Mr Peter John Chambers v Broadway Homes Pty Ltd - [2022] FWC 332

1

Fair Work Act 2009 
s.365—General protections and s.394—Unfair dismissal 

Peter John Chambers
v
Broadway Homes Pty Ltd
(C2021/3763)

and

Jennifer O’Brien
v
Broadway Homes Pty Ltd
(U2021/5772)

COMMISSIONER WILLIAMS PERTH, 24 MARCH 2022

Termination of employment - Application to deal with contraventions involving dismissal - 
Application for an unfair dismissal remedy - jurisdiction.

Introduction

[1] On 1 July 2021 Mr Peter John Chambers (Mr Chambers) filed a general protections 
application involving dismissal under section 365 of the Fair Work Act 2009 (the Act). The 
Respondent is Broadway Homes Pty Ltd (Broadway or the Respondent).

[2] The same day Ms Jennifer O’Brien (Ms O’Brien) filed an application for an unfair 
dismissal remedy under section 394 of the Act. The Respondent was also Broadway.

[3] Broadway in its response to Mr Chambers’ application objected to it on the ground that 
Mr Chambers was not a person who had been “dismissed”, within the meaning of section 386 
of the Act, which is a requirement of section 365. It was asserted that this was so because Mr 
Chambers was not an employee of Broadway.

[4] Broadway’s response explained that its’ position was Mr Chambers was an agent of 
Jamrok Pty Ltd (Jamrok) who had performed work for Broadway’s benefit on Jamrok’s behalf, 
pursuant to an agreement between Jamrok and Broadway dated 5 March 2020 (the Jamrok 
Agreement).

[5] Broadway also opposed the application on a range of other grounds.

[2022] FWC 332 [Note: This decision and the associated order has been 
quashed – refer to Full Bench decision dated 13 July 2022 
[2022] FWCFB 129]

DECISION


AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/awardsandorders/html/pr739605.htm
http://www.fwc.gov.au/documents/decisionssigned/html/2022FWCFB129.htm


[2022] FWC 332

2

[6] It was also asserted that Ms O’Brien was the sole Director and Shareholder of Jamrok 
while the Jamrok Agreement was in force.

[7] Broadway in its response to Ms O’Brien’s application objected to it on the ground that 
Ms O’Brien was not a person protected from unfair dismissal because she was not an employee 
of Broadway.

[8] Broadway’s response explained that its’ position was Ms O’Brien was an agent of 
Jamrok who performed work for Broadway’s benefit on Jamrok’s behalf, pursuant to the 
Jamrok Agreement.

[9] Separately Broadway objected to Ms O’Brien’s application on the grounds that she was 
not dismissed by Broadway but rather Broadway had terminated the Jamrok Agreement 
between itself and Jamrok.

[10] Broadway also opposed Ms O’Brien’s application on a range of other grounds.

[11] Mr Chambers is Ms O’Brien’s son. Collectively they will be referred to in this decision 
as the Applicants.

[12] The Commission noting the jurisdictional objections raised by Broadway referred both 
applications to myself for hearing and determination.

[13] Following a directions hearing, on 18 August 2021 the Commission issued a decision 
which amongst other things records the consent of the parties for these two applications to be 
case managed together and the jurisdictional objections to the applications to be heard 
concurrently.1

Preliminary applications 

[14] Prior to the hearing there were a series of applications made by the Applicants and by 
Broadway for production of documents. The Applicants also sought a number of orders for 
witnesses to attend the hearing.

[15] There were a number of applications made by the Applicants for extensions of time to 
file materials and for relisting of the hearing to later dates.

[16] The Applicants filed a number of appeals of procedural decisions being C2021/6653 
which was discontinued, C2021/745 which was dismissed by the Full Bench and C2021/7367.

[17] Five days before the jurisdictional hearing was to commence the Applicants filed a 
recusal application which the Commission listed for the first day of hearing of the jurisdictional 
objections which was to be 8 November 2021. 

[18] This recusal application was then discontinued the day prior to it being heard.








[2022] FWC 332

3

The hearing

[19] The hearing of Broadway’s jurisdictional objections to the applications proceeded over 
three days being 8, 9 and 11 November 2021.

[20] At the hearing Mr Chambers and Ms O’Brien gave evidence on their own behalf. 
Witnesses ordered to attend at the request of the Applicants who gave evidence were Mr 
Rodney Hart (Mr Hart) and Mr Mark Basso-Brusa (Mr Basso-Brusa).

[21] The following witnesses gave evidence for the Respondent; Mr Michael Gangemi (Mr 
Gangemi), Ms Verity Phoenix (Ms Phoenix), Mr Peter Gobetti (Mr Gobetti), Ms Sharene 
Leatherbarrow (Ms Leatherbarrow), Mr Guy Singleton (Mr Singleton), Mr Barry John Honey 
(Mr Honey) and Mr Nicholas Parkinson (Mr Parkinson).

[22] As foreshadowed by the Commission at the conclusion of the hearing sometime after 
the hearing the High Court of Australia issued decisions in the matters of CFMMEU v 
Personnel Contracting Pty Ltd (CFMMEU v Personnel Contracting)2 and a ZG Operations 
Australia Pty Ltd v Jamsek (ZG Operations v Jamsek)3 both of which dealt with matters central 
to determining these applications. Consequently, the parties were directed to provide further 
written submissions in light of these High Court cases which the Commission has had the 
opportunity to consider.

[23] With respect to witness credibility, I found both Mr Chambers and Ms O’Brien under 
cross-examination at times to be evasive in their answers and their evidence often to be self-
serving. They were both at times resistant to obvious propositions such as that it is inconsistent 
to, in these proceedings, argue they are employees of Broadway whilst in other proceedings 
initiated by Ms O’Brien in August 2021 in a separate jurisdiction it is claimed that Jamrok is a 
contractor that provided services to Broadway and to make claims directly to Broadway for 
monies purportedly owed to Jamrok.4 

[24] The demonstrated collaboration between Mr Chambers and Ms O’Brien in the 
preparation of their witness statements raised further questions about their credibility.

The evidence 

[25] Mr Chambers’ application as filed says he began working for Broadway on 30 
September 2019.

[26] Ms O’Brien’s application as filed says she first worked for Broadway on 28 October 
2019.

[27] Both applications say the Applicants were dismissed by Broadway on 11 June 2021.

[28] Ms O’Brien’s evidence in chief is that she operates Jamrok for the primary purpose of 
receiving pay from builders that operate independent contractor arrangements. 








[2022] FWC 332

4

[29] Her evidence goes on to say that she has now discovered this to be called sham 
contracting.5 

[30] Mr Chambers’ evidence is that when the relationship with Broadway terminated his 
understanding of the sham contracting provisions of the Act changed and that is why he had 
never previously suggested he was an employee.6

[31] Various witnesses use the terms Building Design Consultant, Sales Representatives or 
Sales Consultant to describe the same role.

[32] Ms Phoenix is the Group Accounts Manager or the Group Accountant for the Delstrat 
Group (Delstrat). 

[33] Delstrat is a group of building and construction companies including HALPD Pty Ltd 
T/A Affordable Living (Affordable Living), Ideal Homes Pty Ltd T/A Ideal Homes and 
Broadway Homes Pty Ltd T/A Broadway Homes.

[34] The accounts department which she manages make payments from Broadway to its 
contractors and suppliers. They make sure they have a current agreement on file for their 
contractors who sell building contracts for Broadway.

[35] Her evidence was that contractors who sell building contracts for Broadway are paid 
commission payments when a client they have secured for Broadway enters into a building 
contract with Broadway and there is a concrete slab laid down on their property. They are also 
sometimes paid bonus payments for the clients they secure.

[36] Broadway also sometimes advances money to contractors who sell building contracts 
for Broadway when commission payments or bonus payments are not yet payable. Those 
advances are a debt to Broadway and Broadway keeps records of what amounts have been 
advanced.

[37] When a contractor then is entitled to commission or bonus payments any previous 
advances are deducted by Broadway.

[38] Delstrat’s accounts department generates invoices to Broadway on behalf of contractors 
who sell building contracts for Broadway. These are known as “Recipient Created Tax 
Invoices” or RCT invoices.

[39] RCT invoices must comply with requirements set by the Australian Tax Office (ATO) 
including that the party to whom the funds are paid under the invoice is a company registered 
for GST.

[40] She says that if someone is a sole trader or not registered for GST they cannot be issued 
with RCT invoices and they must prepare their own invoices.

[41] She explains it is more convenient for Delstrat to generate RCT invoices for sales 
contractors rather than wait for the contractor to issue them an invoice because before Delstrat 








[2022] FWC 332

5

would pay any invoice from a contractor it would need to confirm all the details of the 
commission payments, bonuses, deductions, advances or discounts.

[42] Her evidence was that from time-to-time Jamrok was a contractor to Affordable Living 
and to Broadway. 

[43] She says from 2014 until around 2016, Jamrok was a contractor to Broadway and Mr 
Chambers and Ms O’Brien were the people who did the work on Jamrok’s behalf.

[44] Ms Phoenix provided copies of over 20 RCT invoices from Broadway to Jamrok for the 
period 30 September 2014 to 30 September 2016.7 

[45] Her evidence was also that from around 2019 that Affordable Living and Broadway paid 
commissions and bonuses to Jamrok.

[46] Ms Phoenix provided copies of RCT invoices from Delstrat, being Affordable Living 
and Broadway, to Jamrok for the period 31 August 2019 to 31 May 2021 for such commissions 
and bonuses.8 

[47] Ms Phoenix provided a copy of a document headed “Sales Reps Details” which includes 
the details of Mr Chambers, the company name as Jamrok Pty Ltd, the ABN being 47 149 956 
114, it being registered for GST and the address being 670A Beach Road Hammersley, WA 
6022. The second page is headed “Sales Reps Bank Details” and lists the company name as 
Jamrok Pty Ltd with the same ABN, and the banking details for the account name Jamrok Pty 
Ltd. No personal bank details for Mr Chambers are listed.

[48] This appears to be signed by Mr Chambers and dated 10 October 2013.9 

[49] Her evidence also included a copy of a document with a Broadway footer headed 
“Starter Pack Building and Design Consultant” the second page under the heading “Personal 
Company Details” shows Peter Chambers, the company name as Jamrok Pty Ltd and the same 
ABN and street address as for the 2013 documents above. The third page includes bank details 
for Jamrok Pty Ltd which are the same as for the 2013 documents above. No personal bank 
details for Mr Chambers are listed. This appears to have been signed by Mr Chambers on 5 
March 2020.

[50] The next page includes emergency/medical information for the position of Sales 
Consultant and includes the personal details of Mr Chambers and identifies Ms O’Brien as the 
contact in case of emergency. This also appears to have been signed by Mr Chambers on 5 
March 2020.

[51] Additional pages include rules regarding smoking, alcohol and other drugs on 
Broadway’s premises and refers to staff members potentially being dismissed. This was also 
apparently signed by Mr Chambers on 5 March 2020. Finally, he has also signed an agreement 
to be a member of the non-profit social club and for deductions to be made for that purpose. 
This also appears to have been signed by Mr Chambers on 5 March 2020.








[2022] FWC 332

6

[52] The evidence in chief of Ms O’Brien is that she had worked with Broadway as a 
Building and Design Consultant in 2014. She confirms that commission payments were paid 
into her company Jamrok by way of RCT invoices. In 2014 there were two Directors of Jamrok, 
herself and Mr Massey. By 2019 she was the sole Director.

[53] Mr Chambers’ evidence was that before accepting an offer from Mr Gobetti in late 2019 
to join the Broadway team, he had declined similar offers from Mr Gobetti because he was then 
employed by another builder that paid him a regular salary rather than a full commission-based 
position.10 

[54] Ms O’Brien’s evidence in cross-examination was that in mid-2019 she had been 
providing services, on Jamrok’s behalf, as a contractor on occasion to draw up floor plans for 
clients of GMAC Realty.11 At the same time she was also working part-time as an employee 
for GMAC Realty.

[55] Mr Chambers’ evidence in chief was that he held the position of Building and Design 
Consultant with Broadway from 23 September 2019 and then as Sales Manager from 16 June 
2020 until he was dismissed on 11 June 2021.

[56] He says he originally reported to Mr Gobetti who was then the Sales Manager and once 
he became Sales Manager he reported to Mr Gangemi and Mr Singleton.

[57] He says he did not operate a company with an ABN and was not registered for GST.

[58] In September 2019 he says he accepted an offer from Mr Gobetti to join as a Consultant. 

[59] He says he was never asked if he had a company or whether he was registered for GST 
or had insurance such as workers compensation or public liability.

[60] The only discussions about the terms were related to the percentage commission and 
bonuses he could potentially earn. He says he began at the North Beach display home on the 
weekend of 28/29 September 2019.

[61] He understood he would not be paid for a period because payments are generally not 
made until the slab is down which can be anywhere from 6 to 12 months from the initial sale 
of a home.

[62] His evidence was that he was not being paid until July 2020 “...at which point Broadway 
had begun paying regular sums to Jamrok Pty Ltd and in turn my wages could be covered.”12 

[63] There is no evidence that Broadway ever paid monies directly to Mr Chambers, such as 
to his personal bank account.

