| [2020] FWC 3122 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Georgette Leffanue
v
Southern Cross Community Healthcare Pty Ltd T/A Southern Cross Community Healthcare
(U2020/187)
DEPUTY PRESIDENT ASBURY |
BRISBANE, 16 SEPTEMBER 2020 |
Application for an unfair dismissal remedy – Applicant was not an employee – Finding that Applicant was engaged as an independent contractor – Application dismissed.
BACKGROUND
[1] Ms Georgette Leffanue (the Applicant) applies to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent, Southern Cross Community Healthcare Pty Ltd T/A Southern Cross Community Healthcare, is a community healthcare organisation that provides community-based disability and aged care services to Participants in their private residences. The Applicant was engaged by the Respondent as a Support Worker and provided support services to three high needs Participants with disabilities residing in a shared support living arrangement in Brisbane (House A), from 11 June 2015 until 6 January 2020, when a family member requested that the Applicant cease providing services to one of those Participants.
[2] As a result, on 6 January 2020, the Applicant was advised her services were no longer required at the house and was offered work at an alternative house a short distance away. The Applicant refused this offer on the basis that she is the sole carer for two young children and maintained that she would have been required to work night shifts at the alternative house and could not do so. The Applicant also alleged that the Respondent knew that she was unavailable to work any night shifts because of her childcare responsibilities and that a change of location would force her to resign.
[3] The Applicant asserts that the Respondent terminated her employment by repudiating her contract or alternatively, that the Respondent forced her to resign. The Respondent objects to the application on the basis that the Applicant was engaged as an independent contractor and not as an employee, and as such, was not a person protected from unfair dismissal. The Respondent also contends that, in the alternative, the Applicant was not dismissed.
[4] The matter was not resolved by conciliation and was allocated to me to determine. After considering the views of the parties, I determined to conduct a hearing in relation to whether the Applicant was a person protected from unfair dismissal on the basis that she was an employee rather than an independent contractor. Directions were issued requiring the parties to file outlines of submissions and statements of evidence in relation to this question. In addition to the material it was directed to file, the Respondent filed material which also addressed its alternative objection that the Applicant was not dismissed. For reasons which will become apparent, it is not necessary for me to address the alternative objection.
[5] The matter was listed for hearing by telephone on 20 May 2020. At the hearing, the Applicant was represented by a paid agent, Mr Pinchen of A Whole New Approach, and the Respondent was represented by Ms Hammond of Counsel who was instructed by Colin Biggers & Paisley. Neither party objected to the other being represented and I determined to grant permission for both parties to be represented pursuant to s.596 of the Act, on the basis that the matter involves a jurisdictional objection of some complexity which would be more efficiently dealt with if the parties were represented and no issues of fairness arose.
[6] On 21 August 2020 I issued an Order 1 dismissing the Applicant’s unfair dismissal application on the basis that I found that the Applicant was engaged as an independent contractor rather than an employee and that she was not a person protected from unfair dismissal. My reasons for reaching this Decision are as follows.
LEGISLATION
[7] Section 396 of the Act provides that certain matters must be considered before dealing with the merits:
“Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[8] Section 382 provides a person is protected from unfair dismissal in the following circumstances:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[9] Section 13 of the Act defines “employee” as follows:
“Meaning of national system employee
A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.
Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.”
APPROACH TO DETERMINING WHETHER A PERSON IS AN EMPLOYEE
[10] The approach to distinguishing between employees and independent contractors was comprehensively summarised in the Decision of a Full Bench of the Commission in Jian Shen Cai trading as French Accent v Michael Anthony Do Rozario 2 as follows:
“[30] The general law approach to distinguishing between employees and independent contractors may be summarised as follows:
(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.
(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.
(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.
(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the particular context. For ease of reference the following is a list of indicia identified in the authorities:
• Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like.
Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of an independent contract. While control of this sort is a significant factor it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee.
“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.” “[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.”
• Whether the worker performs work for others (or has a genuine and practical entitlement to do so).
The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, working for others (or the genuine and practical entitlement to do so) suggests an independent contract.
• Whether the worker has a separate place of work and or advertises his or her services to the world at large.
• Whether the worker provides and maintains significant tools or equipment.
Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.
• Whether the work can be delegated or subcontracted.
If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.
• Whether the putative employer has the right to suspend or dismiss the person engaged.
• Whether the putative employer presents the worker to the world at large as an emanation of the business.
Typically, this will arise because the worker is required to wear the livery of the putative employer.
• Whether income tax is deducted from remuneration paid to the worker.
• Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.
Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.
• Whether the worker is provided with paid holidays or sick leave.
• Whether the work involves a profession, trade or distinct calling on the part of the person engaged.
Such persons tend to be engaged as independent contractors rather than as employees.
• Whether the worker creates goodwill or saleable assets in the course of his or her work.
• Whether the worker spends a significant portion of his remuneration on business expenses.
It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.
(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other.
(6) If the result is still uncertain then the determination should be guided by “matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” including the “notions” referred to in paragraphs [41] and [42] of Hollis v Vabu.”3 (citations omitted)
[11] The passages from Hollis v Vabu4 cited in French Accent deal with vicarious liability of employers in circumstances where an employee’s conduct is closely tied to a risk that the employer’s enterprise has placed in the community and where the activities of the employee are characteristic of the employer’s activities.5 The majority of the High Court in Hollis v Vabu illustrated the import of its approach to the characterisation of independent contractors as follows:
“[47] In classifying the bicycle couriers as independent contractors, the Court of Appeal fell into error in making too much of the circumstances that the bicycle couriers owned their own bicycles, bore the expenses of running them and supplied many of their own accessories. Viewed as a practical matter, the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations. A different conclusion might, for example, be appropriate where the investment in capital equipment was more significant, and greater skill and training were required to operate it. The case does not deal with situations of that character. The concern here is with the bicycle couriers engaged on Vabu's business. A consideration of the nature of their engagement, as evidenced by the documents to which reference has been made and by the work practices imposed by Vabu, indicates that they were employees.”6
[12] The majority went on to observe that on the facts in Hollis v Vabu: “The notion that the couriers somehow were running their own enterprise is intuitively unsound, and denied by the facts disclosed in the record”. That passage illustrates the importance of considering the totality of the relationship having regard to various indicia that might shed light on its true nature.7 The Full Bench in French Accent also stated that:
“[24] The benefits and protections enjoyed by employees may be seen as reflecting a social consensus, expressed in legislation, that workers who are properly characterised as employees should have the benefits and protections of superannuation, workers’ compensation insurance, sick leave, annual leave and award entitlements (and it is not to the point that other protections, for example unfair dismissal protection, have been more contentious in recent years).
[25] The FW Act imposes obligations on employers in relation to their “employees” and confers benefits and rights on “employees” without defining when a worker is an employee as distinct from an independent contractor. The definition of “employee” leaves it to the general law to supply that distinction. The nature of the established general law approach to distinguishing between employees and independent contractors may be seen as contributing to the problem precisely because the nature of the general law test is such that it does not admit a clear answer in every case. Once one adopts the position, as the general law has done, that the distinction is rooted in the objective character of the work relationship two things follow. First, the infinite variety of human affairs means that work relationships present as a spectrum, some of which are clearly relationships of employment and others of which are clearly relationships of independent contract but some of which are less clear cut. Secondly, that character of a work relationship is what it is and cannot be changed simply because the parties agree to label it differently (unless, of course, the relationship is sufficiently ambiguous that a clear determination is not possible, the situation addressed by the Massey Proposition). That is a matter clearly recognised by the courts and tribunals.
