The following extract from a recent decision of the Fair Work Commission contains an analysis of legal principles which are used when determining whether a relationships is that of employer and employee or principal and agent, an issue which arises for determination in many cases determined by the Commission in cases such as unfair dismissal.
“RELEVANT LAW
[87]
The relevant law for the determination whether a person is an employee for the purposes of the Act is summarised below.
[88]
Section 15 of the Act provides that ‘employee’ and ‘employer’ have their ‘ordinary meanings’:
15 Ordinary meanings of employee and employer
(1)
A reference in this Act to an employee with its ordinary meaning:
(a)
includes a reference to a person who is usually such an employee; and
(b)
does not include a person on a vocational placement.
Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State.
(2)
A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer.
[89]
Section 15AA of the Act fills out the “ordinary meanings” of employer and employee as follows:
15AA Determining the ordinary meanings of employee and employer
(1)
For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.
(2)
For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:
(a)
the totality of the relationship between the individual and the person must be considered; and
68 PN 260.
69 PN 285.
[2026] FWC 2759
26
(b)
in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.
Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.
[90]
The application of s 15AA is described by Deputy President Roberts in Murray v 239 Brunswick Pty Ltd70 in the following terms:
Section 15AA(2) requires a consideration of the totality of the relationship which involves in turn a consideration of, amongst other things, the terms of the contract between the parties and an assessment as to how the contract is performed in practice. The approach to a consideration of the totality of the relationship under s.15AA is guided by the common law principles established by cases such as Stevens v Brodribb Sawmilling Co Pty Ltd and Hollis v Vabu Pty Ltd and involves a reversion to the multifactorial test that was well known and widely applied prior to the High Court decisions in CFMMEU v Personnel Contracting and ZG Operations v Jamsek.
[91]
The Full Bench in Jiang Shen Cai trading as French Accent v Do Rozario71 identified the various indicia ordinarily considered in determining the nature of the relationship. They include:
•
Did the worker exercise, or have the right to exercise, control over the way work is performed, place of work, hours of work and the like;
•
Did the worker perform work for others (or had a genuine and practical entitlement to do so);
•
Did the worker have a separate place of work and or advertise his services to the world at large;
•
Did the worker provide and maintain significant tools or equipment;
•
Could work be delegated or subcontracted;
•
Did the putative employer have the right to suspend or dismiss the person engaged;
•
Did the putative employer present the worker to the world at large as an emanation of the business;
•
Was income tax deducted from remuneration paid to the worker;
•
Was the worker remunerated by periodic wage or salary or by reference to completion of tasks;
•
Was the worker provided with paid holidays or sick leave;
•
Whether the work involves a profession, trade or distinct calling on the part of the person engaged;
•
Whether the worker creates goodwill or saleable assets in the course of his work; and
•
Whether the worker spends a significant portion of his remuneration on business expenses.
70 [2025] FWC 978, [17] – [18].
71 [2011] FWAFB 8307, [30].
[2026] FWC 2759
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[92]
The Full Bench in Jiang also held at [30] that:
It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.
(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity by a term that declares the relationship to have one character or the other.
CONSIDERATION
[93]
As the statutory note in s 15AA makes clear, the raison d’etre of s 15AA is to depart from the common law position, as expressed in Personnel Contracting and Jamsek, that contract is “king” in the determination of the nature of a work relationship. Section 15AA expands the definition of employee to include the real substance, practical reality and true nature of the relationship between the NGPT and Mr. Spangaro. The terms of the contract are not determinative but are a factor in determining the true nature of the relationship.
The terms of the Contract
[94]
The Contract is a contract for services between SSPL and NGPT. Under its terms, NGPT appointed SSPL to provide services to it. SSPL contracted that “nothing contained” in the Contract “will be deemed to create a relationship of employer and employee” and “no other relationship will be inferred or implied”.
