Federal Court of Australia

Rizk v Basseal [2024] FCA 647

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with no order as to costs.

2.    The respondents’ interlocutory application filed on 14 March 2024 be dismissed with 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

SHARIFF J:

A.    INTRODUCTION

1    In the proceedings below, the appellant (Mr Rizk) claimed that he was an employee of BB Dundas Pty Ltd (BB Dundas). Mr Rizk claimed that he was underpaid by BB Dundas as a result of various alleged contraventions of the Fair Work Act 2009 (Cth) (FW Act). He also made claims against the first respondent (Mr Basseal) and the second respondent (Mr Boustany) on the basis that they had been “involved in” BB Dundas’ contraventions within the meaning of s 550 of the FW Act.

2    By the time the proceedings were heard by the primary judge, BB Dundas had been deregistered. Accordingly, the case proceeded only as against Mr Basseal and Mr Boustany. In the result, the primary judge was not satisfied that Mr Rizk was an employee of BB Dundas and dismissed the proceedings: see Rizk v BB Dundas Pty Ltd [2023] FedCFamC2G 583 at [6], [51]-[53] (Primary Judgment or PJ).

3    By way of a notice of appeal filed on 28 August 2023, Mr Rizk seeks to set aside the orders made by the primary judge and have the matter remitted for determination by a different judge of the Court below. In response to the appeal, Mr Basseal and Mr Boustany filed an interlocutory application on 14 March 2024 seeking summary dismissal of the appeal pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FC Act) and, variously, rr 26.01(1)(a), (b) and (c) of the Federal Court Rules 2011 (Cth) (FC Rules), as well as an order for costs on an indemnity basis.

4    I heard the application for summary dismissal and the appeal concurrently on 27 May 2024, as a single judge sitting in the appellate jurisdiction of this Court pursuant to ss 24(1)(d) and 25(1AA)(a) of the FC Act.

5    For the reasons that follow, the appeal should be dismissed, as should the interlocutory application filed by Mr Basseal and Mr Boustany.

B.    A PRELIMINARY MATTER

6    Notwithstanding that BB Dundas had been and remained deregistered as at the date of filing, Mr Rizk instituted his appeal in this Court identifying BB Dundas as the first respondent to the appeal. This occurred despite the primary judge noting in the PJ at [4] that BB Dundas had been deregistered. By an order made by a Registrar of this Court on 17 January 2024, BB Dundas was removed as a party to the appeal. The matter was thereafter listed before me for hearing on 30 April 2024. Mr Rizk’s legal representatives did not comply with orders made by the Registrar and by me for the filing and service of appeal books and submissions. Instead, shortly before the hearing of the appeal, Mr Rizk’s legal representative, Mr Kyle Kutasi, applied to adjourn the hearing on the basis that he: (a) had not procured a copy of the transcript of the proceedings below; and (b) would be making an application to rejoin BB Dundas as a party to the appeal on the basis that it was in the process of being reregistered. Both developments were unsatisfactory. I was provided with scant evidence as to the actual attempts made by Mr Kutasi to obtain the transcript of the proceedings below and the application to rejoin BB Dundas was inutile in circumstances where Mr Rizk did not proceed against that entity in the proceedings below as it had been deregistered: see PJ [4].

7    I reluctantly granted the adjournment (over the objection of Mr Basseal and Mr Boustany) on the basis that I could not determine the appeal without proper appeal books and submissions, and that Mr Rizk should not be placed at a disadvantage due to the conduct of his legal representatives. I indicated to Mr Kutasi that I would not expect his client, Mr Rizk, to have to bear the costs of and associated with the delays and adjournment.

C.    MR RIZK’S GROUNDS OF APPEAL AND THE STANDARD OF APPELLATE REVIEW

8    By his notice of appeal, Mr Rizk contends that:

(a)    Ground 1: the primary judge erred in his characterisation of the working arrangement between him and BB Dundas, as not being one of employer-employee, in that:

(i)    at PJ [38], the primary judge made a factual finding in the absence of evidence relating to Mr Rizk;

(ii)    at PJ [51], the primary judge made a finding which is materially inconsistent, in light of the facts otherwise found at [45], that Mr Rizk did not provide invoices and was not paid under an Australian Business Number (ABN); and

(iii)    at PJ [49], the primary judge erred in finding that evidence of Mr Rizk being remonstrated for non-attendance at the worksite by BB Dundas was not indicative of “control” in an employer-employee relationship.

(b)    Ground 2: the primary judge erred in finding at PJ [51]-[52] that Mr Rizk was not an employee, in that:

(i)    the primary judge did not consider the authority of Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 and its propounded tests for control, which were raised by Mr Rizk;

(ii)    the primary judge erred in his application of the authority of Jin v Premium Travel Pty Ltd [2023] FedCFamC2G 22 to the facts of the matter; and

(iii)    the primary judge erred in his application of the FW Act, in finding that Mr Rizk was neither an employee, nor an independent contractor, thus placing Mr Rizk in a third category of worker who is neither an independent contractor nor a “national system employee” protected in their workplace by the FW Act.

(c)    Ground 3: the primary judge erred in failing to properly consider and provide adequate reasons in respect of Mr Rizk’s submissions, both written and oral, in respect of the issue of control, in that:

(i)    Mr Rizk made substantive submissions about the “degree of control” indicia in determining whether he was a national system employee or an independent contractor, which were not given adequate consideration.

9    An appeal to this Court under s 24(1)(d) of the FC Act is an appeal by way of rehearing: see, e.g., Toogood v Gott [2023] FCA 1521 at [36]. Such an appeal is a procedure for the correction of error: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [30] (Gageler J). To succeed, an appellant must demonstrate error of law or fact on the part of the primary judge: SZVFW at [30] (Gageler J).

10    In Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122; (2020) 279 FCR 631 (Personnel Contracting (FCAFC)), the Full Court of this Court addressed the role of an appellate Court when faced with a challenge to a finding that a person was or was not an employee of another. In reasons which were not disturbed on appeal to the High Court, Allsop CJ stated as follows at [22]:

It is necessary to say something about the nature of the appeal in these circumstances. This is not an exercise in, or akin to, discretionary decision-making. There may be evaluation involved but the person is either an employee or an independent contractor. The conclusion here is one drawn from largely uncontested facts without any assessment of demeanour or veracity of witnesses intruding. The case was not exceptionally long, five days including careful and detailed submissions. There is no call for the kind of consideration in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; 73 ALJR 306; [1999] HCA 3 of an advantage in the primary judge having the evidence fall out in sequence over a period of time permitting absorption, contemplation and reflection of the whole of the evidence, including its complexities as it unfolded over time. This Court has had the advantage of skilled and carefully put submissions of senior counsel, not to mention the advantage of a carefully expressed and clear judgment of the learned primary judge. There is no particular advantage of the trial judge to call up the need for deference or full weight to be given to the impressions of the primary judge as in such contexts described in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 (Branir) at [29]. This Court is in as good a position as the primary judge to assess and characterise the relationship between Mr McCourt and Personnel. The conclusion here is an example of what was said in Branir at [25]: “where, by the nature of the fact or conclusion, only one view is (at least legally) possible … the preference of the appeal court for one view would carry with it the conclusion of error.”

