1 Fair Work Act 2009 s.365—General protections Rafat Barakat v Grimshaw Architects Pty Ltd (C2025/9418) DEPUTY PRESIDENT BOYCE SYDNEY, 28 MAY 2026 Application to deal with contraventions involving dismissal – jurisdictional objection - whether the applicant an employee of the respondent or an employee of labour hire company – whether purported employment contract binding – offer and acceptance – no acceptance – offer withdrawn – no binding written employment contract between the applicant and the respondent – section 15AA of the Fair Work Act 2009 applied – applicant employed by labour hire company and on-hired to respondent – whether applicant was in practical reality an employee of respondent and not the labour hire company – totality of the relationship considered - applicant not an employee of the respondent - jurisdictional objection upheld – general protections involving dismissal application dismissed [1] Mr Rafat Barakat (Applicant) has filed a Form F8, general protections involving dismissal application (Application) with the Fair Work Commission (Commission), under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that he was dismissed by Grimshaw Architects Pty Ltd (Respondent) in contravention of Part 3-1 of the Act. [2] The Respondent objects to the Application proceeding on the basis that the Applicant was never its “employee”.1 Rather, it says that the Applicant worked for it pursuant to an on- hire (or labour hire) contract that it had with a third-party recruitment and labour hire agency called Bespoke Career Management Pty Ltd t/as Bespoke Careers (Bespoke). In short, the Respondent says that the Applicant was an employee of Bespoke, and the fact that he worked in the Respondent’s business does not alter this (i.e. there was no employment contract, and no employment relationship, between the Applicant and the Respondent, ever). The Respondent notes that despite asserting in these proceedings that he was at all times an employee of the Respondent, the Applicant’s case is one of confusion, whereby the Applicant has referred to himself as an “agency-contracted employee of [the Respondent] engaged through Bespoke Careers”,2 being phraseology unknown to law. [3] There are two prongs to the Applicant’s case, in summary: (a) The Applicant says that he verbally accepted an offer of employment from the Respondent on 30 July 2025. It follows, says the Applicant, that because he verbally accepted this offer of employment, he immediately became an employee of the [2026] FWC 1941 DECISION [2026] FWC 1941 2 Respondent. The Respondent’s actions in thereafter ending his engagement at the Respondent’s workplace on 29 August 2025 give rise to a “dismissal” at the Respondent’s (employer’s) initiative (Applicant Case One); and (b) Even if Applicant Case One is wrong and fails, the Applicant was always an employee of the Respondent within the meaning of s.15AA of the Act, and the Respondent’s actions in ending his engagement at the Respondent’s workplace on 29 August 2025 give rise to a “dismissal” at the Respondent’s (employer’s) initiative (Applicant Case Two). [4] I observe that if the Applicant was not an employee of the Respondent, it could never have dismissed him. The requirement for a “dismissal” (within the meaning of s.12 and s.386 of the Act) is a jurisdictional prerequisite to the making of a valid general protections involving dismissal claim. [5] The parties complied with Directions issued as to the filing and serving of evidence and submissions. At the hearing, the Applicant represented himself, and the Respondent was represented (with permission) by Mr Matthew Peterson, Special Counsel, Hall & Wilcox lawyers. Factual Background [6] I make the following factual findings (as modified from the written background contained in the Respondent’s submissions):3 (a) The Respondent is wholly owned by Grimshaw Architects LLP. Grimshaw Architects LLP operates a global architectural firm with offices in Los Angeles, New York, London, Paris, Dubai, Melbourne, Sydney and Auckland. (b) The Respondent’s work is largely project based. To help manage its labour resources, the Respondent works with a third-party recruitment agency, Bespoke, which specialises in the recruitment and/or placement of persons with architecture and interior design qualifications and experience. The Respondent has worked with Bespoke for more than 20 years. (c) The Applicant was introduced to the Respondent by Bespoke,4 and subsequently assigned by Bespoke to work for the Respondent on a “contract” (i.e. labour hire or on-hire) basis. The Applicant commenced his assignment with the Respondent on 31 March 2025, and worked at the Respondent’s Sydney studio. (d) The Applicant was initially engaged to work on the Respondent’s Macleay Street Apartments project until around early May 2025. The Applicant then transitioned to work on the Respondent’s Western Sydney Airport Line project. (e) In respect of the Applicant’s assignment at the Respondent: (a) the Applicant entered into an employment contract with Bespoke;5 and [2026] FWC 1941 3 (b) the Respondent entered into separate on-hire contract with Bespoke (for the supply of the Applicant’s labour from Bespoke to the Respondent).6 (f) In around late July 2025, there were discussions between the Respondent and Bespoke about offering the Applicant a permanent fulltime role with the Respondent. To this end, the Respondent asked the Applicant if he would be interested in such a role, to which he said ‘yes’. The Respondent then sent the Applicant a proposed employment contract, via email, on 30 July 2025. This was not received by the Applicant until 13 August 2025. The Applicant never signed the proposed employment contract. (g) Rather than signing the proposed employment contract, the Applicant sent Mr Michael Janeke, Managing Partner - Sydney, an email on 14 August 2025 requesting that the Respondent agree to engage in discussions and negotiations towards making several amendments to the proposed employment contract (including in respect of referral fees, overall remuneration, payment for overtime, and job title). (h) The Respondent did not agree to any of the Applicant’s demands or proposals, and communicated to Bespoke that it no longer sought to offer the Applicant direct permanent employment. It was agreed between the Respondent, Bespoke and the Applicant, that the Applicant would instead continue to work at the Respondent on the existing labour hire contract basis (i.e. through Bespoke) until early October 2025. (i) On 28 August 2025, Mr Janeke met with the Applicant to explain the reasons why the Respondent could not agree to the Applicant’s demands. Mr Janeke explained to the Applicant that the Respondent does not offer introduction fees for referrals made by staff members. Mr Janeke also explained to the Applicant that staff are required to work additional hours from time to time (as required) to complete their work, and other benefits (apart from overtime payment) are provided (including flexible start times, and time off in lieu). Mr Janeke told the Applicant that it was no longer willing to offer him employment on any basis given that (in Mr Janeke’s view) there was a clear ‘misalignment of expectations’ between the parties. (j) The Respondent determined to end the Applicant’s assignment with it on 29 August 2025. This decision was communicated by the Respondent to Bespoke that day. Bespoke then notified the Applicant. The Applicant’s last day of work at the Respondent was 29 August 2025. Joint employment does not exist [7] The concept of joint employment, i.e. one employee employed at the same time by two different employers, does not exist under Australian law.7 It follows that there is no outcome to these proceedings that involves the Applicant being an employee of two employers (the Respondent, and Bespoke) at the same time, i.e. the ultimate finding in any decision where the identity of an employer (between two or more employers) is in contest can only be resolved by the identification of one entity as the employer. Putting aside the academic, however difficult [2026] FWC 1941 4 facts and circumstances may be to differentiate, a decision-maker is limited to picking only one entity as the employer (where there are two or more possibilities). An employment relationship does not (and cannot) exist without an employment contract [8] In order to create or form an employment relationship, the asserted parties thereto must be in a contractual relationship (i.e. no employment contract equals no employment relationship).8 As to the existence of a contractual relationship, it is necessary “… to look to the circumstances of the engagement and to ascertain who it was that offered employment, and whether the worker accepted that offer”.9 Section 15AA - generally [9] In determining whether the Commission’s jurisdiction has been enlivened for the purposes of s.365 of the Act, the question in this case is whether or not the Applicant was an employee of the Respondent as at the date that the relevant engagement between him and the Respondent is said to have come to an end, such that the Applicant was susceptible to being “dismissed” within the meaning of s.386 of the Act at that time. [10] The terms “employee” and “employer” carry their ordinary meanings under Part 3-1 of the Act.10 [11] Section 15AA of the Act deals with how to determine whether an individual is an “employee”, or a person is an “employer”, within the ordinary meaning of those terms.11 It reads: “(1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person. (2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person: (a) the totality of the relationship between the individual and the person must be considered; and (b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice. Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2. (3) Subsections (1) and (2) do not apply to the following provisions of this Act: [2026] FWC 1941 5 (a) Divisions 2A and 2B of Part 1-3; (b) Part 3-1, to the extent that Part 3-1 applies only because of the operation of section 30G or 30R.”12 [12] The phrase “not limited to” under s.15AA(2)(b) makes it clear that a decision maker is not bound to consider only how a relevant contract was performed in practice; rather, it is just one factor to be considered. [13] The legislative note to s.15AA states that this “section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2”. Both of those cases: (a) concerned whether relevant individuals were in an employee and employer relationship, or a principal and independent contractor relationship; (b) clarified that the long creep by courts and tribunals towards always assessing disputed employment relationships by reference to a multifactorial analysis was not only wrong, but bad at law, and that there was no occasion to depart from the approach set out in cases such as Narich Pty Ltd v Commissioner of Pay-roll Tax13 and Australian Mutual Provident Society v Chaplin14: “… there no reason why … established legal rights and obligations in a contract that is entirely in writing should not exclusively determine the relationship between the parties but there is every reason why they should. The “only kinds of rights with which courts of justice are concerned are legal rights”.15 The employment relationship with which the common law is concerned must be a legal relationship. It is not a social or psychological concept like friendship. There is nothing artificial about limiting the consideration of legal relationships to legal concepts such as rights and duties. By contrast, there is nothing of concern to the law that would require treating the relationship between the parties as affected by circumstances, facts, or occurrences that otherwise have no bearing upon legal rights.”; and (c) established that if two parties (individual and principal) agree to enter into an independent contracting relationship, and that relationship is governed by a valid contract (written and/or oral), their legal status is to be maintained by reference to what they have agreed and promised each other. That is, in accordance with the legal rights and obligations (express and implied terms) contained within the contract between them, and not by reference to post commencement conduct. [14] Most of the case law dealing with the question of whether a particular relationship is one of employer and employee derive from disputes as to whether the particular relationship is instead one of principal and independent contractor. Further, in some such cases (e.g. Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (Hollis)) the purpose of the proceedings was to determine issues around the existence of vicarious liability in tort. As the majority stated in Hollis: [2026] FWC 1941 6 “The tokens — “employer”, “employee”, “principal” and “independent contractor” — which provide the currency in this field of discourse have survived for a very long time and have been adapted to very different social conditions. As was pointed out in Scott v Davis,16 vicarious liability derived originally from mediaeval notions of headship of a household, including wives and servants; their status in law was absorbed into that of the master.”17 [15] It follows that case law principles concerning or involving ultimate questions as to the existence or scope of vicarious liability in a tortious context, whist containing useful judicial dicta, should be treated with caution in resolving contests between two parties as to the existence or non-existence of a particular relationship. [16] Section 15AA(2) requires the Commission to look beyond contractual rights and responsibilities when assessing the totality of the relevant relationship. In this regard, there are various indicia that are ordinarily considered in an assessment as to the nature of the relationship. However, “no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances.”18 In other words, all cases falling within the realm of relationship identification are to be resolved by reference to their own facts and circumstances. [17] The phrase in s.15AA(2)(b) “not limited to” makes it abundantly clear that a decision maker is not bound to consider only how a relevant contract was performed in practice. Indeed, the language of s.15AA identifies that there was no parliamentary intention to undermine or derogate from the relevance of the terms and conditions of a written contract. It follows that, a written contract is the logical starting point to resolve disputes under s.15AA, where “regard must be had” to the contract governing the relationship. [18] When engaging with s.15AA to resolve whether an employment or independent contracting relationship exists, the following summary of principles, including extracts from case law, are applicable: (a) In the ultimate sense, a decision-maker needs to be able to “characteris[e] the essence of the relevant relationship” in its totality, so as to make a finding as to the descriptor to be affixed to that relationship.19 This occurs by reference to ‘relevant’ criteria, that are not to be applied mechanically, or as a checklist.20 (b) As Deane J stated in Stevens v Brodribb Sawmilling Co Pty Ltd,21 there are always “a circumfluence of competing criteria and indicia”22 when determining whether a particular relationship is or was one of employment. A decision maker (when resolving a dispute as to the nature of a relevant relationship) is required to paint a picture from the accumulation of detail. The overall effect (or outcome) can only be appreciated by standing back from the picture, and viewing it from a distance.23 This “frequently results (as cases both in Australia and elsewhere illustrate) in borderline decisions upon which different legal minds, properly instructed, can reach different conclusions.”24 (c) The terms and terminology of the relevant contract are always important.25 It is appropriate to pay close regard to the manner in which the parties themselves have [2026] FWC 1941 7 sought to characterise their relationship, and how content they were for the contract to expressly characterise their relationship as one other than employment.26 Importantly, the manner in which the parties have chosen to characterise their relationship (both under the terms of the contract, and pursuant to their interactions and/or conduct) is a matter of intention and motivation. The fact that such matters might also be described as “labels” does not detract from the significance of intention and motivation (especially when contractual relations were first formed) in proceeding to determine the true nature of a relationship between two parties.27 (d) Outside of the terms of the relevant contract, there are a variety of matters that may speak directly to the objective motivations or intentions of a person entering into a contract (which form part of the assessment of the ‘real substance’ and ‘practical reality’ of the relationship). For example, industry practices or norms, the type of working arrangements that the person has made (or previously made) with others, the surrounding circumstances pursuant to which the contract was entered into, and the extent to which there is evidence of the person raising concerns about the terms of the relationship whilst it was in existence. For example, did concerns or issues suddenly arise or appear for the first time at or around the time that the relationship ended, or post the relationship ending, or were concerns raised much earlier. Again, conduct displayed when the relationship between two parties first started (going to the plain intention of the parties) may be exposed as standing in stark contrast to newly raised claims of unfairness and injustice when the relationship comes to an end. (e) How each party conducts their own taxation and related compliance affairs, including what is disclosed in personal tax returns and Business Activity Statements (BAS), is most certainly a relevant consideration.28 (f) Specifying in detail how work or contracted services are to be performed does not in and of itself point to an employment relationship.29 Importantly, and relevantly, a person does