[64] He says he was expected to open a display home every weekend and public holiday 
from 1:00 p.m. to 4:00 p.m. He was provided with Broadway branded polo shirts that could be 
worn while he worked in their office or at the display home. He was provided with a Broadway 
email address for communications between himself and the office and clients. He was provided 
with Broadway business cards identifying himself as a Building and Design Consultant 








[2022] FWC 332

7

including his personal mobile phone number and the Broadway email address; including other 
Broadway company details.

[65] His evidence was he had access to Broadway’s office with the alarm code, and keys for 
construction sites at their display homes.

[66] He says whilst he had access to the premises at any time the open plan nature of the 
office meant he was more productive outside normal office hours.

[67] He had keys and alarm codes for display homes to show potential clients through.

[68] He had Broadway stickers with his name and phone number to place on construction 
sites signs.

[69] He said he had access to Broadway’s computer drives that contained relevant 
documentation and forms required. Broadway’s IT department provided assistance to him on 
computer related issues.

[70] Broadway provided him a comprehensive Building and Design Consultant Guide he 
could refer to which explained in detail how to complete the various required tasks of a 
Consultant.

[71] He was a member of the ABI social club and attended regular events.

[72] He was invited along with the rest to Broadway staff to the annual Christmas party.

[73] Regarding Ms O’Brien, Mr Chambers says Mr Gobetti in October 2019 asked him 
whether his mother might be interested in a Sales Consultant role with Broadway. He replied 
that Mr Gobetti should speak to her directly. His evidence was he was not otherwise involved 
in her engagement.

[74] He doesn’t recall when but sometime after he had commenced work with Broadway he 
was provided with a copy of the Jamrok Agreement.13 

[75] He says he did not pay too much attention to the detail except that it provided the 
commission structure he had agreed with Mr Gobetti previously.

[76] The Jamrok Agreement is 11 pages in length. The front page is dated 5 March 2020 and 
says it is,

“Between: 

Broadway Homes Pty Ltd
(Hereinafter called “the Company”)

And: Peter John Chambers 
(Consultant Name) 








[2022] FWC 332

8

Building & Design Consultant 
(Hereinafter called “the Consultant”)

Of:  Jamrok Pty Ltd 
(Company name ABN/ACN)”

[77] The Jamrok Agreement is apparently initialled by Mr Chambers on every page and 
signed on the 10th page on 5 March 2020 by Mr Chambers as “The Consultant”. 

[78] It is signed by Mr Gobetti on behalf of Broadway.

[79] Page 2 says that it is agreed that,

“The Company agrees to employ the Consultant as a new homes Building & Design 
Consultant to negotiate and sell Lump Sum Building Contracts under the registered 
Builders License of the Company.”

[80] The Jamrok Agreement is only personalised for Mr Chambers by limited handwritten 
insertions being on the front page, the date, then Mr Chambers’ name as the Consultant and 
also Jamrok Pty Ltd as the Consultant’s company name are handwritten in. On page 10 the date, 
Mr Chambers’ name, signature and address and on page 11 the bottom of Schedule A - Rate of 
Remuneration his name and signature are all handwritten.

[81] Throughout the Jamrok Agreement the term “...he/she...” is used repeatedly. 

[82] I am therefore satisfied, and Mr Chambers confirmed as much, that the Jamrok 
Agreement is a generic Broadway agreement for the engagement of Building and Design 
Consultants.14 

[83] The Jamrok Agreement includes in summary, relevantly, the following terms.

[84]  That the Consultant agrees that they will perform the conditions of the Jamrok 
Agreement and their duties to the highest professional standard, act loyally towards Broadway, 
undertake duties as assigned to them and discharge such duties by observing and complying 
with all directions given, be available for such hours of work as may be reasonably required by 
Broadway and attend training sessions and sales meetings.

[85] The Consultant at their expense shall provide, operate and maintain, a vehicle insured 
for business purposes and an after-hours telephone number, a mobile phone and a laptop 
computer, iPad or iPhone or any other communication equipment required by Broadway.

[86] The Consultant shall not without consent to Broadway be engaged directly or indirectly 
in any, trade business or occupation which interferes or is in conflict with Broadway’s business 
or interferes with performance of their duties.

[87] The Company agrees that, 








[2022] FWC 332

9

“(d) Due to the terms of this Agreement being a contractual agreement to subcontract 
under the Builders License, make all commission payments inclusive of GST. The 
Company shall not make Superannuation contributions on behalf of the Consultant as it 
is not required to do so.”15 

[88] A Consultant rostered for office duty agrees to be present at the Company’s premises to 
receive sale enquiries. A Consultant rostered at an allocated display home agrees they shall 
adhere to the Company’s hours of operation and arrive 15 minutes prior to opening hours to 
prepare the display home.

[89] The Company set sales budgets to a minimum target after consultation with the 
Consultant normally at a structured performance review.

[90] If the Consultant wishes to build a house a discount structure is available across the 
Company’s brands but this discount will only apply if the Consultant is currently employed at 
the completion of construction.

[91] If the Company incurs a penalty or fine imposed by the Department of Consumer 
Protection or the Builders Registration Board as a result of a wrongful act or negligence of the 
Consultant, the Consultant shall pay to the Company or have deducted from monies owing the 
full amount of such penalty or fine unless this is covered by the Company’s professional 
indemnity policy.

[92] In the event of any dispute arising between the parties relating to matters provided by 
the Jamrok Agreement or the rights obligations and liabilities of the parties hereto shall be 
referred to the Industry Arbitration Panel for adjudication.

[93] The following debts if incurred will be debited from the Consultant’s commission, 

 Personal business expenses in the name of the company such as advertising, printing, 
bulk postage, telemarketing, brochures and delivery of material etc other than 
expenses expressly approved by the Manager in writing.

 Advance payment of commission.

[94] The Consultant agrees that they are: 

 Entitled to unpaid leave of 20 working days.

 NOT entitled to paid leave pertaining to holiday, personal (sick & compassionate), 
parental or long service leave.

[95] The Consultant will receive 4% commission payment of the lump sum building contract 
value, exclusive of site works and GST. The Consultant will receive a bonus commission 
payment of 0.5% if they achieve lump sum building contract value equating to $1 million or 
more including GST for a specified month.








[2022] FWC 332

10

[96] Sales bonuses due shall be paid when the final job has commenced to slab down on-site 
from the home sales that achieved bonus. Should a sale attributed to bonus for that month be 
cancelled and so the contract value has dropped below $1 million the bonus will be forfeited.

[97] Payment for both commission sales and commission sales bonuses will be made to the 
Consultant’s respective registered company. The Company is not responsible for tax being 
withheld if you operate as a sole trader or a company. The Consultant will receive all 
commissions paid gross. It is the responsibility of the Consultant to make sure they pay the 
applicable tax, superannuation and GST as required by corporate law and the ATO.

[98] On the same day, 5 March 2020, that Mr Chambers signed the Jamrok Agreement he 
also signed a Deed of Acknowledgement (the Deed).

[99] Mr Chambers’ evidence in chief regarding the Deed was that approximately five months 
after he started with Broadway, he requested an advance on the commissions he had earned as 
the financial position Ms O’Brien and he were facing was extremely tight.

[100] Mr Chambers says Broadway refused to pay any money until he had signed the Deed. 
He says it was a take it or leave it offer and he was not provided an opportunity to negotiate or 
alter the terms of the Deed.

[101] He says Ms O’Brien had been engaged with Broadway for approximately four months 
however she was not asked to sign the Deed even though she was the Sole Director of Jamrok.

[102] His evidence was that Jamrok is the company name that Broadway would pay their, his 
and Ms O’Brien’s, commissions through.16 

[103] The Deed’s cover page shows the Deed is between, Broadway Homes Pty Ltd and 
Jamrok Pty Ltd and identifies Peter Chambers as the “Guarantor”.

[104] The Deed says as follows,

“(A) Upon appointment of the Consultant the Builder agreed to advance the monies 
prior to receipt of the commission payment.

(B) The Consultant enters into this Deed to acknowledge that he/she/it is indebted 
to the Builder, pursuant to the outstanding full amount stated on their most recent 
monthly remittance, for or in respect of commission payment as further 
documented herein.

(C) The Guarantor agrees to perform the obligations of the Consultant under this 
Deed if the Consultant is a corporate entity.”

[105] The Deed was executed with by Mr Basso-Brusa and Mr Carl Basso-Brusa each signing 
as a Director of Broadway.

[106] It is also signed by Mr Chambers, apparently signing it as a Director of Jamrok “...in 
accordance with section 127 of the Corporations Act 2001 by authority of its directors:”.








[2022] FWC 332

11

[107] The Commission notes that on his own evidence Mr Chambers was not a Director of 
Jamrok.17 

[108] In June 2020, Mr Chambers says he was offered the position of Sales Manager with 
Broadway.

[109] This was announced to staff in an email by Mr Singleton on 29 June 2020. He advised 
staff Mr Chambers was now the Sales and Marketing Manager. His email explained that not 
only will Mr Chambers continue to sell; a significant part of his role will be focused on 
supporting and leading the Sales Team.

[110] Around this time Mr Chambers was also involved in the process of preparing a new 
display on West Coast Drive.

[111] He says as Sales Manager the four remaining Building and Design Consultants reported 
to him. He also later recruited two additional Consultants.

[112] He provided the roster for display homes. He provided mentoring and helped to secure 
more sales for Broadway.

[113] Mr Chambers’ evidence is that he was involved in a number of staffing changes. He was 
heavily involved in the general marketing for Broadway, proofing various items ranging from 
business cards to site signs and large format advertising signs.

[114] He says he created a script and was interviewed for two television segments for “Home 
in WA” as a Broadway representative.

[115] He says he improved the display home program for Broadway including negotiating 
with two interstate clients to rent their new homes back after completion so they could be used 
as display homes.

[116] Under cross-examination Mr Chambers agreed that he had been employed for a period 
by Jamrok. There were a series of payslips which demonstrate he was being paid a salary, which 
ranged from $80,000 per annum to later being $156,800 per annum, by Jamrok from August/ 
September 2020 to at least December 2020.18 

[117] At no time during his relationship with Broadway did Mr Chambers ever query the 
nature of the relationship with Broadway nor how it operated in practice nor how he was paid 
through Jamrok.

[118] Ms O’Brien explained that she had previously worked for Broadway in 2014 but this 
ended when Mr Gobetti became aware she was also part-time employed elsewhere.

[119] In mid-2019 she was working as a Sales Consultant for Karma Resorts selling holiday 
packages in Bali.








[2022] FWC 332

12

[120] In late October 2019 she met with Mr Gobetti. He had a position for a Building and 
Design Consultant to share the Dianella display home with Mr Hart, another Consultant.

[121] She was not asked whether she had a company or was registered for GST or had any 
public liability or workers compensation insurance.

[122] The only discussion about the terms related to the commission structure and how much 
she would be paid per sale.

[123] She accepted the position with Broadway and commenced on 3 November 2019.

[124] Her evidence in chief was that she was not provided with an agreement nor an 
employment contract at any time during her period with Broadway.19 

[125] She had told Mr Gobetti that she would be continuing with real estate on a part-time 
basis which he understood. Consequently, she was also undertaking home opens for GMAC 
Realty.

[126] She then contacted Mr Hart and they agreed on a mutually acceptable arrangement 
regarding sharing the Dianella display home.

[127] Her evidence was that real estate listings/sales were offered by her to Broadway clients 
as a “value added service” with reduced sales commissions. By offering reduced commissions 
on the sale of established houses this allowed to her to secure more building contracts for 
Broadway.

[128] There were six clients she identifies who needed to sell their properties or they would 
not have been able to enter into a contract to build with Broadway.

[129] Her evidence was she was expected to open the Dianella display home on Sunday and 
public holiday Mondays from 1:00 p.m. until 5:00 p.m.

[130] She was later asked by Mr Chambers to open the Jindalee display home on Saturdays 
and Wednesdays.

[131] On numerous occasions she was requested to open other Broadway display homes to 
allow other Consultants to take time off.

[132] She was expected to attend weekly sales meetings in the Broadway office.

[133] She was expected to attend the supplier meetings with Broadway clients, for example at 
a meeting with the tile supplier whilst the clients selected their tiles.

[134] She was expected to obtain design briefs from prospective clients and submit these to 
the Sales Manager for the design concept to be produced by Broadway’s design department.

[135] She attended various Broadway staff social functions including a Christmas party.








[2022] FWC 332

13

[136] She had a Broadway email address and business cards. She was given access to 
Broadway’s office with alarm codes, an access fob and keys to Broadway’s construction sites 
and display homes.

[137] She had Broadway stickers to place on construction sites with her details.

[138] Broadway’s IT department provided access to Broadway’s drives from her personal 
laptop so she could access information necessary to do her job for Broadway.

[139] Broadway supplied her with the Building and Design Consultant Guide which was a 
how-to guide to complete all the tasks of a Consultant.

[140] Ms O’Brien’s commission payments were paid to Jamrok, her company, by way of a 
RCT invoice.20 

[141] There is no evidence that Ms O’Brien ever provided her personal banking details to 
Broadway.

[142] Her evidence was that in 2019 Mr Chambers was employed by Affordable Living and 
their method of payment of his commission was to be through Jamrok. Her evidence was that 
Delstrat produced a Deed of Acknowledgement to be signed by Jamrok. She says they were 
aware she was the Sole Director and she signed this Deed.21 

[143] She says that when Mr Chambers moved from Affordable Living to Broadway 
unbeknownst to her a new Deed of Acknowledgement was produced and given to Mr Chambers 
to sign as a Director of Jamrok.

