This portion of an unfair dismissal decision of the Fair Work Coimmission sets out the curent statutory, common law and “fair work” (if I can se that expression) legal principles which apply to determing whether a person is an employee or a contractor.
“Case law
[17] The applicable legal principles to be applied when determining the nature of a legal relationship are set out in the High Court decision in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd21 (Personnel Contracting). These principles apply where a contract is written, partly written and partly oral, or wholly oral.22 For the purposes of this decision, I rely upon, but do not repeat, the reasoning and conclusions set out in Personnel Contracting in the judgements of Kiefel CJ, and Keane and Edelman JJ (at [39], [47],23 [52], [55]-[61], [74], and [88]), and Gordon J, with whom Steward J agreed (at
[174]-[177], and [180-[190]).24
[18] Prior to Personnel Contracting, case law outcomes (arising from employment versus independent contractor disputes) were almost always squarely based upon a multi-factorial analysis of the relationship (by reference to conduct engaged in during the actual performance of the relevant contract). But this approach was rejected in Personnel Contracting because, in many ways, it impinged upon one party’s legitimate contractual freedoms, and encouraged or enabled the other party to depart or walk-away from promises and agreements otherwise validly made or agreed to.25
[19] The (old law) multifactorial analysis26 used a “checklist” to tick off various factors or indicia when determining whether the totality of a relationship was that of employee, or independent contractor. But a checklist is not used in an analysis that applies the law flowing from Personnel Contracting.27 Rather, one only looks to the terms of the contract itself to identify or determine the totality of the relationship. One does not look at broad or specific factors or indicia from a generalized checklist that gives rise to ticks or crosses in boxes concerning factors or indicia that are considered around the conduct of the parties.28
[20] Following on from Personnel Contracting, it has been noted by the Full Federal Court (Jagot, Banks-Smith and Jackson JJ) in Murphy v Chapple29 that many of the provisions of the Fair Work Act operate against the background of the fundamental doctrines of the common law, with one of those doctrines being the ‘freedom to contract’. Indeed, on the question as to whether or not a person is an employee or independent contractor, the Full Court highlighted that the “essential point” is that “unless some law provides otherwise, parties are free to contract as they see fit”.30
[21] Post Personnel Contracting, the focus is now upon the terms of a contract that were in fact agreed, and the inescapable acknowledgement of same. Importantly, whether as a fence or a backstop, this normalisation of focus brings to the fore the direct application and maintenance of traditional tenets such as:
a) a person is bound by his or her own conduct at the time that a contract is entered into;
b) one cannot approbate and reprobate the legal arrangement he or she sought, enacted and took the benefit of;
c) a person is estopped from denying and acting inconsistently with the legal relationship he or she sought, enacted and took the benefit of; and
d) a party should be denied relief against a defendant (or opposing party) to the extent that any discretion to be exercised might be dependent upon a departure from the legal position that the party (or person) accepted or agreed to.
[22] To the extent that there has been any confusion or misunderstanding, Personnel Contracting has confirmed that:
a) contracts, in respect of employment and/or independent contracting, are to be interpreted in the same way that contracts are generally interpreted under the laws of Australia;31
b) the classification of the relationship that exists between parties, being that of employment or independent contractor and principal, is to be ascertained objectively by reference to the terms of a contract (identifying the rights and obligations of the parties under the contract), and not by reference to questions of fairness, or the manner in which subsequent conduct and performance might undercover a ‘reality’;32
c) a “wide-ranging review of the entire history of the parties’ dealings” is neither necessary nor appropriate for the purpose of characterising the relationship;33 and
d) the common intention of the parties to a contract (as to the type of legal relationship that they intended to create), whilst for objective determination, in the normal course, ought not be retrospectively overridden, undermined, or otherwise restricted.34
[23] This objective theory of contract (that embodies Personnel Contracting) consummates a long line of authority consistent with:
a) Blackburn J’s classic and distinguished statement in Smith v Hughes (1871) LR 6 QB 597 (at 607):
“If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.”; and
b) Lord Reid’s straightforward statement in James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 (at 603):35
“[to avoid the result] that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later”.
