Ms Georgia Falcke v Kanebridge Media Pty Ltd, Dan Brush, Ben Pellow

[2024] FWC 2077

[2024] FWC 2077

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Georgia Falcke
v

Kanebridge Media Pty Ltd, Dan Brush, Ben Pellow

(C2024/2387)

COMMISSIONER WILSON MELBOURNE, 6 AUGUST 2024

Application to deal with contraventions involving dismissal. Whether dismissed – not an employee – application dismissed.

1. Ms Georgia Falcke worked for Kanebridge Media Pty Ltd for slightly more than 3 years. After being informed on 18 March 2024 her services were no longer required, with the termination taking effect on 22 March 2024[1] she commenced a general protections application in the Fair Work Commission on 12 April 2024.

1. Ms Falcke’s application has been commenced against three respondents: Kanebridage, Mr Dan Brush, Kanebridge’s Chief Executive Officer and Mr Ben Pellow, Kanebridge’s Head of Partnerships. The Respondents object to the continuation of the application on the basis Ms Falcke was not an employee. The Respondents say that instead, Ms Falcke was engaged as an independent contractor.

1. A reference in this decision to “Kanebridge” is a reference to each of the Respondents, unless the context requires otherwise.

1. The matter was the subject of a hearing before me on 6 June 2024, at which Ms Falke, Mr Brush and Mr Pellow each appeared, made submissions and gave evidence.

1. Section 365 of the Fair Work Act 2009 (FW Act) permits application to be made if “a person has been dismissed” and they allege the dismissal was in contravention of Part 3 – 1 of the FW Act.

1. The term “dismissed” is defined in s.12 of the FW Act by reference to s.386, which provides this definition, so far as is relevant:

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.

[(2) and (3) omitted]

1. The statutory definition of “dismissed” refers to termination of a person’s employment. While the term “employment” is not defined, Part 3 – 1 of the FW Act prescribes that the terms “employee and employer have their ordinary meanings”. In short, a person can be “dismissed” for the purposes of the Part, but only if they were employed.

1. For the reasons which are set out below, I find that Ms Falcke has not been dismissed within the meaning of the FW Act.

Engagement

1. Ms Falcke commenced working for Kanebridge in March 2021, becoming responsible for advertising sales in the Australian edition of a luxury brand magazine, the Robb Report.

1. She had earlier, in October 2020, applied for a full-time sales manager position, the title of which was “Advertising Salesperson – Luxury Publishing”. The scope of the advertised position was stated as Kanebridge “looking for an advertising salesperson to drive growth across luxury and property, finance & investment sectors”. Ms Falcke was unsuccessful in the application for that position. Later she was invited to consider an independent contractor arrangement, which she did, entering into a written Services Agreement.

1. The Services Agreement was the subject of short exchanges between the parties over several terms and was agreed and signed by each on 2 March 2021, with its terms to commence on 3 March 2021.

Principles for consideration

1. The nature of the dispute between the parties over whether Ms Falckee was an employee of Kanebridge requires the consideration and application of the principles laid down by the High Court in CFMMEU v Personnel Contracting Pty Ltd[2] (Personnel Contracting). The Full Bench of this Commission in Chambers and O’Brien v Broadway Homes[3] has usefully summarised the approach to be taken in cases such as this;

“[74] The key propositions relevant to this appeal which may be derived from Personnel Contracting are as follows:

(1) When characterising a relationship regulated by a wholly written, comprehensive contract which is not a sham or otherwise ineffective, the question is to be determined solely by reference to the rights and obligations under that contract. It is not permissible to examine or review the performance of the contract or the course of dealings between the parties.

(2) The subsequent conduct of the parties may be considered to ascertain the existence of variation of contractual terms.

(3) The multifactorial approach only has relevance in respect of the required assessment of the terms of the contract.

(4) It is necessary to focus on those aspects of the contractual relationship which bear more directly upon whether the worker’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.  The question is: whether, by the terms of the contract, the worker is contracted to work in the business or enterprise of the purported employer.

(5) Existence of a contractual right to control the activities of the worker (including how, where and when the work is done) is a major signifier of an employment relationship.

(6) The label or characterisation placed on the relationship by the contract is not relevant even as a “tie breaker”, or at least it is not determinative.”