(Emphasis added).

11    Similarly, Lee J stated at [78]-[79]:

[78] Enough has been said to explain why the objective assessment or evaluation called for often involves the resolution of questions of fact and degree upon which views may legitimately differ: Roy Morgan v FCT (at [32] per Keane CJ, Sundberg and Kenny JJ). Despite this, the evaluation called for is not a discretionary decision: see Crown Resorts Ltd v Zantran Pty Ltd (2020) 374 ALR 739; 141 ACSR 644; 148 IPR 394; [2020] FCAFC 1 (at [103] per Lee J, with whom Allsop CJ and White J generally agreed). In particular, it is not a task of weighing up the relevant indicia to form a view as to whether a person should be classified as an employee, but making a determination as to whether a person is an employee.

[79] As an appeal from an evaluative judgment rather than a discretionary decision, the standard of review described in Warren v Coombes (1979) 142 CLR 531 at 551–3; 23 ALR 405 at 422–4 (per Gibbs ACJ, Jacobs and Murphy JJ) applies. This “correctness” standard has been the subject of discussion in a number of cases (see, for example, Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301; 358 ALR 683; 133 IPR 375; [2018] FCAFC 93 (at [4] per Allsop CJ, with whom Markovic J agreed at 346 [169])) and does not require explication. Recently, the relevant principles relating to appellate review in the current context were explained by Anderson J in Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 1934 (Jamsek) (at [165]–[174] with whom Perram J agreed at [2] and Wigney J agreed at [14]).

(Emphasis added).

12    As is apparent from the grounds of appeal set out above, Mr Rizk’s appeal is not limited to questions or conclusions of law (or mixed fact and law). He also challenges findings of fact and the inferences to be drawn from those facts which led the primary judge to the ultimate conclusion that he was not an employee. As noted by Lee J in Personnel Contracting (FCAFC), the appropriate standard of review in such a case is the “correctness standard” set out in well-known authorities such as Warren v Coombes (1979) 142 CLR 531.

13    However, it should be observed that Mr Rizk does not challenge any of the findings made by the primary judge as to his credit and reliability, or the finding that certain documentary evidence which he tendered was unreliable (as to which see below at [19]). Nor does Mr Rizk challenge the finding that the evidence of Mr Basseal and Mr Boustany was to be preferred to his evidence. As a result, my consideration of Mr Rizk’s grounds of appeal must proceed on the basis that the primary judge had all the advantages of making an assessment of the evidence at trial, noting that findings of fact based on the credibility of witnesses can only be reversed by an appellate court “in exceptional cases”: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [94] (McHugh J).

14    This approach calls for me, on an appeal by way of rehearing, to do a real review of the evidence that was before the primary judge but noting that his Honour enjoyed all the advantages of being the trial judge: cf EFEX Group Pty Ltd v Bennett [2024] FCAFC 35 at [36] (Katzmann and Bromwich JJ). In order for an appeal such as this to be successful, a finding of error is indispensable: EFEX Group at [36]-[37] (Katzmann and Bromwich JJ).

15    With those principles in mind, I now turn to consider the reasons given by the primary judge.

D.    THE REASONS OF THE PRIMARY JUDGE

16    In the proceedings below, Mr Rizk was represented by Mr Kutasi. Mr Basseal and Mr Boustany were each self-represented. Each of Mr Rizk, Mr Basseal and Mr Boustany filed affidavits and were cross-examined. All the parties filed outlines of written opening and closing submissions. The matter was heard on 8 June 2023 and the Primary Judgment was delivered on 7 July 2023.

17    In the Primary Judgment, the primary judge noted at [5] that, in order to succeed, Mr Rizk first needed to satisfy the Court that he was an employee rather than an independent contractor. His Honour was not satisfied that Mr Rizk was an employee of BB Dundas. In arriving at that conclusion, the primary judge set out the salient features of the evidence given by the parties (PJ [7]-[43]), before turning to an identification of the applicable legal principles (PJ [44]) and the determination of the primary issue (PJ [45]-[52]).

18    The primary judge summarised the salient features of Mr Rizk’s evidence at PJ [7]-[26], as follows:

(a)    Mr Rizk did not have any formal trade qualifications, but had a speciality in concreting and carpentry and provided those services to other licensed building tradesmen: PJ [7];

(b)    Mr Rizk’s brother first introduced him to Mr Boustany in or about late 2016, and thereafter Mr Rizk undertook work for both Mr Boustany and Mr Basseal at various times in 2017 and early 2018: PJ [8], [18];

(c)    in or around March 2018, Mr Rizk was asked by Mr Boustany to do some work at Mr Basseal’s property at Hazel Place in Dundas and was paid $400.00 in cash by Mr Boustany for each day he attended: PJ [8];

(d)    in late May 2018, Mr Rizk was asked by Mr Boustany to undertake carpentry fit out work at a premises in Dorahy Street in Dundas: PJ [9];

(e)    around the beginning of June 2018, Mr Rizk went shopping for doors and other materials with Mr Boustany. Those materials were paid for by Mr Boustany: PJ [10];

(f)    over the next three months, Mr Rizk regularly worked at Dorahy Street. While working on the site, Mr Boustany was almost always on-site supervising tradesmen. On one occasion, Mr Boustany also assisted with landscaping: PJ [11]-[12];

(g)    around 22 June 2018, Mr Rizk had a conversation with Mr Basseal asking to be paid. In response, Mr Basseal gave him $500.00 in cash and promised to give him more cash when they had it: PJ [13];

(h)    Mr Rizk’s work was completed on 22 August 2018 and in that time he was paid a total of $4765.00 in cash by either Mr Boustany or Mr Basseal (except for one occasion when he was paid $200.00 by a third person): PJ [14];

(i)    Mr Rizk recorded the days he worked and the amounts he received in a notebook tendered as Exhibit 3 (Notebook). The Notebook commenced with an entry asserting that 18 days had been worked up to 1 June 2018 and then recorded various days worked intermittently in June and August 2018 including a number of half-days, with a gap in work between 8 June and 1 August 2018. The Notebook concluded with an entry that Mr Rizk performed $11,650.00 worth of work for which he received $4,765.00 in payment, leaving $6,885.00 owing: PJ [15]-[17];

(j)    Mr Rizk was not registered for goods and services tax (GST) and did not issue tax invoices: PJ [19];

(k)    Mr Rizk conceded that he “strung” Mr Basseal along for months, promising to do further work at his house. Mr Rizk used this as an opportunity to “squeeze” Mr Basseal for cash. Mr Rizk said that he did not work essentially for free for three months: PJ [20];

(l)    in cross-examination, Mr Rizk agreed that there was no employment contract in place between him and BB Dundas, there was no discussion as to working hours, he did not provide his Tax File Number (TFN) and he was in control of his work hours: PJ [22]-[23]. He also agreed that he used his own tools and that he did not wear any uniform or have any logo that identified him with any business associated with the respondents: PJ [23];

(m)    further, in cross-examination, Mr Rizk was unable to recall where he worked in March 2018, or the exact days he worked prior to 1 June 2018: PJ [22].

