Labour hire arrangements and the fair work system

This extract from a decision of the Fair Work Commission contains the following very useful analysis of labour hire arrangements in the context of the Fair Work Act.

“Labour hire arrangements

“[67]

Factual scenarios involving labour hire or on-hire labour arrangements are at least one step removed from questions as to whether a particular relationship is one of employer and employee, or principal and independent contractor. Indeed, the issue of ‘characterising’ a contractual relationship as one of employment or independent contracting is different to the issue of identifying who are the parties to a contract. Again, an employment contract must be in existence between two parties before an employment relationship can be established or otherwise exist.

[68]

It follows that the core issue for resolution in a disputed labour hire arrangement, where an individual asserts that he or she is employed by the ‘client’ (or host employer) of the labour hire business, is essentially one focused upon the identification of the relevant ‘employer’ (i.e. the labour hire business, or its client (the host employer)). In this regard, the real substance, practical reality and true nature of the relationship between the individual (purported employee) and the person (purported employer, being either the labour hire company, or the client), will in many cases (after analysis of the practical workings of the relationship, including the making inferences as to conduct) end up focusing upon the context of the relationship, and the terms of

80 Jiang Shen Cai trading as French Accent v Do Rozario [2011] FWAFB 8307, at [30].

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the relevant written contract (i.e. where one exists). In undertaking this task, the following principles apply:

(a)

where conduct after a contract has been entered into is relevant to the identification of an employer between two or more possibilities, it is important to single out exactly what type of conduct might assist. In this regard, many of the criteria that apply to the determination of whether a person is, or is not, an employee or independent contractor, are of no particular significance by reference to the normal workings of a labour hire placement or assignment. For example, when a labour hire business directs one of its employees to work at a particular client, the employee will ordinarily (and on an ongoing basis), need to:

take directions from, or be supervised by, certain persons employed by the client; and/or

ii)

integrate into the client’s operations:

•

for example, by attending team meetings and seminars, following business and safety policies and procedures, using business specific software and systems, and communicating internally and externally as being part of, or associated with, the client’s business; and

•

by having the client’s management check and sign-off on hours of work via timesheets;

(b)

the practical effect of the foregoing is that the labour hire employee is taking most of his or her day-to-day direction from the client, and has their working hours (including start and finish times, tea breaks, lunch breaks, and leave) monitored, managed and approved by the client. But the reality, or the very essence of a genuine labour hire arrangement, is that a labour hire business engages persons (via employment, or otherwise) specifically for the purpose of having such persons work in the business of another (i.e. not only working in, but integrating into, a client’s business);

(c)

an employee of a labour hire business, directed to work at a client (i.e. the business of another), does not, by some form of osmosis or happenstance, become an employee of the client. The whole purpose of a labour hire business is to place suitably qualified persons into the business of another, without such persons becoming an employee of that other business. There is nothing at law prohibiting such arrangement, or requiring that a written contract signed one day, subsequently due to conduct, becomes something else. As Vice President Watson stated in Arcadia v Accenture Australia:81

“Labour hire arrangements of this type are common in industry and have generally been held to create no employment relationship between a client and a worker. Where the documentation signed by the parties is clear as to the nature

81 (2008) 170 IR 288.

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of the respective relationships and consistent with practices adopted by the parties it is appropriate to give those terms their full effect.”82

(d)

there is nothing wrong, bad, or illegal in a genuine labour hire arrangement. As the Full Bench of the Commission stated in FP Group Pty Ltd v Tooheys Pty Ltd83:

“[19] The starting point for the consideration of the position here is that the mere existence of an arrangement under which a first company provides labour to a second company does not point to the second company being the employer of the labour so provided. The general position was stated by Buchanan J in Fair Work Ombudsman v Ramsey Food Processing Pty Ltd84 as follows:

‘[60] … arrangements whereby labour is provided by one company to another, without the recipient becoming thereby an employer, are longstanding and unremarkable. There appears no place for an assumption of illegality or illegitimate purpose from the mere fact that a “labour hire” arrangement has been put in place. The Australian cases recognise that, provided the arrangement meets certain objective criteria.

[61] Utilisation in Australia of labour hire arrangements has increased significantly in past decades. There is no doubt that sometimes such arrangements reflect a desire by the proprietors of a business to avoid liability for employment related obligations. That is not illegal as an objective.’

[20] A similar observation was made by Merkel J in Damevski v Guidice85:

‘[173] In general, the courts have held that the interposition of a labour hiring agency between its clients and the workers it hires out to them does not result in an employee-employer relationship between the client and the worker: see Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438; Skilled Engineering Pty Ltd v Gill (unreported, Full Court of the South Australian Supreme Court, King CJ, Cox and Bollen JJ, 11 July 1991); McMahon Services Pty Ltd v Cox (2001) 78 SASR 540; Swift Placements Pty Limited v Workcover Authority of New South Wales (Inspector May) [2000] NSWIRComm 9; (2000) 96 IR 69; Drake Personnel Ltd v Commissioner of State Revenue [2000] VSCA 122; [2000] 2 VR 635; Construction Industry Training Board v Labour Force Ltd [1970] 3 All ER 220; McMeechan v Secretary of State for Employment [1996] EWCA Civ 1166; [1997] ICR 549; Montgomery v Johnson Underwood Ltd [2001] EWCA Civ 318; [2001] ICR 819.’”86

82 Ibid, at [18], citing Wilton v Coal and Allied Operations Pty Ltd (2007) 161 FCR 300, and Wilton v Coal & Allied Operations Pty Ltd (2007) 162 IR 264.

