Anthony Hillyer v Brown and Doleman Unit Trust T/A House 2 Home Real Estate

[2017] FWC 1223

[2017] FWC 1223

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Anthony Hillyer
v
Brown and Doleman Unit Trust T/A House 2 Home Real Estate
(U2016/15375)

COMMISSIONER SIMPSON BRISBANE, 31 MARCH 2017

Application for an unfair dismissal remedy – Jurisdictional objection applicant not an employee – Consideration of Indicia – Totality of relationship considered - Objection upheld – Application dismissed.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Anthony Hillyer who alleges that the termination of his employment with Brown and Doleman Unit Trust T/A House 2 Home Real Estate (House 2 Home Real Estate) was unfair.

[2] For the purpose of this decision, any reference to “the applicant” is a reference to the applicant in the substantive matter, and any reference to “the respondent” is a reference to the respondent in the substantive matter.

[3] The application was filed on 23 December 2016. Mr Hillyer submitted he commenced employment at House 2 Home Real Estate on 15 May 2014 as a Sales Agent and Auctioneer. Mr Hillyer was given a letter providing two weeks’ notice of termination on 21 November 2016, with the termination taking effect on 4 December 2016. The letter terminating the engagement of was attached to the Form F3 employer response. 1

[4] Mr Hillyer claims his dismissal was unfair because he was dismissed without a valid reason, and was not afforded an opportunity to respond to the reasons given prior to his dismissal.

[5] On 10 January 2017 an Employer Response to the unfair dismissal application was filed. In the response House 2 Home Real Estate raised a jurisdictional objection that Mr Hillyer was not an employee and was engaged pursuant to a contract for service.

[6] The file indicates conciliation was to be conducted on 3 February 2017 however House 2 Home Real Estate advised they wished for their jurisdictional objection to be dealt with in the first instance.

[7] Directions were issued for House 2 Home Real Estate to file its evidence and submissions by 30 January 2017, Mr Hillyer by 6 February 2017 and House 2 Home Real Estate Reply material by 13 February 2017 with hearing dates from 15 March 2017.

[8] I listed the matter for further directions on 1 March 2017 and both parties consented to the jurisdictional issue being determined first and separately before the substantive matter. The matter was subsequently listed for jurisdiction hearing on 8 March 2017.

Background

[9] Mr Hillyer commenced his employment with House 2 Home Real Estate on 15 May 2014. A letter signed by Mr Hillyer and Mrs Naideen Brown, Principal of House 2 Home Real Estate, provided that Tony Hillyer and Associates Pty Ltd would provide the services of Anthony John Hillyer in the capacity of Sales Person and Auctioneer.

[10] The letter also said that Tony Hillyer and Associates Pty Ltd would provide an invoice to House 2 Home Real Estate to receive payment for services rendered, and that the contract could be terminated by either party upon the provision of two weeks written notice.

[11] It is Mr Hillyer’s evidence that it was agreed by the parties that he would join the sales team of House 2 Home Real Estate, to allow Mrs Brown to devote more time to the property management department of the business.

Meeting on 21 November 2016

[12] Mr Hillyer attended a meeting with Mrs Brown to discuss certain complaints made by clients. Mr Hillyer’s evidence is that they discussed the events. Mr Hillyer provided that he did not feel the events discussed were major concerns, and was shocked when he was provided a termination letter. Mr Hillyer further provided that the meeting did not provide him an opportunity to defend himself, respond to the allegations, and that the reasons for his dismissal were given.

[13] Mrs Brown’s evidence is that she held the meeting to discuss several complaints made by clients. Mrs Brown’s version of events is that Mr Hillyer was given every opportunity to provide his version of the events, and that Mr Hillyer had said ‘this is the way I do business and I won’t be changing.’ 2 Mrs Brown said in reply, ‘I don’t like it’, to which Mr Hillyer shrugged and said he was not interested that clients weren’t happy. Mrs Brown provided that after she presented the termination letter, Mr Hillyer had commented that he had not been happy for some time, and Mrs Brown replied saying she knew that.

