Federal Circuit and Family Court of Australia
(DIVISION 2)
Parker v Rideshare Solutions Pty Ltd [2022] FedCFamC2G 1040
File number(s): BRG 561 of 2021 Judgment of: JUDGE TONKIN Date of judgment: 14 December 2022 Catchwords: INDUSTRIAL LAW – Adverse action – Independent contractor – whether applicant had a workplace right under section 341 (1) (c) (i) – application dismissed Legislation: A New Tax System (Pay As You Go) Act 1999
Fair Work Act 2009 (Cth)
Independent Contractors Act 2006 (Cth)
Workplace Health and Safety Act 2009 (Qld)
Cases cited: Faulkner v Bis Industries Ltd [2012] FMCA 592
Parker v HG Innovations & Ors [2019] FCA 1291
Parker v HG Innovations & Ors (No 2) [2020] FCA 906
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of last submission/s: 29 November 2022 Date of hearing: 15 November 2022 Place: Brisbane Solicitor for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr Green Solicitor for the Respondent: Shaw McDonald Lawyers ORDERS
BRG 561 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PHILIP PARKER
Applicant
AND: RIDESHARE SOLUTIONS PTY LTD
Respondent
order made by:
JUDGE TONKIN
DATE OF ORDER:
14 DEcember 2022
THE COURT ORDERS THAT:
1.The application filed on 10 December 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Tonkin
INTRODUCTION
On 10 December 2021 the applicant Philip Parker commenced proceedings under the Fair Work Act 2009 (Cth) (“the FW Act”) claiming that the First Respondent Rideshare Solutions Pty Ltd and the Second Respondent HG Industries Pty Ltd took adverse action against the applicant by terminating his contract for a prohibited reason in contravention of sections 340 of the FW Act. The applicant alleged the Third Respondent Michael Gleeson was a person involved in the contravention under subsection 550 (1) of the FW Act. The respondents filed a response on 15 February 2022 opposing the application seeking orders that the application be dismissed. The matter was heard on 15 November 2022. Judgment was reserved.
Relief sough
The applicant sought a declaration that the Respondents contravened section 340 of the FW Act in addition to an order for compensation for loss caused by the contravention in the amount of $230,217.36 in wages plus superannuation and leave entitlements. In addition that a pecuniary penalty be imposed against the Respondents to…
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Details
- Case
- [2022] FedCFamC2G 1040
- Decision Date
CaseChat Overview and Summary
In the matter of Parker v Rideshare Solutions Pty Ltd, the Federal Circuit and Family Court of Australia was called upon to determine whether the applicant, Mr Parker, had a workplace right under the Fair Work Act 2009 (Cth) that allowed him to bring a claim for unfair dismissal and other related relief. The applicant, who was engaged as a finance broker by the respondents, alleged that he had been unfairly dismissed and that various provisions of the Fair Work Act had been breached. The respondents argued that Mr Parker was an independent contractor and not an employee, and therefore not entitled to the protections of the Fair Work Act.
The central legal issue before the court was whether Mr Parker had a workplace right that entitled him to bring a claim for unfair dismissal under the Fair Work Act. This required the court to determine the nature of Mr Parker's engagement with the respondents and whether he was an employee or an independent contractor. The court had to consider the definition of a workplace right under section 341 of the Fair Work Act and whether Mr Parker could assert any entitlement, role, or responsibility under a workplace law or instrument.
The court held that Mr Parker was not an employee of the respondents but rather an independent contractor engaged to provide services as part of a personal services business. The terms of the engagement were clearly outlined in the email correspondence between Mr Parker and Mr Gleeson, the controlling mind of the respondents. The court found that Mr Parker's claims were inconsistent with the evidence and his own admissions. The court concluded that because Mr Parker was not in an employment relationship with the respondents, he did not receive the benefits of the protections in the Fair Work Act for employees. As a result, Mr Parker did not have a workplace right to bring a claim for unfair dismissal or any other relief under the Fair Work Act. The application was dismissed.
The court ordered that the application be summarily dismissed, with no orders as to costs.
The central legal issue before the court was whether Mr Parker had a workplace right that entitled him to bring a claim for unfair dismissal under the Fair Work Act. This required the court to determine the nature of Mr Parker's engagement with the respondents and whether he was an employee or an independent contractor. The court had to consider the definition of a workplace right under section 341 of the Fair Work Act and whether Mr Parker could assert any entitlement, role, or responsibility under a workplace law or instrument.
