Unfair dismisal; employee or commission agent?

Here is an entire appeal decision of a Full Bench of the Fair Work Commission  the central issue of which was whether the applicants for an unfair dismissal remedy had been dismissed as employees since they were engaged as sales representatives and were paid by commission.

“[1] Mr Peter Chambers and Ms Jennifer O’Brien have jointly lodged an appeal, for which permission is required, against a decision and orders made by Commissioner Williams on 24 March 2022. 1 The Commissioner’s decision was twofold: first, to dismiss an application made by Mr Chambers under s 365 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dismissal dispute between himself and Broadway Homes Pty Ltd (Broadway) and, second, to dismiss an application made by Ms O’Brien under s 394 of the FW Act for an unfair dismissal remedy against Broadway. The orders gave effect to the decision. The Commissioner dismissed the applications, on the motion of Broadway, on the basis that neither Mr Chambers nor Ms O’Brien had been dismissed by Broadway within the meaning of s 386 of the FW Act. For relevant purposes, s 386(1) provides:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[2] The Commissioner determined that Mr Chambers and Ms O’Brien had not been dismissed by Broadway on the basis that neither of them had been in an employment relationship with Broadway. It is not in contest that the definition in s 386(1) takes as its predicate the prior existence of an employment relationship. In their appeal, Mr Chambers and Ms O’Brien contend that the Commissioner erred in finding that they had not been employed by Broadway.

[3] Without descending immediately into controversy, the background facts of the matter may briefly be described as follows. Broadway is one of three companies in the Delstrat Group which market, sell and build residential homes in Perth in Western Australia. Broadway operates at the more expensive end of the new homes market. As part of its business, Broadway operates a Sales Team, which negotiates and sells contracts to clients to build new houses. For this purpose, Broadway engages sales representatives to make up the Sales Team. It also engages a Sales Manager to oversee the activities of the sales representatives and to assist them to close deals for the sale of contracts. Broadway’s practice is to engage the sales representatives, and the Sales Manager, as contractors.

[4] Broadway generates sales leads through its website, advertising and the operation of display homes. Leads generated by Broadway Homes are given to the Sales Manager, who allocates them to sales representatives. Sales representatives may also generate their own leads. The sales representative’s task involves converting the lead into a sale which, in the first instance, requires the client to be persuaded into entering a Preliminary Plans Agreement (PPA) and, subsequently, a building contract with Broadway. Until the building contract is signed, the sales representative is Broadway’s main contact for the client.

[5] The sales representatives are paid by commission. This is usually to the amount of 4 percent of the total value of the building contract, and is paid when the concrete slab is laid for the house (“slab down”). If the sale does not progress to this point, the sales representative does not get paid. Sales representatives are also paid additional commission as a bonus if the total value of their sales that reach slab down is equal to, or in excess of, $1 million in a month.

[6] On previous occasions, Mr Chambers had provided sales services to Broadway, and also to another company in the Delstrat Group. From 23 September 2019, Mr Chambers again commenced providing services to Broadway as a sales representative, and began working at one of Broadway’s display homes shortly afterwards. In this capacity, he held the title of Building and Design Consultant.

[7] No commission was paid in respect of Mr Chambers’ sales services until 27 July 2020 because of the lag time between commencing work to generate sales, and the time the slab was laid on the first contract sold by him. He initially survived by claiming Centrelink payments. In February 2020, he requested the payment of commission in advance. Broadway acceded to this, but required the execution of two documents:

(1) A standard-form agreement used by Broadway for the engagement of sales representatives.

(2) A “Deed of Acknowledgment”, which was Broadway’s standard-form document to secure the payment of advance commissions.

[8] The first document was executed by Mr Chambers, and by the then-Sales Manager Mr Peter Gobetti on behalf of Broadway, on 5 March 2020. It is referred to in the decision under appeal as the “Jamrok Agreement”. We will, for convenience, use the same designation here although, for reasons set out later in this decision, we consider this to be a misdescription of the document. The Deed of Acknowledgment (Deed) was also executed on 5 March 2020 by Broadway (signed by Mark Basso-Brusa and Carl Basso-Brusa as its directors) and by Jamrok Pty Ltd (signed by Mr Chambers, purportedly as its director). Jamrok Pty Ltd (Jamrok) is a family company of which Ms O’Brien, who is Mr Chambers’ mother, is the sole shareholder and director. After these documents were executed, all commission payments referable to Mr Chambers’ services were paid by Broadway to Jamrok.

[9] On 15 June 2020, after the departure of Mr Gobetti as Sales Manager, Mr Michael Gangemi, the General Manager of Broadway (as well as other companies in the Delstrat Group), offered and Mr Chambers accepted the role of Sales Manager (or Sales and Marketing Manager), to be performed by him in addition to his existing role as a sales representative. He was primarily located in Broadway’s head office from this time. As Sales Manager, Mr Chambers’ mode of remuneration altered: he became entitled to an “override” payment for each contract secured by a sales representative which reached the slab down stage calculated as 1.25 percent of the total value of the contract. This was in addition to any commission earned by him selling contracts as a sales representative.

[10] In early November 2019, Ms O’Brien also began providing services as a sales representative for Broadway Homes, and she also held the title of Building and Design Consultant. There was never any written contract to which Broadway was a party which applied or was referable to the services provided by her. The commission payable on sales generated by her was also paid to Jamrok.

[11] On or about 31 May 2021, an understanding appears to have been reached between Mr Gangemi and Mr Chambers that the latter would cease acting as Sales Manager, but subsequently a dispute arose about the circumstances in which this would occur. On 11 June 2021, Mr Chambers was made aware that the services of himself and Ms O’Brien were no longer required by Broadway. A subsequent email from Broadway to Mr Chambers dated 14 June 2021 confirmed “the termination of Jamrok Pty Ltd as a contractor for Broadway Homes”. On the same day, Ms Sharene Leatherbarrow, a sales representative, commenced in the role of Sales Manager at Broadway. Neither Mr Chambers nor Ms O’Brien provided any services to Broadway after this time. Mr Chambers and Ms O’Brien filed their respective applications in the Commission on 1 July 2021.

[12] On 23 August 2021 Jamrok made an application, under the Construction Contracts Act 2004 (WA) (CC Act), for the adjudication of a claim for unpaid commissions under the Jamrok Agreement. On 16 September 2021, the appointed adjudicator dismissed the application on the basis that the Jamrok Agreement was not a contract to which the adjudication provisions of the CC Act applied.

The decision

[13] In his decision, the Commissioner dealt with Mr Chambers’ application first. The Commissioner considered that approach taken in [43] and [59]-[61] of the judgment of Kiefel CJ and Keane and Edelman JJ in CFMMEU v Personnel Contracting Pty Ltd 2 (Personnel Contracting) with which Gordon J agreed at [162] and [173] and Steward J agreed at [203], was applicable to Mr Chambers’ application because the Jamrok Agreement between the parties comprehensively set down the terms of their relationship.3 In relation to Mr Chambers’ application, the Commissioner first considered Mr Chambers’ contention that the Jamrok Agreement was a sham. The Commissioner rejected the contention, finding that:

  • there was no evidence before the Commission that Mr Chambers had sought to challenge the agreement as a sham under general law or statute; 4
  • Ms O’Brien had in fact sought to enforce the Jamrok Agreement as a director of Jamrok under the CC Act; 5
  • the fact that Mr Chambers and Ms O’Brien only came to consider the agreement as a sham after they had ceased working for Broadway demonstrates that they did not intend the Jamrok Agreement not to have its apparent, or any, legal consequences at the time they entered into it; 6
  • there was no evidence that Broadway made any statement it knew was false to persuade or influence Mr Chambers to enter into the Jamrok Agreement; 7and
  • the reality of the situation was that Jamrok had a separate existence conducting a business of its own and conducted itself accordingly. 8

[14] The Commissioner next gave consideration to the question of who the parties to the Jamrok Agreement were. In doing so, the Commissioner accepted Broadway’s submission that it was permissible to consider the parties’ subsequent conduct in dealing with this question (and cited the judgment of Gordon J in Personnel Contracting at [177] in support of this proposition). 9 In this respect, the Commissioner placed weight on the following matters:

  • Ms O’Brien was never presented with an employment agreement; 10
  • commission and bonuses earned by Mr Chambers and Ms O’Brien were the subject of invoices generated by Broadway and were paid to Jamrok, and no money was ever paid to the personal accounts of either; 11
  • the evidence of a number of Broadway’s witnesses was that they understood Mr Chambers and Ms O’Brien were working as a team to secure building contracts, and no distinction was made for the purpose of payment; 12
  • after the termination of Jamrok in June 2021, Jamrok issued invoices claiming payment for sales secured by Mr Chambers and Ms O’Brien; 13
  • Mr Chambers accepted in his evidence that it was only because Jamrok was a party to the agreement that it could make claims against Broadway and agreed that Jamrok was the contracting vehicle, and Ms O’Brien agreed that Jamrok was the vehicle for payment; 14and
  • throughout the life of the Jamrok Agreement, both Broadway and Jamrok engaged with one another consistent with that agreement. 15

[15] The Commissioner concluded that the conduct described was indicative of Jamrok, not Mr Chambers, being the party to the Jamrok Agreement, there was no contract between Broadway and Mr Chambers and, accordingly, Mr Chambers was not an employee of Broadway and was therefore unable to make his s 365 application. The Commissioner considered that his application had to be dismissed on that basis. 16

[16] In the alternative, the Commissioner gave consideration as to whether, if Mr Chambers was a party to the Jamrok Agreement, it established an employment or subcontracting relationship. The Commissioner said that this question was, consistent with the decision in Personnel Contracting, to be answered by reference to the rights and obligations of the Jamrok Agreement. 17 However, he qualified this by accepting Broadway’s submission that the Jamrok Agreement and the Deed “should be considered together as being the contract between them”.18 The Commissioner referred to a number of provisions of the Jamrok Agreement and the Deed, and said that while some provisions, in isolation, were indicative of an employer/employee relationship, other provisions, also in isolation, indicated otherwise. In this respect the Commissioner said:

“[358] Bearing in mind the Jamrok Agreement was drafted by Broadway this mixture of provisions is consistent with Broadway’s position that the Jamrok Agreement was between itself and Jamrok, a subcontractor, and that Mr Chambers was not personally a party to it. From this perspective the provisions in the Jamrok Agreement that suggest an employer/employee relationship were not directed at Mr Chambers as an employee who was on the other side of the contractual bargain but rather applied to him as an agent of Jamrok.

