ChatGPT: “Getting to know you”

Seeing that ChatGPT and I have been meeting regularly in “the Playground” lately, I thought that I should ask a few questions to put our conversations on a proper footing. I was a bit direct, but here’s what I learned.

[ME]: What do I call you? A chatbot? A Virtual Learning Agent?

[ChatGPT]: You can call me a Virtual Learning Agent.

[ME]: Can I use “VLA” as an abbreviation of Virtual Learning Agent to refer to you?

[ChatGPT]: Yes, you can use VLA as an abbreviation of Virtual Learning Agent to refer to me.

[ME]: What are your personal pronouns?

[ChatGPT]: My personal pronouns are they/them.

Not a lot, perhaps. But it’s nice to get those things sorted early on. And I’ll now feel a bit more comfortable referring to them, when I’m discussing our Playground conversations about recruitment and professional ethics. Can’t wait to tell you about that!

Andrew C. Wood

So, I just asked ChatGPT …

Photo by Canva. Businessman consulting crystal ball.

What questions should Australian recruitment & staffing agencies be asking (and answering) in the professional contracting space right now?”

And here’s what I got:

  1. What are the current trends in the professional contracting space and what strategies should be adopted to take advantage of them?
  2. How can recruitment and staffing agencies ensure they are compliant with current legislation and regulations?
  3. What are the best practices in terms of contract negotiation and management?
  4. How can agencies ensure that they are providing a competitive rate for contracted staff and what can they do to stay competitive?
  5. How can agencies best support their contracted staff in terms of onboarding, training, and ongoing support?
  6. What strategies can agencies use to ensure that their contracted staff are retained and remain engaged?
  7. What processes should be in place to ensure that contracts are managed efficiently and effectively?
  8. How can agencies ensure that their contractors are meeting the expectations of the clients and the agreed-upon terms of the contract?

What do you think? What would you add, or take out?

You’re invited to join the discussion by securing your spot in one of WorkAccord’s Tuesday TalkAbout Live! online masterclasses commencing 7th February and repeated on 14th and 21st February. Or simply head across to the RCSA-hosted Labour Hire Licensing & Regulation (Aust & NZ) LinkedIn Group and join the conversation there.

Let’s talk again soon!

Andrew C. Wood

Professional Contracting: Serendipitous Timing!

Photo by Anna Shvets on Pexels.com

Amongst the professional contracting issues, which we’ll be discussing in our first Tuesday TalkAbout Live! masterclass for 2023, is the issue of how one interprets and applies the Professional Employees Award 2020. You’ll be interested to learn that last Friday, 20 January 2023, the Full Bench of the Fair Work Commission, on its own motion, varied the coverage provisions of that Award to remove difficulties caused by the “principal purpose test”, which the Commission considered had led to excessive litigation.

You can read the full decision here. However, the gist of the decision to vary the coverage provision can be found at paras [80]-[84], where the Commission said:

[80] … the classifications have the function of determining in what grade an employee covered by the Award will fall rather than whether an employee is covered by the Award in the first place…

[82] … We think that a better approach would be to add a provision to Schedule A which makes it clear that the classifications will apply in the way identified above — that is, that they apply to all employees who perform professional engineering duties, professional scientific duties, professional information technology duties or quality auditing unless the person holds a position which is principally managerial in nature…

[83] We conclude … that Schedule A of the Award should be varied by deleting the sentence appearing immediately under the heading and inserting in lieu thereof the following provision:

An employee performing professional engineering duties, professional scientific duties, professional information technology duties or quality auditing must be classified in one of the following classifications provided that the employee is not employed in a wholly or principally managerial position.

