Federal Court of Australia

Merrimans Local Aboriginal Land Council v Dwight [2025] FCA 991

ORDERS

THE COURT ORDERS THAT:

1.    Order 4 of the orders made by the Federal Circuit and Family Court (Division 2) on 17 May 2024 be set aside and in lieu thereof it be declared that:

(a)    The Respondent contravened s 293 of the Fair Work Act 2009 (Cth) (the FW Act) by not paying the Applicant a minimum wage.

2.    Order 6 of the orders made by the Federal Circuit and Family Court (Division 2) on 17 May 2024 be set aside.

3.    Order 9 of the orders made by the Federal Circuit and Family Court (Division 2) on 17 May 2024 be set aside and in lieu thereof it be declared that:

(a)    The Respondent contravened s 323 of the FW Act by not paying the Applicant in full including his applicable minimum wages, long service leave and loading.

4.    The appeal be otherwise dismissed.

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

REASONS FOR JUDGMENT

KENNETT J:

Introduction

1    The appellant (Merrimans) appeals from two judgments delivered by the Federal Circuit and Family Court of Australia (Division 2) in proceedings commenced by the respondent (Mr Dwight). The first judgment, delivered on 17 May 2024, included declarations that Merrimans had contravened provisions of the Fair Work Act 2009 (the FW Act) in respect of Mr Dwight and an order that it pay compensation to him, with interest, in an amount to be determined (the liability judgment). The second judgment, delivered on 3 October 2024, dealt with further issues relating to relief, penalties and costs (the relief judgment).

2    Although Merrimans seeks orders setting aside both judgments, all of the errors alleged in its grounds of appeal either occurred in or flowed from reasoning in the liability judgment. In what follows, pinpoint references to the primary judge’s reasoning are to the reasons for the liability judgment.

3    Between May 2014 and August 2021, Mr Dwight lived in accommodation annexed to the Umbarra Cultural Centre (the Centre), owned by Merrimans. The Centre is close to Wallaga Lake, on the South Coast of New South Wales, adjacent to a larger tract of land owned by Merrimans and occupied by members of the Wallaga Lake Community. Mr Dwight was not charged rent by Merrimans but performed various functions in respect of the Centre and the surrounding land. He was not paid any wages or other allowances. The arrangement was the subject of a written agreement, signed by Mr Dwight and the CEO of Merrimans in early May 2014 and formally terminated by Merrimans in September 2021 with effect from November of that year. The nature of the contractual relationship between Mr Dwight and Merrimans was central to the issues considered in the liability judgment.

4    Mr Dwight contended that the relationship was one of employment. On this footing he sought declaratory relief, compensation and penalties on the footing that Merrimans had contravened several statutory duties including:

(a)    s 45 of the FW Act, by not paying him a minimum wage;

(b)    s 536(2) of the FW Act, by failing to provide pay slips;

(c)    ss 87 and 90 of the FW Act, in relation to annual leave;

(d)    s 116 of the FW Act, in relation to holiday pay;

(e)    s 323 of the FW Act, by not paying him in full including his applicable minimum wages, overtime rates, long service leave and loading; and

(f)    s 4.2 of the Long Service Leave Act 1995 (NSW) by terminating his employment and not attending to the payment of statutory long service leave.

5    On the same basis, Mr Dwight sought a declaration that he was an employee of Merrimans for the purposes of the Superannuation Guarantee (Administration) Act 1992 (Cth) (the SGA Act).

6    Merrimans’ position seems to have shifted somewhat during the litigation. At times it contended that the agreement it had entered into with Mr Dwight was fundamentally a tenancy agreement (albeit not one that took the usual form required by residential tenancies legislation); at other times it eschewed that characterisation while maintaining that, however the agreement might be described, it was not an employment relationship. As a fallback position, it submitted that the accommodation provided to Mr Dwight should be set off against his entitlements under the FW Act (although this submission was not ultimately pressed as an answer to any breach of an award obligation).

7    In the liability judgment, the primary judge made declarations in substantially the terms sought by Mr Dwight. His Honour also expressly rejected Merrimans’ submission in relation to set-off.

8    Two aspects of Mr Dwight’s case, relevant to this appeal, were not accepted. One was his evidence of the hours he had worked, an issue which is discussed below. The other was the argument that he was covered by the Amusement Events & Recreation Award 2010 (the Amusement Award) and entitled to be paid in accordance with the terms of that award. Despite rejecting this argument (at [199]-[203]), however, the primary judge made a declaration that Merrimans had contravened s 45 of the FW Act (which provides that a person must not contravene a term of a modern award).

