2025 WAIRC 00963
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00963



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 1 OCTOBER 2025, THURSDAY, 2 OCTOBER 2025 & FRIDAY, 3 OCTOBER 2025



DELIVERED
:
THURSDAY, 4 DECEMBER 2025



FILE NO.
:
M 142 OF 2024



BETWEEN
:
PATRICIA ANGELICA ROJO DIAZ


CLAIMANT





AND





TOWN OF CAMBRIDGE


RESPONDENT

CatchWords : INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – Industrial Relations Act 1979 (WA) – Consideration of the relationship of contract for service and contract of service – Whether the claimant’s engagement was as an independent contractor or as an employee for the purposes of the Fair Work Act 2009 (Cth) and the Industrial Relations Act 1979 (WA)
Legislation : Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Instrument : Town of Cambridge Employees’ Collective Agreement 2013
Town of Cambridge Employees’ Collective Agreement 2018
Town of Cambridge Employees’ Collective Agreement 2022
Cases referred
to in reasons: : Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165
ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 275 CLR 254
EFEX Group Pty Ltd v Bennett [2024] FCAFC 35; (2024) 330 IR 171
Ma v Yan Massage Wynnum West Pty Ltd [2024] FWCFB 419; (2024) 335 IR 57
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532
Abdalla v Viewdaze Pty Ltd [2003] AIRC 504; (2003) 122 IR 215
Botica v Top Cut TMS Holdings Pty Ltd [2020] WAIRC 00061; (2020) 100 WAIG 102
Result : The claim is dismissed
Representation:
Claimant : In person
Respondent : Mr K. Jarrett (of counsel)



REASONS FOR DECISION
Background
1 On 16 October 2024, Ms Patricia Angelica Rojo Diaz (Ms Diaz), lodged an originating claim alleging that the Town of Cambridge (the Town) failed to comply with the Town of Cambridge Employees’ Collective Agreements 2018 and 2022 (Cambridge Agreement 2018 and Cambridge Agreement 2022) and contravened the Fair Work Act 2009 (Cth) (FWA) and the Industrial Relations Act 1979 (WA) (IR Act).
2 Ms Diaz is a fitness instructor who was employed on a casual basis to instruct aqua aerobics classes at Bold Park Aquatic Centre (Bold Park), a community facility operated by the Town that provides, amongst other things, aqua aerobics classes attended by members of the public on a fee-paying basis.
3 In or around October or November 2018, the Town decided to change the engagement of aqua aerobics instructors from casual employees to independent contractors. This change of engagement is the principal issue of dispute between Ms Diaz and the Town, where the entitlements claimed, and orders sought, by Ms Diaz are entitlements owed to employees both under the FWA and the IR Act.
4 A complicating factor in the proceedings is that on 1 January 2023, the Town transitioned to the Western Australian industrial relations system.
5 Thus, there are two statutory regimes, the FWA in the federal jurisdiction and the IR Act in the state jurisdiction, to consider in determining the principal issue, from which, and depending on the resolution of the principal issue, different entitlements and orders may result.
6 In relation to the Federal jurisdiction, if Ms Diaz proves on the balance of probabilities that, for the purposes of the FWA, she was an employee of the Town from November 2018, then the Town is a national system employer, and Ms Diaz is a national system employee as those terms are defined under the FWA. If Ms Diaz was an employee of the Town, then the Town has obligations under the FWA.
7 Similarly, in the State jurisdiction, if Ms Diaz proves on the balance of probabilities that, for the purposes of the IR Act, she was an employee of the Town after 1 January 2023, then the Town has obligations under the IR Act. A reverse onus on the Town to establish that Ms Diaz was not an employee does not apply because s 81CAA of the IR Act only commenced on 31 January 2025, following the enactment of the Industrial Relations Legislation Amendment Act 2024 (WA).

8 Schedule I of these reasons outlines the jurisdictions, standard of proof, as well as the practice and procedure of the Industrial Magistrates Court (IMC, or Court) in the Federal and State jurisdictions.
The Claim
9 In the originating claim, Ms Diaz sought orders outside the jurisdiction of the IMC which was raised with her in directions hearings on 5 and 14 March 2025.
10 Following this, on 4 April 2025, Ms Diaz lodged an amended statement of claim (the Amended Claim), whereby she alleges that the Town:
Federal Claim
(1) under the FWA:
(a) contravened s 44 by breaching the National Employment Standards (NES);
(b) contravened s 50 by:
(i) failing to pay her the minimum payments as a casual employee under the Cambridge Agreement 2018;
(ii) failing to pay her associated superannuation under the Cambridge Agreement 2018; and
(iii) failing to provide access to or copies of the Cambridge Agreement 2018;
(c) contravened s 125(B) by failing to provide her with a Casual Employment Information Statement;
(d) contravened s 345 by making false statements or misrepresentations;
(e) contravened s 323 by failing to pay in her in full for the performance of work;
(f) contravened s 535 by failing to keep employment records as prescribed;
(g) contravened s 536 by failing to provide pay slips; and
State Claim
(2) contravened the IR Act by:
(a) failing to keep records under s 49D(1);
(b) failing to provide information, superannuation details, termination details under s 49D(2);
(c) failing to provide pay slips under s 49DA;
(d) making false statements under s 97D; and
(e) underpaying wages and superannuation entitlements in breach of the Cambridge Agreement 2022.
11 Ms Diaz seeks the following orders to be made:
(a) declarations of contraventions under s 545 of the FWA;
(b) declarations of contraventions under s 83 and s 83A of the IR Act;
(c) the payment of ‘compensation’ under s 545(3) of the FWA for the alleged underpayment of wages and superannuation for the period up to 7 March 2023;
(d) the payment of an amount determined under s 83 and s 83A of the IR Act for the alleged underpayment of wages and superannuation for the period 8 March 2023 to 23 August 2024;
(e) pre-judgment interest;
(f) the imposition of a civil pecuniary penalty under s 546(1) of the FWA in relation to each of the Town’s contraventions of a civil penalty provision in s 539 of the FWA and the contraventions are serious contraventions; and
(g) the imposition of a civil pecuniary penalty under s 83E and s 83EA of the IR Act.
12 Notwithstanding the prior discussions with Ms Diaz, in the Amended Claim she continued to make a claim under s 345 of the FWA. Pursuant to the table in s 539(2) of the FWA at column 3, a claim made under s 345 of the FWA can be made to the Federal Court or the Federal Circuit and Family Court of Australia. There is no reference to an application of this type being made to an eligible State or Territory court, which, defined in s 12 of the FWA includes at paragraph (b): a magistrates court – including a court constituted by an industrial magistrate. Accordingly, the Court has no jurisdiction to hear a claim under s 345 of the FWA and this will not be further considered in this decision. To that end, there are parts of Ms Diaz’s evidence which traverses issues related to possible claims of misrepresentation, unfair or unlawful termination or other workplace rights. While this may be important to Ms Diaz, much of the evidence is not relevant to the justiciable aspects of the Amended Claim.
13 To that end, while I will make brief reference to this evidence, the Town objected to its admissibility where it was not relevant to the Amended Claim. Nevertheless, the Town acknowledged that Ms Diaz was self-represented and that the Court was well-placed to determine the appropriate weight to be given to such material. By way of example, see Exhibit 1 – Witness Statement of Patricia Angelica Rojo Diaz lodged on 13 June 2025 at [90] to [94] concerning allegations of workplace bullying.

