Benn Coubrough v Runlab Pty Limited
[2023] FWC 1132
•12 MAY 2023
| [2023] FWC 1132 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Benn Coubrough
v
Runlab Pty Limited
(U2023/880)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 12 MAY 2023 |
Application for relief from unfair dismissal – jurisdictional objection – whether applicant employed by the respondent
Mr Benn Coubrough was engaged by Runlab Pty Limited (Runlab) to provide services as a running coach in the period from February 2018 to 13 January 2023. Mr Coubrough alleges that he was employed by Runlab during this time and he was unfairly dismissed.
Runlab contends that Mr Coubrough was not, at any time, employed by Runlab and, therefore, he is not eligible to pursue an unfair dismissal claim against Runlab pursuant to Part 3-2 of the Fair Work Act 2009 (Cth).
This decision deals only with Runlab’s contention that Mr Coubrough was engaged as an independent contractor and not an employee.
A hearing, by video conference, was held in relation to Runlab’s jurisdictional objection on 5 May 2023. At that hearing evidence was given by Mr Vladimir Shatrov, director of Runlab, and Mr Coubrough.
Applicable legal principles
The question of whether a person is engaged as an independent contractor or an employee was recently considered by the High Court in CFMMEU v Personnel Contracting Pty Ltd[1] (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek[2] (Jamsek). The principles established by those cases were conveniently summarised by Justice Wigney in JMC Pty Limited v Commissioner of Taxation[3] as follows:
“16.The fundamental principles established by the judgments of the majority of the justices in Personnel Contracting and Jamsek may be shortly summarised as follows.
17.First, where the rights and duties of the parties are comprehensively committed to a written contract, the legal rights and obligations established by the contract are decisive of the character of the relationship provided that the validity of the contract has not been challenged as a sham, or that the terms of the contract have not been varied, waived or are subject to an estoppel: Personnel Contracting at [43], [44], [47], [59] (Kiefel CJ, Keane and Edelman JJ), [172] (Gordon J, Steward J relevantly agreeing at [203]). The task is to construe and characterise the contract made between the parties at the time it was entered into: Personnel Contracting at [174] (Gordon J).
18.Second, in order to ascertain the relevant legal rights and obligations, the contract of employment must be construed in accordance with the established principles of contractual interpretation: Personnel Contracting at [60] (Kiefel CJ, Keane and Edelman JJ), [124] (Gageler and Gleeson JJ), [173] (Gordon J). In that respect, regard may be had to the circumstances surrounding the making of the contract, as well as to events and circumstances external to the contract which are objective, known to the parties at the time of contracting and which assist in identifying the purpose or object of the contract: Personnel Contracting at [174]-[175] (Gordon J); Jamsek at [61] (Kiefel CJ, Keane and Edelman JJ), referring to Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352. The nature of the specific job that the putative employee applied for and the nature and extent of any tools or equipment they have to supply for that job may also be relevant: Personnel Contracting at [175] (Gordon J). It is, however, generally not legitimate to use in aid of the construction of a contract anything which the parties said or did after it was made: Personnel Contracting at [176] (Gordon J).
19.Third, and flowing from the first two principles, the characterisation of the relationship between the parties is not affected by circumstances, facts or occurrences arising between the parties that have no bearing on their legal rights: Personnel Contracting at [44] (Kiefel CJ, Keane and Edelman JJ), [173]-[178] (Gordon J); Jamsek at [109] (Gordon and Steward JJ). A “wide-ranging review of the entire history of the parties’ dealings” is neither necessary nor appropriate: Personnel Contracting at [59] (Kiefel CJ, Keane and Edelman JJ); see also [185]-[189] (Gordon J). For a “matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties’ contract, and not simply an aspect of how the parties’ relationship has come to play out in practice but bearing no necessary connection to the contractual obligations of the parties”: Personnel Contracting at [61] (Kiefel CJ, Keane and Edelman JJ) (emphasis added).
