I think this may be one of the first decisions of the Fair Work Commission dealing with an application by a person for an unfair contract remedy which arises from fairly recent amendments to the Fair Work Act which entitle contractors to essentially have the Commission deal with terms of a services (ie not employment contracts) agreement between a company and an individual contractor provided there is a “required constitutional connection” which is provided for in this case by the respondent being a trading corporation.
“Application for an unfair contract term remedy – application granted in part – order made
[1]
Ms Bell has made an application to the Fair Work Commission for an unfair contract term remedy pursuant to s 536ND of the Fair Work Act 2009 (Cth) (“Fair Work Act”; “the Act”). The application concerns Ms Bell’s claim she has a services contract with Diva Girl Pty Ltd, trading as Delicious Entertainment (“Diva Girl Pty Ltd”).
[2]
It was not in dispute that Ms Bell was engaged as a performer for ‘pub run circuits’ across Central Queensland. The work involved set shifts across multiple venues over a two-week circuit; the circuit included significant travel (approx. 1,829 km and 19h 39m driving for a full run). Diva Girl Pty Ltd paid performers in arrears after each circuit. To secure the engagement, the performer paid Diva Girl Pty Ltd a deposit which was refunded after each circuit, when payment was made.
[3]
Ms Bell’s application is in the approved form.1 In response to question 2.1 of the approved form, she lists four terms which she says are terms of the services contract and are unfair. She describes them as follows:
“The clause stating that all wages, including commission, are forfeited if the contractor does not complete the full pub run circuit.
The clause stating that entertainers must stay at the provided accommodation for the entire duration, even if they leave the pub run.
The clause stating that entertainers cannot leave the pub run without approval and that early departure results in full forfeiture of wages and commission.
The clause allowing the agency to claim 20% commission on all private shows even though the contractor bears all risk, including safety and legal consequences.”
1 Form F91 – Application for an unfair contract term remedy.
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DECISION
[2026] FWC 3283
2
She also gives references to the paragraphs of subsection 536JQ(1) she relies upon to establish that each term relates to workplace relations matters, as well as brief reasons why she says each of the terms is unfair.
[4]
This application was initially filed on 30 July 2025. After some preliminary administrative issues were dealt with, it was allocated to my chambers in mid-August. The matter was listed for a mention in September 2025, but the applicant’s personal circumstances led to the listing being vacated and the matter being adjourned until late October. On 14 November 2025 the parties were given notice the matter would be listed for mention on 21 November. Directions were subsequently issued on 5 December. The applicant filed her materials in December 2025, but the Respondent did not. In February 2026 the Respondent sought an extension to file its materials, citing its director’s personal circumstances. After receiving correspondence from the parties, the matter was listed for a case management hearing on 3 March 2026. The parties subsequently filed further materials. Both parties were content to have the matter decided on the papers.2 Accordingly, by consent, no hearing was held and I have decided this matter on the papers.
[5]
Both parties were self-represented in these proceedings. Ms Bell conducted her own case. A director of Diva Girl Pty Ltd, Ms Melinda Slingsby, conducted these proceedings on its behalf.
Evidence
[6]
Ms Bell filed a witness statement of herself dated 19 December 2025, with thirteen annexures. Annexure A4 to Ms Bell’s statement is described as “Contract Agreements” and comprises a document entitled “Promotional Lingerie Girl Contract Agreement C Q Hotels Group Pty Ltd (“CQHG”) Effective 01/01/2023” (“the CQHG agreement”) and a document entitled “Delicious entertainment Central Qld Pub Run Circuit Employee Contract” (“the Pub Run Circuit agreement.”)
[7]
As indicated above the matter was listed for a case management hearing on 3 March 2026. During the course of that listing the Respondent’s representative indicated new contracts and policies approved by her solicitors had been implemented. She agreed to provide a copy to the Applicant.
[8]
On 3 March 2026, following the case management hearing, the Respondent provided a document entitled “Delicious entertainment Policies and Procedures Manual” under cover of an email with the subject “Policies and Procedures 2026!” which it said superseded the Contractor Agreement that had been in effect last year.
