Andrei Meltser v Toppa Sports Pty Ltd
[2023] FWC 3224
•6 DECEMBER 2023
| [2023] FWC 3224 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Andrei Meltser
v
Toppa Sports Pty Ltd
(C2023/3763)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 6 DECEMBER 2023 |
Application to deal with a dismissal dispute under s365 of the Act - jurisdictional objection that there was no dismissal – Applicant not dismissed.
On 26 June 2023, Mr Andrei Meltser made a general protections application involving dismissal to the Fair Work Commission, pursuant to s.365 of the Fair Work Act 2009 (the Act), by filing a Form F8 – General Protections Application Involving Dismissal. The Respondent to this application is Toppa Sports Pty Ltd (Toppa Sports). It has objected to Mr Meltser’s application on the basis that there was no dismissal.
In Coles Supply Chain Pty Ltd v Milford,[1] the Full Court of the Federal Court outlined the task of the Commission in cases such as this one, as follows:
“To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply. It is also open to a respondent to admit that a dismissal has occurred but dispute that the dismissal took effect within 21 days of the date that the application was filed. Such a dispute may give rise to an issue under s 366(1), involving as it does a question as to whether it is necessary for the FWC to determine whether more time should be “allowed” for the application to be made under s 365. That too is an antecedent dispute, going to the question of whether an application has been made. It is a dispute that must be resolved before the powers conferred by s 368 can be exercised at all.”[2]
As a person must have been dismissed in order to be entitled to make a general protections dismissal dispute application, I must determine whether Mr Meltser has been dismissed by Toppa Sports, before the Commission can exercise powers under s.368 to deal with a dispute about whether Mr Meltser was dismissed in contravention of the general protections set out in the Act.
The parties had the opportunity to file and serve submissions, witness statements and documents they relied upon pursuant to directions of the Commission. Mr Meltser and Mr Christopher Burnett from Toppa Sports appeared at a determinative conference on 29 August 2023, at which time they gave evidence and were provided with the opportunity to make submissions and conduct cross examination. On 25 August 2023, I had issued two Orders pursuant to s.590(2) of the Act, requiring the parties to produce a number of specified documents. Amongst the documents produced was Mr Meltser’s 2021-22 Income Tax Return.
Factual Background and Summary of Submissions
Mr Meltser said he was recruited by Mr Burnett into a job that had been advertised on LinkedIn. The position advertised was for a Sports Performance Analyst (Videographer) and Mr Meltser relied on references in the advertisement to the position being both part-time and casual (for up to 15 hours per week).[3] The advertisement for this position also outlined that weekend work was required and days off would be during the week from Tuesday-Thursday.
Mr Burnett said this sports performance analyst role was not the position discussed with, and obtained by, Mr Meltser and that Mr Meltser had in fact been engaged as a contractor to perform a different role, being that of a camera operator/videographer.[4] Mr Burnett said there was a discussion between himself and Mr Meltser in February 2022 regarding the camera operator/videographer position that was outlined in an email he sent Mr Meltser on 24 February 2022, with the header “TOPPA - Videography Opportunities 2022” (24 February 2022 email).[5]
At the determinative conference, Mr Meltser put it to Mr Burnett that Toppa Sports had sought to change the position on offer from the Sports Performance Analyst role to the camera operator/videographer role through the 24 February 2022 email, without telling him the role had changed. This was denied by Mr Burnett, who maintained the 24 February 2022 email did not relate to the Sports Performance Analyst role but instead outlined that the camera operator/videographer role involved two styles of camera work, one of which involved filming for live stream broadcast and the other for sports analysis.
The text of the 24 February 2022 email outlines that Mr Meltser was thanked for his interest for the 2022 season and provided with information regarding the ‘opportunity’ to work with Toppa Sports, including:
That it related to the provision by Toppa Sports of video of sport for livestream/broadcast purposes and sports performance (video) analysis;
Where the work was to be performed, with the consequent requirement to have reliable transport;
That the majority of shifts would be on Saturdays from March – September and generally ranged between 4 – 7.5 hours, with a 3-hour minimum;
That ‘Contractor rates’ were fixed at between $45 – $90 per hour, dependent on whether the “gear” was provided by Toppa or the Contractor
That it was important that the holder of the role had an ‘understanding’ of the sport they were to film.
