[2020] FWC 2538

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Christopher Bond
v
Doxi Pty Ltd t/a Jetts Wanneroo
(U2019/10425)

DEPUTY PRESIDENT SAMS

SYDNEY, 29 MAY 2020

Application for an unfair dismissal remedy – fitness industry – applicant a personal trainer – nature of the relationship – jurisdictional objection – employer or contractor – Personal Trainer Agreement only documentary evidence of relationship – whether applicant Assistant Manager or Manager of the Gym – general gym duties also performed – indicia of employment relationship – principles considered – weight of facts and circumstances disclose a dual faceted relationship coexisting together – jurisdictional objection dismissed – unfair dismissal application properly before the Commission – utility of further proceedings – further directions.

[1] The applicant in this matter, Mr Christopher Bond (the ‘applicant’), has filed an application pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), in which he seeks monetary compensation, as a remedy for his alleged unfair dismissal on 30 August 2019. Mr Bond identified the employer respondent as Doxi Pty Ltd t/a Jetts Wanneroo (otherwise described as the ‘Club’ or the ‘Gym’), a gym in Wanneroo, Western Australia. The owner of the Gym, Mr Gary Dwyer, filed an objection to Mr Bond’s application on the grounds that Mr Bond was not an employee; rather, he had conducted his own personal training business (‘CBPT’) on the Gym’s premises, according to a Personal Training Agreement with Doxi Pty Ltd, which expressly demonstrated that he was a contractor, not an employee.

[2] Following an unsuccessful conciliation convened by a Commission Conciliator on 21 October 2019, the jurisdictional objection was allocated to me for hearing, to assist in dealing with some case management issues in Western Australia. On 8 November 2019, I issued directions in preparation for a hearing and also listed a further phone conciliation conference on 22 November 2019. This conference ultimately did not proceed due to a misunderstanding of Mr Dwyer. The matter was then listed for hearing in Perth on 6 February 2020. Mr Gary Dwyer appeared for the objector and Mr Patrick Mullally, Paid Agent, Workclaims Australia, appeared for Mr Bond, with permission granted for him to represent the applicant, pursuant to s 596 of the Act; noting Mr Dwyer did not oppose Mr Mullally’s representation. Only Mr Dwyer and the applicant gave evidence in the proceeding.

THE EVIDENCE

[3] As much emphasis was placed on the terms of the Personal Training Agreement (the ‘PT Agreement’), I set out below a number of its relevant provisions. Throughout the document, the parties are referred to as the Contractor and the Company. The Background reads as follows:

‘A. The Company conducts the Business.

B. The Contractor is engaged in the business of personal training.

C. The Company wishes to grant the Contractor the non-exclusive right to sue of the Premises and access to the Clients to enable it to provide its personal training services at the Premises.

D. The Contractor has agreed to use the premises described in Schedule 1 (Premises) on the terms and subject to the conditions set out in this agreement.’

[4] The Premises described in Schedule 1 is named as Jetts Fitness Wanneroo, 969 Wanneroo Rd, Wanneroo. Various definitions of One Off Fee and Premises Access Fee are also set out in Schedule 1 which reads:

‘2. One-Off Fee $0

…

4. Premises Access Fee The premises access fee [is] $180 per week and thereafter.

Premises Access Fee will be due and payable in advance weekly for the duration of the Term. This may be offset against hours worked in Lieu.

1 Shift = 4hrs

1xPT Class = 2Hrs

Or as agreed’

[5] Clause 3 deals further with fees and reads:

‘3.1 Administration Fee

On the Commencement Date, the Contractor must pay the One-Off Fee to the Company which covers payment for PT shirts and business cards.

3.2 Premises Access Fee

The Contractor must pay the weekly Premises Access Fee to the Company by direct debit (or such other method permitted by the Company) as specified in Schedule 1.

3.3 Jetts PT Pack fees

(a) The Company may offer, amongst other promotions, to its new Clients or Clients who do not have an existing personal trainer the ability to purchase from the Company 3 half hour personal training sessions (Promotional Sessions) for an advertised rate on point of sale.

(b) The Contractor agrees to provide 3 half hour personal training sessions to Clients who take up Jetts promotions pursuant to clause 3.3(a) and the Company will pay the Contractor the Promotional Session Fee per Promotional Session.

3.4 Jetts 8 Week Challenge

(a) The Company will offer to its Clients the opportunity to participate in ‘Jetts 8 Week Challenges’ which involves 8 weeks of motivation and guidance with the Company’s contracted personal trainers.

(b) The ‘Jetts 8 Week Challenge’ includes a number of personal training sessions to participating Clients for the duration of the Challenge (Challenge Sessions).

(c) The Contractor agrees to provide Challenge Sessions at a rate to be agreed from time to time between the Company and the Contractor.’

[6] The obligations of both parties are set out at Cl 4:

‘4.1 Contractor's obligations

The Company will provide the Contractor with access to the Premises on a non-exclusive basis for the purposes of the Contractor providing personal training services to Clients for the duration of the Term on the condition that the Contractor:

(a) provides to the Company's satisfaction evidence that it holds a Certificate Ill and Certificate IV in Fitness;

(b) provides to the Company's satisfaction evidence that it holds current and relevant insurance coverage;

(d) holds a current Blue Card or working with children certificate (or other State based equivalent documentation, as applicable), and provides to the Company's satisfaction evidence of such certificate;

(e) attends training as required by the Company and pays reasonable training fees to the Company for that training as agreed from time to time;

(f) does not encourage or solicit any of the Clients to cease being members of the Business or to become members of another gym;

(g) does not say anything harmful to the reputation of the Business or which may lead a client to cease or alter the terms of its dealings with the Business;

(h) must not use any information obtained from the Company to benefit itself or its business in competition with the Company and its Business;

(i) must at all times whilst on the Premises act in a professional manner and maintain the standards necessary to meet the Business' obligations at law, including but not limited to, relevant occupational health and safety standards;

(j) wear a uniform specified by the Company whilst on the Premises; and

(k) must only provide services at the Premises to persons who are members of the Business.

4.2 Company's obligations

From the Commencement Date, the Company must:

(a) provide the Contractor with access to the Premises on a non-exclusive basis;

(b) make the Premises available to the Contractor for the duration of the Term; and

(c) provide the Contractor basic training on the use of the highly sophisticated security and access control system to ensure the safety of the Premises.

4.3 Acknowledgements

(a) The Company acknowledges that:

(i) the Contractor may provide personal training outside the Premises for the Contractor's other clients and for Clients of the Business and that the Contractor does not work exclusively for the Company; and

(ii) that there are no minimum obligations on the Contractor in relation to attendance at the Premises

(b) The Contractor acknowledges that this agreement does not confer any exclusive rights on the Contractor.

