Background
Background to the litigation
The characterisation of any particular relationship as one of employment reflects what is “ultimately an evaluative judgement”, a judgement that ought not be approached “…on the basis that there is some checklist against which ticks and crosses may be placed so as to produce the right answer.”[39] Rather than a checklist, however, there are principles of relevance.[40] They include that:(a)“…regard may be had to the circumstances surrounding the making of the contract, as well as to events and circumstances external to the contract which are objective, known to the parties at the time of contracting and which assist in identifying the purpose or object of the contract.”(b)The distinction between a contract of employment and one under which services are provided as an independent contractor usually turns on two, albeit not determinative,[41] factors; the putative employer’s “extent of control…over how, where and when” the service provider works and “the extent to which the putative employee can be seen to work in his or her own business as distinct from the business of the putative employer.”[42](c)Indicia of an employment relationship include the “right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like.”(d)Indicia of an independent contractor relationship include “work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax.” [43](e)“contractual provisions that may be relevant in determining the nature of the relationship include, but are not limited to, those that deal with the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the deduction of income tax, the delegation of work and the right to exercise direction and control.”[44]Application of principles to the facts[39] JMC Pty Ltd v Commissioner of Taxation [2022] FCA 750 at [27].[40] JMC Pty Ltd v Commissioner of Taxation [2022] FCA 750 at [17]-[27] per Wigney J. Principles there outlined by his Honour were found to be accurate, on appeal: see JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76 at [9]. See also Secretary, Attorney-General’s Department v O’Dwyer [2022] FCA 1183 at [17]-[27].[41] JMC Pty Ltd v Commissioner of Taxation [2022] FCA 750 at [23].[42] Ibid at [113].[43] Ibid at [22], citing Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at [11] (Wilson and Dawson JJ).[44] JMC Pty Limited v Commissioner of Taxation [2022] FCA 750 at [21]. Legal relationship
Decision
Reasons for decision
That the applicant was conducting his own business is apparent from the terms of his registration by the Commission in July 2019. The applicant was registered as a provider of therapeutic supports, “work involving a profession, trade or distinct calling.” Moreover, he was registered using an Australian Business Number. Such a number “… is a unique 11 digit number that identifies your business to the government and community…To get one you need to be running a business or other enterprise.”[50][50] See Australian Government, ‘Register for an Australian Business Number (ABN)’, Business,gov.au (Web Page, updated 7 March 2023) <>That the applicant was, in the context of his provision of services in relation to the NDIS, conducting his own business as an independent contractor is a significant,[51] albeit not determinative,[52] factor that weighs against a conclusion that any relationship pursuant to which those services were to be provided was one of employment. Indeed, the distinction between contractor and employee 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.”[53][51] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [35]-[39]. At [39] per Kiefel CJ, Keane and Edelman JJ it was said that while “…the “central question” is always whether or not a person is an employee, and while the “own business/employer’s business” dichotomy may not be perfect so as to be of universal application for the reason that not all contractors are entrepreneurs, the dichotomy usefully focusses attention upon those aspects of the relationship generally defined by the contract which bear more directly upon whether the putative employee’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise”.[52] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [180] per Gordon J: “…the inquiry is not to be reduced to a binary choice between employment or own business. The question must always focus on the nature of the relationship created by the contract between the parties.”[53] Marshall v Whittaker’s Building Supply Co [1963] HCA 26 at [37] cited at Murphy v Chapple [2022] FCAFC 165 at [29]. See also ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 at [60].Here, like Jamsek,[54] the applicant’s only relevant association with the Commission and the Agency was in his capacity as an independent contractor. As “…. there is no basis for holding that the …[the applicant was] otherwise associated with the …[Commission or the Agency], there is no basis for concluding that the …[applicant was] employed by the…[Commission or the Agency].”[55][54] ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.[55] Ibid at [60].As noted earlier, a factor of relevance in distinguishing between a contract of employment and one under which services are provided as an independent contractor is the putative employer’s “extent of control… over how, where and when” the services are provided. Of significance in considering this factor is any right of control as opposed to any exercise of control.[56] Regard is had to the existence or otherwise of a right to control the how, when and where of service provision, a right to control the doing of the relevant work[57] or how the relevant services should be performed.[58] [56] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [74].