1
Fair Work Act 2009
s.365—General protections
Adam Barbour
v
Memtaz Derbas T/A Derbas Lawyers
(C2020/9025)
DEPUTY PRESIDENT BINET PERTH, 30 JUNE 2021
Application to deal with contraventions involving dismissal.
[1] On 15 December 2020 Mr Adam Barbour (Mr Barbour) filed an application
(Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair
Work Commission (FWC) alleging Memtaz Derbas T/A Derbas Lawyers (Derbas Lawyers)
contravened the general protection provisions of the FW Act in dismissing him from his
employment.
[2] On 30 December 2020, Derbas Lawyers filed a Form F8A alleging Mr Barbour was
not employed by Derbas Lawyers and therefore had not been dismissed by Derbas Lawyers
(Jurisdictional Objection).
[3] In Coles Supply Chain Pty Ltd v Milford1 the Full Court of the Federal Court held that
where an employer submits that the applicant to a section 365 application was not dismissed,
as is the case here, the FWC must first determine whether the person was dismissed.
[4] In light of this, the Application was listed for a Hearing of the Jurisdictional Objection
in Perth at 10:00am on Thursday 1 April 2021 (Hearing).
[5] Directions for the filing of materials in advance of the Hearing were issued to the
parties on 2 February 2021 (Directions).
Permission to be represented
[6] The Directions invited the parties to make submissions as to whether the FWC should
grant permission to the parties to be represented. A determination of this issue is necessary to
ensure that the manner in which the Hearing is conducted is fair and just.
[7] Section 596(1) of the FW Act provides that a party may be represented in a matter
before the FWC by a lawyer or paid agent, only with the permission of the FWC.
1 [2020] FCAFC 152.
[2021] FWC 1718
DECISION
E AUSTRALIA FairWork Commission
[2021] FWC 1718
2
[8] Section 596(2) provides that the FWC may grant permission for a person to be
represented by a lawyer or paid agent in a matter before the FWC only if:
a. it would enable the matter to be deal with more efficiently, taking into account the
complexity of the matter; or
b. it would be unfair not to allow the person to be represented because the person is
unable to represent himself, herself or itself effectively; or
c. it would be unfair not to allow the person to be represented, taking into account
fairness between the person and other persons in the same matter.
[9] The decision to grant permission is not merely a procedural step but one which
requires consideration in accordance with section 596 of the FW Act. The decision to grant
permission is a two-step process. First, it must be determined if one of the requirements in
section 596(2) have been met. Secondly, if the requirement has been met, it is a discretionary
decision as to whether permission is granted.2
[10] Derbas Lawyers is a small legal practice operating in South West Sydney. Mr Derbas
is the principal of Derbas Lawyers.
[11] Mr Derbas submitted that permission should be granted for Derbas Lawyers to be
represented because the volume of materials filed by Mr Barbour of itself creates complexity
in the preparation and hearing of the Application and when combined with his personal
circumstances prevent him effectively preparing for, and representing Derbas Lawyers at, the
Hearing. Mr Derbas says that his personal circumstances include:
a. he had recently suffered two bereavements in his family;
b. he is the principle of a small firm which is very busy;
c. his wife had recently given birth to their seventh child and she was still recovering
from the birth; and
d. he is mentally and physically exhausted.
[12] Mr Barbour opposed the granting of leave on the grounds that:
a. granting leave may delay the matter;
b. there was a power imbalance between himself as a newly admitted lawyer and Mr
Derbas who was a more experienced lawyer;
c. Mr Derbas personal circumstances were irrelevant; and
d. the granting of leave could form the basis for a costs application.
[13] The Hearing requires the determination of a jurisdictional objection.
[14] As observed by Senior Deputy President Richards in CEPU v UGL Resources Pty
Ltd3:
2 Ibid.
3 [2012] FWA 2966, [23] – [26].
[2021] FWC 1718
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“[23] It appears to me that where the Respondent (in this case) seeks to agitate a
jurisdictional issue then it would follow that representation by a lawyer would be a
reasonable course. Jurisdictional issues by their nature are prospectively complex in
their own right, and/or else may require a degree of familiarity with court and tribunal
jurisprudence or authorities.
[24] In the situation currently before me, permission to appear for purposes of any
jurisdictional considerations appears to me to be justified. That is, by granting
permission for Mr Copeland to appear the efficiency with which the jurisdictional
issue is dealt with would be assisted.
[25] It also appears to me that permission to appear in the substantive considerations
should be granted to Mr Copeland for other reasons. Where jurisdiction is in
question, it is important in any subsequent considerations to give close regard to the
boundaries of the matters subject to the dispute and any proposed remedy. In such
circumstances, a lawyer familiar with jurisdictional argument would ensure the
matter would be dealt with more efficiently than would otherwise be the case.”
[15] I am satisfied that the nature of the jurisdictional objection creates complexity in the
hearing of this Application. It appears from the correspondence received by Chambers and
materials filed by Mr Derbas that he is not familiar with or experienced in employment law. I
accept that the extensive materials filed by Mr Barbour, in excess of 500 pages, add to the
complexity of the matter and that when combined with Mr Derbas’s personal circumstances
are likely to limit his ability to effectively and efficiently present the case of Derbas Lawyers.
[16] I am satisfied that the application for leave to be represented is not simply a
mechanism to increase costs for the purposes of a subsequent costs application.
[17] Mr Barbour is admitted as a lawyer and has demonstrated that he is able to identify
and clearly articulate the legal principles he believes are relevant to the Application, to
coherently express his evidence and to comprehend and respond to evidence and legal
principles posed by the respondent. There is nothing to suggest that the granting of leave to
Derbas Lawyers will hamper Mr Barbour’s capacity to properly present his own case.