not become an employee of another business simply because he or she abides by or complies with another business’s requirements, procedures or standards. (g) Although ‘control’ is an important indicium, it is not the sole or determinative criterion. The extent of such control, and the reasons for its imposition (including its nature) will in many cases not ultimately point strongly one way or the other in the assessment of whether a person is an employee or an independent contractor. (h) The substantive question as to control is whether the business retained a significant degree of control in how the person actually utilised their skills when providing or delivering the relevant service (or performing the work). In other words, ‘ultimate authority’ over the work performed.30 The fact that an external standard needs to be met, to which the principal requires compliance, is not an issue of control, but a matter as to the proper delivery of the service or work. Simply because a principal requires compliance in this regard does not give rise to the principal controlling the manner in which the work is performed, or the manner in which the service is [2026] FWC 1941 8 delivered, because such compliance would be required irrespective of whether or not the person is an employee or an independent contractor. (i) If a relationship is ambiguous, the terms of the relevant contract become the best material from which to determine the true legal relationship between two parties31 (the Massey Proposition)32. The Massey Proposition was cited with approval in Jiang Shen Cai trading as French Accent v Do Rozario Cai,33 where the Full Bench of the former Fair Work Australia stated: “The Massey Proposition should be treated as a matter of common sense that allows for the resolution of the ultimate question in cases where, after considering the nature of the work, the terms of the contract and the indicia, real ambiguity remains and the contract declares the relationship to have a particular character.”34 Labour hire arrangements [19] Factual scenarios involving labour hire or on-hire arrangements are at least one step removed from questions as to whether a particular relationship is one of employer and employee, or principal and independent contractor. Indeed, the issue of ‘characterising’ a contractual relationship as one of employment or independent contracting is different to the issue of identifying who are the parties to a contract. Again, an employment contract must be in existence between two parties before an employment relationship can be established or otherwise exist. [20] It follows that the core issue for resolution in a disputed labour hire arrangement, where an individual asserts that he or she is employed by the ‘client’ (or host employer) of the labour hire business, is essentially one focused upon the identification of the relevant ‘employer’ (i.e. the labour hire business, or its client (the host employer)). In this regard, the real substance, practical reality and true nature of the relationship between the individual (purported employee) and the person (purported employer, being either the labour hire company, or the client), will in many cases (after analysis of the practical workings of the relationship, including the making inferences as to conduct) end up focusing upon the context of the relationship, and the terms of the relevant written contract (i.e. where one exists). In undertaking this task, the following principles apply: (a) where conduct after a contract has been entered into is relevant to the identification of an employer between two or more possibilities, it is important to single out exactly what type of conduct might assist. In this regard, many of the criteria that apply to the determination of whether a person is, or is not, an employee or independent contractor, are of no particular significance by reference to the normal workings of a labour hire placement or assignment. For example, when a labour hire business directs one of its employees to work at a particular client, the employee will ordinarily (and on an ongoing basis), need to: i) take directions from, or be supervised by, certain persons employed by the client; and/or [2026] FWC 1941 9 ii) integrate into the client’s operations: • for example, by attending team meetings and seminars, following business and safety policies and procedures, using business specific software and systems, and communicating internally and externally as being part of, or associated with, the client’s business; and • by having the client’s management check and sign-off on hours of work via timesheets; (b) the practical effect of the foregoing is that the labour hire employee is taking most of his or her day-to-day direction from the client, and has their working hours (including start and finish times, tea breaks, lunch breaks, and leave) monitored, managed and approved by the client. But the reality, or the very essence of a genuine labour hire arrangement, is that a labour hire business engages persons (via employment, or otherwise) specifically for the purpose of having such persons work in the business of another (i.e. not only working in, but integrating into, a client’s business); (c) an employee of a labour hire business, directed to work at a client (i.e. the business of another), does not, by some form of osmosis or happenstance, become an employee of the client. The whole purpose of a labour hire business is to place suitably qualified persons into the business of another, without such persons becoming an employee of that other business. There is nothing at law prohibiting such arrangement, or requiring that a written contract signed one day, subsequently due to conduct, becomes something else. As Vice President Watson stated in Arcadia v Accenture Australia:35 “Labour hire arrangements of this type are common in industry and have generally been held to create no employment relationship between a client and a worker. Where the documentation signed by the parties is clear as to the nature of the respective relationships and consistent with practices adopted by the parties it is appropriate to give those terms their full effect.”36 (d) there is nothing wrong, bad, or illegal in a genuine labour hire arrangement. As the Full Bench of the Commission stated in FP Group Pty Ltd v Tooheys Pty Ltd37: “[19] The starting point for the consideration of the position here is that the mere existence of an arrangement under which a first company provides labour to a second company does not point to the second company being the employer of the labour so provided. The general position was stated by Buchanan J in Fair Work Ombudsman v Ramsey Food Processing Pty Ltd38 as follows: ‘[60] ... arrangements whereby labour is provided by one company to another, without the recipient becoming thereby an employer, are longstanding and unremarkable. There appears no place for an assumption of illegality or illegitimate purpose from the mere fact that a [2026] FWC 1941 10 “labour hire” arrangement has been put in place. The Australian cases recognise that, provided the arrangement meets certain objective criteria. [61] Utilisation in Australia of labour hire arrangements has increased significantly in past decades. There is no doubt that sometimes such arrangements reflect a desire by the proprietors of a business to avoid liability for employment related obligations. That is not illegal as an objective.’ [20] A similar observation was made by Merkel J in Damevski v Guidice39: ‘[173] In general, the courts have held that the interposition of a labour hiring agency between its clients and the workers it hires out to them does not result in an employee-employer relationship between the client and the worker: see Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438; Skilled Engineering Pty Ltd v Gill (unreported, Full Court of the South Australian Supreme Court, King CJ, Cox and Bollen JJ, 11 July 1991); McMahon Services Pty Ltd v Cox (2001) 78 SASR 540; Swift Placements Pty Limited v Workcover Authority of New South Wales (Inspector May) [2000] NSWIRComm 9; (2000) 96 IR 69; Drake Personnel Ltd v Commissioner of State Revenue [2000] VSCA 122; [2000] 2 VR 635; Construction Industry Training Board v Labour Force Ltd [1970] 3 All ER 220; McMeechan v Secretary of State for Employment [1996] EWCA Civ 1166; [1997] ICR 549; Montgomery v Johnson Underwood Ltd [2001] EWCA Civ 318; [2001] ICR 819.’”40 [21] In the case of Gothard, in the matter of AFG Pty Limited (Receivers and Managers appointed) (in liq) v Davey (Gothard),41 Justice Edmonds of the Federal Court highlighted the principles to be considered when seeking to identify an employer (from two or more possibilities, within the same corporate group, or otherwise), as follows: “52. Unsurprisingly, the outcome in cases which have been concerned with identifying an employer of a person or group of persons from two or more possibilities, whether from within the same group of companies or otherwise, has turned on their own facts and, in consequence, the case law in this area is of limited assistance. Nevertheless, it is possible to discern certain general principles that the courts have applied in the identification process. The courts have adopted the position that in undertaking this exercise, they are entitled to take a wide view of the putative relationship, beyond the terms of the contractual documentation, to examine how the parties conducted themselves in practice and whether, where there is contractual documentation, the reality of the situation accords with the terms of that documentation or whether it points to another entity being the employer. 