Parker v Rideshare Solutions Pty Ltd
[2022] FedCFamC2G 1040
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: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1
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
Parker v HG Innovations & Ors [2021] FCA 1051
ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2
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 be paid to the applicant and compensation for hurt and humiliation.
Documents relied on
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
On 22 October 2020 Judge Vasta heard the application filed by Mr Parker on 17 August 2018. Mr Parker claimed that he was an employee of the Respondents. Judge Vasta observed at [21] that although Mr Parker accepted that he was engaged under contract he claimed the contract was a sham. Judge Vasta concluded at [58] that Mr Parker failed to prove he was an employee and the Respondents his employer and dismissed the application.
Mr Parker appealed Judge Vasta’s decision with the appeal heard by Justice Logan on 16 August 2021. His Honour dismissed the appeal on 31 August 2021 delivering judgment in which he said:
[9] … the trial (before Judge Vasta) proceeded on the basis originally pleaded in the claim which was that Mr Parker was an employee. Read in isolation one might be forgiven for thinking as did Mr Parker but not the learned primary judge in his exchanges with him at trial that an independent contractor could complain just as much as an employee in respect of adverse action constituted by termination. But the scope for complaint is limited by the definition of “workplace right” in section 341 of the FW Act. The workplace right asserted by Mr Parker was one in relation to his alleged employment. He could only rely upon that to ground an adverse action claim alleging a contravention of the protection for which section 340 of the FW Act provides based on that asserted workplace right, if he were an employee: see section 341 (1) (c) (ii) of the FW Act.
Justice Logan[9] found no error established on appeal.
[9] Parker v HG Innovations & Ors [2021] FCA 1051
Subsequent to Justice Logan’s decision the High Court has delivered two decisions regarding the nature of the employment relationship in ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 Justices Kiefel CJ, Keane and Edelman JJ and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (“CFMEU v Personnel Contracting”). Mr Parker did not appeal Justice Logan’s decision and this Court has no jurisdiction to review that decision.
Pleadings
On 10 December 2021 Mr Parker commenced the current proceedings. In his Statement of Claim filed on 10 December 2021 he contends that he was engaged by HG Innovations as an independent contractor “on an ongoing basis as a car finance broker for its business Alpha Financial Services.” The Respondents do not dispute that Mr Parker was engaged as a contractor or “finance broker.”
At clauses 2 to 4 of the Statement of Claim filed on 10 December 2021 Mr Parker alleged that “by November 2017 it became clear that Mr Parker was not to act as a broker but rather a full time manager of HG Innovations rental car business Rideshare Solutions.” He further claimed that a new relationship of employment was created and the Respondents continued to pay Mr Parker “recklessly” on the basis of being a contractor for services despite there being no contract or invoices provided or agreed by Mr Parker. He alleged that he entered into the new relationship after 3 December 2017 which was characterised by the Respondents exercising a high level of control over his work. Mr Parker said he worked from the Respondent’s premises during set employment hours, was not required to supply tools or equipment for the new role, bore no risk, worked exclusively under the branding and calling of the Respondents during those hours and the Respondents were “pay masters” of Mr Parker.
Insofar as Mr Parker seeks to argue for a relationship of employer employee after 3 December 2017 that issue has been heard and determined by a superior Court and I consider myself bound by that decision. Justice Logan said at [77]:
In the present case Messrs Parker and Gleeson the latter most likely on behalf of Rideshare Solutions but certainly one of the Respondents made a contract which entailed amongst other things particular revenue law rights and obligations as a term. The “label” which they gave to Mr Parker under that contract was “contractor.” The revenue law rights and obligations they chose were consistent with that label. They dealt with each other at arm’s length. The contract was not a sham. The parties adhered to the contract which they had struck for its duration. The learned primary judge found that the revenue law rights and obligations which they chose were an indicator of the character of the relationship governed by the contract. His conclusion was that Mr Parker was not an employee. Such a conclusion is for the reasons given above one supported by authority. It is a view one could permissibly take of the character of the relationship. Mr Parker has not demonstrated any error.