[18] The granting of leave will not delay the determination of the Application. Rather I am
satisfied that it will make the Hearing proceed more efficiently.
[19] Having considered the submissions of the parties and being satisfied that the
requirements in sub section 596(2) of the FW Act have been met I consider it appropriate in
all the circumstances to exercise my discretion to grant leave to Derbas to be represented by a
lawyer.
[20] At the Hearing Mr Barbour represented himself and Derbas were represented by Mr
George Minas of Counsel.
Evidence
[21] The Directions required the parties to file their witness and documentary evidence in
advance of the Hearing. In accordance with the Directions Mr Barbour filed a witness
[2021] FWC 1718
4
statement on his own behalf, gave oral evidence at the Hearing and was cross examined by Mr
Minas.
[22] In advance of the Hearing Derbas Lawyers filed witness statements by Mr Anthony
Byrne (Mr Byrne) and Mr Muhammad Maarij Farooqi (Mr Farooqi). Mr Byrne was
employed by Derbas Lawyers as a solicitor. Mr Farooqi is an international student who
volunteered at Derbas Lawyers during the time that Mr Barbour asserts that he was employed
by Derbas Lawyers.
[23] Mr Byrne was not present at the time the Hearing was listed to commence and
proceedings were delayed by half an hour to accommodate his late arrival. Mr Byrne gave
oral evidence at the Hearing and was cross examined by Mr Barbour. Mr Farooqi did not
attend the Hearing and therefore was not available for cross examination. This has impacted
on the weight to which I given his evidence where it is contested by Mr Barbour.
[24] The submissions of the Derbas Lawyers contain extensive content of an evidentiary
nature. It appears that this content is the evidence of Mr Derbas. However, this content was
not captured in any sworn witness statement or in the oral evidence of Mr Derbas, Mr Farooqi
or Mr Bryne. This has impacted on the weight to which I have attached to this evidence.
[25] I note that Mr Barbour’s submissions also contained a substantial amount of content of
an evidentiary nature not contained in his witness statement. I do note that Mr Barbour make
himself available for cross examination and this has impacted on the weight to which I have
attached to his evidence.
[26] A Digital Court Book containing the submissions, evidence and authorities relied upon
by the parties was jointly tendered by the parties and marked as the only exhibit at the
Hearing.
[27] In reaching my decision, I have considered all the submissions made, and the evidence
tendered by the parties even if not expressly referred to in these reasons for decision.
Background
[28] Derbas Lawyers is a legal practice, registered with the Law Society of New South
Wales, operating in South West Sydney. Mr Derbas is the principle of the firm. Mr Byrne is a
social acquaintance of Mr Barbour and was employed by Derbas Lawyers as a solicitor.
[29] Mr Barbour completed his graduate diploma of legal practice on 7 July 2020. He was
admitted to the legal practice on 14 August 2020.4
[30] In his witness statement Mr Barbour says that on 15 August 2020 he was approached
by Mr Byrne who organised a meeting with him and Mr Derbas. Mr Barbour alleges that Mr
Byrne organised the meeting for Mr Barbour to meet with Mr Derbas in the context of the
Derbas Lawyers experiencing a shortage of staff.5 The implication from Mr Barbour’s
evidence is that he was actively recruited by Mr Byrne. However, the evidence reveals that
Mr Byrne’s contact and the subsequent meeting was purely of a social nature.
4 Digital Court Book 590, 595, 608.
5 Digital Court Book 564.
[2021] FWC 1718
5
[31] Text messages exchanged between Mr Byrne and Mr Barbour reveals that Mr Byrne
and Mr Barbour were social acquaintances from university and that on 15 August 2020 Mr
Byrne replied to a comment on social media by Mr Barbour that he had recently been
admitted. Mr Barbour and Mr Byrne then began discussing their career aspirations and agree
to catch up socially. Mr Byrne suggested that Mr Barbour meet him in Bankstown where Mr
Byrne was working. Mr Barbour indicated that would be convenient for him because he lived
in the area and suggested that they meet at 3pm. Mr Byrne said that the time suited him
because his principal, Mr Derbas, usually left the office at 2.30pm to collect his children from
school.
[32] The evidence is that at that time Derbas Lawyers were not recruiting lawyers and that
firm consisted of only Mr Byrne and Mr Derbas.6
[33] In his witness statement Mr Barbour says that he met with Mr Derbas on 17 August
2020 and that during that meeting Mr Derbas and he discussed and agreed terms and
conditions for Mr Barbour’s employment by Derbas Lawyers.7
[34] At the Hearing Mr Barbour gave evidence that his conditions of employment were
discussed and agreed between him and Mr Derbas over a series of two or three meetings.8
[35] However, the evidence reveals that while Mr Barbour met with Mr Byrne on 17
August 2020 he did not meet Mr Derbas until 19 August 2020 when he sent the following text
message:9
“Hey man it was good catching up with you and meeting Memtaz….”
[36] There is no evidence to suggest that Mr Barbour met with Mr Derbas on any other
occasion before Mr Barbour alleges he commenced employment with Derbas Lawyers.
[37] According to Mr Byrne the meeting between Mr Derbas and Mr Barbour occurred on
19 August at the request of Mr Barbour who indicated that he was looking for an opportunity
for unpaid work experience.
[38] In his Form F8 – General Protections application involving dismissal (Form F8) Mr
Barbour says at Question 3.1:10
“I was initially engaged on a part-time basis, where it was discussed that I would
work a period of 3 days and will be unpaid until I could demonstrate that I am able to
work and handle cases on my own. If I were to bring my own cases to the firm, I would
receive 25% commission of the case fee.”
