1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Mr Bradley Richards v Boatshed One Group Pty Ltd, Mr Joel Putland (C2025/13118) DEPUTY PRESIDENT SLEVIN SYDNEY, 4 JUNE 2026 Application to deal with contraventions involving dismissal – jurisdictional objection – whether the applicant was an employee – whether the applicant was dismissed – found that the applicant was not an employee and not dismissed - application dismissed. [1] Mr Bradley Richards has applied under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute over his dismissal by Boatshed One Group Pty Ltd (Boatshed). Mr Richards alleges that the dismissal involved a contravention of Part 3-2 of the Act. Mr Richards has also named Mr Joel Putland, director and owner of Boatshed as a respondent to the dispute. [2] Boatshed objects to the Commission dealing with the dispute as it says Mr Richards was not an employee, he was engaged under a trial arrangement on the basis that he was an independent contractor and that in any event the arrangement ended by mutual agreement he was not dismissed. [3] In Coles Supply Chain v Milford Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [64] – [65] the Full Court of the Federal Court of Australia made it clear that the Commission only has power to deal with an application under s. 365 of the Act if it is validly made. An application to deal with a dispute over a dismissal will not be validly made if there was no dismissal. The Court also made clear at [67] that where a question arises as to whether there has been a dismissal the Commission must resolve that question before proceeding further. [4] I was provided with witness statements from Mr Richards, Mr Putland, Ms Tessa Putland, Manager for Boatshed, and Mr Garry Matheison, Training Skipper and Deckhand. All of the witnesses were cross examined. I was also provided with various contemporaneous written communications from text messages and emails. Most of the communications between the parties were in writing. The relevant facts necessary to determine the jurisdictional objections are as follows: a) Boatshed is a family owned business which describes itself as tourism operators in Forster, NSW which runs a wide variety of on-water services including scheduled [2026] FWC 1972 DECISION [2026] FWC 1972 2 sightseeing and lunch/dinner cruises, private charters and functions, boat hire services, and whale watching cruises. b) On 20 October 2025 Mr Richards responded to an advertisement for a full-time role with Boatshed. The position was described as Coxswain/ Manager/ Skipper - Tourism Cruises (Forster NSW). It indicated that the role involved employment. It entailed vessel handling, crew management, ensuring regulatory compliance, and customer service. c) In late October and early November there were a series of communications between Mr Richards and Mr Putland. The exchanges were friendly. On 30 October Mr Richards visited Foster to inspect the business. during which it was agreed that Mr Richards was the successful candidate to fill the position and that he would start work in November 2025. Those discussions included on what basis the role would be filled, as employment or through a services agreement. Mr Putland’s intention was that MR Richards would come into the business as a skipper and eventually replace him in running the business. d) On 12 November 2025, without the parties concluding a written agreement as to the arrangements under which the work would be performed, Mr Richards started performing work, including tasks such as training, crew induction, and operational duties. Detailed training schedules and operational checklists were discussed and implemented. Mr Richards was also involved in vessel maintenance, bookings, piloting vessels and customer service. Mr Richards reported to Mr Putland and Ms Putland, who worked in the business in a managerial role, in relation to the work. e) Negotiations about the contractual arrangements continued after the work commenced. Those negotiations included the parties exchanging a draft services contract. The communications included terms such as probation, notice, the provision of accommodation, and non-compete clauses. f) By 18 November a final contract draft was shared and reviewed, reflecting the start date of November 12, 2025, and a six-month initial term. Mr Richards claims that his intention was to ensure that any contract afforded him employee like entitlements including full insurance cover, provided through and paid for by Boatshed, for the work he performed. Mr Richards described this as working under the control the control of Mr and Ms Putland. g) Mr Richards performed work in the weeks commencing 12 November and 19 November 2025. He invoiced Boatshed for “marine operations and management services” for that work. The invoices were headed “TAX INVOICE Brad Richards T/A BoatsAlive” and provided an ABN number. h) In late November 2025 tensions arose regarding training, operational standards, and insurance coverage. [2026] FWC 1972 3 i) Mr Richards last day of work was 29 November 2025. There was some contest in the evidence about the events of that morning. Many of those contests, such as the start times and the precise words used in the conversations are not material to my findings here. Where there is conflict between the account of Mr Richards and the Boatshed’s witnesses, Ms Putland and Garry Matheison, Deckhand, I prefer the evidence of the other witnesses. Mr Richards oral evidence was evasive and argumentative. He avoided answering questions directly. He represented himself in