[84] The effect of the above variation will be to remove the need to apply the “principal purpose” test and thus resolve the difficulty identified in Zheng. For the reasons earlier outlined, and contrary to the submissions of the APESMA, we do not consider that the express exclusion of managerial employees will narrow the coverage of the Award and thus engage s 163(1) because no classification in Schedule A currently applies to a manager. Nor do we consider that the variation will expand the coverage of the Award, since its purpose is clarificatory and consistent with the current classification definitions. The variation is necessary, we consider, to achieve the modern awards objective in s 134(1) of the FW Act. In reaching this conclusion, we regard the consideration in s 134(1)(g) as having determinative weight, with the other identified considerations being neutral.

The Commission has published a draft determination and the parties now have until Parties may file submissions in response to the draft determination by 4:00 pm (AEDT) on Friday, 10 February 2023 to file submissions in response to the draft determination.

To find out what else we’ll be covering in our Tuesday Talkabout Live! livestream masterclass, and to reserve your place, check out the Eventbrite online event page here.

Let’s talk again soon!

Andrew C. Wood

Tuesday TalkAbout Live! 2023

Person talking with online meeting participants via mobile device. Photo by Canva.

It’s been almost 12 months since the High Court delivered its decision in the landmark case, CFMMEU v Personnel Contracting and that’s the perfect opportuinity for Tuesday Talkabout Live! to kick off its 2023 program with an exploration of the topic, Professional Contracting …One Year On. You can check out what we’ll be convering via the Eventbrite registration page here.

Throughout 2023, WorkAccord will be presenting monthly masterclasses for recruitment, staffing and HR professionals on the following topics:

February:       Professional Contracting.

March:            Fair Trading

April:              Fair Competition

May:               Privacy

June:              Human Rights

July:               Reference Checking

August:          Licensing & Regulation

September:   Ethics & Professional Conduct     

October:        Care & Support Sector       

November:    Sustainable Employability.

Tuesday TalkAbout Live!

Tuesday TalkAbout Live! masterclasses are small group, interactive livestream discussions. We’ve strictly limited registrations to 15 for each session to give all participants an opportunity to join in, ask questions and have their say. However, to make sure nobody misses out, you have a choice of multiple sessions that you can register for. *

So that discussion can occur freely, we don’t record the live sessions. If, for some reason, you can’t attend the live session you’ve registered for, you’ll be able to access a pre-recorded session and have an opportunity to raise your questions with our presenter by email, or else book a short (10 minute) private call to raise your question by phone or video conference.

Continue the Conversation

Tuesday TalkAbouts Live! are carefully designed to create significant learning experiences and provide a grounding that allows you to carry on the conversation confidently in other forums, where you can learn with and from your peers. That’s where the action really happens! So, after you’ve completed your live masterclass, you can head across to the RCSA-hosted Labour Hire Licensing & Regulation (Aust. & N.Z.) LinkedIn Group, where you’ll be able to continue your exploration and deepen your understanding of our topic.

You don’t need to be an RCSA member to join the LinkedIn Group.

NEW for 2023 … Mobile Microlearning!

And for the first time in 2023, we’ll be supporting your learning with short, accompanying mobile microlearning courses that you can access on your mobile device! There will be a modest charge for these courses, but masterclass registrants will be able to take advantage of atrtractive concessional pricing.

So, make sure you register for one of the sessions, head across to our LinkedIn discussion area and…

…LET’S TALK AGAIN SOON!

Andrew C. Wood

* Subject to availability

Employer Identity Question Still ‘Moot’ Following Full Federal Court Decision

Last month, I reported on a recent decision of Mortimer J in the Federal Court of Australia, which highlighted just how difficult it can be to determine which, amongst several entities within a corporate group, is the actual employer of the employees who work within the group.[i] The Full Court has now addressed the employer identity question in another case, Revill v John Holland Group Pty Ltd,[ii] and it appears that the employer identity question, as well as the means of deciding it, are still moot.

Revill v John Holland concerned a claim that one entity in the Holland Group, John Holland Group Pty Ltd (JH Group) was bound, as the “true employer”, by an enterprise agreement in which it was neither named as a party nor mentioned. The employer respondent to the enterprise agreement was a different company in the Group, John Holland Pty Ltd (JHPL). 