[24] In EFEX Group Pty Ltd v Bennett,36 Katzmann and Bromwich JJ referred to the following principles to be used for determining whether an employment relationship exists:
“6. Where the rights and duties of the parties are “comprehensively committed to a written contract”, and the contract is not a sham, varied, waived or the subject of an estoppel, the obligations established by that contract are decisive of the character of the legal relationship: Personnel Contracting at [43]–[44], [59] per Kiefel CJ, Keane and Edelman JJ; and at [183] per Gordon J (Steward J agreeing). In order to ascertain the relevant rights and obligations, the written contract is to be construed in accordance with established principles of contractual interpretation generally: Personnel Contracting at [60] per Kiefel CJ, Keane and Edelman JJ; and at [173] per Gordon J (Steward J agreeing).”
…
“10. Thus, whether the contact is written or not, or is oral in whole or in part, the characterisation of the relationship between the parties depends on their contractual rights and not on circumstances, facts or events that do not affect those rights. It follows that a “wide-ranging review of the entire history of the parties’ dealings” is neither necessary nor appropriate for the purpose of characterising the relationship: Personnel Contracting at [59] per Kiefel CJ, Keane and Edelman JJ; see also [185]–[189] per Gordon J (Steward J agreeing).
11. The principles of contract interpretation also apply to the terms of an unwritten contract that are able to be ascertained, inferred or implied. They allow regard to be had to circumstances surrounding the making of the contract and events and matters, known to the parties at the time of contracting, which assist in identifying the object or purpose of the contract. The nature of the work contracted for and the arrangements of the supply or provision of any tools or equipment to the putative employee may also be relevant. Generally, things said or done after a contract was made are not legitimate aids to its construction. In a case such as this, for a matter with no necessary connection to the contractual obligations of the parties to have any bearing on the characterisation of their relationship, “it must be concerned with the rights and duties established by the parties’ contract, and not simply an aspect of how the parties’ relationship has come to play out in practice”: Personnel Contracting at [61] (Kiefel CJ, Keane and Edelman JJ).
12. The central question that remains, under an unwritten contract as in a written contract, is whether or not a person is an employee. As was observed in Personnel Contracting at [39] per Kiefel CJ, Keane and Edelman JJ (see also [113] per Gageler and Gleeson JJ), while the dichotomy between a person’s own business and the putative employer’s business may not be perfect so as to be of universal application, because not all independent contractors are entrepreneurs, that approach is still useful. That is because it focuses attention on whether the putative employee’s work as contracted to be performed was so subordinate to the putative employer’s business as not to be part of an independent enterprise. It also avoids the danger of an impressionistic and subjective judgement, or ticking off a checklist, running counter to objective contractual analysis.
13. Once the contours of the legal relationship are identified, its characterisation as one of employment or not often hinges on two considerations identified in Personnel Contracting, in particular by Kiefel CJ, Keane and Edelman JJ at [36]-[39], each of which may involve questions of degree, namely:
(a) the extent to which the putative employer has the right to control how, when and where the putative employee performs the work; and
(b) the extent to which the putative employee can be seen to be working in their own business as distinct from the putative employer’s business.
14. However, as a cautionary note, in some circumstances the proper analysis may be more nuanced than that. As Gordon J pointed out in Personnel Contracting at [181]-
[183] (Steward J agreeing), asking whether a person is working for their own business may not always be a “suitable inquiry for modern working relationships”, given that it may not take much for even a low skilled person to be carrying on their own business. Analysis based on this dichotomy may distract from the relevant underlying analysis of the totality of the relationship created by the contract. It may also direct attention to non-contractual considerations, which are not relevant unless forming part of the contract itself. The better question may be to ask whether, by the terms of the contract, the person is contracted to work in the business or enterprise of the purported employer, so as to maintain the correct focus. That is, if the contract does not lead to the conclusion that the person was working in the business of the asserted employer, then the person will not be an employee. This approach has some traction in this case.”37
Consideration
[25] There is no question as to the parties’ intention to create legal relations between each other. The terms of the Contractor Agreement arising from that intention to create legal relations are set out wholly in writing, and duly signed by the parties.38 It follows that what the parties understood themselves, or otherwise believed, about the agreement they signed, or evidence associated with oral or email exchanges around the terms of the Contractor Agreement in the lead up to it being signed, is not relevant.