14 Further, s 125B of the FWA is not a civil remedy provision itemised in the table of s 539(2) of the FWA. Therefore, even if there was an amount owed to Ms Diaz as a result of a failure of the Town to provide her with a copy of the Casual Employment Information Statement, the IMC could not order the payment of an amount where s 545(3)(b) of the FWA also applies. For the same reason, the IMC cannot order a pecuniary penalty to be paid under s 546(1) of the FWA.
15 The Town denies the Amended Claim and asserts Ms Diaz was an independent contractor from November 2018 and so the Cambridge Agreement 2018, Cambridge Agreement 2022, FWA and IR Act provisions do not apply to her.
16 The Town further says:
(a) The Cambridge Agreement 2018 was approved and operated from 9 April 2019 and, therefore, did not cover or apply to Ms Diaz due to her not being employed by the Town after 11 November 2018;
(b) Section 125B of the FWA commenced on 27 March 2021 and does not have retrospective effect where Ms Diaz was employed as a casual employee between October 2017 and November 2018;
(c) The declarations sought by Ms Diaz are not capable of being made by the Court under s 545(3) of the FWA; and
(d) Ms Diaz was not covered by the Cambridge Agreement 2022 as group fitness instructors are not a classification covered by this agreement.
Issues for Determination
17 In addition to the principal legal issue, other legal and factual issues for determination by the Court include:
(a) Was Ms Diaz’s casual employment with the Town terminated in or around October 2018?
(b) If Ms Diaz’s casual employment with the Town was terminated what was the nature of her engagement from in or around 6 November 2018?
(c) What were the terms of the engagement, if any?
(d) If Ms Diaz’s casual employment was the Town was not terminated in or around October 2018, did her employment continue to until August 2024?
18 If Ms Diaz is found to be an independent contractor from in or around 6 November 2018, the Amended Claim fails in its entirety. If Ms Diaz’s casual employment is found to have never been terminated or if her engagement is found to be to be a contract of service consistent with being an employee, then the issue of quantum arises. If the issue of quantum is to be considered, the Town says, amongst other things, that the aqua aerobics classes at Bold Park would not have continued where the Town was liable to pay a minimum of two hours for the instruction of a one-hour class.
Evidence
19 Ms Diaz tendered her witness statement dated 13 June 2025 with annexures and she also gave oral evidence.
20 The Town relied upon witness statements of Jasper Silver (Mr Silver) dated 11 July 2025 with annexures and Tamara Sanders (Ms Sanders), acting Manager, Governance at the Town, dated 11 July 2025 with annexures. Both also gave oral evidence.
21 Mr Silver has held a number of roles with the Town since around 1989 and has held the role of Coordinator or acting Manager – People and Culture since approximately 2021. In those roles he has communicated and met with Ms Diaz. Mr Silver explained the organisational structure of the Town. Exhibit 2 – Amended Witness Statement of Jasper Silver dated 14 July 2025 at [7] to [19].

22 Ms Sanders commenced working at Bold Park in 2018 as a senior administrative officer. Her substantive role is Centre Manager at Bold Park, which she has held since 2021. Exhibit 3 – Witness Statement of Tamara Sanders dated 11 July 2025 at [7] to [9].
Ms Sanders’s interactions with Ms Diaz increased when Ms Sanders commenced as Centre Manager. Exhibit 3 at [37] and [38].

23 There are many facts which are not in dispute between the parties. Alternatively, there is uncontroverted evidence, I consider to be reliable, and it is unnecessary to traverse that evidence in detail. Where possible I will discuss the evidence based on the issues raised rather than merely recite the witness evidence.
24 Overall, the witnesses, including Ms Diaz, generally gave their evidence truthfully. However, some witness evidence was inconsistent with the documents tendered and not entirely reliable. Where conflicts arose between witness accounts, I have given greater weight to evidence supported by contemporaneous records, as a more reliable basis for determining the facts.
Undisputed Facts
25 The following facts are taken from the Town’s amended response lodged on 9 May 2025:
The Town is a local government established under the provisions of the Local Government Act 1995 (WA).
Until 31 December 2022, the Town was a national systems employer covered by the [FWA].
On 1 January 2023, the Town transitioned to the Western Australian industrial relations system. Amended response at paragraphs 1 to 3.

26 Ms Diaz is a fitness instructor who owns and operates a business, Latin Moves & Fitness Australian Business Number (ABN) 87 556 453 762 (LMF), which was registered with the Australian Business Register on 18 May 2010.
27 Between 10 October 2017 and approximately 8 November 2018, Ms Diaz was employed as a casual employee to provide aqua aerobic fitness classes at Bold Park (Engagement Period 1).
Engagement Period 1
28 While Ms Diaz stated she did not believe she was given a written contract of employment, she was in fact provided with, and employed by, a letter of offer of employment dated 8 November 2017 which she signed and accepted on 9 December 2017 (November 2017 Contract). Exhibit 2 at JS5.

29 In July 2018, the Town decided to send another letter of offer of employment to Ms Diaz which provided that her employment was also covered by the Town of Cambridge Employees’ Collective Agreement 2013 (Cambridge Agreement 2013). Exhibit 2 at [52] and JS6 at page 30.

30 For some (unknown) reason this decision did not result in a letter of offer of employment being sent to Ms Diaz until around 8 October 2018 (October 2018 Contract). Exhibit 2 at JS6.
The October 2018 Contract did not change the fundamental terms of her casual employment, save that it included reference to her terms and conditions of employment being in accordance with the Cambridge Agreement 2013 and including special requirements relating to maintaining her fitness instructor qualifications and uniforms.
31 There is no signed acknowledgement by Ms Diaz of the October 2018 Contract, although in her oral evidence she said she did sign the October 2018 Contract, ts 16.
but it is common ground that she continued to be employed on the same or similar terms to the November 2017 Contract, save for as I have already mentioned.
32 The October 2018 Contract (and similarly provided for in the November 2017 Contract) stated, relevantly, that:
Your hours of work shall be as determined by the Town from time to time and in accordance with the requirements of the Aquatic Centre. The starting and finishing times are to be discussed with your Supervisor.
We advise that the Town is under no obligation to provide you with, and does not guarantee, continuing employment with the Town at any time in accordance with the casual nature of your employment. As a causal employee you are employed on an hourly contract and each contract is a distinct and separate contract of employment.
The termination of your employment by either yourself or the Town shall be in accordance with the Agreement.
33 Ms Diaz was paid $50 per hour to instruct aqua aerobic classes, which were either deep water or shallow water classes.
34 Initially, Ms Diaz instructed one aqua aerobics class of about 50 to 60 minutes’ duration once a week. At some point, possibly in early 2018, the number of aqua aerobics classes instructed by Ms Diaz increased and, likely in or after June 2018, she was instructing between three and five classes per week, each of about 50 to 60 minutes’ duration. Exhibit 1 at [2].