[14] Mrs Brown further submitted that she held concerns in addition to the client complaints, regarding Mr Hillyer’s attitude towards herself and other employees in the office. Mrs Brown’s evidence is that she was exercising her right to terminate the contract as per the original letter by giving two weeks’ notice.

Jurisdictional Issue

[15] The parties have provided submissions on the jurisdictional objection raised by House 2 Home Pty Ltd, being that Mr Hillyer was not an employee, and had always been engaged as an independent contractor.

[16] Mr Hillyer provided that he was an employee remunerated on a commission only basis. Mr Hillyer submitted that he requested his income be paid into an account under Tony Hillyer & Associates Pty Ltd, which, on Mr Hillyer’s evidence, was a trustee for Mr Hillyer’s family trust. Mr Hillyer stated he did not hold an ABN which he would have needed to work as a contractor. 3

[17] In his written submissions Mr Hillyer provided he was required to meet the same requirements as other House 2 Home Real Estate employees as follows;

“A. Provide a vehicle in good condition and pay for my own fuel;
B. Provide a mobile phone;
C. Attend the office on a daily basis with one day a week off plus Sundays if not required for open homes;
D. Attend sales meetings and property caravan every Thursday morning;
E. Attend in house training sessions when required;
F. Comply with dress conditions including company name badge and company business cards;
G. Attend to marketing of properties listed on the company's behalf and collect
Advertising money and pay to appropriate place as instructed by Mrs Brown;
H. The marketing of properties consisted of photographs, write ups, and listing on various websites in conjunction with the sales administrator;
1. Attend to homes as advertised on the H2H website, realestate.com and other websites as open home;
J. Liaise with clients and provide them with feedback on the progress of their property sale;
K. Attend to preparation of documents on listing and selling plus other statutory requirements including pool safety, smoke alarms and neighbour disputes;
l. Attend on behalf of H2H to building and pest inspections, valuations, and final inspections as requested by clients;
M. Occasionally attend settlements on behalf of H2H;
N. Most importantly he never conducted any real estate business during the tenure of my employment at H2H Real Estate other than on their behalf.” 4

[18] Mr Hillyer also said he would have to request leave for approval from Mrs Brown, attend rostered floor time to attend to telephones and to attend and run formal training sessions for employees.

[19] Mrs Brown’s evidence is that Tony Hillyer and Associates Pty Ltd would invoice House 2 Home Real Estate upon the completion of a settled sale, for the services of Mr Hillyer as a Salesperson and Auctioneer. Mrs Brown provided that Mr Hillyer and Tony Hillyer and Associates Pty Ltd were responsible for their own taxes, superannuation and GST, and Mr Hillyer provided his own car, fuel, mobile phone and laptop.

[20] In contrast to Mr Hillyer’s evidence, Mrs Brown said Mr Hillyer would only advise when he would not be available to work due to holidays or commitments, he did not engage in company training courses, and had no set hours or expectation to work a minimum of hours. Mrs Brown said Mr Hillyer was given opportunities of extra clients if he wished, and that Tony Hillyer & Associates Pty Ltd could also offer Mr Hillyer’s services to other businesses, particularly in his role as an Auctioneer.

[21] Mr Hillyer did not earn a regular wage, and was paid commission upon receipt of an invoice. House 2 Home Real Estate also relied on the evidence of Ms Mary-Anne Lievesley, Accounts Manager, who stated that Hillyer & Associates Pty Ltd invoiced House 2 Home Real Estate for services and were listed in their MYOB software as a supplier. Ms Lievesley further stated that she inadvertently offered Mr Hillyer an employment agreement when he commenced his role, and that Mr Hillyer had told her he was not an employee and was on contract, and would not need to sign an employment agreement.

[22] An ASIC search confirmed Tony Hillyer & Associates Pty Ltd is a registered company at the time of the hearing.

Consideration

[23] The Full Bench decision in Kimber v Western Auger Drilling Pty Ltd 5 addresses the factors/indicia this Commission needs to consider in assessing whether an Applicant was an employee or an independent contractor during the relevant period of employment. The Full Bench endorsed the general approach to distinguishing employees and independent contractors provided in Jiang Shen Cai T/A French Accent v Michael Anthony Do Rozario6which follows;

“(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.

