DECISION

Fair Work Act 2009
s.365—General protections

Mohammad Amin (Darius) Souraki Azad
v
Hammond Park Family Practice Pty Ltd
(C2020/9293)

Application to deal with contraventions involving dismissal – applicant not an employee – no dismissal

[1] This decision concerns an application by Mohammad Amin (Darius) Souraki Azad (Dr Azad) under section 365 of the Fair Work Act 2009 (Act) (Application) alleging that he was dismissed from his employment with Hammond Park Family Practice Pty Ltd (HPFP) in contravention of the general protections contained in Part 3-1 of the Act.

[2] HPFP raises two objections to the Application. Firstly, HPFP objects to the Application on the basis that Dr Azad was not an employee and therefore was not dismissed as that term is defined in section 386 of Act. Secondly, should it be found that Dr Azad was an employee, it objects to the Application on the basis that Dr Azad’s employment was not terminated at the initiative of HPFP. There is also a dispute as to the effective date of dismissal, should it be found that there was a dismissal.

[3] On 17 February 2021 I issued directions for the parties to file materials, with revised directions issued on 24 February 2021 and 18 March 2021. Materials were filed by HPFP on 17 March 2021 and 1 April 2021 and by Dr Azad on 19 and 31 March 2021. Final written submissions were filed by HPFP on 22 June 2021 and by Dr Azad on 13 July 2021. Following the High Court decision in WorkPac Pty Ltd v Rossato 1 (Rossato) I provided the parties with an opportunity to file further submissions. Both parties filed further written submissions on 20 August 2021.

Hearing and Witnesses

[4] The Application was the subject of a hearing before me on 20 and 21 May 2021.

[5] Pursuant to section 596 of the Act Mr Luke Swanson of Hotchkin Hanly Lawyers appeared on behalf of Dr Azad. Ms Rachel Cosentino of Counsel appeared on behalf of the Respondent.

[6] Dr Azad gave evidence on his own behalf.

[7] The following witnesses gave evidence on behalf of HPFP:

•  Dr Seyed Mohammad Marashi – Medical Practitioner, Company Director and Practice Principal of Jupiter Health Warnbro.

•  Dr Michael Hakim Habib Gendy – Medical Practitioner and Company Director.

•  Ms Adelene Chew – Regional Engagement Manager, HPFP.

Section 365 and 386 of the Act

[8] Section 365 of the Act provides that a person who has been dismissed may apply to the Fair Work Commission (Commission) for the Commission to deal with the dispute.

[9] Section 386 of the Act provides that a person has been dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative 2 or 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.3

[10] Therefore, there can be no dismissal for the purposes of section 365 of the Act unless Dr Azad was an employee employed by HPFP.

[11] I have concluded that Dr Azad was not an employee of the HPFP. These are my reasons for that conclusion.

Observations regarding witnesses, evidence and submissions

[12] I first make some general observations regarding the witnesses.

[13] Contrary to the submissions made, 4 I did not find Dr Azad to be a truthful and helpful witness. I found Dr Azad to be an unconvincing and difficult witness, whose hubris inhibited his giving of frank evidence. He was often evasive under cross examination and at times gave his evidence in a belligerent and argumentative manner.5 On more than one occasion his “evidence” comprised legal commentary and conclusions. He was reluctant to make concessions where they appeared warranted. Further, I consider than his evidence was, on more than one occasion, contrived and too concerned to promote his case. I consider that he had a tendency to reconstruct an account of what occurred to best assist his position and fit in with his case and not to best assist the Commission. I do not consider he gave frank and open evidence to the best of his recollection at all times.

[14] For the most part, I found Dr Marashi, Dr Gendy and Ms Chew to be credible witnesses. Ms Chew’s evidence was largely unchallenged. Dr Gendy presented as a truthful witness who endeavoured to answer questions to the best of his recollection. His recollection on a number of matters was poor, however, given his limited involvement on a day to day basis with Dr Azad, Warnbro Family Practice Pty Ltd and Jupiter Health Warnbro, I find this unremarkable. Contrary to Dr Azad’s submissions regarding Dr Marashi’s evidence, 6 I found Dr Marashi, generally, gave evidence in a straight forward and forthright manner and made appropriate concessions where they appeared warranted.

[15] Joanne Visser, Practice Nurse, Liana Quirk, Practice Nurse and Ella McIlveen, daughter of Ms Visser were not called by either party as witnesses. HPFP submits that as Dr Azad did not call Ms Visser or Ms McIlveen to corroborate his evidence on the issue of whether he engaged Ms McIlveen to perform work related duties for him and provided no explanation for failing to do so, it is open to the Commission to conclude that their evidence would not have assisted Dr Azad. 7 Dr Azad submits that it was for HPFP to call these witnesses as it bears the onus.8 He submits that from this failure the Commission may draw inferences that the evidence of Ms Quirk, Ms Visser and Ms McIlveen would have been adverse to HPFP’s interests.9 I address matters to do with Ms Visser, Ms Quirk and Ms McIlveen later in this decision.

[16] Dr Hadipour was not called by HPFP to give evidence. Dr Azad submits that the Commission can infer that Dr Hadipour would have given the following evidence in support of his case:

“69.1 The Commission can infer that Dr Hadipour may have given the following evidence in support of Dr Azad’s case:

(a) Dr Hadipour had offered to be Dr Azad’s supervisor (not that Dr Azad had asked her to supervise him);

(b) Dr Hadipour required Dr Azad to use her Medicare Provider Number to bill patients before Dr Azad had obtain his own Medicare Provider Number;

(c) Dr Hadipour could have confirmed the requirement for Dr Azad to discuss patient treatment plans with her on a daily basis;

(d) Dr Hadipour required Dr Azad to seek permission before changing his work hours;

(e) Dr Hadipour required Dr Azad to seek permission before taking any leave;

(f) Dr Hadipour had never told Dr Azad that he could delegate his work; and

(g) Dr Hadipour told Dr Azad that in early-April 2020 Jupiter Health’s phone bill was going to increase and he should use his own phone as much as possible as he had unlimited calls.” 10 (footnotes omitted)

[17] As to the matters said to be able to be inferred from Dr Hadipour not being called to give evidence, I decline to draw the inferences sought. On the evidence already before the Commission matters (b), (c), (f), and (g) do not appear to be contested and I consider there is sufficient evidence before the Commission on those remaining matters to enable findings to be made in relation to them.

[18] As to the evidence and submission filed by the parties, Dr Azad, in particular, filed extensive evidence and submissions. I have carefully considered all of the materials filed by both parties, and all of the evidence before the Commission in this matter. Accordingly, a failure to specifically refer to a particular evidentiary matter or submission in this decision does not indicate that that matter or submission has not been considered.

Factual settings

Background – the Respondent

[19] HPFP was registered in 2010. Dr Gendy is a General Practitioner (GP) and is the sole director and shareholder of HPFP. HPFP opened a medical centre in Hammond Park in 2011 from which Dr Gendy and other medical practitioners provided general practice health care to the public. 11

[20] Dr Gendy developed the Jupiter Health brand with his partner Dr Soloman 12 and owns the Jupiter Health name.13 In 2016 HPFP adopted the Jupiter Health branding.14

[21] Over time, HPFP’s business has expanded. By 2017 it had two business. Firstly, the operation of wholly owned medical practices. HPFP currently owns four medical centres in Western Australia. 15 Secondly, the provision of services to independently owned medical centres and GPs under the Jupiter Health banner (referred to as the Jupiter Health Network)16 (Affiliated Practices).

[22] The second business referred to above operates as follows. HPFP:

•  employs managers and human resources personnel who can provide support to the management of Affiliated Practices;

•  sources and enters into leases of suitable premises and sub-lets or licences the use of those premises to Affiliated Practices;

•  maintains branding and a website which Affiliated Practices can use for patient bookings;

•  develops policies and procedures and relationships with medical suppliers which Affiliated Practices can access and utilise;

•  sponsors visas for international medical graduates (IMGs); and

•  arranges placement of GPs with Affiliated Practices. 17

[23] There are over 30 Affiliated Practices. 18

[24] HPFP employs an Engagement Manager to work with prospective GPs to put the relevant contractual arrangements in place, arrange any necessary visa sponsorship 19 and to work with the practice manager at the Affiliated Practice to prepare and lodge the application to Medicare for a Medicare Provider Number.20

[25] GP placements in Affiliated Practices are pursuant to a standard form Facilities Agreement. 21 Under the Facilities Agreement, the GP engages HPFP to provide premises, equipment and administrative support services within a medical centre from which the GP provides medical care to patients. Under the Facilities Agreement the GP pays a set percentage of their fees billed to patients to HPFP as a management fee.22 Typically, the Affiliated Practice supplies the facilities and services under the Facilities Agreement, rather than HPFP. This is not subject to any formal or documented agreement.23 As the Affiliated Practice provides the facilities under the Facilities Agreement, it also retains the management fee paid by the GP under the Facilities Agreement.24 Dr Gendy’s evidence was that he considered this to be consistent with the terms of the Facilities Agreement which permits HPFP to delegate duties for the contracted services.25

[26] The Facilities Agreement model is used across the Jupiter Health Network, other than in respect of doctors undertaking vocational training. These doctors are engaged by HPFP as employees. 26

Background – Jupiter Health Warnbro

[27] Warnbro Family Practice Pty Ltd (WFP) was registered in 2018. Its shareholders are HPFP and Oct 17 Health Pt Ltd (Oct 17), 27 with HPFP being the majority shareholder.28 Dr Gendy and Dr Marashi, also a GP, are the directors of WFP.29 Dr Marashi and his wife, Dr Hadipour,30 are the directors and shareholders of Oct 17.31

[28] WFP is an Affiliated Practice 32 and trades as Jupiter Health Warnbro.33

[29] HPFP leases premises at Warnbro which it makes available to WFP to operate its medical practice. 34 This is not subject to a formal documented lease agreement between HPFP and WFP.35 Dr Marashi and Dr Hadipour have executed Facilities Agreements with WFP under which they operate their own GP practices from the Jupiter Health Warnbro site and pay a percentage of their fees billed to patients as a management fee to WFP, in return for use of WFP’s administrative and nursing staff, rooms, equipment and medical supplies.36

[30] There are no formal or documented agreements between Dr Marashi or Dr Hadipour and HPFP. 37 There is also no formal or documented agreement between WFP and HPFP for doctors to be placed at Jupiter Health Warnbro, however, there is nonetheless an agreement between the parties for this to occur.38 In addition, HPFP receives income from WFP by way of dividends.39

[31] Dr Marashi oversees the day-to-day operations of WFP and makes day-to-day management decisions for the practice. He keeps Dr Gendy informed of any significant management decisions. 40

Background – Dr Azad

[32] Dr Azad is a GP 41 and an Iranian national.42 His evidence was that he suffers from attention deficit disorder and dyslexia,43 however, there was no probative evidence of these matters before the Commission. He studied medicine at the Tehran University of Medical Sciences, graduating in 2012.44 From 2012 until mid-2019 Dr Azad worked as a GP at the Iranmehr Medical Clinic in Sourak, Iran and also worked in a local hospital and other medical practices from time to time.45

[33] Dr Marashi and Dr Azad were acquainted from their university days. Dr Azad visited Australia in 2008 46 and 200947 and from that time on intended to return to live and work in Australia.48 In 2016 Dr Marashi was living and working in Australia. He and Dr Azad were in contact via social media49 and occasional visits. Dr Azad wished to work as a GP in Australia50 and from about mid to late 2012 commenced the necessary enrolments and examinations to enable him to become a registered IMG in Australia.51 On 3 May 2016 Dr Azad was advised the he had passed the Occupational English Test (OET) (a necessary requirement to work as an IMG in private medical practices in Australia).52 On 7 May 2016 he provided his curriculum vitae (CV) to Dr Gendy.53 Between May and December 2016 Dr Azad liaised with the HPFP Engagement Manager, latterly Ms Chew, in relation to a position at Harvest Lakes Medical Centre (First Position) and the requirements of the Australian Health Practitioner Regulation Agency (AHPRA).54 As part of that process Ms Chew provided Dr Azad with a contract entitled “Schedule of Commercial Terms Doctor” (First Contract).55 The First Contract provided as follows under the heading “Relationship”:

“2 Relationship

2.1 Nature

2.1.1 Hammond Park Family Practice is in the business of providing facilities and administrative services to facilitate general practitioners providing Medical Services to their patients. Hammond Park Family Practice is therefore a service provider to doctors, who in turn provide their medical services to patients. Unless otherwise specifically acknowledged by Hammond Park Family Practice under a separate agreement, Hammond Park Family Practice does not have any contractual relationships with patients.

2.1.2 Notwithstanding that Hammond Park Family Practice provides services to the Doctor, the nature of the operation of medical centres requires the Doctor to comply with certain obligations to ensure that they run effectively.”

[34] Under the First Contract, amongst other things:

(a) HPFP granted the doctor a non exclusive licence to use the facilities, staff, materials, accounts services, business development services and information technology services (Services) for the purpose of the doctor providing general practice and/or occupational medicine medical services to patients arising from the patient’s attendance at HPFP; 56

(b) HPFP provided the Services to the doctor during HPFP operating hours; 57

(c) the doctor paid to HPFP a service fee, calculated as a percentage of the doctor’s patient billings; 58

(d) HPFP would remit to the doctor an amount equal to the doctor’s patient billings, less the service fee; 59 and

(e) A partnership and an employment relationship was expressly denied. 60

[35] Dr Azad’s application to AHPRA was unsuccessful 61 and in about December 2016 he withdrew his application.62

2017 – 2018

[36] During 2017 and 2018 Dr Azad progressed his application to work and live in Australia via the Royal Australian College of General Practitioners (RACGP) with the assistance of Ms Chew. 63 As part of that process Dr Azad was required to pass the Pre-Employment Structured and Clinical Interview (PESCI). Dr Azad sat the PESCI examination for Level 2 supervision64 in Perth on 24 October 201765 but did not pass.66 Level 2 supervision is the level of supervision generally able to be provided by the Jupiter Network.67 As a result, Dr Azad could not commence in the First Position. Sometime in late 2017 or early 2018 it was agreed between Dr Marashi, Dr Hadipour, Dr Gendy and Dr Azad that Dr Azad could potentially work at Jupiter Health Warnbro and that Dr Hadipour would be his supervisor. I do not consider it necessary to determine at whose request this was agreed. In February 2018 Dr Azad submitted an application for PESCI Level 1 supervision.68 In August 2018 Dr Azad sat the PESCI examination for Level 1 supervision in Dubai and passed.69 He then resat the OET examination in October 2018, but failed. He successfully resat the OET examination in December 2018.70

2019

[37] During the course of 2019, with the assistance of Ms Chew, Dr Azad progressed his application to commence working at Jupiter Health Warnbro.

[38] On 18 January 2019, Ms Chew sent the following documents to AHPRA as part of Dr Azad’s application process to work at Jupiter Health Warnbro: 71

(a) a cover letter dated 18 January 2019, which provides that Dr Azad “shall commence full-time employment as a General Medical Practitioner with Hammond Park Family Practice Pty Ltd under the Jupiter health and Medical Services Group upon registration approval from the Medical Board of Australia”;

(b) a Form SPPA-30 – Supervised Practice Plan and Supervisor’s Agreement which provides HPFP as the name of the “employing organisation” and Ms Chew as the “employer contract” and nominates Dr Hadipour as Dr Azad’s supervisor;

(c) a Form AANG-30 – Application for Limited Registration for Area of Need which requires “sponsor employer details” to be set out at Part C, Section M, under which HPFP is stated to be the “sponsor organisation” and Dr Gendy is the “name of the employer sponsor”; and

(d) a Position Description which provides that Dr Azad will be “employed” at Jupiter Health Warnbro, will operate an “individual” practice, will “be rostered to work at the practice during the hours of operation…”, and will be subject to a “probationary period” of “3 months from commencement”. 72

[39] On 1 March 2019 Ms Chew sent Dr Azad a document entitled “Contract for Services Independent Contractor Agreement” (Agreement). Dr Azad signed each page of the Agreement, executed it and returned the Agreement to Ms Chew two or three days later. Ms Chew prepared and submitted the Nomination for a Temporary Skill Shortage Subclass 482 Visa 73 (Nomination) and submitted it together with the Agreement to the Department of Home Affairs. The Nomination states that Dr Azad is engaged as an independent contractor.74 On 6 August 2019 Dr Azad was granted a Temporary Skill Shortage Subclass 482 Visa75 (Visa) and arrived in Perth on 21 August 2019.76

The Agreement

[40] As set out above, the Agreement is titled “Contract for Services Independent Contractor Agreement”. The parties to the Agreement are HPFP and Dr Azad. The Agreement is stated as being executed on 1 March 2019. HPFP is referred to as the “Contractor”, while Dr Azad is referred to as the “Principal”. The definitions used throughout the Agreement are contained in clause 3 of the Agreement and are set out in full in Annexure A to this decision. Under the heading “Background” the Agreement provides as follows:

“1. Background

1.1 The Principal provides Medical Care during the Agreed Hours (Principal’s Practice)

1.2 The Contractor carries on the business of serviced Rooms and related support for Medical Practitioners who provide Medical Care. The Contractor facilitates incoming Patients for Medical Practitioners. (Contractor's Business)

1.3 The Contractor seeks to provide services to the Principal's business upon the Terms of this Agreement

1.4 The Principal acknowledges and accepts that the Contractor needs to derive a minimum amount of Agreed Hours to cover its fixed and variable costs

1.5 The Principal promises to comply with all reasonable requests from the Contractor and do all such things as are necessary to enable the Centre to maintain accreditation in accordance with the standards set by the RACGP where appropriate”

[41] Clause 5 of the Agreement sets out the work the Contractor (HPFP) will do. It provides, in summary, that the Contractor will:

(a) provide facilities (including standard plant, equipment, apparatus and furniture to support the Principal’s provision of medical care to patients) during the medical centre’s opening hours;

(b) supply reception, administrative, nursing and ancillary staff at the medical centre;

(c) provide an information technology network (including internet, email and network) and information technology hardware, software and support during the medical centre’s opening hours;

(d) provide administrative duties including answering telephones, greeting patients, updating and filing patient’s medical records, scheduling appointments and handling accounts;

(e) provide marketing being corporate design, identity and brand awareness, placement of individual Principal advertising on social media and print media (including creating brochures and business cards); and

(f) maintain accounts and records.

