1
Fair Work Act 2009
s.365—General protections
Kenneth Craig Hill
v
Aboriginal Health & Medical Research Council Of NSW
(C2024/7022)
COMMISSIONER MCKINNON SYDNEY, 18 DECEMBER 2024
Application to deal with a general protections dismissal dispute – whether dismissed
[1] Mr Kenneth Craig Hill has applied under s.365 of the Fair Work Act 2009 (Act), which
allows a person who has been dismissed and who alleges that the dismissal was in contravention
of the general protections provisions in Part 3-1 of the Act, to apply to the Commission to deal
with the matter. The respondent, Aboriginal Health & Medical Research Council of NSW
(AH&MRC), objects to the application on the ground that Mr Hill was a contractor, not an
employee. Under s 386 of the Act, only an employee can be dismissed. If Mr Hill was not an
employee of AH&MRC, he had no standing to apply under s 365.
[2] An independent contractor agreement on the letterhead of AH&MRC and bearing the
name of Mr Hill and his ABN 57 758 916 869 was produced to the Commission. It states that
from 2 September 2024, Mr Hill would provide services to AH&MRC including teaching,
assessing, marking, administration and student education support. He would be paid an hourly
fee of $73.04 including GST for each hour of services provided and submit invoices once a
week. On 1 October 2024, AH&MRC terminated the contract. AH&MRC submitted that the
contractor agreement was evidence of a contracting relationship between the parties.
[3] Mr Hill agreed that he signed the independent contractor agreement. This followed an
express choice made by Mr Hill to be offer his services to AH&MRC as a contractor rather than
an employee. The terms of the contract were prepared to reflect this choice, and for the short
period of the contract, Mr Hill worked in a manner consistent with those terms. He worked
when he was available as agreed with AH&MRC. He continued to operate his other businesses.
He invoiced AH&MRC for his services using an ABN for Mr Hill trading as the Advance
Institute of Business and claimed payment as contemplated by the contractor agreement.
[4] Mr Hill claims his relationship with AH&MRC became one of employment because it
was bilaterally varied in a discussion with Mr Chris Margaritis, Acting Head of Training –
Quality Assurance and Capability Development. I reject this and prefer the evidence of Mr
Margaritis, who confirmed that the discussion in question was not about changing the nature of
the engagement between Mr Hill and AH&MRC. It was about increasing his hourly service fee
to $83 per hour to align with the rate paid to others performing the same or similar work in their
[2024] FWC 3528
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3528
2
capacity as employees. Other than bare assertion, there is no evidence of any other contract
between the parties. As late as 27 September 2024, Mr Hill wrote to another person working
for AH&MRC and said, “I am not an employee of AH&MRC, I am a contractor, the same as
you.” I also reject the submission of Mr Hill that his arrangement with AH&MRC was of the
usual kind for casual employees using an ABN. ABNs are for use by businesses including sole
traders – not for employees.
[5] There is no evidence that the contractor agreement was a sham. It reflected the
preference of Mr Hill and the reality of the arrangement between the parties, who each
conducted themselves in accordance with its terms. There is no evidence that AH&MRC
intended for the relationship to be one of employment. AH&MRC was ambivalent on the matter
and left the choice to Mr Hill.
[6] Mr Hill said his work was directed, and hours of work set, by AH&MRC and that he
could only vary his hours with its approval. On the evidence, his hours of work were set by
agreement according to Mr Hill’s availability. The services provided were also those that had
been agreed between the parties. To the extent that AH&MRC provided greater detail about the
work it required him to perform, I am not satisfied that it represented such a level of control
over Mr Hill as to indicate employment rather than contracting. The actual work performed as
part of providing the services may not have been entrepreneurial on its own, but it continued a
pattern of Mr Hill providing services within his area of expertise through his established
businesses.
[7] Mr Hill described features of his work that are capable of applying to both contractors
and employees, including participating in an induction process, being expected to comply with
AH&MRC policies, and being paid superannuation for a contract which was mainly for the
labour of Mr Hill. Mr Hill said he did not provide any equipment, which might indicate
employment, but conceded that he provided his own computer and internet connection, neither
of which was separately reimbursed. Because Mr Hill was contracted to work remotely, he also
provided the location of his work and all of its physical facilities. His reliance on the use of
software required by AH&MRC is of little significance because as a registered training
organisation, the work it contracted for Mr Hill to perform was all in connection with documents
and training materials specific to the business.
[8] Mr Hill submits that he was paid the “award rate”. Whether that is so is not established,
but when Mr Hill charged AH&MRC for his services, he also charged GST. Mr Hill says he
was held out as a representative of AH&MRC as one of its teachers. In the circumstances, this
was not an indicator of employment but merely a shorthand description of the services he had
contracted with AH&MRC to provide.
Conclusion
[9] It is clear that Mr Hill was not an employee of AH&MRC. The relationship was
genuinely one through which Mr Hill worked as a contractor providing services to AH&MRC.
It follows that Mr Hill was not dismissed and the jurisdictional objection is upheld. Mr Hill’s
application under s 365 is dismissed.
[2024] FWC 3528
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COMMISSIONER
Appearances:
K Hill for the applicant.
H Boothman of HWL Ebsworth for the respondent.
Hearing details:
2024.
Sydney:
December 16.
Printed by authority of the Commonwealth Government Printer
PR782582
WORK R WORK MMISSION THE F AUSTRALIA THE SEAL
