1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Andrew Forkes
v
Amristar Solutions Pty Ltd
(U2016/2674)
COMMISSIONER WILSON MELBOURNE, 22 AUGUST 2016
Application for relief from unfair dismissal - jurisdictional objection - high income threshold
- whether Applicant an employee or independent contractor - objection upheld - application
dismissed.
[1] This decision deals with the question of whether Andrew Forkes is entitled to make an
application for unfair dismissal against Amristar Solutions Pty Ltd. The issues in contention
include whether Mr Forkes was employed by Amristar Solutions or whether he was engaged
as an independent contractor through a private company of his and, in the event that he was an
employee, whether he earned more than the high income threshold provided for in the Fair
Work Act 2009 (the Act).
[2] As to whether or not Mr Forkes was an employee of Amristar Solutions, the evidence
is that he performed work for the Respondent in some capacity from 5 August 2013 until 16
May 2016.
[3] The evidence also includes that Mr Forkes, or his company, did not undertake work
for the Respondent within Australia, but rather that the work in its entirety was performed
from the United Kingdom. Despite that situation no dispute has been put forward by the
Respondent that the Act is incapable of applying to Mr Forkes, such as for reason that
employment, if it were to be found, was not as a national system employee as that term is
defined within s.13 of the Act.
[4] Within this decision, I find that if Mr Forkes was an employee, he was not covered by
a modern award or enterprise agreement and that his annual rate of earnings was greater than
the high income threshold. Accordingly, to the extent that Mr Forkes’ relationship with
Amristar Solutions was that of a contract of employment, he was not at the time protected
from unfair dismissal.
[5] Because of that finding, it is not necessary for me to consider and resolve the question
of whether the relationship between Mr Forkes and Amristar Solutions was a contract of
employment.
Legislation
[2016] FWC 5913
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 5913
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[6] A person is protected from unfair dismissal in the circumstances set out in s.382 of the
Act;
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment
with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other
amounts (if any) worked out in relation to the person in accordance with
the regulations, is less than the high income threshold.
[7] Section 380 provides that, for the purposes of Part 3-2 of the Act, dealing with unfair
dismissal, an employee means a national system employee, which term is defined by s.13 to
mean an individual employed by a national system employer, with the meaning of that term
elaborated on in s.14 of the Act.
Background
[8] The evidence includes that Mr Forkes is an information technology professional with
extensive experience in the field over a period of about 30 years. That work has been
undertaken by him principally, but not exclusively, within the United Kingdom. In 1989 he
obtained a British Higher National Certificate, the equivalent of an Australian vocational
degree qualification. In the course of his career he has worked for significant corporate
organisations in roles such as software engineer, software developer, software designer,
object-oriented architect and Java architect. While he has worked as an employee, he has also
worked as an independent contractor. Some years ago, he established his own company for
that purpose, by the name of Familiar Ltd.
[9] Amristar Solutions is a Perth based company which develops and deploys software
products for its customers and especially in the field of geographic information systems. One
such product is a line known as Mapworks.
[10] A former Chief Executive Officer of Amristar Solutions, Gary Macbeth, offered an
engagement to Mr Forkes in 2013 to perform work for the company, which offer was taken up
by Mr Forkes. The material before the Commission includes several versions of a
Consultancy Agreement, which on its face is a contract for services between Amristar
Solutions and Familiar Ltd. While there are some differences in the evidence and submissions
between the parties about whether consideration was given to whether the relationship
between the two would be that of an employment relationship, the evidence resolves in favour
[2016] FWC 5913
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of a finding that the parties proceeded on the basis that the Consultancy Agreement, as may
have been mutually amended, governed their relationship. In particular, invoices were
periodically issued by Familiar Ltd to Amristar Solutions and were then paid by the latter on
the basis the claims were supplier invoices.
[11] The initial Consultancy Agreement referred to the consideration between the two
being on the basis of AUD $5,000.00 per month. That amount was subsequently increased as
a result of an agreement to do so between the parties. At least for the period for which
invoices have been provided to the Commission, which is after June 2015, the monthly
arrangement was significantly greater than $5,000.00 and the regularly invoiced amount was
GBP £6554.16 (while noting that it was not always that amount).