[359] Broadway’s position also explains why the Jamrok Agreement provides no requirement for Mr Chambers to be paid by Broadway, and he wasn’t. There is nothing in the Jamrok Agreement that entitles Mr Chambers to be paid by Broadway for his efforts. A contract that does not entitle a person to payment for their efforts lacks an essential characteristic of an employer/employee relationship.”

[17] In respect of clause 5(d) of the Jamrok Agreement, which refers to “the terms of this Agreement being a contractual agreement to subcontract under the Builders License”, the Commissioner said that this was not mere labelling which could be ignored, but an unambiguous statement which went on to specify rights and obligations that were consequential to the subcontractor nature of the relationship, namely that commission payments would be inclusive of GST and that no superannuation contributions would be made. 19 The Commissioner identified as consistent with this that there was no entitlement to paid holiday, personal, parental or long service leave under the Jamrok Agreement.20 The Commissioner concluded on this basis that if Mr Chambers was a party to the Jamrok Agreement, the relationship between Mr Chambers and Broadway was not one of employee and employer.21 In respect of the Deed, the Commissioner considered that it was straightforward and did not “suffer from the same mix of provisions as the Jamrok Agreement”.22 Considering both the Jamrok Agreement and the Deed together, the Commissioner confirmed his conclusion that Mr Chambers was not an employee of Broadway.23

[18] The Commissioner went on to say that, for completeness, he would consider the right of Broadway under the Jamrok Agreement to control the activities of Mr Chambers. The Commissioner recognised that some of the agreement’s provisions were indicative of Broadway having some control over Mr Chambers, but said that it was clear that Broadway had little right to control when, where and how Mr Chambers did his core work of negotiating with clients to sell them building contracts. 24 The Commissioner concluded that the extent to which Broadway had the right to control Mr Chambers’ activities was not indicative of him working in a subservient and dependent relationship or suggestive of an employment relationship.25

[19] The Commissioner then turned to Ms O’Brien’s application. The Commissioner noted Ms O’Brien’s submission that she was a party to a contract with Broadway in the same terms as the Jamrok Agreement and said that, if this was the case, it was not an employment relationship and Ms O’Brien’s application must be dismissed. 26 However, the Commissioner did not accept Ms O’Brien’s submission in this respect.27 He found that there was no written contract between Ms O’Brien and Broadway and, instead, there was a “wholly oral” contract between them.28 The Commissioner then said, by reference to [56] (per Kiefel CJ, Keane and Edelman JJ) and [188]-[190] (per Gordon J) in Personnel Contracting that “having regard to the totality of the relationship is appropriate as is considering the conduct of the parties to identify the point at which the contract was formed and the contractual terms that were agreed”.29 The Commissioner then referred to the following facts:

  • after an initial discussion with Mr Gobetti, Ms O’Brien negotiated a suitable arrangement regarding opening a display home at Dianella with Mr Hart, another sales representative; 30
  • Ms O’Brien thereafter negotiated and sold building contracts to clients for Broadway, and completed commission slips detailing her sales and commission due; 31
  • Broadway generated recipient-created tax invoices (RCT invoices) for Jamrok which included Ms O’Brien’s commissions and sales bonuses; 32
  • all payments were made to Jamrok, and Ms O’Brien actively managed the day-to-day financial affairs of Jamrok including managing payments received from Broadway; 33
  • during the period she worked for Broadway, Ms O’Brien continued to work as a part-time real estate agent in a real estate agency and provided services as Jamrok, a contractor, to this agency; 34
  • prior to her involvement in 2019 with Broadway, Ms O’Brien had worked “in the industry” both as an employee and as a subcontractor; 35
  • it was only after the Jamrok Agreement was terminated that Ms O’Brien discovered that operating Jamrok for the primary purpose of receiving pay from builders operating independent contracting arrangements was sham contracting; 36
  • Broadway has always engaged its sales representatives as independent contractors; 37
  • the evidence of a number of witnesses was that they understood Mr Chambers and Ms O’Brien worked as a team; 38
  • there was no distinction between Ms O’Brien and Mr Chambers in respect of commission and bonus payments made to Jamrok; 39
  • Ms O’Brien was not required to record her attendance at Broadway nor the number of hours which she worked, and no payments were made to her based on the number of hours she worked; 40
  • Broadway decided whether it would accept or reject contracts delivered by Ms O’Brien, required her to use particular forms for the contracts, and required her to be present during some display home open times, but otherwise Ms O’Brien worked as little or as much as she liked, whenever and wherever she liked; 41
  • Ms O’Brien was involved in developing designs for some clients and attended a range of meetings that were part of the pre-start process before slab down was achieved, but this was not at Broadway’s direction; 42
  • overall, Broadway’s right to exercise control over Ms O’Brien was limited; 43
  • Ms O’Brien did not claim, nor did she receive, paid leave or superannuation; 44
  • while Broadway bore the high cost of building the display homes used to assist sales, the cost of a vehicle, laptop, and mobile phone used by sales representatives was borne by their businesses; 45
  • Ms O’Brien bore some business risk, including that no payment would be made if the slab down stage was not reached, and there might be sharing of the costs of a giveaway or discount in order to finalise the purchase of a contract, which would reduce Ms O’Brien’s commission; 46
  • all commission payments were inclusive of GST; 47
  • Jamrok conducted itself as a business separate from Broadway; 48
  • Broadway did not make any payments to Ms O’Brien identifiable as being the result of her work with Broadway, but did advance multiple loans to her; 49and
  • Ms O’Brien enjoyed financial benefits as a result of Jamrok being a subcontractor to Broadway and the recipient of payment, including enabling her and Mr Chambers to have flexibility to agree how gross income received would be shared, receiving loan repayments from Jamrok which could be characterised as capital rather than taxable income (including by directing such repayments to Mr Chambers), and allowing for various expenses to be paid by Jamrok and characterised as business expenses for taxation purposes. 50

[20] The Commissioner concluded from these matters that Ms O’Brien and Broadway had agreed that commissions and bonuses resulting from Ms O’Brien selling building contracts would be paid to Jamrok as a contractor, inclusive of GST, that no agreement was made for Ms O’Brien to receive any employee-type benefits, and that Broadway had limited rights to exercise any control over her work. 51 On this basis, the Commissioner said he was not satisfied that Ms O’Brien was an employee of Broadway, and dismissed her application.52

Appeal submissions

Mr Chambers and Ms O’Brien

[21] The appellants’ primary submission in respect of Mr Chambers’ application was that the Commissioner erred in not finding that the express terms of the Jamrok Agreement created an employment relationship between him and Broadway. It was submitted that Mr Chambers was, personally, a party to the Jamrok Agreement, as demonstrated by his identification as a party on the front cover page, his signature in his personal capacity in the signature block, and the absence of any reference to Jamrok’s ABN or ACN.

[22] As to the proper characterisation of the relationship established by the Jamrok Agreement, the appellants pointed in particular to the preamble, which refers to Broadway agreeing to “employ” Mr Chambers, and submitted that this unambiguously indicated that Mr Chambers was a servant of Broadway. The appellants submitted that this was reinforced by the further terms relating to the rights and obligations of the parties, and they directed attention to clauses 3(c), 3(e), 4(a), 5(b), 5(c), 6, 7(a), 8, 10(a), 10(b), 10(c), 10(d), 12, 16(a), 17(a), 17(b), 17(c), 17(e), 17(h) and aspects of Schedule A as plainly establishing rights and obligations indicative of control, personal service and employment. The appellants also pointed to the use of employment terms such as “income”, “remuneration”, “termination”, “resignation”, “employ” and “employed” throughout the Jamrok Agreement. Insofar as clause 5(d) described the Jamrok Agreement as being “a contractual agreement to subcontract under the Builder’s License”, the appellants submitted that this was, under the principles stated in Personnel Contracting, ineffectual to prevent the relationship between Mr Chambers and Broadway receiving the legal complexion which it truly wears. In relation to the Deed, it was submitted that, contrary to the Commissioner’s conclusion, it did not form part of the contract by which Mr Chambers provided services to Broadway, but was a distinct agreement for a loan between two business entities.

[23] The appellants submitted that the Jamrok Agreement was varied by the parties once Mr Chambers was appointed to the role of Sales and Marketing Manager not just in respect of remuneration (as the Commissioner found), but also in respect of the following matters:

(1) Mr Chambers was provided his own office, computer and stationery in Broadway’s head office, which constituted a variation to clause 3(i);

(2) Mr Chambers was given the authority to employ and terminate staff, as well as authority to commit Broadway to expenses and purchases, in variation of clause 4(c); and

(3) Mr Chambers was given direct access to Broadway’s business tracking system, which was expressly for (employee) staff members only.

[24] The appellants also relied on a number of extrinsic matters to support the existence of an employment relationship between Mr Chambers and Broadway, including that Broadway had been assessed as liable for payroll tax in respect of the payments made for Mr Chambers’ work, the personal execution by Mr Chambers of the Building and Design Consultant’s Starter Pack, his personal completion of the required emergency/medical information document (including signing the declaration in the document), his personal completion of the Smoking, Alcohol and Other Drug Rules, and his personal execution of the document for membership of the social club. The appellants also referred to the degree of Broadway’s control over the way in which Mr Chambers conducted sales work, including the required use of Broadway’s building and design guide and the use of standards form documents at all stages of the process.

