[2026] FWC 2184 The attached document replaces the document previously issued with the above code on 17 June 2026. Decision has been amended to reflect correct decision date. Associate to Deputy President Wright Dated 17 June 2026 1 Fair Work Act 2009 s.365—General protections Lacey Lopez v W Aesthetics Pty Ltd, Nathalie Wessels, Louis Wessels (C2026/493) DEPUTY PRESIDENT WRIGHT SYDNEY, 17 JUNE 2026 Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant was an employee – applicant found to be an independent contractor – application dismissed. Introduction and outcome [1] Ms Lacey Lopez has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of allegations that she was dismissed from her employment with W Aesthetics Pty Ltd trading as One Cosmetic (One Cosmetic) in contravention of Part 3-1 of the FW Act. [2] One Cosmetic has claimed that Ms Lopez was engaged as an independent contractor and as such, there has been no dismissal. [3] Before dealing with the dispute under s.368, I must be satisfied that Ms Lopez was employed by One Cosmetic and was dismissed from her employment. [4] For the reasons that follow, I have concluded that Ms Lopez was not an employee of One Cosmetic and was not dismissed by One Cosmetic for the purposes of s.365. The hearing [5] The matter was listed for a case management conference on 4 March 2026 where directions were made for the filing and serving of evidence and submissions. [6] The matter was listed for hearing on 20 March 2026. [7] At the hearing, Ms Lopez represented herself and gave evidence on her own behalf. [2026] FWC 2184 DECISION [2026] FWC 2184 2 [8] I granted One Cosmetic permission to be legally represented at the hearing pursuant to s.596 of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently having regard to the complexity of the matter. [9] The following witnesses gave evidence on behalf of One Cosmetic: 1. Ms Nathalie Wessels, Clinic Manager; 2. Mr Philip Jacombs, Bookkeeper/Administrator; and 3. Ms Jade Pike, Medical Secretary/Receptionist. [10] All witnesses attended the hearing and were subject to cross-examination. Factual Background [11] Ms Lopez performed dermal therapy and face and body treatment services at a clinic operated by One Cosmetic in Double Bay, New South Wales, from on or about 9 December 2022 to 11 January 2026.1 [12] One Cosmetic is a cosmetic practice with a team of plastic surgeons, cosmetic physicians, registered nurses and dermal aestheticians providing a range of both surgical and non-surgical treatment options to clients (also referred to as patients).2 [13] Ms Lopez agreed during cross-examination that she is a qualified dermal therapist and has worked in this role for about 13 years. Ms Lopez’s qualifications include a Diploma of Beauty Therapy, which she was awarded in 2012 by the Australia National College of Beauty, a Laser Safety Course which she completed in 2023 at the Australian Institute of Adult Education and a Certificate 4 in Massage Therapy. [14] The relationship between Ms Lopez and One Cosmetic was regulated by written contracts dated 9 December 2022 (the First Contract) and 21 January 2025 (the Second Contract) which both had the title ‘Facilities Services Agreement’. The parties agreed that the conclusion of the First Contract and the commencement of the Second Contract did not result in any material changes to the working relationship apart from the rate paid on certain machine treatments and the percentage paid on product sales.3 The Contract [15] Clauses 3.1 and 3.2 of the Second Contract provided that One Cosmetic would provide Ms Lopez with facilities, premises and services as are reasonably necessary to enable her to provide patient services, including telephone, power, water, air conditioning, heating, maintenance, repair and cleaning services; relevant plant and equipment including medical equipment and devices; secretarial, administrative and other support staff; consumables, including supplies; information technology; debt collection services; patient billing services; printing and stationery; and accounting services. The Second Contract provided at clause 4.1 that Ms Lopez would pay a service fee in respect of the facilities, premises and services.4 [2026] FWC 2184 3 [16] ‘Patient services’ were defined in item 5 of Schedule 1 to the Second Contract as dermal services provided by Ms Lopez at One Cosmetic’s premises including Hydrafacials, Facials, Consultation, Treatment planning, Lasers and Body Treatments.5 [17] Clause 3.3 of