Worker received no payments or formal contract despite performing business duties
The Fair Work Commission (FWC) recently dealt with a general protections application involving a worker who claimed dismissal from a real estate company.
The case arose when the worker sought to challenge his alleged dismissal after performing work for a property investment business for one month without receiving payment or a formal employment contract.
The worker argued he had been employed as a buyer's agent and was dismissed in contravention of general protections legislation after expressing health concerns. He maintained that work tools, daily meetings, and regulatory listings demonstrated a genuine employment relationship entitling him to dismissal protections.
The employer contested the claim, arguing that no employment relationship existed as he was intended to work as an independent contractor on commission.
The real estate company maintained that without a formal contract, regular payments, or direct supervision from company directors, the worker had never achieved employee status.
Informal recruitment creates contractual ambiguity
The relationship began in June 2024 when the worker discussed joining the newly established buyer's agent business, with conversations indicating potential payments of $4,000 per client for concluded deals.
On 8 October 2024, he met company representatives at a cafe in what he described as an interview, though they characterised it as a coffee chat.
The following day, the worker began performing duties and received access to WeChat groups, Lark communication software, market research tools, and Google Drive. However, the only formal document was a confidentiality agreement signed electronically by both parties on 9 October 2024.
By 31 October 2024, the worker had obtained his Certificate IV in Real Estate Practice and was listed on Consumer Affairs Victoria's Estate Agents Public Register as Employees - Agents representatives employed by licensee.
However, the company director later explained that regulatory requirements provided only one option for listing buyer's agents, regardless of actual contractual relationships.
Work performance lacks direct company control
During the one-month period from 9 October to 8 November 2024, the worker attended daily video meetings, followed client leads, and visited properties.
However, the FWC found limited evidence of direct supervision or control from the company itself, with most interactions occurring through intermediary representatives.
The Commission noted: There is limited evidence of whether [the company] exercised any control over [the worker] in the performance of his work... It does not demonstrate [the company] or [the director] instructing [the worker] to perform any tasks or how those tasks should be performed.
The worker used his own phone, computer, and vehicle while the company provided software access.
The Commission determined this arrangement tends more towards a contractor relationship given the mixed provision of work tools.
Payment structure suggests independent contractor arrangement
A critical factor was the absence of any payments from the company during the entire relationship period.
The worker never received promised $4,000 per client payments, nor completed payment forms or provided taxation information for employment purposes.
Company witnesses repeatedly stated the worker was fully aware that payment would be by ABN from an individual representative rather than the company.
However, the FWC gave no weight to these coordinated responses, finding the per-client commission arrangement tends more towards a contractor relationship than employment.
The only payment received was $395 reimbursement for qualification costs, paid directly by an individual representative rather than the company.
Absence of direct employer communication
A fundamental weakness was the worker's complete lack of direct communication with the company director.
The FWC noted: The worker never met (in-person or electronically) nor otherwise communicated directly with [the director] during his relationship with [the company].
This absence of direct contact undermined employment relationship claims, as interactions were primarily with intermediary representatives who may have lacked authority to create binding employment contracts.
The Commission found insufficient evidence these representatives possessed actual or ostensible authority to engage employees.
FWC applies strict contractual relationship test
The FWC applied section 15AA of the Fair Work Act, requiring determination of employment relationships by examining the real substance, practical reality and true nature of the relationship.
The tribunal concluded: The primary basis of my conclusion is that there is insufficient evidence of a legal relationship between [the worker] and [the company]. No written agreement sets out the relationship.
The Commission dismissed several factors the worker relied upon, including requests for an employment contract, regulatory listings as an employee, and alleged threatening conduct after the relationship ended, finding these matters irrelevant to the legal character of the relationship.
Worker left without recourse despite unpaid work
Despite acknowledging the worker's frustration at performing work without remuneration, the Commission emphasised employment law protections required a valid employment relationship as prerequisite.
The FWC stated: I understand why [the worker] is aggrieved... [He] seems to have been busy performing work, and he has not received any remuneration. Unfortunately, it is not clear on what basis he should have been performing that work.
The decision highlights worker vulnerability in informal arrangements where contractual relationships remain ambiguous. It further demonstrates the importance of establishing clear contractual relationships from work commencement, particularly where independent contractor and employee classifications may overlap.
https://www.hcamag.com/au/specialisation/employment-law/informal-work-arrangement-is-there-an-employment-relationship/546096