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 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.[14]
[13] Mr Gleeson’s affidavit filed 28 June 2022 MG2
[14] Mr Gleeson’s affidavit filed 28 June 2022 [3] MG2
On 23 October 2017 Mr Parker forwarded Mr Gleeson an email[15] acknowledging the email stating he wanted to reply after the weekend. He said:
I’m excited by the opportunity and challenge of Innovation in this sector. I have a few ideas to run by you and think we can definitely grow Rideshare Solutions into ‘great a profit centre.’ I’m ok with the $1000 retainer is this excluding GST? When would you want to start? Would be great if I could see a contract and first pay this week if possible. I did get interviewed of Friday by Michael from Westpoint and I think we hit it off. He was going to reference me and come back to me. Ideally as I need to earn some cash in the short term if I come on board with you maybe you could offer me to locum for him occasionally as I think he is just short staffed for only a bit. And this would substitute my commission short fall for a bit while we get Rideshare Solutions booming! Give me a call when are you free this morning.
[15] Mr Gleeson’s affidavit filed 28 June 2022 [4] MG3
Mr Parker commenced working for the Respondents on 24 October 2017 and on the same day Mr Gleeson forwarded an email to Mr Parker enclosing a copy of a Standard Finance Broker’s Agreement with Alpha Financial Services Pty Ltd.[16]
[16] Mr Gleeson’s affidavit filed 28 June 2022 [5] MG4
On 26 October 2017 Mr Parker sent Mr Gleeson an email advising he was operating as a sole trader under the name of Philip Parker providing his ABN. He received remuneration from Alpha390 Finance” on 3, 10, 18 and 25 November 2017. In addition he was paid commissions upon submitting to Mr Gleeson the calculation of any commission entitlements. Mr Parker did not sign and return the Standard Finance Broker Agreement.
On 2 November 2017 Mr Parker sent Mr Gleeson a text message saying he was no longer interested in being a finance broker and was investing in the Rideshare space and would do his own thing if he couldn’t work in the rental business. Mr Parker wrote:
I haven’t demanded anything of people asking questions and trying to organise people. Currently I feel like Doug’s bitch as he can’t have me leave and each time I do he gets very upset. I don’t think you or Doug understand the full process and time it takes to rent a car. Fuck I don’t yet. We are literally doing it half ass. Mate if you don’t think this will work I understand just give me heads up. I’m not interested in brokering and I’m invested in the Rideshare space so I’ll go do my own thing. I don’t have time to rent cars and do Amanda’s job. Please don’t take that the wrong way. Love the team. Just early on and working it all out.
Mr Gleeson said he did not think any change was required to the terms of their Agreement under which Mr Parker had been engaged as a finance broker/ contractor and Mr Parker did not ask to vary their agreement. On or about 16 and 17 November 2017 Mr Gleeson and Mr Parker exchanged emails[17] regarding Mr Gleeson’s concern that Mr Parker was overstepping his role as broker/contractor [18]. On 3 December 2017 Mr Gleeson sent the General Manager of Alpha Financial Services Pty Ltd[19] an email inquiring “did we end up getting a contractor agreement signed in Phil’s entity” We will need some invoices as well at some stage. What was the gross rental in Nov? Payment made $1000 to Phil Parker bank account ending in 450, description Rideshare Rentals.” Mr Taylor requested Mr Parker to provide the entity he operated under and his ABN. On 3 December 2017 Mr Parker sent an email to Mr Gleeson and Mr Taylor advising “probably just go sole trader until 30 June 2018. Is it a big deal to switch to company/trust later?”[20] It is apparent that Mr Parker was well aware he was engaged as an independent contractor.
[17] Mr Gleeson’s affidavit filed 28 June 2022 [8] MG8
[18] Mr Gleeson’s affidavit filed 28 June 2022 [9] MG10
[19] Mr Gleeson’s affidavit filed 28 June 2022 [10] MG12
[20] Mr Gleeson’s affidavit filed 28 June 2022 [10] MG14
Mr Parker said he was paid from December 2017 from a bank account owned by Rideshare Solutions and instructed to charge customers for their rental cars using the new company details. He did not assert in these proceedings that he was an employee of Rideshare Solutions.