1. The Services Agreement is written as being between “Robb Report Aus NZ Pty Ltd” and “Georgia Falcke My Media Garden”, with that business name being one Ms Falcke had started using several years earlier. Invoices before the Commission referred to the name of the Respondent as “Kanebridge Media Pty Ltd T/as Robb Report AUS NZ Pty Ltd T/a Kanebridge News”.

1. “Georgia Falcke My Media Garden” is referred to in the contract as “the Supplier”.

1. The Services Agreement specifies at some length the services to be provided by the Supplier;

“Expected services

c) Work with the Company to define market positioning and sales strategies for each of its brands: Robb Report ANZ and Kanebridge News.

d) Generate a minimum of [$ omitted] in revenue per quarter within one year of the Commencement Date for Robb Report ANZ across print, digital and events. Kanebridge News revenue targets to be agreed at a future date.

e) Identify, foster and maintain strong relationships with advertising agencies and clients across the Company’s licenced geographical regions.

f) Collaborate with the Company to develop, pitch and convert multi-platform revenue - generating campaigns for clients.

g) Development of all sales documentation including pitch documents, agreements and reports.

h) Represent the Company and its key brands at various meetings, events and functions.

i) Attend weekly internal meetings to report on:

i. Market feedback
ii. Targets (cold, warm, hot)
iii. Up-selling opportunities within current client roster
iv. Product expansion opportunities to grow revenue and/or market share

j) Ad hoc tasks as directed by the Company as and when required.”

1. The body of the Services Agreement enables Kanebridge to specify the times and places for the performance of the consultancy services, with the Supplier then required to expend such time and effort as may be necessary to complete the services. The contract requires the Supplier to attend client meetings, client homes, events, interstate destinations and other areas as directed by Kanebridge.

1. Subcontractors may be used to provide some or all of the designated consultancy services, but only if Kanebridge consents to this in writing. The Services Agreement also limits the Supplier’s capacity to assign, delegate, subcontract, mortgage, charge or otherwise transfer its rights and obligations under the contract, without prior written agreement of Kanebridge.

1. The Services Agreement also explicitly provides that nothing within it constitutes an employment relationship.

1. The Supplier under the contract has an obligation to take out all insurances required by law including workers compensation insurance. There are extensive provisions in respect of Kanebridge’s maintenance of ownership of intellectual property as well as extensive obligations on the part of the Supplier to maintain confidentiality about numerous matters. The Services Agreement also has the Supplier providing warranties and indemnities to Kanebridge.

1. Payment for services rendered under the Services Agreement are at a fixed monthly rate of $4,924.24, excluding GST, per month at the time the contract was entered into. The contract also provides for payment of  a 10% uncapped commission, payable on revenue booked exclusively by Ms Falcke as the Supplier. The commission payment is to be calculated on the net booking value on a cash basis and paid quarterly, but excluding campaign and other expenses which are deducted from the gross booking value, to form the net booking value upon which the commission is payable.

1. The Services Agreement also obliges Ms Falcke to be responsible for GST payments and to provide a monthly tax invoice detailing the remuneration to be paid. The tax invoice must contain certain information to be compliant with the contract. The Services Agreement obliges Kanebridge to make payments to Ms Falcke within 14 days following receipt of a tax invoice.

1. The Services Agreement provides that it may be terminated by Kanebridge, without reason, by providing seven days’ written notice and may be terminated by the Supplier, again without reason, by providing 14 days’ notice. Other provisions apply if the Services Agreement is to be terminated for dishonesty, serious misconduct, or serious neglect of duty.

1. The Services Agreement also specifies that, in the event of termination by Kanebridge, that a payment of assumed fees in lieu of notice may be made during the notice period, with such payment to be at Kanebridge’s discretion. The Services Agreement also contains a force majeure clause, for defined circumstances, which may continue for up to 6 months.

1. Consideration of the Services Agreement as a whole, shows that the relationship between the parties is well-defined and comprehensive.

1. I take account of the fact that the requisite capacities of Ms Falcke as the Supplier to subcontract work or otherwise to not personally undertake the works required by the Services Agreement are constrained by the obligation on her part as the supplier to seek Kanebridge’s written agreement before doing so. On the other hand, there is an explicit right to seek agreement of the principal for subcontracting, etc. The requirement to seek Kanebridge’s agreement is not constrained to the point that it could be found the contract could not function as a contract for services or that it was a sham.

