Goulding v Simonds Homes Victoria Pty Ltd (No 2)

McNab J of the Federal Circuit Court of Australia considered a dispute between Mr. Goulding (the Applicant) and Simonds Homes Victoria Pty Ltd (the Respondent). The Applicant claimed to have been an employee of the Respondent and sought various entitlements, including accrued annual leave, unpaid wages, a motor vehicle allowance, and amounts under a profit share clause, or alternatively, damages and compensation for breaches of the *Fair Work Act 2009* (Cth) concerning notice and redundancy pay. The Respondent denied employing the Applicant, asserting that the Applicant was initially engaged through Tomanic Pty Ltd and subsequently through Jingo Pty Ltd, both corporate entities associated with the Applicant, which provided services to the Respondent.

The central legal issue before the Court was to determine whether the Applicant was an employee of the Respondent, either by express or implied agreement, or an independent contractor supplied to the Respondent through Tomanic and Jingo. This determination was crucial for establishing the Respondent's obligations under employment law. The Applicant argued that despite the contractual arrangements involving corporate entities, he was in substance a managerial employee whose role and working conditions were dictated by the Respondent, rendering the payment and invoicing arrangements irrelevant to his employment status. The Respondent contended that it engaged the corporate entities to provide personnel, and that payments, including GST, were made to these entities for the Applicant's services, not directly to the Applicant.

McNab J found Mr. Elliot, a former Operational Manager for a related company, to be a compelling witness whose evidence was clear and appropriately qualified. The Court considered the Applicant's submission that the invoicing and GST arrangements were a matter of convenience and did not reflect the true nature of his relationship with the Respondent. However, the Court ultimately concluded that the Applicant's claims failed. The Applicant's failure to remit GST and income tax over an extended period, despite having knowledge of his obligations, was noted as significant.

Consequently, the application filed by the Applicant was dismissed. The Court indicated it would make orders for submissions regarding costs and would refer a copy of the decision, along with a transcript of the Applicant's oral evidence, to the appropriate authorities for further action concerning the tax matters.