(i) the Contractor is operating its own business under its own brand; and

(ii) other than in respect of the Promotional Sessions, the Contractor is

(iii) responsible to establish and maintain contractual relationships with each of its clients such that the Contractor receives its revenue from each client. Jetts does not promise any minimum amount of personal training work or any minimum number of client referrals’.

[7] The PT Agreement also provides at Cl 5 for additional duties to be performed by the Contractor at the Gym. It reads:

‘5. Additional duties

(a) The Company may, from time to time, offer the Contractor additional duties, including but not limited to, office duties, reception work and any other duties the Company deems appropriate from time to time.

(b) The Contractor will be entitled to an additional fee for hours worked at a rate to be negotiated between the Company and the Contractor from time to time.

(c) The Contractor may be requested to provide a half hour introductory personal training session to new Clients for promotional purposes, at no cost to the new Clients and the Business.’

[8] Clause 6 deals with the relationship between the parties:

‘6. No partnership or other relationship

(a) Nothing in this agreement will or is intended to establish a relationship of partnership, agency or employment between the Company and the Contractor, and it is the intention of the Parties that any such relationship is expressly denied.

(b) Without limiting any other clause in this agreement, the Company will not be liable for any of the following:

(i) workers' compensation, income protection, and accident and health policies of insurance or other like insurances;

(ii) wages or salary;

(iii) personal leave entitlements (including personal leave, carer's leave, annual leave and long service leave);

(iv) deduction or remission of:

(A) PAYG or any other income taxation deductions or withholding;

(B) fringe benefits taxation, payroll taxation, or any other Tax;

(D) any other charges or benefits required by law under an employment relationship

regarding any of the terms of this agreement.

(c) No amount or benefit referred to in clause 6(b) is recoverable against the Company by the Contractor. If the Company is held liable at law to pay any such amount, or any benefit, charge, loss, claim, penalty, order or expense of any kind with respect to this agreement, the Contractor agrees to indemnify and keep indemnified the Company to the extent of any such amount, benefit, charge, loss, claim, penalty, order or expense.’

Witness evidence

For the objector

[9] Mr Gary Dwyer provided two witness statements. Attached to one of his statements was a brief witness statement of Mr Sam Taylor, Club Manager. Mr Taylor was unavailable for cross examination. In these circumstances, the usual caveat as to weight will apply to his untested evidence.

Mr Gary Dwyer

[10] Mr Dwyer is the sole Director and shareholder of Doxi Pty Ltd (‘Doxi’). He took over management of the Gym in October 2018. Mr Dwyer said that as a result of a four-year dispute with the landlord of the Gym premises, the Gym had now closed. He claimed that Doxi Pty Ltd has no assets and disputed liabilities. Mr Dwyer said that the applicant operated his personal training (‘PT’) business (‘CBPT’) according to the PT Agreement until the Gym closed in August 2019. He then transferred his business to another Jetts Gym. Mr Dwyer submitted that during this time, the applicant had complied with the PT Agreement in terms of invoicing, rent and working shift hours in exactly the same way as all the other personal trainers (‘PTs’).

[11] Mr Dwyer agreed that he had approached the applicant to be the Manager of the Gym, but he declined; explaining he preferred to focus on his PT business. In January 2019, after taking a three-week break, the applicant asked if the Manager’s position was still available. Mr Dwyer confirmed it was, subject to him completing a Manager’s Course. This was a requirement of Jetts. The applicant asked him for a contract and he agreed to prepare a Manager’s Agreement when he was appointed.

[12] While Managers’ courses are normally run in Queensland, a course came up in Perth in January 2019. Mr Dwyer advised Jetts’ State Manager on 8 January 2019 that ‘Chris Bond has accepted the position of CM’ (Club Manager). Mr Dwyer agreed to pay for the course. However, shortly after 9 January 2019, the applicant advised he had decided not to attend the course. As this was mandatory for Jetts’ managers, Mr Dwyer said he had no choice but to appoint another person as the Manager (Mr Sam Taylor), who continued in this role until the Gym’s closure. Mr Taylor had no clients and worked full time as the Manager.

[13] Mr Dwyer disputed the applicant’s monetary claims of underpayments. In fact, he had advanced him money as ‘holiday pay’ when he was experiencing financial issues. This was to be repaid or worked as hours in lieu.

[14] Mr Sam Taylor’s brief statement reads:

‘1. I accepted the position of Club Manager at Jetts Gym Wanneroo in January 2019.

2. There were to Personal Trainers who worked under Personal Training Agreements – Christopher Bond (CBPT) and Alex Giglia (Titans United). They utilised the Gym for their clients, paid rent and were allowed to offset rent by working hours in lieu.

3. Christopher Bond at all times worked under my direction.’

Applicant’s statement

[15] The applicant said he commenced working at Jetts Wanneroo as a Personal Trainer in August 2016 under its previous owner, Mr Ian Ford. He was provided with a contract of employment at the time. An email from Mr Ford, dated 4 June 2018, set out the titles of each of the six Team members and showed him as Assistant Manager, with the other two PTs.

[16] The applicant said that on 1 November 2017, he was appointed Assistant Manager. Then in mid-2018, when the Club Manager (Natasha Hetebry) left, he was appointed temporary Manager, until his role was properly accepted in January 2019. This part time role was distinct from his PT business. He was previously paid $25 an hour, and when he was appointed Manager, he was paid $35 an hour. He was rostered on shifts and carried out his management role under Mr Dwyer’s direction. The applicant set out the roster for 2½ weeks, from 21 March 2018, which reads as follows:

Wanneroo Shift Roster	10am-1pm	3pm-7pm
Morning	Evening
Wed 21	Chris	Ian
Thurs	Chris	Chris
Fri
Sat	Chris
Mon 26	Chris	Ian
Tues	Ian	Chris
Wed	Tash	Tash
Thurs	Tash	Tash
Fri	Closed
Sat	Closed
Mon	Closed
Tues 3^rd	Tash	Tash
Wed	Chris	Tash
Thurs	Chris	Tash
Fri	Tash
Sat	Chris

[17] The applicant set out his duties as both Assistant Manager and Manager as follows:

‘ASSISTANT MANAGER:

• Required to do 10 hours per week (unless covering for the Club Manager or doing a rotational Saturday shift) at $25 per hour. From memory roster was 2 hours Tuesday morning, 3 hours Wednesday evening, 2 hours Thursday morning and 3 hours either Friday or Saturday morning according to rotational roster.

• Make "Dishonour calls" (people who have outstanding transactions).

• Clean and tidy gym.

• Handle email enquiries when Club Manager wasn't available.

• Handle telephone enquiries when Club Manager wasn't available.

• Handle Membership information such as signing up new members, cancelling existing ones, freezing payments, changing payment dates, updating members personal information when Club Manager wasn't available.

