Tribunal found the pair were treated better than their non-Aboriginal colleagues
Two Aboriginal workers who accused an Aboriginal-owned film production company of racial discrimination have had their claims dismissed in full - with the tribunal finding they were actually treated better than their non-Aboriginal colleagues.
The NSW Civil and Administrative Tribunal threw out the claims brought by two Gomeroi nation members against Blackfisch Films Pty Ltd, a Sydney-based company focused on Aboriginal cultural heritage storytelling. The Tribunal found the complaints were "misconceived and lacking in substance" under the Anti-Discrimination Act 1977 (NSW).
The case turned on a tangle of overlapping questions. Were the workers employees or contractors? Were they dismissed, or did they walk? And did any of the conduct they complained about actually amount to racial discrimination?
On every count, the answer was no.
Not employees, not dismissed
The first applicant, a Lore Man and community cultural leader, had been a co-director and minority shareholder of Blackfisch since it was incorporated in May 2018. He provided ad hoc cultural advice on specific projects, invoicing the company under his own ABN - one he had obtained back in 2000, years before any connection with the company. Between May 2018 and December 2023, he issued just five invoices.
The second applicant, a younger family member with no formal qualifications, started paid work experience in mid-July 2024 at $25 per hour, three days a week. She too invoiced on an ABN. Her engagement lasted about seven weeks.
Neither had a written employment contract. Both were free to work elsewhere - and did. The first applicant had been employed full-time at a public school until June 2023, remained a director of another media entity, and was receiving Centrelink Jobseeker payments between March and September 2024 on the basis he was unemployed. The second applicant held a childcare job in regional New South Wales and received Youth Allowance.
The Tribunal found the standard indicators of employment were not present. Both were independent contractors.
On dismissal, the Tribunal reached the same conclusion as the Fair Work Commission in earlier proceedings on the same facts. The FWC had found the first applicant "initiated the termination of his engagement" when he and a colleague began planning to divert documentary funding away from the company. The second applicant suggested she and the first applicant leave, issued her final invoice on September 4, 2024, and was paid the same day.
The 'too black' comment
The most striking allegation centred on a statement the company's controller - who is of Aboriginal descent herself, with ancestral connections to the Gomeroi people - admitted making to the second applicant: that the first applicant's activism made "the company too black."
The applicants argued this was racially discriminatory. The company's controller gave evidence that the remark was made to explain why she wanted the second applicant to work with the production team rather than be drawn into political activism. She conceded the phrase was "clumsy," according to the applicants' own submissions, but maintained it was about workplace focus - not race.
The Tribunal accepted that explanation. Applying the High Court's reasoning in Purvis v NSW (2003) - where the correct comparison for assessing discrimination is not someone without the characteristic in question, but someone who shares the relevant conduct - the Tribunal found the right comparator was a non-Aboriginal political activist behaving the same way in the workplace. On that basis, the company's controller would have expressed the same concern regardless of race.
The argument that political activism was a characteristic "attributed to Aboriginal people" also failed. The Tribunal found no evidence for that proposition and noted that activism is not a trait that belongs to all Aboriginal people, or only to Aboriginal people.
Racial slurs not established
The applicants also alleged the company's controller used the terms "Abo" and "boong" and told the first applicant to "go back to the mission." She denied making any racial slurs - and three witnesses whose evidence went unchallenged backed her up.
The Tribunal found the "back to the mission" allegation was not made out. It did not appear in either applicant's signed statement or their earlier FWC applications. Those filings referred only to being told to "fuck off" - apparently over toothpaste left in the sink of the office where both applicants had been living rent-free.
A text message sent the day after the September 2, 2024 confrontation referred only to "yelling," not racial language. The company's controller gave evidence she would never use such terms "as a matter of cultural protocol" - testimony the Tribunal described as "persuasive."
More favourably treated, not less
In a finding that turned the applicants' case on its head, the Tribunal held they were "treated more favourably than those non-Aboriginal employees because they were afforded privileges, on the basis that they were Aboriginal and related to [the company's controller], that the non-Aboriginal employees did not and would not have enjoyed."
Those privileges included living rent-free in the company's office premises - described in the decision as a "fully furnished double New York loft-style apartment" - along with free meals and, for the second applicant, paid work experience despite having no qualifications when the business did not need another contractor.
The non-Aboriginal employees, by contrast, were tertiary-qualified, worked under written contracts, held permanent positions, and were paid according to relevant awards including superannuation. The Tribunal found the pay differences were explained by role, qualifications, and experience - not race.
Claims of unequal pay, degrading accommodation, and unpaid cleaning were each dismissed.
The documentary diversion
Behind the discrimination claims sat another story. The Tribunal found that the first applicant and a former employee had planned to divert the company's Sacred Trees documentary project - and its Documentary Australia funding, granted in June 2024 - to a new entity they had set up together.
The first applicant admitted he did this because "he thought the respondent was breaking cultural protocol and he wanted to establish a new business and a new identity." Both applicants joined the new entity after leaving Blackfisch, and it had film work by November 2024.
The Tribunal found that when the company's controller changed the office locks on September 23, 2024, it "was caused by the discovery of the conspiracy, theft of intellectual property and breaches of duty" by the first applicant - not his race. The Tribunal noted that the former non-Aboriginal employee involved would have been treated the same way, but had already resigned on September 19, 2024.
All claims for economic loss, non-economic loss, and cultural harm were dismissed. The applicants had not put forward any evidence of actual loss.
For HR teams, the decision is a sharp reminder that informal, family-based work arrangements - no written contracts, flexible hours, workers living on-site - can generate complex discrimination claims even where the underlying relationship was generous. And when the threshold question of whether someone is an employee or contractor is unresolved, every workplace grievance that follows sits on uncertain ground.