the Second Contract provided that Ms Lopez would be provided with an email address owned by One Cosmetic.6 [18] Clauses 4.3 and 4.4 of the Second Contract provided respectively that Ms Lopez would be liable for 50% of any refunds provided to patients and 50% of the costs associated with products used in the event that a patient did not pay for the services provided by Ms Lopez.7 [19] Clause 5 of the Second Contract required Ms Lopez to create and maintain medical records for patients which remained the property of One Cosmetic. However, the medical records could be transferred to Ms Lopez at the conclusion of the Second Contract at the request of Ms Lopez and the patient.8 [20] Clause 6.2 of the Second Contract required Ms Lopez to acknowledge that she is solely responsible for the provision of health or advice to patients in delivering patient services. Clause 6.3 provided that Ms Lopez was responsible for any revision work regarding the patient services.9 [21] Clause 8.2 and Item 6 of Schedule 1 to the Second Contract required Ms Lopez to perform the services 2-4 days per week as the schedule allows.10 [22] Clause 9.1 of the Second Contract required Ms Lopez to obtain and maintain public liability, workers’ compensation and professional indemnity insurance.11 Clause 10.1 required Ms Lopez to indemnify One Cosmetic against all claims arising from the performance of patient services by Ms Lopez.12 [23] Clause 13 of the Second Contract provided that Ms Lopez may take photos of patients before and after treatments using One Cosmetic’s equipment and that Ms Lopez and One Cosmetic own shared rights to those photos.13 [24] Clause 14 of the Second Contract prevented Ms Lopez from communicating with practice patients and accepting ‘friend requests’ from patients of One Cosmetic through social media channels following the termination of the Second Contract.14 [25] Clause 17.1 of the Second Contract permitted Ms Lopez to assign her rights and obligations under the Second Contract with the written consent of One Cosmetic provided that the proposed assignee had the same area of expertise and qualifications and was capable of providing the same patient services as Ms Lopez. Clause 17.2 stated that the parties were not and were not to be taken to be in a partnership, joint venture, employment, principal and contractor or fiduciary relationship. Clause 17.4 stated that nothing in the Second Contract precluded Ms Lopez from entering into agreements to provide patient services to other organisations and health facilities, provided that such other agreements did not create a conflict of interest (or have the potential to do so) for Ms Lopez or One Cosmetic. [26] The Second Contract defined the Service Fee as being: [2026] FWC 2184 4 • 50% of the day’s Net Profit after the Cost Price of all Patient Services have been deducted, plus a GST charge of the total amount billed for Patient Services in that day is between $0 and $4,999 then the Service Fee; and • 40% of the day’s Net Profit after the Cost Price of all Patient Services have been deducted, plus a GST charge of the total amount billed for Patient Services in that day is $5,000 or more.15 [27] However, if the treatment involved the use of specified equipment, a flat fee of $50 per treatment would be credited, until such time as One Cosmetic determines.16 Evidence of Mr Jacombs [28] Mr Philip Geoffrey Jacombs is engaged through his company by One Cosmetics to provide bookkeeping services.17 Mr Jacombs explained that from about October 2024, the remuneration process which applied to Ms Lopez was as follows. [29] Each fortnight in arrears on a Tuesday, Mr Jacombs extracted all client treatments performed by Ms Lopez in the One Cosmetic clinic. Details of each treatment were contained in the extract, as was the amount paid by the client.18 [30] Mr Jacombs removed from the calculations all package payments as these payments were made for future services and only the costs of treatments performed in the relevant fortnight were included.19 [31] Mr Jacombs separated payments for treatments from payments for product sales. Ms Lopez was paid a 25% commission on net sales of retail products.20 [32] Mr Jacombs said that he identified the treatments using clinic equipment which had not been paid off as a flat rate per treatment was applicable to these treatments. Mr Jacombs explained that One Cosmetic purchased dermal therapy equipment and that the dermal therapists using that equipment paid a flat rate per