• Ensure staff are performing their obligations to required standards.

• Attend staff meetings alongside Club Manager.

• Help organise events alongside Club Manager.

CLUB MANAGER:

• Required to do 17 and later 22 hours per week at the gym. Roster was fixed hours as follows:

Monday, Tuesday and Thursday - 10am to 12pm and 4pm to 7pm

Friday - 10am to 12pm.

Later on I was given 10am to 12pm and 4pm to 7pm on Wednesdays as well when I went up to 22 hours per week.

• Handle all email enquiries.

• Handle all telephone enquiries.

• Handle all membership information such as signing up new members, cancelling existing ones, freezing payments, changing payment dates, updating members personal information.

• Ensure staff are performing their obligations to required standards.

• Organise Staff meetings.

• Organise events.

• Make "Dishonour calls" (people who have outstanding transactions).

• Clean and tidy gym.

• Perform new member orientations.

• Perform Club Security Check every month.

• Handle Maintenance of equipment and facilities.

• Involved in hiring of new Personal Trainers.

• Send Daily Reports to the owner Gary Dwyer.’

I note these lists of duties were prepared by the applicant for the purposes of these proceedings. They do not represent any document provided to him by the respondent, during his period working at the Gym.

[18] The applicant responded to Mr Dwyer’s evidence as follows:

(a) The applicant claimed he had sought to register for Manager training in early 2019, but could not do so. Mr Dwyer told him not to worry about it. In any event, he was later told the training was not compulsory for managers.

(b) Mr Taylor had never been described to any of the employees, or members as the Manager. Sam referred to himself as a part owner/consultant and Mr Dwyer had said he was a PT only. Mr Taylor only ever wore a PT uniform. There was no evidence of any contract which confirmed Mr Taylor as the Manager.

(c) The applicant said that despite the PT Agreement, he had never paid rent or worked in lieu of paying rent, as he was an employee. Invoices and bank statements were tendered which disclose regular and consistent deposits (from around $1000 - $1365) from ‘Doxi Pty Ltd Jetts’.

(d) Mr Dwyer had closed the Gym because he believed the rent was too high and he would not agree to the landlord’s conditions.

(e) The applicant had never transferred his PT business to another gym. After he left he had a casual job at Woolworths. He had asked Mr Ford if he could complete two PT sessions at his gym (Jetts Carramar), but his other clients were not interested in training at Carramar. As a result, he had to refund $500 in advance payments made to him by clients.

(f) After Ms Hetebry’s resignation as a Manager in April 2018, he agreed he was not interested in the Manager’s position and he was content to work his usual shifts and train PT clients. However, he had agreed to fill in on a temporary basis and during this time he worked 50% of the available shifts. After Mr Dwyer could not find a replacement Manager, and as he was not being paid an Acting Manager’s rate, he agreed to accept the full-time role and step back from his PT position (in January 2019).

(g) Despite requesting a Manager’s contract, Mr Dwyer kept putting it off by claiming that as the plan was to set up a new gym brand, new contracts would be necessary amd he should wait until this occurred. He had agreed to wait a couple of months, but ultimately the Gym closed and he had no Manager’s contract.

(h) As the Manager, the applicant said he continued his PT business, because Mr Dwyer reduced the previous Manager’s hours of 31 per week to 22 hours, claiming he could not afford to pay him for 31 hours. He was content for him to supplement his income with PT.

(i) The applicant had no choice but to invoice for his shifts fortnightly, as the Gym had no systems in place and he was told it was easier that way.

(j) Despite initially refusing to pay him and denying him annual leave, Mr Dwyer eventually agreed to pay him three weeks’ annual leave for a holiday in Europe, so as to stop him ‘quitting’. He insisted he was never advanced six weeks’ holiday pay.

Other evidence

[19] Included in the applicant’s evidence were emails from 13 former employees or members of the Gym, in response to having been asked by the applicant in late November and early December 2019, a series of questions about their understanding of the roles performed by various persons who they had encountered at the Gym; centering around who they understood to be the Manager. None of them were available for cross examination. Plainly, this information was sought three months after the applicant’s dismissal and presumably, on advice, as part of the applicant’s preparation for the hearing.

[20] During the proceedings, I cautioned Mr Mullally for including in the applicant’s evidence, statements of this kind, as a ‘back door’ means of introducing other persons’ evidence, without any intention of them being available for cross examination and presumably, expecting their supportive evidence to be accepted, without objection. I add that this is an inappropriate technique for introducing witness evidence in a Commission proceeding. For the same reasons as Mr Taylor not being available in the objector’s case, I will not rely on these 13 questionnaires as having any probative evidentiary value. In any event, they do not assist in resolving the legal question surrounding the nature of the employment/contractor relationship between the applicant and the respondent.

Mr Dwyer’s reply statement

[21] In a reply statement, Mr Dwyer reiterated that there was no documentary evidence to demonstrate the applicant was the Assistant Manager; let alone the Manager. He was paid the same as the other PTs and invoiced the Gym in the same way, in his company name of CBPT. Moreover, the applicant was not qualified as a Manager, as he had not attended the compulsory Manager’s course and had never attended Manager meetings.

[22] Mr Dwyer claimed Mr Taylor did not complete any PT sessions in the seven months he was the Club Manager. His hours were usually from 8am to 4pm. Mr Dwyer said that as the statements included in the applicant’s evidence were from his friends and his PT clients, they should be treated with caution. Further, it was Mr Taylor who had interviewed one of these persons and appointed her a PT. There was no involvement by the applicant in respect to her being hired. Mr Dwyer said he had no documentary backup to check the monetary claims of the applicant.

Oral evidence

Mr Gary Dwyer

[23] In cross examination, Mr Dwyer agreed he was a Director of Jetts Wanneroo from August 2015 – August 2019. He stated that the applicant had been required to comply with his PT Agreement, which included performing some shifts in the Gym. When shown the applicant’s list of his duties; see: [17] above, Mr Dwyer denied he was required to perform all of those duties identified by the applicant. He acknowledged some of the duties were performed, but all the PTs were required to do so.

[24] Mr Dwyer agreed the applicant’s hourly rate was $25, then increased to $35. However, the amount was not reflective of a Gym Manager. It was what the applicant had invoiced the Gym for, just as all the PTs had done. He allowed the PTs to work off their hours of rent when undertaking their private PT, by undertaking shifts in the Gym. Mr Dwyer acknowledged the increase to $35 an hour occurred at the time Ms Hetebry resigned.

[25] Mr Dwyer further explained that he had increased hourly rates for all the PTs, from $25 to $35, as a sign of good faith and to keep them satisfied with their arrangements in the Gym. Although the PT Agreement included rent of $180 a week payable in advance, all the PTs wanted to do extra shifts to supplement their personal PT classes. Some of the shifts were rent in lieu and others were in addition. These duties included dealing with client inquiries, taking phone calls and working behind the front desk.

