Parker v HG Innovations Pty Ltd - [2020] FCCA 3093

FEDERAL CIRCUIT COURT OF AUSTRALIA
Parker v HG Innovations Pty Ltd [2020] FCCA 3093

File number(s): BRG 857 of 2018

Judgment of: JUDGE VASTA

Date of judgment: 22 October 2020

Catchwords: INDUSTRIAL LAW – s 341 of Fair Work Act 2009 (Cth) – was the applicant a contractor or an employee – applicant found to be contractor – application dismissed.

Legislation: Fair Work Act 2009 (Cth), s 340

Number of paragraphs: 60

Date of last submission/s: 22 October 2020

Date of hearing: 22 October 2020

Place: Brisbane

The Applicant: Appearing on his own behalf

Counsel for the Respondents: Mr R.D Green

ORDERS

BRG 857 of 2018

BETWEEN:
PHILIP PARKER

Applicant

AND:
HG INNOVATIONS PTY LTD

First Respondent

ALPHA FINANCIAL SERVICES PTY LTD

Second Respondent

RIDESHARE SOLUTIONS PTY LTD

Third Respondent

ORDER MADE BY:

JUDGE VASTA

DATE OF ORDER:

22 OCTOBER 2020

THE COURT ORDERS ON A FINAL BASIS:
1.That the Application filed 17 August 2018 is dismissed.

REASONS FOR JUDGMENT
(Delivered Ex tempore)
JUDGE VASTA

Around 11 October 2017, the Applicant, Philip Parker, contacted Michael Gleeson inquiring about a position of which he had become aware. Mr Gleeson was a director of the three Respondents in this matter; those three Respondents being HG Innovations Pty Ltd, Alpha Financial Services Pty Ltd and Rideshare Solutions Pty Ltd. According to the Applicant, Mr Gleeson explained that he was looking for a “gun finance broker” to join his team in a finance, sales role.
The Applicant said that Mr Gleeson explained that the position will be primarily to handle finance leads from his advertisement on the Uber marketplace for a business called Rideshare Solutions which helped Uber drivers secure automotive finance on vehicles.
After this discussion, Mr Gleeson received an email from the Applicant that attached his resume. On 18 October 2017, the Applicant sent to the Respondents his ABN number. Mr Gleeson said on 21 October 2017, he had a conversation with the Applicant relating to his engagement. He said that they discussed the remuneration package and then he forwarded an email to the Applicant. That email is a very significant document. It is marked as MG2 to the affidavit of Mr Gleeson.
Relevantly, the document says this by Mr Gleeson to the Applicant:
My thought would be to set up a contractor agreement like we do with other brokers on the standard package but with a twist around the Rideshare Solutions/Rentals business.
$1K a week
15% of finance deals you write from our leads
40 % of deals you find and settle yourself
$ figure for rent2own deals you get
$ figure for rental contracts on the road (or % of rental income)
other opportunities to be discussed.
I have potential opportunities from other dealerships that we can discuss for short term money if you need as well and I am about to open Southside MG at Moorooka next week as discussed and am launching a car brokerage from the Springwood site in the next period.
On 23 October 2017, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 3093
Decision Date: 22 October 2020

CaseChat Overview and Summary

In *Parker v HG Innovations Pty Ltd*, the applicant, Mr Parker, brought proceedings against HG Innovations Pty Ltd alleging contravention of section 341 of the *Fair Work Act 2009* (Cth). The central dispute concerned whether Mr Parker was an employee of HG Innovations or an independent contractor.

The court was required to determine whether Mr Parker's relationship with HG Innovations was one of employment, thereby entitling him to the protections afforded by the *Fair Work Act*. This involved an assessment of the nature of the contractual relationship and the practical realities of the work performed.

Judge Vasta found that Mr Parker was engaged as an independent contractor, not an employee. The court applied established legal principles for distinguishing between employees and contractors, considering factors such as the degree of control exercised by the principal, the opportunity for the worker to profit from their own initiative, and the provision of tools and equipment. Based on the evidence, the court concluded that the indicia of an independent contractor relationship were present, and therefore, Mr Parker was not covered by the employment provisions of the *Fair Work Act*.

Consequently, the application filed on 17 August 2018 was dismissed.

Orders

Orders of the court

THE COURT ORDERS ON A FINAL BASIS:

1. That the Application filed 17 August 2018 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRG 857 of 2018
Judgment of:	JUDGE VASTA
Date of judgment:	22 October 2020
Catchwords:	INDUSTRIAL LAW – s 341 of Fair Work Act 2009 (Cth) – was the applicant a contractor or an employee – applicant found to be contractor – application dismissed.
Legislation:	Fair Work Act 2009 (Cth), s 340
Number of paragraphs:	60
Date of last submission/s:	22 October 2020
Date of hearing:	22 October 2020
Place:	Brisbane
The Applicant:	Appearing on his own behalf
Counsel for the Respondents:	Mr R.D Green

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	22 OCTOBER 2020