1
Fair Work Act 2009
s.365—General protections
Francesca Keaveney
v
Marketing 4 U Pty Ltd and another
(C2023/3926)
DEPUTY PRESIDENT COLMAN MELBOURNE, 13 SEPTEMBER 2023
Section 365 application – whether applicant an employee – no written contract – findings of
fact as to oral terms – cross-examination on visa status refused as irrelevant – s 40B –
jurisdictional objection dismissed
[1] Ms Francesca Keaveney has made an application under s 365 of the Fair Work Act 2009
(FW Act) for the Commission to deal with a general protections dispute involving a dismissal.
She contends that Marketing 4 U Pty Ltd (company) contravened certain provisions of Part 3-
1 of the FW Act by dismissing her for prohibited reasons, including because she made a
complaint or inquiry in relation to her employment. The company objects to the application on
the jurisdictional basis that Ms Keaveney was not its employee and was therefore not dismissed.
[2] Section 365 of the FW Act states that if a person has been dismissed and alleges that the
dismissal was in contravention of Part 3-1, the person may apply to the Commission to ‘deal
with the dispute’. Generally, the Commission does not have a determinative function in relation
to applications made under s 365. It will conduct a conciliation conference and, if satisfied that
all reasonable attempts to resolve the matter have been or are likely to be unsuccessful, it will
issue a certificate that allows an application to be made in a court. However, if a respondent
raises a jurisdictional objection, the Commission is required to determine it (see Coles Supply
Chain Pty Ltd v Milford [2020] FCAFC 152).
[3] The company is a small business that operates a bridalwear store in Melbourne. The
company’s owner, Melissa Davies, submitted a witness statement and gave oral evidence. She
said that on 26 April 2023, she met Ms Keaveney at a café to discuss her interest in a job
advertisement that the company had placed in August 2022 for a customer sales representative.
Ms Davies said that she concluded that Ms Keaveney was not suitable for the role because she
lacked retail and service experience, and because she had reservations about Ms Keaveney’s
professionalism and right to work in Australia; nevertheless, they discussed the possibility of
Ms Keaveney preparing bridal designs under a subcontracting arrangement. Ms Davies attached
to her witness statement a letter sent to her by Matthew Boysen, her landlord at the time, stating
that he was present at the café and had listened in on the conversation between Ms Davies and
Ms Keaveney. Mr Boysen’s letter contained a detailed account of the conversation. It noted,
among other things, that Ms Davies told Ms Keaveney that she did not need a part-time
employee; that Ms Keaveney suggested that she could work as a freelancer doing bridal
drawings; that Ms Davies said that she would need Ms Keaveney to give her an ABN and
submit invoices; and that Ms Davies said that her lawyer would draw up a subcontracting
[2023] FWC 2343
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2343
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agreement. In his evidence, Mr Boysen said that he prepared the letter on 13 August 2023, at
Ms Davies’ request.
[4] Ms Davies’ evidence was that on or about 30 April 2023, Ms Keaveney called her and
offered to do dress design work on a ‘freelance’ basis. Ms Davies said that the two of them
agreed on the following: the company would provide no guarantee of work; there would be no
employment relationship; Ms Keaveney did not have any obligation to accept work; and Ms
Keaveney would periodically invoice Ms Davies for the time she spent working on jobs for her
clients. Ms Davies said that she agreed to pay Ms Keaveney $25 per invoiced hour of work and
$150 in commission for any designs sold to her clients. Ms Davies said that Ms Keaveney
agreed to sign a ‘supply contract’ and to provide proof of her identity and her Australian
Business Number (ABN), but that when she later raised this with her, Ms Keaveney was evasive
and appeared to have an aversion to being ‘on the books’, which made Ms Davies question
whether Ms Keaveney was allowed to work in Australia.
[5] Ms Davies said in her evidence that Ms Keaveney was able to decide for herself whether
to undertake dress designs and how to complete them. She said that Ms Keaveney chose to
work remotely much of the time, and when she did work at the store this was not because she
was required to do so. She was also free to work for other businesses and used her own
equipment and IT resources to provide her dress designs. Ms Davies said that Ms Keaveney did
not ask the company to withhold PAYG taxation or to make superannuation contributions on
her behalf.
[6] Ms Keaveney gave evidence that she is an Irish national and came to Australia on a
student visa. She said that at the meeting on 26 April 2023, Ms Davies told her that she needed
someone to work on Saturdays and Sundays and occasionally on Fridays, and she replied that
this would suit her. Ms Davies said that she would pay her $25 an hour plus commissions of
$40 to $60 on the sale of bridal dresses, and proposed a trial session the following Saturday.