[26] Mr Dwyer identified the duties claimed by the applicant, which he was not required to do and did not do. They included:

• organising events;

• handling all email inquiries;

• ensuring staff are performing their obligations to required standards;

• organising staff meetings;

• Club maintenance; and

• hiring new PTs.

[27] Mr Dwyer added that none of the PTs performed these roles. Nevertheless, they were all required to send a daily report to him at the end of each shift. From the applicant’s date of commencement, he had been supervised by others, including Mr Ford and then from January 2019 to August 2019, Mr Taylor, who was Club Manager.

[28] Mr Dwyer denied he paid the applicant any annual leave, or any money in recognition of leave. However, he explained that he had paid him $500 a week, in advance, for three weeks in December 2018 ($1500) and he was required to work it off later. In June/July 2019, as the applicant was going overseas and the Gym was not performing and ‘things were very tough for him’ (the applicant), as a gesture of good faith he agreed to give him another $1500. Then when the Gym closed, and the total of $3000 was owed by the applicant, Mr Dwyer said he was ‘happy to write it off’. Mr Dwyer agreed there was nothing in writing about these arrangements. He denied paying him the money when the applicant threatened to quit. It would not make sense for him to quit. He had never mentioned doing so, and in any event, he would have trouble finding similar arrangements at another gym.

[29] Mr Dwyer explained he had approached the applicant on a number of occasions to be the Club Manager, but he had refused. When the applicant asked if the position was still available in January 2019, Mr Dwyer told him he would be required to undertake a Manager’s course, which he (Mr Dwyer) would pay for. When he later learnt the applicant had not undertaken the course, and the Jetts’ State Director, John Rock, said he could not be appointed as a Manager, even if he had wanted to (as it was in breach of the franchise agreement), Mr Dwyer offered the job to Mr Taylor. Mr Dwyer agreed that none of this was put in writing. The email the applicant relied on, did not expressly say he had to undertake the course. Mr Dwyer confirmed he had not taken any income tax from the payments made to the applicant pursuant to the PT Agreement and had not paid any superannuation (I interpose at this point, to note that the applicant had lodged an underpayment claim in the Industrial Magistrates Court of Western Australia, and it was said that any finding in this case, would influence the outcome of that claim (that matter is yet to be heard).

[30] In answer to questions from me, Mr Dwyer said that the description in the invoice of the $1500 he had paid in June 2019, as ‘Leave’, was what the applicant wanted the amount described as. It is recorded in his account as ‘Personal Trainer fees’. When I asked Mr Dwyer whether there was any record of the rent deduction from shifts worked, he claimed the PTs used their own daily records to show how many hours were deducted hours and how many were for additional hours. Mr Dwyer agreed that for every PT, these hours added up to exactly a deduction of $180 for unpaid work. Mr Dwyer could produce no record of how these arrangements were accounted for; including when he ‘wrote off’ the $3000, he claimed the applicant owed when the Gym closed. Lastly, Mr Dwyer agreed that all PTs were required to be Gym members.

The applicant

[31] In cross examination, the applicant maintained that when Mr Ford was appointed the Gym’s majority owner, he was promoted to Assistant Manager and when Mr Dwyer took over as majority owner around September 2018, he became Club Manager. While his bank records disclose the $35 an hour rate around this time, he conceded there was nothing in writing about these arrangements. Nevertheless, he had sought a contract, because he wanted employee benefits, such as annual leave and superannuation.

[32] The applicant agreed Mr Dwyer told him he was expected to attend a Manager’s training course when he requested to become Club Manager in January 2019. He had attempted to get help in registering for the course, including from the Jetts service desk, but no-one got back to him. In any event, Mr Dwyer told him not to worry about it.

[33] The applicant’s evidence was that he did not know if the other PTs had PT Agreements, even though he was the Assistant Manager and later Manager. He knew some PTs would invoice for their rent shifts and their paid shifts, but he only invoiced for paid shifts.

[34] The applicant claimed that for seven months, neither Mr Dwyer nor anyone else, had told him that Mr Taylor was Club Manager. Mr Taylor did not work every day and, at times, he would take weeks off. At best, he was at the Gym 50% of the time and ‘most of the time, he just kind of stood there’.

[35] The applicant accepted the position of Club Manager was a significant one, but he could produce no documentary evidence such as a contract, that he was ever appointed to the position. However, it was up to Mr Dwyer to provide him with a contract, but he refused to do so. He also understood that Mr Taylor had no Manager’s contract. The applicant agreed he had not been involved in advertising, recruiting, interviewing or appointing three of the four new PTs in the initial two years of his engagement at the Gym. The applicant said he was not aware that the other PTs were given $35 an hour at the same time he had. The applicant had asked for a separation certificate after he was dismissed, but Mr Dwyer told him it was unnecessary because he was a contractor, not an employee.

SUBMISSIONS

For the objector

[36] Mr Dwyer said that despite his difficulties in negotiating the lease for the Gym, he did not want any of the PTs to leave and had increased their hourly rate as an incentive to stay. He had regularly asked the applicant to be the Club Manager, but he had declined. Later, when he wanted the position, he failed to undertake the necessary Manager training. Mr Dwyer then appointed Mr Taylor, who was very well qualified.

[37] Mr Dwyer submitted that there is not a single document which demonstrated the applicant was the Club Manager and this had made it very difficult to quantify the monetary claims he has made. Moreover, the applicant said he had worked at Woolworths and had maintained his PT business at the same time he was supposed to be the Club Manager. Further, there is no evidence to confirm the applicant had ever asked for a Manager’s contract.

[38] In queries from me, Mr Dwyer confirmed the duties the applicant had performed in addition to his PT, were not mentioned anywhere in the PT Agreement, and for which he (the Gym) received a benefit. When I suggested that if all the PTs had performed similar tasks for the Gym, and therefore they might all be employees, Mr Dwyer said the Company was insolvent and closed in January 2019. When I questioned whether there would be any utility in the Commission finding jurisdiction, but with no compensatory orders being able to be made, Mr Dwyer agreed.

For the applicant

[39] In written submissions, Mr Mullally acknowledged that the only express written agreement between the parties was the PT Agreement. It makes no reference to either Assistant Manager or Manager. However, the true legal position is the reality of the relationship, based on objective evidence as to the proper characterisation of the contract. Mr Mullally set out the economic consequences of the distinction between employees and independent contractors. One significant indicium is that the Superannuation Guarantee (Administration) Act 1992 (Cth) defines an employee as a person who works under a contract that is wholly or principally for the labour of the person.