treatment until the equipment was paid off.21 [33] For all other treatments, Mr Jacombs calculated One Cosmetic’s cost of consumables and on-costs to be deducted from the client payment. The remainder, minus GST was paid to Ms Lopez.22 Evidence of Ms Lopez [34] Ms Lopez used One Cosmetic’s facilities, equipment, and booking systems. Ms Lopez said that her working hours were determined by One Cosmetic through the clinic roster and that she did not have the ability to freely determine her working hours. Ms Lopez said that if she wished to change her working hours, take leave, or alter her availability, she was required to seek approval from management of One Cosmetic. Ms Lopez said that she could not independently structure her working day and was limited to designated break periods determined by One Cosmetic. Ms Lopez said that she was not permitted to independently fill appointment gaps, run promotions, or adjust pricing to attract clients without approval from [2026] FWC 2184 5 One Cosmetic. Ms Lopez said that her requests to run promotions or adjust pricing were subject to approval by One Cosmetic and were often denied.23 [35] Ms Lopez said that she was not permitted to independently organise training, attend industry meetings, meet with representatives, or introduce devices or services without the approval of One Cosmetic. Ms Lopez said that One Cosmetic controlled the services offered within the clinic and whether she could expand or develop her practice.24 [36] Ms Lopez said that she attended meetings, training, or other clinic sessions when management of One Cosmetic required her to do so. Ms Lopez said that the prices charged to patients were set by One Cosmetic.25 [37] Ms Lopez said that she was fully integrated into One Cosmetic’s clinic operations. Ms Lopez said that she was required to use One Cosmetic’s booking system to manage appointments. Ms Lopez said that she was not permitted to maintain independent booking systems or client records.26 [38] Ms Lopez said that reception staff employed by One Cosmetic managed her appointments as part of the clinic operations. Ms Lopez said that she did not have independent control over her client list and was not permitted to access, retain, or independently contact clients outside One Cosmetic’s systems. Ms Lopez said that her clients were treated as clients of the clinic rather than her personal clients. Ms Lopez said that patients were booked through One Cosmetic and paid One Cosmetic, rather than Ms Lopez. Ms Lopez said that she did not invoice patients directly or collect treatment fees from them. Ms Lopez said that when she worked at One Cosmetic’s clinic, she wore a One Cosmetic branded uniform, scrubs or wore One Cosmetic approved business casual colours and looks.27 [39] Ms Lopez said that she was presented publicly as part of One Cosmetic through posts on its website, social media and publicity material. Ms Lopez also had her own clinic email address.28 [40] Ms Lopez said that she was required to personally perform all treatments allocated to her and was not permitted to subcontract, delegate, or arrange for another practitioner to perform treatments on her behalf who was not already a staff member of the clinic.29 [41] Ms Lopez said that she was paid based on a percentage of treatments or fixed amounts determined by One Cosmetic. Ms Lopez said that she did not have the ability to independently negotiate her remuneration structure. Ms Lopez said that initially, she issued invoices to One Cosmetic for a few months in 2024. The process was that patient would pay One Cosmetic, Ms Lopez would invoice One Cosmetic and One Cosmetic would pay Ms Lopez. Ms Lopez said that subsequently, payments were calculated and processed by One Cosmetic’s accountant and paid fortnightly. One Cosmetic determined the percentage or flat rate payable to Ms Lopez for treatments and products.30 [42] Ms Lopez said that she was responsible for her own tax and insurance arrangements and did not receive superannuation, annual leave or paid sick leave from One Cosmetic.31 [2026] FWC 2184 6 [43] Ms Lopez said that she did not operate an independent business from One Cosmetic’s clinic. Ms Lopez said that she did not have access to One Cosmetic’s internal records showing cost price or whether particular machines had been paid off, even though those matters affected the amounts paid to her.32 [44] Ms Lopez said that her work was performed entirely within One Cosmetic’s clinic and business structure. Ms Lopez said