[42] Clause 6 of the Agreement sets out the Principal’s warranties. In summary, it provides, relevantly, that the Principal (Dr Azad) will:

(a) provide evidence of their Medicare Provider Number in respect of their practice at the medical centre;

(b) provide information about their medical malpractice insurance status;

(c) provide evidence of medical indemnity insurance;

(d) provide materials for work, including, but not limited to, personal items and equipment, prescription drugs, ophthalmoscope, auroscope and stethoscope;

(e) provide medical care at the centre for a minimum of 36 hours per week including one day on Saturday or Sunday morning at least once ever four weeks, for a minimum of 46 weeks in every 52 week period;

(f) use their best endeavours to give the Contractor four weeks’ notice of any period during which the Principal will not provide medical care at the centre; and

(g) sign and deliver to the Contractor all forms necessary to seek payment from Medicare (or other institutions) in respect of medical care provided by the Principal.

[43] The full text of clause 5 and 6 of the Agreement is set out in Annexure B to this decision.

[44] Other clauses of the Agreement most presently relevant are as follows:

“8. Who controls the Contractor and its employees?

The Contractor supplies the Work as an independent contractor. The Contractor is not in partnership, or in a joint venture or an employee, servant or agent of the Principal

Nothing in this Agreement is construed as to constitute the Principal to be an employer and the Contractor (or its own employees and agents) to be an employee. It is the express intention of the parties that such a relationship is denied

Nothing in this Agreement is construed as to constitute either party to be the agent of the other. It is the express intention of the parties that such a relationship is denied

The parties acknowledge that the Contractor only (not the Principal):

(i) Is able to delegate duties for the contracted services.

(ii) Is required to make its own insurance and tax payment arrangements.

…

11. Mode of Payment

The Remuneration is paid on an ongoing basis that is based on the fortnightly cycle of the practice. Services fee calculation: 45% (+GST) [55% -GST for the Doctor including during out of hours].

…

13. How does the Contractor protect the Principal?

The Contractors:

(i) Acts, with the utmost good faith in all of its dealings with the Principal.

(ii) Does not intentionally do anything which is or may be harmful to the Principal.

(iii) Reports promptly all reasonable information, explanations and advice which the Principal requires or as to which the Principal should properly be informed of

Any additional expenses are to be advised by the Contractor before they are incurred and are to be mutually agreed upon.

The Principal acknowledges that the Contractor is not responsible for the involvement in any matters concerning the exercise of the Principal's own professional judgement and discretion at any time in respect of:

(i) The Medical Care provided;

(ii) The fee charged by the Principal for Medical Care

(iii) The referral of parties by the Principal to specialists or to other Medical Practitioners; and

(iv) The use of ancillary Medical Care including, without limitation, pathology and diagnostic imaging services.

The Agreement starts on the Commencement Date.

…

15.3. Non-Competition

For a period of two years following termination of this Agreement, the Principal shall not, directly or indirectly, through services to any partnership of which the Contractor is a partner or employee or through any corporation or other entity in which the Contractor has any interest or by whom is employed, compete with any of the Contractor's affiliates or subsidiaries or may have been engaged within five years prior to the termination of this Agreement.

For a period of two years following the termination of this Agreement the Principal shall not provide Medical Care to a Patient at a competing medical centre within a 5 kilometre radius from the Contractor's Centre.

15.4. Non-Recruit

The Principal shall not during this Agreement and for a period of five years immediately following the Termination Date of the Agreement, either directly or indirectly, recruit any of the Contractor's employees or any Medical Practitioner who uses the Rooms of the Centre.

15.5. Non-Solicitation

The Principal shall not during this Agreement and for a period of two years immediately following Termination Date of this Agreement, either directly or indirectly, call on, solicit or take away or attempt to call on, solicit or take away, any of the Patients of the Centre either for their own benefit or for the benefit of any other person, firm or organisation.

…

15.7. Can the Contractor assign its rights under this Agreement?

The Contractor may assign its rights under this Agreement without the Principal's prior written consent.”

[45] Dr Azad’s evidence in his witness statement was that he signed the Agreement because he assumed it was needed for his Visa nomination. 77 His evidence was that at no time prior to or after being sent the Agreement was he advised that he was going to be engaged as an independent contractor, other documents (as set out in paragraph [38] above) referred to HPFP as the employing organisation or employing practice sponsor, nor was he asked if he was running his own business.78 Whilst I accept those matters and also accept that the documentation is inconsistent as to the nature of Dr Azad’s engagement with HPFP, I reject any suggestion that Dr Azad did not understand that it was intended that he was engaged by HPFP other than as an employee. Firstly, Dr Azad is a well educated, sophisticated, professional person. Further, he is currently a director of a company investing in development of medical commercial and residential property in Rockingham79 and considers himself to be a business person80 with the skill set necessary to complete such a project,81 which is hoped to be in the millions of dollars.82 In those circumstances any assertion that he did not understand the nature of the relationship expressed in the Agreement lacks credibility. Secondly, the Agreement is clearly labelled “Contract for Services Independent Contractor Agreement” and, as set out above, in its express terms does not establish an employment relationship. I consider it clear that in its express terms the Agreement clearly establishes an arrangement under which HPFP provides services and facilities to Dr Azad for which Dr Azad pays a fee, calculated as a percentage of his patient billings. Thirdly, the Agreement purports to create a service agreement and the same service fee arrangements as was contained in the First Contract. Dr Azad’s evidence under cross examination was that he read the First Contract,83 he was “careful with documents”,84 he was a “person that asks a lot of questions”85 but did not ask Ms Chew any questions about the First Contract,86 he understood that the First Contract enabled him to conduct his own practice as a GP,87 he understood that HPFP was in the business of providing facilities to GPs,88 and the terms of the First Contract did not surprise him89 nor did the statement in the First Contract that “Nothing in the agreement constitutes the parties as partners or employer/employee relationship” alarm him or cause him any discomfort.90 Fourthly, he signed the Agreement without asking Ms Chew any questions regarding it,91 he did not ask any questions about the Agreement in the five months between returning the signed Agreement and arriving in Australia,92 he knew the document would be relied upon by the Department of Home Affairs in granting his visa,93 he agreed that the Agreement was a genuine agreement94 and held it out to the Department as such95 and he was not surprised that the Agreement was a contract for services.96

New Doctor Induction

[46] On 7 August 2019 Dr Azad advised Ms Chew that his Visa had been approved. 97 Ms Chew responded informing him that he would need to attend a new doctor induction programme, details regarding obtaining a Medicare provider number and that he could not work until he had obtained a provider number, which may take a month to six weeks. Ms Chew advised Dr Azad that in the interim once in Australia he could “sort out your bank, ATO and ABN.”98

[47] Dr Azad’s evidence is that about one month after starting work at Jupiter Health Warnbro Dr Marashi told him he needed to apply for an Australian Business Number (ABN). His evidence was that he did not know what an ABN was or why he would need one. 99 His evidence also was that he did not contact an accountant until February 2020 and that the accountant was referred to him by Dr Marashi.100 Ms Chew’s evidence is that she conducted the new doctor induction programme with Dr Azad on 26 August 2019. That induction was conducted in person at Mundijong and was for 2 hours. Dr Azad agreed under cross examination that this was so.101 Ms Chew’s evidence was that in the induction she covered all of the matters contained in the New Doctor Induction Programme Checklist (Checklist).102 The Checklist covers general life matters such as finding accommodation, private health insurance, car rental and opening a bank account and matters specific to the operation of Dr Azad’s practice including obtaining an ABN because the doctor is a contractor, engaging a tax accountant to prepare quarterly Business Activity Statements (BAS) for Goods and Service Taxation (GST) purposes and obtaining medical indemnity insurance.103 The Checklist provides the name and link to M Garas and Associates as the “preferred choice” of accountant.104 For the reasons that follow I prefer the evidence of Ms Chew in this regard and find that Dr Azad knew that he was required to obtain an ABN and also that he was required to do so because HPFP (and at that time, himself) considered he was engaged as an independent contractor. Further, whilst it may be that Dr Azad did not contact an accountant until 28 February 2020, I find that Dr Azad was advised of the need to have an accountant to assist with the lodgement of quarterly BAS in August 2019. I also find that M Garas and Associates were recommended as the accountant of choice at the new doctor induction programme in August 2019. Firstly, Dr Azad conceded under cross examination that Ms Chew told him at the new doctor induction programme he was required to get an ABN.105 Secondly, Ms Chew’s evidence on these matters was not challenged under cross examination. Thirdly, Ms Chew’s evidence is consistent with and supported by the contents of the Checklist. Further, I consider it likely that in the context of HPFP’s business of engaging IMG’s that the provision of information contained in the Checklist would be well practiced and that delivery of that information would be unlikely to deviate in any significant way from the contents of the Checklist. Fourthly, Ms Chew raised the need for Dr Azad to have an ABN and to “sort out [his] ATO” in her email of 7 August 2019.

[48] On 23 August 2019 Dr Azad applied for a Medicare provider number. 106 Section 24 of that application provides as follows:

“24. Your employment status at this location is:

Tick ONE only

[49] Section 24 is answered by ticking “sole trader”. 107 Section 35 of the application is headed “Provider’s declaration” and declares, amongst other things, that the deponent is aware of their legal obligation to provide true and accurate information. That declaration is signed by Dr Azad. Dr Azad’s evidence was that he did not complete the application.108 It appears uncontested that Ms Chew prepopulated the application. Further, Dr Azad’s further evidence was that the ABN and bank account details are those of HPFP, not his own.109 Under cross examination Dr Azad agreed that he signed the application after reading the declaration110 and that he believed that the information in it was true at the time.111 Accordingly, notwithstanding that Ms Chew prepopulated the application and the inclusion of HPFP bank account details, I find that Dr Azad was aware that the parties did not consider the relationship to be one of employment and that he did not consider that he was engaged by HPFP as an employee.

Jupiter Health Warnbro

[50] Dr Azad attended Jupiter Health Warnbro as an observer from 22 August 2019. 112 He was issued a Medicare provider number on 1 October 2019113 and commenced seeing and billing patients from 2 October 2019114 (prior to that time patients seen by Dr Azad were billed using Dr Hadipour’s Medicare provider number).115

[51] From 2 October 2019 until 6 November 2020 Dr Azad was subject to supervision by Dr Hadipour, initially at Level 1, and from 27 May 2020, at Level 2.

Cessation of relationship

[52] Given my conclusion that Dr Azad is not an employee of HPFP, it is not necessary that I consider in detail the events that led to the cessation of the relationship between Dr Azad and HPFP. For present purposes, it is sufficient to note that the relationship between Dr Azad, Dr Hadipour and Dr Marashi deteriorated and in a meeting between Dr Azad and Dr Marashi (attended by Ms Visser and Ms Errington, Practice Manager) 116 on 6 November Dr Marashi advised Dr Azad that Dr Hadipour was immediately withdrawing as Dr Azad’s supervisor.117

[53] Dr Azad did not see any patients or attend Jupiter Health Warnbro again after 6 November 2020.

Consideration

Relevant principles

[54] The distinction to be drawn between an employee and an independent contractor are well established and were helpfully summarised by a Full Bench of the Commission in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario 118 (French Accent) where it relevantly stated as follows:

“[30] The general law approach to distinguishing between employees and independent contractors may be summarised as follows:

(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.

(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.

(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.

(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the particular context. For ease of reference the following is a list of indicia identified in the authorities:

•  Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place of work, hours of work and the like.

Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of an independent contract. While control of this sort is a significant factor it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee.

“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.” “[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.”

•  Whether the worker performs work for others (or has a genuine and practical entitlement to do so).

The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, working for others (or the genuine and practical entitlement to do so) suggests an independent contract.

•  Whether the worker has a separate place of work and or advertises his or her services to the world at large.

•  Whether the worker provides and maintains significant tools or equipment.

Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.

•  Whether the work can be delegated or subcontracted.

If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.

•  Whether the putative employer has the right to suspend or dismiss the person engaged.

•  Whether the putative employer presents the worker to the world at large as an emanation of the business.

Typically, this will arise because the worker is required to wear the livery of the putative employer.

•  Whether income tax is deducted from remuneration paid to the worker.

•  Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.

Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.

•  Whether the worker is provided with paid holidays or sick leave.

•  Whether the work involves a profession, trade or distinct calling on the part of the person engaged.

Such persons tend to be engaged as independent contractors rather than as employees.

•  Whether the worker creates goodwill or saleable assets in the course of his or her work.

•  Whether the worker spends a significant portion of his remuneration on business expenses.

It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.

(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other.

(6) If the result is still uncertain then the determination should be guided by “matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” including the “notions” referred to in paragraphs [41] and [42] of Hollis v Vabu.” (footnotes omitted)

[55] More recently another Full Bench in Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats 119 (Gupta) reaffirmed French Accent as the relevant authority but in doing so cautioned against the use of the multi-factorial approach as merely an arithmetic exercise when they stated:

“[64] In French Accent, a Full Bench of this Commission usefully summarised the considerations, derived from various court authorities, which may be relevant in the application of the multi-factorial test referred to in Brodribb. However as was stated by Winneke P in the Victorian Court of Appeal decision in The Roy Morgan Research Centre P/L v The Commissioner of State Revenue, the task in applying the test is not to be approached as a mechanical exercise of running through items on a checklist, but is rather “a matter of obtaining the overall picture from the accumulation of detail”. This involves “an assessment and evaluation of evidence for the purpose of identification and isolating factors or indicia which are capable of pointing in one direction or the other, and then weighing or balancing those factors in accordance with established principles, none of which is conclusive, in order to reach a conclusion”.” (footnotes omitted)

[56] As also stated by the Full Bench in Gupta, conduct of the “multi-factorial evaluative approach” proceeds on the premise that “the individual in question personally performs work pursuant to a contractual relationship with another person or entity”. 120 On that premise the question to then be answered by use of the multifactorial approach is that of whether the work is performed as a contractor or as an employee. I am satisfied on the basis of the material before me that Dr Azad personally performed work for HPFP pursuant to a contractual relationship. It is therefore necessary for me to determine whether he did so as an independent contractor or as an employee.

Terms of the Agreement

[57] The Agreement provides an appropriate starting point in considering the nature of the relationship between Dr Azad and HPFP.

[58] HPFP submits that the express terms of the Agreement deny a relationship of employment and instead provide that Dr Azad would operate his own medical practice and pay fees to HPFP for facilities and services which enable him to consult patients from Jupiter Health Warnbro. 121 HPFP submits that in the present circumstances the express terms of the Agreement must be given highly significant weight. 122

[59] Dr Azad concedes that the terms and terminology of the Agreement “clearly attempted” to establish a relationship of principal and independent contractor. 123 However, he submits that on the whole the terms of the Agreement did not reflect reality124 or were internally inconsistent and relies upon:

•  Clause 6.7.2 which requires Dr Azad to provide prescription drugs. Dr Azad submits that he could not and did not provide prescription drugs;

•  Clause 8, which Dr Azad submits suggests that HPFP was required to make its own insurance and manage tax payment. Dr Azad submits that in reality he was required to obtain his own insurance, ABN and manage his own tax affairs; and

•  Clause 3, which provides a “Commencement Date” and clause 10 which provides a different “Start Date.” 125

[60] Further, Dr Azad submits that there is no clause in the Agreement which expressly states that Dr Azad agreed or acknowledged that he was not an employee. 126 Finally, Dr Azad submits that the Agreement was a contract of adhesion,127 with no opportunity for negotiation128 and was linked to, and reliant on, HPFP under his Visa conditions.129

[61] The Full Bench in Gupta summarised the various authorities that bear upon the importance of the contractual provisions, when in referring to the terms of the Services Agreement between Mr Gupta and Uber Eats the following was said:

“[39] However all the above provisions may be regarded as merely labelling or characterising the nature of the contractual relationship between Ms Gupta and Portier Pacific/Uber; none of them set out the substantive rights and obligations of that relationship. It is well established that such labels cannot alter the substantive nature of the relationship. As was stated by Isaacs J in Curtis v Perth & Fremantle Bottle Exchange Co Ltd: 

“Where parties enter into a bargain with one another whereby certain rights and obligations are created, they cannot by a mere consensual label alter the inherent character of the relations they have actually called into existence. Many cases have arisen where Courts have disregarded such labels, because in law they were wrong, and have looked beneath them to the real substance.”

