1
Fair Work Act 2009
s.365—General protections
June Laing
v
The trustee for JD Family Trust
(C2024/5831)
COMMISSIONER SCHNEIDER PERTH, 31 DECEMBER 2024
Application to deal with contraventions involving dismissal
[1] Ms June Liang (Ms Liang or the Applicant) has made an application to the Fair Work
Commission under section 395 of the Fair Work Act 2009 (Cth) (the Act) claiming that she was
dismissed from her employment with the Trustee for the JD Family Trust T/A Polyline
Industries (Polyline or the Respondent).
[2] Polyline objects to the application on the grounds that Ms Liang was not dismissed as
she was not an employee. Polyline contends that Ms Liang was engaged as an independent
contractor. Ms Liang is only able to make this General Protections application if she is a person
who has been dismissed as required under the Act. Relevantly, section 386 of the Act provides
that a person is dismissed with reference to the individual’s employment under an employer.
[3] This decision considers whether Ms Liang is an employee or not. If Ms Liang is not an
employee, the application must be dismissed.
Relevant Law
[4] Central to the objection in the matter currently before the Commission, section 386 of
the Act reads as follows:
“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.”
[2024] FWC 3604
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3604
2
[5] I highlighted that the Act, as quoted above, discusses dismissal in the circumstances of
an individual’s employer terminating their employment, or forcing one to resign from their
employment. It follows that the dismissal contemplated in the Act is that of an employee and
not an individual performing work under an arrangement that is not consistent with that of an
employment relationship.
[6] Accordingly, it is necessary in the present matter for the Commission to determine
whether the Applicant was an employee and therefore able to meet the dismissal requirement
under section 386 of the Act as prerequisite to pursue this application under section 365.
[7] The recent advances in relevant case law and the leading authorities pertaining to the
consideration of whether an individual is an employee were comprehensively outlined by
Deputy President Easton, in Abdulai Salim v AFA Sheetmetal Components Pty Ltd, Daniel
Paragallias,1 as follows:
“The law after Jamsek and Personnel Contracting
In Waring v Hage Retail Group Pty Ltd [2022] FWC 540 (Waring) Deputy President
Anderson provided the following helpful summary of the significance of the High Court
decisions in Construction, Forestry, Maritime, Mining and Energy Union v Personnel
Contracting Pty Ltd (2022) 312 IR 1, [2022] HCA 1 (Personnel Contracting) and ZG
Operations Australia Pty Ltd v Jamsek (2022) 312 IR 74, [2022] HCA 2 (Jamsek):
“[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.
[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 [Jiang Shen Cai trading
as French Accent v Rozario [2011] FWAFB 8307 at [30]] 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.
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc540.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb8307.htm
[2024] FWC 3604
3
[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.”
The Deputy President’s summary was endorsed by the Full Bench in Azad v Hammond
Park Family Practice Pty Ltd T/A Jupiter Health Warnbro [2022] FWCFB 66 at [14].
In Chambers and O’Brien v Broadway Homes Pty Ltd [2022] FWCFB 129 at [74] a
subsequent Full Bench provided this summary of the key propositions in Personnel
Contracting:
“(1) When characterising a relationship regulated by a wholly written,
comprehensive contract which is not a sham or otherwise ineffective, the
question is to be determined solely by reference to the rights and obligations
under that contract. It is not permissible to examine or review the performance
of the contract or the course of dealings between the parties (Personnel
Contracting at [40]-[62], [172]-[178] and [203]);
(2) The subsequent conduct of the parties may be considered to ascertain the
existence of variation of contractual terms (Personnel Contracting at [42], [45],
[177]-[178], [188]-[190] and [203]);
(3) The multifactorial approach only has relevance in respect of the required
assessment of the terms of the contract (Personnel Contracting at [33]-[34], [47],
[61], [174], [186]-[189] and [203]);
(4) It is necessary to focus on those aspects of the contractual relationship which
bear more directly upon whether the worker’s work was so subordinate to the
employer’s business that it can be seen to have been performed as an employee
of that business rather than as part of an independent enterprise (Personnel
Contracting at [39]). The question is: whether, by the terms of the contract, the
worker is contracted to work in the business or enterprise of the purported
employer (Personnel Contracting at [180]-[186] and [203]);
(5) Existence of a contractual right to control the activities of the worker
(including how, where and when the work is done) is a major signifier of an
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb66.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb129.htm
[2024] FWC 3604
4
employment relationship (Personnel Contracting at [73]-[74], [113]-[114] and
[121]); and
(6) The label or characterisation placed on the relationship by the contract is not
relevant even as a “tie breaker” (Personnel Contracting at [58], [63]-[66] and
[79]), or at least it is not determinative (Personnel Contracting at [127], [184]
and [203]).”