On 22 February 2018 Mr Parker sent an email to Mr Gleeson:
well in good news we have substantially reduced our toll invoices coming in by ensuring we add the car to the customers account. I’m also talking to govia about what we can do with them in that space. See if we can find a solution we can profit from. Also can you put the $400 for Monika’s services in one lump sum with mine moving forward as I’m going to transition to a partnership abn for tax off - setting this year.
When cross examined Mr Parker vacillated between confirming he was engaged as a contractor and arguing he was an employee. He said in reference to the statement “finance broker with a twist” he was already in discussion with Mr Gleeson about renting out cars to Uber drivers which was a business he had started and had not really got going and he was also going to be doing finance brokering as well. He agreed when he started he understood he would be involved in a fairly new business venture and there was no clarity around the tasks involved in what he would be expected to do. He agreed the time he would be required to perform different tasks was unclear. He said despite those issues, that did not prevent him from starting work and accepting the money he was paid. He said he did clarify some things later with Mr Gleeson mostly verbal inquiries regarding pay.
He claimed in evidence that he was never engaged as a finance broker. Counsel suggested between 24 October and 2 November 2017 he worked as a finance broker for the respondents. He said during the first week he answered phones and didn’t undertake any activities and never submitted an application to a lender. He didn’t complete any money laundering or counter terrorism finance training but just answered the phone to customers of Rideshare solutions. He agreed there was nothing in writing to indicate that he told Mr Gleeson he was not acting as a finance broker in the first week. He said “they hired me out on the proviso of one task and then they asked me to do another task” and “I just obeyed what they asked me to do which was answer the phone.” He claimed that while he was engaged as a finance broker he never actually brokered any finance. He was initially paid from Alpha390Finance and from 3 December 2017 it changed to “Rideshare rentals.” He was asked why his affidavit referred to him receiving a “wage” when the Federal Court found he was not an employee. He said “I’ve maintained my evidence the whole way through, so if I believe that it was a wage, it was an ongoing wage.[21] He said it was a regular weekly wage and disputed he received a retainer. He agreed that when Mr Gleeson provided him with an opportunity to work he did not complain. He agreed he received $1000 per week and 7% of the gross revenue from Rideshare rentals and accepted that the amount he received was dependent on the performance of the business.
[21] Transcript 15 November 2022 p.20
At one point Mr Parker alleged when cross examined that the contract was a sham. Counsel for the Respondents suggested that there was nothing contained in the emails to reflect a change to what was originally discussed and agreed with respect to the terms set out in the email dated 21 October 2021. Mr Parker said “Well it wasn’t discussed and agreed No I never agreed to this.” Regarding payment Mr Parker claimed that he received no response from his inquiry whether the retainer of $1000 per week included GST. Counsel suggested it was clear he was paid $1000 per week including GST. He disagreed and said he received no clarification from Mr Gleeson. Mr Parker agreed that he did not further raise the GST issue and there was no email which said “why does this not include GST or does this mean it’s the only income I’m getting from you.” In response he said “if someone is looking to sham contract people you know straightway it’s not a conversation that they want to respond to.” Counsel suggested “Are you saying that you understood straightaway that it was a sham contract?” He replied “absolutely.” He was asked to produce the email he sent to Mr Gleeson that the contract was a sham. He said there was no email. He said “I was desperate. I wasn’t going to throw away the only source of income I had.” When asked by the Court whether he was claiming in these proceedings that the contract was a sham he responded “No your Honour.” Justice Logan had determined that the contract between Mr Parker and the Respondents was not a sham contract.