9    Ground 6 of the notice of appeal alleges error in making this declaration. Mr Dwight accepts that the declaration of contravention of s 45 should not have been made, but seeks to amend the relevant declaration to refer to s 293 of the FW Act instead. Merrimans accepts that this course is open if its primary submission (that no obligations arose under the FW Act because Mr Dwight was not its employee) is not accepted. Mr Dwight also accepts that the reference to “overtime” in the declaration of breach of s 323 should be deleted for the same reason. The Amusement Award therefore does not need to be considered further.

10    In the relief judgment, the primary judge ordered specified amounts to be paid as compensation in respect of unpaid wages, annual leave and long service leave; ordered the parties to confer as to the amounts payable under the SGA Act and as interest; ordered that Merrimans pay Mr Dwight’s costs; and imposed a civil penalty of $65,000 on Merrimans.

11    By its notice of appeal (ground 5 of which was not pressed), Merrimans alleges that the primary judge erred:

(a)    in finding that the contract between the parties was one of employment (ground 1);

(b)    in finding that the contract was for part-time, rather than casual, employment (ground 2);

(c)    in making a finding that Mr Dwight worked on average 20 hours per week (ground 3);

(d)    in finding that Merrimans had breached s 536 of the FW Act by failing to provide pay slips to Mr Dwight (ground 4);

(e)    in making declarations on the basis that Mr Dwight was covered by the Amusement Award (ground 6); and

(f)    in making the costs order (ground 7).

The essential facts

12    Mr Dwight does not identify as Aboriginal and State laws concerning the governance of Aboriginal Land Councils do not have a bearing on the issues in the appeal.

13    Mr Dwight gave evidence that in 2014 he was living in a caravan park adjacent to Wallaga Lake but was looking for other accommodation. He was accustomed to doing property maintenance and was interested in finding a role where he could look after a property and live on site. A conversation with an acquaintance at the local Men’s Shed led him to approach Ms Anne Greenaway, who at that time was the CEO of Merrimans, in relation to a potential role at the Centre. Ms Greenaway gave evidence that Merrimans was interested in finding someone to live in the accommodation attached to the Centre in order to deter “anti-social behaviour” and damage to the Centre by some younger members of the community. Following discussions between Mr Dwight and Ms Greenaway, she provided him with a document which (according to his evidence) he read carefully and signed.

14    The document (the Position Description) reads as follows.

Position Description

Position Title: Caretaker, Umbarra Cultural Centre

Employer: Merrimans Local Aboriginal Land Council

Remuneration: As per agreed

Hours: Live On-Site

Reports To: CEO, Merrimans LALC

PURPOSE OF POSITION:

The position will work closely with the CEO of Merrimans to ensure the security and general up-keep of the building/s and garden areas of the location known as the Umbarra Cultural Centre.

The position is a live-in one where in exchange for subsidised accommodation the position holder will undertake duties commensurate with a general handyman’s duties.

DUTIES:

    Ensure that all areas are secured when not in use;

    Keep external areas of the building, verandahs, doors, windows and all paths clean and tidy and regularly maintained;

    Maintain established gardens keeping clean and tidy and weeded regularly;

    Maintain in good working order, including cleaning inside and out, all accessible white goods on the premises, turn off when not in use and store appropriately;

    Maintain accommodation provided to standards required under the Rental Tenancy Act;

    Put Rubbish Bins out regularly;

    Report any issue that requires spending of money and gain permission to undertake work or purchase prior to undertaking to the CEO of Merrimans LALC. E.g. pest infestations, any repairs and maintenance etc;

    Report all break-ins, vandalism, abuse and trespassing by unknown people to the Police and Merrimans;

    Inform Merrimans of any trespassing by the Wallaga Community for instructions;

    Report Bushfires and other critical incidents to the appropriate authority immediately and advise Merrimans when able;

    Adhere at all times to Merriman’s policies and procedures as they relate to complaints and grievances and other relevant guidelines including the maintenance of absolute confidentiality of Merriman’s and the Umbarra Centre’s information and the following of a strict code of ethics as regards to Merrimans business;

    Other duties as directed.

