Alana Kariuki v Pearl Finance Goup Pty Ltd Trading AS S W Black Travel [2025] FWC 2567

1 Fair Work Act 2009 s.365—General protections Alana Kariuki v Pearl Finance Goup Pty Ltd Trading AS S W Black Travel (C2025/2518) DEPUTY PRESIDENT O’KEEFFE PERTH, 1 SEPTEMBER 2025 Application to deal with contraventions involving dismissal - section 365 application – jurisdictional objection: Applicant not an employee and thus not dismissed – jurisdictional objection upheld – application dismissed. [1] Alana Kariuki (the Applicant) has made an application to the Fair Work Commission (FWC) under s.365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges she was dismissed from her employment with Pearl Finance Group Pty Lt t/as S. W. Black Travel (the Respondent) in breach of the general protections provisions of the Act. The Respondent objects to the FWC dealing with the application on the basis that the Applicant was a contractor rather than an employee and as such was not dismissed within the meaning of s.386 of the Act. Hearing [2] The matter was to be heard in person and as such a court book was prepared. However, due to medical reasons for which evidence was provided to the FWC, there were some difficulties in having the Applicant conduct a hearing as a self-represented person. Having reviewed the material provided by the parties by way of submissions and evidence I formed the view that it was possible for me to decide the issue of whether the Applicant was an employee on the papers. Background [3] It is not contested between the parties that the relationship between them came about as a result of the Applicant responding to a job advertisement1 for a part time travel adviser. In her approach to the Respondent about the position, the Applicant asked as follows: “I’m seeking a role which is contracted through my company. Would you be happy to have a contractor arrangement in place rather than an employee?”2 [4] The Respondent advised the Applicant via email3 on 22 January 2025 that he was open to contracting. It appears from there that the parties have discussed rates of remuneration for [2025] FWC 2567 DECISION -- 1 of 8 -- [2025] FWC 2567 2 the role and then entered into a written “Contractor Agreement”4 to regulate the Applicant’s working arrangements. That document states, in part, as follows: “The Contractor is an independent contractor and not an employee of the Company.”5 [5] The relationship between the parties was terminated after approximately three weeks, when the Respondent advised the Applicant via SMS6 that the engagement between them was at an end. The Applicant then filed her application with the FWC alleging dismissal in breach of general protections, specifically that the dismissal resulted from a temporary absence due to illness. Was the Applicant an employee? [6] The FWC is not required to determine at this point whether the dismissal of the Applicant was in breach of the general protections provisions. Instead, it must decide whether the Applicant was an employee and thus protected from such a dismissal. I note that the Applicant’s engagement with the Respondent began on 24 February 2025. As such, all of the period of engagement occurred after s.15AA of the Act took effect on 26 August 2024. [7] That section was inserted into the Act to over-ride the findings of the High Court in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek). Those decisions affirmed the primacy of the terms of the written contract in determining whether a particular relationship was one of employment or one of contracting. Section 15AA requires the FWC to examine instead the practical reality and true nature of the relationship. [8] In undertaking such an examination, the FWC will draw upon the various indicia and tests established through case law over a number of years. A useful summary of the matters considered in this approach is provided in the decision of Justice Wigney in JMC Pty Ltd v Federal Commissioner of Taxation. In that decision, his Honour was – using the approach in Personnel and Jamsek - examining the sorts of matters that might be found in a written contract document to determine if it is a contract of service – employment – or a contract for services – independent contractor. Notwithstanding that it was in the context of those cases, it provides a helpful list of features to be examined when examining a relationship to determine its true nature. His Honour stated as follows: “..the contractual provisions that may be relevant in determining the nature of the relationship include, but are not limited to, those that deal with the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the deduction of income tax, the delegation of work and the right to exercise direction and control.”7 “…the characterisation of the relationship as one of service or employment involving an employer and employee, as opposed to a relationship involving an independent contractor providing services to a principal, often hinges on two considerations. The first consideration is the extent to which the putative employer has the right to control how, where and when the putative employee performs the work. The second is the extent to which the putative employee can be seen to work in his or her own business, as -- 2 of 8 -- [2025] FWC 2567 3 distinct from the business of the putative employer – the so-called “own business/employer’s business” dichotomy.”8 “…a “label” which the parties may have chosen to describe their relationship is not determinative of the nature of the relationship and will rarely assist the court in characterising the relationship by reference to the contractual rights and duties of the parties.”9 [9] In the present matter, there is no argument that the parties themselves entered into what