| [2022] FWCFB 66 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Mohammad Amin (Darius) Souraki Azad
v
Hammond Park Family Practice Pty Ltd T/A Jupiter Health Warnbro
(C2022/458)
VICE PRESIDENT CATANZARITI |
SYDNEY, 4 MAY 2022 |
Appeal against decision [2021] FWC 6683 of Deputy President Young at Melbourne on 23/12/2021 in matter number C2020/9293 – permission to appeal refused.
Background
[1] Dr Azad (the Appellant) has lodged an appeal against a decision (Decision) of Deputy President Young (Deputy President) on 23 December 2021 1 in which the Deputy President found that Dr Azad was not an employee and therefore could not make an application for relief under s.365 of the Fair Work Act 2009 (the Act).
[2] Under s.604(1) of the Act, the Appellant must have permission from the Commission to appeal the Decision. The Appellant does not otherwise have a right to appeal.
[3] The Appellant is a general practitioner and the Respondent is a registered company, which owns and operates medical centres. The Respondent also provides services to independently owned medical centres and general practitioners under the Jupiter Health banner. The Respondent offered the Appellant work as a registered international medical graduate while he was in Iran, and upon his acceptance, the Respondent guided the Appellant through the process of coming to work as a general practitioner in Australia.
[4] The Appellant’s placement with the Respondent was subject to a standard form Facilities Agreement (Agreement). Under the Agreement, the general practitioner engages the Respondent to provide premises, equipment and administrative support services within a medical centre from which the general practitioner provides medical care to patients. Furthermore, the general practitioner pays a set percentage of their fees billed to patients to the Respondent as a management fee.
[5] On 2 October 2019, the Appellant commenced seeing and billing patients at Juniper Health Warnbro. To work as a general practitioner in Australia, in compliance with Australian Health Practitioner Regulation Agency requirements, the Appellant was subject to supervision by Dr Hadipour. On 6 November 2020, the Appellant was advised that he would no longer be supervised by Dr Hadipour. He did not see any patients or attend the practice after that day.
[6] The Appellant claimed that he was an employee of the Respondent and was dismissed in contravention of the General Protections provisions of the Act. The Respondent raised a jurisdictional objection, that the Appellant was not an employee of the Respondent and therefore was not dismissed pursuant to s.386 of the Act.
[7] In her Decision, the Deputy President followed the earlier Full Bench decisions of Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario (French Accent) 2 and Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats (Gupta)3 to determine whether the Appellant was an employee or independent contractor. These authorities confirmed the use of a multi-factorial approach but cautioned against a merely arithmetic application of it. The Deputy President also directed the parties to make submissions on WorkPac Pty Ltd v Rossato (Rossato),4 a recent High Court decision which emphasised the importance of contractual terms when determining whether a relationship is one of casual or permanent employment.
[8] Following these authorities, the Deputy President considered the contractual Agreement between the Appellant and Respondent and also undertook a multi-factorial analysis, ultimately finding that the fundamental elements of an employment relationship did not exist between the Appellant and the Respondent.
[9] This matter was listed for permission to appeal and the merits of the appeal. Directions were issued for the filing of material by both parties. The Appellant sought leave to adduce further evidence in the appeal. The Full Bench requested that the parties produce submissions on whether or not the new evidence should be admitted. Upon reviewing the new evidence, we decided that leave to adduce further evidence would be refused and brief reasons for that decision are set out below. Given that further evidence was not allowed at the hearing, both parties consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.
[10] For the reasons that follow, permission to appeal is refused and the appeal is dismissed.
[11] Generally, the Commission’s role in relation to applications under s.365 of the Act is to deal with such applications by way of conciliation or mediation under s.368 of the Act. If satisfied that all reasonable attempts to resolve a dispute under s.365 have been or are likely to be unsuccessful, the Commission can issue a certificate under s.368(3). Section 370 of the Act imposes a substantial restriction 5 upon applicants by preventing a general protections court application being made unless the Commission has issued a certificate under s.368(3)(a) in relation to the dispute.
[12] The Full Court in Coles Supply Chain v Milford 6 observed that the Commission’s powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the Commission’s performance of functions under s.368, and the Commission can determine the limits of its authority to deal with a dispute under s.368, although it cannot conclusively determine those limits.