83 (2013) 238 IR 239; [2013] FWCFB 9605.

84 [2011] FCA 1176; (2011) 198 FCR 174.

85 (2003) 133 FCR 438.

86 (2013) 238 IR 239, at 246-247, [19]-[20].

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[69]

In the case of Gothard, in the matter of AFG Pty Limited (Receivers and Managers appointed) (in liq) v Davey (Gothard),87 Justice Edmonds of the Federal Court highlighted the principles to be considered when seeking to identify an employer (from two or more possibilities, within the same corporate group, or otherwise), as follows:

“52. Unsurprisingly, the outcome in cases which have been concerned with identifying an employer of a person or group of persons from two or more possibilities, whether from within the same group of companies or otherwise, has turned on their own facts and, in consequence, the case law in this area is of limited assistance. Nevertheless, it is possible to discern certain general principles that the courts have applied in the identification process. The courts have adopted the position that in undertaking this exercise, they are entitled to take a wide view of the putative relationship, beyond the terms of the contractual documentation, to examine how the parties conducted themselves in practice and whether, where there is contractual documentation, the reality of the situation accords with the terms of that documentation or whether it points to another entity being the employer.

53. I thought it would be helpful if I analysed these principles before moving to consider the evidence so to give guidance to that consideration, in particular, the relative weight to be accorded to different matters.

54. In In the matter of C&T Grinter Transport Services Pty Ltd (In Liquidation) & Grinter Transport Pty Ltd (In Liquidation) (Controller Appointed) [2004] FCA 1148, Finn J at [20] said:

‘[20] The principles to be applied in the identification of the employer of an employee where there are two or more possible employers, are reasonably well settled. For present purposes I would note the following:

(1) A contract of service cannot be transferred by one employer to another or novated as between them without the employee’s consent: Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014; Re Coogi Nominees Pty Ltd (Administrators appointed); McCluskey v Karagiosis (2002) 120 IR 147. Questions of estoppel apart: Smith v Blandford Gee Cementation Co Ltd [1970] 3 All ER 154; the employee’s consent must be a real one whether express or implied and is “not to be raised by operation of law”: Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 at 443.

(2) The totality of the circumstances surrounding the relationships of the various parties including conduct subsequent to the creation of an alleged employment relationship is relevant to the assessment to be made: Romero v Auty (2001) 19 AGLC 206 at [10] and [42]-[44].

(3) Documentation created by one or more of the parties describing or evidencing an apparent employment relationship will be relevant to, but not necessarily determinative of, the true character of that relationship:

87 [2010] FCA 1163; (2010) 80 ACSR 56.

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Pitcher v Langford (1991) 23 NSWLR 142; Marrs Fabrics Pty Ltd & Nathan Wholesale Fabrics Pty Ltd v Whipps (1991) 33 AILR 167. In determining the identity of a disputed employer, the Court is entitled to consider “the reality of purported contractual arrangements”: Dalgety Farmers Ltd t/a Grazcos v Bruce, NSWCA, 3 August 1995. The documentation may have been brought into existence for other purposes, for example, tax minimisation or the reduction of insurance premiums, without reflecting the reality of the parties relationship: ibid; Pitcher v Langford, at 149; Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454.

(4) Conversations and conduct at the time of the alleged engagement of the employee is of considerable significance: Romero, at [9]. The beliefs of the employees as to the identity of their employer is admissible and is entitled to weight: Pitcher v Langford.

(5) In cases of the engagement of new employees to work in a business in which a number of separate corporate entities participate otherwise than as partners:

‘… it was open to those controlling the business to select which company should be the employer provided that the selection was consistent with the financial and administrative organisation of the business and was not otherwise a sham.’

See Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd, FCA, Ryan J, 19 November 1998.”

55. The majority of the NSW Court of Appeal (Basten JA dissenting) made the following observation in Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 at [59] regarding the court’s earlier decision in Pitcher v Langford (1991) 23 NSWLR 142:

‘The result in Pitcher v Langford turned on its own facts, and on the need for error in point of law. There is no doubt, however, that without going so far as to find a sham the “reality of purported contractual arrangements” (per Handley JA) can be considered, and the case illustrates that it can extend to the identity of a contracting party and that it can be found that a purported contracting party was not in reality party to the contract even where a written contract gives it as the party.’

56. The majority further noted (at [61] – [62]) that determination of the entity that entered into a contract is based upon an objective assessment of the state of affairs between the parties.

