Daniel Alexander v Francis Travel Representation Pty Ltd T/A Travel Industry Club

[2016] FWC 7252

[2016] FWC 7252

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Alexander
v
Francis Travel Representation Pty Ltd T/A Travel Industry Club
(U2016/2544)

DEPUTY PRESIDENT DEAN SYDNEY, 24 NOVEMBER 2016

Application for relief from unfair dismissal – whether employee or independent contractor – jurisdictional objection upheld – application dismissed.

[1] On 30 May 2016 Mr Daniel Alexander (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Francis Travel Representation Pty Ltd T/A Travel Industry Club(the Respondent).

[2] The Respondent raised a jurisdictional objection to the application on the ground that the Applicant was engaged as an independent contractor, not an employee.

[3] The Applicant agreed that he was an independent contractor engaged by the Respondent for the period between November 2013 and September 2014, but argued that from September 2014 he was offered a full time position and became an employee of the Respondent. The Respondent agreed that it offered the Applicant a full time position, but strenuously denied that this offer was accepted. As a result, the Respondent argued that the Applicant remained an independent contractor until their legal relationship ended.

[4] A person is only protected from unfair dismissal if “the person is an employee…” 1

[5] In this decision I am required to determine whether the Applicant was an employee or an independent contractor at the time their legal relationship ended. If I find that the Applicant was an employee, I will then determine whether the Applicant was unfairly dismissed.

[6] The application was listed for hearing in Sydney on 28 September 2016. It was agreed with the parties that the substantive hearing (ie. if the Applicant was found to be an employee, whether his dismissal was unfair) would be heard at the same time as this would be the most efficient use of the parties’ time and resources.

[7] At the hearing on 28 September 2016, Mr J Franken and Mr G Christodoulou appeared, with permission, for the Applicant and the Respondent respectively.

[8] For the reasons set out below, I have found that the Applicant was not an employee. It follows that the Applicant is not a person protected from unfair dismissal and his application is dismissed.

The Evidence

[9] The following persons gave oral and written evidence:

● The Applicant
● Ms Sue Francis (Director of the Respondent)
● Mr Alton Francis (Marketing Manager of the Respondent)
● Mr Jeff Hakim (Managing Partner, Travel Partners)
● Mr Andrew Sheath (self-employed bookkeeper)

[10] Given that I have found that the Applicant was not an employee, it is unnecessary to consider in any detail the circumstances surrounding the cessation of their legal relationship.

Matters agreed or not contested

[11] The Applicant is an accredited travel agent and the single shareholder of a company called Navigator Travel Management Pty Ltd (Navigator).

[12] In or about November 2013 Navigator entered into a Contractor Services Agreement (the Agreement) with the Respondent. Under the Agreement, the Applicant, through Navigator, provided travel brokering services to the Respondent  2.

[13] The Applicant agrees that the legal relationship between the parties, until September 2014, was that of independent contractor and principal.

[14] The Agreement relevantly deals with all major aspects of the legal relationship between the parties. In particular it:

a) confirms that the nature of the legal relationship is one of independent contractor and principal;
b) requires Navigator to meet any and all legal requirements with respect to superannuation and workers compensation and comply with relevant laws applicable to an independent contractor working in NSW;
c) requires Navigator to take out and maintain relevant insurance, including public liability insurance;
d) deals with intellectual property rights, moral rights and confidentiality;
e) outlines the quantum and method of payment, including reimbursement of expenses;
f) sets out the way in which the Agreement can be terminated;
g) specifies promises made by Navigator under the heading of ‘contractor warranties’;
h) provides that the Agreement is the ‘entire’ agreement of the parties in respect of the matters dealt with in the Agreement; and
i) includes a detailed restraint clause (entitled Restrictive Covenant).

[15] Prior to September 2014 3:

a. Navigator was paid in accordance with the Agreement;
b. the Respondent created “Recipient Created Tax Invoices” and sent this to the Applicant each fortnight;
c. the Respondent did not deduct any taxation from the payments made to Navigator, nor did it make any superannuation contributions on behalf of the Applicant;
d. the payments made by the Respondent to Navigator (in accordance with the Agreement) were 60% commission on all profit the Applicant generated per file, plus an additional 5% on profit generated over $150,000 per annum 4.
e. the Applicant worked in a variety of locations, including overseas;
f. the Applicant did not accrue any form of leave; and
g. the Applicant utilised IT equipment of the Respondent and his own laptop to fulfil the requirements under the Agreement.

[16] In September 2014 the Applicant was offered full time employment. An email was sent to him on 19 September 2014 by Ms Francis with proposed rates of base salary and commission. The parties are in dispute as to whether this offer was accepted, and I will return to this issue later in this decision.