[9]
On 3 March 2026 Ms Bell provided, by email, a response to the Respondent’s email of 3 March, as follows:
“The Applicant notes that the document provided is a Policies and Procedures Manual and not a revised or updated Contractor Agreement.
2 Email from the Applicant of 8 March 2026;
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3
The Applicant’s application concerns specific clauses contained in the Central QLD Pub Run Circuit contract and associated agreements previously filed in evidence.
No amended or updated Contractor Agreement has been provided. The document supplied does not appear to replace or vary the forfeiture, payment or completion clauses identified in the Applicant’s F91 application and submissions.
Accordingly, the Applicant maintains that the contractual terms in evidence remain those originally filed and relied upon in these proceedings.
If the Respondent asserts that an updated Contractor Agreement exists or that relevant terms have been amended, no such document has been provided to the Commission or the Applicant.”
[10]
Ms Slingsby responded further on 4 March 2026, as follows:
“For clarity, the agreement governing the Applicant’s engagement during the relevant period was the Central QLD Pub Run Circuit Contractor Agreement, previously filed in evidence.
Following the commencement of these proceedings, the Respondent undertook a review of its documentation and implemented an updated Policies and Procedures Manual for future contractor engagements. That document was introduced as part of a broader operational update and applies prospectively. It does not retrospectively alter the contractual terms that applied during the Applicant’s engagement.
The Respondent does not accept the Applicant’s characterisation of the contractual arrangements and denies any contravention as alleged in the application.
…
Further, noting that the Applicant no longer performs work for or contracts with the Respondent, and that the updated Policies and Procedures Manual applies only to future engagements, the Respondent understands that the Applicant may nevertheless wish to continue pursuing the matters raised in the application.
…”
[11]
The correspondence also went to Ms Slingsby’s personal circumstances and other matters which need not be repeated here.
[12]
On 6 March 2026 the Respondent filed a copy of a document titled “Delicious entertainment Central Qld Pub Run Circuit Contractor Agreement.” In the covering email Ms Slingsby said: “Please accept my apologies. In my previous email I inadvertently attached only one of the documents referred to. Please find attached the second document, being the Contractor Agreement, which forms part of the updated materials referenced earlier.”
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In this decision I have referred to the “Delicious entertainment Central Qld Pub Run Circuit Contractor Agreement” provided on 6 March 2026 as “the revised Pub Run Circuit agreement.”
[13]
On 8 March 2026 the Applicant made further written submissions by email, in response to the document provided by the Respondent on 6 March. She confirmed she wanted the application determined on the papers. On 9 March 2026 the Respondent provided a written response.
[14]
On 10 March 2026 the Respondent provided a further copy of the CQHG agreement stating, in the covering email, that “this document is issued by CQ Hotels Group Pty Ltd and outlines the venue rules and conditions for performers attending their venues during the Pub Run Circuit. This document is issued by the venue operator and does not form part of the Contractor Agreement between the parties.”
The Applicant provided submissions in relation to that document by email of the same date. That evening Ms Slingsby responded, saying:
“The Respondent confirms that the relevant contractual documents referenced in the proceedings have now been provided. The Respondent also confirms that payment for the services performed, together with reimbursement of the booking fee and travel assistance amount, was ultimately made to the Applicant.”
[15]
By that email of the evening of 10 March 2026 the Respondent also confirmed it was content to have the application determined on the papers. In light of that shared view I take it that the assertions of fact in the parties’ materials are not in contest.
[16]
On that basis I accept that Ms Bell worked and was paid for the April and June circuits. I accept she was scheduled to work a circuit in May but did not have access to transport. I accept she commenced working the July circuit. I accept that during the July circuit her dashcam recorded a man knocking on her motel room door at night, waiting for a period, and then leaving. I accept she was in the room at the time, heard the knocking, (correctly) apprehended the person knocking was a man, and froze in fear. I accept she reported this incident to the police. I accept she left the circuit subsequently. I accept that there was then a dispute between the parties as to whether she should be paid for the time already worked, whether the deposit she had paid should be refunded, and whether the travel assistance should be paid to her.