20.It follows that the fact that the parties’ subsequent conduct may not have precisely aligned with their contractual rights and obligations, or the fact that a particular contractual right may have never been exercised or utilised, will generally be irrelevant when it comes to characterising the relationship. That is so unless the manner in which the parties conducted themselves after entering into the contract was such as to establish that the contract was a sham, or that the contract had been varied, or that certain rights under the contract were subject to an estoppel.
21.Fourth, the contractual provisions that may be relevant in determining the nature of the relationship include, but are not limited to, those that deal with the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the deduction of income tax, the delegation of work and the right to exercise direction and control: Personnel Contracting at [113] (Gageler and Gleeson JJ); [174] (Gordon J), referring to Brodribb at 24 (Mason J); see also 36-37 (Wilson and Dawson JJ).
...
23.Fifth, the characterisation of the relationship as one of service or employment involving an employer and employee, as opposed to a relationship involving an independent contractor providing services to a principal, often hinges on two considerations. The first consideration is the extent to which the putative employer has the right to control how, where and when the putative employee performs the work: Personnel Contracting at [73]-[74] (Kiefel CJ, Keane and Edelman JJ); [113] (Gageler and Gleeson JJ); see also Brodribb at 24 (Mason J) and 36-37 (Wilson and Dawson JJ). The second is the extent to which the putative employee can be seen to work in his or her own business, as distinct from the business of the putative employer – the so-called “own business/employer’s business” dichotomy: Personnel Contracting at [36]-[39] (Kiefel CJ, Keane and Edelman JJ); [113] (Gageler and Gleeson JJ); cf [180]-[183] (Gordon J). Neither of those considerations are determinative and both involve questions of degree.
...
26.Sixth, a “label” which the parties may have chosen to describe their relationship is not determinative of the nature of the relationship and will rarely assist the court in characterising the relationship by reference to the contractual rights and duties of the parties: Personnel Contracting at [63]-[66] (Kiefel CJ, Keane and Edelman JJ); [127] (Gageler and Gleeson JJ); [184] (Gordon J). The parties’ “legitimate freedom to agree upon the rights and duties which constitute their relationship” does not “extend to attaching a ‘label’ to describe their relationship which is inconsistent with the rights and duties otherwise set forth” – to permit otherwise would elevate the freedom to “a power to alter the operation of statute law to suit ... the interests of the party with the greater bargaining power”: Personnel Contracting at [58] (Kiefel CJ, Keane and Edelman JJ).
27.The characterisation of a relationship as being either one of employer and employee, or one involving the engagement of an independent contractor, is ultimately an evaluative judgment that takes into account the totality of the parties’ contractual rights and obligations. The exercise may not necessarily be straightforward because, in some cases at least, the parties’ contractual rights and obligations may point in different directions. The evaluative exercise also should not be approached on the basis that there is some checklist against which ticks and crosses may be placed so as to produce the right answer. Some degree of uncertainty is unavoidable, particularly in the case of many modern-day work or service contracts.” [emphasis added]
A further proposition may be added to this summary: a contractual freedom on the part of the party performing the relevant work to accept or reject any offer of work and to work for others is not necessarily a contraindication of employment and may be consistent with casual employment.[4]
The approach taken in Personnel Contracting and Jamsek also applies where there is no wholly written contract.[5]
Where no formal written contract exists, evidence of post-contractual conduct is admissible for the purpose of determining whether a contract was formed, who the parties to the contract are and whether a particular term should be inferred.[6]
Application of the legal principles
There is no question that a contract was made by Mr Coubrough and Runlab in early 2018 pursuant to which Mr Coubrough agreed to provide running coaching services to clients of Runlab in exchange for the payment of money from Runlab. The task of determining the relevant terms of that contract is not a simple one because the contract was not recorded in a formal written contract and the recollections of Mr Shatrov and Mr Coubrough as to what was discussed between them at the time the contract was made are understandably imprecise given the time which has passed since 2018.