35 I note Ms Diaz states that in 2018 she was teaching four classes per week on Monday, Wednesday, Friday and Saturday. Exhibit 1 at [2].
However, pay slips and attendance records provided by the Town do not wholly support this and the number of hours per week she instructed aqua aerobics classes was variable and was between one and five hours per week. My observation from the payslips and attendance records provided by the Town is that it was not until after June 2018 that Ms Diaz more consistently worked three hours per week. Exhibit 2 at JS7 and JS8.
Up until that time, she worked one or two hours per week and had weeks where she did not work.
36 During Engagement Period 1, Bold Park: determined the times when the aqua aerobics classes were held; the price members of the public were charged for attending the class; took the payment from class attendees and provided them with a ‘pass’ to participate in the class; set the maximum number of attendees in any class; and provided equipment, including a microphone and sound system, for the instructors to use to conduct the class. Exhibit 1 at [5] to [6]; see also Exhibit 3 at [17] to [19] and [25] to [27].

37 The aqua aerobics instructors, including Ms Diaz, were responsible for collecting the class passes and for conducting the classes consistent with her qualifications. Ms Diaz could devise the program she taught during the class and she chose the music that would best suit her program. At the end of the class, she completed paperwork required by Bold Park, which was an attendance record. Exhibit 1 at [10] to [13]; see also Exhibit 3 at [24].

38 In October or November 2018, the Town decided to change the engagement terms of the employed aqua aerobics instructors (Engagement Period 2). While this is an issue of factual dispute, there are surrounding facts that are not disputed or are reliable.
Engagement Period 2
39 Following an unsuccessful bargaining period, the Cambridge Agreement 2018 was put to a second vote with the access period commencing on 15 October 2028 and a vote held on 6 and 7 November 2018. Exhibit 1 at attachment 5 being a memorandum sent by the Town dated 10 October 2018, also referred to in Exhibit 2 at [39].
The Cambridge Agreement 2018 was approved by the Fair Work Commission on 2 April 2019 with a nominal expiry date of 30 June 2020. Exhibit 2 at [39] and [40]. Mr Silver provides some history to the negotiations of the Cambridge Agreement 2018. However, this history is not strictly relevant to the matters in issue in these proceedings. Suffice to say, the Town wanted to consolidate two or more enterprise agreements and there was a period where negotiations were suspended following a ‘no’ vote in June 2018.

40 Since the expiration of the Cambridge Agreement 2018, two enterprise agreements have been approved by the Western Australian Industrial Relations Commission, including the Cambridge Agreement 2022 and Town of Cambridge Employees’ Collective Agreement 2025. Exhibit 2 at [41].

41 The following summary of the circumstances surrounding the Town’s decision to ‘contract out’ certain services at Bold Park, including the instruction of the aqua aerobics class, is provided to give context to events at the time. It should not be taken to suggest that Ms Diaz’s engagement had, in fact, changed to that of a contractor.
42 The Town’s concern, arising from the terms of the proposed Cambridge Agreement 2018, was whether the current provision of aqua aerobics classes would comply with the minimum requirements under the agreement. The Town considered it was cost prohibitive to pay aqua aerobics instructors the proposed minimum where there was one class available for instruction. Given the delay in the bargaining process, rather than again delaying the second vote, the Town decided the two other options were to cease offering aqua aerobics classes or engage the instructors as ‘sole traders’. Exhibit 2 at [42] to [44].

43 Ultimately, the Town decided to continue offering aqua aerobics classes and proceeded to engage the instructors as ‘sole traders’. Exhibit 2 at [45].

44 Between 10 October 2018 and 11 November 2018, Ms Diaz attended a meeting at Bold Park at the Town’s insistence along with five or six people from the Town’s ‘Head Office’ and ‘management’ staff from Bold Park (the October Meeting). There was possibly one other instructor in attendance. Exhibit 1 at [19].

45 The Town gave some information to Ms Diaz and any other instructor who attended the October Meeting. Ms Diaz’s evidence is that one of the Town’s officers told her and others that the Town were no longer employing aqua aerobics instructors as casual employees, and instead they would be engaged as contractors. Ms Diaz further stated that the Town’s official said they would be dismissed if they did not agree to the new proposal, and they were required to provide a business name, ABN and a certificate of professional indemnity and public liability insurance. Exhibit 1 at [20].
Ms Diaz says she was ‘forced’ to accept the Town’s proposal as she wanted to keep working.
46 It is likely the October Meeting took place between 10 and 23 October 2018, as the Town generated a letter dated 23 October 2018 to the aqua aerobics instructors referring to ‘recent discussions regarding changes to employment conditions for causal Fitness Instructors at Bold Park Aquatic’. Exhibit 2 at JS4.
Further, the instructors were informed that the Town was ‘moving away’ from employing casual instructors to engaging instructors on a ‘private contractor arrangement’, and, to that end, to become a ‘private contractor’, the instructor would need to obtain an ABN and the relevant public liability and professional indemnity insurances. Thereafter, the Town offered ‘pay rates’ in consideration of the change in arrangements and to cover superannuation benefits on a tiered basis:
· 0-10 class participants - $56.70 per class
· 11-15 class participants - $61.50 per class
· 16 or more class participants - $65.40 per class. Exhibit 2 at JS4.

47 Instructors were informed that Bold Park would continue to provide all equipment for the aqua aerobics classes. They were required to confirm in writing that they accepted the ‘proposed contractor arrangements’ by 29 October 2018. Exhibit 2 at JS4.

48 The Town cannot locate a signed copy of this letter and cannot confirm if it was sent to Ms Diaz. Exhibit 2 at [47].
Ms Diaz denies receiving a copy of this letter or having seen this letter previously. She did not confirm in writing that she accepted the ‘proposed contractor arrangements’.
49 However, Ms Diaz did provide the Town with her ABN and business name, and she has provided certificates of insurance for public liability insurance each year since November 2018. Exhibit 1 at [21] and [22] (in part only).

50 The last pay slip the Town provided to Ms Diaz was for the period 29 October 2018 to 11 November 2018. Exhibit 2 at JS8.
No pay slips were provided to Ms Diaz after this period.
51 Invoices under cover of LMF commenced being generated from about 6 November 2018. Exhibit 2 at JS7, (red) page 523.
The invoices include reference to the pay rates referred to in the letter from the Town dated 23 October 2018.
Facts in Dispute
Termination of casual employment
52 Ms Diaz states that on or about 11 November 2018, the Town ‘stated it terminated my employment and re-engaged me as a “contractor”’. She further states she ‘did not get any “official” notification that [her] employment was terminated’. Exhibit 1 at [23].
Further, she says that she became aware of her changed status when the Town changed the attendance record to a ‘false draft invoice’. Exhibit 1 at [23].

