| [2023] FWC 50 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Sarah Mandelson
v
Invidia Foods Pty Ltd, Angelo Sperlinga, Richard Simiane
(C2022/1319)
DEPUTY PRESIDENT BOYCE |
SYDNEY, 16 JANUARY 2023 |
Application to deal with contraventions involving dismissal – sale of business – applicant founder of Serendipity Ice Cream business – applicant sold business – applicant continued to work in business post completion of business sale - jurisdictional objection – whether applicant employee or independent contractor.
[1] Ms Sarah Mandelson (Applicant) has filed a Form F8 (general protections involving dismissal) application (Application) under s.365 of the Fair Work Act 2009 (Act).
[2] The Applicant alleges that she was dismissed by the first respondent, Invidia Foods Pty Ltd (Invidia), in contravention of Part 3-1 of the Act. 1 The second respondent, Mr Angelo Sperlinga, is a Director of Invidia, and the third respondent, Mr Richard Simiane, is Invidia’s Chief Financial Officer. Mr Sperlinga and Mr Simiane are alleged by the Applicant to have contravened the Act in the same manner as Invidia by virtue of them each being “involved in” Invidia’s contraventions.2
[3] In denying the assertions as to contravention and/or involvement made against them, the Respondents say that the Application is misconceived and jurisdictionally barred on the basis that the Applicant was not an employee of Invidia. 3 In other words, if the Applicant was not an employee of Invidia, Invidia could not have dismissed her. The requirement for a “dismissal” (within the meaning of s.12 and s.386 of the Act) is a jurisdictional prerequisite to the making of a valid claim under s.365 of the Act (s.365(1)(a)).
[4] This decision deals only with the relevant contest before me, namely, on the facts and circumstances of this particular case:
a) whether or not there was a contract at all between the Applicant and Invidia; and
b) if there was a contract between the Applicant and Invidia, whether the relationship between the parties was one of employment, or independent contractor and principal.
[5] At the hearing, Mr Miles Foran, of Counsel, appeared with permission for the Applicant, instructed by Ms Lesly Cho, Practice Leader, LegalVision Lawyers. Mr Brad Barr, of Counsel, appeared with permission for the Respondent, instructed by Mr Nicholas Lambros, Solicitor, of Tasiopoulos Lambros and Co Lawyers.
[6] The Respondent relies upon the following witness evidence:
(a) Witness Statement of Mr Angelo Sperlinga, Director, Invidia, 23 May 2022; 4
(b) Witness Statement of Mr Richard Simiane, CFO, Invidia, 23 May 2022; 5
(c) Second Witness Statement of Mr Simiane, 15 July 2022; 6 and
(d) Third Witness Statement of Mr Simiane, 19 July 2022. 7
[7] The Applicant relies upon the following witness evidence:
(a) Witness Statement of Ms Sarah Mandelson, 8 June 2022; 8
(b) Second Witness Statement of Ms Mandelson, 1 July 2022; 9
(c) Third Witness Statement of Ms Mandelson, 19 July 2022; 10 and
(d) Witness Statement of Mr Richard Single, Applicant’s husband, 8 June 2022. 11
[8] The Applicant is the sole director of Sarric Pty Ltd (Sarric). The entire share capital in Sarric is held by Sarric Holdings Pty Ltd (SHPL). The Applicant and the Applicant’s husband, Mr Richard Single, hold (in equal shares) the entire issued share capital in SHPL.
[9] Between July 1997 and 1 May 2021, Sarric owned and operated the business named “Serendipity Ice Cream” (Serendipity), which manufactures and sells gourmet ice cream, handmade frozen desserts, and cakes.
[10] Sometime in 2018, the Applicant and Mr Single determined to sell the Serendipity business. By the end of 2019, an in-principle oral agreement was reached for Serendipity to be sold to Invidia for the lump sum of $1,100,000. A term of the in-principle agreement was that the Applicant, if she wished to, post the sale, would be employed by Invidia on a part-time basis (around 20 hours per week) primarily to find new customers, and continue brand and product development.
[11] Following the COVID-19 pandemic, and prior to any formal agreement being executed, the terms of the sale of Serendipity were renegotiated between Invidia and Sarric.
[12] On or about 3 February 2021, Invidia and Sarric executed a business sale agreement (BSA), whereby Sarric sold Invidia the Serendipity business. Pursuant to the BSA (relevantly):
a) the Completion Date was 1 May 2021; 12
b) Sarric is the “Seller”, Invidia is the “Buyer”, Mr Frank Fillipone (Director, Invidia) and Mr Sperlinga are each a “Buyer Guarantor”, and the Applicant is both “Seller Guarantor” and “Key Person”;
c) each of the Buyer Guarantors, and the Seller Guarantor, guarantee the performance by the Buyer and the Seller of their respective obligations under the BSA;
d) each party to the BSA (being Sarric and Invidia) must perform or procure the performance of their respective Completion Obligations;
e) the monetary terms of the sale were in two parts:
• Part 1: a deposit of $62,000, a Completion Date payment of $418,000, and an amount for stock value (to be determined).
• Part 2: a deferred purchase price sum of $620,000 (in the form of vendor finance) payable subject to Invidia meeting certain turnover amounts in respect of the Serendipity business. This is subject to a Loan Facility Deed (Loan Deed) between Invidia (as Borrower) and Sarric (as Lender), with Mr Sperlinga and Mr Fillippone as Borrower Guarantors. 13
f) the BSA defines the “Employment Agreement” as the employment agreement “to be entered into” between the Applicant (as Key Person) and Invidia (as Buyer) in the form attached to the BSA at Schedule 11 (Employment Agreement);
g) one of Sarric’s Completion Obligations (as Seller) is to deliver or cause to be delivered to Invidia (as Buyer), the Employment Agreement duly executed by the Applicant (as Key Person), and the Loan Deed duly executed by Sarric; and
h) one of Invidia’s Completion Obligations (as Buyer) is to deliver to Sarric (as Seller), the Employment Agreement duly executed by Invidia, and the Loan Deed duly executed by Invidia and any guarantor. 14
[13] The Applicant and Mr Single are the owners (landlords) of premises (Enmore Road, Marrickville, NSW) leased to Sarric, from which the Serendipity business operates (Business Premises). It was a condition of the sale of the Serendipity business that Invidia enter into a lease in respect of the Business Premises with the Applicant and Mr Single (Business Premises Lease).
[14] On 29 January 2021, Mr Sperlinga executed the Employment Agreement (on behalf of Invidia) and shortly thereafter provided it (delivered it up) to the Applicant. The Applicant did not execute or provide (deliver up) an executed copy of the Employment Agreement to Invidia (i.e. pre or post the Completion Date).
[15] There is no dispute in these proceedings that the Loan Deed was duly executed by Invidia (and the guarantors), and Sarric, and thereafter delivered up to each other (as per the terms of the BSA).
[16] Following the BSA Completion Date (1 May 2021), the Applicant and Mr Single continued to work in the Serendipity business. Neither the Applicant nor Mr Single were paid any wages or other employment entitlements by Invidia for such work.
[17] Between 31 May 2021 and 31 January 2022, Sarric issued Invidia a total of eight monthly tax invoices in respect of services provided or work performed by the Applicant in the Serendipity business. Seven of these invoices were in respect of “Sarah Mandelson professional services: product development, administration, sales calls & meetings, etc”. One of the invoices (dated 1 December 2021) referred to “consultancy”. Two of the invoices also include a notation as to “total hours”, and one of the invoices refers to a “35% discount due to COVID lockdown Sydney”.
[18] Between 17 May 2021 and 11 January 2022, Sarric also issued Invidia a total of eight additional tax invoices in respect of services provided or work performed by Mr Single in the Serendipity business.
[19] On 1 February 2022, Mr Sperlinga advised the Applicant that “Your Consultancy to Invidia [is] to be cancelled immediately”. This is the purported dismissal that the Applicant relies upon in bringing her Application under s.365 of the Act.
[20] The Applicant contends that the Employment Agreement contained at Schedule 11 of the BSA is binding and enforceable. As a matter of construction of the terms of the BSA, I am unable to accept this contention. Indeed, to conclude otherwise would be to ignore or give no effect to the plain meaning of the words of the BSA. In this regard, and put simply, I find that the evidence discloses that the Applicant (as Seller Guarantor and/or Key Person):
a) never executed the Employment Agreement (as required by and in breach of the BSA);
b) did not deliver up or cause to be delivered up an executed version of the Employment Agreement to Invidia (as required by and in breach of the BSA); and
c) did not otherwise communicate her acceptance of the Employment Agreement to Invidia (orally, or in writing).
[21] The terms of the BSA could have provided that the Employment Agreement and the Loan Deed were to be binding and enforceable upon execution of the BSA. But the terms of the BSA do not provide for this outcome. Nor can it be said that it was the intention of the BSA to achieve this outcome absent compliance with the express terms of the BSA. Indeed, the terms of the BSA make plain that the Employment Agreement (as a secondary or ancillary contract to the BSA) will not be a concluded bargain (or “entered into”), unless and until the Employment Agreement is formally executed by the Applicant (who is not a party to the BSA) and Invidia (or in counterparts), and then relevantly delivered up in executed form. 15 Such requirements are part of the express terms of the ‘entire agreement’ between the parties to the BSA.16 There is no evidence that the express requirements of the BSA in respect of entry into the Employment Agreement were ever waived or varied (by any party to the BSA), such that the Employment Agreement would be entered into (or become binding, enforceable, or otherwise have automatic or osmotic effect) upon the execution of the BSA itself, or upon the execution and delivery up of the Employment Agreement by Invidia but not by the Key Person (the Applicant).