[25] The appellants submitted that the Commissioner’s decision was inconsistent with Personnel Contracting, in that it did not treat the labelling provisions of clause 5(d) of the Jamrok Agreement as ineffectual, and that it was also inconsistent with the Commission single member decision in Gardiner v Next Residential Pty Ltd 53 (Gardiner), in which a sales consultant for a building company was determined to be an employee. The appellants also submitted that the Commissioner erred by placing weight on the proceedings instituted by Jamrok under the CC Act, which was irrelevant. They further submitted that the Commissioner failed to consider Mr Chambers’ role as Sales and Marketing Manager, which involved him being integrated into Broadway’s senior management team with a high level of control, influence and accountability, and that in this role Mr Chambers was reimbursed for his business expenses.

[26] In relation to Ms O’Brien, the appellants contended that she was engaged pursuant to an oral contract which consisted of the same terms as those contained in the Jamrok Agreement. This, it was submitted, was to be inferred from the fact that Ms O’Brien’s role was identical to that of Mr Chambers when he was a sales representative. As such, the appellants relied upon the submissions already made in respect of Mr Chambers concerning the proper characterisation of the Jamrok Agreement and the nature of the work performed pursuant to it.

[27] In the alternative, the appellants submitted that the Commissioner erred in rejecting their contentions that the relevant contracts were a sham or were entered into under the influence of misrepresentations which contravened ss 357 and 359 of the FW Act or as a result of undue influence and unconscionable conduct associated with the appellants’ need for advance payments of commission in order to survive. The appellants also contended that they were denied procedural fairness by the Commissioner in various respects.

[28] The appellants submitted that permission to appeal should be granted in the public interest because the Commissioner’s decision was attended by sufficient doubt to warrant its reconsideration, and substantial injustice would result if permission were refused.

Broadway

[29] Broadway’s appeal submissions defended the reasoning and conclusion of the Commissioner. It was submitted that there was no error in the Commissioner’s interpretation of the Jamrok Agreement and, in determining the nature of the relationship between Mr Chambers and Broadway, it was permissible for the Commissioner to go beyond the rights and obligations of the parties under the Jamrok Agreement and to consider the subsequent conduct of the parties under that agreement given Mr Chambers’ contention that it was a sham and that it was unclear who the relevant parties to the agreement were. Broadway submitted that the Commissioner’s conclusions that the Jamrok Agreement was not a sham either by reason of the parties’ intended legal consequences or by false persuasion or influence by Broadway, and that Jamrok and Broadway were the proper parties to the Jamrok Agreement, having engaged with each other in a consistent manner throughout the life of that agreement, were not in error.

[30] In relation to the Commissioner’s consideration of the rights and obligations established under the Jamrok Agreement, it was submitted that this was in accordance with the principles articulated in Personnel Contracting and ZG Operations Australia Pty Ltd v Jamsek 54 (Jamsek). Broadway emphasised in this respect the findings of the Commissioner that the provisions of the Jamrok Agreement which were directed at Mr Chambers were directed at him as an agent of Jamrok, that there was no entitlement for Mr Chambers to be paid by Broadway, that clause 5(d) was not mere labelling by the parties, that Mr Chambers was not entitled to paid leave, and that Broadway had little right to control when, where and how Mr Chambers did his core work of negotiating with clients to sell them contracts. This approach, it was submitted, was conventional and appropriate and not the subject of appealable error. Insofar as additional services as Sales Manager were provided by Mr Chambers, the Commissioner was correct in concluding that these fell within the scope of the Jamrok Agreement, with the only variation to that agreement being in respect of remuneration, and that during part of his time as Sales Manager, Mr Chambers was an employee of Jamrok.

[31] In respect of Ms O’Brien, Broadway noted that the Commissioner’s finding that there was no written contract between Ms O’Brien and Broadway was unchallenged in the appeal, and that the Commissioner had properly considered the totality of the relationship and the conduct of the parties to identify the point at which the contract was formed and the contractual terms agreed. The Commissioner’s finding that Ms O’Brien and Broadway agreed that payments for commission and bonuses would be made to Jamrok as a contractor, inclusive of GST, for Ms O’Brien selling building contracts was, Broadway submitted, readily available on the evidence and was not subject to any demonstrated appealable error.

[32] In response to the appellants’ submission that the outcome of their matter was inconsistent with that in Gardiner, Broadway pointed to a number of distinguishing facts in this case, including that the appellants were required to provide, operate and maintain an insured motor vehicle, Broadway exercised little control over the appellants’ work, Gardiner concerned a single sales representative whereas the appellants worked as a team together and the commission payments made to Jamrok did not distinguish between them, and the appellants and Jamrok took advantage of the tax benefits afforded by using Jamrok as the contracting vehicle. As to this last matter, it was submitted by reference to the judgment of Kiefel CJ, Keane and Edelman JJ in Jamsek at [63] that tax arrangements are highly relevant in determining whether a person is an employee.

[33] In response to other matters raised by the appellants, Broadway submitted that:

  • the evidence concerning liability for payroll tax on payment to Jamrok was considered by the Commissioner but was of little assistance, noting that (as submitted by Broadway below) liability for payroll tax is not confined to payments by employers to employees at law;
  • the Commissioner considered Jamrok’s proceedings under the CC Act only in the context of his determination as to whether the Jamrok Agreement was a sham and in relation to the appellants’ credibility, which was entirely proper;
  • the alleged failure of the Commissioner to consider two isolated instances where Broadway appeared to reimburse Jamrok for expenses incurred by the appellants does not give rise to appealable error;
  • the Commissioner was entitled to have regard to the regulation of the residential construction industry in Western Australia in considering the purpose and object of the Jamrok Agreement;
  • there is no basis for suggesting that Broadway exercised undue influence over Mr Chambers when he, as Jamrok’s agent, entered into the Jamrok Agreement, since the appellants understood the terms upon which Jamrok would be engaged because of Jamrok’s previous dealings with Broadway;
  • the most likely explanation for the delay, until March 2020, in providing Mr Chambers with a copy of the Jamrok Agreement was because Broadway’s accounts department only required an agreement to be executed when a commission payment became payable;
  • there was no evidence that Broadway made any false statement to persuade Mr Chambers, as Jamrok’s agent, to enter the Jamrok Agreement, and any superior bargaining power on the part of Broadway had no bearing on the meaning and effect of the Jamrok Agreement; and
  • the procedural fairness matters raised by the appellants had no substance and/or could not have affected the outcome of the matter.

[34] Broadway submitted that because the appellants had not demonstrated an arguable case of appealable error, nor demonstrated that it would otherwise be in the public interest for permission to appeal to be granted, such permission should be refused.

Consideration

Permission to appeal

[35] This is an appeal to which s 400(1) of the FW Act applies. Section 400(1) prohibits the Commission from granting permission to appeal unless it considers that it is in the public interest to do so. We consider that the decision is attended by sufficient doubt as to warrant appellate reconsideration and, for the reasons which follow, that the decision was in error in respect of the jurisdictional question as to whether Mr Chambers was an employee of Broadway. The effect of the decision was to deny Mr Chambers the opportunity to prosecute his application and thus caused him an injustice. For these reasons, we consider that it would be in the public interest to grant permission to appeal.

Issues to be determined in the appeal

[36] In respect of Mr Chambers, the primary finding made by the Commissioner, as outlined above, was that he did not have a contract of any description with Broadway and, in particular, that he was not a party to the Jamrok Agreement. In respect of his application, the first question we need to address is whether this finding was incorrect. If we find that it was, and conclude that Mr Chambers did indeed contract directly with Broadway, the next question is whether this contract was one of employment.

[37] In respect of Ms O’Brien, the Commissioner found at [399] and [402] that she entered into a wholly oral contract with Broadway. Broadway has not, in the appeal, contested this finding by way of a notice of contention or otherwise. Accordingly, the question which arises in respect of her application is whether her contract was one of employment. This requires, in the first instance, the identification of the terms of her contract.

[38] We deal with these identified questions in turn below.

Did Mr Chambers contract with Broadway?

[39] The Commissioner approached this question as one involving the identification of the parties to the Jamrok Agreement and answered it primarily by reference to his findings concerning the subsequent conduct of the parties. We consider, with respect, that this approach was flawed in at least three respects: first, it paid insufficient attention to the text of the Jamrok Agreement; second, it did not take into account the objective circumstances surrounding the making of the Jamrok Agreement; and third, it was somewhat selective in its consideration of the subsequent conduct and did not take into account the circumstances of Mr Chambers’ appointment as Sales Manager.

[40] The principles concerning the proper approach to be taken to identifying the parties to a contract were recently summarised in the Federal Court decision in Tregidga v Pasma Holdings Pty Limited. 55 The Court (Reeves J) said:

“[45] … the identification of the parties to a contract requires an objective assessment of all the relevant surrounding circumstances. That principle was expressed by Allsop P and Handley AJA (Hodgson JA agreeing) in Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299; [2009] NSWCA 429 at [28]:

The identity of the contracting party is to be determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract.

