Sham contracting / dismissing to re-engage as contractor (WA)
doctrinal
WA
sham_contracting_wa
branch: general_protections
s97D misrepresenting contract of employment as services contract; s97E dismissing to re-engage under services contract; s97F false statements to engage under services contract. WA analogue to FW Act s357-359.
Statute
Industrial Relations Act 1979 (WA) — ss 97D-97F
Synthesis · 10 tagged cases
10 tagged decisions (6 as primary). Of primary decisions, the most common outcome is '(unspecified)' (5, 83%).
Outcome distribution
| Outcome | n | % |
|---|---|---|
| Resolved (unspecified) | 5 | 83% |
| Against applicant dismissed | 1 | 17% |
By jurisdiction
| Court | n |
|---|---|
| Fair Work Commission (Full Bench) | 3 |
| Fair Work Commission | 2 |
| Single Commissioner (WAIRC) | 2 |
| Federal Court of Australia | 1 |
| WA Supreme Court | 1 |
| Federal Circuit Court of Australia | 1 |
Cross-jurisdictional analogues
| Counterpart | Strength | Note |
|---|---|---|
| sham_contracting | 0.8 | WA ss97D-F closely track FW Act ss357-359 on misrepresentation and dismissal-to-engage-as-contractor. Federal jurisprudence on 'recklessness' standard highly persuasive. |
Key articulated principles · 2
para 5 — from [2019] WAIRC 607
WAIRC — Single Commissioner
A contract of employment that is a sham designed to deceive government authorities cannot be enforced under s26(1)(a) of the Industrial Relations Act 1979 (WA).
para 7 — from [2019] WAIRC 607
WAIRC — Single Commissioner
Where money is paid in full with one hand but a portion is immediately retaken by another hand, the assertion that the contract is complied with is legally untenable and contradicts the true substance of the arrangement.
Leading cases · by citation count
| Citation | Court | Role | Cited |
|---|---|---|---|
| [2022] WAIRC 211 | WAIRC — Single Commissioner | secondary | 1 |
| [2015] FCA 275 | Federal Court | secondary | 1 |
All tagged cases · 10
| Citation | Court | Role | Date | Outcome | Cited |
|---|---|---|---|---|---|
| [2023] FWC 2589 | FWC | primary | 2023-01-01 | 0 | |
| [2021] FWCFB 4646 | FWC — Full Bench | primary | 2021-07-30 | 0 | |
| [2020] FWCFB 5365 | FWC — Full Bench | primary | 2020-10-08 | 0 | |
| [2019] WAIRC 607 | WAIRC — Single Commissioner | primary | 2019-08-07 | Against applicant | 0 |
| [2019] FWCFB 1177 | FWC — Full Bench | primary | 2019-02-25 | 0 | |
| [2019] FWC 4586 | FWC | primary | 2019-01-01 | 0 | |
| [2022] WAIRC 211 | WAIRC — Single Commissioner | secondary | 2022-05-18 | Against applicant | 1 |
| [2015] FCA 275 | Federal Court | secondary | 2015-03-27 | Resolved | 1 |
| [2021] WASC 443 | WA Supreme Court | mentioned | 2021-12-10 | Resolved | 0 |
| [2014] FCCA 1124 | Federal Circuit Court | mentioned | 2014-01-01 | For applicant | 0 |