53 In her oral evidence in chief, Ms Diaz clarified that at the October Meeting she and others were told that going forward after the October Meeting, they were not ‘going to be employees anymore. We were going to be called under contract, and if we didn’t want to accept that, we could leave’. ts 14

54 Ms Diaz also stated that she did not understand that casual employees could be terminated at short notice and did not understand the casual employment terms. ts 38.
However, this evidence is difficult to reconcile given Ms Diaz signed the November 2017 Contract and October 2018 Contract setting out the terms of her casual employment.
55 While it cannot be verified that the letter from the Town dated 23 October 2018 was sent to Ms Diaz, the contents of the letter is consistent with Ms Diaz’s evidence about what occurred and what was discussed at the October Meeting.
56 Based on Ms Diaz’s evidence, consistent with her providing details of her ABN and insurance certificates, the unsigned letter from the Town dated 23 October 2018 and the rendering of invoices under the cover of LMF, I find that at the October Meeting the Town orally terminated the casual employment of the aqua aerobics instructors, including Ms Diaz, for Engagement Period 1. Further, I am satisfied the Town gave the aqua aerobics instructors, including Ms Diaz, a period of time to provide certain information to the Town, whereupon from about 6 November 2018 the casual employment for Engagement Period 1 ceased.
57 The October 2018 Contract provided that any termination of Ms Diaz’s casual employment was to occur in accordance with ‘the Agreement’. Pursuant to cl 4.3(b) of the Cambridge Agreement 2013:
The services of a casual employee shall be terminated by two hours [sic] notice given on any day by either side, or by payment, on any day by the [Town], or two hours wages in lieu of notice.
58 The requirement to provide a casual employee with written or ‘official’ notice of termination of casual employment is not required under the FWA Section 123(1)(c) of the FWA.
, albeit it might be good practice to do so. Further, the Cambridge Agreement 2013 did not require written notice of termination of casual employment.
59 Therefore, it was sufficient, albeit possibly harsh, for the Town to verbally inform the aqua aerobics instructors at the October Meeting that they were no longer casually employed by the Town provided they were given two hours’ notice or provided with two hours’ wages in lieu of notice. I am satisfied Ms Diaz and the aqua aerobics instructors were provided with more than two hours’ notice of the termination of their casual employment.
60 While it might have been preferrable for Ms Diaz to have received a copy of the letter from the Town dated 23 October 2018, it was not necessary for the purposes of terminating her casual employment.
61 Ms Diaz says she regularly requested to be changed ‘back to an employee.’ According to her evidence one of the times this occurred was on 24 September 2021 when she emailed Mr Silver about bullying at Bold Park, and she requested to be made an employee again because she would get her rights back. Exhibit 1 at [48] and attachment 14.

62 In this email, Ms Diaz referred to starting at the Town as an employee and ‘the Town’ asked the instructors to be a contractor.’ She also says ‘I really like to work at Bold [P]ark and I would like to keep my job.’ Exhibit 1 at attachment 14.
The content of the email is relevant because it demonstrates that Ms Diaz understood there had been a change in her engagement. While the parties’ description of their status does not conclusively establish the nature of that engagement, it is indicative of Ms Diaz’s understanding of the situation, despite her attempts during oral evidence to distance herself from that understanding.
63 Following the receipt of this email, Mr Silver met with Ms Diaz and responded to her in an email dated 4 October 2021. Exhibit 1 at attachment 15 and Exhibit 2 at [71], see also JS16.
In summary, Mr Silver reiterated the Town’s position with respect to its decision to engage aqua aerobics instructors as contractors and not as casual employees. There were other topics of conversation, but this related to Ms Diaz’s perception of how others were treating her rather than relating to her engagement by the Town. However, consistent with Ms Sanders’s evidence Discussed at paragraph [77] below.
about invoicing, an issue was discussed with Mr Silver about Ms Sanders confirming the number of attendees in Ms Diaz’s classes. Exhibit 2 at [68] to [70].

Engagement Period 2
64 What happened after 6 November 2018 is where the real controversy between the parties arises. That is, was Ms Diaz’s engagement by the Town after 6 November 2018 properly described as a contract for services, whereupon her engagement is one of an independent contractor providing services to the Town, or as a contract of service, whereupon her engagement is one of an employee of the Town.
65 It is common ground that there was no written contract for services or written employment contract between Ms Diaz and the Town for Engagement Period 2. Exhibit 3 at [33].

66 However, there were things the parties agree happened during Engagement Period 2 albeit they disagree on the interpretation of what these things mean. The most contentious factual issue in dispute relates to the rendering of invoices by Ms Diaz and the effect this had for the purposes of taxation.
The Aqua Aerobics Classes
67 In terms of the less or non-contentious factual matters, in Engagement Period 2 Ms Diaz continued to instruct aqua aerobics classes at Bold Park, albeit she says that there was a reduction in the number of classes she instructed from four to two per week. Exhibit 1 at [25] and ts 15
This generally accords with the records referred to by both parties, although Ms Diaz instructed additional classes from time to time to cover the unavailability of other instructors.
68 Bold Park continued to do all things it did in Engagement Period 1, referred to in paragraph [36] above, in Engagement Period 2. ts 15.
That is, Ms Sanders admitted in her oral evidence that Bold Park made all the operational decisions regarding the organisation of and payment for aqua aerobics classes, and the instructors, including Ms Diaz, were responsible for the running of the aqua aerobics class they instructed. ts 113 to 114 and 142.
Instructors were expected to manage minor class behaviour but otherwise were required to report incidents to Bold Park, who retained responsibility for members of the public using the facility.
69 While the aqua aerobics instructors wore their own clothing, from time to time they may have used clothing supplied by the Town (for example, a warm jacket) but this was rare and instructors could not use any Town clothing usually supplied to staff members.
70 Bold Park determined the rates to be paid to aqua aerobics instructors for each class, which was determined by the number of participants in each class, and Ms Sanders accepted Ms Diaz had no input into the rate amount. ts 132; see also Exhibit 2 at JS4.

71 These rates are referred to in paragraph [46] above (as provided in the letter from the Town dated 23 October 2018) until about 30 March 2023 when the rate was increased as follows: Exhibit 3 at TS3.

1 to 10 participants: $57.83
11 to 15 participants: $[62.27] Exhibit 3, TS3 contains a typographical error. The correct amount is displayed at TS8 after 1 April 2023.

16+ participants: $66.71
72 Ms Diaz had no input into the amount of the rate increase, and Ms Sanders refers to the amount as an ‘hourly rate’ in her evidence although it is referrable to the number of participants in the class. Exhibit 3 at [36].