[46] To similar effect, in Lederberger v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509; [2012] VSCA 262 (Lederberger) at [19], the Victorian Court of Appeal (Nettle, Redlich JJA and Beach AJA) observed:

Identification of the parties to a contract must be in accordance with the objective theory of contract. That is the intention that a reasonable person, with the knowledge of the words and actions of the parties communicated to each other, and the knowledge that the parties had of the surrounding circumstances, would conclude that the parties had. The process of construction requires consideration of not only the text of the documents, but also the surrounding circumstances known to the parties and the purpose and object of the transaction. This, in turn, presupposes knowledge of the genesis of the transaction, the background, and the context in which the parties are operating. (Footnotes omitted)

[47] Secondly, at least in respect of a contract that is not wholly in writing (cf BH Australia Constructions Pty Ltd v Kapeller (2019) 100 NSWLR 367; [2019] NSWSC 1086 per Leeming JA), there is intermediate Court of Appeal authority that, in making the abovementioned objective assessment, regard may be had to post-contractual conduct (see Tomko v Palasty [2007] NSWCA 258 at [67]- [68] per Einstein J (Mason P agreeing) and Lederberger at [31]).”

[41] We start with the circumstances applicable to the engagement for Mr Chambers to work as a sales representative in September 2019, prior to the execution of the Jamrok Agreement in March 2020. The evidence discloses that, for a long period prior to Mr Chambers’ commencement in September 2019, Mr Gobetti had exchanged text messages with him in which Mr Gobetti tried to persuade him to return to Broadway. These messages were clearly directed to Mr Chambers personally: for example, a text message from Mr Gobetti to Mr Chambers on 21 May 2018 said “Are you coming back to join the team?”, and a further text on 20 June 2019 said “Do you want to come back home to BH yet? Any display you want North of River on weekends only!” None of these texts, or Mr Chambers’ replies, made any reference to Jamrok or subcontracting in general. Mr Chambers’ evidence, which was not contradicted by Mr Gobetti, was that Mr Gobetti at one stage offered him an increased commission of 5 percent.

[42] The immediate circumstances of Mr Chambers’ engagement by Broadway were described by him as follows:

“I met Mr Gobetti in Broadway’s new display home at 25 Malcolm Street, NORTH BEACH on 23 September 2019 with the intention of inspecting the property’s potential to make sales.

At no point during these communications or meetings did Mr Gobetti ask if I had a company, whether I was registered for GST or if I had any insurances like workers compensation or public liability.

At all times, Mr Gobetti represented himself as Broadway Homes, over the period that I have known him, he has claimed many different titles at the company including General Manager. I never had any reason to believe that he was not employed by Broadway.

The only discussions about the terms of my employment were related to the percentage commission and bonuses that I could potentially earn when compared to the flat rate of commission I was making at another builder.

I accepted his offer to join “the team” because of the proximity of the display to my home, the significant foot traffic close to the display along West Coast Drive and the presentation and price of the product I would be offering.

I opened the North Beach display home the following weekend, 28 and 29 September 2019…”

[43] Mr Chambers went on to say that he was expected to open Broadway’s North Beach display home from 1.00pm to 4.00pm every Saturday, Sunday and public holiday Monday. He was provided with Broadway-branded polo shirts that could be worn at the display home or in the Broadway office, and was provided with a Broadway email address and business cards. He was given free access to Broadway’s office premises, which he often utilised, and also to Broadway’s computer drives, construction sites and all display homes. He also attended sales meetings chaired by Mr Gobetti every Monday morning at 10.00am. He conducted his sales work by reference to Broadway’s “Building and Design Consultant Guide”. Mr Chambers said that, in the period before March 2020, no commission was paid in respect of his work because no contract he had sold had reached the slab down stage.

[44] Mr Gobetti’s account of how Mr Chambers came to become a sales representative for Broadway was as follows:

“In or around 2019, I gave Peter a call. Peter told me that he missed working at Broadway Homes and enjoyed his time there. I said to Peter words to the effect that it was worthwhile him coming back to sell at Broadway Homes. I later discussed Peter coming back to Broadway Homes with Michael Gangemi.

A short time later, I was told by someone within the Delstrat Group who I cannot now recall that Peter had been working for Jamrok as a contractor for Affordable Living.

In or around late 2019, I was told by someone within the Delstrat Group who I cannot now recall that Peter was not finding selling homes through Affordable Living very easy.

Shortly afterwards, I had a discussion with Peter where he said words to the effect that he would like to come back to Broadway Homes. Peter told me that Jennifer would be coming back to work with him. While I don’t remember the specific details of that conversation, my recollection is that Peter ‘sold’ Jennifer coming to work with him again because they had worked well together as a team in the past.

I later had a brief meeting with Jennifer, which was organised by Peter, where Jennifer and I agreed she would come back and assist Peter at Broadway Homes.”

[45] Leaving aside the circumstances of Ms O’Brien’s engagement, to which we will return later, Mr Gobetti’s account did not contradict that of Mr Chambers as to any relevant matter. In relation to the work performed by Mr Chambers as a sales representative, Mr Gobetti’s evidence also did not contradict that of Mr Chambers to any significant degree (although he said the weekly sales meetings he chaired were on Tuesday), but he sought to emphasise (in a somewhat tendentious way) the degree of freedom which sales representatives had in how they worked apart from required attendance at the sales meetings and display homes. Mr Gobetti recounted that he recalled saying to sales representatives from time to time words to the effect: “If you’re quiet, take time off. If you’re busy, work day and night”. He said that sales representatives were given a booth or desk to work from at Broadway’s office and, on request, a fixed telephone and desktop computer, but were not required to work from the office or attend during particular hours. He also said that sales representatives used their own mobile phones, laptop computers and cars, which they paid for.

[46] There was no dispute that Mr Gobetti had authority to act on behalf of Broadway in his dealings with Mr Chambers. The evidence concerning those dealings does not disclose that Mr Chambers held himself out as acting on behalf of Jamrok, or that Mr Gobetti believed that Mr Chambers was acting on behalf of Jamrok, or indeed any reference to Jamrok at all. Rather, it discloses no more than that an offer was made on behalf of Broadway for Mr Chambers to work as its sales representative on commission, and that Mr Chambers accepted that offer. Mr Gobetti is likely during this period to have operated on certain assumptions about the way in which Broadway usually engaged sales representatives, and the way in which Mr Chambers had been engaged in the past by Broadway or other entities in the Delstrat Group, but there is simply no evidence of any communication by him with Mr Chambers about this. The evidence concerning Mr Chambers’ work as a sales representative prior to March 2020 is consistent with him personally performing that work and the evidence does not disclose anything in the working relationship between Broadway and Mr Chambers during this period suggestive of the interposition of Jamrok in the relationship. Claims for commission submitted in this period were made by Mr Chambers in his own name and made no reference to Jamrok. Accordingly, we conclude that Mr Chambers was directly engaged by Broadway in September 2019 as a sales representative. That is an important matter of context in relation to the entry into the Jamrok Agreement that was not taken into account by the Commissioner.

[47] Both Mr Chambers and Mr Gobetti gave evidence broadly to the effect that the execution of the Jamrok Agreement and the Deed followed Mr Chambers’ request to be paid commission in advance for contracts he had already sold which had not yet reached the slab down stage. Mr Chambers’ evidence was:

“I do not recall exactly when I was provided a copy of [the Jamrok Agreement] … however it was well after I had commenced work with Broadway.

I did not pay too much attention to the detail of the [Jamrok] Agreement except that it provided the same commission structure that had been agreed with Mr Gobetti prior to accepting the position. I wrongly assumed that it was prepared correctly.

In late February 2020, approximately 5 months after I had started with Broadway, I requested an advance on the commissions that I had earnt as the financial position Ms O’ Brien, and I were facing was extremely tight.

Broadway refused to pay any money until I had signed the [Jamrok] Agreement and [the Deed] … Mr Gobetti counter signed the [Jamrok] Agreement as ‘The Company – Broadway Homes Pty Ltd ……Sales’ however he did not execute the Deed…

It was a ‘take it or leave it’ offer, I was not provided an opportunity to negotiate or alter terms of the [Jamrok] Agreement, I either walked away from the commissions I had already earnt or accept the agreement as it stood.

Ms O’Brien had been engaged with Broadway for approximately 4 months, however she was not requested to sign the documents, even though she was the sole director of Jamrok Pty Ltd.

Jamrok Pty Ltd is the company name that Broadway would pay our commissions through.

The Deed, which secures any debt arising from the relationship, was executed by two of the three Directors of Broadway in accordance with the Corporations Act 2001.”

[48] Mr Gobetti said, by reference to an executed copy of the Jamrok Agreement, that he “verily believed that this agreement is the subcontractor agreement for Peter Chambers to provide services for Broadway Homes”. He did not describe the actual circumstances in which the Jamrok Agreement (together with the Deed) were entered into, although he separately said: “I recall that Peter asked me on a number of occasions to be paid advance payments on future commission payments payable to Jamrok…”.

[49] Mr Chambers’ evidence set out above did not specify how it came to be that Jamrok was nominated to be the recipient of commission payments but, as discussed further below, this was almost certainly because the terms of the Jamrok Agreement required that commission and bonuses owing for sales generated by him be paid to a separate company. A “Bank Details” form completed by Mr Chambers on 5 March 2020 (the same date as the Jamrok Agreement was signed), which identified a bank account held by Jamrok as the account to which payments by Broadway were to be made, tends to confirm this. Subsequent RCT invoices generated by Broadway in respect of commission payments made were made in the name of Jamrok (albeit that Mr Chambers sent in his claims for commission in his own name, not that of Jamrok).

[50] However, apart from the issue of the direction of payment for sales generated by Mr Chambers, there is no evidence that Mr Chambers or Broadway communicated to each other that they wished to change the existing arrangement whereby Broadway directly engaged Mr Chambers, nor that Mr Chambers held himself out or Broadway considered that he was acting as the agent of Jamrok. Although it is reasonably apparent that Broadway required the execution of the Jamrok Agreement and the Deed as a condition of acceding to Mr Chambers’ request for advance commission payments, there is no evidence of Broadway communicating to Mr Chambers that it would only contract with an interposed contractual entity and not with him personally. Accordingly, the circumstances surrounding the execution of the Jamrok Agreement do not point to Jamrok, rather than Mr Chambers, being the contracting party.