In Deliveroo Australia Pty Ltd v Franco [2022] FWCFB 156 at [34]-[35] (Deliveroo)
the Full Bench endorsed the above summary and added a further point:
“… A contractual freedom on the part of the party performing the relevant work
to accept or reject any offer of work and to work for others is not necessarily a
contraindication of employment and may rather be consistent with casual
employment.”
The significance of the High Court’s decisions in Personnel Contracting and Jamsek
are most apparent in the Full Bench decision in Deliveroo (at [53]-[54]):
“In the circumstances described, the application of the Personnel Contracting
decision has obliged us to ignore certain realities concerning way in which the
working relationship between Mr Franco and Deliveroo operated in practice…
…
Had we been permitted to take the above matters into account, as the
Commissioner did, we would have reached a different conclusion in this appeal.
As a matter of reality, Deliveroo exercised a degree of control over Mr Franco’s
performance of the work, Mr Franco presented himself to the world with
Deliveroo’s encouragement as part of Deliveroo’s business, his provision of the
means of delivery involved no substantial capital outlay, and the relationship
was one of personal service. These matters, taken together, would tip the balance
in favour of a conclusion that Mr Franco was an employee of Deliveroo.
However, as a result of Personnel Contracting, we must close our eyes to these
matters.” ”
Submissions and Evidence
Applicant
[8] Ms Liang gave evidence in support of the position that she was not an independent
contractor and was instead an employee of Polyline.
[9] Ms Liang outlines that she was initially offered an hourly position with Polyline for
$30.00 per hour which she submits was below the required rate of pay under the relevant
Modern Award. Ms Liang confirms that, following further discussions with Polyline, she
agreed to an hourly rate of $45.00 per hour as a contractor.
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb156.htm
[2024] FWC 3604
5
[10] Ms Liang submits that, despite being a contractor, Ms Christine Broadhurst (Ms
Broadhurst), the Chief Financial Officer, would fully direct her on the duties she was to
perform.
[11] Ms Liang outlines her concerns regarding Polyline’s payroll management and
compliance with relevant industrial instruments. Ms Liang also provided extensive submissions
regarding the merit of her application and various protected workplace rights she asserts
Polyline breached during her engagement.
Respondent
[12] Mr Justin Reed (Mr Reed), the Managing Director, gave evidence on behalf of the
Respondent.
[13] It is the evidence of Mr Reed that JKJ Bookkeeping (the Applicant’s business) entered
into a contract for services with Polyline on 8 April 2024. It is asserted that Ms Liang requested
this arrangement, due to the lower hourly rate on offer as an employee.
[14] JKJ Bookkeeping was paid at an hourly rate of $45.00 per hour through an invoice
arrangement and no PAYG tax was deducted. JKJ Bookkeeping and the Applicant were
responsible for any relevant tax arrangements.
[15] JKJ Bookkeeping provided services for bookkeeping and payroll. It was the evidence
of Mr Reed that these services were performed autonomously, with minimal supervision or
direction from Polyline.
[16] JKJ Bookkeeping was provided with a workstation at Polyline. However, JKJ
Bookkeeping was required to procure its own laptop computer for duties. Mr Reed states that
JKJ Bookkeeping was able to service multiple clients and was not restricted to performing
duties only with Polyline. Mr Reed confirms that, whilst working from the Polyline offices, JKJ
Bookkeeping was free to work for other clients as well.
[17] Mr Reed states that, whilst there were preferred times and attendance at the Polyline
office, JKJ Bookkeeping had control over when, where, and how the work was performed.