19    The primary judge found that Mr Rizk’s evidence was “troubling in many respects”, noting that he was unable to recall any detail of events during the period in question other than what was contained in his affidavit evidence: PJ [25]. The primary judge expressed “considerable concerns” as to Mr Rizk’s credibility and reliability: PJ [25]. The primary judge did not accept the Notebook as “a reliable and accurate record” in light of the fact that all the entries were contained on one page, the entries appeared to have used the same pen and the entries were not set out in a daily format (which might be expected of a diary containing entries over a period of nearly three months): PJ [25]-[26]. The primary judge stated that the Notebook had the “ring of a document” completed at “a later date at one time”: PJ [26].

20    The primary judge then proceeded to set out the respondents’ evidence at [27]-[43]. The salient features of Mr Basseal’s evidence were that:

(a)    BB Dundas never had any employees and only contracted the services of professionals to complete the development of the premises in Dundas: PJ [27];

(b)    in late February 2018, Mr Basseal had a conversation with Mr Rizk in which Mr Rizk stated that he had his own Australian Business Number (ABN) and worked on a daily rate of $400.00 including GST, but was willing to accept $350.00 if paid in cash: PJ [29];

(c)    Mr Rizk completed work at Mr Basseal’s home on a sporadic basis. Mr Basseal had no control over the hours or days worked. At the completion of the work on his home, Mr Basseal paid Mr Rizk $1,400.00 in cash: PJ [30];

(d)    from 26 March 2018 to 14 April 2018, Mr Rizk attended the Dorahy Street site regularly to complete finishing carpentry. Pursuant to a verbal agreement, Mr Rizk’s daily rate was $400.00 including GST, payment would be made after a minimum of two days’ work, and on conclusion of the works, a tax invoice would issue for the total amount paid. Mr Rizk was paid in cash for each day he worked: PJ [31];

(e)    in May 2018, Mr Rizk called and asked if there was further work he could undertake and completed one day’s work on 17 May 2018. On or around 24 May 2018, Mr Rizk agreed to complete some further work at the premises in Dundas. Mr Basseal made multiple attempts to contact Mr Rizk to get the work done, but it was not until 9 September 2018 that Mr Rizk contacted Mr Basseal stating that he would get the work done but that he needed payment in advance. Mr Basseal sent Mr Rizk $500.00 as an advance payment to get the work done: PJ [33];

(f)    Mr Rizk regularly failed to attend work notwithstanding promises he would do so: PJ [34];

(g)    in cross-examination, Mr Basseal agreed that he was the sole Director of BB Dundas and was responsible for the operations of the business: PJ [35]. Mr Basseal was unable to recall why he did not ask Mr Rizk for his ABN and never found out if Mr Rizk had an ABN. He agreed that if Mr Rizk was an independent contractor, he would have been required to have had a relevant carpentry licence. He also agreed that he was unable to produce any invoices from Mr Rizk: PJ [36];

(h)    Mr Basseal did not agree that Mr Rizk worked 18 days at the Dundas property prior to 1 June 2018. He said it was perhaps five or six days: PJ [37].

21    The primary judge stated that Mr Basseal had a very casual attitude towards the keeping of relevant business records, particularly in relation to GST: PJ [38]. The primary judge concluded that Mr Basseal’s failure to obtain from Mr Rizk an ABN and the fact that he agreed to pay Mr Rizk in cash “speaks of a cash agreement between the parties with no documentation being kept”: PJ [38].

22    Based on Mr Basseal’s evidence, the primary judge found that Mr Rizk would attend the Dundas site effectively when he felt inclined to do so and the evidence supported the assertion that Mr Basseal had no effective control over the work done by Mr Rizk (including by reference to the concessions made by Mr Rizk that he “strung Mr Basseal out” in the hope he would get paid): PJ [39].

23    The salient features of Mr Boustany’s evidence were that:

(a)    Mr Boustany was never a manager of BB Dundas, but was a close friend of Mr Basseal who helped out by attending the Dundas site in March 2018 to make sure that work was progressing to schedule: PJ [40], [42];

(b)    between late March and early April 2018, Mr Rizk did not attend the job site and was uncontactable for a period of two weeks: PJ [41];

(c)    Mr Boustany agreed that he would have attended the site once or twice every fortnight until September 2018: PJ [43].

24    The primary judge relied upon the decision in Jin at [9] and [16]-[19] to extract the principles to be applied in the determination of whether a person was an employee or contractor where no written contract exists. Relevantly, the passages extracted from Jin refer to well-known authorities including Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 13; Hollis; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165 (Personnel Contracting); and Ace Insurance Limited v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146 (Buchanan J).

25    The primary judge then turned to address the question as to whether Mr Rizk was an employee or contractor and made the following findings:

(a)    the evidence of Mr Basseal and Mr Boustany was to be preferred over that of Mr Rizk including because their accounts appeared to be supported by text and other messages exchanged between the parties: PJ [47];

(b)    Mr Rizk’s inability to answer almost any question put to him significantly undermined his credibility and reliability. Mr Rizk’s legal representative conceded that Mr Rizk was “not a great witness”: PJ [47];

(c)    it was common ground that Mr Rizk was paid in cash, and he conceded that he did not provide a TFN, superannuation details or invoices to BB Dundas, and did not have an ABN and was not licensed as a carpenter: PJ [45];

(d)    both parties’ compliance with matters in regard to taxation could be best described as “casual”: PJ [45];

(e)    Mr Rizk performed work for the respondents, but was in control of his hours and the days he worked: PJ [46]. BB Dundas did not exercise any effective control over Mr Rizk, his obligation to work or the hours that he actually worked: PJ [46];

(f)    the suggestion that Mr Rizk was remonstrated for not attending the site when expected was inconclusive as to whether the relationship was one of employment or an instance of an “unreliable subcontractor”: PJ [49].

26    The primary judge was not satisfied that an employment relationship existed and, as a result, the application failed: PJ [51]. The primary judge noted that “no alternative contractual matter” had been pleaded by Mr Rizk, meaning the Court could not determine whether or not in fact there may have been work performed in respect of which payment was not made: PJ [51]. The primary judge further stated that, even if he had been satisfied that an employee-employer relationship existed, there would have been considerable difficulty in finding accessorial liability on the part of Mr Boustany: PJ [52].

E.    CONSIDERATION

E.1    Overview of Mr Rizk’s arguments on appeal

27    Mr Rizk’s arguments in support of his grounds of appeal proceeded with scant regard to the principles applicable to the determination of an employment relationship. The arguments proceeded on an application of the “multifactorial test” said to arise from Hollis. In particular, as is apparent from each of Grounds 1 and 2, Mr Rizk’s arguments sought to give prominence to the indicia of control and the alleged absence of certain documentary and taxation arrangements between the parties as being determinative. In dealing with these arguments, it is first necessary to deal with questions of principle and the contractual relationship between the parties before turning to the determination of Mr Rizk’s grounds of appeal.