53. I thought it would be helpful if I analysed these principles before moving to consider the evidence so to give guidance to that consideration, in particular, the relative weight to be accorded to different matters. [2026] FWC 1941 11 54. In In the matter of C&T Grinter Transport Services Pty Ltd (In Liquidation) & Grinter Transport Pty Ltd (In Liquidation) (Controller Appointed) [2004] FCA 1148, Finn J at [20] said: ‘[20] The principles to be applied in the identification of the employer of an employee where there are two or more possible employers, are reasonably well settled. For present purposes I would note the following: (1) A contract of service cannot be transferred by one employer to another or novated as between them without the employee’s consent: Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014; Re Coogi Nominees Pty Ltd (Administrators appointed); McCluskey v Karagiosis (2002) 120 IR 147. Questions of estoppel apart: Smith v Blandford Gee Cementation Co Ltd [1970] 3 All ER 154; the employee’s consent must be a real one whether express or implied and is “not to be raised by operation of law”: Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 at 443. (2) The totality of the circumstances surrounding the relationships of the various parties including conduct subsequent to the creation of an alleged employment relationship is relevant to the assessment to be made: Romero v Auty (2001) 19 AGLC 206 at [10] and [42]-[44]. (3) Documentation created by one or more of the parties describing or evidencing an apparent employment relationship will be relevant to, but not necessarily determinative of, the true character of that relationship: Pitcher v Langford (1991) 23 NSWLR 142; Marrs Fabrics Pty Ltd & Nathan Wholesale Fabrics Pty Ltd v Whipps (1991) 33 AILR 167. In determining the identity of a disputed employer, the Court is entitled to consider “the reality of purported contractual arrangements”: Dalgety Farmers Ltd t/a Grazcos v Bruce, NSWCA, 3 August 1995. The documentation may have been brought into existence for other purposes, for example, tax minimisation or the reduction of insurance premiums, without reflecting the reality of the parties relationship: ibid; Pitcher v Langford, at 149; Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454. (4) Conversations and conduct at the time of the alleged engagement of the employee is of considerable significance: Romero, at [9]. The beliefs of the employees as to the identity of their employer is admissible and is entitled to weight: Pitcher v Langford. (5) In cases of the engagement of new employees to work in a business in which a number of separate corporate entities participate otherwise than as partners: ‘… it was open to those controlling the business to select which company should be the employer provided that the selection was [2026] FWC 1941 12 consistent with the financial and administrative organisation of the business and was not otherwise a sham.’ See Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd, FCA, Ryan J, 19 November 1998.” 55. The majority of the NSW Court of Appeal (Basten JA dissenting) made the following observation in Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 at [59] regarding the court’s earlier decision in Pitcher v Langford (1991) 23 NSWLR 142: ‘The result in Pitcher v Langford turned on its own facts, and on the need for error in point of law. There is no doubt, however, that without going so far as to find a sham the “reality of purported contractual arrangements” (per Handley JA) can be considered, and the case illustrates that it can extend to the identity of a contracting party and that it can be found that a purported contracting party was not in reality party to the contract even where a written contract gives it as the party.’ 56. The majority further noted (at [61] – [62]) that determination of the entity that entered into a contract is based upon an objective assessment of the state of affairs between the parties. 57. In Dalgety Farmers Ltd (t/as Grazcos) v Bruce (1995) 12 NSWCCR 36, Kirby ACJ (with whom Clarke and Cole JJA agreed) made the following observations: ‘Disputes concerning the employment of shearers are not uncommon. Specifically, disputes have quite frequently arisen out of “paper” arrangements designed to settle the assignment of employment to a particular organisation ... There is no alternative in such cases but to examine the detailed evidence. … In disputes concerning the existence of employment-type arrangements, and the characterisation of those arrangements, the proof of paper documentation, although relevant, will not necessarily he determinative ... Priestley JA and Handley JA in Pitcher ... made it plain that, in determining the identity of a disputed employer, the Court is entitled to consider the reality of the purported contractual arrangements … [T]he paper arrangements [are] not irrelevant, and should not be ignored ... In determining whether a contract of service has been entered, and if so with whom, it is necessary to look to the circumstances of the engagement and to ascertain who it was that offered employment, and whether the worker accepted that offer. To determine whether what then ensued was indeed employment (in the sense of a contract of service) it is necessary to look to the whole of the relationship.... Thus the search which is on is for the essence of the relationship, not the simple touchstone of actual control, or the right of control.’ [2026] FWC 1941 13 58. In Pitcher, at 150, the NSW Court of Appeal observed that establishment of an employment relationship, where in dispute, will often take a court into a detailed examination of the features of the relationship between the parties. This case was recently followed in Sturesteps v McGrath [2010] NSWSC 169, a case involving the identification of the employer in a corporate group. 59. It is open to persons controlling a business in which a group of companies is involved to select an entity within the corporate group to be the employer. However, as Ryan J pointed out in Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd [1998] FCA 1465, if such a selection is to be made, the arrangement must be consistent with the financial and administrative organisation of the business in order to be effective. 60. Aspects of the practical realities of the relationship which have been considered relevant in the cases referred to above, include a consideration of the entity which: (a) had practical and legal control and direction of the employees; (b) made decisions about hiring; (c) made decisions about disciplinary issues; (d) made decisions about the level of remuneration; (e) actually paid remuneration; (f) communicated with employees about leave; and (g) made decisions about termination of employment.” [22] In Mark Erwood v Hays Specialist Recruitment (Australia) Pty Ltd; Grains Research Development Corporation; Francis Ogbonnaya42, Deputy President Dean made the following findings: “[23] In his submissions, the Applicant also contended that the Second Respondent [Client/Host Employer] was the true employer. He said the Commission’s role was to “discharge its statutory duty under section 15AA of the Fair Work Act 2009 to determine the identity of the employer based on the practical reality of the work performed”. [24] He gave evidence as to the extent of the control the Second Respondent had over his work. The Second Respondent acknowledged that the Applicant performed work for it at its premises, used its computer equipment, and gave him directions about his work, and does not dispute that it instructed the First Respondent to end the assignment. [25] However, for the reasons given below I am satisfied and find that the Applicant was employed on a casual basis by the First Respondent [Labour Hire Business] and was not employed by the Second or Third Respondent. [2026] FWC 1941 14 [26] First, there is no dispute that the Applicant entered into a contract with the First Respondent, the key details of which were set out earlier in this decision. Further, he accepted an assignment from the First Respondent to perform work for the Second Respondent, and in doing so accepted and agreed that he was a casual employee of the First Respondent. I am satisfied on the evidence that the Applicant was an employee of the First Respondent. [27] Second, there is no evidence of any alleged independent contractor arrangement, or in fact any contractual relationship