Darcy Blackwell v Enright Cleaning Services T/A Enright Cleaning Services
[2022] FWCFB 199
•4 NOVEMBER 2022
| [2022] FWCFB 199 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Darcy Blackwell
v
Enright Cleaning Services T/A Enright Cleaning Services
(C2022/4076)
| VICE PRESIDENT CATANZARITI | SYDNEY, 4 NOVEMBER 2022 |
Appeal against decision [2022] FWC 1633 of Commisioner Yilmaz at Melbourne on 24 June 2022 in matter number C2021/5321 – permission to appeal refused.
Background
Ms Darcy Blackwell (the Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision[1] (the Decision) of Commissioner Yilmaz (Commissioner) issued on 24 June 2022. The Decision concerns an application lodged by the Appellant under s.365 of the Act, alleging contraventions of Part 3-1 of the Act associated with her alleged dismissal by Enright Cleaning Services (the Respondent).
The Respondent contended that the Appellant was engaged as a contractor to perform COVID-19 related cleaning duties for their principal client ‘Metricon Homes’. The Respondent submitted that the Appellant was never engaged as an employee and the contractor relationship was clear from the outset. Further, the Respondent submitted that their contract with Metricon Homes ended on 10 August 2021 and the Appellant was not dismissed. The Appellant disagrees, contending that she was an employee not a subcontractor and was dismissed by the Respondent. The Commissioner was not satisfied that the Appellant was an employee of the Respondent and found the Appellant was not dismissed for the purposes of s.365 of the Act. Accordingly, the Commissioner dismissed the application.
This matter was listed for permission to appeal and the merits of the appeal. On 22 July 2022, directions were issued for the filing of material and the matter was listed for hearing on 6 September 2022. Both the Appellant and Respondent indicated that they consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.
For the reasons that follow, permission to appeal is refused and the appeal is dismissed.
The Decision Under Appeal
In the Decision, the Commissioner began by setting out the background to the matter and the jurisdiction issues outlined above upon which the matter would be decided.
Appellant’s submissions
The Appellant submitted that she commenced working for the Respondent as a cleaner in February 2020. After the initial training period, the Appellant worked on her own and communicated with the Respondent about her shifts. Initially, she was paid $20 per hour in cash and subsequently payments were made to her bank account. The Appellant submitted that she was asked to obtain an ABN and that because she did not know what this was the Respondent helped her through the process of obtaining one. The Appellant submitted that the Respondent also showed her how to do invoices and it was mostly the Respondent who generated her invoices.
In around July 2021, the Appellant’s mother contacted the Respondent about the invoices. In response, the Respondent contacted the Appellant and asked her to tell her mother to stop threatening them. The Appellant submits that she did not respond to the Respondent’s text messages as she found them threatening. The Appellant did not attend work on 11 August 2022 as she felt threatened and stated that she then received a text message terminating her employment.
The Appellant also provided written submissions. Relevantly, the Commissioner was not satisfied that the Appellant’s written submissions were her own after observing the Appellant give evidence. Nevertheless, the Appellant’s written submissions alleged:
·the contract for services between the parties is a sham;
·there was no contract between the parties either in written form or otherwise;
·the Respondent encouraged her to seek employment in the interior design industry;
·that she never intended to conduct her own business;
·the Respondent induced her to obtain an ABN and generate invoices;
·that the Respondent took advantage of her because of her age and mental health disability; and
·refer to various indicia which demonstrate an employee rather than a subcontractor relationship.
Respondent’s submissions
The Respondent submitted that they discussed that the Appellant was engaged as a contract cleaner on many occasions. The work for Metricon Homes was not guaranteed and while the contract was for a maximum of 42 hours per week the effect of the pandemic meant that the contract could be cancelled at any moment. The Respondent states that they never engaged employees and that the Appellant understood this.