E.1    The principles for determining whether there is an employment relationship

28    The decisions of the High Court in Personnel Contracting and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 275 CLR 254 have laid down the principles to be applied in the determination of the existence of an employment relationship where the rights and duties of the parties are “comprehensively committed to a written contract” and that contract is not a sham: Personnel Contracting at [43]-[44].

29    However, it does not follow that in cases where there is no written contract, or it is partly written, that the identification of the contract and its terms have no role to play in the determination of the essential question as to whether the relationship is one of employment. As Lee J stated in EFEX Group at [52], the decisions of the High Court in WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456, Personnel Contracting and Jamsek make 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”.

30    Where there is no written contract, the identification of the parties’ contractual rights and duties must proceed somewhat differently but the fundamental task remains the same as where a written contract exists: the parties’ contractual rights and obligations are to be ascertained and characterised: EFEX Group at [7] (Katzmann and Bromwich J) citing Personnel Contracting at [177] (Gordon J, with Steward J agreeing) and Chiodo v Silk Contract Logistics [2023] FCA 1047 at [9] (Kennett J); see also EFEX Group at [52]-[56] (Lee J). The terms of such a contract must be determined on the application of orthodox principles. The terms may be inferred from all the circumstances, including by reference to the parties’ words and conduct at the time of the formation of the contract, a course of dealing or implied where necessary by reason of business efficacy: EFEX Group at [9] (Katzmann and Bromwich J) and at [56]-[59] (Lee J), both citing Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; (2022) 406 ALR 678 at [21]-[22] (Kiefel CJ and Gageler J). In certain circumstances, it may be permissible, within limits, to have regard to post-contractual conduct where it is admissible in seeking to resolve what was said in the formation of the contract, to infer the existence of the contract from the acts and conduct of the parties, or to identify its necessary terms: EFEX Group at [56]-[59] (Lee J).

31    It follows that, whether the contract between the parties 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 duties: EFEX Group at [7] (Katzmann and Bromwich J) and [52] (Lee J).

32    Application of the so-called “multifactorial” test has been eschewed. The judgment of Kiefel CJ and Keane and Edelman JJ in Personnel Contracting makes it clear at [47] and [55] that the “multifactorial” test or approach has no role to play where the relevant contract is comprehensively in written form. That is because that “test” approached the terms of the relevant contract as but only one factor that had to be balanced against all the dealings between the parties: Personnel Contracting at [55] (Keifel CJ and Keane and Edelman JJ). Gordon J (with whom Steward J agreed) considered the “multifactorial” approach at [186]ff and concluded at [189] that it must be “put to one side”.

33    In this regard, it is also well to refer to the observations made by Kiefel CJ and Keane and Edelman JJ in Personnel Contracting at [33]-[34]:

A multifactorial approach is open to the objection that it “does not provide any external test or requirement by which the materiality of the elements may be assessed”. As Lee J recognised in this case, without guidance as to the relative significance of the various factors the “multifactorial test” is distinctly “amorphous” in its application, is “necessarily impressionistic”, and thereby is “inevitably productive of inconsistency”. Such a test is apt to generate considerable uncertainty, both for parties and for the courts. That uncertainty is exacerbated where it is contended that the test is to be applied in respect of the parties’ conduct over the whole course of their dealings with each other.

In Stevens v Brodribb Sawmilling Co Pty Ltd and Hollis v Vabu Pty Ltd, it was said that the characterisation of a relationship as being either one of employment or one of principal and independent contractor is to be determined by reference to “the totality of the relationship between the parties”. It was not suggested that this assessment should proceed as if the court is running down items on a checklist in order to determine a balance of ticks and crosses. It has never been suggested that the factors identified to be relevant are of equal weight in the characterisation of the relationship. Some understanding as to the relative significance of the various factors is desirable, both to minimise the extent to which application of the test may produce an impressionistic and subjective outcome on the one hand, and to avoid the injustice of a mechanistic checklist approach on the other.

(Footnotes omitted).

34    The central question remains whether the relevant person is an employee, but it may be useful to consider that question by reference to whether the person is working in their own business or the business of another. Kiefel CJ and Keane and Edelman JJ in Personnel Contracting stated at [39]:

While the “central question” is always whether or not a person is an employee, and while the “own business/employer’s business” dichotomy may not be perfect so as to be of universal application for the reason that not all contractors are entrepreneurs, the dichotomy usefully focusses attention upon those aspects of the relationship generally defined by the contract which bear more directly upon whether the putative employee’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise. In this way, one may discern a more cogent and coherent basis for the time-honoured distinction between a contract of service and a contract for services than merely forming an impressionistic and subjective judgment or engaging in the mechanistic counting of ticks on a multifactorial checklist.

(Footnotes omitted).

35    As to these matters, Gordon J (with whom Steward J agreed) stated at [181]-[184]:

Asking whether a person is working in their own business may not always be a suitable inquiry for modern working relationships. It may not take very much for a person, be they low-skilled or otherwise, to be carrying on their own business. The reality of modern working arrangements, the gig economy, and the possibility that workers might work in their own business as well as one or more other businesses in the same week, suggest that focusing the analysis on “own business” considerations distracts attention from the relevant analysis — whether the totality of the relationship created by contract between the person and a purported employer is one of employee and employer. The parties to, and the terms of, the contract may show that the purported employee entered into the contract as part of their own business.

Another reason for not asking whether a person is carrying on a business of their own is that that inquiry will ordinarily direct attention to matters which are not recorded in the contract, such as what “the parties said or did after it was made”. For instance, in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd, North and Bromberg JJ said that some of the “hallmarks of a business” are conducting a commercial enterprise “as a going concern”, the “acquisition and use of both tangible and intangible assets in the pursuit of profit”, the “notion of system, repetition and continuity”, and “operat[ing] in a business-like way”. But, unless those matters are provided for in the contract, they are not relevant and should be put to one side.

The better question to ask is whether, by construction of the terms of the contract, the person is contracted to work in the business or enterprise of the purported employer.

That question is focused on the contract, the nature of the relationship disclosed by the contract and, in this context, whether the contract discloses that the person is working in the business of the purported employer. It invites no inquiry into subsequent conduct. A consequence of a negative answer to that alternative question may be that the person is not an employee. Another consequence may be, but does not have to be, that they have their own business. As five judges of this Court said in Hollis v Vabu Pty Ltd, both employees and contractors can work “for the benefit of” their employers and principals respectively, and so that, “by itself”, cannot be a sufficient indication that a person is an employee (emphasis added). That does not detract from the fact that where the contract is oral, or partly oral and partly in writing, subsequent conduct may be admissible in specific circumstances for specific purposes — to objectively determine the point at which the contract was formed, the contractual terms that were agreed or whether the contract has been varied or discharged.