Mr Parker continued during cross examination to make various complaints about his engagement with the Respondents. He was asked why he sent a message to Mr Gleeson on 2 November 2017 stating he didn’t want to be a finance broker[22] and what he meant when he said “I’m not interested in brokering.” He said he was upset with the behaviour of Mr Gleeson’s manager and the failure to give him brokering accreditations and said he was pursuing “the only avenue I felt that I had access to make money from.” He claimed he and Mr Gleeson were very clear about the Rideshare space business and how they were going to make money from that business in renting cars to Uber drivers and they discussed the business model at length. He said at that point they had negotiated a commission percentage for Mr Parker based on revenue. He denied that Mr Gleeson never questioned him about the amount of commission he said he was entitled to however he could not recall when those occasions were. Counsel suggested his evidence was false and Mr Gleeson simply paid him the amount he claimed he was owed. He said he would have to go through his records.
[22] Affidavit of Mr Gleeson MG7
Mr Gleeson gave evidence that he paid Mr Parker commissions calculated by Mr Parker in his role as contractor without question. I accept Mr Gleeson’s evidence. Mr Parker told the respondents Counsel that he considered he was adequately remunerated for the work he performed.
I found Mr Parker an unreliable witness. Though he claimed his application for adverse action was as a contractor his evidence was replete with statements that he was in fact an employee. In his affidavit he claimed the terms of his employment “were misrepresented,” that Mr Gleeson controlled the work he performed, “no written contract for services existed between Mr Parker and HG Innovations or Rideshare Solutions and he was allowed to hire staff to work under him as their manager.” He claimed that during his engagement with HG Innovations and Rideshare Solutions he worked exclusively under the branding of Rideshare Rental Solutions and never advertised his own services. He said he was required to attend the office of the business during advertised hours from 8.30 a.m. to 5 p.m. Monday to Friday to answer phone calls and perform duties as a rental manager. He said he was referred to as the Rental Manager in documents and his role and responsibility was also detailed in documents.[23] I regarded those claims as irrelevant to his current application and intend to consider the matter on the basis that Mr Parker was engaged as a contractor with the respondents.
[23] Applicant’s affidavit filed 19 August 2022 [22] E7
Mr Gleeson gave evidence that he was the Director of both Rideshare Solutions and HG Innovations. He confirmed that on 11 October 2017 he held a discussion with the applicant about Mr Parker becoming involved with the first and second respondents’ finance and rental car business as an independent contractor or broker. Following those discussions Mr Parker forwarded to Mr Gleeson via email on 11 October 2017 his resume stating “thank you again considering me as part of your growing business. As discussed I have attached resume and some supporting documents. Look forward to getting your feedback.”
Mr Gleeson said on 21 October 2017 he spoke to Mr Parker regarding his engagement as a finance broker and rental car broker/contractor for Alpha Financial Services Pty Ltd and Rideshare Solutions owned by HG Innovations and discussed a remuneration package and forwarded the email dated 21 October 2017 that set out the terms of their agreement.[24] I accept Mr Gleeson’s evidence that Mr Parker accepted the terms of the agreement. Mr Parker performed the contract in accordance with the agreement and was paid for his performance. I found Mr Gleeson to be a credible and reliable witness who appeared perplexed at Mr Parker’s pursuit of the claim against the respondents.
[24] Mr Gleeson’s affidavit filed 28 June 2022 [3] MG2
At clauses 6 to 11 of the Statement of Claim Mr Parker relied on emails he claimed constituted the “complaints” he made to the Respondents as a result of which he was terminated because he exercised a workplace right in making complaints under subsection 341 (1) (c) (i) of the FW Act. Those emails were before Judge Vasta and Justice Logan.
He claimed at clause 18 of the Statement of Claim that under section 341 (1) of the FW he was entitled to the benefit of a workplace law under the Workplace Health and Safety Act 2009 (Qld), and was able to initiate proceedings under a workplace law including the Workplace Health and Safety Act 2009 (Qld), A New Tax System (Pay As You Go) Act 1999 and the Fair Work Act 2009.
At clause 19 he claimed his employment was misrepresented by the Respondents and claimed he had a workplace right to initiate or participate in a process or proceeding under workplace laws on behalf of others and on his own behalf under the Workplace Health and Safety Act 2009 (Qld). He claimed the Respondents took adverse action against him in terminating his contract for services because he had a workplace right and sought declarations, compensation and penalties.