[22] I equally concur with the Respondents’ submissions that the words “to commence on and from completion” under the BSA (in relation to the Applicant’s employment and/or the Employment Agreement) cannot be read so as to extinguish the BSA’s requirement for the Employment Agreement to be executed and delivered up by each of the Key Person (Applicant) and Invidia. There is nothing unusual about parties to a contract agreeing to a retrospective or future commencement date. Neither is it unusual for a commencement date to be subservient to the contract being formally entered into in the first place.
[23] Having regard to my conclusions at paragraphs [20] to [22] above, I find that the Employment Agreement was never entered into, and is therefore not binding or enforceable. It equally follows that I find that there was never a written contract between the Applicant and/or Sarric, and Invidia, in relation to any work to be performed by the Applicant in the Serendipity business.
[24] In their submissions, both parties refer to or set out a number of factual matters, essentially going to conduct, that support their respective contentions as to the Employment Agreement being agreed to, or not being agreed to, or coming into force, or never coming into force, essentially on the basis of inference. 17 Putting aside any questions as to the correctness (at law) of taking such an approach, given that I have determined that the Employment Agreement is not binding and enforceable by reference to the construction of the express terms of the BSA, it is unnecessary for me to consider, or make findings about, conduct as it concerns entry into or the enforceability of the Employment Agreement.
[25] In his closing oral submissions, Mr Barr set out the Respondents’ position in relation to the parties to a contractual arrangement with the Applicant, as follows:
“As I outlined at the start of these submissions, we essentially make a privity argument. We say there was no relevant contract at all, written, oral, implied, or a combination of them, between Invidia and Ms Mandelson. Rather, what occurred was that there must have been two contracts.
The first was a contract between Invidia and Sarric Pty Ltd by which Sarric agreed to provide services to Invidia for a fee. That contract was only partly in writing, so again, on ordinary principles, the Commission can have reference to the parties' subsequent conduct to determine the terms of the agreement.
The second contract was between Sarric and Ms Mandelson, and pursuant to that contract, Ms Mandelson agreed to provide or perform the services on Sarric's behalf for the benefit of my client Invidia, essentially a subcontract, and as I'll demonstrate in a moment, it was Sarric, not Ms Mandelson, who issued invoices to my client for the work that was performed, and there were various other events, facts, circumstances, we say, that demonstrate the existence of these contractual arrangements.
So not only was Ms Mandelson not an employee of my client Invidia, there was actually no relevant contract between them at all.
As I outlined at the beginning, if the Commission is not with me on that point, and I'll outline that point in more detail in a moment, then we say Ms Mandelson performed her work not in the capacity of an employee but rather as an independent contractor, and I'll come to the evidence about that in due course.” 18
[26] In support of their primary contention that the contract that existed with Invidia was with Sarric, and not the Applicant, the Respondents’ point (in summary) to the fact that:
a) invoices for work performed by the Applicant were issued by, and in the name of, Sarric, for payment into a bank account held by, and in the name of, Sarric;
b) it was a decision made by the Applicant to issue invoices in the name of Sarric, i.e. there is no evidence as to Invidia ever requesting invoices be issued by Sarric (as opposed to the Applicant issuing invoices in her own personal capacity);
c) the invoices issued by Sarric (in respect of the work performed by the Applicant in the Serendipity business) included an amount for GST, to be received by Sarric upon payment of the invoice by Invidia, and thereafter (if paid) for disclosure and/or relevant remittance by Sarric to the Australian Taxation Office; and
d) there are no leave entitlements in relation to the Applicant contained in the invoices issued by Sarric to Invidia, and the Applicant was never paid any leave entitlements by Invidia.
[27] In her submissions, the Applicant submits that the personal nature of her appointment in the Serendipity business identifies that Invidia has contracted directly with the Applicant (not Sarric). The Applicant also says that this personal appointment is consistent with:
a) the Heads of Agreement document (setting out the core matters to be included in the BSA) whereby the Applicant (if she so wishes) is to be an employee of Invidia working in the Serendipity business; and
b) the terms of the BSA (defining the Applicant as the Key Person to enter into the Employment Agreement).
[28] To the extent that invoices are used as the vehicle or method of payment for work performed by the Applicant in the Serendipity business, the Applicant submits that the invoices are just labels. In other words, the evidence that Invidia (or Mr Sperlinga) did not care, or did not have a preference one way or the other, as to whether the Applicant was to be engaged as an employee or independent contractor (consultant), means that the use of invoices (through Sarric) was just a payment arrangement that cannot alter the fact that the actual parties to the contract are Invidia and the Applicant. Thus, whilst the issuing of invoices by Sarric is not irrelevant, it is not the relevant focus, or the substance of the inquiry to be had. 19
[29] The parties to a contract are ascertained in accordance with the objective theory of contract. 20 In my view, a reasonable observer, with knowledge of the background facts known to the parties, and with awareness of the communications that led to the contract being entered into, would conclude that the parties to the contract are Invidia and the Applicant. There is no suggestion on the evidence that Invidia ever intended to contract with Sarric absent the Applicant’s personal involvement.
[30] Whilst subsequent communications cannot be looked at as an aid to construction of a contract, they can be looked to as an aid to deciding whether a contract has been entered into at all. 21 The question of whether a contract was entered into by Invidia with the Applicant, or Sarric, is in substance, no different to the question of whether there was a contract entered into with the Applicant at all. That being said, even if one does look at the evidence as to subsequent communications between Invidia (through Mr Sperlinga or Mr Simiane), and the Applicant, they (in my view) do not lead to a different conclusion.
[31] My finding that the parties to the contract are the Applicant and Invidia still leaves open for determination the issue of whether the relationship between the parties was one of employment, or independent contractor and principal.
[32] In Murphy v Chapple 22 (Chapple), the Full Federal Court (Jagot, Banks-Smith and Jackson JJ), on the question as to whether a person is an employee or independent contractor, highlighted that the “essential point” is that “unless some law provides otherwise, parties are free to contract as they see fit”.23
[33] It was also noted in Chapple that many of the provisions of the Fair Work Act 2009 operate against the background of the fundamental doctrines of the common law, with one of those doctrines being the ‘freedom to contract’.
[34] Prior to the High Court’s decision in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd 24 (Personnel Contracting), case law outcomes (arising from employment versus independent contractor disputes) were almost always squarely based upon a multi-factorial approach or analysis to a relationship (by reference to conduct engaged in during the actual performance of a contract). But this approach in many ways impinged upon one party’s legitimate contractual freedoms, and encouraged or enabled the other party to depart or walk-away from promises and agreements otherwise made and accepted on a bona fide basis. The position was not necessarily chaos, but it did ultimately sanction the creation of legal and commercial uncertainty.
[35] Post Personnel Contracting, the focus is now upon the terms of a contract that were in fact agreed, and the inescapable acknowledgement of same. Importantly, whether as a fence or a backstop, this normalisation of focus brings to the fore the direct application and maintenance of traditional tenets such as:
a) a person is bound by his or her own conduct at the time that a contract is entered into;
b) one cannot approbate and reprobate the legal arrangement he or she sought, enacted and took the benefit of;
c) a person is estopped from denying and acting inconsistently with the legal relationship he or she sought, enacted and/or took the benefit of; and
d) a party should be denied relief against a defendant (or opposing party) to the extent that any discretion to be exercised might be dependent upon a departure from the legal position that the party (or person) accepted or agreed to.
[36] To the extent that there has been confusion or misunderstanding, Personnel Contracting confirmed that:
a) contracts, in respect of employment and/or independent contracting, are to be interpreted in the same way that contracts are generally interpreted under the laws of Australia; 25
b) the classification of the relationship that exists between parties, being that of employment or independent contractor and principal, is to be ascertained objectively by reference to the terms of a contract (identifying the rights and obligations of the parties under the contract), and not by reference to questions of fairness or the manner in which subsequent conduct and performance might undercover a ‘reality’; 26 and
c) the common intention of the parties to a contract (as to the type of legal relationship that they intended to create), whilst for objective determination, in the normal course, ought not be retrospectively overridden or otherwise restricted. 27
[37] The foregoing confirmation is hardly an awakening. Rather, it simply consummates a long line of authority consistent with:
a) Blackburn J’s classic and distinguished statement in Smith v Hughes (1871) LR 6 QB 597 (at 607):
“If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.”; and
b) Lord Reid’s straightforward statement in James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 (at 603): 28
“[to avoid the result] that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later".
[38] As Kiefel CJ, and Keane and Edelman JJ state in Personnel Contracting (footnotes omitted):
“[47] … On this approach, the terms of the written contract are only "factors" to be considered along with other circumstances. But no decision of this Court has ever adopted or endorsed such a departure from Chaplin and Narich.” 29
“[52] Prior to Chaplin and Narich, examples abound of this Court focussing only upon the terms of the contract, with any consideration of subsequent conduct of the parties for the purposes only of assessing alterations of their rights such as variations of their agreement. In case after case after case, this Court can be seen to be applying basic, established principles of contract law rather than effecting a silent revolution.” 30
…
“[55] To the extent that it has been supposed that a departure from the long-standing approach predating, but exemplified in, Chaplin and Narich was required by this Court's decisions in Stevens and Hollis, that understanding is also not correct. In neither Stevens nor Hollis did this Court suggest that, where one person has done work for another pursuant to a comprehensive written contract, the court must perform a multifactorial balancing exercise whereby the history of all the dealings between the parties is to be exhaustively reviewed even though no party disputes the validity of the contract.