73 Ms Sanders stated that around 24 September 2021 she had a discussion with Ms Diaz regarding the setting up of equipment before the aqua aerobics classes. In summary, Ms Sanders thought other leisure centres required instructors to set up equipment before the class and did not get paid for the time taken to do so. Ms Diaz challenged this. Ms Sanders accepted she was wrong and that if instructors at other leisure centres set up the equipment for the classes, they were paid for the set-up time. Therefore, Ms Sanders reverted to the original set-up arrangement, whereby the Town staff set up the equipment used in the aqua aerobics classes. Exhibit 3 at [39].

Invoicing
74 In her evidence, Ms Diaz referred to ‘false invoices’, which was confusing. The reason Ms Diaz referred to the invoices as ‘false invoices’ was clarified by her in her oral evidence. However, contextually it is helpful to how understand the invoicing process was supposed to work, at least from the Town’s perspective.
75 Once the Town decided to move to a different engagement model, it required the aqua aerobics instructors to submit a monthly invoice for the aqua aerobics classes they instructed. The Town provided a blank template invoice, which the instructors were required to fill in and sign. These invoices were then submitted to the Town’s finance department for a purchase order to be raised and payment made to the instructor. Exhibit 3 at [47] and [48], in part. Examples of the invoices and purchase orders are contained in Exhibit 2 at JS10 and JS11.

76 This process was set up prior to Mr Silver’s and Ms Sanders’s employment with the Town or involvement with Ms Diaz, but Ms Sanders refers to ‘draft invoices’ from 3 August 2019 to 28 August 2024 being prepared for Ms Diaz. Exhibit 3 at [48] and TS8, Invoices 14 to 71.

77 From Ms Sanders’s evidence, the ‘draft invoices’ were partially completed templates prepared by Bold Park staff. This accords with Ms Diaz’s evidence where she says ‘false draft invoices’ were prepared by Bold Park ‘Management’ to include: an invoice number; her business name; her name, email address and telephone number; ABN details; a creditor account number; the insertion of all the dates it was anticipated she would instruct a class in the month; a class charge table (at the bottom), and the insertion of Goods and Services Tax. Exhibit 1 at [32].

78 In part, the reason Ms Sanders says ‘draft invoices’ were prepared for Ms Diaz was to do with her ‘language difficulties’. Exhibit 3 at [47].
Ms Diaz took umbrage at this, because she said she could count equally well in English and in Spanish, and, importantly, from her perspective the process still required her to record the number of attendees in the same way that she did in Engagement Period 1.
79 The other reasons Ms Sanders says ‘draft invoices’ were prepared by staff at the Town was because Ms Diaz’s ‘head count’ differed from the ‘point of sale’ records where the number of participants set the rate paid to the instructor. Ms Sanders had a separate staff member check the head count and record it in a log book and, later, on a tablet. Because of this, Ms Sanders said the invoices prepared by Ms Diaz were often inaccurate. Therefore, ‘draft invoices’ were prepared for Ms Diaz, which appears were, in part, pre-populated by the Town staff, and any amendments or additional classes were handwritten before the invoice was signed by Ms Diaz then re-typed and sent to finance for a purchase order to be raised. Exhibit 3 at [47] to [49].

80 For Ms Diaz, one of the problems with this system was that the ‘final invoice’ (or the re-typed version) was never provided to her for checking or her approval before a purchase order was raised. Therefore, from her perspective she was not able to challenge the accuracy of the Town’s final figures, which appears to be the genesis of the ‘false invoice’ issue. Exhibit 1 at [37].

81 Ms Diaz says after each class she initialled the signature block column, inserted the number of participants and the relevant payment rate depending on the number of participants. Exhibit 1 at [33].

82 From Ms Diaz’s perspective, the process of filling in an attendance record in Engagement Period 1 did not materially change from the introduction of the invoice in Engagement Period 2. That is, from her perspective, the Town provided a copy of an invoice in her name (the ‘draft invoice’ referred to by Ms Sanders) in an office and at the end of each class she completed the invoice. At the beginning of each month, a new invoice was in the office, and she completed the same at the end of each class.
83 Some of the attendance and timesheets from Engagement Period 1 are typed and others are handwritten and unsigned. They do not record the number of participants in a given aqua aerobics class but record the start and finish times, and the number of classes an instructor, including Ms Diaz, takes. The number of classes is totalled at the end of a fortnightly period. From late July 2018, Ms Diaz signs the fortnightly timesheet. The last timesheet signed by Ms Diaz is dated 6 November 2018. On one or two occasions, the number of participants is recorded on a timesheet but this is the exception rather than the norm. Exhibit 2 at JS7.

84 This is markedly different to what is recorded on the invoices in Engagement Period 2. That is, in Engagement Period 2, the day, the number of participants in the class, and the payment amount referrable to the number of participants is recorded on the invoice.
85 The attendance records for Engagement Period 1 are consistent with a timesheet where the number of participants have no bearing on the hourly rate paid, and where the total amount paid is based on this hourly rate for the number of classes taken.
86 Ms Diaz accepted that in Engagement Period 1, the attendance records were recorded fortnightly, and in Engagement Period 2, the invoices were monthly.
87 Ms Diaz did not accept the invoices from Engagement Period 2 were submitted at the end of the month and paid about one week later. However, the Town’s records demonstrate that this occurred.
88 In Engagement Period 2, after completing the ‘draft invoices’ which were submitted to the Town’s finance department for the raising of the purchase order, Ms Diaz was given a copy of the purchase order which informed her of how much she had been paid or was to be paid. Exhibit 1 at [41].

89 However, Ms Diaz disputes some of the ‘draft invoices’ and says that she cannot now verify the figures finally paid by the Town. She is concerned the Town prepared the ‘draft invoices’, which were not finalised by her, and when she did query amounts shown on purchase orders, where they did not reconcile with details she completed on the ‘draft invoices’, she says her concerns were dismissed. Exhibit 1 at [41] to [42].

90 Ms Diaz provided two copies of invoice 71 Exhibit 1 at attachment 7, pages 1 and 2.
which highlights both Ms Diaz’s and Ms Sanders’s evidence. That is, if I understand the situation correctly, the first copy of invoice 71 is the ‘draft invoice’ pre-prepared by Bold Park staff consistent with Ms Sanders’s evidence. The second copy of invoice 71 is the ‘draft invoice’ completed, and handwritten, by Ms Diaz after each class.
91 For a short period of time around July 2022, Ms Sanders introduced a new system of draw-down purchase orders where a purchase order of $2,000 was raised, and instructor invoices were drawn from the single purchase order until depleted, which was similar to other business areas at Bold Park. This was unsuccessful due to the financing interface so Ms Sanders reverted back to the system of one invoice, one purchase order. Exhibit 3 at [35].
This may have added to the confusion for Ms Diaz.
92 At the bottom of each purchase order, reference is made to the purchase order being subject to the ‘terms and conditions of the Contract Number stated on the purchase order or, if there is no Contract Number, to the [Town’s] Standard Conditions of Contract for Supply of Goods and Services.’ According to Mr Silver, the creditor is directed to contact the Town for a copy of the ‘General Conditions of Contract for Goods and Services’. Exhibit 2 at [63].

