[2019] FWC 45

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Steve Slemint
v
Australian Leisure and Hospitality Group Pty Limited T/A Chardons Hotel
(U2018/6087)

COMMISSIONER HUNT

BRISBANE, 4 JANUARY 2019

Application for an unfair dismissal remedy – jurisdictional objection - whether worker was an employee or independent contractor – totality of relationship that of independent contractor – Applicant not a person protected from unfair dismissal – Application dismissed.

Introduction

[1] On 12 June 2018 Mr Steven Slemint made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from Australian Leisure and Hospitality Group Pty Limited T/A Chardons Hotel (ALH) on 10 June 2018 and that his dismissal was harsh, unjust or unreasonable.

[2] ALH objected to the application on two grounds; that Mr Slemint had not been ‘dismissed’ and that Mr Slemint had not been an employee of ALH. It alleged that Mr Slemint’s engagement with ALH was more properly characterised as that of an independent contractor. ALH submitted that Mr Slemint is not a person protected from unfair dismissal under s.382 of the Fair Work Act 2009 (the Act).

[3] This matter has come before me for determination of the jurisdictional objection, which was heard before me on 17 October 2018. Mr Slemint appeared on his own behalf and gave evidence. ALH was granted leave to be represented by Mr Andrew See of Counsel, pursuant to my earlier decision in Slemint v Australian Leisure and Hospitality Group Pty Limited T/A Chardons Hotel [2018] FWC 5928. Mr Ezra Pyers, Human Resources Business Partner for ALH also appeared for ALH at the hearing.

[4] Mr Slemint did not call any witnesses at the hearing of this matter. The following persons appeared and gave evidence on behalf of ALH:

• Mr Ian Smith, Entertainment Manager, Queensland and New South Wales;

• Mr Benjamin Dyson, Venue Manager, Russel Tavern;

• Ms Emma Reily, Venue Manager, Chardons Hotel.

Evidence of Mr Slemint

[5] Mr Slemint is an audio technician, and he has enjoyed working as an audio technician at pubs and other venues since February 2014. He is 34 years old.

[6] He first commenced as an audio technician by agreeing to perform work for an organisation titled Australian Concert Productions (ACP). ACP requested that Mr Slemint obtain an Australian Business Number (ABN) so that he could contract to ACP, instead of being employed as an employee. He performed work for ACP at the Chardons Corner Hotel (the hotel) in Annerley, a Brisbane metropolitan suburb.

[7] As I understand it, ACP was contracted by ALH to provide audio engineering and lighting services at the hotel when bands played at the hotel in the live entertainment area called the ‘Back Room’. Mr Slemint informed ALH that at various times, ACP had not paid him on time.

[8] In December 2014, Mr Tim Dickson of ALH informed Mr Slemint that ALH was considering purchasing audio and lighting equipment, and asked Mr Slemint if he would work for ALH. Mr Slemint agreed, and assisted Mr Dickson in understanding all of the equipment ALH would need to purchase so that it could take the audio and lighting functions in-house.

[9] On 29 January 2015 the equipment arrived and Mr Slemint began performing work for ALH. Mr Slemint prepared and sent an invoice to ALH dated 3 February 2015. The invoice is made out from ‘[fifth]element’ and Steven R J Slemint, ABN 77 295 934 756. The invoice is number 0000068.

[10] The amount on the invoice is:

(a) 29 January 2015 PA and lighting system install and test $175

(b) 20 January 2015 Live sound technician $175

[11] At the bottom of the invoice it states the following:

“THANK YOU FOR YOUR BUSINESS!

Please forward payment immediately to the following bank account with the invoice number in the payment description [BSB and account]”

[12] Mr Slemint was happy performing the work for ALH, and was particularly pleased when ALH purchased more equipment of a high standard. He states that he had a reasonable expectation of ongoing work.

[13] Mr Slemint’s evidence is that it was necessary to use a computer to operate the lighting system to a professional standard. While the lighting could be used without a computer, it was to a diminished capacity. Mr Slemint’s laptop was purchased by him in 2012, and when he worked for ALH from January 2015, he brought with him his own laptop for the lighting program. His evidence is that he took the laptop home with him each night.

[14] Mr Slemint reminded ALH that it should purchase a computer in the event he was ill, wanted a night off or was otherwise unable to work. On one occasion in July 2016, Mr Slemint required a night off work. He informed Mr Dyson of the recommended computer specifications and said that whoever performed the work could speak to him about it.
[15] It is Mr Slemint’s evidence that while he did offer ALH the use of his laptop, it was only an interim measure, and it was not a requirement. He stated that he was promised that ALH would eventually purchase a suitable computer.

[16] A mixing control surface is the large technical equipment one sees a technician use when live music is played. It has various lights and controls on it. When the mixing control surface was delivered to ALH, the software required on the computer came as part of that package. Accordingly, the software was paid for by ALH. The licensed software was on a USB stick used on Mr Slemint’s laptop and not on any other computer. 1 While others could use the licensed software on the USB stick, it would take a significant amount of time for the programming to occur.

[17] Mr Slemint downloaded the program on to his computer such that the USB stick was not required each time he needed to use the program. 2

Fee Schedule

[18] Mr Slemint issued to ALH a fee schedule outlining the fees charged by him. Each fee schedule has a logo in the top right corner of [fifth]element or [fifth]element.com

[19] The fee schedule from January 2015 includes:

“$180 Standard. Set-up and operate PA system for up to 6 bands. Includes minor ongoing maintenance of equipment.