The negotiations leading up to the making of the Contract
[95]
Section 15AA requires me to look beyond the terms of the contract to determine the true nature of the relationship. It is logical that negotiations leading up to the making of the final terms can shed light on the true nature of the relationship
[96]
It is clear from the correspondence between Mr. Redenbach, Mr. Moreno and Mr. Spangaro there was a genuine negotiation as to the form of the Contract. At the time the Contract was being negotiated, Mr. Spangaro was not a neophyte unfamiliar with the world of commerce. As he himself states, he had “40 years of international technology industry experience” with “extensive networks in AI and healthcare to drive innovative projects using
[2026] FWC 2759
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Generative AI in healthcare”. Mr. Spangaro had been the CEO of an AI start up in the health industry and entrepreneur in residence at the CSIRO. His qualifications include a Master of Business Administration.
[97]
There were several provisions included in the Contract on Mr. Spangaro’s insistence:
•
SSPL as the party: The idea of engaging Mr. Spangaro as an independent contractor was first initiated by Mr. Redenbach, however, Mr. Spangaro used a “corporate vehicle, rather than himself personally” for reasons which included that he had some “tax losses” in SSPL so it “made sense to put the income through the company rather that to himself directly”.
• Provision of Leave: The unusual provision for a leave credit in the Contract was sought and obtained by Mr. Spangaro. The reason he negotiated its inclusion was because he was going to be paid at a rate equivalent to what he had been paid in his previous role without superannuation. His evidence was “If I wasn’t getting leave, I was getting kind of screwed on the arrangement. So therefore, I made sure that leave was included.”
• Limited Warranties and Liabilities: Mr. Spangaro’s evidence is that he “ensured” the warranties and liabilities articulated in the Contract were more limited and employee like. Mr. Spangaro stated that the limitation of the warranties and liabilities in the Contract were “fundamental to him being willing to agree to the contract”.72
[98]
Mr. Spangaro was not successful in negotiating superannuation into the Contract. NGPT’s position (which prevailed) was that no additional sum would be paid for superannuation. Mr. Spangaro’s position was that an additional sum be paid for superannuation. He described the resolution of this issue as “I ended up compromising, essentially.”73
[99]
Mr. Spangaro made the following general observation of the negotiation of the contract as a contract for services:
I originally assumed that I would come in once as a – you know, under an employee agreement as with my previous role, which is what I was really looking for. I was not that comfortable with contracting for this role, but that was how they wanted to do it, and I assumed that they had their reasons74… I wanted to do the job, so I kind of went along with it.
[100]
Mr. Redenbach made oral submissions as to the reason why NGPT sought to engage independent contractors. He said:
It didn’t have the funding yet – mechanism in place. It had some debt financing that was contingent upon, interestingly, invoicing and making sure you were a contractor. That was the only way it was getting funded at the time. So, we made that very clear to Spangaro that’s how it was being financed, and that we would need to either raise capital or some other mechanism, e.g. client revenues, to be able to, you know, get formally engaged, have, you know, payroll.75
72 PN 272 with emphasis added.
73 PN 354.
74 PN 350.
75 PN 452
[2026] FWC 2759
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[101]
He went on:
It was literally genuinely a startup, trying to get it off the ground from scratch. And I think we were all very clear about what the arrangements were.76
[102]
The form of the contract was not presented to Mr. Spangaro as a fait accompli on a take it or leave it basis. He fully participated in the negotiation of the terms. The final text included items which had been included on his insistence. It is unusual for a negotiated contract to be claimed to be a “sham”.
Degree of Control
[103]
Mr. Spangaro argues he had no control over the finances of NGPT which is highly unusual for a CEO. Mr. Spangaro argued Mr. Redenbach exercised:
“Ultimate control over the performance of work by control of finances and information, controlling allocation of all resources, demanding progress updates, giving direction as to which opportunities I was to pursue and the way I ought to pursue them. From the beginning of my employment in addition to reporting to Mr. Redenbach directly, or to his “delegate”. Mr. Spangaro worked under a full time commitment without the ability to come and go to my employment as I pleased and I worked extensive hours.”