1. The same may be said of the obligations on Ms Falcke, as the Supplier, to attend client meetings, etc. There is no prohibition on the face of the Services Agreement for those duties to be undertaken only by Ms Falcke, other than the obligation to seek agreement for subcontracting or assigning aspects of the work. While the Services Agreement provides for work to be undertaken by Ms Falcke as the supplier, there are no requirements in the document as to the number of hours to be worked for the days upon which those hours must be worked, noting that the contract does permit Kanebridge to specify the times and places for the performance of the consultancy services.

1. There is no evidence before me that would suggest these rights available to Ms Falcke under the Services Agreement were not actually available to her.

1. There is no evidence before the Commission that Kanebridge required a particular number of hours to be delivered to the services each week, or that they be between specified times, although Ms Falke gave oral evidence that she worked 38 hours a week, five days a week and sometimes weekends.[4] This is in contrast to the expectation she had when she commenced the arrangement, when she thought the work would require about three days a week and that she would not have great difficulty achieving the sales performance target and then receiving the agreed sales commission.[5]

1. The evidence in respect of elements of control of Ms Falcke’s work is mixed, with her giving evidence that there were occasions when new work or greater budgets were imposed upon her.[6]

1. There is no evidence before the Commission that would suggest Ms Falcke was in effect contracted work in the business or enterprise of Kanebridge. She was retained to undertake a relatively confined task; namely to obtain advertising for the Respondents’ publication and to do so in such a way as maximised revenue for the publications. She was given the responsibility to develop relationships with potential advertisers as well as to develop and pitch, in collaboration with Kanebridge, other campaign materials, to sell advertising.

1. While Ms Falcke was also expected to represent Kanebridge at various meetings, events and functions, I do not consider that requirement to be in and of itself sufficient to weaken a services contractor arrangement.

1. The payments due to Ms Falcke were to be made upon presentation of an invoice and be subject to GST. That requirement is spelt out within the Services Agreement and there is no contrary evidence about the subsequent conduct of parties being different to the contractual term. While Ms Falcke claims Kanebridge was tardy in its payments to her and she had to complain about the subject, that is an extraneous matter, which does not bear upon determination of the contractual status of Ms Falcke.

1. I also take account of Ms Falcke’s evidence that there were three occasions on which she gave notice of ending the contract, owing to late payment of her invoices.[7] One of those occasions was on 16 October 2023, and is evidenced in the material before me. On that date, Ms Falcke sent an email giving such notice, as well as requesting payment of her outstanding invoices. The email is signed “Georgia Falcke Director / Founder My Media Garden” and includes a graphic logo of “MMG” and a link to a website in the name of her business.

1. Ms Falke’s evidence includes that she is a sole trader with an ABN, but that she does not pay GST herself.[8] She had worked as an independent contractor using the ABN previously, in about 2014.[9] Since that time, she has referred to her contractual clients on her website.[10]

1. I note as well Mr Pellow’s evidence that, at the time of her engagement, Kanebridge had three independent contractors operating and that all three have had their contracts terminated as part of a restructure undertaken by the company.[11]

1. Consideration of the relationship between the parties as a whole leads to the conclusion that it is comprehensively regulated by the written contract in evidence before me. No subsequent conduct of the parties would suggest the contract’s terms have been varied in substance or that it is a sham or otherwise ineffective. The evidence does not suggest Ms Falcke was contracted to work in Kanebridge’s business, but rather was contracted to provide a service to Kanebridge, selling advertising in its publications. While a vital, essential service, provided in close proximity to the Respondents, it was still delivered at sufficient length from the business of Kanebridge.

CONCLUSION

1. On the basis of the above considerations, I am satisfied that the correct description of Ms Falcke’s relationship with Kanebridge is that of independent contractor and that she was not an employee and therefore not dismissed within the meaning of the FW Act.

1. It follows that Ms Falcke’s application is without jurisdiction and that it must be dismissed.

COMMISSIONER

Appearances:

G. Falcke, the Applicant
B. Pellow, for the Respondent

Hearing details:

6 June.
2024.

[1] Transcript, PN 17 – 30.

[2] [2022] HCA 1, 96 ALJR 89, 312 IR 1.

[3] [2022] FWCFB 129.

[4] Transcript, PN 82, 106.

[5] Transcript, PN 60.

[6] Transcript PN 85.

[7] Transcript, PN 126.

[8] Transcript, PN 82.

[9] Transcript, PN 114, 185.

[10] Transcript, PN 185.

[11] Transcript, PN 153.

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