Fair work cases; employee or contractor

This is a portion of a decision of the Federal Court which contains a particularly interesting summary by the judge of recent judicial developments in Australian law of the legal distinction between an employment relationship (employer and employee) and that of a principal and contractor.

“Analysis

I start with the parties’ respective submissions about the effect of the recent High Court decisions in Personnel Contracting and ZG Operations.
EFEX submits that the recent decisions of the High Court in Personnel Contracting and ZG Operations support the following propositions. First, in the case of an informal contract, that is, a contract which is not in writing and is one entered into in circumstances of considerable informality, the Court in Personnel Contracting (at [43], [46] per Kiefel CJ, Keane and Edelman JJ; and [162] per Gordon J) said that a court may have regard to the conduct of the parties to ascertain their common intention (Connelly v Wells (1994) 55 IR 73 at 74 per Gleeson CJ), but the emphasis must be on contractual rights and obligations and not on matters that bear no necessary connection with the contractual obligations of the parties. Secondly, the Court in ZG Operations (at [63] per Kiefel CJ, Keane and Edelman JJ) emphasised the importance of the taxation arrangements between the parties in determining the nature of their relationship. Finally, EFEX accepts that as a result of Personnel Contracting (at [63]–[66] per Kiefel CJ, Keane and Edelman JJ; at [127] per Gageler and Gleeson JJ; at [184] per Gordon J), not only is the label the parties attribute to their relationship not determinative, but it will rarely assist the Court in characterising the parties’ relationship by reference to their contractual rights and obligations. Unsurprisingly in the circumstances of this case, that proposition is not disputed by Mr Bennett.
Mr Bennett submits correctly that both Personnel Contracting and ZG Operations involved a comprehensive written contract and not an informal arrangement as is the arrangement in this case. In ZG Operations, the Court noted (at [63] per Kiefel CJ, Keane and Edelman JJ) that the contracting party was a partnership of which the alleged employee was a member. That means, Mr Bennett submits, that the case is of limited relevance. Mr Bennett submits that a number of relevant principles emerge from Personnel Contracting. First, the dichotomy between a worker conducting their own independent business and a worker serving in the business of another is a meaningful framework for determining the nature of the relationship (at [39] per Kiefel CJ, Keane and Edelman JJ; at [113] and [121] per Gageler and Gleeson JJ). Secondly, the multifactorial approach remains appropriate providing the focus is on the contractual rights and obligations of the parties (at [59]–[61] per Kiefel CJ, Keane and Edelman JJ; at [113], [119]–[120] per Gageler and Gleeson JJ; at [174] and [185]–[189] per Gordon J). Thirdly, the right to control is important because it focuses attention on the subservient and dependent nature of the work of the employee (at [73] per Kiefel CJ, Keane and Edelman JJ; at [113] and [122] per Gageler and Gleeson JJ). Finally, exercises of control must be manifestations of a contractual right of control. Mr Bennett submits that the exercises of control in this case do manifest “the right of control that the parties must be taken to have agreed as a right exercisable by EFEX” (at [42] per Kiefel CJ, Keane and Edelman JJ).
This case is at the other end of the spectrum from a case where the terms of the parties’ relationship are comprehensively committed to a written contract (Personnel Contracting at [43] per Kiefel CJ, Keane and Edelman JJ). The key figures were friends, there was no written document, the oral discussions were brief and one of the key statements was that the engagement would be on the same basis as another person providing “work” for or to the company.
As I understand it, both parties in this case accept that the Court can and should have regard to subsequent conduct to determine the nature of their relationship. EFEX submits that the Court is confined to a consideration of contractual rights and obligations. That is significant because the arrangement did not involve, for example, a contractual obligation on Mr Bennett to work particular hours or follow particular instructions from EFEX. Mr Bennett did not seem to disagree with the emphasis on contractual rights and obligations, but he submitted that the Court could examine subsequent conduct to see what the parties tacitly agreed. The differences between these two approaches was not the subject of detailed submissions.
The parties plainly intended for the arrangement to work and acted under the arrangement. I consider that the Court can consider subsequent conduct to determine what the parties tacitly agreed.
The second general matter relates to the use of the multifactorial approach. It would seem that it remains a useful approach providing the focus is on contractual rights and obligations (Personnel Contracting at [61] per Kiefel CJ, Keane and Edelman JJ; at [120]–[121] per Gageler and Gleeson JJ).
The third general matter is that the assessment of the various factors is affected by the nature of the role performed by the alleged employee. An employed professional such as a solicitor may by virtue of his or her role be subject to less control than an employed factory worker. An employed salesperson may be accorded considerable latitude in terms of the performance of his or her role. Mr Bennett was a Business Development Manager, almost entirely involved in sales and, in effect, a salesperson.
The fourth general matter is that a useful framework for analysis is the dichotomy between a person conducting their own independent business and a person serving in the business of another.
Mr Bennett identified 10 matters which he submitted were relevant to the characterisation of his relationship with EFEX and he submitted that seven of them supported to varying degrees a finding of an employment relationship. The seven matters were as follows: (1) EFEX had the right to control Mr Bennett’s performance of his work; (2) EFEX held Mr Bennett out as part of the EFEX organisation; (3) Mr Bennett’s right to obtain other employment was limited in that he had a limited ability to work for others; (4) In practical terms, Mr Bennett had no ability to delegate any of his work for EFEX to others; (5) Mr Bennett did not provide significant capital or assets towards or in relation to his work for EFEX; (6) Mr Bennett had no ability to generate goodwill or other saleable assets in connection with his work for EFEX; (7) the basis upon which Mr Bennett was remunerated by EFEX, namely, by payment of a fixed amount each month, was strongly suggestive of an employment relationship.
Mr Bennett accepted that there were matters which pointed to an independent contractor relationship, but submitted that these matters were clearly outweighed by the matters pointing to an employment relationship. Two of the matters he identified were as follows: (1) the taxation arrangements adopted by the parties suggested an independent contractor relationship; and (2) the informal arrangements concerning “leave” for Mr Bennett are consistent with an independent contractor relationship. Mr Bennett also referred to the fact that the parties understood that Mr Bennett was a contractor not an employee.
EFEX relied on the three matters Mr Bennett identified, but also submitted that the right of control was minimal as reflected in the following: (1) there was no direction that Mr Bennett be in the office at any particular time; and (2) Mr Bennett had almost total freedom in how he carried out his sales activities. He also submitted at one point that the English approach of the “organisation test” had not been adopted in Australia. That is correct (Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16), but that should not be taken to mean that, as the High Court said in Personnel Contracting, the own business/employer’s business dichotomy does not provide a useful framework of analysis.
What was the common understanding of the parties as to the nature of their relationship?
The Commissioner said that there was evidence that the parties entered into the relationship “with at least some general understanding that they were going to treat this as a (non-employment) relationship with payments based upon invoices” (at [113]). However, the “label was used in conversation without any real discussion about the consequences, other than the payments would be based on a set amount invoiced to EFEX” (at [115]). The Commissioner said that the Court was to examine the totality of the relationship. That led to a conclusion of employment and the label and payment arrangements did not lead to a contrary conclusion (at [117]).
Mr Bennett said in his written statement that at no stage was there a discussion as to whether he was to be an employee or a contractor. That is not correct.
First, Mr Brogan said that he had a conversation with Mr Bennett in October 2017 about Mr Bennett working for EFEX on the same basis as he did, that is, as a contractor rendering an invoice for $10,000 each month. Mr Brogan was not challenged on this conversation in cross-examination.
Secondly, there is the email dated 23 November 2017 from Mr Bennett to Mr Sheehan in which Mr Bennett raises a number of issues about his proposed engagement by EFEX and in which he asks whether he is on the books as an employee “or does he invoice Efex as contractor?”. Mr Bennett said that he was aware of the difference between an employee and a contractor.
Thirdly, there is the conversation between Mr Sheehan and Mr Bennett in January 2018 which is set out above (at [45]) in which Mr Bennett agrees that he is prepared to enter into an arrangement on the same terms as Mr Brogan. Mr Sheehan was not challenged about that conversation in cross-examination.
In addition to these matters, there is Mr Bennett’s evidence in cross-examination that he knew he would be engaged as a contractor and that he would be paid by issuing invoices to EFEX.
Mr Bennett completed an MBA in 2018. Prior to his engagement by EFEX, he had been involved in conducting a cleaning business that had engaged both “employees” and “contractors”. He had a general understanding of the difference between employment and independent contractual arrangements.
The evidence from Mr Bennett is instructive. Mr Bennett said the following in cross-examination:

PN160

MR MOORHOUSE: Now, Mr Bennett, by that time, by November 2017, you had been a director of TJS Services?—Yes.