(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.

(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.

(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the particular context. For ease of reference the following is a list of indicia identified in the authorities:

• Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like.

Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of an independent contract. While control of this sort is a significant factor it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee.

“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.”“[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.”

• Whether the worker performs work for others (or has a genuine and practical entitlement to do so.

The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, working for others (or the genuine and practical entitlement to do so) suggests an independent contract.

• Whether the worker has a separate place of work and or advertises his or her services to the world at large.



• Whether the worker provides and maintains significant tools or equipment.

Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.

• Whether the work can be delegated or subcontracted.

If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.

• Whether the putative employer has the right to suspend or dismiss the person engaged.



• Whether the putative employer presents the worker to the world at large as an emanation of the business.

Typically, this will arise because the worker is required to wear the livery of the putative employer.

• Whether income tax is deducted from remuneration paid to the worker.



• Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.

Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.

• Whether the worker is provided with paid holidays or sick leave.



• Whether the work involves a profession, trade or distinct calling on the part of the person engaged.

Such persons tend to be engaged as independent contractors rather than as employees.

• Whether the worker creates goodwill or saleable assets in the course of his or her work.



• Whether the worker spends a significant portion of his remuneration on business expenses.

It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.

(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other.

(6) If the result is still uncertain then the determination should be guided by “matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” including the “notions” referred to in paragraphs [41] and [42] of Hollis v Vabu.” 7

[24] The Full Bench in Kimber further provided;

“The courts have developed a multi-factorial approach, in which there is no single decisive criterion to determine whether a contractual relationship is one of employment or one subject to a contract for services. This approach requires the consideration of the various indicia as summarised in French Accent set out above. It is also clear from the decision of the Full Bench of the Federal Court in ACE Insurance Limited v Trifunovski 8and others, that no one single criterion will necessarily be determinative and that each matter will turn upon the particular circumstances of the case, with the decision maker weighing all the relevant factors.”9

[25] The ultimate question for the Commission as stated in Abdalla v Viewdaze Pty Ltd t/a Malta Travel 10and endorsed in French Accent;

“… will always be whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is whether, viewed as a practical matter, the punitive worker could be said to be conducting a business of his or her own. This question is answered by considering the terms of the contract and the totality of the relationship.”

[26] Mr Hillyer relies on a decision in Rabba v PeleGuy Pty Ltd T/A PeleGuy[2013] FWC 70 where it was found a salesperson who worked exclusively for the respondent in that matter, who was not able to engage others to perform his work, was subject to the respondent’s supervision and control, and sold goods as an integral part of the respondent’s business was an employee. It was noted that in that case the applicant submitted invoices for payment, was paid by commission, was not subject to PAYG taxation, did not receive leave entitlements, and determined his own hours of work. Mr Hillyer submitted the circumstances in Rabba were comparable to his own.

[27] In Rabba, unlike in this matter, it was determined there was no written contract. It was also accepted that the parties discussed a ‘commission based engagement’. It was found the respondent in that case had an expectation about the hours the applicant worked, a direction was issued by the respondent that each customer had to be visited on a regular basis, and therefore the respondent had the power to direct the applicant.

[28] Further it was found the respondent considered it had a right to suspend and discipline the applicant. It was also found the role of the applicant did not involve any particular skill or qualification. The central finding in this case was that the applicant was subject to the control of the respondent as his work was allocated to him and supervised. I have concluded Mr Hillyer’s circumstances are distinguishable from what occurred in Rabba and will deal with the reasons in some detail below.

[29] Mr Hillyer explained that he is a licensed real estate agent and is subject to the Property Occupations Act2014 (Qld). He claimed in accordance with that Act only individuals can be salespersons (see s.117) and a corporation cannot be a salesperson – or a principal licensee cannot employee themselves as a salesperson. (s.98) He explained Tony Hillyer & Associates Pty Ltd has a real estate license and he is a Director and shareholder of Tony Hillyer & Associates Pty Ltd.