$20 Live mix additional band

$20 1 hour sound check before doors open.

Fees are negotiable and can be tailored to suit any event.”

[20] The fee schedule from on or around 18 October 2015 includes:

“$200 Standard. Live sound technician: Set-up and operate PA system including monitors and lighting for up to 8 bands (includes minor ongoing maintenance of equipment).

$20 Additional band

$150 Day rate. Install/test/maintain equipment, general labour up to 8 hours.

Fees are negotiable and can be tailored to suit any event.”

[21] The fee schedule from on or around 1 January 2017 includes:

“$200 Standard. Live sound technician: Set-up and operate PA system including monitors and lighting for up to 4 bands / 8 hours (includes minor ongoing maintenance of equipment).

$20 Additional band

$300 Touring. Liaison with management / production crew, configuration of equipment to suit specifications, assist with set-up and soundcheck, live sound and/or lighting technician + stage hand / runner and general assistance as required.

$150 Day rate. Install/test/maintain equipment, general labour up to 8 hours.

Fees are negotiable and can be tailored to suit any event.”

[22] The fee schedule from on or around 1 July 2017 includes:

“$250 Standard. Friday - Sunday

Live sound technician: Set-up and operate PA system including monitors and lighting.

Up to 4 bands / 8 hours.

$200 Special. Monday - Thursday

$350 Touring. Liaison with management / production crew, configuration of equipment to suit specifications, assist with set-up and soundcheck, live sound and/or lighting technician + stage hand / runner and general assistance as required. Up to 10 hours.

$150 Day rate. Install/test/maintain equipment, general labour. Up to 8 hours.

*$25 per additional band/hour.

• Fees include minor ongoing equipment maintenance.

• Bookings are taken 4 weeks in advance, cancellations incur 50% rate or if less than 14 days notice a full fee applies.

• Fees are negotiable and can be tailored to suit any event.”

[23] The fee schedule from on or around 11 February 2018 includes:

“$250 Standard. Friday - Sunday

Live sound technician: Set-up and operate PA system including monitors and lighting.

Up to 4 bands / 8 hours.

$140 Special. Monday - Thursday

Live sound technician: as above.

Up to 2 bands / 4 hours.

$200 Day rate. Install/test/maintain equipment, general labour. Up to 8 hours.

*$25 per additional band/hour.

• Fees include minor ongoing equipment maintenance.

• Bookings are taken 4 weeks in advance, cancellations incur 50% rate or if less than 14 days notice a full fee applies.

• Fees are negotiable and can be tailored to suit any event.”

Equipment

[24] Mr Slemint described the ongoing equipment maintenance referred to in the fee schedules to include cleaning microphones of dried saliva and gunk. He performed minor repair work to equipment. It is his evidence that the cost of repairing equipment was ALH’s, and he made every effort to inform ALH of repairs required, and to keep costs to a minimum.

[25] He agreed that he supplied rolls of gaffer tape and electrical tape and other consumables, and this was reimbursed by ALH. He denied being required to purchase or hire equipment to cater for technical riders, requirements of a band.

Delegation

[26] Mr Slemint has not hired, outsourced or otherwise engaged another person through his ABN to do work in his place. On an occasion where Mr Slemint organised for an alternative audio technician where Mr Slemint had taken other work on, ALH was to pay the audio technician’s invoice directly to the audio technician, not to Mr Slemint. Mr Slemint simply used his contacts to arrange for his suitably qualified friend to engage with ALH. Mr Slemint described it as, “I was able to find somebody to – another business to carry out my role at the respondent’s venue and I arranged everything through the manager, and with his approval only did that occur.” 3

[27] Mr Slemint referred to emails sent by Mr Smith to events people, introducing Mr Slemint as follows:

(a) “…please meet Steve the production manager here at the back room.”;

(b) “…can you please send through updated …..tech rider to Steve (Back Room Production manager)?”;

Control of work

[28] It is Mr Slemint’s evidence that despite how infrequently it was exercised, ALH did reserve the right to control how the work was carried out. On one occasion Mr Slemint was directed to set up some of the audio equipment in an unconventional manner, to which he objected. The equipment set up then allowed for the use of the equipment without an engineer. Mr Slemint sent to Mr Dyson the following email:

“…all the gear from the [band] gig is sitting on the corner of the stage near the green room door ready for collection.

I’ve set up the microphone as you asked. All you need to do is turn it on at the power point directly behind the PA speaker stack and you’re good to go, I’ve also left some instructions taped to the mic stand that should help them get the most from it.

Hopefully it’s good enough for what they want.”

[29] The hours of work were typically consistent, due to the work being performed for live music in a hotel. Mr Slemint stated that he had little control over the times he was required to work.

Uniform

[30] Mr Slemint agrees that he was not required to wear a uniform. He contends that staff were not always required to wear a uniform when working in the Back Room.

Advertising

[31] Mr Slemint has a Facebook account in the name of [fifth]element. He considers it to be a portfolio of experience rather than an advertising platform. He created the Facebook page well before he commenced working for ALH.

