Amon John Crooks v Hyundai Rotem Company [2026] FWC 1104

1 Fair Work Act 2009 s.365—General protections Amon John Crooks v Hyundai Rotem Company (C2025/12957) DEPUTY PRESIDENT LAKE BRISBANE, 10 JULY 2026 Application to deal with contraventions involving dismissal – not an employee – whether employee or contractor – where s.15AB opt-out notice provided – s.15AA does not apply – Applicant not an employee – jurisdictional objection upheld – application dismissed. [1] Mr Amon John Crooks (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 11 November 2025. The Applicant claims that adverse action was taken against him by Hyundai Rotem Company (the Respondent) in breach of part 3-1 of the Fair Work Act 2009 (Cth) (the Act). [2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed under s.386 of the Act as the Applicant was not an employee. [3] The matter was listed for hearing on 23 March 2026. The Applicant was represented by Mr Bob Gu of A Whole New Approach. The Respondent was represented by Mr Daniel Murray from the Australian Industry Group. The Applicant was granted permission to be represented in the hearing. [4] For the reasons set out below, I have found that the Applicant was a contractor, not an employee. I have found that the Applicant signed an opt-out notice which complied with s.15AB of the Act. Section 15AA does not apply to the relationship between the Applicant and the Respondent. After analysing the rights and obligations created by the contract, I am satisfied that the Applicant is a contractor. Background [5] The Respondent is a Korean company which provides services related to manufacturing rollingstock and other train assets. LinkedIn conversation [6] On 15 July 2023, the Applicant had a conversation with Ms Michelle Youm, Contracting Manager for the Respondent via LinkedIn. [2026] FWC 1104 DECISION -- 1 of 19 -- [2026] FWC 1104 2 [7] The Applicant explained that he had just started consulting. Ms Youm said the Respondent was looking for a Senior Electrical Engineer. [8] The Applicant asked, “Is this position open for a contractor?”. He further clarified: “Would you be interested in engaging a contractor like myself for the role? Or only a full time employee?” [9] Ms Youm replied asking what the Applicant’s rate would be if he were to work as a contractor. The Applicant said that could be discussed further. Consultancy Agreement [10] The Applicant was, at the time, director of Movement Engineering Pty Ltd (Movement Engineering). [11] On 6 November 2023, a contract was executed between the Respondent and Movement Engineering (Consultancy Agreement). The contract was titled “Consultancy Agreement”. [12] The contract states that Movement Engineering (“the Consultant”) will provide consultancy services to the Respondent (“the Company”) in relation to the Queensland Train Manufacturing Program (QTMP) project. The consultancy services were to be provided through Movement Engineering’s Personnel set out in Schedule 2 of the contract. The Applicant was the only individual listed as Personnel. [13] Clause 2 of the contract states: 2 APPOINTMENT AND DURATION 2.1 The Company hereby appoints the Consultant to provide the Consulting Services to the Company through its Personnel and the Consultant accepts its appointment as Consultant and agree to be bound by the terms and conditions herein during the Agreement Term. 2.2 Agreement Term means the period starting from the Effective Date of this Agreement until the earlier of: (a) 4 December 2024; or (b) the date of termination in accordance with the terms and conditions of this Agreement (the “Agreement Term”). 2.3 The Consultant agrees to makes its Personnel readily available throughout the Agreement Term. 2.4 The Consultant must not subcontract all or part of its obligations under this Agreement without prior written consent of the Company. 2.5 The Consultant must not replace its Personnel without prior written consent of the Company. [14] Clause 3 of the contract set out the warranties and representations made by the Consultant to the Company: -- 2 of 19 -- [2026] FWC 1104 3 3 WARRANTIES AND REPRESENTATIONS BY THE CONSULTANT 3.1 The Consultant warrants and represents to the Company that: (a) the Personnel have the necessary knowledge, experience, training and expertise to provide the Consulting Services in a professional and competent manner; (b) the Consultant or the Personnel (as applicable) will provide the Consulting Services with the reasonable skill care and diligence as may reasonably be expected of appropriately qualified and experienced consultants with appropriate skill and experience of providing services of a similar scope, type, nature and complexity to the Services; (c) the information in the curriculum vitae of the Personnel are true and accurate; (d) the Consultant or the Personnel (as applicable) will do all things necessary to ensure that the Consulting Services are performed at all times in a safe and competent manner; (e) the Consultant will do all things necessary to ensure that its Personnel are available as and when reasonably required by the Company in order to perform and carry out those Consulting Services; (f) the Consultant or the Personnel (as applicable) will carry out the Consulting Services to a standard satisfactory to the Company (acting reasonably); (g) the Consultant or the Personnel (as applicable) will follow all lawful and reasonable directions given by the Company in respect of the performance of the Consulting Services, including any directions: (i) to suspend or resume the performance of the Consulting Services; (ii) to perform the Consulting Services on a full or part time basis; or (iii) in relation to scope of work or location, as specified in Schedule 1 as the Company may give from time to time; (h) the Consultant or the Personnel (as applicable) will carry out the Consulting Services at such places as the Company may require; (i) the Consultant or the Personnel (as applicable) will complete all of the Consulting Services in a timely manner and in accordance with any times reasonably requested by the