Own ABN, no leave, no super - not an employee

Author: Harrison HR | Blog

The applicant was found not to be an employee but, instead, a contractor–principal relationship existed, and was hence not protected from unfair dismissal under s382 of the Fair Work Act 2009.
Fair Work Australia has dismissed an application for unfair dismissal remedy for want of jurisdiction.

The cab rank supervisor’s situation

A man was engaged as cab rank supervisor to work at Brisbane airport in around 2006. In November 2010, the Taxi Council of Queensland Inc (TCQ) asked him to attend a disciplinary hearing because of complains that he had sent taxis off the rank without fares. The disciplinary committee decided to terminate his services from 26 November 2010.
The cab rank supervisor claimed he had been unfairly dismissed and applied to Fair Work Australia for an unfair dismissal remedy. TCQ contended he had been an independent contractor and not an employee and therefore was not a person protected from unfair dismissal under s382 of the Fair Work Act 2009.

A multi-faceted relationship

Fair Work Australia found that the man had been in a multi-faceted work relationship with:

  1. a Mr LM who worked for one of the taxi companies and exerted a degree of control over when and how the can rank supervisor performed his work
  2. the taxi company Mr LM worked for who remunerated the cab rank supervisor according to tax invoices submitted and who then billed TCQ, which in turn sourced the payments from Brisbane Airport Corporation
  3. TCQ who provided uniforms and other equipment as well as the policies that the cab rank supervisor was to follow
  4. Brisbane Airport Corporation who ultimately used the cab rank supervisor to provide services to passengers at the terminal.

Because Mr LM, although not an employee of TCQ, had styled himself as taxi rank coordinator for TCQ and because, from about May 2010, the payment system had changed and the cab rank supervisor had started invoicing TCQ directly, it was perhaps understandable that he had seen himself as being in an employment relationship with TCQ. However, he had his own Australian Business Number, monitored his own hours, prepared his own invoices, had no security or tenure, and was not entitled to leave or employee benefits like superannuation.
TCQ had not withheld tax from his payments and had not provided training or induction.
There were no written contracts that could clarify the relationships between the parties involved.

On the available evidence, Fair Work Australia was not satisfied that the cab rank supervisor had been an employee of TCQ. Even if his status had changed in mid-2010 when he began to invoice TCQ directly and he had then become an employee, he would not have completed the minimum qualifying period under s383 of the Act by the time his services were ended so he was not a person protected from unfair dismissal.
The cab rank supervisor’s application was dismissed for want of jurisdiction.

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