Although JHPL was a wholly owned subsidiary of JH Group, that was not enough to pierce the corporate veil or to hold JH Group liable, under principles of agency, to an enterprise agreement to which it was not a party. The claim failed for that reason.[iii]

The Agency Question

It’s important to keep in mind that the type of agency that the Full Court considered in this case was not the ordinary type of commercial agency that might arise between a principal and its agent operating at arm’s length. It was, instead, the implied agency that can arise in a corporate group, where a holding company operates as the “head and brain” of its subsidiary such that the subsidiary can be treated as the agent of its holding company.[iv]

The Employer Identity Question

Hitherto, the employer identity question was determined on the basis of the “practical realities” test applied after considering a wide range of relevant factors that could extend well beyond the strict terms of the written agreement.[v]

In Revill v John Holland,  Bromberg J. and Feutrill J., in separate judgments, queried whether this was still the correct approach in light of the High Court’s decisions in the Golden Trio of cases[vi] which dealt with the different question of employment status. Neither Judge found it necessary to depart from the “practical realities” approach; but both suggested that there appeared now to be a need to revisit that approach in view of the Hight Court’s decisions.[vii]

It’s hard to know what the effect of this will be until the approach to the determining the employer identity question is authoritatively settled by the High Court.

Diverging approaches

Earlier, this year, the NSW Supreme Court[viii] declined to follow the High Court’s lead, while single instance decisions in the Federal Court[ix] and FWC decisions[x] appeared to demonstrate greater willingness to limit the scope of their inquiries to the terms of the written contract when dealing with employer identity issues.  

Although these earlier decisions were not referred to in his judgment, Feutrill J., with whom both Bromberg and Banks-Smith JJ agreed, displayed a cautious and conservative preference against abandoning the established practical realities line of authority, stating at [153]:

“I do not regard the recent High Court authorities as precluding a party from advancing a claim, based upon the facts of that party’s particular case, to the effect that the ‘true’ employer within a corporate group is not the company identified in the group’s corporate records as the nominal employer. Nor do I regard the recent authorities as precluding a claim, in accordance with established legal principles, that the ‘corporate veil’ of the group should be disregarded because the relevant corporate group arrangement is a sham or that the nominal group employer is employer, as agent, for another company within the group, as principal.”

per Feutrill J at para [153]

For the moment, even at appellate level, it seems that the practical realities approach may continue to hold some sway.

But what about the facts?

Ultimately, however, Mr. Revill’s attempt to hold JH Group bound to the enterprise agreement failed on the facts.

JH Group was not a party to the enterprise agreement or even named in it;  and, despite the control which it exercised over its subsidiary, there was no evidence to “support an inference or submission that, through ownership and common directors, JH Group ‘[was] the head and brain’ of JHPL or that the business of JHPL [was] not a separate business of that company.”[xi]

Different Settings

Revill v John Holland Group was a case that raised questions of employer identity within a corporate group in the context of a claim that an entity which was neither a party nor named in an enterprise agreement could somehow be bound by that agreement. The principle of implied agency was argued as grounds for piercing the corporate veil; but was not supported by the facts.

Different outcomes may still be possible in different settings, as where:

  • the putative employer is expressly named or described in the enterprise agreement, even though not a party to it;
  • there is a written services agreement between the subsidiary and the holding company sufficient to raise a question of whether the subsidiary is acting as an agent of the holding company according to principles of commercial agency;
  • there may be representations or conduct that may give rise to legal or equitable estoppels, rendering it unconscionable for the putative employer to deny its employer identity or responsibilities;
  • the parties are at arms’ length, as where the Employer of Record (EoR) is merely supplying payroll services to the “true employer”;
  • under, a Payroll (EoR) services arrangement, the EoR is constituted as the agent of the putative employer;
  • under, a Payroll (EoR) services arrangement, the EoR, the putative employer, and the worker or contractor are all parties to the arrangement and the worker or contractor owes obligations of some sort to the putative employer;
  • in an insolvency situation, the provisions and policy of Part 5.6, Div. 6 of the Corporations Act 2001 (priority of creditors) are engaged.

