1
Fair Work Act 2009
s.365—General protections
Harrison Pye
v
Soccer X Pty Ltd
(C2023/3594)
DEPUTY PRESIDENT DOBSON BRISBANE, 8 SEPTEMBER 2023
Application to deal with contraventions involving dismissal – jurisdictional objection by
Respondents –– independent contractor – no written contract in place – jurisdictional
objection upheld – application dismissed.
Background
[1] Mr Harrison Pye (the Applicant) lodged an application pursuant to s.365 of the Fair
Work Act 2009 (the Act) to deal with a general protections dispute in relation to the alleged
termination of his employment. The Application named Samuel (Ryan Michael) Smith as the
Respondent and was filed in the Commission on 20 June 2023. On 11 August 2023,
Commissioner Durham issued an order pursuant to s.586(a) of the Act, amending the
Respondent to SOCCER X PTY LTD.
[2] Directions were issued for the filing of material on 14 August 2023 and 23 August 2023,
the matter was listed for hearing on 5 September 2023. The Application was initially allocated
to Commissioner Durham and on 24 August 2023, the matter was allocated to me.
Commissioner Durham’s directions were not disturbed by the reallocation of the file and this
was communicated to the parties.
[3] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain
Pty Ltd v Milford1 requires the Commission to determine a dispute about the fact of a dismissal
under section 365 of the Act, before the Commission can exercise powers conferred by section
368.2 It is thus necessary to determine the jurisdictional objection in order for the Applicant’s
application to proceed further.
[4] The Applicant was engaged by the Respondent to perform the duties of a soccer coach
in schools commencing on 24 April 2023. The Respondent raised a jurisdictional objection that
the Applicant was engaged as an independent contractor and not as an employee3 and therefore
he could not have been dismissed within the meaning of s.365 of the Act where no employment
relationship existed.
Legislation
[2023] FWC 2288
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2288
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[5] Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the
industrial interests of the person, alleges that the person was dismissed in
contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal
with the dispute.”
[6] Section 365 requires a dismissal to have occurred as a jurisdictional fact. A mere
allegation that a person has been dismissed will not establish this as fact. “Dismissal” for these
purposes (and other purposes of the Act) is defined in section 386(1), which provides:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by his or her
employer.
[7] Section 357(1) of the Act states:
“A person (the employer) that employs, or proposes to employ, an individual must not
represent to the individual that the contract of employment under which the individual
is, or would be, employed by the employer is a contract for services under which the
individual performs, or would perform, work as an independent contractor.”
[8] Section 358 of the Act states;
“An employer must not dismiss, or threaten to dismiss, an individual who:
(a) is an employee of the employer; and
(b) performs particular work for the employer;
in order to engage the individual as an independent contractor to perform the same, or
substantially the same, work under a contract for services.”
[2023] FWC 2288
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Applicant’s Submissions
[9] The Applicant did not file a witness statement in the matter. The Applicant’s material
was provided in his Form F8 Application and across several emails.4 Given the Applicant was
self-represented, I permitted the Applicant to swear in this evidence at the hearing as his
evidence in chief. This material did not contain any witness statements from any third party.
[10] The Applicant contends that the Respondent dismissed the Applicant on 31 May 2023.
The Applicant asserts that he submitted his application to the Commission within the prescribed
timeframe per section 366(1) of the Act.
[11] In respect of the matters to be determined by the Commission, the Applicant submits in
his application that:
“Sam Smith engaged me as an ‘independent contractor’ although I am certain that I represented
that of an employee during my entire time of engagement. All the responsibilities I had an (sic)
undertook resemble that of an employer-employee relationship as defined by this FairWork
page: https://www.fwc.gov.au/sham-arrangements-division-6.”5
[12] I note that when following this link a note can be found on that page which says:
“IMPORTANT: Pages dealing with whether a worker is an independent contractor or employee
are currently under review in light of the High Court decisions in Construction, Forestry,
Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG
Operations Australia Pty Ltd v Jamsek [2022] HCA 2 . Please refer to these cases for the current
approach to be taken in determining whether a worker is an independent contractor or
employee.”