Company or by any deadlines set by any applicable project plan in relation to the Project; (j) the Consultant or the Personnel (as applicable) will promptly provide from time to time such information as the Company may reasonably require concerning the Consulting Services; (k) the Consultant or the Personnel (as applicable) will not do or omit to do anything which might cause the Company to be in breach of any of its obligations under the Project or which might cause the Company to be liable in tort or liable under any Act, including any claims or liability pursuant to the Trade Practices Act 1974 (Cth) and/or any relevant State Fair Trading Act or any other legislation; and (l) the Consultant or the Personnel (as applicable) will keep time sheets and such other records of Consulting Services performed for the Company and make those time sheets and records available to the Company within a reasonable period of time if so requested. -- 3 of 19 -- [2026] FWC 1104 4 3.2 The Consultant must comply with all procedures, rules, regulations, standard of conduct and lawful directions of the Company in respect of the use of the Company’s Facilities and in the communications and dealings with the Company. 3.3 The Consultant promises and undertakes to the Company that he will at all times in the course of carrying out his obligations under this Agreement: (a) act diligently, ethically, soberly and honestly; (b) not by act or omission commit any criminal offence; and (c) not act negligently or carelessly. 3.4 The Consultant must not be engaged or involved in any other business apart from the provision of the Consulting Services whilst the Consultant is on the Company premises or using the Company’s Facilities. [15] Clause 6.1 provides that the Respondent will pay Movement Engineering fees based on the rates set out in Schedule 2. The fees are exclusive of GST (clause 6.2) and the Fees are due and payable within 30 business days of Movement Engineering issuing an invoice. Schedule 2 states: Schedule 2. Personnel & Engagement The Personnel of the Consultant are outlined in the table below. The curriculum vitae of the Personnel are attached to this Schedule. Name Role Rate / Day 1. Amon Crooks Electrical Engineer AUD $1,200.00 Unless otherwise agreed between the Parties in writing, in any given week, the Personnel will provide the Services on a full time basis. [16] Clause 6.6 of the Contract states that the primary work location of the Personnel will be as in Schedule 1 (which is Brisbane). [17] Clause 8 provides that the Company will own the intellectual property created or developed pursuant to the consulting services. Clause 10.1 provides that the agreement may be terminated by either party for any reason by giving not less than 2 weeks’ notice in writing. Under clause 16, neither party may, without written consent, assign or subcontract the rights under the Deed. [18] Under clause 1.3, the main body of the Agreement overrides the Schedules to the extent of any inconsistency. [19] Schedule 1 sets out the scope of works for the consulting services. It is in the form of a position description. It includes sections for job purpose, key responsibilities, key accountabilities, key interactions and essential requirements. Under the key interactions section, it is noted: -- 4 of 19 -- [2026] FWC 1104 5 • This position reports directly to the Project Engineer. The Electrical Design Engineer operates to produce design deliverables as per derived project design delivery schedule and contractual requirements. • The position directly interfaces with the overseas SME and Draftsman, and local engineering team Design, Integration, Safety, Human Factors and Systems Engineers to assure a full design integration and compliance. • The position also interfaces with other external project stakeholders including suppliers, customer and operator engineers’ representatives. [20] Schedule 2 contains the CVs of Movement Engineering’s Personnel. Variations to Consultancy Agreement [21] There were two signed amendments to the Consultancy Agreement, dated 10 October 2024 and 8 November 2024 respectively. [22] The amendments included increases to the Applicant’s daily services fee, the addition of two more Personnel under Schedule 2 of the Agreement, and requiring four weeks notice of termination instead of two weeks. The Agreement Term was extended to 30 December 2025. [23] By 8 November 2024, there were three people listed as Personnel of Movement Engineering in Schedule 2 of the Agreement. That included the Applicant and two other engineers. The Applicant’s daily service fee under Schedule 2 of the Agreement was $1,350.00 (ex GST). The Applicant stated he worked nine hours a day, five days a week. This would equate to an hourly rate of $150/hour (ex GST). Opt out notice [24] On 7 March 2025, the Respondent emailed the Applicant (and a number of other people) as follows: Hi All, I hope this email finds you well. Because of your position as an independent contractor to HRC, you are required to attend a presentation (via Teams) on recent changes made to test of employment under the Fair Work Act. It is very important that you attend this presentation as these changes may have implications for your engagement with HRC. The following are a list of times proposed for this presentation: list three 1 hour timeslots for the presentations. Please advise all of these timeslots which would suit you; and keep these free until the time of your attendance has been confirmed. Note you will only need to attend the presentation once, but we are asking you to nominate all the timeslots which are suitable to you so we can optimise the numbers for each presentation. [25] The Applicant responded on 7 March 2025 indicating a timeslot. He responded on behalf of himself and the two other people listed as Personnel of Movement Engineering in the Consultancy Agreement. -- 5 of 19 -- [2026] FWC 1104 6 [26] The presentation was held on 13 March 2025. The Respondent provided a copy of the PowerPoint slides which were presented. The slides note the amendments to the Act in Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (Closing Loopholes No.2), as well as providing background on the test for employment before and after the amendments. The slides state: • When HRC writes to individuals inviting them to issue an ‘Opt Out Notice’, it will also provide a pro- forma ‘Opt Out Notice’ the individual may elect to complete. • Whether an individual elects to complete an Opt Out Notice is a matter for the individual –HRC cannot ‘force’ an individual to do so. • Remember the potential implications for not providing an ‘Opt Out Notice’! • Important: you are entitled to procure your own legal advice (or do your own research) when considering whether to provide HRC with an ‘Opt Out Notice’. There are many articles available on the internet (often written by law firms) which explain the effect of these amendments. • Remember: the contents of these slides and any other information delivered with these slides do NOT constitute legal advice and should not be relied upon as such. [27] On 18 March 2025, Ms Youm emailed the Applicant and provided a template ‘Opt Out Notice. The email stated: Dear Amon, Please find attached the ‘Request to Opt Out’ letter along with the ‘Opt Out Notice.’ If you are happy to proceed, kindly sign and return it to us by 4 April 2025. Additionally, we are sharing an article from Australian Business Lawyers & Advisors explaining the components of the $175K high-income threshold, along with presentation slides for your reference. If you have any questions, please let me know. [28] The Applicant signed the notice on 18 March 2025. The notice states: Opt Out Notice Section 15AB of the Fair Work Act 2009 (Cth) I refer to my engagement with Hyundai Rotem Company (‘HRC’) as governed by Movement Engineering Pty Ltd contract for the provision of services with HRC dated 6th November 2023. I am aware that as a result of amendments to the Fair Work Act 2009 (Cth) (the ‘Fair Work Act’) the test for employment has been amended. I advise that I elect to ‘opt out’ of having section 15AA apply to my relationship with HRC. At the time of providing this ‘opt out’ notice I consider I earn at a rate greater than $175,000 per financial year from my engagement with HRC. [29] In August 2025, the Applicant proposed an amendment to the Consultancy Agreement. The covering email stated “The aim of this update was to assist HRC in the Fair work rule changes about contractors/employees etc”. The email was signed by the Applicant as “Principal -- 6 of 19 -- [2026] FWC 1104 7 Consultant” for Movement Engineering. The proposed amendments were substantial and were not agreed by the Respondent. [30] On 31 October 2025, Ms Youm sent the Applicant an email giving 4 weeks’ notice of the termination of the agreement with Movement Engineering. The email included minimum handover requirements “To ensure a smooth transition and proper project continuity”. [31] The Applicant alleges that the termination of the contract was a result of his participation in a workplace investigation. The Respondent denies that allegation. However, as this decision is concerned with the jurisdictional objection, it is not necessary to consider the evidence regarding the workplace investigation. Relevant provisions of the Act [32] Section 15AA of the Act was introduced in Closing Loopholes No.2. It provides: 15AA Determining the ordinary meanings of employee and employer (1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person. (2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person: (a) the totality of the relationship between the individual and the person must be considered; and (b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice. Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2. (3) Subsections (1) and (2) do not apply to the following provisions of this Act: (a) Divisions 2A and 2B of Part 1-3; (b) Part 3-1, to the extent that Part 3-1 applies only because of the operation of section 30G or 30R. -- 7 of 19 -- [2026] FWC 1104 8 [33] Sections 15AB states: 15AB Individual may elect that section 15AA does not apply (1) This section applies to a relationship between a person and an individual. Person may notify individual before the section 15AA commencement that they may give an opt out notice (2) The person may give the individual a written notice before the section 15AA commencement stating that the individual may give the person an opt out notice, if the person considers that the relationship may, on the section 15AA commencement, become a relationship in which the person is the employer of the individual because of the operation of section 15AA. Person may notify individual on or after the section 15AA commencement that they may give an opt out notice (3) The person may give the individual a written notice on or after the section 15AA commencement stating that the individual may give the person an opt out notice, if the person considers that the relationship may be a relationship in which the person is the employer of the individual because of the operation of section 15AA. Earnings requirement (4) The person must not give the individual a notice under subsection (2) or (3) unless the person considers that, when the notice is given, the individual's earnings for work performed under the relationship exceed the contractor high income threshold. Individual may give an opt out notice (5) The individual may give an opt out notice to the person, stating that the individual elects that section 15AA is not to apply to the relationship between the person and the individual: (a) if the person has given a notice to the individual under subsection (2) or (3) of this section--within 21 days of the giving of the notice; or (b) if the person has not given a notice to the individual under subsection (2) or (3) of this section--at any time after the commencement of this section. (6) The individual may give only one opt out notice in respect of the relationship. -- 8 of 19 -- [2026] FWC 1104 9 Opt out notice to include a statement about earnings (7) The opt out notice must state that the individual considers that the individual's