In return/recompense for the duties undertaken Merrimans LALC will:

1. Provide on-site accommodation in a one bedroom unit;

2. Provide Electricity with a negotiated contribution made by the Caretaker;

3. Installed [sic] LPG gas heating and ceiling fans for heating and cooling, with gas to be provided by the Caretaker at own cost;

4. Permit the installation of land-line and internet communication at the Caretakers cost;

5. Undertake an annual review which will include an inspection of the accommodation quarters. An Action/Task List may be generated from that review which should be completed over the intervening 12 months; and

6. Give one (1) months’ notice of the termination of this position including accommodation and the Caretaker to give 14 days’ notice if they wish to terminate the arrangement.

15    The Position Description bears:

(a)    Ms Greenaway’s signature below a line that read “I certify that this is a true and accurate description of the position as at 1/5/2014”; and

(b)    Mr Dwight’s signature below a line that read “I have read this Job Description and understand what is expected of me whilst in this position”.

The nature of the contractual relationship (ground 1)

Nature of the issue

16    The parties have proceeded on the basis that, if Mr Dwight was an “employee” of Merrimans following the execution of the Position Description, he was within the scope of the provisions of the FW Act referred to above (other than s 45). Provisions of the FW Act use the expression “employee” either in its ordinary sense or in the sense of a “national system employee” as defined by s 13 (see the definition of “employee” in s 12 and the notes thereunder). Section 13 refers to an individual “so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14”; and s 14 uses the word “employs” without defining it. In the end, therefore, assuming that Merrimans is a “national system employer” (which was not in contest), the application of the FW Act can be taken to depend on whether Mr Dwight was “employed”, in the ordinary sense of that term, by Merrimans.

17    As was established in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165 at [59] (Kiefel CJ, Keane and Edelman JJ), [172] (Gordon J, Steward J relevantly agreeing at [203]) (Personnel Contracting), whether or not a person is an “employee” of another person depends on the rights and obligations arising under the contract between them and not on how they acted from time to time in the performance of that contract. Thus, where the terms of the parties’ relationship are comprehensively committed to a written contract (the validity of which is not in dispute), the characterisation of the relationship proceeds from that written contract, construed according to established principles of interpretation (Personnel Contracting at [60]). Post-contractual conduct of the parties is sometimes capable of being relevant to the interpretation of a written contract (or a document alleged to embody a contract), in that it may shed light on what the parties had in contemplation at the time the contract was formed, but it does not have any relevance in its own right to the characterisation of the relationship. (The position has more recently been altered by the insertion of s 15AA into the FW Act. However, this provision does not have retrospective effect and neither party submitted that it was relevant in the present case.)

The Position Description and its interpretation

18    Several aspects of the Position Description point strongly to the relationship it created being one whose central element was the provision of labour by Mr Dwight in return for consideration. These include:

(a)    the heading “position description”, the application of a “position title” and the designation “caretaker”;

(b)    the designation of Merrimans as “employer” and of Merrimans’ CEO as the person to whom Mr Dwight would “report”;

(c)    the references to “remuneration” and “hours”;

(d)    the statement of purpose, with its references to working closely with the CEO and undertaking “duties commensurate with a general handyman’s duties”;

(e)    aspects of the statement of duties, which went well beyond merely looking after the accommodation in which Mr Dwight would be living (the “accommodation” is expressly referred to in the fifth dot point, indicating that the references to “building” and “gardens” in other dot points encompassed the Centre and its grounds);

(f)    the inclusion among the duties of “[o]ther duties as directed”;

(g)    the provision of on-site accommodation and other matters as “recompense for the duties undertaken”; and

(h)    the corresponding absence of any provision for Mr Dwight to pay rent, or provide any other form of consideration, for that accommodation.

19    There were significant divergences between the evidence of Mr Dwight and Ms Greenaway concerning the discussions that led to the execution of the Position Description. The primary judge did not resolve these differences, merely observing that both of them (as well as two of Ms Greenaway’s successors in the role, who do not seem to have had any direct knowledge of the negotiations) were “truthful regarding the background of the Agreement” (at [39]). It is, with respect, not obvious how both of their accounts could have been wholly truthful; and, without findings having been made, it is not possible for me to set out an uncontroversial summary of the discussions.