On the material before the Commission, I find that the contract made by Mr Coubrough and Runlab in early 2018 included the following relevant terms:
(a)Mr Coubrough, trading under the registered business name ‘Stroke No Limits Coaching’, was engaged by Runlab to provide services as a running coach for clients of Runlab. This was an express written term of the contract and is evidenced by the email sent by Runlab to Mr Coubrough on 26 January 2018 and his response sent on 2 February 2018. The email from Mr Coubrough to Runlab sent on 2 February 2018 informed Runlab, amongst other things, that the account into which payment of his invoices should be made was in the name of ‘Stroke No Limits’ and included the following email signature block:
“Regards
Benn Coubrough
Stroke No Limits Coaching
Mobile [intentionally deleted]
Email: [intentionally deleted]
Website: Page – – Foundation Page – k=d8rrhy
‘Helping you to become the best version of yourself’”
Further, the invoices provided by Mr Coubrough to Runlab stated that they were tax invoices from “Stroke No Limits Invoice Coaching and Training”, payment should be made into an account in the name of “Stroke No Limits”, and were signed off by “Benn Coubrough Stroke No Limits Coaching”.
(b)Mr Coubrough was obliged to submit an invoice to Runlab for each running session he took for clients of Runlab. This was an express written term of the contract and is evidenced by the email sent by Runlab to Mr Coubrough on 26 January 2018 and his response sent on 2 February 2018.
(c)Mr Coubrough was required to have his own Australian Business Number and state it on each invoice he provided to Runlab. This was an express written term of the contract and is evidenced by the email sent by Runlab to Mr Coubrough on 26 January 2018 and his response sent on 2 February 2018.
(d)Mr Coubrough had the right during the term of his contract with Runlab to continue to provide coaching and personal training services to third parties under his business trading name Stroke No Limits Coaching, as well as undertake employment or other work for third parties. This term is inferred by the conduct of the parties, in particular:
(i)at the time Mr Coubrough entered into the contract with Runlab in 2018, he was, with the knowledge of Mr Shatrov, running his Stroke No Limits business and providing coaching and personal training services to a range of clients and businesses, including The Concept gym; and
(ii)during the term of the contract between Mr Coubrough and Runlab, Mr Coubrough continued, with the knowledge of Mr Shatrov, to provide coaching services and personal training services to a range of third party clients and businesses. Although the extent to which Mr Coubrough undertook this work diminished as he increased the running sessions he undertook for Runlab’s clients, he continued to provide these services to third parties during his contract with Runlab. Mr Coubrough also took up employment, sometimes on a full-time basis, with third parties during the period from 2018 until early 2023.
(e)Mr Coubrough was ordinarily entitled to be paid $60 by Runlab for each run session he undertook for Runlab’s clients, including the coaching session (of up to 75 minutes duration) and the communication with Runlab’s clients before and after each session about matters such as logistical arrangements for the session and specific feedback after the session or photographs and/or videos from the session. This term is inferred by the conduct of the parties, in particular the invoices provided by Mr Coubrough to Runlab stating a “unit price” of $60 for each run session and the payment of those invoices by Runlab without the withholding of any tax from such payments. Mr Coubrough undertook, on average, about 3-4 sessions each week for the majority of terms during his engagement by Runlab.
(f)Mr Coubrough was encouraged, but was not obliged, to wear a Runlab branded singlet, supplied by Runlab, when he undertook each running session for clients of Runlab. I prefer Mr Shatrov’s evidence that he encourages coaches to wear a Runlab singlet when they take a running session, but it is not mandatory to do so, over the evidence given by Mr Coubrough that he was told by Mr Shatrov that he had to wear the singlet. Mr Shatrov’s evidence in this regard is consistent with the fact that he is aware of running coaches engaged by Runlab not wearing a Runlab branded singlet during a session and does not have a problem with it. Putting the running singlet to one side, Mr Coubrough was permitted to wear clothing and footwear of his choice (and at his cost) when he undertook running sessions for Runlab.
