Anna Camilleri v Angela Spiegel [2021] FWC 2934

1 Fair Work Act 2009 s.394—Unfair dismissal Anna Camilleri v Angela Spiegel (U2021/650) COMMISSIONER SIMPSON BRISBANE, 21 MAY 2021 Application for unfair dismissal – jurisdictional objection – Applicant was not employed by the Respondent – Application dismissed. [1] On 27 January 2021, Ms Anna Camilleri made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been unfairly dismissed by her employer, Angela Spiegel (The Respondent). [2] In the Form F3 – Employer Response to unfair dismissal application, Ms Spiegel objected to the application on the basis Ms Camilleri was not an employee, but rather an independent contractor under the Act. [3] On 3 February 2021, Ms Spiegel sent correspondence to the Commission noting she did not wish to attend conciliation. Subsequently, conciliation did not take place and the matter was allocated to me. [4] I listed the matter for a Mention by Telephone on 23 February 2021, where I issued directions for the filing of materials and listed the matter for a Jurisdictional Hearing by Video using Microsoft Teams on 18 March 2021. During the proceedings the parties agreed for the matter to proceed as a determinative conference. [5] Section 382 of the Act outlines the requirements for a person to be protected from unfair dismissal: “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; [2021] FWC 2934 DECISION -- 1 of 12 -- [2021] FWC 2934 2 (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.” [6] I must determine whether the Respondent was the employer of Ms Camilleri. In considering the application, the evidence discloses two separate jurisdictional issues. Ms Camilleri contends that the Respondent was her employer. The Respondent contends that Ms Camilleri was an independent contractor, but further, regardless of whether Ms Camilleri was an employee which is disputed, Ms Camilleri was not an employee of the Respondent. By way of background Ms Spiegel holds Enduring Power of Attorney and is the administrator for her parents and is the Guardian and administrator for her sister and her sister’s NDIS nominee. Ms Spiegel’s parents and her sister all reside in the same household with her, and Ms Spiegel coordinates service providers for her family members. [7] Ms Camilleri relied upon her originating Form F2 application and her written submissions headed jurisdictional document with attachments 1 to 42 which was admitted into evidence1. Ms Camilleri also relied on a further annotated version of the statement of Ms Spiegel and an annotated document in relation to a separate General Protections application made by Ms Camilleri (which was withdrawn), an annotated response to Ms Spiegel’s unfair dismissal submission, a statement from Dr Alexander Booth, as well as a series of character references. Given the statement of Dr Booth dealt primarily with the substantive issues in the case should it move past the jurisdictional issue, it was not admitted as evidence. [8] Ms Spiegel relied upon her Form F3 Response and attachments 1 to 12, a witness statement of 65 paragraphs which was admitted into evidence2, and a document filed by Ms Sharon Johnson dated 3 March. Was Camilleri an independent contractor? [9] The factors/indicia this Commission needs to consider in assessing whether an Applicant was an employee or an independent contractor during the relevant period of employment were provided in the Full Bench decision in Kimber v Western Auger Drilling Pty Ltd.3 The Full Bench endorsed the general approach to distinguishing employees and independent contractors provided in Jiang Shen Cai T/A French Accent v Michael Anthony Do Rozario (French Accent)4 which 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 -- 2 of 12 -- [2021] FWC 2934 3 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 Ltd5 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. -- 3 of 12 -- [2021] FWC 2934 4 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. -- 4 of 12 -- [2021] FWC 2934 5 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.” [10] It was further noted in the Full Bench of Kimber v Western Auger Drilling Pty Ltd (Kimber)6 that: “The courts have developed a multi-factorial approach, in which there is no single decisive criterion to determine whether a contractual relationship is one of employment or one subject to a contract for services. This approach requires the consideration of the various indicia as summarised in French Accent set out above. It is also clear from the decision of the Full Bench of the Federal Court in ACE Insurance Limited v Trifunovski 7 and others, that no one single criterion will necessarily be determinative and that each matter will turn upon the particular circumstances of the case, with the decision maker weighing all the relevant factors.” [11] The fundamental question for the Commission as stated in Abdalla v Viewdaze Pty Ltd t/a Malta Travel 8 and endorsed in French Accent; “… will always be 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 punitive worker could be said to be conducting a business of his or her own. This question is answered by considering the terms of the contract and the totality of the relationship.” -- 5 of 12 -- [2021] FWC 2934 6 Consideration Evidence concerning funding arrangements [12] It is common ground between the parties that the association between Ms Spiegel and Ms Camilleri started in May of 2019 when Ms Camilleri started to perform work to support Ms