Andrei Meltser v Toppa Sports Pty Ltd
[2024] FWCFB 229
•23 APRIL 2024
| [2024] FWCFB 229 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Andrei Meltser
v
Toppa Sports Pty Ltd
(C2023/8148)
| VICE PRESIDENT ASBURY DEPUTY PRESIDENT BEAUMONT | BRISBANE, 23 APRIL 2024 |
Appeal against decision [2023] FWC 3224 of Deputy President Clancy at Melbourne on 6 December 2023 in matter number C2023/3763.
Background
Mr Andrei Meltser (Appellant) has filed an appeal, for which permission is required, against a decision of Deputy President Clancy dated 6 December 2023 (Decision).[1] The Decision which is the subject of the appeal dealt with a jurisdictional objection made by Toppa Sports Pty Ltd (Respondent) in relation to the Appellant’s application made pursuant to s. 365 of the Fair Work Act 2009 (the Act). In that application, the Appellant alleged that he had been dismissed from his employment with the Respondent in contravention of Part 3-1, General Protections, of the Act. The alleged dismissal occurred on 6 June 2023.
At first instance, the Respondent contended that the Appellant was, at all material times, an independent contractor and not an employee of the Respondent and therefore was not capable of being dismissed within the meaning of s. 386 of the Act. In that event, it was said by the Respondent that no proper application could be made under s. 365. In his Decision, the Deputy President accepted that contention and dismissed the original application.
For the reasons that follow, permission to appeal the Deputy President’s Decision is refused and the appeal is dismissed.
Decision under Appeal
Background and Factual Findings
At first instance, the Deputy President conducted a determinative conference at which witnesses for both parties, who were self-represented, gave evidence and were provided with the opportunity to make submissions and conduct cross-examination. The parties were also required to produce documents in response to orders issued by the Deputy President for the purpose of informing himself, pursuant to s. 590(2) of the Act.
The evidence establishes that the Respondent is in the business of recording and supplying video footage of sporting events for broadcast, streaming and sports performance analysis purposes. In February 2022, the Appellant contacted the Respondent about a position that had been advertised by the Respondent for a Sports Performance Analyst (Videographer). On 24 February 2022, the Respondent sent the Appellant an email providing further information about a position that was available with the Respondent. The email provided basic details of the Respondent’s work. It also provided information about the time and locations at which work was to be performed and ‘contractor rates’, which were hourly rates of pay that varied depending upon whether the ‘gear’ was provided by the ‘contractor’ or the Respondent.
The Deputy President heard evidence as to what was said by the parties at or about the point at which the Appellant was engaged to work for the Respondent. He noted that it was agreed that following an email from the Respondent to the Appellant on 17 March 2022, the Appellant spoke with Mr Burnett, the managing director of the Respondent. A work trial for the Appellant was discussed and a two-hour trial was arranged for 23 April 2022.
The Appellant said that shortly after the work trial on 23 April, a verbal contract was entered into. He said he understood from that agreement that he was to work part-time on Saturdays and some Sundays. He said no particular hours of work were specified, and rates of pay were agreed, being $50 per hour for recording work and $70 to $90 per hour for livestream work, depending on who supplied the equipment. The Deputy President concluded that the evidence supported the view that Appellant did not know from week to week which hours he would be required to work on Saturdays.[2] He did not accept that there was a verbal contract entered into after 23 April under which it was agreed that the Appellant was to be engaged as a part-time employee.
The Respondent’s evidence, given by Mr Burnett, was that the discussion referred to canvassed the information contained in the email of 24 February 2022. He said that the email of 24 February 2022 related to a position of Camera Operator/Videographer rather than Sports Performance Analyst and it was the former position that was discussed and ultimately offered to the Appellant. The Deputy President accepted the Respondent’s evidence on this point.[3] He ultimately also accepted that the parties had entered into an oral contract during this conversation that the Appellant would provide those services to the Respondent as an independent contractor on terms including those referred to in the email of 24 February 2022.