[56] In Stevens, Mason J said that "it is the totality of the relationship between the parties which must be considered". But this statement was made in the context of a discussion the point of which was to emphasise that the right of one party to control the work of another was "not ... the only relevant factor". It was not an invitation to broaden the inquiry beyond the contractual rights and duties of the parties. Importantly, Stevens was not a case where the parties had committed the terms of their relationship to a written contract. In this respect, Stevens stands in obvious contrast to cases like Chaplin and Narich – and the present case.” 31
[39] In setting out the applicable legal principles to be applied when determining the nature of a legal relationship, Kiefel CJ, and Keane and Edelman JJ, in Personnel Contracting, also stated (footnotes omitted):
“[39] While the "central question" is always whether or not a person is an employee, and while the "own business/employer's business" dichotomy may not be perfect so as to be of universal application for the reason that not all contractors are entrepreneurs, the dichotomy usefully focusses attention upon those aspects of the relationship generally defined by the contract which bear more directly upon whether the putative employee's work was so subordinate to the employer's business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise. In this way, one may discern a more cogent and coherent basis for the time-honoured distinction between a contract of service and a contract for services than merely forming an impressionistic and subjective judgment or engaging in the mechanistic counting of ticks on a multifactorial checklist.” 32
…
“[58] Uncertainty in relation to whether a relationship is one of employment may sometimes be unavoidable. It is the task of the courts to promote certainty with respect to a relationship of such fundamental importance. Especially is this so where the parties have taken legitimate steps to avoid uncertainty in their relationship. The parties' legitimate freedom to agree upon the rights and duties which constitute their relationship should not be misunderstood. It does not extend to attaching a "label" to describe their relationship which is inconsistent with the rights and duties otherwise set forth. To do so would be to elevate their freedom to a power to alter the operation of statute law to suit themselves or, as is more likely, to suit the interests of the party with the greater bargaining power.
[59] Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties' rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute, there is no occasion to seek to determine the character of the parties' relationship by a wide-ranging review of the entire history of the parties' dealings. Such a review is neither necessary nor appropriate because the task of the court is to enforce the parties' rights and obligations, not to form a view as to what a fair adjustment of the parties' rights might require.
[60] In this respect, the principles governing the interpretation of a contract of employment are no different from those that govern the interpretation of contracts generally. The view to the contrary, which has been taken in the United Kingdom, cannot stand with the statements of the law in Chaplin and Narich.
[61] The foregoing should not be taken to suggest that it is not appropriate, in the characterisation of a relationship as one of employment or of principal and independent contractor, to consider "the totality of the relationship between the parties" by reference to the various indicia of employment that have been identified in the authorities. What must be appreciated, however, is that in a case such as the present, for a matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties' contract, and not simply an aspect of how the parties' relationship has come to play out in practice but bearing no necessary connection to the contractual obligations of the parties.” 33
…
“[74] … But this Court in Stevens, and indeed in Zuijs itself, emphasised that it is the right of a person to control the work of the other, rather than the detail of the actual exercise of control, which serves to indicate that a relationship is one of employer and employee.” 34
“[88] The decision in Bunce is of little assistance in this case. The reference by Keene LJ to the "reality" of the situation does not accord with the central importance of the rights and duties established by the parties in their written contract. It suggests that the "reality" of the situation is, in some unexplained way, of a significance that transcends the rights and obligations agreed by the parties. To the extent that this involves an assumption that employment contracts are to be interpreted differently from contracts generally, that assumption is not consistent with the law in Australia. Further, the Court of Appeal's emphasis on the exercise of control is inconsistent with the recognition by this Court that the gravamen of the concept of control lies in the authority to exercise control and not its practical exercise.” 35
[40] Justice Gordon, with whom Steward J agreed, 36 stated:
“[180] In construction of an employment contract it is not necessary to ask whether the purported employee conducts their own business. That is, the inquiry is not to be reduced to a binary choice between employment or own business. The question must always focus on the nature of the relationship created by the contract between the parties.
[181] Asking whether a person is working in their own business may not always be a suitable inquiry for modern working relationships. It may not take very much for a person, be they low-skilled or otherwise, to be carrying on their own business. The reality of modern working arrangements, the gig economy, and the possibility that workers might work in their own business as well as one or more other businesses in the same week, suggest that focusing the analysis on "own business" considerations distracts attention from the relevant analysis – whether the totality of the relationship created by contract between the person and a purported employer is one of employee and employer. The parties to, and the terms of, the contract may show that the purported employee entered into the contract as part of their own business.
[182] Another reason for not asking whether a person is carrying on a business of their own is that that inquiry will ordinarily direct attention to matters which are not recorded in the contract, such as what "the parties said or did after it was made". For instance, in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd, North and Bromberg JJ said that some of the "hallmarks of a business" are conducting a commercial enterprise "as a going concern", the "acquisition and use of both tangible and intangible assets in the pursuit of profit", the "notion of system, repetition and continuity", and "operat[ing] in a business-like way". But, unless those matters are provided for in the contract, they are not relevant and should be put to one side.
[183] The better question to ask is whether, by construction of the terms of the contract, the person is contracted to work in the business or enterprise of the purported employer. That question is focused on the contract, the nature of the relationship disclosed by the contract and, in this context, whether the contract discloses that the person is working in the business of the purported employer. It invites no inquiry into subsequent conduct. A consequence of a negative answer to that alternative question may be that the person is not an employee. Another consequence may be, but does not have to be, that they have their own business. As five judges of this Court said in Hollis v Vabu Pty Ltd, both employees and contractors can work "for the benefit of" their employers and principals respectively, and so that, "by itself", cannot be a sufficient indication that a person is an employee (emphasis added). That does not detract from the fact that where the contract is oral, or partly oral and partly in writing, subsequent conduct may be admissible in specific circumstances for specific purposes – to objectively determine the point at which the contract was formed, the contractual terms that were agreed or whether the contract has been varied or discharged.
[184] This Court has previously cautioned against ascribing too much weight to "labels" used by parties to describe their relationship. The whole of the contract is to be construed including whatever labels the parties have used to describe their relationship, but those labels are not determinative: "parties cannot deem the relationship between themselves to be something it is not". Adopting and adapting what was said by Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ in Bluebottle UK Ltd v Deputy Commissioner of Taxation in relation to a clause of deeds of assignment headed "Equitable and Legal Assignments": the classification adopted by the parties in the contract is not determinative. The classification turns upon the identification of the nature and content of the rights created by the contract and the identity of those parties which enjoyed those rights. The contract can have no greater efficacy than that given by the rights which provided its subject matter.
[185] Two further matters remain to be addressed: rejection of the "multifactorial approach" applied by the Courts below; and the authorities which have considered the employment relationship in the context of vicarious liability.
[186] The primary judge and the Full Court (following Personnel Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers) approached the question of whether Mr McCourt was an employee of Construct for the purposes of the [Fair Work Act 2009] by applying a "multifactorial approach" that had been developed by lower courts following this Court's decisions in Stevens v Brodribb Sawmilling Co Pty Ltd and Hollis. It has been the subject of criticism, including on the basis that it "is somewhat empty" and "does not provide any external test or requirement by which the materiality of the elements may be assessed". The indicia that might be regarded as relevant are unconfined and "[t]here are no consistent rules about the weight that should be given to the different indicia". This creates considerable uncertainty.
[187] Moreover, that multifactorial approach directs attention to subsequent conduct, and potentially to matters which are peculiarly within the knowledge of one party. For reasons explained, this is contrary to principles of contractual interpretation, namely, that recourse may be had to events, circumstances and things external to the contract which are objective, which are known to the parties at the time of contracting and which assist in identifying the purpose or object of the contract and, relatedly, that it is not legitimate to have regard to subsequent conduct to construe a contract. There are good reasons for adhering to those principles. Otherwise, contrary to those principles, consideration of subsequent conduct might in some cases result in the nature of an employment relationship changing over time – on the day after a contract is formed, the parties may be in an employer/employee relationship, but six months or a year later, having regard to the parties' subsequent conduct, their relationship may have changed to one of principal/independent contractor, without any suggestion that there was any variation to the terms of their contractual agreement. Matters such as the degree of control or direction in fact exercised by an alleged employer in relation to the way an alleged employee performs their work, the extent to which an alleged employee provides their own equipment and tools, and whether uniforms are worn may change over the course of an employment relationship. The potential for the legal character of a relationship between two parties to be affected by "unilateral" conduct of one party that may be unknown to the other party (for example, how one party administers their tax affairs; the extent to which an alleged employee operates in a "business-like" manner, with systems and manuals; how significant an alleged employee's investment in capital equipment is; or the extent to which an alleged employee is financially self-reliant) is equally problematic.
[188] The multifactorial approach was applied not merely without any central principle to guide it but also by reference to a roaming inquiry beyond the contract. It allowed consideration of what had happened after the entry into the contract to characterise the nature of "the status or relationship of parties". That is not appropriate. Such an inquiry slips away from – slips over – the critical consideration that the relationship between the parties is the relationship established by contract. Conduct may be looked at to establish the formation, variation or discharge by agreement and the remaking of a contract. But evidence that is relevant to inquiries of those kinds is limited by the purpose of the inquiry. The evidence of what was done is relevant only if and to the extent that it shows or tends to show that a contract was made between the parties or a contract previously made between the parties was varied or discharged.
[189] Following WorkPac, the multifactorial approach applied in previous authorities must be put to one side when characterising a relationship as one of employment under a contract. The approach in WorkPac seeks to avoid the difficulties just identified with the multifactorial approach and, in particular, seeks to avoid "employee" and "employer" becoming legal terms of meaningless reference. It focuses the task of characterisation by reference to established doctrine, rather than inviting an assessment of the relationship between two parties which is "amorphous" and "inevitably productive of inconsistency". The need for judgment is unavoidable, but this approach promotes certainty by providing identified and well-established limits: admissible evidence to identify the formation and the terms of the contract and the established principles of contractual interpretation.