Submissions
[17]
As can be appreciated from the above the parties provided some submissions in their email correspondence. In addition, Ms Bell filed an outline of submissions on 19 December 2025. I have referred to the parties’ submissions as necessary below.
Statutory framework
[18]
Part 3A-5 of the Fair Work Act is about unfair contract terms of services contracts. It provides a mechanism by which some independent contractors may seek a remedy in the Commission in relation to an unfair contract term of a services contract.
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5
[19]
Section 536NA provides:
536NA When the FWC may make an order in relation to an unfair contract term of a services contract
(1) The FWC may make an order under this Part in relation to a services contract if the FWC is satisfied that the services contract includes one or more unfair contract terms which, in an employment relationship, would relate to workplace relations matters.
(2) The FWC may make the order only if a person has made an application under section 536ND in relation to the services contract.
(3) The FWC must take into account fairness between the parties concerned in deciding whether to make an order under this Division, and the kind of order to make.
[20]
“Services contract” is defined in s 15H of the Fair Work Act. Relevantly it is a contract for services that relates to the performance of work under the contract by an individual, with the “requisite constitutional connection.” Relevantly for present purposes the constitution connection requirement is met if a party to the contract is a constitutional corporation.3 A condition or collateral arrangement that relates to a services contract is taken to be part of that services contract if, were the condition or arrangement itself a contract for services, it would have the requisite constitutional connection.4
[21]
The phrase “workplace relations matters” is defined in section 536JQ of the Act, which matters that are and are not workplace relations matters. The Full Bench in Somphong (Em) Thongkhamchanh v Rasier Pacific Pty Ltd5 (“Thongkhamchanh”) considered this definition is applied in the context of s 536NA.6
[22]
Section 536NB of the Act sets out a non-exhaustive list of matters which the Commission may take into account in determining whether a term of a services contract is an unfair contract term. Section 536NB(2) requires that the matters in ss 536NB(1)(b) to (f) be assessed as at the time the Commission considers the application, rather than only when the contract was made.7
[23]
If the requirements of the relevant provisions are met, the Commission may make an order amending, varying, or setting aside all or part of a services contract which, in an employment relationship, would relate to a workplace relations matter (s 536NC of the Act). The Full Bench in Thongkhamchanh said the following in relation to the power under section 536NC:8
3 As defined in the Fair Work Act 2009 (Cth) s 12, referring to the Constitution, paragraph 51(xx).
4 Fair Work Act 2009 (Cth) s 15H
5[2025] FWCFB 247 (“Thongkhamchanh”).
6 Ibid, [17].
7 Ibid, [38].
8 Ibid, [21].
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“If a services contract is found to include an unfair contract term, the orders the Commission can make are not limited to orders directed at a particular term or terms. The Commission may set aside all or part of the services contract which, in an employment relationship, would relate to a workplace relations matter or amend or vary all or part of the services contract which, in an employment relationship, would relate to a workplace relations matter. Although the capacity to make an order is dependent on the Commission being satisfied that a services contract includes one or more unfair contract terms, the remedial orders available to the Commission are potentially broader in their operation.”
[24]
An order under s 536NC is a statutory remedy, not a contractual one. It is about the ‘fairness’ of the terms of the contract, not about enforcing them. Saunders DP considered the distinction in Jacqueline Mary Margaret Bowden v Kenneth Brendon Dungan,9 saying:10
“An unfair contract claim under Part 3A-5 of the Act is fundamentally distinct from a claim for breach of contract or the enforcement of a contractual debt, involving different considerations. The former examines the fairness of the terms of the contract, while the latter assesses whether the rights and obligations established by those terms have been fulfilled.”