Spiegel’s parents, as a part time employee of Centacare Ms Spiegel confirmed it was her understanding Centacare employed Ms Camilleri as a part time employee during this time for work in connection with Ms Spiegel’s parents. [13] Ms Camilleri maintained that when she started working, she was always working for both of Ms Spiegel’s parents and for Ms Spiegel’s sister. From around 26 June 2019, Ms Camilleri started to receive payment to perform work in connection with Ms Spiegel’s sister through the National Disability Insurance Scheme (NDIS), and Ms Camilleri provided invoices for this work through her company called Mokshanna to an entity called ‘Integra’, the Plan Manager for Ms Spiegel’s NDIS funds. Ms Camilleri said initially Mokshanna was not a proprietary limited company and only became one after a period of time. [14] Ms Camilleri said that every invoice sent through from Mokshanna was authorised by Ms Spiegel for My Plan Manager, ‘Integra’ or Let’s Get Care. Ms Camilleri said Ms Spiegel had to approve the invoices in order for Ms Camilleri to get paid. [15] Ms Spiegel said the way ‘Integra’ worked concerning Ms Spiegel’s sister, was that Ms Camilleri or Mokshanna would send invoices to them directly and copy Ms Spiegel in for information, and Ms Spiegel did not have to approve the invoices for payment. [16] Ms Spiegel said the invoices she had to approve were for Mable, an online platform for people who provide support for people who receive government funding through My Aged Care or the NDIS, when Ms Camilleri provided services to Ms Spiegel’s parents through the Let’s Get Care service provider. Ms Spiegel said this arrangement with Mabel started on 21 February 2020. [17] Ms Spiegel said the organisations that paid the invoices were My Plan Manager and ‘Integra’, and that was the way the government had set up the funding. Ms Spiegel said she was copied in on the invoices when sent to the Plan Manager, but that was the limit of it. While the evidence was that Ms Spiegel had to approve invoices paid through the Mable online system, this was not the case for My Plan Manager. [18] Ms Spiegel said Centacare was initially the service provider for her parents and that was changed to Let’s Get Care, and Ms Camilleri chose for the payment to go through Mable rather than Aquamarine which is a different kind of business. Ms Spiegel explained that ‘Integra’ is a Plan Manager as is My Plan Manager. It was agreed ‘Integra’ is a Plan Manager in connection with the NDIS, and Mable is connected with My Aged Care Services through Let’s Get Care. [19] Ms Spiegel said on 28 September 2020, Ms Camilleri started to send her invoices direct to Let’s Get Care for services provided to Ms Spiegel’s parents. Ms Spiegel said that Let’s Get Care, Mable and Centacare are associated with her parents, and NDIS payments for her sister were done initially through My Plan Manager, then ‘Integra’, then back to My Plan -- 6 of 12 -- [2021] FWC 2934 7 Manager again. That was because when NDIS was new, My Plan Manager had some teething problems affecting payments for some service providers and the switch was made to ‘Integra’, however those issues were sorted out and the Plan went back to My Plan Manager. Ms Spiegel said no tax was deducted from invoice payments. [20] Ms Camilleri said the Plan for Ms Spiegel’s sister was managed by Ms Dana Haywood at Dementia Australia. Ms Spiegel explained that Dana Haywood was the NDIS Coordinator for Dementia Australia, which is a separate organisation to Plan Managers, and needs to be separate for governance rules concerning the management of taxpayer’s money. [21] Ms Spiegel said the invoices prepared by Mokshanna were sent to ‘Integra’ or My Plan Manager. Ms Spiegel confirmed the money that sits within her sister’s Plan is accessed by My Plan Manager or ‘Integra’, and the money was never directly handled by her. Ms Spiegel gave evidence she did not receive the money available within the Plan into her personal account and did not have access to the funding, and it was the Plan Manager that had access to that money. [22] Ms Camilleri accepted that was correct, with one exception when Ms Spiegel said her sister was paid for one month for an NDIS funding gap and the NDIS refunded that. For that one month, Ms Spiegel said the invoice was sent from Mokshanna to Ms Spiegel. Ms Camilleri said Ms Haywood overcited everything and if Ms Camilleri had a problem, she would contact the Plan Manager to sort it out. [23] Aside from the question as to whether Ms Camilleri was engaged in a contract for service, or a contract of service, there is firstly a question as to who the contracts were with. If the contractual relationships were not with Ms Spiegel, then the question as to the nature of the contractual relationships is moot, and the application must fail. Evidence concerning employment relationship [24] Ms Camilleri said towards the later part of her employment, she had been proactively arranging to make a formal Service Agreement with Ms Spiegel on the basis of job security, workplace protection and acknowledgement that her role was her principle and primary livelihood, with shifts being discussed and formalised into her work planner well into May 2021 in collaboration with Ms Spiegel. [25] Ms Spiegel said her parents are both pensioners funded through My Aged Care Service, and the service provider chosen was Centacare, later changed to Let’s Get Care. Ms Spiegel said under them come