the proceedings and when questioning witnesses where he elicited an answer that he disagreed with he had a tendency to argue with the witness. I also consider the witnesses called by Boatshed gave a more cogent account of the events of the morning. I find the events on that day were as follows: i) The day began as a normal workday. Mr Richards and Mr Putland exchanged text messages about operational matters between 8:00am and 8:21am. ii) Around 8:30 to 9:15am, a conversation took place between Mr Richards and Mr Putland. Ms Putland and Garry Matheison were nearby and within earshot. The discussion related to operational matters and Mr Putland’s expectations. Mr Richards raised the question of insurances which was an outstanding matter in the contract negotiations. iii) Importantly, during the conversation the following exchange occurred: Mr Richards said words to the effect of: "Should we call it?" Mr Putland responded with: "Done". iv) The tone of the conversation was described by all Mr Putland, Ms Putland and Mr Mathieson as direct but not aggressive; there was no shouting or threats. v) Mr Richards went into the nearby office and spoke with Ms Putland about collecting or storing his belongings and asked about staying on the houseboat which he had been using for accommodation for an additional night. Ms Putland told him she would confirm with Mr Putland. Mr Putland agreed that Mr Richards could stay one more night. vi) A short time later Mr Richards sent Mr Putland two text messages; "Hi Joel, just seeking clarification on what you want me to do today. Please advise if you want me to continue with any work or if I should stand down." (at 9.29 am) [2026] FWC 1972 4 and “Joel, I am still waiting for your direction regarding today's work. Please let me know if you require me to do anything further or if I should leave for the day." (at 10.25 am) vii) Mr Putland responded to these messages at 10.30 am as follows: "Brad, There is no hostile attitude as advised I am not well.. It's week 3 and still you can't take basic request to do training with Tessa, everything is far too complicated and everything perceived as an attack on you which it is not. you still don't know the difference between a blue bbq and yellow bbq boat and then argued about it when I was simply trying to teach you about how to use the booking system. We had to give now 4 refunds for the cruise you did solo and you still won't drive due to the insurance which I only got your cv right before cob yesterday as requested by our insurance. You framed it as me not doing what I said which is not t[he case — text truncated]. We need a self starter, no ego, willing to learn and follow direction and not push back against every little thing, it will take time to get our business back to where it was as it was neglected from previous staff not doing what they were paid for. At this stage unless you can step up, drop the ego and learn quickly then I can't see things working out. In regards for today I have double cruises and there is not need for you working today if you are not driving solo, I can't pay master 5 rates to train skippers any longer. It's probably best we just part ways and you find a position more suited to you." viii) Mr Richards responded in a lengthy message that included the following: ... Given your message this morning, I accept that you have now decided to end the engagement. As you have directed that I not work today, I will make arrangements consistent with the end of the engagement. ix) Mr Richards did not perform any further work that day. Mr Putland skippered the cruises that sailed that day. j) On 30 November 2025 there were further written exchanges between Mr Richards and Mr Putland: i) At 8. 19am Mr Putland wrote to Mr Richards: "Brad, Your message is noted. The position remains unchanged. Your services are no longer required, and the accommodation provided was strictly tied to those services. As the contractor arrangement ended at 9am today, the licence to stay on the vessel has ended. You are required to vacate the vessel and return all keys by 10am today. Failure to comply will be treated as trespass and handled by the appropriate authorities. Joel" [2026] FWC 1972 5 ii) At 9.12am Mr Richards replied: "Joel, to avoid any confusion, I have not resigned and I did not agree to an immediate termination. You made the unilateral decision to end the engagement without notice and without any process. As there is no concluded contract, ordinary principles..." iii) At 9.32am Mr Putland wrote: "Brad, Your message is noted. We do not agree with your characterisations or assertions. To avoid unnecessary dispute, we will allow you until 12:00pm today to remove your belongings and return the keys. This is offered purely as a courtesy to allow you to collect your items safely. You are required to leave the vessel by that time. Joel" h) There were then a series of exchanges between 9.35 am and 9.45 am including the following: Mr Putland: "I’ve read your message. I’m not going to debate legal matters with you. Please collect your belongings and return the keys as soon as you are able. Let me know your expected time so arrangements can be made." Mr Richards: "Joel Me either. But that is where we are headed given your stance. My attempt has to deal with all of these matters calmly and rationally and respectfully. You position is untenable and actionable. I’m not engaging in any legal discussion or characterisation." Mr Putland: "Please continue making arrangements to collect your belongings, and let me know your expected time of