With a little imagination, you may be able to think of other scenarios, where the outcome may not be as certain as it was in Revill v John Holland Group.

The important lesson for now is that the employer identity question raises complex legal issues that must be approached with care and with a thorough knowledge of the facts.

Afterthought: Multi-Employer Bargaining

As an afterthought, parties negotiating multi-employer agreements under the Labor’s industrial reforms should take note of the decision and may need to make sure to include all respondent employers by name, being aware of the added complexities that may arise when bargaining with corporate groups.

Andrew C. Wood


[i] Robinson v BMF Pty Ltd (in liq) (No 2) [2022] FCA 1191 7 October 2022.

[ii] Revill v John Holland Group Pty Ltd [2022] FCAFC 178 8 November 2022.

[iii] Per Bromberg J at para [15]; Banks-Smith J at para [20]; and Feutrill J at paras [144] – [147].

[iv]  Smith, Stone and Knight Ltd v Birmingham Corporation [1939] 4 All ER 116;

[v]  Per Bromberg J at para [14] and per Feutrill J at paras [144] – [147].

[vi] Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Personnel Contracting Pty Ltd [2022] HCA 1(2022) 398 ALR 404 at [59] (Kiefel CJ, Keane and Edelman JJ), at [172]-[173] (Gordon J); ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2(2022) 398 ALR 603 at [8] (Kiefel CJ, Keane and Edelman JJ); and Workpac Pty Ltd v Rossato [2021] HCA 23(2021) 271 CLR 456 at [97] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ).

[vii] Per Bromberg J at para [14] and per Feutrill J at para [152].

[viii]  In the matter of Spitfire Corporation Limited (in liq.) and Aspirio Pty Ltd (in liq) [2022] NSWSC 340.

[ix] Robinson v BMF Pty Ltd (in liq) (No 2) [2022] FCA 1191 7 October 2022.

[x] Peter John Chambers Jennifer O’Brien v Broadway Homes Pty Ltd t/a Broadway Homes [2022] FWCFB 129 (13 July 2022).

[xi] Per Feutrill J at para [159].

Your Payroll Services Provider Is Not An Allied Health Practice

It’s about time we had a serious conversation about some of the nonsense that’s been creeping in to so-called “payroll services” supply contracts.

Consider this common contractual formula:

  1. Labour Hire Firm has sourced Individual to work as an on-hired physiotherapist for its Client.
  2. Individual means Jo Physio.
  3. Client means the Department of Health.
  4. Payroll Provider must employ Jo Physio.
  5. Payroll Provider must provide Services of Jo Physio to Client.
  6. Services means physiotherapy services.

What do you make of it?

Has the Payroll Provider contracted a primary obligation to supply physiotherapy services to the Department of Health? If so, what authority did Labour Hire Provider have to make the bargain? Is it an obligation owed only to Labour Hire Provider, which Labour Hire Provider holds on some sort of trust for the Department?

Has Payroll Provider accepted a sub-contracted obligation from Labour Hire Firm to supply physiotherapy services to the Department of Health? What if Labour Hire Firm never had a contractual obligation to supply physiotherapy services to the department in the first place; but merely an obligation to supply a physiotherapy worker?  Was there ever an obligation to supply physiotherapy services that could have been sub-contracted? Does the contract not mean what it appears to say?  

What contracts and arrangements would you need to see if you were asked to untangle this mess – say, in order to identify the “true employer“; or to identify whether Jo Physio is an employee or an independent contractor; or to establish who needs a labour hire licence, or an employment agent’s licence; or to untangle indemnity and liability insurance obligations.