[30] I have read the respective section of the Property Occupations Act2014 (Qld) and it does not appear to me that either s.117 or s.98 of the Property Occupations Act 2014 are of themselves supportive of a conclusion that Mr Hillyer is by force of that law necessarily party to a contract of service with House 2 Home Real Estate. Section 117 provides that an applicant for registration as a real estate sales person must be an individual. The section does not preclude that person establishing a business. Section 98(3) referred to by Mr Hillyer is specifically directed at arrangements that of their nature contracts of service. As far as I can ascertain neither section assists Mr Hillyer on the particular facts of this case.

[31] House 2 Home Real Estate asserts that a contract was made between House to Home Real Estate Pty Ltd and Tony Hillyer and Associates Pty Ltd on 15 May 2014. The contract, found at attachment D to the Form F3 Response to the application, is in the form of a letter which contains the signatures of both Mrs Brown the Principal of House 2 Home and Tony Hillyer on behalf of Tony Hillyer and Associates Pty Ltd at the bottom of the letter and says as follows:

“Dear Tony

RE: Contractual Arrangements between House 2 Home Real Estate Pty Ltd and Tony Hillyer and Associates Pty Ltd

It is agreed that Tony Hillyer and Associates will provide the services of Anthony John Hillyer in the capacity of a Sales Person and Auctioneer.

Commission on Sales Service will be 60% plus GST and Auctions will be at an agreed rate plus GST.

Tony Hillyer and Associates will be responsible for all GST, Taxation, Superannuation and Holiday pay arrangements and will provide an Invoice to House 2 Home Real Estate Pty Ltd to receive payment for services rendered.

The contract may be terminated by either party giving two weeks written notice.”

[32] Ms Mary-Anne Lievesley gave evidence that she had been employed as the Accounts and Payroll Manager of House 2 Home Real Estate since 6 January 2009. She said she first meet Mr Hillyer in May 2014 when he came to the office. Ms Lievesley said on or about 12 May 2014 she gave Mr Hillyer an Introduction Information Pack that is given to all employees and contractors. Ms Lievesley said the introduction information pack consists of a Personal Details form, Fair Work Information Statement and Work Health and Safety Policy Manual. Ms Lievesley said she had also given Mr Hillyer an Employee Agreement.

[33] Ms Lievesley said that Mr Hillyer returned the Information Pack with the Personal Details form completed and gave her a copy of his Tony Hillyer & Associates Pty Ltd Licence number and a copy of Anthony John Hillyer license number.

[34] Ms Lievesley said that Mr Hillyer then informed her that he didn’t need to complete the Employee Agreement as he was not an employee of House 2 Home Real Estate Pty Ltd and that he was a contractor and he worked for Tony Hillyer & Associates Pty Ltd and that he had signed an agreement letter with Mrs Brown which he gave her a copy of to place in his Information Pack. Ms Lievesley said she then gave Mr Hillyer a copy of a Contractors Agreement which was for his information only and was never signed by Mr Hillyer.

[35] Ms Lievesley was cross examined about her evidence but remained adamant that Mr Hillyer had said to her he was not an employee and refused to sign an employee agreement, and further told her on a number of occasions he was as employee of Tony Hillyer & Associates Pty Ltd. 11 Ms Lievesley accepted that Mr Hillyer also did not sign a contractor agreement either.

[36] Ms Lievesley made clear invoices were received from Tony Hillyer & Associates Pty Ltd and paid to Tony Hillyer & Associates Pty Ltd. Ms Lievesley said she was provided the ABN number of Tony Hillyer & Associates Pty Ltd. 12 Mr Hillyer accepted that.13

[37] Mrs Brown’s evidence was also consistently to the effect that Mr Hillyer wanted his company to be engaged as an independent contractor to House 2 Home Real Estate. Mr Hillyer’s evidence contradicts Ms Lievesley and Mrs Brown and is to the effect that there was never a discussion about whether he would be an employee or a contractor. 14 I prefer the evidence of Mrs Brown and Ms Lievesley on this point. I accept Ms Lievesley’s evidence that Mr Hillyer rejected the employment agreement she said she had mistakenly provided to him in 2014 and her evidence was precise in regard to the reasons he gave for returning it to her. Ms Lievesley and Mrs Brown’s evidence was consistent about what they said was Mr Hillyer’s desire to be engaged as an independent contractor and that version fits more comfortably with the 2014 document, and are preferable to Mr Hillyer’s more general assertion that no such discussions ever occurred.