[104]
Mr. Spangaro did have some autonomy in the performance of his work as CEO. He argues “exactly like an employee CEO”, his work “required a high degree of skill and expertise including the demonstration of self-leadership, engagement with stakeholders and development of strategies”.77 His role included the “creation of engagement and traction within the health sector by building the brand” which he did by “leveraging my personal networks and credibility to the benefit of NGPT”.78
[105]
Mr. Redenbach’s argument was Mr. Spangaro’s inability to control finances at NGPT was indicative of a separation between the entity and Mr. Spangaro rather than his integration as an employee. According to Mr. Redenbach, the reason he did not have access to the accounts was because NGPT was in a “bootstrap startup phase” and it was up to Mr. Spangaro to bring in the revenue to “support the contractors”.
[106]
On the evidence, although Mr. Spangaro did exercise autonomy in the performance of his work, Mr. Redenbach had a high degree of control over finances and information. It was not contested that he directed Mr. Spangaro both as to the opportunities he was to pursue and the way Mr. Spangaro was to pursue them.
[107]
The nature and degree of control over the finances and the work of Mr. Spangaro by Mr. Redenbach is more consistent with an employment relationship.
Ability to perform work for others
76 PN 462.
77 DCB 400.
78 DCB 402.
[2026] FWC 2759
30
[108]
Nothing in the Contract required exclusivity from SSPL, however, the evidence is that Mr. Spangaro was engaged full time in the work he performed under the Contract. As a matter of practice, Mr. Spangaro had a very limited capacity to perform work for others. This is more consistent with an employment relationship.
Place of Work
[109]
Due to the renovations at the offices of the corporate group which included NGPT it was not possible for him to work at those offices. Mr. Spangaro’s evidence he was a “one person company for the bulk of the time” and that “the place of business was wherever I was frankly.” These circumstances are a neutral indicator of the nature of the relationship.
Significant provision of significant tools or equipment
[110]
Mr. Spangaro used his own laptop, but all software and cloud services were in the name of NGPT. Certain tools were paid for by direct debit from Mr. Redenbach’s credit card. The tools and equipment provided by Mr. Spangaro do not qualify as “significant capital equipment” which is an indicator of engagement as an independent contractor. This indicator is therefore neutral.
Capacity to delegate
[111]
Mr. Spangaro maintains that he had no capacity to delegate work because of the conflict of interest provisions in Clause 14 of the Contract which required a warranty from SSPL that “no matter exists, or is likely to exist, which creates a conflict of interest in respect to its obligations to provide the services”.
[112]
The Contract “Responsibilities” in clause 4.1 expressly confers a capacity in SSPL to delegate the performance of services under the Contract. Clause 4.1(c) states that SSPL (with emphasis added):
(c) warrants that the Independent Contractor and any person employed or engaged by the Independent Contractor to perform the Services has the necessary knowledge, skill, experience and ability to provide the Services and will promptly advise the Engager if this does not continue to be the case.
[113]
Given the Contract itself contains a capacity to delegate, it would be passing strange if the conflict-of-interest provision restrains or prohibits it. On a plain reading of the Contract, it does not. The Full Bench in Jiang notes that “if a worker is contractually entitled to delegate the work to others…then this is a strong indicator that the worker is an independent contractor.” The Contract here contains a right to delegate. This is more consistent with an independent contractor relationship.79
The right of NGPT to suspend or dismiss.
[114]
The termination provisions of the Contract (which SSPL has exercised) empowers:
79 [2011] FWAFB 8307, [30].
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•
Either party to terminate the agreement by giving seven days’ notice if the other party does not remedy a breach [16.2(a)], on 30 days’ notice for any reason [16(2)(b)] or immediately in the event of insolvency or bankruptcy [16.2(d)].
•
NGPT to terminate without notice if SSPL (or its delegate): did not hold necessary qualifications, commits an act of fraud or theft, brings NGPT into disrepute, commits a material breach of the Contract, or becomes physically or mentally unfit to perform the services [16.2(c)].
[115]
These termination provisions are dissimilar from the usual unilateral power of an employer to terminate a contract of employment. The existence of a capacity of both parties to terminate the Contract, for a variety of reasons, are more consistent with a contract for services than an employment contract.
Whether Spangaro was presented to the world at large as an emanation of NGPT
[116]
Mr. Spangaro argues he presented himself “in all outward dealings as NGPT CEO ….” He agreed to be seen as CEO as (given his personal reputation) it was an “important endorsement of NGPT and the Innovate GPT Group in general”. He also represented NGPT at the AI Care Conference in Melbourne in November 2024. Mr. Spangaro and Ms. Snyders were wearing NGPT T shirts.
