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Fair Work Decision: A WIN FOR A WORKER EMPLOYED AS "INDEPENDENT CONTRACTOR"

We are so very pleased to offer a very welcome decision of the Fair Work Commission in a matter in which 1800ADVOCATES Employment and Human Rights Chief Advocate, Brian AJ Newman appeared on behalf of the applicant.


In the case of Jessica Tidmarsh v Aspire 2 Life Pty Ltd, presided over by Deputy President Roberts, the crux of the dispute was whether Tidmarsh, who served as a support worker for Aspire 2 Life, was an employee or an independent contractor.


This distinction was crucial for determining if she was entitled to protections under the Fair Work Act 2009, specifically concerning wrongful dismissal.


Tidmarsh argued for employee status, while Aspire 2 Life maintained she was an independent contractor.


Decision of Deputy President Roberts in C2023/6640 - Tidmarsh v Aspire 2 Life Pty Ltd (Picture: Brian AJ Newman LLB)
Decision of Deputy President Roberts in C2023/6640 - Tidmarsh v Aspire 2 Life Pty Ltd (Picture: Brian AJ Newman LLB)

The case hinged on interpreting the contractual agreement between Tidmarsh and Aspire 2 Life, alongside the nature of the work performed and the degree of control and independence Tidmarsh had over her work.


After long deliberation, Deputy President Roberts said at paragraph 52-53.


"[52] The determination as to whether a person is an employee or independent contractor is a question of law. Having taken into account the various rights and obligations that the parties created for themselves by their contractual arrangements, I am of the view that the relationship between the Applicant and Respondent in this case was one of employee and employer.


[53] The Respondent’s objection is dismissed. The matter will be relisted for conference on a date to be determined."


This case illustrates the nuanced considerations in classifying employment relationships within Australian labour law, particularly in sectors like aged care, where service provision models are evolving.


Our client showed extraordinary steel by sticking to her guns and seeing it through, and Jessica is a shining example of what can be achieved if you take the fight up when you know you're right.


If you need help with a similar matter, call 1800 238 622, email gethelp@1800ADVOCATES.au or complete the Priority Intake Form on our website at www.1800ADVOCATES.au


We are now reviewing what could be a significant wage claim as a follow-up case due to the decision.


You can read the entire decision on the Fair Work website.


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