Palframan v Cultural Infusion (Int) Pty Ltd

[2018] FCCA 2225

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALFRAMAN v CULTURAL INFUSION (INT) PTY LTD [2018] FCCA 2225

Catchwords:
INDUSTRIAL LAW – Small claim – whether relationship between professional actor and sponsor of ANZAC production is that of independent contractor and principal or employee and employer – parties in relationship of independent contractor and principal.

Legislation:

Fair Work Act 2009, s.357

Cases cited:

Jensen v Cultural Infusion Pty Ltd [2018] FCCA 2137

Applicant: CHRIS PALFRAMAN

Respondent: CULTURAL INFUSION (INT) PTY LTD

File Number: MLG 2696 of 2017

Judgment of: Judge A Kelly

Hearing date: 18 June 2018

Date of Last Submission: 19 June 2018

Delivered at: Melbourne

Delivered on: 15 August 2018

REPRESENTATION

Representative for the Applicant:

Ms Mbugua

Media, Entertainment And Arts Alliance

Representative for the Respondent:

Mr Hamilton

Live Performance Australia

Representative for the Fair Work Ombudsman: Mr Finnegan

THE COURT ORDERS AND DECLARES

1. Declare that at all material times the applicant and respondent stood in the relationship of independent contractor and principal and not in the relationship of employee and employer.

2. By 4.00pm on 22 August 2018, the parties files and serve a submission (not exceeding 2 pages), together with short minutes as to the further orders or directions that are appropriate to be made upon the determination of the proceedings.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2696 of 2017

CHRIS PALFRAMAN

Applicant

And

CULTURAL INFUSION (INT) PTY LTD

Respondent

REASONS FOR JUDGMENT

1. The applicant, Mr Palframan, was one of three applicants who brought proceedings under the Fair Work Act 2009 (Cth) claiming relief including for alleged contraventions of the Live Performance Award 2010 and s 357 of that Act which prohibits an employer from misrepresenting to an employee that the employee performs or will perform their work as an independent contractor.

2. Each of the applicants is a professional actor who accepted engagement by the respondent, Cultural Infusion (Int) Pty Ltd (Cultural Infusion). 

3. Each of the actors had signed a contract that was largely in common form.

4. The actors’ claims arose out of their engagement by Cultural Infusion for them to participate in a series of performances called the ANZAC Centenary Roadshow: Victoria’s Journey of Remembrance (ANZAC Roadshow).  The ANZAC Roadshow was underwritten by the Victorian Department of Premier and Cabinet and performed throughout Victoria at venues such as the Returned Services League and various schools. 

5. On 18-19 June 2018, a hearing was conducted upon a preliminary issue whether the applicants were employees of, or stood in the relation of independent contractors to, Cultural Infusion.

6. In Jensen v Cultural Infusion Pty Ltd [2018] FCCA 2137, I have published my reasons for concluding that the actors were at no material times employees of, but provided their services as independent contractors to, Cultural Infusion.  Those reasons for judgement contain my description of the relevant background, procedural history, findings of fact, and my analysis of the applicable legal principles.  Those reasons also provide my application of those principles to the facts as I have found them.

7. The reasons for judgment in Jensen v Cultural Infusion Pty Ltd [2018] FCCA 2137 are incorporated in and provide my reasons for judgment in this proceeding also.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 15 August 2018