An ABN, an invoice and no super - that was enough to sink an 11-year claim
After 11.5 years caring for the same client, a disability support worker has been told she was never actually employed - and therefore could not have been dismissed.
The Fair Work Commission dismissed the worker's general protections claim on October 9, finding she was an independent contractor, not an employee, despite years of rostered shifts, procedure manuals and regular staff meetings.
The worker had provided support to a young man with a disability through the National Disability Insurance Scheme since around 2014. For the first six years, she worked through a registered NDIS provider, Adam Inc. That changed in 2020 when the participant's parents decided to self-manage their son's NDIS package.
The worker says she was told her conditions would stay the same - the only difference being she would now submit invoices. According to the decision, she says she was advised to get an ABN and purchase her own insurance.
What she signed, however, was not an employment contract. It was a service agreement. It listed her ABN, described her as self-employed, and attached a certificate of professional indemnity and public liability insurance in her name.
A second service agreement followed in June 2022. It was more explicit: no superannuation, no annual leave, no sick leave. Payment came not from the respondent directly but through a third-party plan management provider, drawn from the participant's NDIS funds.
When the arrangement ended in June 2026, the worker filed a general protections claim with the Commission - a type of application that protects employees from being dismissed for exercising workplace rights. She argued she had been dismissed. She called the service agreements a "sham contract" and said she had been forced into contractor status.
The respondent - the participant's mother - raised a threshold objection: if the worker was never an employee, she could not have been dismissed, and the Commission had no power to hear the case.
The Commission applied s 15AA of the Fair Work Act, which requires it to look at the "real substance, practical reality and true nature" of a working relationship - not just the paperwork. That provision brought back what's known as the multifactorial test: rather than relying on the written contract alone, the Commission weighs a range of practical indicators to figure out what the relationship actually looked like.
Some of those indicators pointed toward employment. The worker's hours were set by a roster. She could not delegate or subcontract the work. She did not maintain a separate place of work, did not supply her own tools, and was unlikely to build goodwill through the role.
But the weight fell the other way.
The service agreements were framed as NDIS arrangements, not employment contracts. The worker held her own ABN and insurance. No tax was withheld. No super was paid. No leave accrued. Payment flowed through a third-party plan manager from NDIS funds, not from the respondent's own pocket. And the respondent was not running a business - she was a parent managing her son's care.
The Commission acknowledged that the respondent exercised a "reasonable degree of control" over the worker's shifts and duties. But it found that was "hardly surprising or decisive given the nature of the services provided" - disability support for a person whose daily care required structure and routine.
Taken together, the Commission found the relationship lacked "the essential features that would ordinarily characterise an employment relationship." The NDIS framework, the contractual terms, the commercial arrangements, and the absence of tax, leave and super were found to "decisively outweigh" the factors pointing toward employment.
The worker was found not to be an employee. Because she was not an employee, she could not have been dismissed. The application was dismissed.