(g)Mr Coubrough had the right to decide which of the available running coaching sessions, offered by Runlab to him, he wanted to undertake for Runlab during a particular 10-week term, of which there were four during each year. This term was explained to Mr Coubrough in his initial discussions with Mr Shatrov in early 2018.
(h)Mr Coubrough had no right to delegate the performance of a running coaching session to a third party. This term is inferred by the conduct of the parties, in particular the fact that Mr Coubrough was required to inform Runlab if he was not available to undertake a running coaching session, in which case Runlab was responsible for organising a replacement coach.
As to the equipment required to conduct a running session, each party was obliged to provide the following main items of equipment, as was discussed by the parties at the commencement of their relationship:
·Runlab provides marking cones;
·the coach provides flashing lights, if required for running during darkness;
·the coach provides a container or similar item into which the clients’ keys and other valuables are provided and then locked in the coach’s car during the running session;
·the coach provides a whistle;
·the coach provides resistance bands and sliders, although Runlab may provide some resistance bands;
·the coach provides a mobile phone in order to be able to communicate with clients before and after sessions, take photos and videos to be shared with the clients in a group after the session. The coach decides which program to use to communicate with clients, e.g. WhatsApp or Facebook Messenger;
·if the coach wishes to take up the opportunity to be paid a fee to prepare individual training programs for a particular client of Runlab, as Mr Coubrough did, the coach must acquire (at their own cost) a software program known as ‘Training Peaks’ together with a laptop or similar device;
·Runlab usually obtains (at its cost) the right to conduct its outdoor running sessions at particular locations within a particular Local Government area. However, Mr Coubrough paid $200 per year for the right to conduct running sessions for Runlab’s clients at the Maitland Athletics Track. The application to use this facility was prepared and submitted by Mr Coubrough in Runlab’s name but Mr Coubrough paid the cost of the yearly fee. I have not taken into account the information contained in the email sent by Mr Shatrov to my chambers on 9 May 2023, after the hearing on 5 May 2023, in relation to the use of the Maitland Athletics Track. I am satisfied that Runlab had a fair opportunity at the hearing to respond to the evidence adduced by Mr Coubrough in relation to this issue;
·Runlab provides TRX suspension trainers, which are used about once per session per term, to assist clients to undertake bodyweight strengthening exercises during a running session. The TRX suspension trainers are hooked on to a fence at a park to enable the clients to undertake their bodyweight strengthening exercises;
·Runlab provides hurdles if they are used during a running session; and
·Runlab provides access to a gym for clients to participate in a strengthening session with a coach.
(j)Mr Coubrough was obliged to provide his own transport to and from running sessions he undertook for Runlab. He did not have a contractual right to payment for the time he spent travelling to and from running sessions he undertook for Runlab. These terms are inferred by the conduct of the parties.
(k)Mr Coubrough was obliged to have his own insurance coverage as a personal trainer during the time that he was engaged by Runlab. I accept Mr Shatrov’s evidence that he tells Runlab coaches that Runlab has public liability insurance and coaches need to have their own insurance. Mr Coubrough could not recall whether he had such a discussion with Mr Shatrov, but he did have his own insurance coverage as a personal trainer throughout the term of his contract with Runlab.
(l)Runlab had the right to determine the general location of each running session to be offered to its clients. For example, Runlab determined that it would offer a running session in the Maitland area. The precise location within the Maitland area at which each particular running session would be held was a matter to be determined by the coach taking the session (Mr Coubrough) and Mr Shatrov. The coach could suggest a particular location within the area and Mr Shatrov would make the final decision. These terms are inferred by the conduct of the parties.
(m)Runlab had the right to determine the time of each running session offered to its clients. The commencement times for each session are usually at about 5:30am or between 5pm and 6pm because clients generally like to train before or after work. Starting times for particular sessions may be adjusted, with the approval of Runlab, to suit the work or other requirements of a coach. These terms are inferred by the conduct of the parties.
