Hail Mary pass? Fair Work examines last-minute attempt to prove employment
An IT services provider recently filed a dismissal claim before the Fair Work Commission (FWC), arguing that he was mistakenly classified as an independent contractor, asserting that he has always been their employee.
The application came after he found out that the “employer” would move on from their arrangement and seek IT services elsewhere.
The worker, Asif Waseem, filed a general protections application with the FWC claiming that his employer, Peace Lutheran Church Gatton, trading as Anuha, terminated his employment on August 1, 2023, violating his workplace rights.
The worker argued that the employer misrepresented his employment as an independent contracting arrangement. On the other hand, the employer rejected his application, arguing that the worker was not dismissed since he was not an employee.
Independent contractor or employee?
The employer said that Waseem was engaged as an independent contractor for ICT Support Services through a verbal agreement in December 2020.
It said that the agreement was terminated by the employer on July 31, 2023. As a contractor, the latter said he lacked a position description, employment contract, and had control over how the work was performed.
The employer did not provide a wage/salary, nor did they deduct income tax, since it said he was responsible for his own tax and superannuation.
He also did not receive payment for days he chose not to work, public holidays, and did not accrue annual leave, personal leave, or long service leave.
Meanwhile, Waseem argued that he worked as a part-time employee for the employer for a year. He also said the employer required him to work from their premises during regular business hours, providing clear instructions.
While using his own phone and laptop, he said he primarily used the desktop computer provided by the employer. The employer also reimbursed him for daily travel and covered expenses related to managing the IT infrastructure.
Waseem further said that he invoiced the employer as a contractor, receiving payment on a daily rate, adding that his remuneration was for labour, not tied to specific outcomes.
In January 2023, Waseem said he proposed a formal contract, but the employer did not sign it. On July 3, 2023, the employer informed Waseem that they would not continue their arrangement with him.
Characteristics of contractor relationship
In its decision, the FWC examined the nature of the relationship between the parties, and it found that there were several characteristics of Waseem’s engagement that pointed to a contractor relationship.
- Waseem issued regular invoices using a company name;
- His company charged the "employer" GST and was registered with the ATO;
- Waseem did not participate in any of the usual onboarding activities usually performed by new employees, such as providing a tax file number declaration, superannuation choice fund form etc.;
- Waseem charged the employer for his travelling time to and from the office;
- Waseem did not accrue leave and was not paid if he did not work;
- The "employer" paid the invoices and GST to his company;
- The "employer" did not deduct income tax from any of the payments.
To reject these, Waseem argued the following to prove that he was an employee:
- That he attended the office most days;
- That the “employer” paid for software and other materials;
- That he was a member of several “internal” groups.
However, the FWC found that Waseem’s descriptions were “reasonable and common actions of a host when interacting with a service provider.”
It said that “while [it] can appreciate that Waseem felt that he was a part of the team, the evidence suggests that he had voluntarily entered into a contract for the provision of IT Services to the [“employer”] and had been happy with this arrangement.”
“It was not until it became clear to him that the [“employer”] was not intending to sign the new formal agreement with [his company], that he, by his own admission, wrote to [them] seeking that they consider engaging him as an employee.”
Thus, it ruled that the relationship between the parties was a contract of service. Consequently, it dismissed his application since he’s not an employee.
