Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Nicholas James Waring
v
Hage Retail Pty Ltd
(U2021/10835)

Application for an unfair dismissal remedy – jurisdiction – employee or contractor – pastry chef with networks into wholesale trade – agreement to enter into joint venture – interim provision of labour and other services – whether as employee or contractor – High Court decisions in Jamsek and Personnel Contracting – found not to be an employee – no jurisdiction – application dismissed

[1] On 26 November 2021 Nicholas Waring (Mr Waring or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy concerning an alleged dismissal on 15 November 2021.

[2] The respondent is named as Hage Retail Pty Ltd (Hage Retail or the respondent). Its owner and principal, Mr Ben Hage, says that the correct description of his company is Hage Retail Group Pty Ltd (emphasis added).

[3] The application is opposed by Hage Retail which raises a jurisdictional objection. It says that Mr Waring is not protected from unfair dismissal because he was not an employee at the date of alleged dismissal and thus not dismissed within the meaning of the FW Act.

[4] Mr Waring’s application was conciliated on 1 February 2022 but did not resolve.

[5] I issued directions on 16 February 2022.

[6] Materials were filed by Mr Waring and Hage Retail.

[7] I heard the jurisdictional objection by video conference on 8 March 2022.

[8] The parties were self-represented.

Evidence

[9] Both Mr Waring and Mr Hage gave evidence.

[10] The evidence presents substantial challenges for fact-finding. Facts are in dispute. Issues of credit arise. Of particular importance are the following disputed facts:

•  whether the entirety of the working arrangement between Mr Waring and Hage Retail was reflected in a single written agreement of 24 January 2020 or whether a subsequent verbal agreement was entered into, and if so whether it provided for work to be performed as an employee; and

•  the authenticity of a letter dated 10 July 2020.

[11] I make findings on these matters in the body of this decision.

[12] As a general observation, I found the evidence of Mr Hage more plausible than Mr Waring. Mr Waring appeared somewhat casual and self-serving in aspects of his evidence. Mr Hage appeared considered and made some concessions that were against his case. Whilst preferring Mr Hage’s evidence, this does not mean that I necessarily make findings sought by Mr Hage. The documentary record, at least with respect to documents I find reliable, also inform fact-finding, not just issues of credit.

Facts

[13] Hage Retail is a manufacturer of baked goods including operating the Goolwa Bakery (and other bakeries) in South Australia. Mr Hage is the owner and managing director.

[14] Mr Waring is a Queensland-based pastry chef with knowledge of the wholesale market for baked pastry products.

[15] In January 2020 Mr Hage contacted a business broker (Benchmark) which had been engaged by Mr Waring. Mr Hage identified that Mr Waring had skills, entrepreneurialism and business associates that could be of value to Hage Retail. For his part, Mr Waring identified that a business relationship with Hage Retail could be mutually productive.

[16] Mr Hage believed that it may be possible, through Mr Waring and his associates, to secure a major retail café client (Starbucks) to whom they could supply baked manufactured product on the wholesale market.

Agreement

[17] Mr Hage and Mr Waring entered into an agreement (the ‘January 2020 Agreement’) under which a new business entity would be created (jointly owned including with others) and a manufacturing plant would be leased in Brisbane from where Mr Waring would be employed by the joint venture company and bake product to supply the prospective client (Starbucks), with supplementary manufacturing to be undertaken in South Australia.

[18] The Agreement, dated 24 January 2020, provided: 1

“AGREEMENT TO INCORPORATE

Date: Friday 24 January 2020
From: Ben Hage (Buyer)
To: Nic Waring (Seller)
Business: Blue Landing Provisions
Subject to Acceptance by the Vendor of the following conditions;

1. The parties are; A) Ben Hage (Goolwa Bakery, Adelaide) & B) Nicolas Waring, Claudine Shepphard, Ben Swinburne (Brisbane)

2. The parties will enter into a partnership agreement prior to any further introductions to buyers or further distributor negotiations.