Superannuation

[32] Mr Slemint was aggrieved that he was not being paid superannuation. He undertook inquiries on the Australian Taxation Office (ATO) online site and performed an ‘employee/contractor decision tool’, and he was convinced that ALH should be paying superannuation into his fund. He approached Mr Dyson, who said that he would respond to Mr Slemint’s inquiry.

[33] Given the size of ALH, Mr Slemint trusted the responses given that he was not entitled to superannuation, but he was still not entirely convinced, and he continued discussions with the ATO. As time went by, Mr Slemint was certain that he was owed superannuation, and it caused him to further consider the nature of the relationship between the parties.

[34] Mr Slemint continued to make inquiries of Mr Dyson, but he then left the Chardons Corner Hotel to work at another ALH venue. When Ms Reily commenced, Mr Slemint enlivened his inquiry. On 10 May 2018 Mr Slemint sent Ms Reily an email. Ms Reilly responded that day, and Mr Slemint replied on 17 May 2018.

[35] In Mr Slemint’s reply email he stated the following:

“I kinda get the impression no one has actually looked at the tool on the ATO website from my original email. I really suggest you do, no matter how I fill it in it says that I am owed super. It’s an official ATO tool.

You say that you’re employment my business rather than me personally. I get what you mean conceptually but I think maybe what you’re referring to is a Company whereas I am registered as a Sole Trader.

As a Sole Trader I am still able to employ people so it’s actually a moot point as far as I understand. If you fill in the form and choose “company” at the start then things are different but I am definitely not a company.

Please get back to me as soon as you can.

Thanks heaps.”

[36] Mr Slemint relies on s.12(8)(b) of the Superannuation Guarantee (Administration) Act 1992 in asserting that he is entitled, for the purposes of that Act to be classified as an employee, and entitled to the payment of superannuation. The relevant sections are produced below:

“12 Interpretation: employee, employer

(1) Subject to this section, in this Act, employee and employer have their ordinary meaning. However, for the purposes of this Act, subsections (2) to (11):

(a) expand the meaning of those terms; and

(b) make particular provision to avoid doubt as to the status of certain persons.

………………

(3) If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.

………………..

(8) The following are employees for the purposes of this Act:

(a) a person who is paid to perform or present, or to participate in the performance or presentation of, any music, play, dance, entertainment, sport, display or promotional activity or any similar activity involving the exercise of intellectual, artistic, musical, physical or other personal skills is an employee of the person liable to make the payment;

(b) a person who is paid to provide services in connection with an activity referred to in paragraph (a) is an employee of the person liable to make the payment;

(c) a person who is paid to perform services in, or in connection with, the making of any film, tape or disc or of any television or radio broadcast is an employee of the person liable to make the payment.”

Termination

[37] On 25 May 2018 Mr Slemint was issued the following termination notice:

“Good afternoon Steve,

Due to a change of cost structure and the implementation of new drivers to the business, The Backroom and entertainment will be scaled back to touring only from June onwards.

Unfortunately, due to this change in the business and ceasing of entertainment, we will no longer require you as a contractor. You are contracted up till the 10^th June which we will acknowledge and will be the last day required for services.

We have greatly appreciated your time and help with audio in The Backroom and would happily reconsider the agreement if our circumstances change and furthermore, will happily refer your business to others or if we can assist in being a referral for any future clients your business pursues.

If and when you are able, could you please hand over any keys that you have for The Backroom.

Everyone here at Chardons Corner Hotel wish you the best in the future and again sincerely thanks you for your input and services over the growth of entertainment.”

[38] On 11 June 2018 Mr Slemint sent his final invoice for payment, invoice number 0000260. He charged for events between 5 and 9 June 2018 and falling within the notification period above. He further charged a 50% cancellation fee beyond the termination date of 10 June 2018 for events on 14, 15, 16, 21 and 22 June 2018. It is true to say these dates were disputed, but eventually ALH made the payment per the invoice.

[39] Mr Slemint was reimbursed for the purchase of two microphones.

[40] As for the reasons offered by ALH for the termination, Mr Slemint determined that the bands were still touring, and he was of the view that he had been replaced by an ALH employee, Mr Joshua Fuller.

Other work

[41] Mr Slemint was performing audio technician services for bands who wished to use, on occasions, the Back Room. It was a loose arrangement. Mr Slemint’s evidence is that Mr Dyson arranged for the bands to do pre-production rehearsals, and while he originally invoiced the hotel, at Mr Dyson’s direction, he began to invoice the bands directly. 4

[42] The following are text messages between Mr Slemint and Mr Dyson:

(a) 30 October 2017:

Slemint: Hey mate I’ve got these guys again (Between Kings wanting to practice) asking about Wednesday. Just want to double check choir practice is on that day and if so can they do it tomorrow? I’m guessing usual time from about 6pm

Dyson: Choir practice this week, tomorrow ok

Slemint: Cool mate. Lock that in thanks.

(b) 14 November 2017

Slemint: Hey mate I’ve got one of the bands from WizardsFire wanting to come in this Sunday to work some things out with some new gear they have. Same thing as Between Kings do pretty much. Is that all good?

Dyson: All good

Slemint: Awesome! Cheers

Slemint: Hey Ben some guys want to use the room again tomorrow. Not Between Kings but same thing. From 1-5pm. Is that doable? Sorry for crappy notice their guy has been overseas getting engaged etc and forgot to get back to me

PS Merry Xmas!

