Christopher Patrick Hall v Detector Inspector Pty Ltd
[2022] FWC 3087
•22 NOVEMBER 2022
| [2022] FWC 3087 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Christopher Patrick Hall
v
Detector Inspector Pty Ltd
(C2022/3115)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 22 NOVEMBER 2022 |
Application to deal with contraventions involving dismissal– applicant not an employee – jurisdictional objection upheld - application dismissed
This decision concerns an application by Mr Christopher Patrick Hall (Applicant) under section 365 of the Fair Work Act 2009 (Act) (Application) alleging that he was dismissed from his employment with Detector Inspector Pty Ltd (Respondent/Detector Inspector) in contravention of the general protections contained in Part 3-1 of the Act.
It is uncontested that Mr Hall was engaged by the Respondent on 4 April 2022. Mr Hall was engaged as a Smoke Alarm Technician.[1] Mr Hall contends that he was engaged as a part-time employee. The Respondent says that Mr Hall was engaged as an independent contractor.
The Respondent raises two objections to the Application. Firstly, the Respondent objects to the Application on the basis that Mr Hall was not an employee of the Respondent and therefore was not “dismissed” as that term is defined in s.386(1) of Act (First Jurisdictional Objection). Secondly, and in the alternative, should it be found that Mr Hall was an employee, the Respondent objects on the basis that Mr Hall was not terminated at the initiative of the Respondent and therefore was not dismissed for the purposes of s.386 (1)(a) of the Act (Second Jurisdictional Objection).
It is not in contest that the definition of “dismissed” in s.386(1) takes as its predicate the prior existence of an employment relationship. Therefore, there can be no dismissal for the purposes of section 365 unless Mr Hall was an employee employed by the Respondent.
For the reasons that follow I have concluded that Mr Hall was not an employee of the Respondent. It follows that I uphold the Respondent’s First Jurisdictional Objection and Mr Hall’s application is dismissed. It is therefore not necessary that I consider the Respondent’s Second Jurisdictional Objection.
Hearing and Witnesses
The Application was the subject of a hearing before me on 17 October 2022 and 19 October 2022. The parties filed further materials on 17, 18 and 19 October 2022.
The Applicant appeared and gave evidence on his own behalf and Ms Belinda Ristevski, Head of People and Culture for Detector Inspector, gave evidence and appeared on behalf of the Respondent.
At 3.49pm on Friday, 14 October 2022 Mr Hall filed a Form F51 seeking orders pursuant to section 590(2)(a) of the Act that Mr Ami Eliav, Smoke Services Manager, and Mr Mason Clarke, Smoke Services Supervisor, attend the hearing and give evidence. Having heard from the parties, on 17 October 2022 I made Orders requiring Mr Eliav and Mr Mason to attend the Hearing and give evidence. However, given my conclusion that Mr Hall was not engaged as an employee of the Respondent, I have no addressed the evidence of either Mr Eliav or Mr Mason.
Background and findings of fact
The Respondent
In addition to providing gas appliance and electrical safety checks, the Respondent provides smoke alarm services to more than 350,000 rental properties annually. The Respondent, through the engagement of contractors and employees, tests and replaces smoke alarms in residential tenancy properties. The Respondent submits that the provision of smoke alarm services are regulated by the Residential Tenancies Regulations 2021(Vic) and the Building Regulations 2006 (Vic) (collectively, Regulations) and are also subject to the Australian Standards, specifically, AS3786-2014.[2] As such, it submits that the law prescribes the manner in which smoke alarm services are undertaken and that compliance with those requirements is necessary to ensure that a valid certificate of compliance can be issued at the completion of the service.[3] The Respondent did not identify the specific provisions of the Regulations it says apply to smoke alarm services or the specific obligations that it says apply to it. However, I accept that under the Residential Tenancies Regulations 2021(Vic) rental providers are required to ensure that smoke alarms are installed, in working order and checked regularly and that similar obligations arise under the Building Regulations 2018 (Vic) and that the Respondent is engaged to discharge these maintenance and testing obligations. As such, I accept that the manner in which smoke alarms services are undertaken by the Respondent is subject to legislative overlay and is for the purpose of third parties discharging those legislative obligations.
The Applicant’s engagement
On or about 4 January 2022 the Respondent posted an advertisement on Seek for a “Smoke Alarm Technician (Contractor) – Bayside & South East Suburbs”[4] (Role). A full copy of the Advertisement is set out in Annexure 1 to this decision. On 5 January 2022 Mr Hall emailed Ms Emily Dunk, Recruitment Consultant for the Respondent, in relation to the Role asking a number of questions including questions as to expected hours and days of work, the number of inspections expected and the rate per call.[5] On 6 January 2022 Ms Dunk responded to Mr Hall by email. That email provided that the Respondent had “both employee and contractor positions available” and provided the following information in relation to contractors:
“Contractor: regional work + weekend work available (optional) – 9-7 or 9-5 (Monday-Friday availability preferred)
More earning potential as it depends on the jobs you complete a day.
