Greg Searle v Luxwood Homes Pty Ltd

[2022] FWC 1688

[2022] FWC 1688

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Greg Searle
v

Luxwood Homes Pty Ltd

(U2022/1035)

DEPUTY PRESIDENT LAKE BRISBANE, 30 JUNE 2022

Application for an unfair dismissal remedy– jurisdictional objection – application made outside of statutory timeframe – application for extension of time dismissed– whether the Applicant was an employee – where the Applicant was held to be an independent contractor – jurisdictional objection upheld – application dismissed

1. Mr Greg Searle (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged termination of his employment by Luxwood Homes Pty Ltd (the Respondent).

1. There were two matters to determine, whether the application was in time and whether the Applicant was a contractor or an employee. I have addressed each matter so as to ensure the jurisdictional objections were comprehensively examined noting that either of the objections would make the Application fail.

Representation

1. The Respondent sought to be represented by Mr Daniel Chen from NB Lawyers. Granting permission to be represented under s.596 requires the satisfaction of two elements.[1] The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation and establishing satisfaction “involves an evaluative judgment akin to the exercise of discretion.”[2] Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”[3] I exercised my discretion and granted permission pursuant to s.596(2) to the Respondent, as I was satisfied that the matter would be dealt with more efficiently and effectively, considering the complexity of the matter and the capabilities of the parties.

Was the application lodged within time?

1. Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.

1. The Applicant lodged his application on 24 January 2022. He accepts that his application could have been made outside of the 21 days required under s.394(2) of the Act.

1. The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s. 394(3) of the Act for the application to be made.

Consideration of whether a further period should be granted

1. Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(3)       The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)         the reason for the delay; and

(b)whether the person first became aware of the dismissal after it had taken effect; and

(c)         any action taken by the person to dispute the dismissal; and

(d)         prejudice to the employer (including prejudice caused by the delay); and

(e)         the merits of the application; and

(f)         fairness as between the person and other persons in a like position.”

1. The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[4] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[5] the Full Bench of Fair Work Australia stated that:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

1. Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).

1. For the Applicant’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s.394(3) of the Act.

1. Given that the Applicant was unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.394(3) of the Act.

1. The Applicant’s submissions may be summarised as follows:

(a)The Applicant’s reason for delay was because of the Applicant’s uncertainty of the termination date, the lack of communication from the Respondent regarding final pay in January which was close to the 21-day time frame to file an unfair dismissal claim.

(b)The Applicant stated that the preparation of the unfair dismissal claim took longer than expected and believed that the termination would be the first working day rather than a weekend.

(c)The Applicant later submitted that he had received the notice of termination on 19 December 2021 and that the earliest possible date of termination would be the first business day after 1 January 2022 which was 4 January 2022. The Applicant argued that the application was lodged in time on 24 January 2022.

1. The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent’s submissions were that:

(a)The Applicant’s claim was not filed in time and that a reasonable person in the position of the Applicant would have understood their engagement ceased on 19 December 2021. In which case the Application needed to be lodged by 9 January and in fact it was lodged on 24 January.

(b)The Respondent made it clear in the email on 19 December that any ongoing engagement would be ending immediately, and any future engagement would be on a piece by piece basis to be negotiated separately.

(c)The Applicant responded to the communication the same day acknowledging the email sent and that it meant the end of the engagement “ feel like a man sent to the gallows” Further, the following day, on 20 December the Applicant sent an email “I interpreted your email to me last night as being sacked, you did not want me at Luxwood”.

(d)The Applicant attempted to request annual leave on 22 December 2021 however was corrected by the Respondent who stated you were never employed.

(e)No exceptional circumstances were identified by the Applicant and his application was 15 days out of time.

Consideration

Reason for the delay (s.394(3)(a))

1. The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[6] or a reasonable explanation.[7] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[8] the Full Bench noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”

1. It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[9]

1. While I accept the Applicant had some difficulties navigating how to make an application, based on the material and submissions before me, misunderstanding the 21 day time limit and how it is calculated is not an exceptional circumstance, neither is anxiety and uncertainty exceptional in the ending of an engagement such as this. The reasons provided by the Applicant are unexceptional and I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

1. The Applicant became aware of his dismissal on 19 December 2021 and confirmed back to the Respondent the following day when he stated that he was sacked to the Respondent. This consideration therefore does not weigh in favour of an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

1. The Applicant disputed his dismissal generally with the Respondent stating that the delay in making the application was due to the uncertainty of the termination date and lack of communication from the Respondent. The Respondent has stated that following the ending of the engagement that they would engage with the Applicant on a contract by contract basis. It was made clear to the Applicant that his engagement was over on 19 December and there was some back and forth on the future arrangements and how they would work.