[26] Moreover, the nature of the ultimate question is such that in any given case that is not clear cut, reasonable judicial minds may differ as to the correct answer in any given case. This was explicitly recognised in Roy Morgan. This necessarily means that there is an area of uncertainty for businesses that wish to engage only on the basis of independent contract and not on the basis of employment.”
[13] In the earlier Decision in Abdallah v Viewdaze Pty Ltd8 a Full Bench of the Commission found that the starting point for determining whether a relationship is one of employment or independent contract, is an analysis of its totality9 including the nature of the work performed, the manner in which it is performed10 and the terms and terminology of the contract11. While it is necessary to consider what have variously been referred to as principles, criteria, tests or indicia of the relationship in question, not all indicia will be relevant, and it is necessary to weigh or balance them, with some to be given more weight than others based on the nature of the work and the manner in which it is to be performed. The Full Bench in Abdallah also said that the list is not exhaustive and that features of a relationship that do not appear in the list may be relevant to the determination of the ultimate question.
[14] If, after weighing these indicia, the result is still uncertain, the Full Bench was of the view that the determination should be guided by the notions referred to in the judgment of the majority in Hollis v Vabu 12 including the statement that the distinction between an employer and an independent contractor “is rooted fundamentally” in the difference between a person who serves his or her employer in the employer’s business with little or no independence in the conduct of operations as distinct from a person who carries on his or her own trade or business.13
[15] However, even this distinction can be problematic as can be seen from the individual judgements of the members of the Full Court of the Federal Court in Jamsek v ZG Operations Australia Pty Ltd 14. In relation to this distinction, Perram J said:
“The Court is required to consider the totality of the relationship between the parties: Stevens at 29 per Mason J; applied in Hollis at 24 at [44] per Gleeson CJ, Gaurdron, Gummow, Kirby and Hayne JJ. As Mummery J observed in Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944 the object of this exercise is to paint a picture from the accumulation of detail and thereby to obtain an informed consideration of the qualitative nature of the whole. Having done so, it is often said that the difference between an employee and an independent contractor is ‘rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own’: Marshall v Whittaker’s Building Supply Co [1963] HCA 26; 109 CLR 210 (‘Marshall’) at 217 per Windeyer J. This might be thought to suggest that there is a natural dichotomy between, on the one hand, being employed and, on the other, conducting one’s own business. On this view, an affirmative answer to the latter inquiry would imply a negative answer to the former. The logic of this would suggest that one could substitute the question of whether a person was an employee with the question of whether the person was conducting their own business.
There are, it turns out, two difficulties with this thinking. First, it pays insufficient attention to the word ‘serves’ in Marshall. The dichotomy Windeyer J identified was not between those who work in someone else’s business and those who conduct their own business; it was between those who serve in the employ of another and those who conduct their own business. Secondly, as has been pointed out, working in the business of another is not necessarily inconsistent with working in a business of one’s own: ACE Insurance Limited v Trifunovski [2013] FCAFC 3; 209 FCR 146 (‘ACE Insurance’) at 182 [128] per Buchanan J. The facts of Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118 (‘Dental Corporation’), delivered contemporaneously with the decision in this appeal, illustrate that. Thus an affirmative answer to the question of whether one is working in one’s own business does not necessarily entail that one is not working in another’s business or that one cannot be an employee. It all depends on the facts. ACE Insurance was a case where insurance sales agents were working in their own businesses and in the business of ACE Insurance and were employees. Dental Corporation is a case where Dr Moffet was working in his own business and in Dental Corporation’s business and was not an employee.
For that reason, alighting upon the question of whether someone is working in their own business may have a tendency to cause confusion in an area which is already replete with traps for the unwary. This Court has, therefore, affirmed that the question which is to be asked and answered is whether the person is an employee and not whether the person is conducting their own business: Tattsbet Limited v Morrow [2015] FCAFC 62; 233 FCR 46 at 61 [61] per Jessup J (Allsop CJ and White J agreeing). No doubt understanding whose business is being conducted is a valuable aid to comprehension but it is not the central inquiry and an answer to it, one way or the other, is not necessarily decisive.”
[16] Wigney J dealt with the reality of the relationship in Jamsek as follows:
“The facts show that the reality of the relationship was that, for over 30 years, Mr Jamsek and Mr Whitby were continuously employed driving delivery trucks exclusively for the respondents’ business for effectively nine hours a day, five days a week, on conditions and at pay rates set by the business.
It is true that, in 1986, faced with the choice between redundancy and accepting a change to the nature of the relationship dictated by the business, the two men chose the latter course. That involved them buying the trucks previously owned by the business at values determined by the business and signing a contract which described them as “contractors”. Yet the reality was that, aside from the fact that the men took over the risk and expense of owning and operating the delivery trucks, little else changed. The men certainly had no real independence. While they continued to have some flexibility in the way they carried out their work, they had no real or effective control in respect of the key aspects of the work relationship. The business effectively continued to dictate the hours during which the men were to be available for work, what they were to do, the remuneration that they were to receive, the annual leave that they could take, the paperwork they had to complete and other key rights and obligations.
It may have been strictly correct to say, as the primary judge did, that after 1986 the men “in principle” could have used their trucks to “serve others”. Yet that was no more than a chimera. There was no real scope for them to do so given that they were required to be at the disposal of the business for nine hours a day, five days a week, and their trucks were, for the most part, adorned with the business’s livery. When and for whom and in what circumstances could they realistically have done deliveries for others? Of course, the evidence showed that they never could and they never did.
The notion that the men could have sold their “businesses” if they wanted to and that such sales “may have included goodwill” was equally illusory and fanciful. There was in reality no scope for them to generate their own goodwill. They had no customers of their own and had always driven their trucks in circumstances which required them, for all intents and purposes, to appear to be representatives of the business. Their trucks and shirts bore the names and logo of the business, not some other business name or logo.
To my mind, the primary judge concluded as he did by giving primacy and excessive weight to contractual labels and theoretical possibilities and insufficient weight to the reality and totality of the working relationship between the parties, as demonstrated by the way they actually conducted themselves over many years. The evidence of the totality of the relationship compelled the conclusion that Mr Jamsek and Mr Whitby were employees of the business at all relevant times. The primary judge erred in concluding otherwise.
[17] Anderson J in Jamsek said that there is no single standard for whether an employment relationship exists and it is necessary to consider and synthesise all relevant indicia, although this is not a mechanical exercise involving running through items on a checklist. Anderson J also agreed with Perram J that the appropriate question is not whether the person is conducting their own business; the question is whether the person is an employee. Anderson J also emphasised that where a court is required to characterise a relationship as that of employment or not, the court should focus on the substance and reality of the relationship, rather than its mere legal form and said that by labelling their relationship an independent contract, the parties cannot alter what is in reality an employment contract.
[18] From these cases, the following principles can be distilled and have been applied in the present case:
1. The traditional framing of a distinction between a person employed under a contract of service, who serves the employer’s business, and a person engaged under a contract for service who conducts his or her own business, may not always be apposite.
2. Where rights and obligations pursuant to an employment relationship are in issue, the fundamental question may be more appropriately framed as whether the person seeking to establish such rights is an employee, rather than whether the person is conducting a trade or business on his or her own.
3. The characterisation of a relationship should focus on substance rather than form and although form is relevant to that characterisation, it is not determinative – the parties cannot create something that has every feature of a rooster and call it a duck 15.