Ms Keaveney said in her evidence that there was no mention of a contractor arrangement and
that she did not agree to provide an ABN, nor did she have an ABN.
[7] Ms Keaveney said that at the trial on 29 April 2023, Ms Davies explained to her and
another new worker, Ms Debruyne, how to interact with customers, how customers were to
behave in the store (they could not touch or take photos of dresses), and what work was required
to be done. They then dealt with customer appointments while Ms Davies supervised them. At
the end of the trial Ms Davies said that she would get contracts drawn up for them to sign later
that week. Ms Keaveney said that she assumed they would be part-time employment contracts
for work on weekends.
[8] Ms Keaveney denied speaking to Ms Davies on 30 April 2023. She submitted a
summary of her phone records showing that she did not make a call to, or receive a call from,
Ms Davies on that day. She denied that Ms Davies told her that there would be no guarantee of
work, no employment relationship, no obligation on her to accept work, and that she would
have to submit invoices and provide an ABN.
[9] Ms Keaveney gave evidence that on 1 May 2023, at Ms Davies’ request, she attended a
second trial at the store, during which she serviced customers under Ms Davies’ supervision.
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At the end of the trial, Ms Davies said that she would be paying her via ‘PayID’ and that Ms
Keaveney should set up an account. Ms Keaveney then asked whether there would be a written
contract and whether she needed to provide her Tax File Number (TFN) or other identification.
Ms Davies said not to worry and that they would sort everything out later. Later that day, Ms
Davies sent Ms Keaveney a text asking about her availability. Ms Keaveney replied that she
was free from Fridays to Tuesdays and certain other times.
[10] Ms Keaveney said that after the second trial, Ms Davies rostered her to work the
following Saturday and Sunday, and that on 4 May 2023, Ms Davies sent her a message stating
that she was rostered every Saturday and Sunday for the month. On 7 May 2023, Ms Davies
asked her to work on design sketches as well as bridal consultancy work, for which she made
available some sketching implements and a back room in the store. Ms Keaveney agreed to do
sketches, but told Ms Davies that she preferred to use her own laptop to sketch. Ms Keaveney
also said that from around this time she received directions from Ms Davies about her day-to-
day work both via telephone and messages.
[11] Ms Keaveney said that on 15 May 2023, she, Ms Debruyne and Ms Davies had a group
‘chat’ on WhatsApp. Ms Debruyne asked whether she and Ms Keaveney should send her their
TFNs for tax purposes. Ms Davies replied with a message stating: ‘No lovely, we don’t need it
as we pay you all as subcontractors.’ Ms Keaveney said that this was the first time Ms Davies
had mentioned that she was a subcontractor.
[12] Ms Keaveney’s evidence was that on or about 20 May 2023, Ms Davies again said that
she wanted her to do sketches for customers, and stated that she would charge customers $250
per sketch, of which Ms Keaveney would be paid $150. Ms Keaveney said that also on 20 May
2023, she brought her passport to work, as Ms Davies had asked her to do some days earlier,
for the first time. However, when she went to produce it, Ms Davies told her that she would
look at it another day because ‘the contract was not ready’. Ms Davies then suggested to Ms
Keaveney that she get an ABN because she would pay less tax, but Ms Keaveney was
suspicious about this and did not agree to do so. On this matter, Ms Davies’ evidence was that
she was talking about the GST threshold, not the amount of tax Ms Keaveney would pay.
[13] Ms Keaveney gave evidence that from 4 June until 12 June 2023, Ms Davies was abroad,
and she looked after the store. On 13 June 2023, Ms Davies sent Ms Keaveney a message asking
her to send her ID. Ms Keaveney was uncomfortable about sending a copy of it and replied that
she would bring it in to work again. On 13 June 2023, Ms Davies texted her, saying that the ID
was needed in order to process further payments. Ms Keaveney replied, stating again that she
would bring it to work. She also said that she had not been paid for two weeks, and that she
needed to be paid to cover her expenses. Shortly afterwards, Ms Davies responded, stating that
she had been disappointed with Ms Keaveney during her absence, and that she had been
ignoring her and had failed to provide her ID for the contract. Ms Keaveney replied, stating that
she wanted to sort out what she was owed for the work she had done, that she had previously
brought her ID to work, and that she was happy to do so again. Ms Davies then told Ms
Keaveney that she was to bring back the keys to the shop, produce her ID, they would settle the
matter in person, and that Ms Keaveney’s services would no longer be needed.
