Federal Court of Australia

EFEX Group Pty Ltd v Bennett [2024] FCAFC 35

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 2 made on 24 May 2023, dismissing the appellant’s originating application, be set aside.

3.    The second respondent be prohibited from continuing to hear and determine the unfair dismissal application brought by the first respondent on the basis that it has no jurisdiction to entertain that application.

4.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KATZMANN AND BROMWICH JJ

1    This appeal concerns the question of whether a judge of this Court, in dismissing an originating application, erred by agreeing with and upholding a finding by the Fair Work Commission that a person retained under an oral contract to perform sales and related work for a technology services company was an employee rather than an independent contractor. The first respondent, Mr Gerard Bennett, performed work for the appellant, EFEX Group Pty Ltd, in the period from 1 February 2018 to 8 November 2019 (relevant period). When EFEX terminated the contract, Mr Bennett brought an unfair dismissal application before the Commission, the second respondent. EFEX contended that the Commission did not have jurisdiction because Mr Bennett was not an employee. A Commissioner found that Mr Bennett was an employee. The Full Bench of the Commission found that, in totality, the evidence weighed in favour of Mr Bennett being an employee during the relevant period, and refused permission to appeal.

2    EFEX sought relief in the nature of prohibition directed to the Commission to restrain it from continuing to hear Mr Bennett’s unfair dismissal claim and, in the alternative, seeking an order that the Commission hear and determine the application according to law and thereby to dismiss it. The trial, including the submissions at the conclusion of the trial, was conducted upon the basis of the prevailing understanding of the law at the time in relation to whether a person was an employee or an independent contractor, which included evidence about the totality of the relationship between EFEX and Mr Bennett, rather than just focussing upon the terms of the contract.

3    That understanding of the law changed following two decisions of the High Court handed down just over three months after the trial, revisiting the distinction between employees and independent contractors and the approach required to be taken by reference to the legal rights and obligations under a contract: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; 275 CLR 254. The primary judge then received supplementary written submissions addressing those two decisions.

4    The primary judge, by reference to Personnel Contracting in particular, subsequently found that Mr Bennett was an employee during the relevant period. In substance, EFEX contends that his Honour did not properly apply Personnel Contracting, and that his Honour’s findings were contrary to evidence adduced at trial. Mr Bennett contends that the primary judge did not err and that the appeal should be dismissed. The Commission filed a submitting notice.

Principles for determining whether there is an employment relationship

5    The restatement of employment relationship principles in Personnel Contracting, as opposed to their application to this case, is not in dispute. On any view, this was a challenging exercise for the primary judge, having heard the matter and received closing submissions on one basis, only to have to ultimately decide it on quite a different basis, relying upon written submissions as to the impact of the change.

6    Where the rights and duties of the parties are “comprehensively committed to a written contract”, and the contract is not a sham, varied, waived or the subject of an estoppel, the obligations established by that contract are decisive of the character of the legal relationship: Personnel Contracting at [43]–[44], [59] per Kiefel CJ, Keane and Edelman JJ; and at [183] per Gordon J (Steward J agreeing). In order to ascertain the relevant rights and obligations, the written contract is to be construed in accordance with established principles of contractual interpretation generally: Personnel Contracting at [60] per Kiefel CJ, Keane and Edelman JJ; and at [173] per Gordon J (Steward J agreeing).

7    This case did not involve any written contract at all, much less a comprehensive written contract. It was a wholly oral contract, with sparse details of the agreement reached expressed in the lead up to its formation. In the absence of a written contract and no evidence of a particular conversation during which the contract was made, “evidence of the parties’ conduct must necessarily be considered in order to draw inferences as to whether the meeting of minds necessary to create a contract has occurred and what obligations they have thereby undertaken”: Personnel Contracting at [177] per Gordon J (Steward J agreeing), as summarised in Chiodo v Silk Contract Logistics [2023] FCA 1047 at [9].

8    As Kennett J explained in Chiodo at [8]–[9], where there is no written contract, the identification of the parties’ contractual rights “must proceed somewhat differently but the fundamental task is the same: the parties’ contractual rights and obligations are to be ascertained and characterised”; and the focus is on the ascertainment of the legal rights and obligations of the contracting parties, “rather than how they behaved in the performance of their contract”.

9    The terms of an oral contract may be able to be inferred from the circumstances, including in whole or in part from the parties’ conduct or a course of dealing between them, or implied where necessary for business efficacy: Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; 406 ALR 678 at [21]–[22] per Kiefel CJ and Gageler J.

10    Thus, whether the contact is written or not, or is oral in whole or in part, the characterisation of the relationship between the parties depends on their contractual rights and not on circumstances, facts or events that do not affect those rights. It follows that a “wide-ranging review of the entire history of the parties’ dealings” is neither necessary nor appropriate for the purpose of characterising the relationship: Personnel Contracting at [59] per Kiefel CJ, Keane and Edelman JJ; see also [185]–[189] per Gordon J (Steward J agreeing).

11    The principles of contract interpretation also apply to the terms of an unwritten contract that are able to be ascertained, inferred or implied. They allow regard to be had to circumstances surrounding the making of the contract and events and matters, known to the parties at the time of contracting, which assist in identifying the object or purpose of the contract. The nature of the work contracted for and the arrangements of the supply or provision of any tools or equipment to the putative employee may also be relevant. Generally, things said or done after a contract was made are not legitimate aids to its construction. In a case such as this, for a matter with no necessary connection to the contractual obligations of the parties to have any bearing on the characterisation of their relationship, “it must be concerned with the rights and duties established by the parties’ contract, and not simply an aspect of how the parties’ relationship has come to play out in practice”: Personnel Contracting at [61] (Kiefel CJ, Keane and Edelman JJ).