57. In Dalgety Farmers Ltd (t/as Grazcos) v Bruce (1995) 12 NSWCCR 36, Kirby ACJ (with whom Clarke and Cole JJA agreed) made the following observations:

[2026] FWC 3388

‘Disputes concerning the employment of shearers are not uncommon. Specifically, disputes have quite frequently arisen out of “paper” arrangements designed to settle the assignment of employment to a particular organisation … There is no alternative in such cases but to examine the detailed evidence.

…

In disputes concerning the existence of employment-type arrangements, and the characterisation of those arrangements, the proof of paper documentation, although relevant, will not necessarily he determinative … Priestley JA and Handley JA in Pitcher … made it plain that, in determining the identity of a disputed employer, the Court is entitled to consider the reality of the purported contractual arrangements …

[T]he paper arrangements [are] not irrelevant, and should not be ignored … In determining whether a contract of service has been entered, and if so with whom, it is necessary to look to the circumstances of the engagement and to ascertain who it was that offered employment, and whether the worker accepted that offer. To determine whether what then ensued was indeed employment (in the sense of a contract of service) it is necessary to look to the whole of the relationship…. Thus the search which is on is for the essence of the relationship, not the simple touchstone of actual control, or the right of control.’

58. In Pitcher, at 150, the NSW Court of Appeal observed that establishment of an employment relationship, where in dispute, will often take a court into a detailed examination of the features of the relationship between the parties. This case was recently followed in Sturesteps v McGrath [2010] NSWSC 169, a case involving the identification of the employer in a corporate group.

59. It is open to persons controlling a business in which a group of companies is involved to select an entity within the corporate group to be the employer. However, as Ryan J pointed out in Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd [1998] FCA 1465, if such a selection is to be made, the arrangement must be consistent with the financial and administrative organisation of the business in order to be effective.

60. Aspects of the practical realities of the relationship which have been considered relevant in the cases referred to above, include a consideration of the entity which:

(a) had practical and legal control and direction of the employees;

(b) made decisions about hiring;

(d) made decisions about the level of remuneration;

(e) actually paid remuneration;

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(f) communicated with employees about leave; and

(g) made decisions about termination of employment.”

[70]

In Mark Erwood v Hays Specialist Recruitment (Australia) Pty Ltd; Grains Research Development Corporation; Francis Ogbonnaya88, Deputy President Dean made the following findings:

“[23] In his submissions, the Applicant also contended that the Second Respondent [Client/Host Employer] was the true employer. He said the Commission’s role was to “discharge its statutory duty under section 15AA of the Fair Work Act 2009 to determine the identity of the employer based on the practical reality of the work performed”.

[24] He gave evidence as to the extent of the control the Second Respondent had over his work. The Second Respondent acknowledged that the Applicant performed work for it at its premises, used its computer equipment, and gave him directions about his work, and does not dispute that it instructed the First Respondent to end the assignment.

[25] However, for the reasons given below I am satisfied and find that the Applicant was employed on a casual basis by the First Respondent [Labour Hire Business] and was not employed by the Second or Third Respondent.

[26] First, there is no dispute that the Applicant entered into a contract with the First Respondent, the key details of which were set out earlier in this decision. Further, he accepted an assignment from the First Respondent to perform work for the Second Respondent, and in doing so accepted and agreed that he was a casual employee of the First Respondent. I am satisfied on the evidence that the Applicant was an employee of the First Respondent.

[27] Second, there is no evidence of any alleged independent contractor arrangement, or in fact any contractual relationship at all, between the Applicant and the Second Respondent that would give rise to s.15AA considerations. Section 15AA was inserted into the Act to deal specifically with the High Court decisions in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd and ZG Operations Australia Pty Ltd v Jamsek, both of which relate to the test for determining whether a person is an employee or an independent contractor.

[28] The evidence demonstrates a standard three-way labour hire arrangement in which the Applicant was employed by the First Respondent and performed work for a client of the First Respondent. In such an arrangement, there is no employee-employer relationship between the client of the First Respondent and the Applicant.”89

88 [2026] FWC 489.

89 Ibid, at [23]-[28].

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[71]

On appeal, in Mark Erwood v Hays Specialist Recruitment (Australia) Pty Ltd; Grains Research Development Corporation; Francis Ogbonnaya90 (Hays FB Decision), a Full Bench of the Commission upheld the foregoing findings of Deputy President Dean, as follows:

“[9] The Deputy President determined that she was satisfied that the appellant was an employee of the first respondent referring to the Terms of Engagement and also the 20 June 2025 email from the first respondent to the appellant. The Deputy President decided that there was no contractual relationship as between the appellant and the second respondent. The Deputy President rejected the appellant’s reliance on s 15AA of the Act, noting that absent a contractual relationship between the appellant and the second respondent, s 15AA of the Act did not relevantly operate. The Deputy President noted that s 15AA was inserted into the Act to deal with the High Court decisions in ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 25 (Jamsek) and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165 (Personnel Contracting), both cases relating to the test for determining whether a person is an employee or an independent contractor. In the course of concluding that the appellant was employed by the first respondent, the Deputy President expressly referred to the second respondent’s acceptance that the appellant performed work for the second respondent at its premises, the appellant used the second respondent’s computer equipment, that the second respondent gave the appellant directions about his work and that the second respondent did not dispute that it instructed the first respondent to end the assignment.”