[39] In his witness statement Mr Barbour says that when he met with Mr Derbas he was
offered and he accepted employment on the following conditions: 11
6 Digital Court Book 589.
7 Digital Court Book 564.
8 Transcript PN168.
9 Digital Court Book 580-581.
10 Digital Court Book 669.
[2021] FWC 1718
6
“… an unpaid position with the firm until I can work on matters on my own and I will
then be paid a base salary of $250 per week. In addition, if I refer any clients, I will
receive 25% commission on any cases I refer.”
[40] In his submissions Mr Barbour asserts that he was also offered a commission of 30%
in addition to a base salary of $250 per week once he had demonstrated his competency. I
note that the commission of 30% is not mentioned in Mr Barbour’s witness statement or in his
Form F8.
[41] At the Hearing Mr Barbour asserted that the terms of employment were agreed with
Mr Derbas over the course of two or three meetings at his meeting with Mr Derbas were as
follows:12
a. Derbas Lawyers would provide Mr Barbour with 1000 business cards.13
b. He would work between 9am and 5pm on Monday, Wednesday and Friday.14
c. He would be required to meet certain dress standards.15
d. He would be unpaid until he had proved his competence.16
[42] Mr Barbour says that he understood the role to be an opportunity to prove himself and
demonstrate that he could work as a lawyer and he acknowledges that there was no agreement
for him to be paid for the work he was initially performing.17
[43] Following the meeting on 19 August 2020 Mr Barbour provided copies of statements
of service, his academic transcript, his admission certificate, and his passport to Mr Byrne.18
Mr Derbas says that he was unaware that this information was provided by Mr Barbour. Mr
Byrne confirms that he did not forward this information to Mr Barbour.19
[44] Mr Barbour did not provide and was not asked at that time or subsequently to provide
his taxation number or superannuation fund details.
[45] Mr Barbour informed Mr Byrne that he did not yet have his practising certificate but
had applied for it.20 It is unclear when Mr Barbour obtained his practising certificate and
when he became able to legally practise as a solicitor. Mr Derbas asserts that this was not
before late October 2020.
[46] On 20 August 2020 Mr Byrne told Mr Barbour that he would organise business cards
for him and get photos and a biography organised for the firm’s website.21 Mr Derbas says
11 Digital Court Book 564.
12 Transcript PN162.
13 Transcript PN164
14 Transcript PN175.
15 Transcript PN173.
16 Transcript PN177.
17 Digital Court Book 669.
18 Digital Court Book 582, 593.
19 Digital Court Book 75.
20 Digital Court Book 593.
21 Digital Court Book 584.
[2021] FWC 1718
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that these cards were not produced until October 2020 and not provided to Mr Barbour until
November 2020.
[47] Mr Barbour commenced his role at Derbas Lawyers on 24 August 2020. 22
[48] On 7 September 2020 the firm made a social media post with a photo of Mr Byrne, Mr
Derbas, Mr Farooqi stating that: “Derbas Lawyers welcome Adam Barbour and Maarij
Farooqi to our legal team in Bankstown.”23
[49] Mr Barbour says that he consistently worked Monday, Wednesday and Friday
averaging 20 hours per week and that this increased to four days per week after some time.
[50] Mr Derbas says that Mr Barbour had no fixed days and attended the office at times
that suited Mr Barbour.24 He says that Mr Barbour also took breaks at his own choosing. Mr
Derbas says consistent with this Mr Barbour was never given or asked to complete a
timesheet.
[51] Mr Barbour concedes that during the period he attended at the offices of Derbas
Lawyers he was self-employed as an Uber Driver and that he was in receipt of Job Keeper
payments. He says that he did not perform Uber work if he was required to work by Derbas
Lawyers.25
[52] Based on Mr Barbour’s own records his hours of work per day at Derbas Lawyers
ranged from 4.5 hours to 9.5 hours per day and his days of work varied from week to week.26
[53] Mr Farooqi’s evidence is that it was made clear to both he and Mr Barbour that they
were volunteers and not employees and that they were both free to attend the office whenever
it suited them.27
[54] On 24 November 2020 Mr Barbour called Mr Derbas and queried when he would be
paid. He says that Mr Derbas told him that he would start being paid at the beginning of
January 2021.28
[55] On 25 November 2020 Mr Barbour entered an appearance at the Magistrates Court on
behalf of a client of the firm. The appearance was a simple plea. He was given a script for the
appearance which set out precisely what he was required to say.29 Mr Derbas said he allowed
Mr Barbour to do the mention at Mr Barbour’s request, that the mention was not successfully
completed by Mr Barbour and the client was not charged for this work.30
22 Digital Court Book 564.
23 Digital Court Book 676.
24 Digital Court Book 592.
25 Digital Court Book 564, Transcript PN177 to PN181.
26 Digital Court Book 683-689.
27 Digital Court Book 711.
28 Digital Court Book 654.
29 Digital Court Book 615.
30 Digital Court Book 700.
[2021] FWC 1718
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[56] Mr Barbour says that the same day Mr Derbas asked him to transfer $4000 into an
account in his name to purchase a property overseas and that he declined to do so.31 Mr
Derbas denies ever making such request and points out that the alleged amount is so small
that it could not have credibly been the subject of a property purchase.32 I note that Mr
Barbour has not submitted any evidence in support of his assertion that the request was made.
[57] Later that same morning Mr Derbas sent Mr Barbour a text stating:33
“Adam I am restructuring the firm to meet the current economic crisis as such I[SIC]
am no longer able to offer you volunteer work.
Thanks for all the assistance you have provided but i[SIC] have very limited choices
whilst I need to make a commercial decision.”
[58] Mr Barbour tended a text exchange between himself and Mr Maarij which he says
occurred the day after his dismissal in which Mr Barbour describes the circumstances of his
departure from the firm as follows:34
“Yeah .. I don’t work with you anymore.