4. Even in the absence of sham or pretence, the parties’ characterisation of their relationship may not be given effect according to its terms, because that characterisation contradicts the nature of the relationship.
5. The nature of the work and the manner in which it is performed must always be considered.
6. The indicia established in Stevens v Brodribb Sawmilling Co Pty Ltd should be considered for the purpose of painting a picture of the relationship from an accumulation of detail, rather than as a formulaic or mathematical exercise, in summary:
• Control or the right to control the manner in which work is performed;
• Whether the worker performs work for others or has a right to do so;
• Whether the worker has a separate place of work and advertises services at large;
• Whether the worker provides and maintains significant tools or equipment;
• Whether the work can be delegated or subcontracted;
• Whether the putative employer has the right to suspend or dismiss the person engaged;
• Whether the putative employer presents the person as an emanation of its business;
• Whether income tax is deducted from remuneration paid to the worker;
• The manner of remuneration whether periodic or based on completion of tasks;
• The provision of paid holidays or sick leave;
• Whether the work involves a profession, trade or distinct calling;
• Whether the worker creates good will or saleable assets in the course of work; and
• Whether the worker spends a significant portion of remuneration on business expenses.
7. Notwithstanding that there is no formula for applying the indicia established in the cases, where a consideration points one way and yields a clear result, the determination of the nature of the relationship should be in accordance with that result.
EVIDENCE
[19] Ms Dubos’ evidence is that the Respondent is a community healthcare provider of short term and long term community based services to individuals in their private residences (referred to as Participants) for and on behalf of State and Federal Government agencies (referred to as funders). Participants to whom services are provided, include individuals with a disability, the aged and those requiring palliative care. Southern Cross employs approximately 60 management and administrative staff to manage and administer the delivery of community based services which are delivered through approximately 1,000 care providers (Support Workers) who are engaged by Southern Cross as independent contractors.
[20] Ms Dubos said that Southern Cross, via its service delivery team, advertises in order to locate Support Workers to provide services that discharge the obligations of the funders to provide care. Ms Dubos tendered a copy of an advertisement for Support Workers for House A, where the Applicant worked. The advertisement does not stipulate the basis of the engagement of Support Workers either as employees or independent contractors.
[21] Ms Dubos said that prior to providing services to participants, a Support Worker must sign a Contractors Acknowledgement Form acknowledging that they are self-employed; that the Respondent may, but is not obligated to refer care services to them; that they may nominate when they will provide care services; and they authorise Southern Cross to collect fees that they are entitled to for the provision of care services from funders.
[22] Ms Dubos tendered a document entitled “Contractors Acknowledgment and Authority” bearing an Esign ID and Esigned Date of 8 June 2015, in the following terms:
“I, Georgette Leffanue
of [address redacted]
acknowledge that:
1. I am self-employed
2. Southern Cross Community Healthcare Pty Ltd (hereafter referred to as "The Service"), may refer me clients to perform services for which I am qualified. The Service is not obliged to so refer me, and will only do so as and when such services are required.
3. Upon any such referral I remain self-employed, and The Service will not be liable to me for any of the usual incidents of employer/employee relationships such as sick pay, annual holiday leave pay.
4. Under this agreement I may nominate my hours for provision of services and reserve the right to accept or reject referrals according to my own convenience, including rejection following initial acceptance.
5. Should I proceed to provide services to a referred client, then I authorise The Service to obtain from the client such money and other emoluments to which 1 am contractually entitled, and to account to me for it.
6. I indemnify The Service against liability for loss or damage alleged or incurred by any client or The Service or other party (or myself) arising out of my referral and provision of care or other services which 1 hold myself out to be qualified to perform.
7. I have read The Service's Information Manual, understand them and acknowledge the desirability of compliance with them for the benefit of referred clients and in accordance with the professional nursing standards set by the State's nurses' associations.”
[23] Ms Dubos also tendered an Information Manual that she stated is provided to all Support Workers and which was provided to the Applicant. The Manual sets out information about the rights and responsibilities of Participants including that they can select Support Workers who provide support and make impromptu changes. Support Workers also have rights and responsibilities including contacting Southern Cross if they are unable to attend an agreed shift or visit a participant; advising of risks and hazards; advising if they sustain a workplace injury; not leaving a Participant receiving 24 hour care until a replacement has arrived; and not sleeping on night duty. The manual also provides for a Code of Conduct directed to maintaining the confidentiality of Participants. Further, the Manual contains administrative information in relation to the self-employed status of Support Workers including;
• Support Workers are covered for Workers’ Compensation, Professional Indemnity and Public Liability insurance; and
• Notwithstanding contractor status of Support Workers Southern Cross will deduct PAYG payments to relieve Support Workers from the burden of making quarterly PAYG instalments to the ATO.
[24] In relation to hours of work, the Manual includes the following:
“Roster Management
Roster Cycle
Each roster consists of a fortnightly period - 14 days, commencing on a Friday 0000 hours and finishing on a Thursday 2400 hours.
Roster Confirmation
You will be offered (online via the Mylnfo portal) a list of services each fortnight to negotiate and confirm your next roster of services to be delivered (roster confirmation)
At the time of roster confirmation you are free to negotiate, reject and accept these services offered however once a roster has been confirmed it is expected that Support Workers attend these services so service delivery is not disrupted.
Roster Changes
During each roster period there may be changes occurring to the roster such as cancellations, additional services offered to you if they become available and changed visit times at the request of the Participant. A Service Delivery Coordinator will contact you by phone in regard to these changes. You are free to negotiate, reject, and accept these. You are also free to nominate other Support Workers to fill shift vacancies. Replacement Support Workers must be approved by Southern Cross and the Participant prior to support being provided.
If changes occur to your services at any time (such as Participant not home, visit taking shorter or longer than originally rostered or any other variations) please notify the Southern Cross National Contact Centre so the necessary records can be changed.
Planned Unavailability
To ensure services are delivered with minimal disruption, Support Workers are requested to provide as much notice as possible (preferably 4 weeks' notice) of any planned unavailability. Support Workers can advise their Service Delivery Coordinator via email or telephone of planned unavailability.
Meet and Greet Visit
Just as you have the right to decline or accept work the Participant has the right to be involved in the initial selection of their Support Worker and with their ongoing engagement.
This may involve you visiting a Participant so that the Participant and you can determine if you are well matched and whether you and the Participant wish to commence service delivery. If you are not selected by the Participant, this does not reflect on your ability but relates only to the Participant's right to choose. You are not paid for a Meet and Greet visit as no service is delivered.”
[25] The Manual also covers mechanisms for recording services delivered and receiving payment; communication between Support Workers and Southern Cross; workplace health and safety requirements (including dress standards); hygiene and infection control; medications in the community; dealing with challenging behaviour by Participants; driving and vehicle safety; emergency response including where the Support Worker or the Participant requires medical assistance; and wellbeing management. The Manual also contains the following provisions:
“Team Meetings
• Team meetings are held regularly and as required for Support Workers
• Team meetings are run by Community Support Coordinators and Service Delivery Coordinators and may cover a range of issues including service specific issues relating to individual Participants needs
• Team meetings are run at no cost to you and are fully funded by Southern Cross - they also may include refreshments (morning tea/lunch/afternoon tea) as well as the opportunity for Continuing Professional Education as per Industry Standards
Continuing Professional Education
• It is an expectation that Support Workers accept responsibility for their own Continuing Professional Education (CPE)
• Southern Cross encourages and facilitates CPE through the provision of unpaid (but at no cost) Team Meetings
• CPE is provided in order to ensure the Duties Plans are delivered in accordance with Program Guidelines established by the Clients/Funding Bodies and in particular, to meet the specific needs of individual Participants.”
