Mr Hayden Green v Hummer Limousines

[2012] FWA 6755

[2012] FWA 6755

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

Fair Work Act 2009
s.365—Application to deal with contraventions involving dismissal

Mr Hayden Green
v
Hummer Limousines
(C2012/4028)

DEPUTY PRESIDENT SMITH MELBOURNE, 9 AUGUST 2012

Applicant found to be an employee; applicant dismissed.

[1] The following decision, now edited, was issued during proceedings conducted on 3 August 2012.

[2] This is an application by Mr Hayden Green, made pursuant to s.365 of the Fair Work Act 2009. Mr Green, whilst having not heard that he was being dismissed from his employment, has not received any work since 7 January 2012.

[3] The employer, Hummer Limousines Pty Limited argues that Mr Green is a contractor and is not an employee of the business. Mr Kantonis argues that a verbal agreement was reached that Mr Green would be a contractor. He draws attention to the fact that Mr Green provided an ABN and that Mr Green was required to register as a sole trader.

[4] It is also submitted that there was no tax taken out of the payments made to him. It is submitted by Mr Kantonis that Mr Green was free to accept or not accept work as he chose.

[5] Mr Green argues that he was an employee and that he was unable to refuse to accept work and that he did not have any further work during the period in which he worked for Hummer Limousines Pty Limited.

[6] I note that Mr Green drove the vehicle owned by Hummer Limousines Pty Limited.

[7] These are always difficult matters to decide as to whether or not a person is an employee or an independent contractor. In Hollis v Vabu Pty Ltd [[2001] HCA 44], the High Court considered this question and arrived at the conclusion that an ultimate question is whether or not the worker carries on a trade or business on his own behalf and put forward the proposition that if viewed as a practical matter, could it be said that the worker was conducting a business of his or her own.

[8] A Full Bench of this Tribunal in Abdulla v Viewdaze Pty Ltd t/as Malta Travel [(2003) 122 IR 215] examined again this question in some detail and I have reached my decision against the background of that Full Bench decision.

[9] It appears to me that Mr Green was not conducting a business of his own and whilst there are indicia to suggest that he was being treated as a contractor, it nonetheless falls to the Tribunal to decide the true relationship between the parties and it’s not necessarily what they say the relationship is.

[10] I find on balance that Mr Green was an employee which means that there is jurisdiction to sign a certificate to refer the matter to the court. I am satisfied that a dismissal has taken place in that he has not received further work since 7 January 2012. A certificate will issue.

DEPUTY PRESIDENT

Appearances:

H. Green the applicant.

S. Katonis on behalf of Hummer Limousines Pty Ltd.

Hearing details:

2012.
Melbourne:
August, 3.

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