Memtaz told me he doesn’t need volunteers anymore
So he sacked me yesterday.
I was shocked tbh dud.”
[59] Mr Barbour tended a further text exchange between himself and Mr Maarij on 27
November 2021 in which Mr Barbour asks Mr Maarij what Mr Barbour had said to him about
Mr Barbour’s departure. Mr Maarij says:35
“He just said he sacked you
And nothing
No reason.
I tried asking why and what happened cuz I don’t know anything.”
[60] Mr Barbour submits that he was an employee of Derbas Lawyers and that he was
dismissed by Derbas Lawyers and therefore eligible to make the Application.
Consideration
[61] The Application was made pursuant to section 365 of the FW Act. Section 365 of the
FW Act provides that:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
31 Digital Court Book 671.
32 Digital Court Book 703-704.
33 Digital Court Book 568.
34 Digital Court Book 571.
35 Ibid.
[2021] FWC 1718
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(b) the person, or an industrial association that is entitled to represent the
industrial interests of the person, alleges that the person was dismissed in
contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal
with the dispute.”
[62] The term ‘dismissed’ is defined in section 12 of the FW Act by reference to section
386. The term ‘dismissed’ is defined at section 386 of the FW Act as follows:
“Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the
employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified
period of time, for a specified task, or for the duration of a specified season,
and the employment has terminated at the end of the period, on completion of
the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any
reason, limited to the duration of the training arrangement; and the
employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her
remuneration or duties; and
(ii) he or she remains employed with the employer that effected the
demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (2)(a) if a substantial purpose of the employment of the
person under a contract of that kind is, or was at the time of the person’s
employment, to avoid the employer’s obligations under this Part.”
[63] While section 386 is found in Part 3-2 Unfair Dismissal of the FW Act the definition
of ‘dismissed’ contained in section 386 of the FW Act has been applied by the Courts to
section 365 general protections matters and I have adopted that approach in this Application.
[2021] FWC 1718
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[64] It is not contested, and I am satisfied that sub section 386(2) of the FW Act has no
application in this case.
[65] For the purposes of section 386 of the FW Act a dismissal only occurs if a person’s
employment with his or her employer is terminated. It is therefore necessary to determine
whether Mr Barbour was an employee of Derbas Lawyers.
[66] There is no comprehensive definition of the terms ‘employer’ and ‘employee’ in the
FW Act. The FWC and its predecessors have determined the meanings of these terms by
reference to their established meaning at common law.36
[67] For the purposes of common law an employment relationship can only be said to exist
where a person agrees to perform work pursuant to a ‘contract of service’ or contract of
employment. If there is no contract of employment identified between the parties then Mr
Barbour can not be an employee.37
Was Mr Barbour employed by Derbas Lawyers?
[68] In Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club
[2011] FWA 1143 Commissioner Steel set out the principles for determining whether a
contract of employment exists between parties as follows:
“The law requires that there are certain basic essential requirements or elements for an
agreement to be legally enforceable as a contract. These are described in Professor
Andrew Stewart’s book, Stewart’s Guide to Employment Law and in various other forms
in texts such as Macken, McCarry & Sappideen’s The Law of Employment as being the
following essential elements:
• The parties must have reached agreement as to the terms of the contract.
• The agreement must involve the provision of “consideration” by each party.
• The agreement must be intended by the parties to be legally enforceable.
• The terms of the agreement must be certain and complete and there must be no element
of illegality or any other vitiating factor that would deprive the agreement of legal
effect.” [FOOTNOTES OMITTED]
[69] It can be particularly difficult to distinguish between internships, unpaid work
experience, or clerkships (as they are more commonly known in the legal industry) and
employment. However, it is important to do so to ensure the integrity of the standards and
protections established by the FW Act.
[70] Factors which are relevant in distinguishing work experience from employment
include the following:38
a. The placement is mainly for the benefit of the person rather than the business.
36 Jiang Shen Cai trading as French Accent v Do Rozario [2011] FWAFB 8307 at [25].
37 Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club [2011] FWA 1143.
38 Ibid.
[2021] FWC 1718
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b. The periods of placement are relatively short.
c. The person is not required to or expected to do productive work.
d. There is no significant commercial gain or value for the business derived out of the
work performed by the person.
Have the parties reached agreement as to the terms of the contract?
[71] Where a contract is not evidenced in writing, the court must infer from the parties
whether they have reached an agreement.
[72] In his witness statement Mr Barbour asserts that he met with Mr Derbas on 17 August
2020 and that during that meeting he was offered, and he accepted, employment.39 The
implication from Mr Barbour’s evidence is that he was actively recruited by Derbas Lawyers.
However, the evidence reveals that Mr Byrne’s initial contact with Mr Barbour and his
meeting with Mr Barbour on 17 August 2020 was purely of a social nature.
[73] In his witness statement Mr Barbour says that he met with Mr Derbas on 17 August
2020 and that it was during that meeting that Mr Derbas and he discussed and agreed terms
and conditions for Mr Barbour’s employment by Derbas Lawyers.40
[74] At the Hearing Mr Barbour gave evidence that the terms of his employment with
Derbas Lawyers were agreed by him and Mr Derbas at a series of two or three meetings rather
than on 17 August 2021. Mr Barbour conceded that at the first of the two or three meetings
no terms of employment were agreed.41
[75] The evidence reveals that Mr Barbour did not met with Mr Derbas until 19 August
2020.42 There is no evidence to suggest that Mr Barbour met with Mr Derbas on any other
occasion before Mr Barbour alleges he commenced employment with Derbas Lawyers.