Sadly, I see a lot of “half-smart” contracts that create more problems than they solve because they ignore the basics and seem to be thrown together without too much in the way of legal analysis.

That’s why we need to get talking. And that’s what we’re going to do over the next three weeks as we dedicate a series of Tuesday TalkAbout Live sessions to this topic.

Check the details and make sure you don’t miss out.

Let’s talk again soon!

Andrew C. Wood

Employer Identity: Still an unsettled question

A recent decision of Mortimer J in the Federal Court of Australia[i] highlights just how difficult it can be to determine which, amongst several entities within a corporate group, is the actual employer of the employees who work within the group.

However, several lessons appear to be emerging:

  1. The Federal Court (and the Fair Work Commission so it seems[ii]) are displaying a preference to determine employer identity questions using the same approach that the High Court used in Personnel Contracting[iii] and Jamsek[iv] earlier this year to determine employment status questions.
  2. But not everyone agrees with that approach. The NSW Supreme Court in Spitfire Corporation[v] held that, in corporate group cases – at least where the provisions and policy of Part 5.6, Div. 6 of the Corporations Act 2001 are engaged[vi] – there may still be scope to inquire into the totality of the relationship rather than to restrict the inquiry to the legal rights and obligations of the parties as set out in the contract.
  3. Nevertheless, Spitfire Corporation could be limited to insolvency cases.[vii] It may take another appeal to the High Court to resolve that question.
  4. Meanwhile, sham transactions are still susceptible to being unravelled by an examination of the circumstances beyond what is merely set out in the contract. That proposition is consistent with Personnel Contracting[viii].
  5. But the courts may take a fairly narrow view of what amounts to a sham transaction – the essence of a sham being an attempt to disguise a transaction as something that it is not. That is to say, it involves “some kind of deception”.[ix]
  6.  That may be difficult to establish if the entities in the group share the same “controlling minds and officers”. In such a case, there may be considerable freedom to choose which of several corporate vehicles within the group should act as employer.[x]
  7. Neither will the courts move too quickly to “pierce the corporate veil”. Unless “the corporate form is being abused for an improper purpose, such as to perpetrate fraud and avoid extant legal duties”,[xi] a court is unlikely to ignore the separate legal personality and limited liability of legal corporations.
  8. However, liability may still be sheeted home to a principal within a corporate group as the result of agency if there is “a real [legal?] relationship of agency between parent and subsidiary not one said to arise [merely?] from the existence of control and identity of interest in two separate corporate forms”.[xii]
  9. The intersection between employment law and consumer (fair trading) law is, at last, beginning to be explored in the context of employer identity issues.
  10. In this case, misleading and deceptive conduct claims[xiii] and misrepresentation in connection with offers of employment claims[xiv] were pursued against the putative employer and its director. They failed because the employee brought them against a company that was not his employer[xv] and could not establish that they were made.xvi
  11. Future exploration of the intersection between employment law and the Australian Consumer Law might eventually see the terms of the comprehensive written contract (or contracts), upon which the court would rely  in determining the employer identity issue according to the approach in Personnel Contracting, thoroughly scrutinised for misleading conduct, unfairness (other than purely in respect of employment terms) and even estoppel[xvii] or mistake – all with a view to having the web of contractual rights and obligations “put in order” so that the court may have a reliable guide that will enable it to place all its eggs in the contractual basket.
  12. Lastly, it seems fair to observe that the arguments for the employee were complex, sophisticated and elegantly assembled. But arguments do not make a case; and, in this instance, the arguments could fare no better than the facts on which they were based – the court finding that: “[the employee] has failed to prove any of his claims on the balance of probabilities.”xviii

This can all seem difficult enough – even in a relatively simple corporate grouping consisting of no more than an operating entity and an administrative entity. However, as the network of contractual relationships expands to include labour hire firms, outsourced payroll providers and incorporated worker entities, the difficulty of identifying the true employer of a worker as between the person who pays them and the person who controls the supply of their labour increases dramatically. Some of those dramas are already being played out in the Fair Work Commission. Hopefully we will get some more clarification before too long.