3. The parties will jointly Register and Incorporate Blue Landing Provisions Pty Ltd with all parties nominated as directors of Blue Landing Provisions Pty Ltd

4. Ben Hage will own a 40% stake in Blue Landing Provisions Pty Ltd, with Nic Waring, Claudine Shepphard, Ben Swinburne owning 60% of the company.

5. Ben Hage has produced samples and products at Goolwa Bakery, under direction from Nicolas Waring for the “major café retailer” client – Starbucks, with samples were delivered to Melbourne on January 14, 2020, with the account confirmed to start delivery upon satisfactory of suitable premises.

6. Nic Waring will travel to Adelaide when required to work with Ben Hage until the Brisbane factory is completed.

7. Nic Waring will start employment at the commencement of first contract order with an annual salary of $75,000.00 (to be paid in monthly installments) + travel + accommodation in Adelaide, plus superannuation, and workcover.

8. Supply shall not commence until formal Agreement is signed by all Parties.

9. The Parties will enter into a lease for suitable commercial premises in Brisbane at a suitable and appropriate time.

10. Ben Hage will fit-out and/or supply baking equipment to the yet to be leased Brisbane premises to continue supply to the client (Starbucks)

11. Ben Hage and Nic Waring will be the only directors working in the business until it the company can sustainably employ/contract the remaining partners.

This agreement to purchase is made in good faith, and upon acceptance a suitable agreement will be entered into with an initial deposit of $2,000.00 to be held in the Benchmark Business Sales Trust Account now, and a further $28,000.00 payable upon execution of a contract, partnership agreement or incorporation of the company.”

[19] The January 2020 Agreement was signed and witnessed by both Mr Waring and Mr Hage.

Commencement of work

[20] In February 2020, shortly after the joint venture Agreement was signed, and given that no manufacturing facility yet existed in Brisbane, Mr Waring travelled to South Australia to commence working on the project with Mr Hage. The work undertaken by Mr Waring was threefold:

•  to use his business network and knowledge of the wholesale market to secure a confirmed agreement from Starbucks and other major café retailers to become clients of the joint venture, to establish the new corporate entity and its business plan in conjunction with Mr Hage and Mr Waring’s associates, to seek out locations for a (gluten free) manufacturing facility in Queensland and South Australia, to advise on the requirements of wholesale clients (including packaging), and to undertake relevant regulatory and administrative tasks to that end;

•  to continue to manufacture samples (using his skills as a pastry chef) that he then sent to Starbucks and other prospective clients of the intended joint venture; and

•  in conjunction with the manufacturing of samples, to manufacture largely the same products for sale and consumption in Mr Hage’s bakeries (or put into freezer storage for the joint venture) pending its commencement.

[21] Mr Waring worked from the Goolwa bakery in regional South Australia and subsequently from a facility (also owned by Hage Retail) at St Marys in suburban Adelaide.

[22] Mr Waring received $1,100 each week from Mr Hage by bank transfer. 2 Mr Waring used no corporate entity for this work or for any other relevant purpose. Work was done personally and monies were paid personally.

[23] Each week Mr Hage raised a ‘recipient created tax invoice’ for GST purposes 3 and claimed back 10% ($100) of payments made to Mr Waring on GST.

[24] Mr Hage did not deduct PAYG taxation from the payments made. Mr Waring did not produce a tax file number to Mr Hage for company records, unlike other persons employed by Hage Retail. 4 Nor did Mr Hage pay superannuation on behalf of Mr Waring. At no time did Mr Waring nominate a superannuation fund.

[25] Mr Waring’s hours were not controlled but he generally worked the four days per week identified in the January 2020 Agreement, and on other days from time to time largely at his discretion.