On 26 April 2018 Mr Parker sent an email to Mr Gleeson with the subject “Putting Monika and Andrew on the books PAYG.” The email states “Hey mate can we chat about this soon. I am fine to stay as we are as I control the work I do and have other business ventures but they don’t and I think it would be good to consider moving them over.”[25] I do not construe the email as a complaint. Mr Gleeson gave evidence that at no time did either Monika or Andrew make any complaint regarding their employment conditions. I accept that evidence. At the time of the proceedings Monika continued to be employed by the Respondents and was not at any time employed by Mr Parker. It is unclear on what authority Mr Parker purported to act for the persons named.
[25] Applicant’s affidavit filed 19 August 2022 [6] E2
On 16 May 2018 Mr Parker sent an email to Mr Gleeson with the subject “Monika” claiming he made reference to a “high workload and the need for assistance from the respondent’s admin staff.” The email sent at 1.21 p.m. by Mr Parker was sent to [email protected] and read as follows:
We need to discuss what Monika does for me. I am already low on staff and want to join Michael’s idea of a united front but so far I am not pleased as Rent2own doesn’t assist Rentals it just burdens us. The detailers don’t clean our cars and it’s becoming very apparent to me that this is not a fair trade.
Monika is a huge part of day to day operations and had I known she would be used for the majority of her day for your purposes and not ours I wouldn’t have entertained the move. Forgive me if that seems harsh but Monika’s wage is being paid for by rentals and if I need to grab her that takes priority.
Michelle replied to Mr Parker by email at 1.35 p.m. on 16 May 2018 as follows:
I don’t have time for this nonsense. Sort it out with Michael. For now Monika will continue to work with the Admin team as discussed yesterday with Michael. She is available to do any jobs that you require her to do FROM HER DESK DOWN HERE. Money is not an issue to me IT IS ALL MICHAELS. If anything needs to be changed I’m sure Michael will let me know otherwise please just get on board and help make this work. Once everyone settles into their new roles everything will become a lot smoother. Just make a list of what you need Monika to do and she will do it.[26]
[26] Applicant’s affidavit filed 19 August 2022 [7] E3
At 1.38 p.m. on 16 May 2018 Mr Gleeson emailed Michelle and Mr Parker stating “Admin is centralised as of now. Move on.”
At 1.56 p.m. on 16 May 2018 Mr Parker sent the following email:
Ok clearly no one wants to understand the issue or discuss it just want to accuse me of not being on board. I have been nothing but a team player and I find everyone’s comments unfair and unprofessional. It is hardly unreasonable to have my admin person come and work one on one through tasks with me or to help out when I get over run with customers. Today’s request was simple:
Sit down with Monika for a few hours and sort our supplier list;
Have her assist when we had Unicar plus 4 retail customers here.
At the moment the centralised detailing is not working and I am certain by Michelle’s attitude that Monika who was already stretch with my tasks is now not doing those tasks and been assigned to Rent 2 Own. So not moving on, we have a problem and it requires a discussion.
At 2.05 p.m. on 16 May 2018 Mr Gleeson sent Mr Parker an email stating “I will but I don’t need the drama and you have made me grumpy AGAIN. This is getting boring. Ring you in 5.”
I do not accept Mr Parker was making a complaint or was entitled to make a compliant as a contractor. He controlled the work he performed. I accept Mr Gleeson’s evidence that he permitted Monika who was employed by the Respondents to assist Mr Parker with administrative tasks. He had no obligation to do so.
Mr Parker alleged that the Respondents took adverse action against him relying on the following email exchange:
At 8.07 a.m. on 30 May 2018 Mr Gleeson sent an email to Mr Parker and Monika “Good morning, Just sorting pays for last week. When did Peter work and what do I need to pay? When in Monika back to work and what did she work last week? Michelle – can get the new job descriptions confirmed and signed off so we give Monika and Phil clear guidelines of her job roles in the centralised admin team so we get rid of any confusion. Thanks.”