The 24 February 2022 email concluded with Mr Burnett suggesting “if this position is still of interest”, he and Mr Meltser should arrange a telephone call and discuss any more questions and next steps. Mr Meltser recalled receiving this email.[6]
Mr Burnett sent a further email on 17 March 2022 asking Mr Meltser whether he was free for a telephone call. Mr Meltser agreed that a telephone conversation followed, during which the requirement to work Saturday shifts and working a trial were discussed.[7] Mr Burnett’s evidence was that the conversation included the contents of the 24 February 2022 email.[8] The follow-up to that conversation appears to have been an email Mr Burnett sent to Mr Meltser on 5 April 2022, in which he outlined that there were a number of shifts available from 23 April 2022 onwards and inquired as to whether Mr Meltser was still interested in having a trial with Toppa Sports.[9]
Mr Meltser confirmed he was asked to complete a work trial. He sent an email to Mr Burnett dated 22 April 2022. This stated Mr Meltser was available to work the trial on 23 April 2022 and gave rise to further email correspondence on 22 April 2022 in which various details were discussed. At 12.04am on 23 April 2022, Mr Meltser confirmed he would work for a two-hour engagement on 23 April 2022 from 8.45 – 10.45am.[10] It is apparent that Mr Burnett then sent an email on 25 April 2022 to invite feedback from Mr Meltser regarding the work performed on 23 April 2022.[11]
Mr Meltser asserted he was engaged to work for Toppa Sports pursuant to a verbal contract entered into with Mr Burnett which went only to rates of pay.[12] Mr Meltser could not recall the precise date upon which they agreed the contract but suggested it may have been two or three days after he had completed the work trial on 23 April 2022. Mr Meltser said the terms of the oral contract were that he was to be engaged on a part time basis, paid $50 per hour for recording work and various rates for livestream work, depending on who supplied the gear ($70 per hour, $75 per hour or $90 per hour). Mr Meltser’s evidence was that no particular hours of work were agreed, but that he was required to be available for work on Saturdays and “mostly Sundays”.[13] Mr Meltser did not receive leave entitlements.
Mr Meltser said that, following this, he was invited to join Toppa Sports through the Deputy system, having received an email with the header “Gmail - Christopher has invited you to join TOPPA Sports - Sydney on Deputy” and content stating, “Christopher Burnett from TOPPA Sports – Sydney has invited you to receive your shifts using Deputy”.[14] Mr Meltser asserted this weighed in favour of a finding that he was a part time employee, as did further wording in the body of the email, which described the use of Deputy to "Share leave and availability with your manager".[15]
Mr Burnett responded by asserting that Toppa Sports only utilised Deputy for scheduling, as opposed to its broader HR functionality and suggested Mr Meltser was elevating the generic Deputy content regarding leave and work announcements and descriptors into contractual terms.[16] Mr Burnett said that Toppa Sports carries out filming at hundreds of locations and its workers were required to block and unblock their times having regard to their availability.[17] He said that the workers who were considered by Toppa Sports to be capable of performing a particular assignment were assigned their shifts through Deputy if they were available. The shifts would be opened up to a maximum of five people, who could be either contractors or employees.[18] A note outlining details for an assignment, including its date, time and address, would be sent to the worker who had accepted it. Once assigned, Toppa Sports did not permit a worker (whether employee or contractor) to unilaterally transfer the assignment to another person if they subsequently became unavailable.
The use of Deputy was described at the determinative conference in the following terms:
“THE DEPUTY PRESIDENT: ... My question is did you have to accept those jobs on a Saturday?
MR MELTSER: Effectively, yes. When I have not accepted a job I was told I have to.
THE DEPUTY PRESIDENT: Mr Burnett, I will just ask you. Was there an obligation to accept a job on a Saturday if it was listed on Deputy by Mr Meltser.
MR BURNETT: No. You always had the opportunity to decline, although we advised, and it works more efficiently if - the way we used it, it is if you leave yourself available the expectation is that you're available to work. But anybody at any time can block off any day into the foreseeable future and we don't give shifts to people who have blocked it off. So that's how we work, and it works really well. If people follow that, and - so if they're free on Deputy we offer a shift and they can always decline, but the plan is that if they're already free, in inverted commas, using the app, then the shift is theirs.