[190] It is necessary to address other aspects of Hollis and Stevens. Unlike the present case, the contract in issue in Hollis was partly oral and partly in writing and the relevant contractual arrangements in Stevens were not "formalized". As explained, when an oral contract or a partly oral, partly written contract is in issue, recourse to conduct may be necessary to identify the point at which the contract was formed and the contractual terms that were agreed. In relation to the latter, "[s]ome terms may be inferred from the evidence of a course of dealing between the parties", "[s]ome terms may be implied by established custom or usage", and "[o]ther terms may satisfy the criterion of being so obvious that they go without saying". But in each of these cases, the question is whether the particular term "is necessary for the reasonable or effective operation of the contract in the circumstances of the case". In this way, even where the contract has not been reduced to a complete written form, the admissible evidence is limited to identifying those matters – formation and terms – objectively and for those limited purposes. Further, it must be recalled that Hollis and Stevens concerned vicarious liability.” 37
[41] In Chambers and O’Brien v Broadway Homes Pty Ltd 38, a Full Bench of the Commission provided this summary of the key propositions in Personnel Contracting:
“(1) When characterising a relationship regulated by a wholly written, comprehensive contract which is not a sham or otherwise ineffective, the question is to be determined solely by reference to the rights and obligations under that contract. It is not permissible to examine or review the performance of the contract or the course of dealings between the parties (Personnel Contracting at [40]-[62], [172]-[178] and [203]);
(2) The subsequent conduct of the parties may be considered to ascertain the existence of variation of contractual terms (Personnel Contracting at [42], [45], [177]-[178], [188]-[190] and [203]);
(3) The multifactorial approach only has relevance in respect of the required assessment of the terms of the contract (Personnel Contracting at [33]-[34], [47], [61], [174], [186]-[189] and [203]);
(4) It is necessary to focus on those aspects of the contractual relationship which bear more directly upon whether the worker’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise (Personnel Contracting at [39]). The question is: whether, by the terms of the contract, the worker is contracted to work in the business or enterprise of the purported employer (Personnel Contracting at [180]-[186] and [203]);
(5) Existence of a contractual right to control the activities of the worker (including how, where and when the work is done) is a major signifier of an employment relationship (Personnel Contracting at [73]-[74], [113]-[114] and [121]); and
(6) The label or characterisation placed on the relationship by the contract is not relevant even as a “tie breaker” (Personnel Contracting at [58], [63]-[66] and [79]), or at least it is not determinative (Personnel Contracting at [127], [184] and [203]).” 39
[42] The principles contained in Personnel Contracting apply where a contract is written, partly written and partly oral, or wholly oral. 40
[43] So as to identify the nature of the relationship between the Applicant and Invidia (i.e. as one of employment, or independent contractor and principal), it is necessary for me to make findings as to the terms of the contract that existed between them. Before doing so, I note that the Applicant, through her counsel at the hearing, no longer pressed that I make a finding that the contract is a sham. 41
[44] The Applicant’s evidence as to the terms of the contract between herself and Invidia, including the context in which those terms arose, is as follows:
a) Sometime in January 2021, prior to the execution of the BSA, the Applicant prepared (drafted) the Employment Agreement (contained at Schedule 11 of the BSA) and provided it to Mr Sperlinga.
b) Mr Sperlinga returned a signed copy of the Employment Agreement to the Applicant via email on 29 January 2021.
c) No one from Invidia requested a counter-signed version of the Employment Agreement from the Applicant, and she “simply kept a copy” of the Employment Agreement (as signed by Mr Sperlinga). The Applicant neither signed the Employment Agreement, nor provided any express acknowledgement of receipt or acceptance of same to Mr Sperlinga or Invidia.
d) The Applicant denies that she ever made any suggestion to Mr Sperlinga that she would provide her services to Invidia (personally, or through Sarric) as a consultant (independent contractor). 42 Rather, the Applicant says that in early May 2021, Mr Sperlinga suggested to the Applicant that she just be a consultant to Invidia and issue it with tax invoices. In support of this, the Applicant gives the following evidence:
“It was also during that discussion that either Mr Sperlinga or I noted that a consulting arrangement would be beneficial for Invidia as it does not have to account for my wages for the purposes of payroll tax. It was on this basis that I thought that Mr Sperlinga's suggestion would really be beneficial to Invidia rather than me, as it would reduce any potential payroll tax or workers compensation insurance payable by Invidia. At the time, I also considered that I would not necessarily be worse off with a consulting arrangement.” 43
e) Despite an email from the Applicant (dated 18 May 2021) to Sarric’s business coach, Mr James King, raising the Applicant’s “scope of work and pay arrangements (either salaried or invoiced consultancy work) & allowable expenses” for proposed discussion with Mr King, the Applicant does not recall ever having a conversation with Mr King about this issue.
f) In or around mid to late May 2021, the Applicant was still dealing with, or attempting to finalise, yet to be completed outstanding tasks and issues in relation to the BSA. On the purported basis of remaining cooperative with Mr Sperlinga, maintaining her business relationship with him, and taking into account her understanding that Mr Sperlinga would prefer her to be a consultant (and not an employee), the Applicant agreed to be engaged as a Consultant to Invidia (through Sarric). 44
g) The Applicant was not required to obtain permission from Invidia (or Mr Sperlinga) to take leave. She was just to advise Mr Sperlinga when she was going on leave (or going to be away). During any such periods of leave or absence, the Applicant would still be entitled to payment in accordance with her yearly consultancy or payment agreement (i.e. based upon $80,000 per annum, plus superannuation, plus GST, to paid (after the issuing of a tax invoice) in monthly pro-rata instalments). 45 The eight invoices issued by Sarric to Invidia for the period May 2021 to December 2021 were for the same monthly amounts of $8,030.00.46
h) The payment of $80,000 per annum for the Applicant’s consultancy services, paid monthly on a pro-rata basis, was to be paid to the Applicant whether she was at work or on leave. In other words, there was no agreement for a sum for employment entitlements, such as accrued and/or paid leave, to be added onto the $80,000 per annum payment. 47
i) Mr Sperlinga left it to the Applicant to determine the title of her role in the Serendipity business. The Applicant chose to call herself (or continue to call herself) Chief Executive Officer (or “CEO”) for the sake of continuity with Serendipity customers. Mr Sperlinga was content for the Applicant to take (maintain) the title of CEO of the Serendipity business.
[45] Mr Single gives evidence that he understood that the Applicant proposed to Invidia that he be hired as a casual employee, but when the Applicant received no response to this request, work he performed was put into invoices from Sarric to Invidia (to be claimed as expenses in the Serendipity business). 48
[46] Mr Sperlinga gave the following evidence as to the terms of the contract (he entered into on behalf of Invidia) with the Applicant:
a) Prior to, and at or around the time of entry into the BSA, Mr Sperlinga and the Applicant had discussions about the Applicant continuing to work in the Serendipity business as an employee. To that end, provision was made in the BSA for the Applicant to enter into a contract of employment with Invidia. 49
b) Mr Sperlinga executed the Employment Agreement contained at Schedule 11 to the BSA, and provided a copy of same to the Applicant. He did not receive in return an executed copy of the Employment Agreement from the Applicant. 50
c) In or about April or May 2021, the Applicant approached Mr Sperlinga and suggested to him that she be a “consultant” to Invidia following the Completion Date (i.e. as opposed to a direct employee of Invidia). During that conversation the Applicant mentioned to Mr Sperlinga that she had discussed the issue with her accountant and that (pursuant to that discussion) it would be preferable for the Applicant to work as an independent contractor (consultant) and bill Invidia for her work in the Serendipity business through Sarric. Mr Sperlinga’s response to the Applicant was that he had no particular preference as to the manner in which the Applicant was to be engaged, and that the ultimate decision was hers to make. 51
d) Subsequent to the foregoing conversation, in May 2021, the Applicant advised Mr Sperlinga that she had made a decision to consult to Invidia, 52 and thereafter issued Invidia (through Sarric) monthly tax invoices.
e) The Applicant was never entered into Invidia’s employee payroll system, nor did she ask for or receive a payslip, accrued leave or other employment entitlements. No superannuation was ever paid by Invidia in respect of the Applicant (i.e. superannuation was a matter for Sarric to remit in respect of the Applicant). 53
f) The Applicant did not use any tools or equipment from Invidia. Rather, she used her own mobile telephone, laptop and vehicle. 54
[47] Mr Simiane gave the following evidence as to his knowledge of, or interactions with, the Applicant in relation to the terms of her contract with Invidia:
a) The Applicant never provided him with an executed copy of the Employment Agreement. 55
b) On 28 April 2021, the Applicant emailed Mr Simiane a copy of “staff info sheets” (being details of Sarric staff being transferred to the employ of Invidia post the Completion Date of the BSA, including for payroll purposes). There was no staff info sheet in respect of the Applicant included in this email. 56
c) On 6 May 2021, Mr Simiane emailed the Applicant (in response to her 28 April 2021 email), requesting (amongst other information), the Applicant’s employee details. In response to that request, by way of email response dated 7 May 2021, the Applicant stated:
“Regarding me (I assume you are referring to me when you say “need your employee details”?), Angelo [Mr Sperlinga] and I were discussing that I might bill you as a consultant rather than be paid as an employee. He and I will discuss further next week.” 57
d) In response, Mr Simiane stated in a reply email:
“Ok Sarah [the Applicant],
We will process payroll on Monday. I will leave you out at this stage.
