ZG Operations Australia Pty Ltd & Anor v. Jamsek & Ors

Lower Court Judgment

16/07/2020 Federal Court of Australia (Perram, Wigney and Anderson JJ)

[2020] FCAFC 119

Catchwords

Industrial law – Employee and contractor – Proper test for distinguishing – Multi-factorial test – Where respondents commenced employment with applicants as truck drivers in 1980 – Where, in 1985, applicants and respondents agreed respondents would become contractors – Where respondents formed partnerships with respective wives, purchased truck from applicants and executed written contract with applicants to provide delivery services – Where respondents worked exclusively for and derived sole income from applicants for nearly forty years, and contract expressly permitted respondents to service other clients – Where respondents required to be available to work during set hours – Where impractical for respondents to work for or generate goodwill with other clients – Where respondents required to purchase truck to retain work, display company logo on truck and wear branded clothing – Where respondents responsible for upkeep, maintenance and insurance of trucks – Where respondents paid by invoice and charged GST to applicants – Where respondents conducted partnerships as one would expect of business - Where contract terminated in 2017 – Where respondents unsuccessfully claimed in Federal Court for unpaid employee entitlements under various statutory regimes and Federal Court held respondents “contractors” – Where respondents successfully appealed to Full Court, which held respondents “employees” – Whether respondents “employees” for purposes of Fair Work Act 2009 (Cth), Superannuation Guarantee (Administration) Act 1992 (Cth) and “workers” for purpose of Long Service Leave Act 1955 (NSW).