THE DEPUTY PRESIDENT: So you work on the assumption that if someone is available or their status is available on Deputy - - -
MR BURNETT: Yes.
THE DEPUTY PRESIDENT: - - - that they will accept a shift. If they don't want to accept a shift they just block themselves off as being unavailable?
MR BURNETT: Yes. And they can decline the shift as well.”[19]
Mr Meltser asserted there was an obligation to work in the following terms:
“MR MELTSER: I did only the hours that were provided by Chris on Deputy. I was not in charge of the hours. The hours were simply given to me in Deputy, and for each shift I had to either accept or decline them.
THE DEPUTY PRESIDENT: So you could accept certain shifts and you could decline certain shifts?
MR MELTSER: In practicality I'm not able to - I was not able to decline shifts. I have spoken with Chris, and for example one thing that came up later - sorry if I'm speaking too fast to explain this. If I have accepted a mid afternoon shift Chris had told me I had to accept a morning shift.
THE DEPUTY PRESIDENT: All right. But did you know from week to week what hours you would be required to work on a Saturday?
MR MELTSER: No. Some of the shifts were given to me two months in advance. However, some of them have been changed two to three times and I had to accept each one of them separately. So they would change between where I was located at times. And after I had accepted they could be cancelled at any time.”[20]
Mr Meltser stated he used Deputy to record all of his shifts. He submitted this use of Deputy demonstrated the degree of control exercised by Mr Burnett over his day-to-day work as a videographer. Mr Meltser produced a Deputy system screen shot which displayed the date 22 May 2023 and included a reference to ‘Employee’.[21] Mr Burnett suggested no significance should be attached to this because it was simply a generic Deputy descriptor.
Mr Meltser said he was not required to supply a tax file number and only supplied an Australian Business Number (ABN) after having completed his first four shifts. Thereafter, he continued to invoice Toppa Sports and did not accrue any annual or personal leave. Mr Meltser relied on Toppa Sports not having required proof of him holding public liability insurance. While Mr Burnett stated that his practice was to make explicit to contractors engaged by Toppa Sports that they required an ABN and public liability insurance, he conceded that the insurance status of Mr Meltser was not checked. Further, it seemed that while Mr Meltser held a Working with Children Check, Toppa Sports did not specifically check whether it was of the sort required for carrying out paid work.
If it did not consider a contractor’s equipment could deliver the requirements of an assignment, Toppa Sports would supply the necessary equipment. Mr Meltser almost exclusively worked with a camera supplied by Toppa Sports but when uploading the data, would use his own device. Mr Meltser also used his own tripod and power bank and, on occasion, memory cards. Although not a requirement, Mr Meltser also elected to supply his own monitor. In terms of travel, Mr Meltser was required to get to and from his assignments by his own means.
Once he had finished filming, Mr Meltser could carry out the subsequent uploading from wherever he had coverage of the 4G network, and Mr Meltser said he did not have to attend the Toppa Sports office to do so. In fact, Mr Meltser only attended the Toppa Sports Office on three occasions for the purposes of collecting or returning a camera. Mr Meltser was not required to wear a uniform, but the camera he was supplied with came with a case with a Toppa Sports logo.
Toppa Sports satisfied itself as to Mr Meltser’s competency by providing some training under supervision and made recommendations on equipment that might be suitable for a particular assignment. It would also make recommendations and requests in relation to the particular vantage point from which filming ought to be carried out at a particular location.
The first Deputy record, in the material before me, was for work from 10.52pm – 5.00pm on 30 April 2022.[22] The first work for which a claim for payment was made by Mr Meltser is in an invoice to Toppa Sports dated 16 June 2022. It was said to be for 45 minutes of data recovery work on 1 May 2022, albeit this does not appear to have been recorded in Deputy.[23] Mr Meltser confirmed that all the work performed by him was outlined in the invoices he submitted to Toppa Sports,[24] although it became apparent that there were perhaps charges for two shifts in the previously submitted invoices that required amendment and an additional two shifts for which no invoices had been submitted.