If you do bill us as a consultant, we can do it monthly if you prefer.” 58
e) In early May 2021, Mr Sperlinga asked Mr Simiane if he had any concerns with the Applicant being engaged as a consultant as opposed to an employee. 59 Mr Simiane had no concerns.
f) At no time did the Applicant provide her employment details to Mr Simiane.
g) Between 31 May 2021 and 31 January 2022, Invidia received tax invoices from Sarric in respect to services or work performed by the Applicant and her husband (Mr Single) in the Serendipity business. 60
h) The Applicant was not provided with a mobile telephone (or phone allowance), laptop, or company vehicle by Invidia. 61
i) The Applicant did not request a payslip, or that payment be made directly to her (as opposed to Sarric). Nor was she listed on the Invidia payroll, or provided with payslips. Invidia did not deduct any income tax from payments made to Sarric pursuant to its tax invoices. 62
j) Invidia did not claim any COVID-19 government support payments in respect of the Applicant, as Invidia did not consider the Applicant to be one of its employees. 63
k) Invidia did not pay superannuation on behalf of the Applicant, nor did the Applicant supply Invidia with her superannuation fund details. 64
l) The Applicant did not apply for leave with Invidia, nor were any leave entitlements paid to her. 65
[48] Whilst it was clearly contemplated by both Sarric (and the Applicant) and Invidia (and Mr Sperlinga) that the Applicant would become an employee of Invidia post the Completion Date under the BSA, any agreement in this regard was never concluded or otherwise made (see paragraphs [20] to [24] of this decision). Nor was any other written contract entered into between the Applicant and Invidia.
[49] The Applicant says that the driving force behind her not being placed on the Invidia payroll, and instead issuing invoices (through Sarric) for work performed by her, arose from Mr Sperlinga’s preference (or apparent preference) for her to be engaged (and paid) as an independent contractor (consultant). The Applicant also says that she acceded to this invoicing arrangement because of her desire not to ‘rock the boat’ whilst outstanding matters under the BSA were being finalised. However, my assessment of the objective evidence in these proceedings does not sit comfortably with the Applicant’s assertions. In this regard:
a) the Applicant says that she did not provide her employment details to Mr Simiane (as requested in his email dated 28 April 2021) because she was focused upon completion of the BSA, was concerned to ensure Sarric’s transferring staff would be paid without delay, and because she was never an employee of Sarric (i.e. she has always been a Director of Sarric). 66 The difficulty with this evidence is that it is wholly unresponsive to, and ignores, the Applicant’s very own reply email (dated 6 May 2021) to Mr Simiane where she states that she was in discussions with Mr Sperlinga about billing Invidia as a consultant. In other words, despite the Applicant not explaining in her evidence the 6 May 2021 email, the readily available inference from that email is that the Applicant was not providing her employment details to Invidia (at that time) because she was still actively considering whether she would be invoicing any work she undertook for Invidia (in the Serendipity business) through Sarric (being some months post the time (January 2021) that Mr Sperlinga had already sent the Applicant the Employment Agreement executed by Invidia); and
b) there is no evidence that Mr Sperlinga had a preference to engage the Applicant as an employee or independent contractor. Mr Sperlinga’s evidence is that he did not care one way or the other. Further, it is unclear why Mr Sperlinga would have a preference for the Applicant to be an independent contractor, so as to avoid or limit payroll tax, in circumstances where the Serendipity business, on the Applicant’s own evidence, is not subject to payroll tax in the first place. 67 Significantly, if Mr Sperlinga had a firm view that the Applicant should be engaged as a consultant, as opposed to an employee, it does not make sense that he would sign the Employment Agreement and deliver it up to the Applicant (in January 2021), or otherwise engage in negotiations (on behalf of Invidia) to include the Employment Agreement in the BSA in the first place.
[50] Putting the foregoing aside, however, the Applicant’s reasons as to why she issued tax invoices through Sarric to Invidia (for work performed by her in the Serendipity business) appear to be of no moment. In other words, even if one might accept from the evidence, which I do not, that the Applicant basically acquiesced to Mr Sperlinga’s preference for her to invoice Invidia as a consultant, that does not mean that the Applicant did not agree to the arrangement, or that she did so under duress. The Applicant’s evidence, at its highest, is that she sought to placate Mr Sperlinga, or otherwise acquiesce to a preference of his, by agreeing to an invoicing arrangement. But the Applicant does not suggest that Mr Sperlinga coerced or otherwise forced her to engage in this invoicing arrangement. Rather, the inescapable conclusion is that irrespective of her reasons for doing so, the Applicant made a choice to engage in (or agree to) the invoicing arrangement as a consultant to Invidia, and Mr Sperlinga (on behalf of Invidia) equally acquiesced to the arrangement, or otherwise agreed for same to occur. Indeed, notwithstanding the Applicant’s evidence that she considered the Employment Agreement to be binding in January 2021 (when she received the executed copy of same from Mr Sperlinga), the Applicant also gives evidence that during her conversation with Mr Sperlinga about becoming a consultant in early May 2021, she took the opportunity to “chew on it and get some advice”.
[51] A further gaping hole in the Applicant’s evidence is her failure to explain, or otherwise provide evidence, as to what happened to the Employment Agreement after she started issuing invoices to Invidia through Sarric. The Applicant’s evidence is replete with references to work she undertook in the Serendipity business, which she says is consistent with tasks specified in the position description to the Employment Agreement (that was never made). 68 Further, the position description that the Applicant relies upon is for the role of “Sales and Marketing Manager” which (on her own evidence) was not the role (or the title of the role) that she undertook in the Serendipity business pre or post Completion Date. Nowhere in the Applicant’s evidence does she explain exactly how the invoicing arrangement through Sarric only transcended upon the terms of payment under the Employment Agreement, but not the remainder of the terms of the Employment Agreement.
[52] On the evidence, I find that it was an agreed term of the contract between the Applicant and Invidia that she issue tax invoices (through Sarric) for work performed by her in the Serendipity business. In other words, the invoicing arrangement that the Applicant entered into (as a term of her contract with Invidia) was one that is inconsistent with an employment relationship. At common law there is nothing wrong, bad or unlawful with such a payment arrangement. Rather, it is wholly consistent with the freedom of persons to contract as they see fit.
[53] In making the foregoing finding, I also find on the evidence before me that the following terms formed part of the contract between the Applicant and Invidia:
a) Sarric was to be paid (for whatever work was performed by the Applicant in the Serendipity business) an annual sum of $80,000 plus GST, plus an amount for superannuation, paid in equal 12 monthly instalments, upon the provision of monthly tax invoices from Sarric;
b) payments to Sarric by Invidia (for work performed by the Applicant in the Serendipity business) were not to include any amount for holiday or sick leave entitlements, nor was any provision made by Invidia for the Applicant in this regard; 69
c) payments to Sarric by Invidia (for work performed by the Applicant in the Serendipity business) were not to deduct any amount in respect of PAYG income taxation; 70
d) Invidia itself was not to withhold or otherwise remit to a superannuation fund any amount in respect of superannuation on behalf of the Applicant;
e) the Applicant was to provide her own tools of the trade (e.g. laptop, mobile telephone and/or car) to enable or assist her in working in the Serendipity business; and
f) whilst working in the Serendipity business the Applicant would hold the title of CEO of Serendipity, being the same title she held in the Serendipity business (as a Director of Sarric) prior to its sale to Invidia.
[54] There will always be degrees of autonomy, direction and control in any contractual relationship. The notion that the mere existence of direction and control in a workplace relationship automatically points towards, or weighs in favour of, the existence of an employment relationship, is to be rejected. The notion that independent contractors travel into the realm of employment merely because their principal gives them instructions or direction as to the performance of their work defies reality and commercial common sense. The person paying for or otherwise bearing the costs of an engagement, inevitably wants a say in the work that gets performed, including the manner in which such work gets performed.
[55] In this case, there are no express contractual terms specifying the how, when and where that the Applicant was to perform her work in the Serendipity business.
[56] I concur with the Respondents’ submissions that directing oneself to the ‘nature of the work’ being performed by a person, by reference to duties, responsibilities or tasks that might, or might not, ordinarily be performed by an employee, is the wrong approach. Freedom to contract at common law contains no such restrictions or limitations. As Steward J stated in Personnel Contracting:
“care should be taken before concluding that even very unskilled or simple activities are not capable of constituting a business. A business can arise from limited activities which are passive in nature and can exist in the absence of any entrepreneurial skill.” 71
[57] The evidence derived from the Applicant’s work diary directs attention to conduct occurring post the date that the contract between the parties was formed. Such evidence is admissible (or limited) to identifying (objectively) the formation and terms of the contract between the parties. In other words, for present purposes, what were the terms of the contract concerning the manner in which the Applicant would perform work under the contract (the how, when and where), and to what extent was that work subject to a right of direction and/or control of Invidia.
[58] The Applicant submits that she was (at nearly all times) subject to Invidia’s “extensive” control in the performance of her work (in the Serendipity business). 72 However, the substance of her evidence in this regard, including by reference to her work diary,73 travels no further than having dealings with Mr Fillipone (joint Director of Invidia up to 4 February 2022) around sales and logistics, liaising with Mr Simiane and Mr Sperling over day-to-day issues in the running the Serendipity business (or otherwise keeping them informed generally), and sometimes obtaining authorisation from Mr Sperlinga and/or Mr Simiane to sign contracts of behalf of Invidia.74
[59] Mr Sperlinga gave the following evidence, which was not challenged during his cross-examination, as to the manner in which the Applicant performed her work in the Serendipity business:
“Ms Mandelson substantially determined the work that she performed from time to time. While we had some discussions about her work and visited one or two clients together, she ordinarily decided upon the work that she performed, how she performed that work, when she performed that work and where she performed that work. She was not directly answerable to anyone within Invidia for the work that she performed.
