What follows is a section from a decision of the Fair Work Commission in the first stage of a general protections dismissal case dealing with the issue whether the person making the application was an employee.
“Legislative provisions
[27] The terms “employee” and an “employer” carry their ordinary meanings27. Section 15AA of the Act deals with how to determine the “ordinary meanings” of the terms “employee” and “employer”. It was inserted by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, and commenced operation on 26 August 2024. It does not apply to an application that was already “on foot” before 26 August 2024, but does apply to applications filed after 26 August 2024, such as this one, with respect to relationships in existence or entered into before 26 August 2024.28
[28] Section 15AA of the Act reads:
“(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
(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.
(3) Subsections (1) and (2) do not apply to the following provisions of this Act:
(a) Divisions 2A and 2B of Part 1-3;
(b) Part 3-1, to the extent that Part 3-1 applies only because of the operation of section 30G or 30R.”29
[29] In determining whether the Commission’s jurisdiction has been enlivened for the purposes of s.365 of the Act, the question in this case is whether or not the Applicant was an employee of the Respondent as at the date that the engagement between GAP (or her) and the Respondent came to an end on 24 December 2024, such that the Applicant was susceptible to being “dismissed” within the meaning of s.386 of the Act on that date. As to this task, Deputy President Roberts stated in Murray v 239 Brunswick Pty Ltd:30
“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.
The common law approach has been set out in numerous decisions of the courts and in decisions of this Commission. In Jiang Shen Cai trading as French Accent v Do Rozario the Full Bench summarised the approach to the determination of the employee/contractor issue including whether the worker is the servant of another in that other’s business or whether the worker carries on a trade or business of his or her own behalf, the nature of the work performed and the manner of its performance, the identification and application of the relevant indicia to the circumstances, and the terms of the contract between the parties.
In the same decision, the Full Bench identified the various indicia that are ordinarily considered in an assessment as to the nature of the relationship. They include the actual exercise, or the right to exercise, control over the putative employee, whether the worker performs work for others, or provides tools and equipment, whether the work can be delegated, whether the worker is remunerated by periodic wages or salary or by reference to completion of tasks and whether the worker is presented to the world at large as an emanation of the putative employer’s business. The Bench also cautioned
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.”31
Consideration
[30] In determining whether or not the Applicant was an employee of the Respondent, I need to assess the true substance, practical reality and true nature of the relationship between the Applicant and the Respondent, having regard to the totality of the relationship between them, the terms of any contract between them, and how that contract was performed in practice.
[31] There are clear differences between the Contractor Marketing Engagement and the CEO Engagement. This is reflected in the two options arising from the 1 March 2024 meeting (see paragraph [12] of this decision). That said, the evidence identifies that the Applicant was at all times an emanation of GAP.
[32] The title of CEO, the presentation of the Applicant as an employee of the Respondent to staff, clients, and the public, and the nature of the work performed by the Applicant in the Respondent’s business, are all indicative of an employment relationship.
[33] In terms of the CEO Engagement, I do not accept that the hours worked by the Applicant (in or out of the office), or the duties performed by the Applicant, arise because of expectations by the Respondent as to those hours or duties. The working hours undertaken by the Applicant might equally be worked by an independent contractor or an employee. It is clear that it was a term agreed between the parties that the remuneration agreed to be paid by the Respondent to GAP was in compensation for any and all hours worked by the Applicant during the CEO Engagement, and for any and all duties or other work performed by the Applicant (i.e. whether such duties or work were indicative of a CEO role, or otherwise).32
[34] I accept that the Respondent had the right to direct the Applicant in the performance of her work as CEO. However, the evidence does not establish that such right to direct extended to a right to require “how” such work was performed.
[35] Whilst it is also true that the work performed by the Applicant more than likely gave rise to the creation of goodwill in the Respondent’s business, it can also be said that the Applicant was creating goodwill in her own business. For example, GAP’s own marketing materials point to the Applicant’s past experience as a Co-CEO and a growth specialist in the start-up community.33 There is no suggestion that the Applicant would not market her work and achievements at the Respondent when marketing or furthering GAP’s own business interests moving forward to secure work from other clients.