[26] Ms Dubos said that Participants are made aware of their rights and responsibilities which arise under the National Standards – Consumer Directed Care and are provided with a Participant Information and Service Agreement. Ms Dubos tendered the Agreement provided to the Participants in the house where the Applicant worked which includes:
• The selection of a Support Worker to provide support;
• The right to make impromptu changes;
• The right to have choice and flexibility in the way in which supports is provided to them;
• The right to direct their support; and
• The right to be involved in all assessments and reviews.
[27] Ms Dubos also gave evidence about the arrangements in the house where the Applicant was working. The evidence can be summarised as follows. The three Participants in the house are classified as high needs Participants. Funding for those participants is provided on a number of levels and includes individual funding. Two of the Participants had NDIS funding which involved a Planner appointed by NDIS to determine equipment and support needs for those Participants. The Respondent’s Service Delivery Co-ordinator in relation to the Participants in the house where the Applicant was working, was Ms Bray, who was responsible for a duties plan in relation to NDIS funded participants. The Applicant provided support within the confines of the plan, but it was up to the Applicant how to provide the care services each Participant required. In relation to services provided by the Applicant, Ms Dubos said that the Applicant:
• provided support services at the Participants' home(s) (primarily House A), not in the office or premises of Southern Cross;
• was free to reject services referred to her by Southern Cross;
• was able to nominate her own service times in respect of a 14-day period following an offer to provide services from Southern Cross;
• was free to provide services to other parties in any sector and was not subject to any form of restraint preventing her from doing so;
• was able to change her mind after accepting referred services and arrange for another Support Worker who was providing care to the relevant Participant to perform the services instead;
• was not required to inform Respondent Southern Cross that she had assigned shifts to other Support Workers in advance and only needed to be inform the Respondent of the change for payment purposes to ensure that the service fee was paid to the appropriate Support Worker;
• was not required to wear a uniform;
• was required to carry a Southern Cross identification card that fitted into her wallet stating her name and that they she is Southern Cross Support;
• could be rejected by any Participant for any reason and at any time;
• could reject performing care for a given Participant;
• was not provided with any benefits or leave;
• was not guaranteed any level of service referrals by Southern Cross;
• supplied her own motor vehicle and was not reimbursed for the costs of acquiring or maintaining the vehicle nor for the cost of fuel;
• supplied her own mobile phone and was not reimbursed for her phone costs;
• was personally liable in relation to the services she provided although insurance was arranged by Southern Cross for that liability on behalf of Support Workers.
[28] Ms Dubos said that the Applicant had a high degree of control over the provision of services to Participants including how those services were provided and was not subject to supervision in this regard. There is a Community Support Co-ordinator, who primarily liaised with the Participants and/or their families, with respect to any issues in relation to the provision of services.
[29] It is Ms Dubos’ understanding that Ms Bray would interact with the Applicant only when she went to the house to meet the Participants or would speak to the Applicant if she called the house and the Applicant answered the telephone. There were also email exchanges between the Applicant and Ms Bray which were infrequent. Ms Dubos said that the Respondent operates a fortnightly roster for Support Workers through an on-line portal. Prior to the operation of the portal, roster confirmation was completed by telephone. Support Workers are able to confirm or unconfirm a service shift they have accepted and are free to negotiate, accept or reject services.
[30] According to Ms Dubos, during the period she was engaged by the Respondent, the Applicant: cancelled or refused engagements on eleven occasions; made arrangements to reassign engagements selected by her on five occasions; notified of unavailability to provide services between 23 December 2019 – 6 January 2020; and occasionally accepted service engagements on an ad hoc basis where other support workers cancelled. Ms Dubos said that upon providing services, the Applicant completed a Record of Services Delivered which was submitted by facsimile or through a portal, and was paid for such services after they had been provided. Payment was confirmed on each occasion by the Respondent sending the Applicant an “Advice of Deposit by Direct Credit Recipient Created Tax Invoice” following payment. Advices sent to the Applicant for 2019 were tendered by Ms Dubos.
[31] Ms Dubos also gave evidence about a previous challenge made to the Respondent’s contractor arrangements by six persons engaged as Support Workers. Ms Dubos tendered correspondence received from the Office of the Fair Work Ombudsman dated 17 September 2012, indicating that following an investigation, it had been determined that the individuals were engaged as contractors and not employees. Ms Dubos said that there has been no change to the Company’s operating model since that time.
[32] In a reply affidavit, Ms Dubos said that the Applicant was not allocated to one Participant but was engaged to provide services to all Participants in the house she was working in, and that the Applicant also provided services to other Participants whilst engaged by the Respondent. Documents evidencing the Applicant providing services on approximately a weekly basis between January and September 2019, to a Participant other than those in the house where she mostly worked, were tendered by Ms Dubos. In response to the Applicant’s evidence about not being permitted to drink tea and coffee at the house where the Applicant was working, Ms Dubos said that these supplies are the property of Participants who often have limited funds, and that Support Workers were free to purchase tea and coffee for their own consumption while in the house.
[33] Ms Dubos maintained that the Applicant was not required to regularly report by email or telephone to Southern Cross or the Community Support Co-ordinator and said that this was limited to matters set out in the Information Manual for Support Workers, and that these matters related to suspected abuse, incidents, changes to support services and injuries. Ms Dubos tendered a copy of the Respondent’s telephone call records showing calls between the Applicant and Southern Cross in 2019.
[34] The records show that the Applicant received calls from the National Contact Centre and Community Support Co-ordinators. Ms Dubos understands that the calls from the National Contact Centre would have related to organising service engagements. In relation to the calls from Community Support Coordinators, Ms Dubos said that on her calculations there were nine calls with a combined duration of 5 minutes and 36 seconds. Ms Dubos also tendered a series of emails between the Applicant and Ms Bray and Ms Hunt which were produced by the Applicant instead of her telephone records. These emails predominantly relate to rosters and the Applicant’s availability at various times to work shifts. There are also emails containing information about how to engage with particular Participants or about maintenance or similar issues at the house.
[35] In relation to the Applicant’s ABN, Ms Dubos gave the following evidence. In 2016, the Australian Taxation Office (ATO) conducted a review of all ABNs including those held by Support Workers engaged by Southern Cross. Ms Dubos understands that following the review, the ATO decided to cancel the ABNs of the support workers from 1 July 2016. Ms Dubos also understands that Southern Cross previously withheld PAYG tax on behalf of support workers pursuant to a voluntary agreement with workers, which required support workers to have an ABN. Following the ATO review in 2016, Southern Cross withheld PAYG tax on behalf of support workers pursuant to provisions relating to contracted workers under a labour hire arrangement, which does not require workers to have an ABN. Ms Dubos understands that independent contractors can operate without an ABN. In support of this understanding, Ms Dubo tendered the ATO’s PAYG Withholding Guide.
[36] Ms Dubos said that as a result of the ATO's review, Southern Cross contacted all Support Workers by telephone in March 2016 to advise them that they would be receiving correspondence from the ATO regarding cancellation of their ABN's from 1 July 2016. The Support Workers were told that this change did not impact their independent contractor status. A script was read out to each Support Worker during the telephone calls. Ms Dubos tendered the script which provided for Support Workers to be informed that the change by the ATO did not alter any of their working arrangements with Southern Cross.