The Deputy President also considered other evidence available to him about details of the working arrangement between the parties that had been reduced to writing. He noted that on 16 May 2022, the Appellant had received an email from the Respondent asking that he sign a document titled Independent Contractor Agreement 2022 (2022 Agreement). He noted that the Appellant accepted that he had received this document but said that he had not signed it because he had already been recruited and was classified as an employee. The Deputy President said that neither party had produced a copy of the 2022 Agreement, and he was satisfied that there was no dialogue between the parties about it. However, he noted Mr Burnett’s evidence that the 2022 Agreement was in ‘virtually identical’ terms to a later document titled Independent Contractor Agreement 2023 (2023 Agreement), issued to the Appellant in January 2023, save for the fees to be paid for the work undertaken. He also noted that the email of 16 May included a message to the Appellant stating that an ‘Employment Hero’ account had been created for him ‘to record and maintain information regarding your contractor arrangements with the business.’[4]
The Deputy President also referred to the terms of a Fee and Service Schedule dated February 1st 2022 – January 31st 2022 (sic) (2022 Fee Schedule) which the parties accepted had been provided by the Respondent to the Appellant on 11 October 2022. That schedule set out, amongst other things, the services to be provided and the ‘gear’ to be supplied by the ‘Contractor’ and the corresponding hourly fees for the various services. It also made reference to a requirement that all ‘employees’ login prior to the commencement of shifts. A second fee schedule for the period 1 February 2023 to 31 January 2024 (2023 Fee Schedule) which had been provided to the Appellant on 12 January 2023 was also in evidence. The Deputy President noted the differences between the two schedules.[5] He ultimately concluded that work was undertaken by the Appellant according to the rates set out in the 2022 Fee Schedule as varied by the 2023 Fee Schedule.[6]
The evidence relating to the use of the Deputy system which was used by the Respondent to allocate work was also considered. The Deputy President accepted the Respondent’s submission that the system was used for a limited purpose of rostering and shift login because this suited the nature of the business. He also accepted the evidence about employees and independent contractors being able to accept and decline shifts,[7] including the evidence that the Appellant had advised of his non-availability for particular days.
The Deputy President was not persuaded that the 2022 Fee Schedule sent on 11 October 2022 was the first time that the Appellant had received anything in writing about the quantum of fees that were payable for work. He accepted that the 24 February 2022 email contained the range of fees payable and that the 2022 Fee Schedule had been discussed during the telephone conversation following the email of 17 March 2022. The Deputy President concluded that the invoices submitted by the Appellant showed that the Appellant was invoicing for work during 2022 at rates at or above the rates in the 2022 Fee Schedule and that subsequent invoices from the Appellant for 2023 were consistent with the 2023 Fee Schedule. He concluded that the Appellant was not an employee of the Respondent and that the contract between the parties created a relationship of principal and independent contractor.
Applicable Principles – Employee or Contractor
At first instance (and on appeal) the Appellant argued that the multifactorial test was to be applied to determine whether he worked for the Respondent as an employee or independent contractor. The Deputy President did not proceed on that basis. Instead, the Deputy President referred to the High Court decisions in CFMMEU & Anor v Personnel Contracting Pty Ltd[8] (Personnel) and ZG Operations Australia Pty Ltd & Anor v Jamsek and Ors[9] and correctly observed that the legal relationship between the parties is to be determined by reference to the rights and obligations created by any contract that they have made, not by reference to their subsequent conduct.[10] He then observed, again correctly, that those cases involved situations where there were comprehensive written contracts. The Deputy President concluded that in this case there was no written contract and, citing a recent decision of the Commission, said that his task in that event was to ascertain the terms of the contract by making factual findings from which oral terms, and terms implied by fact, could be ascertained.
Grounds of Appeal
The Appellant advanced 12 grounds of appeal. It is unnecessary to reproduce those grounds in full. In some instances, the substance of the grounds of appeal is difficult to discern. The grounds can be summarised as follows:
(i)The decision did not weigh up the relevant indicia for determining the nature of the relationship including circumstances in which there are features that are consistent with both casual employment and an independent contractor relationship.
(ii)The Commission erred in applying the decision in Personnel where, as here, the validity of the contract is challenged as a sham.
(iii)Personnel is distinguishable from the present case because:
(a) There were numerous variations to the verbal contract during 2022 and 2023;
(b) The circumstances may be properly characterised as sham contracting;
(c) Personnel deals with arrangements that were comprehensively committed to a written contract which is not the present case;
(d) Personnel deals with labour hire arrangements and does not supersede the multi-factorial test.
(iv)The Commission did not take into account the illegality of the contract because superannuation payments were not paid or the fact that the Appellant had not signed the contract because it involved the avoidance of superannuation obligations (Grounds 4 and 5);
(v)The Commission did not take into account the evidence about the Appellant being unable to unilaterally transfer shifts to others, which is indicative of an employment relationship.
(vi)The Commission did not take into account the evidence supporting a conclusion that the Appellant had been engaged in the role of sport performance analyst;
(vii)The Commission took into account irrelevant considerations, including the engagement of others as casual employees by the Respondent (Grounds 8 and 10);
(viii)The Commission did not consider the failure by the Respondent to challenge evidence but did take that failure into account in the case of the Appellant and was therefore not ‘reasonably open to facts.’