”
(6 January Email).
The email also said “We also have the option for those that are contractors to work regionally at times- the rates for regional work I’ve included below for you.”[6]
On 10 January 2022 Mr Hall replied to Ms Dunk saying:
“Hi Emily, I’m interested in the contractor position, however, the only issue I have is the monthly pay cycle.
If I was to pursue the application, I would require a maximum of a fortnightly pay cycle, so I’m not sure what your flexibility is with the pay cycle?”
On 22 January 2022 Mr Hall and Ms Dunk had a telephone conversation about the position. Ms Dunk sent an email to Mr Hall that morning thanking him for his time on the telephone and providing details about the Role, as set out in the 6 January Email.[7]
On 29 January 2022, Mr Hall applied for the Role[8] and on 23 February 2022 attended an interview via Zoom.[9] During the interview Mr Hall advised Ms Dunk that he was available to work Monday, Tuesday, Wednesday and Friday,[10] 9am – 5pm[11] each week. Shortly after the interview Ms Dunk advised Mr Hall that he had been successful in obtaining the Role.[12] There is no specific evidence before the Commission as to the content of the interview or the matters discussed during the interview. However, Mr Hall’s evidence is that he believes it was during the interview[13] or around the time he was informed that he had been successful in obtaining the Role[14] that he advised Ms Dunk that he would like to hire the vehicle and tools necessary for the Role and receive a reduced fee to cover the cost of that hire and fuel consumption. It also appears that the requirement to purchase and wear a Detector Inspector uniform was discussed at that time.[15] These matters are contained in the Contractor Agreement later forwarded to Mr Hall. It therefore appears that, at the very least, remuneration, availability, vehicle and tool hire and uniform requirements were discussed at that interview. In light of subsequent communications from Ms Dunk it also appears that invoicing arrangements and the requirement for an Australian Business Number (ABN) were also discussed during the interview. I note also that the requirement for an ABN was set out in the advertisement to which Mr Hall responded.
Later that day Ms Dunk sent Mr Hall an email which required him to complete the Respondent’s Smoke Induction Course and providing a Contractor Details Form for Mr Hall to complete and return.[16] The Contractor Details Form completed by Mr Hall identifies Mr Hall as the contractor and provides necessary banking and ABN details. [17] I interpose to note that the ABN details provided on the Contractor Details Form were for Ches Nominees Victoria Pty Ltd (Ches), which is a corporate entity of which Mr Hall is a director. Despite some confusion at the hearing and a submission to the contrary, the Respondent ultimately conceded that it had engaged Mr Hall as a natural person and had not engaged Ches. It also conceded that it had failed to identify that the ABN provided was not that of Mr Hall in his personal capacity. On the Contractor Details Form Mr Hall chose not to receive superannuation. His evidence was that he elected not to receive superannuation as his understanding was that as a contractor he was not entitled to superannuation.[18]
Mr Hall completed and returned the Contractor Details Form to Ms Dunk on 25 February 2022[19] and completed the Smoke Induction Course on that date also.[20]
Mr Hall attended two days of accreditation on 7 and 8 March 2022. This consisted of shadowing Mr Yaqubie, an employee of the Respondent, while Mr Yaqubie attended his assigned jobs.[21] He also undertook a final induction in the Respondent’s office on 9 March 2022.[22]
On 9 March 2022 Mr Hall was provided with an email on behalf of the Respondent requiring him to complete a number of tasks in relation to his engagement with the Respondent. These included completing a police check, providing his drivers licence, public liability insurance certificate of currency and COVID-19 vaccination information.[23]
On or around 23 or 24 March 2022 Ms Dunk contacted Mr Hall and advised him that he was entitled to superannuation.[24] Mr Hall subsequently provided his superannuation details to Ms Dunk.[25] Ms Ristevski’s evidence is that on 11.16 pm on 24 March 2022 a system generated email was sent to Mr Hall with a link to a Contractor Agreement for him to sign and at 11.17 pm a further system generated email was sent to Mr Hall with a link to the Respondent’s Acceptable Workplace Behaviours document.[26] Mr Hall’s evidence is that he only received the latter email and did not receive the Contractor Agreement on that date.[27] On the basis of the evidence before the Commission,[28] I find that the Respondent did send both emails to Mr Hall at that time. However, nothing turns on this, as it is uncontested that Mr Hall did not open the link to the Contractor Agreement sent on 24 March 2022 and that he only opened and signed the Acceptable Workplace Behaviours document at that time.