Whether House 2 Home exercises, or has the right to exercise, control over the manner in which Mr Hillyer’s work is performed, place of work, hours of work and the like.

[38] Mr Lievesley said Mr Hillyer did not work on Fridays, and would come into the office whatever time of day and there was no set time. 15 Mr Hillyer put it to Ms Lievesley that he was required to attend sales meetings however she responded that it was up to him if he came or not.16 Ms Lievesley said that Mr Hillyer was the only contractor.17 Mrs Brown said that Mr Hillyer was not restricted to any set hours and was given the opportunity to have “floor time” if he chose.18 She said that there was never any control over what time he was to come to the office or leave.19 In regard to annual leave Mrs Brown said that she did ask for a form when Mr Hillyer would not be working but that was only for her to know when he wouldn’t be available, and not for permission. Mr Hillyer submitted copies of rosters as proof of required working hours however Mrs Brown said Mr Hillyer was not required to work these hours.

[39] Mr Hillyer maintained at the initial interview, discussion occurred about commission rates and hours of work, starting times and open homes and whether he needed a computer and other matters. He said there was no doubt he was to be employed on the same terms as the other members of the sales team. 20

[40] Mr Hillyer maintained that in 2015 after consultants were engaged, salespersons were given a board to complete daily, and a more structured sales board was put into the office. He also said there was a day book to be filled in daily with appraisals and sales results.

[41] Mrs Brown said that at one point in November 2015 21 Mr Hillyer was offered an alternative arrangement to become an employee on consistent wages and a bonus structure, however she claimed he said he was not interested in the offer and preferred to remain on the contract. Mrs Brown claimed that at that point Mr Hillyer advised he would like to terminate the contract, however Mr Leon Brown, her husband, advised Mr Hillyer that there was no rush and he was welcome to stay until he found an alternative arrangement that suited him. Mrs Brown said that Mr Hillyer did not seek an alternative arrangement and remained with the existing contract.

[42] Mrs Brown said one month later a meeting was held where the commission rate was to be reduced from 60% to 50%. Mrs Brown said that the outcome of the meeting was that all were in agreement with the reduction. Mrs Brown said that Mr Hillyer’s acceptance of this was that all invoices from Mr Hillyer after this change were reflected in his invoices. 22

[43] Mrs Brown said that in the course of the meeting on 21 November when she raised concerns with him about complaints she had received concerning Mr Hillyer he said that was the way he does business and that he won’t be changing. 23

[44] I am inclined to accept Mrs Brown’s evidence concerning what Mr Hillyer said to her concerning the manner in which he worked in the course of their meeting on 21 November. Mr Hillyer did not seek to challenge in the course of the hearing that he made the statement to Mrs Brown concerning the manner in which he worked. This is indicative of the fact that both Mr Hillyer and Mrs Brown were of a view that Mr Hillyer determined for himself how he worked as a real estate salesperson.

[45] Whilst some of the structured office arrangements concerning how business was conducted at face value appear to be indicative of a degree of control exercised by House 2 Home Real Estate over Mr Hillyer, on having heard the evidence it appeared that in Mr Hillyer’s case, the arrangements he had made with House 2 Home Real Estate assisted him in facilitating his ability to sell properties through access to the resources of House 2 Home Real Estate, rather than him operating under the control of House 2 Home Real Estate.

Whether Mr Hillyer performs work for others (or has a genuine and practical entitlement to do so)

[46] Mrs Brown said that on one occasion Mr Hillyer told her he was doing some auctioneer work for another local agent. 24 Mr Hillyer indicated that the only time he did outside work was one auction which he said he was obliged to do just after he had commenced with House 2 Home Real Estate.25

[47] Mr Hillyer appeared to agree with the proposition that no one from House 2 Home Real Estate had discussed with him the issue of whether he could perform other work. 26 The 2014 Contract does not provide whether work is exclusive or free to source other work. The evidence discloses Mr Hillyer had used his professional skills for another entity on one occasion and the evidence does not suggest any obstacle in the way of him being to entitled to do so if he wished to. This is suggestive of independent contracting.