[25]
Unfair conduct in breach of a contract does not render the contract itself unfair, and remedies for breach are found elsewhere. There is no power to make any orders under Part 3A-5 of the Act unless a finding of unfairness is made in relation to a term or terms of the services contract.11
[26]
Section 536NA(2) provides that the Commission may only make an order if a person has made an application ‘under s 536ND’ in relation to the services contract. Section 536ND(1) provides that, relevantly, a person who is party to a services contract may apply for an order granting a remedy on the basis that the services contract contains a term that is unfair. Section 536ND(2) limits the capacity to make such an application to a person whose annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the contractor high income threshold.
Consideration
[27]
Whether a particular term or terms are unfair must be determined having regard to the terms of the services contract as a whole, including what it otherwise does or does not provide.12 It remains necessary to identify a particular term or terms that are unfair.
[28]
As can be seen above the application identifies the terms of the services contract that Ms Bell says are unfair contract terms, the workplace relations matters she says they relate to, and why she says they are unfair. She here refers to four terms. Then, in the part of the
9 [2025] FWC 485 (“Bowden”).
10 Ibid, [10].
11 Thongkhamchanh, [33]-[34]; Bowden, [11]-[13], citing Sydney Water Corporation Ltd v Industrial Relations Commission of NSW [2004] NSWCA 436; (2004) 61 NSWLR 661.
12 Thongkhamchanh, [43].
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7
application providing for the relief sought, Ms Bell refers to six terms. Ms Bell does give pinpoint references to the parts of the written agreements relied upon as giving rise to those terms. I apprehend this is partly because the Pub Run Circuit agreement and the CQHG agreement are both drafted informally without paragraph or clause numbers, and partly because Ms Bell may have had assistance from artificial intelligence in drafting her application. I have taken her application as relating to the terms she identifies as unfair contract terms in response to question 2.1 of the approved form. However, before turning to those terms, I will first consider whether there was a services contract within the meaning of that term for the purposes of the Fair Work Act.
Whether there was a services contract, and whether an application has been made
[29]
Ms Bell’s application relates to a services contract she says was entered into on 20 July 2025. This appears to be a reference to the circuit she commenced on that date. It was not in contest that she had previously provided services in April and June 2025. She had previously invoiced the Respondent for those services and those invoices had been paid.
[30]
Neither party argued that Ms Bell was anything other than an independent contractor, engaged to provide services as a performer. I accept that she was an independent contractor, and that Diva Girl Pty Ltd was the principal in that regard. I accept that Ms Bell and Diva Girl Pty Ltd were parties to a contract for services. It was not in dispute and I find that Ms Bell performed the work under the contract for services personally. It was not in dispute and I find that Diva Girl Pty Ltd is a constitutional corporation. Accordingly I find that there was a services contract between Ms Bell and Diva Girl Pty Ltd within the meaning of that term for the purposes of the Fair Work Act. I will refer to that contract as “the services contract.”
[31]
It was not in dispute and I find that Ms Bell has made an application under section 536ND of the Fair Work Act in relation to the services contract.
The terms of the services contract
[32]
I consider that the terms of the Pub Run Circuit agreement are terms of the services contract, for the following reasons. Though the title of that document refers to employment, the body of it contemplates an independent contractor relationship between Diva Girl Pty Ltd as the principal and an individual as the contractor. It requires that the individual provide a current Queensland Responsible Service of Alcohol certification, an Australian Business Number, a “signed Delicious Entertainment New Employee Contract” and a “Signed CQ Hotels Group Pty Ltd Promotional Lingerie Girl Contract Agreement.” It then provides for a “pub run circuit” running for twelve days, with the individual to be a Drive In / Drive Out contractor responsible for providing their own transport. The document provides for various obligations on the part of the parties to it. The copy of this document that Ms Bell provided was unsigned, and her name did not appear in it.13 However, the Respondent did not dispute that the copy Ms Bell provided was a true copy, or that its terms were terms of the Respondent’s agreement with Ms Bell. Accordingly, I find that the terms of the Pub Run Circuit agreement14 were at all material times terms of the services contract.