1. This factor therefore does not weigh in favour of an extension of time as the Applicant was not an employee.

Prejudice to the employer (s.394(3)(d))

1. The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[10] I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

1. In Kornicki v Telstra-Network Technology Group,[11] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

1. However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[12]

1. Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

1. The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[13]

1. The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

Conclusion

1. Having regard to all of the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter.

1. I will now examine the second leg of the jurisdictional objection for completeness.

Was the Applicant an employee of the Respondent?

The legal test

1. The High Court of Australia in Jamsek and Personnel Contracting pronounced on the approach to be adopted under the law in determining whether, absent a specific statutory definition or rule, a person is an employee or contractor.[14] The characterisation of the relationship is to be determined by reference only to the parties’ legal rights and obligations.

1. Where a comprehensive written contract is in place, this will be the primary source of the parties’ legal rights and obligations, and these will be decisive of the characterisation of the relationship. This will apply unless the contract is a sham, or has been varied after it was made, or post agreement conduct, or context demonstrates that a term is legally ineffective.[15]

1. However, there is no comprehensive written contract in place in this matter. In Jamsek, the High Court stated that the “multifactorial” test remains appropriate in applying the legal right and obligations not the post contract conduct.[16] Therefore, a multifactorial approach is to be adopted in the absence of the employment contract. This will rely upon a considerable body of case law which has developed from applying the general legal principles to specific circumstances.[17] Multiple indicia are to be considered, though none alone are determinative. One must also analyse the totality of the relationship between the parties to determine whether the relationship was one of employee or independent contractor.

1. The often-cited passage penned by Windeyer J in Marshall v Whittaker’s Building Supply Co,[18] and then quoted by the High Court of Australia in Hollis v Vabu reads:

“the distinction between an employee and an independent contractor is ‘rooted fundamentally in the difference between a person who serves his employer in his, the employer’s business, and a person who carries on a trade or business of his own’.”[19]

1. In Roy Morgan Research Pty Ltd v Commissioner of Taxation, the Full Court of the Federal Court quoted with approval the following passage from Hall (Inspector of Taxes) v Lorimer:

“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”.[20]

1. The Full Bench of this Commission adopted this passage in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario. In that case, the Full Bench helpfully went on to summarise the general approach taken to distinguish between employees and independent contractors as follows:

“(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[21]: that is,

whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own[22] 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.[23]

(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.[24]

(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.[25] 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:[26] the parties cannot deem the relationship between themselves to be something it is not.[27] Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.[28]

(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.

Control 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.[29] 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.[30]

“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.”[31] “[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.”[32]

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

The 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[33] and or advertises his or her services to the world at large.

·   Whether the worker provides and maintains significant tools or equipment.[34]

Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary. [35]

·   Whether the work can be delegated or subcontracted.[36]

If 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.[37] 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.[38]

·   Whether the putative employer presents the worker to the world at large as an emanation of the business.[39]

Typically, 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.

Employees 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.[40]

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

Such 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.

It 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.[41]

(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.”[42]

Summary of Evidence

1. On 31 December 2020, the Applicant received his first payslip for the period of work undertaken on 1 December 2020 to 31 December 2020.[43] The Applicant acknowledges that there was no written employment contract.[44]

1. On 19 December 2021, the Applicant stated that the Respondent ended the employment relationship because of a change of business direction and sought to engage with the Applicant on a contract basis. [45]

1. On 20 December 2021, the Applicant sent an email that he had removed access from Xero, ATO Portal and Bank passwords. The Applicant sent a follow up email on being made redundant. The Applicant agreed to assist on contract basis after Respondent’s response on Applicant’s claim of being redundant.[46]

1. On 22 December 2021, the Applicant sent a request for annual leave by email to the Respondent.[47] The Respondent replied stating that the Applicant was not a full-time employee.[48] The Respondent also stated that the Applicant had control over rate of pay and hours worked. The Respondent agreed to retain the Applicant on a contract basis.[49]

1. On 14 January 2022, the Applicant stated an email response stating that he only worked for the Respondent while physically located in the office, was recorded as a part-time employee, and stated that work was specifically asked of the Applicant.[50]