[13] The question of whether the Appellant was an employee of the Respondent is one of jurisdictional fact. If permission is granted, we must therefore determine whether the Deputy President reached the right conclusion as to whether the Appellant was an employee, not simply whether the Deputy President’s finding was reasonably open to her. 7
[14] On this question, it is relevant to note that the High Court has recently revised the applicable legal principles to determine whether a person is an employee or an independent contractor in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (‘Personnel Contracting’) and ZG Operations Australia Pty Ltd v Jamsek (‘Jamsek’). 8 A useful analysis was applied in the Commission decision of Waring v Hage Retail Group Pty Ltd:9
“[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. 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 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. 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 ascertained or to determine the nature of any variation to agreed terms.
[55] Indicia (such as those identified in earlier cases in the Court) may be relevant but only insofar as the terms of the contract give voice to them. 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 another, though this may not necessarily be useful in all cases. 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. 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.
[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. In this respect at least, the law remains unchanged by these recent decisions.” (footnotes omitted).
[15] Under s.604(2) of the Act, we are required to grant permission to appeal if we are satisfied that it is in the public interest to do so. We may otherwise grant permission on discretionary grounds.
[16] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.10 In GlaxoSmithKline Australia Pty Ltd v Makin 11 a Full Bench of the Commission identified considerations that might attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”
[17] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.12
[18] The Deputy President began by making some general observations regarding witnesses, evidence and submissions. The Deputy President did not find the Appellant to be a helpful or truthful witness for the reasons given at [13] of the Decision. The Deputy President found the Respondent’s witnesses (Dr Marashi, Dr Gendy and Ms Chew) to be credible witnesses and gave reasons for these findings at [14]. The Deputy President also noted that given the large volume of material, a failure to specifically refer to a particular evidentiary matter or submission should not be taken to indicate that it had not been considered.
[19] The Deputy President made the following key findings in relation to the Agreement:
“[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. 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. 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 Rockingham and considers himself to be a business person with the skill set necessary to complete such a project, which is hoped to be in the millions of dollars. 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, he was “careful with documents”, he was a “person that asks a lot of questions” but did not ask Ms Chew any questions about the First Contract, he understood that the First Contract enabled him to conduct his own practice as a GP, he understood that HPFP was in the business of providing facilities to GPs, and the terms of the First Contract did not surprise him 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. Fourthly, he signed the Agreement without asking Ms Chew any questions regarding it, he did not ask any questions about the Agreement in the five months between returning the signed Agreement and arriving in Australia, he knew the document would be relied upon by the Department of Home Affairs in granting his visa, he agreed that the Agreement was a genuine agreement and held it out to the Department as such and he was not surprised that the Agreement was a contract for services.
…
[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. 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.
[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.” (Footnotes omitted)
[20] The Deputy President then turned to each of the various factors which are relevant to a multi-factorial analysis and came to the following 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.”
[21] The Deputy President considered it unnecessary to detail the events leading to the cessation of the relationship between the Appellant and Respondent, given her conclusion that the Appellant was not an employee of the Respondent.
Further Evidence
[22] The Appellant sought to adduce several further documents as part of his appeal, described as Volume 5 of his Appeal Book. The principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank. 13 The Full Bench considered the material and did not find it to be sufficiently probative. Further, all the material was capable of being adduced at first instance. The Appellant’s submission that some of this material was not provided at first instance because of his former lawyer’s negligence has not been substantiated, but in any event, the evidence is still not sufficiently probative to be adduced in this appeal. Accordingly, we do not admit any of the new documents as evidence in the appeal.
[23] The Appellant has raised a number of grounds of appeal, distilled as best we can as follows:
1. The Deputy President erred in her assessment of the Appellant’s credibility by not citing evidence or giving sufficient explanation to support the finding that the Appellant’s evidence was less credible.
2. The Deputy President erred in finding that the Respondent’s witnesses (Dr Marashi, Dr Gendy and Ms Chew) were credible and failed to adequately challenge their evidence.
3. The wording of the Decision is similar to the Respondent’s submissions at first instance.
4. The Deputy President failed to question the Appellant before making adverse finds in relation to his credibility.
5. The Deputy President made a significant error of fact in finding that the parties failed to refer to Clause 15 of the Agreement during the first proceedings, 14 as the Appellant did in fact refer to it in his closing submissions.
