EFEX Group Pty Ltd v Bennett [2023] FCA 508

EFEX Group Pty Ltd v Bennett [2023] FCA 508

Despite some factors pointing to an independent contractor relationship, including invoicing through a trust, GST, absence of PAYG withholding and absence of formal leave accruals, the overwhelming weight of the evidence showed that Mr Bennett was serving in EFEX's business. He was paid a fixed monthly amount not tied to results, was held out as EFEX's Business Development Manager, was practically expected to devote the bulk of his time to EFEX, could not practically delegate his work, had limited ability to work for others, contributed no significant capital, generated no saleable goodwill, and was subject to EFEX's control on occasions. Accordingly, he was an employee of EFEX between 1...

Jurisdiction
Australia
Judgment Date
24 May 2023
Procedural Posture
Application Under S 562 of the Fair Work Act 2009 (cth) and S 23 of the Federal Court of Australia Act 1976 (cth) for an Order in the Nature of Prohibition Directed at the Fair Work Commission in Relation to an Unfair Dismissal Application Under S 394 of the Fair Work Act 2009 (cth). / Federal Court Determination After the Fair Work Commission Found Mr Bennett Was an Employee and the Full Bench of the Fair Work Commission Refused Permission to Appeal.
Outcome
Application dismissed.
Legal Topics
['unfair Dismissal' 'employee or Independent Contractor' 'jurisdictional Fact' 'prohibition Directed to the Fair Work Commission' 'informal Unwritten Work Arrangements' 'right of Control' 'multifactorial Approach']
['industrial Law' 'employment and Industrial Relations'] ['unfair Dismissal' 'employee or Independent Contractor' 'jurisdictional Fact' 'prohibition Directed to the Fair Work Commission' 'informal Unwritten Work Arrangements' 'right of Control' 'multifactorial Approach']

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Procedural Posture

Application Under S 562 of the Fair Work Act 2009 (cth) and S 23 of the Federal Court of Australia Act 1976 (cth) for an Order in the Nature of Prohibition Directed at the Fair Work Commission in Relation to an Unfair Dismissal Application Under S 394 of the Fair Work Act 2009 (cth). / Federal Court Determination After the Fair Work Commission Found Mr Bennett Was an Employee and the Full Bench of the Fair Work Commission Refused Permission to Appeal.

Legal Issues

  1. 1 ['Whether Mr Bennett was an employee of EFEX between 1 February 2018 and 8 November 2019, rather than an independent contractor.' "Whether the Fair Work Commission had jurisdiction to continue hearing and determining Mr Bennett's unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth)." "How the principles in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd and ZG Operations Australia Pty Ltd v Jamsek applied where there was no written contract and the parties' arrangement was informal."]

Ratio Decidendi

Despite some factors pointing to an independent contractor relationship, including invoicing through a trust, GST, absence of PAYG withholding and absence of formal leave accruals, the overwhelming weight of the evidence showed that Mr Bennett was serving in EFEX's business. He was paid a fixed monthly amount not tied to results, was held out as EFEX's Business Development Manager, was practically expected to devote the bulk of his time to EFEX, could not practically delegate his work, had limited ability to work for others, contributed no significant capital, generated no saleable goodwill, and was subject to EFEX's control on occasions. Accordingly, he was an employee of EFEX between 1...

Court Disposition

Application dismissed.

Orders

  • ["The applicant's Originating application be dismissed."]