[18] Mr Reed states that JKJ Bookkeeping was required to obtain and maintain insurances,
such as professional indemnity insurance.
Consideration
[19] The Full Bench of the Commission, in Chambers and O’Brien v Broadway Homes Pty
Ltd,2 outlined the key propositions to be considered in characterising the nature of such working
relationships, derived from the leading authorities, as follows:
“(1) When characterising a relationship regulated by a wholly written, comprehensive
contract which is not a sham or otherwise ineffective, the question is to be determined
solely by reference to the rights and obligations under that contract. It is not permissible
[2024] FWC 3604
6
to examine or review the performance of the contract or the course of dealings between
the parties.
(2) The subsequent conduct of the parties may be considered to ascertain the existence
of variation of contractual terms.
(3) The multifactorial approach only has relevance in respect of the required assessment
of the terms of the contract.
(4) It is necessary to focus on those aspects of the contractual relationship which bear
more directly upon whether the worker’s work was so subordinate to the employer’s
business that it can be seen to have been performed as an employee of that business
rather than as part of an independent enterprise. The question is: whether, by the terms
of the contract, the worker is contracted to work in the business or enterprise of the
purported employer.
(5) Existence of a contractual right to control the activities of the worker (including how,
where and when the work is done) is a major signifier of an employment relationship.
(6) The label or characterisation placed on the relationship by the contract is not relevant
even as a “tie breaker”, or at least it is not determinative.” (Footnotes omitted)
[20] The parties agree that there is no written agreement in place between Ms Liang and
Polyline that could be described as a contract. As a result, I have considered the nature of the
engagement and the conduct of the parties in determining whether Ms Liang was an employee
or an independent contractor.
[21] From the limited material that has been provided to the Commission, I observe that the
following items weigh in favour of the position that the Applicant was an employee:
• No formal independent contractor agreement being entered into by the parties.
• Ms Liang preforming her duties through an accounts email which used Respondent’s
domain.
• Ms Liang working at the Respondent’s office.
• Ms Liang being directed and managed by the Chief Financial Officer, Ms Broadhurst.
[22] Conversely, I observe that the following items weigh against the position that the
Applicant was an employee:
• Ms Liang emailing Ms Broadhurst on 10 April 2024, asking if she could contract to
Polyline through her business.
• Ms Liang providing invoices to Polyline from JKJ Bookkeeping.
[2024] FWC 3604
7
• JKJ Bookkeeping being paid an hourly rate of $45.00 and being responsible for
taxation and leave arrangements.
• Ms Liang providing the primary tool utilised to carry out the work, being the laptop.
• JKJ Bookkeeping providing confirmation of professional indemnity insurance to
Polyline.
• JKJ Bookkeeping being able to continue to provide professional services to other
clients.
[23] Having considered the nature of the engagement between the parties, I have determined
that Ms Liang was not an employee, rather she was an independent contractor providing
services to the Respondent.
[24] Ms Liang was able to provide her services to multiple clients, she was paid an hourly
rate on the provision of an invoice, she was required to administer her own PAYG taxation, and
she maintained her own professional indemnity insurance. These factors combined suggest that
the nature of the working relationship between Ms Liang and Polyline was that of an
independent contractor providing services for a client business.
[25] I am not satisfied that the Applicant has established support for, or that the totality of
evidence before the Commission supports, a conclusion that the Respondent exercised such a
level of control over the Applicant’s work and business that the relationship between the parties
could be characterised as that of an employee and employer.
[26] I am similarly not persuaded that the matter currently before the Commission arises in
circumstances where a business has sought to avoid providing the required benefits or
obligations to an employee by engaging that individual through some other form of
questionable contractor arrangement.
[27] Accordingly, I am not satisfied that Ms Liang was dismissed as defined in the Act.
Therefore, I have no alternative but to dismiss the application before the Commission. An Order
to that effect is issued.3
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR782902
1 [2023] FWC 1834, [8] – [12].
IWORK COM THE FAIR WORK C ALOTMANI MISSION THE SEAI
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1834.pdf
[2024] FWC 3604
8
2 [2022] FWCFB 129, [74].
3 [PR782903].
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb129.htm
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr782903.pdf