[40] More recent decisions of the Federal Court Full Court have elucidated this principle in the context of the identification of whether an employment relationship exists. In ACE Insurance Limited v Trifunovski, Buchanan J (with whom Lander and Robertson JJ agreed) said that “the nature of the relationship may be legitimately examined by reference to the actual way in which work was carried out”. In Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd, North and Bromberg JJ (with whom Barker J relevantly agreed) said that: “...appellate courts in Australia and the United Kingdom have been particularly alert, when determining whether a relationship is one of employment, to ensure that form and presentation do not distract the court from identifying the substance of what has been truly agreed. It has been repeatedly emphasised that courts should focus on the real substance, practical reality or true nature of the relationship in question...” And in WorkPac Pty Ltd v Skene the Full Court said “The conduct of the parties to the employment relationship and the real substance, practical reality and true nature of that relationship will need to be assessed.” (footnotes omitted)

[62] More recently in Rossato, the High Court emphasised the central importance of contractual terms when determining whether the relationship in that case was one of casual employment or permanent employment.

[63] Dr Azad submits that Rossato concerned the proper characterisation by the Court of what was unarguably an employment relationship, and did not concern the employee or independent contractor relationship. He submits that the Court’s reasons do not cast any doubt on the principles stated in Hollis v Vabu [2001] HCA 44, which confirmed the multi-factorial test to determine whether a worker is an employee or independent contractor. 130 Accordingly, Dr Azad submits that the decision in Rossato provides no assistance to the Commission in determining whether or not he was an employee or an independent contractor.131

[64] HPFP submits that while Rossato ostensibly dealt with the characterisation of casual employment, it submits that the High Court’s focus on the primacy of contract has relevance to any proceedings in which the decision maker must determine whether the character of a contract is one of employment or not. 132 In summary, HPFP submits that the High Court’s approach to the interpretation of written contracts leads to the conclusion that unless there is a suggestion that the contractual arrangements are sham transactions, then there is no reason for the decision maker not to view the contractual documents as true, reliable and realistic statements of the rights and obligations to which the parties have bound themselves. HPFP relies, in particular, on the comments of the High Court in Rossato at paragraphs [57], [63] and [65].133

[65] While noting that Rossato was not concerned with determination of whether the particular contractual relationship was one of employment or independent contractor, a Full Bench of the Commission dealing with that latter issue recently considered that Rossato raises a number of questions relevant to an appeal before it in Deliveroo Australia Pty Ltd v Franco 134 (Deliveroo) and set out those particular questions in a Statement issued on 6 August 2021.135 That Statement relevantly said:  

“[6] The plurality also rejected a submission advanced on the basis of Hollis v Vabu that it was necessary to go beyond the express and implied terms of the contract and consider the totality of the relationship of the parties in order to properly characterise the employment in question. At [100]-[101], the plurality said:

“Mr Petersen submitted that WorkPac's contention that the characterisation of Mr Rossato's employment depended entirely on the express or implied terms of the contracts was wrong on two grounds. First, authorities concerning the employee and contractor distinction, including Hollis v Vabu Pty Ltd, consider the ‘totality of the relationship’ between the parties…

Hollis v Vabu was concerned with whether a person was an employee or an independent contractor of another. On one view, the resolution of that question may depend upon the extent to which it can be shown that one party acts in the business of, and under the control and direction of, the other. It should be borne in mind that the answer to that question affects the rights not only of the parties to the arrangement but also of third parties with whom they deal under its colours. As much is illustrated by Hollis v Vabu itself. There the ultimate issue was whether the appellant enjoyed rights against Vabu or merely against the hapless and impecunious courier. In contrast, the present case is concerned with the character of an employment relationship, a question the resolution of which has no significance for the rights of persons who are not privy to the relationship. The analysis in Hollis v Vabu affords no assistance, even by analogy, in the resolution of a question as to the character of an employment relationship, where there is no reason to doubt that the terms of that relationship are committed comprehensively to the written agreements by which the parties have agreed to be bound.” (footnotes omitted)  136

[66] Subsequently, a Full Bench of the Commission stayed determination of the appeal in Deliveroo 137 saying:

“[5] We have decided that the appropriate course is to defer the determination of this appeal until the High Court has heard and determined the appeals in Jamsek and Personnel Contracting. This appeal is a matter of some importance, given that it is likely to have significance for the whole of Deliveroo’s workforce and perhaps also for the “gig” sector of the economy more broadly. We agree with Deliveroo that the decision in Rossato (particularly at [101]) has, intentionally or otherwise, called into question what principles are to be applied in determining whether a relationship is one of employment or independent contracting and the status of Hollis v Vabu in that respect. In all likelihood, the High Court’s decisions in Jamsek and Personnel Contracting will provide authoritative guidance as to these issues.” 138

[67] Neither party sought a stay of this decision.

[68] Accordingly, as stated by the Full Bench, the decision in Rossato (particularly at [101]) has called into question what principles are to be applied in determining whether a relationship is one of employment or independent contracting and the status of Hollis v Vabu in that respect. The determination by the High Court of the appeals in Jamsek v ZG Operations Australia Pty Ltd 139 and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd140 may provide more authoritative guidance on the issues central to determination of Deliveroo.

[69] I have earlier set out in paragraphs [40-44], the most presently relevant terms of the Agreement. I consider that the terms of the Agreement are inconsistent with an employment relationship. Dr Azad does not appear to contest this. I accept, as submitted by Dr Azad, that the Agreement contains a number of internal inconsistencies. It also suffers from a number of drafting irregularities. 141 I also accept that the drafting of clause 8 is far from clear and, rather curiously, denies that HPFP is an employee of Dr Azad, rather than denying that Dr Azad is an employee of HPFP. Accordingly, I accept Dr Azad’s submission that the Agreement does not express deny an employment relationship between him and HPFP. However, when read as a whole, I consider the Agreement provides that Dr Azad would operate a medical practice and pay fees to HPFP for facilities and services supplied at Jupiter Health Warnbro to enable him to operate that practice. Further, whilst I accept that the Agreement does not, in every respect, reflect what occurred in practice, for example in relation to the supply of prescription medication, I consider it largely does so. In practice, Dr Azad was provided with facilities and services at Jupiter Health Warnbro to enable him to operate a medical practice and paid fees for the facilities and services so provided.

[70] As to the submission that the Agreement was a contract of adhesion with no ability to negotiate its terms, I reject those submissions. Firstly, Dr Azad’s evidence was that from 2009 his intention was to live and work in Australia and that from mid to late 2012 he commenced the necessary enrolments and examinations to enable him to do so. He first provided his CV to Dr Gendy in May 2016 and thereafter followed an extensive process of examinations (a number of which he sat multiple times) and satisfaction of regulatory and immigration requirements. Accordingly, Dr Azad’s engagement with HPFP was the culmination of three years effort directed towards living and working as a GP in Australia. Secondly, Dr Gendy’s evidence under cross examination was that if a doctor was not agreeable to signing the terms of an agreement “it’s all negotiable” and that in the majority of cases an agreement can be reached. 142 Thirdly, there is no evidence that Dr Azad sought to negotiate any of the terms of the Agreement or the basis of his engagement. Further, his evidence under cross examination was that he did not try to negotiate or consider negotiation the remuneration structure contained in the Agreement. 143

[71] Accordingly, in my view, the terms of the Agreement point to an independent contractor relationship. However, the authorities make clear that while the terms of the Agreement are relevant, they are not determinative and it is necessary to consider the substance of the relationship rather than just the form expressed in the contract. I now turn to those matters.

Control

[72] A significant factor to be assessed in determining the true nature of the relationship between Dr Azad and HPFP is the right to control that resides with HPFP, not just the practical exercise of that right. 144 The High Court in Stevens v Brodribb emphasised that while the degree of control was significant it was not however the sole criteria by which to gauge whether the relationship is one of employment. Before turning to consider other indicia it is appropriate to firstly consider both the right to control and actual exercise of that control by HPFP over Dr Azad in his performance of work.

[73] HPFP submits that it exercised no control over Dr Azad’s work. It submits this contraindicates an employment relationship. 145

[74] Dr Azad submits, in summary, that there is a “labour hire type arrangement in place between Dr Gendy, with Dr Marashi and Dr Hadipour”. 146 He submits that there are two contracts in place. First, there is an agreement between HPFP and WFP under which HPFP agreed that Dr Azad would perform work for WFP at Jupiter Health Warnbro, in exchange for which WFP would pay a sum to HPFP (being the dividend to HPFP/Dr Gendy). Second, there is a contract between HPFP and Dr Azad where Dr Azad agreed to perform work at Jupiter Health Warnbro in exchange for which Dr Azad was paid.147 Dr Azad submits that HPFP did not need to exercise control on a daily basis as it had devolved that control (by agreement) to Dr Hadipour and Dr Marashi, who supervised Dr Azad on a daily basis.148 In these circumstances the lack of control by HPFP should not be considered of great significance. 149 Dr Azad relies upon the decision in Drake Personnel Ltd v Commission of State Revenue150 where it was said:

“The temporary is, in a revenant sense, working for Drake while working for the client. In the one case, he or she is working pursuant to a contract (with Drake) and in the other that is not so (the temporary making no contract with the client). But the contract between Drake and the temporary should not, I think, be denied the character of employment according to ordinary concepts of the common law simply because when the work is done, it is done for the immediate benefit of a client of Drake.” 151

[75] HPFP submits that the analogy to a labour hire arrangement is inapt 152 because HPFP did not directly receive remuneration from WFP for Dr Azad’s services and says further, in reliance upon Personnel Contracting,153 that in any event control as an indicium is “not particularly helpful in the characterisation of multilateral arrangements”.154

Supervision

[76] HPFP submits that Dr Hadipour’s supervision of Dr Azad was to fulfil the requirements of his registration with the Board, and not for purpose of HPFP monitoring or managing Dr Azad’s performance. 155

[77] Dr Azad accepts that submission but says that does not mean he was not managed and supervised on a daily basis. He submits that the fact that the supervision was required by industry regulation does not alter the nature of the relationship. 156

[78] As already set out, Dr Azad was supervised by Dr Hadipour and AHPRA initially determined his supervision level as Level 1. 157 The Medical Board of Australia (Board) Guidelines (Guidelines) in evidence before the Commission158 are dated 4 January 2016 and provide that:

•  all IMGs who are granted limited or provisional registration must be supervised; 159

•  supervision arrangements approved by the Board must be in place at all times when the IMG is practising; 160

•  an IMG must not practise if the approved supervision arrangements cannot be met. 161

[79] Section 5 of the Guidelines sets out the relative responsibilities of the IMG, the Supervisor and the Employer.

[80] Under section 5 of the Guidelines:

(a) the IMG is required to, amongst other things:

•  recognise the limits of their professional competence and seek guidance and assistance from their supervisor;

•  obtain approval of the Board for any proposed changes to supervision arrangements, registration conditions or requirements before they are implemented;

•  inform the Board if the conditions or requirements of their supervision are not being met. 162

(b) the Supervisor is required to, amongst other things:

•  observe the IMG’s work and provide constructive feedback;

•  address any problems that are identified;

•  ensure that approval of the Board has been obtained for any proposed changes to supervision arrangements, registration conditions or requirements before they are implemented;

•  inform the Board if they are no longer able or willing to provide supervision. 163

[81] In relation to Level 1 supervision the Guidelines provide as follows:

“Level 1 supervision

The supervisor takes direct and principal responsibility for each individual patient.

a. The supervisor must be physically present at the workplace at all times when the IMG is providing clinical care.

b. The IMG must consult their supervisor about the management of all patients at the time of consultation and before the patient leaves the practice.

c. Supervision via telephone contact or other telecommunications is not permitted.” 164

[82] Dr Azad’s evidence was that whilst subject to Level 1 supervision requirements the Guidelines required him to consult with Dr Hadipour. His further evidence was that while subject to this requirement he attempted to discuss all of his proposed treatment plans for each patient with Dr Hadipour. 165 Dr Marashi’s evidence was generally consistent with this.166 Dr Gendy’s evidence under cross examination was that Level 1 supervision required the IMG to consult with the supervisor regarding every patient167 and their treatment plan.168 His further evidence was that under Level 1 supervision the supervisor is responsible for any patient mistreatment169 and the IMG is required to follow the supervisors guidance as to the treatment.170

[83] I consider the evidence of Dr Azad, Dr Marashi and Dr Gendy to be generally consistent with the Guidelines in relation to Level 1 supervision.

[84] From 27 May 2020 Dr Azad’s registration condition changed to Level 2 supervision. 171

[85] In relation to Level 2 supervision, the Guidelines provide as follows:

“Level 2 supervision

The supervisor shares with the IMG, responsibility for each individual patient. The supervisor must ensure that the level of responsibility that the IMG is allowed to take for patient management is based on the supervisor’s assessment of the IMG’s knowledge and competence.

a. Supervision must be primarily in person – the supervisor must be physically present at the workplace a minimum of 80% of the time that the IMG is practising. Where the supervisor is not physically present, they must always be accessible by telephone or video link.

b. The IMG must inform their supervisor on a daily basis about the management of individual patients.” 172

[86] Dr Azad’s evidence was that whilst subject to Level 2 supervision requirements the Guidelines required that he inform Dr Hadipour on a daily basis about the management of individual patients. His evidence was that whilst under Level 2 supervision he attempted to discuss most of his proposed treatment plans with Dr Hadipour. 173 Dr Marashi’s evidence was that under Level 2 supervision Dr Azad would consult with patients, diagnose and prescribe treatment as required. If Dr Azad was unsure of an issue, he would seek out Dr Hadipour’s guidance.174 Dr Hadipour would read any notes of consultations at the end of the day or between appointments and if she had any concerns raise them with Dr Azad.175 Dr Gendy’s evidence was that under Level 2 supervision the supervisor and the IMG are responsible for the patient’s treatment. The supervisor is required to oversee the treatment of patients by the IMG and ensure the treatment plan is appropriate. His further evidence under cross examination was that an IMG under level 2 supervision is required to follow the supervisor’s direction regarding treatment.176

[87] I consider the evidence of Dr Azad, Dr Marashi and Dr Gendy to be generally consistent with the Guidelines in relation to Level 2 supervision.

[88] Dr Gendy’s evidence was that within the Jupiter Health Network it is usual practice to pay a portion of the management fee directly to the supervisor of the IMG. 177 Dr Hadipour received a fortnightly payment for supervising Dr Azad equivalent to 10% of the income generated by Dr Azad from his patient billings.178

[89] I accept that Dr Hadipour’s supervision of Dr Azad was to fulfil the requirements of his registration and was not imposed for the purpose of monitoring or managing his performance. However, I reject the submission that that, in and of itself, leads to the conclusion that Dr Hadipour was therefore not directing and exercising control over Dr Azad. From October 2019 until 27 May 2020 Dr Azad was required to discuss every patient and their treatment plan with Dr Hadipour prior to the patient leaving the practice. Dr Hadipour had direct and principal responsibility for patients seen by Dr Azad during this period. In those circumstances, I consider no other conclusion is open other than that Dr Hadipour was directing and controlling the work undertaken by Dr Azad at that time. After 27 May 2020 Dr Azad’s supervisory requirement changed to Level 2. Whilst subject to Level 2 supervision Dr Azad’s was only required to inform Dr Hadipour on a daily basis as to the management of patients. He was not required to consult with Dr Hadipour at the time of consulting patients and simply needed to inform her on a daily basis of patient management. Dr Marashi’s evidence, which I accept, was that Dr Azad would also seek guidance from Dr Hadipour when an issue arose. Responsibility for patients was shared between Dr Azad and Dr Hadipour. Although from 27 May 2020 Dr Azad consulted and treated patients with a considerably more autonomy, I find that Dr Hadipour continued to retain a not insignificant degree of control over Dr Azad’s work after that time. In isolation, I consider this would weigh in favour of an employment relationship.

[90] However, and most significantly, Dr Hadipour is not an employee or director of HPFP. Nor is she a shareholder of HPFP, either in her own right or through any corporate holdings or directorships. She is not an employee, director or personal shareholder of WFP (although I note that she is a director of Oct 17 Health Pty Ltd which is a shareholder of WFP). Further, Dr Hadipour, in her personal capacity, received payment for the supervision of Dr Azad. Accordingly, I am unable to see how Dr Hadipour’s supervision of Dr Azad could amount to the exercise of control of Dr Azad by HPFP or the right to do so.

[91] Dr Azad submits that HPFP did not need to exercise control on a daily basis as it had devolved that control (by agreement) to Dr Hadipour and Dr Marashi, who supervised Dr Azad on a daily basis. 179 He submits that supervision by Dr Hadipour was an arrangement between Dr Gendy, Dr Hadipour and Dr Marashi. In these circumstances he submits the lack of control by HPFP should not be considered of great significance.180 I reject those submissions and consider the lack of control by HPFP to be significant. I do not consider that the evidence supports a conclusion that supervision by Dr Hadipour was an arrangement between Dr Gendy, Dr Hadipour and Dr Marashi in the sense submitted or that HPFP had devolved its control to Dr Hadipour and Dr Marashi. Firstly, the Agreement contains no provision regarding supervision. It was not part of the express contractual arrangement entered into between Dr Azad and HPFP. Secondly, on Dr Azad’s own evidence, Dr Hadipour was his supervisor181 and the person with whom he executed the supervision plan.182 Thirdly, his evidence was also that following failing the PESCI examination for Level 2 supervision in 2017, Dr Hadipour responded to him offering to be his supervisor for Level 1 supervision. Fourthly, Dr Marashi’s uncontested evidence was that in early 2018 when he and Dr Hadipour where planning to open Jupiter Health Warnbro Dr Azad asked if he could work at Jupiter Health Warnbro once it was established and suggested that Dr Hadipour could be his supervisor, to which she replied “yes, why not”. Fifthly, Dr Marashi’s evidence under cross examination was that Dr Hadipour was Dr Azad’s supervisor183 and that the supervision arrangement was “an agreement between Dr Azad and Dr Hadipour, which was signed as a supervision plan.”184 Accordingly, I do not consider that Dr Hadipour’s supervision of Dr Azad amount to the ability to, or the actual exercise of, control by HPFP.