[26] Over the following months, in addition to manufacturing baked goods (samples and traded goods), Mr Waring prepared (via Benchmark) a number of draft Partnership Agreements and thoughts on business plans (termed ‘partnership progress points’) 5 that were forwarded to Mr Hage for consideration.6

[27] In these early months, the relationship was amicable. However, no partnership agreement nor complete business plan nor the intended new corporate entity were finalised. Both Mr Hage and Mr Waring understood that securing a major café client was necessary before the new business venture could commence, as its viability depended on that occurring. Hence, neither Mr Hage nor Mr Waring capitalised the joint venture (that is, neither paid the $2,000 deposit nor the further $28,000 contemplated by the Agreement).

[28] Mr Waring continued to express belief in the joint venture. At the conclusion of one of the business planning documents prepared by Mr Waring, he wrote: 7

“Walking into Goolwa Bakery every day for months knowing it wasn’t my place to improve, fix or whip it into shape was tortuous and I look forward to showing you what I can really bring to the party…a few years ago I went to a very eerily accurate psychic, fortune teller who told me my food would become a very big deal, not quite as big as McDonalds but not far off. I have believed this alongside you since we first started what we are doing, but it goes without saying if all of this is not even close to what you had in mind then you’re transparency will be greatly appreciated so I can evaluate my decisions.”

[29] Although made difficult by the advent of COVID-19 and border closures, in this period Mr Waring travelled between his home in Queensland and Mr Hage’s businesses in South Australia.

[30] It is not in dispute that Mr Hage financed Mr Waring’s travel between Queensland and South Australia.

[31] Nor is it in dispute that Mr Hage financed Mr Waring’s accommodation when in South Australia. Mr Hage did this by making payments directly to the owners of properties at which Mr Waring resided.

The 10 July 2020 letter

[32] Mr Waring says that in July 2020, due to the need to produce proof of work in order to enter South Australia, he asked Mr Hage for a letter proving his work status that could be shown to border authorities. Mr Waring says that Mr Hage produced a letter in the following terms:

“Benjamin Hage
Director
Hage Retail Pty Ltd
[redacted]
Highgate SA 5063
ABN 29116119745061

10 July 2020

To whom it may concern

This letter is to verify that Nicholas Waring has been employed by Hage Retail Pty Ltd commencing 10th July 2020 at the Goolwa Bakery.

I confirm the following:

Name – Nicholas Waring
Position – Wholesale Pastry chef
Start Date in new position – 10 July 2020
Full time position - Yes

My Company, Hage Retail Pty Ltd, it’s subsidiaries and associated businesses, has been trading since 2014 and continues to be a viable business.

If you require any additional information, please feel free to contact me on [redacted].

Sincerely,

Ben Hage
Director
Goolwa Bakery”

[33] There is a dispute as to the authenticity of this letter.

[34] Mr Waring says it was sent to him by Mr Hage by email, after correcting an earlier draft which had included the name of another person instead of Mr Waring.

[35] Mr Hage says he neither drafted, sent nor had seen the letter until these proceedings. Without saying so, he infers that the letter is a fabrication.

[36] Even though Mr Waring has provided 8 emails purporting to be from Mr Hage at 8.50am and 9.03am on 10 July 2021 with subject lines “letter” and “employment letter”, I have doubt as to the authenticity of the letter that is said to concern Mr Waring. I do not find to the requisite standard of proof that it was produced by Mr Hage or Hage Retail. My reasons are as follows:

•  the letter produced by Mr Waring is unsigned. It would be implausible for an unsigned letter to be offered as proof of border entry into a jurisdiction;

•  the letter refers to a “start date” of employment in a “new position” from 10 July 2020. There is no evidence before me of any change to the nature of the relationship at that time, other than the letter being so dated;

•  the letter refers to an incomplete business name. It refers to the respondent as described by Mr Waring in these proceedings (Hage Retail Pty Ltd) and not the correct corporate name of Mr Hage’s business (Hage Retail Group Pty Ltd). It is implausible that Mr Hage, had he drafted the letter, would describe his company incorrectly; and

•  it refers to an incorrect ABN number for Hage Retail. It is implausible that Mr Hage, had he drafted the letter, would ascribe to his company an incorrect ABN.