[37] Ms Dubos also referred to copies of the Applicant’s income tax returns for the financial years 2015 – 2019, provided in response to the Order requiring production of documents. The Applicant's income tax returns include claimed deductions for work related expenses of approximately $4000 to $5000 each financial year. The Applicant listed deductions for work-related use of her own vehicle, for items such as sun protection and gloves, and for items such as her iPod, computer, tablet and phone. Ms Dubos said that the Applicant was not reimbursed by Southern Cross for the cost of any of these work related items.
[38] In relation to paragraph 28 of the Applicant's witness statement, Ms Dubos said that Southern Cross has an incident management system which requires all its employees and independent contractors to report risks and injuries to health and safety. As part of this incident management system, Southern Cross has an Injury Notification Report form for employees or contractors to utilise where they have been injured whilst working. In addition, Southern Cross's Incident Report form allows Support Workers to report injuries or incidents involving participants. Ms Dubos said that Southern Cross maintains workers' compensation insurance for its employees and the contractors it engages and it is Ms Dubos’ understanding that in Queensland, providing workers' compensation insurance for contractors such as Support Workers is a requirement of the relevant legislation. The Applicant reported an incident on 6 March 2018 where a Participant at the house where she was working fell and allegedly knocked the Applicant's right knee. The Applicant did not require medical attention as a result of the Incident.
[39] In relation to the Applicant’s evidence about being required to attend team meetings, Ms Dubos said that attendance was voluntary and as such was unpaid. Ms Dubos also disputed that Ms Bray had ever threatened the Applicant in relation to non-attendance and tendered email correspondence between the Applicant and Ms Bray dated 24 March 2018, in which the Applicant asked confirmation as to when a team meeting was to be held and Ms Bray responded confirming the time and date and stating that if the Applicant could only come to part it would be ok but that it is important that she attend one meeting in six months or at a stretch, twelve months.
[40] Under cross-examination, Ms Dubos accepted that the advertisement for the position of Support Worker tendered by the Applicant did not refer to the role being that of a contractor but maintained that once a person applied for a role the terms of the engagement were made clear and it was up to the Applicant to choose whether to accept those terms. Ms Dubos agreed with propositions put to her by Mr Pinchen for the Applicant that: tax is deducted from payments to Support Workers; their rates are based on the relevant Award rates; there are different rates for weekends, public holidays and different times of the day; and workers compensation payments are made on behalf of Support Workers. Ms Dubos also said that the rates are “guided” by the Award and are set and “negotiated” with Support Workers when they apply for a position. Further, Ms Dubos said that the cost of the National Contact Centre is not borne by contract workers and nothing is deducted from their pay in relation to that Centre.
[41] In relation to payment, Ms Dubos said that Support Workers are paid fortnightly on the basis of the hours they work and upon performing the service they confirmed would be performed in a previous fortnight. Support Workers are not provided with a Group Certificate but are given a summary of earnings to enable them to complete their tax return. In response to a question about who supervises or audits to ensure that shifts are worked, Ms Dubos said that the Respondent would know if someone had not turned up for a shift as the person at the home in question would call. Feedback from Participants or their family members is the means by which quality of services provided is measured and dissatisfaction is communicated. A Support Worker who wishes to cease providing services is not required to give notice and could call and advise that they were ceasing immediately. Ms Dubos did not agree that a Support Worker is required to give four weeks’ notice to cease providing services.
[42] The Applicant maintained in her evidence that she was at all times an employee of the Respondent. According to the Applicant her employment commenced on 11 June 2015 and she was allocated to a particular Participant, and to that Participant only, for the entire period until her “effective dismissal” on 6 January 2020. In relation to the Respondent’s assertion that she was engaged as an independent contractor, the Applicant said that the Respondent directed Support Workers and provided them with the instructions and methods in which to provide services. The Applicant said that the Respondent had full and absolute control over the way she conducted and carried out her duties in the Participant’s house, and she was required to follow Personal Progress Plans for each Participant which were individually made by the Respondent’s Service Co-ordinator. In relation to these Plans, the Applicant said that she was not permitted to deviate from them even if she thought they were inappropriate based on her previous experience and she was required to follow the Respondent’s orders without discussion.
[43] The Applicant said that she did not have any autonomy regarding managing the Participant’s behaviour, any changes in their diet that she thought appropriate, the Participant’s interaction with staff, any activities that the Participant wished to partake in and that everything required approval from the Service Co-ordinator of the Respondent. The Applicant also said that she was required to report to the Service Co-ordinator at least a couple of times a week via emails, and sometimes even personal phone calls during and after shifts with the Participant. According to the Applicant, these calls were about how the shift went, any concerns, anything wrong or not running properly within the house. The Applicant also maintained that there was a lot of reporting that she needed to do any time there was something abnormal or different within the house or with the Participant.
[44] Further, the Applicant said that she was directed and controlled by the Respondent and gave as an example of control the instruction that she was never to drink any of the house tea or coffee. The Applicant claimed that she had no freedom to choose which shifts she worked and had no choice to work as much or as little as she liked. The Applicant also claimed that over the course of her employment, her shifts with the Participant increased over time as the Respondent directed.
[45] In relation to the written contract of employment tendered by Ms Dubos, the Applicant said that to the best of her knowledge, she does not remember signing any contract stating that she was engaged as a contractor and nor did she attend a mandatory induction session in which she was informed that this was the case. The Applicant also disputed Ms Dubos’ evidence that Support Workers are not engaged at all if they do not have an ABN and said that it is only partially true. In this regard, the Applicant said that she provided an ABN at the time her alleged employment with the Respondent commenced, but in or around a year later, the Applicant received an e-mail from the Australian Tax Office stating that her ABN had been cancelled for reasons of it not being active or being used for a certain period of time. The Applicant said that she was not the only support worker of the Respondent who received this cancellation of ABN notice from the ATO and she renewed her ABN just in case. The Applicant said that she did not notify the Respondent as she thought it was “very weird” that they had not been using her ABN to pay her. To this day, the Applicant has never provided her new ABN to the Respondent, nor has she been requested to do so.
[46] The Applicant also said that as a Support Worker, she never really provided any materials for herself and did not need much as she simply helped the Participants around the house with their needs. Essential items for the house to help the participants, such as toilet paper and paper towels, were provided by the Respondent. The Respondent also routinely supplied a large box of gloves for Support Workers to provide to the Participants. Further, if there were any shortages of anything that was required, the Applicant would always bring this to the Respondent’s attention. The Applicant also said that if she was ever to be absent, she definitely did not have the capacity to delegate work to someone else, as someone working as a contractor would be able to. In this regard, the Applicant said that the Respondent always provided her replacements if she was ever to be sick or absent from work.
[47] The Applicant also pointed to the fact that the Respondent provided her with its own workers’ compensation and said that she had dealt with them on one occasion in early 2018, when she suffered an injury as a result of a Participant accidentally falling on her bad knee. The Applicant said that she decided to report this because of the reporting system that was in place and any time there was an incident inside the house, there were incident report forms for employees to fill out and file.
[48] The Applicant maintained that when she began work, there was no opportunity to negotiate her remuneration rate. The Applicant also said that superannuation was paid into a superannuation fund on her behalf by the Respondent. The Respondent also paid PAYG tax on the Applicant’s behalf whenever she received income, and the Applicant received PAYG summaries at the end of each relevant period of employment. Further, the Applicant said that the Participant for whom she worked would have thought that she was part of the employer’s business as their employee, not as an independent contractor that carried on her own business.