[76] I accept Mr Byrne’s evidence that the meeting between Mr Derbas and Mr Barbour
occurred on 19 August at the request of Mr Barbour who indicated that he was looking for an
opportunity for unpaid work experience. This is consistent with Mr Barbour’s own
admissions that the role was initially unpaid,43 the evidence that Mr Barbour was in receipt of
an alternative income stream in the form of Job Keeper payments and the evidence of Mr
Farooqi that he and Mr Barbour worked as volunteers at Derbas Lawyers. It is also consistent
with the lack of evidence that Derbas Lawyers were recruiting for additional employees at
that time.44
[77] In his witness statement Mr Barbour says that when he met with Mr Derbas he was
offered, and he accepted, employment on the following conditions:
39 Digital Court Book 564.
40 Digital Court Book 564.
41 Transcript PN162.
42 Digital Court Book 580-581.
43 Digital Court Book 564.
44 Digital Court Book 696-697.
[2021] FWC 1718
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“… an unpaid position with the firm until I can work on matters on my own and I will
then be paid a base salary of $250 per week. In addition, if I refer any clients, I will
receive 25% commission on any cases I refer.”
[78] At the Hearing Mr Barbour asserted that at the same meeting the following other terms
of employment agreed with Mr Derbas:45
a. Derbas Lawyers would provide Mr Barbour with 1000 business cards.46
b. He would work between 9am and 5pm on Monday, Wednesday and Friday.47
c. He would be required to meet certain dress standards.48
d. He would be unpaid until he had proved his competence.49
[79] Mr Derbas denies discussing or agreeing any terms of employment with Mr Barbour
either at the August meeting or subsequently.
[80] Mr Derbas specifically denies discussing any rates of pay. The evidence in relation to
what Mr Barbour says he was offered and agreed to be paid is discussed in further detail
below. However, I note here that Mr Barbour’s evidence with respect to the alleged rate of
pay is both inconsistent and implausible. I note that evidence indicates that Mr Barbour did
not provide and was not asked to provide his taxation number or superannuation fund details
which would normally be provided by an employee expecting payment. I also note that Mr
Barbour conceded at the Hearing that Mr Derbas never stated when he would start paying
him.50
[81] Mr Derbas asserts that no fixed times or days of work were agreed between the parties
and that Mr Barbour came and left the office as he pleased and took breaks whenever he
chose.51 This is consistent with the evidence of Mr Farooqi. It is also consistent with Mr
Barbour’s records of his hours of work per day (which ranged from 4.5 hours to 9.5 hours per
day) and his records of his days of work (which varied from two to four days per week).
[82] I also note that Mr Barbour concedes that he understood the role to be an opportunity
to prove himself and demonstrate that he could work as a lawyer and he acknowledges that
there was no agreement for him to be paid for the work he was initially performing.52
[83] Information about appropriate dress standards in a legal office would be consistent for
volunteers, some contractors and for employees and therefore is not of itself of assistance in
assessing the nature of Mr Barbour’s relationship with Derbas Lawyers.
[84] On the evidence before me I believe it is unlikely that Mr Barbour and Mr Derbas
discussed the issue of the provision of business cards at the meetings at which Mr Barbour
says he and Mr Derbas agreed terms of employment.
45 Transcript PN162.
46 Transcript PN164.
47 Transcript PN175.
48 Transcript PN173.
49 Transcript PN177.
50 Transcript PN198.
51 Digital Court Book 696-697.
52 Digital Court Book 669.
[2021] FWC 1718
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[85] I note that at the Hearing Mr Barbour conceded he himself was confused as to what
the terms of his engagement were.53
[86] Based on the evidence before me I am not satisfied that the parties had reached an
agreement as to the terms of a contract. In the absence of this element necessary for the
existence of a contract of employment between the parties I am not satisfied that Mr Barbour
was an employee of Derbas Lawyers.
Does the agreement involve the provision of a ‘consideration’ by each party?
[87] For an agreement to be legally enforceable there must be some element of bargained
exchange that involves each party doing or promising to do something of value in return for
what the other is doing or promising to do. What each party provides to the other must have
some value in the eyes of the law.54
[88] In his witness statement Mr Barbour says that when he met with Mr Derbas he was
offered, and he accepted, employment on the following conditions:
“… an unpaid position with the firm until I can work on matters on my own and I will
then be paid a base salary of $250 per week. In addition, if I refer any clients, I will
receive 25% commission on any cases I refer.”
[89] Mr Barbour did not refer any clients and was not paid any commission.
[90] Mr Barbour conceded at the Hearing that Mr Derbas never stated when he would start
paying him and never did pay him.55
[91] Mr Derbas denies that he ever offered or agreed to provide Mr Barbour with any
consideration, in particular he is adamant no rate of pay was proposed, discussed or agreed.
[92] The amount Mr Barbour asserts was agreed he would be paid seems implausible
unless he was confident of securing high value, or high volume, clients. A base salary of
$250 for full time work would amount to a payment of $50 per day when then national
minimum wage was $19.84 per hour. Even if the amount of $250 was to be paid for three
days work it only equates to payment of $83 per day.
[93] Mr Barbour’s evidence as to what it was agreed he would be paid is inconsistent. In
his submissions at page 5 of the Digital Court Book Mr Barbour asserts that he was also
offered and accepted that he would be paid a 30% commission in addition to his base rate of
pay.56 This purported commission is inexplicably not mentioned in his evidence at the
Hearing,57 in his witness statement, his Form F8 or elsewhere in his submissions when he
asserts what it is he says that the parties agreed he would be paid. 58 The reference to “base
53 Transcript PN198 to PN199.
54 Teen Ranch Pty Ltd v Brown (1995) 87 IR 308.
55 Transcript PN198.
56 Digital Court Book 5.
57 See for example Transcript PN199.
58 See for example page 6 of the Digital Court Book.
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pay” in his witness statement, in his Form 8A and elsewhere in his submission appears in the
context of an additional payment in the form of a 25% commission for the referral of clients.
