In this matter, the Federal Court said;
1. Appeal allowed.
2. Set aside the order of the Full Court of the Federal Court of Australia made on 17 March 2015 and, in its place, order that:
(a) the appeal be allowed;
(b) the order of McKerracher J made on 26 July 2013 be varied so that, in addition to the declarations contained in paragraphs 1 and 2 of the order, the following declarations be made:
"2A. The first respondent contravened s 357 of the Act by representing to Ms Margaret Best that the contract of employment under which she was employed by the first respondent was a contract for services under which she performed work as an independent contractor";
"2B. The first respondent contravened s 357 of the Act by representing to Ms Carol Roden that the contract of employment under which she was employed by the first respondent was a contract for services under which she performed work as an independent contractor"; and
(c) the proceeding be remitted to a judge of the Federal Court for further hearing to determine any pecuniary penalties to be imposed on the first respondent in respect of those contraventions.
Employment law – Employer and employee – Independent contractor – Sham arrangements – Fair Work Act 2009 (Cth), s 357(1) prohibits representation by employer to employee that contract of employment under which individual is employed is contract for services – First respondent represented that employees performed work as independent contractors under contracts for services with second respondent – Whether first respondent contravened s 357(1).
Words and phrases – "contract for services", "independent contractor", "sham arrangement".
(02 December 2015) (FRENCH CJ, KIEFEL, BELL, GAGELER AND NETTLE JJ)
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