[117]
It in unarguable that if a worker is presented to the world as the Chief Operating Officer of a Company, they are presented as an emanation of that business. In normal circumstances this would be a strong indicator of an employment relationship. This is mitigated by the fact that Mr. Spangaro negotiated the Contract on the basis SSPL would be engaged by NGPT as a contractor while he held the position as CEO. A potential for conflict between the relationship established by the Contract and the office of CEO was expressly discussed during the negotiation.
[118]
At 6:16 PM on 14 May 2024, Mr. Spangaro wrote a lengthy e-mail to Mr. Moreno which identified “a few concerns” including with the term that became clause 3.2 in the Contract “independent contractor has no authority to incur any obligation on behalf of the engager without written authority” (clause 3.2 in the Contract). The text of the e-mail relevant to this draft term stated:
I understand this is normal for contractors, but how that will work if I am to function as CEO of one or more of the group businesses, which is by definition an executive role? We can potentially deal with this as we go through delegation of authority from a relevant board of directors but on the surface it seems a little operationally problematic and may have potential interfere with my corporations law obligations and duties. Please comment.80
[119]
On 15 May 2024, at 5:06 PM, Mr. Redenbach responded by e-mail that Mr. Spangaro “can be a contracted CEO – nothing stopping that”. He then proceeded to explain how a contractor could be a CEO: “Under Australian law, it is possible for a contractor to act as CEO” but “there are several considerations in the best interests of the company you should be aware of” which he proceeded to explain.
80 DCB 205-206.
[2026] FWC 2759
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[120]
Mr. Spangaro had agreed to hold the office of CEO of NGPT while SSPL was contracted to provide his services to it. This was expressly discussed in the formation of the Contract. This mitigates against the force of his presentation to the world as CEO as an indicator of employment.
Deduction of income tax from remuneration paid to the worker
[121]
Income tax was not withheld by NGPT. Consistent with the terms of clause 11 of the Contract, Mr. Spangaro paid tax on his earnings and the GST payment on his invoice. This arrangement is typical of an independent contractor relationship.
Whether the worker is paid by periodic salary or by reference to the completion of tasks
[122]
Under the Schedule in the Contract:81
•
The Contract Payment for services rendered is $250,000 a year.
•
It was to be paid by monthly payments fixed at $23,833.33 [which is roughly the contract price divided by 12].
•
Calculation was to commence on 15 May 2024, and an invoice would be produced from 15 June 2024 and for each month after that.
[123]
Under the contract, his remuneration was paid periodically. However, it was not characterised as a “wage or salary.” It was part payment of the contract price payable in monthly instalments on invoice.
[124]
The Full Bench in Jiang referred to this indicium. It stated “Employees tend to be paid a period wage or salary. Independent contractors tend to be paid by reference to completion of tasks obviously, in the modern economy this has reduced relevance.”
[125]
In the circumstances of this relationship, the fact the contract payment was to be paid over the course of twelve months by equal monthly payment is a weak indicator of the existence of an employment relationship where the payment is made on invoice without the deduction of income tax.
Whether the worker is provided with paid holidays or sick leave
[126]
The Schedule to the Contract provided that SSPL should accrue a credit for leave days at the rate of 2.5 days a month, SSPL was to provide a running balance of the number of accrued but untaken days each month, and upon termination SSPL was entitled to any accrued but not taken leave days payable at the rate of $1000 per day.
[127]
Mr. Spangaro negotiated a provision for leave in the Contract. It is roughly equivalent to the NES annual leave entitlement of 4 weeks per year. Mr. Redenbach’s submissions on this was: Provision directly negotiated from and by Spangaro Systems directly, and where there was an accrued leave credit that was agreed, so that it was part of the commercial negotiations. We
81 DCB 91.
[2026] FWC 2759
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believe that being referred to as a credit would support the view that it’s a contractor and commercial arrangement, versus it saying something like, ‘It’s an annual leave day’, or sick days, or something to that effect that would imply that it’s an employee
[128]
It is true that a leave “credit” is not the standard term for leave in an employment contract. Nevertheless, in most circumstances leave entitlement is more consistent with an employment relationship.