12    The central question that remains, under an unwritten contract as in a written contract, is whether or not a person is an employee. As was observed in Personnel Contracting at [39] per Kiefel CJ, Keane and Edelman JJ (see also [113] per Gageler and Gleeson JJ), while the dichotomy between a person’s own business and the putative employer’s business may not be perfect so as to be of universal application, because not all independent contractors are entrepreneurs, that approach is still useful. That is because it focuses attention on whether the putative employee’s work as contracted to be performed was so subordinate to the putative employer’s business as not to be part of an independent enterprise. It also avoids the danger of an impressionistic and subjective judgement, or ticking off a checklist, running counter to objective contractual analysis.

13    Once the contours of the legal relationship are identified, its characterisation as one of employment or not often hinges on two considerations identified in Personnel Contracting, in particular by Kiefel CJ, Keane and Edelman JJ at [36]-[39], each of which may involve questions of degree, namely:

(a)    the extent to which the putative employer has the right to control how, when and where the putative employee performs the work; and

(b)    the extent to which the putative employee can be seen to be working in their own business as distinct from the putative employer’s business.

14    However, as a cautionary note, in some circumstances the proper analysis may be more nuanced than that. As Gordon J pointed out in Personnel Contracting at [181]-[183] (Steward J agreeing), asking whether a person is working for their own business may not always be a “suitable inquiry for modern working relationships”, given that it may not take much for even a low skilled person to be carrying on their own business. Analysis based on this dichotomy may distract from the relevant underlying analysis of the totality of the relationship created by the contract. It may also direct attention to non-contractual considerations, which are not relevant unless forming part of the contract itself. The better question may be to ask whether, by the terms of the contract, the person is contracted to work in the business or enterprise of the purported employer, so as to maintain the correct focus. That is, if the contract does not lead to the conclusion that the person was working in the business of the asserted employer, then the person will not be an employee. This approach has some traction in this case.

The facts and circumstances agreed for the purposes of this appeal

15    EFEX is a technology services company. Mr Bennett worked as its South Australian “business development manager” for about 22 months. Although he agreed to take up the position as a contractor, invoicing the company for his services as the trustee of a family trust, he claims that he was actually an employee and at the end of the period he was dismissed from his employment. As noted above, he applied to the Commission for a remedy for unfair dismissal. EFEX took a jurisdictional objection upon the basis that he was not an employee, the Commission having no jurisdiction to hear the application because protection from unfair dismissal is only afforded to employees: Fair Work Act 2009 (Cth) s 382. The Commission found otherwise and the Full Bench refused permission to appeal. EFEX applied to this Court for an order prohibiting the Commission from continuing to hear and determine the unfair dismissal claim but the primary judge dismissed the application.

16    The issue before the primary judge was one of characterisation, that is to say, whether these facts demonstrated that Mr Bennett was an independent contractor rather than an employee. The resolution of the issue involved the application of a legal standard to a given set of facts. The sole issue in this appeal is whether the primary judge erred in holding that Mr Bennett was an employee of EFEX rather than an independent contractor.

17    The Court asked that the parties provide a statement of agreed facts, necessarily as to what was established by the evidence before the primary judge, which also eliminated any residual factual dispute. The joint document furnished in response after the appeal hearing may conveniently be reproduced in full, allowing these reasons to focus on the impugned findings made by the primary judge, but it is not taken as a substitute for the primary judge’s description of and assessment of the evidence at J[10]-[87], nor the disputed analysis that followed as considered later in these reasons:

Pre-Contractual Matters

[1]    Mr Brogan and Mr Bennett had been close friends for approximately 18 years. In or around October 2017, Mr Bennett had preliminary discussions with Mr Brogan who was the Branch Manager of EFEX, about potentially working for the company.

[2]    Mr Brogan explained to Mr Bennett that he, Mr Brogan, was engaged as a contractor and that he was paid $10,000 per month after issuing an invoice for that month. Mr Brogan said to Mr Bennett the following:

I will ask Nick Sheehan to pay you the same amount as me and using the same structure as me.

[3]    In or around January 2018, Mr Sheehan met Mr Brogan and Mr Bennett at Rundle Mall in Adelaide to discuss Mr Bennett taking up an engagement with EFEX as a contractor. Mr Brogan had previously suggested that Mr Bennett be engaged. Mr Brogan remained at the meeting for only a short period. After he had left, the following conversation took place between Mr Sheehan and Mr Bennett:

Mr Sheehan:    We need to grow our Adelaide business and you have some great contacts that could help us do that. I know Dean has told you what contracting arrangements he is engaged under. Would you be happy to come on board on the same terms as Dean is on? The guys will explain the targets and other details during the onboarding process but essentially it will [be] in line with Dean’s terms and targets.

Mr Bennett:    Yes, I am happy with that arrangement.

[4]    Mr Bennett was appointed to the position of Business Development Manager of EFEX.

[4]    Mr Brogan recommended his accountant, Wallace Vroulis Bond, to Mr Bennett.

[6]    There was also a conversation with Mr Sheehan and the Chief Financial Officer (Ms Elizabeth Case) about how payment was to be made.

[7]    Mr Bennett contacted Wallace Vroulis Bond. They suggested that if he was (sic) to be paid in the way that he had been instructed by Mr Sheehan and Ms Case, then he should set up a trust. He had not previously had a trust nor ABN.

[8]    On or about 29 January 2018, Mr Bennett established the Bennett Enterprises Trust. At that time, Mr Bennett obtained an ABN: 97 647 118 699 in the name “The Trustee for the Bennett Enterprises Trust”.