Due to the COVID-19 risks, Metricon Homes prevented contractor equipment and tools from being brought into its buildings. The Respondent was responsible for the supply of chemicals, cloths and other products consistent with DHHS standards. The Respondent submitted that the Appellant chose the hours she wished to work to suit her university studies and personal health. Further, the Respondent submitted that after the initial training the Appellant could perform her work without direct supervision.
The Respondent submitted that the day prior to her contract ending with Metricon she spoke to the Appellant about finalising her invoices so that she too could finalise her tax obligations. The Respondent also stated that at the conclusion of her contract, the Appellant had the option to transfer her services to the new cleaning company, wait for any work the Respondent may obtain in the future or pursue work directly with Metricon consistent with the Appellant’s discussions with Metricon staff.
The Respondent described receiving threating phone calls from the Appellant’s mother. The Respondent originally concealed this from the Appellant but when they received a second phone call decided they needed to discuss this with the Appellant. The Respondent submitted that the Appellant’s mother appeared to reply to text messages on the Appellant’s phone and they took steps to block the Appellant’s mother from communicating with them.
Consideration
After setting out the statutory framework, the Commissioner began her consideration. First, the Commissioner observed that many of the Appellant’s decisions, particularly regarding these proceedings, her payment of tax and her departing relationship with her employer were highly influenced.
The Commissioner found the Appellant’s witness evidence unconvincing, noting there were inconsistencies while she was questioned and she was unfamiliar with her tendered written evidence. The Appellant subsequently admitted that her mother prepared her statements and in her closing statement, submitted that her mother’s work friend helped with her statement. The Commissioner was therefore not satisfied that the case argued as the Appellant’s case and the written statements were her own.
Further, the Commissioner was not satisfied that a clear position was articulated in respect of the Appellant’s tax return. The Appellant gave evidence that she did not meet the tax-free threshold until the 2020/21 financial year. However, the Commissioner noted there was no clear response regarding her tax affairs in prior years, but that an assumption that no tax return was required is clearly not plausible. The Commissioner observed that whether the Appellant did not complete a tax return, or that it was convenient to contend that she was naïve and required her mother’s intervention, were equally concerning.
Additionally, the Commissioner commented on the Appellant’s history of disputation with her prior employers where her mother represented her in legal action, and which has repeated itself in these proceedings. While the Appellant denied disclosing her prior litigation history to her employer, the Commissioner preferred the Respondent’s evidence that the Appellant informed them of her past challenges with employers.
Contractor or employee?
On the question of whether the Appellant was engaged as a contractor or employee, the Commissioner noted that the arrangement was not captured in writing, and therefore relied on the conduct of the parties to ascertain what was agreed between them. Text messages between the parties showed that the Appellant applied for an ABN on her own but asked various questions of the Respondent. The Commissioner noted that the parties had a cooperative working arrangement and the Appellant admitted that the Respondent would teach her how to run her own business. When the Appellant’s mother contacted the Respondent about her daughter being an employee, the Respondent checked again with their accountant and lawyer whether the Appellant was an employee or a contractor and offered to convert the Appellant to casual employment. Ultimately, the Commissioner did not accept that the Appellant genuinely believed that she was a casual employee at the time she initially accepted hours from the Respondent. The Commissioner therefore found that the Appellant knew she agreed to be engaged as a contractor and not an employee.
Despite the intention of the parties, the Commissioner noted that the question remained whether the Appellant was in fact a contractor or employee. The Commissioner found as follows:[2]
“• There was an agreement to enter a contractor relationship, it was a verbal contract;
· I do not consider that Ms Blackwell was induced nor so naïve so as not to comprehend the agreed arrangement which was not characterised as an employment relationship;
· While performing the work according to the hours for services available by Metricon, Ms Blackwell performed the work autonomously and in the manner she saw fit, providing she complied with DHHS cleaning requirements;
· The hours of work were of her own choosing based on her availability;
· She was well aware of the imminent conclusion of the arrangement, and the uncertain timeframe;
· Ms Blackwell exercised control over the activities she performed, this was evident as she gained confidence in the workplace; she took initiative to perform further tasks; and
· I am not satisfied that Ms O’Donoghue had a right to control the activities of Ms Blackwell, except for the compliance with DHHS cleaning requirements. Metricon instilled the requirement to comply with DHHS cleaning requirements and all cleaners that entered the premises agreed to comply.”