On 1 April 2022 Ms Dunk sent 2 emails to Mr Hall.[29] The first email (1 April Email) commenced “Hi Chris, In terms of how to invoice us monthly…” and attached 2 template documents (one inclusive of goods and service taxation (GST) and the other exclusive of GST) which, the email provided, Mr Hall was “welcome to use”. The 1 April Email then provided that:
· Mr Hall would be provided with a Summary of Work and Charges Statement (Statement) at the start of each month for the previous month;
· he should review the Statement and then invoice the Respondent; and
· once the Statement is submitted, Mr Hall would be paid at the end of the month.
The 1 April Email clarified that Mr Hall would therefore not get his first Statement until the beginning of May and payment would therefore be made at the end of May for work undertaken in April. The 1 April Email also provided information regarding travel charges for regional days.[30]
The second email provides a range of information to Mr Hall including how to log in to the Respondent’s systems, how to install the Respondent’s application (App), how to download Telegram messenger (Messenger), how to access the stock room and who to contact for queries in relation to rostering, stock, the car and tools and contact names and numbers for the relevant Smoke Trainer, Smoke Service Manager and Smoke Technician Supervisor. That email also included the following “Should you need to take more than 2 weeks leave, you must give at least one months’ notice of this.”[31](Asserted Notice Provision).
On 1 April 2022 Mr Hall attended the Respondent’s offices and collected the car, tools and uniform. He was also provided with a fuel card. Upon receipt of the car Mr Hall washed the car at a nearby car wash at the Respondent’s expense.[32]
Commencing work for the Respondent
Mr Hall commenced in the Role on 4 April 2022.
It is uncontested the Respondent schedules work and the worker submits completed work via the App. It is also uncontested that internal communications between Mr Hall and other personnel within the Respondent was via Messenger.
It appears uncontested that the persons engaged by the Respondent as contractors where required to advise of their availability for work one calendar month in advance. A roster for the month is generated on the basis of the availability previously advised by the contractor (known as default availability) and the contractor is required to confirm they will work those shifts. If they did not confirm shifts, the shifts are made available for other contractors. As set out above, at the interview with Ms Dunk on 23 February 2022, Mr Hall advised Ms Dunk that he was available to work Monday, Tuesday, Wednesday and Friday, 9am – 5pm each week. It is uncontested that this was set as Mr Hall’s default availability. On 30 March 2022 Mr Hall received an email asking him to submit his availability for the month of April.[33] A roster had been generated based on Mr Hall’s default availability, thereby providing him with shifts from 9am-5pm Monday, Tuesday, Wednesday and Friday each week for the period 4 April 2022 to 1 May 2022. I infer from the evidence before the Commission that Mr Hall confirmed his availability for these shifts. As also set out above, Mr Hall commenced working for the Respondent in the Role on 4 April 2022, working Monday, Tuesday, Wednesday and Friday 9am - 5 pm each week.
The Contractor Agreement
On 12 April 2022 the Respondent again sent Mr Hall the Contractor Agreement by email.[34] Mr Hall’s evidence is that at that time he opened the link but did not sign or return the Contractor Agreement.[35] This was not contested by the Respondent.
The Contractor Agreement provides that it is between the Respondent (called the Business) and “the Contractor named in Item 1 of the Schedule 1”. Item 1 of Schedule 1 provides that the Contractor is “Chris Hall”.
The Contractor Agreement provides that the Business has engaged the Contractor to provide the services set out in Item 2 of Schedule 1 to the Agreement (Services). The Services are:
service, maintain and install smoke detectors and corded window coverings at locations as directed by the Respondent; and
other services as requested by the Respondent from time to time.
The obligations of the Contractor are set out in clause 3 of the Contractor Agreement and includes an obligation that “(t)he Contractor must be available to provide the Services upon acceptance of a shift for the duration of the shift pursuant to the Business’ rostering system set out in clause 5 below”. Clause 3 also provides, amongst other things that the Contractor:
· is responsible for any damage caused in the performance of the Service by him or any delegate and is liable for all the costs of rectification of any such damage;
· must have an ABN and provide that to the Business.