Andrew C. Wood


[i]      Robinson v BMF Pty Ltd (in liq) (No 2) [2022] FCA 1191 7 October 2022.

[ii]     Peter John Chambers Jennifer O’Brien v Broadway Homes Pty Ltd t/a Broadway Homes [2022] FWCFB 129 (13 July 2022).

[iii]    Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1

[iv]    ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2

[v]     In the matter of Spitfire Corporation Limited (in liq.) and Aspirio Pty Ltd (in liq) [2022] NSWSC 340.

[vi]    Priority of creditors.

[vii]    At para [192].

[viii]   At para [196].

[ix]    At para. [195].

[x]     At para [174] distinguishing Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176198 FCR 174 – a labour hire case about whether the host or labour hire firm was the true employer.

[xi]    At para [212].

[xii]    At para [212], citing Alsop CJ speaking extra-judicially in “Piercing the Corporate Veil: Recent International Developments” (Paper presented to the 38th Annual Conference of the Banking & Financial Services Law Association, 26 August 2022). My inserts.

[xiii]   ACL s 18.

[xiv]   ACL s. 31.

[xv]    At para [248].

[xvi]   At para [265].

[xvii] At paras [267] – [268].

[xviii] At para [270].

If words create worlds …

Photo by Skitterphoto on Pexels.com

What would be one piece of jargon that you’d like to strike from the language of recruitment? For me, it would have to be CANDIDATE OWNERSHIP.

It’s hard to find an expression that does greater damage to the reputation of recruitment as an emerging profession.

Of course, you all know that you can’t OWN a candidate. That sort of thing was abolished with slavery. So, at best, it’s a lazy expression that must clearly mean something else.

What you can OWN is the relational asset that consists of the goodwill connection that you enjoy with your candidates and clients.

You can also own the related intellectual property, contractual and legal rights that protect that goodwill.

But let me be clear. You cannot own a candidate. For as the courts have said, “No candidate is an asset on your balance sheet to be bought and sold”.

So, if it’s true that “words make worlds”, let’s make a world that is better because it uses language that reinforces and respects candidates’ value as people rather than as commodities.

Andrew C. Wood

Do we still need this?

The Optus case for retaining customer personal information, including government identifiers (e.g., passport, drivers’ licence, and Medicare numbers), may well be different from the retention case that recruitment & staffing agencies could mount.

But if you’re a recruiter, and you’re are retaining that sort of information, it might be wise to ask yourself why you need to retain it.

Sure, you might have needed it to verify the identity or work rights of your candidates; but if you can’t make a convincing argument for retaining it – and inconvenience is not a convincing argument – then shouldn’t you be destroying or de-identifying it in accordance with APP.11 and NZ IPP.9?

It’s worth asking the question, and it might keep you and your candidates safe.

Andrew C. Wood

Contracting Workforce: “The winds of change blow shrilly…”

Photo by Harrison Haines on Pexels.com

I would like to acknowledge the 18 August 2022 LinkedIn post by Anthony Wood, Partner at Herbert Smith Freehills, Lawyers (and no relation of mine, so far as I know). Anthony brought to the attention of the LinkedIn community an important decision of the Full Bench of the Fair Work Commission this week, which sheds further light on the way in which Australian courts and commissions are likely to apply recent decisions of the High Court that have changed the rules about how we distinguish between employees and independent contractors. He concludes his insightful post as follows:

“With job security one of the themes underpinning Labor’s 2022 election platform, it’s now likely to become a political and legislative issue before the new federal parliament”.

Please be sure to read Anthony’s post and engage in the conversation.  You can find Anthony’s post on LinkedIn here.