The Commissioner found there was no evidence that the Appellant worked in the Respondent’s business or that Metricon Homes understood the Appellant or other contractors to be the Respondent’s employees. The Commissioner was satisfied that the Appellant was aware of the agreement and that it provided her with personal benefits. Finally, the Commissioner found there was no evidence to support the allegation that arrangement between the parties was a sham.
Was the Appellant dismissed?
The Commissioner then turned to consider whether the Appellant was dismissed and set out the events leading to the Appellant’s contention that she was dismissed. Significantly, on 3 August 2021 the Respondent advised the Appellant that their contract with Metricon would not be renewed and asked the Appellant if she wanted to meet to complete the outstanding invoices. Later, the Respondent texted the Appellant “we need to talk about your mother ringing me and threatening me”. The Appellant ignored this text and others from the Respondent on the basis that she considered them threatening. The Respondent gave evidence that the Appellant’s mother contacted them again and appeared to be communicating on her daughter’s phone. Given this, the Respondent considered that communication with the Appellant was compromised. The Commissioner noted that in considering whether there was a dismissal, it was relevant that the Appellant contended that she refused to communicate because she felt threatened and anxious. While the Appellant may have considered the texts to be threatening, the Commissioner found that on an objective basis they were not threatening. Further noting that if the Appellant was not an employee, then she was not dismissed, although her services were no longer required. The Commissioner noted that even if she was wrong on whether the Appellant was an employee, it remains the Appellant was not dismissed for the purposes of s.365. The Commissioner dismissed the application.
Grounds of Appeal
The Appellant’s grounds of appeal as set out in her written submissions are as follows:
1.The Commissioner erred, at law, by including references to without prejudice and confidential discussions in an open decision in paragraphs [4] and [5] of the Decision.
2.The Commissioner erred, at law, by failing to properly apply the decisions of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 to the Decision:
a. at [49] by failing to ascertain the terms and rights of the parties and characterising the relationship solely on those rights;
b. at [49] by failing to properly consider the fact that the Respondent paid the Appellant without an ABN for the first seven months of the engagement;
c. at [49] by including irrelevant considerations such as the label ascribed by the parties or that the engagement could end suddenly;
d. at [49] by failing to find that the Respondent had a significant amount of control over the Appellant consistent with a casual employment relationship; and
e. at [51] by failing to find that the Appellant solely served in the business of the Respondent rather than performing her own business.
3.The Commissioner erred, at law and fact, by finding that the Appellant was an independent contractor rather than a casual employee of the Respondent.
4.The Commissioner erred, at law, by failing to properly apply ss.386(1) of the Act at paragraph [66] of the Decision where the Appellant was clearly dismissed at the Respondent’s initiative via a text message received on 8 November 2021 at 9.53am.
5.The Commissioner erred, at law and fact, finding that the Appellant received an economic benefit and reasonable income as a contractor and that it served her interests at [48] at [51]. If the Appellant is characterised as a contractor, she receives a significant detriment as she was paid below the national minimum wage for 2021, well below the minimum rates for the Cleaning Services Award 2020 and provided no employment entitlements. The finding being a significant error of fact.
6.The Commissioner erred in finding at paragraph [44] of the Decision that the Appellant was not clueless and taken advantage of given the Respondent admitted at the hearing that they created all invoices for the Appellant when it suited them. The finding being a significant error of fact.
7.The Commissioner erred in finding at paragraph [47] of the Decision that the Appellant properly understood the information regarding her registering an ABN given her learning disability. The finding being a significant error of fact.
8.The Commissioner erred, at law and fact, by finding that the Appellant had commenced litigation against her previous employer/s and by giving relevance to this error of fact.
