Western Australian Industrial Relations Commission

Claim for annual leave and superannuation entitlements dismissed, but claim for long service leave upheld

The Industrial Magistrate’s Court has dismissed a claim by a meat delivery driver for annual leave and superannuation entitlements under the Fair Work Act 2009 (Cth) (FW Act) but upheld his claim for long service leave entitlements under the Long Service Leave Act 1958 (WA) (LSL Act).

The respondent denied that the applicant was an employee under the FW Act and the LSL Act, but rather said that he was an independent contractor. 

Industrial Magistrate Flynn determined that the totality of the relationship between the applicant and respondent included the legal relationship between the parties. Flynn IM found that the services of the applicant were supplied to the respondent by a partnership, of which the claimant and his wife were partners. Flynn IM found that the role of the partnership and the fact that the applicant supplied his own purpose-built vehicle for his work indicated that the applicant was not serving the respondent’s business, but his own. He was not an ‘employee’ as defined under the FW Act.

Annual leave and superannuation entitlements

Flynn IM found that the applicant’s claim for annual leave and superannuation entitlements be dismissed.

Long service leave entitlements

In relation to the applicant’s claim for long service leave entitlements under the LSL Act, Flynn IM considered s 4(1)(d) of the LSL Act and noted that this definition of ‘employee’ contains a specific reference to vehicle ownership.

Flynn IM found that the meaning of ‘in all other respects an employee’ in s 4(1)(d) is determined through the application of the same ‘totality of the relationship’ test applied in the applicant’s claim under the FW Act, without regard to the fact that the applicant owned the vehicle through the partnership.

Flynn IM re-applied the ‘totality of the relationship’ test (excluding the fact that he partly owned the vehicle through the partnership) and found that the applicant was an ‘employee’ of the respondent as defined by s 4(1)(d).

Flynn IM upheld the applicant’s claim for long service leave entitlements.

The decision can be read here.

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