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[14] On 14 June 2023, Ms Davies sent a message to Ms Keaveney stating that if she did not
return company property by the following day at noon, her lawyer would commence legal
proceedings against her and file a police report for stolen property. She stated that Ms Keaveney
still owed the company several drawings for which she had been paid, and that if these were
not provided, the amount paid would be deducted from her final pay.
Summary of submissions
[15] The company submitted that Ms Keaveney was not its employee, and that instead she
was a contractor engaged to perform services from time to time, for which she was expected to
provide invoices. It said that Ms Keaveney’s application for employment in response to its
advertisement was rejected by Ms Davies and that it was Ms Keaveney who suggested that she
work on a ‘freelance basis’. The company submitted that the parties had entered into an oral
contracting agreement, evidenced by the testimony of Ms Davies and Mr Boysen, whereby Ms
Keaveney would provide dress designs for $150 apiece, and do certain other work for $25 an
hour. The parties, and particularly the company, had no intention to create an employment
relationship. Ms Keaveney remained free to work for others. She had agreed to sign a supply
contract, and also to provide her ABN and an identity document, but later refused to do so. She
used her own equipment to draw her designs. She was not required to wear a uniform or to
attend the company’s shop. She worked variable hours. She had her own business preparing
dress designs. The arrangement between the parties was that they would have a relationship of
principal and contractor. The oral contract between them was a contract for services, not a
contract of service. Ms Keaveney was therefore not an employee of the company and was not
dismissed. The company contended that its jurisdictional objection should be upheld.
[16] Ms Keaveney submitted that Ms Davies hired her as a part-time employee after she
responded to its job advertisement. She said that the parties’ agreement was that she would
work in the company’s shop and service its clients on Saturdays and Sundays and certain other
days as required, and that she would be paid $25 per hour, plus commissions on the sale of
dresses, and $150 for each dress that she designed. All of this was borne out both by her
evidence and the correspondence between her and Ms Davies which had been produced to the
Commission. Ms Keaveney submitted that even if the dress design work were regarded as a
contracting arrangement, that did not change the fact that she was a part-time customer sales
representative working in the company’s shop. She was not running her own business or
providing contracting services to the company. The company employed her to work in its store
on weekends, subject to its direction. She had been an employee of the company. The
jurisdictional objection should therefore be rejected.
Consideration
[17] In order to make an application under s 365 of the FW Act a person must have been
‘dismissed’, and for this to have occurred, the person must have been an employee (see s 386).
The question of whether a person was an employee of another is governed by the common law.
In two recent decisions, the High Court of Australia has confirmed that the legal relationship
between the parties will be determined by reference to the rights and obligations created by any
contract that they have made, not by reference to their subsequent conduct: see CFMMEU &
Anor v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting) and ZG
[2023] FWC 2343
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Operations Australia Pty Ltd & Anor v Martin Jamsek & Ors [2022] HCA 2. These decisions
dealt with cases in which the parties had made written contracts. In the present matter, there is
no written contract that can speak for itself. The terms of any contract will be oral or implied
by fact or law, or some combination of these. The Commission must make factual findings from
which conclusions can be drawn about the existence of oral terms and terms implied by fact.
[18] I found Ms Keaveney’s evidence to be detailed and comprehensive. Ms Davies’
evidence on the other hand was selective. She did not deny that Ms Keaveney worked in the
shop on Saturdays and Sundays, but said little about it in her evidence in chief, emphasising
instead Ms Keaveney’s dress design work. She attached to her witness statement
correspondence relating to the dress design work, but not the shop work. Her evidence did not
convey a complete picture of the work that Ms Keaveney performed for the company. Ms
Keaveney attached to her witness statement a copy of her message correspondence with Ms
Davies from late April to early June 2023. This correspondence makes clear that the servicing
of customers in the shop was a major part of Ms Keaveney’s work for the company. This is
consistent with Ms Keaveney’s evidence.