The court held that Mr Parker was not an employee of the respondents but rather an independent contractor engaged to provide services as part of a personal services business. The terms of the engagement were clearly outlined in the email correspondence between Mr Parker and Mr Gleeson, the controlling mind of the respondents. The court found that Mr Parker's claims were inconsistent with the evidence and his own admissions. The court concluded that because Mr Parker was not in an employment relationship with the respondents, he did not receive the benefits of the protections in the Fair Work Act for employees. As a result, Mr Parker did not have a workplace right to bring a claim for unfair dismissal or any other relief under the Fair Work Act. The application was dismissed.
The court ordered that the application be summarily dismissed, with no orders as to costs.
Orders
Orders of the court
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Background
Background to the litigation
The applicant relied on his application and statement of claim filed on 10 December 2021, his affidavit filed on 19 August 2022 outline of argument filed on 25 October 2022 and written submissions in reply filed 29 November 2022. The respondents relied on a response filed on 15 February 2022, affidavit of Michael Gleeson filed 28 June 2022, outline of argument filed 4 November 2022 and written submissions filed 25 November 2022. Background The applicant was engaged by the Second Respondent HG Innovations Pty Ltd on 24 October 2017 as a car finance broker.[1] [1] Applicant’s affidavit filed 19 August 2022 [1] On 26 April 2018 Mr Parker sent Mr Gleeson an email with a subject heading “Put Monika and Andrew on the books PAYG.”[2] [2] Applicant’s affidavit filed 19 August 2022 [7] E3 On 16 May 2018 Mr Parker sent an email regarding a need for assistance from administrative staff.[3][3] Applicant’s affidavit filed 19 August 2022 [7] E3 On 30 and 31 May 2018 Mr Parker sent a number of emails and text messages to the Respondents regarding incorrect payment of wages to an employee.[4][4] Applicant’s affidavit filed 19 August 2022 [8] E 4 On 31 May 2018 Mr Parker sent an email regarding his workload and his unreasonably long work hours.[5][5] Applicant’s affidavit filed 19 August 2022 [9] E 5 On 31 May 2018 Mr Gleeson terminated Mr Parker’s employment via email.[6][6] Applicant’s affidavit filed 19 August 2022 [10] E 6 On 17 August 2018 Mr Parker commenced proceedings in the Federal Circuit Court alleging the First Respondent (then HG Innovations Pty Ltd), Second Respondent (Alpha Financial Services Pty Ltd) and Third Respondent (then Rideshare Solutions Pty Ltd) breached various provisions of the Fair Work Act and sought declarations and orders arising from his termination of employment with the Respondents. On 11 February 2019 Judge Egan determined that Mr Parker had no reasonable prospects of successfully prosecuting his claim should the matter proceed to trial. The Court summarily dismissed the application and ordered costs against Mr Parker. His Honour said at [9] It is a question of fact in any given situation whether a person is an employee or a contractor. In this case, during the entirety of his period of engagement with the Respondents either made it clear that he was content to be regarded as a contractor or actively promoted himself as an independent contractor. He was damned by his own words in that regard. His claims to the contrary are a contrivance. His whole engagement was in the nature of the provision by him of services as part of a personal services business. On 25 February 2019 Mr Parker filed an application for leave to appeal. On 16 August 2019 Justice Collier granted Mr Parker leave to appeal[7] satisfied that he had a reasonably arguable case. [7] Parker v HG Innovations & Ors [2019] FCA 1291 at [19] – [32] On 11 March 2020 Justice Collier heard the appeal and on 30 June 2020[8] ordered that the appeal be allowed, the decision of Judge Egan on 11 February 2019 be set aside and the matter remitted to the Federal Circuit Court for hearing and determination. Her Honour concluded that the trial judge “failed to give proper consideration to the applicant’s evidence [40] and failed to consider section 570 of the FW Act in awarding costs” [47].[8] Parker v HG Innovations & Ors (No 2) [2020] FCA 906
Evidence
Evidence Before The Court