earnings for work performed under the relationship exceed the contractor high income threshold when the opt out notice is given. Definitions (8) In this section, and in sections 15AC and 15AD: "opt out notice" means a notice under subsection (5). "section 15AA commencement" means the commencement of section 15AA of this Act. Note: Section 15AA of this Act is inserted by item 237 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, which commences in accordance with item 21 of the table in subsection 2(1) of that Act. [34] Section 15AA commenced on 26 August 2024. The Applicant signed a notice dated 18 March 2025. Therefore, the provisions relating to opt out notices given before the commencement of the section do not apply. [35] Although s.15AB refers to an “opt out notice”, there are in fact two notices contemplated by s.15AB. [36] First, there is the notice from the “person” in ss.15(2) and 15(3). “Person” is not defined in s.12 of the Act. Under s.2C of the Acts Interpretation Act 1901 (Cth), a person includes a corporate person, such as the Respondent. For ease of understanding, I will call this notice the “purported employer’s notice”. The purported employer’s notice may be given either before or after the commencement of s.15AA. The purported employer's notice is in writing and states that the individual may give an opt out notice. [37] There are two “considerations” which apply to the purported employer’s notice. First, the purported employer considers that the relationship may be – or may become, for notices issued prior to the commencement of s.15AA – a relationship in which the person is the employer of the individual because of the operation of s 15AA. Secondly, under s15AB(4), the person must not give the notice unless they consider that the individual's earnings for work performed under the relationship exceed the contractor high income threshold. The high- income threshold which applied in March 2025 was $175,000. [38] Under s.15AB(5) the individual (the purported employee) may give an opt out notice stating that they elect that s.15AA does not apply. Section 15AB(5) provides a timeframe for when the opt out notice must be given. Under s.15AB(5) it is either 21 days after the purported employer’s notice, or if there was no notice under ss.15AB(2) or 15AB(3), then any time after commencement of s.15AA. -- 9 of 19 -- [2026] FWC 1104 10 [39] According to ss.15AB(5) and 15AB(7), the opt out notice needs to states at least two things. First, that the individual elects that s.15AA does not apply to the relationship between the individual and the person. Second, it must state that the individual considers that the individual’s earnings exceed the contractor high income threshold at the time when the notice is given. [40] Section 15AC of the Act states: 15AC Effect of an opt out notice (1) This section applies if an individual gives an opt out notice to a person in respect of the relationship between the person and the individual in accordance with section 15AB. Opt out notice given before the section 15AA commencement (2) If the opt out notice is given before the section 15AA commencement, and is not revoked before that commencement under section 15AD, then: (a) by force of this section, section 15AA does not start to apply to the relationship on that commencement; and (b) section 15AA does not apply to the relationship after that commencement, unless the opt out notice is revoked. Opt out notice given on or after the section 15AA commencement (3) If the opt out notice is given on or after the section 15AA commencement, then: (a) by force of this section, section 15AA ceases to apply to the relationship on the day on which the opt out notice is given; and (b) section 15AA does not apply to the relationship on or after that day, unless the opt out notice is revoked. Note: If an individual does not give an opt out notice to a person in accordance with section 15AB, section 15AA starts to apply, or continues to apply, (as applicable) to the relationship between the person and the individual. [41] The effect of s.15AC is that when an opt out notice is given, section 15AA does not apply to the relationship. There is a distinction between where the opt out notice is given before the commencement of s15AA, versus when the opt out notice is given after the commencement of that provision. [42] As the purported opt out notice was given after the commencement of s.15AA of the Act, s.15AC(3) applies rather than s.15AC(2). Under s.15AC(3), where an opt out notice is given, s.15AA does not apply to the relationship from the date of the opt out notice. -- 10 of 19 -- [2026] FWC 1104 11 [43] For completeness, I note that an opt-out notice may be revoked by an individual (s.15AD). However, it is not in contest that the Applicant did not revoke the notice dated 18 March 2025. Consideration [44] I asked the Applicant to address whether the notice of 18 March 2025 was a valid opt out notice for the purpose of the Act. If the opt out notice complies with the requirements of s.15AB, then s.15AC makes clear that 15AA does not apply to the relationship from the date of the notice. [45] The Applicant argues that the notice of 18 March 2025 was not a valid opt out notice. He argues: 3. Section 15AB requires that an opt-out notice be genuinely voluntary, informed and given by an eligible contractor without coercion or undue influence. 