[51] We now turn to the text of the Jamrok Agreement. The cover page of the agreement states that it is between Broadway and Mr Chambers. Mr Chambers’ name (handwritten by him) appears over the words “[Consultant Name] – Building & Design Consultant – (Hereafter called ‘the Consultant’)”. Immediately below this, there is the word “Of”, and Mr Chambers has handwritten next to this, in the space provided, “Jamrok Pty Ltd”. This appears above the words “Company name ABN/ACN”. These words infer that the Consultant executing the agreement (which the evidence demonstrates is in Broadway’s standard form) will have an association with a corporate entity, but they do not operate to indicate that the identified corporate entity is the party to the agreement rather than person identified as the Consultant above.

[52] The Jamrok Agreement was executed by Mr Chambers personally, and the form of the agreement indicates that this was intended to be the case. The signature block appears after the end of clause 17, on the page numbered ten. After the space for the date of signing of the agreement (filled in by Mr Chambers as 5 March 2020) appears the heading “The Consultant”, and below this are spaces for the “Name”, “Signature” and “Address”. It is plainly intended that the person identified as “The Consultant” will be the person to sign, and the form does not contemplate execution by a corporation (there is no space or prompt for the name of any company, its ACN or ABN, or signatures of one or more directors). Mr Chambers has filled out his name, provided his signature, and given his address. The evidence is that the address given is Mr Chambers’ residential address and is not the registered address of Jamrok. Below this, Mr Gobetti has signed the agreement on behalf of Broadway, and Broadway does not contest that he had authority to do so. The objective approach taken to the determination of contractual rights and obligation attaches a high degree of significance to the signature of a contractual document: in the absence of fraud or misrepresentation or some other vitiating element, the person signing it is taken to be bound by the document, even if they have not read it. 56 Under this approach, the signatures appearing in the Jamrok Agreement convey that Mr Chambers and Broadway intended to be bound by that agreement.

[53] Insofar as obligations (other than those applying to Broadway) are imposed by the Jamrok Agreement, they are unambiguously expressed as personal obligations upon the Consultant identified on the cover page, and cannot sensibly be read as obligations capable of discharge by a corporation. This includes, for example, requirements to attend in-house training sessions and sales meetings as required and notified by Broadway (cl 3(e)), to hold a current drivers’ license (cl 3(h)), and to attend Broadway’s office during office opening hours to receive sales enquiries via phone, email, walk-in or referral (cl 7(a)). Nothing in the Jamrok Agreement provides or implies that the Consultant’s obligations may be performed by a person other than the Consultant. Personal pronouns (“he/she”; “his/her”) are used throughout to refer to the Consultant, in distinction to Broadway which is referred to as “the Company” or “it”.

[54] Contrary to the Commissioner’s finding and Broadway’s submissions, clause 5(c) and Schedule A of the Jamrok Agreement contain clear entitlements for Mr Chambers to be paid commission and bonuses for sales achieved by him. Clause 5(c) provides that Broadway shall:

“(a) Ensure the Consultant is remunerated in accordance with the Company’s commission and payment structure (refer to SCHEDULE A).” (underlining added)

[55] In respect of commission, Schedule A provides:

“The Consultant will receive 4% Commission payment of the Lump Sum Building Contract value (exclusive of siteworks and GST) across the entire range of the Company’s designs.” (underlining added)

[56] Similarly in respect of bonuses, Schedule A provides:

“The Consultant will receive a bonus commission payment of 0.5% if he/she achieves Lump Sum Building Contract value(s) equating to $1million or more including GST for the specified month period and close-off date as set by the Sales Manager.” (underlining added)

[57] However, Schedule A also provides:

“Payment for both commission sales and commission sales bonuses will be made to the Consultant’s respective Registered Company. The Company is not responsible for tax being withheld if you operate as a Sole Trader or a Company. The Consultant will receive all commissions paid Gross. It is the responsibility of the Consultant to make sure they pay the applicable Tax, Super and GST as required by Corporate Law and the Taxation Department.”

[58] The above provision provides for commission and bonus payments to be paid to the Consultant’s “Registered Company”, and this may be related back to the requirement for the Consultant to fill in the name of a company on the cover page (although, confusingly, the provision also contemplates that the Consultant may operate as a non-incorporated sole trader). As earlier indicated, this no doubt explains why Mr Chambers nominated Jamrok as the recipient for payments and why Broadway subsequently made all payments to Jamrok. However, three observations about this provision may be made. First, it is clear that the provision predicates that the Consultant and their “Registered Company” are distinct entities. Second, the provision does not displace the entitlement of the Consultant to be paid; rather its effect is that Broadway’s obligation to pay the Consultant is discharged by payment being made to the Consultant’s “Registered Company”. Third, it remains the Consultant’s personal obligation to ensure that taxation and superannuation as required by law are paid. These matters provide further confirmation that Mr Chambers, not Jamrok, was the relevant party to the Jamrok Agreement.

[59] It may be accepted that the Deed, which was also executed on 5 March 2020, constitutes an agreement collateral to the Jamrok Agreement and may therefore be taken into account, as the Commissioner found. The terminology it uses is different to that in the Jamrok Agreement: Broadway is the “Builder”, Jamrok is the “Consultant” and Mr Chambers is the “Guarantor”. However, there is nothing of legal substance in the Deed which would serve to cause the clear identification of Mr Chambers as a party on the face of the Jamrok Agreement to be displaced. Unlike the Jamrok Agreement, the Deed was clearly separately executed by Jamrok and Mr Chambers. Its principal commercial purpose is readily apparent: where there is advance payment of commission which, as contemplated by Schedule A of the Jamrok Agreement, is paid to Jamrok, this becomes a debt owing by Jamrok to Broadway which is personally guaranteed by Mr Chambers. This is consistent with the position under the Jamrok Agreement that Mr Chambers is the principal to whom payment of commission relates.

[60] On the same day as the Jamrok Agreement and the Deed were executed, Mr Chambers was required to and did personally sign a declaration concerning the emergency/medical information which he had provided in the same document. This declaration states:

“I solemnly declare that each and every answer above is true to the best of my knowledge and belief. I understand that any false or misleading information may result in termination of employment. I understand that I may also be required to undergo baseline health tests during employment and on termination.”

[61] Mr Chambers was also required to and did personally sign an acknowledgment of Broadway’s “Smoking, Alcohol and Other Drug Rules” on 5 March 2020.

[62] Notwithstanding the plain terms of the Jamrok Agreement, the Commissioner regarded the post-contractual conduct of the relevant parties as demonstrative of the proposition that Jamrok, rather than Mr Chambers, was the relevant party to the Jamrok Agreement. The only truly objective matter which the Commissioner relied upon in this respect was the fact that commission payments were made (and RCT invoices directed) to Jamrok rather than Mr Chambers personally. However, as already explained, this was consistent with the provision made by the Jamrok Agreement that Mr Chambers’ entitlement to commission would be satisfied by payment of the requisite amount to his nominated registered company (Jamrok). Beyond this, the Commissioner relied largely on matters which we regard of little relevance or weight, such as witnesses’ understanding that Mr Chambers and Ms O’Brien “worked together as a team” to secure contracts (the legal effect of which was not explained), or concessions said to have been made by Mr Chambers and Ms O’Brien in cross-examination on issues of legal characterisation. These concessions were made in respect of questions which, had the appellants been legally represented, would no doubt have been objected to and not allowed. Answers given by a lay person on questions of legal characterisation have little or no probative value. For example, the Commissioner at [321] says that Mr Chamber’s evidence was that “he was an agent of Jamrok”. Mr Chambers gave this evidence in response to the question: “Did it not occur to you that if Jamrok was owed these moneys for work which you did as a sales representative, that you were either an employee of Jamrok or were an agent for Jamrok?” 57 This question related to the CC Act application. However, two questions later, this exchange occurred:

All right. As an agent of Jamrok, you were providing services for which Jamrok received a benefit; that’s correct, isn’t it?—There was a period of time I was an employee – – –

Just answer my question, please. As an agent of Jamrok, for which Jamrok received a benefit, as this document shows – – -?—What do you mean by a benefit?

Just listen to my question, don’t interrupt me. As an agent of Jamrok, for which Jamrok received these amounts, or was owed these amounts, you were working for Jamrok, weren’t you?—I’m not a hundred per cent sure what you mean by ‘agent’. 58

[63] The above exchange illustrates why evidence of this nature does not have probative value or relevance.

[64] The Commissioner did not take into account what we regard as the critical conduct post the execution of the Jamrok Agreement, namely the appointment of Mr Chambers to the position of Sales Manager and the performance by him of the duties of this position. Mr Chambers’ evidence about his appointment to this position was as follows:

“On 15 June 2020, Mr Gangemi requested that I attend the new head office on 16 June 2020 and spend the evening preparing my ideas about Broadway and its future.

After presenting to Mr Singleton and Mr Gangemi I was offered the position of Sales Manager.”

[65] Mr Gangemi’s evidence was not significantly different:

“I cannot recall the exact date, but around this time I had a discussion with Peter Chambers.

I do not remember the precise words that were used, but I said that Peter Gobetti was leaving and that there was an opportunity for Peter to take additional responsibilities.

Although I cannot recall the exact words, I used in the conversation, I recall being very clear with Peter that he would need to continue to sell contracts for Broadway Homes, because there were only a few other sales contractors at the time.

I recall Peter said words to the effect that this was an opportunity he had wanted for his whole life and that he wanted to do it.

Peter also said words to the effect that he was ‘keen as mustard’ to continue to sell and take on more responsibility.

I remember that we did not talk about payment for those additional services during that conversation or at any other time. I assumed, at the time, that Peter was aware of the ‘override’ payments that I discuss at paragraphs 52 and 53 above.

After that conversation, Peter began providing Sales Manager services for Jamrok.”