20    However, the parties did not agitate any evidentiary dispute in the appeal; and, ultimately, the course of the pre-contractual discussions does not affect the construction of the Position Description in any material way. The evidence does not establish any shared understandings that assist in the construction of particular terms in the Position Description; nor does it suggest any reason why the Position Description should not be construed according to its terms. The Position Description, while clumsily drafted and missing what one might think are some important terms, is tolerably clear as far as it goes. Additionally, the evidence as to the framing and execution of the document was (in summary) as follows.

(a)    Mr Dwight’s account was that he suggested the parties sign a written contract; Ms Greenaway provided him with a draft; and he read the draft carefully and signed it.

(b)    Ms Greenaway deposed to a series of conversations in which (on her account) she said to Mr Dwight several times that he would be a “tenant” and that significant areas of the property would be out of bounds to him. However, when she showed Mr Dwight the contract she had drafted, he said that he did not like the terms. After further discussion, she “agreed to make some changes to the document as window dressing to keep [Mr Dwight] happy”. Her reference to “window dressing” was not relied on by Merrimans to submit that the Position Description did not constitute the real agreement between the parties. The only available conclusion, therefore, is that the document was amended to secure Mr Dwight’s agreement and Ms Greenaway was content to sign it on Merrimans’ behalf in that form.

(c)    On either account, therefore, the Position Description captures the agreement reached between the parties. The evidence of earlier conversations suggesting that Merrimans was proposing a different arrangement can be put to one side.

21    Applying ordinary principles of contractual interpretation entails that matters known to both parties at the time of entering into a contract may form part of the context in the light of which the text of the contract falls to be interpreted (Personnel Contracting at [175] (Gordon J)), although the subjective intentions and understandings of the parties are not relevant (see the useful exposition of principles in HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296; 104 NSWLR 634 at [18]-[28] (Meagher JA and Ball J)). Several background matters that were uncontroversial, or conceded by Mr Dwight in cross-examination, were emphasised in the appeal by Merrimans. These included the following.

(a)    The Centre was one to two kilometres away from the administration office where Ms Greenaway and other staff worked, and Ms Greenaway did not say to Mr Dwight that he would be reporting to her on a regular basis.

(b)    Ms Greenaway did not ask Mr Dwight about his ability to perform repairs or his handyman experience.

(c)    Mr Dwight was aware (as was Ms Greenaway) at the time of signing the Position Description that members of the Men’s Shed did some work around the premises.

(d)    There were no gardens at the premises that needed maintaining.

(e)    Before signing the Position Description, Mr Dwight knew that the main building at the Centre and a shed (where apparently the Men’s Shed kept tools) were out of bounds to him and he had only been given keys to the accommodation attached to the main building.

22    Ultimately, however, these background matters do not assist in giving meaning to the language of the Position Description. They merely make it somewhat perplexing that the parties entered into a written agreement in the terms that they did. For example, the context suggests that Merrimans did not need or want Mr Dwight to work as a “handyman” around the Centre; yet they signed an agreement providing for exactly that. The inferences that might be drawn from these contextual matters cannot be applied in the construction of the Position Description without in substance rewriting it. One is left, therefore, with the text.

23    Thus, while it is possible that Mr Dwight might have been regarded for some purposes as a tenant (or perhaps a licensee) of Merrimans, this can be put to one side. The contract being one for the provision of labour, its characterisation must be undertaken within the familiar dichotomy between contracts of service (ie, employment) and contracts for services (ie, engagement as an independent contractor). Drawing on a survey of the recent case law by Wigney J in JMC Pty Ltd v Commissioner of Taxation [2022] FCA 750 (JMC), I sought to encapsulate the relevant issues in Chiodo v Silk Contract Logistics [2023] FCA 1047 at [7] as follows.

…

(d)    Once the contours of the legal relationship are identified, its characterisation often hinges on two considerations: the extent to which the putative employer has the right to control how, when and where the putative employee performs the work; and 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: Personnel Contracting at [36]–[39], [73] (Kiefel CJ, Keane and Edelman JJ), [113] (Gageler and Gleeson JJ), [180]–[183] (Gordon J, Steward J agreeing). Both of these involve questions of degree.

(e)    The contractual provisions likely to be relevant include those that deal with the mode of remuneration, provision and maintenance of equipment, the obligation to work and hours of work, provision for holidays, deduction of income tax, whether work can be delegated, and the right to exercise direction and control: Personnel Contracting at [113] (Gageler and Gleeson JJ), [174] (Gordon J, Steward J agreeing).

