Appeal upholds determination of worker as independent contractor

Appeal upholds determination of worker as independent contractor

A Full Bench of the Fair Work Commission has dismissed an appeal from a former worker who claimed that he should be regarded as an employee rather than an independent contractor and, therefore, able to contest the separation of his employment via an unfair dismissal claim.

The appellant ‘SM’ was a photographer with over 35 years of experience and was engaged by Timbecon Pty Ltd (Timbecon) to create photographic and video content for its website and marketing channels. Timbecon operates a hardware store that sells woodworking tools.

At the initial meeting between the parties in September 2016, SM clarified that he wished to be engaged as a contractor, primarily to allow him the freedom to provide photographic services for third parties. An agreement was reached upon a time-structured work arrangement whereby he would come in for three full days per week from November 2016, and an hourly rate of $39 was agreed to be paid on a fortnightly basis.

Under the arrangement, no taxation was upheld from payments to him, he accrued no leave, and he also maintained his own business, separate from Timbecon.

In January 2017, he began working five days per week and, over time, undertook other duties, including administration, cleaning the business premises, and attending daily morning meetings.

In the initial case Deputy President Andrew Bell determined that when considering the employment relationship overall, SM should be correctly regarded as an independent contractor, and hence rejected his application.

A Full Bench comprising Vice President Joe Catanzariti, Deputy President William Clancy, and Commissioner Leyla Yilmaz agreed with the Deputy President’s reasoning. As they noted,

We consider that the Deputy President’s approach to dealing with the Appellant’s application was correct and open to him on the facts and evidence before him. We agree with the Deputy President’s ultimate conclusion that the Appellant was not an employee of the Respondent and reject Grounds 1 and 2 of this appeal”.

The Full Bench agreed with Deputy President Bell’s focus on the terms of the contract agreed to between the parties rather than post-contractual conduct. Further, they agreed with his finding that Timbecon did not dictate how SM was to perform the tasks allocated to him.

They also supported his finding that the increase in SM’s hours from part-time to full-time did not materially increase the amount of control the business exercised over him, with the amount of control a key component in assessing employment status.

The appeal was rejected.

SM v Timbecon Pty Ltd (U2022/7121) 24 February 2023

For queries about employment status, independent contractors, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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