Employee or not? Worker signed employer's handbook covering performance management and social media rules
The Fair Work Commission (FWC) recently dealt with a general protections application from a worker against a boxing gym operator. On 26 July 2025, the worker lodged an application pursuant to section 365 of the Fair Work Act 2009.
The employer raised a jurisdictional objection that the worker was not dismissed within the meaning of section 386 of the Act because the worker was not an employee.
On 23 May 2023, an agreement titled "Independent Contractor Agreement" was executed between the worker and the employer.
The agreement contained provisions including that the employer appointed the worker to provide services, that nothing would be deemed to create any relationship of employer and employee, and that it was the express intention of the parties that the worker was in all respects an independent contractor.
The agreement included terms requiring the worker to pay all insurances, including workers' compensation, public liability insurance for not less than $20,000,000.00, and professional indemnity insurance for not less than $10,000,000.00.
The agreement also imposed post-employment restraints on the worker. The schedule to the agreement provided that the term would be from 4 April 2023 until 8 April 2024. The services the worker was required to perform were described as "Trainer".
Agreement terms not followed in practice
Notwithstanding the terms of the agreement, the worker was never asked to submit a monthly report, and ceased submitting tax invoices after a few months of engagement.
The worker did not obtain workers compensation, public liability insurance, or professional indemnity insurance, and was never asked by the employer to provide evidence of having received such insurance. One of the gym owners stated regarding public liability insurance that the employer "didn't enforce it."
Following the expiry of the agreement on 8 April 2025, the worker was never asked to sign any similar document or extension of the term. It was agreed between the parties that the agreement had expired, although one gym owner claimed "the expectations carried on, so it still applies because the engagement continued."
On 28 January 2025, the worker received an email from someone who identified herself as an HR consultant, requesting that the worker sign the employer's Employee Handbook.
The worker signed the handbook, which required the worker to adhere to the employer's policies, including a code of conduct that referred to performance management and set out the rules applying to the use of social media during or outside work hours.
The employee handbook contained provisions precluding the worker from promoting his personal business within the gym, and that he must positively represent the employer inside and outside the facility.
The worker worked in accordance with a roster which was prepared and finalised by one of the gym owners, based on client needs and attendance.
The worker typically worked 12 to 15 classes of 45 minutes each per week in line with that roster and did not have the ability to set his own hours.
The worker was paid a fixed rate per class, which was determined based on class participant numbers in each class. The ultimate decision as to the rates paid to the worker rested with one of the gym owners.
Template rates had been given to the employer by "head office," which the Commissioner inferred was the head franchisor. The worker's only choice was whether he would accept the rates outlined by the employer.
Workplace control and termination
Where the worker was unable to attend a rostered class, he was unable to delegate or subcontract his services without the approval of the employer.
Usually, the employer would arrange replacement trainers where required. The worker did not maintain or possess any training equipment used in his classes.
His training classes were carried out at the employer's Bondi Beach premises. The employer provided the workplace, all equipment, the booking system, the training music and provided clients for the classes.
The worker's responsibility was to conduct the fitness classes according to the employer's business protocol. The worker was promoted on social media as part of the employer's "squad".
On 6 July 2025, after the worker had queried why his pay rate was to be reduced, he was removed from the roster. The employer conceded that the worker did not receive 14 days' notice and stated it was because he was a contractor.
On 10 July 2025, the employer sent the worker an email stating: "As of July 10, 2025 your employment at Rumble Boxing Bondi Beach as been terminated effective immediately."
The employer sent a further email to the "Rumble Crew" stating: "it is with a lot of sadness but not without a lot of careful consideration; we have terminated [the worker's] employment with us."
In addition to working for the employer, the worker also worked at times for two other gyms, one of which was from the same franchise. The worker was also building his own fitness app.
The worker contended that the engagement was, in substance, an employment relationship disguised as an independent contracting arrangement.
The employer submitted that, on the true substance and practical reality of the relationship, the worker was an independent contractor, not an employee.
The employer submitted that the evidence clearly showed that the worker had authority to negotiate rates and hours, refuse engagements, and operate independently across multiple clients.
Statutory test applied to relationship
The FWC examined the legislative framework. Section 15AA, inserted by the Fair Work Legislation Amendment (Closing Loopholes) Act 2024, directed courts and tribunals to determine whether a person was an employee by reference to the "real substance, practical reality and true nature" of the relationship, having regard to the totality of the work arrangements.
The Commissioner stated: "The [agreement] had clearly ceased to apply to the [worker] and the [employer] after 8 April 2024; however, even before that date, the [agreement] did not reflect the reality of the relationship between the parties."
In particular, the worker did not submit a monthly report, did not submit tax invoices on a weekly basis after the first few months, and did not arrange required insurance.
The Commissioner stated: "The totality of the relationship between the parties, however, disclosed significant levels of control by the [employer] over the [worker]."
In particular, the worker was required to sign the employer's employee handbook, which stated that all employees must adhere to the code that included provisions to manage performance and conduct. The worker worked in accordance with a roster which was prepared and finalised by the employer.
The worker was not able to set his own times for classes. The worker was paid a fixed per-class rate for each class he conducted.
The worker did not set his own rates or terms of engagement. Should the worker be unable to attend a class, he was not able to provide a replacement of his choosing without approval from the employer. Ultimate authority over the worker in his performance of work resided with the employer.
The Commissioner accepted that the worker was presented to clients as a representative of the employer and promoted on social media as part of its "squad".
The worker did not advertise his services outside the employer's business, did not have his own workplace, and did not have his own business.
The Commissioner stated: "I accept that the relationship between the parties is that the [employer] is the business that took the risk of profit or loss and, unlike an independent contractor, the [worker] did not operate a business and bore no business risk."
Employment finding made
The employer submitted that the worker took an entrepreneurial risk. One of the gym owners described entrepreneurial risk as workers choosing not to work at a place at a 9 to 5 where they were getting minimum wage and taking on the risk of needing to find work.
The Commissioner stated: "The [employer's] submission regarding entrepreneurial risk was that it was somewhat like being a casual and not having the guarantees of permanent employment. That is not correct, and I note nonetheless that the [worker] was looking for more hours to work."
The Commissioner stated: "While the [employer] placed considerable weight on the [worker] performing work at other gyms while also working for the [employer], that fact does not on its own point to a contractor relationship. That a person has a number of casual employment relationships simultaneously, as it appeared the [worker] did, does not render them otherwise as a contractor."
The Commissioner stated: "The indicia that pointed to the [worker] being a contractor rather than an employee arose from the formal structure imposed by the [agreement] rather than how the relationship was performed in practice."
The Commissioner stated: "Section 15AA requires the Commission to decide the 'true nature' of the relationship. Taking into account the level of control, integration, branding and restraints imposed on the [worker], I find that the relationship was one of employment, notwithstanding the [agreement] and the description of the relationship therein. The [worker] was for all intents and purposes working in the business of the [employer]."
The Commissioner stated: "Ultimately, however, Section 15AA of the Act requires the Commission to decide the 'true nature' of the relationship, and in this matter the indicia found point overwhelmingly to the relationship being one of employment." The jurisdictional objection was dismissed.