Given the other inconsistencies in his evidence it seems likely that the 30% commission over
and above the $250 base rate is an embellishment to his witness statement.
[94] There is no evidence that Mr Barbour at any time provided his taxation number, bank
account details or preferred superannuation fund consistent with an expectation of payment.
[95] Even if the parties did agree that Mr Barbour would be paid a fee for any new client he
referred to the firm the referral of clients is not necessarily ‘work’ indicative of employment.
Referral bonuses might be offered to clients, family and friends or other third parties.
[96] The evidence is that Mr Barbour did not receive any payment from Derbas Lawyers
whether it be by way of wage, honorarium, reimbursement, or some other form of payment.
Nor is there evidence of any other form of ‘payment in kind’ for example the provision of free
accommodation,59 a slab of beer,60 or meat from a slaughtered bullock,61 which have in other
cases been found to constitute consideration founding an employment relationship.
[97] I am not satisfied that the training or supervision Mr Barbour received from Derbas
Lawyers was in law62 or in fact sufficient to constitute consideration to support a finding of
employment.
[98] Based on the evidence before me I am not satisfied that the parties agreement involved
the provision of a ‘consideration’ by each party. In the absence of this element necessary for
the existence of a contract of employment between the parties I am not satisfied that Mr
Barbour was an employee of Derbas Lawyers.
Was the agreement intended by the parties to be legally enforceable?
[99] Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians
Club provides the following guidance in determining whether an agreement is intended by
the parties to be legally enforceable:
“[40] An agreement to do something is only regarded as a contract if the parties
intended the agreement to be legally binding and carry legal consequences. That is, if
something goes wrong, if one party failed to act in accordance with the agreement, the
other party would be entitled to take legal action to seek performance. In employment
situations where work is intended to be performed for payment, the necessary legal
relations are generally present.
[41] There are exceptions such as Teen Ranch Pty Ltd v Brown and Redeemer
Baptist School v Glossop & Ors and counter-exceptions of Ermogenous v Greek
Orthodox Community of SA Inc.
59 Cf Cudgegong Soaring Pty Ltd v Harris (1996) 13 NSWCCR 92.
60 Re McGee (1992) 41 IR 27.
61 Spackman v Morrison [2000] NSWCC 61.
62 Digital Court Book 337.
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[42] Volunteer work by its definition does not, in general, involve this element as
the usual motivation for the arrangement is altruism rather than private gain or
material advantage. That is, the commitments between parties in such arrangements
are moral rather than a legal and formal one. In this matter the applicant provided
work in a capacity which is argued to be employment and have a contract of
employment. The respondent asserts that she was a volunteer or other than an
employee. In determining further whether a contract existed the question must be
asked, can it reasonably be inferred that the parties intended to create legal
relations?” [FOOTNOTES OMITTED]
[100] Mr Barbour says that an intention on the part of Derbas to create legal relations is
evidenced by the following:
a. His practising certificate described him as an “Employee of a Law Practice” and
identified his place of practise as “Derbas Lawyers. 63
b. He held an account with Legal Aid NSW as a solicitor under the name of Derbas
Lawyers on Legal Aid’s panel of law firms.64
c. Derbas Lawyers printed 1000 business cards with his name and the title ‘Lawyer’.65
d. Derbas Lawyers made a social media post welcoming him to the firm.66
e. He performed fee paying work for Derbas Lawyers such as preparing a draft: family
law contravention application, affidavit, a liquidated claim for two motor vehicle
accidents and letters of offer for the recovery of debts.67
f. He incurred expenses such as parking fees and tolls while performing tasks for Derbas
Lawyers for which he was not reimbursed. 68
[101] Mr Barbour says that an intention on the part of Derbas to create legal relations is
evidenced by promotional/relationship materials prepared by Derbas which suggested that he
was employed by the firm as a lawyer. The materials Mr Barbour relies upon are the business
cards which bore the contact details of the firm and described Mr Barbour as a lawyer and a
photo circulated to clients welcoming him to the firm which was circulated on social media.
[102] Mr Derbas says that the social media post made on 7 September 2020 occurred to
welcome Mr Farooqi and Mr Derbas ‘to the team’ so that they did not feel excluded and did
not identify the capacity in which they joined the ‘team’.69 Mr Derbas says that the business
cards were not printed until October 2020 and not provided to Mr Derbas until November
2020 and that therefore could not be relied upon as evidence of an intention to create legal
relations before that time. In relation to the period in which the cards were available Mr
Derbas says that the business cards were provided simply to boost Mr Barbour’s self esteem
and not hold him out as an employee of the firm. They state, consistent with his
qualifications, that he is a lawyer but do not describe him as a solicitor employed by the firm.
63 Digital Court Book 564.
64 Digital Court Book 566.
65 Digital Court Book 591.
66 Ibid.
67 Digital Court Book 669.
68 Digital Court Book 670.
69 Digital Court Book 691.
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Mr Derbas says that the business cards did not include the word ‘volunteer’ as it was thought
would embarrass Mr Barbour.70
[103] I am not satisfied that of themselves the business cards or the social media post
provide proof of an intention to create a legal relationship of employment on the part of the
parties. Although the appropriateness of such a practise is questionable given the potential for
clients to be misled as to the skills, experience, qualifications and employment status of
volunteers or work experience placements in such circumstances.