[37] As it would be unsafe to do so, and although it is plausible that a letter of this type would be sought for border entry and whilst the allegedly covering emails may be authentic and cast doubt the other way, having regard to the standard of proof (balance of probabilities) I place no reliance on the alleged letter from Mr Hage of 10 July 2020.

Continuation of work

[38] Work by Mr Waring in South Australia (of the three forms aforesaid) continued for a prolonged (eighteen month) period, until November 2021.

[39] During this period Mr Waring and his associates became unable to secure Starbucks or another major café operator as a client of the proposed joint venture.

[40] As a consequence, the relationship between Mr Hage and Mr Waring began to fracture. A dispute arose in September 2021 about the whereabouts of a gas cooker 9 and certain other assets owned by Hage Retail.

[41] On 15 November 2021 Mr Hage sent the following email to Mr Waring:

“From: ben@[redacted]
Sent: Monday, 15 November 2021 6:17 AM
To: 'Nic Waring'
Subject: Business trading as Fleurieu Flourless

Hi Nic

This email serves to inform you that you are stood down immediately effective from Monday morning 6am 15^th November 2021 in order for an investigation into the following allegations:

- That you sold and/or received funds from the sale of company assets without my knowledge or permission

- That you sold and/or received funds from the sale of company goods without my knowledge or permission

This email also gives you the opportunity to respond to these allegations and I welcome a response by email to this address.

Whilst the investigation is happening and until it is complete, I request that you DO NOT:

- Attend or enter the place of work at St Marys

- talk or communicate with Carlie, Jenny or Alex

- talk or communicate with any existing or potentially new customers of the business

- talk or communicate with any existing suppliers of the business

- talk or communicate or attend Rapid Storage

- defame the business or its brand in any way

I expect the investigation will take 1 – 2 weeks.

I will send you another email with a list of questions to answer / address.

If you have any questions please email me at this address, thank you for you cooperation.

Kind regards

Ben Hage
Managing Director
Fleurieu Flourless”

[42] Mr Waring did not respond, but did not perform work thereafter.

[43] Mr Waring commenced these proceedings eleven days later, on 26 November 2021.

Submissions

Hage Retail

[44] Hage Retail submit that Mr Waring was a contractor working in the business of Hage Retail on an interim basis pending the joint business venture contemplated by the January 2020 Agreement being established and coming into operation (which it did not). It submits:

•  the January 2020 Agreement was an agreement for a business relationship whereby Mr Waring would be employed but only by a future joint venture company;

•  that joint venture never eventuated because the January 2020 Agreement was conditional on the parties securing a major café retailer client (intended to be Starbucks), which did not occur;

•  work performed by Mr Waring between February 2020 and November 2021 in the business of Hage Retail were services whereby Mr Waring was seeking to secure Starbucks (or another major client) and preparing the corporate and regulatory structure for the future joint business venture. Manufacturing of baked of goods by Mr Waring for the benefit of Hage Retail businesses in this interim period was performed as a contractor, and in any event occupied around 50% only of Mr Waring’s time, the remainder spent on developing (albeit unsuccessfully) the future business venture;

•  there was no separate employment agreement between the parties; and

•  Hage Retail did not agree to control nor in fact control the hours or days Mr Waring worked in Hage Retail or on the future business venture.

[45] As a consequence, Mr Waring was not an employee but a contractor and thus his application is not within the Commission’s jurisdiction.

Mr Waring

[46] Mr Waring submits that he was a person protected from unfair dismissal under the FW Act because he worked in Hage Retail between February 2020 and November 2021 as an employee and was dismissed when ‘stood down’ by Mr Hage on 15 November 2021.