[13] The Applicant provided in his submissions a document titled “Sports for Better Minds:
Coaches Conduct.”6 It was uncontested by the parties that this document outlines the
expectations of the relationship, which sets out the following requirements:
a. Expectations that each session would be accompanied by a 15 minute set up and a 15 minute
set down;
b. Deduction from wages for lost or damaged equipment;
c. Session structures; Pay rates based on completion of a session;
d. Probationary pay rates increasing after 3 months;
e. Different rates for working as a Lead Coach, Assistant Coach or working in Holiday Clinics;
f. Where the agreed conditions were not met, provisions for taking disciplinary action verbal
warning, written warning and dismissal; and
g. A required notice period when “leaving” the Respondent of 2 weeks.7
[14] The Applicant provided a copy of the invoice template he used to invoice the
Respondent for his services.8
Respondent’s Submissions
[15] The Respondent did not file a witness statement in the matter from itself (although it did
file witness statements from other witnesses as to the merits of the matter which were not
https://www.fwc.gov.au/sham-arrangements-division-6
https://jade.io/article/904712?at.hl=personnel+contracting
https://jade.io/article/904712?at.hl=personnel+contracting
https://jade.io/article/904714?at.hl=jamsek
https://jade.io/article/904714?at.hl=jamsek
[2023] FWC 2288
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relevant to the matters to be decided in these proceedings). The Respondent gave evidence in a
range of emails.9 Given the Respondent was self-represented, I permitted the Respondent to
swear in this evidence at the hearing as his evidence in chief, to the extent that material was
from him and not from other witnesses.
[16] The Respondent contends that the Applicant was not dismissed by the Respondent
because he was a subcontractor and that the Respondent brought the relationship with the
Applicant to an end due to the Applicant ceasing a coaching session 20 minutes early and
leaving children unsupervised. The Respondent submits this created a serious risk to the safety
of these children as children whose parents were not there early to pick them up, were left
unsupervised. Respondent asserts that as the Applicant was a contractor, there was no
employment relationship therefore the Applicant could not be dismissed.
[17] The Respondent submitted a copy of an email sent to the Applicant on 28 April 2023
that confirms that the Applicant was required to register as a coach on the Respondents website
with an ABN before payments could be made.10
[18] The Respondent submitted that the Applicant was hired as a contract Coach and that he
would complete coaching sessions for the Respondent when required. The Respondent
submitted to the Commission:
“…
We can confirm Harrison was brought on board as a contractor to Soccer X. Upon submitting
his application we called Harrison to discuss the job.
He informed us:
5. He was looking for casual coaching hours to work alongside his current other part time
position.
6. He would supply his ABN to us and coach 1 session per week for us.
Some other relevant details:
7. Harrison coached for us for a total of 5 sessions over a 5 week period from April 2023 to May
2023.
8. Harrison informed us he had various income streams which added up to make a living for
himself (this was again re iterated to us in the phone call recorded 25 Aug 2023).
9. Sports X request any coaches who work less then (sic) 4 sessions per week fill out a statement
of supplier form, Harrison instead preferred to provide his ABN as he was receiving other
income from other similar jobs.
10. The coaches roster sent out clearly stated the session was 3-4pm at Windaroo State School
each week. A picture of this is attached.”11
[19] The Respondent submitted that it provided the Applicant with a number of available
sessions at various schools at various times over various times of the week and it was the
[2023] FWC 2288
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Applicants decision as to which of these opportunities he chose to avail himself of.12 This was
uncontested by the Applicant.
[20] At the hearing, despite the directions on foot, a Director of the Respondent Mr Justin
McKay appeared and sought to provide verbal witness evidence on the spot without prior
notice. I declined to allow Mr McKay to give witness evidence in this context given the
procedural fairness that would be denied to the Applicant. The Respondent had adequate
opportunity to comply with the directions and at no time sought an extension to file new
evidence. The Respondent then requested an adjournment on the spot in order to provide further
evidence. Again, the Respondent had ample opportunity to comply with the directions of the
Commission to provide evidence and it would deny the Applicant procedural fairness to allow
a last-minute witness without notice. I declined to grant an adjournment for these reasons.
Out of Time
[21] It is uncontested that the Applicant and the Respondent’s relationship ended on 31 May
2023. It is also uncontested that the Applicant filed his application on 20 June 2023.
[22] The application was required to be lodged on or before 21 June 2023. The application
was not lodged out of time.