Clause 4 deals with vehicles and equipment and relevantly provides as follows:
the Contractor will purchase the uniform required by the Business to be worn and the tools of trade (which are listed in Schedule 1 and include a ladder, drill, hand held vacuum and decibel tester);
the Contractor will pay for the uniform and tools via 36 monthly installments deducted from the fees payable to him for the Services each month;
the Contractor will own the uniform and tools on the third anniversary of the Contractor Agreement;
Smoke detectors, batteries, smoke in a can, labels, cleats, chord tensioners, hollow wall anchors and screws (as set out in Schedule 1) will be provided by the Business to the Contractor for the performance of the Services;
any other items required by the Contractor for the proper performance of the Services not included in Schedule 1 are required to be provided by the Contractor;
the Contractor is responsible for ensuring all equipment is maintained in a safe and workable condition;
the Contractor is expected to provide and fully maintain their own vehicle in order to provide the Services;
alternatively, the Contractor may hire a vehicle from the Business to provide the Services.
If the Contractor elects to hire a vehicle from the Business, vehicle hire fees are deducted from the fees otherwise payable to the Contractor for the provision of the Services. Those reduced fees are contained in Item 6 of the Schedule. The terms of hire are set out in Schedule 2 to the Contractor Agreement and include provisions regarding use of the vehicle for the performance of the Services and ancillary use permitted by law, insurances and maintenance.
Clause 5 deals with rostering and relevantly provides that the Contractor can access the roster for upcoming Services, usually one month in advance using the App. It is also provides that through the App:
shifts for the next month are identified;
the Contractor can choose to accept any shifts in the roster;
the Contractor can choose to request shifts on a regular default basis and will be allotted those shifts, subject to the Contractor accepting those allotted shifts;
the Contractor can elect not to accept shift allocated on a default basis and if the Contractor does so the shifts will go back into the pool for other Contractors to accept.
Appointments with clients are not arranged by the Business until the Contractor has accepted the shift on the App. Clause 5 also provides that once the Contractor accepts a shift in the roster, the Contractor is responsible for completing that shift, and subject to the conditions in the Contractor Agreement around delegation, the Contractor is responsible for either arranging the shift to be performed by another Contractor or engaging a delegate to perform that shift. Finally, should the Contractor fail to complete a rostered shift without a valid reason and/or not engage a replacement, a fee of $100 plus GST applies to cover the costs incurred by the Respondent.
Clause 6 deals with fees to be paid to the Contractor. Fees are as specified in Schedule 1. Schedule 1 provides fees ‘per job’ of a specified dollar sum according to the geographic location, identified by ‘zones’, of the job. Where the Contractor has hired a vehicle to perform the Services the fees are reduced “to reflect the vehicle hire fees payable and the fuel consumption payable by the Contractor.” These reduced fees are also specified in Schedule1. Fess for servicing corded window coverings are $10 per property, irrespective of zones. Clause 6 also provides for superannuation to be paid to the Contractor and provides that the Contractor will invoice the Respondent each month for the Services provided in the previous month, less the amount to be deducted for the uniform and tools.
Clause 7 provides that the Contractor provides the Services at his own expense and unless expressly authorised by the Respondent is not entitled to be reimbursed for any out of pocket expenses incurred by the Contractor in the provision of the Services.
Clause 8 states that the Contractor is engaged by the Respondent as an independent contractor and that subject to the terms of the Contractor Agreement the Contractor is solely responsible for controlling the manner in which the Contractor provides the Services.
Clause 9 provides for termination of the Contractor Agreement by either party upon notice and for termination by the Respondent without notice in certain circumstances.
Clause 10 requires the Contractor to hold public liability insurance of at least $5,000,000 and salary continuance insurance/personal accident insurance of at least $100,000.00. Pursuant to clause 10 the Contractor indemnifies the Respondent in respect of any claims, liabilities and costs in relation to:
workers’ compensation ;
taxation and superannuation;
damage in the course of the provision of the Services,
in respect of the Contractor or delegate.
Pursuant to clause 10 the Contractor is solely responsible for all taxes, superannuation contributions, money due to any delegate engaged by the Contractor and compliance with all state and federal laws.
Clause 11 deals with GST and provides that it is the responsibility of the Contractor to determine if GST is payable and if so, the Respondent will pay it to the Contractor.
Clauses 12, 13, 14 and 15 deal with confidentiality, intellectual property, property and information and restraints respectively.
Clause 16 provides that the Contractor may delegate the performance of the Services, subject to prior approval of the Respondent to ensure that the delegate has the requisite level of knowledge and skills to perform the Services.
Clause 17- 25 deal with policies, waiver, severance, variation, governing law, notices, entire agreement, survival and police checks, respectively.