[92] This weighs in favour of an independent contractor relationship.

Direction by Dr Marashi

[93] Dr Azad submits that although Dr Marashi was not his direct supervisor, Dr Marashi provided him with direction concerning the way he treated patients. He submits that at the meeting on 6 November 2020 Dr Marashi directed Dr Azad to take a week off and arrange a meeting with Dr Gendy to discuss his options and cited clause 15 of the Agreement and informed Dr Azad that he could terminate Dr Azad’s contract if he breached that clause. 185 Dr Azad also submits that Dr Marashi was concerned with the length of time Dr Azad was taking to see patients, as if Dr Azad saw more patients per hour Dr Marashi and HPFP would benefit financially.186 I address the submissions regarding treatment of patients and length of consultations elsewhere in this decision.187

[94] Precisely what occurred in the second half of 2020 in the relationship between Dr Marashi, Dr Hadipour and Dr Azad is contested. Given my conclusion that Dr Azad is not an employee it is not necessary that I determine those matters. It is clear, however, that by early November 2020 the relationship between the doctors had deteriorated and Dr Hadipour was no longer willing to supervise Dr Azad. On 6 November 2020 a meeting occurred between Dr Marashi and Dr Azad 188 (Meeting). Ms Errington and Ms Visser were also present.189 Ms Errington took notes.190 It appears uncontested that at the Meeting Dr Marashi told Dr Azad that Dr Hadipour had decided to immediately end her supervision of Dr Azad,191 and that the end of the supervisory relationship was not a termination of his contract with HPFP.192 Dr Marashi’s evidence is that he told Dr Azad that as he no longer had an AHPRA approved supervisor he could not work at Jupiter Health Warnbro and that he should contact Dr Gendy to discuss his options.193 Dr Azad’s evidence was that Dr Marashi said words to the effect of “I should have a week off and then contact Dr Gendy to discuss the situation”.194

[95] In their witness statements, neither Dr Marashi nor Dr Azad make any reference to clause 15 of the Agreement having been raised in the Meeting, Dr Azad does not mention that Ms Eddington and Ms Visser were in attendance at the Meeting and Dr Marashi does not include any evidence of matters raised by Dr Azad in relation to the absence of supervision while Dr Hadipour was overseas, that Dr Azad believed he had been bullied by Dr Hadipour and Dr Marashi or that he and Dr Hadipour had called some of Dr Azad’s patients scum and trash. Accordingly, neither provided entirely fulsome evidence as to the content of the Meeting, although Dr Azad’s evidence largely reflects the minutes taken by Ms Eddington. All of the above matters however are contained in the minutes of the meeting taken by Ms Eddington (Minutes). Accordingly, I consider the Minutes to most accurately reflect the contents of the Meeting. Further, Dr Azad agreed under cross examination that the Minutes were accurate. 195

[96] The presently relevant parts of the Minutes are extracted below:

“•  effective immediately Dr Hadipour would no longer supervise him. Today would be his last day at Jupiter Health Warnbro;

•  Dr Marashi told Dr Darius that it was his responsibility to let AHPRA know of this decision;

•  the matter had been discussed with Dr Gendy – who advised that Dr Azad take a week off and then arrange a meeting with him to discuss options;

•  Dr Marashi said they were not terminating his contract, that would require 30 days notice, that withdrawing supervision was different and that could be done at any time;

•  Dr Azad said that Dr Marashi was in breach of their contract. Dr Marashi brought out some paperwork and said they were not terminating his contract but according to Clause 15: to comply with a reasonable request: Dr Marashi mentioned a conversation a few days ago about using a specific item number, not to use it. Dr Marashi said that Dr Azad responded with: you cannot tell me what to do and what not to do. Dr Marashi explained that the item number in question as a 279 and that he used it not as an assessment but as an ongoing visit and according to the guidelines he couldn’t [sic] do that. Dr Azad then said you cannot order me about, I am not your servant. Dr Marashi replied that it was nothing to do with that, it was to do with following Australian guidelines and proper procedures and that he had advised him against billing certain items;

•  Dr Marashi mentioned that he would give Dr Darius Dr Gendy’s email address, and given that his contract is with Hammond Park Family Practice Pty Ltd, Dr Gendy would discuss options with him;

•  [Dr Marashi] said again that he was not terminating his contract, this would not affect his Visa only supervision;

•  Dr Azad said it was the duty of the contractor to provide a supervisor.” 196

[97] Under cross examination Dr Marashi agreed that he told Dr Azad at the Meeting that he needed to follow his supervisor’s directions 197 but denied this was a direction; rather he said it was friendly advice.198 Following the Meeting Dr Marashi provided Dr Azad with a letter.199 That letter confirms advice had been sought from AHPRA, supervision was withdrawn from that day (6 December 2020) and that Dr Azad will not be able to work until he finds a new supervisor.200

[98] For the following reasons I reject the submission that Dr Marashi directed Dr Azad to take time off. Firstly, the Minutes provide that Dr Azad was told by Dr Marashi that Dr Gendy advised that he take a week off. Secondly, following the withdrawal of supervision on 6 December 2020, Dr Azad had no option but to take time off. In accordance with the conditions of his registration he was unable to work until he found a new supervisor. This was therefore simply a statement of what must occur. Thirdly, under cross examination Dr Gendy’s evidence in response to what right he exercised to tell Dr Azad not to attend Jupiter Health Warnbro he said “because he’s under supervision and the supervisor will not supervise him…He is – according to (indistinct) not allowed to work.” 201 Further, also in cross examination Dr Gendy agreed to Dr Azad’s proposition that as supervision had been withdrawn Dr Azad couldn’t work because of AHPRA regulations “and he just has to wear that consequence”.202 Fourthly, I consider Dr Azad’s own evidence of the communications which occurred between he and Dr Gendy after 6 December 2020 indicate that the intention of Dr Gendy for Dr Azad to take “a week off” was to seek to resolve the dispute regarding the withdrawal of supervision by Dr Hadipour and/or to see if an alternative placement or supervisory arrangement could be put in place.203 Fifthly, the evidence is that Dr Marashi204 and Dr Gendy205 offered to take over Dr Azad’s supervision but Dr Azad refused these offers,206 together with an offer by Dr Hadipour to give up her provider number at Meadow Springs to allow Dr Azad to work there and be supervised by “Ruby”.207

[99] As to the submission regarding clause 15, that submission does not reflect the Minutes, which I have found to be the most accurate record of the content of the Meeting. Further, I note that clause 15.2 does not require Dr Azad to comply with reasonable requests of HPFP; rather it provides Dr Azad with a right of immediate termination if HPFP is in breach of any terms of the Agreement or refuse to comply with a reasonable instruction or direction of Dr Azad.

[100] Accordingly, I do not consider that Dr Marashi sought to direct Dr Azad in the Meeting nor do I consider that he cited clause 15 of the Agreement and informed Dr Azad that he could terminate Dr Azad’s contract if he breached that clause. In all the circumstances I consider the content of the Meeting to be a neutral factor in the consideration of whether Dr Azad was an employee or an independent contractor.

Hours of work

[101] The Agreement provides that Dr Azad will use the rooms for a minimum of 36 hours per week and for a minimum of 46 weeks in every 52 week period.

[102] HPFP submits that neither the quantum of hours that Dr Azad must attend the medical centre nor the limitations arising from Jupiter Health’s operating hours, in the present circumstances, are indictive of the exercise of control. 208 HPFP submits that the evidence as a whole shows that, within the field for which discretion could be exercised regarding hours, and throughput of patients, Dr Azad exercised the discretion for himself, based on the needs of his practice and of the patients, not the needs of WFP or HPFP.209

[103] Dr Azad submits that HPFP controlled when his work was to be performed; under the Agreement he was required to work a minimum of 36 hours per week and for a maximum of 46 weeks in the year. 210 Further, that work was required to be performed at Jupiter Health Warnbro.211

[104] It is uncontested that at the time Dr Azad commenced practicing at Jupiter Health Warnbro it was operating 5 days a week, Monday to Friday, 8.00 am to 5.00 pm. I note that this is not consistent with the terms of the Agreement. Dr Marashi determined the opening hours of Jupiter Health Warnbro. 212 It is also uncontested that initially Dr Azad was at the practice between 9.00 am and 5.00 pm.213 Dr Marashi’s evidence was that those were the hours Dr Azad informed the practice manager that he was available for appointments. Dr Marashi’s evidence was that he had no involvement in determining those hours.214 Under cross examination Dr Marashi said that while Dr Azad was at the practice most days from 9.00 am to 5.00 pm,215 later the hours he saw patients varied from day to day and Dr Azad had days when he saw patients from 9.00 am to 5.00 pm, days when he saw patients between 8.00 am to 4.00 pm and days when he saw patients from 8.00 am to 3.30 pm.216 Under cross examination he agreed that this was inconsistent with the letter he provided to the Board in support of Dr Azad on 27 October 2020 (Letter).217 His further evidence under cross examination was that Dr Azad had the freedom to work from 8.00 am to 5.00 pm Monday to Friday and he chose which of those hours he would be available to see patients.218 Under cross examination he also said that if a patient booked outside the hours Dr Azad had chosen he could refuse to see that patient, although he usually did not.219

[105] Dr Marashi’s evidence was that in about April or May 2020 he asked Dr Azad if they could stagger their start times so that he could start later on some days and Dr Azad on others, while maintaining availability of early appointments for patients. He says that this was a casual chat between friends. 220 His further evidence was that in July 2020 Dr Azad told him that he could start work earlier on Friday mornings. From that time he says Dr Azad would see patients from 8.00 am until 3.30 pm or 4.00 pm on Fridays.221

[106] Dr Azad’s evidence was that in May 2020 Dr Marashi asked him if he could start at 8.00 am on Thursdays and Fridays and he said he would. 222 His evidence under cross examination was also that Dr Marashi requested this occur from the following week.223 Under cross examination he agreed that he did not so until July 2020.224 His further evidence in his witness statement was that in about August 2020, because he was seeing more patients on a daily basis, he asked Dr Hadipour if he could see patients from 8.00 am to 4.00 pm and work on his patient notes from 4.00 pm to 5.00 pm. He says Dr Hadipour had no difficulty with this proposal.225 Under cross examination the following exchanges occurred between Counsel for HPFP and Dr Azad regarding the changes in Dr Azad’s hours of work:

And then it was some months later, it was July, when you did change your hours?---Yes.

That timing of July, that was because you needed to sort out your own personal affairs in order to make that change?---Personal affairs?  What do you mean by that?

Well, you wanted to be able to work things through with your own home?---Actually, I was getting more and more new patients. I was being favoured with more patients. I was becoming more thorough because I was trying to do things more perfect as a medical doctor. So, I realised that the - I was struggling because I have dyslexia. If you have any idea about dyslexia, I've been officially diagnosed with ADD - Dr Marashi referred me actually - and dyslexia in Australia. So, I have official diagnosis. Any exam that I attend, now I can get more time for writing and reading tasks. Because of that, I was - I decided to come earlier but have more time to put my notes in a more like proper and complete manner, so - and then I discuss it with Dr Marashi and Dr Hadipour - Dr Hadipour, I think, for this one, Dr Hadipour - and she said, "Okay, if you like, we can do it", and I was attending the clinic every day from 8 to 5.

But what I'm asking you is whether those change in hours occurred several weeks after Dr Marashi first approached you?---Maybe, yes.

You accept that?---Dr Marashi?

You accept that it was several weeks before you changed your hours?---Yes.

And there wasn't any further discussion with Dr Marashi saying, "This will start on such and such a date"?  He didn't say, "Start this from 10 July"?---I don't get it, I don't get your question.

Dr Marashi didn't say to you when to start that change in your hours?---Yes, he said from next week.

But you didn't change your hours from next week, you changed your hours, you accept, from several weeks later?---No, first time it was just two days a week. It was according to his request and I said, "Okay" and then when I was needing more time at the practice because our practice would be shut down at 5. I was wanting to have more time and also to be able to see even if - because (indistinct) was getting more and more busy. So, I put the request and they would accept it if they like it because I was working there more times. 226

[107] I find that the opening hours of Jupiter Health were determined by Dr Marashi. I find that Dr Azad was present at Jupiter Health Warnbro from 9.00 am until 5.00 pm Monday to Friday. I accept that Dr Azad’s ability to alter his hours of work was limited to the operating hours of the practice and was subject to the restrictions in the Agreement that he be present for 36 hours per week, 48 weeks of the year. I accept these matters, at first blush, may appear to be indicative of control by HPFP and to be an indicia of employment. The hours and weeks of work required by the Agreement are those of a full-time employee. However, in the present context, I do not consider those matters are indictive of control. Rather, I consider they reflect the business operations and services offered by HPFP and the agreement made between the parties in relation to those matters.

[108] As to the hours worked by Dr Azad, I accept his evidence as to these matters. Dr Marashi’s evidence as to Dr Azad’s hours of work was inconsistent and for that reason I consider Dr Azad’s evidence is to be preferred on that issue. However, for the following reasons I find that Dr Azad determined which hours he would work and see patients within the limitations of the opening hours of Jupiter Health Warnbro. I accept that Dr Azad would have discussed hours to be available for patients with Dr Marashi and Dr Hadipour. This seems to me a necessary component of being subject to supervision as an IMG and also of operating within a multi doctor practice. However, for the following reasons I reject any suggestion that Dr Azad required the permission of Dr Marashi or Dr Hadipour to determine or alter his hours or that his hours were directed by Dr Marashi or Dr Hadipour. Firstly, on his own evidence Dr Marashi requested Dr Azad alter his hours in May 2020 commencing the week following the request. However, Dr Azad did not do so until July 2020, some two months later. Secondly, again on Dr Azad’s own evidence, Dr Marashi “requested” that Dr Azad alter his hours and he said “okay”. Thirdly, again on his own evidence, later in August 2020 Dr Azad was busier and needed more time to see patients. His evidence in his witness statement was that he then “put the request” to alter his hours to Dr Hadipour and she had no difficulty with this “proposal.” Under cross examination his evidence was that he “decided” to start earlier, that he “discussed” that with Dr Hadipour and she said “okay, if you like, we can do it”. I do not consider any of the above supports a conclusion that HPFP controlled when Dr Azad’s work was to be performed, subject to the limitations of the practice’s opening hours. Rather, I consider, as submitted by HPFP, it supports a conclusion that within the field for which discretion could be exercised regarding hours, and throughput of patients, Dr Azad exercised the discretion for himself, based on the needs of his practice and of the patients.

[109] I consider this weighs in favour of an independent contractor relationship.

Patient appointments and bookings

[110] HPFP submits that Dr Azad had control over the number of patients he saw and the time he took for each consultation. 227 Dr Azad submits that he did not have control over the number of patients he saw, rather this was determined by the practices opening hours and the number of patients that would book on any particular day.228

[111] Dr Marashi’s evidence was that Dr Azad’s patient booking were made online, by telephoning Jupiter Health Warnbro or by walking in to the practice and speaking to reception. 229 His evidence was that the booking diary was accessible by the reception staff and the doctors.230 His evidence was that a review of Dr Azad’s appointments diary demonstrates that as time went by more and more patient bookings were made by Dr Azad directly with patients, rather than through reception or on-line bookings, and that towards the end of his time at Jupiter Health Warnbro approximately a third of the patients he saw each day were booked directly by Dr Azad. He says this is denoted by the inclusion of “BDPA” in the booking (meaning Booked with Dr Darius Patient is Aware).231 Dr Marashi’s further evidence was that Dr Azad entered his appointment availability into the diary system, including the length of appointments that he had available. He says that Dr Azad had full control over the length of his appointments with patients.232

[112] In his witness statement Dr Marashi says that Dr Azad determined what Medicare codes to apply in billing patients, providing the code to reception who would then process the bills. 233 His further evidence was that he raised with Dr Azad that his patient appointments were far longer than usual in general practice. He says he did this because Dr Azad was due to sit the RACGP fellowship exam and that required him to be able to assess and manage a case within 8 minutes and he was concerned as a friend and colleague that Dr Azad would not be able to meet this requirement.234 His evidence was that he also raised with Dr Azad from time to time his views about the appropriateness of the Medicare item numbers Dr Azad was using for billing. He says he also raised these matters as a colleague and friend and not out of any business or commercial concern.235 Under cross examination Dr Marashi agreed that he raised with Dr Azad the length of his consultations.236 However, he denied that he did so because he gained a financial benefit if Dr Azad saw more patients per hour.237 He agreed that he also raised over servicing with Dr Azad.238 Under cross examination his evidence was that he advised Dr Azad to change his billing practice to avoid problems with Medicare239 regarding the use of certain Item numbers and that this was given as friendly advice by a senior colleague and friend.240 Under cross examination he denied it was to increase billings.241

[113] Dr Azad’s evidence in his witness statement is that patients would book to see a doctor at Jupiter Health Warnbro by telephoning the practice, via the online booking system or during a consultation a doctor or nurse could rebook a patient. 242 His evidence was that his normal appointments would run for twenty minutes.243 However, his evidence under cross examination was that he originally saw one patient an hour, then one patient every 40 minutes and then one every 30 minutes and subsequently, one patient every 20 minutes.244 During the COVID-19 pandemic he said he directly rebooked some patients to avoid them sitting in the waiting room.245 Dr Azad conceded that he had “some” control over the length of patient consultations.246 His evidence was that on 5 or 6 occasions Dr Marashi or Dr Hadipour raised concerns with him about the length of his consultations. He says Dr Marashi said words to the effect that he should see patients more quickly. He says he understood that this was to enable him to charge more per hour and make more money for the practice.247 He says Dr Marashi and Dr Hadipour instructed him to use specific items for simple consultations. He says he was told to use Item 53 for consultations between 5 and 25 minutes and Item 54 for consultations between 25 and 40 minutes.248

[114] Under cross examination his evidence was that he could book patients directly, but said he needed permission. 249 He also said that he could make appointment times available but said that this also required permission.250 In relation to issue of “permission” to book patients and make appointments available he said:

You could make yourself available for more appointments?---I needed to have permission for that. For example, we had this discussion with the practice manager, because it was the time of Corona. And our staff, receptionist staff, they were panicking of like, accumulation of patients. And I said that if you want me to help, when the patient is finishing at my room, I can discuss the matter. But I need to put a note to reception know about. And they give me the permission. Because (indistinct) and they gave me the permission to do it. Because people who are panicking, and it was social distancing, so people was understanding - - -

…

40 minutes, sorry. You're saying that they were pre-populated. They were already there. You didn't determine those appointment times? They were already there. But like, with some permission, you could amend it and it could be (indistinct) according to patient.