Dyson: I think we need to start charging room hire for these things. Thoughts? Ps merry Xmas

Slemint: Yeah for sure. You did tell me that’d kick in January so that’s what I’ve been relaying. I never understood why you let the room out for free in the first place tbh

Dyson: I think for these things $100 is pretty fair

Slemint: Yeah alright. So starting now? And if they still want the room are we okay for tomorrow?

Dyson: Yep and yep

Slemint: Righto thinks mate I’ll let you know if they’re still keen

(d) 2 March 2018

Slemint: Hey mate just need that confirmation for the room hire fee please.

Dyson: $200

Slemint: Right and I’m invoicing them instead of you? I thought we were gonna package everything together and just invoice the hotel like normal.

Dyson: No. I can’t. I can’t wear you in my budget more than you already are.

[43] Mr Slemint does other work for the Brisbane Convention & Exhibition Centre, but does so as a casual employee.

Cross-examination

[44] In cross-examination Mr Slemint agreed that he had been employed in various roles since he left school. In those roles he had received wages and been taxed, and had superannuation paid into his fund.

[45] Mr Slemint agreed that when he performed work for ACP it was as a contractor. Taxation deductions were not made by ACP. He invoiced ACP from his own name, with the ABN. It was the first time in his career he had been engaged as a contractor. In earlier roles he had been an employee.

[46] During the hearing it was clear that Mr Slemint had been regularly invoicing ALH, evidenced by the invoice number in the top right corner of each invoice. I directed Mr Slemint to provide evidence, following the hearing, of all other organisations invoiced by Fifth Element Audio other than ALH. The following invoices were disclosed:

DATE	INVOICE NO	CLIENT NAME
24/03/2015	0000076	Bridget Wall
26/05/2015	0000085	Australian Concert Productions PTY LTD
11/06/2015	0000088	Australian Concert Productions PTY LTD
13/07/2015	0000093	Australian Concert Productions PTY LTD
28/09/2015	0000106	Adrian Pagano
11/04/2016	0000135	Australian Concert Productions PTY LTD
28/04/2016	0000138	Musical Soul Productions Inc.
27/01/2017	0000178	Australian Concert Productions PTY LTD
08/05/2017	0000192	Between Kings
22/05/2017	0000195	Between Kings
17/10/2017	0000218	Between Kings
01/11/2017	0000221	Between Kings
15/11/2017	0000224	Between Kings
15/11/2017	0000225	Between Kings
11/12/2017	0000230	Between Kings
28/12/2017	0000233	Valhalore
01/01/2018	0000234	Luna Audio
08/03/2018	0000245	Between Kings
28/05/2018	0000257	Rockstar Productions

[47] Mr Slemint agreed that when he had been making inquiries with ALH managers about his superannuation, he had been asserting that he was a contractor owed superannuation. He conceded that the first time he suggested he was an employee was in the bringing of his application for unfair dismissal. 5

[48] Mr Slemint agreed that at no time had a person from ALH introduced him as an employee of ALH. 6

[49] He further agreed that it is common sense that often the bands, not necessarily hotel management who might decide the time they wished to commence playing. Support acts would play before the main band.

[50] In answering questions from me about deductions claimed by Mr Slemint to the ATO, he stated that he did not claim any deductions for equipment, business registration fees, travel to and from work, or for any other deductions.

Evidence of Mr Smith

[51] Mr Smith is the Entertainment Manager – Queensland and NSW for ALH. He is responsible for the management of live entertainment across 120 venues in Queensland. He considers that he had been working with Mr Slemint through his entity, [Fifth]Element Audio.

[52] Mr Smith provided evidence that Mr Slemint registered a business name of FIFTHELEMENT AUDIO with an ABN on 21 February 2014.

[53] Mr Paul Prout had been the Venue Manager at the Chardons Corner Hotel throughout 2014, and the contractor at the time was Australia Concert Productions. Mr Slemint was working for ACP at the time. To the best of Mr Smith’s knowledge, in January 2015, Mr Slemint, through his entity then began to contract to ALH.

[54] Mr Smith did not have much to do with Mr Slemint at this time, as ALH contracted much of the entertainment coordination to an entity called CONFOS. The contractor, CONFOS, would contact the Venue Manager and Mr Slemint as to upcoming entertainers.

[55] Mr Smith considered that Mr Slemint held himself out to be a contractor by virtue of the following:

(a) ALH was invoiced with reference to the work performed, as opposed to hours worked;

(b) Mr Slemint was free to come and go as he pleased, so long as he supplied the service he charged for;

(d) He was able to engage others to fill in for his services under his business when he was unable to make a performance;

(e) He set his own rates

(f) The business charged cancellation fees when a performance was cancelled at short notice

(g) Mr Slemint was responsible for maintaining and supplying his own equipment (other than the sound system);

(h) He purchased and maintained a laptop that held the software equired to run lighting needed for certain performances

(i) He was not required to wear uniforms, whereas employees are;

(j) He was not required to represent himself as a representative of ALH or the Chardons Corner Hotel;

(k) His main form of communication was email, where he represented himself as a business.

[56] At a point in time, ALH stopped using the services of CONFOS. Mr Smith created a calendar of events and shared the online calendar with Mr Slemint to allow him to indicate his availability for events.