Payment of invoices
On 3 May 2022 Mr Hall’s evidence is that he attempted to upload his first invoice (being for work undertaken in the month of April 2022) and was unable to do so. Mr Hall emailed Ms Dunk saying “I’m trying to upload my April work invoice via the template you sent me but have no idea how to after viewing the portal/dashboard” and saying “In the portal it states Please use the figures in the email sent to you titled “Charges Summary”.[36] Ms Dunk responded later that day confirming that the Work and Charges Summary was ordinarily sent via email in the first week of each month.[37] Mr Hall replied on 4 May 2022 saying “Hi Emily , is there some way you or Megan can find out when I can receive the summary as I would like to be paid asap. got bills and mortgage to pay etc etc.”[38] Ms Dunk replied saying:
“Hey Chris.
Thanks for your email.I tried to give you a call today, but you may have been busy.
In the meantime, here is some information regarding the work & charges for contractor smoke technicians. In terms of contractors receiving payment each month, the way our system is set up is that the invoices/work & charges are on a 30-day turn around (monthly). However, the first invoice can take longer to come through as contractors are paid for the previous month’s work.
For example: At the end of this month being May, you would receive payment for the previous months work completed in April. Next month at the end of June, this is when you would receive pay for the work completed in May. So, for new starting contractors that’s why there’s a wait with your first invoice. For the work you’ve just completed in April, you would then receive this at the end of this month. We do cover off this information during the recruitment and interviewing process, however there may have been some confusion.
If there are any issues at all or would need your pay for last month advances, we can have a chat over the phone, but we would need to raise this to the Smoke Services manager.
Please let me know if you have any questions about the above, feel free to give me a call and we can go over it.
Kind regards,
Emily Dunk
Recruitment Consultant”
Mr Hall responding saying, relevantly:
“…you may have covered this off in the interview, however, I feel it’s not logical that I work a month and don’t get paid until the end of the following month.
I would like to speak to the Smoke Services Mgr as this is not paying me in advance, it’s payment me for the work I have completed for the month of April and I would have thought my jobs would already be processed by the accounts dept and as such forward my pay into my account.
I’m going away next weekend so how do I pay for those expenses??
I realise the contractor position gets paid monthly, but waiting 2 months to get your first pay is not right and probably not legal either.
I’m sure the directors of the Company don’t get paid monthly and don’t have to wait another month to get their pay.
I am quite happy to speak to one of the directors and discuss their wage arrangement with their employees.
This is nothing to do with you as you have been fantastic throughout the entire process, I just don’t agree with DI’s processes in managing new employees.
Kind regards
Chris”
Ms Dunk replied as follows:
“Hi Chris,
I’ve raised this to the Smoke Services manager, who will speak with our accounts team about this. They usually review this on a case-by-case basis – on this occasion as a one-off favour, they’ll be able to process your work & charges/invoice earlier than the end of this month.
This may take a few days to process, I’ll keep you updated with what our accounts team come back with.”
Ms Dunk further confirmed:
“Just to further clarify, as this is a once-off favour it will only be affective for the work period you completed in April.
For the work you’re completing this month (May), this will be processed as per usual for contractors. There is a 30-day turn around period to process your work & charges, therefore your pay for the month of May will come through at the end of June.
Kind regards,
Emily Dunk
Recruitment Consultant”
Private use of the vehicle
It is uncontested that Mr Hall elected to hire a vehicle from the Respondent for the performance of the Services. It also appears uncontested that the fees payable to Mr Hall were the reduced fees reflective of the vehicle hire fees and fuel consumption (consistent with Item 6 of Schedule 1 of the Contractor Agreement). Mr Hall’s uncontested evidence was also that he utilised the vehicle for his private use and that he was not informed that he ought not do so. I accept that evidence.
6 May 2022
It is uncontested that the last day Mr Hall worked for the Respondent was 6 May 2022. Mr Hall contends that the Respondent dismissed him on that date. The Respondent contends that it did not dismiss Mr Hall; rather it says that Mr Hall refused to perform further work for the Respondent after that date. Given my conclusion that Mr Hall was not an employee of the Respondent, he cannot have been dismissed. It is therefore not necessary that I consider the events of 6 May 2022 or the events that occurred thereafter.
Legislative context
Section 365 and 386 of the Act
Section 365 of the Act provides that a person who has been dismissed may apply to the Fair Work Commission (Commission) for the Commission to deal with the dispute.
The meaning of the term “dismissed” is set out in s 386 of the Act, which provides as follows:
“(1) A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2)However, a person has not been dismissed if:
(a)the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season;
(b)the person was an employee:
(i)to whom a training arrangement applied; and
(ii)whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c)the person was demoted in employment but:
(i)the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the demotion.”
Consideration
The first issue to be determined is whether Mr Hall was an employee of the Respondent.
