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Fair Work Act 2009
s.365—General protections
Anthony Ducusin
v
Corporate Bodies Pty Ltd
(C2024/9096)
DEPUTY PRESIDENT COLMAN MELBOURNE, 31 JANUARY 2025
Section 365 – applicant not an employee – objection upheld – application dismissed
[1] Anthony Albert Schweitzer Ducusin (applicant) has made an application under s 365 of
the Fair Work Act 2009 (Act). This provision states that, if a person has been dismissed and
alleges that the dismissal was in contravention of Part 3-1 of the Act, the person may apply to
the Commission to deal with the matter. The respondent to the application is Corporate Bodies
Pty Ltd. It objects to the application on the ground that the applicant was not dismissed, because
he was a contractor, not an employee. Under s 386 of the Act, only an employee can be
dismissed. If the applicant was not an employee of the respondent, he had no standing to make
an application under s 365 and his application must be dismissed.
[2] The applicant and the respondent were parties to a written contract that describes itself
as an independent contractor agreement. The contract identified the applicant as Anthony
Albert. The applicant signed the document under this name. The contract stated that the
relationship between the parties was one of principal and contractor and that the applicant would
provide corporate massage services to the respondent for a minimum hourly fee of $50. This
was later increased to $55 per hour. The contract required the applicant to submit invoices to
the respondent in respect of the services he provided, and for the respondent to pay those
invoices within 14 days. The respondent would offer the applicant appointments with its
corporate clients. The applicant could express interest in assignments. The contract stated that
the applicant was free to engage in other activities and that he could assign or subcontract any
part of the services. The applicant provided services to the respondent from September 2023
and submitted invoices. In October 2024, a dispute arose between the parties. The company
decided to terminate the contract.
[3] The applicant contended that he had been an employee of the respondent and pointed to
several factors that in his view supported this conclusion. He said that he did not have control
over his schedule of work but was required to service clients at particular times. He said that he
could not in fact assign or subcontract his work and that everything had to go through the
company’s manager, Kurt Mueller. He said that on several occasions he had proposed another
masseur to Mr Mueller, and the company had then awarded the work directly to that person.
The applicant also said that he did not control how much he was paid, and that the work that he
performed had to be done to a high standard.
[2025] FWC 279
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 279
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[4] Mr Mueller said that the applicant was always free to assign or subcontract his work but
had never chosen to do so. Mr Mueller said that he was always clear with contractors that they
could assign or subcontract work, and that they should just make sure that the person to whom
they assigned or subcontracted work was insured. Mr Mueller said that the applicant was free
to request any fee he liked. Of course, the company did not have to accept what he proposed.
The applicant was free to take jobs or not take jobs. Mr Mueller said that in the 6 months leading
up to the termination of the contract, the applicant had only worked for the company on 20
occasions. The applicant did not dispute this.
[5] I find that Mr Ducusin did have control over his schedule because he was free to accept
or reject jobs as he saw fit. I find that he was also able to assign or subcontract his work, but
that he never sought to do so. I accept that the applicant introduced other masseurs to Mr
Mueller. But that does not mean that he could not assign or subcontract his work. It means that
he chose not to do that. Instead, he decided to introduce another masseur to the company,
whereupon Mr Mueller sent the job directly to that person. Mr Ducusin was able to propose
whatever fee he chose; if he did not propose a fee, the default fee in the contract would apply.
All of these matters are entirely consistent with a contracting relationship. So is the fact that
services had to be provided to a good standard.
[6] It is clear that the relationship between the parties was one of principal and contractor.
The contractor agreement was not a sham. The parties conducted themselves in accordance with
its terms. The applicant provided services to the company from time to time and invoiced the
company for those services. The contract reflected reality.
[7] The applicant was not an employee of the respondent. He was therefore not dismissed.
The company’s jurisdictional objection is upheld. The application is dismissed.
DEPUTY PRESIDENT
Hearing details:
2025
Melbourne (by telephone)
31 January
Appearances:
A. Ducusin for himself
K. Mueller for the respondent
Printed by authority of the Commonwealth Government Printer
PR783868
WORK COMMISSION THE SEAL OF THE F