And what would you do to amend? I'd just ask sometimes, because of this reason that I mentioned, I ask if it is possible. They said yes, just had a, like, talk about it, and they said put BDPA. By diary as patient aware, and then tell the reception that I just did that. Because it was, like, according to the permission. And then at some point, (indistinct) said no, don't do it anymore.  251

[115] For the reasons that follow, I find that Dr Azad had control over his patient bookings and length of consultation and these matters were not directed or controlled by Dr Marashi or Dr Hadipour. Firstly, Dr Azad conceded that he booked patients directly himself. Secondly, he also conceded that he had “some” control over the length of his consultations. Further, Dr Azad consultations did, in fact, vary over time, from one hour per patient originally, down progressively to one patient every 20 minutes. He therefore had control over the length of patient consultations. Thirdly, I reject Dr Azad’s evidence that he required “permission” to book patients and make appointments available. I do not consider his own evidence as set out in paragraph [144] above, supports a conclusion that permission was required. Rather, I consider it goes no higher than being evidence of the discussion, or informing, of arrangements for appointments. In the context of a multi-doctor practice with collective personnel, this seems to me to be both necessary and unremarkable for the proper management of patient bookings. Fourthly, even if Dr Azad was “instructed” which Item numbers to use for simple consultations as he asserts, the Item numbers for such consultations are determined by Medicare. I consider this demonstrates nothing more than that he was informed of the correct Item numbers to use for simple consultations, depending on length, according to the Medicare schedule. These matters were not determined by Dr Marashi, Dr Hadipour or HPFP. Fifthly, under cross examination Dr Azad’s evidence regarding appointment availability and the booking of patients was particularly unsatisfactory. He was often unresponsive to questions put to him by Counsel for HPFP, his responses were convoluted and somewhat difficult to follow 252 and at times, argumentative.253 Accordingly, I prefer Dr Marashi’s evidence on these matters.

[116] Further, I accept Dr Marashi’s evidence that he raised Dr Azad’s billing practices due to over servicing concerns and the potential for this to impact the practice and Dr Hadipour. I also accept Dr Marashi’s evidence that he did so by way of advice as a senior colleague and friend. Firstly, Dr Azad’s evidence was that he “understood” that these matters were raised with him to enable him to charge more per hour. It is not asserted that Dr Marashi expressly stated this and Dr Azad gave no evidence as to how he came to such an understanding. Secondly, Marashi’s evidence remained consistent under cross examination. Thirdly, in contradistinction to Dr Azad, I found Dr Marashi to be a credible witness, who endeavoured to respond to questions truthfully. I accept his evidence on this matter over that of Dr Azad.

[117] These matters weigh in favour of an independent contractor relationship.

Ability to reject work

[118] Dr Azad submits that there was no evidence that he was able to reject work offered to him. 254 I reject that submission. Dr Marashi’s evidence under cross examination was that Dr Azad could refuse to see patients but he usually did not.255 Further, I have already found that within Jupiter Health Warnbro’s operating hours Dr Azad was able to, and did, determine the hours within which he consulted with patients. Accordingly, in this way Dr Azad was also able to control the work he undertook and the number of patients he saw.

[119] This weighs in favour of an independent contractor relationship.

Right to delegate or sub-contract work

[120] Clause 15.7 of the Agreement provides that HPFP, only, may assign its rights under the Agreement. Accordingly, under the terms of the Agreement Dr Azad did not have a right to delegate the performance of his obligations under the Agreement.

[121] Under cross examination Dr Gendy’s evidence was that Dr Azad had to personally perform his work 256 and could not sub-contract out his work under the Agreement to another doctor.257

[122] This weighs in favour of an employment relationship.

Ability to work for others

[123] Dr Azad submits that the express conditions of the Visa state that he is only able to work for HPFP. 258 He says further that Dr Gendy’s evidence was that the Visa only allowed him to work for HPFP.259 Further, Dr Azad submits that as a result of his limited registration with AHPRA, his Visa conditions and the linking of his Medicare number to Jupiter Health Warnbro he could not work for any other medical practices.

[124] HPFP submits that the Visa contains no such limitations as medical practitioners are exempt from the requirement to work for the nominating employer by legislative instrument pursuant to the Migration Regulations 1996 (Cth) rule 2.72(11), (13) as modified by LIN 19/212: Specification of Exempt Occupations. 260

[125] Dr Azad submits that even if HPFP submissions as to this be correct (which he denies) he was not aware of the exemption and there is no evidence before the Commission that HPFP or any of its employees drew this exemption to his attention. 261

[126] I first address whether Dr Azad’s Visa precludes him from working for others.

[127] Dr Azad’s Visa was granted on 6 August 2019. The Visa is stated to be a Temporary Skill Shortage (subclass 482) visa. The Visa provides that HPFP is the nominated sponsor. It sets out that applicable Visa conditions as being:

“8501 – maintain health insurance

8607 – Approved work only

An explanation of each condition of this Temporary Skill Shortage (subclass 482) visa is provided below.”

[128] Under the heading “Approved work only (visa condition 8607)” the Visa provides as follows:

“This condition means that you must:

…

•  only work for the employer who nominated the position you are working in (limited exceptions apply).” 262

[129] Accordingly, I reject Dr Azad’s submissions that it was an express condition of the Visa that he only work for HPFP. On a plain reading, the obligation of the visa holder to only work for the nominated employer is expressly stated to be subject to exceptions. Dr Azad did not address the Commission in either of his submissions or at hearing as to those exceptions.

[130] Whilst HPFP submitted that such an exception applied to Dr Azad as a medical practitioner, it also did not address the Commission as to this matter at hearing, nor did it file any evidence or material in support of its submissions.

[131] In a case where both parties are legal represented, I find this unsatisfactory.

[132] A search of the Australian Government Department of Home Affairs - Immigration and Citizenship website 263 provides, relevantly, as follows:

“Temporary Skill Shortage visa (subclass 482) – exemptions

Certain TSS visa holders in the Short or Medium-term streams are exempt from the requirement to be employed to work in their nominating employer’s business or associated entity of the Australian nominating business.

To be exempt, your occupation must be on the below list.

Exempt occupations

Occupation		ANZSCO Code
…		…
General Medical Practitioner		253111
…		…
Medical Practitioners not elsewhere classified		253999

[133] Accordingly, publicly available information confirms that GPs are, as submitted by HPFP, an exception to the requirement under the Visa to work for the nominating employer. As such, I reject Dr Gendy’s evidence on this issue.

[134] As to the submission that Dr Azad was not aware of the exception and he was not informed of it by HPFP or any of its employees, I consider these to be matters of little weight. Dr Azad applied for the Visa and it was to him that it was granted. It is a document of considerable significance. It determines Dr Azad’s legal entitlement to work in Australia. In those circumstances, I consider it incumbent on Dr Azad to be aware of the conditions of the Visa and that he was not told by HPFP or any of its employees that there was an exception to be of no import. Further, the fact that the condition was subject to an exception is expressly stated and information regarding that exception is readily and publicly available.

[135] Dr Azad was not precluded by the Visa from working for others. 264 In this context I also note that clause 15.1 of the Agreement provides for a bilateral right of termination upon 30 days’ notice by either party.

[136] I consider these matters weight in favour of an independent contractor relationship.

[137] As to the other matters, Dr Marashi’s evidence under cross examination was that Dr Azad’s Medicare number was personal to him and was linked to Jupiter Health Warnbro. 265 As to whether Dr Azad could take his Medicare number and work at a competitor, Dr Marashi’s evidence under cross examination was that he did not know, it was matter for Medicare and Dr Azad could apply to Medicare for that to occur.266 On the evidence currently before the Commission, it appears that, prima facie, Dr Azad’s Medicare number was personal to him and linked to Jupiter Health Warnbro. It appears that any use at another practice was subject to approval by Medicare.

[138] I consider this weighs in favour of an employment relationship.

Absences

[139] Dr Azad’s evidence was that he was required to seek permission from either Dr Marashi or Dr Hadipour if he wanted to take time off. 267 His further evidence was that if he was ill he would call or text Dr Marashi or Dr Hadipour and let them know he wasn’t well enough to attend work that day.268 Under cross examination Dr Azad gave evidence was that there was an occasion when Dr Marashi or Dr Hadipour refused to allow him to have time off.269 Further, under cross examination Dr Azad maintained that clause 6.9 of the Facilities Agreement required him to seek permission before being absent from Jupiter Health Warnbro.270 Dr Marashi’s evidence in his witness statement was that if Dr Azad wanted time off or wasn’t coming in he simply needed to inform him and the practice manager so that patients were not booked when Dr Azad was unavailable.271 Under cross examination Dr Marashi maintained that Dr Azad was not required to seek permission in order to take time off from the practice.272 Under cross examination he also said that although clause 6.9 of the Facilities Agreement required notice to be given, this was only required for long leave, “not [a] few weeks”273 and that things were just kept “as simple as possible”.274

[140] For the reasons that follow, I prefer the evidence of Dr Marashi on this matter and find that Dr Azad was not required to gain permission prior to being absent from Jupiter Health Warnbro. Rather, he was required to notify Dr Marashi and the practice manager of absences. Firstly, I found Dr Azad, generally, to be difficult, argumentative and somewhat unresponsive under cross examination and his cross examination in relation to this matter was no exception. Secondly, despite filing two witness statements, including a statement addressing matters contained in Dr Marashi’s witness statement, and approximately 500 pages of material, Dr Azad did not anywhere in that material assert that he was denied leave. Thirdly, his explanation for not doing so was that he “didn’t consider it important” 275 and he had “more important things”.276 Given the nature of the proceedings and the other material filed by Dr Azad on the issue of leave and absences, I find this explanation to lack plausibility. Fourthly, it is clear that clause 6.9 of the Facilities Agreement, on its face, does not require permission to be granted.277 Rather, it requires Dr Azad to use his best endeavours to provide 4 weeks’ notice of times when he will not be in the practice. Accordingly, on a plain reading, it does not, strictly, require 4 weeks’ notice to be given at all. It requires that best endeavours to do so be used. Dr Azad’s refusal to conceded under cross examination that the language of the clause does not require he seek permission to be absent, in my view, indicates a reluctance by him to concede matters which were not consistent with his position and a tendency to construe matters in a way that is consistent with his case, rather than as they actually are. Fifthly, I consider Dr Marashi’s evidence that Dr Azad simply had to let the practice know that he would be absent to allow patient bookings to be managed, to be more consistent with the terms of the Agreement (noting, though, that Dr Marashi conceded under cross examination that the terms of clause 6.9 of the Facilities Agreement were not adhered to at all for short periods of leave) and to be entirely plausible. Finally, Dr Marashi’s evidence is entirely consistent with Dr Azad’s evidence that if he was ill he would call or text Dr Marashi or Dr Hadipour to let them know he wasn’t well enough to attend the practice.

[141] Accordingly, I find that Dr Azad was not required to obtain permission to be absent from Jupiter Health Warnbro. Rather, he had to notify Dr Marashi and the practice manager of when he would not be in attendance to enable patient bookings to be managed. I also find that Dr Azad was not refused time away from the practice.

[142] This weighs in favour of an independent contractor relationship.

Indemnities and insurances

[143] Dr Azad agreed under cross examination that Ms Chew told him he needed to take out indemnity insurance, 278 that he did so279 and that he paid for that insurance himself.280

[144] This points to an independent contractor relationship.

Restraints

[145] Clause 15.3 of the Agreement is set out above. It is apparent that the first paragraph contains a drafting error in the final sentence. However, prima facie, it purports to preclude Dr Azad from competing with any of HPFP affiliates or subsidiaries for a period of two years following termination of the Agreement. It also provides that for a period of two years following termination of the Agreement Dr Azad will not provide medical care to a patient receiving or registered to receive medical care at a competing medical centre within 5 kilometre radius of Jupiter Health Warnbro.

[146] Clause 15.4 of the Agreement precludes Dr Azad during the life of the Agreement and for five years after the termination of the Agreement from recruiting any of HPFP’s employees or a medical practitioner who uses the rooms of Jupiter Health Warnbro.

[147] Finally, clause 15.5 of the Agreement precludes Dr Azad during the life of the Agreement and for two years after the termination of the Agreement from soliciting any of the patients of Jupiter Health Warnbro.

[148] Notwithstanding the drafting difficulties contained in clause 15.3, I consider that the restraint provisions of the Agreement were a barrier to Dr Azad competing directly with HPFP by poaching employees, other medical practitioners and patients. I consider this supports a finding that HPFP exercised a degree of control over Dr Azad in respect of his capacity to undertake an independent business and weighs in favour of an employment relationship.

Labour hire type arrangement

[149] I reject Dr Azad’s submission that there is a “labour hire type arrangement in place between Dr Gendy with Dr Marashi and Dr Hadipour.” Firstly, the submission fails to distinguish between Drs Gendy, Marashi and Hadipour and the corporate entities of HPFP and WFP, which are the parties to the arrangements. This failure to distinguish between natural persons and corporate persons and corporate entities is replicated in a number of Dr Azad’s submissions. Secondly, I reject Dr Azad’s characterisation of the contractual arrangements between HPFP and WFP. It is not, properly considered an agreement between HPFP and WFP under which HPFP agreed that Dr Azad would perform work for WFP at Jupiter health Warnbro, in exchange for which WFP would pay a sum to HPFP. Rather, the evidence is that HPFP assigned its rights under the Agreement to WFP to provide facilities and services to Dr Azad, in exchange for which Dr Azad paid a management fee. Thirdly, no sum was paid directly by WFP to HPFP for Dr Azad’s “services”. I do not consider the receipt of a dividend by HPFP from overall profits made by WFP to be a sum paid by WFP to HPFP for such a purpose. Accordingly, I accept HPFP’s submission that the analogy is inapt.

Summary on control

[150] There are a small number of factors that I consider point to HPFP having a right to control the performance of work by Dr Azad. One matter is neutral and there are a number of significant matters that tell strongly against HPFP having a contractual and/or practical right to control Dr Azad’s performance of work. Specifically, HPFP did not supervise Dr Azad’s work, Dr Azad determined his patient bookings and appointments and their length, he had the ability to refuse work and to control his patient numbers via the booking system and his availability, within the operating hours of the practice he set his own hours of work and he was not required to seek permission to be absent from Jupiter Health Warnbro.

[151] Overall, I consider the maters considered above in relation to the right and practical capacity of HPFP to exercise control over Dr Azad point to Dr Azad being an independent contractor.

Other indicia

Where the work was to be performed

[152] Clause 6.9.1 of the Agreement provides that Dr Azad will provide medical care at the “Centre” during the Agreed Hours and Agreed Weeks. Centre is defined in section 3 of the Agreement to mean “the medical centre provided by the Contractor”. Accordingly, Dr Azad was required to, and did, provide services at Jupiter Health Warnbro.

[153] This weighs in favour of an employment relationship.

Public presentation of Dr Azad

[154] WFP staff were supplied with a uniform with a Jupiter Health logo and required to wear it. Dr Azad was not supplied with a uniform nor required to wear one. 281 In about March 2020 Dr Azad started wearing scrubs when consulting. Dr Azad purchased and laundered the scrubs.282

[155] However, it is uncontested, and I find, that Dr Azad was provided with Jupiter Health Warnbro stationary, business cards and stamp. It is also uncontested that Dr Azad was marketed and advertised as a GP working at Jupiter Health Warnbro. 283

[156] HPFP submits that all of those matters are part of the services that Dr Azad agreed to pay for in order to be able to establish and grow a GP practice 284 and that it does not show that Dr Azad was integrated into the Respondent’s business.285 Further, HPFP submits that it cannot be said that there was integration into the business of HPFP and certainly not fully integration into WP’s business.286 HPFP points to Dr Azad retaining his own personal email for work purposes in support of this latter proposition.287

[157] Dr Azad submits that he was fully integrated into a business that HPFP controlled. He submits that he was advertised as a doctor working for Jupiter Health. He was provided with Jupiter Health Business cards. He attended the Respondent’s Christmas party. 288 He says these factors indicate an employment relationship.