93 Mr Silver was unable to locate a copy of a document entitled ‘Standard Conditions of Contract’. Mr Silver also says that to his knowledge no instructor requested a copy of a contract, either specifically or the general contract. Exhibit 2 at [64] and [65].
Ms Diaz says she was never provided with any document of either type. Exhibit 1 at [41].

94 Ms Diaz also says that the Town’s payment rates ‘closely resembles’ Table 3 in Schedule 1 of the Cambridge Agreement 2018, where the relevant hourly rates are:
Position
Hourly Base Rate
Inclusive of Causal Loading (25%)
Group Fitness Instructor
0 to 10 participants in class
$41.60
$52.00
Group Fitness Instructor
11 to 15 participants in class
$44.80
$56.00
Group Fitness Instructor
16 or more participants in class
$48.00
$60.00
95 The Town’s response to this is that the ‘contracting arrangement’ included a higher per hour tiered rate than that proposed under the proposed Cambridge Agreement 2018, Exhibit 2 at [48].
which was later increased in March 2023 as detailed by Ms Sanders.
96 I find that the Town pre-populated the invoices to be rendered by Ms Diaz. This extended to including the classes to be instructed by Ms Diaz, but these were subject to amendment from time to time where Ms Diaz instructed additional classes.
97 However, some of the invoices show that Ms Diaz also filled in invoices by including her signature, the number of participants, the amount charged according to the number of participants and she signed the final amount. Exhibit 2 at JS10.
These invoices coincide with amounts paid to Ms Diaz by the Town. Exhibit 2 at JS9.

98 The Town arranged for the ‘draft invoices’ (including the ones filled in by Ms Diaz) to be re- typed and sent to the finance department for the raising of a purchase order for payment. The final typed invoices were not shown to Ms Diaz before the raising of a purchase order. However, I cannot find to the requisite standard that any final typed invoice was incorrect or altered from the original ‘draft invoice’.
Income Taxation
99 Ms Diaz was cross-examined on LMF and her income tax returns (ITR) for the financial years 2018  2019 to 2023  2024. According to her oral evidence, Ms Diaz prepared the ITRs with substantial assistance from an accountant. She professed to have limited knowledge of their contents, notwithstanding she made declarations as to the truth of the ITR contents before lodgment. This included that she did not know LMF was recording sales income from the Town and local governments and claiming expenses for taxation purposes.
100 Again, Ms Diaz’s evidence concerning her complete lack of knowledge or understanding of LMF sales and expenses is difficult to accept when she said she provided information to the accountant. The sales and expenses information came from Ms Diaz, and notably LMF’s expenses substantially increased after the 2018 financial year. Contrary to the information on her ITR, Ms Diaz says she derived no benefit as a result of the contractor arrangement with the Town. ts 67 to 68.

Other Work
101 Ms Diaz accepted that she promoted LMF on web-based platforms, such as LinkedIn, where she described herself as ‘self-employed’. She also agreed she had used Facebook to market LMF and dance classes. She worked at organisations other than Bold Park. ts 78.

Other Matters
102 Between 2023 and the time the Town terminated its engagement with Ms Diaz in August 2024, there was a series of communications between Ms Diaz, Ms Sanders, Mr Silver and others. The nature of these communications were in relation to behaviours Ms Diaz says she was subject to by Town staff and class attendees. In my view, the relevance of this goes only to what Ms Diaz describes as a lack of control over the attendees’ behaviour.
103 As already stated, Ms Sanders said that the instructors were expected to manage minor behavioural issues within the class, such as excessive talking, with the Town being responsible for other behaviours while attendees were within Bold Park. Ms Diaz admitted that, as a professional instructor, she had full control over the running of the class and was allocated a deep or shallow water class for which she was responsible for running. She was never told how to run the class or asked how she was going to run the class. ts 80.

104 The other topics raised by Ms Diaz in the communications included being told not to wear a Town issued jacket on a cold day, the cancellation of classes due to the holding of a play at Bold Park and the manner in which a Town staff member spoke to Ms Diaz. In my view, while these topics were of concern to Ms Diaz, they have little, if any, relevance to her engagement by the Town as a contractor or an employee. Further, Ms Diaz has referred to, and copied the content of, emails where their author was not called as a witness for the contents of the emails to be challenged, if the contents were relevant at all.
105 Ms Diaz also raised an issue with respect to invoice 72, where the Town requested confirmation of Ms Diaz’s professional qualifications. According to Ms Diaz, she informed the Town that if they wanted to confirm her professional qualifications, they would need to pay for her time in doing so. Exhibit 1 at [39].
Ms Diaz states Ms Sanders said she had to prepare an invoice for the time charged and then Ms Sanders refused to accept the invoice for $65.40. Ms Diaz said Ms Sanders sent her an email with ‘many of the false draft invoices’ and instructed her to use the ‘false draft invoice’ template and dictated the amount Ms Diaz could charge for doing the extra work. Ms Diaz did not prepare the invoice and said Ms Sanders prepared it from an excel spreadsheet. Exhibit 1 at [39].

106 Ms Sanders explains that in August 2024 Bold Park decided to review and record the qualifications of employees and contractors and move the information to a central repository. Exhibit 3 at [58].
Ms Diaz was one of many people asked for this information. The email correspondence between Ms Sanders and Ms Diaz confirms that Ms Diaz requested to be paid for her time in providing her qualifications and Ms Sanders agreeing to pay one hour of her time. The issue came when Ms Diaz submitted an invoice for the maximum chargeable rate of $65.40 (the equivalent of instructing a class of 16 plus participants) and Ms Sanders returning a draft invoice for $57.83 (the equivalent of instructing a class of 0 to 10 participants). Exhibit 3 at [60] to [62].

107 An interesting component of the email exchange between Ms Sanders and Ms Diaz is Ms Diaz’s acknowledgement of the invoices the Town ‘supplied to me for years’ and that ‘$66.71 it us [sic] the right amount’. Exhibit 3 at TS 11.

108 Further, during all of the intervening time, Ms Diaz continued to instruct aqua aerobics classes at Bold Park and continued to complete invoices, which were paid by the Town.
109 Ms Diaz’s engagement by the Town ended on 23 August 2024 with the Town terminating the ‘contractual arrangements’. Exhibit 3 at TS 18.