[17] It is agreed that the payments made to Navigator by the Respondent changed in September 2014, and the Applicant began to undertake work primarily in the office of the Respondent rather than from other locations.

[18] No new employment contract was issued by the Respondent to the Applicant, nor was there any written variation to the existing Agreement provided to Navigator in or after September 2014.

[19] On 11 May 2016, the Applicant was called into a meeting with the Respondent and was advised by the Respondent of its concerns of a conflict of interest, arising from the establishment of a business by the Applicant’s husband which would compete with the Respondent. The name of the business was Altitude Management Australia Pty Ltd (Altitude).

[20] The Applicant denied that there was any conflict of interest.

[21] The Respondent advised the Applicant that it intended to conduct an investigation and the Applicant left the Respondent’s premises.

[22] The Applicant received a ‘show cause’ letter the following day from the Respondent. There was some subsequent correspondence between the parties and on 19 May 2016 the Applicant received a letter terminating the contractor arrangement.

Nature of Legal Relationship prior to September 2014

[23] The ‘label’ given to the legal relationship between the parties is an important consideration 5. However, agreement between the parties that their legal relationship prior to September 2014 was one of principal and independent contractor does not necessarily make it so. In other words, ‘the parties cannot create something which have every feature of a rooster, but call it a duck and insist that everyone else recognise it as a duck’6.

[24] I am satisfied that in this case, having regard to the evidence of the totality of the legal relationship which is outlined below, that it was genuinely one of principal and independent contractor.

The Issue in dispute

[25] The key issue in dispute is whether the legal relationship changed in September 2014, at the time when the Respondent offered the Applicant a full time position with it.

The evidence and submissions of the Respondent

[26] The evidence of Ms Sue Francis which is relevant to the issue in dispute is as follows:

a. The Applicant was offered a full time position in September 2014, however the Applicant did not accept the position. What was then negotiated and agreed was a variation to the payment structure between the Respondent and Navigator, and a change to the location of the Applicant’s workplace, being primarily at the Respondent’s premises.
b. The change to the payment structure comprised a retainer of $43,000 plus a commission structure based on profit per month.
c. At no stage did the Applicant request a new or updated contract after the variations to the Agreement were made and implemented. Ms Francis said that she did not think it was necessary to confirm the change in writing given it was a very small business and there was a degree of trust between her and the Applicant.
d. The Respondent continued to make payments to Navigator, and at no stage did it make payments directly to the Applicant.
e. The Applicant was never on the Respondent’s ‘leave roll’, and never completed a leave form. There were some occasions where the Applicant was paid when not at work, which the Applicant argues was ‘paid leave’. This was disputed by Ms Francis.
f. It was in the Applicant’s best interests to be located primarily in the Respondent’s office because 80% of the business (from which Navigator was paid commission) came via the telephone.
g. In response to the Applicant’s assertion that he was an employee in part because he was required to comply with certain policies and procedures of the Respondent, Ms Francis said that all travel industry companies have policies and procedures which are necessary because the business needs to operate as part of their supplier requirements (such as supplier systems and reservation systems).
h. She confirmed that the Applicant was also required to comply with the Respondent’s booking policy, which the Applicant argued was evidence that he was an employee. The policy sets out the booking fees required to be charged for different types of travel bookings, which directly affected the profitability of the Respondent. Ms Francis gave evidence that the financial loss suffered by the Respondent because of the Applicant not charging booking fees was in the order of $40,000 over the period from October 2014 until April 2016.
i. The equipment required to perform the work was essentially a computer and access to the Respondent’s IT systems, and the Applicant used both the Respondent’s computer and his own laptop. Ms Francis denied the statement of the Applicant that he only received full access to the Respondents IT systems after he became an employee in September 2014. Ms Francis’ evidence was that he had full access from the commencement of Navigators engagement with the Respondent. Similarly, the email account used by the Applicant ([email protected]) had been provided to him at the commencement of the engagement, not after September 2014.
j. Ms Francis denied the Applicant’s assertion that he received fortnightly payslips, because he was never on the payroll.
k. Ms Francis gave evidence that independent contractor relationships were common in the travel industry and a lot of contractors work under the umbrella of large companies.
l. In cross-examination, Ms Francis was asked about the ‘signature block’ on the Applicant’s email, which says ‘Daniel Alexander, Travel Manager, Travel Industry Club’. Ms Francis gave evidence that it was for branding purposes and so as not to confuse clients. It was put to her that this created a perception that the Applicant was an employee, which she vigorously denied.