36    In EFEX Group, Katzmann and Bromwich JJ considered the abovementioned principles and stated at [12]-[14]:

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.

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.

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.

37    Having regard to the above, what then is the role, if any, of the “multifactorial” approach or “test” in circumstances where the contract is not wholly in writing or is only partly in writing?

38    In EFEX Group, which was a case where there was no written contract, Katzmann and Bromwich JJ (with whom Lee J agreed) referred at [42] to the “multifactorial analysis” as having been “now proscribed”.

39    In Secretary, Attorney-General’s Dept v O’Dwyer [2022] FCA 1183; (2022) 177 ALD 113, which was another matter in which it was found that there was no written contract and the contract was entirely oral, Goodman J found at [28]-[34] that the Administrative Appeals Tribunal had erred by applying the “multifactorial” approach which had been “disapproved” in Personnel Contracting and Jamsek (see at [28]). Goodman J reasoned as follows at [29]-[33]:

… [T]he appeal turns on whether the approach to be taken to determining whether an employment relationship has been created as explained in Personnel Contracting and Jamsek is limited to written contracts or extends to oral contracts (as in the present case) or to contracts which are partly written and partly oral. In my view, the approach taken in Personnel Contracting and Jamsek also applies where there is no wholly written contract, for the following reasons.

First, the foundational reasoning of the plurality in each of Personnel Contracting and Jamsek (Kiefel CJ, Keane and Edelman JJ) is that the focus of the inquiry is upon the legal rights and obligations created by the contractual relationship between the parties, rather than upon the history of the relationship between them (including the manner of performance of the contract).

Secondly, in the context of that foundational reasoning, there is no reason to distinguish between wholly written contracts and other contracts. This is so despite there being greater scope in the case of oral contracts for subsequent events to be considered as part of the process of identification of the terms agreed between the parties (see Personnel Contracting at [177], [183], [188] and [190] per Gordon J).

Thirdly, in Personnel Contracting at [57], the plurality noted that Hollis involved a contract that was partly oral and partly in writing and approved an observation that Hollis “does not alter or even challenge the orthodox principle that courts are not concerned with what has ‘actually occurred’ in a relationship, but rather with ‘the obligations by which the parties [are] bound’”. See also Gordon J at [190]. Further, at [59], the plurality stated that a reason why a wide-ranging review of the entire history of the parties’ dealings is unnecessary and inappropriate is that the task of the court is to enforce the parties’ rights and obligations, not to form a view as to what a fair adjustment of those rights might require. These observations apply with equal force to contracts which are not wholly in writing.

Thus, the fundamental task — the ascertainment and construction of the terms of the legal rights and obligations of the parties, rather than an assessment of the history of the relationship between the parties throughout the life of the contract, including the manner of performance of the contract — remains the same regardless of the form of the contract in question.

40    It follows that both a Full Court and another single judge of this Court have determined that the foundational reasoning in Personnel Contracting and Jamsek apply with equal force to the determination of the question as to whether a person is an employee where the relevant contract is not in writing or not wholly in writing. Not only am I bound to follow these earlier decisions, I consider them to be correct: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; (2021) 287 FCR 181 at [21], [30]. That is not to say that the Court does not consider indicia which may point in one direction or another as to the character of the relationship, but the indicia so considered are those found in the contract between the parties and do not entail a wide-ranging enquiry that rakes over the history of the dealings between the parties. Where there is no written contract or it is only partly written, there may be “greater challenges” as it will first be necessary to identify the contract and its terms: EFEX Group at [56] (Lee J). However, the task remains to determine the character of the relationship by reference to that contract and its terms. For example, in EFEX Group, it was by reference to the terms of the contract that the Full Court determined that particular indicia weighed in favour of the conclusion that the worker there was an independent contractor and not an employee: per Katzmann and Bromwich JJ at [38]-[49] and per Lee J at [53].

E.3    The contract between the parties

41    In the present case, there was no written contract between the parties: PJ [45]. In those circumstances, the primary judge had regard to the “conduct of the parties” to determine the terms of the contract and whether it was one of employment: PJ [45]. The primary judge concluded that the contract was not one of employment: PJ [51].

42    I have examined the evidence that was before the primary judge in order to make my own assessment as to the correctness of the conclusion reached by the primary judge. I have found no error in that conclusion.

43    By way of summary, the relevant evidence was as follows (mostly drawn from Mr Rizk’s evidence):

(a)    Mr Rizk had been a builder’s labourer since he was 16 and although he had no formal trade qualifications, he had speciality in concreting and carpentry. Mr Rizk provided essentially these types of services to other licensed building tradesmen;

(b)    the vast majority of work Mr Rizk performed was fitting of internal carpentry and cabinetry, such as doorways, door fittings, architraves and skirtings;

(c)    the Dorahy Street site in Dundas was, in fact, Mr Rizk’s parents’ residence. His parents had transferred their interest in that property to BB Dundas for the purpose of re-development of the site into two properties, with the freehold in one such property to be transferred back to Mr Rizk’s parents;

(d)    Mr Rizk’s brother introduced him to Mr Boustany in or about late 2016;

(e)    at some point, Mr Rizk performed work at Mr Boustany’s private residence;

(f)    in March 2018, Mr Boustany informed Mr Rizk that Mr Basseal was renovating his own home and asked whether Mr Rizk would be able to help him with that work;

(g)    Mr Rizk then performed work at Mr Basseal’s private residence in March and April 2018 in respect of which he was paid cash;

(h)    in late May 2018, Mr Boustany asked Mr Rizk whether he would be interested in performing work at the Dorahy Street site and would be paid in cash at the rate of $400.00 per day, and Mr Rizk agreed to do so;

(i)    the work involved installing and fitting doors, handles, skirtings and architraves at the two houses being constructed on the Dorahy Street site;

(j)    the materials including the doors and fittings were purchased by Mr Boustany;

(k)    Mr Rizk supplied his own tools and was not required to wear a uniform;

(l)    Mr Rizk did not provide an ABN, issue invoices or charge GST;

(m)    Mr Rizk did not provide a TFN or his superannuation details, and Mr Rizk was not asked to do so.

44    There was other evidence, which included that:

(a)    Mr Rizk chose which days to work, when he worked and how long he would work for;

(b)    as noted above, Mr Rizk kept the Notebook as a record of the days on which he allegedly worked, but the entries upon which Mr Rizk relied in the proceedings contained significant gaps in the work he performed for BB Dundas during the relevant period, which suggested that the was performing work for others during this period;

(c)    after he had completed work at the Dorahy Street site or that work had come to an end, Mr Rizk later approached Mr Basseal to perform further ad hoc work;

(d)    both before and after his engagement with BB Dundas, Mr Rizk has worked from job to job for various builders.

45    There was a dispute between the parties as to whether Mr Rizk was supervised by Mr Boustany and Mr Basseal, but this was resolved against Mr Rizk and those findings are not the subject of challenge in this appeal.