4. The validity of the opt-out notice is therefore a threshold issue for the Commission 5. The Respondent’s own evidence demonstrates that: (a) the opt-out process was initiated by the Respondent through a company-wide communication to all contractors, inviting attendance at a presentation explaining the legislative changes and the opt-out mechanism. While the Respondent states that participation was optional, the process was nonetheless centrally organised, explained by the Respondent’s internal legal counsel and accompanied by a template opt-out notice prepared by the Respondent. In those circumstances, the Commission should closely scrutinise whether the Applicant’s election was truly independent and voluntary, or made within a framework controlled by the Respondent. (b) the Applicant attended a presentation organised by the Respondent, following a company-wide communication to contractors, at which the opt-out process was explained by the Respondent’s internal legal counsel While attendance may have been framed as voluntary, the process was clearly structured and facilitated by the Respondent, including the provision of legal explanation and subsequent distribution of a template opt-out notice. This context is relevant to whether the Applicant’s decision can properly be characterised as a genuinely independent and informed election. (c) a template opt-out notice was provided to the Applicant by the Respondent following the presentation, for the purpose of enabling contractors to elect to opt out of the operation of section 15AA of the Act The opt-out notice was prepared and distributed by the Respondent as part of a structured process controlled by it. This is relevant to the Commission’s assessment of whether the Applicant’s election was genuinely independent, or whether it was made within a framework designed and facilitated by the Respondent. (d) there is no evidence that the Respondent formed the requisite state of satisfaction under section 15AB(4), namely that the Applicant’s earnings exceeded the contractor high income threshold at the time the notice was given. … 9. In substance, the opt-out process was not undertaken in the context of an arm’s -- 11 of 19 -- [2026] FWC 1104 12 length negotiation between independent commercial parties, but rather occurred as part of a structured process initiated and facilitated by the Respondent and applied uniformly to its contractors. 10. In those circumstances, the Commission should carefully scrutinise whether the Applicant’s purported election was: (a) genuinely voluntary (b) properly informed (c) made independently of any practical or commercial considerations arising from the Applicant’s ongoing engagement with the Respondent. [46] There are a few points to note in interpreting ss.15AB and 15AC. I start by noting that neither provision is mentioned in the Explanatory Memoranda for the Closing Loopholes Bills, nor in the Minister’s second reading speech for those bills. Election [47] I accept the Applicant’s argument that an opt out notice should be “genuinely voluntary” and should be based on an “informed” decision. So much is clear from the use of the word “elects” in s.15AB(5). An election implies that there is an informed choice. However, it does not follow that the decision should be “made independently of any practical or commercial considerations arising from the Applicant’s ongoing engagement with the Respondent” as the Applicant submits. [48] The provision should be interpreted in a manner which gives effect to the statutory purpose. The evident purpose of the opt out provisions is to provide a process for individuals who are high income earners, who may become employees by virtue of s.15AA of the Act, to opt out of that provision. The Parliament clearly contemplates that there are individuals who may prefer to be an independent contractor rather than an employee. If I were to accept that the opt out decision should be “made independently of any practical or commercial considerations arising from the Applicant’s ongoing engagement with the Respondent” that would defeat the purpose of having a process for high income contractors to opt out. The reality is that the decision whether to opt out of s.15AA is a commercial and practical decision. It would make no sense for that decision to be made without those considerations. [49] It is an important contextual consideration that it must be considered that the individual’s earnings exceed the contractor high income threshold. Other provisions of the Act recognise that the high-income earners may be able to act in their own interests without needing the protection of the Act (for example, ss. 333F(1)(e), 382(b)(iii), 536LU and 536ND of the Act). This is relevant in considering the Applicant’s argument that he was essentially coerced into providing the opt out notice. [50] The Commission should be reticent to find that high income earning contractors, who have resources to seek independent advice and who, like in the Applicant’s case, were given time to consider the decision, have been coerced into providing an opt out notice in the absence of clear evidence supporting that finding. There is no such evidence here. I asked the Applicant during the hearing whether he could have taken legal advice prior to signing the notice. The Applicant confirmed that no one had held gun to his head, and that he had an opportunity to get legal advice. The Applicant was not forced, coerced or otherwise pressured into signing the notice. -- 12 of 19 -- [2026] FWC 1104 13 [51] The Applicant submitted: [A] template opt-out notice was provided to the Applicant by the Respondent following following the presentation, for the purpose of enabling contractors to elect to opt out of the operation of section 15AA of the Act The opt-out notice was prepared and distributed by the Respondent as part of a structured process controlled by it. This is relevant to the Commission’s assessment of whether the Applicant’s election was genuinely independent, or whether it was made within a framework designed and facilitated by the Respondent. [52] The Applicant’s assertion that the opt out process was not genuine because it was a process initiated by the Respondent is not convincing. [53] I fail to see how the Respondent’s presentation and template opt out notice means that the opt out notice was not freely given. Section 15AB expressly contemplates that the process may be initiated by the “person” (the principal/purported employer) telling the individual that they may give an opt out notice. The Respondent initiated the process, as is contemplated by the Act. I fail to see the issue with the Respondent providing a template opt out notice which meets with the requirements of the Act. [54] In the hearing, the Applicant alleged that the