Does increased frequency at work convert a casual worker's status to regular?

The Fair Work Commission (FWC) recently dealt with a case involving a dispute between a worker and an employer over the nature of their working relationship. The worker claimed he was an employee who had been unfairly dismissed, while the employer maintained he was an independent contractor.

At the heart of the matter lay a complex web of arrangements that blurred the lines between employment and contracting.

The case highlighted the ongoing challenges in classifying modern working relationships and the importance of clearly defined terms when engaging workers.

Contractor or employee?

The employer in this case was a company that provides sound, lighting, staging, vision, and logistic services for live concerts, festivals, and similar events. They engage both employees and contractors to provide the labour needed for their services.

The worker first engaged with the employer in February 2022. Initially offered casual employment, the worker requested to operate as a contractor instead. This request was made via email to a manager of the employer:

"Hey is it possible to operate as a contractor for powa gigs?"

This email set the stage for their future relationship. The employer agreed, and the worker began invoicing for his services through his own business, which he had been operating prior to his engagement with the employer.

The invoices included descriptions of services provided, such as "TRAVEL/BUMP IN GROUND SUPPORT SERVICES" along with dates and locations.

Nature of the work and engagement

The worker’s workload included a range of tasks from general labour to more specialised roles. This included loading and unloading trucks, cooking meals, cleaning, stage building, setting up power, and specialised audio and visual equipment setup.

The work was typically associated with "bumping in" and "bumping out" the infrastructure needed for concerts and festivals.

The worker was engaged multiple times throughout 2022 and 2023. According to the employer's records, the worker was engaged five times in 2022, 21 times in 2023, and four times in 2024.

However, these "engagements" often consisted of multiple days of work. In 2023, the worker worked a total of 105 days for the employer.

Increasing work and changing dynamics

As 2023 progressed, the frequency of the worker's engagements with the employer increased significantly. The worker argued this shift represented a fundamental change in their relationship, effectively transforming him into an employee.

He claimed he was "offered an ongoing touring position" and was required to be available for "a season". However, the employer disputed this characterisation, maintaining that only the frequency of engagements had changed, not the underlying contractual arrangement.

The employer's director testified that workers were not expected to be available seven days a week, and that work was offered on a job-by-job basis rather than for entire "seasons".

Key factors in the FWC’s decision

The FWC examined several factors in determining the true nature of the relationship:

1. Control over work: The worker's own evidence suggested he had significant autonomy in how he performed his tasks, though there was some direction from production managers or senior technicians.

2. Ability to work for others: There was no exclusivity clause preventing the worker from taking on other jobs. In fact, the worker maintained other employment throughout his engagement with the employer, including casual work at a convention centre.

3. Tools and equipment: While some were provided by the employer, the worker also used his own tools including a specialised wrench, a shifter, hi-vis vest, and raincoat. He also used his own vehicle and supplied his own phone.

4. Integration into the business: Beyond occasionally wearing a branded polo shirt, there was limited evidence of the worker being presented as part of the employer's organisation.

5. Taxation and remuneration: The worker invoiced for his services, and no PAYG tax was deducted. The worker was responsible for his own taxation arrangements.

The Commission's decision

The FWC ultimately sided with the employer, concluding that the relationship was one of principal and independent contractor, not employer and employee. The Commissioner emphasised:

"Taking all the factors into account, the correct characterisation of the relationship between the parties is one of principal and independent contractor, not employer and employee. The email from the [worker] seeking he be engaged as such at the outset, and the subsequent conduct of the [employer] in treating the [worker] as a contractor via the taxation and remuneration arrangements are a significant basis for displacing the indicia of an employment contract."

This reasoning highlights the importance of initial agreements and consistent conduct in determining working relationships.

The Commissioner also noted:

"There is overall no significant evidence to suggest that the [worker] was working in the [employer's] business as opposed to his own business. The lack of any contractual right, and the limited evidence of any actual control of the work of the [worker] are not consistent with a characterisation of the relationship as one of employment."

Finally, the Commissioner said:

"As an aside, even if the [worker] was an employee, there is no evidence that he was dismissed by the [employer]. That is if he was in fact a casual employee, and it could not be seriously put that he was anything else, then all that happened was he was not offered work on two assignments."

This highlights the high bar for casual employees to prove dismissal, even if they had been found to be employees in this case. The decision serves as a reminder of the complexities in modern working arrangements and the need for clear communication and consistent practices when engaging contractors or employees.

It also underscores the importance of considering the totality of the relationship, rather than focusing on individual factors in isolation.