Is the Applicant an Employee or an Independent Contractor?
[23] The Applicant has brought an application pursuant to Section 365 of the Act. Section
365 only entitles a person to bring an application if that person has been “dismissed” (see
Section 365(a)).
[24] Section 386 of the Act states that a person has been dismissed if:
“(a) The person’s employment with his or her employer has been terminated at the
employer’s initiative; or
(b) The person has resigned from his or her employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by his or her employer.”
[25] Accordingly, a person can only be dismissed for the purposes of Section 386 if there is
an employment relationship.
[26] In the contest of whether the Applicant was an employee or a contractor, recent
authorities can assist with the determination. The High Court recently revised the applicable
legal principles to determine whether a person is an employee or an independent contractor in
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd
(‘Personnel Contracting’)13 and ZG Operations Australia Pty Ltd v Jamsek (‘Jamsek’)14 A
useful analysis was applied in the Commission decision of Waring v Hage Retail Group Pty
Ltd (‘Hage’):15
“[52] In two judgements delivered on 9 February 2022 the High Court of Australia pronounced
on the law that applies in determining whether, absent a specific statutory rule, a person is an
employee or contractor. In doing so, the Court reviewed past decisions of the Court (and other
courts) and set out afresh relevant legal principles.
[2023] FWC 2288
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[53] In important respects the law as expressed by the High Court in Jamsek and Personnel
Contracting has modified, if not replaced, former approaches. In particular, the past approach
of the Commission (itself based on past court authority) as outlined in the leading full bench
case of French Accent is, with some limited caveats, no longer good law.
[54] The High Court, via the combination of judgements in both Jamsek and Personnel
Contracting, has largely rejected an approach whereby the relationship between parties across
its life span is examined (including how the relationship operates in practice). The Court has
stated that contractual terms and not performance, where those terms can be ascertained and
where the contract is not a sham, will determine the true nature of the relationship. However,
the Court has observed that the manner in which the relationship is worked in practice may be
relevant for certain limited purposes, such as to find contractual terms where they cannot
otherwise be ascertained or to determine the nature of any variation to agreed terms.
[55] Indicia (such as those identified in earlier cases in the Court) may be relevant but only
insofar as the terms of the contract give voice to them. One approach, to be used as a guide, is
to look at whether, under the contract, the worker is engaged to work in the business of another,
though this may not necessarily be useful in all cases. The extent of a contractual right to
control, as evident from the terms of the contract itself, remains a major signifier of an
employment relationship. That an arrangement was brought about by the superior bargaining
power of one party has no bearing on the meaning and effect of the contract.
[56] Amongst the caveats expressed by the Court, is that a mere label acting as a subterfuge to
the true nature of the contractual relationship will not determine the status of the parties. In this
respect at least, the law remains unchanged by these recent decisions.” (footnotes omitted).
The Hearing
[27] There being contested facts involved, the Commission is obliged by s.397 of the Act to
hold a hearing.
[28] After taking into account the views of the Applicant and the Respondent and whether a
hearing would be the most effective and efficient way to resolve the matter, the matter was
listed for a determinative conference pursuant to s.399 of the FW Act.
[29] Both parties were self-represented at the hearing on 5 September 2023.
Witnesses
[30] The following witnesses gave evidence on behalf of the Applicant:
• The Applicant Mr Harrison Pye
[31] The following witnesses gave evidence on behalf of the Respondent:
• Mr Sam Smith of the Respondent
[32] It was uncontested in the hearing by the parties that there was neither a written
employment contract nor a written independent contract in place. However, both parties agreed
[2023] FWC 2288
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that there was a verbal understanding as a result of a meeting between Mr Smith of the
Respondent and the Applicant on 24 April 2023, that the relationship would be of a contractor
nature, that the Applicant would supply an ABN and would be responsible for payment of
taxation and superannuation and the Applicant would provide invoices for payment.