a range of other service providers and the payments are made through Let’s Get Care, and for a while Ms Camilleri was paid though Mable. [26] Ms Camilleri said she worked as a part time employee with Centacare, and then Ms Spiegel terminated the contract with Centacare because Ms Spiegel said she wanted an arrangement where Ms Camilleri would be the carer provided by Centacare to her parents. [27] Ms Camilleri said Ms Spiegel directed her to get funding then to go through Mable, and Ms Spiegel helped her create a profile on the Mable site and helped her get her funding through Mable. Ms Camilleri said it was then changed to Let’s Get Care as suggested by Ms Spiegel, as it was less expensive for Ms Camilleri’s services as Mable charged a 10% agency fee on the invoice. -- 7 of 12 -- [2021] FWC 2934 8 [28] Ms Spiegel said the change from Centacare to Let’s Get Care was for a range of reasons including that Ms Camilleri appeared to be working well with her parents and also got along with her sister, and Let’s Get Care told Ms Spiegel that if she wanted Ms Camilleri to continue to work with her family members, she would have to work for an organisation like Mable or Aquamarine. Ms Spiegel said Aquamarine offered Ms Camilleri a role however it was not sufficient pay, so Ms Camilleri refused. Ms Camilleri worked with Mable who charged an agency fee, and it was Ms Camilleri who decided to drop Mable, and went direct to Let’s Get Care. [29] Both Ms Spiegel and Ms Camilleri agreed that the government funding goes from My Aged Care to Let’s Get Care and Ms Camilleri invoices for the work performed for Ms Spiegel’s family members and the money is paid to Ms Camilleri by Let’s Get Care. [30] The following evidence was provided concerning the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd9. 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. [31] Ms Camilleri said Ms Spiegel had the right and used this right to influence full control over the work and manner in which Ms Camilleri performed the work, including directly setting tasks, processes and methods, in the nature of a Supervisor/Employer. Ms Camilleri said no contract or agreement exists to specify any freedom in any way that Ms Camilleri may have had in undertaking the work, weighing against Ms Camilleri being a contractor. Ms Spiegel relied on her written submissions. Whether the worker performs work for others (or has a genuine and practical entitlement to do so). [32] Ms Camilleri said when she was not an employee of Centacare, she did not work for anyone other than the Spiegel family through NDIS funding, ‘Integra’ or My Plan Manager. [33] Ms Camilleri stated, “I have intentionally not sought other employment opportunities out of my trust and goodwill that the arrangement of my provision of support work services was solid, of high quality and that the arrangement would be treated with respect and remain consistent” and that it was “the understanding that no other business would be worked for.” [34] Ms Camilleri said the work was her sole source of income and was dependent on Ms Spiegel’s decision making, supervision and direction as an NDIS participant representative. Ms Camilleri said her work was organised six months in advance as per the two-way diary system and given 18 months of prior working full-time. The understanding that no other business would be worked for was implicit in and characterised the employer/employee relationship. [35] Ms Camilleri said she did not want to risk bringing in any diseases into the house. Ms Camilleri said she has now reactivated her Mable account but has not had any other work. [36] Ms Spiegel gave evidence that if Ms Camilleri wanted to work for anyone else, that was her business. Ms Spiegel accepted she helped Ms Camilleri get onto the Mable site -- 8 of 12 -- [2021] FWC 2934 9 because that’s what Let’s Get Care told Ms Spiegel she needed to do in order for Ms Camilleri to continue to provide services to her family. Whether the worker has a separate place of work and or advertises his or her services to the world at large. [37] Ms Spiegel noted that Ms Camilleri advertised her services online through Mable. Ms Camilleri said she was on unpaid leave at Centacare but had not received work from Centacare. Ms Camilleri said she used only used Mable to get the funding for the Spiegel family. Whether the worker provides and maintains significant tools or equipment. [38] Ms Spiegel accepted there were not really any “hard and fast” tools required for Ms Camilleri’s work. Whether the work can be delegated or subcontracted. [39] Ms Camilleri said she never delegated her work and that she could not, as Ms Spiegel monitored everything she did. Ms Camilleri said he had to undertake prescribed work herself and was not permitted to employ an apprentice or trainee, thus favouring a relationship of employee. [40] Ms Spiegel did not appear to give specific evidence on this point. Whether the punitive employer has the right to suspend or dismiss the person engaged. [41] Ms Spiegel said that she just had to let the service providers know if she did not want to use the services of Ms Camilleri anymore. Ms Spiegel said that after an altercation with Ms Camilleri, she said to Ms Camilleri “don’t come back.” She said she made a decision she no longer wanted Ms Camilleri in her house. [42] During the determinative conference, Dr Booth, Ms Camilleri’s support person, submitted that it appeared as though Ms Spiegel had that ability because her decision was final, and Ms Camilleri has not been able to return to that workplace. Whether the putative employer presents the worker to the world at large as an emanation of the business. [43] It was not disputed that Ms Camilleri was not required to wear a uniform. Whether income tax is deducted from remuneration paid to the worker. [44] Ms Camilleri’s evidence was to the effect that when her invoices were paid, tax was not withheld, and she had to manage her own tax. Ms Camilleri submitted invoices via her ABN for work completed. Money was paid to Ms Camilleri by the NDIS or My Aged Care Plan Managers, not by Ms Spiegel. Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks. -- 9 of 12 -- [2021] FWC 2934 10 [45] Ms Camilleri said the working arrangement had involved six days a week of full-time work for over 18 months, often staying in residence to sleepover for two to four nights in a row (including two to three weekends per month) and several occasions where she remained in residence for the Spiegel’s for up to 10 days. [46] Ms Camilleri said she worked for approximately 60 hours per work, including the sleepovers and weekends, and this can be verified from her NDIS invoice log. [47] Ms Camilleri did not receive a wage or salary, however she said she was paid a rate of pay aligned to award rates of pay. Ms Camilleri gave evidence that the NDIS decided on the rate of pay for her. [48] Ms Spiegel said the NDIS has a list of casual rates and Ms Spiegel said she learned that through the NDIS coordinator. Ms Spiegel said she was happy to pay the highest casual rates for Ms Camilleri as there were three members of her family instead of one. Ms Spiegel said Ms Haywood told her what the rates were under the NDIS, and then between Ms Haywood and herself they agreed what Ms Camilleri would be paid. Whether the worker is provided with paid holidays or sick leave. [49] It was not disputed that Ms Camilleri did not receive sick leave or holiday pay. Whether the work involves a profession, trade or distinct calling on the part of the person engaged. [50] The nature of the work was care and support work. Whether the worker creates goodwill or saleable assets in the course of his or her work. [51] It does not appear this was the case for Ms Camilleri. Whether the worker spends a significant portion of remuneration on business expenses. [52] It was not disputed that Ms Camilleri did not spend a significant portion of her remuneration on business expenses. CONCLUSION [53] It is apparent from the evidence no employment contract was entered into between Ms Camilleri and Ms Spiegel. There was no offer and acceptance as between them. It is common ground that Ms Camilleri was providing her services initially through Centacare as an employee of Centacare, and the subsequent relationship was between Mokshanna and the other named entities managing government funds on behalf of the funding recipients. All invoices generated by Mokshanna were sent to those various entities and not to Ms Spiegel. At no point did Ms Spiegel directly control the funds from which Mokshanna’s invoices were paid. [54] Given that conclusion there is no need to deal with the matter of whether Ms Camilleri was working as an employee or as a contractor because Ms Camilleri was not working for Ms Spiegel and on that basis the application must fail. -- 10 of 12 -- [2021] FWC 2934 11 [55] In the event that the above stated conclusion that Ms Camilleri did not have an enforceable contractual relationship with Ms Spiegel was wrong, it seems reasonably clear Ms Camilleri had entered into different contracts for service through her company Mokshanna, and not a contract of service with Ms Spiegel. The services for the three family members were provided through the plan managers and in accordance with NDIS and My Aged Care funding arrangements. [56] I have found there was no enforceable contractual relationship between Ms Camilleri and Spiegel, but if such a relationship did exist it would more than likely be that of a contracting relationship. Given the evidence concerning the various indicia was directed toward the relationship between Ms Camilleri and Ms Spiegel it did not address the relationship between Ms Camilleri and the other entities referred to in the evidence in the same level of detail. The fundamental question in contests over whether a worker is an employee or contractor is directed to 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. [57] The evidence indicates that Ms Spiegel does not have a business to employ Ms Camilleri. Given Ms Camilleri established a company and invoiced the different entities managing the funding packages for the family members directly herself without involving Ms Spiegel, this also indicates Ms Camilleri was operating her own business and not working as an employee of Ms Spiegel. [58] For the reasons set out above this application is not within the jurisdiction of the Commission and is therefore dismissed. COMMISSIONER Appearances: Ms Camilleri appearing on her own behalf as the Applicant. Ms Spiegel appearing on her own behalf as the Respondent. Hearing details: 2021, Brisbane: March 18 Printed by authority of the Commonwealth Government Printer <PR730063> -- 11 of 12 -- [2021] FWC 2934 12 1 Exhibit 2. 2 Exhibit 1. 3 [2015] FWCFB 3704. 4 [2011] FWAFB 8307. 5 [1986] HCA 1. 6 [2015] FWCFB 3704. 7 [2013] FCAFC 3. 8 (2003) 122 IR 215. 9 [1986] HCA 1. -- 12 of 12 --