[144] Her evidence was that during her time at Broadway business expenses to do with her 
work for Broadway were paid from the remuneration from Broadway. She already owned her 
car and phone and her only expenses were for fuel, internet and phone usage.

[145] The evidence is that Ms O’Brien, the Owner and Sole Director of Jamrok, was at all 
times between late 2019 and the middle of 2020 intimately aware of the financial arrangements 
operating in practice between Broadway and Jamrok. She was directly involved in handling the 
transactions between Broadway and Jamrok, such as the regular RCT invoices concerning 
payments of commissions to Jamrok that resulted from sales that both Mr Chambers and herself 
had achieved for Broadway. She managed Jamrok’s day-to-day financial affairs including 
banking, taxation, loan repayments, payments of Jamrok’s operating expenses and payments 
from Jamrok to Mr Chambers and herself. Ms O’Brien also generated and issued Jamrok 
invoices to other businesses such as GMAC Realty and on occasion, when making financial 
claims against it, to Broadway.22 

[146] At no time during her relationship with Broadway did Ms O’Brien ever query the nature 
of the relationship nor how it operated in practice nor the fact that her commission payments 
were made to Jamrok. 

[147] It is not disputed that the only monies ever paid for commissions or bonuses earned by 
Mr Chambers, as a Sales Consultant and as the Sales Manager, and Ms O’Brien as a Sales 








[2022] FWC 332

14

Consultant (minus any adjustments or giveaways) was paid by Broadway to Jamrok. These 
payments followed the creation of monthly RCT invoices by Broadway and were inclusive of 
GST. No payments were ever made to the Applicants.23

[148] No superannuation was paid to Mr Chambers or Ms O’Brien’s superannuation funds 
nor was paid leave granted to them.

[149] The evidence in chief of Mr Gobetti was that between 2007 and June 2020 his company 
Regalwise Pty Ltd (Regalwise) was contracted to Broadway.

[150] The services Regalwise provided to Broadway was to manage the Sales Team and for 
him to act as Sales Manager. Broadway engaged a number of contractors who are called “Sales 
Representatives” to follow-up on enquiries and to close deals with customers looking to build 
a new home. These Sales Representatives and himself made up the Sales Team in Broadway.

[151] The Sales Representatives manned the Broadway display homes which were generally 
open on Saturdays and Sundays and his evidence was he left it up to the Sales Representatives 
to work out amongst themselves who would be manning which display homes at what times.

[152] He usually reported and provided updates to Mr Gangemi, the Group General Manager 
on the Sales Team’s performance.

[153] The Sales Representatives had written subcontractor agreements with Broadway. At 
different times he was involved in making changes to different versions of the subcontractor 
agreement.

[154] The Sales Representative contractors were only paid when they assisted a client to sign 
a building contract with Broadway and a concrete slab was laid for the client’s home.

[155] Regalwise was paid for providing him as the Sales Manager, a commission based on the 
percentage of the total value of sales in Broadway.

[156] He says that during the time he performed work for Broadway on a number of separate 
occasions Mr Chambers was a Sales Representative for Broadway and other companies within 
Delstrat through the company which engaged him, which was Jamrok.

[157] His evidence was that Mr Chambers was keen to engage his mother, Ms O’Brien to 
work with him, he says as Mr Chambers’ assistant.

[158] His evidence was that he remembers there were definitely subcontractor agreements 
signed by Mr Chambers for the periods that Jamrok performed work for Broadway.

[159] He did not recall whether Ms O’Brien signed a subcontractor agreement or not.

[160] He confirmed he and Mr Chambers signed a subcontractor agreement in 2014 which 
provides for Mr Chambers to provide services to Broadway, which he identified.24 








[2022] FWC 332

15

[161] He also identified the Jamrok Agreement dated 5 March 2020 and agrees it includes his 
handwriting and signature.25 

[162] He similarly confirmed that he signed the Deed dated 5 March 2020.26 

[163] Under cross-examination he agreed he was neither a Director nor an employee of 
Broadway, but his evidence was he had a verbal authorisation to execute documents on behalf 
of Broadway. He took signing such documents seriously and believed he was authorised to do 
so at the time.27 

[164] The evidence of Mr Basso-Brusa, one of the three Directors of Broadway, under cross-
examination was that some contractors on behalf the Broadway have the authority to do certain 
things for the organisation which are approved by the Directors.28 

[165] He identified the Jamrok Agreement as the document Broadway uses to engage a new 
Sales Consultant.29 

[166] Mr Basso-Brusa’s evidence under cross-examination was that in March 2020 when Mr 
Gobetti signed the Jamrok Agreement he had the role of Sales Manager and General Manager 
of Broadway.30 

[167] Mr Basso-Brusa’s evidence was that Mr Gobetti was not an employee of Broadway he 
was a contractor like the Sales Consultants.31 

[168] Mr Basso-Brusa’s agreed that Mr Gobetti would not have signed the agreements without 
having authority to do so.32 

[169] Returning to the evidence of Mr Gobetti, his evidence was that Mr Chambers would 
have had to have had a proprietary limited company to have worked for Broadway.33 

[170] Mr Gobetti under cross-examination said that Mr Chambers suggested to him that Ms 
O’Brien come back and work with them like the old days and he had replied that this was a 
good idea because they were a good team. He denies that he interviewed Ms O’Brien.34 

[171] His evidence was that when Ms O’Brien began working with Mr Chambers he says they 
worked together as a team, there was no distinction between the commission payments for 
building contracts secured for Broadway as a result of Mr Chambers’ or Ms O’Brien’s work. 
Any commissions payable secured by either of them were paid to Jamrok.

[172] His evidence was that Broadway counted Mr Chambers’ and Ms O’Brien’s sales 
together when working out what bonus payments Jamrok was to be paid.

[173] He recalls that other Sales Representatives were annoyed with this arrangement because 
their bonus payments were only calculated on the sales they achieved individually.

[174] He says that in 2019 Mr Chambers contacted him and they discussed him coming back 
to Broadway.








[2022] FWC 332

16

[175] Later in 2019 he had another discussion with Mr Chambers who told Mr Gobetti that he 
would like to come back to Broadway. He says Mr Chambers also told him that Ms O’Brien 
would be coming back to work with him.

[176] His evidence was that when Ms O’Brien was engaged in 2019 it’s possible he offered 
her an employment contract. His evidence was they had an agreement when someone came on 
board that was put together by Administration or Accounts and it had multiple documents in 
there. Generally, they were ABNs, company details and the requirements that he or Broadway 
wanted from a representative for the company selling houses.

[177] His evidence was it was possible Ms O’Brien executed one of those contracts he 
couldn’t recall.35 

[178] Evidence was given by Mr Hart. To the extent his evidence was relevant he confirmed 
that he had been working with Broadway for over eight years. He worked as a Sales Consultant. 
He is a Director of a company, Denver Management (Denver). This company has done a lot of 
things over the years but primarily, at the moment, is receiving his income from Broadway. 
Denver has a contract with Broadway.

[179] When Mr Hart started with Broadway, Broadway asked that there be a contract between 
it and Denver.

[180] Denver invoices Broadway for the work that he does as a Sales Representative.

[181] He agreed he took advantage of the corporate structure of his company to split his 
income with his wife and this was beneficial; being tax effective.

[182] If Denver wants to do other business than that it does currently with Broadway there is 
no reason it can’t do this.

[183] Over the last year Denver generated approximately 90% to 95% of its income from 
Broadway.

[184] His evidence was the contract between Denver and Broadway provides him with 
flexibility to decide what hours he works, where he works and what days of the week he works.

[185] The evidence in chief of Ms Leatherbarrow was that she has worked in the real estate 
and building industry since 1998.

[186] Her company Heart Homes Pty Ltd was a contractor to Broadway from 2013 for 
approximately 12 months. In this role she followed up enquiries for potential clients who 
wanted to build houses with Broadway. She also referred potential clients from contacts she 
had in the building industry. She generated her own enquiries through selling house and land 
packages. She would contact potential clients and have designs prepared by Broadway to take 
up a building contract with Broadway.

[187] Her company was responsible for paying its taxes and other costs including preparing 
and filing business activity statements and tax returns.








[2022] FWC 332

17

[188] She worked her own hours and could come and go as she pleased. She attended weekly 
Sales Team meetings organised by Mr Gobetti who then was the Sales Manager for Broadway. 
She had a desk at Broadway’s office and used a computer belonging to Broadway but could 
work from home or wherever she chose. She chose not to wear a Broadway uniform.

[189] Between December 2018 and December 2020, she was employed as a Sales Manager 
for Brian Burke Homes. Her role was to sell building contracts for that company. She was paid 
a base salary plus commission fees. Brian Burke Homes deducted tax from the amounts paid to 
her.

[190] Whilst employed with Brian Burke Homes she worked set hours and reported to her 
Manager and she took paid holidays, paid sick leave and paid personal leave.

[191] She left her employment with Brian Burke Homes and in January 2021 and her newly 
created company, SLB Consulting Pty Ltd, became a contractor for Broadway. Her evidence in 
chief was that she became a contractor for Broadway because she enjoyed working 
arrangements where she worked her own hours and could come and go as she pleased. She set 
her own working time and appointments. She could work at Broadway’s office, work from 
home or wherever she chose.

[192] At this time, Mr Chambers was the Sales Manager. Ms O’Brien was also working as a 
Sales Representative at Broadway and her desk at Broadway was next to Ms Leatherbarrow’s.

[193] She understood from Mr Chambers that Ms O’Brien was also working as a Real Estate 
Agent.

[194] Her evidence was that Mr Chambers told her a number of times that he and Ms O’Brien 
work together as a team. This was what she saw was happening in practice.36 

[195] Under cross-examination she explained that Mr Chambers had interviewed her for the 
position of a Sales Consultant.37 

[196] Her evidence was Mr Chambers provided her with documentation required to accept the 
position. It was emailed to her prior to starting at Broadway. However, she never signed the 
document.

[197] Her evidence was that this was not an employment contract.38 

[198] Her evidence was that whilst she reported to Mr Chambers she also reported to a number 
of other Managers within Broadway. She asserted that she was a contractor providing a service 
to Broadway. She did not agree that Mr Chambers had authority over her or was her boss.39 

[199] Her evidence was that if she wanted to, she could have employed someone to assist her 
under the banner of her company.40 








[2022] FWC 332

18

[200] Mr Gangemi is the General Manager of three companies that build residential homes in 
Perth; one of which is Broadway. The three companies are within Delstrat. He has been in this 
position since 2005.

[201] He is a contractor to Broadway.41 

[202] Mr Singleton is the Operations Manager and has been since around 2017 and is 
effectively the second in charge of Broadway. He is responsible for ensuring its contracts and 
buildings are completed and runs smoothly.

[203] Below Mr Singleton are various teams, Administration, Drafting, Design, Estimating, 
Scheduling and Construction.

[204] Mr Gangemi’s evidence was that the Operations Manager and everyone in the 
Administration, Drafting, Design, Estimating, Scheduling and Construction teams, including 
the Managers, are employees of Broadway.

[205] He says these employees are paid a salary from which PAYG tax is deducted. They 
work set hours and Broadway’s office and take paid annual leave and sick leave is approved.

[206] His evidence is that Broadway engages contractors, which are always companies, to 
negotiate and sell contracts to its clients for whom Broadway build homes. Within Broadway 
these people who provide these negotiation and sales services for those contractors are called 
Sales Representatives.

[207] Broadway also engages a contractor to oversee the activities of the Sales 
Representatives. The person who provides that service for this contractor is called the Sales 
Manager.

[208] The Sales Manager and the Sales Representatives are referred to as the Sales Team.

[209] Once there is ‘slab down’ which is when the concrete slab is laid at the building site, the 
Sales Representative is eligible to be paid a commission which is usually 4% of the value of the 
building contract.

[210] If a Sales Representative sells contracts of the value of $1 million or over in a month 
and those contracts reach slab down there is a bonus percentage of a further 0.5% of the total 
value of each of the contracts.

[211] The contractor providing Sales Manager services is paid for these services by an ‘is 
override’ when that contract reaches slab down. That override is a payment of 1.25% of the 
total value of each building contract secured by the Sales Representatives for Broadway.

[212] Across the three businesses, including Broadway, that make up Delstrat there are 
approximately 30 Sales Representatives.42 








[2022] FWC 332

19

[213] Mr Gangemi’s evidence was that the good Sales Representatives could generate 
$500,000 in commissions per year. He estimates the average would be approximately $250,000 
commission per year.43 

[214] Sales Representatives are not required to provide services at any set times or for any 
particular number of days. They work as much or as little as they want. They are however 
expected to advise the Sales Manager if they aren’t going to attend the display home so another 
Sales Representative can be arranged to attend.

[215] His evidence is other than the Sales Manager and ensuring that leads are being followed 
up in a timely way Broadway does not keep track of how Sales Representatives work.

[216] They are offered a booth to work from the Broadway office but are free to work 
wherever they choose. They are required to pay for their own laptop and mobile phone and 
Sales Representatives provide their own vehicle and pay for their own petrol.

[217] Sales Representatives are not required to wear a uniform, but Broadway provides polo 
shirts if they like. They usually wear business clothes.

[218] His evidence in chief is that at different times Jamrok has been a contractor to Broadway 
in the work of negotiating and selling building contracts has been done by Mr Chambers and to 
a lesser extent Ms O’Brien.