[57] Because Mr Slemint was a preferred supplier, it was assumed that he would be available, except if he said that he was not, or he would subcontract the work. If Mr Slemint did not organise a replacement, then the Venue Manager or Mr Smith would do so.

[58] In late 2017, a decision was made to move towards offering more accommodation facilities. It was considered that live music and accommodation don’t readily mix, and fewer performances would need to be booked. The accommodation was opened on 11 July 2018, and a preference to international and national touring acts was made, as they had more public support than smaller acts.

[59] ALH then made Rockstar Productions a preferred supplier at the venue, as it already was providing services across other ALH venues. Rockstar Productions is a larger organisation than Mr Slemint’s and if there is a reduction in the number of performances at the venue, it can accommodate that.

[60] It is Mr Smith’s evidence that Mr Slemint’s inquiries regarding superannuation had no bearing on the decision to move to Rockstar Production to provide the services at the venue.

Evidence of Mr Dyson

[61] Mr Dyson has worked for ALH for some time, and first began working at the Chardons Corner Hotel on 27 July 2016. He took over the role of Venue Manager from Mr Dickson. During a hand-over, Mr Dickson provided Mr Dyson with Mr Slemint’s name and mobile number, and stated that he was a preferred contractor.

[62] If a group was performing at the venue, CONFOS would contact Mr Slemint to see if he was available. If Mr Slemint was going to provide the services through his entity, detailed arrangements would be made relevant to the performer’s ‘tech rider’ and run sheet. Having regard to the run sheet, Mr Slemint would organise to be at the venue at a suitable time. He was not directed to arrive at a certain time, and did not announce or arrange his arrival with Mr Dyson.

[63] An example of Mr Dyson’s contact with Mr Slemint for the audio technician services is reproduced below from texts between the two men. It follows directly the arrangements made at [42(c)]:

Slemint: Right all go for tomorrow 1-5pm thanks mate

Dyson: No worries

What time are you in today?

Slemint: I was thinking about 3:40-4 Soundcheck is at 5

Dyson: Sweet.

[64] When Mr Slemint sent emails he did so from his business email address, [email protected] His signature block is rather unusual in that it puts some of the items within it in brackets:

Steve Slemint

[mobile number redacted]

fifthelement.audo[at]gmail[dot]com

www[dot]fifthelement.audio

Evidence of Ms Reily

[65] Ms Reily began working for ALH in June 2011 and has worked across many venues and in multiple roles. She commenced working as the Venue Manager at the Chardons Corner Hotel on 9 April 2018.

[66] Ms Reily did a hand-over with Mr Dyson, and Mr Dyson explained to her that Fifth Element Audio is a business that supplies audio engineering services for the Back Room, and Mr Slemint is the owner.

[67] Mr Slemint had keys to the equipment in the Back Room. Contractors did not need to notify anyone when they arrived to set up, and were not required to attend at any specific time. Contractors would only make it known that they were in the location when they needed additional key access to areas that they could not access with the keys in their possession.

[68] Mr Slemint used his own computer and cords for connecting to the fixed sound systems.

[69] At no time during a performance did Ms Reily or any other member of staff provide instructions as to how to do the role, or review the work performed. It is Ms Reily’s knowledge that at the particular venue, and other ALH venues in which she has worked, contractors only take direction from the artists performing at the time.

[70] Whenever Mr Slemint finished the work performed him, he packed up the equipment and left the venue when he was ready. He did not need to record his attendance, and he was not required to be present at the venue after the performance for any period of time.

[71] When the termination notice was issued, Mr Slemint required a cancellation payment for certain performances beyond the termination date due to not having been provided sufficient notice.

[72] A Facebook shout-out from one of the performers declared:

“Thank you to our venue, AV, photographers and sponsors! Without you we wouldn’t have a show – Chardons Corner Hotel, @ [fifth] element sound, Greg Elkenhans, Rebecca Bourkie thank you for providing us with a venue, absolutely amazing sound/lighting and great photos!”

Legislation

[73] Section 382 of the Act sets out when a person is protected from unfair dismissal, and states:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[74] Section 386 of the Act provides the meaning of ‘dismissed’, and states:

“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; …

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season…

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[75] To be protected from unfair dismissal, a person must have been ‘employed’ by a particular employer. That is reflected by the definition of ‘dismissed’ in s.386 of the Act, which requires that a person’s ‘employment’ is ended at their employer’s initiative. The considerations relevant to the Superannuation Guarantee (Administration) Act 1992 are different to the considerations I must make pursuant to the Fair Work Act 2009.

Submissions of Mr Slemint

[76] Mr Slemint submitted that if he had been properly employed by ALH, he would have retained the right to conduct services outside of his employment with ALH.

[77] Mr Slemint stated that the early commencement of the relationship is important to consider, and he was ‘completely reliant on ALH as an employer’. He considers that he should have been employed as an employee from the outset.

[78] Mr Slemint otherwise relies on his evidence and earlier submissions to the Commission.

Submissions of ALH

[79] ALH submitted that Mr Slemint had all of the following characteristics of a contractor:

(a) exercised the control of a contractor;

(b) was called a contractor;

(d) was paid as a contractor;

(e) would organise replacement contractors to provide services when he could not;

(f) supplied a laptop to ensure the lighting and sound equipment worked;

(g) invoiced bands for pre-production services as a contractor;

(h) charged cancellation fees as a contractor;

(i) while providing services to ALH, he was working for various other clients at a range of venues and providing a range of services.