at all, between the Applicant and the Second Respondent that would give rise to s.15AA considerations. Section 15AA was inserted into the Act to deal specifically with the High Court decisions in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd and ZG Operations Australia Pty Ltd v Jamsek, both of which relate to the test for determining whether a person is an employee or an independent contractor. [28] The evidence demonstrates a standard three-way labour hire arrangement in which the Applicant was employed by the First Respondent and performed work for a client of the First Respondent. In such an arrangement, there is no employee-employer relationship between the client of the First Respondent and the Applicant.”43 [23] On appeal, in Mark Erwood v Hays Specialist Recruitment (Australia) Pty Ltd; Grains Research Development Corporation; Francis Ogbonnaya44 (Hays FB Decision), a Full Bench of the Commission upheld the foregoing findings of Deputy President Dean, as follows: “[9] The Deputy President determined that she was satisfied that the appellant was an employee of the first respondent referring to the Terms of Engagement and also the 20 June 2025 email from the first respondent to the appellant. The Deputy President decided that there was no contractual relationship as between the appellant and the second respondent. The Deputy President rejected the appellant’s reliance on s 15AA of the Act, noting that absent a contractual relationship between the appellant and the second respondent, s 15AA of the Act did not relevantly operate. The Deputy President noted that s 15AA was inserted into the Act to deal with the High Court decisions in ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 25 (Jamsek) and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165 (Personnel Contracting), both cases relating to the test for determining whether a person is an employee or an independent contractor. In the course of concluding that the appellant was employed by the first respondent, the Deputy President expressly referred to the second respondent’s acceptance that the appellant performed work for the second respondent at its premises, the appellant used the second respondent’s computer equipment, that the second respondent gave the appellant directions about his work and that the second respondent did not dispute that it instructed the first respondent to end the assignment.” … “[16] In grounds 1 & 2 the appellant asserts error including jurisdictional error by the Deputy President in her decision that s 15AA applies only to determining whether a worker is an employee or independent contractor, including an asserted failure to take [2026] FWC 1941 15 into account the words “For the purposes of this Act” in s 15AA(1), an asserted error in ignoring the “practical reality” test, an asserted error in the resurrection of a primacy of contract test that the Parliament intended to abolish, an asserted error in a failure to consider the true substance of the employment arrangement which involved a labour hire firm (the first respondent) and a host employer (the second respondent), and an asserted error in failing to give weight to admissions by the second respondent that it exercised total direction and control over the appellant inconsistent with the terms of s 15AA which was enacted to force prioritisation to the practical reality admissions over written labels. We do not consider that appeal grounds 1 & 2 raise arguable error. It is clear that s 15AA applies a “real substance, practical reality and true nature of the relationship test” for the purpose of determining whether a worker is an employee or independent contractor. The provision does not have relevant operation in respect of a matter such as the present where the appellant was employed by the first respondent and assigned by the first respondent to work for the second respondent and the appellant had no contractual relationship with the second respondent. As the Deputy President held and as noted in a legislative note accompanying s 15AA, the provision was enacted as response to the decisions of the High Court in Personnel Contracting and Jamsek. Both decisions of the High Court concerned the distinction under common law between an employee and independent contractor.” (emphasis added) … “[25] As we have noted, the appellant’s appeal grounds do not disclose arguable appealable error. [26] We reject the appellant’s contention that the public interest is engaged in respect of grant of permission to appeal. In relation to public interest, the appellant contended that the public interest is engaged because the appeal is a “test case” regarding s 15AA involving “3-way contractual structures that are essentially tripartite employment relationships”, that if the Decision stands any employer can bypass the s 15AA by using a labour hire intermediary rendering the legislation meaningless, that certain leading figures have called for s 15AA to be applied in a way that allows the reality of employment arrangements and consequential conduct to be properly understood. The appellant also submits that there is a significant public interest in ensuring that federal agencies such as the second respondent adhere to model litigant obligations and do not use “labour-hire shells” to avoid accountability for taking adverse action. [27] We do not accept the appellant’s contentions that the public interest is engaged and do not otherwise consider that there is any public interest ground engaged. [28] Furthermore, we do not consider that permission to appeal should be granted on any general discretionary grounds.”45 [24] Having regard to the case law set out in this decision, I apply the following principles to the determination of disputes involving the identification of the ‘employer’ in a labour hire arrangement: [2026] FWC 1941 16 (a) where the evidence demonstrates a standard three-way labour hire arrangement in which the employee is employed by the labour hire business and performs work for a client or host employer, there is no employee and employer relationship between the employee and the client or host employer. Of course, each case will turn upon its own facts and circumstances, but there should be no running away from the ordinary (or starting) position that the real substance, practical reality and true nature of a relationship between an individual, and the relevant (bona fide) labour hire business that employs them, is where the employment relationship will exist (i.e. not with the client or host employer); (b) if there exists a written contract between an individual and a labour hire company, which is not alleged to be a sham or invalid for some other reason, or to have been overtaken by a subsequent contract, or alike, then the answer to a dispute as to whether or not the individual is an employee of the labour hire business, or an employee of the client (host employer), will ordinarily (or most likely) be resolved by reference to the terms of the written contract; and (c) whether, and to what extent, it might be necessary to trawl through the various principles and propositions set out in cases such Gothard, in order to determine whether or not an individual is an employee of the labour hire business, or an employee of the client (host employer), will depend upon the circumstances of the case. It is certainly not correct to conclude that in each and every single case where a person asserts that they are an employee of a client (host employer), as opposed to an employee of the labour hire business that employed them, a decision-maker must engage in some form of multifaceted or extensive analysis before a determination can be made. Applicant Case One – Was there a binding employment contract between the Applicant and the Respondent? [25] Ms Thihoa Gill is the Respondent’s People Lead (APAC), and Ms Misty Waters is Bespoke’s Principal – Architecture, Strategic Appointments. [26] On 30 July 2025, Ms Gill (on behalf of the Respondent) made a verbal offer of permanent full-time employment to the Applicant, which he verbally accepted. No discussions were had as to any of the essential terms of this offer.46 [27] Ms Gill thereafter emailed Ms Waters advising her that a verbal offer of employment had been made by the Respondent to the Applicant based upon the Respondent’s (unparticularised) “standard terms and conditions”.47 Ms Gill states to Ms Waters in this email: “Rafat [the Applicant] has said he’d like to take a few days to review the offer and will confirm his acceptance while on leave. He seemed quite keen but, of course, still needs to sign on the dotted line.”48 [28] The Respondent acknowledged that the Applicant had already verbally accepted its offer of employment in an email to him on 30 July 2025, which attached the following documents [2026] FWC 1941 17 (for relevant acknowledgement, or completion and execution by the Applicant and return to the Respondent): (a) Employment Contract; (b) Fair work information statement; (c) Superannuation choice nomination form; (d) Payroll New Starter