[19] I make the following factual findings on the balance of probabilities. First, in relation to
what was said at the meeting in the cafe on 26 April 2023, I prefer the evidence of Ms Keaveney
where it conflicts with that of Ms Davies and Mr Boysen. Ms Keaveney’s evidence was clear,
consistent and detailed. Ms Davies’ evidence about the meeting was not detailed and largely
referred to the account of Mr Boysen. Further, Ms Davies’ evidence that she found Ms
Keaveney unprofessional and inexperienced was not convincing because it is inconsistent with
the fact that she allowed Ms Keaveney to work in her store and deal with her customers. As to
Mr Boysen’s evidence, I do not accept that his letter is a complete and accurate account of the
conversation he overheard in April. When he wrote the letter in August, on Ms Davies’ request,
several months had passed. He had no special interest in the conversation and no reason to
commit details of it to memory. He was not a party to the conversation. I find it improbable that
he would have the clear and detailed recollection of the conversation that is suggested by his
letter. Further, while he was listening to the conversation, he was talking to Ms Davies’
husband. He is unlikely to have heard everything. On the other hand, Ms Keaveney had a keen
personal interest in the conversation and its outcome, because she was applying for a job. It is
to be expected that she would recall it well. Ms Keaveney’s evidence of the conversation is also
consistent with what later occurred; after a trial, she worked in the shop on Saturdays and
Sundays dealing with the company’s customers.
[20] Secondly, I find that during the two trials, Ms Davies instructed Ms Keaveney how to
interact with customers and supervised her practicing what she had been told. I accept Ms
Keaveney’s evidence about what occurred during the trials, including that Ms Davies told her
that she would be paid through ‘PayID’.
[21] Thirdly, I find that Ms Keaveney was rostered to work, and did work, in the manner she
described in her evidence. She worked every Saturday and Sunday, except for Mothers’ Day
when the store was closed. Start and finish times depended on when appointments had been
booked, but usually on Saturdays she started in the late morning and finished in the late
afternoon. On Sundays she started around midday. I find that Ms Keaveney was expected by
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the company to work at the times she was rostered. Ms Keaveney’s evidence was consistent
with the parties’ correspondence, both generally, and in relation to what she said about the
scheduling of work. For example, the correspondence shows that on 4 May 2023 at 9.58am, Ms
Davies tells Ms Keaveney that she is ‘roster (sic) for every Saturday and Sunday for the month’.
[22] Fourthly, I accept Ms Keaveney’s evidence that she did not speak to Ms Davies on 30
April 2023, and that she did not at any other time agree that there would be no guarantee of
work, no employment relationship, no obligation to accept work, or that she would invoice the
company. Ms Keaveney’s denial was clear and convincing and I accept it.
[23] Fifthly, I find that on 7 May 2023, Ms Davies asked Ms Keaveney to work on design
sketches in addition to her work in the store and that on 20 May 2023 Ms Davies said that Ms
Keaveney would be paid $150 of the $250 that the company would charge clients for these
sketches.
[24] Sixthly, I find that on 20 May 2023, Ms Davies suggested to Ms Keaveney that she
obtain an ABN, but that Ms Keaveney did not say that she agreed to do this.
[25] Seventhly, I find that the first time that Ms Davies mentioned the notion of Ms Keaveney
being a subcontractor was on 15 May 2023, after Ms Debruyne asked Ms Davies whether she
and Ms Keaveney should provide their TFNs. I also find that Ms Keaveney did not say that she
agreed to become a contractor. Although Ms Davies told Ms Keaveney that the company treated
her as such, this was merely a statement by Ms Davies about the company’s view of the legal
nature of the relationship.
[26] Eighthly, I accept Ms Keaveney’s evidence that she did not agree to provide invoices to
the company for her work, and that she did not in fact provide any invoices.
[27] Ninthly, I find that the company, through Ms Davies, exercised control over the manner
in which she worked, and in particular how she interacted with the company’s clients.
[28] Based on my factual findings, I conclude that an oral contract was formed between Ms
Keaveney and the company, through Ms Davies, the terms of which were that Ms Keaveney
would work in the store on weekends and some other days. The hours of work would be variable
and depend on customer bookings. Ms Keaveney was expected to work on those days. She
would be paid $25 per hour for her work as well as a commission for the sale of dresses. The
contract was subject to a condition that Ms Keaveney undergo a trial. Other terms included that
Ms Keaveney was required to interact with customers in the manner that she had been directed
during the trials, that she would report to Ms Davies, and that she would receive her pay
electronically through the PayID platform. The terms of the oral contract were certain, and it is
objectively clear that the parties intended to be legally bound by them.