On 5 May 2022, there appears to have been a message sent from Employment Hero[25] to ‘accounts’ with the heading “A new independent contractor has been added to TOPPA SPORTS PTY LTD” and message “A new independent contractor file was created for Andrei Melster.”[26] On Saturday 7 May 2022 and Saturday 14 May 2022, work was performed by Mr Meltser for which he invoiced Toppa Sports. On 16 May 2022, Mr Meltser said he received an email stating “TOPPA Sports has invited you to join Employment Hero”. It may be noted that it was stated in this email:
“Dear Andrei Meltser
Toppa Sports Pty Ltd has created an Employment Hero account on your behalf to record and maintain information regarding your contractor arrangements with the business…”[27]
In his witness statement, Mr Meltser stated he was sent an email on 16 May 2022 which included a request that he sign an Independent Contractor Agreement 2022 on Employment Hero. Mr Meltser said he received this email after he had worked ‘a couple of shifts’ and it was the first occasion upon which he had received anything in writing from Mr Burnett.[28] Mr Meltser said he did not sign the Independent Contractor Agreement 2022 because he had already been recruited, and was therefore already classified as an employee. Both Mr Meltser and Mr Burnett gave evidence that satisfies me there was no dialogue between the parties regarding this document,[29] and neither party produced a copy of the Independent Contractor Agreement 2022, albeit Mr Burnett stated that its terms (apart from the fees) would have been virtually identical to those in the subsequently issued Independent Contractor Agreement 2023.
Mr Meltser proceeded to invoice Toppa Sports for further work performed on Saturday 21 May 2022, Saturday 28 May 2022 and each of 1, 3, 4 and 11 June 2022. In respect of all this work and the work performed between 1 May 2022 and 14 May 2022, Mr Meltser prepared an invoice dated 16 June 2022. This invoice covered 47.74 hours and totaled $2,975.00. It was emailed to Toppa Sports that same day.[30]
Mr Meltser stated that Mr Burnett sent him the Toppa Sports fee schedule on 11 October 2022. This is a single page Fee and Service Schedule dated ‘February 1st 2022 – January 31st 2022’ (2022 Fee Schedule), [31] which outlined:
Services to be provided and ‘gear’ to be supplied by the ‘Contractor’ (at Item 3);
Corresponding hourly fees for the various services (at Item 5);
Shift Scheduling (Item 6), which outlined that payment would be made according to time recorded in Deputy and that all ‘Employees’ were required to login at the beginning of their shifts to ensure full payment for a scheduled shift;
A notice period of 2 weeks (Item 7); and
The requirement to invoice 7 days from the 1st day of the month (Item 8).
Mr Burnett agreed that the 2022 Fee Schedule was sent to Meltser on 11 October 2022 but also added that it had been discussed by the parties in March 2022.[32] Mr Meltser disputed this and said 11 October 2022 was the first time that he had received anything in writing about what the fees were and that the rates in the 2022 Fee Schedule were lower than what the parties had previously discussed.[33]
Mr Meltser argued the 2022 Fee Schedule represented the position as being both a contractor and employee position, and stated that he was sent a further “Fee & Service Schedule” on 12 January 2023, for the period 1 February 2023 – 31 January 2024 (2023 Fee Schedule).[34] In the 2023 Fee Schedule, the wording in Item 6 had become “All Operators must login at the beginning of their Shifts to ensure Full payment of scheduled Shift”. Additionally, the 2023 Fee Schedule stipulated a minimum shift of 3.25 hours at Item 5 and included a new Item 8 for travel allowances, in which it was outlined that allowances for travel would follow reasonable amounts guidelines from the Australian Taxation Office (ATO) and provided a link to an ATO document.[35] Mr Meltser said the ATO document only included references to employees.
Mr Burnett addressed the changed text in the 2023 Fee Schedule by outlining that:
a)the wording in the Schedules was changed/updated at the start of each year;
b)the minimum shift was introduced explicitly for contractors;
c)the change from “All Employees” to “All Operators” in Item 6 was to avoid confusion;
d)Toppa Sports had decided to adopt the ATO guidelines for travel allowances for both its employees and contractors, even though the wording only referred to employees.