[49] If there was anything unsatisfactory about the Applicant’s work, the Participant or their carer would report back to the Respondent which then would come back to the Applicant in a similar manner as a customer complaining to the manager or Head Office of a company about service by an inferior employee. The Applicant said that she was required to routinely attend “Team Meetings” to discuss the current work practices, schedules, tasks and behaviour management. The Applicant claimed that when she told the Respondent that she could not make a certain date and time, she was threatened by an employee of the Respondent that her employment would cease if she did not make herself available for these meetings. The Applicant was not paid for any of these additional meetings.
[50] In oral evidence the Applicant said that she submitted tax returns to the ATO on the basis that she was an employee. In relation to her activities while at work, the Applicant said that Support Workers come on to a shift and follow a service plan for each participant for the duration of the shift. The service plan specifies times and dates in relation to what has to be done and contact is required with a service co-ordinator if there is to be a deviation from the plan. If the matter was urgent contact would be made by phone or otherwise an inability to comply with the service plan would be advised by email.
[51] Under cross-examination, the Applicant agreed that she provided services to all three Participants who lived at house A and that she also did a cleaning shift each week at another location. In relation to the cleaning shift the Applicant agreed that the Participant directed the cleaning that was to be provided, but maintained that it was the same each week. The Applicant agreed that her evidence that she was allocated to one particular participant during the period she worked for the Respondent was not correct. In response to the proposition that she was free to adjust the daily routine of a Participant if required (for example if the Participant was unwell) the Applicant said that Support Workers would use common sense to adjust the care plan but would call the office to advise of any deviation from the plan.
[52] The Applicant was shown call logs showing calls between her and the Respondent, as well as email correspondence sent to the Applicant. It was put to the Applicant in cross-examination that there were nine phone calls from community support coordinators to the Applicant’s mobile telephone number for all of 2019, with a total duration of 5 minutes and 26 seconds. In response, the Applicant said that most of the calls she was referring to were made to the home phone at the house. The Applicant had the following exchange with Ms Hammond for the Respondent, in cross-examination:
“MS HAMMOND: Ms Leffanue, this is a record that Southern Cross have extracted from its system of phone calls between you and Southern Cross in 2019. I'll just ask you to accept that that's what this is. I know you don't have a reason to know that one way or the other. Do you see in this table, you can see the caller ID in the fourth column which is the person who is calling?---Yes.
And it's the call from (indistinct)?---The first one is - yes, caller ID, Debra Bray.
Yes. And you can see in the note, the category or the note (indistinct) says, "From Southern Cross to worker", do you see that in the first row?---Yes.
In this table, for all of 2019 there are nine phone calls for community support co-ordinators to you?---To my personal phone?
To your phone number, yes?---Okay. I agree that if this is what the document says, I agree that would be correct.
And do you see in this document that sets out a column for the duration of those phone calls, in the middle of the page?---Yes.
This table shows that the duration of those nine telephone calls was a total of five minutes and 26 seconds across all of 2019?---Yes, I - yes, I trust that that's correct.
That is very limited phone contact from the community support co-ordinators to you, isn't it, Ms Leffanue?---All the contact was made whilst I was at work, doing - using the house phone. So the - the residential house that I worked at had a private line which we used to communicate on.
And sometimes the community support co-ordinator, you say, might use the house phone to ask about what was happening at the house?---Most of the time they would call - she would call the house.” 16
[53] The Applicant was asked about email correspondence she had with the Community Support Co-ordinator and said that there were “lots of emails”. 17 The Applicant was shown emails between herself and Ms Bray for 2019, which the Applicant had produced in response to an Order from the Commission, and the proposition was put to her that there were only 13 such emails. The Applicant had the following exchange with Ms Hammond in relation to the emails:
“MS HAMMOND: Do you agree that's a fair summary that the emails you sent to Debra Bray in 2019 were about things breaking at the home, medical appointments the participants had, or about particular medical difficulties the participants had?---Yes, I do.
You never emailed Debra Bray with a report about your work as a support worker, did you?---No, I - no, I wouldn't - I wouldn't have done that. 18
[54] It was put to the Applicant that she had said there were emails to service coordinators on a weekly basis when this was not the case. The Applicant maintained she either emailed or spoke to service coordinators at least weekly:
“MS HAMMOND: So when you say you were required to report to the service co-ordinator at least a couple of times a week via email and that this was about how your shift went, any concerns, anything wrong, anything not running properly in the house, and I accept you sent some emails about things not running properly in the house for concern, but it's certainly not right that you sent emails a couple of times a week, and it's not right that the emails were about how your shift went, is it?---Well, no, it is. I did regularly - these are - the emails that I send are just the outgoing emails, not the incoming emails from Debra Bray, and also, as I said, every Monday she would call the house and I would speak to her about the runnings of the house, the runnings of the shift and how the staff are managing, changes in the house, and how staff are even getting along. I used to have in-depth conversations with her quiet often.
Ms Leffanue, can I just stop you there. I understand that, that these are only the outgoing emails, but at 17 of your statement you say you were required to support to the service co-ordinator several times a week via email, when in fact you send Debra Bray 13 emails during the whole of 2019. Is that correct?---I - it says, "A couple of times a week via email and sometimes even personal phone calls during and after my shift." So if it wasn't via email it was via a phone call.
Well, you say that, "at least a couple of times via email, and sometimes even personal phone calls." Your statement implies that there were a couple of emails a week where you report to Debra Bray and that's not right, is it?---Well, as you've given evidence with my emails, it doesn't look like I did the emails a couple of times a week, but I was in contact with Debra Bray a couple of - at least weekly, via the phone, if not via email, if not via other support workers, as well.
And you say that the house phone, even though there are only nine calls on your mobile with Debra Bray in 2019 - - -?---Yes. No, she - yes, she would call me every Monday on the house phone.” 19
[55] At the hearing, the Respondent put to the Applicant that she was able to
“swap shifts” with other support workers, with reference to a series of emails in which the Applicant’s availability to work certain shifts is discussed. In one such email, the Applicant refuses some shifts offered to her and said that she did so because she had other work. The Applicant agreed that she was able to tell the Respondent that she did not want to work at particular times because of the fact that she was engaging in work for entities other than the Respondent.
“MS HAMMOND: Going to page 302 [Court Book], now these are some emails that Southern Cross has found in addition to the ones you produced screenshots of. This is an email from September 2018 to a Southern Cross employee. You say, "Hi, Lisa, on Monday, October 22, Liz", who is another support worker, "will be doing my morning shift and I will be doing afternoon shift", do you see that?---I see that.
So you're able to tell Southern Cross that you've swapped shifts with another support worker?---Well, we could tell them but we have to get approval.
Well, you don't say that. You say, "Liz will be doing", and, "I will be doing." You're not asking for permission there, are you?---But we always had to get approval. We could never swap shifts without approval.
I put it to you that that's not the effect of the email?---It might not look the way you've perceived that, but, at the end of the day, we would have to get approval from Southern Cross or the roster person at the time to say that we were allowed to help out a co-worker if they needed an appointment or so forth. It was generally only just to help out a co-worker.” 20
[56] The Applicant denied that she had the ability to delegate or swap shifts with other support workers and stated that Support Workers were told that they are not allowed to conduct shift swaps and that ultimately any swaps had to go through the Respondent. In relation to this matter, the Applicant had the following exchange with Ms Hammond during cross-examination:
“MS HAMMOND: Ms Leffanue, at 26, when you say:
I definitely did not have the capacity to delegate my work to someone else as someone working as a contractor would be able to.