13 Statement of Ms Bell of 19 December 2025, annexure A4, item 2.
14 Ibid.
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8
[33]
Ms Bell also said, and it was not in contest, that she had been required to sign the CQHG agreement. Again, the copy of the CQHG agreement before me is unsigned but it is not in dispute that it is a true copy. The Pub Run Circuit agreement provides that contractors are “required to sign & follow all conditions within” the CQHG agreement. I accept, therefore, that the terms of CQHG agreement are also terms of the services contract, notwithstanding it is ostensibly an agreement between the individual and CQ Hotels Group Pty Ltd. In the alternative, I accept that as an operator of hotels CQ Hotels Group Pty Ltd is a constitutional corporation, and the terms of its document are terms of the services contract by operation of subsection 15H(4).
The relevance, if any, of the revised Pub Run Circuit agreement and the Policies and Procedures Manual
[34]
I accept that Diva Girl Pty Ltd has changed its standard terms, as reflected in the revised Pub Run Circuit agreement. There is no evidence that the parties to these proceedings ever entered into agreement in those standard terms. Accordingly, I do not consider that the terms of that revised “agreement” were at any material time terms of the services contract to the extent they differ from the terms of the Pub Run Circuit agreement.
[35]
As indicated above Diva Girl Pty Ltd has produced a Policies and Procedures Manual. In providing this document it said “That document was introduced as part of a broader operational update and applies prospectively. It does not retrospectively alter the contractual terms that applied during the Applicant’s engagement.” The Respondent submitted and I accept that the Policies and Procedures Manual does not form part of the contractual terms in dispute in these proceedings.” I find this manual does not form part of the services contract. Ms Bell is not an employee. Accordingly, there is no implied term of her contract with Diva Girl Pty Ltd requiring her to comply with lawful and reasonable directions. There is nothing to suggest she has agreed to the terms of the policy and procedures manual at any time.
The forfeiture term
[36]
In her application the first term that the Applicant says is an unfair contract term is the “clause stating that all wages, including commission, are forfeited if the contractor does not complete the full pub run circuit.” The third term Ms Bell refers to is “[t]he clause stating that entertainers cannot leave the pub run without approval and that early departure results in full forfeiture of wages and commission.” Both of these terms appear to relate to the following provisions of the Pub Run Circuit agreement:
“Failure to start the forementioned Pub Run Circuit will result in the forfeiture of your $200 deposit.
Failure to complete the Pub Run Circuit will result in the forfeiture of your deposit plus any outstanding monies owed to you with NO EXCEPTIONS!!
You will also be liable for your own travel/accommodation costs incurred.”
and
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9
“Payment Contractors are required to submit an invoice upon completion of the Circuit with payment to be made by Delicious Entertainment within 7 days. To ensure prompt payment, invoices must include the following:
[a list is included here]
Please note, invoices cannot be paid unless all of the above are included. DO NOT forward your invoice until all shifts are completed in full.”
[37]
It was not in dispute between the parties that if the performer does not complete the Circuit, the Pub Run Circuit agreement allows Diva Girl Pty Ltd to withhold the reimbursement for the deposit, the Travel Assistance payable for the whole circuit, and the remuneration payable for work performed for the whole circuit (including both the work already performed, and the work that would have been performed but for the failure to complete the circuit). I will refer to this term as “the forfeiture term.” Having regard to the above excerpts, I find the forfeiture term is an express provision of the Pub Run Circuit agreement. For the reasons set out above I find that it is, thereby, a term of the services contract. If I am wrong about that, the forfeiture term is partly in writing (as set out above) and partly to be implied from the parties’ conduct.
[38]
For completeness I note that Ms Bell did not claim that the provision requiring the performer pay a deposit was an unfair contract term or seek any order with the effect of relieving the performer of the obligation to do so.
[39]
The workplace relations matters relied upon are subsection 536JQ(1)(a) of the Act, which provides for “remuneration, allowances or other amounts payable to employees” and subsection 536JQ(1)(e), which provides for “making, enforcing or terminating agreements (not being contracts of employment) determining terms and conditions of employment.” I accept the term relates to remuneration. Paragraph (e) was relied upon on the basis that the forfeiture term unreasonably restricts exit rights and enforces a punitive penalty without regard to health, safety, or personal emergency. Having made my finding in relation to paragraph (a) it is not necessary to make a finding in relation to paragraph (e). I accept that the above term of the services contract would, if the parties were in an employment relationship, relate to workplace relations matters, having regard to subsection 536JQ(1)(a) of the Fair Work Act.