PN161

That was a cleaning company or a cleaning contractor?—Company, yes.

PN162

And I would be guessing, as a cleaning business, that you used both employees and contractors to fulfil the cleaning contracts?—Yes.

PN163

And by that stage you were in the midst of or coming towards the end of, in fact, an MBA as well?—Yes.

PN164

So by that time you understood the difference between an employee and a contractor, didn’t you?—Yes.

PN165

And by that time you knew that an employer was supposed to deduct PAYG tax from an employee’s wages. You had experienced that previously, hadn’t you?—Yes.

PN166

And you also knew that on the other hand contractors were generally paid by invoices submitted without PAYG tax being deducted, didn’t you?—Yes.

PN167

And Mr Brogan told you at some point before you started with Effex, didn’t he, that he was engaged as a contractor and paid $10,000 a month. You agree with that?—Yes.

The difficulty in EFEX’s reliance on this factor is as follows. The factor would be relevant if the evidence went so far as to show that the reference to engagement as a contractor meant that the parties were and understood themselves to be contracting on a particular set of terms and conditions. In other words, it would be relevant if “contractor” clearly conveyed a complete set of terms and conditions that were to govern the relationship. However, the evidence does not go that far. In other words, the evidence was such that one party might have considered engagement as a contractor meant particular arrangements as to payment and taxation only and the other party may have considered that it meant things in relation to a right of control. Absent a clear understanding of the terms and conditions (other than that invoices would be rendered to EFEX and perhaps some understanding of the consequences of that), it has little substantive effect, rather like the label the parties might apply to their relationship (see [89] above).
What was the extent of EFEX’s right of control
Mr Bennett accepted that there was little exercise of control by EFEX in how he undertook his sales role in the sense of who he approached, how he approached them and when he approached them. His counsel submitted that Mr Bennett’s own knowledge of those matters and his expertise with respect to them was one of the reasons EFEX engaged him and that, nevertheless, EFEX had a sufficient right of control to support a conclusion of an employment relationship. His role as a salesperson by definition involved a certain amount of freedom in how he went about his work.
Mr Bennett submits that he was part of the EFEX organisation and was accountable in terms of reporting to a superior within the organisation.
A document in evidence is a “Proposed Organisational Chart” for EFEX dated July 2019. This chart shows various persons employed or performing work for EFEX and what appears to be reporting lines for each person. Mr Brogan, Mr Bennett and a Ms Trudy Ward are shown as part of the Adelaide sales team and Mr Brogan is described as the Adelaide General Manager of Sales. Mr Bennett, as I would read the organisational chart, reports to Mr Brogan and Mr Brogan reports to Mr Mark Sandral, who is described as the Group General Manager for Sales. The issue of who Mr Bennett reported to, if anyone, is somewhat unclear on the evidence. It was put to Mr Sheehan by Mr Bennett’s counsel that Mr Bennett was “ultimately” responsible to Mr Hatherley. Whatever the precise position may be, the significant point is that Mr Sheehan said in his cross-examination that Mr Bennett in his role as Business Development Manager was, in the first instance, actually accountable to the local branch manager, that is to say, Mr Brogan.
In terms of attendance in the office, Mr Bennett’s counsel focussed on what was required of Mr Bennett and he pointed out that the evidence of Mr Brogan was that Mr Bennett was required to be in the office to attend fortnightly branch meetings with Mr Brogan and “our technicians”. Aside from that, although it was anticipated that he would be in the office a reasonable amount of time, there was no requirement by EFEX that he attend the office at particular times. Furthermore, he undertook private activities such as going to the gym and attending classes and tutorials at the university during what would be considered normal business hours.
In terms of attendance at sales conferences, Mr Bennett was required to attend sales conferences. Mr Bennett’s evidence was that EFEX instructed him to attend sales conferences and that he was informed that attendance was compulsory. He was told that by Mr Sheehan and Mr Hatherley. He recalled attending conferences in Sydney, Adelaide and the Gold Coast and he was required to attend a conference in Sydney prior to the commencement of his work for EFEX. Mr Brogan said that there was a sales “kick off” conference each year that all EFEX workers were asked to attend. Mr Bennett’s counsel submitted that there was at least agreement about attendance at the annual conference and I accept that Mr Bennett was, in the relevant sense, required to attend that conference. There was disagreement about whether sales extra training was compulsory which, having regard to the fact that Mr Bennett’s counsel did not press me to accept Mr Bennett’s evidence in preference to that of Mr Brogan, it is not necessary for me to resolve. Mr Bennett, like Mr Brogan, considered it an appropriate and worthwhile thing to attend such conferences.