At 9.00 a.m. on 30 May 2018 Mr Parker sent an email on Alpha390 Financial Services letterhead:
Morning Mick, In case your busy and need a quick email points on top but explanation below.
Monika – Full pay week; Peter – No pay; Monika needs to come back to Rentals or I’ll get crushed.
Monika is back tomorrow however she was expecting to be paid a full weeks’ wage. She has still been doing tasks from home and has even stopped in a couple of times to sort a couple fines that needed Stat declaring. My apologies I should have confirmed this with you before she went on holidays. We have never done written contracts perhaps we should formalise it in the next week so we have a ridged system and your covered come June.
In regards to Peter we don’t owe him anything and he knows this. …(discussion about replacing Peter)
In regards to Monika and the admin role I thought we had discussed yesterday I would need her back up here doing all the operational stuff for me while I fend off customers. We are receiving 20 to 30 enquiries per day which was consuming Peter’s day and now will consume mine. This enquiry is actually compounding as they are calling back in hope we have more cars. I won’t survive without Monika back in her office and hitting the phone and getting cars ready for me from a system and QT perspective.
She is the reason we don’t have 2 many bad debts as she audits and manages all of the drivers payments. I won’t be able to train a trainee any time soon and I will collapse if Monika isn’t back up here Thursday morning.
The email was signed off “Philip Parker General Manager Rideshare Rental Solutions.”
At 9.14 a.m. on 30 May 2018 Mr Gleeson sent an email to Mr Parker:
Ok. I’ll call you when free to discuss. Monika is on contract and yes I agree she needs a contract if she is to stay for clarity. As you know a contractor does not normally get paid for hours not at work but this is a prime example of why we need clarity as it has grown from 1 day a week etc. She does a good job so I don’t want to disincentive anyone but a contractor should not be under the impression they get paid when they do not work.
Happy for her to assist Rideshare rentals but as discussed yesterday I want centralised accounts so we streamline process as whilst we have done well to survive to now we need stability in what we do so we can build further and control accounting/admin/stock/functionality.
She actually does a top notch job but your last comment week ago was you didn’t need the resource and it would be good to separate away from you/personal etc
You are a hard man to follow – hence I MUST build a system for the business that is SET. We need to get a plan and stick to it so we take the frustration out of everyone’s life and get the “group” working most efficiently.
At 10.20 a.m. on 31 May 2018 Mr Parker sent an email to Mr Gleeson:
Monika has said that you have only paid her $400 can you please correct this to the $1000 I promised this to her. I am arranging for a singular ABN for our written contract for you so this will mean you can claim GST. It will actually work out to be $47,272.73 excluding GST per year or $52,000 including for you and I’ll ensure to back invoice you for everything before EOFY.
Once again we definitely need to sit down and nut out the small details on paper. Any news of the card issue we can’t print or scan without a toner as the machine locks up.[27]
[27] Applicant’s affidavit filed 19 August 2022 [8] E4
At 3.59 p.m. on 31 May 2018 Mr Parker sent an email to Mr Gleeson:
Hi Gents, Today. 15 calls. Missed 2 calls. 5 booking requests online. 2 people texting me from referrals as early as 6 a.m. this morning. 4 current renters looking for available cars for their friends. 5 walk ins.
Problem well it’s a good problem to have however as Monika has been given 40 fines to stat declare and they are all time sensitive so that leaves me alone to prepare the rego requests and booked hire licence transfers load the cars to RCM key tag and store books and spares and then rent them. So even though I have 8 Camrys here I’ve only managed to register 4 and will have to wait till the phone stops to get the rest of the paperwork done.
I understand everyone is busy but if you have any ideas to help me out other than pulling a 14 hour day that would be great.