6. The Deputy President made a significant error of fact in finding that the Appellant refused offers from Dr Marashi and Dr Gendy to supervise him. 15
7. There is inconsistency in the Deputy President’s reasoning at [100] of the Decision.
8. The Deputy President misjudged how many jurisdictional objections the Respondent raised at first instance.
9. The Deputy President put too much weight on the Agreement and Medicare Provider Number and failed to consider other evidence provided by the Appellant. Specifically, Dr Gendy’s evidence regarding the Appellant’s Visa requirements, the letter from Dr Marashi dated 27/10/2020 and the fact that the Appellant suffered from attention deficit disorder and dyslexia.
10. The Deputy President erred in law in finding that the general contractual arrangements between the Respondent (HPFP), Warnbro Family Practice Pty Ltd and the Appellant did not amount to a labour-hire arrangement.
11. The Deputy President erred in law by concluding that the Appellant’s supervision was only to fulfil the requirements of APRHA registration and was not imposed for the purpose of monitoring his performance. 16
12. The Appellant’s legal representative was negligent in failing to provide Joanne Visser’s minutes of the meeting on 6 November 2020 to the Deputy President at first instance for consideration.
13. The Deputy President erred in finding that the Appellant’s submissions failed to mention that Ms Errington and Ms Viser attended the meeting on 6 November 2020.
[24] We will first turn to the jurisdictional question of whether the Appellant was an employee of the Respondent. As discussed above, the Deputy President found that the Appellant was not an employee of the Respondent but was rather an independent contractor. The Deputy President reached this conclusion by examining the express terms of the Agreement and then applying a multi-factorial test.
[25] Having considered the materials, the Full Bench finds no arguable case of appealable error in the Deputy President’s conclusions that the Appellant was not an employee of the Respondent and therefore there can have been no dismissal for the purposes of s.365 of the Act. We have taken into account the recent High Court decisions in Rossato, Personnel Contracting and Jamsek and note in particular the Deputy President’s finding that the Agreement largely (although not in every respect) reflects what occurred in practice. 17
[26] Given these findings, it is not necessary to deal with the remaining grounds of appeal, however for completeness we make the following observations.
Grounds 1, 2 and 4
[27] Grounds 1, 2 and 4 relate to the Deputy President’s assessment of the Appellant’s credibility and her acceptance of the Respondent’s evidence. In the context of appeals, Full Benches have consistently held that findings of fact made by a Member at first instance should stand unless it can be shown that the Member ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable.’” 18 This is because of the well accepted principle that a trial judge has the advantage of observing the demeanour of witnesses and is therefore usually best placed to assess credibility.19
[28] The threshold to overturn credibility assessments is high and the Appellant’s submissions do not show that the Deputy President findings were clearly erroneous or improbable. The Deputy President gave reasons for her findings in respect of credibility at [13]-[14] of the Decision and such findings were reasonably open to her on the evidence before her. No arguable case of error of fact is made out in relation to these grounds.
Ground 3
[29] Ground 3 asserts that the wording of the Decision is similar and, in some circumstances, identical to the Respondent’s submissions. Similarities between the Decision and a party’s submission alone, is not enough to substantiate appealable error. All it demonstrates is that the Deputy President accepted the relevant submission(s). Ground 3 of the Appeal cannot succeed.
Grounds 5 and 6
[30] Ground 5 and 6 assert that the Deputy President made significant errors of fact by failing to acknowledge that the Appellant referred to Clause 15 of the Agreement and in stating that the Appellant rejected Dr Marashi and Dr Gendy’s offers for supervision. The Respondent submits that no such errors exist, as the Appellant only referred to Clause 15 in his closing submissions, which are not in evidence and the transcript (at [PN745]) from the first instance proceeding confirms the Appellant’s refusal of offers for supervision. We agree that this is what the record discloses and find no arguable case of error of fact on this basis. Further, even if such errors did exist, it is not clear to us how this would change the outcome of the proceeding. We consider Grounds 5 and 6 unlikely to succeed.
Ground 7
[31] Ground 7 asserts inconsistency in the Deputy President’s reasoning at [100] of the Decision. We find no such inconsistency and cannot see how such inconsistency would be enough to give rise to an appealable error.
Ground 8
[32] Ground 8 asserts that the Deputy President miscalculated how many objections the Respondent raised to the Appellant’s application. This ground fails to disclose any arguable case of appealable error.
Ground 9
[33] Ground 9 alleges that the Deputy President put too much weight on the Agreement and Medicare provider number and failed to consider the Appellant’s evidence. The weight to be given to various aspects of the evidence was a matter for the Deputy President.