[158] I find that Dr Azad was held out to third parties as part of Jupiter Health Warnbro and not as running his own business. I find that in light of these matters he was integrated into WFP’s business. For my part, I think nothing turns on Dr Azad retaining his own email address. I also do not consider that Dr Azad’s attendance at HPFP’s Christmas party indicates that he was an employee of HPFP. Dr Gendy’s evidence was a range of persons attended including affiliated specialists, pharmacists and allied health professionals. 289 However, whilst I have found that Dr Azad was integrated into the business of WFP, WFP is not the respondent to these proceedings, nor the purported employer of Dr Azad. HPFP is. Dr Gendy’s evidence is that the business of HPFP is the running of wholly owned medical practices and the provision of services to centres and GPs under the Jupiter Health banner. Dr Azad is not integrated into either of the businesses of HPFP nor does he submit that he is. Dr Azad seeks to circumvent this difficulty by submitting that he was fully integrated into a business controlled by HPFP. Such a submission ignores that WFP and HPFP are separate and distinct entities, with separate and distinct businesses. That HPFP is the majority shareholder of WFP and they are related bodies corporates for the purposes of section 50 of the Corporations Act 2001 (Cth) does not alter this. The business of WFP is the running of Jupiter Health Warnbro. The relevant business of HPFP is the provisions of services to centres and GPs under the Jupiter Health banner. Dr Azad was not integrated into the latter business at all.

[159] This weighs in favour of an independent contractor relationship.

Provision and maintenance of tools and equipment

[160] Dr Azad submits that he did not spend any substantial sums purchasing equipment to establish or run his business and that this weighs heavily against Dr Azad being an independent contractor. 290 He submits that the provision of tools, equipment and maintenance materials to complete the work suggests the relationship was one of employment.291

[161] It appears uncontested that Dr Azad did not supply his own equipment or rooms. HPFP submits that this is precisely what Dr Azad paid the management fee for. 292

[162] Whilst in the ordinary course, the provision of tools or equipment by the purported employer does indicate an employment relationship, in the particular circumstances of Dr Azad’s engagement, I do not consider it does so. I consider it clear, as submitted by HPFP, that this is precisely what Dr Azad paid the management fee for.

[163] Firstly, Dr Marashi’s evidence was that Dr Azad was provided with consulting rooms stocked with consumables such as masks and gloves, and necessary equipment for consulting patients, such as chairs, a desk, an examination bed and a sharps disposal container. His further evidence was that Dr Azad had access to a treatment room staffed by a registered nurse and had access in the treatment room to needles, syringes, vaccines, dressings, an ECG machine and spirometry machine. 293 Consumables, with the exception of vaccines, were paid for by WFP. Dr Marashi’s evidence was that the cost of consumables was recovered from the management fees paid by him, Dr Hadipour and Dr Azad.294 Secondly, the management fee was paid consistent with the terms of the Agreement and for the provision of facilities and services by WFP to Dr Azad. Thirdly, the management fee paid by Dr Azad to WFP was a significant proportion of his total income and was not incidental or minor.

[164] I consider this weighs in favour of an independent contractor relationship.

Right to suspend or dismiss

[165] The Agreement contains no express right to suspend or dismiss Dr Azad. Clause 15.1 of the Agreement provides both parties with a right to terminate on 30 days notice.

[166] Clause 15.2 of the Agreement provides Dr Azad with the right to terminate the Agreement without notice if HPFP is guilty of dishonesty, serious misconduct or serious neglect of duty, is in breach of any of the terms of the Agreement, or refuses to comply with any reasonable instructions or directions given by Dr Azad. The Agreement does not provide HPFP with a right to terminate for cause.

[167] I consider this weighs in favour of an independent contractor relationship.

Remuneration, tax and financial arrangements

[168] Dr Azad submits that he was paid fortnightly and not on the presentation of an invoice. Further, he submits that HPFP was responsible for charging patients, not Dr Azad directly. Monies were paid into Jupiter Health’s account and then monies were remitted to Dr Azad. Further, it says Dr Azad did not set his charge out rates, they were set by Medicare, State Government guidelines or at the discretion of HPFP. He also submits that there were no financial consequences for poor performance. 295 He submits these matters are indictive of an employment relationship.296

[169] HPFP submits that Dr Azad’s remuneration was directly related to services he provided to patients and the billing he generated, leveraged by his personality and professional style. 297

[170] It is uncontested that:

•  income taxation was not deducted from the income received by Dr Azad;

•  Dr Azad was responsible for payment of his own taxation;

•  HPFP did not pay superannuation on behalf of Dr Azad; and

•  Dr Azad did not receive remuneration when not working.

[171] It appears on some authorities that the arrangements that the parties put in place regarding taxation arrangements are not to be treated as decisive. See for example the comments of Buchanan J in Ace Insurance Ltd v Trufinovski 298 where he gave little weight to the taxation and superannuation arrangements as they were in his view a function of one party or both viewing the relationship as not one of employment and while the arrangements may be taken into account they are not decisive.

[172] The Full Bench in Gupta took a similar approach where in the circumstances of that case it was found by the majority that the per-delivery basis of payment, the absence of leave or superannuation benefits and Ms Gupta’s responsibility for her own tax obligations did not point to her necessarily being an independent contractor. 299

[173] By contrast to the above, Jessup J dealt with this issue in Tattsbet Limited v Morrow 300 and restated the historical emphasis that was placed on the absence of PAYG arrangements. To that he added that it was no longer “just the absence of PAYG deductions that may make it more difficult to characterise the relationship as one of employment, it is the presence of GST collections by the putative contractor… that point quite strongly against the relationship being characterised in this way.”301

[174] What I draw from the above authorities is that while the taxation arrangements put in place by the parties remain relevant to determination of employment or contractor status it may not be decisive, and it may also be necessary to consider the presence of GST obligations on the part of the “putative contractor”.

[175] Dr Azad paid goods and services taxation (GST) on the facilities fee. 302

[176] Dr Azad had an ABN.

[177] Dr Marashi’s evidence was that Jupiter Health Warnbro is a bulk-billing practice. 303 His evidence was that the facilities and services under the Agreement were provided by Jupiter Health Warnbro, including the processing of patient bills and receipts from Medicare bulk billing. He said that almost all patients are bulk billed, unless they have a worker’s compensation claim or they don’t have a Medicare card.304 His evidence was that the fees charged by Jupiter Health Warnbro to patients who are not bulk billed are in accordance with a “state guideline”,305 although Jupiter Health Warnbro could choose not to follow the guideline and could charge a fee of its choosing.306 Patient’s or Medicare would pay for their consultation with Dr Azad and the money was banked in the WFP bank account.307 His further evidence was that every fortnight the practice manager would total remittances received on Dr Azad’s behalf, she would then deduct the management fee plus GST and remit the balance to Dr Azad. Dr Hadipour’s supervision fee was paid from the management fee and paid to her. The reminder was retained by WFP.308 His evidence was that the practice manager would provide Dr Azad with an income statement setting out the income received by WFP from remittances, the management fee, the supervision fee and GST deducted and the amount remitted to him.309

[178] Dr Gendy’s evidence regarding Dr Azad’s remuneration arrangements was generally consistent with that of Dr Marashi’s. Dr Gendy’s evidence was that it was his understanding that Dr Azad provided Jupiter Health Warnbro with his Medicare Provider number and billing codes for each patient appointment so that Jupiter Health Warnbro could bill the patient and/or Medicare on his behalf. The fees for Dr Azad’s services were paid to Jupiter Health Warnbro’s account and Jupiter Health Warnbro remitted those fees to Dr Azad after deducting the management fee. 310 Dr Gendy’s evidence under cross examination was that the management fee paid by Dr Azad was paid to Jupiter Health Warnbro311 because Jupiter Health Warnbro “stood in the shoes” of HPFP.312 The supervision fee of 10% was paid from the management fee to Dr Hadipour.313

[179] Dr Azad’s evidence in his witness statement is that he received fortnightly payments. 314 He put into evidence fortnightly income statements for the period 2 January 2020 to 18 November 2020315. Under cross examination he said that income statements for the period October 2019 to January 2020 had been inadvertently left out of the evidence filed.316 I accept that evidence. Those statements in evidence are on the letterhead of WFP.317 They first set out the fortnightly period to which the statement relates and then show the quantum of the “total takings”, being the amount that Dr Azad billed to patients.318 From the total takings, the management fee, supervisor’s fee and GST applicable to the management fee is deducted.319 The remaining sum is the amount remitted to Dr Azad320 and is described in the income statements as “Total Paid”.321 The income statements for the period 2 January 2020 – 20 May 2020 evidence that from the total takings a management fee of 35% and a supervisor’s fee of 10% was deducted (together with 10% GST on the management fee). Income statements for the period 4 June 2020 to 18 November 2020 evidence that from the total takings a management fee of 30% and a supervisor’s fee of 10% was deducted (together with 10% GST on the management fee). This appears to generally (although not precisely) coincide with Dr Azad’s supervision level changing to Level 2. At the bottom of each income statement in evidence, under the “Total Paid” is the total of the “Management fee inclusive of GST” deducted from the “total takings”.

[180] The income statements demonstrate that although Dr Azad’s patient billings varied from fortnight to fortnight they generally increased from January 2020 to November 2020. Total patient billings for the period 2 January 2020 to 15 January 2002 were $2,239.00, rising to $9,737.40 for the period 8 October 2020 to 21 October 2020. Under cross examination Dr Azad agreed that over the period of working at Jupiter Health Warnbro his takings and income increased by two and a half, to three times. 322 Under cross examination he said this was due to becoming a more popular doctor and agreed that he leveraged his personality, professional style and experience to increase his income.323

[181] I consider that the income statements demonstrate that Dr Azad was not paid a periodic wage or salary. Whilst remuneration was remitted to Dr Azad fortnightly, and in that sense was periodic, I consider the income statements demonstrate that Dr Azad received his remuneration by reference to the services he provided to patients and the fees generated from the provision of those services. Dr Azad’s remuneration is not referrable to hours worked. It was not wages or salary. Further, whilst working at Jupiter Health Warnbro Dr Azad’s evidence was that he increased his income almost three fold by leveraging his personality, professional style and experience. Accordingly, he could, and did, leverage and increase his remuneration by building a patient base and seeing more patients per hour.

[182] Under cross examination Dr Azad’s evidence was that he had submitted BAS 324 and that he used an accountant to assist him with this.325 He conceded that he had not put into evidence his BAS, any financial statements or income taxation returns.326 His evidence under cross examination was also that he provided those documents to his legal advisers but they were not put into evidence.327 He agreed that his financial arrangements were important to the proceedings.328 He said under cross examination that his BAS would show expenses for scrubs329 and for indemnity insurance.330 He denied those documents were not put into evidence because they would show expenses that he did not want the Commission to see.331 His evidence was that he did not do so because he had already filed an “enormous amount of relevant documents”.332 He said that while working at Jupiter Health he never sent an invoice for payment.333 I reject this explanation for Dr Azad’s failure to put his BAS or income taxation returns into evidence. Given the nature of these proceedings and the importance of Dr Azad’s remuneration arrangements to them, I find it implausible that these documents were not filed due to the volume of documents already filed. Further, on Dr Azad’s own evidence he produced them to his lawyers. Accordingly, I consider it more likely than not that those documents would not have assisted Dr Azad. That Dr Azad sought and relied upon professional taxation advice in the preparation of his BAS, and used an accountant recommended by HPFP to do so, is of little relevance in my view. Employees on PAYG arrangements and independent contractors rely on professional taxation advice.

[183] Although I accept as submitted by Dr Azad that he did not set the rates charged for his services, in the present circumstances, I do not consider this to be an indicia of employment. The rates charged by Dr Azad were, for the most part, set by Medicare or the worker’s compensation system. I have already found that Dr Azad determined the length of his consultations and selected the billing code used for the services he provided within the Medicare schedule. Marashi’s evidence was that where those rates were not applicable, State Government guidelines were followed. In the context of the services provided by Dr Azad there was, therefore, very limited scope for rates to be set.

[184] As to the submission regarding the absence of any invoice from Dr Azad, I consider that submission to be misconceived. Firstly, the Agreement does not require or contemplate either party issuing an invoice. The obligation to pay arises from the terms of the Agreement itself. Secondly, under the Agreement HPFP is providing services to Dr Azad. Dr Azad was not providing services to HPFP. In these circumstances, the absence of invoices does not, in my view, indicate that the relationship was one of employment.

[185] Finally, as to the submission that there were no financial consequences for Dr Azad for poor performance, I find this a curious submission, notwithstanding that I accept the Agreement does not provide for any disciplinary action to be taken against Dr Azad for poor performance. Dr Azad’s evidence was that over time he became more popular and saw more patients. He said this was because of his personality, professional style and experience. 334 He accepted that this resulted in his remuneration increasing almost threefold over his time at Jupiter Health Warnbro. In those circumstances, Dr Azad’s performance was directly related to his popularity as a doctor and the number of patients he saw and this, in turn, had a direct correlation to his remuneration.

[186] I consider all of the above matters to strongly weigh in favour of an independent contractor relationship.

Leave

[187] It is uncontested that Dr Azad was not paid annual, personal or any other forms of leave.

[188] This weighs in favour of an independent contractor relationship.

Profession

[189] HPFP submits that it is without doubt that Dr Azad as a medical practitioner was working in a distinct profession, in the sense referred to in Stevens v Brodribb. It submits further that Dr Gendy gave uncontested evidence that it is common practice for general practitioners to be engaged as independent contractors, rather than employees. 335

[190] Dr Azad submits that the fact that he is a medical practitioner is not a barrier to finding that he was an employee 336 and the mere fact that Dr Azad was performing specialised services does not contraindicate an employment relationship.337

[191] I consider, as submitted by HPFP, that Dr Azad was clearly working in a distinct profession, in the sense referred to in Stevens v Brobribb. I also accept, as submitted by Dr Azad, that that does not, of itself, preclude a finding that Dr Azad was an employee. However, in the present circumstances I consider that Dr Azad working in a distinct profession does point to Dr Azad being engaged as an independent contractor. In making this finding, I give little weight to Dr Gendy’s evidence. I do not consider Dr Gendy’s subjective view and opinion as to these matters and HPFP’s prior practice to be of assistance. Each matter must be determined taking in to account its own circumstances and after considering all of the relevant indicia.

[192] I consider Dr Azad’s engagement in a distinct profession to strongly weigh in favour of an independent contractor relationship.

Engagement of others

[193] Dr Marashi’s evidence is that in or about July 2020 he noticed there was a teenager working on an iPad in one of the spare consulting rooms near Dr Azad’s room. He says Dr Azad would come out to speak to her between patients. His further evidence is that Dr Azad told him that she was his personal assistant and was doing some work for him. He also gave evidence that he understood that one of the WFP nurses, Ms Quirk, did tasks for Dr Azad from time to time. For example, he understood that Dr Azad paid Ms Quirk to draft the Letter which was presented to him for signing. 338

[194] Dr Azad’s evidence was that he did not engage a personal assistant. 339 His evidence was that the teenager referred to by Dr Marashi is Ms Ella McIlveen, the daughter of Ms Visser. He says Ms McIlveen is also a patient of his and whenever she was visiting her mother at WFP he would chat with her. Dr Azad’s evidence in his further witness statement is that in about February 2020 he asked Ms McIlveen to assist his wife with her English.340 Dr Azad’s evidence is that he did not directly engage or employ Ms Quirk to assist him with any work at Jupiter Health Warnbro, although he said that Ms Quirk did help him with patients from time to time, in her capacity as a nurse. He also gave evidence that from time to time he asked Ms Quirk to assist his wife with her English skills, outside of work hours and over the weekend.341 Under cross examination Dr Azad said that Dr Marashi was “lying”342 and that Dr Marashi did not ask Dr Azad what Ms McIlveen was doing at the practice nor did he say that she was his personal assistant.343 Under cross examination his evidence was that Ms McIlveen would go to his home to assist his wife with her English.344 He said that Ms McIlveen was paid, by his wife, for the time spent with her,345 and also for undertaking other tasks such as researching private health insurance,346 ordering scrubs347 and taking items to the laundromat.348 Under cross examination his evidence was also that Ms Visser, Ms MclIveen’s mother, had spoken to his lawyers.349 He denied that his BAS would show payments to Ms McIlveen as an expense350 because “my wife was paying her and it was home things, it was not my work thing.”351

[195] For the following reasons, I find that Dr Azad did tell Dr Marashi that Ms McIlveen was his personal assistant. Firstly, Dr Marashi’s evidence that Dr Azad told him that Ms McIlveen was his personal assistant was not challenged under cross examination. Secondly, having observed and heard Dr Azad whilst giving evidence, I consider it entirely plausible and consistent with his overall demeanour and self regard that he would make such a statement. I have earlier commented on Dr Azad’s hubris.