Whether the worker has a separate place of work and or advertises his or her services to the world at large

[48] There was no evidence of a separate place of work, however there was evidence that he paid for his own mail drops to promote his services. As I understand however his promotional material included representations of House 2 Home Real Estate as well as himself.

Whether Mr Hillyer provides and maintains significant tools or equipment

[49] The evidence was Mr Hillyer used his own car, paid for his own fuel, provided his own phone, and his own laptop computer. The evidence indicated other salespersons who were engaged as employees were provided a computer by House 2 Home Real Estate. Mr Hillyer maintained his arrangements were generally standard in the industry for employees.

Whether the work can be delegated or subcontracted

[50] The was no specific evidence that addressed the matter of whether Mr Hillyer was entitled to delegate work to others without reference to House 2 Home Real Estate.

Whether the putative employer has the right to suspend or dismiss the person engaged

[51] The evidence of Mrs Brown which I am inclined to accept is that she never understood she had any right to suspend or dismiss Mr Hillyer as an employer ordinarily would. Instead I am inclined to accept her evidence that she understood that the 2014 contact gave both parties to the contact, namely House 2 Home and Tony Hillyer & Associates Pty Ltd, the right to terminate the contract by either party giving two weeks’ notice. This is indicative of independent contracting.

Whether the putative employer presents the worker to the world at large as an emanation of the business

[52] Mrs Brown said that Mr Hillyer did not wear clothing with a logo of House 2 Home Real Estate, however if he was going to do an appraisal on a property he would use House 2 Home material. Mrs Brown accepted that when Mr Hillyer started he had photos a badge and business cards provided by House 2 Home. 27 Mr Hillyer said that the properties he listed appeared in House 2 Home’s name on the realestate.com web site. He said in marketing he was presented no differently than the other salespeople. The evidence on this matter tends to be indicative of employment.

Whether income tax is deducted from remuneration paid to the worker

[53] Ms Lievesley said that Tony Hillyer and Associates Pty Ltd would provide her an invoice for the Commission for the sale of a property and she would pay Tony Hillyer as per the invoice information which included GST. Ms Lievesley said that at no time had she ever paid Mr Hillyer a wage and he was set up in MYOB as a contractor and always regarded as a contractor.

[54] Mr Hillyer said that he asked Mrs Brown if he could be paid commission due to him by invoice. He said the reason was that his income went to a family trust set up in 1998 whilst working at another real estate agent. He said the arrangement was set up by his accountants after advice from the ATO and the Office of Fair Trading. He said Tony Hillyer and Associates Pty Ltd was set up as a Trustee for the family trust. He said Tony Hillyer and Associates Pty Ltd has never held a bank trust account which under the Property Occupations Act is required to receive money in a real estate transaction on behalf of another person. He said he has never held a trust account under his licenses and has never conducted real estate business except on behalf of employers. 28

[55] Mr Hillyer said that he went to his accountants and said he wanted to reduce his tax. He said after receiving advice including consultation with the ATO the advice was to set up a trust. He said he was advised that to set up a trust he needed a trustee and Tony Hillyer and Associates Pty Ltd was set up as trustee for the trust. Mr Hillyer said the money paid to him went into the trust and in every case is distributed between himself and his wife and income tax is paid on the distribution. 29

[56] All employees are required to submit to their employer a Tax File Number and employers must withhold tax from wages paid. An employee cannot ask their employer to pay gross salary into a family trust rather than receive post tax income. All employment income is required to be declared in a tax return. Mr Hillyer gave clear evidence that he quite deliberately struck an arrangement with House 2 Home Real Estate where he wanted the commission to be paid by House to Home following the issue of an invoice in the name of the trustee of a trust. Mr Hillyer established the trust for the very reason of having monies paid taxed in a manner other than would be the case if he had declared the amount as employment income attracting withholding tax. The fact of this being a deliberate decision on the part of Mr Hillyer is indicative of independent contracting.

Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks

[57] Mr Hillyer was paid commission on the sale of a property and not a periodic wage or salary. This is indicative of independent contracting.