Ms Mandelson determined her own working hours. Invidia did not monitor Ms Mandelson's hours, nor did it direct her to work particular hours or control the hours that she worked. I did not know at the time, nor do I know now, when Ms Mandelson performed her work or how long it actually took her to do so. For instance, I called her from time to time and she said to me that she was at her farm, rather than the company’s premises.” 75
[60] Mr Simiane gave the following evidence, which was not challenged during his cross-examination, as to the manner in which the Applicant performed her work in the Serendipity business:
“23. Ms Mandelson's role with Invidia was-substantially to bring in sales. I did not have any specific discussions with her about how she should do so, nor about sales performance. I do not know of any directions that she was given in order to increase sales, nor any directions that she was given about her hours, place, regularity or type of work. Ms Mandelson attended work when she chose to do so. During 2021, she spent a substantial period of time at her farm, away from work. Even during COVlD-19 lockdowns, the factory was still operating, but Ms Mandelson did not attend for multiple months.
…
27. Ms Mandelson did not request leave and Invidia did not provide her with any leave
entitlements. The topic of leave was never discussed. Until January 2022, shortly before she filed this application, she did not seek approval or provide medical certificates when she did not attend work, despite not attending work on many occasions during 2021.” 76
…
“5. I was unaware that Ms Mandelson purportedly kept a work diary until approximately 15 minutes before the hearing of the jurisdictional objection on 16 June 2022, when I was informed that she was seeking to rely upon a copy of it in this proceeding.
6. I have reviewed the work diary at pages 1 to 78 of the annexure to the Third Mandelson statement. Assuming that Ms Mandelson did perform the work referred to in the work diary, I was far more often than not unaware that she was doing so. While I knew that she was performing some work for Invidia’s benefit, I did not direct her to perform that work, nor did I direct when, where or how she performed the work.
7. Ms Mandelson did not report to me the work that she was performing. Indeed, prior to reviewing the work diary, I was unaware that she had apparently undertaken the vast
majority of the tasks referred to in the diary.
8. I refer to paragraph 16 of the Third Mandelson statement. The majority of interaction
between Ms Mandelson and me from 1 May 2021 to 1 February 2022 related to outstanding issues regarding Invidia’s purchase of the Serendipity Ice Cream business from Sarric, rather than the performance of Ms Mandelson’s work or “daily operation matters”.
9. There are a multitude of references in Ms Mandelson’s diary to work that she performed for entities other than Invidia, including Sarric. By way of a few examples only, those references include (but are not limited to) the following entries in May:
(a) 18 May 2021 (p 6) – “Analyse 5L sales 2020” (Serendipity was owned by Sarric, not Invidia, at that time.)
(b) 24 May 2021 (p 8) – “Enter invoices to Sarric MYOB file”.
(c) 25 May 2021 (p 8) – “Icare re cancelled policy / actual wages declarations”.
(d) 26 May 2021 (p 9) – “Pay ATO for Q3 BAS” (This relates to the period prior to completion.)
(e) 31 May 2021 (p 11) – “Email statements to customers from Sarric”
10. Ms Mandelson’s notes of non-Invidia work continues throughout the diary. For instance, on 29 June 2021 (p 17), she diarised time spent invoicing Invidia for Mr Single’s deliveries, which refers to an invoice issued by Sarric. In the interests of brevity, I have not noted all of the non-Invidia related entries in May, nor in subsequent months. My best estimate is that, on average, Ms Mandelson diarised Sarric or other non-Invidia work on every second or third day in the diary.
…
12. I refer to paragraph 31 of the Third Mandelson statement. Until January 2022, Invidia did not receive medical certificates or any notification from Ms Mandelson for the days on which she noted in her diary that she was on leave, unwell, stopped work due to illness or was otherwise not working. For instance, on 27 May 2021 (p 10), she diarised that she went home unwell at 4pm. On 21 June 2021 (p 15), she diarised that she was on leave. I was not made aware of those matters at the time, nor to my knowledge were any other Invidia representatives.” 77
[61] The Respondents make the following submissions in relation to the manner in which the Applicant performed her work in the Serendipity business (by reference to the Applicant’s work diary) (footnotes omitted):
“10. Ms Mandelson relies heavily upon her recently produced “work diary” as support for her assertion that she was employed by Invidia. However, such support cannot fairly be derived from the diary. The diary is equally, if not more, suggestive of the fact that Ms Mandelson performed her work as an independent contractor.
11. Ms Mandelson makes two submissions in reliance upon the work diary. First, she asserts that there are “extensive entries” showing that “she reported directly to Mr Simiane”, “contradicting the suggestion that she “didn’t report directly to anyone at Invidia””. That submission misrepresents the evidence. Ms Mandelson’s evidence is that she would “often liaise” with Mr Simiane “with respect to daily operational matters”. Liaising with a person in relation to operational matters is entirely different in character to having an obligation to report to that person.
12. In any event, Ms Mandelson’s evidence refers to sixteen dates on which she liaised with Mr Simiane between 1 May 2021 and 1 February 2022. Sixteen occasions in nine months is far from “extensive”. Of those sixteen occasions, only one occurred between 25 August 2021 and 1 February 2022. Accordingly, the assertion that Ms Mandelson reported to Mr Simiane, and that she did so extensively, is not made out on her own evidence. It is also categorically denied by Mr Simiane.
13. Secondly, Ms Mandelson submits that the nature of her work was not of the type ordinarily given to an independent contractor. That is nothing more than a speculative assertion absent any relevant evidence. There was no prohibition whatsoever upon the parties agreeing that Ms Mandelson would provide services of the type that she provided and that she would do so as an independent contractor. Those services were not limited to only being performed by employees.
14. The highest that the work diary takes Ms Mandelson’s case is that she performed work for the benefit of Invidia. That has never been denied by the Respondents. However, what the work diary clearly demonstrates is that:
(a) Ms Mandelson was entirely autonomous in performing that work;
(b) Ms Mandelson had no relevant reporting obligations;
(c) Ms Mandelson’s working hours were irregular from day to day, week to week and month to month;
(d) Ms Mandelson did not request or report her leave days;
(e) Ms Mandelson performed a substantial amount of work for entities other than Invidia, particularly Sarric; and
(f) Ms Mandelson considered her relationship with Invidia to be a “consultancy”.” 78
[62] On the objective evidence before me, I concur with and make findings consistent with the foregoing submissions of the Respondent. It follows from these findings that the evidence does not support the Applicant’s contention that the manner in which she performed her work in the Serendipity business (the how, when and where) was subject to a contractual term (or terms) providing for a right of direction or control by Invidia (through Mr Sperlinga or Mr Simiane). Yes, the Applicant needed or was required (from time to time) to liaise and confer with Mr Sperlinga and Mr Simiane as to the overall running and management of the Serendipity business or enterprise, including as to operational requirements and commercial contractual agreements. In some cases this may have extended to obtaining their agreement or approval. But these needs or requirements as to conferral, liaison, agreement and approval are not elevated, on the evidence before me, to the work performed by the Applicant being subject to a right of direction and/or control by Invidia. Rather, I find that it was a term of the contract between the Applicant and Invidia that she be engaged to be the face of, and manage, the Serendipity business post the BSA Completion Date. 79 In fulfilling this term of the contract, her skills, experience and expertise in previously running the Serendipity business (as Sarric’s Director) were to be utilised ‘under her own steam’ (i.e. as opposed to her being under Invidia’s direction and control).80
[63] Whilst it was clearly the intention of the Applicant in selling the Serendipity business to Invidia, and prior to entry into the BSA, that any on-going role she would have in the business would be limited to the things she actually enjoyed (finding new customers, and product and brand development), the reality of the circumstances, given the manner in which the sale of the business was structured (i.e. deferred purchase price based upon subsequent business turnover, Loan Deed, yet to be agreed stock values, and Business Premises Lease), ultimately became quite different immediately post the BSA Completion Date (i.e. being the time that the contract between the Applicant and Invidia was entered into). In other words, my view of the facts and objective evidence (known to both parties at the time that the contract was entered into), including by reference to the terms of the BSA, is that the Applicant’s interest in the Serendipity business travelled well beyond that of an employee on salary. The Applicant’s own evidence not only confirms this, but provides important context. In this regard, in pointing out that there was an understanding between Mr Sperlinga and herself that she would remain working in the Serendipity business for around two years post the Completion Date, she states that “this period was necessary so that I can assist Invidia to meet the requisite turnover amounts required to entitle Sarric to be paid the Deferred Purchase Price”. 81
[64] The evidence discloses that the Applicant’s interests in the Serendipity business concerned not just the work she performed in the business for Invidia, but the interests of Sarric under the BSA and the Loan Deed, and those of Mr Single and herself under Business Premises Lease. 82 In performing her work in the Serendipity business for Invidia post the BSA Completion Date, the Applicant was also working in the Serendipity business to ensure that its business turnover would yield the highest possible deferred purchase price to Sarric, that the terms of the BSA were being complied with by Invidia (for the benefit of Sarric), and that Sarric’s obligations under the BSA were being adhered to and fulfilled (again, so as to ensure that Sarric received what it was entitled to under the BSA). Tying these ends together, from a whole of picture or totality perspective, the contractual relationship between the Applicant and Invidia in this case was not one in which the Applicant’s work in the Serendipity business was subordinate to Invidia, or subject to a right to control by Invidia (as to the manner in which the Applicant performed her work in the Serendipity business). The Applicant’s own evidence is that she was either simultaneously, interchangeably, or in parallel, directly or indirectly, working for both Invidia and Sarric in the Serendipity business. Whether that arrangement was sanctioned or unsanctioned by Invidia is not to the point. Rather, it identifies that it was the Applicant herself who had the right to control the how, when, where, and for who, that she performed her work in the Serendipity business, and the manner in which that work was to be approached and ultimately performed or undertaken.