Employee vs Independent Contractor
110 Engagement Period 2 commenced on or around 6 November 2018. Therefore, the principals in the High Court decisions in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 275 CLR 254 (Jamsek) are appliable to the characterisation of the engagement relationship between Ms Diaz and the Town.
111 While Engagement Period 2 commenced on or around 6 November 2018, from 1 January 2023, the Town transitioned to the State industrial relations system under the IR Act. Accordingly, for the avoidance of doubt, I will also discuss applicable principles under State law.
Contract Terms
112 Notwithstanding there was no written agreement or contract between Ms Diaz and the Town for work undertaken by her, the court is to determine the nature and terms of the contract between the parties to ascertain their contractual rights and obligations. Personnel Contracting at [83] and [177]; EFEX Group Pty Ltd v Bennett [2024] FCAFC 35; (2024) 330 IR 171 (EFEX) at [7] and [52] to [56].

113 The terms are determined by application of orthodox principles. That is, where the terms are partly in writing and partly oral or wholly oral, the terms may be inferred from all the circumstances, including the parties’ conduct and words at the time of contract formation; their conduct over time; their course of dealing; or inferred where necessary for business efficacy. EFEX at [9].

114 To this end, regard may be had to:
[C]ircumstances surrounding the making of the contract and events and matters, known to the parties at the time of contracting, which assist in identifying the object or purpose of the contract. The nature of the work contracted for and the arrangements of the supply or provision of any tools or equipment to the putative employee may also be relevant. EFEX at [11].

115 In addition, recourse may be had to the post-contractual conduct of the parties if it assists in ascertaining the terms of the contract. Personnel Contracting at [48] and [83].

116 In this case, having regard to the undisputed and found facts, the ascertainable terms of the contract for the supply of labour (whether to an employer or to a client) included:
(a) Ms Diaz would attend at Bold Park to instruct aqua aerobics classes (deep or shallow) at class times as determined by the Town but agreed to by Ms Diaz;
(b) The classes were 55 to 60 minutes in duration;
(c) She would be paid a rate per class determined by the number of participants (that is, the more participants, the greater the rate of pay);
(d) She would complete and render invoices in a business name with an ABN on a monthly basis;
(e) Bold Park would pay her the invoiced amount; and
(f) Ms Diaz was to provide and maintain certificates of currency for professional and public liability insurance.
Other Matters
117 Once the terms of the contract have been ascertained, the relationship created by the contract is characterised. Two factors will be relevant to this characterisation process:
(a) the extent to which the putative employee has the right to control how, where and when the putative employee performs the work; and
(b) the extent to which the putative employee can be seen to work in his or her own business, as distinct from the business of the putative employer. Personnel Contracting at [36] to [39].

118 The way the contractual terms address the mode of remuneration; the provision and maintenance of equipment; the obligation to work; the hours of work; the provision for annual leave; the delegation of work and the right to exercise direction and control may be relevant to whether the relationship is one of employee and employer. Ma v Yan Massage Wynnum West Pty Ltd [2024] FWCFB 419; (2024) 335 IR 57 at [26].

119 The indicia indicating Ms Diaz was an employee of the Town include:
(a) Ms Diaz had a defined role within the Town’s business. That is, she attended Bold Park to instruct aqua aerobics classes;
(b) she used equipment supplied by the Town to do this work, including aqua aerobic and sound equipment;
(c) she attended at class times set by the Town at the Town’s facility, Bold Park, although she was under no compulsion to do so;
(d) the Town collected payment from the class attendees and was responsible for attendees while they were within Bold Park; and
(e) the Town’s staff pre-populated invoices in LMF name with Ms Diaz providing some additional details from time to time.
120 The indicia indicating Ms Diaz was an independent contractor, included that:
(a) she was paid a rate according to the number of participants in the aqua aerobics class, albeit this rate was benchmarked against rates referred to in the Cambridge Agreement 2018;
(b) she provided an ABN and was responsible for taxation and professional and public liability insurance;
(c) the income derived from the Town was recorded as sales to LMF on ITRs;
(d) she claimed work expenses on ITRs consistent with the operation of a business;
(e) she was responsible for the content and running of the aqua aerobics classes she instructed, and was not subject to oversight or performance management in the running of the classes;
(f) she was responsible for finding a replacement instructor if she could not attend to instruct an aqua aerobics class, although Town staff members assisted her to find a replacement instructor from time to time;
(g) however, she was under no obligation to provide evidence of why she could not attend to instruct a class or to obtain permission to take leave;
(h) she could carry out work at any other similar leisure facility either in a personal capacity or on behalf of LMF, and she did not require the Town’s permission to do so; and
(i) she was not required, nor was she directed, to attend to any other duties that employed staff might be required to attend to, such as the setup, repair or replacement of equipment.
Determination
121 Considering the terms of the contract for the supply of labour (such as they were) and all the surrounding circumstances, I am satisfied and I find the relationship between Ms Diaz and the Town was that of an independent contractor providing services to the Town’s business.
122 While the Town determined Ms Diaz’s place of work, set the times she could work, the amount she was paid to instruct each aqua aerobics class and provided the equipment for her to do the work, which is ordinarily more consistent with an employer-employee relationship, Ms Diaz retained control over the content of the aqua aerobics classes and whether she attended the classes to do the instruction, consistent with an independent contractor.
123 That is, the nature of the Town’s business meant it had control over the services offered at Bold Park, including the availability of the aqua aerobics classes. However, neither the service supplied by Ms Diaz, being the actual instruction of the aqua aerobics classes, or LMF’s services to other leisure facilities were subject to the Town’s control. The Town had no control over Ms Diaz’s or LMF’s services to other leisure centres or organisations, and Ms Diaz advertised or marketed these services to the world at large.
124 In being paid according to invoices rendered from which she or LMF was responsible for taxation (including claiming business-related expenses), Ms Diaz was operating her own business. This was the case, notwithstanding, Town staff members pre-populated component parts of the invoices used to raise a purchase order for payment. The details for payment on the monthly invoices were substantially different to the recording of hours worked on the fortnightly attendance sheets.
125 In my view, this is a case where Ms Diaz was not working in the Town’s business but working in her own business. Personnel Contracting at [36] to [39].