[26] In line with what the High Court has said in Personnel Contracting, the legal rights and obligations of the parties turn upon (properly construed) what the words of the Contractor Agreement say or mean, or are reasonably understood to convey. This is as opposed to, for example, the actual beliefs or intentions of the parties,39 or the actual or practical performance of the Contractor Agreement,40 or the work undertaken pursuant to same (i.e. even in cases where the actual or practical performance of the Contractor Agreement, or the work undertaken pursuant to same, is different to what the Contractor Agreement states). If something is done contrary to the terms of the Contractor Agreement, that may be a breach of the Contractor Agreement, but it is not a basis upon which the whole relationship between the parties is to be classified (or reclassified). There is no suggestion in these proceedings of any collateral contract being entered into or applying between the parties (i.e. in addition to the Contractor Agreement).41
The Sham allegation
[27] The Applicant seeks to have the Contractor Agreement treated as null and void on the basis that it is a “sham” (within the legal meaning of that term).42 Noting the applicable case law and related principles identified by the Full Bench of the Commission in Deliveroo Australia Pty Ltd v Diego Franco43 on the issue of sham contracting, there is no evidence to support the Applicant’s allegation of a sham. I deal with the Applicant’s sham allegation no further in this decision.
The mistake / misrepresentation allegations
[28] The Applicant also asserts (or implies) that she was induced to enter into the Contractor Agreement by mistake or misrepresentation, in relation to what she says are promises, agreements or understanding between the Respondent and herself that are not contained in the Contractor Agreement. Again, there is no evidence to support such allegations of mistake or misrepresentation, let alone evidence that would give rise to me making a finding (or proceeding on the basis) that the Contractor Agreement (or parts of it) ought to be considered as void or of no effect (now, or from the beginning). The evidence in this case simply does not support a finding, or otherwise extend itself into, that sort of legal territory.
The absence of ‘genuine consent’ allegation
[29] As part of, or in addition to her allegations as to mistake or misrepresentation, the Applicant also objects to the Contractor Agreement on the basis that its lacks ‘genuine consent’ (i.e. the Applicant says that she never really agreed to resign from her employment, the Contractor Agreement does not reflect (or otherwise represent) what she had sought to be included in the Contractor Agreement (especially in terms of the rate of pay), there was no time to negotiate, there was an inequality of bargaining power, and she felt pressured to sign it only days before commencing work from Canada).44 However, even if there might be cogent evidence to support this objection, which there is not,45 it is not in dispute that Applicant signed (and thus consented to) the Contractor Agreement (and all of the terms set out therein) on 29 June 2023.46 To quote Latham CJ of the High Court in Wilton v Farnworth47:
“In the absence of fraud or some other of the special circumstances of the character mentioned [i.e. duress, misrepresentation, non-disclosure, coercion, undue influence, lunacy, mistake, or abuse of a confidential relationship], a man cannot escape the consequences of signing a document by saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. Any weakening of these principles would make chaos of every-day business transactions.”48
The treatment of the Contractor Agreement
[30] There is no evidence before me that falls into the category of “fraud” or “some other special circumstance” such that the Contractor Agreement ought to be read, applied or enforced other than according to its own terms. In resolving any and all of the Applicant’s contentions,
objections and assertions as to the entering into by her of the Contractor Agreement, I find the Contractor Agreement (for the purposes of these proceedings on the evidence before me) to be valid and enforceable (in accordance with its own terms), and I apply it as such for the purposes of this decision.