[66] An email sent to staff by Mr Guy Singleton, the Operations Manager of Broadway, on 29 June 2020 relevantly stated:

“It’s also the perfect time to congratulate Peter Chambers on his position of Sales & Marketing Manager for Broadway Homes. Since his time with us, his ability to continually produce solid leads and turn them into deals has been a welcomed relief. I know he is very grateful for all of you chipping in and going above and beyond to help him close deals.

The marketing process will continue to be completed in conjunction with Michael Gangemi, so pass on all marketing items that come through to Peter Chambers first. Not only will Peter continue to sell a significant part of his role will be primarily focussed on supporting & leading the sales team back to the glory days. He clearly has a successful method which I know the sales team will benefit from. He will still be a conduit between Admin & Sales for all pre contractual queries (same set up as Peter G), & will also now be prioritizing the work load (including all amendments) of the design department. This is very important as we want to get back in front of our clients as soon as possible. Peter will also liaise with estimating on when quotes will be ready for release to the sales rep for presentation.

Peter has been a busy man as he also has the process underway for a new Broadway Homes display on West Coast Drive. This will be amazing exposure for us. The slab will be down pre-Christmas this year. Watch this space.

. . .

We have all seen how eager Peter is to get up and running in his new role and refreshing to see his hunger. Welcome Peter, exciting times ahead for Broadway.”

[67] Mr Chambers described his perquisites, duties and functions as Sales Manager in considerable detail in his witness statement. He said he was given a private office that included office furniture, a personal desktop computer and an office phone, and was allowed to park in the managers’ section of the office carpark. He was provided with business cards which presented him as Sales Manager of Broadway, and was given additional access to Broadway’s computer drives. Mr Chambers said that, in the role of Sales Manager:

  • he consolidated the Sales Team to one floor in the Broadway office;
  • the four existing sales representatives reported directly to him;
  • he recruited two new sales representatives, and personally executed their contracts on behalf of Broadway;
  • he established the roster for sales representatives to attend the display homes;
  • he attended client meetings together with sales representatives;
  • he worked closely with Mr Singleton, including having “tracking meetings” with him, reporting to him on the progress of leads and providing regular updates;
  • he made the decision to terminate the engagement of two sales representatives;
  • he became involved in the hiring of administrative staff and the development of marketing material;
  • he was interviewed on television as the Sales and Marketing Manager of Broadway;
  • he was involved in establishing new display homes; and
  • he attended regular “Head of Department” meetings.

[68] Mr Gangemi’s evidence was that role of the Sales Manager is to provide information to him on sales and leads, and the Sales Manager is given leads generated by Broadway, who then allocates them to sales representatives. He said that sales representatives are expected to let the Sales Manager know if they are not going to attend a display home, so that the Sales Manager can arrange another sales representative to attend, and are also expected to inform the Sales Manager if they are not going to work for a period of time, so the Sales Manager does not send them any further leads. Mr Gangemi also said the Sales Manager has the responsibility of organising the weekly meeting of the Sales Team.

[69] There was no contest between the parties that there was no separate written agreement applicable to Mr Chambers’ role as Sales Manager and that the Jamrok Agreement continued to apply to him in that role, subject at least to an inferred variation to that agreement to provide for the additional entitlement to commission attaching to that role (noting that, as earlier outlined, the appellants submitted that additional variations should be inferred). Neither party contended that there was any alteration to the parties to the Jamrok Agreement resulting from Mr Chambers’ appointment as Sales Manager – a role which he still appears to have held when he was informed of “Jamrok’s termination” on 11 June 2021.

[70] The post-contractual conduct of the parties, we consider, further confirms rather than contradicts the position that Mr Chambers, and not Jamrok, was party to the Jamrok Agreement. His appointment to the position of Sales Manager was a personal appointment, with the dealings between the parties concerning this appointment making no reference at all to Jamrok. The role of Sales Manager clearly required personal service on the part of Mr Chambers, and there is no hint in the evidence that the duties of the position could have been discharged in some other way by Jamrok (such as by having Ms O’Brien performing the duties).

[71] We have earlier explained that the payment of commission earned by Mr Chambers to Jamrok was consistent with the terms of the Jamrok Agreement under which Mr Chambers contracted directly with Broadway. The position here is not dissimilar (albeit a fortiori) to that considered by the Federal Court Full Court in ACE Insurance Limited v Trifunovski. 59 Buchanan J, with whom Lander and Robertson JJ agreed, said:

“[150] It was argued that the trial judge should have found that Mr Trifunovski or Mr Peries were, at particular times, not employees of Combined whatever conclusions were reached about other agents. Both Mr Trifunovski and Mr Peries were sub-regional representatives. Each of them, it was contended, had at those particular times provided his services through a company of which he was a director – Heraclea in the case of Mr Trifunovski and Renham Pty Ltd in the case of Mr Peries.

[151] I have already referred to the contract which names Heraclea as a party as trustee. That contract was made in March 2004. In this agreement, in the execution clause, Mr Trifunovski personally was named as the sub-regional representative and signed in that apparent capacity. It is not clear, owing to the fact that this contract was signed by Mr Trifunovski personally as sub-regional representative, and that it was not executed under the seal of Heraclea, that Heraclea was in fact a party to any contract notwithstanding that it was named in the opening parts of the contract. Whatever view may be taken about that issue I do not think there can be any doubt that, notwithstanding the apparent existence of this contract, it was necessary for Mr Trifunovski to provide his services personally to Combined. The appellant accepted in written submissions that agents were not permitted to engage their own employees or contractors to sell Combined’s products.

[152] In any event, in my view, the trial judge was correct to conclude that the arrangements, whilst perhaps made to enable money to be channelled through Heraclea, did not represent an independent contract whereby Heraclea provided Mr Trifunovski’s services as its employee to Combined as the other party to the contract. The existence of this contract does not denote, therefore, that Mr Trifunovski was not an employee of Combined. In my view the trial judge correctly found that he was.

[153] In Mr Peries’ case a similar conclusion should be reached. There were four contracts purportedly made with Renham Pty Ltd between November 1990 and December 2001. The trial judge noted, and the appellant appeared to accept, that the contracts between the agents and Combined did not materially differ throughout the periods in question. Hence, I shall treat the contract purportedly made with Renham Pty Ltd dated 27 January 1992 as representative. The contract was stamped with the seal of Renham Pty Ltd. This document appears to me to have been merely a formality, or more correctly, formalism as Mr and Mrs Peries provided a personal indemnity to Combined to guarantee performance and as the contract was otherwise in the standard form for individuals. Although the execution clause for this contract was also stamped with the seal of Renham Pty Ltd it represented that the sub-regional representative was Mr Peries. He signed the contract personally. I would not conclude that this contract was in fact made with Renham Pty Ltd even though it was named in the recitals. In any event, it is undoubtedly the case that Mr Peries’ personal service was required. I think the findings of the trial judge that he was an employee of Combined, notwithstanding the existence of this and other similar contracts, are correct. Renham Pty Ltd could not discharge the duties imposed by these contracts. That could only be done by Mr Peries personally. The contracts with Renham Pty Ltd were, in my view, an apparent device to divert funds to a corporate vehicle.”

[72] For the above reasons, we conclude that at all relevant times, including as at the date of the termination of the engagement, Mr Chambers was directly engaged by Broadway. The Commissioner’s finding to the contrary was incorrect and, accordingly, the Commissioner erred in dismissing Mr Chambers’ application on this basis.

Was Mr Chambers an employee of Broadway?

[73] There is no contest between the parties that, subject to very limited inferred variation(s) arising from Mr Chambers’ appointment as Sales Manager, the terms of the engagement were comprehensively contained in the Jamrok Agreement and, accordingly, the principles stated in Personnel Contracting should be applied. We accept that this is the correct approach.

[74] The key propositions relevant to this appeal which may be derived from Personnel Contracting are as follows:

(1) When characterising a relationship regulated by a wholly written, comprehensive contract which is not a sham or otherwise ineffective, the question is to be determined solely by reference to the rights and obligations under that contract. It is not permissible to examine or review the performance of the contract or the course of dealings between the parties. 60

(2) The subsequent conduct of the parties may be considered to ascertain the existence of variation of contractual terms. 61

(3) The multifactorial approach only has relevance in respect of the required assessment of the terms of the contract. 62

(4) It is necessary to focus on those aspects of the contractual relationship which bear more directly upon whether the worker’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise. 63 The question is: whether, by the terms of the contract, the worker is contracted to work in the business or enterprise of the purported employer.64

(5) Existence of a contractual right to control the activities of the worker (including how, where and when the work is done) is a major signifier of an employment relationship. 65

(6) The label or characterisation placed on the relationship by the contract is not relevant even as a “tie breaker”, 66 or at least it is not determinative.67

[75] We consider that the provisions of the Jamrok Agreement point strongly to the existence of an employment relationship. First, as earlier stated, the agreement plainly requires the personal performance by Mr Chambers of the work of negotiating and selling building contracts. No provision is made for the delegation of the performance of that work. It is a contract for personal services.

[76] Second, the Jamrok Agreement confers on Broadway the right, to a very high degree, to control the activities of Mr Chambers, including how, when and where he does his work. For example:

  • Clause 3(c) requires Mr Chambers to undertake such duties in relation to Broadway’s business “as the Company shall from time to time assign him/her and in the discharge of such duties to observe and comply with all directions given”. This confers control not only as to what duties are to be performed, but also how they are to be performed.
  • Clause 3(d) requires that Mr Chambers “[b]e available for such hours of work as may from time to time be reasonably required of him/her, as set out by the Company.” This confers control, subject to a criterion of reasonableness, as to when work is to be performed.
  • Clause 7 empowers Broadway to roster Mr Chambers for office duty and, on the day he is rostered, to be present during office hours (unless there is a need to attend to matters out of the office, in which case another Consultant must be arranged to be present in his absence). Clause 8 empowers Broadway to roster Mr Chambers to attend at a display home, and this may be required on four days per week amounting, under subclauses (a) and (b), to a total of 15 hours per week in addition to office duty (and longer if there is a Monday public holiday). Broadway thus has a substantial right of control over where work is performed.

