the Applicant v Burke And Wills Projects Pty Ltd & the Respondent
Citation: [2026] FWC 2908
At a glance
- Employees affected
- 1
What happened
the Applicant, through his company Property Corporate Group Pty Ltd, performed work for Burke and Wills Projects Pty Ltd from July 2022 until March 2026. They operated under a contract where the Applicant invoiced Burke and Wills for services. The relationship ended when Burke and Wills offered the Applicant employment, which he rejected, leading to the termination of their arrangement. the Applicant subsequently filed a general protections application with the Fair Work Commission, claiming unfair dismissal. Burke and Wills argued that the Applicant was an independent contractor, not an employee.
What was decided
The Fair Work Commission considered whether the Applicant was an employee or an independent contractor, particularly in light of changes to the Fair Work Act 2009 (s.15AA) which emphasizes the 'real substance, practical reality, and true nature' of the relationship. While labelled as a contractor, the Commission found factors such as exclusive engagement from early 2024, control over his work by Burke and Wills, presentation to clients as an employee, and reimbursement of expenses pointed towards an employment relationship. The jurisdictional objection raised by Burke and Wills was dismissed.
What it means for employers
Employers should be aware that simply labelling a worker as a contractor does not determine their legal status. The Commission will examine the practical reality of the working arrangement, considering factors like control, exclusivity, and how the worker is presented to clients. Contracts must accurately reflect the true nature of the relationship.
What it means for employees
Employees should be aware that even if they are engaged as contractors, their legal status can be determined by examining the actual working conditions and level of control exerted by the employer. The Fair Work Commission will consider all aspects of the relationship to determine employment status.
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →