By Gaby Grammeno Contributor

The worker was engaged as a labourer in the tent crew with Australian National Circus Pty Ltd. Her job initially involved helping to put up and pull down the circus tent, and over time it evolved to include driving and canteen work. 

After about six months in the job, her employment was terminated. She believed her sacking was unfair, and applied to the FWC claiming unfair dismissal.

IN THE COMMISSION

In considering the nature of the relationship between the worker and the circus, Commissioner Sarah McKinnon heard that no tax was deducted from the worker’s weekly payments, and no superannuation was paid by the employer for her benefit.

She brought her own black shirt(s), gloves and steel capped boots to the job as she already had them, though the circus provided gloves, boots and other personal protective equipment on request.  Gloves and hard hats were provided for tent ‘put up’ and ‘put down’.  When working in the canteen, she wore a work shirt with the circus logo on it.

She did not lose pay for days when she couldn’t work due to illness, she had the use of circus caravan to live in at no cost, and it was a condition of payment that she provide the circus with a tax invoice bearing her own Australian Business Number (ABN).

The circus objected to the worker’s claim of unfair dismissal on the basis that she was an independent contractor, not an employee. Independent contractors are not covered by the unfair dismissal provisions of the Fair Work Act 2009, so she could not have been ‘dismissed’ in terms of the Act.

The employer submitted that because the woman had agreed not to be an employee, was responsible for paying her own tax and superannuation and provided invoices for her work under an ABN, she was working in her own independent business. 

The worker denied that there’d been conversations leading to a verbal agreement that she’d be working as an independent contractor. She said she wouldn’t work under ‘non-employment’ conditions. She said the only way she’d get paid had been to invoice the employer for her work, that she had no choice about that.

Commissioner McKinnon accepted her evidence and preferred it to that of the employer, where there was a conflict in relation to discussions about the nature of the relationship.

ORAL CONTRACT

A previous case heard by the Federal Court established that the contractual rights and obligations of the parties – in particular, the extent of the employer's right to control how, where, and when the worker performs the work, and the extent to which the worker can be seen to work in their own business, not the employer’s business – apply equally to situations where there’s an oral contract, rather than a written one.

Commissioner McKinnon found that the worker’s engagement had been governed by an oral contract of employment. That oral contract may have initially been with a third party running the tent and logistics side of the business in consultation with the circus, subsequently transferred to the circus. Alternatively, it may always have been with the circus.

Though the precise nature of the relationship had not yet been established, the Commissioner found that the worker was working as an employee, not as an independent contractor.

‘What is clear is that at the time of her dismissal, [the worker] was employed by [the circus]. She was not conducting her own business and was clearly serving in the business of [the circus],’ she said.

The FWC therefore dismissed the employer’s objection and listed the matter for a further hearing to determine whether the worker had completed the minimum employment period as an employee of the circus.

WHAT IT MEANS FOR EMPLOYERS

A worker may be considered an employee, even if there is no written contract of employment.

READ THE DECISION

Annette Calvert v Australian National Circus Pty Ltd [2024] FWC 1325