form; (e) TFN Declaration form; and (f) Architect position description. [29] The Applicant was on leave between 31 July and 18 August 2025. The 30 July 2025 email from Ms Gill was not received by the Applicant (due to it being sent to his work email address whilst he was on leave). The same email was forwarded onto the Applicant’s personal email address on 13 August 2025. [30] At the time that the Applicant verbally accepted the Respondent’s offer of employment (30 July 2025), there had been no identification of, let alone agreement between the parties on, the essential terms of the offer of employment.49 For example, prior to or as at 13 August 2025, there was no discussion (or agreement) between the Applicant and the Respondent as to the remuneration that would apply to the role.50 The Respondent’s formal (or particularised) offer of employment was received by the Applicant (for the first time) on 13 August 2025 (i.e. per the terms of the Employment Contract).51 This was the only offer on the table that was open for acceptance by the Applicant. [31] The Employment Contract contained the following express terms: (a) the offer of employment (by the Respondent to the Applicant) was on the basis of the terms expressly set out in the Employment Contract, with a commencement date of 18 August 2025 in the role of Architect;52 (b) the terms of the Employment Contract supersede in their entirety all previous terms and conditions, agreements, representations, procedures, policies and rules whether collective or otherwise and whether in writing or otherwise.53 In other words, any previous offer/s of employment (written or oral), whether accepted or not, are superseded and replaced in their entirety by the express terms set out in the Employment Contract; and (c) in order for the Applicant to accept the Respondent’s offer of employment, the Applicant needed to agree to (accept) the express terms of the Employment Contract, and sign and return it to the Respondent as formal confirmation of his acceptance.54 Unless this occurred, no offer of employment had been accepted, no offer of employment was binding and enforceable, and no employment relationship would commence. [32] It is not in dispute that the Applicant never signed the Employment Contract. Indeed, the Applicant did not complete, sign, or return to the Respondent any of the documents that had been emailed to him. Instead, on 14 August 2025, at 12:55pm, via email to Mr Janeke, the Applicant sought to renegotiate (or make a counter-offer) in respect of the terms and conditions [2026] FWC 1941 18 set out in the Employment Contract.55 The matters that the Applicant sought to agitate or renegotiate in this regard were essential terms of the Employment Contract (e.g. rate of remuneration).56 The Applicant’s 14 August 2025 email to Mr Janeke reads: “Hi Michael [Mr Janeke], I hope you’re well. I’m very excited about the opportunity to transition to a full time, permanent role with Grimshaw. I’ve truly enjoyed contributing to the team and am eager to continue delivering high value outcomes. Before finalising the contract, I’d like to clarify a few points: 1.Client Attribution I recently introduced a significant client (Amazon), which required considerable effort beyond my initial contracted responsibilities. While a project has not yet commenced, there is potential for it to be secured over the next year or more. I would greatly appreciate formal acknowledgement of my role in introducing this client, as well as appropriate recognition or compensation for any projects that result from this introduction, whenever they occur. I am completely committed to supporting Grimshaw to ensure these opportunities are successfully realised and will work as best as I could to ensure it. 2.Remuneration &Overtime The offered salary of $120K plus superannuation is significantly below my current contractor rate of $143.5K. I understand that casual loading is part of my short term contract, but even taking that into account, the permanent offer is still significantly lower. Considering this and the occasional extended hours, I would be more comfortable with a salary of $130K plus superannuation, which I believe better reflects my experience, contributions, and effort. The contract references “reasonable additional hours.” I understand flexibility is sometimes required on both sides, and I understand that within our filed. However, in my recent experience, negotiating to leave 2-2.5 hours earlier led to a heated discussion with my project leader, and even negotiating just 30 extra minutes created unnecessary friction. I had communicated days in advance my need to leave couple of hours earlier on that Friday, yet the expectation for constant late hours, as observed with the rest of the team, does not provide assurance or security. I would expect that any required constant overtime beyond normal hours is appropriately compensated, or time in lieu is offered, as the current contract excludes time in lieu. 3.Role Title My current position with Bespoke is Senior Architect, yet the contract lists “Architect.” I’d like to maintain the same title Senior Architect to accurately reflect my responsibilities and experience. 4. Employment Disclosure I noticed a clause in the contract (Clause 18.5) requiring me to provide a copy to prospective employers if offered employment elsewhere. I have not seen such a clause [2026] FWC 1941 19 in previous contracts and would appreciate clarification on its purpose and necessity. I would also like this clause to be struck out, as it seems unusually restrictive. I am genuinely enthusiastic about joining Grimshaw permanently and contributing at the highest level. As I mentioned in my last meeting with my supervisor and HR, I am very proud to be part of Grimshaw and deeply admire the architecture the firm delivers, the level of detail, creativity, and thoughtful work processes are something I highly respect and enjoy. Aligning on these points will ensure the contract reflects both my contributions and the exciting opportunities ahead for the company. Thank you very much for your time and consideration. I look forward to your thoughts. Best regards, Rafat Barakat [Applicant]”57 [33] The Applicant submits that the foregoing email is no more than a request to have a discussion about the terms of the Employment Contract, and to seek clarification on specific terms. He also says that he had a workplace right to seek to raise issues and have discussions around the terms of the Employment Contract. I reject both of these assertions. Firstly, the Applicant’s 14 August 2025 email seeks outcomes beyond, or changes to, the terms of the Employment Contract. In doing so, it seeks to have some of the essential terms of the Employment Contract amended, and puts forward proposals (offers) as to such changes. The fact that these proposals are couched around phrases such as “greatly appreciate”, “more comfortable”, and “look forward to your thoughts” take the Applicant’s submissions nowhere. Secondly, there is no workplace right to have discussions or obtain clarification upon the terms of an employment contract at the point of recruitment. Discussions around the terms of an employment contract may well occur in the ordinary course of commerce, but one party cannot demand that discussions or negotiations occur (or occur in a particular fashion or manner). If one party only wishes to put forward a non-negotiable (take it or leave it) offer, that is a matter for them, and it is their right to do so (i.e. it becomes part of the overall offer). [34] After receiving the Applicant’s 14 August 2025 email, Mr Janeke spoke to Ms Gill and stated: “I think you need to call Bespoke and let Misty [Ms Waters] know that we can’t meet his [the Applicant’s] expectations. I will also speak with Misty [Ms Waters] about this and I will then meet with Rafat [Applicant] to explain why we can’t agree to his requests.”58 [35] Ms Waters subsequently spoke to the Applicant (on 14 August 2025), and then called Ms Gill, stating to her: “Rafat [the Applicant] will remain on a contract arrangement. Rafat [the Applicant] was disappointed with not transitioning to a permanent role at this stage, but I think he understood the situation, and he said that he prefers to remain as a contractor as his hourly rate was higher.”59 [2026] FWC 1941 20 [36] The foregoing conversation is followed up by an email from Ms Gill to Mr Janeke on 15 August 2025 (11:23am), which reads: “Hi all, Further to your request Michael [Mr Janeke], confirming that Rafat [the Applicant] will continue to work a contract basis through Bespoke, with an end date of Friday, 10 October 2025. Under his current arrangement, Rafat [the Applicant] works 40 hours per week. He is happy to work overtime, however, any increase in hours must be formally updated in the contract arrangement to meet legal employment requirements. If you have any questions, please let me know. Rafat will see you on Monday! Thanks Thihoa [Ms Gill]”60 [37] All of the Applicant’s demands (in respect of changes to the