Whether the worker is provided with paid holidays or sick leave

[58] Mr Hillyer was not paid for holidays or leave. This is indicative of independent contracting.

Whether the work involves a profession, trade or distinct calling on the part of the person engaged

[59] Mr Hillyer’s worked as a licensed real estate agent which is a profession with associated qualification requirements and registration requirements subject to regulation. It is not uncommon for real estate salespersons to be engaged as independent contractors.

Whether the worker creates goodwill or saleable assets in the course of his or her work

[60] The was no specific evidence that addressed the matter of whether Mr Hillyer was creating goodwill or saleable assets in the course of his work.

Whether the worker spends a significant portion of his remuneration on business expenses

[61] Mr Hillyer ordered and paid for calendars and magnets from a company called Wholesale Magnets. The company invoiced Mr Hillyer via House 2 Home and Mr Hillyer reimbursed House to Home. Mrs Brown also said that Mr Hillyer did not consult her about marketing he did for himself such as letters to clients or flyers he distributed. Mrs Brown referred to an invoice from Tony Hillyer and Associates Pty Ltd for a list and sell that asked for the sum of $890 to be deducted as less payment of the invoice House 2 Home paid. 30 It became apparent in the course of the evidence other persons engaged as employees had also paid for their own magnets, however, these employees were required to consult Mrs Brown before making the purchase.31 Mr Hillyer said the main expenses were his car, and that he paid for letterbox dropping.

Conclusion

[62] Having considered the various indicia it tends to support a conclusion that the arrangement was one of independent contracting and not employment in this particular case but the indicia alone are not decisive in my view. It is now common for real estate salespersons to be employees as is evidenced by the existence of the Real Estate Industry Award 2010.

[63] The ultimate question is whether Mr Hillyer was a servant of House 2 Home Real Estate Pty Ltd, or whether he was conducting a business on his own behalf that the work he performed was part of. The evidence overall supports the conclusion that the character of the relationship was one where Mr Hillyer made a deliberate decision concerning how the relationship would operate and made a written agreement with House 2 Home to give effect to that agreement for a specific purpose. That written agreement clearly supports a conclusion this was an independent contracting arrangement and not employment. That document when viewed as part of the totality of the relationship supports the conclusion that Mr Hillyer was an independent contractor. On that basis the jurisdictional objection is upheld and the application must be dismissed.

COMMISSIONER

Appearances:

Mr A. Hillyer appearing on his own behalf

Mrs N. Brown for the Respondent

Hearing details:

2017

Brisbane;

March 8

 1   Form F3, attachment I.

 2   Respondent’s Outline of Arguments filed 8 February 2017 at 3c.

 3   Exhibit 4, Typed Statement of Anthony Hillyer dated 1 February 2017.

 4   Applicant’s Outline of Arguments: Objections filed 1 February 2017 at Annexure A

 5   [2015] FWCFB 3704

 6   Jiang Shen Cai T/A French Accent v Michael Anthony Do Rozario [2011] FWAFB 8307.

 7 Ibid at [30].

 8 [2013] FCAFC 3

 9   Ibid at [41]

 10 (2003) 122 IR 215.

 11   Transcript PN 178 – PN 179.

 12   Transcript PN 229.

 13   Transcript PN 239.

 14   Transcript PN 911 – PN 938.

 15   Transcript PN 182.

 16   Transcript PN 190.

 17   Transcript PN 218.

 18 Exhibit 2, Statement of Naideen Brown dated 19 January 2017 at [6].

 19   Transcript PN 281.

 20   Transcript PN 831.

 21   Transcript PN 460.

 22   Exhibit 2, Statement of Naideen Brown dated 19 January 2017 at [7], attachment F.

 23   Transcript PN 275.

 24   Transcript PN 274; PN 290.

 25   Transcript PN 322.

 26   Transcript PN 838.

 27   Transcript PN 377.

 28 Exhibit 4, Typed Statement of Anthony Hillyer dated 1 February 2017 at [6].

 29   Transcript PN 845.

 30   Transcript PN 311.

 31   Transcript PN 409.

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