[65] In some decisions post Personnel Contracting, decision-makers appear keen to emphasise that ‘labels’ (or the manner in which parties have chosen to characterise their relationship or parts of their relationship) are not relevant. I reject such a blanket approach. It is not consistent with Personnel Contracting. 83
[66] Labels may not be determinative, but they can be relevant. They ought not be ignored, or simply said to be neither here nor there. They form part of the factual matrix to be considered (i.e. just as one might consider the job title (or label) that parties have used to identify an employee’s role). Importantly, labels can be very relevant when assessing witness credibility, including in respect of questions going to approbation and reprobation. To that end, I note the summary of evidence by Mr Sperlinga, as to the use of the term “consultancy” by the Applicant:
“21. Between May 2021 and February 2022, there was a significant amount of correspondence with Ms Mandelson which referred to her "consultancy" work. By way of example:
(a) As noted above, on 18 May 2021, Ms Mandelson sent an email to Mr King and Mr Single with the subject "for comment", comprising a proposed note to Richard Simiane and me in which she stated that she needed to discuss her "scope of work and pay arrangements (either salaried or invoiced consultancy work) & allowable expenses". A copy of that email is at pages 102 to 103 of the Annexure,
(b) On 26 August 2021, Ms Mandelson sent an email to me which I responded to later that day by inserting red text referring to her "normal consultancy claim". A copy of that email is at page 144 of the Annexure.
(c) On 1 September 2021, Ms Mandelson sent an email to her accountants at Altus Financial which referred to her "consultancy bill", a copy of which is at page 123 of the Annexure.
(d) As noted above, Ms Mandelson's work was described as "consultancy" in the 1 December 2021 invoice from Sarric, a copy of which is at pages 114 to 115 of the Annexure.
(e) On 23 December 2021, Ms Mandelson sent an email to me with the subject "Enough!", a copy of which is at page 146 of the Annexure. The email referred to her "consultancy invoices" and "agreed consultancy".
(f) On 1 January 2022, Ms Mandelson sent an email to Mr Simiane and me in which she referred to invoices for "rent, consultancy, labor", a copy of which is at page 140 of the Annexure.
(g) On 1 February 2022, I sent an email to Ms Mandelson with the subject "RE: Update of monies received". The email referred on two occasions to her "consultancy". A copy of that email is at page 147 of the Annexure.” 84
[67] The fact that the Applicant repeatedly used the term “consultancy” in her communications during the time that the contract was being performed obviously does not change the nature and content of the parties’ relevant rights and obligations under the contract, but it does awkwardly rub up against the Applicant’s assertions in her evidence that there was a common intention or understanding (at all material times, including at the time that the contract was entered into) by not only herself, but also Mr Sperlinga and Mr Simiane, that she was an employee of Invidia (working under the Employment Agreement). To the extent that there might be any suggestion on the Applicant’s case that there was a common intention (or understanding) at the time that the contract was entered into (between the Applicant and Invidia), that the Applicant’s relationship with Invidia was one of employment, 85 the evidence says otherwise.86
Other matters
[68] The Applicant raised two concerns as to the manner in which the Respondent conducted its case in these proceedings.
[69] Firstly, the Applicant says that the Respondent is asking the Commission to draw adverse inferences from documents, and make findings about inconsistencies in the Applicant’s evidence, in circumstances where the Respondent made the forensic decision not to cross-examine the Applicant and squarely put relevant contentions to her. In these circumstances, the Applicant says that it would be wrong, or a denial of procedural fairness, for me to make findings or conclusions concerning such adverse inferences.
[70] The application of the rule in Browne v Dunn 87, was restated by the High Court in MWJ v The Queen88, as follows:
“The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witnesses credit.” 89
[71] The determination as to whether this rule applies can be affected by a number of matters. 90 Further, the consequences of a failure to apply the rule need to be considered issue by issue in the context of the overall nature and course of the relevant proceedings. For example, there may be no necessity to comply with the rule where notice of a relevant contention or imputation arises elsewhere and a witness (through the filing of written evidence) has had the opportunity to engage with same. Further, a party’s failure to cross-examine a witness does not mean that a decision-maker needs to automatically accept such evidence.
[72] In this case, the Applicant’s core complaint appears to be that the Respondent has asked me to infer that withdrawals made from Sarric’s bank account represent income payments to the Applicant. 91 Given that I have found it unnecessary to make findings about this issue, the matter requires no further consideration.
[73] Secondly, the Applicant highlights that many of the sentences set out in the witness statements of Mr Sperlinga and Mr Simiane are identical, or almost identical, absent any explanation for the consistency. The Applicant submits that whilst many of the issues to which consistency arises involve formal or non-contentious matters, that is not the case with all issues (specifically, the degree of control exercised by Invidia in respect of the work performed by the Applicant). Compounding this concern, says the Applicant, is the failure by the Respondent to cross-examine the Applicant in relation to the contest on the evidence as to ‘control’.
[74] Both Mr Sperlinga and Mr Simiane were cross-examined as to consistencies between their witness statements. Both denied any collusion, or having access to the others witness statement (in draft or final form) prior to or at the time that they made their statement. I accept their denials, and note that beyond the consistencies themselves, there is no evidence of any witness collusion.
[75] As to the Applicant’s submission that the concerns as to consistency in the witness statements of Mr Sperlinga and Mr Simiane are compounded by the fact that the Applicant was not cross-examined in relation to the contest on the evidence as to ‘control’, the point is of no moment. Despite both Mr Sperlinga and Mr Simiane being cross-examined, neither was asked any questions as to their purported control over the manner in which, and the time at which, the Applicant performed her work in the Serendipity business. In other words, on the issue of control, I am left to assess the evidence filed by each party wholly untested by way of cross-examination.
[76] Finally, I note that much of the cross-examination of Mr Sperlinga and Mr Simiane concerned whether Sarric’s invoices (in relation to work performed by the Applicant) had or had not been paid, or had been offset against other payments received by Sarric from the Serendipity business. The fact that Sarric’s invoices were or were not paid is not a relevant consideration in the proceedings before me. The non-payment by Invidia of Sarric’s invoices is not something that weighs for or against any finding as to the identification of the relationship between the parties. Rather, it concerns an alleged breach of contract, which is a matter for another forum.
Conclusion and disposition of proceedings
[77] In this decision I have made findings as to the terms of the contract between the Applicant and Invidia, and the nature and content of the rights created under same (see paragraphs [8]-[19], [23]-[24], [29]-[31], [52]-[53], [62]-[64], and [67] of this decision).
[78] In Personnel Contracting:
a) Kiefel CJ, and Keane and Edelman JJ state that “the ‘central question’ is always whether or not a person is an employee, and while the "own business/employer's business" dichotomy may not be perfect so as to be of universal application for the reason that not all contractors are entrepreneurs, the dichotomy usefully focusses attention upon those aspects of the relationship generally defined by the contract which bear more directly upon whether the putative employee's work was so subordinate to the employer's business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise”; 92 and
b) Gordon J identifies that the question as to whether a relationship is one of employment, or independent contractor and principal, “is focused on the contract, the nature of the relationship disclosed by the contract and, in this context, whether the contract discloses that the person is working in the business of the purported employer.” 93
[79] Whether I apply an analysis of the relationship between the Applicant and Invidia under the terms of the contract (that I have found to exist) between them by reference to a multifactorial test 94, or by reference to the questions or tests posed in Personnel Contracting95, I am unable to conclude as a matter of law that the relationship created by the contract between the Applicant and Invidia is one of employee and employer.
[80] None of the contractual terms between the Applicant and Invidia point towards the existence of an employment relationship. The context by which the contractual terms between the parties came to be agreed is the sale of a business, being a business (prior to the sale) that the Applicant founded, controlled and operated through a corporation of which she was the sole Director. Whilst the parties initially agreed to the Applicant continuing to work in the business (post its sale) as an employee, that arrangement was abandoned by the parties (before it began) in favour of contractual terms that bear all the hallmarks of an independent contractor and principal relationship. Pursuant to that relationship, under the contractual terms that were agreed, the Applicant was engaged as a consultant to essentially run the Serendipity business. There is no evidence of a contractual term that was agreed between the parties that gave Invidia a right to control the work of the Applicant in the Serendipity business. Indeed, the evidence is that in undertaking her work in the Serendipity business the Applicant was also able (at the same time) to pursue (directly and/or indirectly) the interests of herself, her husband, and Sarric under the BSA (including the Loan Deed) and the Business Premises Lease.
[81] In my view, when considered on an overall basis (or in totality), the Applicant’s work for Invidia in the Serendipity business, and the work she was undertaking or the interests she was pursuing for herself, her husband, and Sarric in the Serendipity business, reflect that the Applicant was working in her own business or an independent enterprise, as opposed to working as an employee of Invidia (on a subordinate basis).
[82] In the ultimate sense, I find that the necessary and obvious consequence of the totality of the findings that I have made in this decision is that the relationship between the Applicant and Invidia was one of independent contractor and principal.
[83] The Applicant does not satisfy s.365(1)(a) of the Act, which is a jurisdictional prerequisite to the making of her Application. I therefore dismiss the Application. An order to this effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Mr Miles Foran, of Counsel, appeared with permission for the Applicant, instructed by Ms Lesly Cho, Practice Leader, of LegalVision lawyers.
