1
Fair Work Act 2009
s.394—Unfair dismissal
Adriana Music
v
Sharesight Pty Ltd
(U2024/8458)
DEPUTY PRESIDENT BOYCE SYDNEY, 4 MARCH 2025
Application to deal with unfair dismissal – jurisdictional objection – whether the applicant was
an employee of the respondent – written independent contractor agreement – section 15AA of
the Fair Work Act 2009 does not apply – principles in Personnel Contracting Pty Ltd [2022]
HCA 1; (2022) 398 ALR 404 applied - application dismissed.
Introduction
[1] Ms Adriana Music (Applicant) has filed a Form F2 (unfair dismissal) application
(Application) under s.394 of the Fair Work Act 2009 (Act). The Applicant alleges that she was
dismissed by Sharesight Pty Ltd (Respondent) unfairly.
[2] The Respondent says that the Application is misconceived and jurisdictionally barred
on the basis that the Applicant was not an “employee” of the Respondent for the purposes of
Part 3-2 (Unfair Dismissal) of the Act.1 In other words, if the Applicant was not an employee
of the Respondent, it could never have dismissed her. The requirement for a “dismissal” (within
the meaning of s.12 and s.386 of the Act) is a jurisdictional prerequisite to the making of a valid
unfair dismissal claim.
[3] The issue to be resolved in this case is whether the relationship between the Applicant
and the Respondent was that of employee and employer, or independent contractor and
principal. Section 15AA of the Act (which concerns itself with the real substance, practical
reality, and true nature of the relationship when determining the meanings of employee and
employer) commenced on 26 August 2024, and does not apply to the resolution of these
proceedings.2
[4] Directions were issued for the filing of submissions and evidence, and the listing of the
matter for hearing. The parties complied with those Directions.
[5] At the hearing, the Applicant appeared on her own behalf, and the Respondent was
represented (with permission)3 by Mr Patrick Barry of Counsel, instructed by Mr James True,
Practice Group Leader, Legal Vision lawyers.
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DECISION
AUSTRALIA FairWork Commission
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Factual overview
[6] I make the findings of fact set out in paragraphs [7] to [16] below.
[7] The Respondent carries on a business within the financial technology (or fintech)
industry. It provides an investment tracking platform operating in various international markets,
with its head office located in Surry Hills, New South Wales.
[8] The Applicant was originally employed by the Respondent on 12 April 2021 in the role
of Project Delivery Manager. In around September 2022, the Applicant raised with the
Respondent her plan to possibly move overseas to Canada for a year in mid-2023 for personal
reasons. She enquired of the Respondent as to whether she could continue to work for it whilst
located in Canada.4 The Respondent has no presence in Canada, or the United States of
America.
[9] Following the Applicant’s enquiry, in early June 2023, the Respondent made the
following offer to the Applicant (Respondent’s Offer):
a) if the Applicant wished to work for the Respondent whilst in Canada, her
engagement with the Respondent would need to change from employee to
independent contractor; and
b) as part of this change, the Applicant would need to resign her employment with the
Respondent, and become an independent contractor to the Respondent pursuant to
terms and conditions set out in a written contract.
[10] Subject to seeing the terms of the written contract, the Applicant was agreeable to the
Respondent’s Offer.
[11] The Respondent’s Offer was made to the Applicant on the basis of the Respondent’s
concerns as to the tax and administrative implications of the Applicant working remotely from
Canada.5 In other words, if the Applicant wanted to work for and be paid by the Respondent
whilst located in Canada (for her own personnel reasons), the Respondent was prepared to
indulge the Applicant’s request on the terms of the Respondent’s Offer.
[12] Consistent with the Respondent’s Offer, the Applicant resigned from her employment
with the Respondent on 7 June 2023.6 She travelled to Canada on 12 June 2023, and her
outstanding employment entitlements were paid to her by the Respondent on 16 June 2023.7
[13] On 3 July 2023, the Applicant and the Respondent entered into a wholly written
agreement in the form of an independent contractor agreement (Contractor Agreement)8 and
the Applicant provided the Services to the Respondent under this Contractor Agreement for the
period (commencing around) 29 June 2023 to 9 July 2024.
[14] The terms of Contractor Agreement (per Clause 10.1) cannot be varied, amended or
added to, other than via a further written instrument that is duly signed by both parties. There
is no evidence of any such further written instrument being drafted, let alone signed.
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[15] The relevant terms of the Contractor Agreement are as follows:
a) The Applicant is to provide the Respondent with the “Services”, being the provision
of software and project management services related to Sharesight’s [the
Respondent’s] product and associated platforms.
b) The Contractor Agreement is for an on-going “Term”, unless terminated.
c) The Applicant is to submit fortnightly invoices to the Respondent (specifying the
Services provided by her to the Respondent) to receive payment, which is to be made
within seven days of receipt of such invoice/s;
d) Clause 1 of the Contractor Agreement reads:
1. Engagement
1.1 We agree to engage you to provide the Services, and you agree to provide
the Services:
(a) in accordance with our specifications;
(b) with due care, skill and diligence;
(c) with due expedition and without delay, in accordance with any
timeframes required by this Agreement; and
(d) in a proper and professional manner, and in accordance with best
industry practice.
1.2 Nothing in this Agreement creates an exclusive relationship between you
and us, and we may, at any time, enter into arrangements with any other
individual or entity to receive the same or similar goods or services as the
Services.9
e) Clause 2 of the Contractor Agreement reads:
2. Your Obligations
2.1 You agree to (and to the extent applicable, ensure that your Personnel agree
to):
(a) comply with this Agreement, all applicable Laws, and our reasonable
requests;
(b) without limiting any of our other rights or remedies under this
Agreement or at law, promptly re-supply any part of the Services that is
not performed or supplied to us in accordance with this Agreement, or if
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such part of the Services cannot be resupplied, refund us any amounts
we have paid for it;
(c) effect and maintain all insurances reasonably required for you to
supply the Services to us;
(d) comply with all relevant work, health, safety and welfare standards
and regulations; and
(e) obtain and hold all licenses, consents and permits required by us, or
as is necessary, to supply the Services.
2.2 You agree to pay our additional costs reasonably incurred as a result of you
failing to comply with this clause 2.10
f) Clause 3 of the Contractor Agreement reads:
3. Price and Payment
3.1 Subject to you providing the Services in accordance with this Agreement,
we agree to pay you the Price (or the relevant part thereof), in accordance with
the Payment Terms.
3.2 We will not be liable for any expenses incurred by you in supplying the
Services unless pre-approved by us in writing. We will only reimburse you for
such pre-approved expenses after being provided with the relevant invoices,
receipts or other supporting payment documentation.
