Mr Asif Waseem v Peace Lutheran Church Gatton t/as Anuha
[2023] FWC 3327
•13 DECEMBER 2023
| [2023] FWC 3327 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Asif Waseem
v
PEACE LUTHERAN CHURCH GATTON t/as Anuha
(C2023/5078)
| COMMISSIONER DURHAM | BRISBANE, 13 DECEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether employee dismissed – whether employree or contractor – application dismissed
On 21 August 2023 Mr Asif Waseem made a general protections application to the Commission under section 365 of the Fair Work Act 2009 alleging contraventions of the Act.
Mr Waseem alleges that he was dismissed by Peace Lutheran Church Gatton t/as Anuha (the Respondent) on 1 August 2023 in contravention of his workplace rights.
The Applicant further alleges, under section 357 of the Act that the Respondent misrepresented his employment as an independent contracting arrangement in contravention of his workplace rights.
The Respondent opposed the application, by way of raising a jurisdictional objection that the Applicant was not dismissed within the meaning of section 386 of the Act because the Applicant was not an employee.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the Act before the Commission can exercise powers conferred by section 368.[1] It is therefore necessary to determine the jurisdictional objection raised by the Respondent before Mr Waseem’s application can proceed.
For the reasons outlined below, I find that Mr Waseem was engaged as a contractor and therefore not an employee. Consequently, the jurisdictional objection is upheld.
Hearing of the Jurisdictional Objection
I issued directions and a notice of listing on 18 September 2023.
The question of whether Mr Waseem was dismissed was dealt with at a Determinative Conference on 14 November 2023. Materials in support were filed by both Mr Waseem and the Respondent. Ms Sue Taylor and Ms Vicky Bowden attended the Determinative Conference to provide oral evidence for the Respondent.
Evidence of the Respondent
The Respondent’s evidence can be summarised as follows:
·Mr Waseem was not an employee but an independent contractor, engaged to provide ICT Support Services via a contract of service which was entered into verbally with the Respondent in December 2020.[2]
·The Respondent chose to end the agreement on 31 July 2023.[3]
·Mr Waseem did not have a position description or an employment contract [4] and was responsible for controlling how his work was performed. Additionally, Mr Waseem had the capacity to delegate or sub-contract out work for services that he was contracted to deliver to the Respondent.[5]
·The Respondent did not pay Mr Waseem a wage/salary and did not deduct income tax.[6]
·Mr Waseem was responsible for his own taxation affairs and superannuation.[7]
·Mr Waseem was not paid for work when he chose not to work, nor was he paid for public holidays.[8]
·Mr Waseem did not accrue annual leave, personal leave or long service leave.[9] Nor did he provide medical certificates for personal leave and did not seek approval for personal leave or annual leave.
Evidence of the Applicant
Mr Waseem’s evidence can be summarised as follows:
·Mr Waseem contests that he worked as an employee on a part-time basis for the Respondent for a year.[10]
·Mr Waseem contests that the Respondent required him to work from the Respondent’s premises, during regular business hours and that he was provided clear instructions regarding what needed to be done and how.[11]
·Mr Waseem acknowledges that he used his own phone and laptop but mainly used the desktop computer provided by the Respondent which was setup at the Respondent’s main office.[12]
·Mr Waseem notes that the Respondent reimbursed him for travel from home to the Respondents’ premises each day, as well as travel to other offices. Additionally, the Respondent also paid for software and technology used in managing and maintaining the IT infrastructure. The Respondent had an expectation that the work was performed primarily from the Respondent’s premises.[13]
·Mr Waseem does not dispute that he invoiced the Respondent, noting he was paid a daily rate including GST as he was registered with the Australian Taxation Office (ATO).
·Mr Waseem contests that he was compensated on a daily rate, noting remuneration was not tied to the achievement of specific outcomes or results but was for his labour.[14]
·Mr Waseem concedes that the Respondent did not deduct income tax or pay him for any holidays, sick leave, or public holidays.[15]
·Mr Waseem notes he did not wear any uniform or a badge, but neither did any of the other employees of the Respondent.[16]
Background
Prior to forming a direct relationship with Mr Waseem, the Respondent had an arrangement with Lutheran Education Queensland (LEQ), who provided IT services to the Respondent in a subcontracting arrangement. Mr Waseem performed this work as an employee of LEQ. In 2020, LEQ ceased providing these services to the Respondent and consequently, Mr Waseem’s position with LEQ was made redundant.