If you are wondering why we are busy many of the large providers are struggling to handle the new laws so they are downsizing or just not answering the phone. Keyz have also started to run out of cars. Should I increase prices?[28]
[28] Applicant’s affidavit filed 19 August 2022 [9] E5
At 8.13 a.m. on 1 June 2018 Mr Gleeson sent Mr Parker the following email:
Sounds like a job to me…If too hard – let’s just shut the gate and close up. I’ll sort out next week. I’m easy but sick of the whinging for 79 rental cars. Let’s do a handover this arvo with you and Monika and we’ll move on. Divert phones to my mobile and we’ll do what we did for the first 2 years.[29]
[29] Applicant’s affidavit filed 19 August 2022 [10] E6
Mr Parker had omitted from the documents he relied on the following email he sent to Mr Gleeson advising that he (Mr Parker) accepted the decision to terminate the arrangement indicating he would do his best to leave on the best terms and he was “robust enough to finish that day.” That email was dated 11.18 a.m. on 1 June 2018[30] as follows:
Hi Michael and Doug,
I am sorry you feel this way. It took a bit to calm Monika down this morning for her to come in. Neither of us have been here to cause problems and will do our best to leave on the best terms possible, we have both done our best to work hard and do the right thing by you. My financial situation and Monika are slightly different so while I am robust enough to finish up as early as today her leaving without reasonable notice will cause her severe financial hardship.
Monika will need some time to find a new job. She was unable to pay her rent this week which I have helped her with but I think a couple of weeks’ notice for her would be fair. We are not in a relationship and are just friends so I can’t offer ongoing support for her long term. I am sure she could handle closing everything in the rentals down in this period if you agree to help her out with pay for the period.
Happy to discuss a handover from myself for everything Monika doesn’t know about but due to me being left unpaid by previous employers after exits I need to ensure I am paid my May commission plus one weeks’ notice first. Hope you understand my position. Talk soon.
[30] Mr Gleeson’s affidavit filed 28 June 2022 [14] MG20
It is apparent that the decision of both Mr Gleeson and Mr Parker to terminate Mr Parker’s engagement as a contractor was mutual. No complaint was made by Mr Parker on 1 June 2018 about the business arrangement with the respondents coming to an end.
At 12.04 p.m. Mr Parker sent Mr Gleeson an email calculating the final payment due to him in the sum of $5702.15 which included one weeks’ retainer and his commission from various deals.
At 2.59 p.m. Mr Gleeson caused $5702.15 to be deposited into Mr Parker’s nominated bank account from the Rideshare Solutions account.
On 6 June 2018 Mr Parker send Mr Gleeson a text message[31]
Hey mate Monika sounds swamped and slightly brain fried. I might go in Friday and help out as Fridays are crazy. You paid me for the week so it’s the least I can do. Unless you would prefer not? When you have time I want to talk to you about a partnership with OLA I’m working on. A lot of the renters are asking for docs. As you’re locked up with Uber I’ll go OLA. You can put your cars with mine and I’ll collect payments in trust similar to a real estate I’ll pay you the rent minus a management fee. $5 per day rented. Oh Friday is Monika’s birthday as well in case you didn’t know.
[31] Mr Gleeson’s affidavit filed 28 June 2022 [15] MG23
I am satisfied that at no time prior to the termination of Mr Parker’s contract on 1 June 2018 did Mr Parker make any written or verbal complaint to Mr Gleeson or any other person at the respondents companies regarding any risk to his workplace, health and safety, whether from working hours or otherwise. Mr Gleeson said the number of working hours performed by Mr Parker were at his sole discretion, not specified or referred to in any finance broker’s agreement and not otherwise prescribed by the respondents.
Regarding any complaint purportedly on behalf of Monika Mr Gleeson said she commenced employment with the second respondent on 7 March 2019 in the capacity of an administrative co-ordinator and at the time of filing the affidavit held the role of administrative manager. She made no complaint or enquiry to Mr Gleeson or anyone else at the respondents companies regarding her workplace rights, salary, holiday loading or taxation or her hours of work. Monika filed no evidence in the proceedings.