[9]    Mr Bennett was required to attend one conference in Sydney prior to the commencement of his first day with EFEX.

[10]    Before the engagement of Mr Bennett, or early in the engagement, Mr Bennett told Mr Brogan that he was going to be studying and would need to attend university on some mornings or afternoons. Mr Bennett asked Mr Brogan whether he was okay with that and Mr Brogan said that that was fine with him. Mr Brogan was, in fact, attending the Port Adelaide Football Club each Wednesday for at least half a day as he was the club’s specialist ruck coach and Mr Sheehan was happy to accommodate that.

Post Contractual Conduct

[11]    Mr Bennett’s first day of work was 1 February 2018.

[12]    Mr Bennett was provided with business cards which described his position as Business Development Manager of EFEX, a company laptop and a company email.

[13]    Mr Bennett’s role was primarily in generating sales. This involved him creating proposals and putting together deal sheets using EFEX template documents. Mr Bennett was trained to use, and required to use, the sales processes of EFEX.

[14]    There were sales targets that he was expected to achieve.

[15]    Mr Bennett was not directed as to how he should achieve sales targets, and nor was he directed as to who he should visit.

[16]    Mr Bennett was not required to work a standard business week, Monday to Friday 8 am to 5 pm.

[17]    No-one was keeping track of the hours Mr Bennett worked each week.

[18]    Mr Bennett agreed that there was no requirement that he devote the whole of his time and activities during normal working hours to the performance of his duties.

[19]    There was no requirement by EFEX that Mr Bennett attend the office at particular times, although it was anticipated that he would be in the office a reasonable amount of the time.

[20]    Mr Bennett did not need permission from EFEX or Mr Brogan to attend private appointments during business hours, that is, appointments unrelated to EFEX. Mr Bennett attended the gym, and classes and tutorials at the university, and private appointments during what would be considered normal business hours. Mr Bennett was required to attend meetings with Mr Brogan and fortnightly branch meetings that both Mr Bennett and Mr Brogan would attend with the company’s technicians.

[21]    No records were kept of annual leave or sick leave and that there was no requirement to complete an application or other documentation in respect of taking holidays.

[22]    Mr Bennett was paid the same amount – $10,000 plus GST – each month, which was not linked to performance, and which was paid regardless of whether Mr Bennett was absent from work.

[23]    In about July 2019, EFEX distributed an organisational chart which appeared to show Mr Bennett reporting to Mr Brogan who in turn reported to a Mr Sandral, the General Manager of Sales.

[24]    Mr Bennett reported to, and was accountable to, in the first instance, the local branch manager being Mr Brogan; it is unclear whether he was accountable to Mr Hatherly, a more senior executive of EFEX.

[25]    On 3 July 2019, EFEX reported sales by individuals including Mr Bennett (see document NT-14 Statement of Nick Sheehan paragraph 8 (Annexure A) dated 13 March 2020 (Court Book B).

[26]    In July 2019, Mr Bennett was instructed by Mr Sheehan that he was to stop working so closely with Mr Brogan and that they were to separate in order to give the business more “bang for buck”. He was told that he and Mr Brogan were to distinguish individual targets creating “individual pipelines”.

[27]    On another occasion in July 2019, after returning from a holiday in Canada, Mr Bennett was invited by Mr Hatherley to attend a lunch in Sydney a day earlier than his scheduled day in the Sydney office of EFEX. At the time of the trip, he had a telephone conversation with Mr Sheehan in which Mr Sheehan instructed him he was not to go. Mr Sheehan said the following to him:

Mate what are you doing heading up to Sydney a day earlier for and spending another day away from Adelaide? You need to be increasing activity back in the office, need you to be here concentrating on sales, and you need to get momentum back, you’ve just had two weeks off.

[28]    At the Hyde Park Tavern, a client had contacted Mr Bennett and said that he was unimpressed by the state of cabling, network switches, computer cables etcetera after the technicians had completed their work. Mr Bennett attended the tavern to address the concerns. Mr Sheehan gave him “a verbal spray” and said the following to him:

Mate what are you doing. That’s not sales, get One Solution to do it! Concentrate on sales!!

[29]    There was a one day sales “kick off” conference each year that all EFEX workers were asked to attend. Mr Bennett was required to attend that conference.

Other Matters

[30]    There was no requirement that Mr Bennett wear a corporate uniform.

[31]    There is no evidence that Mr Bennett was generating a saleable asset such as goodwill.

[32]    There was no evidence of any discussion as to whether Mr Bennett could delegate his work as Business Development Manager to a third party.

[33]    Mr Bennett used his own mobile telephone and motor vehicle. He was not reimbursed for, or given an allowance in respect of, those uses.

[34]    There were expenses which were paid by Mr Bennett as trustee of the trust and not by EFEX, namely: taxes, travel expenses, food and beverages for potential clients.

[35]    Mr Brogan had a number of conversations with Mr Bennett during 2018 about work he was performing to help a former colleague secure cleaning contracts previously held by the TJ Services Group (where Mr Bennett had previously worked). For example, a colleague came to the offices of EFEX to meet with Mr Bennett on one or two occasions. He receive[d] an unsolicited payment as a gift. There were two other introductions, for which he was not paid.

[36]    Mr Brogan said that he was not concerned with Mr Bennett doing this other work as it did not compete with EFEX and he understood that Mr Sheehan was not concerned about how Mr Brogan and Mr Bennett spent their time during weekdays.

[37]    Between February 2018 and October 2019, Mr Bennett sent invoices in the name of the Bennett Enterprises Trust ABN 97 647 118 699 on or about the 13th of each month for $10,000 plus GST of $1,000 for what was stated in the invoices to be the supply of the following:

(a)    Gerrard Bennett — Provision of Sales Contracting Services for the month of [month] [year].