that she did not operate an independent enterprise separate from One Cosmetic’s business. Ms Lopez said that she was economically dependent on One Cosmetic for her income during the period of engagement.33 Evidence of Ms Wessels [45] Ms Wessels is the Clinic Manager of One Cosmetic. Ms Wessels explained that prior to Ms Lopez ceasing work at One Cosmetic, there were 10 staff members, including seven employees and three independent contractors. The three independent contractors comprised the accounts manager, Ms Lopez and a cosmetic registered nurse. Ms Wessels said that Ms Lopez was one of four staff members who provided dermal therapy to patients. The other three staff members are all employees and one of them is a cosmetic registered nurse. Ms Wessels said that Ms Lopez was the only dermal therapist who was not an employee of One Cosmetic.34 [46] Ms Wessels said that there was a significant difference between the amounts paid by One Cosmetic to employees and independent contractors. Ms Wessels said that two dermal therapists who are employed by One Cosmetic earn $45 per hour and the other earns $2,200 per week. Ms Wessels said that each of them worked approximately the same number of days per week as Ms Lopez. Ms Wessels said that in 2025, Ms Lopez was paid a total of $124,669.51 by One Cosmetic.35 [47] Ms Wessels said that the Second Contract is in line with common practices in the industry regarding practitioners and medical clinics. Ms Wessels said that in her experience, clinics will typically provide equipment, goodwill and software (such as booking systems and invoicing) for the convenience of the practitioner. In this way, the startup and ongoing costs for the practitioner to practice is borne by the clinic and, in return, the practitioner is able to generate revenue by servicing patients with a portion of that revenue used to pay the clinic for providing the equipment, goodwill and software.36 [48] Ms Wessels said that the equipment within the non-surgical aesthetics and laser industry is large in size which makes transporting the equipment highly impractical. Further, it is not commercially viable for independent contractors to purchase the equipment themselves.37 [49] Ms Wessels said that there was no restriction or impediment to Ms Lopez working with other clinics, practices or in promoting her own business as she wished. Ms Wessels said that One Cosmetic was nevertheless concerned to ensure that when Ms Lopez undertook services pursuant to the Second Contract, these services complied with One Cosmetic's guidelines/standards and relevant legislation, such as the Privacy Act 1988 (Cth) and the Health Records and Information Privacy Act 2002 (NSW).38 [50] Ms Wessels said that One Cosmetic provides equipment to employees and independent contractors to service clients. This includes specialised equipment providing non-surgical [2026] FWC 2184 7 treatment to patients, including cosmetic lasers and machine-based facials and body sculpting. One Cosmetic provides training to both employees and independent contractors on the use of these machines to ensure that they are following the appropriate protocols and procedures of the equipment for the safety of the client.39 [51] Ms Wessels said that once Ms Lopez was trained on the equipment, One Cosmetic did not direct or instruct Ms Lopez on how to provide treatment. Ms Wessels said that Ms Lopez would create ‘client treatment plans’ at her own discretion, which she provided to patients, and those plans included the treatment or equipment that would be applied to the patient according to their needs. Ms Wessels said that One Cosmetic exercised no control and did not direct Ms Lopez on which treatments to apply to the patient or how that treatment was to be applied.40 [52] Ms Wessels said that pursuant to the Second Contract, Ms Lopez was required to use One Cosmetic's email, booking systems and patient records to ensure One Cosmetic had a record of information relating to all patients serviced at its clinic. This is to ensure that One Cosmetic complies with privacy legislation and is able to review any risks to its practice.41 [53] Ms Wessels said that clause 8 of the Second Contract built flexibility into the days or hours Ms Lopez would provide services. Ms Wessels said that Ms Lopez was free to work as much or as little as she wished. Ms Wessels said that One Cosmetic utilised its booking system to track the days Ms Lopez was available to work so that patients could schedule their