The non-contractual expectations
[31] The Applicant asserts that the terms of the Contractor Agreement need to take into account various “non-contractual expectations” in relation to hours of work, and an understanding that the Applicant would be returning to fulltime employment with the Respondent upon her return from Canada to Australia.49 In rejecting these assertions, I refer to clause 10.1 of the Contractor Agreement, and the statement of Gageler J in WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456, at [117]. I reach the same conclusion (for the same reasons) in relation to the Applicant’s assertions as to variation/s of the Contractor Agreement, which encompasses her contention that she possibly still (to this day) remains ‘employed’ by the Respondent.50
The Applicant’s submissions on employee v independent contractor
[32] The Applicant’s contentions surrounding the terms of the Contractor Agreement giving rise to a relationship of employer and employee, as opposed to that of principal and independent contractor, are:
a) the Applicant was required to provide the Services solely to the Respondent. As an aside, the Applicant notes that she did not advertise her services to others;51
b) there is no unilateral right to subcontract the Services under the Contractor Agreement, with any such right to do so theoretical rather than real;52
c) the Respondent supplied the Applicant with a laptop computer to provide the Services. This laptop needed to be returned to the Respondent upon the Contractor Agreement coming to an end;53
d) the Applicant invoiced the Respondent each fortnight for the same amount, and was paid fortnightly by the Respondent. Such payments were not dependent upon the completion of any particular task by the Applicant;54
e) the Applicant created no ‘good will’ or saleable assets for herself. Rather, her work created good will and saleable assets solely for the Respondent’s business;55
f) the Applicant’s work hours in Canada were aligned with Australian work hours, despite the vastly different (upside down) time zones;56
g) the Applicant was not engaged to work on a specific task, project, or time period;57 and
h) the Applicant continued to receive the benefit of the Respondent’s share option scheme post resigning from her employment with the Respondent in June 2023. As
I understand it, the Applicant says that receiving the benefit of the Respondent’s share option scheme post her resignation reflects that she remained an employee of the Respondent, or was still being treated like she was an employee of the Respondent (as opposed to an independent contractor).58
[33] Subparagraphs [32](g) and (h) above are not matters (or items) that assist in the resolution of these proceedings. In this regard:
a) in respect of subparagraph [32](g), an engagement pursuant to a specific task, project, or time period can be made with an employee or an independent contractor, as can arrangements as to permanent employment (employee) or on-going service provision (contractor); and
b) in respect of subparagraph [32](h), the Respondent’s share option scheme does not require employment to continue to maintain the benefits accrued under it. Its application to the Applicant post her employment with the Respondent is therefore not a factor that supports the Applicant’s contentions as to ‘employment’ (on-going or otherwise) in this case.59
[34] As to subparagraph [32](f) above, and the issue of the Applicant’s work hours in Canada being aligned with Australian work hours,60 Mr Barry of Counsel, on behalf of the Respondent, submitted:
“… and while the applicant has said … that her working hours while in Canada were aligned with Australia and New Zealand, there has been frankly no evidence offered in support of that, and either way by any requirement, as it were, that was placed on her by the respondent to in fact do this, other than the submission that there was an understanding, or even perhaps any evidence of work that may have been done that is consistent with those times.
By my reckoning if that were correct, factoring in the time difference each day between Australia and that time zone within Canada, that would mean that the applicant’s work day would start at 6 pm each day in order to align with 9 am the following day in Australia, and it would then have to go through to at least 2 am in the morning in Canada to align with 5 pm in Australia.
There is, in my submission, no evidence that’s been offered in the application that would be consistent with those work hours, but it is of course the evidence of the respondent that in any event that was not required, because it is simply not set out in the agreement.”61
[35] In concurring with the foregoing submissions, I find that the evidence before me simply does not support the Applicant’s contentions as to her work hours in Canada being aligned (or being required to be aligned) with Australian work hours.62 More relevantly, however, is that even if the evidence did support the Applicant’s contentions in this regard, there is no term of the Contractor Agreement that requires such hours to be worked (i.e. the focus is upon the terms of the Contractor Agreement, not how things played out practically).