[33] Under cross-examination the Applicant submitted that he understood the role of a
Contractor as he had registered for an ABN to perform work for Uber Eats which he understood
to be of a similar nature to the type of work he was to perform for the Respondent. It was
uncontested between the parties that the Applicant was paid a set fee for each coaching session
he performed and that the fee was set by the Respondent. That fee increased with experience or
in the event that the Applicant performed Assistant Coach or Holiday Clinic sessions.16
[34] The Applicant gave evidence that he did not question the nature of his employment until
after the relationship came to an end and he sought legal advice from a community legal centre.
The Applicant claimed that it was the community legal centre’s advice that gave him cause to
believe that the nature of the engagement was as an employee not a contractor.
[35] Whilst a clear written agreement was absent, I find that there was some shared
understanding between the parties that the relationship was one of a contractor rather than
employee nature. In saying that, some of the material filed by the parties demonstrated
confusing language that was inconsistent with that understanding, such as the referral to
payment of wages and to the taking of disciplinary action, both in the Expectations Document17.
On that basis, given the High Court’s caution expressed in Hage “that a mere label acting as a
subterfuge to the true nature of the contractual relationship will not determine the status of the
parties”,18 I consider it important that the manner in which the relationship was performed must
also be examined.19
[36] In considering the various indicia identified in EFEX Group Pty Ltd v Bennett20 and
Stevens v Brodribb Sawmilling Co Pty Ltd21 , and other authorities, the Commission addressed
the list of indicia in the following manner.
Whether the putative employer exercises, or has the right to exercise, control over the manner
in which work is performed, place of work, hours of work and the like.22
[37] The Applicant submitted, that he performed work under the direction and control of the
Respondent including the hours required for each job, how work was to be done and the location
of the job. The Applicant gave evidence at hearing that he dictated his availability to the
Respondent and the Respondent had no say in what days he worked. The Applicant gave
evidence that this was due to the Applicant’s other work commitments. The Applicant gave
evidence that was uncontested that the Respondent attended 3 out of the 6 sessions he performed
and gave direct demands and instructions as to how he should conduct those sessions. On the
converse, the Applicant was able to conduct the other 3 sessions on his own accord having
regard for the Expectations Document. There was uncontested evidence that the Respondent
gave the Applicant free range to choose which sessions at which schools the Applicant could
take.23Further, the uncontested evidence before the Commission was that the Applicant had
unilaterally decided to end a session on 30 May 2023, 20 minutes early.24 This is further
indicative of the Applicant having control over his hours of work.
[2023] FWC 2288
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What the Arrangements were in respect to Invoicing and Other Entitlements25
[38] The Applicant gave evidence that at the beginning of his relationship with the
Respondent, the Respondent advised him that he was required to submit invoices after
completing sessions and that the Respondent provided him with a template he could use. The
Applicant submitted an invoice for the sessions he conducted and this was paid by the
Respondent.26 It was uncontested at hearing that entitlements or other obligations such as
income tax, superannuation, pay slips or accrued leave were provided by the Respondent,
sought or questioned by the Applicant.
Whether the worker performs work for others.
[39] The Applicant gave evidence that he held another part time job with commitments that
meant his role with the Respondent was a “side gig” and his availability for work with the
Respondent was limited at the Applicant’s discretion.
[40] The Respondent submitted that the Applicant was free to work for others and that he
regularly performed work for others limiting his availability for work with the Respondent.
[41] Mr Smith gave evidence that some of its coaches were engaged as independent
contractors and others as employees. Mr Smith prefaced this evidence by saying that he did not
make these decisions as they were made by the Director of the Respondent and he thought
perhaps the decision was made on the basis of how many hours or sessions a Coach undertook.
I consider Mr Smith’s evidence in respect of how Coaches became either a contractor or an
employee to be hearsay as he said he had no direct knowledge of this and therefore I place no
weight on this evidence.
Did the worker provides and maintains significant tools or equipment in relation to work
for the Respondent27
[42] It was uncontested at hearing that the Applicant did not provide his own tools or
equipment. The Respondent provided a kit of sports equipment that was used by the children
in the coaching sessions. There was no evidence before the Commission that there was any
equipment that the Applicant was required to provide to perform his role as Coach.
Whether the work can be delegated or subcontracted
[43] The Applicant gave evidence that he was unable to delegate the work to others however
if he was unavailable, the Respondent would find someone else to perform the work. The
Respondent did not contest this.
