This decision of the Fair Work Commission contains an excellent summary of the legal factors at play when determining whether a person was at the material time an employee or an independent contractor.
“BACKGROUND
[1]
Burke and Wills Projects Pty Ltd (Burke and Wills) operates a commercial design, construction, and maintenance business. Patrick Gittany performed work for Burke and Wills from around 25 July 2022 until 11 March 2026. Mr Gittany invoiced for the work he performed through his company, Property Corporate Group Pty Ltd (Property Corporate). The relationship between Mr Gittany and Burke and Wills came to an end on 11 March 2026. The trigger for the breakdown of the relationship was an offer of employment Burke and Wills made to Mr Gittany. Mr Gittany considered the employment terms offered by Burke and Wills did not adequately recognise the quality and nature of the work he had been performing. Mr Gittany rejected the offer and raised various concerns about the relationship. Burke and Wills disagreed with Mr Gittany’s response. Burke and Wills withdrew the offer of employment on 11 March 2026 and directed Mr Gittany to return the company’s property. Mr Gittany filed a general protections application pursuant to s.365 of the Fair Work Act 2009 (FW Act) on 31 March 2026. Burke and Wills raised a jurisdictional objection to the application on the basis that Mr Gittany was an independent contractor rather than an employee and hence was not dismissed within the meaning of s.386 of the FW Act. This decision concerns whether Mr Gittany was an independent contractor or an employee.
[2]
I conducted a hearing via video on 23 July 2026. Mr Gittany relied on evidence from himself and a former co-worker, Albert Attlee. Burke and Wills relied on evidence from Adam Hill (Director). Both parties filed a significant number of documents in support of their positions.
LEGAL TEST – EMPLOYEE OR CONTRACTOR
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DECISION
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[3]
The legal test for determining whether a person is an employee or independent contractor was significantly altered on 26 August 2024.1 The FW Act was amended on 26 August 2024 to essentially override the High Court precedent established by the majority of the High Court in Personnel Contracting2 and Jamsek.3 This was achieved by inserting a new s.15AA into the FW Act the effect of which is to mandate consideration of the real substance, practical reality, and true nature of the relevant relationship, including by reference to how the contract was performed in practice, when determining if the person was an employee or independent contractor. The change nullified the High Court’s previous determination that how the contract was performed by the parties is largely irrelevant when the rights and duties of the parties are comprehensively recorded in a written contract.
[4]
It is therefore conceivable that Mr Gittany’s status as an employee or independent contractor changed when s.15AA of the FW Act commenced operating on 26 August 2024. However, for the purposes of this decision, I am only required to assess the relationship between Mr Gittany and Burke and Wills with reference to the test identified in s.15AA of the FW Act. That is because the jurisdictional objection turns only on whether Mr Gittany was an employee at the time of the purported dismissal on 11 March 2026. It is not necessary to determine whether Mr Gittany was an employee or contractor prior to when the FW Act amendments commenced operating on 26 August 2024 to resolve the jurisdictional objection.
[5]
Section 15AA of the FW Act states whether an individual is an employee to be determined by “ascertaining the real substance, practical reality, and true nature of the relationship.” The “totality of the relationship” must be considered. The definition means the multi-factorial approach adopted in Stevens v Brodribb Sawmilling Co Pty Ltd4 and Hollis v Vabu5 must be applied.
[6]
Factors that are likely to be relevant to the multi-factorial test include:
•
The degree of control over the work of the putative employee.
•
Whether the worker performs work for other businesses.
•
Whether the worker has a separate place of work and advertises their services to the world at large.
•
Whether the worker provides their own tools and equipment.
•
Whether the worker can delegate or subcontract the relevant work.
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How the worker is compensated.
•
Whether the putative employer has the right to suspend or dismiss the person engaged.
•
Whether the worker is presented to the world as emanation of the putative employer’s business.
•
Whether income tax is deducted from remuneration paid to the worker.
•
Whether the worker is provided with paid holidays or sick leave.
1 The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 amends the definition of “employee” under the FW Act. The new definition in s.15AA will expressly require consideration of how the contract is performed in practice. That in broad terms overrules the current High Court precedent on the issue.
2 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 96 ALJR 89; [2022] HCA 1.
3 ZG Operations Australia Pty Ltd v Jamsek (2022) 96 ALJR 144; [2022] HCA 2.
4 (1986) 160 CLR 16.
5 (2001) 207 CLR 21.
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•
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 their work.
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Whether the worker spends a significant portion of his remuneration on business expenses.6
[7]
The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. The parties cannot deem the relationship between themselves to be something it is not.7 Terms that are merely consequential upon the labelling adopted by the parties such as those directed at taxation, superannuation, and insurance coverage, can be considered but are not conclusive.8
[8]
In ACE Insurance,9 the Full Court of the Federal Court was considering the characterisation of a significant number of putative employees. While most of the putative employees were personally identified in the relevant contracts, there were two cases where a corporate entity was identified, rather than the putative employee. In the leading judgment, Buchanan J found that the reference to the corporate entities did not preclude a finding of employment.10 Justices Robertson and Lander did not depart from that view.