[57] Murphy v Chapple [2022] FCAFC 165 at [29], where it was said that the legal character of a contract as one of employment was determined by “the extent to which the contract itself gives the putative employer the right to control the doing of the work by the putative employee.”[58] ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 at [105]. The applicant’s registration with the Commission (and his capacity to obtain renewal of his registration) was subject to a number of conditions. He was, for instance, required to observe various codes and standards. The applicant submitted the Commission was, as a result, vested with a right to control the manner in which he worked. He pointed to the fact that renewal of his registration with the Commission was subject to successful completion of a quality audit.[59] Additionally, the Commission’s control of his work was said by the applicant to be reflected in the requirement that he “… make progress reports, lease with different organisations and do risk assessments and additionally have to comply with ‘reportable instances’ within a definite timeframe.”[60][59] Page 62 of a 187-page bundle lodged on 11 March 2022. See also T13.[60] T13, p.63.As I see it, none of the requirements identified by the applicant operated to vest any relevant right to control how he was to provide his services to NDIS participants, whether in the Commission, the Agency or anyone else. The independent contractor and extent of control factors are not the only factors of relevance in determining whether a particular relationship is one of employment. Other factors include the mode with which the applicant was remunerated, the place where his services were provided, the existence or otherwise of any obligation to provide services to a particular extent (such as hours of work) and the existence or otherwise of any right to holidays exercisable against a third party.[61] [61] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [174] where it was said that the “…way that the contractual terms address the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the delegation of work, and where the right to exercise direction and control resides may together show that the relationship is not one of employer and employee.” At [187], reference is made to other factors of potential relevance, such as whether the putative employee provides equipment used in the provision of services and whether uniforms are worn. Wigney J in JMC Pty Limited v Commissioner of Taxation [2022] FCA 750 at [21], stated that “…the contractual provisions that may be relevant in determining the nature of the relationship include, but are not limited to, those that deal with the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the deduction of income tax, the delegation of work and the right to exercise direction and control.”In terms of payment, the applicant submitted that, as his money “came from the government” for two years, he must be an employee.[62] I do not accept that submission. Money paid to the applicant may well have been received by him in his capacity as an independent contractor. Indeed, that seems to have been the case when regard is had to a payment summary form in the material before me. [62] T16, p.82.The form describes the applicant as the provider and identifies individual payment requests that the Agency had approved and the participant to whom the relevant supports were made available.[63] There is no suggestion in the form that any deduction for income tax was being made from payments to the applicant or reimbursement of business expenses he incurred in providing services to NDIS participants. I note that in Exhibit R2 a Services Australia search in 2022 of a database of salary, leave and other payroll related information from 30 June 2016 revealed no entries in relation to the applicant. [63] Document lodged on 11 April 2023 (Agency Monthly payment summary for November 2020).The applicant was asked to identify who paid him for services provided to a NDIS participant whose supports funding was not Agency managed. He initially refused to answer the question but then said that payments for NDIS supports were all ultimately paid for by the Commonwealth.The applicant contended that payment to him was effected using a “government website for reimbursement and wages.”[64] What the applicant was apparently referring to was a Department of Social Services provider digital access portal for “NDIA managed clients”[65] called PRODA. The applicant provided a screenshot of the portal. Relying on that screenshot, he contended that he was an employee of the Department of Social Services.[66] In the screenshot the applicant is referred to as an employee. However, contrary to the applicant’s contention, that reference is not suggestive of him having been an employee of the Department. Instead, it would seem from the screenshot that he was being described simply as an employee of his own business (being the business registered to provide services under the NDIS) and thereby authorised on behalf of his registered business to obtain access to the portal.[67] [64] T27.[65] T15 (statement of 16 May 2021).[66] 22 August 2022 email.[67] See for example at T34, p.158.In March 2020, the Agency made an advance payment to the applicant, apparently to ameliorate the adverse financial effects of the COVID pandemic and of the measures taken to address it.[68] The applicant contended that he is, “therefore” an employee of the Agency.[69] [68] T13.[69] T16, p.81.The advance payment was not made to the applicant because he was an employee. It was made in implementation of a proposal “…to support registered NDIS providers in light of the unprecedented coronavirus (COVID-19) pandemic.”