A worker who invoiced through his own incorporated company, owned his work vehicle through that company and engaged subcontractors for the business was nonetheless an employee, the Fair Work Commission has found, in a decision Commissioner Crawford described as “finely balanced”.
Burke and Wills Projects Pty Ltd provides commercial design, construction and maintenance services. The worker performed work for it from around 25 July 2022 until 11 March 2026. The relationship ended after Burke and Wills offered him employment, he rejected the terms on the basis that they did not adequately recognise the quality and nature of his work, and the company withdrew the offer and directed him to return company property.
The worker filed a general protections application (a claim that an employer has taken adverse action against a person for a protected reason) under s.365 of the Fair Work Act 2009 on 31 March 2026. Burke and Wills raised a jurisdictional objection, arguing he was an independent contractor and so had not been dismissed within the meaning of s.386. There was no written contract between the parties.
that the worker was an independent contractor. It pointed to the label the parties adopted, the invoices issued by his company, the GST charged, the absence of paid leave and superannuation, his provision of his own tools, and his company’s engagement of contractors to perform work for Burke and Wills. The company’s director gave evidence.
that the practical reality of the relationship was employment. He relied on his own evidence and that of a former co-worker, including evidence that in a phone call on 21 December 2023 the director said the company wanted him to work full-time and exclusively for Burke and Wills from 2024, and that his company charged no margin on the contractors it engaged.
that the administrative arrangements “clearly weigh in favour” of a finding that the worker was an independent contractor, but that they were not consistent with how the contract was otherwise performed in practice, at least from 1 January 2024. Burke and Wills controlled which projects he worked on, where and when. He worked exclusively for the company at full-time equivalent hours, generally wore its uniform, had a company email address, was included in internal staff communications, submitted timesheets, used the company’s internal administrative systems and held a Bunnings Power Pass account to make purchases on the company’s behalf. He was paid by the hour and reimbursed for expenses he incurred.
The test applied was the one inserted into the Fair Work Act by the Closing Loopholes No. 2 amendments, which commenced on 26 August 2024. Section 15AA requires the question to be determined by “ascertaining the real substance, practical reality, and true nature of the relationship”, considering the “totality of the relationship” and including how the contract was performed in practice. Commissioner Crawford said the amendment essentially overrode the High Court majority decisions in Personnel Contracting and Jamsek, nullifying the earlier position that the way a contract is performed is largely irrelevant where the parties’ rights and duties are comprehensively recorded in a written contract.
The Commissioner found the manner in which the relationship ended also pointed to employment. Burke and Wills decided unilaterally to end the relationship and directed the return of all company property, when a genuine principal could simply have offered no further work, and the director’s email said “we thank you for your service to date” without referring to ending a contractual relationship with the worker’s company.
The worker invoiced through his own incorporated company, which owned his work vehicle and engaged contractors for Burke and Wills. Commissioner Crawford preferred the worker’s evidence that the company charged no margin on that subcontracted work and only sought reimbursement of costs, describing the absence of a margin as indicative of an administrative arrangement rather than a genuine commercial one. He noted that the Full Court of the Federal Court confirmed in ACE Insurance Ltd v Trifunovski that the involvement of a company does not preclude a finding of employment.
“[T]he way that the contract was performed in practice weighs strongly in favour of an employment relationship and is sufficient to effectively pierce the corporate veil in this case.” Commissioner Crawford
At a glance
- Parties: The worker v Burke and Wills Projects Pty Ltd and its director
- Citation: [2026] FWC 2908, Commissioner Crawford, Newcastle, 3 August 2026
- Sections: Fair Work Act 2009 ss.15AA, 365, 386
- Outcome: Worker found to be an employee and dismissed on 11 March 2026; jurisdictional objection dismissed
- Who it affects: Businesses engaging workers who invoice through their own companies
Commissioner Crawford said it was not necessary to decide whether the worker was an employee or contractor before 26 August 2024, because the objection turned only on his status at the date of the purported dismissal. The application will be listed for conciliation at a time to be advised.
Source: [2026] FWC 2908
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