[47] He contends:

•  the January 20020 Agreement contemplated a joint venture (partnership and corporate entity) being established, once a major café retailer client was secured, in which he would be an employee of that entity;

•  in advance of the joint venture commencing he worked for Hage Retail as an employee under the same terms that the Agreement contemplated he would work once the joint venture commenced;

•  the interim work arrangement in Hage Retail was the product of a verbal agreement between he and Mr Hage and was given effect to until the relationship fractured;

•  he worked four and up to six days a week;

•  he was flown to Adelaide at Mr Hage’s expense to work in Mr Hage’s businesses and for their benefit;

•  whilst in South Australia he resided in commercial accommodation financed by Mr Hage;

•  he was paid a regular amount of $1,100 per week by Mr Hage which is near to the net sum that would have been payable to him as an employee under the January 2020 Agreement; and

•  he never held an ABN in the relevant period nor was asked for one by Mr Hage.

Consideration

[48] A person is only protected from unfair dismissal if they were an employee under a contract of employment at the date of alleged dismissal. “Employee” for these purposes means a national system employee (s 380 FW Act). A national system employee is (s 13) an individual employed by a national system employer.

[49] Hage Retail was a national system employer.

[50] Was Mr Waring an employee of Hage Retail at the date of dismissal?

[51] It is trite to observe that a variety of relationships exist which result in work being performed in the economy. Not all are employment relationships. The common law has long distinguished between a contract of service (an employment relationship) and a contract for services (a contractor/principal relationship). Further, other business arrangements under which work is performed (such as sole traders or partnerships) exist alongside both direct employment and contracting.

Legal principles

[52] In two judgements delivered on 9 February 2022 the High Court of Australia pronounced on the law that applies in determining whether, absent a specific statutory rule, a person is an employee or contractor. 10 In doing so, the Court reviewed past decisions of the Court (and other courts) and set out afresh relevant legal principles.

[53] In important respects the law as expressed by the High Court in Jamsek and Personnel Contracting has modified, if not replaced, former approaches. In particular, the past approach of the Commission (itself based on past court authority) as outlined in the leading full bench case of French Accent 11 is, with some limited caveats, no longer good law.

[54] The High Court, via the combination of judgements in both Jamsek and Personnel Contracting, has largely rejected an approach whereby the relationship between parties across its life span is examined (including how the relationship operates in practice). The Court has stated that contractual terms and not performance, where those terms can be ascertained and where the contract is not a sham, will determine the true nature of the relationship. 12 However, the Court has observed that the manner in which the relationship is worked in practice may be relevant for certain limited purposes, such as to find contractual terms where they cannot otherwise be ascertained13 or to determine the nature of any variation to agreed terms.14

[55] Indicia (such as those identified in earlier cases in the Court 15) may be relevant but only insofar as the terms of the contract give voice to them.16 One approach, to be used as a guide, is to look at whether, under the contract, the worker is engaged to work in the business of another17, though this may not necessarily be useful in all cases.18 The extent of a contractual right to control, as evident from the terms of the contract itself, remains a major signifier of an employment relationship.19 That an arrangement was brought about by the superior bargaining power of one party has no bearing on the meaning and effect of the contract.20

[56] Amongst the caveats expressed by the Court, is that a mere label acting as a subterfuge to the true nature of the contractual relationship will not determine the status of the parties. 21 In this respect at least, the law remains unchanged by these recent decisions.

Application of law to the facts

[57] There is an evident lack of clarity as to the terms under which Mr Waring worked prior to the intended joint venture getting off the ground. Aside from the January 2020 Agreement (considered below) both Mr Waring and Hage Retail failed to specify the nature of their relationship or the terms under which Mr Waring would be working in the interim for what turned out to be an eighteen month period (February 2020 to November 2021).

[58] As a consequence, determining whether the relationship was one of contractor or employee, even with the recent guidance of the High Court, is fraught. The arrangement, whatever it was, was vague, opaque and amorphous.

[59] That task of characterisation has an added degree of difficulty given the disputed facts.