3.3 Any payment made by us is made on account, and is not taken to constitute
any approval of the Services provided.
3.4 You agree that we may set-off or deduct from any monies payable to you
under this Agreement, any amounts which are payable by you to us under this
Agreement.11
g) Clause 4 of the Contractor Agreement reads:
4. Restraint of Trade
4.1 You (whether inadvertently, directly or indirectly, or through any third party)
must not, during the Restraint Period and in the Restraint Area:
(a) induce or solicit our customers or Personnel (who were customers or
Personnel at the date of termination or expiry of this Agreement or within
the 12 months prior), to leave their employment or limit or end their
contractual arrangement with us (as applicable); or
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(b) compete with us or enter into business arrangements with, advise,
work for, consult with, provide services the same or similar to the
Services to, or in any way assist, any of our clients or competitors.
4.2 You agree that:
(a) the terms of this clause 4 are reasonable given the nature of our
business, are necessary to protect our legitimate business interests and do
not unreasonably restrict your right to carry on your profession or trade;
(b) we may seek legal remedies (including equitable remedies) for a
breach of this clause 4; and
(c) on request, you agree to provide us with evidence sufficient to enable
us to confirm your compliance with this clause 4.
4.3 For the purposes of this clause 4, Restraint Period means the Term, and:
(a) 12 months after the Term of this Agreement;
4.4 For the purposes of this clause 4, Restraint Area means:
(a) the countries in which you supplied the Services to us;
4.5 Each restraint contained in this clause 4 (resulting from any combination of
the wording in clause 4.1 with each of the Restraint Areas and Restraint Periods)
are separate, distinct and several, so that the unenforceability of any restraint
does not affect the enforceability of the other restraints.
4.6 This clause 4 will survive the expiry or termination of this Agreement.12
h) Clause 5 of the Contractor Agreement reads:
5. Intellectual Property
5.1 As between the Parties:
(a) we own all Intellectual Property Rights in Our Materials;
(b) you own all Intellectual Property Rights in Your Materials; and
(c) nothing in this Agreement constitutes a transfer or assignment of any
Intellectual Property Rights in Our Materials or Your Materials.
5.2 As between the Parties, ownership of all Intellectual Property Rights in any
New Materials will at all times vest, or remain vested, in us upon creation. To
the extent that ownership of such Intellectual Property Rights in any New
Materials does not automatically vest in us, you hereby assign all such
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Intellectual Property Rights to us and agree to do all other things necessary to
assure our title in such rights.
5.3 We grant you a non-exclusive, revocable, royalty-free, worldwide, non-
sublicensable and non-transferable right and license, to use Our Materials that
we provide to you and the New Materials, solely for the purposes of you
performing your obligations under this Agreement.
5.4 You grant us a non-exclusive, irrevocable, royalty-free, worldwide,
sublicensable and transferable right and license to use Your Materials that you
provide to us, for our use and enjoyment of the Services, and for the purpose of
performing our obligations or exercising our rights, as contemplated under this
Agreement.
5.5 If you (if you are an individual) or any of your Personnel have any Moral
Rights in any material provided, used or prepared in connection with this
Agreement, you agree to (and you will procure your Personnel to) consent to our
use or infringement of those Moral Rights.
5.6 You warrant that Your Materials and the New Materials will not infringe the
Intellectual Property Rights or any other rights of any third party.
5.7 This clause 5 will survive termination or expiry of this Agreement.13
i) Clause 6 of the Contractor Agreement reads:
6. Confidential Information
6.1 Each Receiving Party agrees:
(a) not to disclose the Confidential Information of the Disclosing Party
to any third party (subject to subclause 6.1(c));
(b) to protect the Confidential Information of the Disclosing Party from
any loss, damage or unauthorised disclosure;
(c) to only disclose the Confidential Information to those of its Personnel
who need to know the Confidential Information in connection with
this Agreement, provided those Personnel keep the Confidential
Information confidential in accordance with this clause 6; and
(d) to use only the Confidential Information of the Disclosing Party for
the purposes of performing obligations, or exercising rights or
remedies, under this Agreement.
6.2 The obligations in clause 6.1 do not apply to Confidential Information that:
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(a) is required to be disclosed for the Parties to comply with their
obligations under this Agreement;
(b) is authorised in writing to be disclosed by the Disclosing Party;
(c) is in the public domain or is no longer confidential, except as a result
of a breach of this Agreement or other duty of confidence; or
(d) must be disclosed by Law or by a regulatory authority, including
under subpoena, provided that (to the extent permitted by Law) the
Receiving Party has given the Disclosing Party notice prior to
disclosure.
6.3 Each Party agrees that monetary damages may not be an adequate remedy
for a breach of this clause 6. A Party is entitled to seek an injunction, or qny
other remedy available at law or in equity, at its discretion, to protect itself
from a breach (or continuing breach) or this clause 6.
6.4 This clause 6 will survive the termination of this Agreement.14
j) Clause 8 of the Contractor Agreement reads:
8. Liability
8.1 To the maximum extent permitted by law, you indemnify us from and against
any Liability that we may suffer, incur or otherwise become liable for, arising
from or in connection with:
(a) any property loss or damage, or personal injury or death, arising from
your supply of the Services; and
(b) any breach of clauses 5, 6 or 7.
8.2 This clause 8 will survive the termination or expiry of this Agreement.15
k) Clause 9 of the Contractor Agreement reads:
9. Term and Termination
9.1 This Agreement will operate for the Term.
9.2 Either Party may terminate this Agreement at any time by giving 30 days’
notice in writing to the other Party.
9.3 This Agreement will terminate immediately upon written notice by a Party
(Non-Defaulting Party) if:
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(a) the other Party (Defaulting Party) breaches a material term of this
Agreement and that breach has not been remedied within 10 Business
Days of the Defaulting Party being notified of the breach by the Non-
Defaulting Party; or
(b) the Defaulting Party goes bankrupt, insolvent or is otherwise unable
to pay its debts as they fall due.
9.4 Upon expiry or termination of this Agreement:
(a) you must immediately cease providing the Services;
(b) you must immediately deliver to us all work in progress and return
all of our property (including our information, materials and Intellectual
Property) in your or your Personnel’s possession or control; and
(c) by us pursuant to clause 9.3, you also agree to pay us our additional
costs, reasonably incurred, and which arise directly from such
termination (including recovery fees).
9.5 Termination of this Agreement will not affect any rights or liabilities that a
Party has accrued under it.
