Case unpacks real-world employment relationships in support work
The Fair Work Commission (FWC) recently dealt with a case where a worker claimed unfair dismissal against the person he provided support services to.
The worker argued this individual was his employer, pointing to receiving a key, taking daily instructions, and being told this person could "hire and fire" care workers.
The case raised fundamental questions about who qualifies as an employer when care is provided through the National Disability Insurance Scheme (NDIS).
While the worker insisted the person with disability employed him directly, evidence pointed to family members managing the arrangement.
The worker filed an application under section 365 of the Fair Work Act 2009 in December 2024, claiming he was dismissed contrary to the Act. His application named the person with disability as his employer.
The person with disability lived independently but required significant care and support from family and professionals. He received funding through the NDIS to arrange this care.
The worker provided in-home personal care between August and December 2024, handling domestic support, cooking, cleaning, shopping, accompanying the person on outings, and other personal care duties.
During a case management hearing, the FWC identified questions about whether the worker had correctly identified his employer. The Commissioner offered to amend the application if both parties agreed.
The worker insisted the person with disability was his employer and refused to amend the application. The other side, represented by sisters holding power of attorney, eventually asserted the person with disability was not the worker's employer.
The FWC held a hearing to "get to the bottom of this controversy: to determine whether it was correct that [the person with disability] was [the worker's] employer, or whether the nature of [the worker's] engagement was of a different kind or with a different person."
The FWC explained that an employment relationship requires a contract between parties. Recent amendments to the Fair Work Act had changed how such relationships are defined.
"As a result of recent amendments to the Act, the characterisation of the relationship, in terms of whether it is one of 'employment' or otherwise, requires an examination of matters beyond simply the terms and nature of that contract. But a contract must have existed, nonetheless," the Commission stated.
Section 15AA of the Act, introduced by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, reinstated the "multifactorial test" for determining employment relationships. This test examines various factors indicating whether a relationship is employment or independent contracting.
The worker pointed to several aspects of his arrangement: being given a key to the apartment, the person shaking his hand when the engagement started, and being told this person could "hire and fire" care workers.
He also noted that the person with disability gave him daily task instructions, corresponded about leave (though some emails were addressed to "[the person with disability] and family"), and directly reimbursed him for expenses.
One of the sisters had described the person with disability as the worker's employer during meetings in late 2024. However, she explained that this language was used as a way of empowering her brother, rather than accurately describing the legal relationship.
Evidence showed the worker was engaged by one of the sisters, not by the person with disability himself. The arrangement began after a previous carer left in July 2024, while one sister was establishing a business called Whanaucare and they were transitioning the person's NDIS funding from "plan managed" to "self managed."
One sister determined the worker would work 24 hours weekly based on NDIS funding allocations. While the worker took daily care instructions from the person with disability, he also reported to and took direction from the sisters.
The worker received payslips bearing the name "Kauku's Life" and an Australian Business Number registered to one of the sisters. These payslips showed casual rates with different weekend rates and long service leave accrual.
Based on the evidence, the FWC found it "highly unlikely that [the person with disability] is [the worker's] employer. There appears to be no evidence of a contract having been entered into between [the person with disability] and [the worker]. It may even be that [the person with disability] lacks capacity to have entered into a contract with [the worker]."
The evidence instead suggested a relationship between the worker and the sisters or the business entity "Kauku's Life." The Commission stated, "If there was a contractual relationship between [the worker] and [the person with disability] it appears to have none of the indicia ordinarily associated with employment."
The FWC expressed concern about the impact of the proceedings: "It seems to me unfortunate that [the person with disability], a person suffering from a significant disability, has been made the subject of this proceeding in circumstances where there seems so little basis to justify it. It appears to have caused some considerable distress to his family."
Despite finding the person with disability was likely not the employer, the FWC decided to proceed with conciliation based on a recent Full Bench decision in Civmec Construction & Engineering Pty Ltd v Joel Minchin.
"Even if [the person with disability] is not [the worker's] employer, his inclusion as the Respondent to this application does not prevent me from attempting to deal with the dispute, and I intend to do so," the FWC said.
