FWC upholds employer’s objection to lodged unfair dismissal claim

FWC upholds employer's objection to lodged unfair dismissal claim

FWC upholds employer’s objection to lodged unfair dismissal claim

The FWC has accepted a jurisdictional objection from an employer denying an unfair dismissal claim on the basis that the Applicant was correctly engaged as an independent contractor rather than an employee.

Itero Australia Pty Ltd (“Itero”) operates as a full-service rope access provider, specialising in projects that require work to be done at heights. In 2022 Itero was contracted to SIMPEC as the principal rope access provider for the Iron Bridge Magnetic Project in the Pilbara region of Western Australia. The contractual arrangements included Itero providing a NACE qualified inspector to inspect and certify the industrial coatings applied on the project.

On 18 August 2022, ‘RSB’ applied for a position with Itero as a Coatings Project Manager for the site. RSB had previously worked with several managers from Itero. He had a telephone call with Itero’s director, during which it is claimed that he asked to be engaged as a subcontractor, using his existing ABN linked to a business called ‘ICAC Systems’.

On 19 August 2022, Itero forwarded an email offering RSB the position of ‘Coatings Project Manager’ on a subcontractor basis at “an all-inclusive rate of $104.50 per hour” as well as a two-week on two-week off roster. Further conditions were identified in a subsequent email sent on 22 August 2022.

RSB commenced in the role until his termination on 17 April 2023. He lodged an unfair dismissal application on 6 May 2023, to which Itero lodged a jurisdictional objection.

In assessing the objection, Deputy President Abbey Beaumont focused on the terms of the offer provided to RSB on 19 August 2022, in particular:

  • That the engagement would be as a subcontractor utilising his ABN;
  • That a flat rate was agreed of $104.50 per hour as an all-inclusive rate;
  • The fixed roster arrangements;
  • The duties required to be undertaken; and
  • The need for RSB to refresh his IRATA certification.

Despite his protestations, the Deputy President noted,

“In any event, by the time the Applicant had mobilised to the Iron Bridge site, he had, by his conduct, accepted the terms offered in the Respondent’s email of 19 August 2022 and the following email of 22 August 2022.”

Other factors of the employment relationship that the Deputy President highlighted included;

  • No leave arrangements or superannuation was payable;
  • RSB would take direction from representatives from SIMPEC;
  • RSB would apply his professional skills with tasks completed to the satisfaction of SIMPEC;
  • The requirement for RSB to notify Itero and SIMPEC if he was, or was likely to be, absent from the site;
  • He would provide his own laptop computer.

In determining the relationship to be that of an independent contractor, the Deputy President noted,

“The hourly rate was the total amount payable to the Applicant by the Respondent, and no annual leave, sick leave, superannuation, or other amounts were payable. Further, although SIMPEC appeared to have the right to determine the allocation of work to the Applicant, the Applicant had the right and, quite appropriately, the independence to exercise a significant degree of control over the manner of performing rope access on the project and that of coatings inspections and reporting, coordinating, and conducting coating repairs. The terms of the contract showed that the Applicant was required to assume responsibility for obtaining insurance regarding workers’ compensation and professional indemnity”.

The Deputy President concluded,

“… my evaluative assessment is that the Applicant was operating an independent enterprise trading as ICAC systems, and as part of that enterprise, he was providing services to the Respondent … That work involved rope access and the provision of the specialist work … all work of which the Respondent was absent the capability to perform”.

Consequently, the application was dismissed.

RSB v Itero Australia Pty Ltd (C2023/2561) 21 July 2023

For queries about employment, engagement of 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.

Ref: 360.0723

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