Toppa Sports produced an Independent Contractor Agreement 2023 which was for the provision of services by Mr Meltser for Toppa Sports from 1 February 2023. This document was signed by Mr Burnett but not by Mr Meltser.[36] Mr Burnett acknowledged this but argued that Mr Meltser knew he was a contractor. He said that this fact was evident because Mr Meltser submitted invoices which charged fees that were consistent with the 2022 Fee Schedule and 2023 Fee Schedule.
Mr Burnett gave evidence that in addition to engaging independent contractors, Toppa Sports engaged employees on a casual basis to whom it paid hourly rates of pay ranging between $28 per hour and $40 per hour, with camera operators/videographers paid between $29-$35 per hour and sports analysts at $40 per hour.
A dispute arose on 5 June 2022 regarding particular equipment and payment for time Mr Meltser says he spent uploading some footage on 1 May 2023, which he claimed as an ‘additional shift’.[37] In emails sent by Mr Burnett to Mr Meltser on 5 June 2023, Toppa Sports maintained that there was no liability to make payment for the time spent uploading footage.[38] Mr Meltser asserts that he returned the camera gear that was ‘faulting’ and an SD Card containing footage from another fixture and then posted on Deputy a message containing “will not be doing any live stream where camera is retained and upload may be requesting pending contractual dispute”.[39] Mr Meltser alleges that in response to a statement he made outlining that he would engage in legal proceedings due to not having been paid for a shift, he was notified of his dismissal via an email from Toppa Sports sent on 6 June 2023, which stated:
“You won’t be offered any more work with TOPPA – Your conduct, communication and behaviour is not how I would like our company represented.”
Toppa Sports summarised its position by asserting that Mr Meltser was engaged as an independent contractor under an oral contract, on the terms that were outlined in the 24 February 2022 email and with Mr Meltser to be paid upon the submission of invoices. Toppa Sports acknowledged that the 2022 Fee Schedule was not sent until 11 October 2022, but maintained it had already been discussed and was reflected in the invoices submitted by Mr Meltser. Toppa Sports submitted its belief that Mr Meltser was an independent contractor was underscored by Mr Meltser having submitted invoices with an ABN. Noting that Mr Meltser had not signed the 2023 Fee Schedule sent to him, Toppa Sports nonetheless relied on Mr Meltser’s subsequent submission of invoices which reflected the rates and terms in the 2023 Fee Schedule. Toppa Sports submitted this confirmed Mr Meltser knew he was an independent contractor, as did his supplying of his own equipment from time to time and charging at the applicable (higher) rate for having done so. Toppa Sports outlined that if it wanted specific requirements accommodated, it would convey directions via Deputy and argued that Mr Meltser had never asserted that he was an employee and entitled to superannuation until after he had been advised that Toppa Sports would no longer offer him contracts or shifts. Toppa Sports confirmed that it would pay any outstanding invoices.
Mr Meltser disputed he had been employed as an independent contractor and submitted he was recruited as an employee to perform the same job as performed by an employee. Mr Meltser submitted there was no reason why Toppa Sports could not have requested his ABN and made the Independent Contractor Agreement 2022 available when he first commenced work. He refuted any suggestion that it was he who had proposed the independent contractor relationship, contending Mr Burnett was the initiator for the purposes of shifting Toppa Sports’ superannuation and tax burden. Mr Meltser raised the multifactorial test and submitted that apart from having been required to furnish Toppa Sports with invoices, all other factors were under the control of Toppa Sports. He relied on the acknowledgement from Mr Burnett that Toppa Sports did not check for proof of his insurance or make inquiries as to his Working with Children status. Mr Meltser also asserted that Mr Burnett completely controlled every shift and managed the minutiae of operations, such as camera placement. He claimed that once he had accepted a shift, he was not authorised to unilaterally transfer it if he subsequently became unavailable. Mr Meltser also queried the requirement that he perform a trial, normally a requirement for employees, if he was an independent contractor. Mr Meltser rejected any suggestion that the contract required him to perform work for free and that there was some kind of legal obligation to provide an SD card for free. He alleged he was dismissed for raising a contract-related issue.