[27] The evidence of Mr Alton Francis primarily went to the events surrounding the cessation of the legal relationship. He was, however, cross-examined about the Respondent’s concern of a conflict of interest and the relevance of this in terms of the Applicant being an independent contractor. Mr Francis’ evidence was that the Applicant was free to work elsewhere but he was not free to take business from the Respondent 7.

[28] Mr Francis also gave evidence in cross-examination that the Applicant was, within reason, free to come and go as he pleased, however because he worked on a commission basis, it was in his best interests to be in the office 8.

[29] The Respondent’s bookkeeper, Mr Andrew Sheath, gave evidence that he was familiar with the engagement and legal relationship between the Respondent, Navigator and the Applicant. His evidence was that the relationship commenced with the Respondent entering into a contract with Navigator, and that this arrangement did not change until the relationship ended in May 2016.

[30] Mr Sheath also gave evidence that during the whole period of the relationship:

a. all payments were made to Navigator, not the Applicant;
b. at no time were superannuation contributions made on behalf of the Applicant
c. payments to Navigator were not taken account of for the payment of the Respondent’s workers compensation premiums; and
d. the Applicant at no time appeared on the Respondent’s leave register, nor did he accrue, or was paid, any form of leave.

[31] The evidence of Mr Hakim went to the circumstances surrounding the cessation of the parties’ legal relationship and is therefore not relevant to this decision.

[32] In its submissions, the Respondent confirmed that at all material times, it had a legal relationship with Navigator, of which the Applicant was a director and shareholder.

[33] It relied on the decision in Abdalla v Viewdaze Pty Ltd t/a Malta Travel 9 (Abdalla). It argued that this case involved facts almost identical to those in this current matter, and in particular that a travel consultant, who occupied business space in the respondent’s premises and was paid by commission, was found to be an independent contractor.

[34] In its submissions, the Respondent highlighted that:

a. the work performed by the Applicant (ie travel broker/consultant) was the same work as performed by the applicant in Abdalla;
b. the terms of the contract between the parties (ie. the Agreement in its original form and as varied) were ‘extremely clear in describing the relationship between the Respondent and Navigator as being that of principal and independent contractor’ 10;
c. there was no contractual obligation for Navigator to ensure that the Applicant worked fixed hours per week;
d. the Applicant was not entitled to receive the benefits that employees normally enjoy, such as leave and superannuation – these obligations sat with Navigator;
e. Navigator was paid on receipt of invoices created by either Navigator or the Respondent;
f. the only changes to the Agreement from September 2014 were that the Applicant was based primarily in the Respondent’s premises, and Navigator began to be paid a retainer plus commission, rather than just commission.

[35] The Respondent argued that if the first engagement (ie before September 2014) was one of principal and independent contractor, then the second engagement (ie. after September 2014) must also be one of principal and independent contractor particularly given that the changes that occurred in September 2014 were minor at best.

The evidence and submissions of the Applicant

[36] The evidence of the Applicant is fundamentally that he was offered and accepted a full time position with the Respondent in September 2014.

[37] He asserted that he was expecting the Respondent to provide him with a new contract of employment, but despite numerous requests it was not forthcoming.

[38] The Applicant gave evidence that there were a number of factors that indicated that he was an employee from September 2014. These included 11:

a. he worked within the Respondent’s office and was required to keep office hours;
b. he was subject to the policies and/or procedures of the Respondent at all times;
c. he was subject to the control and direction of Ms Francis, and was not in a position to delegate or subcontract any of his work;
d. he was not required to provide any equipment or tools;
e. he was at this time provided with full and unrestricted access to all of the Respondent’s IT systems;
f. he was at this time provided with an email address ([email protected]) that reflected his ‘integration within the business’;
g. the signature block of his email address showed he was the Travel Manager of the Respondent;
h. he was not required to take any commercial risks;
i. he was paid a fortnightly wage that correlated with the salary offered by the Respondent when it offered him a full time position;
j. he received fortnightly payslips from the Respondent; and
k. he had an expectation of on-going work.

[39] The Applicant was cross-examined about some of applications he had made for positions subsequent to his engagement with the Respondent. He included some applications with his evidence in reply. In one such application, he included words to the effect that his company had ceased trading voluntarily to clients 3 years prior, and he had been ‘contracting my services through my company to another travel company based in their Sydney office’ 12.

[40] The Applicant was also cross-examined about some emails that he had sent to a potential client of the Respondent, in which he said that his husband could undertake some research for him. It was put to him that this was evidence of being able to delegate work to others. The Applicant denied this was delegation because his husband was not paid for undertaking this work 13.