…

“[16] In grounds 1 & 2 the appellant asserts error including jurisdictional error by the Deputy President in her decision that s 15AA applies only to determining whether a worker is an employee or independent contractor, including an asserted failure to take into account the words “For the purposes of this Act” in s 15AA(1), an asserted error in ignoring the “practical reality” test, an asserted error in the resurrection of a primacy of contract test that the Parliament intended to abolish, an asserted error in a failure to consider the true substance of the employment arrangement which involved a labour hire firm (the first respondent) and a host employer (the second respondent), and an asserted error in failing to give weight to admissions by the second respondent that it exercised total direction and control over the appellant inconsistent with the terms of s 15AA which was enacted to force prioritisation to the practical reality admissions over written labels. We do not consider that appeal grounds 1 & 2 raise arguable error. It is clear that s 15AA applies a “real substance, practical reality and true nature of the relationship test” for the purpose of determining whether a worker is an employee or independent contractor. The provision does not have relevant operation in respect of a matter such as the present where the appellant was employed by the first respondent and assigned by the first respondent to work for the second respondent and the appellant had no contractual relationship with the second respondent. As the Deputy President held and as noted in a legislative note accompanying s 15AA, the provision was enacted as response to the decisions of the High Court in Personnel Contracting and Jamsek. Both decisions of the High Court concerned the distinction under common law between an employee and independent contractor.” (emphasis added)

90 [2026] FWCFB 90.

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…

“[25] As we have noted, the appellant’s appeal grounds do not disclose arguable appealable error.

[26] We reject the appellant’s contention that the public interest is engaged in respect of grant of permission to appeal. In relation to public interest, the appellant contended that the public interest is engaged because the appeal is a “test case” regarding s 15AA involving “3-way contractual structures that are essentially tripartite employment relationships”, that if the Decision stands any employer can bypass the s 15AA by using a labour hire intermediary rendering the legislation meaningless, that certain leading figures have called for s 15AA to be applied in a way that allows the reality of employment arrangements and consequential conduct to be properly understood. The appellant also submits that there is a significant public interest in ensuring that federal agencies such as the second respondent adhere to model litigant obligations and do not use “labour-hire shells” to avoid accountability for taking adverse action.

[27] We do not accept the appellant’s contentions that the public interest is engaged and do not otherwise consider that there is any public interest ground engaged.

[28] Furthermore, we do not consider that permission to appeal should be granted on any general discretionary grounds.”91

[72]

Having regard to the case law set out in this decision, I apply the following principles to the determination of disputes involving the identification of the ‘employer’ in a labour hire arrangement:

(a)

where the evidence demonstrates a standard three-way labour hire arrangement in which the employee is employed by the labour hire business and performs work for a client or host employer, there is no employee and employer relationship between the employee and the client or host employer. Of course, each case will turn upon its own facts and circumstances, but there should be no running away from the ordinary (or starting) position that the real substance, practical reality and true nature of a relationship between an individual, and the relevant (bona fide) labour hire business that employs them, is where the employment relationship will exist (i.e. not with the client or host employer);

(b)

if there exists a written contract between an individual and a labour hire company, which is not alleged to be a sham or invalid for some other reason, or to have been overtaken by a subsequent contract, or alike, then the answer to a dispute as to whether or not the individual is an employee of the labour hire business, or an employee of the client (host employer), will ordinarily (or most likely) be resolved by reference to the terms of the relevant written contract; and

91 Ibid, at [9], [16] (see also at [25]-[28]). See also Travis Cording v Schneider Electric (Australia) Pty Limited [2024] FWCFB 462, at [12]-[18].

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(c)

whether, and to what extent, it might be necessary to trawl through the various principles and propositions set out in cases such Gothard, in order to determine whether or not an individual is an employee of the labour hire business, or an employee of the client (host employer), will depend upon the circumstances of the case. It is certainly not correct to conclude that in each and every single case where a person asserts that they are an employee of a client (host employer), as opposed to an employee of the labour hire business that employed them, a decision-maker must engage in some form of multifaceted and extensive analysis before a determination can be made.

Consideration

[73]

The Application in these proceedings was originally filed naming Infosys Management Consulting Pty Ltd (Respondent) as the Applicant’s former employer.

[74]

On 16 May 2025 the Applicant sought leave to amend her Application, by amending the name and identity of her former employer to IVEGA. This was approved by another member of the Commission on 19 May 2025.