Consideration
Section 386(1) of the Act relevantly defines the meaning of “dismissed” as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative: or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
…”
In order for a dismissal to have occurred pursuant to s.368 of the Act, Mr Meltser must have been an employee and not an independent contractor. Mr Meltser has invoked the multifactorial test to argue he was an employee of Toppa Sports. However, the recent decisions of the High Court in CFMMEU & Anor v Personnel Contracting Pty Ltd (Personnel Contracting)[40] and ZG Operations Australia Pty Ltd & Anor v Martin Jamsek & Ors[41] have confirmed that the legal relationship between the parties will be determined by reference to the rights and obligations created by any contract that they have made, not by reference to their subsequent conduct. Those decisions dealt with cases in which there were written contracts, which contrasts with the case before me. In this case there is no written contract. The task before me is therefore as articulated by Deputy President Colman in Francesca Keaveney v Marketing 4 U Pty Ltd and another:
“The terms of any contract will be oral or implied by fact or law, or some combination of these. The Commission must make factual findings from which conclusions can be drawn about the existence of oral terms and terms implied by fact.”[42]
As to the role Mr Meltser was recruited to perform, I am not persuaded it was the Sports Performance Analyst (Videographer) role, as he has asserted. I prefer the evidence of Mr Burnett that Toppa Sports advertised a number of roles and that Mr Meltser was engaged to perform the role of a camera operator/videographer described in the 24 February 2022 email. The chronology of events in the evidence before me, the correspondence between the parties and the invoices submitted by Mr Meltser, do not support a finding that Mr Meltser performed, or was required to perform the duties of a sports performance analyst.
Both parties agreed to having had a telephone conversation after Mr Burnett sent the email dated 17 March 2022, during which working an initial trial and thereafter on Saturdays was discussed. As to the other matters discussed, I prefer Mr Burnett’s account that the 24 February 2022 email and the 2022 Fee Schedule were discussed. I have noted the 24 February 2022 email covered the range of rates payable for various tasks which differed based on whose filming equipment was used, the work locations, the days upon which the work was offered and the length of shifts. I have further noted the contents of the 2022 Fee Schedule. I do not consider Mr Meltser’s explanation to be compelling. Despite claiming he was engaged as a part time Sports Performance Analyst (Videographer), Mr Meltser stated that no particular hours of work were agreed. The invoices he submitted bear this out and I have noted, at [16] above, that Mr Meltser did not know from week to week what hours he would be required to work on Saturdays. I have further noted that during the process of submitting his invoice dated 6 November 2022, Mr Meltser sent an email to Mr Burnett on 10 October 2022 which disclosed neither a sports analyst function nor fixed part time hours of work, instead stating:
“Thank you for the school athletics filming opportunity last week. I am very interested in expanding my range of skills and would welcome the opportunity to film water polo, hockey, basketball etc in the near future…”[43]
Mr Meltser relied on certain inaction by Mr Burnett to assert there was no relationship of principal/independent contractor. In particular, he cites the failure of Toppa Sports to either check for proof of his insurance or make fulsome inquiries as to his Working with Children Check status. Mr Meltser also relies on there having been an absence of dialogue between the parties or follow up from Mr Burnett regarding the “Independent Contractor Agreement 2022” to argue that the relationship was instead one of employer/employee.
I am not persuaded by these assertions. I do not view the ‘inaction’ identified by Mr Meltser in this light. Mr Burnett was a credible witness. I am satisfied that any inaction on his part and the unsophisticated attempts to use documentation did not reflect the true character of the relationship between the parties. Rather, they were due to Mr Burnett’s lack of attention to such detail and deficiencies in the Toppa Sports HR systems and practices. Mr Burnett made concessions to this effect, notwithstanding they did not paint his management capacity in a flattering light and might have pointed against him. Similarly, I consider Mr Burnett’s explanation of the limited purpose for which Toppa Sports used the Deputy system (i.e. rostering and shift login) was credible because the Deputy system suited the nature of the operations of Toppa Sports and the manner in which it engages its workforce. Mr Burnett gave frank evidence in relation to the requirement for employees and independent contractors to accept shifts if they had indicated in Deputy that they were available to work and explained they retained the capacity to decline shifts too. Mr Burnett also gave unchallenged evidence that the Toppa Sports business model also involved the engagement of casual employees.