9.6 This clause 9 will survive the termination or expiry of this Agreement.16
l) Clause 10.1 of the Contractor Agreement reads:
Amendment: This Agreement may only be amended by written instrument executed
by the Parties.17
m) Clause 10.9 of the Contractor Agreement reads:
Relationship of Parties: This Agreement is not intended to create a partnership, joint
venture, employment or agency relationship between the Parties. Any of your
Personnel are, and at all times will remain, employed or engaged by you, and
nothing in this Agreement gives rise, or is intended to gives rise, to your Personnel
being our employees, partners, joint venture parties or agents.18
n) Clause 10.11 of the Contractor Agreement reads:
Subcontracting: You agree to not subcontract the provision of any part of the
Services without our prior written consent, which may be withheld at our absolute
discretion. You agree that any approval to subcontract given by us does not
discharge you from any Liability under this Agreement and you are liable for the
acts and omissions of the subcontractor.19
[16] Around June 2024, the Respondent resolved that it no longer required the Services to be
performed by the Applicant. On 9 July 2024, the Respondent gave the Applicant notice of
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termination in accordance with the terms of the Contractor Agreement, and the engagement
between the Applicant and the Respondent terminated (or ceased) 30 days later.20
Case law
[17] The applicable legal principles to be applied when determining the nature of a legal
relationship are set out in the High Court decision in Construction, Forestry, Maritime, Mining
and Energy Union v Personnel Contracting Pty Ltd21 (Personnel Contracting). These
principles apply where a contract is written, partly written and partly oral, or wholly oral.22 For
the purposes of this decision, I rely upon, but do not repeat, the reasoning and conclusions set
out in Personnel Contracting in the judgements of Kiefel CJ, and Keane and Edelman JJ (at
[39], [47],23 [52], [55]-[61], [74], and [88]), and Gordon J, with whom Steward J agreed (at
[174]-[177], and [180-[190]).24
[18] Prior to Personnel Contracting, case law outcomes (arising from employment versus
independent contractor disputes) were almost always squarely based upon a multi-factorial
analysis of the relationship (by reference to conduct engaged in during the actual performance
of the relevant contract). But this approach was rejected in Personnel Contracting because, in
many ways, it impinged upon one party’s legitimate contractual freedoms, and encouraged or
enabled the other party to depart or walk-away from promises and agreements otherwise validly
made or agreed to.25
[19] The (old law) multifactorial analysis26 used a “checklist” to tick off various factors or
indicia when determining whether the totality of a relationship was that of employee, or
independent contractor. But a checklist is not used in an analysis that applies the law flowing
from Personnel Contracting.27 Rather, one only looks to the terms of the contract itself to
identify or determine the totality of the relationship. One does not look at broad or specific
factors or indicia from a generalized checklist that gives rise to ticks or crosses in boxes
concerning factors or indicia that are considered around the conduct of the parties.28
[20] Following on from Personnel Contracting, it has been noted by the Full Federal Court
(Jagot, Banks-Smith and Jackson JJ) in Murphy v Chapple29 that many of the provisions of the
Fair Work Act operate against the background of the fundamental doctrines of the common
law, with one of those doctrines being the ‘freedom to contract’. Indeed, on the question as to
whether or not a person is an employee or independent contractor, the Full Court highlighted
that the “essential point” is that “unless some law provides otherwise, parties are free to contract
as they see fit”.30
[21] Post Personnel Contracting, the focus is now upon the terms of a contract that were in
fact agreed, and the inescapable acknowledgement of same. Importantly, whether as a fence or
a backstop, this normalisation of focus brings to the fore the direct application and maintenance
of traditional tenets such as:
a) a person is bound by his or her own conduct at the time that a contract is entered
into;
b) one cannot approbate and reprobate the legal arrangement he or she sought, enacted
and took the benefit of;
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c) a person is estopped from denying and acting inconsistently with the legal
relationship he or she sought, enacted and took the benefit of; and
d) a party should be denied relief against a defendant (or opposing party) to the extent
that any discretion to be exercised might be dependent upon a departure from the
legal position that the party (or person) accepted or agreed to.
[22] To the extent that there has been any confusion or misunderstanding, Personnel
Contracting has confirmed that:
a) contracts, in respect of employment and/or independent contracting, are to be
interpreted in the same way that contracts are generally interpreted under the laws
of Australia;31
b) the classification of the relationship that exists between parties, being that of
employment or independent contractor and principal, is to be ascertained objectively
by reference to the terms of a contract (identifying the rights and obligations of the
parties under the contract), and not by reference to questions of fairness, or the
manner in which subsequent conduct and performance might undercover a
‘reality’;32
c) a “wide-ranging review of the entire history of the parties’ dealings” is neither
necessary nor appropriate for the purpose of characterising the relationship;33 and
d) the common intention of the parties to a contract (as to the type of legal relationship
that they intended to create), whilst for objective determination, in the normal
course, ought not be retrospectively overridden, undermined, or otherwise
restricted.34
[23] This objective theory of contract (that embodies Personnel Contracting) consummates
a long line of authority consistent with:
a) Blackburn J’s classic and distinguished statement in Smith v Hughes (1871) LR 6
QB 597 (at 607):
“If, whatever a man’s real intention may be, he so conducts himself that a
reasonable man would believe that he was assenting to the terms proposed by
the other party, and that other party upon that belief enters into the contract with
him, the man thus conducting himself would be equally bound as if he had
intended to agree to the other party’s terms.”; and
b) Lord Reid’s straightforward statement in James Miller & Partners Ltd v Whitworth
Street Estates (Manchester) Ltd [1970] AC 583 (at 603):35
“[to avoid the result] that a contract meant one thing the day it was signed, but by
reason of subsequent events meant something different a month or a year later”.
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[24] In EFEX Group Pty Ltd v Bennett,36 Katzmann and Bromwich JJ referred to the
following principles to be used for determining whether an employment relationship exists:
“6. Where the rights and duties of the parties are “comprehensively committed to a
written contract”, and the contract is not a sham, varied, waived or the subject of an
estoppel, the obligations established by that contract are decisive of the character of
the legal relationship: Personnel Contracting at [43]–[44], [59] per Kiefel CJ, Keane
and Edelman JJ; and at [183] per Gordon J (Steward J agreeing). In order to ascertain
the relevant rights and obligations, the written contract is to be construed in accordance
with established principles of contractual interpretation generally: Personnel
Contracting at [60] per Kiefel CJ, Keane and Edelman JJ; and at [173] per Gordon J
(Steward J agreeing).”
…
“10. Thus, whether the contact is written or not, or is oral in whole or in part, the
characterisation of the relationship between the parties depends on their contractual
rights and not on circumstances, facts or events that do not affect those rights. It
follows that a “wide-ranging review of the entire history of the parties’ dealings” is
neither necessary nor appropriate for the purpose of characterising the
relationship: Personnel Contracting at [59] per Kiefel CJ, Keane and Edelman JJ; see
also [185]–[189] per Gordon J (Steward J agreeing).
