Kenneth Craig Hill v Aboriginal Health & Medical Research Council of NSW

[2024] FWC 3528

[2024] FWC 3528

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Kenneth Craig Hill
v

Aboriginal Health & Medical Research Council Of NSW

(C2024/7022)

COMMISSIONER MCKINNON SYDNEY, 18 DECEMBER 2024

Application to deal with a general protections dismissal dispute – whether dismissed

1. Mr Kenneth Craig Hill has applied under s.365 of the Fair Work Act 2009 (Act), which allows a person who has been dismissed and who alleges that the dismissal was in contravention of the general protections provisions in Part 3-1 of the Act, to apply to the Commission to deal with the matter. The respondent, Aboriginal Health & Medical Research Council of NSW (AH&MRC), objects to the application on the ground that Mr Hill was a contractor, not an employee. Under s 386 of the Act, only an employee can be dismissed. If Mr Hill was not an employee of AH&MRC, he had no standing to apply under s 365.

1. An independent contractor agreement on the letterhead of AH&MRC and bearing the name of Mr Hill and his ABN 57 758 916 869 was produced to the Commission. It states that from 2 September 2024, Mr Hill would provide services to AH&MRC including teaching, assessing, marking, administration and student education support. He would be paid an hourly fee of $73.04 including GST for each hour of services provided and submit invoices once a week. On 1 October 2024, AH&MRC terminated the contract. AH&MRC submitted that the contractor agreement was evidence of a contracting relationship between the parties.

1. Mr Hill agreed that he signed the independent contractor agreement. This followed an express choice made by Mr Hill to be offer his services to AH&MRC as a contractor rather than an employee. The terms of the contract were prepared to reflect this choice, and for the short period of the contract, Mr Hill worked in a manner consistent with those terms. He worked when he was available as agreed with AH&MRC. He continued to operate his other businesses. He invoiced AH&MRC for his services using an ABN for Mr Hill trading as the Advance Institute of Business and claimed payment as contemplated by the contractor agreement.

1. Mr Hill claims his relationship with AH&MRC became one of employment because it was bilaterally varied in a discussion with Mr Chris Margaritis, Acting Head of Training – Quality Assurance and Capability Development. I reject this and prefer the evidence of Mr Margaritis, who confirmed that the discussion in question was not about changing the nature of the engagement between Mr Hill and AH&MRC. It was about increasing his hourly service fee to $83 per hour to align with the rate paid to others performing the same or similar work in their capacity as employees. Other than bare assertion, there is no evidence of any other contract between the parties. As late as 27 September 2024, Mr Hill wrote to another person working for AH&MRC and said, “I am not an employee of AH&MRC, I am a contractor, the same as you.” I also reject the submission of Mr Hill that his arrangement with AH&MRC was of the usual kind for casual employees using an ABN. ABNs are for use by businesses including sole traders – not for employees.

1. There is no evidence that the contractor agreement was a sham. It reflected the preference of Mr Hill and the reality of the arrangement between the parties, who each conducted themselves in accordance with its terms. There is no evidence that AH&MRC intended for the relationship to be one of employment. AH&MRC was ambivalent on the matter and left the choice to Mr Hill.

1. Mr Hill said his work was directed, and hours of work set, by AH&MRC and that he could only vary his hours with its approval. On the evidence, his hours of work were set by agreement according to Mr Hill’s availability. The services provided were also those that had been agreed between the parties. To the extent that AH&MRC provided greater detail about the work it required him to perform, I am not satisfied that it represented such a level of control over Mr Hill as to indicate employment rather than contracting. The actual work performed as part of providing the services may not have been entrepreneurial on its own, but it continued a pattern of Mr Hill providing services within his area of expertise through his established businesses.

1. Mr Hill described features of his work that are capable of applying to both contractors and employees, including participating in an induction process, being expected to comply with AH&MRC policies, and being paid superannuation for a contract which was mainly for the labour of Mr Hill. Mr Hill said he did not provide any equipment, which might indicate employment, but conceded that he provided his own computer and internet connection, neither of which was separately reimbursed. Because Mr Hill was contracted to work remotely, he also provided the location of his work and all of its physical facilities. His reliance on the use of software required by AH&MRC is of little significance because as a registered training organisation, the work it contracted for Mr Hill to perform was all in connection with documents and training materials specific to the business.

1. Mr Hill submits that he was paid the “award rate”. Whether that is so is not established, but when Mr Hill charged AH&MRC for his services, he also charged GST. Mr Hill says he was held out as a representative of AH&MRC as one of its teachers. In the circumstances, this was not an indicator of employment but merely a shorthand description of the services he had contracted with AH&MRC to provide.

Conclusion

1. It is clear that Mr Hill was not an employee of AH&MRC. The relationship was genuinely one through which Mr Hill worked as a contractor providing services to AH&MRC. It follows that Mr Hill was not dismissed and the jurisdictional objection is upheld. Mr Hill’s application under s 365 is dismissed.

COMMISSIONER

Appearances:

K Hill for the applicant.
H Boothman of HWL Ebsworth for the respondent.

Hearing details:

2024.
Sydney:
December 16.

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