(n)Runlab prepares a program for each running session, usually with input from a range of coaches. The running session is comprised of three parts: the warmup, the running drills or ‘run set’, and the cool down. The running drills or ‘run set’ normally take about 30-40 minutes and the balance of the session (of up to 75 minutes) is taken up with the warm up and the cool down. Each running session has a specific focus. For example, the focus may be running strength, running tempo or VO2 max. The coach has the discretion to determine which exercises will be undertaken during the warmup and the cool down for the session. The specific running drills or ‘run set’ to be undertaken during the session is set out in the program for that session, although the coach has the ability to alter those drills for a range of reasons, including if clients have an injury, lower fitness levels, or new clients have recently joined the session. The engagement of clients during a session is a matter of personal style for each coach to determine, with the individual flair and input of each coach being encouraged by Runlab. The reason Runlab provides weekly running sessions that are similar for each class held during that week is so that all Runlab clients are doing similar sessions to obtain similar running or strength related improvements, no matter if they were in Sydney, the Central Coast or Newcastle, and the run drills are based on times and recovery periods for clients. These terms are inferred by the conduct of the parties.
(o)In addition to running sessions, Mr Coubrough had the opportunity to undertake 60 minute strength sessions for Runlab’s clients. These sessions were held in a gym owned by a third party and Runlab was obliged to pay for access to the gym by Mr Coubrough and the clients during the session. Mr Coubrough was entitled to be paid at the agreed rate of $60, after provision of an invoice containing his ABN, for each strength session taken by him. All equipment required for the strength session was in the gym. Each strength session had a particular focus (e.g. hamstrings), determined by Runlab. A program prepared by Runlab was provided to coaches for each strength session. The program contained suggested exercises for the session, but the coach had the discretion to choose which exercises from the suggested list would be undertaken, and I accept Mr Shatrov’s evidence that coaches had the right to change or add different exercises into the session, provided they addressed the focus of that particular session. These terms are inferred by the conduct of the parties.
(p)Mr Coubrough had the opportunity to attend some weekend running sessions (known as ‘supersessions’) and weekend running camps. On average Runlab holds about four supersessions and two weekend running camps each year. Mr Coubrough was not obliged to attend these sessions. If he did attend, he was initially paid $60 per hour for coaching at supersessions or weekend running camps, but in later times Mr Coubrough was not paid for this work and instead received products from sponsors and was provided with accommodation and meals during the weekend running camps. These payment and sponsorship arrangements were agreed prior to each session. These terms are inferred by the conduct of the parties.
(q)Mr Coubrough had the opportunity to write training programs for Runlab clients. When Mr Coubrough undertook this work, he did so using his own software licence to a software package known as Training Peaks and was paid a set amount by Runlab, after submitting an invoice to Runlab. These terms are inferred by the conduct of the parties.
The parties ‘classified’ Mr Coubrough as a ‘subcontractor’ in the email sent by Runlab to Mr Coubrough on 26 January 2018 and his response sent on 2 February 2018. In contrast, the Confidentiality Agreement signed by Mr Coubrough in early 2018 gave him the label of an ‘employee’. The Confidentiality Agreement was not dated or signed on behalf of Runlab, nor was Mr Coubrough’s signature witnessed, as provided for in the Confidentiality Agreement. Mr Coubrough signed the Confidentiality Agreement for and on behalf of the “Receiving Party”, which is defined to mean “the Receiving Party noted above and includes its respective successors and permitted assigns”. Recital A to the Confidentiality Agreement provides that “The Receiving Party desires that the Disclosing Party [Runlab] teach it, him or her about the Disclosing Party’s training and coaching methods (“Coaching Methods”) so that it, he or she can use the Coaching Methods as a RunLab Coach”. The expression “RunLab Coach” is defined in the Confidentiality Agreement to mean a “person employed by the Disclosing Party, a Licensee of the Disclosing Party or an employee of a Licensee of the Disclosing Party, to coach running training”.