11. The principles of contract interpretation also apply to the terms of an unwritten
contract that are able to be ascertained, inferred or implied. They allow regard to be
had to circumstances surrounding the making of the contract and events and matters,
known to the parties at the time of contracting, which assist in identifying the object
or purpose of the contract. The nature of the work contracted for and the arrangements
of the supply or provision of any tools or equipment to the putative employee may also
be relevant. Generally, things said or done after a contract was made are not legitimate
aids to its construction. In a case such as this, for a matter with no necessary connection
to the contractual obligations of the parties to have any bearing on the characterisation
of their relationship, “it must be concerned with the rights and duties established by
the parties’ contract, and not simply an aspect of how the parties’ relationship has come
to play out in practice”: Personnel Contracting at [61] (Kiefel CJ, Keane and Edelman
JJ).
12. The central question that remains, under an unwritten contract as in a written
contract, is whether or not a person is an employee. As was observed in Personnel
Contracting at [39] per Kiefel CJ, Keane and Edelman JJ (see also [113] per Gageler
and Gleeson JJ), while the dichotomy between a person’s own business and the
putative employer’s business may not be perfect so as to be of universal application,
because not all independent contractors are entrepreneurs, that approach is still useful.
That is because it focuses attention on whether the putative employee’s work as
contracted to be performed was so subordinate to the putative employer’s business as
not to be part of an independent enterprise. It also avoids the danger of an
impressionistic and subjective judgement, or ticking off a checklist, running counter
to objective contractual analysis.
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13. Once the contours of the legal relationship are identified, its characterisation as
one of employment or not often hinges on two considerations identified in Personnel
Contracting, in particular by Kiefel CJ, Keane and Edelman JJ at [36]-[39], each of
which may involve questions of degree, namely:
(a) the extent to which the putative employer has the right to control how, when
and where the putative employee performs the work; and
(b) the extent to which the putative employee can be seen to be working in their
own business as distinct from the putative employer’s business.
14. However, as a cautionary note, in some circumstances the proper analysis may be
more nuanced than that. As Gordon J pointed out in Personnel Contracting at [181]-
[183] (Steward J agreeing), asking whether a person is working for their own business
may not always be a “suitable inquiry for modern working relationships”, given that it
may not take much for even a low skilled person to be carrying on their own business.
Analysis based on this dichotomy may distract from the relevant underlying analysis
of the totality of the relationship created by the contract. It may also direct attention to
non-contractual considerations, which are not relevant unless forming part of the
contract itself. The better question may be to ask whether, by the terms of the contract,
the person is contracted to work in the business or enterprise of the purported
employer, so as to maintain the correct focus. That is, if the contract does not lead to
the conclusion that the person was working in the business of the asserted employer,
then the person will not be an employee. This approach has some traction in this
case.”37
Consideration
[25] There is no question as to the parties’ intention to create legal relations between each
other. The terms of the Contractor Agreement arising from that intention to create legal relations
are set out wholly in writing, and duly signed by the parties.38 It follows that what the parties
understood themselves, or otherwise believed, about the agreement they signed, or evidence
associated with oral or email exchanges around the terms of the Contractor Agreement in the
lead up to it being signed, is not relevant.
[26] In line with what the High Court has said in Personnel Contracting, the legal rights and
obligations of the parties turn upon (properly construed) what the words of the Contractor
Agreement say or mean, or are reasonably understood to convey. This is as opposed to, for
example, the actual beliefs or intentions of the parties,39 or the actual or practical performance
of the Contractor Agreement,40 or the work undertaken pursuant to same (i.e. even in cases
where the actual or practical performance of the Contractor Agreement, or the work undertaken
pursuant to same, is different to what the Contractor Agreement states). If something is done
contrary to the terms of the Contractor Agreement, that may be a breach of the Contractor
Agreement, but it is not a basis upon which the whole relationship between the parties is to be
classified (or reclassified). There is no suggestion in these proceedings of any collateral contract
being entered into or applying between the parties (i.e. in addition to the Contractor
Agreement).41
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The Sham allegation
[27] The Applicant seeks to have the Contractor Agreement treated as null and void on the
basis that it is a “sham” (within the legal meaning of that term).42 Noting the applicable case
law and related principles identified by the Full Bench of the Commission in Deliveroo
Australia Pty Ltd v Diego Franco43 on the issue of sham contracting, there is no evidence to
support the Applicant’s allegation of a sham. I deal with the Applicant’s sham allegation no
further in this decision.
The mistake / misrepresentation allegations
[28] The Applicant also asserts (or implies) that she was induced to enter into the Contractor
Agreement by mistake or misrepresentation, in relation to what she says are promises,
agreements or understanding between the Respondent and herself that are not contained in the
Contractor Agreement. Again, there is no evidence to support such allegations of mistake or
misrepresentation, let alone evidence that would give rise to me making a finding (or
proceeding on the basis) that the Contractor Agreement (or parts of it) ought to be considered
as void or of no effect (now, or from the beginning). The evidence in this case simply does not
support a finding, or otherwise extend itself into, that sort of legal territory.
The absence of ‘genuine consent’ allegation
[29] As part of, or in addition to her allegations as to mistake or misrepresentation, the
Applicant also objects to the Contractor Agreement on the basis that its lacks ‘genuine consent’
(i.e. the Applicant says that she never really agreed to resign from her employment, the
Contractor Agreement does not reflect (or otherwise represent) what she had sought to be
included in the Contractor Agreement (especially in terms of the rate of pay), there was no time
to negotiate, there was an inequality of bargaining power, and she felt pressured to sign it only
days before commencing work from Canada).44 However, even if there might be cogent
evidence to support this objection, which there is not,45 it is not in dispute that Applicant signed
(and thus consented to) the Contractor Agreement (and all of the terms set out therein) on 29
June 2023.46 To quote Latham CJ of the High Court in Wilton v Farnworth47:
“In the absence of fraud or some other of the special circumstances of the character
mentioned [i.e. duress, misrepresentation, non-disclosure, coercion, undue influence,
lunacy, mistake, or abuse of a confidential relationship], a man cannot escape the
consequences of signing a document by saying, and proving, that he did not understand
it. Unless he was prepared to take the chance of being bound by the terms of the
document, whatever they might be, it was for him to protect himself by abstaining from
signing the document until he understood it and was satisfied with it. Any weakening
of these principles would make chaos of every-day business transactions.”48
The treatment of the Contractor Agreement
[30] There is no evidence before me that falls into the category of “fraud” or “some other
special circumstance” such that the Contractor Agreement ought to be read, applied or enforced
other than according to its own terms. In resolving any and all of the Applicant’s contentions,
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objections and assertions as to the entering into by her of the Contractor Agreement, I find the
Contractor Agreement (for the purposes of these proceedings on the evidence before me) to be
valid and enforceable (in accordance with its own terms), and I apply it as such for the purposes
of this decision.