Employment Contract) were also rejected by the Respondent, at a meeting between himself and Mr Janeke on 28 August 2025.61 The Applicant was advised orally at this meeting (by Mr Janeke) that the Respondent would not be offering him any employment.62 [38] As a basic matter of contract law, the Respondent was entitled to unilaterally withdraw its offer of employment to the Applicant prior to its acceptance. In this case, rather than engaging in further discussions or negotiations with the Applicant, the Respondent withdrew its offer of employment to the Applicant (in whole). At this time, the Employment Contract had still not been signed or returned by the Applicant, and it was no longer an offer open to acceptance. The reasons for such withdrawal by the Respondent are not relevant, and do not need to be explained or justified. In relation to the Applicant’s contention that he had an agreement to be employed by the Respondent that he accepted, Mr Janeke makes the point that “I don’t know what the terms were that you accepted on”.63 [39] It is clear that on the common law approach to the existence of a contractual relationship (i.e. by reference to intention to create legal relations, offer and acceptance, conduct, and knowledge of, and agreement upon, essential terms) there was never a contractual relationship between the Applicant and the Respondent. Indeed, on the issue of intention to create legal relations (objectively assessed, and excluding what may have been the subjective belief of one or both parties),64 it could not be inferred that the Respondent intended, by contracting with Bespoke to supply it labour, to have such supplied labour become its employee/s, i.e. at least absent some type of acknowledgement and formality (even if that be limited to completing documentation so as to comply with relevant Australian taxation legislation, which never occurred).65 [2026] FWC 1941 21 [40] I find that no contract between the Applicant and the Respondent (of any kind) ever came into existence. It follows that the Applicant was never an “employee” of the Respondent by reference to the terms of the (unsigned) Employment Contract, or by reference to any verbal acceptance by him of the Respondent’s general (unparticularised) verbal offer of employment on 30 July 2025. [41] Whilst the Applicant requests that I make a finding that he was a “prospective employee” of the Respondent, it is both unnecessary and inappropriate that I do so. Adverse action in the form of a “dismissal” does not apply to a prospective employee.66 Applicant Case Two – Was the Applicant an employee of the Respondent within the meaning of s.15AA of the Act? [42] The other claim that the Applicant makes in these proceedings is that, even if there was no ‘written’ contract between himself and the Respondent, he was nonetheless an employee of, and in an employment relationship with, the Respondent (within the meaning of s.15AA of the Act). In support of his contention in this regard, the Applicant (relevantly) makes the following points: (a) he was an employee of the Respondent (not Bespoke) from the first day that he started his assignment with the Respondent; (b) he was onboarded into the Respondent’s business at the start of his engagement, and undertook software and education courses arranged by the Respondent; (c) he was presented to the world as an Architect (employee) of the Respondent’s business; (d) he worked exclusively for the Respondent, under its direction, and reported to the Respondent’s management (and received performance feedback); (e) he used the Respondent’s IT systems, and was otherwise fully integrated into the Respondent’s project teams, internal systems, internal meetings, and business development activities; (f) he introduced a potential client (Amazon) to the Respondent’s business;67 and (g) Bespoke was in reality just a payroll conduit. It had no control or supervision over his work, and was used as an accountability shield by the Respondent.68 [43] The difficulty with the foregoing contentions of the Applicant, whether supported factually or not, is that the Applicant fails to explain the basis upon which these matters are relevant considerations having regard to their context. None of these matters can be considered in a vacuum. The starting point for such context is the labour hire arrangement between Bespoke and the Respondent, as contained in both the contract between Bespoke and the Respondent, and the employment contract between Bespoke and the Applicant. [2026] FWC 1941 22 [44] A written labour or on-hire hire contract (LH Contract) between Bespoke and the Respondent was entered into on 14 March 2025 in respect of the Applicant.69 Under the LH Contract, Bespoke promises to provide the Respondent with a person qualified (and acceptable) to fulfil the role of Architect at the Respondent’s Sydney workplace. I observe that the LH Contract, on the evidence, is an arm’s length commercial agreement, whereby Bespoke is remunerated via a fee charged on top of the Applicant’s hourly rate. The LH Contract, in summary, provided that the Applicant would be an employee of Bespoke, assigned to work at the Respondent as a Senior Architect (40 hours per week) at the rate of $103.12 per hour (plus GST) payable to Bespoke, with the Respondent approving the Applicant’s timesheets (prior to payment thereafter being made by Bespoke to the Applicant). Bespoke would also provide invoices to the Respondent in respect of the Applicant’s hours of work (at the agreed hourly rate of $103.12 (plus GST)), payable within 7 days of issue. [45] Bespoke separately (and individually) contracted with the Applicant (Applicant Contract),70 so as to fulfil its obligations to the Respondent under the LH Contract. This required the Applicant to work in the Respondent’s business (as an Architect). In summary, the Applicant Contract provided that the Applicant was employed by Bespoke on a casual basis at the all-up rate of $69 per hour, and that he would work (i.e. be assigned to work) at Bespoke’s client (the Respondent) as a Senior Architect (40 hours per week) starting on 31 March 2025, and ending (unless extended) on 30 September 2025. Further, whilst working at the Respondent’s workplace, the Applicant would: (a) report to an employee of the Respondent, Ms Gihan Chami, Head of Finance (Australia & New Zealand); (b) have his timesheets approved by the Respondent; and (c) work from the Respondent’s Sydney office.71 [46] Based upon the terms of the Applicant Contract, and the terms of the Bespoke Contract, it is apparent that the ability for the Respondent to direct or control the Applicant in the performance of his work (at the Respondent’s workplace) is not something that points to an employment relationship between the Applicant and the Respondent. Rather, it points to a labour hire arrangement between Bespoke and the Respondent. The same position applies to the Applicant’s contentions around being onboarded by the Respondent, using the Respondent’s IT systems, and otherwise fully integrating into the Respondent’s project teams, internal systems, internal meetings, and business development activities. In other words, these are all things that Bespoke employed the Applicant to do as part of his placement with the Respondent. Quite plainly, to fulfil his assignment at the Respondent’s business, the Applicant needed to use the same computer systems (including software) as the Respondent’s staff, and needed to integrate into the Respondent’s work teams and processes. In a labour hire context, that is what an assignment or placement to a host employer is all about. [47] At all times, the manner in which the Applicant was remunerated was via the payment of wages by Bespoke. The Applicant never sought to be remunerated in any other manner. Strangely, the Applicant did not tender any of the payslips he received from Bespoke. I proceed on the basis that Bespoke deducted relevant taxation from wages it paid to the Applicant. [2026] FWC 1941 23 [48] The fact that the Applicant completed timesheets,72 which were approved by the Respondent, is consistent with the terms of the Applicant Contract (that the Applicant promised to be bound by when he agreed to the terms set out therein).73 Further, the fact that the Respondent only paid Bespoke after it issued a relevant invoice (for the hours worked by the Applicant)74 is wholly consistent with the terms of the LH Contract. [49] In determining whether or not the Applicant was an employee of the Respondent, I need to assess the real substance, practical reality and true nature of the relationship between the Applicant and the Respondent, having regard to the totality of the relationship between them, along with the terms of any contract/s, and how such contract/s operated in practice. [50] A defining feature of this case is the consistency between the terms of the Applicant’s Contract, and the manner in which the parties have (in reality) conducted themselves. In ‘essence’, the practical reality of the relationship between Bespoke and the Applicant, and Bespoke and the Respondent, is wholly consistent with (and reflected in) the terms of the Applicant Contract and the LH Contract. There is no evidence of, and no basis to conclude, that there was (ever) a contract, or an employment relationship, between the Applicant and the Respondent. [51] I find that the evidence discloses that the Applicant was employed by Bespoke, and was assigned by Bespoke (via a genuine labour hire arrangement) to work at the Respondent’s business. The Applicant was at no time an employee of the Respondent within the meaning of s.15AA of the Act, or otherwise. Disposition [52] I have determined that the Applicant was not an employee of the Respondent, and that Applicant Case One, and Applicant Case Two have both failed. The Commission therefore does not have the jurisdiction to further consider the Applicant’s case. I will issue a separate order (contemporaneously with the publication of this decision) that the Applicant’s case against the Respondent be dismissed [PR810433]. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR810442> Appearances: [2026] FWC 1941 24 Mr Rafat Barakat, Applicant, appeared for himself. Mr Matthew Peterson, Special Counsel, Hall & Wilcox lawyers, appeared (with permission) for Grimshaw Architects Pty Ltd (Respondent). 1 For the purposes of Part 3-1 of the Fair Work Act 2009 (Act). 2 Digital Hearing Book / Court Book (CB), p.61. 3 Respondent’s Submissions, at [4]-[12] (footnotes omitted), CB, pp.72-73. See also Ms Thihoa Gill Statement, at [23]-[30], CB, pp.121-122. See also CB, pp.113-115. 4 CB, p.84. 5 Ibid, pp.9-13. 6 Ibid, pp.127-132. 7 FP Group Pty Ltd v Tooheys Pty Ltd (2013) 238 IR 239; [2013] FWCFB 9605, at 256-257, [42]-[45]. 8 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, at 436. 9 Dalgety Farmers Ltd (t/as Grazcos) v Bruce (1995) 12 NSWCCR 36, at 47 (paragraphs 4 and 5). See also Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, at [24]-[39]. 10 Section 335 of the Act. 11 Section 15AA of the Act was inserted by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, and commenced operation on 26 August 2024. It does not apply to an application that was already “on foot” before 26 August 2024, but does apply to applications filed after 26 August 2024, such as this one, with respect to relationships in existence or entered into before 26 August 2024. See Fair Work Legislation Act 2024, Schedule 1, Part 17, cl 116-119. 12 Section 15AA(3) of the Act has no application in this case. 13 [1983] 2 NSWLR 597, at 600-601. 14 [1978] UKPC 7; (1978) 52 ALJR 407, at 409-410; [1978] UKPC 7; 18 ALR 385, at 389-390. 15 Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435, at 501. 16 (2000) 204 CLR 333, at 409-410 [230]. 17 Hollis v Vabu Pty Ltd (2001) 207 CLR 21, at 37, [33], citing Holmes, “Agency”, Harvard Law Review, vol 4 (1891) 345, at p 364; Wigmore, “Responsibility for Tortious Acts: Its History”, Harvard Law Review, vol 7 (1894) 315 (Pt 1); 383 (Pt 2). 18 Jiang Shen Cai trading as French Accent v Do Rozario [2011] FWAFB 8307, at [30]. 19 Dalgety Farmers Ltd (t/as Grazcos) v Bruce (1995) 12 NSWCCR 36 at 46, per Kirby A-CJ (as his Honour then was), with whom the other members of the New South Wales Court of Appeal agreed. 20 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (1997) 37 ATR 528, per Winneke P, with whom JD Phillips and Kenny JJA agreed at 533 (citing Mummery J in Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939, 944). 21 (1986) 160 CLR 16. 22 Ibid, at 49. 23 Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939, 944. 24 Dalgety Farmers Ltd (t/as Grazcos) v Bruce (1995) 12 NSWCCR 36 at 46, per Kirby A-CJ (as his Honour then was), with whom the other members of the New South Wales Court of Appeal agreed. 25 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, per Wilson and Dawson, at 37.2. 26 Ibid. 27 ACE Insurance Limited v Trifunovski [2013] FCAFC 3; 209 FCR 146, [102]. This is not to discount the principle that by labelling their relationship an independent contract, the parties cannot alter what is in reality an employment relationship: Australian Mutual Provident Society v Allan [1978] UKPC 7; (1978) 52 ALJR 407, at 409 per Lord Fraser for the Privy Council (otherwise reported as Australian Mutual Provident Society v Chaplin [1978] UKPC 7; (1978) 18 ALR 385 at 389); Re Porter; Re Transport Workers Union of Australia [1989] FCA 226; (1989) 34 IR 179, at 184 per Gray J; WorkPac Pty Ltd v Rossato [2020] FCAFC 84, at [590] per White J. 28 ACE Insurance Limited v Trifunovski [2013] FCAFC 3; 209 FCR 146, [29] per Perram J. See also Barro Group Pty Ltd v Fraser [1985] VicRp 59; [1985] VR 577 at 580 per Kaye, McGarvie and Marks JJ; Climaze Holdings Pty Ltd v Dyson (1995) 13 WAR 487 at 495 per Steytler J, with Malcolm CJ and Rowland J agreeing; Wesfarmers Federation Insurance Ltd v Stephen Wells trading as Wells Plumbing [2008] NSWCA 186 at [39]–[42] per Basten JA, with Hodgson and Handley JJA agreeing. 29 Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 487, per MacKenna J at 526. [2026] FWC 1941 25 30 The question is not whether in practice the work was done subject to direction and control exercised by supervision, or whether supervision was possible. Rather, the question is whether ultimate authority over the person in the performance of his or her work resided in the employer or principal so that the person was subject to orders and directions in the ‘actual performance’ of such work, see, Humberstone v Northern Timber Mills (1949) 79 CLR 389, per Dixon J at 404. 31 Australian Mutual Provident Society v Allan (1978) 52 ALJR 407, 409; 18 ALR 385, 389 (endorsed in Cai (t/as French Accent) v Do Rozario (2011) 215 IR 235; [2011] FWAFB 8307, [21]). 32 Massey v Crown Life Insurance Co [1978] 1 WLR 676; [1978] 2 All ER 576: “If, after considering all other matters, the relationship is ambiguous and is capable of being one or the other, then the parties can remove that ambiguity by the very agreement itself which they make with one another.” 33 (2011) 215 IR 235; [2011] FWAFB 8307. 34 Ibid, [22]. It has not been necessary to apply the Massey Proposition in this case as I have not found that the relationship between the parties is ambiguous. 35 (2008) 170 IR 288. 36 Ibid, at [18], citing Wilton v Coal and Allied Operations Pty Ltd (2007) 161 FCR 300, and Wilton v Coal & Allied Operations Pty Ltd (2007) 162 IR 264. 37 (2013) 238 IR 239; [2013] FWCFB 9605. 38 [2011] FCA 1176; (2011) 198 FCR 174. 39 (2003) 133 FCR 438. 40 (2013) 238 IR 239, at 246-247, [19]-[20]. 41 [2010] FCA 1163; (2010) 80 ACSR 56. 42 [2026] FWC 489. 43 Ibid, at [23]-[28]. 44 [2026] FWCFB 90. 45 Ibid, at [9], [16] (emphasis added, and see also at [25]-[28]). See also Travis Cording v Schneider Electric (Australia) Pty Limited [2024] FWCFB 462, at [12]-[18]. 46 CB, p.139. Email dated 31 July 2025 referring to discussion between the Applicant and Ms Thihoa Gill (of the Respondent) the day prior (i.e. on 30 July 2025). 47 Ibid. 48 Ibid. 49 WorkCover Authority (NSW) v Labour Cooperative Ltd (No 1) 108 IR 283, at [28] (per Hungerford J); Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104; (1991) 37 IR 380, at 387 (per Wilcox, Burchett and Ryan JJ); Macdonald v Australian Wool Innovation Ltd [2005] FCA 105, at [182]-[183]. 50 Ibid. 51 CB, pp. 16-28. 52 Ibid, p.16. 53 Ibid. 54 Ibid, p.28. 55 Ibid, pp.108-109. 56 WorkCover Authority (NSW) v Labour Cooperative Ltd (No 1) 108 IR 283, at [28] (per Hungerford J); Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104; (1991) 37 IR 380, at 387 (per Wilcox, Burchett and Ryan JJ); Macdonald v Australian Wool Innovation Ltd [2005] FCA 105, at [182]-[183]. 57 CB, pp.108-109 (formatting and numbering errors removed from original). 58 Ms Thihoa Gill Statement, at [17]-[22], CB, pp.120-121. 59 Ibid. 60 CB, p.112. 61 Janeke Statement, at [34]-[37], CB, p.82. 62 Ibid, at [35], CB, p.82. 63 Transcript, PN282. 64 Although, in Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 330D, the NSW Court of Appeal held actual subjective intention to be a factor that the law takes into account in determining whether a contract exists. 65 Of course, the Respondent never made any payments to the Applicant, and deducted no income tax from any payments it made to Bespoke. 66 See s.342(1) of the Act, Items 1 and 2 of the Table. 67 CB, p.188. [2026] FWC 1941 26 68 In relation to (a) to (e), and (g), see Exhibits A1 and A2, and R1, and CB, p.188, and Transcript, PN97, PN172- PN173, PN178. 69 CB, pp.127-132. 70 Ibid, pp.9-13. 71 At one point during the hearing (Transcript, PN103), the Applicant asserted that he never ‘signed’ a contract with Bespoke. However, this is not relevant. The offer and acceptance between the Applicant and Bespoke occurred via email, whereby the Applicant agreed and promised to be bound by the Bespoke Contract when he emailed Bespoke saying that he accepts the assignment with the Respondent (CB, p.12). 72 See, for example, CB, p.89. 73 CB, p.12, email from the Applicant to Bespoke (Ms Waters), 14 March 2025. 74 See, for example, CB, p.96.