Anthony Ducusin v Corporate Bodies Pty Ltd

[2025] FWC 279

[2025] FWC 279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Anthony Ducusin
v

Corporate Bodies Pty Ltd

(C2024/9096)

DEPUTY PRESIDENT COLMAN MELBOURNE, 31 JANUARY 2025

Section 365 – applicant not an employee – objection upheld – application dismissed

1. Anthony Albert Schweitzer Ducusin (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act). This provision states that, if a person has been dismissed and alleges that the dismissal was in contravention of Part 3-1 of the Act, the person may apply to the Commission to deal with the matter. The respondent to the application is Corporate Bodies Pty Ltd. It objects to the application on the ground that the applicant was not dismissed, because he was a contractor, not an employee. Under s 386 of the Act, only an employee can be dismissed. If the applicant was not an employee of the respondent, he had no standing to make an application under s 365 and his application must be dismissed.

1. The applicant and the respondent were parties to a written contract that describes itself as an independent contractor agreement. The contract identified the applicant as Anthony Albert. The applicant signed the document under this name. The contract stated that the relationship between the parties was one of principal and contractor and that the applicant would provide corporate massage services to the respondent for a minimum hourly fee of $50. This was later increased to $55 per hour. The contract required the applicant to submit invoices to the respondent in respect of the services he provided, and for the respondent to pay those invoices within 14 days. The respondent would offer the applicant appointments with its corporate clients. The applicant could express interest in assignments. The contract stated that the applicant was free to engage in other activities and that he could assign or subcontract any part of the services. The applicant provided services to the respondent from September 2023 and submitted invoices. In October 2024, a dispute arose between the parties. The company decided to terminate the contract.  

1. The applicant contended that he had been an employee of the respondent and pointed to several factors that in his view supported this conclusion. He said that he did not have control over his schedule of work but was required to service clients at particular times. He said that he could not in fact assign or subcontract his work and that everything had to go through the company’s manager, Kurt Mueller. He said that on several occasions he had proposed another masseur to Mr Mueller, and the company had then awarded the work directly to that person. The applicant also said that he did not control how much he was paid, and that the work that he performed had to be done to a high standard.

1. Mr Mueller said that the applicant was always free to assign or subcontract his work but had never chosen to do so. Mr Mueller said that he was always clear with contractors that they could assign or subcontract work, and that they should just make sure that the person to whom they assigned or subcontracted work was insured. Mr Mueller said that the applicant was free to request any fee he liked. Of course, the company did not have to accept what he proposed. The applicant was free to take jobs or not take jobs. Mr Mueller said that in the 6 months leading up to the termination of the contract, the applicant had only worked for the company on 20 occasions. The applicant did not dispute this.

1. I find that Mr Ducusin did have control over his schedule because he was free to accept or reject jobs as he saw fit. I find that he was also able to assign or subcontract his work, but that he never sought to do so. I accept that the applicant introduced other masseurs to Mr Mueller. But that does not mean that he could not assign or subcontract his work. It means that he chose not to do that. Instead, he decided to introduce another masseur to the company, whereupon Mr Mueller sent the job directly to that person. Mr Ducusin was able to propose whatever fee he chose; if he did not propose a fee, the default fee in the contract would apply. All of these matters are entirely consistent with a contracting relationship. So is the fact that services had to be provided to a good standard.

1. It is clear that the relationship between the parties was one of principal and contractor. The contractor agreement was not a sham. The parties conducted themselves in accordance with its terms. The applicant provided services to the company from time to time and invoiced the company for those services. The contract reflected reality.

1. The applicant was not an employee of the respondent. He was therefore not dismissed. The company’s jurisdictional objection is upheld. The application is dismissed.

DEPUTY PRESIDENT

Hearing details:

2025
Melbourne (by telephone)
31 January

Appearances:
A. Ducusin for himself
K. Mueller for the respondent

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