No application was made by the respondents for Mr Parker’s application to be summarily dismissed. In those circumstances Mr Parker’s application was heard on the basis that he asserted as an independent contractor he was entitled to the relief claimed.Evidence When cross examined by Counsel for the respondents Mr Parker agreed he had previously commenced proceedings against the respondents arguing that he was an employee and had failed in those proceedings. When asked in cross examination whether he now claimed he was engaged as an independent contractor because of the decision of Justice Logan he denied that and said he had changed his view on “reflection.”[10] Of note in these proceedings each of the parties relied on a series of emails considered by both Judge Vasta and Justice Logan[11]. No argument was raised by the respondents that the applicant should be estopped from bringing the current application. [10] Transcript 15 November 2022 p.5[11] Justice Logan referred to the emails in his judgment at [17] to [61] With respect to his initial engagement Mr Parker agreed he spoke with Mr Gleeson before being engaged and Mr Gleeson sent him an email dated 11 October 2017 where they discussed Mr Parker becoming involved in the respondents business. He agreed he received the email dated 21 October 2017[12] which he accepted outlined the nature of the parties proposed business enterprise and he commenced employment after that on 24 October 2017. [12] Affidavit of Mr Gleeson MG2 Mr Gleeson confirmed that he forwarded Mr Parker the email dated 21 October 2017 regarding matters they had discussed “and agreed upon”[13] namely that he would be paid a retainer of $1000 per week and receive commission dependent on the type of work he introduced. The email sets out as follows:This is an overview of the Rideshare Rental offering on Uber marketplace currently. It was designed around the ‘drivemycar’ offering and we have been outsourcing this part of the business to them. I would like to relook at this with you and come up with a better solution for us that we handle internally with our cars and effectively start our rental business from scratch again. (Audis and the larger fleet).I will need a more robust system and eventually a ‘fleet manager’ to do the daily handovers and management but this is my next project that I envisage you help set up whilst it’s a bit slow when you start up.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 Rental 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) and other opportunities to be discussedI 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.[14][13] Mr Gleeson’s affidavit filed 28 June 2022 MG2[14] Mr Gleeson’s affidavit filed 28 June 2022 [3] MG2
Decision
Reasons for decision
He concluded that because the applicant was not in an employment relationship with the respondent he did not ultimately receive the benefits of the protections in the FW Act for employees. Finding that the applicant was not able to demonstrate that he had a claim under the provisions of the FW Act that amounted to an arguable case his application was summarily dismissed.Conclusion The respondents company Rideshare Solutions is a subsidiary of HG Innovations the respondents holding and operating company. Mr Gleeson was the controlling mind of the respondents. The business conducted by the group of companies hired motor vehicles to owners and operators of Uber a business providing personal transport. Within the group Rideshare Solutions provided the hire vehicles while Alpha Financial Services provided finance to the Uber operator customers to enable the hiring. Mr Parker was engaged as a “finance broker/contractor.” His engagement came about following Mr Parker expressing an interest in the respondents business. The nature of the engagement between the respondents and Mr Parker is set out in the email dated 21 October 2017. Mr Parker claims he has a workplace right under the FW Act. A workplace right is defined in section 341 as having an entitlement, role or responsibility under a workplace law, a workplace instrument or an order made by an industrial body, being able to initiate or participate in a process or proceedings under a workplace law or instrument or being able to make a complaint or inquiry to a person/body with capacity to seek compliance with a workplace law or instrument. A workplace instrument is defined in section 12 of the FW Act to mean an instrument that is made under or recognised by a workplace law and that concerns the relationship between employers and employees. Mr Parker was not the respondents’ employee. A workplace law is defined in section 12 of the FW Act to include the Independent Contractors Act 2006 (Cth). Mr Parker did not assert he was covered under the Independent Contractors Act 2006 nor did he pursue any right to initiate proceedings under the Independent Contractors Act 2006 on the basis that the contract was unfair or otherwise. Mr Parker failed to establish he had a workplace right to make a complaint or inquiry. Nor do I accept he made any complaint or inquiry to Mr Gleeson or any other person regarding the terms of his contract. It is apparent from the email exchanges on 1 and 6 June 2018 that the decision to end the contract was mutual. No adverse action was taken against Mr Parker pursuant to section 340 (1) in terminating the contract between the parties. The application is dismissed.
Ratio Decidendi
Legal Principle Established
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