[12] The Scope of Services which were set out in the initial Consultancy Agreement, dated
5 August 2013, is in the following terms;
“1 SCOPE OF SERVICES
The Consultant will be engaged to provide Andrew Forkes as the Approved Personnel,
to act as Product Owner & Team Leader for products/projects as directed by company
management. This engagement is subject to the Approved Personnel signing a deed
regarding confidential information and intellectual property as approved by the
Principal and provided separately to this Agreement.
As Product Owner/Team Leader, he Approved Personnel's scope of responsibilities
includes:
As Product Owner, you will guide a team that is charged with a product line
contribution as a business unit; responsible for all business and technical deliverables
to deliver product to market.
Lead the end-to-end delivery of product to market, with responsibility for ensuring
effective development and go-to-market functions for assigned products.
Coordinate effort across the various business functions within the company to
deliver and support products. (including Development, Operations, Marketing,
Sales)
As Team Leader in the Development function, manage the technical product
development stage of assigned products.
Drive the use of Agile development methodology within assigned projects.
Provide appropriate mentoring to development staff as necessary to ensure effective
adoption and execution of Agile.”1
[13] The same Scope of Services then appears in another version of the Consultancy
Agreement provided to the Commission.2
[14] The arrangement between Mr Forkes, or his company, and Amristar Solutions came to
an end on 16 May 2016 when two Directors of Amristar Solutions wrote to Mr Forkes
terminating its requirement for services with immediate effect.
Consideration
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[15] Given that the termination took place when it did, the applicable high income
threshold is an amount of $136,700, being the threshold applicable from 1 July 2015.
[16] Amristar Solutions submitted, and Mr Forkes did not put an opposing position, that the
total payments made by Amristar Solutions to Familiar Ltd by way of invoice between 19
June 2015 and 18 May 2016 were equivalent to AUD $163,187.37. While each invoice was
presented as a claim in Great Britain Pounds, payment of each invoice was then effected by
Amristar Solutions within two to three weeks with payment being made through an internet
transfer. Amristar Solutions have provided in their material evidence of the Australian Dollar
payment, which verifies the total amount of the payments.
[17] In the event that a modern award or enterprise agreement covered Mr Forkes, further
consideration of the high income threshold would be unnecessary and it would instead be
necessary to consider in detail whether the relationship between Mr Forkes and Amristar
Solutions was that of a contract of employment or an independent contractor relationship.
[18] As a result I turn to consider whether a modern award or enterprise agreement may
have covered Mr Forkes.
[19] Mr Forkes puts forward that, to the extent that he was an employee, a modern award
covered him, being the Professional Employees Award 20103 (the Modern Award). No claim
is made either by him or the Respondent that an enterprise agreement may have applied to the
relationship, if it was an employment relationship.
[20] In support of his contention that the Modern Award applied to him, Mr Forkes
submitted that he was an experienced information technology employee within the meaning
of the Modern Award (clause 3.3); that he qualifies for membership of the Australian
Computer Society; and that his position at Amristar Solutions is consistent with the
classification descriptors of Level 4 – Professional, which are set out in Schedule B –
Classification Structure and Definitions, at Clause B.1.11. Mr Forkes’ written witness
statement on the subject sets out what he believed his duties to have been, with those matters
being reinforced in his oral evidence;
“20. My position at Amristar falls within a Level 4 Professional as set out at Schedule
B.1.11 for the Professional Employees Award
21 . My position as within Amristar Pty Ltd incorporated both a supervisory role and a
hands-on engineering role. The role was split 40/60 between supervision and
engineering. As a supervisor my duties included:
a. Defining the product roadmap in association with stakeholders (as per
Schedule B.1.11.a and B.1.11.b.i of the Professional Employees Award)
b. Deciding how best to prioritise work (as per Schedule B.1.11.b.iv of the
Professional Employees Award)
c. Facilitating the engineering team's needs (as per Schedule B.1.11.e of the
Professional Employees Award)
d. Defining Processes and Practises to achieve objectives (as per Schedule
B.1.11.b.i of the Professional Employees Award)
As an engineer my duties included:
a. Requirements gathering, specification and technical clarification (as per
Schedule B.1.11.a of the Professional Employees Award)
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b. Software architecture and technology review (as per Schedule B.1.11.c of
the Professional Employees Award)
c. Software architecture, design & coding (as per Schedule B.1.11.e of the