they characterised as a contracting relationship. However, as can be seen from the analysis of Wigney J, the label they affixed is not determinative and so I must examine the relevant indicia to make a determination. As with many examinations of this kind, it may be that the relationship shows signs of both employment and contracting. In such circumstances, it falls to the FWC to make a determination that best fits the relationship taken as a whole. In doing so, I note that the relationship lasted for a very short period of time and any analysis undertaken must be of necessity be limited to that brief period. Evidence and Submissions [10] Both parties tendered statements in this matter and in both cases those statements were a mix of submission and evidence. I will deal with the material as appropriate to its nature in my assessments below. The Respondent made submissions with respect to the various matters to which the courts and the FWC have turned their attention when assessing a relationship to determine its true nature. A summary of his position is as follows. [11] In the first instance, the Respondent notes that the arrangement was entered into by two companies, Pearl Finance Group Pty Ltd (Pearl) on behalf of the Respondent and Souvertjis Enterprises Pty Ltd (Souvertjis) on behalf of the Applicant. The payment arrangements were that Souvertjis would invoice Pearl for the services provided and would be responsible for all arrangements for taxation and superannuation for the Applicant. [12] The Respondent submits that the Applicant had complete control over when she completed her hours of work each week, being free to choose both days and hours of work. She could also determine from where she carried out her duties and how she completed her work. With respect to the latter, the Respondent submits that some general guidance was provided but the Applicant was not required to follow such guidance and could service leads as she saw fit. Further, the Applicant made a decision to use any templates offered to her and instead used her own processes. [13] While the Applicant was held to performance standards, the Respondent submits that this is usual practice to protect the reputation of the Respondent but should not be implied to be control of the Applicant’s work. The Respondent further noted that the Applicant retained control over how much work she did in any week. The Contractor Agreement10 did not set a minimum entitlement for payment but rather set an upper limit being 20 hours. [14] With respect to the notion of whether the Applicant was actually operating a business, the Respondent submits that the Applicant was required to – and did – hold her own insurances for professional indemnity and public liability. She was also liable for any claims or losses -- 3 of 8 -- [2025] FWC 2567 4 arising from her actions or inactions while performing the services set out in the Contractor Agreement. [15] The Respondent further submits that the arrangement allowed the Applicant to build her own client base, and ownership would remain with the Applicant beyond the engagement with the Respondent. In addition, the Applicant was free to carry out work for clients other than the Respondent. The Respondent submits that it did not provide the Applicant with any tools albeit that for security reasons the Applicant had access to the Respondent’s computer systems. The Respondent submits further that there is no evidence that the Applicant was prevented from delegating the work to others and that she was free to do so. [16] With respect to the Applicant’s submissions and evidence, I note that in some cases the Applicant made submissions that were nothing more than speculation. Three examples should suffice to clarify my thinking. The first two examples of this are found at [3.1] and [3.2] of her submissions, where she imputes motives to the Respondent’s actions that are not in any way supported by evidence. The third is at [5.1] where she suggests that the absence of a sub- contracting clause in the Contractor Agreement drafted by the Respondent indicates an intent that the arrangement be one of employment. I have avoided engaging with such unsubstantiated and speculative arguments as they do not in any way assist the FWC in its task of characterizing the relationship between the parties. [17] The Applicant submits that the role she undertook was originally advertised as a employee position. She says that she asked for it to be a contracting role because she wanted to avoid being controlled in how she performed the work. However, she submits that in practice the role itself was not varied to accommodate a contractor as opposed to an employee. [18] She submits that therefore the applicable job description is that which applied to the role in its form as an employment arrangement. She further submits that the performance criteria found in that job description thus applied to her and this should be regarded as a “hallmark of employment.”11 The Applicant notes also that there was a requirement that management instructions were to be followed in addition to meeting these performance targets, something she submits is at odds with the notion that contractors are only held to a standard of “due care and skill.”12 [19] The Applicant developed this theme by arguing that her activities were subject to constant monitoring – a claim rejected by the Respondent – via methods such as reading emails, calling “regular” meetings and by using a call recording system. The Applicant claims that at the commencement of her tenure there were two meetings to provide her with detailed instructions on how to perform the role. The Applicant further claims that there were numerous phone calls and 162 text messages between herself and