EFEX Group Pty Ltd v Bennett [2023] FCA 508

Federal Court of Australia

EFEX Group Pty Ltd v Bennett [2023] FCA 508 File number: SAD 176 of 2020

Judgment of: BESANKO J

Date of judgment: 24 May 2023

Catchwords: INDUSTRIAL LAW —– application under s 562 of the Fair Work Act 2009 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) for order in the nature of prohibition directed at the Fair Work Commission restraining it from continuing to hear an unfair dismissal claim under s 394 of the Fair Work Act —– ground of application is that the alleged employee is an independent contractor and not an employee —– issue of whether there was an employment relationship between the parties is a jurisdictional fact for this Court to determine INDUSTRIAL LAW —– nature of employment relationship —– effect of recent decisions of the High Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 398 ALR 603 —– no written contract between the parties who were friends —– informal arrangements between the alleged employer and the alleged employee —– matters relevant to whether employment relationship exists —– the common understanding of the parties as to the nature of their relationship —– the extent of the alleged employer's right of control —– whether the alleged employee was held out as part of the alleged employer's organisation —– whether the alleged employee had the ability to work for others —– whether the alleged employee had the ability to delegate any of his work for his alleged employer to others —– whether the alleged employee provided capital or assets towards or in relation to work for the alleged employer —– whether the alleged employee had the ability to generate goodwill or other saleable assets —– relevance of mode of remuneration, leave (annual and sick) and taxation arrangements —– other matters —– in all the circumstances an employment relationship existed —– application dismissed