[40]
I now turn to the matters that may be considered in deciding whether the forfeiture term is an unfair contract term pursuant to section 536NB of the Fair Work Act.
[41]
As to the relative bargaining power of the parties to the services contract, Ms Bell says:
“The Applicant is an individual contractor. The Respondent is a business controlling access to the circuit placements, scheduling, accommodation, dress and “uniform” codes, and payment processes.
The contract is presented as a standard “employee contract” for a circuit, with fixed terms; in practice the Applicant had no meaningful ability to negotiate.”
[2026] FWC 3283
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[42]
Diva Girl Pty Ltd did not address the issue of bargaining power. I accept that Diva Girl Pty Ltd had greater bargaining power than Ms Bell. This weighs in favour of a finding of unreasonableness.
[43]
Ms Bell says the services contract as a whole displays a significant imbalance between the rights and obligations of the parties, by allowing the Respondent to withhold money for work already completed if the full circuit is not completed, and by imposing strict “all-or-nothing” consequences on the contractor, without an equivalent consequence on the Respondent for failing to provide safe conditions or reasonable responses to safety issues. The Respondent did not address this issue directly. I accept that the services contract, having regard to the Pub Run Circuit agreement and the CQHG agreement, imposes more onerous obligations on the independent contractor than on the principal. This weighs in favour of a finding of unreasonableness.
[44]
Ms Bell says the forfeiture term is not reasonably necessary to protect the legitimate interests of any party to the contract. She says a blanket forfeiture of earned wages/allowances is not reasonably necessary to protect a legitimate business interest, particularly where withdrawal is due to a serious safety concern. The Respondent did not address this issue directly. I find that forfeiture of remuneration for work already performed not reasonably necessary to protect the protect the legitimate interests of any party to the contract. This weighs in favour of a finding of unreasonableness.
[45]
Ms Bell says the forfeiture term is harsh or unreasonable. She says it is punitive in that it disconnects payment from completed work and instead uses payment as leverage to compel completion regardless of safety. The Respondent does not accept that the contractual provisions impose an unlawful financial penalty or otherwise contravene any legislative requirements. However, whether or not the provision is lawful, the relevant question for present purposes is whether it is unfair, having regard to the considerations in section 536NB. I accept that the term is both harsh and unreasonable. This weighs in favour of a finding of unreasonableness.
[46]
Ms Bell does not contend that the services contract as a whole provides for a total remuneration for performing work that is less than regulated workers performing the same or similar work would receive under a minimum standards order or minimum standards guidelines, or less than employees performing the same or similar work would receive. There is no evidence before me in this regard, and I find this consideration to be neutral. This weighs in favour of a finding of unreasonableness.
[47]
As to other relevant matters, Ms Bell submits that the Respondent has demonstrated it can exercise discretion but does so selectively. She refers to her evidence in relation to needing to have her windscreen repaired. She says she incurred substantial out-of-pocket expense (in an amount of over $3,500) to try to meet circuit commitments. She says that when she could not depart as scheduled due to safety, she forfeited the $200 deposit in good faith and did not seek reimbursement. She says that the Respondent’s communications at that time show pressure and leverage about losing the entire run. She says that during her dispute with the Respondent in July 2025, the Respondent initially maintained a strict position requiring forfeiture yet subsequently offered to pay her “wages” and return the deposit, albeit it still refused to pay travel allowance at that time. She says this conduct shows selective enforcement of the forfeiture term. She submits that selective enforcement supports a finding that the terms are
[2026] FWC 3283
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being used as a bargaining lever rather than a necessary protection of legitimate interests, and that the contract as a whole displays a significant imbalance.