126 While things said or done after a contract is made are not aids to the contract’s construction, the messages between Ms Diaz and Mr Silver are consistent with the finding Ms Diaz was an independent contractor and her understanding to that effect. This is also reflected in the conversation by the Town during the October Meeting where the Town informed Ms Diaz, and any other attendees, that if they were to continue working at Bold Park it would be as a contractor.
127 Section 7 of the IR Act defines ‘employee’ to mean:
(a) a person who is employed by an employer to do work for hire or reward, including as an apprentice; or
(b) a person whose usual status is that of an employee.
128 The IR Act does not define ‘independent contractors’.
129 The enactment of s 7A in the IR Act, made in response to the High Court decisions in Personnel Contracting and Jamsek, commenced on 31 January 2025. Industrial Relations Legislation Amendment Act 2024 (WA). Similar amendments were made to the FWA with effect from 26 August 2024.
It did not have retrospective effect. Section 7A(2) established a statutory test for determining whether a worker is an employee or an independent contractor, by looking at the ‘real substance, practical reality and true nature of the relationship’ Replicating the words in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346, 377 to 378 [142].
between the parties. However, this determination under s 7A(2) and sub-s (3) requires a consideration of the totality of the relationship, including the terms of the contract governing the relationship and other factors relevant to the totality of the relationship, including how the contract is performed in practice.
130 Section 7A of the IR Act reflects common law principles where the totality of the relationship between the parties was considered and not any single factor. Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 28 to 29; ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532 at [29], Perram J: ‘a number of indicia have accreted over time in the authorities which are thought to throw light to varying degrees on the outcome without being determinative: the terms of the contract; the intention of the parties; whether tax is deducted; whether sub-contracting is permitted; whether uniforms are worn; whether tools are supplied; whether holidays [are] permitted; the extent of control of, or the right to control, the putative employee whether actual or de jure; whether wages are paid or instead whether there exists a commission structure; what is disclosed in the tax returns; whether one party ‘represents’ the other; for the benefit of whom does the goodwill in the business inure; how ‘business-like’ is the alleged business of the putative employee – are there systems, manuals and invoices; and so on – the list is neither exhaustive nor short.’

131 The Full Bench of the Australian Industrial Relations Commission in Abdalla v Viewdaze Pty Ltd [2003] AIRC 504; (2003) 122 IR 215 identified a number of potentially significant factors when assessing the totality of the relationship between a person who engages another to do work and the person who is engaged to do work. In Botica v Top Cut TMS Holdings Pty Ltd [2020] WAIRC 00061; (2020) 100 WAIG 102, Industrial Magistrate Flynn (as he was then), at [38], helpfully adapted a list from this and other cases, noting that the list was not exhaustive.
132 Applying, for the sake of completeness and to avoid doubt, the principles applicable to assessing the totality of the relationship between Ms Diaz and the Town from 1 January 2023, I am still satisfied, and I still find the relationship between Ms Diaz and the Town was that of an independent contractor providing services to the Town’s business for the reasons given above.
133 Therefore, I find on the balance of probabilities that Ms Diaz was not an employee of the Town during Engagement Period 2. That is, she was not an employee, as defined under the FWA, nor was she an employee under the IR Act, employed by the Town.
Outcome
134 Where I have found Ms Diaz was not an employee as defined by the FWA and not an employee under the IR Act, the result is that she has not succeeded in proving the Amended Claim (both in respect of the Federal and State Claims).
135 In addition, the Amended Claim relied upon the application of the Cambridge Agreement 2018, which could not have applied or covered Ms Diaz’s employment prior to 6 November 2018 relevant to any part of the Amended Claim, as its operation commenced on 9 April 2019.
136 The Amended Claim is dismissed.



D. SCADDAN
INDUSTRIAL MAGISTRATE

SCHEDULE I:
Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Fair Work Act 2009 (Cth)
Jurisdiction
[1] An employee, an employee organization or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA. The IMC, being a court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: s 12 of the FWA (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); IR Act s 81, s 81B.
[2] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: s 544 of the FWA.
[3] The jurisdiction of the IMC under the FWA is primarily defined by three provisions:
(1) Section 539 of the FWA identifies the civil remedy provisions of the FWA which may be the subject of an application to an eligible state or territory court;
(2) Section 545(3) of the FWA describe the criteria for an eligible state or territory court to make an order for an employer to pay an amount to an employee upon the contravention of a civil remedy provision; and
(3) Section 546(1) of the FWA provides for the making of a pecuniary penalty order upon the court being satisfied of a contravention of a civil remedy provision.
[4] Section 539 of the FWA identifies, from among the several civil remedy provisions of the FWA, the particular civil remedy provisions for which application may be made to an eligible state or territory court ‘for orders in relation to a contravention of the provision’. The provision also identifies, for each civil remedy provision, the person with standing to make application to the relevant court and, expressed in penalty units, the maximum penalty for a contravention.
[5] The civil penalty provisions identified in s 539 of the FWA include:
· Section 44 – contravening a provision of the NES;
· Section 50 – contravening a term of an enterprise agreement;
· Section 323 – failing to pay in full an amount for the performance of work;
· Section 535 – failing to keep employment records as prescribed; and
· Section 536 – failing to provide pay slips.
[6] Section 545(3) of the FWA provides that an eligible state or territory court ‘may order an employer to pay an amount to … an employee … if the court is satisfied’ of two criteria. First, the failure to pay the relevant amount must be a contravention of a civil remedy provision. Secondly, the employer must have an obligation, ‘under this Act [for example, an NES] or a fair work instrument’ (for example, a modern award or an enterprise agreement) to pay the relevant amount.
[7] An ‘employer’ has the statutory obligations noted above if the employer is a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: s 14 and s 12 of the FWA. The obligation is to an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed by a national system employer’: s 13 of the FWA.
Burden and Standard of Proof
[8] In an application under the FWA, the claimant carries the burden of proving the claim. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372,374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but, if the probabilities are equal, it is not.
[9] In the context of an allegation of the breach of a civil penalty provision of the Act it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences (362).
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[10] Section 551 of the FWA provides that ‘a court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention’. It has been held that the effect of the provision is that an ‘eligible State or Territory court’ is required to apply the rules of evidence found in the common law and relevant state legislation when a claim concerns the contravention of a civil remedy provision of the FWA: Gayle Balding, Workplace Ombudsman v Liquid Engineering 2003 Pty Ltd [2008] WAIRC 350; (2008) 88 WAIG 626; Cuzzin Pty Ltd v Grnja [2014] SAIRC 36, [14]. In Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72, [94] - [108] White J (with whom Mortimer and Bromwich JJ agreed) undertook a comprehensive analysis of the issue in the context of contravention proceedings before a state court of South Australia, the former Industrial Relations Court of South Australia (IRCSA). In a schedule to the judgment in Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 886; (2018) 98 WAIG 1410, the IMC gave reasons for concluding that the law of evidence applied by a state court of general jurisdiction when exercising jurisdiction in non-criminal matters including the Evidence Act 1906 (WA), was to be applied by the IMC when determining a claim alleging the contravention of a civil remedy provision of the FWA and seeking the imposition of a penalty.
Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Industrial Relations Act 1979 (WA)
Jurisdiction
[11] The jurisdiction of the IMC under the IR Act is an instance of the general jurisdiction of the court (s 81A of the IR Act), with the result that the powers, practice and procedure of the IMC when exercising that jurisdiction are to be found in the IR Act and the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA) (IMC Regulations).
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[12] Notably, reg 35(4) of the IMC Regulations provides the court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.
[13] In Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation:
The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence [40]. (citations omitted)
Burden and Standard of Proof
[14] Subject to s 81CAA of the IR Act, which does not apply in this case, in an application under the IR Act, the claimant carries the burden of proving the claim. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’.
[15] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.