[104] Mr Barbour submits that the work that he undertook was not ‘moral’ in nature because
it was fee paying work rather than pro bono.71
[105] Mr Derbas asserts that Mr Barbour did not receive his practising certificate until mid
October and therefore could not lawfully perform work as a legal practitioner before this
date.72 It is unclear whether Mr Barbour’s practise certificate identified his place of practise as
Derbas Lawyers based on information provided to the Practice Board by Mr Barbour or by
Derbas Lawyers.
[106] Mr Derbas insists that Mr Barbour was merely volunteering in order to gain exposure
to the legal practice by observing practitioners at work and performing simple tasks routinely
allocated to summer clerks. Mr Derbas says that no financial benefit was ever gained for the
firm from the tasks that he performed.73 In fact he says that Mr Barbour’s work required such
substantial amendment that his performance of such work was a business cost because it took
much longer for the supervising practitioner to correct his work that it would have taken them
to perform the work themselves.74 For example Mr Derbas says that the contravention
application that Mr Barbour points to as evidence that he was performing work for the firm
took Mr Barbour three weeks to draft and was so deficient that it was destroyed and not used
in any way in the application filed in court.75
[107] There is no evidence that the tasks that Mr Barbour performed were performed for
commercial gain by Derbas Lawyers.
[108] The benefit to be gained by such an arrangement is largely in the nature of experience
which improves Mr Barbour’s employability. The time spent reviewing and amending his
work is a business cost and ought not be recoverable from the client as fee paying work. The
provision of the opportunity of an internship or clerkship might be considered ‘moral’ in
nature in that it permits law students or recent law graduates who haven’t secured
employment an opportunity to observe the practise of law to guide their decision to become a
legal practitioner and/or their choice of practise area.
[109] Mr Derbas says that Mr Barbour had no authority to incur expenses on behalf of the
firm and should not have done so without direct approval from himself. Further he asserts
that Mr Barbour never presented the invoices to him and that the first time he was aware that
70 Digital Court Book 589, 691.
71 Digital Court Book 3.
72 Digital Court Book 697.
73 Digital Court Book 589.
74 Digital Court Book 696.
75 Digital Court Book 703.
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Mr Barbour had incurred the costs was when Mr Barbour filed this Application. Personally
incurring costs associated with the performance of tasks for an organisation is more common
in the case of a volunteer than an employee.
[110] Mr Barbour is a trained and admitted lawyer. He does not suffer from the
vulnerabilities of the very young, the illiterate, the uneducated, those whose English skills are
poor or who reside in Australia by virtue of a visa. There is nothing in his circumstances
which would suggest that he was unaware of his legal entitlements to be paid if he was
engaged as an employee. If it had been the case that he believed that he had entered into a
legally enforceable arrangement of employment with Derbas Lawyers then one would expect
that he would ensure that he had provided his taxation and banking details to Derbas Lawyers
and ensured that he received payment within a normal pay period be it a week, a fortnight or a
month from commencement.
[111] The evidence does not suggest that either party held the view that Derbas Lawyers was
entitled to require Mr Barbour to perform tasks on particular days or particular times or that as
a matter of fact Derbas, Lawyers attempted to. Rather it appears that Mr Barbour provided an
indication of his anticipated availability. As a matter of fact, he attended at the firm’s
premises on different days and at different times than he says the parties agreed he would
work.
[112] While a client of the firm might not unreasonably presume that Mr Barbour was
employed by Derbas Lawyers I am not satisfied that this is evidence that the parties intended
to enter into a legally enforceable arrangement. Although this might have eventuated if Mr
Derbas had been impressed by the tasks that Mr Barbour performed. At the highest what can
be said of the evidence is that it indicates that the parties might have in future decided they
wished to enter into legally enforceable arrangements. I am not satisfied that Mr Derbas had
yet reached that state of mind and I think it likely that he would not have in the future.
[113] The fact that the parties contemplate the possibility of having legal relations in the
future is not of itself sufficient. The parties must have intended to create enforceable legal
relations in the period in question.76
[114] Based on the evidence before me I am satisfied that Derbas Lawyers did not intend the
arrangement they had with Mr Barbour to be legally enforceable. In the absence of this
element necessary for the existence of a contract of employment between the parties I am not
satisfied that Mr Barbour was an employee of Derbas Lawyers.
Were the terms of the agreement certain, complete and without any element of illegality
or any other vitiating factor that would deprive the agreement of legal effect?
[115] For the reasons outlined above I am not satisfied that an agreement had been reached
between the parties which was certain or complete.
Was the placement mainly for the benefit of the person rather than the business?
[116] The evidence suggest that the placement mainly provided a benefit for Mr Barbour
rather than the business. With the exception of the mention at the Waverly Court on 25
76 Eldridge v Kemblawarra Child and Family Centre [1999] NSWCA 395, South Australia v Day (2000) 78 SASR 270.
[2021] FWC 1718
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November 2020 the work Mr Barbour performed appears to have been supervised or reviewed
by an employee of the practice. The evidence is that Mr Barbour’s work required substantial
amendment. The benefit to be gained by such an arrangement is largely in the nature of
experience which improves Mr Barbour’s employability. The time spent reviewing and
amending his work is a business cost not a business benefit.
Was the period of placement relatively short?
[117] The period of placement was fourteen weeks which would be the outer limits of what
might be described as a relatively short period.
Was Mr Barbour required or expected to do productive work?
[118] I am satisfied on the evidence before me that Mr Barbour was offered the opportunity
to do productive work but was not expected or required to do productive work.
Was there a significant commercial gain or value for the business derived out of the
work performed by Mr Barbour?
[119] Mr Barbour says that Mr Derbas set tasks for him to complete such as drafting letters,
affidavits, statement of claims, filing in court, attending client conferences, legal research,
attending to a mention and doing other work necessary for the function of his business. Mr
Barbour says that Derbas obtained commercial gain from this work. He cites as an example
the Mention at Waverly Court in relation to which he says the client was charged fees of
$2,000.77
[120] Mr Derbas contends that any letters, affidavits, and other documents drafted by Mr
Derbas were significantly changed and no work has been charged to firm’s clients. He says
that any other tasks Mr Barbour performed were ‘observational’ in nature.
