Invoicing not sufficient to prove independent contractor

The Fair Work Commission held that a pick-a-box promoter working two-hour shifts was an employee of Shannon Entertainment capable of being dismissed despite being paid on the basis of "periodic" invoices that included her ABN. 

Deputy President Gostencnik emphasised that the "proper approach" to ascertaining whether the contractual relationship is one of employment or of principal and contractor "requires an examination beyond the mere consensual label attached to the relationship by the parties, or by one party, and therefore requires one to look at relationship the parties have actually brought into existence".

"Mere labels coloured by perfunctory devices such as invoices for 'services' rendered often do not show the whole picture and so one must look beneath them to the real substance of the relationship," he said.

Accepting the worker did not agree to invoicing for her work "as much as acquiesced to it given the way in which [Shannon Entertainment] wanted things done".

"He told [her] that this is the 'rate for the per hour for the work and you send me an invoice and then we pay upon invoice'.“

In the circumstances the Deputy President ascribed little weight to the invoicing arrangement and, while there was no employment contract, the worker was in the course of hosting required to wear a shirt bearing the Shannon Entertainment logo. 

Applying the "well-established" multifactorial approach and considering the various factors used to identify an employment relationship, Deputy President Gostencnik found that in terms of uniform and branding, control, provision of tools and equipment, entitlement to delegate, nature of work, proportion of remuneration spent on business expenses and exposure to losses, all weighed in favour of an employment relationship, notwithstanding the invoicing arrangement.

Electrical contractors should ensure that;

• Subcontractors are engaged on properly drafted Subcontractor Agreements; and
• If electrical installing work will be performed by a Subcontractor, that the Subcontractor has his or her own electrical contractor’s licence. 
  

[Erin Shay v Christopher Shannon [2021] Fair Work Commission 2815]

Disclaimer: This summary is a guide only and is not legal advice. For further information on the employment vs independent contractor relationships, call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email necalegalwa@ecawa.org.au.