[77] We therefore consider that the Commissioner’s conclusion that Broadway had “little right under the Jamrok Agreement to control” when, where and how Mr Chambers performed his work is incorrect.

[78] The Jamrok Agreement also provides for Broadway’s control over more specific aspects of the work. This includes:

  • a right to require Mr Chambers to attend in-house meetings and sales meeting (cl 3(e));
  • a requirement to pass on any sales leads or relevant information as soon as practicable to any other Consultant whose actions/and or effort has generated the lead or enquiry (cl 3(f)); and
  • micro-specific requirements concerning what Mr Chambers is required to do to prepare a display home for business (cl 8(b)).

[79] Significantly, the Jamrok Agreement also confers on Broadway the right to control Mr Chambers’ sales performance. In this respect, clause 9 provides:

“9. The Company sets sales budgets to the minimum target acceptable for each individual Consultant based on their capacities, expectations and performance. The sales budgets may alter from time to time after consultation with the Consultant, normally at a structured Performance Review.”

[80] Clause 16(a) also controls when Mr Chambers can choose not to work, in that it limits him to an entitlement to unpaid leave of 20 working days per year and thus implicitly requires him to work on all other working days. Even this leave may only be taken upon the provision of four weeks’ notice and authorisation by “the Manager”; thus Broadway has a right of control over when this limited amount of unpaid leave is taken. Clauses 9 and 16(a) contradict any notion that Mr Chambers is operating an independent business and is thus free to work, and earn, as much or as little as he chooses.

[81] Third, the terms of the Jamrok Agreement make plain that Mr Chambers is required to work in the business of Broadway and is subordinate to that business. The recital provides that the purpose of the agreement is for the employment of Mr Chambers as a “Building & Design Consultant” in respect of “new homes”, which (as a non-contested objective background fact) relates to new homes designed and built by Broadway. The recital goes on to provide that Mr Chambers’ work of negotiating and selling lump sum building contracts is under Broadway’s registered builder’s licence. Clause 3 provides for the subordination of Mr Chambers to the interests of Broadway’s business, in that it requires Mr Chambers at all times to “act loyally” towards Broadway, endeavour to promote all the services provided by Broadway, and refer any business opportunity, lead or other relevant information to Broadway. Insofar as Mr Chambers is required to perform work at the office or at display homes, they are (again, as a non-contested objective background fact) Broadway’s office and Broadway’s display homes. Clause 4(a) requires priority to be given to Broadway’s activities and interests as follows:

“4. The Consultant agrees that he/she shall:

(a) Not without the consent of the Company during the continuance of this Agreement, be engaged or interested either directly or indirectly in any capacity in any trade, business or occupation which interferes or is in conflict with the Company’s business or interferes with the performance of his/her duties as a Consultant.”

[82] This effectively confers on Broadway the right to require exclusive service on the part of Mr Chambers. He is not free to engage in the business of selling new-build homes for building companies generally. Clause 4(b) further provides for absolute priority to be given to Broadway’s business interests, in that Mr Chambers is prohibited from undertaking any act, matter or thing which might expose Broadway to loss or liability or reflect upon its ethics or integrity or detract from or injure its good name. Additionally indicative of Mr Chambers working in Broadway’s business (and the lack of any business independence on his part) are that:

  • extensive requirements apply to Mr Chambers for the protection and control of Broadway’s intellectual property (cls 6, 17(c)-(d));
  • any corporate advertising or marketing material must be approved by the Sales Manager, even if Mr Chambers is paying for it, and media, industry and public statements and announcement must also be approved by the Sales Manager (cl 11); and
  • the clients are and remain Broadway’s property (cl 17(h)(iii)) and Mr Chambers cannot seek business from them after termination (cl 17(e)).

[83] Clause 3(h) provides that Mr Chambers is required to provide, operate and maintain a “suitable vehicle”. The Jamrok Agreement does not establish any criteria for what constitutes a “suitable vehicle”, and there is no requirement that the vehicle has to be for the sole purpose of performing the work under the agreement, nor does any provision specify the extent of use. This is not a provision which is inconsistent with the Jamrok Agreement being one for employment: Roy Morgan Research Pty Ltd v Commissioner of Taxation; 68 Gupta v Portier Pacific Pty Ltd.69 Clause 3(i) also requires Mr Chambers to provide, at his own expense, a mobile phone and a laptop computer, iPad or iPhone or other communication equipment. Certainly, the provision of a mobile phone is common in employment,70 and beyond this the expense of equipment required by clause 3(i) is minimal compared to the capital expenses in offices and display homes borne by Broadway.

[84] The mode of payment is by commission, but this is not inconsistent with employment. In ACE Insurance Limited v Trifunovski, 71 insurance salespersons paid by commission were determined to be employees. Real estate agents paid on a commission-only basis may also be employees.72 The rate of Mr Chambers’ commission is determined by the Jamrok Agreement and Mr Chambers is not free to set the price charged for his work. We accept, as submitted by Broadway before the Commissioner, that some weight must be placed on the fact that Mr Chambers bears a degree of business risk under the Jamrok Agreement since, under Schedule A, no commission is payable until the “slab down” stage is reached. This means that if a sale falls through for whatever reason prior to this, Mr Chambers will not be remunerated for the work he has undertaken to that point. However, this is a risk which is shared with Broadway, and is not sufficient to outweigh the terms of the Jamrok Agreement already identified which point to an employment relationship.

[85] The Commissioner placed significant and, on one view, determinative weight on clause 5(d) of the Jamrok Agreement, which provides:

“(d) Due to the terms of this Agreement being a contractual agreement to subcontract under the Builder’s License, make all commission payments inclusive of GST. The Company shall not make Superannuation contributions on behalf of the Consultant as it is not required to do so.”

[86] In our view, the Commissioner was in error in doing so. Insofar as clause 5(d) refers to the Jamrok Agreement being “a contractual agreement to subcontract”, that is mere labelling and should have been given little, if any, weight consistent with Personnel Contracting. Moreover, the labelling in the Jamrok Agreement is not even consistent, since the recital, clauses 6(b), 12(c), 17(b), and Schedule A refer to Mr Chambers being employed by Broadway. Insofar as the Commissioner placed significant weight upon what were said to be “the consequences of the subcontract nature of the relationship”, namely that commission payments are inclusive of GST and that Mr Chambers has no entitlement to superannuation contributions or paid leave, that was an error of principle. As was stated in ACE Insurance Limited v Trifunovski:

“[37] It is also difficult, in my view, to give much independent weight to arrangements about taxation, or even matters such as insurance cover or superannuation. These are reflections of a view by one party (or both) that the relationship is, or is not, one of employment. For that reason, in my view, those matters are in the same category as declarations by the parties in their contract (from which they often proceed). They may be taken into account but are not conclusive. These matters are less important than the adoption by the parties (where this occurs) of rights and obligations which are fundamentally inconsistent with basic requirements of a contract of employment, such as the ability to delegate the discharge of obligations under a contract to another person, or where there is a lack of control over how work is done.” 73

[87] It may be noted that in Personnel Contracting, the contract of the worker found to be an employee excluded liability to provide any paid leave entitlements. It should also be recalled that, while Mr Chambers did not have any entitlement to paid annual leave, as earlier explained clause 16(a) provided for four weeks’ unpaid annual leave, to be taken within constraints usually seen in a paid annual leave provision.

[88] Finally, it is necessary to consider any subsequent inferred variations to the Jamrok Agreement arising from Mr Chambers’ appointment to the position of Sales Manager. As earlier stated, the parties agree that the remuneration provisions of the Jamrok Agreement were varied to add an entitlement to the “override” commission payments attaching to the Sales Manager’s position. Such a provision would not change the character of the relationship established by the Jamrok Agreement. The more office-based focus of the Sales Manager’s position would readily be accommodated by the existing clauses 3(d) and 7. The only other variation we would necessarily infer, consistent with the appellants’ submission, is that Mr Chambers was contractually conferred with authority to “hire and fire” other sales representatives. This variation confirms that Mr Chambers was working in Broadway’s business in a management capacity.

[89] For the above reasons, we conclude that Mr Chambers was an employee of Broadway at the time of his termination on or about 11 June 2021. The Commissioner erred in finding otherwise. We find that Mr Chambers was dismissed within the meaning of s 386 of the FW Act.

[90] Because of the conclusion we have reached, the appellants’ alternative submission that the Jamrok Agreement was a sham does not arise for consideration.

Was Ms O’Brien an employee of Broadway?

[91] As earlier stated, the Commissioner found that Ms O’Brien was engaged pursuant to a wholly oral contract with Broadway, and neither party contested that finding in the appeal. In order to determine whether this contract was one of employment or otherwise, it is necessary to identify, by way of inference from the dealings between the parties, what the terms of that contract were.

[92] Ms O’Brien’s evidence concerning the circumstances in which she came to be engaged by Broadway in 2019 was as follows. Like Mr Chambers, she had previously worked for Broadway as a sales representative, but had been terminated by Mr Gobetti in 2014 when he discovered that she was also working for a real estate business. There is no evidence that, during this earlier engagement, she entered into a written agreement with Broadway (whether on the same terms as the Jamrok Agreement or otherwise), but her evidence was that a “deed of acknowledgement” was executed by Jamrok at this time. Ms O’Brien said in her witness statement that in mid-2019, she was working as a sales consultant in Bali selling holiday packages, and was informed by Mr Chambers that Mr Gobetti had inquired whether she would be interested in returning to Broadway since he needed another “consultant”. Consequently, she arranged an interview with Mr Gobetti sometime after her return from Bali on 24 October 2019. She said the interview occurred on or about 28 or 29 October 2019, and described it in the following terms:

“The interview was held between myself and Mr Gobetti, in his private Broadway office at Wangara, on or about 28 or 29 October 2019.