appointments based on Ms Lopez’s availability (if they requested Ms Lopez specifically). Ms Wessels said that Ms Lopez’s hours of work were dependent on the availability of patients and which days she wished to provide services.42 [54] Ms Wessels said that Ms Lopez’s usual practice was to input her availability into the roster. Ms Wessels said that when Ms Lopez inputted a whole week or blocks of leave, Ms Wessels would occasionally query Ms Lopez as to her availability. Ms Wessels said that Ms Lopez was free to let her know if she was not available on any of the proposed rostered days and Ms Wessels would then block those dates off in the bookings calendar to avoid anyone booking patients in to see Ms Lopez on those dates.43 [55] Ms Wessels said that at all times, Ms Lopez was responsible for determining which days she wished to attend the clinic. Ms Wessels said that Ms Lopez was not required to be at the clinic if she was not servicing patients. Ms Wessels said that Ms Lopez was not required to obtain her approval (or anyone else's approval at One Cosmetic) if she wished to take a leave day. Ms Wessels said that she simply noted Ms Lopez’s leave days in the calendar if Ms Lopez informed Ms Wessels about them in advance. Sometimes, Ms Lopez would access the calendar system directly and mark her leave days without informing Ms Wessels in advance.44 [56] Ms Wessels said that if Ms Lopez was unavailable to service a patient, One Cosmetic provided Ms Lopez with the option to either reschedule the patient, or One Cosmetic would reallocate the patient to another available practitioner.45 [57] Ms Wessels said that One Cosmetic supplied scrubs with its own branding which Ms Lopez was free to use. Ms Wessels said that Ms Lopez was not required to wear One [2026] FWC 2184 8 Cosmetic's scrubs and that she regularly wore her own clothes at her discretion, typically at least once or twice a week.46 [58] Ms Wessels said that the only times that One Cosmetic requested that Ms Lopez wear One Cosmetic's scrubs was when One Cosmetic was undertaking promotional media to support its goodwill.47 [59] Ms Wessels said that Ms Lopez promoted her own business, Space Skin & Aesthetics Pty Ltd t/as Space Consulting, while performing services at One Cosmetic. Ms Wessels said that Ms Lopez promoted her personal brand, ‘laceylopez.skin’ and business, Space Consulting on Instagram and LinkedIn and provided the Commission with screenshots of examples of such posts.48 [60] Ms Wessels said that she was not aware until reviewing One Cosmetic's records to make her statement that Ms Lopez provided patients with personalised discount codes for skincare brands which are not sold by One Cosmetic which resulted in Ms Lopez receiving commissions from those brands.49 [61] Ms Wessels said that an example of Ms Lopez working with other brands not affiliated with One Cosmetic is on 1 March 2025, Ms Lopez emailed Ms Danielle Aesthetica, the founder of Aesthetica, based in Melbourne, seeking to collaborate with Aesthetica. Ms Wessels provided the Commission with an email dated 28 May 2025 which Ms Lopez received from Aesthetica regarding her patient notes and availability schedule to attend services in Melbourne.50 [62] Ms Wessels said that another example of Ms Lopez working with other brands not affiliated with One Cosmetic is on 16 October 2025, Ms Lopez received an influencer agreement with SmilePath. Ms Lopez signed this influencer agreement on 21 October 2025 and, in doing so, used One Cosmetic's email address. Ms Wessels provided the Commission with the relevant email chain and the signed influencer agreement.51 [63] Ms Wessels said that Ms Lopez has also hired her own PR agent, Thena from OnePR.52 [64] In relation to Ms Lopez’s claims of economic dependency, Ms Wessels said that Ms Lopez had total control in terms of who she worked for and when. Ms Wessels said that Ms Lopez conducted her own business, Space Consulting, at the same time as she was servicing patients at One Cosmetic. Ms Wessels said that One Cosmetic did not prevent Ms Lopez from promoting her own business.53 [65] Ms Wessels said that she was aware of at least two other clinics where Ms Lopez worked during her time contracting to One Cosmetic and that Ms Lopez was unavailable for weeks at a time during 2025 so that she could travel to Melbourne and provide services to another patient of hers.54 Relevant Legislation [2026] FWC 2184 9 [66] The application has been brought under s.365 of the FW Act which provides: 