I do not regard either the label of ‘employee’ in the Confidentiality Agreement or the ‘classification’ of ‘subcontractor’ in the emails exchanged between Mr Coubrough and Ms Shatrov in late January and early February 2018 as determinative of the nature of the relationship between the parties. The relationship is to be characterised by reference to the contractual rights and duties of the parties, not the labels given by the parties to their relationship in various documents.
During the early stages of his engagement by Runlab, Mr Coubrough performed what he described as unpaid work for Runlab because he says he was ‘expected’ to do so and in the hope that he would be offered an opportunity to become a licensee for Runlab. This unpaid work included administration work, jointly coaching extra sessions, attending fortnightly catch-up meetings with Mr Shatrov, attending coaches’ meetings, and attending weekly or fortnightly coaches’ check-in forums on a Sunday. As Mr Coubrough’s relationship with Mr Shatrov began to deteriorate and he formed the view that he would not be offered the opportunity to buy in to the business as a Runlab licensee, he ceased undertaking this unpaid work as follows:
- Mr Coubrough ceased performing unpaid administration work from around December 2020;
- Mr Coubrough ceased undertaking unpaid joint coaching sessions in about February 2021;
- Mr Coubrough ceased attending fortnightly catch-up meetings with Mr Shatrov in around February 2021;
- Mr Coubrough ceased attending coaches’ meetings in around February 2022; and
- Mr Coubrough ceased attending weekly or fortnightly coaches’ check-in forums on a Sunday in about July or August 2022.
Notwithstanding Mr Coubrough’s belief that he was expected to undertake this unpaid work, I am satisfied on the material before the Commission that these expectations did not reflect, or give rise to, any relevant contractual obligation on the part of Mr Coubrough to undertake such work. The fact that Mr Coubrough continued to be offered the opportunity by Runlab to coach running sessions until early 2023, regardless of the fact that he had unilaterally decided to cease undertaking the unpaid work gradually from about December 2020, is a strong indicator that Mr Coubrough was not contractually obliged to do the unpaid work. Further, Mr Coubrough did not adduce any evidence of documents or particular conversations to support his contention that he was contractually obliged to attend these meetings or undertake the administration work.
Mr Coubrough received discounts when he bought products from businesses with which Runlab had an association. The fact that such discounts were provided to Mr Coubrough does not establish the existence of any relevant contractual obligation or duty for the purpose of determining whether Mr Coubrough was engaged as a contractor or an employee.
Mr Coubrough says that he had an expectation of ongoing work with Runlab based on the history of his work over nearly five years with Runlab. So much may be true, but it does not bear on the existence of any relevant contractual right or duty for the purpose of determining whether Mr Coubrough was a contractor or an employee.
Mr Coubrough says that Runlab carried the financial risk (and benefit) of making a profit or loss on sessions he coached. Again, this is correct, but it does not bear on the existence of any relevant contractual right or duty for the purpose of determining whether Mr Coubrough was a contractor or an employee.
Mr Coubrough contends that Runlab was ultimately responsible and liable for any injury sustained by Runlab clients during a session. I do not accept the correctness of this proposition. Mr Coubrough may have been liable in tort for conducting a running session in a negligent manner. In any event, the fact that Runlab may have been exposed to some, or total, liability for an injury sustained by a client during a running session conducted by Mr Coubrough does not bear on the existence of any relevant contractual right or duty for the purpose of determining whether Mr Coubrough was a contractor or an employee.