Shortly after, the Respondent offered to retain Mr Waseem’s services directly, under the same terms.[17]
The parties agreed via a verbal contract that Mr Waseem would be paid the same per day rate that they had paid to LEQ for the same number of hours (7.6 hours).[18] The arrangement was put in place in January 2021 and Mr Waseem invoiced the Respondent as agreed under the company name Pacific Technology until the arrangement ceased in July 2023.
In January 2023 Mr Waseem spoke to the Respondent about drawing up a contract to cover the relationship between Pacific Technology Services and the Respondent moving forward. This contract was forwarded to the Respondent on 1 January 2023.
On 6 April 2023, Mr Waseem sent an email to the Respondent suggesting that:
“As discussed as an alternative to working as a contractor, I would prefer working as an employee on (part-time/full time basis).”
The Respondent did not sign the new contract, nor did they take up the offer of engaging Mr Waseem as an employee. On the 3 July 2023, the Respondent wrote to Mr Waseem, via Pacific Technology Services advising that they had decided to make alternative arrangements for the provision of IT services and would not be continuing the arrangement with Pacific Technologies.
Relevant Legislation
Section 365 of the Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. “Dismissal” for these purposes (and other purposes of the Act) is defined in section 386(1), which provides:
“386 Meaning of dismissed”
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
The question that determines the jurisdictional issue is whether at the relevant time a contract of employment existed between Mr Waseem and the Respondent.
Whilst Mr Waseem and the Respondent were capable of being a “national system employee” and a “national system employer” within the meaning of the Act, whether they were, depends on whether a contract of employment regulated their relationship.
The Act does not, for the purposes of general protections prescribe a special definition of employer and employee. Those terms are said to “have their ordinary meanings”.[19] Meaning that general legal principles established by the courts will be used to determine whether an employment relationship exists.
Those principles were most recently considered by the High Court of Australia in the cases of Jamsek and Personnel Contracting.[20] The Court stated that contractual terms and not performance, where those terms can be ascertained and where the contract is not a sham, will determine the true nature of the relationship. In those circumstances it is those agreed terms which have importance in determining the true character of the relationship.[21] However, the Court also observed that the manner in which the relationship is worked in practice may be relevant for certain limited purposes, such as to find contractual terms where they cannot otherwise be ascertained[22] or to determine the nature of any variation to agreed terms.[23]
In this matter, it is not in dispute that no written agreement or contract existed between the parties that expressed those terms. As such, assessing whether the relationship between Mr Waseem and the Respondent was one of contractor or employee requires a consideration of what was said and done to constitute the agreed basis on which work would be performed and also an examination of the manner in which the relationship worked in practice in order to ascertain the full extent of those terms or whether terms initially agreed were varied.
Consideration
The relationship between Mr Waseem and the Respondent commenced when he was an employee of LEQ. Whilst Mr Waseem was a direct employee of LEQ during this time, his services were contracted to the Respondent via a contract of service between LEQ and the Respondent. At the time this contract came to an end, the evidence suggests that, with the encouragement of LEQ, the Respondent approached Mr Waseem regarding the option of “continuing the relationship”. Whilst no formal written agreement was entered into, it is clear that the arrangement was that Mr Waseem would take over the service contract on the same terms as the agreement with LEQ.
When describing how the arrangement came about, Mr Waseem stated:
“So the expectation was that, you know, I will do whatever I was doing before, but I'll just invoice them. Whatever was being charged by LEQ, so the same hours, so that's how the relationship started.”
This arrangement commenced in January 2021 and continued until 31 July 2023. During this period, invoices were issued to the Respondent under the company name of Pacific Technology Services. It is also of note that Mr Waseem complied with all relevant taxation requirements for his business including the charging and reconciliation of GST via annual BAS statements. Further, Mr Waseem did not accrue or seek to accrue leave entitlements that would be applicable had he been an employee.