In terms of Mr Bennett’s performance of operational tasks for EFEX, Mr Bennett’s counsel noted the dispute between the parties as to the frequency of Mr Bennett being required to perform operational tasks. The submission made by Mr Bennett’s counsel was that rather than on multiple occasions, he was from time to time required to perform operational tasks. That seems to me to be a fair, albeit general description. Mr Bennett’s counsel submitted that it is a very unlikely thing that would be required of someone who was genuinely an independent contractor engaged to provide business development management services to EFEX. That is true, but at the same time, the emphasis was on sales and this is not a significant factor.
The use of EFEX template documents by Mr Bennett in creating proposals and putting together deal sheets is relevant. In his evidence, Mr Bennett agreed that there were sales targets that he was expected to achieve. He said that there were sales processes that they were instructed to follow. He agreed that the salespersons, including himself, were trained in those processes. Mr Bennett’s counsel submitted that it was clear that Mr Bennett was trained to use, and required to use, the sale processes of EFEX and that is a matter of significance. That is true to a point because one would not expect to see that occur in the case of an independent contractor.
An expectation that Mr Bennett not compete with EFEX is also relevant. This expectation is clear in Mr Brogan’s comment when dealing with other work performed by Mr Bennett that he was not concerned about Mr Bennett doing other work while engaged by EFEX as long as it did not compete with EFEX.
A matter of significance is that Mr Bennett did comply, apparently without objection, with a direction by Mr Sheehan in three instances. First, he was given a direction not to work so closely with Mr Brogan. Secondly, he was given a direction not to attend the lunch in Sydney. Finally, he was given a direction in relation to his attendance at the Hyde Park Tavern to concentrate on sales and to get One Solution to attend to non-sales tasks.
Was Mr Bennett held out as a part of the EFEX organisation?
Mr Bennett relied on the fact that he was held out as a part of EFEX and that is a relevant factor: Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 (Hollis v Vabu) at [50]; Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161 at [32]. Mr Bennett’s counsel submitted with force that it is a most unlikely scenario that Mr Bennett, an independent contractor, reported to Mr Brogan, another independent contractor, as far as relationships with EFEX are concerned. I agree with counsel’s submission that that seems an unlikely web of relations.
Mr Bennett had an EFEX business card. He was shown as the Business Development Manager, that is to say, the Business Development Manager of EFEX. There is an email address of EFEX on the card. In addition, Mr Bennett’s evidence was that upon the commencement of his work with EFEX, he was provided with, among other things, a company email and, as I have said, that he used the sales template documents of EFEX. As counsel for Mr Bennett submitted, every time a sale was being negotiated, the business card and the sales templates used by Mr Bennett would reinforce the impression that the person with whom those clients, or potential clients, were dealing with, was a representative of EFEX.
Did Mr Bennett have the ability to work for others?
Mr Bennett’s counsel submitted that at a practical level, he was required to devote all his time to EFEX’s business. He accepted that he had some flexibility in that he was able to attend some university tutorials “the commencement and ending lecture of the university courses”. However, the need to achieve his sales targets meant that he would not have had the time, and did not devote time, to any other matters. Mr Bennett accepted that he made one introduction of a cleaning contractor to an EFEX client. He received an unsolicited payment as a gift. Mr Bennett submits that that is not work. The evidence on this point was to the effect that he performed no other work beyond that one introduction. Two other circumstances were raised with him in cross-examination. One was the introduction of Amed and Mohammed to someone called Ellie. That was an introduction which was a five minute introduction and he was not paid for that work. He had an interaction with a man called Chen and, in fact, Chen introduced Mr Bennett to Spotless as a potential client. The submission is that none of that would support a conclusion that, in terms of Mr Bennett’s self-development as set out in his LinkedIn profile, that constituted networking and consulting.
I accept Mr Sheehan’s evidence that he was only concerned with whether Mr Bennett met his sales targets. If he had been very lucky or an exceptional salesperson, he may have had time to work for others. The reality, I think, is otherwise. The salary and tenor of discussions (such as they were) is that the position to be undertaken by Mr Bennett was a full-time, or nearly full-time, position.
Did Mr Bennett have the ability to delegate any of his work for EFEX to others?
There is no evidence that Mr Bennett either did or would have been permitted to delegate his work as Business Development Manager to a third party. The nature of the work and the circumstances in which it was to be carried out suggests that delegation was not practical or, indeed, possible.
In Ace Insurance v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146 (Trifunovski), Buchanan J (with whom Lander and Robertson JJ agreed) said the following (at [25]):