[80] It is contended that Mr Slemint knew he was a contractor and not an employee, and it was a choice made by him to provide services as an independent contractor and not as an employee. ALH submitted that Mr Slemint was aware of the benefits and freedoms of running his own business and the limitations that it brought.

[81] Mr Slemint was providing services to other organisations or groups during the relevant period of time. He issued an invoice to Rockstar Productions for services rendered; Rockstar Productions would ultimately replace Mr Slemint in providing services to the respondent.

[82] ALH submitted that Mr Slemint changed his fee schedule when it suited him. 7

[83] ALH encouraged the Commission to have regard to the Full Bench decision in Jian Shen Cai trading as French Accent v Michael Anthony Do Rozario 8(the French Accent decision). The Full Bench in French Accent set out relevant indicia to determine the characterisation of a worker, whether they be an independent contractor or employee. ALH’s submission in respect of each indicia is detailed below.

Whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf?

[84] ALH submitted that it is evident that Mr Slemint, through Fifth Element, or Fifth Element Audio has provided services to other organisations during the relevant period of time.

The terms and terminology of the contract

[85] It is submitted that Mr Slemint determined the schedule of fees himself, and he charged ALH, and other users of his services based on the schedule of fees. It was Mr Slemint who adjusted the fees and included with them, charges for cancellation, as well as for equipment maintenance. He did so based on his own formula.

Whether the putative employer exercises, or as the right to exercise, control over the manner in which work is performed, place of work, hours of work and the like

[86] ALH submitted that Mr Slemint conceded that his schedule of work was determined by the bands and entertainers that performed, and not from ALH as such. The promotor or events coordinator would also have influence over the time the work was performed. It was submitted that Mr Smith’s evidence accorded with Mr Slemint’s on this issue.

Whether the applicant performed work for others (or as a genuine and practical entitlement to do so)

[87] It was submitted that Mr Slemint has a presence on LinkedIn, together with a separate and dedicated Facebook page for his business. Mr Slemint described his Fifth Element Facebook page as a portfolio, as opposed to a marketing or advertising page. It is submitted that the invoices sent by Mr Slemint look like advertising flyers.

Whether the applicant provides and maintains significant tools or equipment

[88] ALH submitted that Mr Slemint was required to use his own laptop computer and iPad in order to work with the lighting and sound equipment. Further, he was always in possession of a bag or satchel which contained other items, which ALH understands to include gaffer tape, electrical tape, screwdrivers and the like.

[89] It is ALH’s submission that it never agreed to purchase a laptop, and Mr Slemint was informed of such.

Whether the work can be delegated or subcontracted

[90] Mr Dyson gave evidence that on two occasions Mr Slemint had organised somebody to replace him.

Whether the respondent had the right to suspend or dismiss the person engaged

[91] It is submitted that ALH did not have a right to suspend or dismiss Mr Slemint. Mr Slemint was given an offer to provide services. If he didn’t want to, he would not. If the services were cancelled by ALH, Mr Slemint would charge a cancellation fee.

Whether the respondent presents the applicant to the world at large as an emanation of the business

[92] It is submitted that at no time did ALH present Mr Slemint as an emanation of ALH. When Mr Slemint was asked, “….was there any occasion when someone actually in person introduced you as an employee of ALH?”, Mr Slemint responded, “Probably not.” 9

Whether income tax is deducted from remuneration paid to the applicant

[93] It is submitted that Mr Slemint has produced records that show he was a self-employed person. No income tax was deducted from the amount paid to him by ALH.

Whether the applicant is remunerated by periodic wage or salary or by reference to completion of tasks

[94] Mr Slemint did not provide time sheets, nor did he provide details as to the hours worked by him. The invoices issued were issued when Mr Slemint wished to be paid.

Whether the applicant was provided with paid holidays or sick leave

[95] It is submitted that Mr Slemint had been employed as an employee at other times throughout his working life, and by not pursuing payments for holiday pay and the like, he knew that he was not an employee of ALH.

Whether the work involves a profession, trade or distinct calling on the part of the person engaged

[96] Mr Slemint is a qualified audio engineer. ALH does not provide these services and is required to insource the services.

Whether the applicant creates goodwill or saleable assets in the course of his or her work

[97] It is submitted that Mr Slemint’s Facebook page is an attempt to create goodwill.

Whether the worker spends a significant portion of his remuneration on business expenses

[98] Mr Slemint’s fee schedule indicated the services included ongoing equipment maintenance. He also

Consideration

[99] In considering the essential question of whether a particular entity employs an individual, the Commission’s approach, following the Courts on the matter, is to apply a multifactorial approach to determination of whether a person is subject to a contract of employment or contract of services. French Accent explicitly continued earlier reasoning on such determinations with its reference to Abdalla v Viewdaze Pty Ltd 10:

“[18] We endorse the proposition in sub-paragraph (1) of the Abdalla summary, based on the High Court authorities, that:

“... the ultimate question will always be whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf 11 : that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own12. This question is answered by considering the terms of the contract and the totality of the relationship13.””

[100] In French Accent, the Full Bench stated the following:

[30] The general law approach to distinguishing between employees and independent contractors may be summarised as follows:

(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.