[129]
In this case Mr. Spangaro negotiated an unusual right to a leave credit in the body of a contract of services. He now says the presence of the leave entitlement is an indicator that his relationship is one of employment. The fact that he asked for and obtained a provision for a leave credit within an independent contract diminishes his claim that it is an indicator of an employment relationship.
Whether the work involves a profession trade or skill
[130]
Mr. Spangaro is a person who has impressive and niche skills, qualifications and experience. He has 40 years of international technology industry experience including involvement in projects using Generative AI in healthcare. In his evidence, Mr. Redenbach identified that one of the “attractions” of working with Mr. Spangaro was his unique set of skills and experience.
[131]
It is accepted by both parties that although it is more common for a CEO to be employed by the company they lead, it is not rare for the role to be performed by an independent contractor. The work Mr. Spangaro performed within the relationship involved the exercise of professional skill as an entrepreneur and tech executive.
[132]
In the circumstance of this case, Mr. Spangaro was recruited for the exercise of his professional skill and experience. The exercise of his skill and experience in the performance of the relationship could have been through a contract for services or a contract of employment. This indicium is therefore relationship neutral.
Worker creates goodwill and saleable assets in the course of their work
[133]
The submissions provided by the parties on this indicium revolve around whether Mr. Spangaro did, or did not, create goodwill or saleable assets for NGPT. Mr. Spangaro submitted he “created engagement and traction with the health sector by building the brand and reputation” of NGPT. The submissions of Mr. Redenbach were that Mr. Spangaro did not create either goodwill or saleable assets for NGPT and that is why it ceased paying under the Contract.
[134]
I surmise a CEO of an AI start up would be involved in the creation of good will for the AI product it creates. I assume a CEO would be involved in the development of a strong brand, good reputation, and loyal customer base.
[135]
The only evidence before me on this issue is that Mr. Spangaro was involved in direct engagement with potential customers, gave presentations to “important industry groups” and represented NGPT at a conference. This is not sufficient for me to find that that goodwill or saleable assets were produced during the relationship between Mr. Spangaro and NGPT. This indicium is therefore neutral.
[2026] FWC 2759
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Whether the worker spend a significant portion of his remuneration on business expenses
[136]
The remuneration Mr. Spangaro received was for his time only. He did not spend any material amounts of his remuneration on business expenses. Any out-of-pocket expenses were reimbursed. This is more like an employment relationship than an independent contract.
Employee Share Option Scheme
[137]
Mr. Spangaro has sought to make an argument that he should be characterised as an employee because he was granted employee share options in a document “explicitly characterising me as an employee of the company”.
[138]
The provision of access to shares or share options is relationship neutral. It is common for both employees and independent contractors to have access to these schemes. In any event, the characterisation of Mr. Spangaro in a share options contract is of minimal weight to a determination of the nature of the relationship between him and NGPT.
The issue of a default notice and a notice of termination
[139]
According to Deputy President Roberts in Murray, s 15AA (2) requires “a consideration of the totality of the relationship which involves a consideration of, the terms of the contract between the parties and an assessment as to how the contract is performed in practice”. It follows the method by which the relationship was ended may be relevant to the issue of how the “contract was performed in practice”.82
[140]
On 11 March, SSPL issued a default notice in accordance with the terms of clause 16.2 of the Contract. The default asserted against NGPT in the notice was failing to meet its “payment obligations under the Contract”. The notice also stated, “in accordance with the Contract”, SSPL provided NGPT with “7 days from the date of the notice of remedy the default”. It was signed by Mr. Spangaro as a director of SSPL.
[141]
This was followed by a “Notice of Termination” under the letterhead and in the name of SSPL. It noted that NGPT had failed to remedy the default identified in the default notice and “in accordance with the Contract” it had no choice but to “exercise its contractual right to terminate the contract in accordance with clause 16(1) effective immediately”. SSPL also reserved “all rights under the contract” because of NGPT’s breach. Once again, it was signed by Mr. Spangaro as a director of SSPL.