The non-contractual expectations
[31] The Applicant asserts that the terms of the Contractor Agreement need to take into
account various “non-contractual expectations” in relation to hours of work, and an
understanding that the Applicant would be returning to fulltime employment with the
Respondent upon her return from Canada to Australia.49 In rejecting these assertions, I refer to
clause 10.1 of the Contractor Agreement, and the statement of Gageler J in WorkPac Pty Ltd v
Rossato [2021] HCA 23; (2021) 271 CLR 456, at [117]. I reach the same conclusion (for the
same reasons) in relation to the Applicant’s assertions as to variation/s of the Contractor
Agreement, which encompasses her contention that she possibly still (to this day) remains
‘employed’ by the Respondent.50
The Applicant’s submissions on employee v independent contractor
[32] The Applicant’s contentions surrounding the terms of the Contractor Agreement giving
rise to a relationship of employer and employee, as opposed to that of principal and independent
contractor, are:
a) the Applicant was required to provide the Services solely to the Respondent. As an
aside, the Applicant notes that she did not advertise her services to others;51
b) there is no unilateral right to subcontract the Services under the Contractor
Agreement, with any such right to do so theoretical rather than real;52
c) the Respondent supplied the Applicant with a laptop computer to provide the
Services. This laptop needed to be returned to the Respondent upon the Contractor
Agreement coming to an end;53
d) the Applicant invoiced the Respondent each fortnight for the same amount, and was
paid fortnightly by the Respondent. Such payments were not dependent upon the
completion of any particular task by the Applicant;54
e) the Applicant created no ‘good will’ or saleable assets for herself. Rather, her work
created good will and saleable assets solely for the Respondent’s business;55
f) the Applicant’s work hours in Canada were aligned with Australian work hours,
despite the vastly different (upside down) time zones;56
g) the Applicant was not engaged to work on a specific task, project, or time period;57
and
h) the Applicant continued to receive the benefit of the Respondent’s share option
scheme post resigning from her employment with the Respondent in June 2023. As
[2025] FWC 634
15
I understand it, the Applicant says that receiving the benefit of the Respondent’s
share option scheme post her resignation reflects that she remained an employee of
the Respondent, or was still being treated like she was an employee of the
Respondent (as opposed to an independent contractor).58
[33] Subparagraphs [32](g) and (h) above are not matters (or items) that assist in the
resolution of these proceedings. In this regard:
a) in respect of subparagraph [32](g), an engagement pursuant to a specific task,
project, or time period can be made with an employee or an independent contractor,
as can arrangements as to permanent employment (employee) or on-going service
provision (contractor); and
b) in respect of subparagraph [32](h), the Respondent’s share option scheme does not
require employment to continue to maintain the benefits accrued under it. Its
application to the Applicant post her employment with the Respondent is therefore
not a factor that supports the Applicant’s contentions as to ‘employment’ (on-going
or otherwise) in this case.59
[34] As to subparagraph [32](f) above, and the issue of the Applicant’s work hours in Canada
being aligned with Australian work hours,60 Mr Barry of Counsel, on behalf of the Respondent,
submitted:
“… and while the applicant has said … that her working hours while in Canada were
aligned with Australia and New Zealand, there has been frankly no evidence offered
in support of that, and either way by any requirement, as it were, that was placed on
her by the respondent to in fact do this, other than the submission that there was an
understanding, or even perhaps any evidence of work that may have been done that is
consistent with those times.
By my reckoning if that were correct, factoring in the time difference each day between
Australia and that time zone within Canada, that would mean that the applicant’s work
day would start at 6 pm each day in order to align with 9 am the following day in
Australia, and it would then have to go through to at least 2 am in the morning in
Canada to align with 5 pm in Australia.
There is, in my submission, no evidence that’s been offered in the application that
would be consistent with those work hours, but it is of course the evidence of the
respondent that in any event that was not required, because it is simply not set out in
the agreement.”61
[35] In concurring with the foregoing submissions, I find that the evidence before me simply
does not support the Applicant’s contentions as to her work hours in Canada being aligned (or
being required to be aligned) with Australian work hours.62 More relevantly, however, is that
even if the evidence did support the Applicant’s contentions in this regard, there is no term of
the Contractor Agreement that requires such hours to be worked (i.e. the focus is upon the terms
of the Contractor Agreement, not how things played out practically).
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16
The Respondent’s submissions on employee v independent contractor
[36] In response to the remainder of the Applicant’s contentions (contained at subparagraphs
[32(a) to (e)] above), the Respondent reiterates that the case law confirms that the nature of a
relationship (in a case such as this, with a wholly written contract) is to be determined from (or
found within), the terms of the written contract. By reference to those written terms, the
relationship between the Applicant and the Respondent is most appropriately characterised as
one of independent contractor and principal.63 In this regard, the Respondent refers to the effect
of the following terms of the Contractor Agreement:
a) the Applicant holds full control of how she performs her work or delivers the
Services, with there being no constraints around her doing so;
b) the absence of fixed days of work, and fixed hours or times of work;
c) the payment terms only being activated post receipt of an invoice from the Applicant
(noting that after entering into the Contractor Agreement, the Applicant issued the
Respondent with “tax invoices” for the Services to the Respondent (containing an
ABN (referrable to the Applicant’s name) and a GST component (for subsequent
taxation declaration and/or remittal by the Applicant to the ATO));
d) a recovery of money term, whereby if the Applicant did not or could not supply the
Services to the Respondent, the Respondent had the contractual right to recover
monies from the Applicant;
e) the requirement for the Applicant to maintain her own insurances;
f) the express acknowledgement (or promise) by the Applicant that the Contractor
Agreement would not create an employment relationship;
g) the absence of an express term that prohibits the Applicant from refusing to perform
work (or certain work); and
h) the absence of terms relating to leave, superannuation, and being bound by the
Respondent’s policies and procedures.64
The ‘right to control’ under the terms of the Contractor Agreement
[37] Turning to the right to control the Applicant in relation to her work activities, I accept
that the terms of the Contractor Agreement provide the Applicant with full control over how
she performs her work, and do not stipulate fixed days or hours or times of work. There is no
evidence that:
a) anyone from the Respondent kept track of, or recorded, the hours or times worked
by the Applicant each week/fortnight/month; or
b) the Applicant herself reported (or regularly reported) her work hours or times or
days of work to the Respondent.65
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[38] But again, more important is the fact that there is no obligation under the Contractor
Agreement for the Applicant to perform any particular work hours or work schedule. In other
words, the right to control is not about any control that was actually exercised over the Applicant
by the Respondent, but the Respondent’s right to control the work activities of the Applicant
by reference to (or under the specific terms of) the Contractor Agreement.