[75]

On 22 May 2025, the Applicant again sought leave to reverse the change to the Respondent (i.e. from IVEGA, back to the Respondent). This amendment was approved by another member of the Commission. From here, the course of these proceedings was set in stone, i.e. the Applicant elected to stick with the Respondent as her employer, and such election excluded her from changing back to IVEGA or anyone else other than the Respondent (subject to a fresh request for leave to amend, which was never made prior to this decision being issued). Indeed, the Directions in this matter were set on that basis, and the hearing was conducted wholly on the basis that the Respondent (not anyone else) was the Applicant’s employer. These proceedings thus rise and fall on the question as to whether the Respondent, and the Respondent alone, was the Applicant’s employer. I note that the Applicant accept this, with her position that no matter who she names as her employer, the end result (at law) will always be that the Respondent was her employer.92

[76]

The Applicant’s case is that the Respondent was her employer (true employer) as a matter of fact and law. In advancing this contention, the Applicant relies upon the following facts and arguments:93

(a)

whilst it is accepted that the Applicant had no contractual relationship with the Respondent, the Commission should not focus upon “papers”. The Commission must assess the totality of the relationship between the Applicant and the Respondent;

(b)

the contractual documents that the Applicant accepts she signed with Technocrats and SDP are a ‘sham’, designed to enable the Respondent to avoid its employment liabilities, obligations and responsibilities to the Applicant, and remove her rights,

92 Transcript, PN522-PN525.

93 See CB, pp.105-106, 105-136, 228-341, and 400-406. In some areas, the Applicant mixes both submissions and evidence. See also Transcript, PN1167-PN1202.

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both under the Act and at common law, to challenge her unfair treatment and her dismissal;

(c)

the Applicant was approached for work by the Respondent, approved to work on the Optus Project by the Respondent, and the Applicant’s daily rate of pay for work on the Optus Project was set by the Respondent ($800 per day);

(d)

the Applicant was internally onboarded by the Respondent (which commenced a few days prior to the Applicant signing a contractual document with anyone), receiving a subcontractor ID and an email address (using the Respondent’s domain name or email suffix);

(e)

the Respondent ‘required’ the Applicant to sign (enter into) contractual documents with IVEGA, but it turned out that IVEGA got her to sign documents with Technocrats and SDP;

(f)

the Respondent was the Applicant’s employer in substance;

(g)

IVEGA, Technocrats and SDP merely took the administrative steps that they were told to take by the Respondent;

(h)

the work the Applicant performed on the Optus Project was always undertaken at the direction of the Respondent, and supervised by the Respondent. The Respondent had complete control over the Applicant’s work;

(i)

the Applicant was required to attend regular meetings (arranged by the Respondent) with other persons engaged by the Respondent. At such meetings, the Applicant was required to report on her work status, any problems she was encountering, and confirm whether or not she would be able to deliver her work on the Optus Project successfully and on time;

(j)

the Respondent presented the Applicant to the world as being part of, and/or an employee of, the Respondent (including its “brand”). Optus considered the Applicant as part of the Respondent because that it how the Respondent presented her to Optus;

(k)

the Respondent (itself) received the benefits of the Applicant’s work on the Optus Project;

(l)

IVEGA had no involvement in the Applicant’s work on the Optus Project. If the Applicant had an issue, concern or query in relation to her work on the Optus Project, she would engage with an employee of the Respondent (never IVEGA, Technocrats, or SDP). This included providing timesheets to the Respondent for approval, and making request for time off or leave;

(m)

the Respondent cannot just outsource its payroll function to someone else and then say the Applicant is not its employee;

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(n)

the Respondent has mispresented the Applicant as a subcontractor or a non-employee in a deliberate attempt to obscure the true nature of the relationship between them (being one of employment). On visa application documentation (dated 27 July 2024) the Respondent is named as the Applicant’s employer;

(o)

the Respondent had a duty of care under Australian culture to ensure that the Applicant was engaged ethically, decently and lawfully. To this end, the Applicant states:

“I have reported aspects of this matter to the ATO, NSW Police Business Crimes Unit, and Border Watch, as I believe there may be broader implications of unlawful or unethical conduct.

As a committed Christian, I believe it is my moral responsibility to stand up for what is right, especially when facing injustice, not only for myself, but for others who may be silently suffering under similar conditions. My faith has been a source of strength throughout this painful and complex process. I believe God gave me the insight to recognise the truth behind the layered structures used to obscure responsibility, and the courage to speak up.”94

(p)

there are suspicions around tax avoidance by IVEGA (but the Applicant accepts that this is only her opinion, and not evidence);

(q)

whilst the Applicant would not really mind being engaged or employed by IVEGA, Technocrats or SDP, because the Respondent has gone about things incorrectly (or abnormally) when engaging her, it must be her true employer;

(r)

the Applicant’s unfair dismissal application should proceed against the Respondent, not matter what kind of contracts it has entered into with anyone else; and

(s)

the Respondent’s refusal to provide her with a reference in relation to her work on the Optus Project (despite previously promising to do so) reflects (or confirms) a toxic and exploitative environment at the Respondent.