(ix)The Commission did not take into account the requirement for the Appellant to carry a Respondent-branded camera case as an indicium of an employment relationship.
(x)The Commission erred in concluding that the invoicing for 2022 followed the 2022 Fee Schedule when the invoices included higher rates than the Schedule provided for.
Principles on Appeal
Appeals under s. 604 of the Act can only proceed with the Commission’s permission. Where an Appellant is able to demonstrate an arguable case of appealable error, the Commission has a broad discretion in determining whether or not permission to appeal should be granted. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is shown. This is so because an appeal cannot succeed in the absence of appealable error.[11] However, other than in relation to appeals relating to applications for unfair dismissal,[12] the Commission is required to grant permission where it is in the public interest to do so.[13]
Irrespective of the nature of the decision under appeal, the Full Bench is only able to exercise its powers where it identifies some error on the part of the primary decision-maker.[14]
A Full Bench of the Commission[15] has recently restated the principles relating to the public interest test for permission to appeal:
‘The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.’
Consideration
The Appellant’s efforts to argue that the Deputy President erred by placing reliance on the decision in Personnel is misconceived. Whilst it is true to say that the Court in Personnel was concerned with the terms of a contract that had been comprehensively committed to writing, it is equally clear that the relevant exercise involves the ascertainment of the terms of the contract, whether those terms be wholly in writing or otherwise, and an assessment of the legal rights and obligations created by those terms to determine the true nature of the relationship.
In Secretary, Attorney General’s Department v. O’Dwyer[16] the Federal Court addressed the point as follows:
‘29. … the appeal turns on whether the approach to be taken to determining whether an employment relationship has been created as explained in Personnel Contracting and Jamsek is limited to written contracts or extends to oral contracts (as in the present case) or to contracts which are partly written and partly oral. In my view, the approach taken in Personnel Contracting and Jamsek also applies where there is no wholly written contract, for the following reasons.
30. First, the foundational reasoning of the plurality in each of Personnel Contracting and Jamsek (Kiefel CJ, Keane and Edelman JJ) is that the focus of the inquiry is upon the legal rights and obligations created by the contractual relationship between the parties, rather than upon the history of the relationship between them (including the manner of performance of the contract).
31. Secondly, in the context of that foundational reasoning, there is no reason to distinguish between wholly written contracts and other contracts. This is so despite there being greater scope in the case of oral contracts for subsequent events to be considered as part of the process of identification of the terms agreed between the parties (see Personnel Contracting at 130-131 [177], 132-133 [183], 134-135 [188] and 135 [190] per Gordon J).
32. Thirdly, in Personnel Contracting at 108 [57], the plurality noted that Hollis involved a contract that was partly oral and partly in writing and approved an observation that Hollis "does not alter or even challenge the orthodox principle that courts are not concerned with what has 'actually occurred' in a relationship, but rather with 'the obligations by which the parties [are] bound'". See also Gordon J at 135 [190]. Further, at 108 [59], the plurality stated that a reason why a wide-ranging review of the entire history of the parties’ dealings is unnecessary and inappropriate is that the task of the court is to enforce the parties’ rights and obligations, not to form a view as to what a fair adjustment of those rights might require. These observations apply with equal force to contracts which are not wholly in writing.
33. Thus, the fundamental task – the ascertainment and construction of the terms of the legal rights and obligations of the parties, rather than an assessment of the history of the relationship between the parties throughout the life of the contract, including the manner of performance of the contract – remains the same regardless of the form of the contract in question.’[17]
The Commission has accepted this approach in circumstances where the terms of the contract are wholly oral. In Muller v Timbecon Pty Ltd[18] the Full Bench endorsed the approach taken at first instance by the Commission to post-contractual conduct and said that such conduct may be relevant to the ascertainment of the terms of an oral contract but not for the purpose of adding to or subtracting from those terms. The Bench said the latter would amount to a reversion to the multi-factorial test focusing on indicia of employment as opposed to a consideration of the rights under the contract as it was formed.[19]
The contention that the contract in question was a ‘sham’ was not developed by the Appellant at the hearing of the appeal. A submission was made that the arrangement followed an employment model, save for the invoicing.[20] We view the submission as being to the effect that the true legal nature of the relationship between the parties was that of employer and employee, not that the contractual arrangements were a sham in the sense discussed in Personnel. Gordon J in Personnel discussed the circumstances in which subsequent conduct might be used, including in the case of a sham arrangement which was described as a contract that ‘was brought into existence as “a mere piece of machinery” to serve some purpose other than that of constituting the whole of the arrangement’.[21] The plurality referred to the decision in Neale v Atlas Products (Vic) Pty Ltd[22] where the Court considered the circumstances in which a contract might be considered a sham and concluded that the terms of the written agreement should not be ignored unless ‘the evidence establishes quite clearly that the conduct of the parties was inconsistent with it as the basis of their relationship.’[23] In this case the legal obligations created by the terms of the contract were not seriously challenged and the evidence does not support a conclusion that the validity of the contract itself was vitiated by the conduct of the parties such that the arrangement could be considered a ‘sham’ in the relevant sense. We find there was no error as alleged in the grounds summarised at points (i) to (iii) in paragraph [14] above and we reject those grounds.