[142]
Although he relies on the express terms of the Contract in default notice and the termination notice, in this proceeding he argues the Contract is a “sham”. He argues under the Act he was an employee and that the notice of termination made in the name of his SSPL was, in fact, a forced resignation by him as an employee.
[143]
He sought to explain this in his oral evidence:
82 [2025] FWC 978, [18]-[19].
[2026] FWC 2759
35
So, I wasn’t getting paid. And the only way that I could comply with the contract that was there was to issue a default notice, and when that wasn’t rectified, then to terminate. And otherwise, I would have still been sitting here with Mr. Redenbach demanding I perform on a sort of – this kind of quasi-suspension that he had put me on. And that was the sort of situation I found myself in. It was very difficult.
[144]
Either the Contract was or was not a sham. Mr. Spangaro sought to prosecute the rights of SSPL under the Contract and terminated it according to its terms. If we are to consider the totality of the relationship in determining whether he was an employee, then that should include the manner in which it was brought to an end.
[145]
In circumstances where SSPL has sought to rely on the terms of the Contract to bring the independent contract relationship to an end, that must weigh against a characterisation of the relationship with NGPT as one of employment, which is contrary to those terms. Mr. Spangaro cannot have it both ways; he either relies on the Contract terms, or he asserts the terms are a “sham”.
“PAINTING THE PICTURE OF THE RELATIONSHIP”
[146]
Applying the approach of the Full Bench referred to in Jiang, I must paint a picture of the relationship from an accumulation of detail to determine the real substance, practical reality and true nature of the relationship between Mr. Spangaro and NGPT. This includes “the totality of the relationship’ beyond the express terms of the Contract.
The formation of the Contract and its terms
[147]
Mr. Spangaro was not a callow youth who was handed an independent contract and was instructed to sign it on a take it or leave it basis. He is an experienced businessman with years of executive experience and an MBA. The correspondence leading up to the making of the Contract shows it was a genuine negotiation.
[148]
The idea that he would be engaged as an independent contractor was suggested by Mr. Redenbach. Mr. Spangaro suggested his corporate vehicle, SSPL, as the entity which could enter into the Contract. SSPL was attractive to Mr. Spangaro as the vehicle for the Contract because “he had some tax losses … so it made sense to put the income through the company, rather than to him directly”.
[149] There were a number of terms which were added to the Contract on Mr. Spangaro’s request. These included the limited warranties and liabilities which he says were “fundamental to him” and the unusual provision for leave. He attempted to have a term inserted for an additional amount of superannuation, but he decided to accept a contract without it. As he put it, he ended up compromising on that issue. His evidence was he would have “preferred” an employment contract but “I wanted to do the job, so I kind of went along with it.”
[150] Furthermore, during the negotiation there was a discussion about a potential problem with holding the position of CEO in circumstances where SSPL, as an independent contractor, provided his services to NGPT. Mr. Redenbach sought to explain that Mr. Spangaro could hold the office of CEO while SSPL provided services to NGPT as an independent contractor. Mr. Spangaro accepted this arrangement when he executed the contract.
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[151]
The deal reached between the parties was a compromise. The totality of the relationship includes the circumstances of the formation of the relationship. The correspondence suggests the terms of the Contract were genuinely agreed.
[152]
The unarguable effect of the Contract was to establish a contract for services between SSPL and NGPT. SSPL was engaged by NGPT as an independent contractor. SSPL agreed that nothing in the Contract will be deemed to create an employment relationship.
[153]
As an experienced businessperson, Mr. Spangaro either knew or ought to have known the relationship he had agreed to create was not an employment relationship. This is a significant factor in determination of the relationship between Mr. Spangaro and NGPT.
[154]
This conclusion is not based on the logic of “contract is king” but on a factual finding that the character of the relationship defined in the Contract was based on a robust negotiation and amounted to a compromise between sophisticated bargaining parties.