the Respondent between 28 February 2025 and 18 March 2025. I note these texts were not in evidence, but the Applicant had claimed to be in a position to provide them. [20] The Applicant did have in evidence an email from the Respondent dated 18 March 202513 where he insisted that in response to an instruction he had issued regarding a process “treat this as a management directive”. She also drew my attention to a text message14 where the Respondent advised her that he had been intending to discuss with her what needed to be achieved and – perhaps most pertinently – how it was to be achieved. -- 4 of 8 -- [2025] FWC 2567 5 [21] The Applicant also addressed the issue of financial responsibility and risk, but I found her submissions on this matter to be unpersuasive and essentially speculation about the Applicant’s motives for various events. In addressing the issue of tools and equipment the Applicant noted that she was required to use the Respondent’s internal systems. While she provided her own phone and laptop, she claimed that this was not unusual in employees who work from home. [22] With respect to the ability to delegate work, I note firstly my comments at [16] above and suggest that the Applicant’s submission at [5.2] of her submissions is again mere speculation. Her argument at [5.3] is difficult to fathom and seems to have misconstrued the issue with subcontracting: to whit, that she was free to allow another person to perform the work for her. There is nothing in the clause to which she refers in the Contractor Agreement which can in any way be construed as applying a restriction on this. The clause is to prevent her from taking customers from the Respondent and steering them to her business or another business. [23] The Applicant further submitted that the Respondent exercised control over her hours and cited two documents she had provided as evidence in support of this proposition. These documents15 record a text conversation about working hours. While the Applicant makes claims about the significance of these documents, I note that the Respondent says – in relation to working hours – as follows (with my emphasis): “Please let me know your intended work hours and availability each Friday for the following week. I don’t mind when you work – but I need to know when you are working.”16 [24] This to me does not appear to be the Respondent exercising control over when the Applicant works. He had tried to schedule a meeting with the Applicant on a day when he believed she was working only to find out that she was not actually working on that day. His message conveys to a reasonable person nothing more than a request to know when the Applicant was working without providing any directions as to when this should be. [25] The Applicant provides evidence regarding the in the form of two emails17 which she says highlights that she was required to fill out timesheets, which she submits “Fair Work” says is characteristic of an employment relationship. I note two things. Firstly, the Applicant was paid for the number of hours she worked, based on the contractual arrangement. Thus, the Respondent needed to have a record of the hours worked. Secondly, I note in the first of the emails themselves, the Respondent says as follows: “Timesheets: I have formed a reasonable suspicion that your company has invoiced S.W.Black Travel incorrectly.” From this it is reasonable to conclude that the timesheets referred to were part of an invoicing system rather than a payroll system. [26] The Applicant makes a further submission that the contractual arrangement between the parties was such that she had an expectation of indefinite / ongoing work. The document -- 5 of 8 -- [2025] FWC 2567 6 contains no end date albeit that I notice it does contain termination provisions. She further submits that the Respondent had undertaken reference checking before engaging her which she says indicates an employment relationship. She also proposes that as part of her taking the engagement with the Respondent, she needed to reduce hours worked with another business, although I am uncertain as to the relevance she attaches to this. [27] The Applicant then provides two cases supporting the proposition that she was an employee. The first was the decision of Deputy President Slevin in Pascua v Doessel Group Pty Ltd [2024] FWC 2669 (Pascua) and the second was the decision of Deputy President Wright in Franklin v Trustee for World Gym Melbourne Investment Unit Trust [2024] FWC 3045 (Franklin). [28] In his reply submissions, the Respondent raised a number of concerns with the Applicant’s submissions. He notes that the recording of calls does not occur with outgoing calls unless the person making the call chooses to do so. He provides phone records showing that the calls referred to between himself and the Applicant - see [19] above – were with one exception initiated by the Applicant herself. He rejects the notion of excessive monitoring. There were a number of other submissions with respect to claims made by the Applicant, but they are matters that I have already addressed or do not regard as relevant for the purposes of my analysis. Consideration [29] In the first instance, I think it is important to note that in cases where the FWC is assessing employee versus contractor, it is usual to find elements of both kinds of engagement. What is required is an assessment based on the overall picture and in that assessment, it is the case that all scenarios have their own unique circumstances. Precedents can of course assist but it is unlikely that two cases will ever be exactly the same. [30] For that reason, I am minded to highlight some differences between the cases referred to by the Applicant and this case. I distinguish Pascua in that