[219] He confirms that in March or April 2020 Regalwise stopped providing services to 
Broadway. He had a discussion with Mr Chambers about the fact that Mr Gobetti was leaving 
and so there was an opportunity for Mr Chambers to take on the additional responsibilities of 
Sales Manager.

[220] After that Mr Chambers began providing Sales Manager services for Jamrok to 
Broadway and Jamrok was paid override payments of 1.25% in addition to commission 
payments and bonuses for the contracts it sold.

[221] In reply to the witness statements of Mr Chambers and Ms O’Brien, Mr Gangemi gave 
further evidence to the effect that Broadway does not restrict Sales Representatives from 
earning through other sources of income or doing other work unless it is in direct competition 
with Broadway.

[222] He says Sales Representatives are not required to get involved in the design process but 
may choose to, to assist their clients. They are paid the same level of commission no matter 
how much or how little they are involved in design.

[223] He says that some Sales Representatives like to be involved in the selections of fittings 
and colours by the client, but they are not required by Broadway to be involved in this or the 
pre-start process. Some Sales Representatives choose to be involved because they believe it 
may strengthen their relationship with the client and help the contract progress to slab down at 
a faster rate and so they will become entitled to their commission payments sooner.








[2022] FWC 332

20

[224] With respect to Ms O’Brien under cross-examination his evidence was that his 
understanding was that she was assisting Mr Chambers. His evidence was that Mr Chambers 
actually said that they were “working as one”. He understood they worked as a team. He 
understood she was there to assist Mr Chambers and Jamrok.44 

[225] His evidence was that Sales Representatives did not have PAYG tax deducted, were not 
paid superannuation, and did not have leave entitlements.45 

[226] The evidence of Mr Parkinson which was not contested is that on 30 July 2021, the 
Respondent’s solicitors wrote to Ms O’Brien in her capacity as the Director of Jamrok to inform 
her that the Respondent was ready and able to pay any commission payments due to Jamrok 
under the Jamrok Agreement and by reason of the applications to this Commission, the 
Respondent could not make those payments to Jamrok until the issue as to whom commission 
payments were to be paid was resolved; that is, whether the commission payments should be 
paid to Ms O’Brien and Mr Chambers in their alleged capacities as former employees of the 
Respondent, or to Jamrok as a former contactor to the Respondent.46

[227] Mr Singleton is the Operations Manager of Broadway.

[228] Part of his responsibility is to arrange the commission payments and bonus. Once a job 
achieves slab down, he will process the commission payments and bonuses.

[229] Mr Singleton provided copies of all commission forms submitted by Mr Chambers and 
Ms O’Brien from September 2019 until June 2021.47 

[230] On 4 August 2021, Ms O’Brien wrote to the Respondent’s solicitors wrongly purporting 
on a without prejudice basis48 and in her capacity as the Director of Jamrok, attaching an invoice 
from Jamrok and demanding payment of that invoice. That invoice was for commission 
payments payable in relation to services rendered by Jamrok and was inclusive of GST.49 

[231] On 12 August 2021, Mr Chambers and Ms O’Brien wrote to the Respondent’s solicitors 
attaching a further invoice from Jamrok and demanding payment of that invoice. That invoice 
was for commission payments payable in relation to services rendered by Jamrok.50 

[232] On 20 August 2021, Ms O’Brien wrote to the Respondent’s solicitors in her capacity as 
the Director of Jamrok attaching the invoice referred to above and demanding payment of that 
invoice.51 

[233] On 23 August 2021, Jamrok, through Ms O’Brien in her capacity as Director, filed a 
Form 2 - Application for Adjudication (the Adjudication Application) under the Construction 
Contracts Act 2004 (the CC Act). That application made a claim for payment of the invoice 
referred to at paragraphs above.

[234] The Adjudication Application was expressly made on the basis that Jamrok, pursuant to 
the terms of the Jamrok Agreement, provided professional services to the Respondent.52

[235] The Respondent commissioned an expert report from a Chartered Accountant, Mr 
Honey.








[2022] FWC 332

21

[236] Mr Honey had access to the following documents for the period relevant to these 
applications, Jamrok bank statements, Jamrok’s GST bank statements, invoices generated by 
Broadway for Jamrok, records of payments made by Broadway to Jamrok, information 
provided by Jamrok concerning sums paid from Jamrok, Jamrok’s PAYG and business activity 
statements and Mr Chambers’ payslips from Jamrok.

[237] His opinion in summary is that the legal structure or relationship between Jamrok and 
Ms O’Brien and Mr Chambers was consistent with Mr Chambers being an employee of Jamrok 
who was remunerated by way of the payment of salary by Jamrok and Ms O’Brien being an 
Officer and sole Director of Jamrok who controlled how Jamrok disburses the funds it received 
from its customers and any other sources, including making payments for the benefit of or at 
the discretion of Ms O’Brien.

[238] The structure involved the provision of services through an entity, sometimes referred 
to as a contractor, controlled by the person or persons providing the services which is not 
uncommon in Mr Honey’s experience.

[239] His opinion was that the financial benefits Mr Chambers and Ms O’Brien derived from 
the identified structure, compared to them being engaged directly by Broadway as employees 
relate to, 

 The benefit of determining how best to apply the gross income from the provision of 
services,

 Both having the flexibility to agree among themselves how best to share the gross 
income,

 The capacity for Ms O’Brien to structure payments so that the amount she received 
were on the face of it of a capital nature rather than income, subject to income tax, 

 The capacity to direct payments of the type described immediately above i.e capital 
immediately to Mr Chambers, and

 Various expenses being paid by Jamrok from the gross income received that would 
not typically form part of expenses paid by an employer directly.

[240] Mr Honey was cross-examined on his evidence and report. I accept the evidence of Mr 
Honey summarised above.

[241] The evidence of Mr Parkinson was that in August 2021 Ms O’Brien as a Director of 
Jamrok applied for adjudication under the CC Act. The premise of that application (being the 
Adjudication Application) was consistent with the terms of the CC Act under which a party 
may apply to have a “payment dispute” adjudicated.53 Relevantly:

 a “payment dispute” includes, amongst other things, a dispute arising from a failure to 
pay an amount in a “payment claim”;54








[2022] FWC 332

22

 a “payment claim” means “a claim made under a construction contract - by the 
contractor to the principal for payment of an amount in relation to the performance by 
the contractor of its obligations under the contract”;55 and

 “construction contract” is defined as56:

a contract or other agreement, whether in writing or not, under which a person 
(the contractor) has one or more of these obligations –

…

(c) to provide, on or off the site where construction work is being carried out, 
professional services that are related to the construction work by virtue of section 
5(2).

[242] The CC Act does not apply to a construction contract to the extent that the contract 
contains provisions under which a party is bound to supply services related to construction work 
as an employee.57

[243] Despite initially claiming that he could not recall whether he had any specific 
conversations with Ms O’Brien about making the Adjudication Application Mr Chambers later 
admitted to having such discussions.58

[244] Mr Chambers’ evidence was that he endorsed and supported the decision for Jamrok to 
bring the Adjudication Application59 and the decision to maintain that application was as much 
his decision as it was Ms O’Brien’s.60

[245] The applications before the Commission and the Adjudication Application concern 
substantially the same issue; what amounts are due and payable by the Respondent in relation 
to the Applicants performing work for the Respondent’s benefit.

[246] The Respondent’s solicitors have, on a number of occasions, asked Mr Chambers and 
Ms O’Brien to explain how Jamrok’s demands for payment and its Adjudication Application 
under the CC Act are consistent with their applications in the Commission.

[247] When questioned at the hearing, Ms O’Brien initially could not recall whether she 
responded to those questions.61 Later during her cross-examination, she conclusively confirmed 
that she had not responded to those inquiries.62 

[248] At the hearing, the evidence of the Applicants was that they pursued the Adjudication 
Claim after they realised the Commission’s process was not going to quickly allow them to gain 
what they believed they were owed.63

[249] The Applicants were not able to offer a valid legal basis for bringing the Adjudication 
Application, other than to say that they had been provided with ‘advice’64 and they were 
operating in ‘different jurisdictions’.65








[2022] FWC 332

23

[250] Mr Chambers’ evidence at the hearing was that even though he was involved in the 
decision to bring the Adjudication Application, and he accepted that the basis of the 
Adjudication Application (as a construction contract) was in fact the Jamrok Agreement which 
he says was an employment agreement between himself and the respondent,66 that he 
understood himself to be an employee at the time the Commission applications were filed 
(which was before the Adjudication Application was filed)67 he did not see any problems, nor 
dishonesty, in running both proceedings.68

[251] Mr Chambers and Ms O’Brien both attempted to downplay or ignore the inconsistencies 
between the Adjudication Application and the applications in the Commission.69 When counsel 
for the Respondent put to Ms O’Brien that the Adjudication Application and the applications 
to the Commission were inconsistent, Ms O’Brien repeatedly stated that she “did not believe 
there’s an inconsistency”70 or that she “disagree[ed] there’s an inconsistency”.71 Ms O’Brien 
also gave evidence that “we understood that (indistinct) action (indistinct) process (indistinct) 
and one jurisdiction couldn’t be affected (indistinct) is what we understood to be the case”72 
and that she “understood that it could run separate to this jurisdiction...”.73

[252] During their evidence, the Applicants were unable to provide consistent evidence as to 
who the parties to the contract giving rise to the Adjudication Application were.74

[253] Despite herself preparing the Adjudication Application75, Ms O’Brien refused to accept 
that the contractual basis for Jamrok’s claim was the Jamrok Agreement even though it was 
contained in the Adjudication Application itself.76

[254] It was only at the hearing that the Applicants, for the first time, raised that the 
relationship between Jamrok and the Respondent arose due to a ‘history of payments’77 which 
gave rise to a ‘precedent’78 or a ‘contract by way of action’79 in which there was an ‘implied 
power’.80

[255] Ms O’Brien would not accept that Jamrok had stated in its Adjudication Application 
that the Jamrok Agreement was not a sham contract.81 (Emphasis added)

[256] Mr Chambers gave evidence that the statement contained in the Adjudication Decision 
that “Neither party promotes that the agreement represents the work of an employee in this 
matter” was information that “we [the Applicants] willing gave the Adjudicator”.82

[257] The Adjudicator delivered his determination on 16 September 2021.83 

[258] In the course of determining the Adjudication Application, the Adjudicator found that 
Jamrok, by relying on the Jamrok Agreement as the basis for the Adjudication Application, 
took a “contrary position to that taken [by the Applicants] in the FWC”.84 

[259] Since that decision, Jamrok has continued to attempt to enforce its contractual rights to 
commission payments under the Jamrok Agreement by applying to the State Administrative 
Tribunal (SAT) to apply to review the Adjudicator’s decision on the Adjudication 
Application.85








[2022] FWC 332

24

[260] At the time of her giving evidence in the Commission hearing, Ms O’Brien maintained 
that the application to SAT was on foot with the Jamrok Agreement as the basis of that 
application.86

Submissions

[261] The parties have both made voluminous written closing submissions and it is unhelpful 
to repeat all of those here.

[262] In summary the parties respective positions are as follows.

The Respondent’s submissions

[263] Having regard to the decisions of the High Court CFMMEU v Personnel Contracting 
and ZG Operations v Jamsek the Commission must have regard to the subsequent conduct of 
the parties because of the Applicants’ claims that:

 the Jamrok Agreement between the Respondent and Jamrok dated 5 March 2020 was 
a sham; and

 the Jamrok Agreement was between Mr Chambers and the Respondent. 

[264] Alternatively, and in any event, the terms of the Jamrok Agreement in relation to the 
exercise of control by the Respondent, unpaid leave and use of social media was varied by the 
subsequent conduct of the parties. 

[265] Following the judgments in CFMMEU v Personnel Contracting and ZG Operations v 
Jamsek, the Commission must characterise the relationship between the parties by having 
regard to the rights and obligations of the parties in accordance with orthodox principles of 
contractual construction. 

[266] In light of the principles in the two High Court decisions above and the manner in which 
the parties conducted their cases, the Commission must have regard to the subsequent conduct 
of the parties and other extrinsic evidence to determine whether: 

 the Jamrok Agreement was a sham; 
 Jamrok or Mr Chambers was a party to the Jamrok Agreement; 
 Ms O’Brien provided services pursuant to the terms of the Jamrok Agreement; and 
 the subsequent conduct of the parties varied the terms of the Jamrok Agreement. 

[267] For the reasons previously articulated in the Respondent’s submissions and oral opening 
address, the subsequent conduct of the parties establishes that the relationship between the 
Respondent and Jamrok was one of principal and contractor and there was no employment 
contracts or employment relationships between the Respondent and each of the Applicants. 

[268] Further and in the alternative, a proper reading of the Jamrok Agreement in accordance 
with orthodox principles of contractual construction establishes that it was a contract between 
Jamrok and the Respondent for the provision of services by Jamrok to the Respondent. 