[40] Mr Mullally set out the general propositions of law as to whether a person is an employee or contractor. He said:

‘9.1 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 on his or her own behalf: Marshall v Whittakers Building Supply Co (1963) 109 CLR 210 at p 217 and Hollis v Vabu (2001) 207 CLR 21 at para 40 (Hollis);

9.2 In this consideration the question must be posed as to whether the worker is carrying on a business of his or her own of which the work in question forms part: see Hollis;

9.3 The nature of the work performed and the manner in which it is performed must always be considered. Likewise the performance and the subsequent conduct of the parties may well demonstrate a relationship which is in contrast to and of a different character from the terms of the contract: AMP v Chaplin (1978) 18 ALR 385 at 389;

9.4 Finally the terms of the contract agreed between the parties must be considered and are always important, but they cannot alter the true nature of their relationship by putting a different label on it: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Brodribb).

[41] By reference to the various indicia in Brodribb, Mr Mullally submitted:

‘10.1: Does the putative employer exercise control over the manner in which the work is performed, place of work and hours of work? The applicant's case is that he was under the directcontrol of the directors in his role as Gym Manager. The respondentdetermined what the applicant would be paid per hour and what hisduties would be. " The question in this case is notwhether in practice the work was in fact done subject to directionand control exercised by actual supervision or whether actualsupervision was possible, but whether ultimate authority over theman in the performance of his work resided in the employer so thathe was subject to the latter's orders and directions": Humberstone vNorthern Timber Mills (1949) 79 CLR 389 at p 404.

10.2 Whether the worker performs work for others (or has a genuine and practical entitlement to do so). The practical effectof this employment relationship was that he worked regular shiftsfor the respondent in his managerial role for which he was paid an hourly rate

10.3 Whether the worker has a separate place of work and/or advertises his services to the world at large: The applicant wasrecruited by the respondent to be a personal trainer at the Gym, andthen later appointed him to be Assistant Manager and then GymManager.

10.4 Whether the worker provides and maintains significant tools or equipment. The Respondent provided the applicant withan office, and an email account all at the expense of the employer.The applicant did not supply any plant, tools or equipment. He usedhis mobile phone and laptop. He provided his personal services andskills to the respondent.

10.5 Whether the work can be delegated or subcontracted. The appointment of the applicant was personal in nature. He was selected for his experience and technical knowledge at the Gym. His Gym Manager role and position as Assistant Manager could not be delegated nor could he employ anyone to work for him.

10.6 Whether the putative employer has the right to suspend or dismiss the applicant: There was no written contract for themanagement positions.

10.7 Whether the putative employer presents the worker to the world at large as an emanation of the business. The applicantwas held out as an employee of the respondent. He had a businesscard from the respondent, he had an email account from therespondent, and he worked exclusively in the business of therespondent in an office and work environment where he wasrecognised as the Gym Manager.

10.8 Whether income tax is deducted. This was not done.

10.9 Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks. The applicant waspaid at an hourly rate determined by the respondent.

10.10 Whether the worker is provided with holidays or sick leave. The applicant was paid some holidays.

10.11 Whether the work involves a profession, trade or distinct calling on the part of the worker: This is not the case here.10.12 Whether the worker creates goodwill or saleable assets in the course of his or her work. The applicant provided his personalservices to the respondent in his role a Gym Manager. He did havehis own personal training business within the Gym and used thataccount to invoice the respondent for his hours. The existence of anABN (and also the absence of tax deductions ) has been held not toadvance the matter very far: ACE Insurances Ltd v Trifunovski (2011) FCA 1204 sustained on appeal in a case where the insurancesalesmen described themselves as independent contractors and hadsigned lengthy and detailed contracts to that effect.

10.13 Whether the worker spends a significant portion of his remuneration on business expenses: The applicant did not expendsignificantly on business expenses.’

[42] In examining all of the indicia and considering the overall totality of the relationship, Mr Mullally pointed to four significant factors:

‘12.1 FIRSTLY he was recruited by the respondent to the role of Assistant Manager and then Club Manager. This is a very strong indicator of an employment relationship.

12.2 SECONDLY the applicant was a part of the business of the applicant. The argument that he had his own business is not helpful. It was separate and formed no part of his work with the respondent. He had no assets and no good will. He had no place of business. He had no telephone number except that on his work mobile telephone. The hours he worked were fixed by the respondent. This is a very strong indicator that the applicant is not an independent contractor, but an employee.

12.3 THIRDLY the applicant has no investment in capital plant or equipment to perform his role. He provided only his personal services in exchange for his wages on an hourly basis.

12.4 FOURTHLY looked at objectively and looking at the picture painted overall, the significant reality is that the applicant personally provided his skills, training and expertise to the respondent for the respondent's business in exchange for earning a wage. He was in every sense an employee.’

[43] In oral submissions, Mr Mullally put that despite the offset term in the PT Agreement for rent, the applicant’s bank statements regularly demonstrate a rate of $25 an hour and then $35 an hour from January 2019. There is no evidence of any deductions being made and, in any event, given the applicant’s PT clients were required to be Gym members, it was he who was contributing to the Gym’s income.

[44] Mr Mullally noted that the applicant clearly worked hourly shifts according to a roster; see: [16] above. However, he agreed with me, that the question of whether the applicant was an employee, is not necessarily determined by an agreement as to whether he was the Assistant Manager or Manager. Even on Mr Dwyer’s evidence, the applicant performed general gym duties, distinct from his PT business, as directed and required by the Directors and for which he was paid an hourly rate. Moreover, it was not for the applicant to prove he was an employee, as the employer had obligations under the corporations, tax, superannuation and fair work laws to keep proper records and none were submitted in evidence.

[45] Mr Mullally said the Commission should not accept, without cogent evidence, that the respondent is insolvent. This action was commenced and continued based on the status of the respondent as known at the time. An ASIC search established that Doxi Pty Ltd was a registered company (ACN 169 506 423) with Mr Dwyer recorded as ‘Shareholder 2’, Director and Secretary. In any event, the applicant would have rights to pursue, if the respondent is insolvent and he is found to be a creditor, as a former employee.

[46] In reply, Mr Dwyer said Doxi Pty Ltd is a trustee of a unit trust. He had also provided Mr Mullally with contact information for an insolvency company which was involved in the Company’s circumstances. Mr Mullally had said the case still needed a jurisdictional finding in the applicant’s favour, in order for him to pursue his other rights.

CONSIDERATION

Relevant statutory provisions and authorities

[47] It is trite that the unfair dismissal provisions of the Act (Part 3-2) are predicated on a ‘person’ who is protected from unfair dismissal by an employer, being an employee, and employer as respectively defined.