[77]

The Respondent says that the Applicant’s case (in summary) is that “[The Respondent] says I’m an independent contractor to IVEGA [or Technocrats] and it says I’m an employee to SDP, but the whole thing was a sham.”95 In essence, the Respondent says that the Applicant appears to have multiple grievances around her visa and working arrangements, some of which are wholly misplaced, and she is now seeking to air such grievances via the auspices of the Commission under the cover of an unfair dismissal application, pursuant to a misunderstood, contrived and/or misconceived notion as to the effect of s.15AA of the Act. In rejecting the Applicant’s case outright, as having no basis in fact or law, the Respondent points to and submits the following:96

94 CB, p.106.

95 Transcript, PN1154.

96 See CB, pp.137-143. See also Transcript, PN1134-PN1165.

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(a)

the Respondent’s understanding had always been that the Applicant was supplied by IVEGA to work on the Optus Project under the IVEGA Service Contract;

(b)

the Respondent did not (ever) make an offer of employment to the Applicant;

(c)

notwithstanding the fact that the Respondent:

provided the Applicant with a work laptop (noting Optus provided the Applicant with a laptop as well);

approved the Applicant’s timesheets on the Optus Project (via Mr Sahi), the Applicant was part of the team comprising of both the Respondent’s employees, labour hire, and subcontractors. The Applicant was never integrated into the Respondent’s workforce considering that she was provided with limited access to the Respondent’s business operating systems (which she has been well aware of);

(d)

the Respondent did not exercise control over the Applicant’s work. The Applicant took her directions from relevant personnel of Optus (on the Optus Project);

(e)

at no time did the Respondent directly pay the Applicant’s wage/salary, superannuation, workers’ compensation insurance, or other employment entitlements. Instead, it was IVEGA who discharged these obligations (or unbeknown to the Respondent, arranged for other to take on and/or discharge these obligations);

(f)

IVEGA, Technocrats, and SDP are not associated entities of the Respondent;

(g)

the Respondent was completely unaware of the IVEGA & SDP Labour Supply Contract and the visa sponsorship arrangement between IVEGA and SDP until February 2025;

(h)

IVEGA made the visa sponsorship arrangement because it was not an Approved Sponsor, which is a prerequisite for applying a 482 Visa. This enabled the Applicant to continue working on the Optus Project lawfully after her 408 Visa expired;

(i)

the Respondent did not remunerate or pay the Applicant, IVEGA, SDP or Technocrats for the 482 Visa sponsorship;

(j)

even if the so-called sham scheme alleged by the Applicant is established, the Respondent was not and could not be a party to such scheme given that firstly, the Respondent has never been a party of any contracts the subject of the scheme, secondly, there had never been a contractual relationship between the parties (to which the Applicant agreed during the course of cross-examination at the hearing), and thirdly, neither IVEGA nor SDP is associated entity of the Respondent; and

(k)

the Applicant resigned voluntarily and abruptly from her employment with SDP on 25 March 2025. This was a decision that the Applicant made voluntarily, and of her own free will. It was a decision by the Applicant that suited her own personal

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circumstances at the time, and was but one of a number of choices she could have made (i.e. she very much had other options objectively available to her other than resigning). Suggestions by the Applicant to the contrary do not survive scrutiny. Who the Applicant chose to copy into her resignation adds nothing to her case in these proceedings (the decision by the Applicant to copy various people into her resignation email was a choice (even an intentionally dramatic choice) that she made herself).

[78]

At this point, it is also appropriate to highlight the following:

(a)

As stated at paragraph [56] of this decision, I am proceeding on the basis that IVEGA and/or Technocrats and/or SDP are associated entities.97 I have also made a finding that the Respondent is not an associated entity of IVEGA and/or Technocrats and/or SDP. Given the manner in which the Applicant has chosen to run her case, my only task is to determine whether or not the Respondent (being the Respondent alone) was her employer at the time of her alleged dismissal (on 25 March 2025). I do not need to otherwise determine, if not the Respondent, which of the three entities (IVEGA, Technocrats, or SDP) was her employer (or true employer) as at the time of her alleged dismissal. If I find that the Respondent was not the Applicant’s employer at the time of her alleged dismissal, that is the end of the Applicant’s case.

(b)

The Applicant was first approached for recruitment by the Respondent in March 2024. The IVEGA Service Contract (see paragraph [10] of this decision) was made in June 2023. In short, the IVEGA Service Contract was not created for the purposes of the Applicant’s engagement. It was created to enable relevant Work Orders to be completed between the Respondent and IVEGA. The engagement of the Applicant was made pursuant to Work Orders.98

(c)

The Applicant was made aware by the Respondent that it would not be engaging her directly, but as a subcontractor, when she was first recruited in March 2024.99 In other words, the Respondent has at no time made a representation to the Applicant as to her being (or possibly being) engaged by it as an employee.100

(d)

None of the various contracts and service agreements give rise to any contractual relationship between the Applicant and the Respondent. At no time has the Applicant disputed this. Indeed, she agrees.

(e)

The evidence of Mr Ashish Sahi, in relation to the manner in which the Applicant worked on the Optus Project,101 was not undermined (at all) during cross-examination. I accept the evidence of Mr Sahi to the extent that it conflicts in any way with the evidence of the Applicant.

97 Transcript, PN438-PN445.

98 See, for example, Transcript, PN640.

99 Transcript, PN900-PN901.

100 Statement of Ms Raju dated 28 July 2025, at [19]-[20], and [25]-[26]. CB, pp.146-147.

101 Statement of Mr Ashish Sahi, at [6]-[16], CB, pp.224-225.

[2026] FWC 3388

(f)

There is not sufficient evidence before me to support the Applicant’s contention that she was forced, coerced or otherwise pressured into signing anything.