365 Application for the FWC to deal with a dismissal dispute If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute. [67] It is necessary for Ms Lopez to establish that she was ‘dismissed’ by One Cosmetic. The dictionary at clause 12 of the FW Act refers to section 386 for the definition of ‘dismissed’. [68] Section 386 of the FW Act provides: 386 Meaning of dismissed (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. (2) However, a person has not been dismissed if: (a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or (b) the person was an employee: (i) to whom a training arrangement applied; and (ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or (c) the person was demoted in employment but: (i) the demotion does not involve a significant reduction in his or her remuneration or duties; and (ii) he or she remains employed with the employer that effected the demotion. (3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part. [69] Section 386(1) makes plain that a dismissal can only occur under the FW Act in the context of a person’s employment. One Cosmetic disputes that Ms Lopez was dismissed within the meaning of s.386 as it contends that it has never employed Ms Lopez. Whether an individual is an employee of a person or whether a person is an employer of an individual for the purposes of the FW Act is to be determined in accordance with s.15AA of the Act. Section 15AA provides: [2026] FWC 2184 10 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 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: (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. [70] Section 15AA requires me to ascertain the real substance, practical reality and true nature of the relationship between Ms Lopez and One Cosmetic to determine whether there was an employment relationship between them. For the purpose of making this assessment, I am required to consider the ‘the totality of the relationship between the parties’. [71] In examining the totality of the relationship between the parties,55 relevant matters include whether the putative employee’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise56 and the existence of a right of control by a putative employer over the activities of the putative employee.57 [72] Other matters which may be relevant in determining the nature of the relationship include the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the deduction of income tax and the delegation of work.58 [73] I consider these matters below. Control [74] The parties were largely in agreement in relation to the factual matters which are relevant to determining whether Ms Lopez was an employee or an independent contractor. The only area of significant disagreement was the extent to which Ms Lopez could choose her own working hours and whether she required permission from One Cosmetic when taking time off. [2026] FWC 2184 11 [75] The evidence shows that there were some discussions and negotiation between Ms Wessels and Ms Lopez in relation to working hours. For example, there was an email from Ms Wessels dated 17 May 2025 which stated: Hi Team, I'll confirm the fortnightly roster on Monday, for now I've attached Monday & Tuesday. If you have any questions, please contact me. [76] Ms Wessels then sent a further email to Ms Lopez stating, ‘This is what I have scheduled for the next fortnight, see attachment. Does this work for you?’. [77] These emails indicate that One Cosmetic had a degree of control over Ms Lopez’s working hours. Although Ms Lopez could indicate that she was unavailable before a roster was prepared, it appears that once rosters were confirmed, Ms Lopez was expected to be available in accordance with the roster. This ensured that One Cosmetic could book appointments with patients at times that Ms Lopez was available, as indicated in the roster. [78] In relation to the performance of work, I accept Ms Lopez’s evidence that she was trained in the equipment used by One Cosmetic for the dermal therapy services which she provided to patients, and that she was expected to follow One Cosmetic’s clinic protocols in relation to preparation and aftercare when conducting procedures. However, I find that Ms Lopez prepared treatment plans for patients and conducted procedures without supervision by One Cosmetic. Whether Ms Lopez was working in her own business or One Cosmetic’s business [79] The parties did not explain how Ms Lopez came to work for One Cosmetic, however One Cosmetic tendered an email from Ms Lopez