The performance of the Contract “in practice”
[155]
I accept during the performance of the Contract Mr. Redenbach controlled the finances relevant to the role including for minor expenses. I also accept Mr. Spangaro had some autonomy in the performance of his work which involved “leveraging his network and skill”. Mr. Redenbach exercised significant control over the manner in which that work was performed. Mr. Redenbach demanded progress updates from Mr. Spangaro, he gave direction as to the opportunities Mr. Spangaro was to pursue and the manner in which he was to pursue them. This level of control is more like an employment relationship.
[156]
Other indicators more common to an employment relationship are were:
•
Mr. Spangaro had no practical ability to perform work for others,
•
He presented to the world as CEO of NGPT and therefore as an emanation of the NGPT business, and
•
His remuneration was for his time only and he did spend a significant proportion of his renumeration on business expenses. His business expenses were reimbursed by NGPT.
[157]
The issue of the provision of leave in the Contract is vexed. Although it is usually an indicator of employment, the provision of leave became part of the Contract on Mr. Spangaro’s insistence. He cannot now say it is an indicator of employment when he himself negotiated it into the Contract which, on its face, creates a relationship of independent contractor between SSPL and NGPT. Similarly, Mr. Spangaro’s reliance on the limited warranties and liability in the Contract as an indicator of employment is diminished by the fact that he negotiated those terms into the Contract.
[158]
The periodical monthly payments he was contracted to receive for performing the work are limited as an indicator of employment. The payments were one twelfth portion of the price for services rendered under the Contract. These payments were required to be paid on invoice.
[2026] FWC 2759
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No income tax was withheld and all tax on the remuneration was the responsibility of SSPL. This is more supportive of an independent contract relationship than an employment one.
[159]
Further, clause 16 of the Contract gave SSPL the capacity to delegate the work under the Contract. It is well settled that if a worker is entitled to delegate work to others that is a “strong indicator” of an independent contract.
[160]
Another issue fundamental to the practical performance of the contract is the manner of its termination. By issuing a default notice and notice of termination, SSPL has sought to rely on the terms of the Contract to bring the independent contract relationship to an end. This must weigh against a characterisation of the relationship with NGPT as one of employment, contrary to the terms of the Contract.
“THE OVERALL EFFECT OF THE DETAIL”
[161]
The level of control Mr. Redenbach exercised over the work of Mr. Spangaro, the practical reality that he could not engage in other work while he was engaged by NGPT, the fact he was remunerated for his time only, and that he presented to the world as CEO of NGPT as an emanation of that business are all more like an employment relationship.
[162]
However, Mr. Spangaro is an experienced businessman. The negotiations that lead to the formation of the contract included terms he had requested. He entered into the Contract freely because he “wanted the job”. He says he would have preferred an employment contract, nevertheless he genuinely agreed to form a relationship of independent contract between SSPL and NGPT.
[163]
The manner in which SSPL was paid by NGPT, by monthly invoice without the deduction of income tax, and the right of SSPL to delegate work under the Contract were more consistent with an independent contractor relationship.
[164]
Lastly, Mr. Spangaro has sought to rely on the terms of the Contract in the manner of its termination. The default notice and the notice of termination show he considered SSPL and NGPT as bound by its terms. Given his reliance on the terms of the Contract in the manner of its termination, he cannot now disavow its terms, including that it created an independent contractor relationship between his company SSPL and NGPT.
[165]
Therefore, looking at the real substance, practical reality, and true nature of the relationship between Mr. Spangaro and NGPT, he was not an employee for the purposes of the Act. His company SSPL, of which he is a director, had an independent contractor relationship with NGPT.
[2026] FWC 2759
38
CONCLUSION AND DISPOSITION
[166]
It is a jurisdictional fact in the terms of s 365(a) that “a person has been dismissed”. For the purposes of s 365, the meaning of “dismissed” from s 386(1)(a) states “a person is dismissed if the person’s employment with … their employer has been terminated on the employer’s initiative.”
[167]
Under s 365, Mr. Spangaro must establish that he was dismissed from an employment relationship. Mr. Spangaro was not an employee of NGPT and therefore could not be dismissed as required by s 365. Mr. Spangaro’s application fails for want of jurisdiction. His application is therefore dismissed.”
Spangaro v NeuraGPT Pty Ltd [2026] FWC 2759 delivered 22 July 2026 per Perica C