The first item Mr Gobetti raised was that he apologised for his previous action when he dismissed me in 2014 as mentioned above at [14]. He explained he now realised that the 2 positions complimented each other, and he had reacted hastily due to the fact he hadn’t been told about the real estate position.

I informed Mr Gobetti, with words to the effect of, I would be continuing with real estate on a part time basis no matter what the outcome of the interview was.

Mr Gobetti had a position for a Building & Design Consultant, specifically to share the Dianella Display with one of his other consultants, Rod Hart…

The hours required would be 1 day a weekend from 1pm to 5pm and either Monday or Wednesday from 2 pm to 5 pm at the display plus any other hours used to convert leads into sales, and compulsory attendance at specific meetings.

Mr Gobetti had a new display, currently under construction, in Jindalee and he offered this as an additional incentive for me to join Broadway.

Mr Gobetti also had a need for a consultant to cover the occasional leave days for the other consultants in Broadway’s Iluka, North Beach and Treeby Display homes.

At no time during this interview was I asked whether I had a company, if I was registered for GST or if I had any public liability or workers compensation insurance.

The only discussion around specific terms of my employment related to the commission structure and how much I would be paid per sale.”

[93] Ms O’Brien said she accepted the position at this interview, and commenced working in the Dianella display home on 3 November 2019. She said she was not provided with an agreement or employment contract at this meeting or at any later time.

[94] Mr Chambers’ evidence was broadly consistent with that of Ms O’Brien. He said that within the first month of him having started working again for Broadway, Mr Gobetti asked whether Ms O’Brien, upon her return from Bali, would be interested in taking a position at Broadway to share the Dianella display home and to fill a new display home in Jindalee when it finished construction. Mr Chambers said he told Mr Gobetti to speak to Ms O’Brien directly, and he understood that they made contact and arranged an interview at which he was not present. He was aware that Ms O’Brien subsequently began working every Sunday and Monday at the Dianella display home.

[95] Mr Gobetti’s evidence in his witness statement was that, during his first engagement with Broadway, Mr Chambers had told him that he was keen to engage Ms O’Brien to assist him with sales, and that he was happy to allow this on the basis that, in his experience, it was quite common in the building industry for sales representatives “to employ their own assistants”. He said that thereafter Ms O’Brien assisted Mr Chambers with sales and that they worked as a team. In cross-examination, Mr Gobetti accepted that he terminated Ms O’Brien in 2014 because he became aware that she was working as a real estate agent at the same time as Broadway’s display homes were open, which he considered to be a conflict of interest. 74 We assume that to be a concession, in effect, that Ms O’Brien was engaged directly by Broadway notwithstanding the suggestion in Mr Gobetti’s witness statement that Ms O’Brien was working in some capacity for Mr Chambers.

[96] Mr Gobetti described Ms O’Brien’s engagement in 2019, following his discussion with Mr Chambers about returning, in the following terms:

“Shortly afterwards, I had a discussion with Peter where he said words to the effect that he would like to come back to Broadway Homes. Peter told me that Jennifer would be coming back to work with him. While I don’t remember the specific details of that conversation, my recollection is that Peter ‘sold’ Jennifer coming to work with him again because they had worked well together as a team in the past.

I later had a brief meeting with Jennifer, which was organised by Peter, where Jennifer and I agreed she would come back and assist Peter at Broadway Homes.”

[97] The evidence concerning Ms O’Brien’s work after her initial engagement is scant. Ms O’Brien said that, once the Jindalee display home opened in September 2020, she attended this display home, in addition to the Dianella display home, on Wednesday 2.00pm to 5.00pm and Saturday 1.00pm to 5.00pm. She also opened other display homes on a relief basis. Ms O’Brien ceased attending the Dianella display home in January 2021 when Mr Chambers requested her to open the Jindalee home on Saturdays, Sundays and Wednesdays. Apart from attendance at display homes, there is no evidence that there were any working hours requirements applicable to Ms O’Brien.

[98] Ms O’Brien was provided with a business card which presented her as a Building and Design Consultant for Broadway. She was given a booth to work in the Broadway office with a desk, computer and phone), and security access to the office. However, the evidence of other witnesses was that she was very rarely there, and there is no evidence of any requirement to attend the office. Ms O’Brien did attend sales meetings, meetings with suppliers and client meetings (sometimes together with Mr Chambers). She paid for fuel for the use of her car and for mobile phone and internet usage.

[99] Ms O’Brien was remunerated in accordance with the same commission arrangements as specified in Schedule A of the Jamrok Agreement. Commission payable in respect of her sales was paid to Jamrok. As the Commissioner found, the RCT invoices generated by Broadway identified Jamrok as the party issuing the invoice and made no distinction between commission generated by Mr Chambers and that generated by Ms O’Brien. There also seems to have been an arrangement with Broadway whereby Ms O’Brien and Mr Chambers had a common advance commission account, as is made plain in an email from Mr Chambers to Mr Gangemi dated 30 March 2021 which refers to him and his mother “work[ing] as one”. 75 Notwithstanding this, the evidence also discloses that Ms O’Brien individually completed, in her own name and without reference to Jamrok, “Commission Forms” in respect of specific sales. Mr Chambers did likewise. This tends to contradict the claim of a number of Broadway’s witnesses that Ms O’Brien and Mr Chambers “worked as a team” with respect to sales.

[100] The evidence indicates that, subject to one qualification, Ms O’Brien operated as a sales representative in accordance with all the standard Broadway procedures and documents applicable to the other sales representatives, including Mr Chambers. The qualification is that Ms O’Brien continued to separately work as a real estate agent during her second period of engagement with Broadway and there is some evidence that she utilised her position as a sales representative for Broadway to obtain real estate sales. This occurred on occasions when a client needed to sell an existing property in order to be in a position to complete a building contract with Broadway, in which case Ms O’Brien would offer her services as a real estate agent. It is not clear whether Broadway knew about this at the time or would have permitted it. Throughout this period Ms O’Brien also attended to the administrative affairs of Jamrok, of which she was the sole director and shareholder.

[101] It is difficult from the above evidence to identify the terms of the contract between Ms O’Brien and Broadway. In his decision, the Commissioner did not make any clear findings about what constituted the terms of Ms O’Brien’s contract. We consider that we can at least infer the following terms:

(1) Ms O’Brien was entitled to payment of commission on the same basis as is provided in Schedule A of the Jamrok Agreement.

(2) Ms O’Brien was required to attend display homes as specified by the Sales Manager. We assume, although the evidence did not touch upon this, that attendance by her at a display home included a requirement to undertake the matters specified in clause 8(b) of the Jamrok Agreement, and that clause 8(c) would also apply.

(3) Ms O’Brien was required to follow standard Broadway procedures and use standard Broadway documentation in engaging in the work of selling building contracts for Broadway homes.

(4) Ms O’Brien was entitled to continue her separate work as a real estate agent provided that no conflict of interest arose.

(5) Ms O’Brien was not entitled to superannuation contributions or any form of paid leave.

[102] We reject the appellants’ submission that Ms O’Brien was engaged on entirely the same terms as those contained in the Jamrok Agreement. There is simply no proper evidentiary basis for such an inference to be drawn. Ms O’Brien did not (unlike Mr Chambers) execute a contract with Broadway in those terms the first time she was engaged with Broadway, so there is no basis for an inference that the parties assumed that a contract on the same terms would apply to her second engagement. There is no evidence that a contract on the terms of the Jamrok Agreement was discussed at Ms O’Brien’s interview with Mr Gobetti in October 2019 or at any subsequent time. There is no evidence that Ms O’Brien was even aware of the contents of the Jamrok Agreement, nor is there any evidence, apart from the matters identified in the preceding paragraph, that Broadway ever attempted in practice to apply its terms to her.

[103] The contractual terms we have identified only disclose a very limited right on the part of Broadway control to control how, when and where Ms O’Brien performed her work. This control was confined to the requirements for attendance at display homes, to follow Broadway’s standard sales procedures and to use its standard forms. This might be indicative on one view of Ms O’Brien working in the business of Broadway but, at the same time, Ms O’Brien was entitled to continue working separately as a real estate agent and appears to have used her role as a Broadway sales representative to generate real estate sales. This, together with Ms O’Brien’s role as sole director of Jamrok, is suggestive of her engaging in entrepreneurial activities on her own account. There was no requirement for Ms O’Brien to subordinate her conduct and activity to Broadway’s business interests and requirements, in contrast to the position under the Jamrok Agreement.

[104] We are therefore left with a mixed and indeterminate picture as to the characterisation of the contractual relationship between Ms O’Brien and Broadway. The Commissioner concluded that Ms O’Brien was not an employee, and the appellants bear the burden of persuading us that the Commissioner’s conclusion was in error. We are not positively persuaded of this. Accordingly, the appeal cannot be upheld in respect of Ms O’Brien.

Orders

[105] We order as follows:

(1) Permission to appeal is granted.

(2) In respect of the dismissal of the application in matter C2021/3763, the appeal is upheld and the decision ([2022] FWC 332) and order (PR739605) are quashed.

(3) The application in matter C2021/3763 is remitted to Deputy President Binet to deal with in accordance with s 368 of the FW Act.

(4) In respect of the dismissal of the application in matter U2021/5772, the appeal is dismissed.”

Chambers and another v Broadway Homes Pty Ltd t/a Broadway Homes (2022) FWCFB 129 delivered 13 July 2022 per Hatcher VP, Clancy DP and Young DP