[2022] FWC 332

25

The Applicants’ submissions

[269] The Commission, having regard for CFMMEU v Personnel Contracting and ZG 
Operations v Jamsek should pay particular attention to;

 the continued claims, of the Applicants, that the Jamrok Agreement between 
Broadway and Mr Chambers was a sham, the Jamrok Agreement was not executed in 
accordance with basic contract law, and that neither Jamrok or Ms O’Brien had any 
written agreement with the Respondent;

 the common law indicia judicially accepted and utilised in the Office of State Revenue 
audit into the Respondents’ businesses that found the Applicants to be employees, 
while also valuing the “own business/employer’s business” dichotomy;

 all parties conducted themselves throughout the relationship as though the Applicants 
were representatives of the Respondent and not as principals or agents of their own 
business;

 the terms, that were comprehensively committed to writing, in the Jamrok Agreement 
between Mr Chambers and the Respondent that indicate the true nature of the intended 
relationship including the right to control, direct and an obligation for payment for Mr 
Chambers’ work;

 The absence of any right to delegate work in the terms of the Jamrok Agreement to 
Ms O’Brien or any other person or company; the true parties to the Jamrok Agreement 
and any conduct of the parties that would suggest any implied agreements;

 any variations to these terms due to the subsequent conduct of the parties;

 the Applicants’ personal labour outweighs any mechanical equipment or tools 
provided by the Applicants;

 the scale of mutual reliance and dependency of the parties;

 the Applicants could not sensibly be said to have been carrying on business of their 
own account;

 any previous engagements;

 Mr Chambers’ Sales and Marketing Manager’s role within the Respondent’s Senior 
Management Team.

[270] The Applicants in these matters have continually maintained that;

 the Jamrok Agreement was a sham as a misrepresentation of the true nature of the 
relationship between the Mr Chambers and Broadway;








[2022] FWC 332

26

 there was no written agreement between Ms O’Brien and Broadway;

 there was no written agreement between Jamrok and Broadway;

 the Jamrok Agreement was invalid as an instrument to bind Jamrok, in that it was 
never properly executed or ratified by the Director (Ms O’Brien) of Jamrok;

 the Jamrok Agreement was made further invalid, in that it was never properly executed 
or ratified by the Directors of Broadway; and

 the Jamrok Agreement was not provided to Mr Chambers until five months into his 
employment with the Respondent unlike the circumstances in CFMMEU v Personnel 
Contracting and ZG Operations v Jamsek where the applicants in those cases, had no 
outstanding payments or entitlements when their agreements were reached. McCourt’s 
agreement was signed prior to engagement, while Jamsek had all leave paid out prior 
to starting their new agreement. 

[271] In comparison, the Applicants in these matters had been working for five months, 
without being paid, and had $103,679.64 of unpaid commission in Broadway’s business before 
being given and asked to sign the Jamrok Agreement. The Applicants submit that this is not 
simply a superior bargaining power on behalf of the Respondent, but a strong use of leverage 
as no payments, of the commissions, would have been made without the Jamrok Agreement 
being signed.

[272] The opening paragraph of the Jamrok Agreement states,
 

“The Company (Broadway Homes Pty Ltd) agrees to employ the Consultant (Peter 
Chambers) as a new homes Building and Design Consultant to negotiate and sell Lump 
Sum Building Contracts under the registered Builder’s License of the Company.” 

[273] This opening paragraph sets the scene for the relationship of employer and employee 
while the clauses that follow set out the rights and obligations within that relationship.

[274] It is submitted the clearly defined and succinct paragraph leaves no room for confusion 
or misinterpretation, “the Company agrees to employ” not engage or subcontract to, and more 
importantly it does not describe a principle/contractor arrangement that provides agents to work 
for “the Company”.

[275] In fact, there is no mention of “agent, principal, contractor, delegation, nominated agent 
or even independent” throughout the entire Agreement. This further reduces the chance of 
misinterpretation that the agreement is setting out anything other than an employer and 
employee relationship.

[276] The Jamrok Agreement fails to categorically exclude that it is not an employment 
contract. In fact, in reference to Schedule A – Rate of Remuneration it states “[t]he Company 
is not responsible for tax being withheld if you operate as a Sole Trader or a Company”. The 
proposition can therefore be assumed that if the individual operates as an employee, then “the 
Company” is responsible for tax being withheld.








[2022] FWC 332

27

[277] In regard to the Respondent’s claim that Jamrok was able to provide “agents” to work 
for Broadway, the Applicants refer the Commission to clause 6(b) of the Jamrok Agreement 
that specifically states that Mr Chambers was NOT allowed to “reveal to any person(s) or 
company, any business information relating to the Company”. This clause categorically refutes 
the Respondent’s claim as Mr Chambers could not, and did not, reveal business information for 
the purpose of delegating his work or to provide “agents” to Broadway.

[278] Should the Respondent have intended, as they claim, to create a structure that allowed 
for Jamrok to provide agents to Broadway, their agreements would have been very different in 
that there would have been a Labour Hire Agreement (that allowed for multiple 
agents/labourers). However, this was not the case.

[279] The argument that the Applicants were agents (since there were two of them using the 
same payment vehicle) cannot apply to the vast majority of the Respondent’s exclusive 
individually engaged Sales Representatives, that have signed agreements with identical terms. 
In essence, this argument could not be used to defend similar claims from their exclusive Sales 
Representatives and should not have any weight in these matters either.

[280] Numerous other clauses and terms that specifically refer to employment, rather than 
independent contractor, further reduce any ambiguity as to the true nature of the relationship 
and these have been previously examined in the Applicants’ submissions.

[281] The judgements in CFMMEU v Personnel Contracting and ZG Operations v Jamsek 
provide further support to the Applicants claims that they had an employer/employee 
relationship with the Respondent.

[282] The Respondent conducted their case in a manner to disguise the true nature of the 
relationship by attempting to focus the Commission’s attention on Jamrok and that it was 
engaged in sufficient enterprise. However, they failed to address the basic common law indicia, 
the rights, and obligations that the parties conducted themselves under and the sheer scale of 
the dependency of both parties on one another that provided a balance of evidence to 
characterise the relationship as one of employer/employee.

Consideration

Mr Chambers: C2021/3763

Introduction

[283] Mr Chambers’ application filed under section 365 of the Act identifies his employer as 
Broadway. In section 3.1 of his application as filed he states that on 30 September 2019 he 
accepted a Sales Consultant position at Broadway. He further states in his application that “On 
5 March 2020, a written agreement was entered into between me and Broadway...”.

[284] In his witness statement filed in the Commission on 12 October 2021 he says in 
September 2019 he accepted an offer of Mr Gobetti from Broadway to join the team. His 








[2022] FWC 332

28

evidence is that the only discussions about the terms of his employment related to the 
percentage commissions and bonuses he could potentially earn.87 

[285] Notwithstanding his evidence that these were the only discussions about his 
employment his evidence in chief was that he understood that he would not be paid for a 
significant period because payments in the construction industry are generally not made until 
‘slab down’ stage, which can be anywhere from 6 to 12 months from the initial sale of the 
home.88 

[286] His evidence in chief was that he does not recall exactly when he was provided a copy 
of the Jamrok Agreement89 however it was well after he had commenced with Broadway.

[287] He says he did not pay too much attention to the detail of the Jamrok Agreement except 
that it provided the same commission structure that had been agreed.

[288] His evidence in chief is that in late February 2020 he requested an advance on 
commissions but he says Broadway refused to pay him any money until he had signed the 
Jamrok Agreement and the Deed90. 

[289] His evidence was that Jamrok was the company name that Broadway would pay their 
commissions to.91 

[290] On 5 March 2020, Mr Chambers signed both the Jamrok Agreement and the Deed and 
Broadway afterwards in accordance with the Deed paid him an advance on commissions as he 
had requested.

[291] The cover sheet of the Jamrok Agreement shows it is an agreement made on 5 March 
2020 between Broadway and Mr Peter John Chambers, as Building and Design Consultant (the 
Consultant) OF Jamrok Pty Ltd. Each page is initialled by Mr Chambers and he signed the 
document on page 10 as the Consultant and signed Schedule A - Rate of Remuneration on page 
11 as the Consultant.

[292] There is no doubt that the Jamrok Agreement is a contract with Broadway. The parties 
however dispute who it is that Broadway contracted with.

[293] Mr Chambers argues the Jamrok Agreement is a contract between Broadway and 
himself as an employee of Broadway. 

[294] Opposing jurisdiction in this matter Broadway argues the Jamrok Agreement is a 
contract between Broadway and Jamrok and Mr Chambers performed work for Broadway as 
an agent of Jamrok.

Applicable principles

[295] Recently the High Court in CFMMEU v Personnel Contracting considered the proper 
approach to determining whether a relationship between parties is one of employment or 
otherwise. In the decision Kiefel CJ, Keane and Edelman JJ held as follows,








[2022] FWC 332

29

“43. While there may be cases where the rights and duties of the parties are not found 
exclusively within a written contract, this was not such a case. In cases such as the 
present, where the terms of the parties' relationship are comprehensively committed to a 
written contract, the validity of which is not challenged as a sham nor the terms of which 
otherwise varied, waived or the subject of an estoppel, there is no reason why the legal 
rights and obligations so established should not be decisive of the character of the 
relationship.

…

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.” (References omitted)

[296] This approach was also accepted by Gordon J at [162] and [173] and by Steward J at 
[203] agreeing with Gordon J.

[297] The High Court’s approach above is applicable to Mr Chambers’ application because 
the Jamrok Agreement between the parties comprehensively set down the terms of their 
relationship.

Was the Jamrok Agreement a sham?

[298] Notably in this case Mr Chambers has argued that the Jamrok Agreement was a sham.








[2022] FWC 332

30

[299] Gordon J in CFMMEU v Personnel Contracting at [177] considered the sham contract 
issue as follows.

“177. Of course, the general principle against the use of subsequent conduct in construing 
a contract wholly in writing says nothing against the admissibility of conduct for 
purposes unrelated to construction, including in relation to: (1) formation – to establish 
whether a contract was actually formed and when it was formed; (2) contractual terms – 
where a contract is not wholly in writing, to establish the existence of a contractual term 
or terms; (3) discharge or variation – to demonstrate that a subsequent agreement has 
been made varying one or more terms of the original contract; (4) sham – to show that 
the contract was a “sham” in that it was brought into existence as “a mere piece of 
machinery” to serve some purpose other than that of constituting the whole of the 
arrangement; and (5) other – to reveal “probative evidence of facts relevant to 
rectification, estoppel or any other legal, equitable or statutory rights or remedies that 
may impinge on an otherwise concluded, construed and interpreted contract”. The 
relevance of subsequent conduct for the purposes of a particular statutory provision, 
legislative instrument or award was not in issue in this appeal.”(References omitted)

[300] So it is that in relation to considering whether a contract was a sham the use of 
subsequent conduct of the parties is permissible.

[301] The meaning of the term ‘sham’ has been considered in prior High Court cases as 
follows,

Raftland Pty Ltd as trustee of the Raftland Trust v Commissioner of Taxation92: 

“35. The term "sham" may be employed here, but as Lockhart J emphasised in Sharrment 
Pty Ltd v Official Trustee in Bankruptcy the term is ambiguous and uncertainty 
surrounds its meaning and application. With reference to remarks of Diplock LJ in Snook 
v London and West Riding Investments Ltd, Mustill LJ later identified as one of several 
situations where an agreement may be taken otherwise than at its face value, that where 
there was a "sham"; the term, when “[c]orrectly employed", denoted an objective of 
deliberate deception of third parties.” (References omitted)

Equuscorp Pty Ltd v Glengallan Investments93: 

“46. Each of these transactions was legally effective. None of the transactions that took 
place on 30 June 1989 could be said to be a sham. The primary judge was wrong to 
characterise them, as he did by his references to “artifice”, “façade” and “charade”, as 
shams. “Sham” is an expression which has a well-understood legal meaning. It refers to 
steps which take the form of a legally effective transaction but which the parties intend 
should not have the apparent, or any, legal consequences. In this case, debts were created 
and satisfied at all points in the chain until, at its end, Rural Finance owed JFM and FJA 
certain sums, and the respondents owed Rural Finance certain sums. And of most 
particular relevance to the present matters, in accordance with its obligations under the 
written loan agreements, Rural Finance had applied the money it lent in payment of the 
application moneys due from the respondents for the units being bought.” (References 
omitted)








[2022] FWC 332

31

[302] In the second recently decided High Court decision, ZG Operations v Jamsek, Kiefel 
CJ, Keane and Edelman JJ held that,

“62. The circumstance that this state of affairs was brought about by the exercise of 
superior bargaining power by the company weighed heavily with the Full Court; but that 
circumstance has no bearing on the meaning and effect of the bargains that were struck 
between the partnerships and the company. To say this is not to suggest that disparities 
in bargaining power may not give rise to injustices that call for a legal remedy. The law 
in Australia does provide remedies for such injustices under both the general law and 
statute. Those remedies were not invoked in this case. As has been noted earlier, the 
respondents did not claim that the contracts with the partnerships were shams. Nor did 
they seek to make a claim under statute or otherwise to challenge the validity of the 
contracts that were made by the partnerships. In Australia, claims of sham cannot be 
made by stealth under the obscurantist guise of a search for the "reality" of the situation.

63. Even if this disguised submission of sham were to be countenanced, the reality of 
the situation is that the partnerships, and not the respondents individually, owned and 
operated the trucks. The partnerships contracted with the company and invoiced the 
company for delivery services provided by the operation of the trucks. The partnerships 
earned income from the company, incurred expenses associated with the ownership and 
operation of the trucks, and took advantage of tax benefits of the structure. It is not 
possible to square the contention that the respondents were not conducting a business of 
their own as partners with the circumstance that, for many years, they enjoyed the 
advantages of splitting the income generated by the business conducted by the 
partnerships with their fellow partners.” (References omitted and underling added)

[303] Accepting this approach, Mr Chambers’ claim that the Jamrok Agreement was a sham 
contract cannot be made by stealth under the guise of a search for the “reality” of the situation.