That's not right, is it? You could arrange to swap with other support workers or, indeed, for them to do your shift?---Not without going through Southern Cross and getting their approval first.
When, at 27, you say:
Southern Cross always provided my replacement if I were ever to be sick or absent from work.
That's not right, is it?---That's right.
Because sometimes you arranged to swap the days that you couldn't do?---This was - these emails are probably going back two years and within that two years, we've had multiple emails saying that we were not allowed to conduct any shift swaps between staff because it was all - we were told regularly in the last two years we were not allowed to put it upon ourselves to help out other staff members with shift swaps if they had appointments and stuff. Every shift swap or unavailability due to medical reasons or whatnot had to go through Southern Cross.” 21
[57] The Applicant did not produce any of the multiple emails she claimed to have received stating that staff were not allowed to arrange shift swaps between themselves. In relation to the cancellation of her ABN, the Applicant said that received an email about this from the ATO but could not remember a telephone call from the Respondent during which she was informed that this did not change her status as a contractor. As previously noted, the Applicant produced her tax returns for the financial years 2015 – 2019. In relation to these documents, the Applicant agreed that from 2015 to 2019 she had an income of approximately $20,000 to $50,000 per annum and claimed more than $4,000 in work related expenses each year.
[58] Specifically the Applicant agreed that she claimed several thousand dollars per annum in relation to her car and work-related tax deductions for an iPad, a tablet, a computer and a mobile telephone. The Applicant also agreed that she bought sun protection, gloves and non-slip shoes each year and claimed those items but said that she did this because she is a contractor with another client. The Applicant first said that she worked for the other client in 2016, 2017 and 2018 but when the proposition was put to her that there was no indication of another client in her tax returns with the exception of 2018 and 2019, the Applicant said that these were the years where she had another private client. The Applicant also claimed for a first aid course and laundry in various years. The Applicant conceded that her evidence that she never provided any materials for herself, was incorrect.
[59] The Applicant maintained that Ms Bray told her that she was required to attend one team meeting each year to continue working for the Respondent, notwithstanding that Ms Bray’s email about attendance at team meetings did not state that it was compulsory. The Applicant was also asked about the circumstances in which she ceased to work for the Respondent. the Applicant agreed that she stated that the work environment was toxic, that she was glad to be out of it and had hung up on Ms Hunt. The Applicant denied that she knew she was a contractor and was claiming to be an employee because she had a grudge against the Respondent.
CONSIDERATION
[60] The Respondent is a provider of healthcare services for and on behalf of State and Federal Government agencies. The Respondent engages Support Workers to provide these services. In my view it is also significant that State and Federal agencies determine which Participants are entitled to services and the nature of those services, including when and how they are provided, via the funding mechanisms. These matters are not determined by the Respondent as the Provider, or the Participant as the recipient, of the services. This can be contrasted with cases where labour is provided to an end user, who controls the work including when and how it is performed.
[61] The Respondent obtains the funds to provide the services and uses those funds to engage Support Workers for that purpose. The framework under which funding is provided entitles Participants to direct their own care, but only by determining who is to provide that care, rather than the nature and frequency of the care. Participants also have the right to accept or decline access to their home to any Support Worker and to refuse treatment from a Support Worker without giving reasons. In essence, Participants can determine who will provide care but not the scope of the care that will be provided. That scope is ultimately determined by the agencies and the funding that they provide, notwithstanding that the Respondent has input into the determination of particular care needs of Participants.
[62] As a result, the care plans under which Support Workers provide services are not directed to controlling Support Workers. Rather, the plans are the method by which the funding for the services is effectively acquitted to the providers of funding. The care plans also record what services will be provided to Participants for the purposes of the funding. It is also the case that ultimate control over the Support Worker who provides care to each participant, lies with the participants. Further, the work that Support Workers undertake, is the provision of services to Participants which are related to their personal care and daily living activities. It is objectively apparent that the kinds of services provided by Support Workers makes it vital that the Participant agrees that the services should be provided by a particular Support Worker or Workers and retains the right to refuse the services for any reason, and not just reasons associated with the capacity or conduct of the Support Worker. This can be contrasted with cases where the identity of the worker is not determinative of his or her ability to do the work.
[63] Accordingly, given the nature of the work performed by Support Workers and the context in which it is undertaken, it can be said that there are valid business and operational reasons for grounds for Support Workers to be engaged as Contractors. I have also had regard to the fact that the Applicant expressly agreed that she was engaged as an independent contractor prior to her engagement by signing the Contractor’s Acknowledgement documentation and receiving the information manual for Support Workers. The Applicant did not deny that she signed the documentation but rather, said that she did not recall doing so. Balanced against the evidence of Ms Dubos in relation to the systems the Respondent maintains with respect to the engagement of contractors, I prefer the evidence of Ms Dubos over that of the Applicant, in relation to this matter. I also note that the Applicant gave evidence to the effect that she had provided similar services to other “private” clients outside of the Respondent’s operations and did so as an independent contractor. It is apparent that the concept of providing services as an independent contractor was not foreign to the Applicant and there is no evidence of such an arrangement being forced or imposed upon her by the Respondent.
[64] I turn now to consider the indicia set out in Stevens v Brodribb Sawmilling Co Pty Ltd. I accept that the Respondent exercised control over the Applicant at a macro level, in the context of providing standards to the Applicant as a Support Worker in relation to the services and the manner in which the services were to be provided, by virtue of the care plan. However, it is also the case that regardless of the nature of the relationship between the Applicant and the Respondent, the care plan is required as part of the arrangements under which funding for the care is provided by the relevant agencies, which in turn allows the Respondent to obtain the funding to pay the Support Workers for the services they provide. The Applicant was also free to use her discretion to alter the care plan at the behest of the Participant or because she believed that an alteration was required. There is no evidence of the Respondent micro-managing such alterations.
[65] While the Applicant was allocated to perform work at a particular house, the allocation was a function of the way in which the services are provided rather than for the purpose of controlling the Applicant, and she was free to accept or refuse the work and to alter the times at which she worked. There was significant evidence of the Applicant accepting and refusing work and altering the times at which she was available to perform work. It was also apparent from the Applicant’s evidence that she undertook work as an independent contractor for other parties, providing the same services she provided to Participants for the Respondent. While the Respondent referred work to the Applicant, it was not required by the terms of the contract to do so and nor was the Applicant required to accept the work.
[66] The Applicant’s evidence in relation to control is to simply assert that the Respondent had the right and the scope to control her work, and actually exercised control over a wide field of her conduct on a number of bases. The evidence does not support the Applicant’s assertions. It does not establish that the Respondent had full and absolute control over the Applicant’s conduct – to the contrary, it is apparent that the Applicant had control over her own conduct and the manner in which she complied with the care plan, which was the ultimate basis upon which she would be paid. The Applicant’s evidence in support of the assertions that she was under the control of the Respondent was unconvincing. The alleged requirement that the Applicant attend one team meeting per annum was little more than a request and the emails do not contain any suggestion that there would be repercussions for non-attendance. I am also of the view that the Applicant exaggerated this matter. In any event, attendance at a team meeting once or twice per annum is not inconsistent with the Applicant being engaged as an independent contractor. The direction that Support Workers not consume tea or coffee that is the property of Participants is also not an indication of control being exercised by the Respondent and the fact that the Applicant would raise such a trivial matter and attempt to put a spin on it, highlights the lack of evidence supporting her contentions of an employment relationship.