In ZG Operations Australia Pty Ltd v Jamsek[39] and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd,[40] the High Court emphasised the central importance of the contract between the parties in ascertaining the existence and nature of any relationship between them. When characterising a relationship regulated by a wholly written, comprehensive contract which is not a sham or otherwise ineffective, the question is to be determined solely by reference to the rights and obligations under that contract. It is not permissible to examine or review the performance of the contract or the course of dealings between the parties.[41] However where there is no written contract, in the determination of whether the relationship was one of employment or otherwise, it is necessary to identify by way of inference from the dealings between the parties what the terms of that contract were.[42]
The Respondent submits that the Applicant was engaged pursuant to the Contractor Agreement[43] and that the Contractor Agreement is a “comprehensive written statement of the parties’ contractual rights and obligations in their relationship”.[44] The Respondent submits that the Contractor Agreement was opened and read by Mr Hall on 12 April 2022, following which time he continued to perform the Services in accordance with the terms of the Contractor Agreement and accordingly, he accepted those terms and conditions as those which governed the contractual relationship between the parties.[45]
Mr Hall submits that the Contractor Agreement is not a comprehensive written document[46] because it was not provided to him prior to commencing to perform work for the Respondent, he did not sign it and matters to do with the frequency of payment were in dispute. In the alternative, Mr Hall submits that the terms of the Contractor Agreement demonstrate a high level of control over the Applicant inconsistent with an independent contractor relationship.[47]
It is uncontested that the Contractor Agreement was forwarded to Mr Hall on 24 March 2022 and 12 April 2022 but not signed by him at any time. It also appears uncontested that Mr Hall did not read the Contractor Agreement until 12 April 2022, some 8 days after he commenced performing work for the Respondent. I do not accept Mr Hall’s submission that because of these matters the Contractor Agreement is not a comprehensive written statement of the parties’ contractual rights. Firstly, the terms of the Contractor Agreement are set out above and in my view, are clearly comprehensive. Secondly, although execution of an agreement by signature is the most common way of evidencing acceptance of the terms of an agreement, the terms of an agreement may also be accepted by the conduct of the parties. I accept the Respondent’s submission that by his conduct in continuing to provide the Services after 12 April 2022, following receiving and opening the Contractor Agreement, Mr Hall accepted the terms of the Contractor Agreement, other than in relation to the private use of the vehicle. I address this issue further below. Thirdly, the terms of the Contractor Agreement are consistent with and reflective of the information provided to Mr Hall by Ms Dunk prior to commencing work. In addition, at the hearing Mr Hall conceded that the Contractor Agreement reflected at least some of the rights and obligations between the parties. He conceded that the provisions of the Contractor Agreement in relation to:
(a) Fees, rates and invoices;
(b) Tools and uniforms;
(c) Insurances and the provision of an ABN; and
(d) Hire of the vehicle (other than in relation to private use),
reflected the rights and obligations of the parties.[48]
It also did not appear contested that the terms of clause 5 of the Contractor Agreement (Rostering) reflected the terms of the contract between the parties as to that matter. Additionally, in his submissions Mr Hall also relies upon the provisions of clause 3 of the Contractor Agreement (Contractors Obligations).[49] I infer from this that he also does not dispute that the provisions of clause 3 reflect the terms of the contract between the parties. Further, the clause is consistent with the evidence as to those matters.
As to the frequency of payment, I reject the Applicant’s submission that this matter was in dispute. Firstly, the terms of the Contractor Agreement are consistent with the 1 April Email. Secondly, I consider it clear from the correspondence between Mr Hall and Ms Dunk in early May 2022, set out in paragraphs [45]-[48] above, that the frequency and process of payment was as set out in the Contractor Agreement (albeit Mr Hall found this problematic) and that a one-off payment was made in early May 2022 “off cycle” to assist Mr Hall.
Accordingly, I find that the Contractor Agreement is a comprehensive written document setting out the rights and obligations of the parties, other than in relation to the use of the vehicle for private use. I consider the terms of the Contractor Agreement in relation to this issue were subsequently varied by the conduct of the parties and that Mr Hall was permitted private use of the vehicle.
Characterisation of the relationship
The terms of the Contractor Agreement are set out above.
Mr Hall submits that the Contractor Agreement demonstrates an employment relationship. He submits that:
(a)clause 3.1, which sets out the requirement for the Applicant to complete tasks within a specified time frame and to the standard specified by the Respondent;
(b)clause 3.3 and 3.4, which restrict the Applicant’s ability to perform other work;
(c)clause 4.4, which contains the requirements for the Applicant to purchase and use a uniform when performing the Services,
taken together demonstrate control by the Respondent. He submits that this is not consistent with him working in his own business but rather, being integrated into the Respondent’s business.