CONSIDERATION
[9]
There was no written contract between Burke and Wills and Mr Gittany or Property Corporate.
[10]
There was not a great deal of dispute between the parties about how the relationship between Burke and Wills and Mr Gittany operated in practice. The more contentious issue was what conclusion should be reached about the relationship based on the evidence.
[11]
I make the following findings about the relationship between Burke and Wills and Mr Gittany:
(i)
Burke and Wills and Mr Gittany labelled Mr Gittany as an independent contractor. Property Corporate issued invoices to Burke and Wills in relation to work performed by Mr Gittany. Property Corporate charged GST in relation to Mr Gittany’s work. Mr Gittany did not accrue paid leave. Superannuation contributions were not made by Burke and Wills for work performed by Mr Gittany. This all weighs in favour of finding Mr Gittany was not an employee of Burke and Wills. However, these arrangements were largely a consequence of the labelling adopted by the parties. I consider this reduces the weight that should be afforded to these matters in the overall assessment.
(ii)
Mr Gittany operated an incorporated company and used the company to administer his work for Burke and Wills. Property Corporate issued invoices for work performed by Mr Gittany. The vehicle Mr Gittany used to perform his work was at all relevant times
6 Jiang Shen Cai v Do Rozario [2011] FWAFB 8307 at [30](4).
7 Ibid at [30](3).
8 ACE Insurance Ltd v Trifunovski (2013) 235 IR 122 Buchanan J at [37].
9 ACE Insurance Ltd v Trifunovski [2013] FCAFC 3 at [134] to [153].
10 Ibid at [153].
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owned by Property Corporate. Mr Gittany’s operation of an incorporated company which charged for his work and owned his work vehicle weighs in favour of finding Mr Gittany was not employed by Burke and Wills.
(iii)
The fact that Burke and Wills did not own Mr Gittany’s work vehicle also weighs separately in favour of finding that Mr Gittany was an independent contractor, regardless of whether he operated as a sole trader or as an incorporated company.
(iv)
Property Corporate engaged contractors to perform work for Burke and Wills and invoiced Burke and Wills for the cost of the work. This weighs in favour of finding Mr Gittany was not employed by Burke and Wills.
However, it is not entirely clear whether Property Corporate charged a margin for the work of the contractors or only sought reimbursement of the costs that Property Corporate incurred. Mr Gittany was adamant that Property Corporate did not charge a margin. Mr Hill suggested a margin may have been charged but was far from certain. I prefer Mr Gittany’s evidence and accept that Property Corporate only sought reimbursement from Burke and Wills for the cost of the contractors it engaged. I consider Property Corporate not charging a margin for the work performed by the contractors reduces the weight that should be afforded to this issue. The absence of a margin is indicative of an administrative arrangement between Property Corporate and Burke and Wills, rather than a genuine commercial arrangement whereby Property Corporate was profiting from the engagement of the contractors.
(v)
Mr Gittany provided evidence that Mr Hill stated during a phone call with him on 21 December 2023 that Burke and Wills wanted Mr Gittany to work full-time and exclusively for Burke and Wills beginning from 2024. Mr Gittany was not cross-examined on this evidence. I raised this evidence with Mr Hill during the hearing. Mr Hill indicated he could not recall what was said in the conversation. Mr Hill provided evidence that he made a commitment that at least 38 hours of work would be provided to Mr Gittany each week from 2024 onwards. The evidence suggests Mr Gittany worked exclusively for Burke and Wills from the start of 2024 and generally worked at least 38 hours each week. The evidence indicates that Property Corporate did not perform work for any business other than Burke and Wills from the start of 2024 until the relationship ended on 11 March 2026. Given all this evidence, I find that Mr Gittany agreed to Mr Hill’s request for him to work exclusively for Burke and Wills from the start of 2024 and to work full-time equivalent hours each week. The regular and exclusive engagement of Mr Gittany by Burke and Wills weighs in favour of finding Mr Gittany was an employee.
(vi)
The performance of work by Mr Gittany was controlled by Burke and Wills. Mr Hill accepted in cross-examination that Burke and Wills determined which projects Mr Gittany worked on, the location of Mr Gittany’s work, and the times that Mr Gittany performed the work. Mr Gittany was required to submit timesheets and to use Burke and Wills’ internal administrative systems. This all weighs in favour of finding Mr Gittany was an employee.
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(vii)
Mr Gittany and Property Corporate did not generate goodwill from the work Mr Gittany performed for Burke and Wills. Mr Gittany was generally required to wear a Burke and Wills uniform when performing his duties. Mr Hill accepted in cross-examination that any goodwill from the work would have been derived by Burke and Wills. The customers entered contracts with Burke and Wills and Mr Gittany presented as a representative of Burke and Wills. There is no evidence that suggests any customers would have been aware of Property Corporate’s existence. This all weighs in favour of finding Mr Gittany was an employee.