46    It is relevant that Mr Rizk’s pleadings neither asserted nor claimed that the work he performed at Mr Boustany’s private residence and later at Mr Basseal’s private residence was work performed as an employee of BB Dundas, or as an employee of, respectively, Mr Boustany or Mr Basseal. Rather, this was work which appears to have been accepted by Mr Rizk as having been performed on his own account, which Mr Rizk’s legal representative, in effect, accepted was the case in the hearing before me. The same position applied in respect of the subsequent work that Mr Rizk performed for Mr Basseal on an ad hoc basis.

47    It will be apparent that the evidence as to the contract and its terms was scant. On the basis of this evidence, the contract was an oral one as between Mr Rizk and BB Dundas, and its terms were no more than that Mr Rizk would perform carpentry related work at the Dorahy Street site in Dundas for which he would be paid in cash, and in respect of which he would perform work on days and at times that suited him. That was the extent of the contract and its terms.

48    In my view, the terms of the contract, viewed in context of the evidence, supported the finding that Mr Rizk was not an employee of BB Dundas, but worked on his own account as a tradesperson. Mr Rizk performed work at various sites and, for a time, performed work for BB Dundas at the Dorahy Street site at Dundas. The features of the contract (such as it was) between the parties were consistent with this fact. Although Mr Rizk was not an “entrepreneur”, in my view he was engaged in a business of his own account and was not engaged in the business of BB Dundas: EFEX Group at [14]. Although this is not the central question, I am satisfied that on the basis of the contract that was formed, the true character of the relationship was not one of employment. The primary judge did not err in so concluding.

E.4    Ground 1

49    Ground 1 seeks to challenge three distinct findings made by the primary judge.

50    First, Mr Rizk challenges the finding made at PJ [38] where the primary judge stated:

Mr Basseal revealed that he had a very casual attitude towards the keeping of relevant business records, particularly in regards to goods and services tax. His failure to obtain from Mr Rizk an Australian Business Number and the fact that he agrees he paid amounts in cash to Mr Rizk, speaks of a cash agreement between the parties.

51    In the notice of appeal, Mr Rizk contends that this finding was made in the absence of evidence relating to Mr Rizk. However, in his written submissions on appeal, Mr Rizk advanced a different argument, contending that the finding made at PJ [38] was “indicative of an employment relationship”. Mr Rizk contends that the fact that BB Dundas and its directors including Mr Basseal did not seek out whether he had an ABN or make payments to him pursuant to invoices subject to GST were indicia weighing in favour of the conclusion that Mr Rizk was an employee. Mr Rizk contends that, if he was to be engaged as an independent contractor, it would have been expected that BB Dundas and its directors would have acted in a way that was consistent with that engagement, which would have involved obtaining Mr Rizk’s ABN and collecting or charging GST in respect of the supply of his services. Mr Rizk says that this was consistent with the evidence given by Mr Basseal (as set out at PJ [36]). Mr Rizk contends that the primary judge drew the wrong inference from these facts and submitted that the “proper inference” was that the evidence supported a finding that the relationship was one of employment.

52    Despite the way it was expressed in the notice of appeal, this aspect of Ground 1 does not actually involve a challenge to the finding made by the primary judge at PJ [38]. It involves a contention that the finding made at PJ [38] supported a conclusion that Mr Rizk was an employee. I do not agree.

53    In my view, the primary judge correctly found at PJ [38] that the evidence supported a finding that the parties had a “cash agreement”. That was the overwhelming nature of the evidence of the parties. They expressly agreed that Mr Rizk would perform work in return for cash payments. They made no agreement as to the provision of ABNs, TFNs, invoices, charging GST, deducting income tax, or making superannuation contributions. Having regard to the terms of the contract, and given the nature of that arrangement, neither party kept business records, or sought them from each other, including those that were critical to compliance with taxation laws.

54    I do not accept that the correct conclusion or proper inference to be drawn from this evidence and, in particular, the finding at PJ [38] was that it was supportive of an employment relationship. In my view, it was neutral. Whilst the evidence established that Mr Rizk was not asked or directed to provide an ABN, supply invoices or charge GST (which would have been consistent with a contract for services), there was also no evidence that BB Dundas agreed to pay tax on a “Pay As You Go” basis or superannuation (which would have been consistent with a contract of service). As Buchanan J reasoned in Ace Insurance at [37] (being a passage that was part of the extract from the judgment in Jin recorded at PJ [44]), it is difficult to give much independent weight to arrangements about taxation. That is because, as Buchanan J reasoned, often the approach taken by the parties as to their taxation arrangements will simply reflect their views as to the nature of the relationship which may be taken into account but are not determinative. That is all the more the case where, as here, the arrangements involved payments by cash with little to no regard for the effect of that on the nature of their relationship, let alone the other legal and taxation consequences of their transactions. A contrary conclusion was reached in EFEX Group but that was a case where the taxation arrangements pointed compellingly in favour of the conclusion that the relevant worker was an independent contractor: at [45]-[48].

55    Second, Mr Rizk challenges the finding at PJ [51] which he contends was materially inconsistent with the finding made by the primary judge at PJ [45]. At PJ [45], the primary judge stated as follows:

As there was no written contact [sic] of employment, the Court needs to determine if a contract of employment existed, based on the conduct of the parties. It is common ground that payment was made to Mr Rizk in cash. Both parties compliance with such matters in regards to taxation, can be best described as casual. Mr Rizk conceded at no time did he provide a Taxation File Number, superannuation details or invoices. He states he did not have an Australian Business Number and was not licenced as a carpenter.

56    Mr Rizk contends that these findings were inconsistent with the conclusion reached by the primary judge at PJ [51] that he was not an employee. In his written submissions on appeal, Mr Rizk contended that:

(a)    he had not provided a copy of his TFN and superannuation details because the evidence before the Court was that he was not asked for them;

(b)    the finding that Mr Rizk was a subcontractor was contradictory to other findings made by the primary judge that Mr Rizk had neither an ABN nor issued any invoices, and that he was not properly licensed as a carpenter so as to be capable of trading as an independent contractor;

(c)    the correct inference to be drawn from these facts was that Mr Rizk was a “casual employee”.

57    This aspect of Ground 1 largely repeats the essential complaint raised in Ground 2, and also does not actually involve a challenge to the findings made by the primary judge at PJ [45]. It involves a contention that the findings made at PJ [45] supported the opposite conclusion to that reached by the primary judge at PJ [51] and that the primary judge should have made additional findings to the effect that Mr Rizk was not asked to provide certain information. I do not agree.

58    As I have noted above, the parties made no agreement as to the provision of any information or documentation to each other in relation to the payment of tax (irrespective of whether it was GST or income tax) or making superannuation contributions. The only term of their relevant contract was that Mr Rizk would be paid in cash. Having regard to this, it may be accepted that BB Dundas did not ask Mr Rizk to supply either a TFN or superannuation details which, if they had been asked for, would have been a fact pointing towards a relationship of employment. However, the evidence also indicated (as noted above) that BB Dundas did not ask Mr Rizk to provide an ABN or invoices, or to charge GST, which, if they were asked for, would have been consistent with an independent contractor relationship. The fact that BB Dundas did not ask for any such information was (as noted above) consistent with the primary judge’s conclusion that there was a casual attitude to documentation taken by both parties reflective of a “cash agreement”. Mr Rizk was a willing participant in the arrangement whereby he received cash payments. In my view, these facts as to the contractual relationship between the parties were, and are, neutral as to whether the relationship was one of employment, or not.