[36] The manner in which the Applicant was remunerated for the CEO role was via the payment of tax invoices issued by GAP to the Respondent. The Applicant never sought to be remunerated in any other manner. Indeed, the method of remuneration was based upon how the Applicant had chosen to structure her affairs, through GAP, including upon the provision of professional advice as to her taxation and financial affairs.34
[37] Another aspect of the Applicant’s remuneration for the CEO role warrants mention. The evidence discloses that the parties reached an agreement for the Applicant, through GAP, to
perform the CEO role on an interim basis, for the amount of $17,000 (plus GST) per month. What is not clear on the evidence is whether, if the parties had turned their mind to the Applicant being an employee, that the same remuneration would have been agreed.
[38] In other words, it simply cannot be the case that the amount of $17,000 (plus GST) per month would have been agreed by the Respondent as a wage, or is to be converted to a wage, such that notice of termination, leave or other entitlements are to be applied at this figure. In short, s.15AA does not have the effect of converting payments made under invoices into wages, or converting terms agreed between the parties (that they thought applied to an independent contracting arrangement) into the terms of an employment contract. Rather, s.15AA is applied to determine the relationship between the parties. What terms actually apply after a (wrongly classified) independent contractor is found to be (as a matter of practical reality) an employee is up to a court to determine, including by reference to principles grounded upon estoppel. It certainly does not follow that the more beneficial terms of a wrongly classified independent contracting arrangement remain as terms of employment for the employee, whilst the less beneficial terms of the independent contracting arrangement are uplifted to more beneficial employment terms. There must be both upside and downside (or balancing) to any overall outcome, including the inherent risks that relevant terms and conditions of employment may end up being less than those to which the person enjoyed as an independent contractor.
[39] The suspension of the Applicant, the subsequent investigative process, and the manner in which the relationship between the parties was brought to an end, all point to the Applicant being employed by the Respondent. These matters (or the approach adopted by the Respondent to these matters) were unexplained by the Respondent on the evidence.
[40] As Deane J stated in Stevens v Brodribb Sawmilling Co Pty Ltd,35 there are always “a circumfluence of competing criteria and indicia”36 when determining whether a particular relationship is or was one of independent contractor and principal, or employer and employee. In this case, the criteria are very much finely balanced. That said, the manner in which the relationship was dealt with in December 2024, and brought to an end that month, points strongly in favour of the Applicant being an employee of the Respondent.
[41] I am only required to determine whether the Applicant was an employee of the Respondent as at the date of her purported dismissal (i.e. 24 December 2024). In other words, it is not necessary for me to determine at what point in time the Applicant first fell within the s.15AA definition of employee. My overall impression of the true substance, practical reality and true nature of the relationship between the Applicant and the Respondent as at 24 December 2024 is that it was a relationship of employment. It follows that I also find that the Applicant was “dismissed” on 24 December 2024.
[42] Whether or not the Applicant was an employee of the Respondent throughout the term of the CEO Engagement is a matter for a court of competent jurisdiction to determine. As Beaumont DP stated in Joel Minchin v Civmec Construction & Engineering Pty Ltd:37
“[46] It is worth outlining s.370 of the Act, which, in setting out the pre-requisites for the making of a general protections court application, provides an overview of the next steps for the conduct of the Applicant’s application:
- A person who is entitled to apply under s 365 for the FWC to deal with a dispute must not make a general protections court application (as defined in s 368(4)) in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
[47] The precursor to the issuing of the required certificate under s.368(3)(a) is that the Commission must deal with the dispute by conducting a conference and reach a level of satisfaction ‘that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful’. Hence for present purposes and as a result of my determination, this matter will now be listed for conference in order to explore the possibility of resolution. A notice of listing will be issued shortly.
[48] Finally, while I have determined the Applicant was dismissed by the Respondent and is therefore entitled to apply under s.365 of the Act for the Commission to deal with his dismissal dispute, it should be noted that the Full Court in Coles Supply Chain Pty Ltd v Milford38 made observations of the following nature regarding s.370 of the Act and the making of a general protection court application:
(a) the Act establishes multiple alternate pathways for an applicant and prospective litigants;
(b) Section 370 of the Act is to be interpreted against the background that while the Commission may determine the question of a person’s entitlement to make an application to it, this may not be conclusive; and
(c) this is because a Court may ultimately decline to recognise an ‘application’ or resulting certificate granted by the Commission as valid, if called upon by a Respondent to determine a subsequent objection to the competency of a general protections court application under s 370 of the Act.”39
[43] I will order that the Respondent’s jurisdictional objection be dismissed. The Application will now be listed for a Conference under s.368 of the Act, with a Notice of Listing to be issued separately by my Chambers in due course.”
Milne v Festoon Lighting Australia Pty Ltd [2025] FWC 3373 delivered 11 November 2025 per Boyce DP