[196] However, for the following reasons I also find that Dr Azad did not actually engage or employ Ms McIlveen or Ms Quirk to assist him in his work at Jupiter Health Warnbro. Firstly, I accept Dr Azad’s submissions that it was for HPFP to call these witnesses, in particular Ms McIlveen, in support of its assertion that Dr Azad engaged others in the course of his work at Jupiter Health Warnbro. It did not do so. I consider the absence of evidence from, in particular, Ms Mcllveen or, alternatively, given Ms McIlveen’s age, Ms Visser, to be of considerable relevance. Secondly, Ms Visser is Ms McIlveen’s mother and is an employee of WFP, as is Ms Quirk. WFP therefore had the power to call these witnesses on HPFP’s behalf but did not do so. Thirdly, Dr Marashi’s evidence on this matter was carefully drafted to avoid naming Ms McIlveen, referring to her only as “a teenager” in circumstances where he cannot have been unaware of her identity. It is also to be contrasted with Dr Marashi’s specific identification of Ms Quirk in his witness statement. I consider this indicates that his evidence on these matters was constructed to bolster HPFP’s assertion that Dr Azad engaged others in his work with Jupiter Health Warnbro and is not to be preferred. In this context, I also note that whilst it is the case that Dr Azad did not disclose in his witness statements that Ms McIlveen was paid for assisting he and his wife, I do not consider that anything turns on this. I consider it to be consistent with his evidence that any payment for tasks undertaken by Ms McIlveen were made by his wife. As such, disclosure was not relevant nor necessary. I have addressed Dr Azad’s failure to put his BAS into evidence earlier in this decision. Whilst I consider these documents would likely not have assisted Dr Azad, on the evidence currently before the Commission, I do not find that they would have disclosed that Dr Azad employed others in his work at Jupiter Health Warnbro. Fourthly, Dr Marashi’s evidence regarding Ms Quirk undertaking work for Dr Azad, is put no higher than that he “understood” that was the case. He does not assert that Dr Azad, nor anybody else, told him that Ms Quirk was working for Dr Azad, nor is there any evidence as to how he came to this understanding. I consider his evidence on this matter to be of little weight.

[197] Accordingly, I find that Dr Azad did not employ others in course of work at Jupiter Health Warnbro.

[198] This weighs in favour of an employment relationship.

Goodwill and saleable assets

[199] Dr Azad did not create any goodwill or saleable assets from the performance of work at Jupiter Health Warnbro.

[200] This weights in favour of an employment relationship.

Proportion of remuneration spent on business expenses

[201] Dr Azad submits that he had no significant expenses in performing his engagement. 352 He submits that he did not pay rent.353

[202] I reject that submission. As already set out, Dr Azad paid a proportion of his patient fees as a management fee, initially 35% and subsequently 30%. 354 I consider this to be a significant proportion of Dr Azad’s remuneration and an expense incurred by Dr Azad in the performance of his engagement. Dr Marashi’s evidence was that Dr Azad was provided with a choice of consulting room, stocked with consumables and equipment necessary for consulting patients.355 His evidence was that the cost of consumables (except vaccines) provided by WFP was recovered from the management fee paid by Dr Azad.356 Dr Marashi’s evidence was that Dr Azad was also supplied with access to a treatment room which was staffed by a registered nurse and access to syringes, vaccines, dressings, an ECG machine and a spirometry machine.357 His further evidence was that from about October 2020, at Dr Azad’s request, Dr Azad had a nurse allocated to him for thirty minutes a day to follow up his patients and perform other tasks.358 WFP receptionists handled booking and telephone calls for Dr Azad and received money from his patients or billed Medicare. I note that this is consistent with the services to be provided by HPFP under the Agreement.

[203] Accordingly, it is the case that all of the facilities, equipment, supplies and staffing necessary to enable Dr Azad to provide medical care to patients at Jupiter Health Warnbro was provided by WFP. However, this is precisely what Dr Azad paid the management fee for. I do not consider that because the portions of the management fee attributable to different costs, for such as rent, telephone, staffing costs and consumables, are not specifically identified to be a relevance or to change that conclusion.

[204] This weighs in favour of an independent contractor relationship.

Aufgang v Kozminsky Nomnees Pty Ltd [2008] VSC 27 (Aufgang) and FWO v Windaroo Medical Surgery Pty Ltd [2015] FCCA 554 (Windaroo)

[205] Dr Azad relies upon the case of Aufgang and submits that when viewed in its totality is not materially different from the relationship between Dr Aufgang and Kozminsky Nominees. He submits that for reasons of comity the Commission should follow this case unless it considers it is plainly wrong. 359 I reject that submission. Firstly, each case must be determined in light of its own particular factual circumstances. Secondly, whilst certain aspects of the factual matrix are similar to those currently before the Commission, I consider the case distinguishable on a number of bases, including, but not limited to, the fact that Dr Aufgang was paid superannuation, took a period of paid annual leave during his engagement, resigned from his position with the respondent, the arrangements between the parties were not reduced to writing, the financial records in evidence were not considered reliable, Dr Kozminsky excluded Dr Aufgang from undertaking certain work and Dr Kozminsky agreed that he had treated Dr Aufgang as his employee.

[206] HPFP relies upon the case of Windaroo, in which it says the Federal Circuit Court held that an IMG subject to Board approved supervisions was carrying on its own practice. 360 Dr Azad submits that reliance is misplaced.361 I agree. In Windaroo the court was not required to determine whether Dr Kaza was an employee or an independent contractor. Rather, the FWO (on behalf of Dr Kaza) asserted that he was engaged as an independent contractor and this was accepted by the respondents. 362

Other matters

[207] For completeness, I have considered the following matters but consider them to be of little weight or relevance:

•  HPFP employed doctors undertaking vocational training as employees. Each matter must be determined on its own facts and in the absence of evidence of the arrangements applicable to those engagements, how others may be engaged is not presently relevant;

•  Dr Gendy’s evidence that the engagement of doctors as independent contractors is commonplace and usual. I consider Dr Gendy’s subjective view as to these matters to be of little assistance;

•  Prior to arriving in Australia Dr Azad did not run his own business or an independent medical practice. What is to be presently determined is the nature of the relationship between Dr Azad and HPFP, not the nature of any relationship between Dr Azad and other parties previously.

Conclusion

[208] Having considered all of the various indicia I consider that Dr Azad was engaged by HPFP as an independent contractor. I do not consider that when viewed in totality the relationship between Dr Azad and HPFP contains the essential features of an employment relationship, that being the right of HPFP to exclusively control over when and how work was to be performed by Dr Azad. Further, Dr Azad was not serving in HPFP’s business. The weight of the matters considered leads me to conclude that Dr Azad was not engaged as an employee and was engaged as an independent contractor, carrying on a business of his own.

[209] Given the above conclusion, it is not necessary that I consider whether Dr Azad’s engagement was terminated at the initiative of HPFP, nor the effective date of the cessation of that relationship.

Disposition

[210] It necessarily follows from the above, that Dr Azad was not a person dismissed for the purposes of section 365 and 386 of the Act.

[211] The application must therefore be dismissed.

[212] An order 363 giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

Appearances:

L Swanson for the Applicant
R Cosentino for the Respondent

Hearing details:

2021.
Melbourne and Perth
20 and 21 May 2021.

Final written submissions:

For the Applicant: 20 August 2021
For the Respondent: 20 August 2021

Printed by authority of the Commonwealth Government Printer

<PR737122>

Annexure A

3. Definitions

Accounts all finance and financial accounts for Medical Care rendered by the Principal providing Medical Care including (but not limited to); Medicare Benefits, recovered or unrecovered amounts, practice grants

Agreement this contract

Agreed Hours the Principal agrees to use the Room for a minimum of 36 hours per week including one day on Saturday or Sunday morning at least once every 4 weeks

Agreed Weeks the Principal agrees to use the Room for a minimum of 46 weeks in every 52 week period

Billing Period the relevant fortnightly Account payments for the State or Territory for the applicable Centre

Centre the medical centre provided by the Contractor

Centre Patients a person who has or in the past attended the Centre

Commencement Date unless the Contractor states otherwise it is the date the Agreement is signed

Confidential information all information held by either party which is reasonably considered to be confidential, or stated as confidential

Force Majeure Event any event or circumstance beyond the control of a party to the Agreement Including (without limitation) Industrial a1ction, acts of third parties, flood, fire, accident, earthquake, riot, explosion, war, act of go11emment, military or regulatory authority, change in a law or regulation, disruption of internet provision, communication, power or other utilities

Medical Board the Medical Board, council or other organisation of the State or Territory in which the Centre is located that licences Medical Practitioners under the equivalent Medical Practice Act of the relevant jurisdiction

Medical Care provision is what is necessary for a person's health by a Medical Practitioner excluding work provided by a nurse provided by the Centre

Medicare Benefits Schedule as prescribed from time to time by Medicare as part of the wider Medicare Benefits Schedule

Medical Practice Act the Medical Practice Act applicable in the Stale or Territory in which the Centre is located

Medical Practitioner an authorised and licensed practitioner of medicine who has met the necessary ongoing licensing requirements including under the Medical Board

Medical Record A chronological written account or a Patient's examination and treatment that includes the Patient's medical history and complaints, the physician's physical findings, the results of diagnostic tests and procedures, and medications and therapeutic procedures

Medical Supplies the equipment used by the Principal to provide Medical Care

Operating Hours are the times in which the Contractor provides the opening times for the Centre, as advised by the Contractor from time to time

To have any 9 working hours with a mutual Agreement with the Contactor
Monday	Within the opening hours of the practice (as per roster)
Tuesday	Within the opening hours of the practice (as per roster)
Wednesday	Within the opening hours of the practice (as per roster)
Thursday	Within the opening hours of the practice (as per roster)
Friday	Within the opening hours of the practice (as per roster)
Saturday	Within the opening hours of the practice (as per roster) - indicative as 1 Saturday per Month
Sunday	Within the opening hours of the practice (as per roster) - indicative as 1 Sunday per Month

Patient a person receiving or registered to receive medical treatment

Practice the Principal's business of providing Medical Care at the Centre

Principal's Income earning of the Centre derived from the Medical Care provided by the Principals

RACGP the Royal Australian College of General Practitioners

Room a location within the Centre specified to allow the Principal to provide Medical Care to their Patients during Operating Hours

Remuneration .... % of the Principal's earnings plus Goods and Services Tax

Term is the Agreement between the Contractor and the Principal that starts on the Commencement Date and terminates on the earlier of the date agreed in writing between parties and the Termination Date or as per this Agreement

Termination Date the date on which the Agreement is terminated pursuant to the Terms of the Agreement

Annexure B

5. Work

To undertake the following tasks and services as is assigned to the Contractor from time to time by the Principal:

5.1 Provide Facilities

5.1.1 To provide a Room available for the Principal's use during the Operating Hours of the Centre. Otherwise, the Contractor shall only be under the obligation to make a Room available to the Principal during the Operating Hours
5.1.2 Provide all standard plant, equipment, apparatus and furniture to support the Principal's provision of Medical Care
5.1.3 Maintain, repair, clean and keep in good order and condition the Rooms and all equipment, plant, apparatus, instruments, fittings, furniture and furnishings supplied by the Contractor at the Centre
5.1.4 Ensure that electricity, telephones and other necessary public utilities are provided at the Centre
5.1.5 Stationery and other consumables as provided from time to time

5.2 Supply Staff

5.2.1 Provide suitable reception and ancillary staff to ensure that the Centre is run in accordance with the accreditation standards set by the RACGP where appropriate and that the Principal receives the Works from time to time
5.2.2 Administrative and support staff will not be permitted to assist in providing Medical Care to the Principal's Patients
5.2.3 Nursing staffs who are adequately qualified to assist the Principal lo provide Medical Care may do so under the Principal's direction and the Contractor cannot guarantee that nursing staff will be available during all of the Operating Hours
5.2.4 Provide necessary administrative duties from time to time such as but not limited to answering telephone calls, filing and photocopying services

5.3 Information Technology (IT)

5.3.1 Making available where it deems necessary and appropriate, such hardware, software and support within the scope of the standard Operating Hours
5.3.2 Provide an IT network for the appropriate use (but not limited to) the internet, email and network

5.4 Administrative duties

5.4.1 To provide duties including the following:

5.4.1.1 answering telephones
5.4.1.2 greeting Patients
5.4.1.3 Updating and filing Patients' Medical Records
5.4.1.4 filling out insurance forms
5.4.1.5 handling correspondence
5.4.1.6 scheduling appointments
5.4.1.7 arranging for hospital admission and laboratory services, and
5.4.1.8 handling Accounts

5.4.2 Making available stationery and postage stamps for the purpose of and in connection with the Principal providing Medical Care

5.5 Marketing

5.5.1 Corporate design and identity and brand awareness including colour scheme
5.5.2 Placement of normal individual Principal advertising on print media – this includes creating brochures and creating business cards
5.5.3 Placement of normal individual Principal advertising on social media

5.6 Other facilities and services as the parties may agree from time to time

5.6.1 This is by an exchange of emails

5.7 Materials and Medical Supplies

5.7.1 Where the Contractor is reasonably required to provide or utilise equipment, the Contractor warrants that such equipment is suitable for the Work and is maintained by the Contractor in good working condition. All costs are borne by the Contractor

5.8 Maintain Accounts and records

5.8.1 Providing the role of treasury
5.8.2 Liaise with government departments or general debt collecting services (debt collection services) as required and provided from time to time
5.8.3 Maintain records as required by the Medical Board to the best of its abilities
5.8.4 Maintain the Medical Records including information provided by the Principal
5.8.5 Transfer a copy of the Patient's Medical Records if a Principal ceases to use to the Centre to provide Medical Care. A transfer is only permitted with the Patient's written approval. The reasonable cost for this service should be Borne by the Patient in accordance with the RACGP standards
5.8.6 Where a product has been purchased by the Principal, other than Medical Care, is sold by the Principal, and the sale price of that product is borne by the Contractor, the Contractor may deduct the cost of that product before remitting the amount to the Centre's Account
5.8.7 Reserves the right to charge Patients directly for Medical Supplies provided to the Patient where such Medical Supplies are not included within the scope of the Medicare Benefits Schedule or other similar Schedule fee for the service being provided
5.8.8 Make available such amount of Medical Supplies as are reasonably required by the Principal for the Principal's Practice
5.8.9 Products are only provided by the Contractor

5.9 Manage the Centre during Operating Hours.

5.9.1 Change Operating Hours on reasonable notice to the Principal
5.9.2 Give the Principal reasonable notice about the change to the Operating Hours

5.10 Provide notice when the Centre is relocated

5.10.1 If the Centre is relocated, provide the Principal with notice as soon as practicable

6. Principa1’s Warranties

The Principal warrants and continues to ensure that they will provide the following:

6.1 Documentation about their status as a Medical Practitioner

6.1 Copies of registration certificates, or any correspondence which demonstrates that they are:

6.1.1 registered as a Medical Practitioner under the Medical Practitioner's Act; and
6.1.2 have a Medicare Provider Number
6.1.3 Provide evidence to the Contractor about the Medical Provider Number whenever requested

6.2 Information about their medical malpractice insurance status

6.2.1 It includes confirmation of currency of insurance, or any correspondence which relates to claims or potential claims against such insurance
6.2.2 Adverse findings by a Government Body or any court in respect of the Principal’s registration or Medical Provider Number, or any conditions, undertakings or other restrictions placed on the Principal's registration or provider number by such bodies must be included
6.2.3 The Principal accepts that if, in the opinion of the Contractor, the matters disclosed mean the Principal is in breach of this clause then the Contractor shall be entitled to terminate the Agreement immediately

6.3 An updated Provider Number

6.3.1 Complete and sign all documents and do all other things necessary to obtain a Medicare Provider Number in respect of their Practice at the Centre, and maintain its currency until all receipts have been settled

6.4 Information about complaints

6.4.1 Complaints received from Patients or their representatives relating to any form of complaint about the Principal's Medical Care; and

6.5 Information about their visa status

6.5.1 This includes letters or statements received from any government body which may in any affect the Principal's sponsorship, visa or resident status in Australia, including (but not limited to) any claims by a government body for debts due and owing, or allegations of criminal or otherwise illegal activities

6.6 Insurance

6.6.1 Evidence of such insurance with a recognised insurance company or medical defence union for amounts of medical indemnity insurance as the Contractor reasonably requires.
6.6.2 The evidence of insurance must be provided to the Contractor as soon as practicable

6.7 The Principal will provide the following (but is not limited to) materials for work:

6.7.1 Personal items or equipment
6.7.2 Prescription drug
6.7.3 Ophthalmoscope
6.7.4 Auroscope and stethoscope (and in relation to prescription drugs, the Principal must monitor the expiry date of those drugs)

6.8 Render Medical Care

6.8.1 Render Medical Care at the Centre during the Agreed Hours and Agreed Weeks

6.9 Provide notice of absence

6.9.1 Use their best endeavours to give the Contractor at least 4 weeks' notice of any period during which the Principal will not provide Medical Care at the Centre

6.10 Utmost respect to all staff

6.10.1 Treat the Contractor's staff with respect and shall at no time act so as to give a reasonable person the impression that the Contractor's staff or contractors are being or have been harassed or that the Centre is anything other than a safe working environment

6.11 All Medicare documentation

6.11.1 Sign and deliver to the Contractor all forms necessary to enable Contractor to seek payment from Medicare (or other institutions) in respect of Medical Care or to assist the Contractor to seek the payment of the Practice Incentive payments. Failure by the Principal to provide documents to seek payment from Medicare comply, entitles the Contractor to charge an additional fee being the pre-estimate of the loss suffered