In Chambers & O’Brien v Broadway the Full Bench summarised the relevant key propositions which may be derived from Personnel Contracting as follows:
“[74] The key propositions relevant to this appeal which may be derived from Personnel Contracting are as follows:
(1) When characterising a relationship regulated by a wholly written, comprehensive contract which is not a sham or otherwise ineffective, the question is to be determined solely by reference to the rights and obligations under that contract. It is not permissible to examine or review the performance of the contract or the course of dealings between the parties.
(2) The subsequent conduct of the parties may be considered to ascertain the existence of variation of contractual terms.
(3) The multifactorial approach only has relevance in respect of the required assessment of the terms of the contract.
(4) It is necessary to focus on those aspects of the contractual relationship which bear more directly upon whether the worker’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise. The question is: whether, by the terms of the contract, the worker is contracted to work in the business or enterprise of the purported employer.
5) Existence of a contractual right to control the activities of the worker (including how, where and when the work is done) is a major signifier of an employment relationship.
(6) The label or characterisation placed on the relationship by the contract is not relevant even as a “tie breaker”, or at least it is not determinative.”
I respectfully adopt those propositions. The nature of the relationship between Mr Hall and the Respondent is therefore to be determined solely by reference to the rights and obligations of the parties under the Contractor Agreement. For this reason, I do not address a range of other matters raised by Mr Hall including, but not limited to, the Asserted Notice Provision, reporting of the vehicle’s odometer reading and condition and pre-work questions he says were required to be answered.
For the following reasons, I consider that the provisions of the Contractor Agreement, overall, point to the existence of a contractor relationship. Firstly, the Contractor Agreement allows for the delegation of the provision of the Services by Mr Hall, subject to prior approval of the delegate by the Respondent (clause 16). Accordingly, personal service by Mr Hall is not required.
Secondly, under the Contractor Agreement Mr Hall has control over when and how much he works. Pursuant to clause 5.2 of the Contractor Agreement Mr Hall identifies his potential availability to perform the Services on a monthly basis. He chooses whether to accept any shift offered within those hours and that availability. He is under no obligation to accept a shift and, if he does not, the shift goes back into the pool for other contractors to accept. Such an arrangement is, also, potentially consistent with casual employment, however I consider that in the circumstances of the Contractor Agreement it is indicative of a contractor relationship. Further, it was not contended at any point that Mr Hall was engaged as a casual employee.
Thirdly, the remuneration arrangements under the Contractor Agreement are not consistent with an employment relationship. Mr Hall is paid a fee per service completed (Jobs), varied dependant on the zone in which the Job was performed. His remuneration is not based on hours worked but on Jobs completed. Although the fee per Job is set by the Respondent, the actual remuneration derived by Mr Hall is dependent on how many shifts Mr Hall works and how many Jobs he completes (clause 6). Mr Hall determines whether GST is payable and to be invoiced to the Respondent (clause 11).
Fourthly, Mr Hall invoices the Respondent on a monthly basis for the Jobs competed (clause 6) and is responsible for taxation (clause 10).
Fifthly, Mr Hall was required to have an ABN and hold public liability and salary continuance/personal accident insurance (clause 10).
Sixthly, Mr Hall indemnified the Respondent for any claims, liabilities or costs as a result of any damage caused by him or his delegate in the provision of the Services (clause 10).
Seventhly, Mr Hall was required to provide a fully maintained vehicle to provide the Services or alternatively, could enter into a hire arrangement with the Respondent for a vehicle to provide the Services for which hire fees were deducted from the fees payable for the Services. Mr Hall was also required to purchase certain tools of trade necessary for the performance of the Services and this purchase was paid for by Mr Hall through a monthly deduction from fees payable to him by the Respondent for the Services (clause 4).
Finally, whilst not determinative, it is clear that the nature of the relationship as expressed in the Contractor Agreement is one of an independent contractor relationship.
I do not consider any of the above terms to be consistent with a relationship of employment.