[304] There is no evidence before the Commission that Mr Chambers has sought to challenge 
the Jamrok Agreement as a sham under the general law or statute. 

[305] The evidence is in fact that Ms O’Brien has sought to enforce the terms of the Jamrok 
Agreement through the Adjudication Application she made as a Director of Jamrok.

[306] The evidence of both Mr Chambers and Ms O’Brien is that it was only after they had 
ceased working for Broadway that they had come to understand that the Jamrok Agreement 
was, in their opinion, a sham. This demonstrates that when the Jamrok Agreement was entered 
into with Broadway (whether with Mr Chambers or with Jamrok) the parties were not taking 
steps, which took the form of a legally effective transaction, but which they both intended 
should not have the apparent, or any, legal consequences.

[307] Indeed, Mr Chambers’ evidence was that there no real discussions with Broadway about 
the Jamrok Agreement or its terms when it was entered into. There is also no evidence that 
Broadway made any statement it knew was false to persuade or influence Mr Chambers to enter 
into the Jamrok Agreement. 








[2022] FWC 332

32

[308] As the Respondent submits the reality of the situation on the evidence is that Jamrok did 
conduct a business of its own. Jamrok existed and operated prior to the Jamrok Agreement 
being made. It had previously undertaken business with Broadway and Affordable Living as 
early as 2014.94 During the term of operation of the Jamrok Agreement, Jamrok provided 
services to GMAC Reality for which it received payments. As can be seen from its accounts, 
Jamrok received commission payments from Broadway, issued loans, paid a salary at times to 
Mr Chambers, made provision for PAYG tax, paid GST, operated a number of credit cards and 
bank accounts and took advantage of tax benefits from the structure. 

[309] Considering the evidence, my decision is that there is no basis to find that the Jamrok 
Agreement was a sham.

Who were the parties to the Jamrok Agreement?

[310] I accept as the Respondent submits that it is permissible to consider the parties 
subsequent conduct in relation to determining who the parties to a contract, in this case the 
Jamrok Agreement, were.95 

[311] The cover page of the Jamrok Agreement was completed by Mr Chambers and says it 
is an agreement between Broadway and Mr Chambers, Consultant, of Jamrok.

[312] The only discussion Ms O’Brien had before she began working at Broadway, in late 
2019, about the terms of engagement was in relation to the commission structure and how much 
would be paid per sale.96 

[313] Ms O’Brien was never presented with an employment agreement.97 

[314] The evidence is that in practice commissions and bonuses earned by Mr Chambers and 
by Ms O’Brien were the subject of invoices created by Broadway and the monies paid to 
Jamrok.

[315] No monies were ever paid to the personal accounts of Mr Chambers or Ms O’Brien. 
They never provided information regarding their personal banking details to Broadway.

[316] The evidence of a number of the Respondent’s witnesses, which I accept, was that they 
understood Mr Chambers and Ms O’Brien worked together as a team to secure building 
contracts.

[317] The payments of commissions for securing building contracts did not distinguish 
between the work of Mr Chambers or Ms O’Brien. All commission payments were paid to 
Jamrok. Bonus payments were paid on Jamrok’s sales, not separated into Mr Chambers’ and 
Ms O’Brien’s individual sales.98 

[318] The RCT invoices generated by Broadway for Jamrok99 which reflect the commission 
slips submitted individually by Mr Chambers and Ms O’Brien and the payment records from 
Broadway to Jamrok demonstrate that Jamrok claim to commission and bonus payments and 
Broadway paid these amounts as required by the Agreement.








[2022] FWC 332

33

[319] In some instances, Jamrok invoiced Broadway for commissions when both Mr 
Chambers and Ms O’Brien had been involved in the sale of the particular building contract.100 

[320] After Broadway had advised that Jamrok had been terminated as a contractor in June 
2021, Jamrok issued invoices to Broadway claiming payment for commissions and bonus 
payments for sales secured by Mr Chambers and Ms O’Brien. Invoices of this nature were 
issued by Jamrok in August and September 2021.

[321] In regard to amounts Mr Chambers said that he had earned prior to the Jamrok 
Agreement being terminated his evidence was that these monies are owed to Jamrok and his 
evidence was that he was an agent of Jamrok.101 

[322] Mr Chambers recognised that it was only because Jamrok was a party to the Jamrok 
Agreement that Jamrok could and did make claims against Broadway. He agreed Jamrok was 
the contracting vehicle.102 

[323] Ms O’Brien in her witness statement and in cross-examination agreed that Jamrok was 
the vehicle for payment.103 

[324] Throughout the life of the Jamrok Agreement both Broadway and Jamrok engaged with 
each other consistent with that agreement.

[325] All the above conduct is indicative of Jamrok being the other party to the Jamrok 
Agreement with Broadway. It is not indicative of Mr Chambers, as an individual, being a party 
to the Jamrok Agreement. My decision is the parties to the Jamrok Agreement where Broadway 
and Jamrok.

[326] Having decided that the parties to the Jamrok Agreement were Broadway and Jamrok, 
rather than Broadway and Mr Chambers, that is sufficient to uphold Broadway’s jurisdictional 
objection to Mr Chambers’ application.

[327] There was no contract between Broadway and Mr Chambers. Therefore, Mr Chambers 
was not an employee of Broadway and consequently is unable to make this application under 
section 365 of the Act and so his application must be dismissed.

If Mr Chambers was a party to the Jamrok Agreement what was the nature of the 
relationship?

[328] For completeness however, if I am wrong on the point above and at law Mr Chambers 
was, along with Broadway, a party to the Jamrok Agreement then it is necessary to consider 
what was the nature of the relationship? Was the relationship one of employer and employee or 
was it a subcontract relationship?

[329] As the High Court has now determined in CFMMEU v Personnel Consulting reviewing 
the nature of the relationship between parties, where the contract is comprehensively reduced 
to writing, is to be conducted by reference to the rights and obligations under the contract. There 
is no occasion to undertake a review of the history of the parties’ dealings. That is not to suggest 








[2022] FWC 332

34

it is inappropriate to consider the totality of the relationship between the parties by reference to 
the various indicia of employment that been identified in the authorities.104 

[330] Mr Chambers’ evidence in chief was that he requested an advance on commissions 
however Broadway refused to pay any money until he had signed the Jamrok Agreement and 
the Deed.105 Mr Chambers signed both documents on the same day.

[331] Whilst Mr Chambers advanced his case on the basis that the Jamrok Agreement is a 
contract of employment between Broadway and himself I accept as Broadway submits that the 
Jamrok Agreement and the Deed having been signed by Mr Chambers at the same time should 
be considered together as being the contract between them.

[332] I will now turn to consider the relevant rights and obligations under the contract. Firstly 
those reduced to writing in the Jamrok Agreement in summary are set out below.

[333] The cover page states that it is an agreement made BETWEEN Broadway (the 
Company) AND Peter John Chambers (the Consultant) OF Jamrok Pty Ltd (Company Name 
ABN/ACN).  There is no dispute that Mr Chambers on this page wrote by hand both his name 
and “Jamrok Pty Ltd”.

[334] Relevantly page 2 says “The Company agrees to employ the Consultant as a new homes 
Building & Design Consultant to negotiate and sell Lump Sum Building Contracts under the 
registered Builders License of the Company.”

[335] There are various requirements of the Consultant detailed such as, performing their 
duties to the highest professional standard, at all times acting loyally towards the company, 
undertaking duties “as the Company shall from time to time assign him/her and in the discharge 
of such duties to observe and comply with all directions given.”, being available for such hours 
of work as may be reasonably required by the Company, agreeing to attend training sessions 
and sales meetings as required.

[336] Clause 3(g) of the Jamrok Agreement says the Consultant agrees they have a good 
knowledge of the New Homes Building Contract 1991 as amended from time to time in the 
regulation in force pursuant to this Act.106

[337] Relevantly page 3 of the Jamrok Agreement lists further requirements including, at his 
own expense holding a current driver’s licence and providing an operating and maintaining 
suitable vehicle insured for business purposes and licensed, at his expense provide an after-
hours phone number, mobile phone, laptop, iPad or iPhone, or any other communication 
equipment.

[338] Page 3 also includes a statement that not without consent of the Company shall he be 
engaged or interested either directly or indirectly in any capacity, trade business were 
occupation which interferes or is in conflict with or interferes with the performance of his duties 
as a consultant. Not undertake any act which may expose the Company to any loss or liability 
will reflect upon its ethics or integrity ordered tract from or injure the company’s good name. 
Not authorise or enter into any commitment regarding expenditure guarantees, making 
purchases or granting indemnity on behalf of the company.








[2022] FWC 332

35

[339] Page 3 also includes things the Company agrees it shall do such as to advise the 
Consultant of alterations, additions or deletions to any company or industry related material, 
acts, regulations or any other matters relevant to the Consultant. Nominate a preferred finance 
broker whereby their services shall be recommended to clients and customers. Ensure the 
Consultant is remunerated in accordance with the Company’s commission payment structure 
in Schedule A.

[340] Significantly clause5(d) on page 3 of the Jamrok Agreement states that the Company 
agrees that it shall; 

“Due to the terms of this Agreement being a contractual agreement to subcontract under 
the Builders License, make all commission payments inclusive of GST. The Company 
shall not make Superannuation contributions on behalf of the Consultant as it is not 
required to do so.”

[341] Page 4 of the Jamrok Agreement includes various matters the Consultant agrees to 
regarding confidentiality and intellectual property.

[342] Significantly at clause 7 on page 4 reads as follows,

“Office Duty  - A Consultant rostered on any particular day for office duty agrees that 
he/she shall:

(a) Be present at the Company’s office premises during office opening hours to 
receive sales enquiries via phone, email, or can and referral. Should the 
consultant need to attend to matters out of the office during this time, it must be 
arranged an alternative Consultant be present in the office in his/her absence.

(b) Be accessible to the office premises during after office hours should the 
Consultant be required...”

[343] Page 5 of the Jamrok Agreement details requirements to adhere to the Company’s 
display home hours of operation and to arrive 15 minutes prior to opening hours and how to 
present the display home. Regarding sales, the Company sets budgets of a minimum acceptable 
target which may alter after consultation normally add a performance review.

[344] In terms of sales, page 6 of the Jamrok Agreement says the Consultant agrees to ensure 
conditions contained in PPA and lump sum building contracts are acted upon by the Company’s 
clients at must liaise on all matters necessary to bring the transaction to a satisfactory 
conclusion, ensure receipt is issued for all monies received and ensure a sales check list is 
completed prior to PPA. The Consultant will also refrain from marketing or advertising without 
approval and from making statements or announcements to media without approval. The 
Company agrees to provide a discount to the Consultant should they wish to build their principal 
place of residence or an investment property with Broadway or related building brands.

[345] Page 7 of the Jamrok Agreement concerns penalties and disputes and says it is agreed 
that if the Company incurs any penalties as a result of a wrongful act on negligent by the 








[2022] FWC 332

36

Consultant the Consultant shall pay this or have this deducted from their monies owing. In the 
event of disputes between the parties relating to any matter provided by the Jamrok Agreement 
or the rights and obligations therein it shall be referred to the Industry Arbitration Panel for 
adjudication. If the Company reduces the standard margin in order to secure a building contract 
the Consultant may be asked to reduce their commission. The Consultant will have no claim 
for the reduced commission. 

[346] It is agreed that the following debts will be debited from the Consultant’s commissions, 
expenses incurred by the Consultant, personal business expenses delivery of material, training 
or membership of professional associations, gifts for clients, any advance payment of 
commission, any other costs agreed in writing.

[347] Page 8 of the Jamrok Agreement says the Consultant will receive a statement on request 
detailing gross commissions and deductions to create the Consultant’s gross position. The 
Consultant agrees they are entitled to unpaid leave 20 working days with four weeks’ notice 
and is not entitled to paid leave pertaining to holiday, personal (sick and compassionate) 
parental or long service leave. The Jamrok Agreement may be terminated by either party giving 
two weeks’ written notice provided the Company may terminate the Jamrok Agreement on 
grounds professional/ethical misconduct or negligence.

[348] Schedule A - Rate of Remuneration of the Jamrok Agreement details the 4% 
commission payment on building contract value. Details regarding bonus commissions are 
specified. Significantly, payment for both commission sales and commissions sales bonuses 
will be made to the Consultant’s respective registered company, and it is the responsibility of 
the Consultant to make sure they paid the applicable tax, superannuation and GST as required 
by corporate law and the ATO.

[349] I will now turn to consider the relevant rights and obligations set out in the Deed which 
in summary are set out below.

[350] The Deed is between Broadway as the Builder, Jamrok as the Consultant and Peter 
Chambers as Guarantor.

[351] The recitals begin by stating that upon appointment of the Consultant (Jamrok) the 
Builder (Broadway) agreed to advance the Consultant (Jamrok) monies prior to receipt of a 
commission payment.

[352] It goes on to say that the Consultant (Jamrok) acknowledges that it is indebted to the 
Builder (Broadway).

[353] The Deed then states the Guarantor (Mr Chambers) agrees to perform the obligations of 
the Consultant (Jamrok) under the Deed if the Consultant (Jamrok) is a corporate entity.

