The Fair Work Commission has ruled in favour of a worker who was engaged as an independent contractor, finding that they should instead have been treated as an employee.
Samuel Nicholls worked for residential building company Built MG in a contractual arrangement, so that the pay could be made to a family trust in a written contract titled “Independent Contractor Agreement”.
Mr Nicholls made a claim alleging Built MG dismissed him because he exercised a workplace right.
Built MG tried to have the claim dismissed, arguing he was an independent contractor.
The FWC noted that in reviewing the dispute it must take into consideration the totality of the relationship between Mr Nicholls and Built MG.
In doing so, it found “it is clear that Mr Nicholls was an employee”.
The decision went on to say:
“The reality was that the written contract between the parties and the conduct in practice required Mr Nicholls to undertake the duties set out in the position description from the locations set out in the contract for at least 45 hours per week, Monday to Friday. In return, he was paid a weekly wage from Built into his trust account as requested. He had an entitlement to paid leave and was paid out accrued entitlements upon the termination of the contract.”
The FWC concluded, “Overall, it is clear that the relationship between Mr Nicholls and Built was one of employee, employer.”
As a result, the FWC found it has jurisdiction to deal with Mr Nicolls’ allegations.
When considering actions such as dismissing a worker, CCF NSW members are encouraged to view the issue through the same lens the FWC applied in this case.
If you have any questions about employment matters please contact us on (02) 9009 4000 or ccfnsw@ccfnsw.com.