By way of contrast, I consider Mr Meltser’s evidence has the flavour of a reconstruction of events that has arisen in response to a claim for $195.00 that gave rise to a dispute between the parties as to what constituted billable work. I do not consider Mr Meltser’s statement that he did not sign the Independent Contractor Agreement 2022 because he had already been recruited and was already classified as an employee compelling. At no stage during his engagement did Mr Meltser raise concerns with Toppa Sports about the Independent Contractor Agreement 2022. Nor did he assert in response that he was an employee. Mr Meltser did not demand fixed hours of work and invoiced throughout as if an independent contractor.
I am also not persuaded by Mr Meltser’s claims that 11 October 2022 was the first time that he had received anything in writing about the quantum of fees and that the rates in the 2022 Fee Schedule were lower than those previously discussed. Firstly, the 24 February 2022 email disclosed the range of rates payable for various tasks and the 2022 Fee Schedule had been discussed in the telephone conversation that took place between 17 March 2022 and 5 April 2022. Secondly, a review of the invoices submitted by Mr Meltser for work performed during 2022 reveals that he was invoicing for the work performed using rates at or above the applicable rates in the 2022 Fee Schedule. Likewise, Mr Meltser subsequently invoiced Toppa Sports using the rates, travel allowance and minimum engagement provided for in the 2023 Fee Schedule, thereby accepting the variations contained therein. In terms of Mr Meltser’s evidence that suggested he had no capacity to decline a shift, I consider Mr Burnett’s evidence outlined above at [40] was more credible. I have also noted that Mr Meltser was able to advise he was unavailable to work on 12 and 13 November 2022[44] and his invoices confirm he did not work on these days. Finally, I note that in Mr Meltser’s 2021-22 Income Tax Return, he described himself as a camera operator and disclosed personal services income from labour hire from Toppa Sports totalling $2,975.00, which matches the sum claimed in the invoice dated 16 June 2022 submitted to Toppa Sports for work performed between 7 May 2022 and 11 June 2022.[45]
Conclusion
Based on the evidence before me, Mr Meltser was not an employee. The parties made an oral contract that Mr Meltser would provide camera operator services to Toppa Sports as an independent contractor on the terms discussed in the telephone conversation that took place between 17 March 2022 and 5 April 2022, which included the particulars outlined in the 24 February 2022 email and the various rates outlined in the 2022 Fee Schedule (later varied by the 2023 Fee Schedule). Mr Meltser then proceeded to work as an independent contractor, invoicing as such and disclosing labour hire income for taxation purposes. Mr Meltser was not dismissed by Toppa Sports. As such, his application does not meet the requirements of s.365 of the Act and the Commission does not have jurisdiction to deal with it. As a result of my determination, the application made by Mr Meltser pursuant to s.365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
A Meltser, Applicant.
C Burnett for Toppa Sports Pty Ltd.
Hearing details:
2023.
Melbourne (via Microsoft Teams)
29 August.
[1] [2020] FCAFC 152.
[2] Ibid at [67].
[3] Digital Court Book at page 21.
[4] Transcript PN 250 and PN 260.
[5] DCB at pages 60.
[6] Transcript PN 268.
[7] Transcript PN 285 – 288.
[8] Transcript PN 292.
[9] DCB at page 34.
[10] DCB at pages 34 – 35.
[11] DCB at page 36.
[12] Transcript PN 90 – 92.
[13] Transcript PN 85 – 116.
[14] DCB at page 26.
[15] DCB at page 27.
[16] Transcript PN 331.
[17] Ibid.
[18] Transcript PN 574 – 576.
[19] Transcript PN 229 – 236.
[20] Transcript PN 146 – 150.
[21] DCB at page 20.
[22] DCB at page 122.
[23] DCB at page 106.
[24] DCB at pages 102-106.
[25] From the address: [email protected].
[26] DCB at page 79.
[27] DCB at page 25.
[28] Transcript PN 374.
[29] Transcript PN 384-386.
[30] DCB at pages 33 and 106.
[31] DCB at pages 76.
[32] Transcript PN 414.
[33] Transcript PN 408.
[34] DCB at pages 61 and 77.
[35] DCB at page 66.
[37] DCB at page 103.
[38] DCB at page 75.
[39] DCB at page 13.
[40] [2022] HCA 1.
[41] [2022] HCA 2.
[42] [2023] FWC 2343 at [17].
[43] DCB at page 73.
[44] DCB at page 74.
[45] DCB at page 106 and outlined above at [25].
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