(b)    The invoice sought direct payment to the Bennett Enterprises Trust at a nominated bank account.

(c)    The bank account was in the name of Gerrard John Bennett as trustee for the Bennett Enterprises Trust.

[38]    As trustee, Mr Bennett could distribute funds to relatives and any spouse and any spouse of the identified relatives and companies associated with him. There was a monthly payment of $7,000 to a private account of Mr Bennett which was described as “wages”.

18    It may be observed that while the precontractual matters identified and agreed upon tend to point towards Mr Bennett being an independent contractor, the real dispute lies in the question of whether the post-contractual conduct nonetheless supports a permissible inference that the contractual relationship was one of employee/employer as EFEX denies and Mr Bennett maintains.

The primary judge’s reasoning under challenge

19    The primary judge summarised the competing stances succinctly as follows:

[98]    Mr Bennett accepted that there were matters which pointed to an independent contractor relationship, but submitted that these matters were clearly outweighed by the matters pointing to an employment relationship. Two of the matters he identified were as follows: (1) the taxation arrangements adopted by the parties suggested an independent contractor relationship; and (2) the informal arrangements concerning “leave” for Mr Bennett are consistent with an independent contractor relationship. Mr Bennett also referred to the fact that the parties understood that Mr Bennett was a contractor not an employee.

[99]    EFEX relied on the three matters Mr Bennett identified, but also submitted that the right of control was minimal as reflected in the following: (1) there was no direction that Mr Bennett be in the office at any particular time; and (2) Mr Bennett had almost total freedom in how he carried out his sales activities. He also submitted at one point that the English approach of the “organisation test” had not been adopted in Australia. That is correct (Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16), but that should not be taken to mean that, as the High Court said in Personnel Contracting, the own business/employer’s business dichotomy does not provide a useful framework of analysis.

20    The primary judge then considered the above arguments under the following nine headings:

1.    What was the common understanding of the parties as to the nature of their relationship?

2.    What was the extent of EFEX’s right of control[?]

3.    Was Mr Bennett held out as a part of the EFEX organisation?

4.    Did Mr Bennett have the ability to work for others?

5.    Did Mr Bennett have the ability to delegate any of his work for EFEX to others?

6.    Did Mr Bennett provide capital or assets towards or in relation to work for EFEX?

7.    Did Mr Bennett have the ability to generate goodwill or other saleable assets?

8.    What is the relevance of the mode of remuneration, leave (annual and sick) and taxation arrangements?

9.    Another matter [being the text of an offer of employment made on 1 November 2019, which the primary judge did not consider advanced Mr Bennett’s case]

21    The primary judge concluded as follows:

[134]    As will be clear from what I have said, there are matters pointing towards a conclusion of an employment relationship and matters pointing towards a finding of an independent contractor relationship. I do not consider that the understanding of the parties advances the matter for reasons I have given.

[135]    Mr Bennett might have been judged in the final analysis by results, but he was not paid by results. He was entitled to receive $10,000 plus GST every month irrespective of how he performed in terms of sales. The matters I have identified mean that the expectation must have been that he would devote his time, or the bulk of time, to his work for EFEX as was the case with Mr Brogan who was the branch manager. True it is that he was allowed to attend university and the gym during business hours and that Mr Sheehan’s concern was with the level of sales, but his relationship has the hallmarks of full-time employment with some flexibility. That is consistent with his role as a salesperson with sales targets. Furthermore, a level of control was exercised on occasions, most notably when he was told not to work so closely with Mr Brogan.

[136]    Considered by reference to the “own business/employer’s business” dichotomy, the trust and payment arrangements provide some indication of the former, but the overwhelming weight of evidence in terms of control, ability to work for others and the inability to delegate the EFEX work, leads to a conclusion of the latter.

[137]    I find that Mr Bennett was an employee of EFEX between 1 February 2018 and 8 November 2019.

The grounds of appeal

22    The notice of appeal asserts error on the part of the primary judge in concluding that Mr Bennett was an employee of EFEX during the relevant period by ground 1, ultimately by way of specific errors in the intermediate findings leading to that conclusion, by way of particulars to ground 2 numbered (b) to (f). Particular (a), relating to the primary judge’s findings as to the common understanding of the parties, was abandoned at the appeal hearing. The remaining particulars challenge aspects of the primary judge’s intermediate conclusions under his Honour’s headings numbered 2 (control), 4 (ability to work for others), 5 (ability to delegate), 7 (ability to generate goodwill or other saleable assets) and 8 (mode of remuneration, leave and taxation).

EFEX’s submissions

23    The substance of EFEX’s appeal is that the primary judge erred in failing to focus on the legal rights and duties of the parties as required by Personnel Contracting and, in particular, failed to consider properly the issue of control in the sense of a contractual legal right of control. That is said to be the case because EFEX had no right to control how Mr Bennett performed work under the contract, with no required hours of work and no requirement to work from a particular location, with him also being free to attend to studies and go to the gym during ordinary working hours.

24    EFEX also relies upon Mr Bennett being given sales targets, but freedom to determine how they would be met; being directed to work independently from others engaged by EFEX and to obtain his own pipeline of sales; supplying and paying for his own car and mobile phone; invoicing EFEX for his fixed monthly income through a family trust (the Bennett Enterprises Trust), and the trust paying expenses associated with his work without reimbursement by EFEX, including tax, travel and food and beverages for potential clients; and him not needing permission to take leave.

