Howard v Merdaval Pty Ltd (trading as North Essendon Auto Spares)

In this case, the appellant, Howard, a courier, appealed against the primary judge's decision that she was an independent contractor rather than an employee of Merdaval Pty Ltd (trading as North Essendon Auto Spares) and thus not covered by an award. The appellant sought compensation for underpayment under the Fair Work Act 2009 (Cth). The primary judge dismissed the application, concluding that Howard was an independent contractor and not an employee. The Full Court of the Federal Circuit Court was required to determine whether the primary judge correctly found that Howard was an independent contractor and not an employee of the respondent, and whether the primary judge correctly concluded that the respondent was not liable to compensate Howard under the award. The Full Court considered the evidence and findings of fact made by the primary judge, including the parties' intentions, the level of control exercised by the respondent, and the nature of the work performed by Howard. The Full Court concluded that the primary judge was correct to find that Howard was an independent contractor and not an employee of the respondent. The Full Court found that the critical factors to be assessed in this case were the parties' own understanding of their relationship, the level of control involved, whether Howard was running a business, who provided tools and equipment, who was liable to make taxation payments and superannuation contributions, and the existence of leave entitlements. The Full Court held that the appellant's acceptance of the respondent's intention to engage her as an independent contractor and her evidence that she did not wish to be an employee of the respondent were important factors in determining the nature of the relationship between the parties. The Full Court also found that the primary judge's findings of fact were supported by the evidence and that the appellant's arguments were either beside the point or did not affect the issue to be decided. The Full Court dismissed the appeal and affirmed the primary judge's decision. The Full Court held that Howard was not an employee of the respondent and that the respondent was not liable to compensate Howard under the award. The Full Court's decision confirms the importance of considering the parties' intentions and the surrounding facts and circumstances in determining the nature of the relationship between parties in an independent contractor versus employee dispute. The Full Court's decision also highlights the need for a thorough examination of the record and a real rehearing in an appeal by way of rehearing.