departure so we can ensure access is safe and orderly." Mr Richards: "I have indicated that I would keep you updated and will do so. I would also caution you to think before making any remarks about me to anyone in the public arena given the defamatory remarks you made about your previous staff in front of your current [staff]." Mr Putland: "I’m not engaging in discussion about allegations or legal matters." [2026] FWC 1972 6 i) Over the course of the afternoon Mr Richards made arrangements to collect his belongings and leave the houseboat. [5] On 4 December 2025 Mr Richards issued an invoice to Boatshed making the following claim: Services Contractual Damages for early termination – six-month engagement commencing 12 November 2025 Minimum 5 days per week at $400 per day (plus GST) Description Qty (days) Unit Price Amount (ex GST) Contractual damages – remainder of 6 – month term (12/11/2025 – 12/05/2026 108.35 $400.00 $43,340.00 Subtotal (ex GST) $43,340.00 GST (10%) 4,334.00 Total $47,674.00 Consideration [6] The test of what constitutes employment is set out in ss. 15 and 15AA of the Act. Section 15 and 15AA relevantly provide as follows: 15 Ordinary meanings of employee and employer (1) A reference in this Act to an employee with its ordinary meaning: (a) includes a reference to a person who is usually such an employee; and (b) does not include a person on a vocational placement. Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State. (2) A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer. Note: Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State. 15AA Determining the ordinary meanings of employee and employer (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 [2026] FWC 1972 7 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. [7] The note in s. 15AA refers to High Court decisions in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek) where the High Court applied the principles of contract interpretation as the approach to determine the nature of the relationship between parties. The Court explained that earlier approaches taken in decisions in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Stevens v Brodribb) and Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (Hollis) did not depart from the long-standing approach to contract interpretation that predated those decisions, where one person had done work for another pursuant to a written contract. Section 15AA sets a statutory test that requires that the real substance, practical reality and true nature of the relationship between the parties be taken into account by considering the totality of the relationship having regard to not only to the terms of the contract governing the relationship, but also to other factors relating to the relationship including, but not limited to, how the contract is performed in practice. [8] Consequently, for the purpose of the Act, in determining the issue of whether a person is an employee or independent contractor, the Commission is required to ascertain the real substance, practical reality and true nature of the relationship between the parties. This is consistent with the approach described in Hollis: It should be added that the relationship between the parties, for the purposes of this litigation, is to be found not merely from these contractual terms. The system which was operated thereunder and the work practices imposed by Vabu go to establishing “the totality of the relationship” between the parties; it is this which is to be considered. [9] The approach to be taken under s. 15AA draws on the approach taken in Stevens v Brodribb and Hollis that has been described the multi-factorial test. That approach was summarised by a Full Bench of the Commission in Jiang Shen Cai trading as French Accent v Do Rozario [2011] FWAFB 8307 (Jiang Shen). There the Full Bench described the focus of the enquiry in Hollis as whether the person carries on a trade or business of his or her own or is working in the business of another; the nature of the work performed and the manner of its performance; and the terms of the contract between the parties. The exercise requires an overall [2026] FWC 1972 8 assessment of all of these matters, where no one factor or series of factors will be determinative, but an assessment must be made of the totality of the relationship. [10] Applying the test outlined in sections 15 and 15AA of the Act to the facts set out earlier requires a consideration of the totality of the relationship, including the terms of any contract and how it was performed in practice. [11] In the current case Mr Richards initially responded to an advertisement for an employment position. The subsequent discussion between the parties however was that Boatshed would bring Mr Richards on in a role whereby he would take over running the business. Mr Putland, who was running the business as a family concern told Mr Richards he wanted to move his family to the Gold Coast. Mr Richards evidence was also to the effect that he understood he would be taking over the business. This became a central part of the recruitment process and discussions about the nature of the role. It led to the drafting of a contract Here the parties had not executed a contract when the work commenced. It is clear however that there was an intention to enter into a contract. The last draft of the contract was updated on 18 November 2025. The draft was structured as a commercial independent contractor arrangement, not employment. The key terms concerning the performance of the work: a) Required Mr Richards to provide