25    EFEX concedes that there were elements which did support an employment relationship, but submits that the clear weight was against such a relationship and in favour of an independent contractor relationship. EFEX submits that J[135], reproduced above at [21], discloses the following errors by the primary judge:

(a)    it gives no weight to the evidence that EFEX had no legal control over Mr Bennett, incorrectly discounting this factor due to finding that there was an “expectation” that Mr Bennett would devote the “bulk of his time” to EFEX;

(b)    there was no evidence of any legal prohibition on Mr Bennett working for anyone else, with the evidence adduced by EFEX that the only concern was that he met his sales targets, which was accepted at J[121] but impermissibly discounted as not realistic because the work needed to be undertaken in what was in practice a full-time or nearly full-time position, which is not relevant to legal rights and obligations;

(c)    weight was placed on EFEX enjoying “a level of control”, but this was minimal and in fact consistent with operating independently rather than collaboratively with another worker at EFEX, and his Honour’s analysis failed to consider the extent to which EFEX had the right to control how, where and when Mr Bennett performed the work, with the submissions citing Personnel Contracting at [113] per Gageler and Gleeson JJ on the need to conduct such analysis to measure control; and at [73]-[74] per Kiefel CJ, Keane and Edelman JJ, for which it may be noted in particular the observation at [74] that “it is the right of a person to control the work of the other, rather than the detail of the actual exercise of control, which serves to indicate that a relationship is one of employer and employee”;

(d)    the correct approach was to focus on EFEX having no legal control over when and how often Mr Bennett worked, instead leaving him with freedom as to how his sales target was to be met.

26    EFEX also submits that J[136], also reproduced at [21] above, discloses the following further errors by the primary judge:

(a)    there was no “overwhelming” evidence of any significant right to control when, where or how the work was to be done by Mr Bennett; and one aspect to which weight was attached, being the use of EFEX template documents when making sales, was an incident of the kind of work being done, and it was wrong to use inherent features of the work as being necessarily indicative of an employment relationship, relying upon the parallel analysis on this point in JMC Pty Ltd v Federal Commissioner of Taxation [2023] FCAFC 76; 297 FCR 600 at [99], where it was observed that requiring a university lecturer to give lectures at a fixed time in order to manage the delivery of courses was not of itself an exercise of control inconsistent with an independent contractor relationship;

(b)    it was an error unsupported by any evidence that there was any prohibition on Mr Bennett working for others or on delegating work, with any practical difficulties in doing this, or expectations external to the contract, being a distraction from the legal rights analysis the Court must undertake, described above;

(c)    insufficient weight was given to the substantial aspect of the taxation and invoicing arrangements, involving the use of a family trust to both pay expenses and the ability to distribute income to family members, with GST being charged and collected, and no income tax being withheld from distributions to him, relying upon the observation by Jessop J (with whom Allsop CJ and White J agreed) in Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 at [70] that:

It is no longer just the absence of PAYG deductions that may make it more difficult to characterise the relationship as one of employment, it is the presence of GST collections by the putative contractor, and his or her compliance with the regulatory requirements which apply to the provision of services by persons who are not employees, that point quite strongly against the relationship being characterised in this way.

(Emphasis in original)

27    EFEX also relies upon Mr Bennett having entered the contract in his capacity as the trustee of the Bennett Enterprises Trust, not in his personal capacity, supported by an inference to be drawn to that effect by reason of all the invoices in evidence being rendered in the name of the Bennett Enterprises Trust.

28    It is important to note that the language of contracting “in one’s capacity as a trustee” rather than “in one’s personal capacity” can confuse more than it clarifies. The obligations of a trustee under a contract are always personal, even though parties are free to agree that the trustee’s liability is limited to trust assets and the trustee is free to declare that she or he holds the fruits of the contract on trust. With that in mind, EFEX must therefore to be taken, perhaps somewhat beneficially, to be contending it and Mr Bennett had agreed that the fruits of the agreement would be held by him on trust for the beneficiaries of the Bennett Enterprises Trust. This understanding of EFEX’s submission is reinforced by its reliance upon expenses being paid out of the trust and trust distributions being made, albeit only to Mr Bennett. EFEX submits that the significance of the taxation arrangements was that they were a consequence of the terms of the contract, not merely a label or manifestation of an expectation.

29    It is also important to note that the evidence before the primary judge makes it clear that both parties contemplated the use of a trust in the making of payments under the contract at the time of its formation. Prior to the formation of the contract, EFEX had made payments to another independent contractor, Mr Brogan, using a trust structure. It had discussed with Mr Bennett, through its CEO, Mr Sheehan, that the same terms would apply to him, and he expressed agreement to this: J[45]. It is reasonably apparent that soon after the time of formation (though there was some lack of clarity on this, both in the primary judgment and in the agreed statement of facts), EFEX – through Mr Sheehan and its Chief Financial Officer – recommended to Mr Bennett that he use the trust structure for payments, and he had a trust set up before commencing work for EFEX (J[15]).

Mr Bennett’s submissions

30    Mr Bennett submits that EFEX’s challenge to the conclusions of the primary judge at J[135]-[136] should not be approached by reference to those paragraphs in isolation, but must the read in the context of his Honour’s preceding analysis, in particular at J[109]-[131]. Those earlier paragraphs contain his Honour’s analysis of the topics under headings 2 to 8 listed above, being those for which operative conclusions were reached in relation to the control EFEX exercised over Mr Bennett, his ability to work for others, his ability to delegate, his ability to generate goodwill or other saleable assets, the requirement that he perform operational tasks on occasion, the mode of his remuneration, and his leave and taxation arrangements. Mr Bennett places particular emphasis on the primary judge’s assessment of the key elements identified in Personnel Contracting of:

(a)    control: J[109]-[117];

(b)    the dichotomy between Mr Bennett working in EFEX’s business rather than his own business as reflected in his ability to work for others, his ability to delegate and his ability to generate goodwill or other saleable assets: J[120]-[125]; and

(c)    the mode of remuneration, and leave and taxation arrangements, which were accepted by his Honour to be significant factors pointing towards there being an independent contractor arrangement (J[126]-[131]), but ultimately did not outweigh the above employment relationship factors.

