1 Fair Work Act 2009 s.604 - Appeal of decisions Stephen Nash v RPM Automotive Holdings Pty Ltd and Another (C2026/4) VICE PRESIDENT GIBIAN DEPUTY PRESIDENT BELL DEPUTY PRESIDENT BUTLER SYDNEY, 8 JULY 2026 Appeal against decision [2025] FWC 3800 of Deputy President Masson at Melbourne on 11 December 2025 in matter number C2025/7577 – Application under s 365 of the Fair Work Act 2009 (Cth) for the Commission to deal with a general protections dispute involving dismissal – Application dismissed on ground that the applicant had not be dismissed – Whether applicant was an employee or independent contractor – No arguable case of error – Permission to appeal refused. Introduction [1] Stephen Nash has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the FW Act) against a decision of Deputy President Masson on 11 December 2025 ([2025] FWC 3800), and a consequential order (Print PR794911), dismissing Mr Nash’s application for the Commission to deal with contraventions involving dismissal (the general protections application) on the ground that Mr Nash had not been dismissed. [2] Mr Nash requires permission to appeal under s 604(1) of the FW Act. The matter was listed before us on 18 March 2026 at Melbourne. For the reasons that follow, we have decided to refuse permission to appeal. [3] Mr Nash had been CEO and CFO of his family business, which the Deputy President referred to as the Nash Group. This was no doubt for convenience, because the materials referred to the Nash Family Trust of which Mr Nash was a beneficiary, and several corporate entities in which Mr Nash had an interest, of which at least three were described, at various times, as a trustee of the Nash Family Trust. The Nash Group sold Chapel Corner Service Centre (CCT), in which Mr Nash had been employed, to RPM Automotive Holdings Pty Ltd (RPMAH) pursuant to a Business Sale Agreement (BSA). Under the BSA Mr Nash was able to continue operating other businesses, including an on-line accessories business under the business name of ‘Bits for Blokes’ (B4B), maintenance work, maintaining a property business amongst other interests as well as continuing as CEO of the Nash Group. However, there was a term preventing him from competing with CCT. [2026] FWCFB 168 DECISION [2026] FWCFB 168 2 [4] The BSA provided for employees of CCT, excluding Mr Nash, to remain after the transfer. The BSA made clear that RPMAH would not employ Mr Nash. However, the BSA provided that Mr Nash and RPMAH would enter into an agreement for the provision of services. Mr Nash and RPMAH subsequently executed a Consultancy Agreement (the Consultancy Agreement) under which Mr Nash was to provide management, transition and consultancy services to RPMAH in relation to operating and growing the CCT business. Mr Nash was to render invoices for these services. It was ultimately Mr Nash’s corporate entity, Starchild Advisory Pty Ltd (as Trustee for Starchild Advisory Trust), that rendered invoices to RPMAH for consultancy fees payable to Mr Nash under the Consultancy Agreement. [5] In the decision, the Deputy President considered the issue for determination to be whether Mr Nash had been dismissed, within the meaning of that term as provided by s 386 of the FW Act. He considered the contention advanced by RPMAH that Mr Nash was not an employee and therefore could not have been dismissed. He considered the effect of s 15AA of the FW Act, and relevant authorities as to the distinction between employees and independent contractors. Being satisfied that Mr Nash personally performed work for RPMAH pursuant to a contractual relationship, the Deputy President considered it necessary to determine whether Mr Nash did so as an independent contractor or as an employee. In doing so, he applied the authorities to which he had referred. The Deputy President considered the terms of the contract, the extent to which RPMAH exercised control over Mr Nash’s work, and other relevant indicia. Following a detailed and close consideration of those matters, the Deputy President concluded that, weighing the matters considered, Mr Nash was not an employee of RPMAH and was in fact carrying on a business of his own. Accordingly, the Deputy President concluded that Mr Nash had not been dismissed for the purposes of s 386 of the FW Act, and that the general protections application must be dismissed. He ordered accordingly. Grounds of appeal [6] The grounds set out in Mr Nash’s notice of appeal are lengthy and discursive. We discern the following appeal grounds from the notice of appeal (our summary): (a) First, that the Deputy President erred by finding that the BSA and the Consultancy Agreement were ‘interrelated and interdependent commercial arrangements’. (b) Second, that the Deputy President erred by finding that Mr Nash had agreed under cross examination that the Consultancy Agreement was not a sham. (c) Third, that the Deputy