reference to “implications for the engagement” in the presentation was a threat to his engagement continuing. I reject this. There are certainly “implications” to being considered an employee, which may have been what the Respondent was referring to. Tax is one such implication. Income generated through the contract between the Respondent and Movement Engineering is taxed at the corporate income tax rate, rather than at the higher marginal tax rates. [55] Ms Youm was questioned by the Applicant’s representative in the hearing about what would have happened if the Applicant did not provide the opt out notice. It arose in the course of that questioning that there was one contractor who chose not to provide an opt out notice. Ms Youm gave evidence that that contractor is still engaged by the Respondent and their engagement was not terminated because they did not provide an opt out notice. Nothing happened in relation to that individual’s engagement. That undermines the Applicant’s argument that there was a threat to his engagement continuing. [56] I accept that the decision whether to give a s.15AB notice should be an informed decision. There is no evidence that the Applicant’s opt out notice was based on anything to the contrary. Consideration [57] As stated above, s 15AB requires consideration of certain matters Firstly, that the relationship may become an employment relationship because of s.15AA. Secondly, that the individual’s earnings exceed the high income threshold. [58] In addition to the submissions considered above, which relate to whether the Applicant elected to provide the notice, the Applicant submitted that the Respondent did not have “the -- 13 of 19 -- [2026] FWC 1104 14 requisite state of satisfaction under section 15AB(4)” in relation to the Applicant’s earnings. There is one glaring problem with this submission. Section 15AB does not use the word “satisfaction” or “satisfied”. The section says that the purported employer’s notice may be given if they “consider” that the individual’s earnings exceed the high income threshold. “Consider” is defined in the Macquarie Dictionary to mean: 1. to contemplate mentally; meditate or reflect on. 2. to regard as or deem to be: I consider the examination is justified. 3. to think; suppose. 4. to make allowance for. 5. to pay attention to; regard: he never considers others. 6. to regard with consideration or respect; hold in honour; respect. 7. to think about (a position, purchase, etc.) with a view to accepting or buying. 8. to view attentively, or scrutinise. 9. to think deliberately or carefully; reflect. [59] Consideration does not require satisfaction that the Applicant in fact earned above the high-income threshold. It just requires the Respondent to turn their mind to the issue. As Ms Youm gave evidence that she considered the Applicant earned over the threshold, I see no reason why s.15AB(4) has not been satisfied. The Respondent noted that the PowerPoint representation and subsequent email inviting an opt-out notice was provided for contractors the Respondent considered may become employees by operation of s.15AA. [60] Even if a higher standard than mere consideration applies, I still do not accept the submission. The idea that the Respondent could not be satisfied of the Applicant’s earnings for the engagement is somewhat perplexing, given the Respondent was the one paying the invoices. The Respondent provided a graph of the amounts invoiced by Movement Engineering each month. The amounts vary from month to month but for the twelve month period prior to March 2025, it appears that Movement Engineering charged the Respondent almost $700,000 excluding GST. Additionally, the Applicant’s daily charge out rate at the time the opt out notice was given was $1,350.00 per day. According to the Applicant, he worked 5 days a week. On the Applicant’s own evidence, with a daily charge out rate of $1,350 for five days a week, he would earn in excess of the high income threshold which applied at the time even if he worked only 6 months a year. Conclusion on opt out notice [61] I am satisfied that the opt out notice provided by the Applicant meets the requirements of the Act. As the opt out notice was not revoked, s 15AA did not apply to the relationship at the time the Consultancy Agreement was terminated. [62] The effect of that conclusion is that the analysis of whether the relationship was one of employment is to be conducted according to the High Court authority in Jamsek v ZG Operations Pty Ltd [2022] HCA 2 (Jamsek) and CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting). Analysis of the relationship -- 14 of 19 -- [2026] FWC 1104 15 [63] In Personnel Contracting the High Court held by majority: [43] While there may be cases where the rights and duties of the parties are not found exclusively within a written contract, this was not such a case. In cases such as the present, where the terms of the parties' relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship… [59] Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties' rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute, there is no occasion to seek to determine the character of the parties' relationship by a wide-ranging review of the entire history of the parties' dealings. Such a review is neither necessary nor appropriate because the task of the court is to enforce the parties' rights and obligations, not to form a view as to what a fair adjustment of the parties' rights might require… [63] To say that the legal character of a relationship between persons is to be determined by the rights and obligations which are established by the parties' written contract is distinctly not to say that the "label" which the parties may have chosen to describe their relationship is determinative of, or even relevant to, that characterisation. [64] The Consultancy Agreement which is the subject of this application was varied twice by written amendment. Those amendments did not substantially change the rights and obligations of the parties under the contract, in my view. The amendments included