[48] Section 380 of the Act relevantly uses the terminology ‘national system employee’ and a ‘national system employer’, which are defined in ss 13 and 14 respectively as:

‘13. Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

14. Meaning of national system employer

(1) A national system employer is:

(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs, an individual; or

(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory…’

[49] It is common ground that Doxi Pty Ltd is, or was at the relevant time, a national system employer. However, the respondent’s objection was that the applicant was not a ‘national system employee’, as he was not employed by the respondent, but rather, was engaged as an independent contractor, as confirmed by the PT Agreement. The correct approach the Commission must adopt to determine whether a person had been engaged as an employee or a contractor is a mixture of both fact and law. Thus, the particular factual circumstances, sometimes, but not exclusively involving written contracts or employment instruments, may be useful in the context of the legal principles that have been established and applied by the Commission and the Courts, which have determined the proper characterisation of the relationship.

[50] In a recent seminal case concerning whether an Uber Eats delivery driver was an employee or contractor; see: Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats[2020] FWCFB 1698, a senior Full Bench of the Commission helpfully set out the principles developed by the Commission and the Courts to be applied in matters of this kind. The Full Bench (by majority Ross J and Hatcher VP (Colman DP not dissenting on these principles)), in firstly dealing with labour hire arrangements which are not relevant here, said at [55]-[59]:

‘[55] Having concluded that Ms Gupta performed her delivery work for Portier Pacific pursuant to the Service Agreement and the guidelines, it remains necessary for us to determine whether she did so as an employee or independent contractor. As earlier stated, a multi-factorial test has been adopted in the common law to answer this question. The application of this test in borderline cases such as the one before us is not without difficulty, since it requires the making of an evaluative judgment involving the weighing of various relevant considerations and, as such, may not produce any single clear answer. Notwithstanding this, where the existence of an employment relationship is a jurisdictional fact, as here, a decision determining that question is not to be treated as if it is a discretionary decision for the purposes of an appeal. In Sammartino v Foggo, a Full Court of the Federal Court said in relation to the proper approach to be taken by a Full Bench of the Australian Industrial Relations Commission in an appeal from a decision concerning whether a worker was an employee at law:

“[9] On an appeal from such a decision, if leave to appeal is given, the Commission is plainly not confined, in its consideration of the case, by principles that are found in cases such as House v The King (supra). In dealing with the appeal, the Commission is under a duty to consider all of the proven facts and those facts that have been admitted, and any inferences to be drawn from those facts, to arrive at its decision. It is also under a duty to determine the content of any point of law upon which its decision might depend. If, in undertaking any of these tasks, it finds that the Commissioner has made an error of law or an error of fact, it can exercise its powers under s 45(7).

[10] It will find an error of law or an error of fact if the Commission reaches a different conclusion on the facts or on the law than that arrived at by the primary decision-maker. Further, what must be shown in order to succeed on an appeal will plainly have a bearing on whether leave should be granted.”

[56] Full Benches of this Commission have accordingly proceeded in appeals of this type on the basis that it is necessary to determine whether the primary decision-maker’s conclusion concerning the existence or otherwise of an employment relationship was correct.

[57] It is only necessary to refer to two High Court authorities concerning the multi-factorial test to be applied. First, in Stevens v Brodribb Sawmilling Co Pty Ltd (Brodribb) Mason J (as he then was) said:

“...A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it (Zuijs v. Wirth Brothers Pty Ltd [1955] HCA 73; (1955) 93 CLR 561, at p 571; Federal Commissioner of Taxation v. Barrett [1973] HCA 49; (1973) 129 CLR 395, at p 402; Humberstone v. Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389). In the last-mentioned case Dixon J. said (at p 404):

‘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.’

But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question (Queensland Stations Pty Ltd v. Federal Commissioner of Taxation [1945] HCA 13; (1945) 70 CLR 539, at p 552; Zuijs' Case; Federal Commissioner of Taxation v. Barrett, at p 401; Marshall v. Whittaker's Building Supply Co. [1963] HCA 26; (1963) 109 CLR 210, at p 218). Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the
putative employee.”

[58] The second is Hollis v Vabu, in which the High Court (by majority) determined that a bicycle courier engaged by a courier company was employed by it such as to make the company vicariously liable for injury caused by the courier to a third person. In the context of a discussion about the doctrine of vicarious liability and its application to the acts of employees done in the course of their employment, but not to those of independent contractors, the majority (Gleeson CJ and Gaudron, Gummow, Kirby and Hayne JJ) attached significance to a passage in the judgment of Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd in which his Honour “fixed upon the absence of representation and of identification with the alleged employer as indicative of a relationship of principal and independent contractor”. In connection with this, the majority then referred with approval to the statement made by Windeyer J in Marshall v Whittaker's Building Supply Co that the distinction between an employee and an independent contractor is “rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own”. However the context indicates that the reference to this statement was not intended to erect a substitute or proxy for the multi-factorial test referred to in Brodribb but rather to explain the fundamental import of the distinction between employees and independent contractors in the doctrine of vicarious liability. Thus the majority, after referring to Brodribb, said that in the case before the Court that “guidance for the outcome is provided by various matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” (underlining added).

[59] In determining that the courier company’s bicycle couriers were employees (contrary to the decision of the NSW Court of Appeal under appeal), the majority placed emphasis upon seven matters, which may be summarised as follows:

(1) The couriers did not provide skilled labour or labour which required special qualifications and could not independently operate as couriers or generate any goodwill.

(2) The couriers had little control over the manner of performing their work. They had a required start time, were assigned to a roster and were not able to refuse work. It was unlikely that they could delegate their work or be able to work for another courier operator.

(3) The couriers were presented to the public as emanations of the courier company: they had uniforms with a company logo, and were required in their attitude and appearance to act as the company’s representative. This partly reflected the company’s wish to advertise its business.

(4) The need for deterrence in respect of the known danger of bicycle couriers to pedestrians favoured a finding of employment.

(5) The courier company superintended the couriers’ finances in respect of remuneration, pay adjustments and deductions, and there was no scope for the couriers to bargain for the rate of their remuneration. The method of payment per delivery was a natural means to remunerate employees whose sole duty was to perform deliveries, for ease of calculation and to provide an incentive. The company also controlled absences from work for leave purposes.

(6) The situation with tools and equipment favoured, if anything, a finding that the couriers were employees. The capital outlay was relatively small and bicycles were not tools inherently capable of use only for courier work, but could also be used for personal transport or recreation. The majority said: “The fact that the couriers were responsible for their own bicycles reflects only that they were in a situation of employment more favourable than not to the employer; it does not indicate the existence of a relationship of independent contractor and principal”.