President had erred by considering the strong commercial driver for Mr Nash to maximise the payments to the Nash Group under the BSA, based on the performance of the CCT business during the earn out period, relevant to the question of whether Mr Nash had been an employee at the time of the termination of the Consultancy Agreement. (d) Fourth, that the Deputy President made an error of law by reaching outside of the relationship between individual and person for the purposes of the ‘totality of relationship’ test under section 15AA. [2026] FWCFB 168 3 [7] In his outline of submissions, Mr Nash somewhat recast the grounds but the substance of his contentions remained the same. He added a fifth ground, which is that in light of the other errors for which he had contended, the Deputy President failed to give proper weight to the indicia for the purposes of assessing the test under s 15AA of the FW Act, contrary to its legislative purpose. Consideration [8] As averted to above, an appeal from the Deputy President’s decision may only be brought with the permission of the Commission under s 604(1) of the FW Act. Section 604(2) states that the Commission must grant permission if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment: Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54;(2011) 192 FCR 78 at [44] (Buchanan J). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice: GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27]. [9] Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. In deciding whether to grant permission to appeal, it is not ordinarily necessary or appropriate to conduct a detailed examination of the appeal grounds: Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82] (Siopis, Collier and Katzmann JJ). However, it is necessary to engage with the appeal grounds for the purposes of considering whether they raise a sufficiently arguable case of appealable error to warrant permission to appeal being granted. An appellant must ordinarily demonstrate that there is such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [17] (Gleeson CJ, Gaudron and Hayne JJ); Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29; (2025) 99 ALJR 1185 at [53], [55] (Gageler CJ, Gordon and Beech-Jones JJ) and [83] (Edelman J). Having said that, the fact that a member may have made an error is not necessarily a sufficient basis for permission to appeal to be granted. [10] The finding the subject of ground 1 was clearly open to the Deputy President on the evidence. This is clear from his consideration of the two written agreements. We do not consider that it is critical, as submitted by Mr Nash, that he was not personally party to the BSA and, rather, the BSA was made with a corporate entity that is trustee for the Nash Trust, of which Mr Nash is a beneficiary. That fact does not undermine the Deputy President’s conclusion that the BSA and the Consultancy Agreement were interrelated and interdependent. We discern no arguable case of appealable error in relation to this ground. [11] The concession the subject of ground 2 was as follows: And you never raised the issue about the contract validity, did you? You never said to Rebecca or to Clive in 2025 this arrangement's a sham?---I never said the arrangement's a sham. [12] Mr Nash submits he gave this answer in response to a question about whether he had spoken to identified individuals about the Consultancy Agreement being a sham, or otherwise raised the subject personally while the Consultancy Agreement was ongoing. He submits that it was incorrect to characterise this as a concession that the Consultancy Agreement was not a [2026] FWCFB 168 4 sham in general. In any event, he submits that whether he believed the engagement was a scam is ultimately an irrelevant consideration. [13] We consider the response that Mr Nash gave under cross-examination was ambiguous, and could have had the meaning for which Mr Nash contends. In describing the factors weighing in support of a finding that Mr Nash was an independent contractor, the Deputy President (at [98](1)) described this consideration, relevantly, as follows: The explicit terms in both the BSA and Consultancy Agreement that identified the Applicant as a contractor, which the Applicant warranted to be correct and did not otherwise challenge or claim to be a sham during the term of his engagement. [14] We consider that description to be fair having regard to what was said by Mr Nash in cross-examination. The subjective understanding of the parties as to the legal character of their relationship is not conclusive and will frequently not assist at all in determining whether the relationship is one of employment or an independent contractor relationship: ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146 at [37] (Buchanan J, with whom Lander and Robertson JJ agreed). The character of the relationship is to be