[48]
These submissions are relevant to the considerations referred to above. The Respondent’s conduct in relying on the forfeiture term does not, in my view, raise any additional relevant consideration.
[49]
The parties are in agreement15 that in the period since these proceedings were commenced, the Respondent has made payment to the Applicant for the July 2025 circuit, including reimbursement of the $200 deposit, and the $300 Travel Assistance. The Respondent says that, accordingly, there is no financial detriment. Also, it does not appear to be in contest that Ms Bell has not been further engaged by Diva Girl Pty Ltd since July 2025. For completeness I note that these matters are relevant to the question of whether any discretion to grant a remedy should be exercised, but I do not consider they assist the Commission in deciding whether the forfeiture term is an unfair contract term.
[50]
The Respondent submits that the role of the Commission is to determine whether contractual provisions contravene applicable legislation, rather than to redraft or substitute contractual wording between private parties. This submission is misconceived having regard to the types of orders that can be made under section 536NC of the Fair Work Act, and the circumstances in which they can be made, having regard to section 536NA. This submission does not assist the Commission in deciding whether the forfeiture term is an unfair contract term.
[51]
Having weighed the relevant matters and having considered the parties’ submissions I find that the forfeiture term is an unfair contract term.
[52]
In the circumstances, having regard to the foregoing, the power in section 536NA to make an order in relation to the services contract is therefore enlivened. Section 536NA provides that Commission may make an order; the Commission has to decide whether to make an order, and, if so, what kind of order to make, having regard to the types of orders provided for by section 536NC.
[53]
Deciding whether to make an order, and if so what kind of order to make, I must take into account fairness between the parties concerned: Fair Work Act, s 536NA(3). Otherwise, the discretion is broad. I consider it relevant to note the objects16 of the relevant Part seek to encompass several competing matters including, inter alia, the needs of principals and independent contractors, creating disincentives to including unfair contract terms in services contracts, and recognising and protecting “the freedom of independent contractors to enter into services contracts.” I also consider it relevant to note the Fair Work Act’s object is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians. It is also relevant to note that section 536NK of the Fair Work Act provides a person must not contravene an order under this Part, and that section 536NK is a civil remedy provision.
15 See Respondent’s email of 9 March 2026 and Applicant’s email of 10 March 2026.
16 Fair Work Act s 536N
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[54]
As indicated above I also consider it relevant to take into account the parties’ present relationship (or lack of one) and the fact that the monies for the July circuit have since been paid. I also consider the findings relevant to unfairness, above, to be relevant to the question of whether the discretion to make an order should be exercised.
[55]
I do not consider that making an order would wholly lack utility in light of the payment having been made. The payment was not made as part of a settlement agreement. The parties remain in dispute as to whether the forfeiture term of the contract is an unfair term and whether any remedy should be granted in that regard. Though the money has been paid there is some utility in making an order that would have the effect that Ms Bell was entitled to receive the money, rather than payment being a matter of discretion on the part of Diva Girl Pty Ltd. As indicated above I have found the forfeiture term to be an unfair contract term. I consider fairness between the parties is best served by Ms Bell being entitled to be paid for the shifts worked even if she does not work further shifts. I also think that fairness is served by providing an entitlement for the payment of the travel assistance and the reimbursement of the deposit if a circuit is not completed because of a contractor’s unplanned absence part-way through it. That is because it is the nature of running a drive in / drive out business that workers’ unplanned absences can give rise to proportionately greater difficulties than would be the case if the worker lived near work. It is fair that carrying the costs and risks associated with the nature of drive in / drive out work be borne to a greater extent by the principal who has set up their operation on that basis. I do not consider that making an order to this effect would detract substantially from the freedom of Ms Bell, as an independent contractor, to enter into a services contract.
[56]
In the circumstances I find an order should and will be made. I will consider the kind of order to be made further below.
The other impugned terms
[57]
The application relates to two other terms,17 which the Applicant describes as follows:
“The clause stating that entertainers must stay at the provided accommodation for the entire duration, even if they leave the pub run;” and
“The clause allowing the agency to claim 20% commission on all private shows even though the contractor bears all risk, including safety and legal consequences.”