[39] The Services that the Applicant provided to the Respondent were undertaken remotely
(from overseas). There is no requirement under the terms of the Contractor Agreement for the
Applicant to attend any particular work meetings or conferences (in person, or online). Whilst
the Services provided under the Contractor Agreement are to be “in accordance with [the
Respondent’s] specifications” (see Clause 1.1(a)), that is ultimately a requirement in relation to
work output or product, as opposed to (for example) a specification as to the manner in which
the Applicant is to perform her work to provide the Services.
[40] The Applicant’s ability to subcontract the Services to be provided pursuant to the
Subcontractor Agreement is not automatic, and constrained (requiring permission or consent
from the Respondent, which can be withheld at the Respondent’s absolute discretion). The
ability to subcontract (or not subcontract) out work or services when characterising a
relationship is significant, but not definitive. Even giving due weight to the absence of a right
to subcontract the Services provided to the Respondent under the terms of the Contractor
Agreement, on the topic of ‘control’, I give more weight to the terms of the Contractor
Agreement that provide the Applicant with full control as to how she performs her work, and
the absence of a right under the Contractor Agreement to stipulate fixed days or hours or times
of work for the Applicant to undertake or deliver the Services to the Respondent.
[41] I find that the terms of the Contractor Agreement on the issue of a ‘right to control’
weigh and point towards (and are consistent with) the existence of an independent contractor
and principal relationship, as opposed to an employee and employer relationship.
Own business v Respondent’s business
[42] On the issue of whether the Applicant can be seen to be working in her own business,
as distinct from working in the Respondent’s business,66 I note the following:
a) the remuneration and taxation arrangements under the Contractor Agreement are
core terms that applied from its inception, and were foundational to its formation
(see definition of “Payment Terms” (Schedule page) and Clause 3 “Price and
Payment” of the Contractor Agreement).67 The Applicant’s post-contractual conduct
in issuing invoices for payment in respect of “project and product management
consultancy” services is wholly consistent with these terms.68 The Contractor
Agreement makes no provision for leave, requires the Applicant to provide for her
own insurances, and provides that the Respondent is not liable for expenses incurred
by the Applicant in supplying the Services (unless agreed prior);69
b) the Contractor Agreement uses the term “personnel” in clauses 2.1, 4.1(a), 5.5,
6.1(c), 7.1, 7.2, 9.4(b), 10.9, and 11 (definitions of “New Materials” and “Your
Materials”). It defines the term “personnel” as meaning “in respect of a Party, any
[2025] FWC 634
18
of its employees, consultants, suppliers, subcontractors or agents, but in respect of
you, does not include us.” I take the use of this term in the Contractor Agreement to
mean that whilst the Applicant could not subcontract the Services (without express
approval by the Respondent), there was no prohibition upon her engaging persons
to assist her in the delivery of the Services (as personnel) under the Contractor
Agreement (‘subcontractors’ being separately identified to ‘employees’ under this
definition). Again, the focus is upon what the Contractor Agreement allows or
enables (directly or indirectly), not what actually occurred, or the practicalities of
actually doing what the Contractor Agreement provides for; and
c) the Applicant’s ownership of work outputs or intellectual property under the terms
of the Contractor Agreement are limited (or non-existent) by reference to the
definition of “Your Materials”, which excludes materials falling within the
agreement definitions of “New Materials” (created during the term of the Contractor
Agreement) and “Our [Respondent’s] Materials”. The Contractor Agreement thus
confines (or simply preserves) the Applicant’s ownership of materials to only those
created or owned by her - prior to the commencement of the Contractor
Agreement.70
[43] In Personnel Contracting, Justice Gordon relevantly stated:
“The better question to ask is whether, by construction of the terms of the contract, the
person is contracted to work in the business or enterprise of the purported employer.
That question is focused on the contract, the nature of the relationship disclosed by the
contract and, in this context, whether the contract discloses that the person is working
in the business of the purported employer. It invites no inquiry into subsequent
conduct. A consequence of a negative answer to that alternative question may be that
the person is not an employee. Another consequence may be, but does not have to be,
that they have their own business. As five judges of this Court said in Hollis v Vabu
Pty Ltd, both employees and contractors can work “for the benefit of” their employers
and principals respectively, and so that, “by itself”, cannot be a sufficient indication
that a person is an employee (emphasis added). …”71
[44] In my view, the fact that the Applicant does not get to keep or otherwise retain
ownership of the products or intellectual property that was created during or as part of her work
delivering the Services to the Respondent is unextraordinary. Such terms are commonplace in
employment relationships (including via implication in fact or law), but there is no evidence
that such terms are common or uncommon in independent contractor and principal
relationships. Again, unless the law provides otherwise, parties are free to contract (and agree)
as they consider appropriate. The fact that the parties in this case have entered into a contractual
term that benefits the Respondent by giving it ownership and control over work outputs and
intellectual property is not something (in the facts of this case) that points towards the existence
of an employee and employer, as opposed to an independent contractor and principal,
relationship. Nor do I find that it is a factor (in and of itself) in this case that weighs towards
(on a totality basis) the Applicant working in the business of the Respondent. This is not a case
where (on the evidence) the Services provided by the Applicant to the Respondent create some
form of stand-alone result or product (intellectually or physically).
[2025] FWC 634
19
[45] I equally do not consider that the fact that the Respondent supplied the Applicant with
a laptop computer during the engagement period, which she returned (at her own expense) to
the Respondent (per Clause 9.4 of the Contractor Agreement) at the end of the engagement
period, is a factor (in and of itself) in this case that weighs towards (on a totality basis) the
Applicant working in the business of the Respondent, or the existence of an employee and
employer relationship.
[46] Clauses 1 and 2 of the Contractor Agreement enable the Respondent to recover any
monies paid for Services that are not, have not, or cannot be, provided by the Applicant. I find
that this term weighs against any finding that the Applicant was working in the Respondent’s
business. It is not a term that could be included in an employment contract.
[47] Payment by regular fortnightly invoices pursuant to the terms of the Contractor
Agreement, as opposed to the regular payment of wages, weighs in favour of a finding as to the
Applicant working in her own business, and the existence of an independent contractor and
principal relationship (as opposed to an employee and employer relationship). Again, the
remuneration arrangements under the Contractor Agreement are core terms that applied from
its inception, and were foundational to its formation.72 This finding (pointing to the Applicant
working in her own business, and in favour of the existence of an independent contractor and
principal relationship) is also supported by the terms of the Contractor Agreement requiring the
Applicant to be responsible for her own insurances, and the absence of terms in the Contractor
Agreement as to leave (of any form).
