Worker enjoyed rights and discretion unavailable to regular employees
The Fair Work Commission (FWC) dealt with the case of a sex worker who claimed unfair dismissal after she was fired from her regular shifts via text message.
She claimed her employer kicked her out because she complained about the establishment’s health and safety policies.
She argued that she should be considered a casual employee and eligible for an unfair dismissal claim.
On the other hand, the establishment argued that they provide booking, introduction, accommodation, and support services to independent contractor sex workers who then serve the customers as sole traders. It also claimed she was fired because she threatened the business’ staff.
Injury at brothel
The establishment operates as a “brothel” licensed under the Sex Work Act1994 (Vic). Its licence covers 11 booking rooms in Melbourne.
It said that it provides booking, introduction, accommodation and related support and statutory services to sex workers, who in turn provide sex work services to customers in conducting their sole trader business activities.
The sex worker, in this case, had been working for the establishment for a while. She said she went through interviews and signed documents with the establishment.
Around November 2021, she said she suffered an injury “which she considers was a consequence of the establishment’s unsafe hygiene practices.” She was hospitalised but remained in pain and “was unable to offer penetrative sex to her clients.”
She said she “became increasingly concerned about certain health and safety issues in the workplace” and raised concerns with the head receptionist on multiple occasions.
With the issues left unaddressed, and after a series of exchanges with the management, she said she felt “saddened, frustrated, stressed and concerned.”
Due to the head receptionist’s “dismissive” attitude about the issues she raised, the worker allegedly called the latter a “disgusting piece of shit.”
When she left the establishment, she received a text message from the staff phone number informing her that “there were no more shifts available” for her. But after clarifying if she was to complete her rostered shift that night, she was advised that she had “no more shifts” and could only attend to pick up her belongings.
The worker then filed an unfair dismissal application, saying there were no warnings, and she was not notified about her behaviour or performance.
Is the sex worker an independent contractor?
The commission noted that the worker had “the right to refuse bookings and negotiate the prices and types of services with each client,” and this kind of discretion is not available in employment relationships.
Additionally, it said the worker also had the right to:
- request to undertake shifts at her discretion;
- decline to perform a shift at any point prior to its commencement;
- refuse to provide services to any client at any point; and
- charge different amounts and adjust her services for each client.
Ultimately, the commission said the worker was an independent contractor, not an employee, so the unfair dismissal remedy was unavailable to her.
To determine the mode of employment, the FWC evaluated various factors, including the establishment’s rostering system.
Although the worker could notify the business of her availability to work preferred shifts, there was no evidence to suggest that it expressly invited her to work a shift.
The FWC also found “no financial relationship” between the parties, as the client pays the establishment the cost of the room hired and then pays the worker the agreed fee for services rendered. Essentially, the establishment only provides administrative assistance to the worker.
Thus, the commission dismissed the worker’s unfair dismissal application and ruled she was not an employee of the establishment.