In addition to the matters I have already addressed, the parties adduced a substantial amount of evidence in relation to how their relationship came to play out in practice from 2018 until early 2023. Save for the contractual terms I have identified above, such evidence does not establish the existence of relevant contractual rights or duties. It is therefore not relevant to my assessment of whether the relationship between Mr Coubrough and Runlab was one of employee and employer or independent contractor and principal.[7]
Having regard to the totality of the relevant contractual rights and obligations conferred and imposed on Mr Coubrough and Runlab by their contract, my evaluative judgment is that Mr Coubrough was engaged by Runlab as an independent contractor. Like many of these cases, the parties’ contractual rights and obligations point in different directions. For example, the fact that Mr Coubrough had no contractual right to delegate the performance of a coaching session to a third party is an indicator of an employment relationship, as is the fact that Runlab had the right to determine the time, location and specific focus for each running and strength session. Conversely, contractual rights and obligations which support the existence of a relationship of principal and independent contractor between Runlab and Mr Coubrough include the engagement of Mr Coubrough, trading as Stroke No Limits Coaching, to provide coaching services and the obligation on Mr Coubrough to provide an invoice (stating his ABN) for each running session undertaken by him, together with the fact that Mr Coubrough had the contractual right to provide his coaching services, under the trading name Stroke No Limits Coaching, to third parties. This is not simply a case where Mr Coubrough had contractual freedom to accept or reject any offer of work and to work for others, which may be consistent with casual employment, because here Mr Coubrough was trading under his registered business name, Stroke No Limits Coaching, and was exercising his right to provide his coaching services to a range of persons and businesses including Runlab. The contractual requirement for Mr Coubrough to maintain his own insurance cover as a personal trainer weighs in support of a principal independent contractor relationship. Further, although Runlab had the right to determine the specific focus of each running and strength session, Mr Coubrough had the right to exercise a fair degree of control over the manner of performance of his coaching services, including by determining the warmup and cool down exercises, altering the ‘run set’ in the program for a range of reasons to cater for individuals in the group, and imposing his own personal style and flair on the way in which the session was conducted. Finally, it may be accepted that the provision of running coaching services is not a capital-intensive business. Most of the limited equipment required for the session was provided by Runlab, but Mr Coubrough was required to provide his own mobile phone, a computer with access to Training Peaks software (if he wished to take up the opportunity to prepare individual training plans, which he did), a whistle and some resistance bands and sliders.
After considering and weighing the relevant contractual rights and obligations, my evaluative assessment is that the coaching services Mr Coubrough performed for Runlab were not so subordinate to Runlab’s business that they could be seen to have been performed as an employee of that business rather than part of an independent enterprise.[8] In my view, Mr Coubrough was operating an independent enterprise trading as Stroke No Limits Coaching and as part of that enterprise he was providing services to Runlab.
Conclusion
For the reasons set out above, I am satisfied that Mr Coubrough was not employed by Runlab. Accordingly, the Fair Work Commission does not have jurisdiction to determine the merits of Mr Coubrough’s claim that his alleged dismissal was harsh, unjust or unreasonable. Mr Coubrough’s unfair dismissal application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr B Coubrough, on his own behalf
Mr V Shatrov, on behalf of Runlab
Hearing details:
2023
Newcastle
5 May (by videoconference)
[1] (2022) 312 IR 1
[2] (2022) 312 IR 74
[3] [2022] FCA 750 at [16]-[27]; these principles were also adopted by Justice Goodman in Secretary, Attorney-General’s Department v O’Dwyer [2022] FCA 1183 at [27]
[4] Deliveroo Australia Pty Ltd v Franco[2022] FWCFB 156 at [35], applying Personnel Contracting at [84] and [196]
[5] Secretary, Attorney-General’s Department v O’Dwyer [2022] FCA 1183 at [27]
[6] Regreen Asset Holdings Pty Ltd v Castricum Brothers Australia Pty Ltd [2015] VSCA 286 at [133]-[134]; appliedin Pruessner v Caelli Constructions Pty Ltd [2022] FedCFamC2G 206 at [45]
[7] See paragraph 5[19] above
[8] Personnel Contracting at [39]
Printed by authority of the Commonwealth Government Printer
<PR761865>
0
7
0