[34] It was appropriate for the Deputy President to place significant weight on the terms of the contractual Agreement between the parties, as has recently been emphasised by the High Court. We are not persuaded that the various factual findings made by the Deputy President are likely to be disturbed on appeal.
Ground 10 and 11
[35] Ground 10 and 11 both assert errors of law. By Ground 10, the Appellant submits that the Deputy President erred in her characterisation of the contractual arrangements between the Respondent, Warnbro Family Practice Pty Ltd and the Appellant. The Respondent submits that the Deputy President’s characterisation of these arrangements was open on the evidence before her and was not attended by any misidentification or misapplication of the law. We agree and find no case of appealable error in relation to this ground.
[36] By Ground 11, the Appellant submits that the Deputy President erred in law in finding that the Appellant’s supervision was not imposed for the purpose of monitoring his performance. Again, we consider this finding was open to the Deputy President on the evidence and find no case of appealable error in relation to Ground 11.
Ground 12 and 13
[37] Grounds 12 and 13 deal with the Deputy President’s findings in relation to the meeting on 6 November 2020. Ground 12 alleges representative error in failing to provide the Deputy President with Ms Visser’s minutes of the meeting. The Appellant has failed to support this submission with any additional evidence demonstrating his lawyer’s negligence. The Respondent submits that even if such evidence did exist, any such failure did not result in an appealable error. We agree. No arguable case of error is made out in relation to this ground of appeal.
[38] Ground 13 submits that the Deputy President erred in finding that the Appellant’s submissions fail to mention that Ms Errington and Ms Viser attended the meeting on 6 November 2020. In our view, little turns on the matter and no arguable case of appealable error is disclosed.
[39] For these reasons, we are not satisfied that the Decision is attended by a relevant arguable case of error such that it should be reviewed on appeal. The Deputy President reached her Decision using the then applicable and orthodox approach to the determination of the Appellant’s application. In doing so, the Deputy President gave significant weight to the contractual terms between the parties, which is consistent with recent High Court authority.
[40] The Deputy President considered and dealt with the evidence that was before her and made findings of fact based upon that evidence. Furthermore, this appeal does not attract the public interest because we are not satisfied that:
• there is a diversity of decisions at first instance such that guidance from an appellate body is required of this kind;
• the appeal raises issues of importance and/or general application;
• the Decision at first instance manifests an injustice, or the result is counter intuitive; or
• the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
[41] Finally, the Appellant has not established that the Deputy President made an appealable error in her ultimate conclusion that the Appellant was not an employee of the Respondent.
[42] We are not satisfied that it would be in the public interest to grant permission to appeal, and nor are we satisfied that we should otherwise exercise our discretion to grant permission.
[43] Permission to appeal is refused.
[44] The appeal is dismissed.
VICE PRESIDENT
Hearing details:
Matter decided on the papers.
Printed by authority of the Commonwealth Government Printer
<PR741194>
1 Mohammad Amin (Darius) Souraki Azad v Hammond Park Family Practice Pty Ltd [2021] FWC 6683 (‘the Decision’).
4 [2021] HCA 23.
5 Ward v St Catherine’s School [2016] FCA 790 at [3].
6 (2020) 300 IR 146 at 160, [2020] FCAFC 152 at [43], [51 and [63].
7 Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd (2016) 260 IR 244, [2016] FWCFB 2654 at [11], Voros v Dick (2013) 237 IR 248, [2013] FWCFB 9339 at [11], Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231; 97 IR 392 at [14].
8 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.
9 Waring v Hage Retail Group Pty Ltd [2022] FWC 540.
10 O’Sullivan v Farrer (1989) 168 CLR 210, [1989] HCA 61, applied in Hogan v Hinch (2011) 243 CLR 506, [2011] HCA 4 at [69]; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78, (2011) 207 IR 177, [2011] FCAFC 54 at [44]–[46].
11 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266, [2010] FWAFB 5343 at [27].
12 Wan v AIRC (2000) 116 FCR 481, [2001] FCA 1803 at [30].
13 (1994) 34 NSWLR 155
14 Decision [94].
15 Decision [98].
16 Decision [89].
17 Decision [69].
18 City Motor Tranport Pty Ltd v Zlatko Devic [2014] FWCFB 6074, [29] citing Devries v Australia National Railways Commission (1993) 177 CLR 472, [479].
19 Wilton v Farnworth (1948) 76 CLR 646, 654-5.