[60] What is unaltered by the recent High Court decisions is that ultimately this question must be determined objectively, not by subjective belief. An evaluative judgement is to be made giving primacy (and in most instances exclusivity) to the terms of the contract(s) (written or oral) under which work was performed.

[61] What is clear from the recent High Court decisions is that, aside from applicable statutory terms (including those from industrial instruments) or terms varied by subsequent conduct, terms of a purported employment relationship can only be discerned from the contract itself. Thus, it is necessary to determine what agreement (or agreements) existed that governed the work performed by Mr Waring over this eighteen month period.

[62] The January 2020 Agreement was a signed written agreement and as such had contractual force. A question which arises is whether the terms of that Agreement created an employment relationship between Mr Waring and Hage Retail for the interim work undertaken in advance of the intended joint business venture commencing.

[63] For the following reasons, I think not.

[64] Firstly, the Agreement is a contract for the sale and purchase of services associated with the intended business venture. Mr Hage is described as the “buyer” and Mr Waring the “seller”. Whilst these descriptors and the label ‘Agreement to Incorporate’ do not determine the nature of the relationship, the terms are consistent with a business arrangement. It should be noted however that the fact other matters (such as commercial terms) are included in a contract (as they are here) does not necessarily mean that terms regulating the performance of work cannot be characterised as terms of employment. 22

[65] Secondly, the Agreement is not solely between Mr Hage and Mr Waring. Two other persons are expressed as “parties” though only Mr Waring and Mr Hage signed the agreement. Whilst the existence of multiple parties does not exclude the potential that one such person performs work as an employee, employment relationships are ultimately singular - between an employer and an employee. The existence of multiple parties leans towards the agreement having the character of a business arrangement, not an employment contract.

[66] Thirdly, and crucially, the Agreement was conditional on a confirmed wholesale contract for the supply of goods and two legal entities being created through which the joint venture would operate: a company (Blue Landing Provisions Pty Ltd) to be established and a partnership agreement to be entered into. Mr Hage’s evidence was clear in this regard. 23 It is not in dispute that no such entities were created and no confirmed contract to supply was secured. This being so, the capital injection contemplated by the agreement on the venture commencing (payment of a deposit and further lump sum) did not occur.

[67] Fourthly, and also crucially, whilst the Agreement contemplated that Mr Waring would “start employment” (cl 7), that clause specified that this employment would start “at the commencement of the first contract order”. No contract order was placed by Starbucks or other major café operator. As the joint venture did not get off the ground (as neither of the legal entities were established nor a contract order placed), Mr Waring was not employed under cl 7.

[68] For these reasons, I conclude that whilst working with Mr Hage between February 2020 and November 2021, Mr Waring was seeking to give effect to the terms of the January 2020 Agreement but was not working as an employee under that Agreement.

[69] Whilst not of direct relevance to work by Mr Waring but providing contextual support, I note that cl 11 of the January 2020 Agreement provided that in whatever relationship “remaining partners” would work for the venture (“employ/contact”), it would be to “the company”. This is a reference to the company that was intended to be (but was not in fact) jointly registered and incorporated under cl 3, being Blue Landing Provisions Pty Ltd.

[70] If Mr Waring was not working as an employee under the January 2020 Agreement, was a separate agreement made under which he was working in that capacity for Mr Hage or Hage Retail?

[71] There is no other written agreement.

[72] Both Mr Waring and Mr Hage gave evidence that verbal discussions occurred following the signing of the January 2020 Agreement in which Mr Waring would start working on getting the joint venture off the ground. In that sense, I find that an oral agreement was reached for the performance of work in that interim period.

[73] I do not however find that Mr Hage and Mr Waring agreed terms by which Mr Waring’s work in that interim period would be as an employee or on the same terms specified in cl 7 of the January 2020 Agreement.