[58]
The evidence does not establish that the services contract requires that the performer stay at the accommodation provided even if they leave the pub run. The Pub Run Circuit agreement and the CQHG agreement require that accommodation will be provided, that it will be provided free of charge, and that there are conditions as to its use (including in relation to visitors, and consumables such as towels). There is a requirement under the CQHG agreement to notify CQHG if the performer is going offsite, “for security purposes.” The Pub Run Circuit agreement says: “You are of course welcome to stay wherever you prefer.” Accordingly, Ms Bell has not established there is an unfair contract term to this effect.
17 See application filed 30 July 2025, in response to question 2.1 on the approved form.
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[59]
I accept the Pub Run Circuit agreement says there will be “a 20% agency cut” on all private bookings. I accept the CQHG agreement requires that additional work or private shows must be directed through “Delicious Entertainment,” and are done at the performer’s own risk, with CQ Hotels Group Pty Ltd taking no responsibility for the performer’s safety and well-being. I will refer to these provisions collectively as “the private show commission term.” The Applicant relies on subsection 536JQ(1)(a) in respect of this term, and I accept it goes to remuneration. I accept that the private show commission term of the services contract would, if the parties were in an employment relationship, relate to workplace relations matters, having regard to subsection 536JQ(1)(a) of the Fair Work Act.
[60]
The applicant relied on her submissions in relation to section 536NB(1)(a) in respect of all of the terms referred to in her application. I do not need to repeat my consideration, above, here. However, it is not necessary to determine whether the private show commission term is an unfair contract term, because even if the discretion to make an order is enlivened in that regard, discretionary considerations weigh against exercising it. Unlike the forfeiture term, the no issue about commissions payable for private shows (or other private work) arises on the evidence. It also does not seem to be in contest that Ms Bell is no longer engaged by Diva Girl Pty Ltd. On that basis I consider this part of the application to be hypothetical. There would not be utility in making an order in respect of the private show commission term. Accordingly, I would not exercise the discretion if enlivened, and I would not make any order, in relation to the private show commission term. Ms Bell is at liberty to reapply in the event she is re-engaged by Diva Girl Pty Ltd under a contract that has a term to similar effect.
The kind of order to make
[61]
Having regard to my consideration above, and in all the circumstances, it would be fair to the parties, and an appropriate exercise of my discretion, to order that the services contract be varied to:
(a) provide that the performer must be paid for any time worked, while making clear that this does not oblige Diva Girl Pty Ltd to pay for any time not worked during the remainder of an incomplete circuit; and
(b) make clear the deposit is reimbursable, and the travel assistance is payable, for any circuit that is commenced, whether or not it is completed.
[62]
As the Pub Run Circuit agreement says the contractor “will also be liable for your own travel/accommodation costs incurred” it is prudent to also make clear that if the circuit is only partly completed the usual accommodation arrangements will remain in place from the commencement of the circuit until the contractor departs. This should not continue after the cessation of work part-way of the circuit (i.e. if the contractor stops working but remains in the accommodation).
[63]
Also, as I consider it appropriate to make the variations having regard to the partial completion of the July 2025 circuit and having regard to the fact that payment has already been made, it is also appropriate for the variations to take effect on and from the date that circuit commenced on 20 July 2025.
[2026] FWC 3283
14
Conclusion and orders
[64]
I have found that Ms Bell and Diva Girl Pty Ltd were parties to a services contract. I have found that the services contract included an unfair contract term, specifically, the forfeiture term, which, in an employment relationship, would relate to workplace relations matters. I have found Ms Bell has made an application under section 536ND in relation to the services contract. I have taken into account fairness between the parties concerned in deciding whether to make an order, and the kind of order to make.
[65]
The application is granted in part. I have issued a separate order18 giving effect to my decision.”
Bell v Diva Girl Pty Ltd trading as Delicious Entertainment [2026] FWC 3283delivered 7 September 2026 per Butler DP