[70] In a May 2021 invoice seeking recovery of the advance, the applicant was not, as he contended, described as an employee but was, instead, characterised as a “vendor”.[71] [70] Page 236 of a 591-page bundle of documents lodged by the Applicant on 11 March 2022 (Agency letter of 1 April 2020).[71] T13, p.61.An element of the objective circumstances surrounding the making of any relevant contract included the National Disability Insurance Scheme Act 2013. Features of that Act are not supportive of any contention that the applicant was an employee. In particular, staff of both the Agency and of the Commission were required under that Act to be persons engaged under the Public Service Act 1999.[72] The applicant was not a person so engaged.[72] As for the Agency, see National Disability Insurance Scheme Act 2013, s 169. As for the Commission, see National Disability Insurance Scheme Act 2013, s 181U.Another element of the objective circumstances surrounding the making of any relevant contract included the industrial awards applicable to almost all staff of the Commission and the Agency.[73] [73] As for the Agency award, see National Disability Insurance Agency Enterprise Agreement 2020-2023 in the bundle of documents lodged by the Applicant on 11 March 2022, p.338 of 591 pages.For instance, under the NDIS Quality and Safeguards Commission Enterprise Agreement 2019 – 2022, the Commission was required to make certain superannuation contributions, the ordinary hours for a full-time employee were 7 hours and 30 minutes per day, a total of 37 hours and 30 minutes per week and 150 hours per four-week settlement period, those hours to be worked between 7.00 am to 7.00 pm Monday to Friday. Standard hours of attendance for employees, other than shift workers, were said to be 8.30 am to 12.30 pm and 1.30 pm to 5.00 pm.There is no material before me suggestive of the applicant having rights or obligations reflective of these award conditions. Indeed, I note that in his April and May 2021 claims, he said he worked for four days a week on different days, with his weekly hours of work varying from between seven and 24 hours. I also note the applicant’s acknowledgement that superannuation contributions were not made on his behalf.[74] [74] Page 281 of 591-page bundle of documents lodged on 11 March 2022.The flexibility inherent in the hours the applicant claimed to have provided services in connection with the NDIS is suggestive of him having no obligation to the Agency, the Commission or any other putative employer to provide services to a particular extent. Moreover, it is clear that, whatever the terms of any relevant contract, they did not dictate any place of work or, indeed, absolve the applicant from providing the place from which he provided his services (noting that his home was his usual place of work).The applicant submitted that he qualified as a “worker” in relation to material published by the Commission[75] and that the concept of worker is synonymous with that of employee.[76] I accept the first part of that submission but reject the second. In the material, a worker is stated to be “anyone who is employed or otherwise engaged to provide NDIS supports and services to people with disability.” What the applicant’s submission neglects is the sentence that immediately follows that statement. It provides that workers “…can be paid or unpaid, and can be people who are self-employed, employees, contractors, consultants, and volunteers.” [75] T27, p.132.[76] One example, see T33, p.153. See also email of 22 August 2022 from the applicant.Lastly, the applicant sought to have the Tribunal adopt or accept an opinion expressed in the GC letter (being a March 2023 letter to the applicant from the General Counsel of the Federal Court of Australia). In the letter it is said that “[o]n the information you have provided me, I am satisfied that you are, or were, an employee of the Department of Social Services.”With respect, in the context of this proceeding, I do not attribute significant probative value to that opinion. Other than to say it was based on information provided by the applicant, how that opinion was arrived at is not identified. Like courts, the Tribunal “…cannot be expected to act upon opinions the basis of which is unexplained.”[77] Second, the context in which that opinion was expressed appears to differ markedly from that in which the Tribunal now finds itself. The issue that was there being addressed appears to have involved considering whether the applicant was a “public official” for the purposes of the Public Interest Disclosure Act 2013, a term defined so as to include employees of organisations which provide services under a Commonwealth contract. It is unclear whether the concept of employee in that context has the meaning it has under the Act. I note that in Exhibit R3 (an email of 31 March 2023 from an officer of the Department of Social Services), it was said that the Department has no record of the applicant ever being its employee. [77] R v Jenkins; Ex parte Morrison [1949] VLR 277 at 303 per Fullagar J, citing an extra-judicial statement of Sir Owen Dixon.ConclusionI am not satisfied that at any relevant time the applicant was an employee of the Commonwealth, a Commonwealth authority or a corporation licensed under the Act as a self-insurer.The Tribunal affirms the decision the subject of review. I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell ........................[SGD]................................................AssociateDated: 12 July 2023 Date of hearing: 6 April 2023 Advocate for the Applicant: Suellen Green Counsel for the Respondent: Peter Woulfe Solicitors for the Respondent: HBA Legal