Anthony Ducusin v Corporate Bodies Pty Ltd

[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

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.

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.

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.

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.

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.

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.

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

Printed by authority of the Commonwealth Government Printer

In Anthony Ducusin v Corporate Bodies Pty Ltd, the applicant, Anthony Ducusin, applied to the Fair Work Commission under s.365 of the Fair Work Act 2009, seeking to have his dismissal reviewed on the basis that it contravened Part 3-1 of the Act. Corporate Bodies Pty Ltd, the respondent, objected to the application on the grounds that the applicant was not an employee and therefore not eligible to make such an application under the Act. The central dispute was whether the applicant was an employee or an independent contractor, a determination crucial to the jurisdiction of the Commission to hear the application.

The legal issue the court had to decide was whether the applicant was an employee or an independent contractor. The court examined the written independent contractor agreement between the parties, the nature of the services provided, and the level of control the applicant had over his work. The applicant argued that he was an employee based on the lack of control over his schedule, the inability to assign or subcontract his work, and the requirement to maintain a high standard of service. The respondent, on the other hand, maintained that the applicant was an independent contractor who had control over his schedule, could assign or subcontract his work, and could propose any fee he chose. The court needed to determine whether the contractual relationship between the parties was genuine and consistent with an independent contractor agreement.

The court found that the applicant had control over his schedule as he was free to accept or reject jobs as he saw fit. The court also found that the applicant was able to assign or subcontract his work, although he never chose to do so. The applicant’s introduction of other masseurs to the company did not negate his ability to assign or subcontract his work, but rather demonstrated his choice not to do so. Furthermore, the applicant could propose any fee he chose, and if he did not, the default fee in the contract would apply. The court concluded that these factors were consistent with a contracting relationship and that the contract between the parties accurately reflected their arrangement. The applicant was not an employee of the respondent, and therefore, the company’s objection to the application was upheld. The application was dismissed.

The final order of the court was that the respondent’s objection to the application was upheld, and the application was dismissed.

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