Applicant’s Arguments

1. The Applicant argued that he was an employee of the Respondent by submitting that the Respondent had control over the work undertaken by the Applicant. The Applicant relied upon evidence includes:

• On 30 August 2020, the Applicant argued that he was required to work outside of normal business hours whenever it was necessary for the benefit of the business.[51]

• On 1 October 2021, the Applicant was instructed by the Respondent on what was needed to be prioritised.[52]

• On 12 October 2021, the Applicant argued that he needed confirmation from the Respondent such as material costs charged to clients.[53]

1. The Applicant further submitted that the Respondent knew that the Applicant was paid as an employee through evidence of payslips, and distinguished that work undertaken through Anypoint Pty Ltd was contract work.[54]

Respondent’s Arguments

1. The Respondent engaged with the Applicant regarding software that would assist in managing accounts.[55] The Respondent argues that the Applicant was then engaged on a contractor basis.

The Respondent raised a jurisdictional objection that the Application was out of time and that the Applicant was not an employee.

1. The Respondent applies the multi-factorial test as Jamsek and Personnel Contracting would afford limited assistance in this matter because of an absence of contract between the parties. The Respondent claims that the Applicant is a volunteer, prior to rendering invoices for and on behalf of Anypoint and that the Applicant was a Contractor after the invoices were issued to the Applicant.

• The Applicant had his own business of Anypoint during the working relationship and was unable to access the software once the Applicant’s engagement was ceased.

• The Respondent exercised little control over hours and rate of pay and did not give the Applicant instructions on how to run its Anypoint business.

• The Applicant was running bona-fide business with its own personnel and place of business.[56]

• The Applicant was not exclusive with the Respondent’s work.

• The Applicant had the ability to subcontract or delegate work.

• The Applicant was remunerated by payment of invoices rather than payslips.

Considerations

1. I have considered the evidence and submissions provided by each party. And on the evidence before me the relationship between the two was only ever on a contract basis. The Applicant had embedded himself into the Respondent’s business after first volunteering his services free and then slowly inveigled himself deeper into the business, relying upon the Respondent’s good nature and high level of trust. He had sought to maximise his remuneration out of the relationship. There is no doubt that the Applicant undertook some work for the Respondent however it became apparent to the Respondent that the Applicant had implanted himself in the business and sought to make himself an indispensable part of the Respondent’s business. The Respondent identified this as an issue and determined to take back the control of the hours of work and the scope of work that the Applicant undertook. This is a case where the Respondent let the contractor determine the needs of his business and not the other way around.

1. The Applicant no doubt had a strong financial interest in ensuring the reliance of the Respondent’s business upon him and the evidence showed that the Applicant had registered some of the Respondent’s intellectual property to the Applicants business.

1. The relationship was one where the Respondent paid the Applicant lump sums and sometimes upon receipt of an invoice and other times before an invoice was produced. The lackadaisical approach of the Respondent to financial controls regarding the Applicant is evidence that the Respondent trusted the Applicant to have the business interests of the Respondent central and uppermost. However, it seems that the Applicant took advantage of the situation and began to make greater demands for remuneration and to have overnight accommodation and to have some funds paid off the books.

1. The Applicant relied on payslips to suggesting the Respondent provided them to him and deducted tax from the monies transferred to him. The Respondent challenged the veracity and legitimacy of the payslips and the Applicant did not provide a reply. Inquiry could further be made regarding the tax treatment of the transfers by both parties. However, a lengthy enquiry into whether tax was paid and how it was paid is outside of the remit of this matter.

1. In terms of the usual test the Respondent exercised little control over the Applicant. The Applicant determined the number of hours required and the work priorities. The Applicant determined his own hours and location of work, frequently using the Respondent’s offices. The Respondent did not pay any superannuation, nor did he deduct any tax from the Applicant’s payments. The Applicant had his own business to run (Anypoint – financial software) and had the ability to work for any other clients. The software of Anypoint was owned by the Applicant and the Respondent licenced for its use.

Conclusion

1. I have made a determination on both jurisdictional objections and upon the examination of the material presented in this matter I would determine the Applicant was a contractor. In any event, the Application was lodged outside of the 21 day timeframe from the date the working relationship ended and there were no exceptional circumstances which would warrant the granting of an extension, therefore, if in the instance the Applicant might have been considered an employee, the application would be dismissed on the basis of it’s being out of time. I therefore dismiss the Application.