The Appellant submits that her appeal is in the public interest because she is a young, female with a mental health illness and was vulnerable. Further, she says it is in the public interest for vulnerable people to be paid appropriately, to have their employment rights protected and to prevent employers from taking advantage of them. The Appellant noted that the cleaning industry is also heavily reliant on the female workforce and non-payment of appropriate, wages, leave and superannuation can have a long-term effect.
Principles of Appeal
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[3] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error,[5] or a preference for a different result.[6] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”[7]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[8] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Consideration
We have read and considered all the material filed on appeal.
We note that the substance of the Appellant’s appeal alleges that the Commissioner erred in finding that the Appellant was engaged as a contractor as opposed to an employee. This is alleged in various forms in Grounds 2, 3, 5, 6 and 7 of the appeal. The Commissioner considered whether the Appellant was employee or contractor at [38] – [51] of the Decision. In reaching her conclusion, the Commissioner undertook a detailed analysis of the conduct of the parties as the agreement was not captured in writing. The Commissioner set out and made findings on the process by which the Appellant obtained an ABN and generated invoices; the Appellant’s work hours and shifts; and the nature of the relationship between the parties including allegations of threatening behaviour by both the Appellant’s mother and the Respondent. This led the Commissioner to conclude at [47] that she was not satisfied that the Appellant genuinely believed she was a casual employee when she was engaged by the Respondent. The Commissioner then considered whether objectively, the circumstances indicated that the Appellant was an employee of the Respondent, taking into account the High Court authority of CFMMEU and Or v Personnel Contracting Pty Ltd.[9] Here, the Commissioner similarly found that the Appellant was not in fact an employee of the Respondent.
We have considered whether the Commissioner erred in any of her findings on this issue and are satisfied that the Commissioner applied the correct legal principles, considered and dealt with the evidence and submissions that were before her, and made findings of fact based on that evidence. We are not satisfied that the Appellant has demonstrated any instance of appealable error in these findings. We consider that the Commissioner’s Decision was orthodox and open on the evidence. Accordingly, we dismiss Grounds 2, 3, 5, 6 and 7.
We will now address the Appellant’s remaining grounds of appeal.
Ground 1 alleges that the Commissioner erred by referring to confidential discussions at [4] and [5] of the Decision. We note that the content of [4] and [5] is introductory and we do not agree that the Commissioner disclosed any information that may be considered confidential. We dismiss this ground.
Ground 4 alleges that the Commissioner failed to properly apply ss.386(1) of the Act at paragraph [66] of the Decision, as the Appellant submits, she was dismissed at the Respondent’s initiative via text on 8 November 2021. We are satisfied that it was open to the Commissioner to find at [66], that if the Appellant was a casual employee then her employment came to an end at the end of her last shift. We are not satisfied that the Appellant has demonstrated any error in respect of this finding and reject this ground of appeal.
Ground 8 alleges that the Commissioner erred by finding that the Appellant had commenced litigation against her previous employers and by placing improper weight on this fact. We reject that this ground of appeal discloses any appealable error and consider that whether or not the Commissioner had regard to this issue is irrelevant. The Commissioner ultimately found the Appellant was not an employee of the Respondent and that she was not dismissed in accordance with the Act. The Appellant’s application was dismissed on this basis, her prior litigation history is immaterial to this finding.
Public Interest
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
· There is a diversity of decisions at first instance so that guidance from an appellate body is required;
· The appeal raises issues of importance and/or general application;
· The Decision at first instance manifests an injustice, or the result is counter intuitive; or
· The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, permission to appeal is refused and the appeal is dismissed.
VICE PRESIDENT
Hearing details:
Matter determined on the papers.
Final written submissions:
15 August 2022, for the Appellant.
24 August 2022, for the Respondent.
[1] [2022] FWC 1633 (the Decision).
[2] The Decision at [49].
[3] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).
[4] O’Sullivan v Farrer (1989) 160 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[5] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[6] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[7] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[8] Wan v AIRC (2001) 116 FCR 481 at [30].
[9] [2022] HCA 1 at [62].
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