adding two additional Personnel, increasing the Applicant’s daily services fee, extending the agreement term and requiring four weeks’ notice of termination of the contract instead of two. [65] The Applicant did not directly argue in submissions that the Consultancy Agreement was a sham. In the hearing, he said under cross-examination that the intent of the contract was for him to be considered a contractor but that, in practice, he was treated as an employee. It would have been hard for the Applicant to argue that he did not intend to be a contractor when the contract commenced given the LinkedIn Messages show he was the one suggested a consultancy arrangement. [66] In considering the effect of the legal rights and obligations under the Consultancy Agreement what is clearly irrelevant is that the fact that it is called a Consultancy Agreement. The titles given to the parties under the Agreement are also irrelevant. [67] Under the Consultancy Agreement, the Respondent’s rights and obligations include: • Right to give lawful and reasonable directions to the Consultant or Personnel “in respect of the performance of the Consulting Services” (clause 3.1(g)). • Right to reasonably require information from the Consultant or Personnel concerning the consulting services (clause 3.1(i)). • Right to request timesheets and records from the Consultant and Personnel in relation to the consulting services (clause 3.1(l)). -- 15 of 19 -- [2026] FWC 1104 16 • Obligation to “provide to Consultant in a timely manner access to Company Facilities and other assistance, Documents, information and materials as the Consultant may reasonably require for the performance of the Services”(clause 4.1 (a)) • Obligation to pay the Consultant fees for work performed as Services in accordance with the Schedule 2 fee schedule (clause 6.1) • Obligation to pay fees within 30 business days of the date of an invoice (clause 6.3) • Right to IP in “Documents, software and training programs and/or manuals or Products in any way created and developed under or pursuant to the Agreement and/or the Consulting Services, excluding the Pre-existing Materials” (clause 7.1) • Obligation to return confidential property or IP belonging to the other party on completion or termination of the Agreement (clause 8.4) • Right to terminate the Agreement for any reason by giving 4 weeks written notice to the other party (clause 10.1) [68] The Applicant submitted: 20. On a proper construction of the contractual arrangements in this matter, the following features are apparent: (a) the contract provides for the Applicant to perform work subject to the Respondent’s direction and requirements (b) the performance of work is tied to locations and projects determined by the Respondent (c) the engagement contemplates the Applicant making himself available to perform work as required by the Respondent (d) the Applicant’s role is defined in a manner consistent with a functional position within the Respondent’s engineering operations, rather than the provision of discrete, project based services as an independent enterprise (e) the contractual arrangements reflect integration of the Applicant within the Respondent’s organisational structure. 21. These features are indicative of a relationship in which the Applicant provides labour as part of the Respondent’s business, rather than operating an independent business of his own. Properly characterised, this is consistent with an employment relationship, even when assessed solely by reference to the contract. [69] The difficulty with the Applicant’s submissions above is that they do not engage with the fact that the Applicant as an individual is not party to the Consultancy Agreement and has no rights or obligations under the Agreement. [70] The feature of Movement Engineering as a separate legal entity is of great significance. When the Applicant argues that he was required under the contract to make himself available to perform work as required by the Respondent and was subject to directions of the Respondent, that is not accurate. Under clause 3.1, Movement Engineering warrants and represents certain things to the Company. Those warranties and representations include that it will make its Personnel available to perform work when reasonably required by the Respondent and that Movement Engineering and that its Personnel will follow all lawful and reasonable directions of the Respondent in relation to the Consulting Services. The Applicant was listed as Personnel -- 16 of 19 -- [2026] FWC 1104 17 of Movement Engineering in Schedule 2 of the Agreement, but this could have been changed with written consent of the Respondent (clause 2.4). [71] The Personnel under the Consultancy Agreement have no actual obligations under the Consultancy Agreement. They are not party to the Agreement. The Agreement provides that Movement Engineering will ensure its Personnel will do certain things but does not prescribe the obligations of the Personnel to the Consultant. Those obligations sit outside the agreement. The Consultancy Agreement is also clear that no third parties have rights under the Agreement (clause 18.1). [72] The Applicant’s arguments regarding his supposed obligations under the Consultant Agreement are similar to those made by the Respondents in Jamsek. In Jamsek, Kiefel CJ, Keane and Edelman JJ observed: [65] In support of these contentions, counsel for the respondents advanced a strained interpretation of the 1993 contract. It was said that the contract contemplated that certain of the obligations contained therein (such as the supply of the trucks) were obligations of the partnerships, while other obligations (such as the obligation to hold a current driver's licence) could only sensibly be seen as applying to Mr Jamsek and Mr Whitby as individuals. This interpretation was said to be open on the loose drafting of the 1993 contract, including the oscillating use of the expressions "his" or "the Contractor" to describe the relevant obligor. In essence, though the 1993 contract comprised but the one document, in reality the document