 1   [2021] HCA 23

 2   Fair Work Act 2009 (Cth) s 386(1)(a)

 3   Ibid s 386(1)(b)

 4   Applicant’s closing submissions at [61]

 5   See for example Transcript PN 1508-1518

 6   Applicant’s closing submissions at [58-59]

 7   Respondent’s closing submissions at [58]

 8   Applicant’s closing submissions at [68]

 9   Applicant’s closing submissions at [68.1]

 10   Applicant’s closing submissions at [69.1]

 11   Statement of Michael Gendy at [3]

 12   Transcript PN 624-625

 13   Transcript PN 155

 14   Statement of Michael Gendy at [4]

 15   Statement of Michael Gendy at [5]

 16   Statement of Michael Gendy at [7]

 17   Statement of Michael Gendy at [8]; Transcript PN 628

 18   Statement of Michael Gendy at [10], [16]

 19   Statement of Michael Gendy at [12]

 20   Statement of Michael Gendy at [13]

 21   Statement of Michael Gendy at [11]

 22   Statement of Michael Gendy at [16]

 23   Statement of Michael Gendy at [21]

 24   Statement of Michael Gendy at [22]

 25   Statement of Michael Gendy at [23], [33]; see clause 15.7 of the Facilities Agreement

 26   Statement of Michael Gendy at [24]

 27   Transcript PN 127-128

 28   Transcript PN 621

 29   Transcript PN 126

 30   Transcript PN 130

 31   Transcript PN 129

 32   Transcript PN 146; Statement of Michael Gendy at [14]

 33   Transcript PN 145

 34   Statement of Michael Gendy at [15]; Statement of at Seyed Marashi at [5]

 35   Statement of Seyed Marashi at [6]

 36   Statement of Seyed Marashi at [7]

 37   Statement of Seyed Marashi at [8]

 38   Transcript PN 161, PN 163, PN 376

 39   Statement of Seyed Marashi at [8]; Statement of Michael Gendy at [14]

 40   Statement of Seyed Marashi at [9]

 41   Statement of Mohammad Azad at [1]

 42   Statement of Mohammad Azad at [3]

 43   Statement of Mohammad Azad at [5]

 44   Statement of Mohammad Azad at [13]

 45   Statement of Mohammad Azad at [16]

 46   Statement of Mohammad Azad at [10]

 47   Statement of Mohammad Azad at [11]

 48   Statement of Mohammad Azad at [12]

 49   Statement of Mohammad Azad at [23]

 50   Statement of Mohammad Azad at [12]

 51   Statement of Mohammad Azad at [20], [22], [29], [32],

 52   Statement of Mohammad Azad at [32]

 53   Statement of Mohammad Azad at [35]

 54   Statement of Seyed Marashi at [15]; Statement of Mohammad Azad at [35-43]

 55   Statement of Mohammad Azad at [40(c)], annexure DA9

 56   1st Contract, clause 3.1, clause 1

 57   1st Contract, clause 3.2, clause 1

 58   1st Contract, clause 6.1, clause 1

 59   1st Contract, clause 6.2, clause 1

 60   1st Contract, clause 11

 61   Statement of Mohammad Azad at [44]; Statement of Adelene Chew at [30]

 62   Statement of Mohammad Azad at [43]

 63   Statement of Mohammad Azad at [44-57]; Statement of Adelene Chew at [31-35]

 64   IMGs are supervised at Levels 1-4 (Level 1 being the most stringent level of supervision), see Medical Board of Australia Guidelines: Supervised Practice for International Medical Graduates

 65   Statement of Mohammad Azad at [53]

 66   Statement of Mohammad Azad at [55]

 67   Statement of Adelene Chew at [34]

 68   Statement of Mohammad Azad at [58]

 69   Statement of Mohammad Azad at [61]

 70   Statement of Mohammad Azad at [62]

 71   Statement of Mohammad Azad at [63], annexure DA25-28

 72   Statement of Mohammad Azad at annexure DA28, Part B

 73   Transcript PN 499-500

 74   Statement of Adelene Chew at annexure AC-01

 75   Statement of Mohammad Azad at [72]

 76   Statement of Mohammad Azad at [74]

 77   Statement of Mohammad Azad at [65]; Further Statement of Mohammad Azad at [13]

 78   Statement of Mohammad Azad at [66]

 79   Transcript PN 930-934

 80   Transcript PN 943

 81   Transcript PN 944

 82   Transcript PN 939

 83   Transcript PN 980

 84   Transcript PN 973

 85   Transcript PN 959

 86   Transcript PN1096

 87   Transcript PN 1038

 88   Transcript PN 1053

 89   Transcript PN 1065-1066

 90   Transcript PN 1090-1094

 91   Transcript PN 1128

 92   Transcript PN 1141

 93   Transcript PN 1135

 94   Transcript PN 1136

 95   Transcript PN 1135

 96   Transcript PN 1146

 97   Statement of Adelene Chew at annexure AC-03

 98   Statement of Adelene Chew at annexure AC-03

 99   Statement of Mohammad Azad at [77]

 100   Statement of Mohammad Azad at [79]

 101   Transcript PN 1436-1438

 102   Statement of Adelene Chew at annexure AC-02

 103   Statement of Adelene Chew at [46-48], [52], annexure AC-02

 104   Statement of Adelene Chew at annexure AC-02

 105   Transcript PN 1439-1441

 106   Exhibit R7, Application for a Medicare Provider Number

 107   Exhibit R7, Application for a Medicare Provider Number

 108   Transcript PN 1633

 109   Transcript PN 1637, PN 1642

 110   Transcript PN 1195

 111   Transcript PN 1198

 112   Statement of Mohammad Azad at [75]

 113   Transcript PN 1201

 114   Statement of Mohammad Azad at [75]

 115   Statement of Mohammad Azad at [76]

 116   Statement of Seyed Marashi at annexure MM-03

 117   Statement of Mohammed Azad at [101]; Statement of Seyed Marashi at [69]

 118   [2011] FWAFB 8307

 119   [2020] FWCFB 1698

 120   Ibid at [36]

 121   Respondent’s closing submissions at [60]

 122   Respondent’s closing submissions at [61-67]

 123   Applicant’s closing submissions at [113]

 124   Applicant’s closing submissions at [112]; Contract for Services Independent Contractor Agreement, clause 6.7.2

 125   Applicant’s closing submissions at [116]

 126   Applicant’s closing submissions at [114]

 127   Applicant’s closing submissions at [111]

 128   Applicant’s closing submissions at [111], [113]

 129   Applicant’s closing submissions at [111], [113]

 130   Applicant’s further submissions at [2]

 131   Applicant’s further submissions at [2]

 132   Respondent’s further submissions at [1]

 133   Respondent’s further submissions at [6]

 134   [2021] FWCFB 4840

 135   Ibid at [8]

 136   Ibid at [6]

 137   Deliveroo Australia Pty Ltd v Franco [2021] FWCFB 5015

 138   Ibid at [5]

 139   [2020] FCAFC 119, 279 FCR 114, 297 IR 210

 140   [2020] FCFAC 122

 141   See for example the definition of remuneration contained in Contract for Services Independent Contractor Agreement, clause 3

 142   Transcript PN 683

 143   Transcript PN 1003

 144   Stevens v Brodribb Sawmilling Co Pty Ltd (1986) CLR 16 at [19]

 145   Applicant’s closing submissions at [69]

 146   Applicant’s closing submissions at [89]

 147   Applicant’s closing submissions at [88]

 148   Applicant’s closing submissions at [90]

 149   Respondent’s closing submissions at [85]

 150   (2000) 2 VR SASR

 151   Ibid at [54]

 152   Respondent’s closing submissions at [71]

 153   [2020] FCAFC 122

 154   Ibid per Lee J at [86-88]

 155   Respondent’s closing submissions at [42], [70], [75]

 156   Applicant’s closing submissions at [97]

 157   Statement of Mohammad Azad at [82]

 158   Statement of Mohammad Azad at annexure DA1, Medical Board of Australia Guidelines: Supervised Practice for International Medical Graduates

 159   Statement of Mohammad Azad at annexure DA1, Medical Board of Australia Guidelines: Supervised Practice for International Medical Graduates, section 1

 160   Statement of Mohammad Azad at annexure DA1, Medical Board of Australia Guidelines: Supervised Practice for International Medical Graduates, section 3.1

 161   Statement of Mohammad Azad at annexure DA1, Medical Board of Australia Guidelines: Supervised Practice for International Medical Graduates, section 3.1

 162   Statement of Mohammad Azad at annexure DA1, Medical Board of Australia Guidelines: Supervised Practice for International Medical Graduates, section 5.1

 163   Statement of Mohammad Azad at annexure DA1, Medical Board of Australia Guidelines: Supervised Practice for International Medical Graduates, section 5.2

 164   Statement of Mohammad Azad at annexure DA1, Medical Board of Australia Guidelines: Supervised Practice for International Medical Graduates, section 6.2

 165   Statement of Mohammad Azad at [82]

 166   Statement of Seyed Marashi at [29]

 167   Transcript PN 646

 168   Transcript PN 647

 169   Transcript PN 646

 170   Transcript PN 649

 171   Statement of Mohammad Azad at [83]

 172   Statement of Mohammad Azad at annexure DA1, Medical Board of Australia Guidelines: Supervised Practice for International Medical Graduates, section 6.2

 173   Statement of Mohammad Azad at [83]

 174   Statement of Seyed Marashi at [31]

 175   Statement of Seyed Marashi at [32]

 176   Transcript PN 650

 177   Statement of Michael Gendy at [35]

 178   Statement of Michael Gendy at [37]

 179   Applicant’s closing submissions at [90]

 180   Respondent’s closing submissions at [85]

 181   Statement of Mohammad Azad at [82]

 182   Statement of Mohammad Azad at annexure DA26

 183   Transcript PN 296

 184   Transcript PN 298

 185   Applicant’s closing submissions at [97.1-97.2], [91.3]

 186   Applicant’s closing submissions at [97.3], [91.3]

 187   See paragraphs [110-116]

 188   Statement of Seyed Marashi at [67]; Statement of Mohammad Azad at [101]

 189   Statement of Seyed Marashi at [67], MM-03; Transcript PN 1347

 190   Statement of Seyed Marashi at [68], MM-03

 191   Statement of Seyed Marashi at [69]; Statement of Mohammad Azad at [101(b)(i)(A)]

 192   Statement of Seyed Marashi at [70]; Statement of Mohammad Azad at [101(b)(i)(D)]

 193   Statement of Seyed Marashi at [71]

 194   Statement of Mohammad Azad at [101(b)(i)(B)]

 195   Transcript PN 1358

 196   Statement of Seyed Marashi at annexure MM-03

 197   Transcript PN 317

 198   Transcript PN 319

 199   Statement of Mohammad Azad at [102]

 200   Statement of Mohammad Azad at annexure DA38

 201   Transcript PN 742

 202   Transcript PN 748

 203   Statement of Mohammad Azad at annexure DA40-47

 204   Transcript PN 318

 205   Transcript PN 743

 206   Transcript PN 745

 207   Transcript PN 774-778

 208   Respondent’s closing submissions at [72(c)]

 209   Respondent’s closing submissions at [72(d)]

 210   Applicant’s closing submissions at [91.1]

 211   Applicant’s closing submissions at [91.2]

 212   Transcript PN 222, PN 413

 213   Statement of Mohammad Azad at [84]; Statement of Seyed Marashi at [22]; Transcript PN 219

 214   Statement of Seyed Marashi at [22]

 215   Transcript PN 219

 216   Transcript PN 218

 217   Transcript PN 229-230

 218   Transcript PN 229

 219   Transcript PN 221

 220   Statement of Seyed Marashi at [23]

 221   Statement of Seyed Marashi at [24]

 222   Statement of Mohammad Azad at [85]

 223   Transcript PN 1387-1388

 224   Transcript PN 1387

 225   Statement of Mohammad Azad at [86]

 226   Transcript PN 1389-1397

 227   Respondent’s outline of submissions at [72(b)]

 228   Applicant’s Outline of Submissions at [99]

 229   Statement of Seyed Marashi at [33]

 230   Statement of Seyed Marashi at [34]

 231   Statement of Seyed Marashi at [35]

 232   Transcript PN 416-417

 233   Statement of Seyed Marashi at [36]

 234   Statement of Seyed Marashi at [55]

 235   Statement of Seyed Marashi at [56]

 236   Transcript PN 299

 237   Transcript PN 300

 238   Transcript PN 309

 239   Transcript PN 312, PN 406, PN 407, PN 409

 240   Transcript PN 312, PN 315, PN 316, PN 406, PN 407

 241   Transcript PN 313-314

 242   Statement of Mohammed Azad at [93]

 243   Statement of Mohammed Azad at [94]

 244   Transcript PN 1266

 245   Statement of Mohammed Azad at [95]

 246   Further Witness Statement of Mohammed Azad at [10]

 247   Further Witness Statement of Mohammed Azad at [11]

 248   Further Witness Statement of Mohammed Azad at [12]

 249   Transcript PN 1245

 250   Transcript PN 1248

 251   Transcript PN 1244, PN 1269-1270

 252   See for example Transcript PN 1254

 253   Transcript PN 1245- 1270

 254   Applicant’s closing submissions at [93]

 255   Transcript PN 221

 256   Transcript PN 670

 257   Transcript PN 673

 258   Applicant’s outline of submissions at [25(a)]; Applicant’s closing submissions at [6.3(h)], [124]

 259   Applicant’s closing submissions at [124]

 260   Respondent’s closing submissions at [39]

 261   Applicant’s closing submissions at [124]

 262   Statement of Mohammed Azad at annexure DA33

 263   Section 590 of the Fair Work Act 2009 provides that the Commission inform itself in relation to a matter before it in such a manner as it considers appropriate

 264   Noting, though, that Dr Azad would have had to obtain alternative supervision and change his nomination within 90 days

 265   Transcript PN 212

 266   Transcript PN 392-397

 267   Statement of Mohammad Azad at [81(d)]; Further Statement of Mohammad Azad at [2-4], [6-8]; Transcript PN 1416-1430

 268   Further Statement of Mohammad Azad at [7]

 269   Transcript PN 1399-1403

 270   Transcript PN 1416-1423, PN 1432

 271   Statement of Seyed Marashi at [25]

 272   Transcript PN 270

 273   Transcript PN 280

 274   Transcript PN 279

 275   Transcript PN 1409

 276   Transcript PN 1414

 277   Transcript PN 1525

 278   Transcript PN 1443

 279   Transcript PN 1444

 280   Transcript PN 1445

 281   Statement of Seyed Marashi at [48]

 282   Statement of Seyed Marashi at [49]

 283   Respondent’s closing submissions at [76]

 284   Respondent’s closing submissions at [76]

 285   Respondent’s closing submissions at [77]

 286   Respondent’s closing submissions at [78]

 287   Respondent’s closing submissions at [78]

 288   Applicant’s closing submissions at [132]

 289   Transcript PN 772

 290   Applicant’s closing submissions at [83]

 291   Transcript PN 823

 292   Respondent’s closing submissions at [37], [60]

 293   Statement of Seyed Marashi at [44]

 294   Statement of Seyed Marashi at [45]

 295   Applicant’s submissions at [25(o)]

 296   Applicant’s closing submissions at [134-135]

 297   Respondent’s closing submissions at [79]

 298   (2013) 209 FCR 146 at [37]

 299   Gupta at [66]

 300   (2015) 233 FCR 146

 301   Ibid at [70]

 302   Statement of Mohammad Azad at annexure DA37

 303   Transcript PN 194

 304   Transcript PN 196

 305   Transcript PN 197, PN 200, PN 201

 306   Transcript PN 202

 307   Statement of Seyed Marashi at [39]

 308   Statement of Seyed Marashi at [40]

 309   Statement of Seyed Marashi at [42]

 310   Statement of Michael Gendy at [34]

 311   Transcript PN 656

 312   Transcript PN 657

 313   Statement of Michael Gendy at [36]

 314   Statement of Mohammad Azad at [92]

 315   Statement of Mohammad Azad at annexure DA37

 316   Transcript PN 1206-1207

 317   Statement of Mohammad Azad at annexure DA37

 318   Transcript PN 1203

 319   Statement of Mohammad Azad at annexure DA37; Transcript PN 1213

 320   Transcript PN 1213

 321   Statement of Mohammad Azad at annexure DA37

 322   Transcript PN 1221, PN 1224

 323   Transcript PN 1225-1228

 324   Transcript PN 1522

 325   Transcript PN 1525

 326   Transcript PN 1526-1526, PN 1534-1535

 327   Transcript PN 1527-1530

 328   Transcript PN 1541-1542

 329   Transcript PN 1532

 330   Transcript PN 1533

 331   Transcript PN 1534

 332   Transcript PN 1535

 333   Statement of Mohammad Azad at [92]

 334   Transcript PN 1228

 335   Respondent’s closing submissions at [90]

 336   Applicant’s closing submissions at [101-102]

 337   Applicant’s closing submissions at [103]

 338   Statement of Seyed Marashi at [50-53]

 339   Transcript PN 1490-1505

 340   Statement of Mohammed Azad at [22-24]

 341   Further statement of Mohammed Azad at [25-27]

 342   Transcript PN 1490

 343   Transcript PN 1490-1492

 344   Transcript PN 1473-1474

 345   Transcript PN 1493

 346   Transcript PN 1494-1495

 347   Transcript PN 1498-1500

 348   Transcript PN 1502-1503

 349   Transcript PN 1512, PN 1518

 350   Transcript PN 1531

 351   Transcript PN 1531

 352   Transcript PN 820

 353   Applicant’s submissions at [25(j)]

 354   Statement of Mohammad Azad at annexure DA37

 355   Statement of Seyed Marashi at [43]

 356   Statement of Seyed Marashi at [45]

 357   Statement of Seyed Marashi at [44]

 358   Statement of Seyed Marashi at [46]

 359   Applicant’s closing submissions at [52-53]

 360   Respondent’s closing submissions at [75]

 361   Applicant’s closing submissions at [54]

 362   [2015] FCCA 554 at [63]-[64]

 363   PR737123