[41] The Applicant sought to make much of the fact that the letter sent to the Applicant on 12 May 2016 was titled ‘show cause’. It was argued that a show cause letter indicates that the Applicant was an employee.

[42] It was the Applicant’s evidence that it was difficult to obtain time off work, and he had to ‘jump through hoops to get leave approved….’ 14.

[43] The submissions made on behalf of the Applicant restated some of the Applicant’s evidence as outlined in paragraph 38 aboveand sought to summarise the evidence by reference to the indicia set out in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario 15 (French Accent). It was argued that on the balance of probabilities, the Applicant was an employee of the Respondent16.

Consideration of the evidence and legal context

[44] To the extent that there is any inconsistency between the evidence of the Applicant and Mr and Ms Francis, I prefer the evidence of Mr and Ms Francis. Their evidence was given in an honest and forthright manner.

[45] The evidence clearly shows that the payments made by the Respondent continued to be paid to the bank account of Navigator between September 2014 until May 2016, not to the Applicant.

[46] I accept the evidence of Ms Francis that it was reasonable for the Applicant to comply with policies such as the booking policy. Booking fees were the method by which the Respondent made a profit.

[47] I accept the evidence of Mr Francis that the Applicant was free to work elsewhere, however he was not free to take business from the Respondent. I also accept Mr Francis’ evidence that the Applicant was free to come and go as he pleased, within reason given that Navigator was paid a retainer.

[48] In relation to the argument that the show cause letter is indicative of an employment relationship, I disagree. Show cause letters are common in a range of situations where one party seeks to terminate a contract. In my view it is just as applicable in the case of a principal and contractor relationship. In addition, this letter refers to ‘serious concerns we have related to your contractual arrangement with us … and provide you with an opportunity to show cause as to why your contract should not be terminated …’ 17.

[49] I find that the Applicant’s evidence at times deliberately misstated the factual circumstances. For example, his witness statement (exhibit 7) states that after he became an employee in September 2014, he was provided with ‘full and unrestricted access to all the Respondent’s IT systems, and was provided with an email address ([email protected]) that reflected his ‘integration’ within the business. He also gave evidence that he received payslips after he became an employee. The Applicant was cross-examined about this evidence as follows:

Mr Christodoulou: Okay, and at the top of - where it says paragraph 10: After I became employed in September 2014?
The Applicant: Okay.
Mr Christodoulou: Can you see that?
The Applicant: I occupied a desk at the employer’s premises.
Mr Christodoulou: I put it to you that you had full and unrestricted access to all of the respondent’s IT systems from day one, which was in October 2013, isn't that true?
The Applicant: True.
Mr Christodoulou: So why did you put that in here?
The Applicant: I have no idea.
Mr Christodoulou: This suggests that you didn’t have access, you became employed and now you did have access because you're an employee, doesn’t it?
The Applicant: Well I don't think that was the point that I was trying to make.
Mr Christodoulou: Sir, I'm giving you more credit than what you're giving me. You put this in here to create the impression that you were only given full and unrestricted access because you became an employee, where the truth is you had unrestricted access the whole time even when you were a contractor, isn't that true?
The Applicant: Well yes, that’s true.
Mr Christodoulou: Can you please turn over to paragraph 10, the second last point: receiving fortnightly pay slips that was generated by the respondent?
The Applicant: Okay, pay slips, pay advices, invoices, whatever you like to call it.
Mr Christodoulou: No, you didn't use the word invoice, you put ‘pay slips’ in inverted commas?
The Applicant: Oh, actually I think I was making a point, because there was comment made by the respondent, something about pay slips, and I think that's why I put it in inverted commas.
Mr Christodoulou: Why did you put it in there at all if you never got a pay slip?
The Applicant: I think I was trying to make a point that the respondent was calling it pay slips.
Mr Christodoulou: Well you haven't made that point and you're backtracking. Your statement is pretty clear in other respects. I think you're trying to muddy up the waters.  It says you received fortnightly pay slips that were generated by the respondent. Show me a pay slip?
The Applicant: Well I can show you invoices that were generated by the respondent.
Mr Christodoulou: Mr Alexander, listen to me carefully. Show me a pay slip?
The Applicant: Well clearly I don't have one.
Mr Christodoulou: If you don't have one, just say to me I don't have a pay slip?
The Applicant: Well I don't have a pay slip.
Mr Christodoulou: Do you have a pay slip?
The Applicant: No. I've answered your question.
Mr Christodoulou: Okay, you do not have a pay slip. At paragraph 12, you've written: ‘Attached is a copy of a recipient-created invoice?’
The Applicant: Mm.
Mr Christodoulou: So you know the difference, because you haven't used ‘pay slip’ again, have you?
The Applicant: That's correct.
Mr Christodoulou: So you know the difference between a pay slip and an invoice of any kind?
The Applicant: Mm-hm. 18

[50] I do not accept that the Applicant genuinely thought that the relationship changed to one of employment after September 2014. It is inconceivable that the Applicant would not have queried in writing why superannuation contributions were not being made on his behalf, nor why he was not provided with a contract of employment after ‘repeated requests’ for one, if he genuinely believed that he was an employee.