[74] Mr Hage’s evidence as to what was agreed at that time was plausible. 24 He said that there were regular discussions with Mr Waring at that time about the joint venture and its proposed legal entities, business plans and prospective clients, but not an arrangement to be employed. He said that the agreement was for Mr Waring to travel to South Australia to work on the venture and make sample product to secure confirmed wholesale supply to a major café client for the venture. Manufactured sample product was necessary to secure a confirmed agreement with a proposed client. Travel to South Australia was necessary because no manufacturing facility had been leased in Queensland whereas sample product could initially be manufactured using Mr Hage’s facilities in South Australia. In this period, and consistent with the common pursuit of the joint venture goals, Mr Hage also travelled with Mr Waring to Brisbane to meet other prospective clients.25

[75] However, that does not dispose of the matter.

[76] The specific terms under which this interim work was to be performed were not the subject of any express agreement, oral or written. Yet work was nonetheless performed and agreed to be performed; over an eighteen month period no less.

[77] The question then is, was work performed by Mr Waring during this period (and more materially, at the date of alleged dismissal) as an employee of Hage Retail?

[78] In order to answer that question, this is one of the rare matters contemplated by the High Court in Personnel Contracting where the manner in which the relationship is worked in practice remains relevant to find contractual terms that cannot otherwise be ascertained by the agreement between the parties. 26

[79] I have found that from February 2020 Mr Waring was seeking to give effect to the January 2020 Agreement. This was the reason why he was flown to South Australia. His work primarily involved seeking out a major café retail client, manufacturing samples of product to get that client (or other clients) over the line, establish the legal entities to commence the venture, to develop business plans and ideas for business plans, and to undertake administrative and regulatory work related thereto.

[80] The nature of these activities was directly aligned to Mr Waring’s entrepreneurial ambition to enter into a joint business venture with Mr Hage. They are strongly indicative of work as a contractor. Mr Waring was providing to Mr Hage information and knowledge on how to secure wholesale contracts. 27 Mr Waring was acting as an entrepreneur and, in these respects at least, was undertaking the work of an entrepreneur. This he continued to do.

[81] I take into account that some (but not all) aspects of the prospective future employment relationship contemplated by the January 2020 Agreement (had the venture got off the ground) were similar to the terms under which Mr Waring provided and was remunerated for his services. The monies paid by Mr Hage were paid regularly (weekly, not monthly though), the quantum ($1,100 per week) was close (but not equal to) the annual sum of $75,000, and travel and accommodation was financed by Mr Hage. On the other hand, other future contemplated terms such as payment of superannuation and workcover did not apply.

[82] Materially, I find that Mr Hage did not have nor exercise the right to control the days or hours worked by Mr Waring. Mr Waring exercised discretion in those respects. Nor did Mr Hage have or exercise the right to control which aspect of his services Mr Waring would provide on a given day. Mr Waring exercised discretion in those respects also. Further, in relation to the manufactured products (samples or traded goods), whilst they were made using Mr Hage’s business assets, Mr Waring brought his skills as a pastry chef to that task.

[83] That Mr Waring did not produce an ABN is consistent with an employment relationship, though the fact that he received payments without deduction of PAYG taxation is not consistent with employment.

[84] In combination, these factors and in particular the fact that Mr Waring was primarily working for the purpose of giving effect to his entrepreneurial ambition to bring the joint venture to fruition, do not suggest that the terms of the work arrangement were that of an employer and employee. In his evidence Mr Waring put it this way: 28

“The initial agreement was the goal and in the interim we just started from that position. I guess obviously we were going to become business partners and we discussed things but there was never any agreement as far as my employment situation aside from that Agreement to Incorporate.”

[85] One other material and counterveiling factor must be considered. In addition to the entrepreneurial work Mr Waring undertook, he also manufactured product that was not merely used as samples to secure the joint business venture, but which was also sold in Mr Hage’s retail businesses. This activity was not contemplated by the January 2020 Agreement nor was it necessary to give effect to that Agreement. I find that this work came to occupy around 50% of Mr Waring’s time and thus was significant. The direct beneficiary of that activity was Mr Hage and his retail businesses, though I accept Mr Hage’s evidence that the products being manufactured were commonly larger volumes of the same sample products manufactured for the purposes of the intended joint venture (and some were frozen and put aside for the joint venture).

