Western Australian Industrial Relations Commission

“Restricted legal practice” only includes common law employees

Arising from a hearing on jurisdiction, the Commission held that the applicant was, as a restricted legal practitioner under the Legal Profession Act 2008 (WA) (LP Act), an employee of Thames Legal for the purposes of the Industrial Relations Act 1979 (WA). Consequently, the Commission has jurisdiction to hear the applicant’s substantive claims of unfair dismissal and denied contractual benefits.

Senior Commissioner Kenner held that “restricted legal practice,” for the purposes of fulfilling the requirements of s 50 of the LP Act, only contemplates legal practitioners who are employees at common law and does not include independent contractors. This is because the requirements of close supervision and control, underpinning the engagement of a restricted legal practitioner, as set out in s 50 of the LP Act, are entirely at odds with the independence and autonomy that is associated with a person engaged as an independent contractor.

Senior Commissioner Kenner cited the Industrial Appeal Court decision of Personnel Contracting Pty Ltd t/as Tricord Personnel v The Construction Forestry Mining and Energy Union of Workers (2004) 85 WAIG 5 which is authority for the principle that the issue of whether a person is an employee or an independent contractor involves the consideration of the totality of the relationship between the parties, including among other relevant factors, the indicia of control. In this regard, Senior Commissioner Kenner noted several factors, including that Thames Legal had strict file management and calendar systems in place which all staff were required to comply with; all advice prepared for clients was finalised and signed by the respondent; the applicant was required to inform the respondent if he wanted to take time off work and the applicant was identified as a fee earner on client invoices.

The Commission found that the inconsistency between the requirements of s 50 of the LP Act and an independent contractor and principal relationship along with the indicia of control, were sufficient to dispose of the jurisdiction argument. However, as evidence was led on them, additional factors were considered by the Senior Commissioner.  It was found that the applicant was not engaged in running a business in his own right and was represented to clients and the outside world as part of the Thames Legal ‘team’. The fact that the applicant had a registered company and an ABN was of no material weight as the applicant’s company merely acted as a conduit for the purposes of issuing invoices to Thames Legal and receiving payment from the firm, and did not hold itself out as an entity providing legal services. There was also no evidence before the Commission that the applicant performed any work for others or that the applicant delegated work to others and as a restricted legal practitioner, it is unlikely this could occur in any case. The fact that the applicant was paid by percentage reward was considered a neutral factor as both employees and independent contractors may be paid by results or by commission and piecework rates.

Senior Commissioner Kenner concluded that at all material times, the applicant was an employee of Thames Legal and was not an independent contractor.

The decision can be read here.

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