the label put on the relationship by the parties, I am satisfied that when the totality of the relationship is looked at the indicia favour a finding that the arrangement was an employment relationship.

[76] The jurisdictional objection is therefore dismissed and the matter will be listed for hearing of the substantive application.

DEPUTY PRESIDENT

Appearances:

J. Zyngier for the Applicant.

M. Champion of Counsel for the Respondent.

Hearing details:

2013.

Melbourne:

August 30.

 1   Exhibit C1 at [2]

 2   Ibid [4]

 3   Exhibit Z1 at [17]

 4   Ibid Attachment AJ3

 5   Ibid Attachment AJ4

 6   Outline of Submissions of the Applicant at [2.10]

 7   Exhibit C1 at [8]

 8   Ibid [12] and [13]

 9   Transcript at PN 107

 10   Ibid PN 106

 11   Ibid PN 109-113

 12   Ibid PN 135

 13   Ibid PN 141

 14   Ibid PN 144

 15   Ibid PN 148-149

 16   Ibid PN 152-159

 17   Ibid PN 165

 18   Ibid PN 166-169

 19   Ibid PN 229-316

 20   Exhibit Z1 at [2]-[4]

 21   Ibid [5]

 22   Ibid [6]-[7]

 23   Ibid [12]-[13]

 24   Ibid Attachment AJ1

 25   Ibid [17]-[18]

 26   Ibid [19]

 27   Ibid [20]

 28   Ibid [46]

 29   Ibid [47]

 30   Ibid [50]

 31   Ibid [51]-[52]

 32   Ibid [54] and [63]-[64]

 33   Ibid [57]

 34   Ibid [73]

 35   Ibid [75] and [78]

 36   Ibid [77]

 37   Ibid [79]

 38   Transcript at PN 410-479 and PN 553

 39   Ibid PN 504-505

 40   Ibid PN 519

 41   Ibid PN 503

 42   Ibid PN 540-543

 43   Ibid PN 556

 44   Ibid PN 560 and PN 609

 45   Ibid PN 556

 46   Ibid PN 571-573

 47   Ibid PN 599-600

 48   Ibid PN 659-664

 49   Ibid PN 716

 50 (2006) 153 IR 228

 51   Ibid PN 734

 52   Ibid PN 738

 53   Respondent’s Submissions in Support of its Jurisdictional Objection to the Application at [18]

 54   Transcript at PN 776

 55   Ibid PN 749

 56   Ibid PN 753

 57   Ibid PN 756

 58   Ibid PN 759

 59   Ibid PN 766

 60   Ibid PN 770

 61   Ibid PN 767

 62   Ibid PN 762-763

 63 (2012) FWA 3058

 64 (2003) 122 IR 215

 65   Ibid [34]

 66   Exhibit C1 at Attachment TW2

 67   Outline of Submissions of the Applicant at [4.2]-[4.3]

 68   Ibid [4.5]-[4.6]

 69   Exhibit C1 at [9]

 70   Outline of Submissions of the Applicant at [2.7]

 71   Transcript at PN 106

 72   Ibid PN 141

 73   Outline of Submissions of the Applicant at [2.4](a)

 74   Transcript at PN 148-149

 75   Exhibit Z1 at Attachment AJ9

 76   Transcript at PN 759

 77   Refer [31] of the Full Court’s judgement

 78 (2012) FWA 3058 at [16]

 79   Ibid [12]5

 80   Ibid [11]

 81   Ibid [16]

 82   Transcript at PN 540-543

 83   Ibid at PN 141

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