(7) There was considerable scope for the exercise of actual control by the courier company. It retained control of the allocation and direction of deliveries. The couriers had little latitude, their work was allocated by the fleet controller, and they had to deliver goods as directed.’ (endnotes omitted)

At [64] the Full Bench continued:

‘[64] In French Accent, a Full Bench of this Commission usefully summarised the considerations, derived from various court authorities, which may be relevant in the application of the multi-factorial test referred to in Brodribb. However as was stated by Winneke P in the Victorian Court of Appeal decision in The Roy Morgan Research Centre P/L v The Commissioner of State Revenue, the task in applying the test is not to be approached as a mechanical exercise of running through items on a checklist, but is rather “a matter of obtaining the overall picture from the accumulation of detail”. This involves “an assessment and evaluation of evidence for the purpose of identification and isolating factors or indicia which are capable of pointing in one direction or the other, and then weighing or balancing those factors in accordance with established principles, none of which is conclusive, in order to reach a conclusion”. (endnotes omitted)

and at [70] found:

‘[70] In summary, we do not consider that Ms Gupta’s relationship with Portier Pacific bore a number of the usual and essential hallmarks of an employment relationship, namely a requirement to perform work at particular times or in particular circumstances, exclusivity when work is being performed, and presentation to the public as serving in the business. For these reasons we conclude she was not an employee of Portier Pacific.’

[51] In Abdalla v Viewdaze Pty Ltd t/a Malta Travel PR927971; (2003) 122 IR 215, a Full Bench of the Australian Industrial Relations Commission (‘AIRC’) distilled the indicia which have guided the Courts and the Commission into 14 non-exclusive questions:

• 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.

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

• 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.

• 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.

• 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.

• 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.

• 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.

‘(5) If the indicia point both ways and do not yield a clear result the determination should be guided primarily by whether it can be said that, viewed as a practical matter, the individual in question was or was not running his or her own business or enterprise with independence in the conduct of his or her operations as distinct from operating as a representative of another business with little or no independence in the conduct of his or her operations.

(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.’

[52] I intend to apply each of these indicia to the facts and circumstances of this case. Before doing so, I make the following two observations. Firstly, while the controversy over whether the applicant was appointed an Assistant Manager or Club Manager, may go partway to answering the question of whether he was an employer or contractor, it is not wholly determinative of the jurisdictional objection. It is the nature and characteristics of the relationship between the applicant and Doxi Pty Ltd which will be crucial to that question, not what the applicant was titled. I would add that Mr Dwyer did not produce any Manager’s agreement in respect to Mr Taylor, who he insisted was the Manager at the relevant time. Secondly, the question is not exclusively determined by the only documentary evidence said to be of relevance; namely the PT Agreement. The PT Agreement may be relevant not only for what it says about its agreed terms, but what it does not say about the true nature of the relationship. Mr Dwyer’s enthusiastic embrace of the PT Agreement being the only evidence, and the ‘killer’ evidence which proves the applicant was a contractor, is understandable, but misconceived and ignores the principles to be applied as set out in the authorities on the subject I highlighted above.

1. 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.

[53] Clause 5 of the PT Agreement reads:

‘5. Additional Duties

(b) The Contractor will be entitled to an additional fee for hours worked at a rate to be negotiated between the Company and the Contractor from time to time.

(c) The Contractor may be requested to provide a half hour introductory personal training session to new Clients for promotional purposes, at no cost to the new Clients and the Business.’

Given this express term and in consideration of the other evidence, I make the following observations and findings:

(a) It is plainly obvious that the additional duties in Cl 5, are distinct and separate to the applicant’s PT business. Fees for this additional work is that which was paid to the applicant based on $25 then $35 an hour.

(b) While not agreeing to all of the duties the applicant claimed he performed, Mr Dwyer agreed that some of these duties related to the Gym’s requirements, its functions and administration; see: [17] above.

(c) The applicant was required to work shifts and to perform this work separate to his PT business, according to a roster determined in advance; see: [16] above.

(d) Mr Dwyer acknowledged that in performing these shifts, the applicant (and all other PTs) were subject to direction from the Director of the respondent.

(e) Mr Dwyer said that all of the PTs were required to submit a daily work report after each shift, which demonstrated the hours worked to offset rent and hours worked in addition. The respondent maintained no record of this distinction and the applicant said he was never required to offset any of his shifts for rent. I accept this evidence.

(f) All additional hours were worked by PTs at the Gym, and not at any other place.

[54] From the foregoing, I am satisfied the respondent exercised the right to control the nature of the work and direct the manner in which the work was performed, the place of work, and the hours of work.

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

[55] The applicant did not perform the work required of him by the respondent for any other gym.

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

[56] There was no evidence that the applicant had a separate place of work. On the contrary, the clients of the applicant’s PT business were required to become members of the Gym and retain membership of the Gym. This was a direct financial benefit to the respondent. Clause 5(c) of the PT Agreement expressly provides for a half hour promotional training session for new clients to the Gym. This is obviously intended to jointly encourage their Gym membership and the applicant’s business and income.

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

[57] There was no evidence that the applicant provided his own gym equipment for the purposes of the PT sessions he conducted for clients at the Gym.

5. 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.

[58] There was no evidence of any capital equipment investment of the applicant when working for the Gym and engaging in his PT business. Given the nature of PT, there is little or no equipment necessary to be provided by the PT. In any event, the clients of the applicant, as Gym members, would be entitled to use the Gym’s equipment, such as mats, weights, boxing bags etc.

6. Whether the work can be delegated or subcontracted.

[59] The additional duties performed by the applicant were, at all times, required to be performed at the Management’s direction and according to Mr Dwyer’s expectations. The applicant could not delegate or subcontract the additional duties he was required to perform in the Gym.

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

[60] Clause 7 of the PT Agreement reads as follows:

‘7. Termination of this Agreement

7.1 Rights to terminate

(a) Either party may terminate this agreement, without reason, by providing four (4) weeks written notice to the other party.

(b) Notwithstanding the above, the Company may terminate this agreement immediately and without any notice if the Contractor:

(i) commits an act of dishonesty, or a criminal offence which in the reasonable opinion of the Company is likely to bring the Company into disrepute;

(ii) commits an act that the Company, in its absolute discretion, considers to be misconduct or a breach of this agreement;

(iii) refuses or neglects to comply with any lawful and reasonable order given to it by the Company and the Contractor fails to remedy such refusal or neglect within 30 days of receiving notice from the Company of such refusal or neglect; and

(iv) commits a breach of any statutory, legal or regulatory requirement of which the Company becomes aware and which, if appropriate, is not remedied within a reasonable time to the satisfaction of the Company.