[354] Adopting the nomenclature used in the Deed it goes on to say that Jamrok authorises 
and permits Broadway to make commission deductions from any amount due from Broadway 
to Jamrok in order to secure full repayment of the advance debt.








[2022] FWC 332

37

[355] It continues that Mr Chambers guarantees payment to Broadway of the advanced debt 
and all other money due and payable to Broadway by Jamrok and guarantees the performance 
of all other obligations of Jamrok under or in connection with this Deed.








[2022] FWC 332

38

Conclusion 

[356] The Applicants in their submission regarding Mr Chambers focus on those provisions 
in the Jamrok Agreement that arguably, in isolation, are indicative of an employer/employee 
relationship. 

[357] There however are similarly other provisions in the Jamrok Agreement that arguably, in 
isolation, to the contrary are indicative of a relationship other than an employer/employee 
relationship.

[358] Bearing in mind the Jamrok Agreement was drafted by Broadway this mixture of 
provisions is consistent with Broadway’s position that the Jamrok Agreement was between 
itself and Jamrok, a subcontractor, and that Mr Chambers was not personally a party to it. From 
this perspective the provisions in the Jamrok Agreement that suggest an employer/employee 
relationship were not directed at Mr Chambers as an employee who was on the other side of the 
contractual bargain but rather applied to him as an agent of Jamrok. 

[359] Broadway’s position also explains why the Jamrok Agreement provides no requirement 
for Mr Chambers to be paid by Broadway, and he wasn’t. There is nothing in the Jamrok 
Agreement that entitles Mr Chambers to be paid by Broadway for his efforts. A contract that 
does not entitle a person to payment for their efforts lacks an essential characteristic of an 
employer/employee relationship. 

[360] As set out above the Jamrok Agreement, clause 5(d) on page 3 states that Broadway 
agrees that it shall; 

“Due to the terms of this Agreement being a contractual agreement to subcontract under 
the Builders License, make all commission payments inclusive of GST. The Company 
shall not make Superannuation contributions on behalf of the Consultant as it is not 
required to do so.”

[361] This provision in the Jamrok Agreement is not a mere labelling by the parties of the 
relationship as one of subcontract which the Commission can ignore;107 rather this is an 
unambiguous statement that the Jamrok Agreement is a “...contractual agreement to 
subcontract…” and includes specific rights and obligations that are a consequence of the 
subcontract nature of the relationship. Those consequential rights and obligations are that 
commission payments will be inclusive of GST and that no superannuation contributions will 
be made on behalf of the Consultant as this is not required.

[362] Consistent with this statement that the Jamrok Agreement is a subcontract contractual 
agreement it also expressly states that the Consultant is not entitled to paid leave pertaining to 
holiday, personal (sick & compassionate), parental or long service leave.108 

[363] Mr Chambers and Broadway entered into a written contract which expressly was an 
agreement to subcontract and which includes rights and obligations that arise from the 
agreement being to subcontract and which are consistent with the nature of the relationship 
being that of principal and contractor rather than employer and employee.








[2022] FWC 332

39

[364] My decision is that if indeed Mr Chambers was a party to the Jamrok Agreement then 
considering all of the rights and obligations prescribed in the Jamrok Agreement the 
relationship between Mr Chambers and Broadway was not one of employee and employer.

[365] The terms of the Deed do not suffer from the same mix of provisions as the Jamrok 
Agreement. The Deed is straight forward and states that Broadway is owed a debt by Jamrok 
because on appointment of Jamrok (the Consultant) Broadway (the Builder) agreed to advance 
to Jamrok monies prior to receipt of a commission payment and Mr Chambers (the Guarantor) 
agreed to perform the obligations of Jamrok under the Deed. The Deed was signed by Mr 
Chambers purporting to be a Director of Jamrok.109 

[366] Reviewing the nature of the relationship between Broadway and Mr Chambers by 
reference to the rights and obligations prescribed under both the Jamrok Agreement and the 
Deed, my conclusion is that the relationship was not that of employer and employee. Mr 
Chambers was not an employee of Broadway.

[367] For this reason, the Respondent’s jurisdictional objection is upheld. Mr Chambers was 
not able to make this application under section 365 of the Act and so his application must be 
dismissed.

[368] For completeness I will consider the right of Broadway under the Jamrok Agreement to 
control the activities of Mr Chambers.

[369] In CFMMEU v Personnel Contracting the High Court held that the existence of a right 
of control over the activities of the worker serves to sensitise one to the subservient and 
dependent nature of the work of an employee. The issue however is the right to control not who 
actually exercises control.110 

[370] There is no doubt that there is some prescription in the provisions of the Jamrok 
Agreement which are indicative of Broadway having some control over Mr Chambers. The 
Applicants have provided extensive submissions on these matters.111 

[371] The context of course is important. The work of Mr Chambers was to negotiate and sell 
lump sum building contracts under Broadway’s registered Builders License.

[372] The Jamrok Agreement refers to the Consultant having a knowledge of the Home 
Building Contracts Act 1991. This is the Western Australian state legislation which regulates 
contracts between consumers and builders for the performance of home building work and 
provides for home indemnity insurance and funds providing such cover.

[373] Self-evidently some of the provisions of the Jamrok Agreement such as Broadway 
retaining the right to accept or reject contracts delivered by the Consultant and requiring the 
Consultant to use particular forms and contracts as directed are essential to ensure Broadway 
complies with the state legislation. Broadway did have control over the form of the end product, 
being the building contracts being entered into with the client.








[2022] FWC 332

40

[374] There were requirements for the Consultant to be present during home open times which 
was also pointed to as an example of the right to control the Consultant. This under the terms 
of the Jamrok Agreement per allocated display home totalled approximately 14 hours per week. 
The evidence of the Respondent’s witnesses which was unchallenged is that amongst the 
various Consultants engaged by Broadway there is a large spread of their annual earnings. This 
was explained to be because it was up to the individual Consultants how hard they worked and 
this was reflected in differential earnings. 

[375] What is clear is that Broadway has little right under the Jamrok Agreement to control 
when, where and how Mr Chambers did his core work of negotiating with clients to sell them 
lump sum building contracts. 

[376] It is clear that Broadway had some but limited rights to exercise control over Mr 
Chambers. 

[377] The extent to which Broadway had rights under the Jamrok Agreement to control Mr 
Chambers activities is not, considered in the context of his work, indicative of him working in 
a subservient and dependent relationship.

[378] The issue of control in this case is not suggestive of the true relationship being that of 
employer and employee.

[379] My decision is that Mr Chambers was not an employee of Broadway and consequently 
is unable to make this application under section 365 of the Act and so his application will be 
dismissed. An Order [PR739605] to that effect will be issued. 

Ms O’Brien: U2021/5772

Introduction

[380] The position advanced in support of Ms O’Brien’s application for an unfair dismissal 
remedy under section 394 is as follows.

[381] In the original closing submission filed 23 November 2021 at paragraph 20 it was 
submitted by the Applicants that, “...Ms O’Brien was independently engaged by the respondent, 
was not offered, and nor did she enter into, any independent contractor agreement or 
employment contract with the respondent.”

[382] In the Applicants reply submissions filed on 9 March 2022 at paragraph 38 it was 
submitted that, “...Ms O’Brien was not mentioned in the agreement however, she worked under 
the guise, and assumed, that she had a similar implied agreement in place, as Mr Chambers. 
Broadway and Ms O’Brien acted and maintained the same rights and obligations is detailed 
within Mr Chambers agreement throughout the relationship...”.

[383] At the following paragraph 39 this submission was repeated and it was submitted that, 
“...[t]he parties were bound by the same obligations and duties of direction, control and promise 
of payment outlined throughout this submission. The applicant submits that the positions set 








[2022] FWC 332

41

out for Mr Chambers on these submissions apply for Ms O’Brien with the necessary changes 
having been made.”

[384] Where the Applicants refer to “...agreement...” in their above submissions this is a 
reference to the Jamrok Agreement.

[385] Broadway’s position is that Ms O’Brien was aware of the arrangement her son, Mr 
Chambers, was working under when she agreed to work for Broadway in 2019.

[386] Broadway submits that there was no need for discussion with Ms O’Brien about work 
arrangements nor was there any need for her to sign any documentation because she was not 
being employed but rather taking up work as an agent for Jamrok under the terms of the Jamrok 
Agreement. She was familiar with the Jamrok Agreement as Mr Chambers and she had worked 
for Broadway previously under an agreement with the same terms in 2014 and at that time her 
business Jamrok had been paid commission payments by Broadway.112 

[387] If the Commission was to accept the submissions put by the Applicants to the effect that 
Ms O’Brien and Broadway should be taken by implication to have agreed that the terms of the 
Jamrok Agreement was a contract they had agreed to, then my decision is the same as it was 
for Mr Chambers at [356] to [364]. 

[388] If M’s O’Brien was a party to a contract with Broadway in the terms of the Jamrok 
Agreement, then considering all of the rights and obligations prescribed in the Jamrok 
Agreement the relationship between Ms O’Brien and Broadway was not one of employee and 
employer. Consequently, Ms O’Brien’s application must be dismissed.

[389] I however do not accept the submissions by the Applicants that it should be taken as 
implied that Ms O’Brien and Broadway agreed to exactly the same terms as the Jamrok 
Agreement.

[390] The evidence is that in 2019 no written employment contract was entered into between 
Ms O’Brien and Broadway.

[391] Also there is no evidence that Ms O’Brien, separately from Mr Chambers, executed an 
agreement in the same terms as the Jamrok Agreement in 2019.113 

[392] Mr Gobetti’s evidence under cross-examination and evidence in chief was that Mr 
Chambers came to his office and Mr Chambers said he thought it would be a good idea if Ms 
O’Brien came back and worked with them and Mr Gobetti had said this was a good idea because 
they were a good team. He said he had a brief meeting with Ms O’Brien which was organised 
by Mr Chambers where they agreed she would come back and assist Mr Chambers but he says 
he did not interview Ms O’Brien.114 

[393] Ms O’Brien says that whilst there were discussions about her working at Broadway. Her 
evidence was those discussions were minimal and the only detail was in regard to the rate of 
commissions. 








[2022] FWC 332

42

[394] She told Mr Gobetti she would continue working in her real estate job if she worked for 
Broadway.

[395] She says he explained he had a position for a Consultant to share the Dianella display 
home with Mr Hart another Consultant. The hours required would be one day a weekend from 
1:00 p.m. to 5:00 p.m. and either Monday or Wednesday from 2:00 p.m. to 5:00 p.m. plus any 
other hours used to convert leads into sales and attendance at some meetings.

[396] She says he also told her he needed someone to cover occasional leave days for other 
Consultants.

[397] She says she accepted the position with Broadway.115 

[398] What is clear from this is that there was no written contract, whatever its nature, made 
between Ms O’Brien and Broadway.

[399] The contract, whatever its nature, between Ms O’Brien and Broadway was wholly oral.

[400] In CFMMEU v Personnel Contracting Kiefel CJ, Keane and Edelman JJ accepted, as 
below, that considering the totality of the relationship was still appropriate in cases where the 
parties had not committed the terms of their relationship to a written 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.” (References omitted)

[401] Gordon J in CFMMEU v Personnel Contracting considered the remaining application 
of the multifactorial approach as follows,

“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 








[2022] FWC 332

43

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.” 
(References omitted)

[402] Consequently, I accept that in a case such as this matter before the Commission, where 
the contract in issue is wholly oral, having regard to the totality of the relationship is appropriate 
as is considering the conduct of the parties to identify the point at which the contract was formed 
and the contractual terms that were agreed. 

[403] Returning to the relevant facts regarding Ms O’Brien working for Broadway. The 
evidence is that after her discussion with Mr Gobetti Ms O’Brien negotiated a suitable 
arrangement regarding home opens at Dianella with Mr Hart, another Consultant.116 

[404] Ms O’Brien thereafter negotiated and sold lump sum building contracts to clients for 
Broadway. She completed commission slips detailing her sales and commissions due. 
Broadway generated RCT invoices for Jamrok that included Ms O’Brien’s commissions and 
sometimes sales bonuses.

[405] Ms O’Brien’s business Jamrok was paid for commissions earned by herself and Mr 
Chambers and she was aware of these financial arrangements because she actively managed the 
day-to-day financial affairs of Jamrok including managing the payments received from 
Broadway. 

[406] Ms O’Brien was aware that at one point Jamrok was making payments to Mr Chambers 
of salary, as an employee of Jamrok.








[2022] FWC 332

44

[407] During the time she provided services to Broadway, Ms O’Brien continued to work as 
a part-time employee real estate agent in another business, GMAC Reality. 

[408] Separately she also provided services as Jamrok, a contractor, to this real estate agency. 
Jamrok’s accounting and records reflect these various different arrangements Ms O’Brien was 
involved in.

[409] Prior to this involvement in 2019 with Broadway, Ms O’Brien had worked in the 
industry both as an employee and as a subcontractor. 

[410] Her evidence was that only after the Jamrok Agreement was terminated by Broadway 
did she discover that operating Jamrok “...for the primary purpose of receiving pay from 
builders that operate independent contracting arrangements...” is called “...sham 
contracting.”117

[411] The evidence is that Broadway has always engaged its Sales Representatives through 
independent contractors. This included the evidence of a number of other contractor Sales 
Representatives.

[412] The evidence of a number of other witnesses was that they understood Mr Chambers 
and Ms O’Brien worked as a team. I accept their evidence by note that Mr Chambers and Ms 
O’Brien denied this.