Mr Brad Barr, of Counsel, appeared with permission for the Respondent, instructed by Mr Nicholas Lambros, Solicitor, of Tasiopoulos Lambros and Co lawyers.
Printed by authority of the Commonwealth Government Printer
<PR749467>
1 The contraventions of Part 3-1 of the Fair Work Act 2009 (Act) fall under ss. 340, 351, 352 and 357. The Applicant also alleges contraventions of Part 2-2 and s.323 of the Act, and purported breaches of the Superannuation Guarantee (Administration) Act 1992.
2 See s.550 of the Act.
3 Item 2.2 of the Form F8A Application filed 3 March 2022; Respondents’ Submissions, 24 May 2022.
4 Exhibit R1.
5 Exhibit R2.
6 Exhibit R3.
7 Exhibit R4.
8 Exhibit A1.
9 Exhibit A2.
10 Exhibit A3.
11 Exhibit A4. The Applicant also tendered two bundles of documents. Exhibit A5 (Applicant’s Tender Bundle 1), and Exhibit A6 (Applicant’s Tender Bundle 2).
12 The original Completion Date was 1 April 2021, but this was delayed by one month.
13 A copy of the Loan Deed is found at Schedule 10 to the BSA.
14 Neither party in these proceedings challenges the validity, enforceability, scope or application of the BSA.
15 These are the same requirements as the Loan Deed, which was duly executed and delivered up by each of the respective parties to the BSA.
16 See clause 20.11 of the BSA.
17 The test is one of “inevitable inference from the conduct of the parties”: Spotwire Pty Ltd v Visa International Service Association (No 2) [2004] FCA 571, at [51].
18 Transcript, PN798-PN802.
19 Transcript, PN1170-PN1177.
20 Commissioner of Taxation v Bogiatto [2020] FCA 1139, at [114]; Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; 69 NSWLR 603, at [262]-[266].
21 Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153, at 163-164, [25]-[26]; Magill v National Australia Bank Ltd [2001] NSWCA 221, at [50]-[53] per Ipp AJA (with whom Meagher and Heydon JJA agreed); Walker v Andrew [2002] NSWCA 214, at [39]; Independent Timber Importers v Mercantile Mutual Insurance [2002] NSWCA 304, at [17]; El-Mir v Risk [2005] NSWCA 215, at [66].
22 [2022] FCAFC 165.
23 Ibid, at [31]. See also at [40].
24 [2022] HCA 1; (2022) 398 ALR 404.
25 Ibid, at [60].
26 Ibid, at [59] and [88].
27 [2022] HCA 1; (2022) 398 ALR 404, at [58] and [176] (citing Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471, at 483-484, [34]-[35]). See also Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, at 178, [38]; and Murphy v Chapple [2022] FCAFC 165, at [54]-[55].
28 As cited and referred to by Gordon J in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404, at [176] (footnote [291]).
29 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404 at [47], citing Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597, at 600; and Australian Mutual Provident Society v Chaplin (1978) 52 ALJR 407, at 409-410. The exception being where subsequent conduct can be shown to vary the terms of a contract: [2022] HCA 1; (2022) 398 ALR 404, at [46], citing Connelly v Wells (1994) 55 IR 73, at 74.
30 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404, at [52].
31 Ibid, at [55]-[56].
32 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404, at [39].
33 Ibid, at [58]-[61].
34 Ibid, at [74].
35 Ibid, at [88].
36 Ibid, at [203]. See also ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, at [95].
37 Ibid, per Gordon J, at [180]-[191] (see also Gordon J, at [174]-[177]).
39 Ibid, at [74]. See also Azad v Hammond Park Family Practice Pty Ltd T/A Jupiter Health Warnbro [2022] FWCFB 66, at [14] (endorsing Waring v Hage Retail Group Pty Ltd [2022] FWC 540, per Anderson DP, at [52]-[56].
40 Secretary, Attorney-General's Department v O'Dwyer [2022] FCA 1183, per Goodman J, at [29]. Note also Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1, at [177], [183], [188], citing Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221, at 243-244, Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93, at 112-113; Australian Mutual Provident Society v Chaplin (1978) 52 ALJR 407 at 411; 18 ALR 385, at 392-393.
41 Transcript, PN1183-PN1187.
42 Exhibit A1, Mandelson Statement, 8 June 2022, at [22]-[23], [33], [34], [37]-[39], [41], [87] and [92].
43 Exhibit A1, Mandelson Statement, 8 June 2022, at [34].
44 Exhibit A1, Mandelson Statement, 8 June 2022, at [33]-[34], [87].
45 Exhibit A1, Mandelson Statement, 8 June 2022, at [41]-[43].
46 The amount of $8,030 multiplied by 12 equals $96,360 [$80,000 (base salary) + $7,600 (9.5% superannuation payment) + $8,760 (10% GST) = $96,360/12 = $8,030]. Noting the 35% discount to the September 2021 invoice due to the impacts of the COVID-19 pandemic and Sydney lockdowns. Exhibit A1, Mandelson Statement, 8 June 2022, at [44]-[45], [103].
47 Exhibit A1, Mandelson Statement, 8 June 2022, at [41].
48 Exhibit A4, Single Statement, 8 June 2022, at [18]-[19].
49 Exhibit R1, Sperlinga Statement, 23 May 202, at [7]-[10].
50 Ibid.
51 Ibid, at [11]-[12].
52 Ibid, at [14]. This evidence was not challenged by the Applicant’s counsel during Mr Sperlinga’s cross-examination.
53 Ibid, at [26].
54 Ibid, at [28].
55 Exhibit R2, Simiane Statement, 23 May 202, at [7] and [13(a)].
56 Exhibit R2, Simiane Statement, 23 May 202, at [8]-[9]. I note that there is a reference in the staff info sheet to an “R Mandelson”. It appears that this is the Applicant’s brother: Transcript, PN825.
57 Ibid.
58 Ibid.
59 Ibid, at [10]. This evidence was not challenged by the Applicant’s counsel during Mr Simiane’s cross-examination.
60 Ibid, at [14].
61 Ibid, at [13](h)], [13(i)], and [28].
62 Ibid, at [16], [18], [24]-[25].
63 Ibid, at [19].
64 Ibid, at [26].
65 Ibid, at [27].
66 Exhibit A2, Applicant Statement, 1 July 2022, at [28].
67 See email response from the Applicant to Mr Simiane on 27 April 2021 (10.33AM), titled “Re: Finalising transition”.
68 Exhibit A1, Applicant Statement, 8 June 2022, at [47]-[53] and [57]; Exhibit A2, Applicant Statement, 1 July 2022, at [13]-[21], [25].
69 I note that the Applicant removed charges or sums in respect of leave entitlements from Sarric’s 31 May 2021 invoice, and did not thereafter seek or otherwise pursue or include leave entitlements in any subsequent invoices issued by Sarric to Invidia.
70 I note that the Applicant was not entered onto the Invidia payroll system as an employee.
71 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404, at [204].
72 Exhibit A1, Applicant Statement, 8 June 2022, at [36], [47]-[58].
73 Being the parts of the Applicant’s work diary that were specifically pointed out to me in the evidence or submissions of the parties.
74 Exhibit A2, Applicant Statement, 1 July 2022, at [13]-[21], [25]. See also Exhibit A1, Applicant Statement, 8 June 2022, at [47]-[53] and [57].
75 Exhibit R1, Sperlinga Statement, 23 May 2022, at [24]-[25].
76 Exhibit R2, Simiane Statement, 23 May 2022, at [23] and [27].
77 Exhibit R3, Simiane Statement, 15 July 2022, at [5]-[12].
78 Respondent’s Further Outline of Submissions in Reply, 15 July 2022, at [10]-[14], footnotes omitted. See also Exhibit R2, Simiane Statement, 23 May 2022, at [23] and [27].
79 Note email from Mr Sperlinga to the Applicant on 31 August 2020 (6.14pm) regarding Mr Sperlinga’s proposal (or views), at that time, as to the Applicant’s proposed “key job responsibilities”.
80 Exhibit A1, Applicant Statement, 8 June 2022, at [36] (“higher managerial duties”), [49]-[53] and [57]-[58].
81 Exhibit A1, Applicant Statement, 8 June 2022, at [17].
82 Ibid, See also at [20], [25], [32], [36]-[37], [47(f)], [59], and [61].
83 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404, at [66] and [184].
84 Exhibit R1, Sperlinga Statement, 23 May 2022, at [21].
85 See, for example, Exhibit A1, Applicant Statement, 8 June 2022, at [33], and Exhibit A2, Applicant’s Statement, 1 July 2022, at [27]-[28].
86 Note Murphy v Chapple [2022] FCAFC 165, at [54]-[55].
87 (1894) 6 R 67, at 70-71.
88 (2005) 80 ALJR 329; [205] HCA 74.
89 Ibid, per Gummow, Kirby and Callinan JJ, at [38].
90 See, for example, Khamis v The Queen [2010] NSWCCA 179; L v The Queen [2011] NSWCCA 66.
91 Transcript, PN1102-PN1104.
92 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404, at [39].
93 Ibid, at [183].
94 See Abdalla v Viewdaze Pty Ltd t/a Malta Travel (2003) 122 IR 215, at [34] (including questions of control (i.e. the how, where and when work is performed)). I note that no one particular factor under the multifactorial test is decisive. For example, the fact that a right to control may be found to exist does not mean that the relationship overall will be determined to be one of employment.
95 See Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404, at [39], [61], [74], [88], and [183].