Mr Gleeson said “Andrew” (Laoutas) was a former employee of Mr Parker and was employed as an Uber driver and paid directly by Mr Parker. Mr Gleeson said at no time did he make a complaint or enquiry to Mr Gleeson or anyone else in the respondents companies regarding his workplace rights, salary, holiday loading or taxation. Andrew filed no evidence in the proceedings.
Respondent’s argument
The Respondents contend that Mr Parker did not have a workplace right the infringement of which attracted the sanctions sought by him. He was engaged as a finance broker by Mr Gleeson in accordance with the agreement referred to in the email dated 21 October 2017 which determined the legal arrangements between Mr Parker and the Respondents including the duration of the arrangement. Consistent with that agreement Mr Parker expressed an intention to retain control of his work activities. He discussed the terms of his engagement with respect to remuneration, proposed the structure he worked under and made no complaint or raised no question about those arrangements. He was engaged as a contractor or broker and the Respondents accommodated that arrangement.
Mr Parker anticipated that the business would increase with his involvement and his financial benefits would thereby increase as a consequence. No term was included in the arrangement regarding any specific or general duration of the contract nor any circumstances providing for the continuity of the business arrangement. Any cessation of the arrangement was mutual and not contrary to the FW Act.
Mr Parker was paid in accordance with the arrangement and as he requested (with respect to commissions). The respondents business was subject to policies in terms of the respective roles of staff employed none of which were specific to Mr Parker as he was not an employee of the business. The Respondents exercise of control over the business activities of Mr Parker were consistent with his engagement as broker or contractor. Mr Parker did not sign or return the Standard Finance Broker’s Agreement provided though he advised the respondents that he would operate as a sole trader and provided his ABN.
He was paid a retainer not a wage and paid commission for work performed for Rideshare Solutions which was directly related to profitability or performance over and above his retainer. He did not have set hours of work and attended to his business obligations as he saw fit consistent with his intention to retain control over his business activities. He was provided with some tools to assist him in the operation of his part of the business.
The Respondents disputed that the contents of the emails dated 26 April 2018 and 30 May and 31 May 2018 constituted a complaint or inquiry. He was not a person or body with capacity to make a complaint under a workplace law. Nor did the email dated 16 May 2018 constitute a complaint. The Respondents accommodated Mr Parker by providing administrative staff to assist him in his role as contractor or broker.
The emails on 31 May and 1 June 2018 support the conclusion that two separate business entities agreed to end the arrangement that did not facilitate the required business outcomes. No workplace right was contravened. The agreement to end the contract was mutual as evidenced in the email exchange. Moreover Mr Parker sought to engage Mr Gleeson with another business idea following what he now claims was an unlawful termination of their arrangement.
Fair Work Act
The FW Act provides in Part 3-1, general protections to protect employees and employers with respect to action which may be taken against them on account of certain characteristics they have, activities they may take part in, or rights which they have.
Section 340 (1) of the FW Act provides that a person must not take adverse action against another person because the other person has a “workplace right” or has or has not exercised a “workplace right” or proposes or proposes not to exercise a “workplace right.”
Pursuant to section 341 (1) of the FW Act a person has a “workplace right” if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee--in relation to his or her employment.”
In Faulkner v Bis Industries Ltd [2012] FMCA 592 Riethmuller FM considered an application where the applicant had entered into a services contract to provide truck driver services. The Respondents alleged that the applicant had committed a series of safety breaches and terminated the contract. The applicant alleged the Respondents conduct amount to adverse action within the meaning of section 342 of the FW Act (section 342 (1) item 3). Riethmuller FM observed that on the relevant provisions of the FW Act relied upon the only workplace right that the applicant could have if he were covered by the Independent Contractors Act is a right to apply to the Courts to review the contract between him and the respondents. He said at [19]:
Section 341(1)(c)(i) could only relate to any right of the applicant to apply to the court under the Independent Contractors Act for a review of his contract. The applicant, if he was covered by the Independent Contractors Act does not fall within section 341(1)(c) as his rights would not be to apply to the court, but would be within section 341(1)(b).
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.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin. Associate:
Dated: 14 December 2022
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