59    Further, the fact that Mr Rizk was not a licensed carpenter goes nowhere for the reasons I expand upon below.

60    Finally, Mr Rizk challenges the finding at PJ [49] and contends that the primary judge erred in finding that evidence of Mr Rizk being remonstrated for non-attendance at the site by BB Dundas was not indicative of “control” in a way that was consistent with an employer-employee relationship. The finding made by the primary judge at PJ [49] was as follows:

The Court notes that in order for the applicant to succeed, he must first establish that he was an employee. The legal representative for Mr Rizk contended that he was heavily supervised by Mr Boustany who was consistently present on site. The suggestion that Mr Rizk was remonstrated for not attending site when expected to the Courts [sic] mind, is not consistent with an employee-employer relationship, rather, it is inconclusive as to whether it was an employee-employer relationship or that of an unreliable subcontractor.

61    In his submissions on appeal, Mr Rizk contended that the evidence that he was remonstrated for failing to attend the site for work pointed towards an exercise of control and the conclusion that the relationship as one of employment. Mr Rizk submitted that the primary judge erred by failing to give weight to this consideration. I do not agree.

62    The argument advanced by Mr Rizk suffers the vice of seeking to look to the performance of the contract (here, evidence of alleged remonstration) as being a factor in favour of a finding of employment. Putting that to one side, it is a point without any substance. At its highest, the evidence (such as it was) was consistent with there having been either an express or implied term of the contract between the parties that Mr Rizk may be held to account if he did not perform the work which had been agreed between the parties. The evidence before the primary judge (which I have reviewed) established (including on Mr Rizk’s admission) that there were times and days on which Mr Rizk did not attend the site to perform work, and that at times he did not attend because he had “strung” Mr Basseal along to secure himself payment: PJ [20], [30], [34], [39]. The evidence also indicated that Mr Basseal was seeking to follow up with Mr Rizk as to when the work would be performed and that Mr Basseal was getting increasingly exasperated: PJ [30], [34]. Even if this evidence supported the existence of an express or implied term that Mr Rizk would be held to account for non-performance, such a term was equally consistent with that of a principal contractor seeking to hold a subcontractor to account. The primary judge’s finding at PJ [49] was correct given that the evidence was equally consistent with that of an “unreliable subcontractor”.

63    During the course of oral submissions before me, Mr Rizk advanced a further argument that was not contained in the notice of appeal. It was contended that the facts found by the primary judge were consistent with Mr Rizk being a “casual employee”. It was submitted that each of the elements of the definition of “casual employee” as set out in ss 15A(1) and (2) of the FW Act applied to Mr Rizk. Sections 15A(1) and (2) of the FW Act provide as follows:

Meaning of casual employee

(1)    A person is a casual employee of an employer if:

(a)    an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

(b)    the person accepts the offer on that basis; and

(c)    the person is an employee as a result of that acceptance.

(2)    For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:

(a)    whether the employer can elect to offer work and whether the person can elect to accept or reject work;

(b)    whether the person will work as required according to the needs of the employer;

(c)    whether the employment is described as casual employment;

(d)    whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

64    Mr Rizk did not seek leave to amend the notice of appeal to advance this argument, and it was not addressed in his written submissions. His case below was that he was a casual employee, but he did not advance his argument in the same way as he has on appeal. As a result of the argument not being put below in this way, and it not being in the notice of appeal or written submissions, Mr Rizk would need leave to rely upon it: see, e.g., Coulton v Holcombe (1986) 162 CLR 1 at 7; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [47]-[48]. In determining whether to grant leave, a question arises as to whether the argument has merit, and whether leave would occasion prejudice to the respondent: VUAX at [48]; ASY17 v Minister for Immigration and Border Protection [2019] FCA 1888 at [48]-[49]. In this case, it does not matter whether I grant leave or not because I do not accept Mr Rizk’s arguments.

65    Mr Rizk’s arguments are circular in that s 15A(1) defines a casual employee to be such an “employee” of an “employer”, which requires satisfaction that the relevant person is a “national system employee” (s 13) and that the counterparty is a “national system employer” (s 14). Section 15A(1) is a provision which defines what is meant by a class of employee being a casual employee, as opposed to whether the person is in fact an employee. Thus, s 15A(1) does not answer the question as to whether a worker is an employee or not. Further, as I pointed out during the course of oral submissions before me, the facts here (as found by the primary judge) were that Mr Rizk decided which days he would work, when he would work on those days and for how long. These facts, which Mr Rizk does not challenge, are inconsistent with casual employment whereby (at the risk of oversimplification) once an employee accepts a casual engagement, the employee is bound to perform work at the times and hours specified by the employer or otherwise agreed between them. The engagement here was, on the evidence before the primary judge and facts as found, once Mr Rizk accepted the engagement from BB Dundas he decided which days to work, when to work on those days and for how long.

66    For the above reasons, Ground 1 fails.

E.5    Ground 2

67    Ground 2 of the notice of appeal asserts that the primary judge did not consider the decision in Hollis and its propounded tests for control, which were raised by Mr Rizk in the proceedings below. It is further contended that the primary judge erred in his application of the decision in Jin to the facts of the matter.

68    As I have noted, the primary judge relied upon the decision in Jin which in turn cited Hollis. During the course of argument before me, Mr Rizk’s legal representative accepted this to be the case. Mr Rizk’s legal representative refined his argument to two points. The first point was that the primary judge failed to apply the correct principles (as opposed to the assertion the primary judge did not consider the authority in Hollis). The second point was that where the question of whether a worker is an employee or independent contractor is finely balanced, there is a statutory presumption in favour of making a finding as to employment.

69    As to the first point, Mr Rizk made the following contentions:

(a)    the focus on control is not about the actual exercise of control, but the right to do so: Hollis at [44];

(b)    the other indicia of employment as set out in Hollis all supported a finding that Mr Rizk was an employee of BB Dundas;

(c)    specifically, the primary judge should have found that:

(i)    as Mr Rizk was not licensed to be a carpenter, he was “unable” to be engaged as an independent contractor;

(ii)    as Mr Rizk was not registered for GST and did not have an ABN, it was not possible for him to generate “goodwill” and he did not operate an independent enterprise;

(iii)    the tasks completed by Mr Rizk were at the direction of the respondents;

(iv)    the fact that Mr Rizk supplied his own tools and did not wear a uniform were either not determinative or “irrelevant”; and

(v)    it could not be said that Mr Rizk was operating his own business as opposed to being employed to work in BB Dundas’ business.