31    As to control, Mr Bennett places reliance on the primary judge’s finding about the control able to be exercised by EFEX, so as to support an inference that this was a contractual right that it enjoyed, by reference to:

(a)    an organisational chart depicting reporting lines with Mr Bennett reporting to Mr Brogan who in turn reported to the Group General Manager, and evidence of Mr Sheehan that Mr Bennett was accountable to Mr Brogan: J[110]-[111];

(b)    a requirement to attend fortnightly branch meetings with Mr Brogan and technicians, albeit he was not otherwise required to be in the office at particular times: J[112];

(c)    the requirement to attend the annual sales conference: J[113];

(d)    on occasion being required to perform operational, that is, non-sales tasks: J[114];

(e)    being trained and required to use EFEX sales processes including its template documents: J[115];

(f)    an expectation that Mr Bennett not compete with EFEX: J[116]; and

(g)    compliance by Mr Bennett with directions from Mr Sheehan on three occasions: J[117].

32    Mr Bennett submits that the significance of the above indicia is the existence of the right to control, not the frequency of its exercise. He submits that the above indicia amounted to “ample evidence” to support the primary judge’s conclusion that EFEX had a right to control him consistent with an employment relationship. He submits that the organisation chart was highly suggestive of control by the need to report; as was the exercise of the other indicia, in particular what he describes as the non-peripheral matters of requirements to attend fortnightly meetings with Mr Brogan and technicians, to work independently of Mr Brogan, to attend sales conferences, and to undertake sales using EFEX processes, as well as the directions given by the CEO, Mr Sheehan, about what he should and should not be doing. While there was no control over the detail of how he went about his work, that was the very nature of his role as a business development manager, with the primary judge observing that an employed salesman is likely to have considerable latitude in that regard (J[95]), without that being any indication of an absence of a right to control.

33    As to the dichotomy between working in EFEX’s business rather than his own business as reflected in his ability to work for others, his ability to delegate and his ability to generate goodwill or other saleable assets distinct from the putative employer’s business, Mr Bennett places reliance on the primary judge’s findings about control able to be exercised by EFEX, so as to support an inference that this was a contractual right that it enjoyed, by reference to:

(a)    a number of ways Mr Bennett was held out to be part of the EFEX organisation: J[118]-[119];

(b)    the nature of the work required to be performed being of such a kind that it meant that Mr Bennett’s position was a full-time or nearly full-time position, which practically precluded the performance of other work: J[120]-[121];

(c)    the nature of the work and the circumstances in which it was to be carried out being of such a kind that it suggested that delegation of work was not practical or even possible: J[122]-[123];

(d)    the fact that Mr Bennett made no significant contribution in terms of capital or assets towards his work for EFEX: J[124]; and

(e)    there being no suggestion that Mr Bennett was developing a saleable asset such as goodwill: J[125].

34    Mr Bennett submits that the significance of the above indicia is that EFEX was an established enterprise and there was no evidence that he was operating any sales business on his own. He was presented as an employee by way of a company business card, email address and title and used company documentation and processes: J[119]. There was no opportunity to profit separately from his work with EFEX, nor any exposure to risk of a loss, in contrast to what was described in Jamsek at [39] (the provision of vehicles of substantial value). His work was subordinate to and dependent upon EFEX.

35    Mr Bennett seeks to meet the impact of the taxation arrangements by pointing to the judgment of Buchanan J (with whom Lander and Robertson JJ agreed) in Ace Insurance Limited v Trifunovski [2013] FCAFC 3; 209 FCR 146 at [37], which indicated that it was difficult to give much independent weight to taxation and like arrangements when they are reflections of the views of one or both parties that the relationship is, or is not, one of employment. Relying upon Personnel Contracting at [66] per Kiefel CJ, Keane and Edelman JJ, and [184] per Gordon J, he submits that the mere opinion of parties is irrelevant to the analysis of the nature of the relationship.

Consideration

36    The appeal grounds and the nature of this appeal by way of a rehearing, along with the primary judge’s reasons and conclusions and the competing arguments in this appeal summarised non-exhaustively above, calls for this Court to do a real review of the evidence that was before the primary judge, noting that his Honour enjoyed no advantage over this Court in that regard, given that all of the evidence and other material below was documentary. That said, in order for such an appeal to be successful, it is well-established that a finding of error is indispensable, that a mere disagreement on a finding of fact is ordinarily insufficient, but that a disagreement will suffice when only an error of law is involved: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 at [45] per Perram J, with whom Allsop CJ and Markovic J agreed.

37    In an intermediate situation, such as this case in which there is an interplay between evidence based on documents, fact finding including by assessment and inference, and the application of the facts as found to the law, a finding of error is both factually and legally evaluative in nature. That is especially so when different factors favour a conclusion one way or the other, and the judicial task lies in deciding which should prevail in the final analysis. This is readily amenable to appellate review. In this sort of situation, the nature of the appellate court’s task is of the kind described by Perram J in part of [49] of Aldi Foods Pty Ltd v Moroccanoil Israel Ltd:

When an appellate court comes to review such conclusions it must be guided not by whether it disagrees with the finding (which would be decisive were a question of law involved) but by whether it detects error in the finding. On the one hand, error may appear syllogistically where it is apparent that the conclusion which has been reached has involved some false step; for example, where some relevant matter has been overlooked or some extraneous consideration taken into account which ought not to have been. But error, on the other hand, may also appear without any such explicitly erroneous reasoning. The result may be such as simply to bespeak error. Allsop J said in such cases an error may be manifest where the appellate court has a sufficiently clear difference of opinion: Branir [Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 (Allsop J, Drummond and Mansfield JJ agreeing)] at [29].