to One Cosmetic dated 11 December 2022 which relevantly provided: Please find I have attached a little list of services I will be providing with times and recommended pricing. I left some blank as I wanted to do some research on what the RRP was from head office. … I had a think and having my pay scaled will be really motivating for me, please would love any input. on average I can bill 3 to 6k a day • 0-3K=50/50 • 3-6K=60/40 • 6K+=70/30 (can you please let me know what cost price you want me to deduct off all skin treatments) [80] Ms Lopez agreed in cross-examination that she wanted to work for One Cosmetic as an independent contractor rather than an employee. It appears from Ms Lopez’s email of 11 December 2022 that it was Ms Lopez’s suggestion that she be paid a percentage of the amount that her patients were charged, rather than receiving an hourly rate of pay. Ultimately, Ms Lopez and One Cosmetic agreed that Ms Lopez would pay a percentage of the amount received for patient services in respect of the use of premises and equipment and receive the balance as her payment under the Second Contract. One Cosmetic submitted that the contractual arrangement for Ms Lopez to receive part of the revenue of the One Cosmetic’s business suggests that Ms [2026] FWC 2184 12 Lopez was taking on some of the risk involved in the business and that she had an interest in attracting and retaining clients/patients (notwithstanding that the patients, were ultimately, patients of One Cosmetic).59 I accept this submission and find that it is a matter which weighs in favour of a finding that Ms Lopez was working in her own business as an independent contractor. [81] Other matters which weigh in favour of a finding that Ms Lopez was working in her own business are that under the Second Contract: • Ms Lopez was liable for 50% of any refunds provided to patients and 50% of the costs associated with products used in the event that a patient does not pay for the services provided by Ms Lopez; • Ms Lopez was solely responsible for the provision of advice to patients who she provided services to and indemnified One Cosmetic against all claims arising from the performance of patient services by Ms Lopez; and • Ms Lopez was permitted to provide patient services to other organisations and health facilities, provided that such other agreements did not create a conflict of interest (or have the potential to do so) for Ms Lopez or One Cosmetic. [82] In respect of working for other businesses, Ms Lopez promoted her own business, Space Consulting, worked for Aesthetica and entered into a contract with SmilePath while working for One Cosmetic. Ms Lopez said that during her engagement by One Cosmetic, she was verbally advised that she could not perform work for a plastic surgeon. Ms Wessels said that the work that Ms Lopez was intending to undertake for the plastic surgeon involved divulging the intellectual property of One Cosmetic and was prohibited by the terms of the Second Contract. [83] Matters which weigh in favour of a finding that Ms Lopez was working in One Cosmetic’s business are: • Ms Lopez’s patients were patients of One Cosmetic; • Ms Lopez sometimes wore One Cosmetic branded scrubs; • The prices charged to patients were set by One Cosmetic. Patients paid One Cosmetic for the services provided by Ms Lopez; and • Ms Lopez was required to use One Cosmetic’s booking system to manage appointments and was not permitted to maintain independent booking systems or patient records. [84] Ms Lopez also relied upon the fact that she used One Cosmetic’s facilities and equipment as a matter which favours a finding that she was an employee. However, it is not strictly correct that Ms Lopez used the facilities and equipment of One Cosmetic in the same way that an employee would use the facilities and equipment of their employer in the course of an employment relationship. In Ms Lopez’s case, she was required to pay for the use of One Cosmetic’s facilities and equipment, which would not usually be a feature of an employment relationship. [85] Ms Lopez submitted that she was required to personally perform all treatments allocated to her and was not permitted to subcontract, delegate, or arrange for another practitioner to [2026] FWC 2184 13 perform treatments on her behalf who was not already a staff member of the clinic. However, this submission is inconsistent with the written terms of the Second Contract which permit Ms Lopez to assign her rights and obligations with the