“…as winds of change blow shrilly round my poor abode.” [i]

FWC Full Bench decision

Earlier this week, the Full Bench of the Fair Work Commission finally handed down its delayed decision in Deliveroo Australia Pty Ltd v Diego Franco.[ii]The case was an appeal from a finding of unfair dismissal in relation to a food delivery worker. 

The decision was delayed whilst the case was put on hold to give time for the High Court to consider the appeals in Personnel Contracting[iii] and Jamsek;[iv] and then to allow the Full Bench to consider the effect which those decisions were to have on disposal of the matter before it.

Distinguishing between casual employment and independent contracting

Platform-based work, or gig-economy work, often presents as either casual employment or independent contracting.  Sometimes it can be difficult to distinguish between them. That was certainly so in this case.

However, feeling constrained by the recent High Court’s decisions to limit its consideration to an analysis of the contractual rights and obligations of the parties, the Full Bench reversed the finding at first instance and determined ultimately that Mr Franco was an independent contractor. Consequently, his unfair dismissal claim was beyond the Commission’s jurisdiction.

Equivocal and weak factors

The following factors, though somewhat equivocal, were considered by the Full Bench to be not inconsistent with conventional understandings of casual employment:

  • that Mr Franco was not obliged to do any work for Deliveroo and that Deliveroo was not obliged to make any work available to Mr Franco (clause 2.2)[v]
  • that Mr Franco could accept or reject any work offered to him when logged into the Deliveroo Rider App (clause 2.4)[vi]
  • that Mr Franco was free to work for any other party including competitors of Deliveroo (also clause 2.2)[vii]

The following factors, though difficult to reconcile with conventional understandings of casual employment and weighing somewhat against a finding that Mr Franco was an employee, were still not determinative by themselves:

  • that Mr Franco had the right to elect not only when but where he chose to work, and that Deliveroo was restricted to offering work within the parameters thus determined by Mr Franco (clause 2.3)[viii]
  • that Mr Franco, even once he had accepted an order, was allowed to subsequently “unassign” himself from that order, in which case he was not obliged to perform it (clause 2.5.1)[ix]

The lesson, here, is that these factors are not decisive either of themselves or in aggregate.

Weightier factors

However, the Full Bench considered that four aspects of the work contract did weigh decisively in favour of the conclusion that Mr Franco was in an independent contracting relationship with Deliveroo. 

Keep in mind that the factors might weigh differently in other cases. This was a case involving food delivery work. In a case involving construction or horticultural labour or academic work, the factors might not carry the same weight.

1. Deliveroo lacked control over the manner of performance of the work which Mr Franco agreed to undertake.[x]

Mr Franco was able to determine the route and what type of vehicle he would use to carry out his deliveries.

The Full Bench considered that the requirement for timely delivery was typical for independent contracting arrangements in the road transport industry and constitutes a performance standard rather than a right of control.

 Similarly, broadly stated contractual obligations “to deal with others professionally” when performing delivery services and to “provide the services with due care, skill and ability” were interpreted by the Full Bench as merely establishing performance standards rather than a contractual right to control the manner in which the work was performed.

2. Mr Franco was obliged by clause 4.1 of the contract to provide, at his own expense, the vehicle used to carry out his deliveries.[xi]

Drawing upon the language of Gageler & Gleeson JJ in Jamsek, the Full Bench considered that the contract required Mr Franco to provide a “substantial item of mechanical equipment” such that “the personal is overshadowed by the mechanical”.

3. The contract did not require personal service on the part of Mr Franco.[xii]

Clause 9 of the contract provided that Mr Franco had the right, without the need for prior approval from Deliveroo, to arrange for someone else to perform delivery services on his behalf.

Many contracts provide for delegation.  What was significant about this contract was that Deliveroo did not try by its contract to control Mr Franco’s right to delegate performance of the work to others. Whether or not it did so by other means was not relevant to the task of characterising the relationship.[xiii]

4. Although the method of remuneration (payment by results) was not inconsistent with an employment relationship, and would not have been determinative by itself, Mr Franco was required to pay an administrative fee of 4% of the amount earned by him.[xiv]

The fee was charged for access to Deliveroo’s software and for Deliveroo’s providing invoices and other administrative services. The Full Bench considered that this was not consistent with an employment relationship.

