Tayla Xerri v Perpetual Health and Fitness Industries Pty Ltd - [2025] FWC 2969

[2025] FWC 2969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Tayla Xerri
v

Perpetual Health And Fitness Industries Pty Ltd

(C2025/3369)

COMMISSIONER YILMAZ

MELBOURNE, 3 OCTOBER 2025

Application to deal with contraventions involving dismissal – jurisdictional objections – Whether employee and whether dismissed – objections upheld.

This decision concerns a general protections involving dismissal application made by Ms Tayla Xerri (the Applicant) under s.365 of the Fair Work Act (the Act) in relation to her engagement with Perpetual Health and Fitness Industries Pty Ltd (the Respondent). The Respondent operates Anytime Fitness Broadmeadows Gym (the Gym) which services its own members. Personal Trainers are free agents and may enter into a Service Agreement to use the Gym facility for a weekly fee to deliver services to their own paying clients.

The Respondent objects to the application submitting that Ms Xerri was not an employee and not dismissed within the meaning of s.386 of the Act. It submits that the Applicant was not hired as an employee, rather she engaged with the Respondent through her own business to deliver services as a Personal Trainer in the Gym having signed a Service Agreement (the Agreement).[1] The written Agreement between the Respondent and the Applicant’s business was terminated on 6 April 2025.[2] The Applicant concedes that she signed the Agreement and delivered services as a Personal Trainer but maintains that the true nature of the relationship with the Respondent was of an employee.

A hearing on 25 July 2025 was scheduled for the jurisdictional objections. Both parties were self-represented.

Uncontested evidence

It is not contested that the Applicant entered the Agreement commencing on 19 April 2019 to deliver personal training (PT) services to members of the Respondent’s Gym or her own clients that are not members. Ms Xerri’s clients that were not members of the Gym were required to pay a casual access fee to the Gym, for use of the facilities. The Agreement provides for the payment of a facility fee (a weekly rental fee) by the Applicant for use of the Gym facility, including conditions that waiver the fee. The parties confirmed that the weekly payment of the facility fee was waivered by the Respondent in return for free consultations by the Applicant to interested Gym members.

The Agreement contains conditions such as completing free consults with prospective or current members of the Respondent’s Gym. While not all consults convert into regular clients for the Applicant, it is not disputed that this process generates interest and growth to the Applicant’s client base. The Respondent does not pay the Applicant for this work, rather it is at cost to the Applicant unless the Gym members convert to clients of the Applicant. All of the Applicant’s clients pay the Applicant direct for her PT services at a rate dictated by the Applicant.

The Agreement further provides obligations on the Applicant to be suitably qualified before utilising the Gym facility in first aid and to hold appropriate insurances (public liability and professional…

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

AGLC: Tayla Xerri v Perpetual Health and Fitness Industries Pty Ltd [2025] FWC 2969
Case: [2025] FWC 2969
Decision Date: 3 OCTOBER 2025

CaseChat Overview and Summary

Tayla Xerri sought a determination from the Fair Work Commission (FWC) under s.365 of the Fair Work Act 2009, alleging that she had been dismissed in contravention of the Act by Perpetual Health and Fitness Industries Pty Ltd, the operator of Anytime Fitness Broadmeadows Gym. The Respondent argued that Ms Xerri was not an employee of the Respondent, nor was she dismissed within the meaning of the Act. The Respondent contended that Ms Xerri engaged with the Respondent through a Service Agreement to use the gym facilities for a weekly fee to deliver personal training services to her own clients, some of whom were gym members. The Respondent submitted that Ms Xerri was not hired as an employee but rather as an independent contractor, and that the Service Agreement was terminated due to Ms Xerri breaching service standards, including permitting non-members to access the gym facilities without payment and engaging in inappropriate conduct. Ms Xerri maintained that the true nature of her relationship with the Respondent was that of an employee and that she was dismissed contrary to the general protections provisions of the Act.

The Commission had to determine whether Ms Xerri was an employee capable of being dismissed and whether she was dismissed within the meaning of the Act. Section 386 of the Act defines dismissed and provides that a person is dismissed if their employment with their employer has been terminated on the employer's initiative. To be dismissed by the Respondent, Ms Xerri must be an employee capable of being dismissed and not an independent contractor or self-employed business partner subject to a business agreement with the Respondent. Section 15AA of the Act requires the Commission to consider the totality of the relationship between the parties and not only the terms of the contract between them. The Commission must ascertain the real substance, practical reality, and true nature of the relationship between the individual and the person. In applying the multifactorial test, the Commission considered the totality of the relationship between Ms Xerri and the Respondent and found that Ms Xerri was not an employee but a self-employed personal trainer who had engaged with the Respondent to use the gym facilities on certain conditions. The Service Agreement between the parties clearly described the commercial relationship, and there was no evidence to conclude that Ms Xerri was an employee of the Respondent.

The Commission concluded that the jurisdictional objection was upheld and dismissed the application. The Commission found that Ms Xerri was not an employee but a self-employed personal trainer who had engaged with the Respondent to use the gym facilities on certain conditions. As there was no employee and employer relationship between the parties, Ms Xerri was not capable of being dismissed within the meaning of the Act. Accordingly, the application made under s.365 of the Act could not succeed as it was not made in accordance with the Act. The general protections application made by Ms Tayla Xerri is dismissed.

Orders