[51] My view is further supported by the email the Applicant sent to Ms Francis on 13 May 2016 (the day after the show cause letter was issued). In this email, he raised questions about his contractual arrangements, and includes the following sentence: ‘Attached you will find the result of my enquiry as to whether I am an employee or contractor - the result is surprisingly interesting. You may be interested in the following links from the ATO…’ 19. This suggests that he did not hold a belief that he was an employee from September 2014, as he asserted.

[52] There are well established principles that have been developed by courts to determine whether an individual is an employee or an independent contractor. In French Accent, the Full Bench summarised the general law approach to distinguishing between employees and independent contractors as follows:

[30] …

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

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

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

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

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



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



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



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



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



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



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



• 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.



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



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



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



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



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



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



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



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



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



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



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



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



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

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

(6) If the result is still uncertain then the determination should be guided by ‘matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability’ including the ‘notions’ referred to in paragraphs [41] and [42] of Hollis v Vabu. 20. (citations omitted)

[53] I adopt the approach in French Accent.

Was the Applicant an employee or independent contractor?

[54] The evidence demonstrates that:

a. the Respondent retained a level of control over the work performed. However ‘even the most independent of independent contractors is subject to some direction in the performance of his work….’. 21
b. the Applicant was not required to work particular hours on particular days of the week, within reason given the retainer that was paid to Navigator. However it was in the Applicant’s interests to do so as this was how he earned commission;
c. the Applicant was able to undertake work for others, but was not able to take business from the Respondent;
d. there were no significant tools or equipment necessary to perform the work;
e. there was evidence of at least one occasion whereby the Applicant advised a client of the Respondent’s that the Applicant’s husband would assist with a booking;
f. the Applicant had a signature block on his emails which indicated he was part of the Respondent’s business, however the evidence of Ms Francis that independent contractors are common in the travel industry negates the argument that clients, suppliers and the like would assume that the Applicant was an employee;
g. no income tax was deducted from the monies paid to Navigator;
h. no leave was provided to the Applicant;
i. there was no evidence of the creation of goodwill or saleable assets, and
j. there was no evidence of a requirement (or otherwise) to spend a significant proportion of remuneration on business expenses.

[55] Having considered the evidence as a whole and the various indicia identified in French Accent above, I find that the Applicant was not an employee.

[56] In addition, I respectfully agree with the statement of Watson VP in Cherif Meena v Biripi Aboriginal Corporation Medical Centre T/A Werin Aboriginal Medical Centre 22 in which he said:

“Where a strong inference of any independent contractor relationship arises from the way in which the parties have drafted the contract between them, that inference will only be displaced if there are strong factors as to the practical working arrangements that contradict and outweigh that inference.”

[57] In my view, there are no strong factors which displace the inference that the Applicant was an independent contractor.

[58] Accordingly, I uphold the Respondent’s jurisdictional objection and dismiss the application.

[59] An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

J Franken for Daniel Alexander.

G Christodoulou for Francis Travel Representation Pty Ltd T/A Travel Industry Club.

Hearing details:

2016.

Sydney:

September 28.

 1 Section 382(a) of Fair Work Act 2009.

 2   See Exhibit 7.

 3   See Exhibit 5 at paragraph 6.

 4   See Exhibit 7 at paragraph 4.

 5   Abdalla v Viewdaze Pty Ltd TA Malta Travel (2003) 122 IR 215 at 34; citing Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

 6   Ibid at 34.

 7   Transcript PNs 149-150.

 8   Transcript PN 218.

 9 (2003) 122 IR 215.

 10   Submissions dated 17 July 2016 at paragraph 7.

 11   See Exhibit 7 at paragraph 10.

 12   Transcript PN788.

 13   Transcript PN 831.

 14   See Exhibit 7 at paragraph19.

 15   [2011] FWAFB 8307.

 16   See Applicant’s submissions on jurisdiction dated 8 August 2016.

 17   See Annexure DA8 to Exhibit 7.

 18   Transcript PNs848-863.

 19   See Annexure DA9 to Exhibit 7.

 20 Ibid at [30].

 21   Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16 at 37-38.

 22   [2013] FWC 4502.

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