[29] In my opinion, the legal relationship established by the terms of the parties’ oral contract
was one of employment. Ms Keaveney promised to work as directed in the company’s
bridalwear store on particular days for $25 an hour. Contrary to the company’s contention, the
fact that customers made bookings to attend the store, and that Ms Keaveney’s hours were
variable, is not inconsistent with Ms Keaveney having been an employee of the company. Some
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employees have fixed hours, others do not. In relation to her work in the shop, Ms Keaveney
was subject to the company’s control. Her personal service was required. She could not have
sent someone else to work in the shop in her place. She was not running her own business. The
oral contract between the parties was a contract of service, not a contract for services.
[30] The parties later also agreed that Ms Keaveney would make dress design sketches
available to the company’s clients, that the company would sell these to clients for $250, and
that Ms Keaveney would receive $150 from each sale. On one view this might be considered a
piece rates arrangement that was a variation to the contract of employment. However, in my
opinion it was a separate arrangement between the parties. I would not describe this work as a
business that Ms Keaveney was running. But it was contracting work that Ms Keaveney
undertook for the company. This was the ‘freelance’ work that was mentioned in the
correspondence between Ms Davies and Ms Keaveney in early June 2023. It had no effect on
the contract of employment which governed her work in the store servicing the company’s
customers. There is nothing unusual about a worker being an employee of another and also
undertaking certain contract work for their employer.
[31] Even if it had been the case that the parties agreed to describe their relationship as a
contracting one, this would not have altered the legal character of the oral contract that they
made. The High Court in Personnel Contracting was very clear that the label that the parties
have chosen to describe their relationship is not legally determinative, nor is it necessarily even
relevant to the proper characterisation (at [63]). The terms of the contract will determine the
nature of the legal relationship of the parties.
[32] The company submitted that Ms Keaveney had used her own equipment and promoted
her work online through various platforms. But this related to her dress designs, not the work
that she undertook for the company in the store. The company also contended that Ms Keaveney
did not ask it to withhold PAYG or pay her superannuation. But this is beside the point. A
worker does not have to ask an employer to do what the law requires of it. I appreciate that it is
not always easy for small businesses such as the company to navigate the distinction between
employees and contractors, however this is a cost of doing business, and is no different from
the requirement that businesses ensure they understand other relevant areas of law.
[33] At the hearing, I refused to allow cross-examination of Ms Keaveney about her visa
status and right to work in Australia, because I did not consider it to be relevant to a matter at
issue between the parties. There was no relevant factual contest that required a resolution. The
company had led no evidence to indicate that Ms Keaveney was not entitled to work in
Australia. Ms Davies said that she had a general reservation about Ms Keaveney’s right to work
in Australia and found her evasive, but she did not provide any persuasive explanation of these
alleged concerns. When Ms Keaveney brought her passport to work in May, Ms Davies did not
want to see it. And in early June, when Ms Davies asked to see Ms Keaveney’s ID, she
emphasised that her visa was ‘not the issue’. Even if there had been a factual contest about Ms
Keaveney’s right to work in Australia, the company did not identify why this matter would be
relevant to its jurisdictional objection. In this regard, s 40B of the FW Act now provides that,
for the purposes of the FW Act, any effect of the Migration Act, or an instrument made under
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that Act, on the validity of a contract of employment or of a contract for services is to be
disregarded.
[34] More generally, s 577 of the FW Act directs the Commission to perform its functions
and exercise its powers in a manner that is fair and just. Sections 578(b) and (c) require the
Commission to take into account equity, good conscience and the merits of the matter. In my
view it would have been contrary to these requirements for the Commission to allow Ms
Keaveney to be cross-examined on her immigration status in the absence of any compelling
reason. To allow cross-examination in such circumstances would be unfair and could also have
a chilling effect that might deter migrants and visa holders from bringing or continuing claims
under the FW Act for fear that their right to remain in the country could be attacked, even if
they have done nothing wrong. It is important that the Commission pay due regard to the
potential vulnerabilities of migrants and visa-holders who may seek to defend their rights in the
Commission.
Conclusion
[35] Ms Keaveney was an employee of the company. She was dismissed. She alleges that
her dismissal contravened Part 3-1. The application is therefore within the jurisdiction of the
Commission. The matter will be listed for conference in accordance with the usual practice.
DEPUTY PRESIDENT
Hearing details:
2023
Melbourne
6 and 12 September
Appearances:
P. Goddard for the applicant
G. Adams and R. Wardle for the respondents
Printed by authority of the Commonwealth Government Printer
PR766168
WORK COMMISSION THE SEAL OF THE F