[79]

Tying everything together, my ultimate findings in these proceedings are:

(a)

The IVEGA Service Contract is a legally binding and enforceable agreement between the Respondent and IVEGA. The terms of this contract set out and reflect an arm’s length commercial arrangement pursuant to which both parties obtain benefit. For IVEGA, its benefit appears to be the placement of persons pursuant to Work Orders with the Respondent, and the derivation of a fee for doing so (in this case, roughly 15.8% of the salary paid to the person engaged for the placement, or $150 per day).102 For the Respondent, its commercial relationship with IVEGA enables it to inject and utilise suitably qualified and experienced individuals on its projects for a fixed term/s and for a fixed fee, absent the numerous administrative and legal obligations that come with direct employment. I am not aware of any basis, on the facts and evidence before me, to simply ignore the IVEGA Service Contract as the Applicant requests that I do.

(b)

Further to (a), and given that the Applicant had no contractual relationship with the Respondent, pursuant to the Hays FB Decision, section 15AA of the Act only applies a “real substance, practical reality and true nature of the relationship test” for the purposes of determining whether a worker is an employee or independent contractor. The provision does not have relevant operation in respect of a matter such as the present where the Applicant was employed or engaged by another entity and assigned by that entity to work for Respondent. In this regard, I find that the Applicant cannot be, as a matter of law, an employee of the Respondent as at the time of her alleged dismissal by reference to the “real substance, practical reality and true nature of the relationship test”. In short, it is not the test to be applied in resolving this case.

(c)

Putting aside s.15AA of the Act (as having no application in this case in respect of the real substance, practical reality and true nature of the relationship), the case of Gothard says that it is appropriate (when determining an employer’s identity, or an employer within the ordinary meaning of that term), to take a wide view of the putative relationship, beyond the terms of the contractual documentation, to examine how the parties conducted themselves in practice (pre and post engagement commencement) and whether, where there is contractual documentation, the reality of the situation accords with the terms of that documentation, or whether it points to another entity as being the employer.

(d)

But the task set out in Gothard is to apply general law principles regarding the formation of contracts to determine whether the practical conduct of the parties gave rise to a binding contract between them. As was stated in the case of Alouani-Roby, “[t]here can be no expectation of [employment or] an ongoing employment relationship without an ongoing employment contract.”103 Again, it is necessary at this point to emphasise that my task in these proceedings is not to identify the

102 Transcript, PN1118-PN1125.

103 [2024] FCAFC 161; (2024) 307 FCR 65, at [62].

[2026] FWC 3388

Applicant’s employer, but to determine if the Respondent was the Applicant’s employer as at the time of her purported dismissal.

(e)

Applying the general law principles identified in Gothard, to determine if a binding contract between the Applicant and Respondent was formed by their conduct, and noting the absence of any written or oral offer of employment by the Respondent to the Applicant (let alone accepted), it is necessary to consider whether there was a contract which could be implied to exist based on the conduct of the parties (including conduct based upon an absence of words).104

(f)

Contracts are not to be implied ‘lightly’.105 Most importantly, as McHugh JA stated in Integrated Computer Services:106

“The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the essential elements of an express contract …”107

(g)

Contractual offer and acceptance may be inferred (from conduct, including silence), subject to the following conditions (as set out in King Tide Company Pty Ltd v Arawak Holdings Pty Ltd108 (King Tide)) being met:

“First, where the question of contract formation involves determining whether acceptance of an offer can be inferred in the absence of express consent, acceptance of the offer may be inferred if an objective bystander would conclude from the offeree’s conduct, including its silence, that the offeree has accepted the offer and has signalled that acceptance to the offeror.

Second, a similar objective approach is to be taken where the question of contract formation involves determining whether a contract may be inferred from conduct, even where no distinct offer and distinct acceptance can be identified. An enforceable contract may be inferred when the manifest intention of the parties, objectively ascertained, evinces a tacit agreement with sufficiently clear terms.

Third, in both cases, care must be taken to ensure that the objective assessment of the relevant conduct in all the circumstances unequivocally points to the existence of the contract in the terms alleged by the party seeking to prove the contract. It is not enough that the conduct is merely consistent with the terms of

104 Vroon BV v Foster’s Brewing Group [1994] 2 VR 32, at 81 per Ormiston J.

105 Damevski v Giudice (2003) 133 FCR 438 at [82] (per Marshall I) (‘Damevski’), citing Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153, Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 (‘Air Great Lakes’), Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 3 All ER 25 at 31 per Bingham LJ and Orion Insurance Co Plc v Sphere Drake Insurance Plc [1990] 1 Lloyd’s Rep 465 at 492 – 494 per Hirst J. As cited in Gothard, in the matter of AFG Pty Limited (Receivers and Managers appointed) (in liq) v Davey [2010] FCA 1163; (2010) 80 ACSR 56, at [193]-[194].

106 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110.

107 Ibid, at 11,117-11,118.

108 [2017] QCA 251.