(f)    The label that the parties attach to their relationship is not determinative and rarely of assistance: Personnel Contracting at [63], [66] (Kiefel CJ, Keane and Edelman JJ), [184] (Gordon J, Steward J agreeing).

Control

24    Several of the “duties” described in the Position Description were things that, by their nature, involved a considerable amount of flexibility as to how and when work was performed: eg, keeping areas “secured” or “clean and tidy” and putting rubbish bins out “regularly”. In these respects, it can be said that Mr Dwight was being given goals to achieve rather than being placed under the control of a supervisor. Other elements of the duties implicitly required specific steps to be taken immediately on some event occurring or at least promptly thereafter: eg, reporting trespassing or fires. These, in themselves, are consistent with either an employment relationship or one of principal and contractor.

25    However, other aspects of the agreement point towards Mr Dwight being subject to a degree of control in his activities that are suggestive of employment. These are:

(a)    the reference to working “closely” with the CEO;

(b)    the inclusion of “[o]ther duties as directed” which, accepting that the nature of such “duties” must be limited by the “purpose of position” text above, nevertheless indicates that Mr Dwight was to be to some extent at the disposal of Merrimans;

(c)    the requirement to adhere to Merrimans’ “policies and procedures”; and

(d)    the requirement for an annual review, leading to an “Action/Task list” which, while included among the obligations of Merrimans, was in reality a burden imposed on Mr Dwight (noting that the 12-month time frame for completion of tasks on that list would be very generous if it were understood as a list of repairs etc to be undertaken by Merrimans as the landlord under a residential tenancy agreement).

Own business or the employer’s business

26    The Position Description provided only for non-monetary consideration to Mr Dwight. There was therefore no occasion for deduction of income tax to be considered, and the absence of any provision for that to occur is neutral.

27    The Position Description also does not include any express provisions in relation to working hours (other than the nebulous “Hours: Live On-Site”) or holidays. These absences suggest that the relationship was not one of employment. However, they do so fairly weakly in circumstances where the Position Description is loosely worded and does not have the appearance of a document drafted with expert assistance. These absences are also consistent with the parties simply not having thought through any of the detail.

28    The absence of provisions in relation to working hours also makes it unclear whether Mr Dwight was permitted to engage in other employment. Given the paltry remuneration provided for (which, if not supplemented in some way, would leave Mr Dwight unable to feed himself), the better view is probably that he was permitted to earn income elsewhere. However, this, as the primary judge noted at [185]-[186], is not inconsistent with an employment relationship.

29    It is notable, however, that, to the extent that Mr Dwight was to be remunerated, that remuneration did not depend on the completion of specific work; nor was his remuneration to vary in accordance with the work that he completed. There is no indication in the agreement that he was, for example, to send invoices to Merrimans for his work (indeed that would have been difficult to reconcile with the only form of remuneration being free accommodation). This is an indication that the contract was one pursuant to which Mr Dwight was to be at the disposal of Merrimans rather than providing services as part of the conduct of his own enterprise.

30    The reference to “other duties as directed” points towards the same conclusion. It indicates that Mr Dwight was to be available to do whatever work (within the general scope of “a general handyman’s duties”) Merrimans wished to have him perform. It was apparently not envisaged that Mr Dwight might, in the pursuit of his own commercial interests, decline to perform particular work for Merrimans in order to provide his services to another customer.

31    The Position Description is also unclear as to whether Mr Dwight was permitted to delegate his work. Many of the tasks listed in the statement of “duties” are things that are, in principle, capable of being delegated (although the notion that Mr Dwight might sub-contract some of his work in circumstances where he was not receiving any money from Merrimans is perhaps unrealistic). However, the reporting duties included in the statement of “duties”, together with the fact that Mr Dwight was to live in accommodation provided for him on site, are some indication that Merrimans was hiring him for his trustworthiness and expecting him to be personally present. Additionally, although the first listed duty (“Ensure that all areas are secured when not in use”) identifies a result that might be achieved by recruiting others, the other duties are expressed in terms of activities. In the context of a statement of the duties of a “handyman”, the more natural reading is that these activities were intended to be undertaken by Mr Dwight. On balance, therefore, the better view is that the Position Description required personal service.