(viii)
Mr Gittany had a Burke and Wills email address and was included in communications sent to Burke and Wills’ employees. It would be very unusual for an independent contractor to be included in those types of internal communications. It was assumed Mr Gittany would be working each week and hence Mr Gittany was required to notify Burke and Wills if he was ever unavailable to work. This all weighs in favour of finding Mr Gittany was an employee.
(ix)
Mr Gittany was issued with a Bunnings Power Pass account to make purchases on behalf of Burke and Wills. The authorisation for Mr Gittany to incur expenditure on behalf of Burke and Wills weighs in favour of finding Mr Gittany was an employee.
(x)
Mr Gittany was paid based on the hours that he worked rather than a lump sum for the completion of a project, which would be more consistent with an independent contracting relationship. Mr Gittany was also reimbursed for expenses he incurred while performing work for Burke and Wills. That means Mr Gittany did not spend a significant amount of his remuneration on business expenses because they were reimbursed by Burke and Wills. These arrangements weigh in favour of finding Mr Gittany was an employee.
(xi)
Burke and Wills unilaterally decided to end its relationship with Mr Gittany on 11 March 2026 and directed him to return all company property. The approach Mr Hill took to ending Burke and Wills’ relationship weighs in favour of finding Mr Gittany was an employee. If Mr Gittany was working genuinely as an independent contractor, it would not have been necessary for Mr Hill to formally end the relationship. Burke and Wills could have simply not offered any further work to Mr Gittany or Property Corporate. I also note Mr Hill stated in his email that “we thank you for your service to date” and made no reference to ending a contractual relationship with Property Corporate.
(xii)
Burke and Wills referred to Mr Gittany providing his own tools and invoicing for expenditure such as fuel. I accept this is what occurred. However, I do not consider these matters weigh significantly either way in the overall assessment of the relationship.
(xiii)
The evidence regarding insurance arrangements for Mr Gittany’s work was not clear. Mr Gittany gave evidence that Burke and Wills sourced workers’ compensation insurance coverage for his work. Mr Hill indicated Mr Gittany was required to source his own insurance. I do not have sufficient evidence to resolve this issue.
[12]
The administrative arrangements between Mr Gittany and Burke and Wills clearly weigh in favour of finding that Mr Gittany was an independent contractor. That is particularly
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the case given Mr Gittany operated an incorporated company which not only issued invoices for Mr Gittany’s work and owned his work vehicle, the company also separately engaged contractors to perform work for Burke and Wills.
[13]
However, the administrative arrangements between the parties were not consistent with how the contract was otherwise performed in practice, at least from 1 January 2024. Burke and Wills controlled Mr Gittany’s work. Mr Gittany and Property Corporate performed work exclusively for Burke and Wills. Mr Gittany and Property Corporate did not generate goodwill from the work Mr Gittany was performing for Burke and Wills. Mr Gittany presented to customers as a representative of Burke and Wills. Mr Gittany performed regular full-time equivalent hours of work each week. Mr Gittany generally wore a Burke and Wills uniform. Mr Gittany had a Burke and Wills email address and was included in internal communications to staff. Mr Gittany made purchases on behalf of Burke and Wills through a Power Pass account. Mr Gittany was required to submit timesheets and to use Burke and Wills’ internal administrative systems. These matters all weigh strongly in favour of finding Mr Gittany was an employee of Burke and Wills.
[14]
Although I consider this case is finely balanced, my overall assessment of the real substance, practical reality, and true nature of the relationship between Mr Gittany and Burke and Wills is that Mr Gittany was an employee of Burke and Wills. I consider the control that Burke and Wills exercised over the work Mr Gittany exclusively performed for Burke and Wills and the other factors identified above prevail marginally over the administrative arrangements and labels adopted by the parties.
[15]
If Mr Gittany was not operating an incorporated company when he performed work for Burke and Wills, I would have had little hesitation in finding Mr Gittany was an employee. The involvement of Property Corporate, including by engaging subcontractors to perform work for Burke and Wills, substantially complicates the overall assessment. However, the Full Court confirmed in ACE Insurance that the involvement of a company does not preclude a finding of employment. I consider the way that the contract was performed in practice weighs strongly in favour of an employment relationship and is sufficient to effectively pierce the corporate veil in this case.
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CONCLUSION
[16]
I find Mr Gittany was an employee of Burke and Wills and that Mr Gittany was dismissed by Burke and Wills on 11 March 2026.
[17]
Burke and Wills’ jurisdictional objection is dismissed.
[18]
Mr Gittany’s application will be listed for conciliation at a time to be advised.”
Gittany v Burke And Wills Projects Pty Ltd & Adam Hill [2026] FWC 2908 delivered 3 August 2026 per Crawford C