Marine Operations & Management Services, including: i) Skipper/Master duties for scheduled operations ii) Managing and training crew and casual staff iii) Assisting with compliance, AMSA requirements, and SMS implementation iv) Coordinating maintenance, safety checks, and defect reporting v) Delivering guest commentary and service vi) Acting as senior point of contact during operations vii) Overseeing boat hire operations and other tasks as requested. b) Set the fee structure and Payment on the following bases: i) The Daily Rate was AUD $400/day + GST ii) A Minimum Fee Guarantee was set after probation, of 5 paid days per week (AUD $2,000/week + GST) iii) Additional days were to be paid at a daily rate for days beyond 5 per week iv) Payment was weekly, via electronic funds transfer; with Mr Richards to issue a tax invoice v) All reasonable business expenses were to be paid directly by Boatshed. c) Provided for termination in the following circumstances: i) During the probation period 7 days’ notice, no penalty or minimum fee guarantee ii) After probation 4 weeks’ notice by either party iii) Boatshed may terminate with 14 days’ notice for repeated issues [2026] FWC 1972 9 iv) Immediate termination was available for serious breach, misconduct, or safety concerns v) Boatshed may also terminate with 14 days’ notice for business changes. [12] The draft also included detailed insurance and indemnity provisions. It included confidentiality, intellectual property, and non-compete obligations which were extensive and to apply after termination. Communications between the parties show that the contract had not been finalised because the insurance arrangements were not in place. Communications between Mr Richards and Mr Putland in the days prior to the termination of the arrangements included Mr Putland seeking details from Mr Richards to finalise those arrangements. [13] I am satisfied that despite not having finalised the written contract Mr Richards commenced working on 12 November 2025 on the basis of the essential terms proposed in the draft contract. The outstanding terms in the negotiations about insurance were not such as to hold up the commencement of the work. The relationship described in that document amounts to a relationship of principal and independent contractor. I take this view based on the terms of the contract and the conduct of the parties, and by making an assessment of the manner in which the work was performed. Mr Richards issued invoices and Boatshed paid in accordance with the arrangements in the proposed contract. The services provided were in accordance with the description in the contract. When the arrangement ceased Mr Richards made claim for compensation in reliance on the terms of that contract. The parties in their communications referred to the termination of the contractual engagement. The nature of the work performed was a very senior role answering to the owners of the business but with autonomy of matters such as regulatory compliance. The intention and the reality of the services is that Mr Putland was contracting out the running of the business to Mr Richards in circumstances where Mr Putland intended to move from Foster have minimal involvement in the business within a short time to pursue other interests. [14] Mr Richards argued that the control test should be applied to the relationship and claimed that he was at all times subject to the control of Mr and Ms Putland. So far as this was the case I do not consider it as determinative of the matter. The nature of that control was consistent with the Putlands acting ensuring the services provided were consistent with the description in the contract. I accept that in the initial stages directions were given and training was provided. Mr Richards was not engaged for long. During the short time he did perform work he was learning from the Putlands about how the business ran. Any directions given in that regard are not determinative of the exercise of control to the extent that would displace the factors pointing to the relationship being one of principal and contractor. The other matters relied upon by Mr Richards are also not determinative. The claim that he was integrated into the business in a manner suggesting he was employed is not persuasive. To provide the services under the contract it was necessary that he be given access to Boatshed’s business systems and to be included in them. Other factors suggesting a contractor arrangement are the payment structure which involved per diem rates with no specification for hours worked. Contrary to Mr Richard’s submission, this does not suggest an employment relationship. Mr Richard’s invoices were issued through his business name and included the designation “trading as BoatsAlive” indicating that the services were intended to be provided by Mr Richards as an independent contractor conducting his own business providing services as a skipper and performing the tasks set out in the draft contract. [2026] FWC 1972 10 [15] For these reasons I find that Mr Richards was not an employee. Consequently, he was not dismissed by Boatshed, and the Commission does not have jurisdiction to deal with the dispute. [16] The application for the Commission to deal with a dispute under s. 365 of the Act is dismissed. DEPUTY PRESIDENT Appearances: Mr Bradley Richards, the Applicant on his own behalf. Mr Joel Putland for the Respondent. Hearing details: 9 March 2026 Via Microsoft Teams Video Final written submissions: 16 March 2026. Printed by authority of the Commonwealth Government Printer <PR810502>