32    Finally, in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 36-37 (cited in JMC at [22]), Wilson and Dawson JJ noted that the factors suggesting a contract for services included “work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax”. The Position Statement did not have these features.

Conclusion: employment

33    For these reasons, the primary judge was correct to conclude that Mr Dwight was an “employee” of Merrimans while the contract between them was in force. Ground 1 of the notice of appeal must be rejected.

Part time or casual employee (grounds 2 and 3)

34    The primary judge said at [187]:

The Court is satisfied based on the nature and scope of the duties performed by the applicant that it was not a full-time job; rather it was a part-time job. In this regard, the Court does not accept the applicant’s evidence that he worked each weekday from either 8:30am or 9:00 am to 4:00pm or thereabouts. The applicant worked the hours needed to undertake the tasks set out in the position description as well as any additional tasks he may have been directed to perform from time to time. The applicant was not a casual employee. The Court is satisfied the applicant would have worked four hours per day, on weekdays or on average 20 hours per week.

35    Merrimans criticises two aspects of this reasoning. First, while Mr Dwight’s evidence as to the hours he worked is rejected, there is no indication of what evidence was relied upon for the finding concerning the hours he did work. Secondly, in any event, the question whether Mr Dwight was engaged on a part-time or casual basis (and, if part-time, for what hours) was an aspect of the construction of the contract that could not properly be answered by reference to post-contractual conduct (cf, eg, WorkPac Pty Ltd v Rossato [2021] HCA 23; 271 CLR 456 at [57] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ)). It can also be observed that, other than setting out the gist of the submission made by Merrimans (at [109]), it is not apparent how his Honour engaged with the distinction between part-time and casual work and came to a conclusion as to which side of the line the employment relationship in this case fell.

Casual employment

36    Pursuant to ground 2 in the notice of appeal, Merrimans submits that the primary judge should have found that Mr Dwight was a casual employee (if he was an employee at all). The concept of a casual employee is defined for the purposes of the FW Act by s 15A, which at relevant times provided as follows.

15A 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.

Note:     Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment.

(3)    To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

(4)    To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.

(5)    A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:

(a)    the employee’s employment is converted to full-time or part-time employment under Division 4A of Part 2-2; or

(b)    the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.

    (Emphasis in original.)

37    This version of s 15A was inserted into the FW Act by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (the 2021 Amendment Act) with effect from 27 March 2021. The 2021 Amendment Act also inserted cl 46 of Schedule 1 to the FW Act, which provides that (subject to presently irrelevant exceptions) this version of s 15A “applies before commencement in relation to offers of employment that were given before commencement” (cl 46(3)) as well as “on and after commencement” in respect of such offers (cl 46(1)). It does not appear to be in contest that this gave s 15A, as enacted by the 2021 Amendment Act, operation in relation to the written agreement in the present case. This iteration of s 15A was held to define the expression “casual employee” exclusively and exhaustively in Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75; 292 FCR 284 at [29]-[35] (Rangiah and Downes JJ).

38    Section 15A was repealed and replaced by the Fair Work Legislation (Closing Loopholes No 2) Act 2024 (Cth) (s 3 and Sch 1 cl 1) (the 2024 Amendment Act). The new version introduced by this Act was expressed (by cl 102 of Schedule 1 to the FW Act) to apply “on and after commencement in relation to employment relationships entered into before, on or after commencement”. I take this to mean that s 15A as enacted by the 2024 Amendment Act would govern the characterisation of Mr Dwight’s employment after the commencement of that Act, if the relationship had still been on foot, but it does not apply retroactively. The present case is therefore properly assessed by reference to the version of s 15A introduced by the 2021 Amendment Act and set out above.

39    Section 15A(1) contemplates an “offer of employment” made by an employer, which is “accepted” by an employee. There was some reference in submissions to the fact that the initial approach in this case had come from Mr Dwight rather than from Merrimans as the putative employer. However, I do not think this affects the analysis in any material way. The construction of s 15A must be accommodated to the real world. Cases may be imagined in which an individual offers to work for an employer on particular terms and the employer simply accepts the offer. In such a case it does no violence to the statutory language to regard the employer’s acceptance of the terms as offering “employment”, which the employee implicitly “accepts”. In almost every case, however, there will be some negotiations, involving what a contract lawyer would conceptualise as counter-offers, in which an “offer of employment” and an “acceptance” of that offer, can be found. In the present case, following a series of conversations between Mr Dwight and Ms Greenaway, she proposed a written agreement which he agreed to and they both signed. If (as I have found) the resulting contract was one of employment, it follows that there was an “offer of employment” and an acceptance of that offer.