Ground (iv) does not provide a proper basis for an appeal ground. The ‘illegality’ of a contract on the basis that it did not provide for superannuation contributions was not the issue that the Commission was required to determine. The mere assertion by the Appellant that superannuation should have been payable, even an assertion that is not challenged by the Respondent, does not provide a legal or factual basis for the Commission to conclude that the relationship is one of employment. Nor does the Appellant’s opinion about that matter, even where it is said to provide an explanation as to why the Appellant chose not to sign a contract. We reject ground (iv) of the appeal.
Ground (vi) asserts that the Commission failed to take into account evidence supporting the view that the Appellant was engaged as a sports performance analyst. Again, the question before the Commission was whether the Appellant was an employee or a contractor, not whether he was engaged in one particular role or another. In any event, to the extent that the role in which the Appellant was engaged was relevant to the question to be determined, the Deputy President did consider that evidence and concluded that he preferred the evidence of the Respondent. That was a conclusion that was open to him on the evidence. There is no substance to Ground (vi) of the appeal.
Ground (viii) is no more than a complaint that the Deputy President gave inappropriate weight to the failure of one party to challenge the evidence or submissions of the other. There are no examples cited. The argument was not developed on appeal. We are unable to discern any error under this heading and we reject this ground of appeal.
Ground (vii) contends that the Deputy President took into account irrelevant considerations including the fact that the Respondent engages casual employees amongst its workforce. It is correct, as the Appellant asserts, that the engagement of casual employees by the Respondent would ordinarily have no bearing on the Appellant’s own status as either an employer or independent contractor. However, the Deputy President’s reference to the evidence about casual employees must be viewed in context. The context was the discussion about the Respondent’s Deputy system. The Deputy President accepted the evidence about casual employees to support his conclusions about the nature of the Respondent’s operations, but that evidence did not bear directly on the conclusion regarding the Appellant’s status in the way asserted by the Appellant. We reject this ground of appeal.
The remaining grounds of appeal, (v), (ix) and (x) above, address the way in which the Commission dealt with the evidence regarding, respectively, the Appellant’s inability to unilaterally transfer shifts to others, the ‘requirement’ for the Appellant to carry a Respondent-branded camera case and the invoicing for work during 2022. Each of these matters relates to post-contractual conduct. The High Court in Personnel made clear that there is greater latitude for post-contractual conduct to be taken into account for the purpose of identifying the terms of a contract, and therefore the rights and obligations of the parties, in circumstances where the contract is oral. The parties accepted that the terms of the original contract between them were agreed orally, although the Respondent also maintained, and the Commission accepted, that the agreed terms included the particulars of the text of the email of 24 February 2022.
It appears however that the grounds of appeal dealing with the evidence relating to these matters is advanced not on the basis that the Commission erred by improperly assessing the evidence for the purpose of identifying contractual terms, but rather that the Commission did not accept the Appellant’s evidence on these issues and did not properly weigh that evidence in the balance for the purpose of applying the multifactorial test. The Deputy President noted that inability to transfer shifts was not contested.[24] Where the facts were contested and the Deputy President preferred the evidence of the Respondent on each of these matters, we think it was open to him to do so. Further, for the reasons discussed earlier, the multifactorial test is not the test to be applied. It would have been an error on the part of the Commission to consider the evidence in the way the Appellant has urged in these grounds of appeal.
The Deputy President heard evidence about the camera case and other equipment, but it did not ultimately appear necessary to refer to that evidence for the purpose of ascertaining what terms had been agreed to. We do not think it was necessary for the Deputy President to do so and we see no error in the approach that was adopted in this respect.
The Deputy President expressly considered the issue of the acceptance or rejection of shifts and invoicing by the Appellant. In neither case did the Deputy President come to the view that the evidence on those matters supported a conclusion that the terms of the contract that had been entered into were inconsistent with a relationship of principal and independent contractor.