Contracts of employment (contracts of service traditionally so-called) are contracts for personal service. Benefits and obligations of contracts of individual service of this kind are not unilaterally assignable by either party (Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 at 1018-1019, 1024, 1026, 1029, 1048; Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 at 14, 15 (Mersey Docks); Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 at 443 (Denham)). The requirement for personal service has the effect that a contract which truly permits discharge in another fashion or by another person, is not a contract of employment. Thus, contracts with corporations, contracts with partnerships, contracts permitting unlimited delegation and contracts which do not actually compel the performance of work but pay only on results, are each prima facie not contracts of the necessary quality (although the last category is more contestable than the first three).

Did Mr Bennett provide capital or assets towards or in relation to work for EFEX?
Mr Bennett makes the point, correctly in my opinion, that he made no significant contribution in terms of capital or assets towards his work for EFEX. Mr Bennett submits that the fact that he provided his own motor vehicle and telephone for use in his employment is an indicator, but not a strong indicator. He relies on the comment in Hollis v Vabu at [56] as follows:

Sixthly, the situation in respect of tools and equipment also favours, if anything, a finding that the bicycle couriers were employees. Apart from providing bicycles and being responsible for the cost of repairs, couriers were required to bear the cost of replacing or repairing any equipment of Vabu that was lost or damaged, including radios and uniforms. Although a more beneficent employer might have provided bicycles for its employees and undertaken the cost of their repairs, there is nothing contrary to a relationship of employment in the fact that employees were here required to do so. This is all the more so because the capital outlay was relatively small and because bicycles are not tools that are inherently capable of use only for courier work but provide a means of personal transport or even a means of recreation out of work time. The fact that the couriers were responsible for their own bicycles reflects only that they were in a situation of employment more favourable than not to the employer; it does not indicate the existence of a relationship of independent contractor and principal.

Did Mr Bennett have the ability to generate goodwill or other saleable assets?
There is no suggestion that Mr Bennett was developing, by his work with EFEX, a saleable asset, such as goodwill. Relatedly, the mode of remuneration is important (Roy Morgan Research v Federal Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448 at [42]; and Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346 at [181]). As Mr Bennett’s counsel submitted, Mr Bennett was paid $10,000 plus GST per month. The amount paid to him was not linked in any way with his performance or with any result or with any product. Mr Bennett was not at risk, in terms of his remuneration, in the performance of his work and he had nothing to gain by performance. He simply received the same remuneration. He was paid when he was on leave or when he was sick. That is consistent with someone who is in a relationship of employment.
What is the relevance of the mode of remuneration, leave (annual and sick) and taxation arrangements?
Mr Bennett accepts that there are factors pointing in the other direction. The first amongst these are the arrangements as to payment. They are suggestive of a relationship of independent contractor in that the method of payment involves invoicing monthly, the charging of GST and the fact that PAYG taxation was not withheld.
In response to EFEX’s reliance on these matters, Mr Bennett referred to the observations of Buchanan J in Trifunovski as follows (at [37]):

It is also difficult, in my view, to give much independent weight to arrangements about taxation, or even matters such as insurance cover or superannuation. These are reflections of a view by one party (or both) that the relationship is, or is not, one of employment. For that reason, in my view, those matters are in the same category as declarations by the parties in their contract (from which they often proceed). They may be taken into account but are not conclusive. These matters are less important than the adoption by the parties (where this occurs) of rights and obligations which are fundamentally inconsistent with basic requirements of a contract of employment, such as the ability to delegate the discharge of obligations under a contract to another person, or where there is a lack of control over how work is done.

