Fair Work Commission – Background

In the case of Zielke v Pro-Built Engine Reconditioning Pty Ltd [2017], the Fair Work Commission has found that a worker who claimed they were unfairly dismissed was an employee, instead of a subcontractor.

Fair Work Commission – Facts

In essence:

  • The worker claimed they were dismissed unfairly
  • The employer, Pro-Built Engine Reconditioning argued that the worker was a subcontractor, instead of an employee. This was on the basis he only worked as needed and a verbal agreement with him that he would be on a set wage per week and he would pay his own tax and superannuation
  • However, the worker claimed he was a full-time employee. This is because he was paid a net $800 per week, every week, never provided invoices to the employer and was given group certificates during his engagement

Fair Work Commission – Decision

The Fair Work Commission:

  • Found that the worker was an employee
  • This finding was on the basis that he was required to consult the employer before taking leave, had to catch up on tasks after he returned from leave and had set hours of work. He was also paid whilst on leave, didn’t advertise his services or have a separate place of work and the employer supplied all his tools
  • Concluded that the employer had no valid reason to dismiss the worker and had denied him procedural fairness

Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review this Fair Work Commission decision
  • seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
  • make sure that the terms and conditions of engagement are clearly set out in writing prior to the commencement of the engagement
  • Do not confuse aspects of an employment relationship with that of a subcontractor and principal
  • ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
  • penalties can apply for breaches of employment laws including Awards and enterprise agreements (which an employment lawyer can advise on

More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.