[121] Mr Barbour points out that the appearance at Waverly Court could not have been
‘observational’ because he attended the court by himself. 78 Mr Derbas says that the client
was not charged for this work because it was not correctly performed by Mr Barbour
notwithstanding that Mr Barbour was provided with a script for the task.
[122] Even if the Waverly Court appearance was charged to the client based on the evidence
before me I am not satisfied that a significant commercial gain or value was derived by
Derbas Lawyers from the work performed by Mr Barbour.
Conclusion
[123] It can be particularly difficult to distinguish between internships, work experience, or
clerkships (as they are more commonly known in the legal industry) and employment. It is
important to do so to ensure the integrity of the standards and protections established by the
FW Act. It is also important to ensure that the opportunity for genuine work experience or for
society to benefit from pro bono service is not lost by characterising all time spent in a
workplace as employment when the necessary elements of employment do not exist.
77 Digital Court Book 4.
78 Ibid.
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[124] Mr Barbour submits that as was held to be the case in Emergenous v Greek Orthodox
Community (2002) 209 CLR 95, Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA
140 and Strachan v Moodie [2012] NZEmpC 95 he is an employee. In my view each of these
cases can be differentiated from Mr Barbour’s.
[125] In Emergenous v Greek Orthodox Community (2002) 209 CLR 95 it was held that the
applicant, who was an Archbishop of the Greek Orthodax Church, was an employee based on
findings of fact that he had been told that he would be an employee, he was paid a stipend
from which PAYG was withheld and he performed the duties in question for more than 20
years.
[126] In Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA 140 the applicants
initially completed periods of unpaid work experience and were then engaged for periods of
between 6 months and 12 months respectively as producers for a radio program. They
received a honourium/payment for each shift they worked which was characterised as
reimbursement for expenses. They were held to have commenced employment after the
period of unpaid work experience was completed.
[127] In Strachan v Moodie [2012] NZEmpC 95 the applicant initially commenced
‘volunteering’ for a sole practitioner observing the practise and performing para legal work
while she completed post graduate studies and worked part time as a nurse. It is held that the
arrangement morphed into employment after a more than a year when she began working full
time in the practice, was given complete responsibility for the administration of the practice
and it was agreed that she would be paid.
[128] Each of these cases can be differentiated from Mr Barbour’s because the applicants in
each of those cases were in receipt of consideration (albeit not necessarily described at the
time as wages) were performing the full range of duties that an employee would perform
without supervision and were engaged so for extended periods of time. Critically in each of
these cases there was an expectation by the employer and the applicant that the applicant
would attend and perform the duties when rostered rather than at their will.
[129] Mr Barbour’s circumstances are in my view more analogous with cases where an
employment relationship was held not to exist such as Pacesetter Homes Pty Ltd v Australian
Builders Labourers Federated Union of Workers (WA Branch) (1994) 57 IR 449 in which
unemployed school leavers were given the opportunity to gain work experience for up to six
months but were under no obligation to attend on any particular day.
[130] The evidence before me suggests that to date the relationship between Mr Barbour and
Derbas Lawyers was one of work experience not employment. There is no evidence that
Derbas needed or wanted additional staff. Derbas Lawyers did not advertise for employees or
volunteers or otherwise proactively recruit Mr Barbour to perform paid or unpaid work.
[131] Even on Mr Barbour’s own evidence there was initially no expectation on his part to
receive wages for the time he spent at the office of Derbas Lawyers. Throughout the period
he alleges he was employed by Derbas Lawyers he continued to be nominally employed as an
Uber driver and was in receipt of Job Keeper payments. At no stage was Mr Barbour paid
any form of payment by Derbas Lawyers be it by way of wage, honorarium or reimbursement.
[2021] FWC 1718
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[132] Mr Barbour had not yet received his practise certificate at the time he commenced
attending the offices of Derbas Lawyers. He had only recently graduated and on the evidence
before me was not yet capable of performing the duties of a solicitor even if they had been
allocated to him.
[133] However, as Mr Barbour’s observations of the work performed by Mr Byrne and Mr
Derbas led to a capacity for him to perform ‘work’ for Derbas Lawyers and he performed
work, (albeit perhaps of limited complexity and not of a particularly high standard) for an
increasingly longer period of time there would come a tipping point at which he morphed
from a volunteer to an employee. The tipping point was fast approaching and quite
appropriately Mr Barbour raised this with Mr Derbas. Mr Derbas would have appeared to
have understood this by informing Mr Barbour that he was no longer able to offer him the
opportunity to volunteer.
[134] On the balance of the evidence before me I am not satisfied that a contract of
employment had been formed as at the date Mr Barbour says that he was dismissed. If there
is no contract of employment identified between the parties then Mr Barbour can not be an
employee.79
[135] For the purposes of section 386 of the FW Act a dismissal only occurs if a person’s
employment is terminated. As I am not satisfied that Mr Barbour is an employee he can not
have been dismissed for the purposes of section 386 and is therefore ineligible to make the
Application.
[136] The Application is therefore dismissed. An order to this effect will issue with this
decision.80
DEPUTY PRESIDENT
Appearances:
Mr A Barbour appeared on his own behalf
Mr G Minas appeared on behalf of the Respondent
Hearing details:
2021
Perth
4 April
79 Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club [2011] FWA 1143.
80 PR728209.
THE SEAL OF THE FAIT SEAL OF LIA WORK COMMISSION
[2021] FWC 1718
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PR728207