[67] The assertion that the Applicant had no ability to deviate from the care plan of a Participant is directly contradicted by the Applicant’s concession under cross-examination that she had the ability to divert from the care plan on her own initiative, and did so in the performance of her work. As previously noted, the care plan has a purpose of ensuring that an appropriate standard of care is provided to Participants to ensure that funding is obtained and expended for proper purposes. The Applicant’s assertion about the extensive contact she had with the Service Co-ordinator in which direction was provided to her, was also not borne out of the evidence. There were few calls between the Applicant and the Service Co-ordinator and there is no email correspondence to support the Applicant’s assertions in relation to control. The email correspondence that was tendered is not inconsistent with the Applicant being engaged under a contract for service.
[68] As previously noted, the Applicant not only had the right to perform work for others, she actually performed work for others, evidencing that this was a practical entitlement. In response to questions about her taxation returns, the Applicant indicated that for at least three years where she performed work for the Respondent, she also performed work as an independent contractor, for others. That the Applicant did not have a separate place of work is not determinative. The location of the work in a house at which Participants resided, was an inherent requirement of the work itself, rather than an indicium of control being exercised over the Applicant by the Respondent. The Applicant did provide tools and equipment which she used in the course of carrying out the work, including a motor vehicle. A motor vehicle is more significant equipment than the bicycles which were provided by the persons found to be employees in Hollis v Vabu. The Applicant’s assertion that she did not provide any equipment for the performance of her work is contrary to the items that she claimed on her taxation return including a computer, an iPad, a telephone, non-slip shoes, sunscreen and gloves.
[69] The Applicant’s evidence to the effect that the claims she made for these items in her tax return related to a contract she had to undertake work outside the Respondent’s operations was unconvincing and I do not accept it. The claims were for amounts that were not insignificant in the context of the Applicant’s total remuneration. This is indicative of a relationship of independent contractor.
[70] It is apparent that the Applicant could accept or reject work and the emails tendered by the parties indicate that there were no repercussions for the Applicant if she made herself unavailable. I am also of the view that the evidence establishes that the Applicant had the right to delegate the work to others. The Applicant could do so by swapping shifts with other Support Workers. The fact that this group was limited to those who had worked in house A or had been pre-approved by the Respondent, does not alter the fact that the Applicant could delegate her work to others. The correspondence tendered to the Commission indicates that the Applicant did not seek permission to delegate her shifts to others, but rather, advised the Respondent that she had done so by stating that a swap had been made. It is apparent from the correspondence that the only interest the Respondent had was in ensuring that the shift was filled by a person qualified to undertake the work and that it had a record of who had undertaken the shift for the purposes of acquitting the funding and paying the relevant Support Worker. This is consistent with the Applicant being engaged as a contractor. The Applicant was not provided with paid leave. While I accept that this is also consistent with casual employment, in circumstances where she could, and did, make herself unavailable for certain periods, this is also an indicium of the Applicant being engaged as a contractor.
[71] The Applicant’s contract provided that she could be removed from the house at which she was working. However, this was predominantly at the behest of a Participant via the Participant’s family. This is what occurred in the Applicant’s case – the Participant’s family sought her removal from the house where she had been working. There is no specific provision in the material before the Commission relating to a right of the Respondent to suspend or terminate the Applicant’s services. I accept that if a Participant did not wish to accept services from the Applicant then the Participant could not be compelled to accept those services and the Respondent would have no option other than to remove the Applicant from the house in question. In the context of the nature of the work and the manner in which it was required to be performed, this indicium is not determinative, and could be a feature of either an employment or a contract relationship.
[72] That Participants may have seen the Applicant as an emanation of its business, is not determinative in the present case. While the Respondent is the provider of services to Participants, they are personal services provided by particular Support Workers, and the Respondent is not free to designate any Support Worker to provider services but rather, is limited to Support Workers accepted by Participants. The fact that income tax is deducted from the remuneration paid to Support Workers is also not determinative of their relationship with the Respondent. While the Respondent deducts PAYG tax amounts from the remuneration paid to Support Workers, it does so in a way that is consistent with them being contractors. The fact that an ABN is not required, does not alter the nature of the arrangements between the Applicant and the Respondent. Further, the Applicant’s taxation affairs were conducted in a manner that was entirely consistent with her being engaged as an independent contractor.
[73] Similarly the provision of workers’ compensation insurance to Support Workers is also consistent with them being engaged as contractors given the requirements of legislation governing this matter. The provision by the Respondent of public liability insurance is not surprising given the nature of the contract work that is carried out by Support Workers and is not an indicium of an employment relationship. Further, the manner of remuneration was based on the provision of services over a period of time, and was paid following the provision of services and in response to the Applicant claiming payment for certain hours and verifying that she had worked those hours.
[74] The work of a Support Worker does involve a distinct calling, but this is a factor that is neutral in the present case and is equally applicable to either an employment or a contractor relationship. A Support Worker does not create good will or saleable assets in the course of work. However, in my view this is because of the nature of the work itself rather than the relationship between the Respondent and the Support Worker. It is also the case that the Applicant spent an amount on business expenses which was not insignificant, suggesting that she was engaged as an independent contractor.
[75] When the indicia are weighed, they point to a conclusion that the Applicant’s relationship with the Respondent was as an independent contractor and not as an employee. When the indicia are considered overall, it cannot be said that the notion that the Applicant was running her own enterprise is intuitively unsound. The Applicant was performing skilled work requiring a personal relationship with the recipient of the services (the Participant) and an acceptance by the Participant that the Applicant would personally provide the services, or would delegate to a person that was also acceptable to the Participant.
CONCLUSION
[76] For these reasons, I concluded that the Applicant was not an employee and that she was therefore not a person protected from unfair dismissal. Accordingly, I dismissed her application for an unfair dismissal remedy.
DEPUTY PRESIDENT
Appearances:
Mr G Pinchen of A Whole New Approach for the Applicant.
Ms A Hammond of Counsel instructed by Colin Biggers and Paisley.
Hearing details:
20 May.
2020.
Brisbane.
Printed by authority of the Commonwealth Government Printer
<PR720206>
1 PR722016
3 [2011] FWAFB 8307 at [30].
4 Hollis v Vabu (2001) 207 CLR 21.
5 Per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ.
6 Hollis v Vabu (2001) 207 CLR 21.
7 See also On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 [(2011) 206 IR 252 per Bromberg J for a further discussion of the ‘ultimate question’ cited in French Accent at [30].
8 Abdalla v Viewdaze (2003) AIRC 504
9 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29 per Mason J
10 Abdallah v Viewdaze Pty Ltd at 34
11 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 37 per Wilson and Dawson JJ
12 Op. cit. at 38 - 41
13 Marshall v Whittaker’s Building Supply Co (1931) 46 CLR 210 at 217 per Windeyer J
14 [2020] FCAFC 119.
15 Re Porter; Re Transport Workers Union of Australia [1989] FCA 226; (1989) 34 IR 179 at 184 per Gray J.
16 Transcript at PN266-274
17 Transcript at PN
18 Transcript at PN293-294
19 Transcript at PN302-305
20 Transcript at PN358-361
21 Ibid at PN386-392