As to Mr Hall’s submission that clause 3.1, 3.3, 3.4 and 4.4 when read together demonstrate control by the Respondent such as to establish that he was integrated into the Respondent’s business and not working in his own, I accept that clause 3.1 establishes that the Respondent has a right to control how the Services are performed. However, I am not persuaded that in the context of the Contractor Agreement that this is a matter of such significant weight as to result in the nature of the relationship, properly considered, being characterised as one of employment. Rather, I consider that clause 3.1 reflects operational matters, noting that clause 5.3 of the Contractor Agreement provides that appointments with clients will only be made after the Contractor has accepted shifts in the roster, and are also a reflection of the legislative regime within which the Services are provided. As to clause 3.3 and 3.4, whilst I accept they establish, to some extent, a degree of control over other activities which Mr Hall may undertake, I do not consider the degree of control to be significant. Clause 3.3 simply requires that any other services provided by Mr Hall do not interfere with his contractual obligations under the Contractor Agreement. Such an obligation is, in my view, axiomatic and not indicative of any significant degree of control by the Respondent. Clause 3.4 requires that Mr Hall must not, without prior written agreement of the Respondent, provide services to any person or entity which is in competition with the Respondent. Accordingly, the prohibition in clause 3.4 is not absolute and does not, in my view, demonstrate such a degree of control by the Respondent as to render the relationship one of employment.
Although not raised by Mr Hall, I consider that clause 3.6 of the Contractor Agreement, which requires that the Contractor must be available for a shift once accepted using the App, establishes a right of the Respondent to control when Mr Hall performs the Services. However, I am also not persuaded that this is a matter of such significant weight as to result in the nature of the relationship, properly considered, being characterised as one of employment. As with the provisions of clause 3.3 and 3.4, I consider the provisions of clause 3.6 to be operational matters as a result of the matters dealt with in clause 5 of the Contractor Agreement and also to be reflective of the legislative regime within which the Services are provided. Further, the Contractor Agreement allows for Mr Hall to delegate the performance of the Services.
Finally, as to the provisions of clause 4.4 regarding a uniform, I do not consider the requirement to purchase a uniform to be consistent with a relationship of employment.
Disposition
Having regard to the above matters and the conclusions reached, I find that Mr Hall was not an employee of the respondent.
It follows that I uphold the respondent’s First Jurisdictional Objection. It is therefore not necessary that I consider the Second Jurisdictional Objection.
Mr Hall’s application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
C Hall for the Applicant
B Ristevski for the Respondent
Hearing details:
2022
Melbourne
17 October
18 October
Final written submissions:
For the Applicant: 14 October 2022
For the Respondent: 12 October 2022
Annexure 1
[1] Exhibit 1.1 attached to the Form F8A, Court Book (CB) pg 100
[2] Transcript PN 1133
[3] Transcript PN 1134
[4] Ibid
[5] Applicant’s Witness Statement at [5], Document 1, CB pg 39
[6] Ibid at [6], Document 1, CB pg 40-41
[7] CB pg 40
[8] Applicant’s Witness Statement at [9]
[9] Ibid at [13]
[10] Ibid at [13]
[11] Transcript PN 711
[12] Applicant’s Witness Statement at [14]
[13] Transcript PN 629
[14] Applicant’s Witness Statement at [26]
[15] Ibid
[16] Applicant’s Witness Statement at [15]
[17] Applicant’s Witness Statement, Document 3, Witness statement of Belinda Ristevski, Exhibit 4
[18] Transcript PN 713
[19] Applicant’s Witness Statement at [17]
[20] Ibid at [16]
[21] Ibid at [19], Document 4
[22] Ibid
[23] Ibid at [22], Document 4
[24] Ibid at [23]
[25] Ibid, Document 5
[26] Transcript PN 307
[27] Transcript PN 367
[28] System Confirmation of Emailed Contracts sent on 24 March 2022 to Chris Hall sent to chambers on 18 October 2022
[29] Applicant’s Witness Statement at [25], Document 7
[30] Ibid
[31] Ibid
[32] Ibid at [28]
[33] Ibid at [30], Document 9
[34] Ibid at [37], Document 11
[35] Ibid at [38]
[36] Ibid at [39], Document 12
[37] Ibid at [40], Document 12
[38] Ibid
[39] [2022] HCA 2
[40] [2022] HCA 1, 398 ALR 404, 312 IR 1 (Personnel Contracting)
[41] Personnel Contracting at [40]-[62] per Kiefel CJ, Keane and Edelman JJ; [172]-[178] per Gordon J; [203] per Steward J
[42] Chambers and O’Brien v Broadway Homes Pty Ltd t/a Broadway Homes[2022] FWCFB 129 at [91]; Personnel Contracting at [42] and [54] per Kiefel CJ, Keane and Edelman JJ; [177]-[178], [188]-[190] per Gordon J
[43] Exhibit 1.2 attached to the Form F8A, CB page 106; Respondent’s Submissions para 2, CB pg 138
[44] Respondent’s Submissions para 7-8, CB pg 138
[45] Transcript PN 394
[46] Applicant’s Outline of Submissions at [2], [9],[10]
[47] Ibid [2]
[48] Transcript PN 638
[49] Ibid at [14]
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