written consent of One Cosmetic provided that the proposed assignee has the same area of expertise and qualifications and is capable of providing the same patient services as Ms Lopez. Although the Second Contract did not provide an unconditional right to Ms Lopez to delegate her work, it is not known whether One Cosmetic would in fact hinder Ms Lopez from delegating her work, given that Ms Lopez had not sought to exercise these rights under the Second Contract. Other matters [86] The evidence shows that Ms Lopez did not accrue leave and was not paid superannuation. One Cosmetic did not deduct income tax from the payments it made to Ms Lopez. Ms Lopez was responsible for paying her own tax. Ms Lopez purchased her own professional indemnity and public liability insurance in accordance with her obligations under the Second Contract. All these matters are indicative of an independent contractor relationship. Conclusion in relation to whether Ms Lopez was employed by One Cosmetic [87] I have considered the true substance, practical reality and true nature of the relationship between Ms Lopez and One Cosmetic, having regard to the totality of the relationship between Ms Lopez and One Cosmetic including the terms of the Second Contract and how it was performed in practice. This includes consideration of whether Ms Lopez was working in her own business or One Cosmetic’s business and the degree of control, the mode of remuneration, the provision of equipment, the hours of work, the provision for holidays and the deduction of income tax. [88] Although there was evidence of One Cosmetic exercising control in relation to Ms Lopez’s working hours and of Ms Lopez being integrated to some extent in One Cosmetic’s business, these matters are not determinative when considered with all of the other evidence. [89] In my view, the fact that Ms Lopez was paid by reference to the fees derived from the services she provided, performed work for other organisations while engaged by One Cosmetic and was not supervised by One Cosmetic when performing dermal therapy services establishes that Ms Lopez was not engaged by One Cosmetic as an employee. This is consistent with the terms of the Second Contract and the parties’ practices with respect to taxation and not observing employee entitlements. Conclusion [90] I have determined that Ms Lopez was not an employee of One Cosmetic and therefore was not dismissed by One Cosmetic within the meaning of ss.365 and 386 of the FW Act. I dismiss the application. [2026] FWC 2184 14 DEPUTY PRESIDENT Appearances: Ms L. Lopez, Applicant for herself Mr P. Sharp, Counsel for the Respondent Hearing details: 2026 20 March In person, Sydney Printed by authority of the Commonwealth Government Printer <PR810962> 1 Witness Statement of Lacey Lopez dated 11 March 2026 (Lopez Statement) [1], Digital Hearing Book (DHB) 11 2 Statement of Nathalie Wessels dated 19 March 2026 (Wessels Statement) [10], DHB 235 3 Lopez Statement [46]-[47], DHB 13 4 DHB 249-250 5 DHB 263 6 DHB 250 7 Ibid 8 DHB 250-251 9 DHB 252 10 DHB 252, 263 11 DHB 252 12 DHB 253 13 DHB 254 14 DHB 254-255 15 DHB 262 16 Ibid 17 Statement of Philip Geoffrey Jacombs dated 19 March 2026 [1]-[3], DHB 151 18 Ibid [11a], DHB 152 [2026] FWC 2184 15 19 Ibid [11b], DHB 152 20 Ibid [11c], DHB 152 21 Ibid [11d], DHB 152 22 Ibid [11e-f], DHB 152 23 Lopez Statement [6]-[12], DHB 11 24 Ibid [13]-[14], DHB 11 25 Ibid [15]-[16], DHB 11-12 26 Ibid [17]-[19], DHB 12 27 Ibid [20]-[25], DHB 12 28 Ibid [26], DHB 12 29 Ibid [27]-[29], DHB 12 30 Ibid [30]-[34], DHB 12 31 Ibid [35]-[36], DHB 12 32 Ibid [40]-[41], DHB 13 33 Ibid [42]-[44], DHB 13 34 Wessels Statement [11], DHB 236 35 Ibid [12]-[14], DHB 236 36 Ibid [17], DHB 236 37 Ibid [18], DHB 236 38 Ibid [19], DHB 236 39 Ibid [28], DHB 237 40 Ibid [29]-[30], DHB 237 41 Ibid [31], DHB 238 42 Ibid [32], DHB 238 43 Ibid [33], DHB 238 44 Ibid [34], DHB 238 45 Ibid [35], DHB 238 46 Ibid [42], DHB 239 47 Ibid [43], DHB 239 48 Ibid [44]-[45], DHB 239 49 Ibid [46], DHB 239 50 Ibid [48]-[49], DHB 239 51 Ibid [52]-[53], DHB 240 52 Ibid [54], DHB 240 53 Ibid [8], DHB 241 54 Ibid [9], DHB 241 55 CFMMEU [2022] HCA 1, [34]; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 29; Hollis v Vabu Pty Ltd (2001) 207 CLR 21, 33 [24] 56 CFMMEU [2022] HCA 1, [39] 57 CFMMEU [2022] HCA 1, [42]; Hollis v Vabu Pty Ltd (2001) 207 CLR 21, 41-45 [47]-[57] 58 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 24 59 Ma v Yan Massage Wynnum West Pty Ltd (2024) 335 IR 57, [38]