Professional Employees Award)
d. Software review, testing and quality assurance (as per Schedule B.1.11.e of
the Professional Employees Award)
e. User Interface design (as per Schedule B.1.11.e of the Professional
Employees Award)
f. Implementation of software automation infrastructure (as per Schedule
B.1.11.e of the Professional Employees Award)
g. New technology exploration, investigation and review (as per Schedule
B.1.11.b.v of the Professional Employees Award)”4
[21] In considering the question of whether or not a modern award can cover Mr Forkes, it
is necessary to have regard to the criteria set out by the Full Bench for determining whether or
not a particular award applies to employment. In Carpenter v Corona Manufacturing, the Full
Bench held that;
“... more is required than a mere quantitative assessment of the time spent in carrying
out various duties. An examination must be made of the nature of the work and the
circumstances in which the employee is employed to do the work with a view to
ascertaining the principal purpose for which the employee is employed”.5
[22] The Full Bench in Brand v APIR Systems Ltd elaborated on this test with the
following;
“[13] We note that the Commissioner adopted and applied a test based on the principal
purpose for which the applicant was employed. She relied upon the Full Bench
decision in Carpenter v Corona Manufacturing Pty Ltd in that respect. An analysis of
the authorities referred to in that case shows that industrial courts and tribunals have at
different times adopted different formulations of the test to be applied in determining
whether the work of an employee or group of employees is within a particular
occupation or classification. One formulation requires that the question should be
decided by reference to the major and substantial employment of the employee.
Another formulation requires that the principal purpose or purposes of the employment
be identified. In some cases the formulations have both been referred to. In one case a
Full Bench of the Commission held that the principal purpose formulation was a
refinement of the major and substantial employment formulation. A Full Court of the
Federal Court of Australia, without reference to other authorities, adopted a test based
on whether the employees were “engaged substantially” in the duties of the relevant
occupation.”6 (references omitted)
[23] In considering Mr Forkes’ circumstances, the evidence supports a finding that the
work undertaken either by him or his company for Amristar Solutions was consistent with the
matters set out in the Scope of Services of the consultancy agreement. Whereas Mr Forkes
puts forward in his evidence that his role in software development was very hands-on, I
consider that the evidence resolves in favour of the broader set of responsibilities set out
within the Scope of Services.
[2016] FWC 5913
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[24] Analysis of the Scope of Services leads to a finding that the circumstances in which
Mr Forkes was engaged were managerial in nature. His major and substantial engagement
was to coordinate the activities of a team of people; to guide and motivate them to the
contribution they were making to the company and to be responsible to the Chief Executive
Officer for delivery of Amristar Solutions’ product objective. That is not to say that he was
not working on professional information technology tasks; that he did not have to bring his
information technology experience to the task; or even that it would be possible for him to
perform his role without such experience.
[25] In all, while Mr Forkes was no doubt required to undertake information technology
activities, and it would probably be surprising if he was not so required, the evidence does not
lead to a finding that Mr Forkes was engaged substantially on work that would fall within the
classification criteria set out within the Modern Award.
[26] Accordingly I find that the Professional Employees Award 2010 does not cover Mr
Forkes in respect of the work he performed for Amristar Solutions.
[27] For the reason that Mr Forkes’ annual rate of earnings was greater than $136,700 he
was not a person protected from unfair dismissal when his, or his company’s, services were
terminated by Amristar Solutions.
[28] It is therefore unnecessary for me to consider whether the relationship was one of
employment or an independent contractor.
[29] As a result I must now dismiss his application for unfair dismissal and an Order to that
effect is issued at the same time as this decision.
COMMISSIONER
Appearances:
Mr A Forkes on his own behalf.
Ms C Sluiter of Allion Partners for the Respondent.
Hearing details:
2016.
Melbourne (by telephone):
August 10.
Printed by authority of the Commonwealth Government Printer
Price code C, PR584501
OF THE FAIR WORK C AUSTRALIA MMISSION THE SEAL
[2016] FWC 5913
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1 Exhibit R2, Respondent’s Document List, Document 1.
2 See Exhibit A1, Witness Statement of Andrew Forkes, Annexure A.
3 MA000065.
4 Exhibit A1 [20]-[21].
5 (2002) 122 IR 387 [9], see print ref PR925731; followed by McMenemy v Thomas Duryea Consulting [2012] FWAFB 7184
[37].
6 (2003) (unreported, AIRC (FB)), PR938031 [13].