The Respondent’s submissions on employee v independent contractor
[36] In response to the remainder of the Applicant’s contentions (contained at subparagraphs [32(a) to (e)] above), the Respondent reiterates that the case law confirms that the nature of a relationship (in a case such as this, with a wholly written contract) is to be determined from (or found within), the terms of the written contract. By reference to those written terms, the relationship between the Applicant and the Respondent is most appropriately characterised as one of independent contractor and principal.63 In this regard, the Respondent refers to the effect of the following terms of the Contractor Agreement:
a) the Applicant holds full control of how she performs her work or delivers the Services, with there being no constraints around her doing so;
b) the absence of fixed days of work, and fixed hours or times of work;
c) the payment terms only being activated post receipt of an invoice from the Applicant (noting that after entering into the Contractor Agreement, the Applicant issued the Respondent with “tax invoices” for the Services to the Respondent (containing an ABN (referrable to the Applicant’s name) and a GST component (for subsequent taxation declaration and/or remittal by the Applicant to the ATO));
d) a recovery of money term, whereby if the Applicant did not or could not supply the Services to the Respondent, the Respondent had the contractual right to recover monies from the Applicant;
e) the requirement for the Applicant to maintain her own insurances;
f) the express acknowledgement (or promise) by the Applicant that the Contractor Agreement would not create an employment relationship;
g) the absence of an express term that prohibits the Applicant from refusing to perform work (or certain work); and
h) the absence of terms relating to leave, superannuation, and being bound by the Respondent’s policies and procedures.64
The ‘right to control’ under the terms of the Contractor Agreement
[37] Turning to the right to control the Applicant in relation to her work activities, I accept that the terms of the Contractor Agreement provide the Applicant with full control over how she performs her work, and do not stipulate fixed days or hours or times of work. There is no evidence that:
a) anyone from the Respondent kept track of, or recorded, the hours or times worked by the Applicant each week/fortnight/month; or
b) the Applicant herself reported (or regularly reported) her work hours or times or days of work to the Respondent.65
[38] But again, more important is the fact that there is no obligation under the Contractor Agreement for the Applicant to perform any particular work hours or work schedule. In other words, the right to control is not about any control that was actually exercised over the Applicant by the Respondent, but the Respondent’s right to control the work activities of the Applicant by reference to (or under the specific terms of) the Contractor Agreement.
[39] The Services that the Applicant provided to the Respondent were undertaken remotely (from overseas). There is no requirement under the terms of the Contractor Agreement for the Applicant to attend any particular work meetings or conferences (in person, or online). Whilst the Services provided under the Contractor Agreement are to be “in accordance with [the Respondent’s] specifications” (see Clause 1.1(a)), that is ultimately a requirement in relation to work output or product, as opposed to (for example) a specification as to the manner in which the Applicant is to perform her work to provide the Services.
[40] The Applicant’s ability to subcontract the Services to be provided pursuant to the Subcontractor Agreement is not automatic, and constrained (requiring permission or consent from the Respondent, which can be withheld at the Respondent’s absolute discretion). The ability to subcontract (or not subcontract) out work or services when characterising a relationship is significant, but not definitive. Even giving due weight to the absence of a right to subcontract the Services provided to the Respondent under the terms of the Contractor Agreement, on the topic of ‘control’, I give more weight to the terms of the Contractor Agreement that provide the Applicant with full control as to how she performs her work, and the absence of a right under the Contractor Agreement to stipulate fixed days or hours or times of work for the Applicant to undertake or deliver the Services to the Respondent.
[41] I find that the terms of the Contractor Agreement on the issue of a ‘right to control’ weigh and point towards (and are consistent with) the existence of an independent contractor and principal relationship, as opposed to an employee and employer relationship.