(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.

(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract. (references omitted).

[101] It is recognised that Mr Slemint worked as an audio technician for a period of nearly 3.5 years for ALH. It is not an insignificant amount of time.

[102] It is understandable that in light of his inquiries regarding superannuation payable to him, he began to turn his mind to the nature of the relationship and question whether he properly should have been employed as an employee, as opposed to engaged as a contractor.

[103] His evidence is that at no time prior to bringing a claim for unfair dismissal did he assert that he ought to be properly stated to be an employee of ALH. I confirm that I have afforded some weight to that concession, however it does not detract from the objective assessment the Commission must undertake in determining the relationship when considering all of the factors between the parties.

[104] I determine that it is appropriate to consider each of the indicia in the French Accent decision having regard to the evidence and submissions made to the Commission. I note that the indicia proposed by ALH to be considered does not match exactly that contained within French Accent.

Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like

[105] Having heard evidence relevant to how the various bands would determine with ALH when they wished to play, and over how many hours, I conclude that ALH did not exercise control over the manner in which the work is performed or the hours of work.

[106] Given the work was performed in the Back Room, it was always at a single place of work.

[107] I determine that ALH did have the right to exercise control over the hours of work, demonstrated at [28], but by nature of the relationship Mr Slemint had with the various Events Coordinators (whether in-house or not), Mr Slemint decided what time he thought it sensible to begin work.

[108] I consider this to be a neutral consideration.

Whether the worker performs work for others (or has a genuine and practical entitlement to do so)

[109] Mr Slemint performed work and invoiced others for the services provided by him. He did so to those organisations or bands as an independent contractor.

[110] I consider this to favour the finding of an independent contractor relationship.

Whether the worker has a separate place of work and or advertises his or her services to the world at large

[111] Mr Slemint could and did perform audio technician work elsewhere, but naturally, required expensive equipment to do so. Further, the work needs to be performed at venues.

[112] Mr Slemint’s evidence is that he assisted start-up groups when he was learning his profession, and he didn’t charge them.

[113] I consider the Facebook page of Fifth Element to be both a portfolio of work, and an advertising forum. This is true because of ratings given by users of the services provided by Fifth Element, Mr Slemint.

[114] I consider this to favour the finding of an independent contractor relationship.

Whether the worker provides and maintains significant tools or equipment

[115] I am satisfied that Mr Slemint provided his laptop for use in the work, together with consumable items such as gaffer tape and electrical tape. While he requested ALH purchase its own laptop, it did not do so. Mr Slemint continued to use his own laptop to allow the software to be operated.

[116] I do not consider the consumables to constitute significant equipment, however an employee typically does not go to the expense of purchasing these items for their employer’s use. Whenever ALH became aware that its employees had used a material amount of Mr Slemint’s consumable items, Mr Slemint was encouraged to purchase more and charge for it.

[117] On the issue of the provision of the laptop, I consider this to favour the finding of an independent contractor relationship. On the issue of the consumables supplied, I do not consider them to constitute significant equipment, and there I consider this to favour the finding of an employment relationship.

Whether the work can be delegated or subcontracted

[118] On the rare occasions where Mr Slemint was not available to work, he organised for somebody to replace him. ALH’s evidence is that it thought Mr Slemint provided the replacement is plainly incorrect, as it would have been required to pay the individuals directly.

[119] I accept that Mr Slemint used his contacts to obtain a replacement person when he was unavailable, however he did not delegate the performance of the work whilst still invoicing ALH.

[120] I consider this to favour the finding of an employment relationship.

Whether the putative employer has the right to suspend or dismiss the person engaged

[121] Ultimately ALH no longer required the work to be performed by Mr Slemint. It says it did so exercising a right to no longer use the services. Mr Slemint states it was he who was dismissed.

[122] In a sole trader scenario, where Mr Slemint was performing the work, if the services were no longer required by ALH, it was Mr Slemint who was informed.

[123] I consider this to favour the finding of an employment relationship.

Whether the putative employer presents the worker to the world at large as an emanation of the business

[124] While it is true that Mr Slemint was introduced to people he would be working with as the Production Manager, and on one occasion as an in-house production manager, I am not satisfied that representations were made that he was an ALH employee. Mr Slemint conceded this in cross-examination.

[125] I consider this to favour the finding of an independent contractor relationship.

Whether income tax is deducted from remuneration paid to the worker

[126] No income tax was deduction from remuneration paid to Mr Slemint. He was in charge of his own tax affairs.

[127] Mr Slemint provided evidence that he performed self-assessments on his taxation. It is not clear whether he claimed any deductions, however I accept his evidence that he did not claim deductions for some items where he might have been entitled to.

[128] I consider this to favour the finding of an independent contractor relationship.

Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks

[129] Mr Slemint set his own fee schedule and increased rates when he saw fit. This was agreed to by ALH. He charged for the blocks of hours of work. Presumably he charged for blocks of hours of work whether he was required for all of those hours or not.

[130] Mr Slemint was free to determine when he should leave the premises after each performance. He did not seek, nor require permission to leave. He performed the duties, packed up, and took his laptop with him.

[131] I consider this to favour the finding of an independent contractor relationship.

Whether the worker is provided with paid holidays or sick leave

[132] No paid leave or sick leave was made available to Mr Slemint.

