Employee or independent contractor? Determining the employment relationship

The Fair Work Commission (FWC) recently dealt with a case involving a worker who provided daily living support services to a National Disability Insurance Scheme (NDIS) participant.

The matter focused on whether the worker was an employee or an independent contractor, and whether she was eligible to make a general protections application involving dismissal.

The worker argued that her employment had been terminated, claiming she was dismissed from her role providing support services to an NDIS participant.

She said that despite having an ABN and submitting invoices, the nature of her work and the level of control exercised over her activities were indicative of an employment relationship.

NDIS support services

The case involved a worker who provided daily living support services to an NDIS participant in the participant's home. These services were funded by the NDIS and were of a defined nature. The arrangement ended on or around 7 June 2024, which led to the worker's application to the FWC.

The application named two employers: the NDIS participant's son, who held power of attorney and was an NDIS plan nominee, and a friend of the NDIS participant. The worker claimed that her employment had ended on 7 June 2024.

The FWC noted that the application was lodged 3 days outside of the time limit provided for by the Act for starting such an application. This meant that the worker's application could only continue if the Commission granted an extension of time due to exceptional circumstances.

Employee or independent contractor?

The main question in this case was whether the worker was an employee or an independent contractor. This distinction was important, as it determined whether the worker could make a general protections application involving dismissal under the Fair Work Act 2009.

The FWC examined the contractual relationship between the parties. The Commission referred to the principles laid down by the High Court in CFMMEU v Personnel Contracting Pty Ltd, which guide the determination of employment status.

The FWC looked at the NDIS Service Agreement between the worker and the NDIS participant. This agreement outlined the supports to be provided, responsibilities of both parties, and payment arrangements. The agreement did not mention any employer responsibilities under Occupational Health & Safety or workers' compensation legislation.

The Commission noted:

"Through the Service Agreement, [the worker] agrees to provide [the NDIS participant] with assistance with self-care activities, with the activities and the payment for them set out in an itemised schedule. The Service Agreement states that the relevant prices are GST inclusive if applicable and include the cost of providing the support."

Factors determining an employment relationship

The FWC considered several factors in reaching its decision:

1. The worker operated with an ABN and submitted invoices to the NDIS plan manager.
2. The Service Agreement regulated the relationship between the parties.
3. The arrangement was not for the purpose of any business on the part of the NDIS participant or her son.
4. The level of control over the worker's activities was limited and primarily related to the nature of in-home support services.

The Commission's analysis included:

"The evidence suggests that from the time the Service Agreement was entered into, on or around 11 or 13 March 2024, until it ended on 7 June 2024, that each party was regulated by its terms. Further, it must be noted that [the worker] was not the only such service provider in [the NDIS participant's] home; there is evidence to the effect that there are at least two others providing services from time to time, with [the NDIS participant's son's] evidence being that the contractual payments and other arrangements pertaining to those people are the same as they were for [the worker]."

In enumerating these factors, the FWC emphasised the importance of written agreements in defining working relationships, especially in non-traditional employment settings.

After consideration, the FWC determined that the worker was not an employee of either the NDIS participant or her son. The Commission stated:

"Having considered all of the circumstances of the matter, I am not satisfied that at any stage [the worker] was an employee of either [the NDIS participant] or [the NDIS participant's son]. Neither was she employed by [the friend of the NDIS participant]."

Consequently, the FWC said:

"It follows that [the worker] was not 'dismissed' by any of [the NDIS participant, her son, or her friend] within the meaning of the FW Act and that her general protections application to the Commission must now be dismissed."