assessed objectively. However, in this case, we consider it was open to the Deputy President to take into account the absence of protest on the part of Mr Nash, during the course of the engagement, as relevant to the totality of the relationship in circumstances in which the parties are sophisticated business people and the arrangements in question cannot be regarded as one-sided or unilaterally imposed: Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118; (2020) 278 FCR 502 at [44] (Perram and Anderson JJ) (Dental Corporation v Moffet). We discern no arguable case of appealable error on that ground. [15] As to ground 3, we accept that the question was whether Mr Nash was an employee (and therefore capable of being dismissed for the purposes of s 386 of the FW Act), at the time the relationship came to an end. However, we consider that it was open to the Deputy President, in considering the totality of the relationship, to take into account arrangements that had been in place for a period under the BSA, from the sale until the conclusion of the earn out period on 1 September 2024. He also took into account the fact that the BSA provided for arrangements under which RPMAH would lease properties from the Nash Group, and that this persisted beyond the earn out period. [16] The Deputy President explicitly noted (at [70]) the commercial drivers present during the earnout period were not as strong after it ended and considered the nature of the relationship after that time. In his outline of submissions on appeal, Mr Nash acknowledged this but said the Deputy President had failed to recognise that the difference between the two periods meant the commercial drivers lacked the potential to influence the work arrangement at the time the relationship ended, and had erroneously given weight to the earn out period arrangements as a factor in the decision. [17] In our view, the Deputy President was correct to take into account the commercial reality of the earnout period, which was that the Nash Group benefited financially if CCT performed well, and also that (because Mr Nash was a beneficiary of Nash Group, that is, of the Nash family trust of which at least one Nash Group entity, Mackie & Boochie Pty Ltd, was a trustee), the earn out period arrangement provided Mr Nash with an incentive, over and above receiving consultancy fees under the Consultancy Agreement, to maximise CCT’s performance. For example, in Dental Corporation v Moffet the Full Court considered an arrangement in which [2026] FWCFB 168 5 an independent contractor dentist was receiving payments linked both to his own services and to the performance of the practice as a whole: see at [63] and [74]-[76] (Perram and Anderson JJ). Though the earnout period had ceased in Mr Nash’s case, we consider its existence relevant to understanding the nature of the relationship including as part of the broader commercial context in which the relationship was operating. We discern no arguable case of appealable error in relation to Ground 3. [18] Ground 4 is, in our view, misconceived. Looking at the real substance, practical reality and true nature of the relationship for the purposes of s 15AA of the FW Act may require looking past corporate structures, trusts, and agreements between persons other than the individual (in this case, Mr Nash) and the person (RPMAH) whose relationship is being considered. Again, we discern no arguable case of appealable error. [19] It is sufficient to consider the additional appeal ground raised in Mr Nash’s written outline briefly, as we consider it is derived from the four grounds that can be discerned from the notice of appeal. The ground is that, in light of the errors alleged in the remaining grounds, the Deputy President failed to give proper weight to the indicia for the purposes of assessing whether Mr Nash was an employee for the purposes of s 15AA. As we have not discerned any arguable case of appealable error arising from the first four grounds, we consider it follows that it was open to the Deputy President to take those matters into account, in the manner in which he did, in determining whether Mr Nash was an independent contractor. [20] For these reasons, the appeal fails to raise any arguable case of error in the Deputy President’s decision. In such circumstances, we are not satisfied that it would be in the public interest or otherwise appropriate to grant permission to appeal for the purposes of s 604 of the FW Act. [21] The Full Bench orders that permission to appeal is refused. VICE PRESIDENT Appearances: N Ganeson with R Ajzensztat, solicitors, of HR Legal for Stephen Nash. K Sheridan, of counsel, instructed by Charles Leonidas for RPM Automotive Holdings Pty Ltd and Clive Finkelstein. Hearing details: 18 March 2026. [2026] FWCFB 168 6 Melbourne (in person). Printed by authority of the Commonwealth Government Printer <PR811912>