[48] The terms of the Contractor Agreement dealing with restraint of trade (clause 4) and
confidential information (clause 6) are terms that can be agreed to in both an independent
contractor and principal relationship, or an employee and employer relationship.73 I treat them
as neutral in relation to any finding as to the Applicant working in the Respondent’s business.
[49] In the facts of this case, and on the basis of my findings at paragraphs [7] to [16], and
[42] to [48], of this decision, I conclude that the terms of the Contractor Agreement (in totality)
point in favour of the Applicant working in her own business, as distinct from working in the
Respondent’s business.
Other matters
[50] The Applicant has asserted that her lack of evidence in this case arises from her inability
to access relevant documents or records in the possession of the Respondent.74 It is noted that
the Commission has the power to make orders compelling production of documents or
categories of documents.75 The Applicant has made no application for such orders to be made.
[51] The Applicant also asserts that it is in the ‘public interest’ for the multifactorial test to
be applied in these proceedings (i.e. notwithstanding the decision of the High Court in
Personnel Contracting rejecting the use of the multifactorial test). She says that there is
precedent for this in decisions of this Commission in Aspire 2 Life Pty Ltd v Ms Jessica
Tidmarsh [2024] FWCFB 289 (Tidmarsh) and Mukherjee v Sanden Care Options Pty Ltd
[2024] FWC 588 (Mukherjee).76 Having reviewed each of the decisions in Tidmarsh and
Mukherjee, neither refer to, let alone apply, a multi-factorial test (based upon the public interest,
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb289.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc588.pdf
[2025] FWC 634
20
or otherwise). Further, the outcomes in both of those cases turn upon their own particular facts
and evidence. They are not ‘precedents’ (or analogous) for the purposes of these proceedings.
[52] One of the broad contentions that the Applicant makes in these proceedings is essentially
that contractual terms and tax arrangements aside, she was essentially doing the same job in
Canada that she did in Australia, but being classified and paid as an independent contractor and
not an employee. But the actual written terms of the Applicant’s (former) employment
contract77 stand in stark contradistinction to the terms of the Contractor Agreement, and the
Applicant has failed to bring evidence to support her broad contention.
[53] In some decisions post Personnel Contracting, decision-makers appear keen to
emphasize that ‘labels’ (or the manner in which parties have chosen to characterise their
relationship or parts of their relationship) are not relevant. I reject such a blanket approach. It
is not consistent with Personnel Contracting.78
[54] Labels may not be determinative, but they can be relevant. They ought not be ignored,
or simply said to be neither here nor there. They form part of the factual matrix to be considered
(i.e. just as one might consider the job title (or label) that parties have used to identify an
employee’s role).
[55] The facts are that the Applicant signed the Contractor Agreement, and issued tax
invoices to the Respondent for work she performed providing the Services (using the descriptor
of “project and product management consultancy” services). This does not change the nature
and content of the parties’ relevant rights and obligations under the Contractor Agreement, but
it does awkwardly rub up against the Applicant’s assertions in her evidence that there was some
sort of understanding at some level, by not only herself, but the Respondent, that she was an
employee of the Respondent whilst in Canada.79 To the extent that there might be any
suggestion on the Applicant’s case that there was some form of common understanding at the
time that the Contractor Agreement was entered into, or that the Applicant’s relationship with
Respondent whilst working in Canada was one of employment, the terms of the Contractor
Agreement and the evidence in these proceedings say otherwise.
Conclusion and disposition
[56] In the ultimate sense, on the basis of the evidence that is before me, and considering the
submissions of the parties, I find that the nature of the relationship between the parties (or its
totality), as disclosed by the terms of the Contractor Agreement, is that of an independent
contractor and principal relationship, not an employer and employee relationship.
[57] The question of whether the Applicant was engaged by the Respondent “as a national
system employee” for the purposes of the Act (including Part 3-2) during the period of the
Contractor Agreement is to be answered “No”.
[58] The Commission has no jurisdiction to hear or otherwise determine whether or not the
Applicant was unfairly dismissed by the Respondent. Her application for an unfair dismissal
remedy is dismissed, and an order to this effect [PR784927] will be issued contemporaneously
with this decision.
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr784927.pdf
[2025] FWC 634
21
DEPUTY PRESIDENT
Appearances:
Ms Adriana Music (Applicant) appeared for herself.
Mr Patrick Barry of Counsel, and Mr James True, Practice Group Leader, Legal Vision
lawyers, appeared with permission for Sharesight Pty Ltd (Respondent).
Printed by authority of the Commonwealth Government Printer
PR784899
1 See ss.13 and 380 of the Fair Work Act 2009 (Act).
2 Note factual findings set out in paragraphs [13] and [16] of this decision.
3 See Chamber’s Email dated 14 October 2024, sent 12:39pm. Transcript, PN3. See also Digital Hearing Book
or Court Book (CB), pp.61-62, and 92.
4 Morris Statement, at [2]-[12]. CB, pp.63-64.
5 Transcript, PN84.
6 Transcript, PN125-PN126.
7 Ibid, PN130.
8 CB, pp.39-44 and 81-86. Signed by the Applicant on 29 June 2023.
9 CB, p.41.
10 Ibid.
11 Ibid.
12 Ibid.
13 Ibid.
14 Ibid.
15 Ibid.
16 Ibid, pp.41-42.
17 Ibid, p.43.
18 Ibid.
19 Ibid.
20 CB, pp.53-54. Applicant’s Statement, at [9]-[16]. CB, pp.20-21.
21 [2022] HCA 1; (2022) 398 ALR 404.
22 Secretary, Attorney-General's Department v O'Dwyer [2022] FCA 1183, per Goodman J, at [29]; in EFEX
Group Pty Ltd v Bennett [2024] FCAFC 35; (2024) 330 IR 171, at [7] and [52]; Rizk v Basseal [2024] FCA 647,
at [31]. See also Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd
[2022] HCA 1; (2022) 398 ALR 404, at [177], [183], [188], citing Phillips v Ellinson Brothers Pty Ltd (1941) 65
CLR 221, at 243-244, Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93, at
112-113; Australian Mutual Provident Society v Chaplin (1978) 52 ALJR 407 at 411; 18 ALR 385, at 392-393.
The Full Bench of the Australian Industrial Relations Commission decision in Department of Justice v Lunn (2006)
THE WORK COMMISSION
[2025] FWC 634
22
158 IR 410 (at [29]-[30]) nicely sets out a summation of the relevant law as it concerns the objective theory of
contract in the context of contracts ‘asserted’ (by one party) to contain oral terms beyond the written terms.