38    In this case, the question of whether or not the primary judge erred turns on the assessment that his Honour made of the competing indicia, and the conclusion he reached in deciding which should prevail. That process has been assisted by the competing arguments by opposing counsel summarised above, but hindered to an extent by the trial being conducted on a pre-Personnel Contracting basis, with the evidence being evaluated by his Honour on a post-Personnel Contracting basis, including by reference to closing submissions. The further submissions post-Personnel Contracting came sometime later. That sequence of events created an inherently difficult situation for his Honour, increasing the risk of error.

39    Applying the law as stated in Personnel Contracting, unclouded by the manner in which the trial was conducted, we have reached a different conclusion.

40    In our opinion, the primary judge gave too much weight to factors emerging from the way the contract was performed that evidenced only a limited degree of exercise of control, rather than the existence of a contractual right of control, such as the periodic requirement to attend meetings.

41    At the same time, we consider that the primary judge gave insufficient weight to the significance of the almost complete freedom that Mr Bennett had by reason of the contractual arrangements themselves. Mr Bennett was not required to devote all his time and activities during working hours to the performance of his duties for EFEX. Nor was he required to keep a record, or provide EFEX with a report, of the hours he worked. He was not given directions about how to carry out his tasks. He had the freedom to decide when and where he would meet clients or prospective clients. He was not required to attend the office except for meetings with Mr Brogan or South Australian branch meetings, which took place fortnightly. Nor was he required to seek approval from EFEX or Mr Brogan to attend private appointments. Thus, he could and did work out at a gym during business hours and attend university as he wished without seeking permission to do so. Like Mr Brogan, he had “free reign” about how he achieved sales. EFEX was only concerned with results, that is, that he met his sales targets.

42    Secondly, the EFEX business/own business evidence dichotomy can now be seen to be more slender when confined to contractual analysis, at best cutting both ways on that more confined analysis. Presenting as a member of an organisation to clients or customers in a case such as this carried some understandable weight, viewed through the prism of the now proscribed multifactorial analysis, but says little, let alone anything decisive, about the nature of the legal relationship in place. An independent contractor with even the clearest of written contracts to that effect may still present as a representative of the organisation by way of business cards, uniform, email address and job title, especially in any kind of services role. That much is now apparent in a range of service occupations of the kind identified by Gordon J in Personnel Contracting at [181].

43    The practical preclusion of the performance of other work as a matter of available time is also often going to be intractably neutral when it comes to the more limited ascertainment of contractual rights and obligations than it had under a multifactorial analysis not confined to the terms of the contract. That is especially so when there was no contractual prohibition on subcontracting of tasks, in particular those of an administrative or otherwise rote or routine nature. As the High Court reminds us in Jamsek, an “expectation” that a person direct the bulk of their time to work for a particular customer, and a practical inability to perform work for others given that time constraint, might say little more than the fact that the customer has high demands for such services: see Jamsek at [54]-[55].

44    While Mr Bennett made no significant contribution of capital or assets and accrued no saleable rights or assets, that is far from decisive in a sales job of a kind in which that is inherently unlikely. More tellingly, Mr Bennett provided his own vehicle and mobile telephone, being essential tools of trade for any person in a sales role, with the associated expenses being paid out of trust funds and no contractual right to reimbursement from, or contribution, by EFEX. We accept that such matters will not always be a decisive indication that a person is an independent contractor (see Hollis v Vabu [2001] HCA 44; 207 CLR 21 at [22], [56]; Personnel Contracting at [2]). As Mr Bennett properly conceded at trial, however, they weighed in favour of a finding that he was an independent contractor: J[124]. The same reasoning applies to Mr Bennett paying for client entertainment without any contractual right to seek any reimbursement.

45    Finally, perhaps the most important source of error concerned the remuneration and taxation arrangements. Under the prior multifactorial analysis this often assumed little weight, or its significance was diminished when balanced against other considerations of a less inherently contractual nature, especially if only implemented as an afterthought to reduce tax rather than a reflection on the contractual relationship. Here, the reasoning in Tattsbet Ltd v Morrow at [70] is more to the point than the reasoning in Ace Insurance Limited v Trifunovski at [37]. That is because, in the present case, the taxation arrangements were a consequence of the terms of the contract from the outset. They formed part of the earliest pre-contractual discussions. They went directly to contract formation, and can properly be seen to be a design feature of that contract as a core term or condition, albeit not reduced to writing. They were not just manifestations of opinion, nor set up later for incidental financial advantage, such as by some kind of artificial or at least questionable income splitting. At the very outset, before Mr Bennett commenced work for EFEX, he set up a trust for the very purpose of the impending commencement of work under the contract with EFEX, so that payment could be made in that way for the services he performed.

46    The inescapable conclusion is that Mr Bennett held the fruits of the contract with EFEX in his capacity as trustee of the Bennett Enterprises Trust, benefited from the tax arrangements attendant on that fact, and this was known and agreed to by EFEX. Indeed, the contract was offered on that express basis. Mr Bennett used the trust structure to hold income from EFEX, pay his business costs and take advantage of certain tax benefits in ways broadly analogous to the use of partnerships by independent contractors in Jamsek, where they were held to indicate that the impugned workers were conducting their own business: see Jamsek at [63].