40    It will also be noted that s 15A refers to the employer not making a “commitment to continuing and indefinite work” (in subs (1)(a)) and to the employer offering “work” which the person might “accept” (in subs (2)(a)). This language needs to be unpacked, because usually the employee agrees to provide labour (ie, “work”) and the employer agrees to pay for it. In the context of a statute dealing with employment, these must therefore be understood as references to paid work. In other words, a contract for full-time or part-time employment is one where the employee is going to be paid for regular hours of work (subject, ordinarily, to actually working for those hours); while a contract for casual work is one where the employee is only going to be paid for working such hours as the employer “offers” (and the employee “accepts”) from time to time. Whether the employee does additional, unpaid work for the employer is a separate issue, as unpaid work is generally outside the concept of employment.

41    I mention this point because it indicates that the pattern of remuneration under an employment contract is a clue to the nature of the employment, at least where (as here) the terms of the contract are silent or cryptic as to hours of work. The Position Description did not on any view provide for Mr Dwight to be paid for hours actually worked. His remuneration pursuant to the agreement took the form of rent-free accommodation, which by its nature did not vary from week to week or depend on him being “offered” (or “accepting”), or performing, particular hours of work.

42    Thus, the contract was not one under which Merrimans could “elect to offer work” in the relevant sense for the purposes of s 15A(2)(a): it could choose to have somebody else perform maintenance tasks, but it was still bound to remunerate Mr Dwight on the same, regular, basis. Meanwhile, Mr Dwight was bound by the written contract between the parties to undertake a list of duties (commensurate with those of a handyman) including “other duties as directed”, so that it was not open to him to “elect to accept or reject work”.

43    As to the other factors mentioned in s 15A(2), the following points should be made.

(a)    Mr Dwight was to work “as required” by Merrimans in the sense that he was under the supervision of the CEO and required to perform “other duties as directed”. However, consistently with the understanding of s 15A set out above, subs (2)(b) should be understood to refer to arrangements where the employee is given paid work to do only when required by the employer (and at other times has no duties to perform and no right to remuneration). This understanding is supported by the Revised Explanatory Memorandum to the Bill for the 2021 Amendment Act, which paraphrased the criterion in subs (2)(b) as “whether the person will work only as required”2 (emphasis added). Mr Dwight’s contract was not of this nature: he had duties to perform, and was to be remunerated, regardless of any specific requirement by Merrimans.

(b)    The Position Description did not describe Mr Dwight’s employment as casual. However, this cannot be given great weight in circumstances where the document fails to deal with a number of topics (and labels applied by the parties are, in any event, not to be taken at face value).

(c)    The Position Description also made no provision in relation to a casual loading or a specific rate of pay. However, this cannot be given any weight in circumstances where the document did not provide for any monetary remuneration.

44    In these circumstances, Mr Dwight was not a casual employee. Ground 2 must be rejected.

Hours of work

45    On the basis that Mr Dwight was an employee (but not a casual employee) it was necessary, for the purposes of assessing compensation, to identify the hours for which he was engaged. As noted earlier, the primary judge arrived at an estimate of 20 hours per week; however, this is criticised by Merrimans as having been based on post-contractual conduct and not supported by any analysis of the evidence.

46    The Position Description, as noted above, does not contain any specification of the hours Mr Dwight was to work. The cryptic “Hours: Live On-site” does not advance matters.

47    As explained by Lee J in EFEX Group Pty Ltd v Bennett [2024] FCAFC 35; 330 IR 171 at [57]-[59], the principle established in Personnel Contracting — that post-contractual conduct is not relevant per se to whether an employment relationship exists — is not inconsistent with evidence of such conduct being admissible on the question whether there was a contract and what were its terms. (See also, more recently, Cirrus Real Time Processing Systems Pty Ltd v Hawker Pacific Pty Ltd [2025] FCAFC 85.) As Lee J said at [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.

48    The same is true where there is a written contract whose terms are incomplete or obscure. Where (as here) the document is accepted on all sides as embodying a real contract, but necessary terms are not set out with any clarity, the Court may be forced to look to evidence of how the parties behaved subsequently in order to understand what those terms were. That is the case here. (I note that I was not taken to any evidence concerning the pre-contractual discussions that was said to demonstrate a binding agreement as to what Mr Dwight’s working hours were to be.)

49    The only sensible inference that can be drawn from the terms of the Position Description is that Mr Dwight was required to live at the premises and to work for as long as it took to fulfil the duties set out in the document. In the appeal, Mr Dwight drew attention to the following points which were found by the primary judge, or recorded as having been accepted by Merrimans’ witnesses (Ms Greenaway and her two successors as CEO).

(a)    Mr Dwight would regularly approach Merrimans’ CEO seeking to undertake work (at [78]).

(b)    Mr Dwight’s adherence to his work obligations were “central to Merrimans’ upkeep of the property and surrounding areas for community use” (at [155]).

(c)    Mr Hill, as CEO, sometimes directed Mr Dwight to perform work on the property, which he did. Mr Hill was “amenable” to the proposition that, if he asked Mr Dwight to do something, Mr Dwight would have to do it (at [168]). Mr Hill also accepted that Mr Dwight would do what needed to be done because he was a caretaker (at [171]).

(d)    The primary judge appears to have accepted Mr Dwight’s evidence that he regularly assisted with making the Centre ready for events (comprising “cultural events” and activities of the Red Cross) and cleaning after those events (at [176]-[177]). His Honour described this as “imperative to Merrimans’ objective of holding these events” (at [180]).

(e)    More broadly, although the primary judge did not accept Mr Dwight’s estimate of the hours he worked, his Honour regarded Mr Dwight as “a broadly credible witness” (at [16]). Absent other specific rejections, therefore, I understand his Honour to have generally accepted Mr Dwight’s account of the activities that he undertook.

50    In these circumstances, his Honour’s finding at [187] that Mr Dwight “worked the hours needed to undertake the tasks set out in the position description as well as any additional tasks he may have been directed to perform from time to time” has not been shown to be erroneous. This was at least consistent with the sparse terms of the Position Description. It tends to confirm that this is what the parties contracted for when they entered into the agreement.

51    Nor has his Honour’s finding that Mr Dwight “would have worked four hours per day, on weekdays or on average 20 hours per week” (at [187]) been shown to be wrong, notwithstanding that it must have involved an element of estimation. Merrimans did not take me to the evidence in an attempt to show that the finding was wrong or unwarranted. Its complaint was, in effect, that the finding was not explained by reference to particular evidence. However, inadequacy of reasons was not advanced as a ground of appeal.

52    Accordingly, ground 3 is rejected.

Pay slips (ground 4)

53    Merrimans submits that the primary judge’s finding that it had breached s 536 of the FW Act, by failing to issue pay slips to Mr Dwight, was erroneous. Its point is that s 536(1) requires provision of a pay slip within one working day after paying an amount to the employee, and therefore creates no obligation without a payment being made. Mr Dwight accepts that this position reflects the correct interpretation of s 536(1). The concession is appropriate. The declaration that Merrimans contravened s 536 will therefore be set aside.

The Amusement Award (ground 6)

54    The point raised by ground 6 has been dealt with at [8]-[9] above.

Costs (ground 7)

55    In the relief judgment, the primary judge determined that Merrimans should pay Mr Dwight’s costs (assessed on the ordinary basis) from 14 November 2023. This was on the footing that Merrimans had unreasonably rejected an open offer to settle the proceedings and s 570(2)(b) of the FW Act was therefore engaged.

56    Merrimans’ submission on costs is limited to a proposition that, if it succeeds on one or more of its other grounds of appeal, his Honour’s assessment of reasonableness needs to be revisited. It does not submit that its rejection of the settlement offer should be seen as reasonable even if the judgment of the primary judge was correct.

57    Merrimans has succeeded in the appeal only on two minor points which do not undermine the award of compensation to Mr Dwight for unpaid wages and leave. Counsel properly accepted that this result does not undermine the foundations of the primary judge’s assessment that the rejection of the settlement offer was unreasonable. Ground 7 is therefore rejected.

Disposition

58    The declarations made in the liability judgment will be varied so as to:

(a)    reflect the primary judge’s finding in relation to the Amusement Award; and

(b)    remedy the conceded error relating to provision of pay slips.

59    Otherwise, the appeal will be dismissed.

Associate:

Dated:    22 August 2025