it was decided in the era when Jamsek and Personnel prevailed. The employee in question could not delegate the work she was doing, was found not to be conducting her own business and her contract itself referred - in certain places - to employment. Franklin is a different case again. While it was decided subject to Jamsek and Personnel there was no written contract of engagement. However, the employee in that case had no control at all over his hours of work which were in effect set for him by the employer and he was found not to be operating in his own business. [31] In the present matter, I find as follows. Firstly, while the position was advertised as employment, the parties agreed – ironically at the Applicant’s initiative – to operate based on a contract for services. I note that the Applicant already had a business operating in the travel industry and her own client list.18 It was this business that contracted with the Respondent. Although there was some discussion about insurance it appears that the Applicant was ultimately responsible for her own insurance. She paid her own tax and superannuation, and she was paid on invoices albeit that they recorded time worked. All of this points to a contract for services -- 6 of 8 -- [2025] FWC 2567 7 [32] I find also that the Applicant had the ability to control her hours of work. While she needed to advise the Respondent when she was working for communication purposes, it was clear that his only requirement may have been around a short meeting on Fridays. Further, the contracted arrangement allowed her to choose how many hours she worked, subject to a maximum of twenty per week. [33] With respect to tools and equipment I have considered the Applicant’s submission that using one’s own computer when working from home is common. I am not sure that there is anything in evidence to suggest it rises to the level of common, but I nevertheless accept that it does happen. [34] However, in this instance I draw a distinction because I cannot see how the Applicant could propose the contractor arrangement if she did not have the computer. If she was an employee, it is reasonable to expect that the employer would provide a computer for her. I am not convinced that a contractor could have the same expectation. I suspect that those employees who do work from home on their own computers do so to get the advantages of working at home as opposed to being required as a condition of employment to have a home computer. [35] I find also that there is nothing to suggest that the Applicant could not delegate work and I suspect that in all likelihood she could - although in the time she was engaged she did not. Whether this would have worked well in practice and what the Respondent might have made of it is difficult to say. This difficulty arises with respect to certain other indicia such as whether additional control may have been – in time - imposed over hours and methods of working and it arises because the relationship between the parties was very brief. I suspect that over time the relationship may have changed into something different – depending on the success or otherwise of the Applicant in performing the work. It seems that control was an issue for the Applicant, and it further appears that the parties have had some discussions about the level of control exercised by the Respondent. [36] However, it is difficult to conclude that in the short time the relationship lasted the Respondent undertook to exercise such control as to render a relationship that was intended to be one of contract for services into an employment arrangement. It may have done so over a greater time period. The reality is that the Respondent had initially expected to have an employee. At the Applicant’s request he had agreed to undertake the role on a contract for services basis. The parties have clearly had some “teething” issues in the first few weeks getting the arrangement into a workable state. Evidence of this can be found in such things as the Respondent’s use of the phrase “management directive” (see [20] above) which is somewhat unusual language to use with a contractor. “Direction from the client” might have been preferable. [37] How this and other matters may have been resolved is difficult to say because the relationship ended at the three-week mark. At that three-week mark, I think that on balance the relationship looks more like a contractor than an employee, notwithstanding that it had some elements of employment. Again, I suspect that some of the employment elements may have taken on a greater significance at a later time but what the parties may have done in the future is not relevant to an assessment of how they conducted their relationship during its brief tenure. Conclusion -- 7 of 8 -- [2025] FWC 2567 8 [38] For the reasons set out above I find that on balance the relationship at the relevant time between the Applicant and the Respondent was one of principal and contractor. On that basis the FWC does not have jurisdiction to deal with the matter. An order dismissing the application will issue. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR791255> 1 See Court Book at pages 95-97. 2 See Court Book at page 101 paragraph numbered 1. 3 See Court Book at page 100. 4 See Court Book at pages 21-24. 5 See Court Book page 23 paragraph 12. 6 See Court Book page 48. 7 JMC Pty Ltd v Federal Commissioner of Taxation [2022] FCA 750 at [21]. 8 Ibid at [23]. 9 Ibid at [26]. 10 See Court Book at page 21 at [4]. 11 See Applicant’s Submissions at [2.2]. 12 Ibid at [2.3]. 13 See Court Book at page 109. 14 Ibid at page 126. 15 See Court Book at pages 142 and 143. 16 See Court Book at page 142. 17 See Court Book at pages 144-148. 18 See Court Book page 62 at [39b]. -- 8 of 8 --