47    Mr Bennett’s submission that regard to the trust structure and tax arrangements must follow characterisation of the relationship is misplaced in a context where these were foundational terms of the contract. For the reasons already discussed, the establishment of the trust was not just an expression of the parties’ opinion about Mr Bennett’s relationship with EFEX. It was not really an opinion at all. It was a manifestation of the very nature of the contract that was agreed upon and entered into. The post-contractual conduct of issuing invoices in the name of the trust, of receiving payment into the trust bank account, and of paying expenses out of that bank account was conduct that was consistent with the nature of the contract itself as one of principal and independent contractor.

48    The taxation and remuneration arrangements alone were a significant basis for displacing the indicia of an employment contract. The limited right of contractual control exercised, as opposed to being shown to be contractually bestowed, did not provide any significant support for a contrary conclusion. The correct characterisation is that the relationship between the parties was that of principal and an independent contractor, not employer and employee. Only the clearest of written contracts to the contrary could readily have displaced that.

Conclusion

49    The finding that Mr Bennett was an employee must be set aside and the dismissal of the originating application overturned. An order must be made prohibiting the Commission from hearing Mr Bennett’s unfair dismissal application upon the basis that it has no jurisdiction to entertain the unfair dismissal application.

50    It was common ground that there should be no order as to costs.

Associate:

Dated:    15 March 2024

REASONS FOR JUDGMENT

LEE J:

51    I have had the considerable benefit of reading, in draft, the reasons of Katzmann and Bromwich JJ.

52    Following WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456 and, more particularly, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 275 CLR 254, the High Court has made plain that the key determinant of the character of any given work relationship is to be found in the terms of the contract between the parties.

53    I agree that the combined effects of the taxation and remuneration arrangements; the limited right of contractual control; the ability to work when and where Mr Bennett chose; the use of his own car and telephone; the absence of a prohibition on delegating; and the absence of leave provisions, point to the conclusion Mr Bennett was an independent contractor.

54    This seems to me to flow from the necessity to have regard to two important considerations after identifying the terms of the contract, being: first, the extent to which EFEX had the right to control how, when and where Mr Bennett performed the work; and secondly, the extent to which Mr Bennett can be seen to be working in his own business as distinct from the business of EFEX: Personnel Contracting (at 184–185 [36]–[39], 197 [73] per Kiefel CJ, Keane and Edelman JJ; 208–209 [113] per Gageler and Gleeson JJ; 233–235 [180]–[183] per Gordon J, with whom Steward J agreed).

55    It follows I agree with the orders proposed; but I wish to add a further observation given some of the submissions made on this appeal and similar submissions I have seen in recent times in other cases.

56    The approach to the categorisation of work relationships in Australia now required is partly justified because it provides greater certainty than the so-called “multifactorial test”, which could involve an in-depth analysis of facts and circumstances pertaining to the arrangement, including post-contractual conduct, extending beyond circumstances where variation, waiver or estoppel are at issue. Of course, the approach now mandated is a relatively straightforward exercise when one is dealing with a comprehensive written contract executed without subsequent variation of the rights and obligations of the parties (or other legal challenges to the contract’s efficacy) between counterparties able to bargain freely. As can be seen in this case, however, it can present greater challenges in the context of more informal arrangements or, more particularly, wholly, or partly oral pactions. This is partly because the terms of an oral contract may not be limited to express terms; as terms may be inferred from the circumstances, including a course of dealing between the parties, or implied where necessary for business efficacy: Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; (2022) 406 ALR 678 (at 683–684 [21]–[22] per Kiefel CJ and Gageler J).

57    It is now sometimes said by counsel for employers in cases where there are informal arrangements, post the trilogy of cases mentioned above, that the Court must put out of its mind any post-contractual conduct. This is a significant oversimplification.

58    It is well established that post-contractual evidence is admissible to resolve what was said in forming an oral contract. As Murphy JA said in Fazio v Fazio [2012] WASCA 72 (at [193], Pullin and Newnes JJA agreeing):

Such conduct may be considered for the purpose of inferring not only whether a binding agreement had been reached, but also its subject matter and the identification of its necessary terms: Bell Group [Ltd (in liq) v Westpac Banking Corporation (No 9) and (No 10) [2008] WASC 239; [2009] WASC 107; (2008) 39 WAR 1] [2665]–[2672]; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 [7]–[27], [45] (Spigelman CJ); Australian Estates Ltd v Palmer (Unreported, NSWCA, 22 December 1989). In the last mentioned case, Samuels JA (with whom Kirby P and Meagher JA agreed) said:

While it is true that a court cannot have regard to the subsequent conduct of the parties as an aid in the interpretation of a term in a written contract (see James Miller and Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583, Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235), this is merely an application of the parol evidence rule. Thus, as Stephenson LJ (with whom O’Connor LJ and Sir Stanley Rees agreed) said in Meares v Safecar Security Ltd [1983] QB 54 at 77, dealing with an oral contract:

‘There is nothing in those authorities which prevents the court from looking at the way the parties acted for the purpose of ascertaining what that term was. Commonsense suggests that their subsequent conduct is the best evidence of what they had agreed orally but not reduced to writing, though it is not evidence of what any written terms mean;’

59    Put another way, in the absence of a written contract, the established principles of inferring a contract from the acts and conduct of parties (as well as in the absence of their words), come into play, and such conduct may be considered not only for the purpose of inferring whether a binding agreement had been reached at some point in time, but also for the purpose of identifying its necessary terms.

Associate:

Dated:    15 March 2024