[86] I find that it became a feature of Mr Waring’s work over the eighteen month period that he would also manufacture product in significant quantities for Mr Hage’s retail businesses as an adjunct to manufacturing sample and frozen products for the intended joint venture. However, when doing so Mr Waring was also fostering the business relationship with Mr Hage and commonly baking the same product as the joint venture samples.

[87] Undertaking this work does not mean that in baking manufactured product (or when doing so) Mr Waring was necessarily working as an employee and not a contractor. It cannot be considered in isolation from the other entrepreneurial services being provided by Mr Waring.

[88] Considered in context and overall, I conclude that the terms under which Mr Waring undertook work between February 2020 and November 2021, including the sizeable portion of time manufacturing product which benefited of Mr Hage’s retail businesses, were in pursuit of his entrepreneurial goals and the joint venture objectives. In this sense Mr Waring was materially acting in his business interests and not just Mr Hage’s; he was, in the words of the High Court, to that extent also “acting on his own behalf”. 29 As such, I conclude that Mr Waring was a contractor and not an employee.

Conclusion

[89] For the aforementioned reasons, no contract of employment existed between Mr Waring and Hage Retail notwithstanding Mr Waring being ‘stood down’ by Mr Hage when the relationship fractured. Following a commercial dispute with Mr Hage over business assets, he was stood down from working as a contractor, not an employee.

[90] Not being an employee at the date of alleged dismissal, Mr Waring was not dismissed within the meaning of the FW Act.

[91] That being so, the application does not invoke the Commission’s jurisdiction. The application must be dismissed. An order 30 giving effect to this decision is issued in conjunction with its publication.

DEPUTY PRESIDENT

Appearances:

N Waring, on his own behalf.

B Hage, of and on behalf of, Hage Retail Pty Ltd

Hearing details:

2022
Adelaide (by video conference)
8 March

Printed by authority of the Commonwealth Government Printer

<PR739208>

 1   R6

 2   R8

 3   R10

 4   R7, R9

 5   R3, R4

 6   R2

 7   R4 page 3

 8   By emails following the 8 March 2022 hearing, as directed

 9   R12

 10   Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (‘Personnel Contracting’); ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (‘Jamsek’)

 11   Jiang Shen Cai trading as French Accent v Rozario [2011] FWAFB 8307 at [30] (French Accent) applying Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, Roy Morgan Research Pty Ltd v Commissioner of Taxation [1997] 37 ATR 528 and Hollis v Vabu Pty Ltd [2001] HCA 44

 12   Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [40] - [62], Gordon J at [172] - [178]; Gageler and Gleeson JJ observing otherwise at [143]

 13   Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [42], [54], Gordon J at [177] - [178], [188] - [190]

 14   Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [46], [54]

 15   Hollis v Vabu Pty Ltd [2001] HCA 44; Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1

 16   Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [33] - [34], [47], [61], Gordon J at [174], [186] - [189]

 17   Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [39], Gordon J at [183]

 18   Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [39]

 19   Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [73] - [74], Gageler and Gleeson JJ at [113] - [114], [121]

 20   Jamsek per Kiefel CJ, Keane and Edelman JJ at [6, 8, 62]; Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [81]

 21   Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [58], [63]-[66], [79], Gageler and Gleeson JJ at [127], Gordon J at [184]

 22   Personnel Contracting per Gageler and Gleeson JJ at [106]

 23   Audio 8 March 2022 11.19am

 24   Audio 8 March 2022 11.25am

 25   Audio 8 March 2022 11.28am

 26   Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [42], [54], Gordon J at [177]-[178], [188] – [190]

 27   Audio 8 March 2022 11.22am

 28   Audio 8 March 2022 12.01pm

 29   Personnel Contracting per Gageler and Gleeson JJ at [121]

 30   PR739209