For its part, EFEX relied on observations in ZG Operations about the tension between, on the one hand, a submission that the truck-driving partnerships were not conducting business of their own and, on the other, the income splitting advantages of the structures adopted (at [63] per Kiefel CJ, Keane and Edelman JJ).
There is more direct support for EFEX’s submission as to the importance of the taxation arrangements in the following observation of Jessup J (with whom Allsop CJ and White J agreed) in Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 at [70] as follows:

Fifthly, in contemporary Australia, it is impossible to ignore, and difficult to depreciate, the taxation implications of the mode of operation which parties to a relationship have voluntarily adopted. In the past, the deduction of what are now called PAYG instalments was always treated, uncontroversially, as indicative of an intention that the relationship in question was one of employment. To any suggestion that the absence of such instalments tended to point to the relationship being one of principal and independent contractor, it was often rejoined that such an argument was circular, in the sense that a consequence of the relationship being one of employment was, under legislation, that such instalments had to be deducted. In contemporary times, however, there are legislative markers on both sides, as it were. It is no longer just the absence of PAYG deductions that may make it more difficult to characterise the relationship as one of employment, it is the presence of GST collections by the putative contractor, and his or her compliance with the regulatory requirements which apply to the provision of services by persons who are not employees, that point quite strongly against the relationship being characterised in this way. These observations are made, of course, in the context of the present case, where there is no suggestion that the respondent’s participation in the GST system did not reﬂect her own conscious, well-informed, intentions.

The mode of remuneration, and I mean by that the charging of GST and the payments to a trust without the deduction of PAYG payments, is one significant factor pointing towards a finding of independent contractor relationship. It is to be noted in this context that, as I have previously said, the amount of remuneration is fixed and not variable according to result and that is a factor suggesting an employment relationship.
An entitlement to a certain amount of paid leave is a characteristic of an employment relationship. An accrual of paid leave is a feature of an employment relationship. Mr Bennett was not given a certain amount of leave. EFEX did not record an entitlement to leave in its books and nor was a formal application process in place for the taking of leave. Mr Bennett went on holidays. He gave notice as a courtesy or to alert people so that it did not clash with something else. I am inclined to think that arrangements as to leave cannot be put in the same category as how the parties label their relationship. After all, the arrangements as to leave are part of the legal rights and obligations of the parties. The absence of formal rights to leave supports a conclusion of a non-employment relationship. At the same time, it is relevant that the payment arrangements between the parties meant that Mr Bennett was paid during his holidays.
Another matter
Mr Bennett relied on the offer of employment made on 1 November 2019. The letter of offer contains the following:

This letter sets out the complete terms of your employment that are being offered and supersedes and replaces any prior agreed terms regarding your employment with EFEX (Contract). These terms and conditions of employment set out in this letter are underpinned by the Business Equipment Award 2010 (Award), the Fair Work Act 2009 (Cth) (Fair Work) and other workplace laws. These documents are not incorporated into this document in any way.

Mr Bennett points out that there is no suggestion in the letter that the previous relationship was a contractual relationship. I do not consider that this submission advances Mr Bennett’s case.

Conclusions as to the Nature of the Relationship

As will be clear from what I have said, there are matters pointing towards a conclusion of an employment relationship and matters pointing towards a finding of an independent contractor relationship. I do not consider that the understanding of the parties advances the matter for reasons I have given.
Mr Bennett might have been judged in the final analysis by results, but he was not paid by results. He was entitled to receive $10,000 plus GST every month irrespective of how he performed in terms of sales. The matters I have identified mean that the expectation must have been that he would devote his time, or the bulk of time, to his work for EFEX as was the case with Mr Brogan who was the branch manager. True it is that he was allowed to attend university and the gym during business hours and that Mr Sheehan’s concern was with the level of sales, but his relationship has the hallmarks of full-time employment with some flexibility. That is consistent with his role as a salesperson with sales targets. Furthermore, a level of control was exercised on occasions, most notably when he was told not to work so closely with Mr Brogan.
Considered by reference to the “own business/employer’s business” dichotomy, the trust and payment arrangements provide some indication of the former, but the overwhelming weight of evidence in terms of control, ability to work for others and the inability to delegate the EFEX work, leads to a conclusion of the latter.
I find that Mr Bennett was an employee of EFEX between 1 February 2018 and 8 November 2019.

Conclusion