[133] I consider this to be a neutral consideration.

Whether the work involves a profession, trade or distinct calling on the part of the person engaged

[134] Mr Slemint spent some years training to be an audio technician. He did this at his own cost, and is a skilled person. He is not an unskilled person with little bargaining power in the relationship.

[135] I consider this to favour the finding of an independent contractor relationship.

Whether the worker creates goodwill or saleable assets in the course of his or her work

[136] While I accept that the Facebook profile comprises some advertising to the world at large, I do not consider that the enterprise generates goodwill. The work is due to Mr Slemint’s skills, and he would not be in a position to attempt to see Fifth Element. He is Fifth Element.

[137] I consider this to favour the finding of an employment relationship.

Whether the worker spends a significant portion of his remuneration on business expenses

[138] I am satisfied that Mr Slemint spent an immaterial amount of his remuneration on business expenses.

[139] I consider this to favour the finding of an employment relationship.

Other issues

[140] On another indicia raised by ALH, the terms and terminology of the contract, the written contract as such is the fee schedule regularly issued by Fifth Element to ALH. Having reviewed the terms, including the statement that cancellation fees will be charged, and the professional look of the invoice, I am satisfied that Mr Slemint held himself to be a contractor to ALH.

[141] I do not agree with ALH that the invoice represents an advertising flyer.

[142] Employees do not have the ability to inform their employer what their rate of remuneration will be, and alter it at will. Further, employees do not have the ability to inform their employer that they will charge them if they are not required to attend at work for any reason if a booking has been made within the next 14 days.

[143] Further, the invoice states the words, “THANK YOU FOR YOUR BUSINESS!”. This is highly suggestive of a contractual relationship, and not an employment relationship.

[144] I note at [35], in pursuing superannuation payments from ALH, Mr Slemint referred to himself as a sole trader. That was his view at the time, given he was invoicing ALH. He was also representing himself to the ATO as a sole trader. He was not charging GST as he was not registered for GST.

[145] I am also influenced by the fact that Mr Slemint corresponded with ALH through his Fifth Element email address, noting his Fifth Element web page.

Superannuation

[146] In correspondence to the parties on 13 September 2018, before the hearing of this matter, I provided a preliminary view on whether superannuation is payable to Mr Slemint, even if he is found to be a contractor and not an employee. This is so because the entity is not incorporated. The correspondence is below:

“…..On the issue of whether superannuation is payable to an unincorporated contractor, the Commissioner notes the following information from the Australian Taxation Office website:

Commissioner advises that she holds the preliminary view that if Mr Slemint is found to be a sole trader contractor, and if it is agreed that the performance of the services was predominantly for labour, he would be entitled to have superannuation remitted to his superannuation account in accordance with the Superannuation Guarantee Legislation. If there is a finding that Mr Slemint provided services as a contractor, the present application for an unfair dismissal remedy would necessarily be dismissed. The parties are encouraged to give consideration to this potential finding and consider settlement of all matters between them….”

[147] During the hearing ALH firmly resisted the Commission’s views on this matter, declaring the best advice it had received was that Mr Slemint was not entitled to superannuation as a sole-trader contractor. I am pleased to learn in the closing submissions in reply dated 13 November 2018 that ALH has further liaised with the ATO, and acknowledges that Mr Slemint is entitled to be paid superannuation in accordance with s.12 of the Superannuation Guarantee (Administration) Act 1992, and the payment will be promptly made.

Conclusion

[148] I have considered the matters set out above and, on balance, I am satisfied that Mr Slemint was engaged by the ALH as an independent contractor and not as an employee. It is not an examination of how many items I consider favour an independent contractor relationship over an employment relationship. I confirm that I have considered the totality of the relationship.

[149] Accordingly is it not necessary for me to consider whether Mr Slemint was dismissed by ALH, and if so, whether that dismissal was harsh, unjust or unreasonable.

[150] Mr Slemint is not a person protected from unfair dismissal and is unable to pursue his application. An order dismissing the application will be issued with this decision.

COMMISSIONER

Appearances:

Mr Slemint, S – Applicant;

Mr See, AJ – Counsel for the Respondent;

Mr Pyers, E – for the Respondent

Hearing details:

Brisbane, 17 October 2018

Final written submissions:

Applicant - 9 November 2018;

Respondent – 13 November 2018

Printed by authority of the Commonwealth Government Printer

1 PN280.

2 PN304.

3 PN53.

4 PN196.

5 PN222.

6 PN320.

7 PN422.

8 [2011] FWAFB 8307 at [30].

9 PN320.

10 (2003) 122 IR 215, [34].

11 Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 217 per Windeyer J approved by the majority in Hollis v Vabu (2001) 207 CLR 21 at para [40]; see also Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Brodribb) at 37.3 per Wilson and Dawson JJ.

12 Hollis v Vabu (2001) 207 CLR 21 at [47] and [58].

13 Brodribb esp Mason J at 29.3.

Mr Steve Slemint v Australian Leisure and Hospitality Group Pty Limited T/A Chardons Hotel

[2019] FWC 45

4 JANUARY 2019

DECISION

Introduction

Evidence of Mr Slemint

Evidence of Mr Smith

Evidence of Mr Dyson

Evidence of Ms Reily

Legislation

Submissions of Mr Slemint

Submissions of ALH

Consideration

Conclusion