Primerano v Schisan Investments Pty Ltd [2025] FCA 15

Primerano v Schisan Investments Pty Ltd [2025] FCA 15

The correct characterisation of the relationship between the applicant and the respondents, judged by the ascertainment of contractual rights and obligations evidenced by the parties' conduct and arrangements, was that of employment and not independent contracting. This conclusion was primarily based on the fixed weekly remuneration, exclusive work for the respondents, requirement for authorisation of expenditures, absence of right to delegate, and the lack of indicia of running her own business, outweighing contrary factors such as absence of tax deductions and superannuation.

Parties
Applicant: Josephine Primerano; First Respondent: Schisan Investments Pty Ltd T/As Tutti Frutti Promotions ACN 124 454 182; Second Respondent: Tutti Frutti Corporate Pty Ltd ACN 634 131 187; Third Respondent: Santos Paulo Schinella; Fourth Respondent: Raeleigh Aston
Jurisdiction
Australia
Judgment Date
22 January 2025
Procedural Posture
Appeal / Judgment on Appeal; Determination of Separate Question
Outcome
Appeal allowed; primary judgment set aside; separate question answered 'yes'—applicant was a national system employee.
Legal Topics
Employment Relationship, Employee Vs Independent Contractor, Fair Work Act, Contractual Rights and Obligations, Extension of Time to Appeal, Leave to Appeal
Industrial Law Employment Relationship Employee Vs Independent Contractor Fair Work Act Contractual Rights and Obligations Extension of Time to Appeal Leave to Appeal

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Parties

Josephine Primerano

Applicant

Schisan Investments Pty Ltd T/As Tutti Frutti Promotions ACN 124 454 182

First Respondent

Tutti Frutti Corporate Pty Ltd ACN 634 131 187

Second Respondent

Santos Paulo Schinella

Third Respondent

Raeleigh Aston

Fourth Respondent

Procedural Posture

Appeal / Judgment on Appeal; Determination of Separate Question

Legal Issues

  1. 1 Whether the applicant was a national system employee of the first and/or second respondent for the purposes of the Fair Work Act 2009 (Cth) during 1 April 2019 to 26 May 2021
  2. 2 Whether the primary judge erred in answering the separate question in the negative

Ratio Decidendi

The correct characterisation of the relationship between the applicant and the respondents, judged by the ascertainment of contractual rights and obligations evidenced by the parties' conduct and arrangements, was that of employment and not independent contracting. This conclusion was primarily based on the fixed weekly remuneration, exclusive work for the respondents, requirement for authorisation of expenditures, absence of right to delegate, and the lack of indicia of running her own business, outweighing contrary factors such as absence of tax deductions and superannuation.

Court Disposition

Appeal allowed; primary judgment set aside; separate question answered 'yes'—applicant was a national system employee.

Orders

  • The time by which the applicant had to file the application for leave to appeal be extended to 29 August 2023.
  • Leave to appeal be granted.