Own business v Respondent’s business
[42] On the issue of whether the Applicant can be seen to be working in her own business, as distinct from working in the Respondent’s business,66 I note the following:
a) the remuneration and taxation arrangements under the Contractor Agreement are core terms that applied from its inception, and were foundational to its formation (see definition of “Payment Terms” (Schedule page) and Clause 3 “Price and Payment” of the Contractor Agreement).67 The Applicant’s post-contractual conduct in issuing invoices for payment in respect of “project and product management consultancy” services is wholly consistent with these terms.68 The Contractor Agreement makes no provision for leave, requires the Applicant to provide for her own insurances, and provides that the Respondent is not liable for expenses incurred by the Applicant in supplying the Services (unless agreed prior);69
b) the Contractor Agreement uses the term “personnel” in clauses 2.1, 4.1(a), 5.5, 6.1(c), 7.1, 7.2, 9.4(b), 10.9, and 11 (definitions of “New Materials” and “Your Materials”). It defines the term “personnel” as meaning “in respect of a Party, any
of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.” I take the use of this term in the Contractor Agreement to mean that whilst the Applicant could not subcontract the Services (without express approval by the Respondent), there was no prohibition upon her engaging persons to assist her in the delivery of the Services (as personnel) under the Contractor Agreement (‘subcontractors’ being separately identified to ‘employees’ under this definition). Again, the focus is upon what the Contractor Agreement allows or enables (directly or indirectly), not what actually occurred, or the practicalities of actually doing what the Contractor Agreement provides for; and
c) the Applicant’s ownership of work outputs or intellectual property under the terms of the Contractor Agreement are limited (or non-existent) by reference to the definition of “Your Materials”, which excludes materials falling within the agreement definitions of “New Materials” (created during the term of the Contractor Agreement) and “Our [Respondent’s] Materials”. The Contractor Agreement thus confines (or simply preserves) the Applicant’s ownership of materials to only those created or owned by her – prior to the commencement of the Contractor Agreement.70
[43] In Personnel Contracting, Justice Gordon relevantly stated:
“The better question to ask is whether, by construction of the terms of the contract, the person is contracted to work in the business or enterprise of the purported employer. That question is focused on the contract, the nature of the relationship disclosed by the contract and, in this context, whether the contract discloses that the person is working in the business of the purported employer. It invites no inquiry into subsequent conduct. A consequence of a negative answer to that alternative question may be that the person is not an employee. Another consequence may be, but does not have to be, that they have their own business. As five judges of this Court said in Hollis v Vabu Pty Ltd, both employees and contractors can work “for the benefit of” their employers and principals respectively, and so that, “by itself”, cannot be a sufficient indication that a person is an employee (emphasis added). …”71
[44] In my view, the fact that the Applicant does not get to keep or otherwise retain ownership of the products or intellectual property that was created during or as part of her work delivering the Services to the Respondent is unextraordinary. Such terms are commonplace in employment relationships (including via implication in fact or law), but there is no evidence that such terms are common or uncommon in independent contractor and principal relationships. Again, unless the law provides otherwise, parties are free to contract (and agree) as they consider appropriate. The fact that the parties in this case have entered into a contractual term that benefits the Respondent by giving it ownership and control over work outputs and intellectual property is not something (in the facts of this case) that points towards the existence of an employee and employer, as opposed to an independent contractor and principal, relationship. Nor do I find that it is a factor (in and of itself) in this case that weighs towards (on a totality basis) the Applicant working in the business of the Respondent. This is not a case where (on the evidence) the Services provided by the Applicant to the Respondent create some form of stand-alone result or product (intellectually or physically).
[45] I equally do not consider that the fact that the Respondent supplied the Applicant with a laptop computer during the engagement period, which she returned (at her own expense) to the Respondent (per Clause 9.4 of the Contractor Agreement) at the end of the engagement period, is a factor (in and of itself) in this case that weighs towards (on a totality basis) the Applicant working in the business of the Respondent, or the existence of an employee and employer relationship.
[46] Clauses 1 and 2 of the Contractor Agreement enable the Respondent to recover any monies paid for Services that are not, have not, or cannot be, provided by the Applicant. I find that this term weighs against any finding that the Applicant was working in the Respondent’s business. It is not a term that could be included in an employment contract.
[47] Payment by regular fortnightly invoices pursuant to the terms of the Contractor Agreement, as opposed to the regular payment of wages, weighs in favour of a finding as to the Applicant working in her own business, and the existence of an independent contractor and principal relationship (as opposed to an employee and employer relationship). Again, the remuneration arrangements under the Contractor Agreement are core terms that applied from its inception, and were foundational to its formation.72 This finding (pointing to the Applicant working in her own business, and in favour of the existence of an independent contractor and principal relationship) is also supported by the terms of the Contractor Agreement requiring the Applicant to be responsible for her own insurances, and the absence of terms in the Contractor Agreement as to leave (of any form).
This part of a decision of the Fair Work Commission in an unfair dismissal case is an excellent summary of the current statutory, fair work (if I can use that label) and common law legal principles which are applicable when determining whether a person is a contractor or an employee.