DEPUTY PRESIDENT

[1] Wellpacks Holdings Pty Ltd t/a ERGT Australia v Mr Kevin Grovender [2021] FWCFB 268.

[2] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618, [19](3).

[3] Wellpacks Holdings Pty Ltd t/a ERGT Australia v Mr Kevin Grovender [2021] FWCFB 268, [48]

[4] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].

[5] [2019] FWC 25.

[6] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].

[7] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].

[8]   [2018] FWCFB 901.

[9] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

[11] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[12] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

[13] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].

[14]  Asim Nawaz v Raiser Pacific Pty Ltd [2022] FWC 1189 at [50]-[51] citing Jamsek v ZG Operations Pty Ltd [2022] HCA 2 ('Jamsek’); CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (‘Personnel Contracting’).

[15] Jamsek per Kiefel CJ, Keane and Edelman JJ at [40]-[62], Personnel Contracting per Gordon J at [172]-[178]:

[16] Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [33]-[34], [47], [61], per Gordon J at [174], [186]-[189].

[17] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Abdalla v Viewdaze Pty Ltd (2003) 122IR 215; Roy Morgan Research Pty Ltd v Commissioner of Taxation (2010) 184 FCR 448; Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario [2011] FWAFB 8307.

[18] Whittaker’s Building Supply Co (1963) 109 CLR 210, 217.

[19] Hollis v Vabu Pty Ltd (2001) 207 CLR 21 [40].

[20] Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939; endorsed in Roy Morgan Research Pty Ltd v Commissioner of Taxation (2010) 184 FCR 448.

[21] Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210, 217 per Windeyer J approved by the majority in Hollis v Vabu (2001) 207 CLR 21 [40]; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.

[22] Hollis v Vabu (2001) 207 CLR 21 [47] and [58].

[23] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

[24] Ibid.

[25] The parties cannot create something which has every feature of a rooster, but call it a duck and insist that everyone else recognise it as a duck”: Re Porter (1989) 34 IR 179, 184 per Gray J; Massey v Crown Life Insurance [1978] 2 All ER 576, 579 per Lord Denning approved by the Privy Council in AMP v Chaplin (1978) 18 ALR 385, 389.

[26] AMP v Chaplin (1978) 18 ALR 385, 389.

[27] Hollis v Vabu (2001) 207 CLR 21 [58].

[28] AMP v Chaplin (1978) 18 ALR 385, 394.

[29] Zuijs v Wirth Bros. Pty Ltd (1955) 93 CLR 561, 571.

[30] Hollis v Vabu (2001) 207 CLR 21.

[31] Humberstone v Northern Timber Mills (1949) 79 CLR 389, 404 per Dixon J.

[32] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 36.

[33] Ibid.

[34] Ibid 24.

[35] Hollis v Vabu (2001) 207 CLR 21 [47] and [58].

[36] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 24.

[37] Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539; AMP v Chaplin (1978) 18 ALR 385, 389.

[38] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 24.

[39] Hollis v Vabu (2001) 207 CLR 21 [39].

[40] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 24.

[41] Massey v Crown Life Insurance [1978] 2 All ER 576, 579 per Lord Denning.

[42] Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario[2011] FWAFB 8307 [30].

[43] Digital Court Book (‘DCB’) – Applicants documents list 22 February 2022 – Applicant’s Pay Slip 31 December 2020.

[44] Ibid – Form F2.

[45] Ibid – Email 01 Redundancy Email 19 December 2021; Respondent Statement of Evidence 6 March 2022 – Exhibit K.

[46] Ibid.

[47] Ibid – Email 02 Leave Approval Email 27 December 2021; Respondent Statement of Evidence 6 March 2022 – Exhibit L.

[48] Ibid – Email 03 Request Quotation for Services 22 December 2021.

[49] Ibid – Respondent Statement of Evidence 6 March 2022 – Exhibit L.

[50] Ibid – Respondent Statement of Evidence 6 March 2022 – Exhibit M.

[51] Ibid – Email A03 30 October 2021.

[52] Ibid – Email A01 1 October 2021.

[53] Ibid – Email A02 12 October 2021.

[54] Applicant’s Closing Submissions.

[55] DCB – Respondent’s Outline of Submissions

[56] Ibid – Respondent Statement of Evidence 6 March 2022 – Exhibit A

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