A word of caution, however.  Reliance on this factor can quickly lead you into error if the weight of factors points to the relationship being one of employment. In those circumstances, charging an “administration fee” might amount to nothing more than making unlawful deductions from a worker’s wages.

Alternative redress and remedial frameworks

From a reading of paragraphs [53] to ]55] of the decision, one gets that the Full Bench reached its conclusion with a deep sense of regret. Anthony Wood, in his recent LinkedIn post,[xv] which I again encourage you to read, foreshadowed the need for a legislative solution when he wrote:

“With job security one of the themes underpinning Labor’s 2022 election platform, it’s now likely to become a political and legislative issue before the new federal parliament.”

Anthony Wood ,18 August 2022

He may well be right; and a legislative solution might eventually look something like the UK extension of employment entitlements to certain classes of dependent contractors defined as “workers” under the Employment Rights Act 1996 (UK). But I fear that such a solution will take time to develop, and that the complexities of applying a characterization tri-chotomy to the wide range of situations in which the distinction between employees and independent contracting is important under federal, state and territory legislation[xvi] may add an extra layer of complexity and confusion.  That is not to say that it should not be attempted.

Commercial rather than industrial remedies?

For now, workers who find themselves in the position of Mr Franco may need to consider what alternative remedies may be available to them under the Independent Contractors Act 2006 (C’th) and the unfair-terms-in-small-business-standard-form-contracts of the Australian Consumer Law. They (and their representatives) may need to consider how to take advantage of the small business collective bargaining class exemption under the Competition and Consumer Act 2010 (C’th) if they seek to redress bargaining imbalances[xvii] and seek commercial, rather than industrial remedies.

A group of Boral concrete carters in Western Australia obtained protection under the ACCC’s class exemption earlier this year to collectively bargain with Boral Limited over “terms of agreement for the provision of cartage services including payment for carting concrete including using own vehicles, and other related terms”.

Whilst the outcome may not be as satisfactory as extending employment-like entitlements or providing legislative clarification of their worker status, there would be no reason in principle why Deliveroo independent contractors (and others in the same position) could not do likewise were someone to step forward to assist them with organization and representation.

Let’s hope somebody does.

Andrew C. Wood


[i]      Anon.

[ii]     Deliveroo Australia Pty Ltd v Diego Franco [2022] FWCFB 156 (17 August 2022).

[iii]    Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd  [2022] HCA 1.

[iv]    ZG Operations Australia Pty Ltd v Jamsek  [2022] HCA 2.

[v]     At para [43].

[vi]    At para [43].

[vii]    At para [44].

[viii]   At para [45].

[ix]    At para [45].

[x]     At para [46].

[xi]    At para [48].

[xii]    At para [49].

[xiii]   At para [54] the Full Bench observed, with regard to the workplace reality (as distinct from the legal character of the parties’ relationship): “As a matter of reality, Deliveroo exercised a degree of control over Mr Franco’s performance of the work, Mr Franco presented himself to the world with Deliveroo’s encouragement as part of Deliveroo’s business, his provision of the means of delivery involved no substantial capital outlay, and the relationship was one of personal service. These matters, taken together, would tip the balance in favour of a conclusion that Mr Franco was an employee of Deliveroo. However, as a result ofPersonnel Contracting, we must close our eyes to these matters.”

[xiv]   At para [50].

[xv]    18 August 2022.

[xvi]   Consider how such a tri-chotomy would apply to state and territory payroll tax or workers compensation schemes.

[xvii] Collective Bargaining Class Exemption Notice Form 15th July 2022, ACCC Class Exemptions Register, https://www.accc.gov.au/system/files/public-registers/documents/Boral%20concrete%20carters_0.pdf