23 Citing Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597, at 600; and Australian Mutual
Provident Society v Chaplin (1978) 52 ALJR 407, at 409-410. The exception being where subsequent conduct
can be shown to vary the terms of a contract: [2022] HCA 1; (2022) 398 ALR 404, at [46], citing Connelly v Wells
(1994) 55 IR 73, at 74.
24 See also ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, at [95]. Also note the decision of the Full
Federal Court of Australia in EFEX Group Pty Ltd v Bennett [2024] FCAFC 35; (2024) 330 IR 171.
25 In contrast to the Applicant’s Reply Submissions, at [1], [3], [7], [9]-[10], and [13], CB, pp.93-96. Construction,
Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR
404, at [185]-[190].
26 See, for example, Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21.
27 Rizk v Basseal [2024] FCA 647, at [32]-[33]. Construction, Forestry, Maritime, Mining and Energy Union v
Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404, at [185]-[190].
28 Ibid. See also JMC Pty Ltd v Federal Commissioner of Taxation [2023] FCAFC 76; (2023) 297 FCR 600, at
[8]-[23].
29 [2022] FCAFC 165.
30 Ibid, at [31]. See also at [40].
31 Ibid, at [60].
32 Ibid, at [59] and [88].
33 EFEX Group Pty Ltd v Bennett [2024] FCAFC 35; (2024) 330 IR 171, at [10] (citing Construction, Forestry,
Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404, at
[59] per Kiefel CJ, Keane and Edelman JJ; see also at [185]–[189] per Gordon J (Steward J agreeing)).
34 [2022] HCA 1; (2022) 398 ALR 404, at [58] and [176] (citing Equuscorp Pty Ltd v Glengallan Investments Pty
Ltd (2004) 218 CLR 471, at 483-484, [34]-[35]). See also Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219
CLR 165, at 178, [38]; and Murphy v Chapple [2022] FCAFC 165, at [54]-[55].
35 As cited and referred to by Gordon J in Construction, Forestry, Maritime, Mining and Energy Union v Personnel
Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404, at [176] (footnote [291]).
36 [2024] FCAFC 35; (2024) 330 IR 171.
37 Ibid, at [6], and [10]-[14]. See also JMC Pty Ltd v Federal Commissioner of Taxation [2023] FCAFC 76; (2023)
297 FCR 600, at [8]-[23].
38 CB pp.82-86. See especially clause 10.1 (CB p.85).
39 Applicant’s Submissions, at [3] and [12], CB, pp.18-19.
40 Applicant’s Statement, at [8], CB, p.20. Applicant’s Submissions, at [12], CB, p.19.
41 Such a collateral contract would need to satisfy the requirements of clause 10.1 of the Contractor Agreement in
any event. See Department of Justice v Lunn (2006) 158 IR 410, at [29]-[30] (citing Gleeson CJ, McHugh, Kirby,
Hayne and Callinan JJ in Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471).
42 Applicant’s Reply Submissions, at [2], CB, p.94. Transcript, PN35-PN46. See also Transcript, at PN97-PN99.
43 [2022] FWCFB 156, at [55]. Transcript, PN35-PN48.
44 Applicant’s Submissions, at [10], CB, p.19. Applicant’s Statement, at [7], CB, p.20. Applicant’s Reply
Submissions, at [7]-[8], CB, pp.94-95. CB, p.101. See also, for example, communications around initial salary
and salary review at CB, p.46-47. The Applicant says that she “did not genuinely consent to the terms of the
contractor agreement; [she] was pressured to agree as there was no time left to negotiate the terms nor renumeration
before continuing work in Canada.” Transcript, PN212-PN229.
45 See CB, pp.34-39.
46 CB, pp.39 and 40. See also, CB, pp.77-86.
47 (1948) 76 CLR 646.
48 Ibid, at 649. Endorsed in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, at [38]-[47].
49 Applicant’s Submissions, at [3] and [12], CB, pp.18 and 19. Transcript, PN68-PN71.
50 Applicant’s Reply Submissions, at [4] (public holiday variation) and [13] (still employed due to non-payment
of notice), CB, pp.94 and 95.
51 Transcript, PN67.
52 Applicant’s Reply Submissions, at [11]-[12], CB, p.95. Transcript, PN50-PN52. See also Applicant’s
Submissions, at [6], CB, p.18.
53 Applicant’s Submissions, at [5], CB, p.18. Transcript, PN208.
54 Applicant’s Submissions, at [7], CB, p.18.
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb156.htm
[2025] FWC 634
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55 Ibid, at [8], CB, p.18.
56 Ibid, at [9], CB, p.18.
57 Transcript, PN49.
58 Ibid, PN53 and PN206.
59 Exhibit R1 (Rule 2.1 - Definition of “Eligible Employee”); See also Transcript, PN131, and PN136-PN147.
60 See paragraph [32(f)] of this decision.
61 Transcript, PN172-PN174.
62 There are no contemporaneous documents in evidence to support the Applicant’s contentions as to her work
hours with the Respondent whilst in Canada.
63 CB, pp.55-60. Transcript, PN154.
64 Summarised from Transcript, PN154-PN188. See also Respondent’s Submissions, at [18]-[19], CB, pp.58-59.
65 Despite the assertions in her submissions as to the hours and shift times she worked in Canada, the Applicant
did not produce any evidence in support of such assertions or cross-examine the Respondent’s witness (Mr Morris)
on the topic.
66 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1;
(2022) 398 ALR 404, at [183].
67 CB, pp.40-41. See also CB, pp.34-39, and 77-90.
68 For example, see CB, p.88.
69 On the issue of the absence of superannuation payments, SGC payments (under legislation) can arise for payment
by an employer or principal (via deeming or definitional provisions) in both an employer and employee
relationship, and in an independent contractor and principle arrangement.
70 See Contractor Agreement, at Clause 11 “Definitions” and clause 5 “Intellectual Property”. CB, pp.44 and 42
respectively. In my view, “Your Materials” would not include ownership by the Applicant of work outputs or
intellectual property arising during the course, or as part, of the Applicant’s previous employment with the
Respondent (Clause 5.6 of the Contractor Agreement).
71 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1;
(2022) 398 ALR 404, at [183].
72 CB, pp.34-39, and 77-90.
73 Isaac v Dargan Financial Pty Ltd [2018] NSWCA 163; (2018) 98 NSWLR 343.
74 Transcript, PN192.
75 Section 590(2)(c) of the Act, and https://www.fwc.gov.au/documents/forms/form_f52.pdf
76 CB, p.93. See also Transcript, PN199.
77 CB, pp.22-33.
78 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1;
(2022) 398 ALR 404, at [66] and [184].
79 Applicant’s Reply Submissions, CB, pp.93-96.
https://www.fwc.gov.au/documents/forms/form_f52.pdf
