Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119

Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119

Upon review of the totality of facts, including nearly 40 years of exclusive service for set hours under company direction, the requirement to use company-branded trucks and clothing, lack of genuine independent business activity, and practical absence of goodwill, the Court held that the applicants were in substance employees for the purposes of the Fair Work Act 2009 (Cth) and the Superannuation Guarantee (Administration) Act 1992 (Cth) and workers under the Long Service Leave Act 1955 (NSW), despite contracting through partnerships and providing their own trucks. The primary judge erred by giving excessive weight to contractual labels and technical structures over the practical reality...

Jurisdiction
Australia
Judgment Date
16 July 2020
Procedural Posture
Appeal / Judgment on Appeal From First Instance Decision, With Application for Extension of Time
Outcome
Appeal allowed (orders of primary judge set aside); application for extension of time to appeal granted.
Legal Topics
['employee Versus Independent Contractor' 'superannuation Guarantee' 'long Service Leave' 'multi Factor Test' 'extension of Time']
['employment Law' 'industrial Law'] ['employee Versus Independent Contractor' 'superannuation Guarantee' 'long Service Leave' 'multi Factor Test' 'extension of Time']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From First Instance Decision, With Application for Extension of Time

Legal Issues

  1. 1 ['Whether the truck drivers were employees under the Fair Work Act 2009 (Cth) and the Superannuation Guarantee (Administration) Act 1992 (Cth)' 'Whether the drivers were workers for the purposes of the Long Service Leave Act 1955 (NSW)' 'Whether an extension of time to appeal should be granted']

Ratio Decidendi

Upon review of the totality of facts, including nearly 40 years of exclusive service for set hours under company direction, the requirement to use company-branded trucks and clothing, lack of genuine independent business activity, and practical absence of goodwill, the Court held that the applicants were in substance employees for the purposes of the Fair Work Act 2009 (Cth) and the Superannuation Guarantee (Administration) Act 1992 (Cth) and workers under the Long Service Leave Act 1955 (NSW), despite contracting through partnerships and providing their own trucks. The primary judge erred by giving excessive weight to contractual labels and technical structures over the practical reality...

Court Disposition

Appeal allowed (orders of primary judge set aside); application for extension of time to appeal granted.

Orders

  • ['Orders of primary judge on 4 November 2018 in relation to the first applicant and Robert William Whitby are set aside.' 'First applicant and Robert William Whitby were between about 25 August 1993 and about 1 October 2015 employees of the first respondent within the meaning of s 335 and item 1 in the table at s...