7.2 Conduct on termination

On the termination of this agreement or at any other time notified by the Company, the Contractor must return to the Company:

(a) all material on which Confidential Information or Intellectual Property is recorded, copied or modified (whether in documentary, visual, oral, digital or electronic format, or in any other readable or reproducible format);

(b) any computer hardware and software, passwords, keys, security passes, mobile telephones and accessories, and equipment of the Company; and

7.3 Amounts owing on termination

On the termination of this agreement or at any other time notified by the Company, the Contractor agrees that it will be obliged to pay, or at the Company's election, the Company will be entitled to withhold or deduct from any amount it is otherwise required to pay the Contractor:

(a) any overpayment of fees or other amounts paid by mistake, or as a result of a breach of duty by the Contractor;

(b) any sum or debt owed by the Contractor to the Company; and

(c) any monies pre-paid by a Client to the Contractor for personal training sessions that have not yet been provided by the Contractor to that Client.’

[61] On any objective analysis, this clause is a typical termination of employment clause found in most Awards and agreements, including a common law right to terminate the Agreement for reasons of misconduct; notably, providing termination of the Agreement for a contractor’s refusal to comply with any lawful and reasonable order given by the Company.

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

[62] There is no doubt that in order for PTs to conduct training sessions in the Gym, they must join up their clients to the Gym. In addition, by wearing a PT shirt when performing additional duties, the PT is representing themselves as an emanation of the business, as well as their own.

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

[63] It is unclear from the documentary material filed in the proceedings whether income tax was paid on the regular deposits into the applicant’s bank account. Certainly, there is no record produced as to the relevant tax payable in respect to any of the employees or PTs of the respondent. The applicant provided no details of his tax arrangements for the additional duties he performed, or for the fees paid by clients to his business. It is apparent, however, that the applicant invoiced the Gym for payments for additional work performed to his PT business, CBPT (ABN 91 959 371 292). I can take this matter no higher than to assume that all the parties’ relevant taxation obligations have been attended to, in accordance with the requirements of Commonwealth taxation laws.

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

[64] There is no reason to doubt that the applicant was paid a periodic wage for the rostered shifts he worked as additional duties under Cl 5 of the PT Agreement. This work was not referable to a completion of tasks, but to numerous miscellaneous duties performed during a rostered shift.

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

[65] This was a matter of some dispute. The evidence is that the applicant had requested time off and Mr Dwyer had paid him for this time ($1500 over 2 periods) totalling an amount of exactly $3,000. This amount does not appear to be based on any calculation of annual leave accrued on a fixed average week’s wage. Mr Dwyer described these payments in December 2018 and June/July 2019, as gestures of good will, to be paid back, because he wanted to retain the applicant’s services and because he was doing it tough. When the Gym closed, Mr Dwyer did not seek the $3,000 back and said he just ‘wrote it off’. On the other hand, Mr Dwyer strenuously denied these amounts were for annual leave, despite the applicant’s invoice dated 21 December 2018 describing the $1,500 as ‘LEAVE’. Of course, Mr Dwyer could not concede he paid the applicant annual leave, as this would tell strongly in favour of a proposition that the applicant was an employee. His attempts at explanation were weak and unpersuasive, particularly as it makes no logical or business sense why Mr Dwyer would make ‘significant gestures of good will’, when he claimed the Gym itself was in financial trouble; see: [28] above.

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

[66] The additional duties expected to be undertaken were general administration duties as described in [17] above. It was not work of a profession, trade or distinct calling.

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

[67] It would appear self-evident that a personable, friendly front desk person in a gym – a duty Mr Dwyer did not dispute the applicant undertook – promotes the business and encourages casual and trial customers to return, or take up Gym membership. There was no suggestion that the applicant did not fulfil this role and the additional duties he was directed to perform, in anything other than a professional and diligent manner.

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

[68] There was no evidence that the applicant spent significant, or any portion of his remuneration from Doxi Pty Ltd on business expenses.

[69] From the above dissertation, it should come as no surprise that I am satisfied that when the applicant was performing additional rostered duties, according to Cl 5 of the PT Agreement, he was an employee in a practical, factual and legal sense. The employer of the applicant was Doxi Pty Ltd, owned by Mr Dwyer at the time.

[70] However, that is not the end of the matter. This case, as the authorities have made plain, demonstrates that ‘one size fits all’, is not the definitive answer to every employment/contractor relationship. There may be ‘grey’ cases where the factual circumstances are not entirely clear, or the weight of evidence tips a particular finding one way over another.

[71] That said, in my view, the relationship between Doxi Pty Ltd and the applicant was neither unusual nor unique. It is a typical relationship routinely found in the fitness industry, where PTs conducting their own business do so on gym premises, using the gyms’ equipment and resources. Real benefits for the gym include the clients of the PT’s business being an advertisement for the gym more widely and for the PT being available to perform duties associated with the administration, running and/or management of the gym at the owner’s discretion.

[72] In that sense, the relationship between the PT and the gym owner is dual faceted. It includes a PT’s personal business as a contractor, sitting comfortably alongside an ordinary employment relationship between the PT as an employee and the gym owner as the employer. The fact the PT Agreement recognises this dual arrangement demonstrates the two different relationships coexist together. This does not mean that one relationship exists to the exclusion of the other, a proposition for which Mr Dwyer contended. Mr Dwyer’s submission (which I accept), that all the PTs had the same arrangements, does not support Mr Dwyer’s objection; rather, it demonstrates that this is a commonly accepted arrangement in the fitness industry.

[73] For all aforementioned reasons, I conclude that the respondent’s jurisdictional objection must be dismissed. It follows the applicant’s s 394 application for an unfair dismissal remedy, is jurisdictionally sound and competently before the Commission for determination on its merits.

[74] However, given the presumed status of the respondent’s legal standing, the Commission’s consideration of the merits of the application and any order for a remedy from any unfair dismissal findings, further proceedings may be of little, or no utility. I have no clear indication of the current status of affairs in this respect. Accordingly, I direct the applicant (or his representative) by 5pm 5 June 2020 to advise of his intentions in respect to further pursuing this application before the Commission.

[75] Depending on this response, the Commission will consider whether:

(a) the Commission is prevented from dealing with the matter pursuant to s 500(2) of the Corporations Act 2001;

(b) the applicant has, or intends to seek leave of a Court to pursue these civil proceedings;

(d) the application is to be discontinued; or

(e) such other course of action considered appropriate.

[76] The respondent’s position will then be sought as to the applicant’s intention as above. Of course, the parties are also encouraged to confer as to any settlement of the matter, or as to any consent orders that might be necessary to process the application to conclusion.

[77] The proceedings are adjourned on that basis, until further direction or order of the Commission.

DEPUTY PRESIDENT

Appearances:

Mr P Mullally, Chief Industrial Advocate, Workclaims Australia, for the applicant

Mr G Dwyer, Director, Doxi Pty Ltd, for the respondent

Hearing details:

2020.

Perth:

6 February.

Printed by authority of the Commonwealth Government Printer

Christopher Bond v Doxi Pty Ltd t/a Jetts Wanneroo

[2020] FWC 2538

29 MAY 2020

DECISION