[413] The only payments to Ms O’Brien were in the form of commission and bonuses which 
were paid to Jamrok and were inclusive of GST.

[414] This proposition that Ms O’Brien worked with Mr Chambers as a team was reflected in 
the manner of payment of those commissions for building contracts sold by Mr Chambers and 
Ms O’Brien. There was no distinction as to which of them had obtained the building contract 
when Broadway made the payments to Jamrok. 

[415] There was also no distinction between the individual sales of Ms O’Brien or Mr 
Chambers for the purposes of the bonus payments made to Jamrok by Broadway.

[416] No commission payments were ever made to Ms O’Brien personally. All payments were 
to Jamrok.

[417] Considering her work for Broadway, Ms O’Brien was not required to record her 
attendance at Broadway nor the number of hours she worked. No payments were made to Ms 
O’Brien on the basis of how many hours she had worked.

[418] The evidence is Broadway did decide whether it would accept or reject contracts 
delivered by Ms O’Brien and required her to use particular forms for the contracts. I accept that 
Broadway did have control over the form of the end product produced by Ms O’Brien, being 
the building contracts entered into by Broadway and the client.








[2022] FWC 332

45

[419] There were requirements for Ms O’Brien to be present during some home open times 
but the detail of this was determined by Ms O’Brien herself reaching an agreement with another 
Sales Consultant, Mr Hart, as to how they would share the Dianella display home open times.

[420] Other than attending the home opens Ms O’Brien worked as little or as much as she 
liked, whenever and wherever she liked, and Broadway was unaware of these details.

[421] It is clear that Broadway did not control when, where and how Ms O’Brien did her work 
of negotiating with clients to sell them lump sum building contracts.

[422] Ms O’Brien was involved in developing designs for some clients and attended a range 
of meetings that were part of the pre-start process before slab down was achieved. The evidence 
is this was not at Broadway’s direction but is activity some Sales Consultants choose to be 
involved in to facilitate finalisation of the sale to the client.

[423] Considering all of the evidence, overall Broadway’s right to exercise control over Ms 
O’Brien was limited.  

[424] Ms O’Brien did not claim nor receive the benefits of paid annual leave or any other form 
of paid leave. She was not paid superannuation by Broadway.

[425] As the Applicants point out, Broadway does bear the high cost of building the display 
homes which significantly assist Sales Consultants, including Ms O’Brien, in their work of 
negotiating and selling building contracts.

[426] However at the level of the individual Consultant, Ms O’Brien was required to bear all 
the costs of her vehicle, laptop and mobile phone none of which were provided by nor the costs 
reimbursed by Broadway.118 

[427] Broadway’s evidence was that a vehicle, a laptop and a mobile phone were the tools of 
a Sales Consultant and the cost of providing and operating these were borne by their 
businesses.119

[428] The evidence also was that Ms O’Brien bore some business risk in the relationship with 
Broadway. If one of her client’s projects did not reach slab down no payment for her efforts 
would be made to Jamrok. Also, in some instances Broadway and Ms O’Brien might agree to 
share the costs of a giveaway or a discount to encourage a client to finalise the purchase of the 
building contract, thereby reducing the commission she was to receive.

[429] All Ms O’Brien’s payment of commissions by Broadway were inclusive of GST.

[430] Ms O’Brien as the Owner and sole Director of Jamrok in 2019 was responsible for the 
financial affairs of Jamrok and the evidence is Jamrok conducted itself as a business separate 
from Broadway.

[431] Ms O’Brien was involved in and aware of all the financial transactions between 
Broadway and Jamrok for the period she says she was employed with Broadway. 








[2022] FWC 332

46

[432] During the period she says she was employed by Broadway, Jamrok did not make any 
payments to Ms O’Brien identifiable as being the result of her work at Broadway, however 
Jamrok did advance multiple loans to her.120 

[433] Ms O’Brien as the Owner of Jamrok enjoyed some financial benefit from Jamrok being 
a subcontractor to Broadway and payments for her work being paid to Jamrok. For example, 

 Jamrok received gross income for the outcomes achieved giving flexibility to Jamrok 
and it’s sole Director, Ms O’Brien, on how that gross income was applied;

 The structure enabled Ms O’Brien and Mr Chambers to agree among themselves how 
to share the gross income;

 Based on Ms O’Brien receiving loan repayments from Jamrok as opposed to a salary 
Ms O’Brien was able to receive cash from Jamrok that was capital in nature rather 
than income that would be subject to tax;

 Similarly, Ms O’Brien was able to receive loan repayments (as opposed to salary) 
from Jamrok and direct amounts to Mr Chambers which meant that Mr Chambers was 
receiving cash from Jamrok that was capital in nature rather than income that would 
be subject to tax; and

 The arrangement enabled various expenses to be paid from Jamrok’s resources that 
may have been of a personal consumption nature rather than business expenses; or, 
discretionary business expenses that would not typically form part of specific 
remuneration arrangements with customers or employers, which may provide some 
tax advantage to Ms O’Brien and/or Mr Chambers.

[434] At no time did Ms O’Brien query with Broadway why she was not receiving any 
payment directly for her work.

[435] At no time did Ms O’Brien provide Broadway with her personal banking details, as 
distinct from Jamrok’s banking details.

[436] The conduct of the parties demonstrates that Ms O’Brien and Broadway had agreed that 
payments would be made for commissions and bonuses resulting from Ms O’Brien selling lump 
sum building contracts and that those payments would be made to Jamrok as a contractor, 
inclusive of GST.

[437] No agreement was made that Ms O’Brien would receive any employee type benefits 
such as paid leave or superannuation or reimbursement for expenses incurred in providing the 
personal tools to do her work.

[438] Ms O’Brien was not required to work particular hours nor paid for the hours that she 
did work. She was generally free to work when and how she liked to achieve the agreed aim of 
selling lump sum building contracts. Broadway had limited rights to exercise any control over 
her work.








[2022] FWC 332

47

[439] Considering all of the evidence and having regard to the totally of the relationship 
between Ms O’Brien and Broadway I am not satisfied that Ms O’Brien was an employee of 
Broadway.

[440] Accordingly, I uphold Broadway’s jurisdictional objection to Ms O’Brien’s application 
for an unfair dismissal remedy.

[441] Consequently, Ms O’Brien’s application will be dismissed. An Order [PR739607] to 
that effect will be issued.

Appearances:

P. Chambers on behalf of the Applicants
T. Power, counsel for the Respondent. 

Hearing details:

2021.
Perth:
November 8, 9 and 11.

Final written submissions:

Applicants, 23 November 2021 and 9 March 2022.
Respondent, 30 November 2021 and 25 February 2022.

Printed by authority of the Commonwealth Government Printer

PR738445

1 [2021] FWC 5133.
2 (2022) HCA 1.
3 (2022) HCA 2.
4 Transcript at PN2584 to PN2629 and PN3780 to PN3787.
5 Exhibit A2 at paragraph 6.
6 Transcript at PN2546 to PN2557.
7 Exhibit R4, Attachment VEP-3.
8 Exhibit R3, Attachment VEP-1.


THE FAIR WORK OMMISSION COMMISE CAL THE S




 



[2022] FWC 332

48

9 Exhibit R4, Attachment VEP-7.
10 Exhibit A1 at paragraphs 13, 18 and 19.
11 Transcript at PN3928 to PN3962.
12 Exhibit A1 at paragraph 22.
13 Ibid., Attachment PJC-11.
14 Transcript at PN1616 to PN1620.
15 Exhibit A1, Attachment PJC-11 at page 3, clause 5(d).
16 Ibid., at paragraphs 69 and 70.
17 Ibid., at paragraph 69 of Mr Chambers.
18 Transcript at PN2652 to PN2655 and PN3085 to PN3104.
19 Exhibit A2 at paragraphs 31 and 104.
20 Ibid., at paragraph 105.
21 Ibid., at paragraph 107.
22 Transcript at PN3535 to PN3962.
23 Exhibit R3, Attachment VEP-1.
24 Exhibit R5, Attachment PJG-1.
25 Ibid., Attachment PJG-2 and Transcript at PN1367 to PN1369.
26 Ibid., Attachment PJG-3.
27 Transcript at PN1083 to PN1090, PN1365 to PN1366 and PN1370.
28 Ibid., at PN2189.
29 Ibid., at PN2192.
30 Ibid., at PN2198 to PN2208.
31 Ibid., at PN2208.
32 Ibid., at PN2279 and PN2280.
33 Ibid., at PN1121.
34 Ibid., at PN1204 to PN1205 and PN1336.
35 Ibid., at PN1209 to PN1212.
36 Exhibit R8 at paragraphs 26 to 29.
37 Transcript at PN1597 and PN1598.
38 Ibid., at PN1602.
39 Ibid., at PN1711 to PN1728.
40 Ibid., at PN1747 to PN1750.
41 Ibid., at PN169 to PN174.
42 Ibid., at PN177.
43 Ibid., at PN182 to PN186.
44 Ibid., at PN395 to PN407.
45 Ibid., at PN428 to PN434.
46 Exhibit R12, Attachment NJP-3.
47 Exhibit R10, Attachment GJS-1 to GJS-39
48 Exhibit R12 at paragraph 23 and Attachment NJP-11.
49 Ibid., at paragraph 11 and Attachment NJP-4.
50 Ibid., at paragraph 12 and Attachment NJP-5.
51 Ibid., at paragraph 15 and Attachment NJP-8.
52 Ibid., Attachment NJP-11 at page 61.
53 Section 25 of the CC Act. 








[2022] FWC 332

49

54 Section 6(1)(a) of the CC Act.
55 Schedule 1, clause 5 of the CC Act. 
56 Section 3 of the CC Act. 
57 Section 8(3) of the CC Act. 
58 Transcript at PN2611 to PN2614.
59 Ibid., at PN2574 to PN2577.
60 Ibid., at PN2588.
61 Ibid., at PN3652.
62 Ibid., at PN3652 and PN3788.
63 Ibid., at PN4170.
64 Ibid., at PN3291.
65 Ibid., at PN3787.
66 Ibid., at PN2600.
67 Ibid., at PN2549, PN2554 and PN2642.
68 Ibid., at PN2584 and PN2859.
69 Ibid., at PN2584 to PN2755, PN3780, PN3786 to PN3787, PN4085 and PN4096.
70 Ibid., at PN3786.
71 Ibid., at PN3780.
72 Ibid., at PN4085.
73 Ibid., at PN4096.
74 Ibid., at PN2506 to PN2510 and PN2744 to PN2750.
75 Ibid., at PN3718 and PN3729 to PN3731.
76 Ibid., at PN3697 to PN3715 and PN3750.
77 Ibid., at PN2496.
78 Ibid., at PN3669 and PN3777 to PN3778.
79 Ibid., at PN3852.
80 Ibid., at PN3770 to PN3771.
81 Ibid., at PN3842 to PN3846.
82 Ibid., at PN2846 to PN2851.
83 Exhibit R14, Attachment NJP-1.
84 Ibid., Attachment NJP-1 at paragraphs 45 to 48.
85 Exhibit R14 at paragraph 8.
86 Transcript at PN3849 to PN3851 and PN3854.
87 Exhibit A1 at paragraphs 14 to 17. 
88 Ibid., at paragraph 20.
89 Ibid., Attachment PJC-11.
90 Ibid., Attachment PJC-12.
91 Ibid., at paragraph 63 to 71.
92 [2008] HCA 21.
93 [2004] HCA 55.
94 Exhibit R4, Attachment VEP-3 and Exhibit A2, at paragraph 107.
95 Gordon J in CFMMEU v Personnel Contracting Pty Ltd (2022) HCA 1 at [177].
96 Exhibit A2 paragraph 27.
97 Ibid., at paragraph 104.
98 Exhibit R5 at paragraph 34 and Exhibit R1, at paragraphs 50 and 51.








[2022] FWC 332

50

99 Exhibit R4, Attachment VEP-1 and VEP-2.
100 Transcript at PN3555 to PN3586.
101 Ibid., at PN2639 to PN2643.
102 Ibid., at PN2486 and PN2487.
103 Ibid., at PN3695.
104 (2022) HAC 1 at [59] to [61].
105 Exhibit A1 at paragraphs 65 and 66.
106 See Home Building Contracts Act 1991 (WA) which is an act for the regulation of contracts between consumers and 

builders for the performance of certain home building work, to make provision for home indemnity insurance and funds 
providing corresponding cover.

107 See (2022) HCA 1 at [63] to [66].
108 See clause 16 (b), page 8 of the Jamrok Agreement.
109 Recitals (A), (B) and (C) of the Deed.
110 (2022) HCA 1 at [73] and [74].
111 The Applicants’ reply submission dated 9 March 2022 at paragraphs 24 to 32.
112 Exhibit A2 at paragraphs 104 to 108 and Exhibit R5, Attachment PJG–1.
113 Exhibit A2 at paragraph 31.
114 Transcript at PN1204, PN1205 and PN1336 and Exhibit R5, at paragraphs 42 to 44.
115 Exhibit A2 at paragraphs 21 to 28.
116 Ibid., at paragraphs 32 to 35.
117 Ibid., at paragraph 6.
118 Ibid., at paragraph 111.
119 Transcript at PN531 to PN532 and PN541.
120 See Documents 80 and 97 produced by the Applicants in compliance with the F52 Orders dated 18 August 2021. 

Cases cited by this decision: