Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45

Section 357(1) of the Fair Work Act 2009 (Cth) prohibits an employer from misrepresenting to an employee that the contract of employment under which the employee is employed is a contract for services under which the employee performs work as an independent contractor, irrespective of whether the contract for services is purported to be with the employer or a third party.

Parties
Appellant: Fair Work Ombudsman; First Respondent: Quest South Perth Holdings Pty Ltd; Second Respondent: Contracting Solutions Pty Ltd
Jurisdiction
Australia
Judgment Date
02 December 2015
Procedural Posture
Appeal / High Court Appeal From Full Court of the Federal Court of Australia
Outcome
Appeal allowed
Legal Topics
Employer and Employee, Independent Contractor, Sham Arrangements, Misrepresentation, Fair Work Act 2009 (cth) S 357
Employment Law Employer and Employee Independent Contractor Sham Arrangements Misrepresentation Fair Work Act 2009 (cth) S 357

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Parties

Fair Work Ombudsman

Appellant

Quest South Perth Holdings Pty Ltd

First Respondent

Contracting Solutions Pty Ltd

Second Respondent

Procedural Posture

Appeal / High Court Appeal From Full Court of the Federal Court of Australia

Legal Issues

  1. 1 Whether s 357(1) of the Fair Work Act 2009 (Cth) prohibits an employer from misrepresenting to an employee that the employee performs work as an independent contractor under a contract for services with a third party

Ratio Decidendi

Section 357(1) of the Fair Work Act 2009 (Cth) prohibits an employer from misrepresenting to an employee that the contract of employment under which the employee is employed is a contract for services under which the employee performs work as an independent contractor, irrespective of whether the contract for services is purported to be with the employer or a third party.

Court Disposition

Appeal allowed

Orders

  • Set aside the order of the Full Court of the Federal Court of Australia made on 17 March 2015 and substitute an order allowing the appeal.
  • Vary the order of McKerracher J made on 26 July 2013 by adding declarations that the first respondent contravened s 357 by representing to Ms Margaret Best and Ms Carol Roden that their contract of employment was a contract for services under which they performed work as independent contractors.