In the case of the invoicing arrangements, the Deputy President came to the view that those arrangements positively reinforced that conclusion. He noted that the fees had been referred to in the 24 February email and he accepted that they were discussed by the parties during the conversation where the contract was entered into. He rejected the submission that that the rates provided for in the 2022 Fee Schedule were lower than those that had been discussed and agreed. He also noted that the Appellant had invoiced as an independent contractor throughout his period of engagement, that he had done so using rates that were at or above those contained in the 2022 Fee Schedule and later, the 2023 Fee Schedule. In our view the Deputy President correctly took these matters into account for the purpose of ascertaining and construing the terms of the oral contract that had been entered into. He was also correct to conclude as he did, that the evidence relating to the terms on which invoicing and payment for work performed was to be done was entirely consistent with the proposition that the parties had agreed to and created a relationship of principal and independent contractor. We reject grounds (v), (ix) and (x) of the appeal.
The Commission concluded that the original contract entered into by the parties was an oral contract. The Deputy President also had regard to written documents. He accepted that the particulars of email of 24 February 2022 were incorporated into the contract. In the case of the Fee Schedules, he concluded that these constituted written variations to the oral agreement. The Deputy President observed that the 2022 Agreement, received by the Appellant in May 2022, although unsigned by the Appellant, was never challenged by the Appellant who thereafter worked in a way that was not inconsistent with that Agreement or the 2023 Agreement which followed it. Mere receipt of a document and non-objection to its contents, by itself, may not be sufficient to constitute consent to a contractual variation.[25] However, conduct, such as ongoing employment without objection, can be relied on to infer acceptance of a proposed variation. Whether such inference is available will depend on the terms and context of the offer, the conduct of the employee and all of the surrounding circumstances.[26] By extension this inference can be drawn in relation to a contract for services. In this case we are satisfied that the Deputy President did not err in his consideration of these matters. In particular, it was open to him to conclude that the terms of the Fee Schedules had been incorporated into the terms of the contract by way of variation and that the terms of those Schedules, notably the variable rates of pay and higher rates where the ‘gear’ was supplied by the contractor, support the view that the Appellant was undertaking work as an independent contractor.
We have considered the material filed by the parties in the appeal. We are not satisfied that the grounds of appeal disclose any instance of appealable error in the decision at first instance. We are of the view that the factual findings of the Deputy President were reasonably open to him on the evidence before him. The characterisation of a person as either an employee or independent contractor involves a legal conclusion that may or may not be affected by an error of law.[27] In this case we agree with the ultimate conclusion reached by the Deputy President that the Appellant was an independent contractor and not an employee of the Respondent. There was no error of law.
Conclusion/Disposition
We are not satisfied that the Appellant has demonstrated an arguable case of appealable error. Nor do we think that it is in the public interest for permission to appeal to be granted.
Permission to appeal is refused and the appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr A Meltser, the Appellant.
Mr C Burnett, for the Respondent.
Hearing details:
2024.
Sydney:
11 March.
[1] [2023] FWC 3224 (Decision).
[2] Ibid at [38].
[3] Ibid at [37] and [38].
[4] Ibid at [23].
[5] Ibid at [28] and [29].
[6] Ibid at [43].
[7] Ibid at [40].
[8] [2022] HCA 1.
[9] [2022] HCA 2.
[10] Decision at [36].
[11] Wan v. AIRC (2001) 116 FCR 481 at [30].
[12] As to which see s. 400 of the Fair Work Act 2009.
[13] Fair Work Act 2009 s. 604(2).
[14] Coal and Allied Operations Pty Ltd v. Australian Industrial Relations Commission (2000) 203 CLR 194.
[15] Peter Cole v The Commissioner for Public Employment, Office Commission Public Employment[2023] FWCFB 35. See also GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266, [24] - [27].
[16] [2022] FCA 1183.
[17] Ibid per Goodman J.
[18] [2023] FWCFB 42
[19] Ibid at [40].
[20] Transcript of hearing at first instance at PN 36.
[21] Op cit at [177].
[22] (1955) 94 CLR 419
[23] Quoted in Personnel op cit at [54] per Kiefel CJ, Keane and Edelman JJ.
[24] Decision at [14].
[25] Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633 at [341].
[26] Buckman v Barnawartha Abattoirs Pty Ltd (1994) 140 IR 376 at 379.
[27] ACT Visiting Medical Officers Association v. Australian Industrial Relations Commission (2006) 153 IR 228 at 234.
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