70    I do not accept Mr Rizk’s arguments. Mr Rizk’s contentions sought to apply Hollis in way that does not reflect the nuanced way in which the plurality in Personnel Contracting at [57] and Gordon J at [190] considered that it needs to be read and understood. Further, Mr Rizk’s contentions also sought to, in essence, apply the “multifactorial” test by examining the history of the parties’ relationship and the performance of the contract, which has been the subject of disapproval by the High Court. The “multifactorial test” upon which Mr Rizk heavily relied was never one that involved mechanically checking indicia off against a list in some regimented fashion: On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) [2011] FCA 366; (2011) 214 FCR 82 at [220].

71    In any event, there was a considerable degree of selective focus in Mr Rizk’s contentions. As to the question of a licence, the contract between the parties was one whereby Mr Rizk agreed to perform particular types of carpentry related work. The holding of a licence was irrelevant to the contract made by the parties. The evidence before the primary judge established that notwithstanding that Mr Rizk did not hold a licence as a carpenter, he had performed work in the building industry for some time. Before his engagement with BB Dundas, Mr Rizk performed these services for other licensed building tradesmen, and after he finished his work for BB Dundas he was self-employed and worked from job to job: PJ [7], [24]. Mr Rizk’s legal representative accepted during oral argument before me that the absence of a licence to perform such work, including carpentry work, was not determinative one way or the other as to whether the relationship was one of employment. As a result, the point that Mr Rizk did not have a licence goes nowhere.

72    To the extent that Mr Rizk relied upon the absence of a licence as supporting a finding that he was not operating a sophisticated business, or any business, or one whereby he was generating goodwill (even allowing for the inchoate nature of that concept), such arguments need to consider the context. It does not follow from these facts that Mr Rizk was working in the business of BB Dundas and not working on his own account in a business of his own. As I have noted above, the evidence supported the finding that, even though Mr Rizk could not be described as an entrepreneur, he was engaged in his own business (such as it was) in the provision of carpentry and associated services to various builders and at various building sites. The evidence indicated that Mr Rizk was able to, and did, generate work on his own account from contacts and by reason of the quality of that work. All of this evidence was also consistent with the primary judge’s finding that Mr Rizk chose which days to work and when to work.

73    The present case was not overly complicated. Mr Rizk was engaged to perform work by BB Dundas in respect of finite tasks at one site. He also sought out additional work on an ad hoc basis. He was paid cash for the work he performed. He chose when to work and was left to perform his work within the scope of his expertise. He was followed up when he did not attend to that work, or failed to communicate at all for a period of weeks. It appears that he did not exclusively provide work to BB Dundas. He also provided work at the personal homes of each of Mr Basseal and Mr Boustany in respect of which he did not claim to be an employee. When the work he performed ceased, he moved on to perform other work from job to job, consistently with what he had done beforehand. In assessing all of the evidence, the primary judge regarded Mr Rizk to be an unreliable witness, and preferred the evidence of Mr Basseal and Mr Boustany. Having regard to these matters, the primary judge did not misapply the applicable legal tests, and correctly concluded that Mr Rizk was not an employee. I detect and discern no error.

74    As to Mr Rizk’s second point, Mr Rizk’s legal representative conceded that there was no legal authority to support the operation of a presumption in favour of employment, and that the argument he sought to make was a “novel” one. I was taken to a judgment of Learned Hand J in Commissioner of Internal Revenue v Ickelheimer, 132 F.2d 660 (2d Cir. 1943), but I do not see the relevance of that decision to the operation of the type of presumption advanced on Mr Rizk’s behalf. The fact that the FW Act contains protections for employees does not give rise to any presumption in favour of finding workers to be employees. As stated by the plurality in Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 at [19] (French CJ, Bell and Keane JJ), “[t]he common law in Australia must evolve within the limits of judicial power and not trespass into the province of legislative action”. To recognise a statutory presumption in favour of a finding of employment might be said to involve “the assumption by [this Court] of a regulatory function defined by reference to a broadly framed normative standard” (Barker at [20]) and would represent a significant alteration to the common law of this country. I am not prepared to find that such a presumption exists.

75    Accordingly, Ground 2 fails.

E.3    Ground 3

76    Mr Rizk contends that the primary judge erred in failing to properly consider and provide adequate reasons in respect of Mr Rizk’s submissions, both written and oral, in respect of the issue of control. This contention is largely repetitive of the other grounds. Mr Rizk’s legal representative did not address this contention in oral argument and relied upon his written submissions.

77    It is axiomatic that reasons for judgment should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385; (1983) 53 LGRA 325 (Mahoney JA); Public Services Board (NSW) v Osmond (1986) 159 CLR 656 at 666 (Gibbs CJ); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (McHugh JA); Pannizutti v Trask (1987) 10 NSWLR 531 at 532; Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 at [129], [130] (Hayne J).

78    In my view, the Primary Judgment attends to these requirements. In short, the primary judge considered the evidence and the arguments. His Honour did not accept Mr Rizk to be a reliable witness and did not accept Mr Rizk’s primary argument that BB Dundas exercised control or the right to control over him. The primary judge concluded that it was Mr Rizk who was able to control his days and hours of work, and the way he performed that work. The primary judge was not satisfied that any of the other indicia weighed in favour of a finding that Mr Rizk was an employee. I consider the primary judge’s reasons to be appropriately succinct, to the point, and adequate.

79    Ground 3 fails.

F.    THE RESPONDENTS’ APPLICATION FOR SUMMARY DISMISSAL

80    As noted above, the respondents also sought summary dismissal on the grounds that: (a) Mr Rizk has no reasonable prospect of successfully prosecuting the proceedings; (b) the appeal is frivolous and vexatious; and (c) the appeal is an abuse of the process of the Court.

81    It is not necessary for me to deal with this application in light of my decision to dismiss the appeal. In any event, the essential point made in support of the summary dismissal application was that the primary judge did not make any findings against Mr Basseal or Mr Boustany, and therefore the appeal as against them had no prospects of success and was an abuse of process. This reflects a misunderstanding of the appeal. That is because Mr Rizk sought to challenge the finding that he was not an employee of BB Dundas and, if successful on that point, he sought a remitter to the Court below for determination of the matter which would include determination of whether Mr Basseal and Mr Boustany were accessories to any contravention engaged in by BB Dundas. I would not have regarded the appeal as lacking reasonable prospects, being frivolous and vexatious, or being an abuse of process on the grounds raised by Mr Basseal and Mr Boustany. In those circumstances, I will simply dismiss the respondents’ interlocutory application with no order as to costs.

G.    DISPOSITION

82    In view of the preceding reasons, the appeal should be dismissed.

83    As to the question of costs, the appeal was one arising in respect of claims made under the FW Act. Section 570 of the FW Act provides that costs may only be ordered against a party where the Court is satisfied of one or more of the conditions specified in sub-section (2). I am not satisfied that any of those conditions are met in this case. In any event, Mr Basseal and Mr Boustany appeared as litigants in person and would have incurred no legal costs in respect of which there could be recovery.

84    In those circumstances there will be no order as to costs.

Associate:    

Dated:        19 June 2024