The Commission has issued an order that an employer pay the balance of outstanding invoices, finding that the worker was an employee and not a contractor, and that the Commission had jurisdiction to hear the claim.

Background

The applicant was engaged as a truck driver from February 2021 to June 2021, working for the respondent across multiple locations. The applicant would be paid after providing the respondent with invoices.t. After the applicant contacted the respondent regarding invoices that were unpaid, the respondent asked the applicant to leave their work accommodation and stopped providing the applicant with work. The respondent did not reimburse the applicant for an invoice in relation to returning home from their work location.

The applicant commenced a denial of contractual benefit claim in the Commission to recover the amount unpaid on the invoices.

Contentions

The applicant contended that the respondent owed them an amount arising out of a contract of employment between the two parties, and that they were dismissed after contacting the respondent regarding these amounts. In relation to being an employee, the applicant contended that the facts of this case varied to the recent High Court decisions of Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd & Anor v Martin Jamsek & Ors [2022] HCA 2  as there was no comprehensive written contract and provided evidence about the nature of the employment relationship.

The respondent contended that the applicant was a contractor and not an employee. Limited contact was made by the respondent with the Commission, and they did not make submissions or appear in proceedings.

Findings

The Commission noted that the contract between the parties was not comprehensive, and did not distinguish whether the applicant was an employee or contractor. The Commission considered the legal authorities and principles relating to characterisation of the work relationship and determined that the applicant was an employee and  was not carrying on a business of their own. The Commission noted particularly that the work undertaken by the applicant was integral to the respondent’s business and the respondent exercised a high degree of control over the applicant’s work.

The Commission determined that the benefits claimed by the applicant arose under the contract of employment. The Commission found that the applicant’s claim was an industrial matter under s 7 of the Industrial Relations Act 1979 (WA). The Commission issued a declaration and order requiring the respondent to pay the applicant the total unpaid amount of the invoices.

The decision can be read here.