Mr Waseem himself, characterised the relationship as follows:
“Despite being engaged as an IT service provider, I had integrated closely with the company, working on-site during regular business hours, utilizing company equipment, and fulfilling a role that involved direct and ongoing support.” [24]In support of his contention that he was an employee, Mr Waseem seeks to rely on a series of email exchanges between the Respondent and himself seeking that he performs certain tasks, as well as screenshots that show he was a member of internal SharePoint and Office 365 groups, and suggests that these in some way demonstrate that his work was under the direction of the Respondent. I find this a difficult argument to accept on several levels. Firstly, it is not uncommon for organisations to contract out specific services including IT functions. In such circumstances it would not seem unreasonable that the organisation would still need to direct the service provider as to the work that was required to be performed. Secondly, as Mr Waseem’s direct relationship with the Respondent came following the ceasing of his work for LEQ, it would be reasonable to presume that the arrangement was of a similar nature when Mr Waseem was an employee of LEQ, who were providing IT Services to the Respondent through a contracting arrangement.
Several of the characteristics of Mr Waseem’s engagement clearly point to a contractor relationship:
Mr Waseem issued regular invoices using the company name Pacific Technology Services.
Pacific Technology Services charged the Respondent GST and was registered with the ATO.
Mr Waseem did not participate in any of the usual onboarding activities usually performed by new employees such as provide a tax file number declaration, superannuation choice fund form etc.[25]
Mr Waseem charged the Respondent for his travelling time to and from the office.
Mr Waseem did not accrue leave and was not paid if he did not work.
The Respondent paid the invoices and GST to Pacific Technology Services.
The Respondent did not deduct income tax from any of the payments.
Contrary to this, I am not persuaded by Mr Waseems argument that the following characteristics of the relationship demonstrate he was in fact an employee:
That he attended the office most days.
That the Respondent paid for Software and other materials.
That he was a member of several “internal” groups.
I consider these to be reasonable, and common actions of a host when interacting with a service provider.
Whilst I can appreciate that Mr Waseem felt that he was a part of the team, the evidence suggest that he had voluntarily entered into a contract for the provision of IT Services to the Respondent and had been happy with this arrangement. It was not until it became clear to him that the Respondent was not intending to sign the new formal agreement with Pacific Technology Systems, that he, by his own admission, wrote to the Respondent seeking that they consider engaging him as an employee.
Critically, Mr Waseem himself characterised his relationship with the Respondent as one of IT Service provider on several occasions. It is also of note that the agreement that Mr Waseem provided to the Respondent on behalf of Pacific Technology Services in January 2023 described the services to be performed as follows:
“the “Services Provider” is interested in providing fee-based IT support services to the Client and the Customer desires to engage the Service Provider to provide such services.”
Having taken all of the material into consideration, I find that the relationship between the parties was governed by a contract of service between the Respondent and Pacific Technology Services. As such, Mr Waseem was a contractor and not an employee of the Respondent.
Conclusion
Having found that Mr Waseem was engaged as a contractor, it follows that no employment relationship existed and therefore Mr Waseem was not dismissed within the meaning of section 365. Consequently, the Jurisdictional Objection is upheld, and the application is unable to proceed.
The Application is therefore dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
A. Waseem for himself
J. Crisci for the Respondent
C. Tidswell for the Respondent
Hearing details:
2023
Brisbane
14 November
[1] [2020] FCAFC 152.
[2] P.65 of the DCB – Respondent’s Submissions.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] P.15 of the DCB – Applicant’s Submissions.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] P.16 of the DCB – Applicant’s Submissions.
[16] Ibid.
[17]Ibid.
[18] Ibid.
[19] Section 355.
[20] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[2022] HCA 1 (‘Personnel Contracting’); ZG Operations Australia Pty Ltd v Jamsek[2022] HCA 2 (‘Jamsek’).
[21] Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [40] -[62], Gordon J at [172] -[178]; Gageler and Gleeson JJ observing otherwise at [143].
[22] Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [42], [54], Gordon J at [177] -[178], [188] -[190].
[23] Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [46], [54].
[24] P.8 of the DCB – Form F8.
[25] P.84 of the DCB – Witness Statement of Susan Taylor.
Printed by authority of the Commonwealth Government Printer
<PR769357>
0
0
0