contained a "multiplicity" of contracts. Once that premise was accepted, the respondents submitted, the obligation in clause 2.1(a) of the 1993 contract to undertake carriage as reasonably directed – an obligation attaching to the respondents as individuals – manifested a right of control over the work of the respondents that was so comprehensive as to establish that they were employees. [66] As the appellants rightly submitted, the contract between the partnerships and the company did not divorce the obligations concerning provision of the trucks from the obligations concerning provision of the labour of Mr Jamsek and Mr Whitby. Both aspects were bound up in the services provided by the partnerships. As both sides to the contract plainly knew, the ownership of the trucks alone was of no use to anyone unless they were operated by drivers with the skills of the respondents. The two elements had to be deployed together to provide the services to earn the fees charged by the partnerships to the company. [67] The 1993 contract (and the subsequent contracts) expressly contemplated that the partnerships stood on one side of the bargain and the company stood on the other, and that the partnerships were to provide carriage services by trucks driven by the active member of the partnerships in return for payment to the partnerships. And insofar as some provisions of the 1993 contract contained obligations which related to an individual, it is not open to doubt that those obligations applied to the active member of the partnership, for whom the partnership was responsible. [73] Like the contract in Jamsek, the Consultancy Agreement has an errant use of “he” and “his” at clause 3.3 when referring to the Consultant (it should really be “it” and “its” when referring to a company). However, that error is not enough to suggest that the Applicant as an individual, as opposed to Movement Engineering, has rights under the Consultant Agreement in circumstances where the parties to the Agreement are clearly defined. [74] Further and alternatively, to the extent the degree of control of the Respondent under the contract is said to be significant such that the relationship is likely to be one of employment, I reject that submission. Movement Engineering could choose Personnel to perform work. The caveat is that those Personnel had to be suitably qualified. However, given the QTMP is a government project involving public transport infrastructure, it is clearly subject to quality and -- 17 of 19 -- [2026] FWC 1104 18 safety requirements. It makes sense that the Respondent would require some level of assurance that the Personnel had appropriate qualifications. Other than that, it was a matter for Movement Engineering to choose its Personnel. The Consultancy Agreement did not prevent the Applicant undertaking other work. It only prevented Movement Engineering from conducting other business while on the Respondent’s premises or while using the Respondent’s facilities. The contract does specify a location for work in Schedule 1, but the location is just stated to be Brisbane generally. The requirement for Movement Engineering and the Personnel to perform work on projects determined by the Respondent is also not surprising given the contract is for the purpose of allowing the Respondent to fulfil its requirements as a subcontractor on the QTMP project. [75] The Applicant’s argument that he was integrated into the business through the Consultancy Agreement is misplaced. Schedule 1 sets out the scope of the consulting services. It uses the words “Job Title” and “Reporting Manager”. The Schedule describes background to the project and then sets out what is essentially a position description of what is required. Schedule 1 in my view is an example of poor drafting. However, clause 1.3 is clear that to the extent of inconsistency between a schedule of the Agreement and the main body of the Agreement, the latter prevails. I consider Schedule 1, insofar as it contains references to a job title and a reporting line is inconsistent with the main body of the Agreement. The Consultancy Agreement does not establish a role for one person. The Consultancy Agreement establishes services for the Consultant to provide through its Personnel (which in this case included three people). Any reliance on that schedule is therefore misplaced. [76] I am satisfied that in considering the rights and obligations contained in the written agreement, the Applicant is not an employee. Therefore, the Applicant has not been dismissed in accordance with s.386 of the Act. [77] There is one final matter I must address. It arose following cross examination of the Respondent’s witness, KS Cho that Mr Cho had texted Ms Youm, the Respondent’s other witness while under cross-examination. This is of course inappropriate. I understand that the text message said (in Korean) that Mr Cho did not understand the question being asked during cross-examination. Ms Youm replied in Korean that Mr Cho that if he does not understand, he should just ask. I note the transcript will show that I had asked the Applicant’s representative to slow down when asking questions to Mr Cho, to ensure that Mr Cho understood the question. The Applicant’s representative also asked Mr Cho about the Consultant Agreement, which he was not a part of negotiating and has not seen. The Respondent apologised to the Commission and I consider that the Applicant has not been prejudiced as a result of what happened in cross- examination. In any event, Mr Cho primarily gave evidence on the relationship between the parties, in practice. Given my conclusion that s15AA does not apply, Mr Cho’s evidence on how the contract was performed in practice does not form part of my analysis of the relationship between the parties. -- 18 of 19 -- [2026] FWC 1104 19 [78] The application is dismissed. I Order accordingly. DEPUTY PRESIDENT Appearances: B Gu for the Applicant D Murray for the Respondent Hearing details: 23 March 2026 Hearing via Microsoft Teams Printed by authority of the Commonwealth Government Printer <PR798212> -- 19 of 19 --