Whether income tax is deducted from remuneration paid to the worker
[44] It was uncontested by the parties that no income tax was deducted from the Applicant’s
remuneration and that the Applicant did not have expectation that it would be nor did the
Applicant raise any concerns about this with the Respondent.
Whether the worker was provided with paid holidays or sick leave
[2023] FWC 2288
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[45] It was uncontested by the parties that the Applicant was neither provided paid holidays
nor sick leave and it was further uncontested that the Applicant had never requested nor
expected paid holidays or sick leave.
Whether the work involves a profession, trade or distinct calling on the part of the person
engaged
[46] The Applicant was engaged by the Respondent as a sports coach. The Applicant gave
evidence that other part time work the Applicant performed was with children however there
was no evidence before the Commission of any specific qualifications that were required to
perform the role of Coach and therefore, I find that the work performed was not of a distinct
calling, profession or trade.
Whether the Applicant was held out as part of the Soccer X organisation28
[47] It was uncontested that the Respondent provided uniforms for the Applicant to wear,
that were branded with the Respondents business name. Further the Respondent gave evidence
that the Applicant’s conduct with the Respondents clients, was reflective on the reputation of
the Respondents business rather than on the Applicant.
Whether the Applicant had the ability to generate goodwill or other value in saleable
assets29
[48] It was uncontested that the Applicant performed the work on behalf of the Respondent
and was only paid for his time. There was clearly no ability to generate goodwill for a saleable
asset.
Consideration and Conclusion Independent Contractor or Employee
[49] I have considered the High Court authorities in Jamsek and Personnel Contracting and
the Commission’s previous consideration of those authorities in Hage particularly at paragraphs
[54] and [55]. I have also considered the Federal Court decision in Efex. I note that in this
present matter, there was no written agreement between the parties that the engagement was as
an employee nor as an independent contractor although there was a shared understanding the
engagement was as an independent contractor notwithstanding the confusing language in the
Expectations Document.
[50] I have considered the relevant practical relationship between the parties in light of the
relatively short period of time that it occurred between the parties being approximately 5 weeks.
[51] Accordingly, having regards to the indicia of the relationship, including the
Expectations Document, the verbal understanding by the parties at the commencement of the
relationship and the greater conduct of the parties being consistent with that agreement up until
the relationship came to an end, it is my view that my assessment of all of these factors weighs
in favour of finding that the Applicant was an independent contractor. Further that the parties
understood this from the beginning of the engagement and conducted themselves
predominantly in this manner until after the relationship came to an end.
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CONCLUSION
[52] For the above reasons it is considered that the Applicant was engaged as an independent
contractor and was not an employee of the Respondent. On that basis there is no utility for me
to consider whether the relationship came to an end at the initiative of the Respondent.
[53] Mr Pye was not dismissed for the purposes of s.365 and accordingly the matter is
dismissed.
[54] I Order accordingly.
DEPUTY PRESIDENT
Hearing: Brisbane, 5 September 2023
Printed by authority of the Commonwealth Government Printer
PR766013
1 [2020] FCAFC 152.
2 See Yi Zhang v Medlab Clinical Ltd [2021] FWCFB 2453 [1].
3 Digital Court Book (DCB) p48.
4 DCB pp3-47.
5 Applicants Form F8, Answer to Question 33, p8.
6 DCB pp14-15 (Expectations Document).
7 Ibid.
8 DCB p18.
9 DCB pp48-62.
10 DCB p30.
11 DCB p48.
12 DCB pp41-42.
13 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1.
14 ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.
15 Waring v Hage Retail Group Pty Ltd [2022] FWC 540.
16 Expectations Document.
17 Ibid.
AIR WORT WORK COM boon + AUSTRALIA ISSION THE SEAL OFFLINE
http://www.fwc.gov.au/decisionssigned/html/2021fwcfb2453.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc540.htm
[2023] FWC 2288
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18 Waring v Hage Retail Group Pty Ltd [2022] FWC 540. [56].
19 Ibid.
20 [2023] FCA 508 (Efex).
21 160 CLR 16.
22 Efex [103]-[117].
23 DCB pp41-42.
24 DCB pp46-47.
25 Efex [27].
26 DCB p18.
27 Efex [124].
28 Efex [118].
29 Efex [125].
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc540.htm