[2026] FWC 3388

the alleged binding agreement, the evidence must positively indicate that both parties considered themselves bound by that agreement.”109

(h)

In my view, the essence of the relationship between the Applicant and the Respondent was one of a standard three-way labour hire arrangement (involving IVEGA as the labour hire provider). What occurred between IVEGA and Technocrats and SDP has nothing to do with the Respondent’s arrangements with IVEGA (per the terms of the IVEGA Service Contract, and the relevant Work Orders).110 If what occurred between IVEGA and Technocrats and SDP was inappropriate, unlawful, or a sham (which I make no findings about) for whatever reason (i.e. in the context of visa or employment/work engagements), there is simply no evidence that such matters involved the Respondent (knowingly or unknowingly). Indeed, the uncontested evidence of the Respondent is that it was not even aware until around February 2025, that IVEGA had contracted with Technocrats or SDP, or that IVEGA was not the applicant (i.e. Approved [employer] Sponsor) for the Applicant’s 482 Visa.111 Further, there is no evidence that the Respondent misled (intentionally or unintentionally) the Applicant as to her contractual arrangements with it (i.e. the Respondent was upfront with the Applicant (both at the time of recruitment, and thereafter) that she was not going to be, and never would be, working on the Optus Project as its employee.112

(i)

For completeness, I do not accept that the available evidence gives rise to me being able to make any findings about ‘sham’ contracts in these proceedings. In this regard:

(a)

the Applicant has made no submissions about the proper ‘legal test’ for sham contracting;

(b)

there is a critical difference between a ‘sham’ contract, and a mere ‘mischaracterisation’ of employment (including as to employer identity). All contracts that meet the definition of a ‘sham’ (whether at common law or under the Act) are ipso facto mischaracterisations of the relevant relationship. However, not all mischaracterisations are shams. The importance of this distinction is that a ‘sham’ contract is void ab initio, whereas a ‘mischaracterised’ contract remains on foot (albeit in a differently characterised form as to the relationship it governs); and

(c)

on the evidence before me, no issue of sham contracting arises for determination or resolution in these proceedings. More specifically, on the evidence, and as a matter of law, I reject that the relationship between the Applicant and the Respondent was (including as a matter of practical reality), in any way a sham, or the product of any misrepresentation by the Respondent.113

109 Ibid, at [13], and [19]-[21], per Bond J (with whom Fraser JA and Gotterson JA agreed).

110 Statement of Ms Raju dated 28 July 2025, at [33]. CB, p.147.

111 Ibid, at [33]-[36], and [45]-[59]. CB, pp.147-151. None of this evidence of Ms Raju was undermined by cross-examination or other documentary evidence filed in these proceedings.

112 Ibid.

113 Transcript, PN538 and PN1146-PN1165.

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(j)

Even by reference to the practical considerations to be considered (as outlined in Gothard, at [60]), the answers to which (on the evidence) are not in dispute, I do not accept (per the test set out in King Tide) that:

a reasonable bystander would conclude that an employment contract between the Applicant and the Respondent arose via offer and acceptance. One clear indicator in this regard is the fact that the Respondent could not be the Applicant’s employer due to 482 Visa requirements in relation to an Approved Sponsor. In this context, and consistent with the evidence, the Respondent was never in a position to offer the Applicant employment;

ii)

the intention of the parties, objectively ascertained, evinces a tacit agreement with sufficiently clear terms. Indeed, at the time of her dismissal, the Applicant was bound by the terms of the SDP Employment Contract, which expressly states that SDP is her employer. SDP was also (at the same time) her Approved Sponsor (for her 482 Visa), with the grant of her visa conditioned upon her having an employment contract with SDP); or

iii)

there is any evidence before me to positively indicate that both the Respondent and the Applicant considered themselves to be bound by an employment contract between them. Rather, in my view, an objective assessment of the relevant conduct of the Applicant and the Respondent (in all the circumstances) does not unequivocally point to the existence of a contract in the terms alleged by the Applicant (who squarely carries the onus to prove the existence of such an employment contract (in specific terms) by reference to the facts and the law).

[80]

Quoting Conti J in Wilton v Coal and Allied Operations Pty Ltd,114 “there are doctrinal obstacles of significant judicial precedent cognisable by the general law of Australia which stand in the way”115 of the Applicant’s core contention in this case, i.e. that the Respondent was her employer as at the time of her alleged dismissal (alleged forced resignation). For the reasons set out in this decision, the Applicant has been unsuccessful in proving her case before me that the Respondent was her employer (as at the time of her alleged dismissal). If the Respondent was not the Applicant’s employer, it could not have “dismissed” her for the purposes of Part 3-2 of the Act. If the Applicant has not been dismissed by the Respondent, the Commission has no jurisdiction to further engage with her case.

[81]

The Applicant’s unfair dismissal application is dismissed, and these proceedings are at an end. An order to this effect will be published contemporaneously with this decision (PR814046).”

Huang v Infosys Management Consulting Pty Ltd [2026] FWC 3388 delivered 8 September 2026 per- Boyce DP