“[48] The terms of the Contractor Agreement dealing with restraint of trade (clause 4) and confidential information (clause 6) are terms that can be agreed to in both an independent contractor and principal relationship, or an employee and employer relationship.73 I treat them as neutral in relation to any finding as to the Applicant working in the Respondent’s business.
[49] In the facts of this case, and on the basis of my findings at paragraphs [7] to [16], and
[42] to [48], of this decision, I conclude that the terms of the Contractor Agreement (in totality) point in favour of the Applicant working in her own business, as distinct from working in the Respondent’s business.
Other matters
[50] The Applicant has asserted that her lack of evidence in this case arises from her inability to access relevant documents or records in the possession of the Respondent.74 It is noted that the Commission has the power to make orders compelling production of documents or categories of documents.75 The Applicant has made no application for such orders to be made.
[51] The Applicant also asserts that it is in the ‘public interest’ for the multifactorial test to be applied in these proceedings (i.e. notwithstanding the decision of the High Court in Personnel Contracting rejecting the use of the multifactorial test). She says that there is precedent for this in decisions of this Commission in Aspire 2 Life Pty Ltd v Ms Jessica Tidmarsh [2024] FWCFB 289 (Tidmarsh) and Mukherjee v Sanden Care Options Pty Ltd [2024] FWC 588 (Mukherjee).76 Having reviewed each of the decisions in Tidmarsh and Mukherjee, neither refer to, let alone apply, a multi-factorial test (based upon the public interest,
or otherwise). Further, the outcomes in both of those cases turn upon their own particular facts and evidence. They are not ‘precedents’ (or analogous) for the purposes of these proceedings.
[52] One of the broad contentions that the Applicant makes in these proceedings is essentially that contractual terms and tax arrangements aside, she was essentially doing the same job in Canada that she did in Australia, but being classified and paid as an independent contractor and not an employee. But the actual written terms of the Applicant’s (former) employment contract77 stand in stark contradistinction to the terms of the Contractor Agreement, and the Applicant has failed to bring evidence to support her broad contention.
[53] In some decisions post Personnel Contracting, decision-makers appear keen to emphasize that ‘labels’ (or the manner in which parties have chosen to characterise their relationship or parts of their relationship) are not relevant. I reject such a blanket approach. It is not consistent with Personnel Contracting.78
[54] Labels may not be determinative, but they can be relevant. They ought not be ignored, or simply said to be neither here nor there. They form part of the factual matrix to be considered (i.e. just as one might consider the job title (or label) that parties have used to identify an employee’s role).
[55] The facts are that the Applicant signed the Contractor Agreement, and issued tax invoices to the Respondent for work she performed providing the Services (using the descriptor of “project and product management consultancy” services). This does not change the nature and content of the parties’ relevant rights and obligations under the Contractor Agreement, but it does awkwardly rub up against the Applicant’s assertions in her evidence that there was some sort of understanding at some level, by not only herself, but the Respondent, that she was an employee of the Respondent whilst in Canada.79 To the extent that there might be any suggestion on the Applicant’s case that there was some form of common understanding at the time that the Contractor Agreement was entered into, or that the Applicant’s relationship with Respondent whilst working in Canada was one of employment, the terms of the Contractor Agreement and the evidence in these proceedings say otherwise.
Conclusion and disposition
[56] In the ultimate sense, on the basis of the evidence that is before me, and considering the submissions of the parties, I find that the nature of the relationship between the parties (or its totality), as disclosed by the terms of the Contractor Agreement, is that of an independent contractor and principal relationship, not an employer and employee relationship.
[57] The question of whether the Applicant was engaged by the Respondent “as a national system employee” for the purposes of the Act (including Part 3-2) during the period of the Contractor Agreement is to be answered “No”.
[58] The Commission has no jurisdiction to hear or otherwise determine whether or not the Applicant was unfairly dismissed by the Respondent. Her application for an unfair dismissal remedy is dismissed, and an order to this effect [PR784927] will be issued contemporaneously with this decision.”
Music v Sharesight Pty Ltd [2025] FWC 634 delivered 4 March 2025 per Boyce DP