Thirteen years of tax invoices, GST remittances and a registered business name did not prevent a funds management company’s managing director from being an employee. In Vize v Whistle Funds Management Company Pty Ltd [2026] FCA 831, the Federal Court declared that the applicant was a national system employee from 1 July 2017 until his dismissal on 5 March 2025, and that Whistle Funds Management Company Pty Ltd contravened the Fair Work Act 2009 in multiple respects.
Justice Shariff found the company breached s 44 of the Act by failing to pay accrued annual leave on termination as required by s 90(2), and by failing from 1 January 2024 to make superannuation contributions as required by s 116B. It also contravened s 4(2)(a)(iii) of the Long Service Leave Act 1955 (NSW), and s 340(1)(a)(ii) of the Fair Work Act by dismissing the worker because he exercised a workplace right, a form of adverse action (the Act’s prohibition on punishing a worker for exercising a right such as making a complaint).
At a glance
- Parties: Vize v Whistle Funds Management Company Pty Ltd (first respondent) and the company’s founder (second respondent)
- Citation: [2026] FCA 831, Shariff J, 26 June 2026
- Sections: Fair Work Act 2009 ss 44, 90(2), 116B, 340(1)(a)(ii), 15AA, 550; Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii)
- Outcome: Worker declared an employee from 1 July 2017; contraventions established against the company; case against the founder dismissed; estoppel cross-claim dismissed; remedy to be determined
- Who it affects: Businesses engaging long-term contractors, particularly in senior and executive roles
The worker was first engaged on 28 March 2012 as a consultant under his registered business name Advize Property Consulting, with his own ABN, at a daily rate of $833 plus GST. A second consultancy agreement from 1 August 2013 paid a service fee of $20,000 a month. The worker said he was appointed Fund Manager from 1 July 2017, the date from which the court found the employment began, and it is not disputed he became Managing Director in April 2021 on a fixed annual fee of $300,000, increased to $350,000 in October 2023. He invoiced under the Advize name and collected and remitted GST, although the court found invoices were not always issued monthly and were sometimes created and backdated on request.
- 28 Mar 2012 First consultancy agreement signed at $833 a day plus GST.
- 1 Aug 2013 Second consultancy agreement, $20,000 a month.
- 1 Jul 2017 Date the worker said he became Fund Manager; employment found to begin.
- 7 Apr 2021 Appointed Managing Director at $300,000 a year.
- 5 Mar 2025 Engagement terminated.
- 26 Jun 2026 Liability judgment delivered.
- 16 Jul 2026 Case management for remedy and penalty hearing.
that the second consultancy agreement was never varied or terminated and continued to govern the engagement until the end, that all the duties performed fell within its definition of “Services”, and that the worker was never an employee at any point.
that he became an employee on 1 July 2017 when appointed Fund Manager, or alternatively from April 2021 as Managing Director, and that the company’s estoppel defence could not stand because “one can never have an estoppel in the face of a statute”.
that the worker had been a common law employee since about July 2017, was entitled to six months’ reasonable notice of termination, and in any event fell within the new definition of employee in s 15AA of the Fair Work Act from 26 August 2024.
On the dismissal, Justice Shariff found the founder “reacted emotively” to complaints the worker made about his conduct, which the founder perceived, in his own words, as “disloyal”, “hysterical” and “litigious”, or “undermining” the business. The judge recorded concessions by the founder that he “decided to terminate [the] engagement because he was annoyed that [the worker] had made a complaint”, and that he had made that decision earlier than the respondents’ pleaded case allowed. The dismissal was found to contravene s 340(1)(a)(ii).
The claim against the founder personally failed. The applicant alleged accessorial liability under s 550 (personal liability for a person involved in a company’s contravention), but Justice Shariff was not satisfied the founder knew the facts that made the worker an employee. The judge accepted the founder genuinely believed the contractor arrangement was what the worker had asked for, a belief that was “a reasonable one for him to have held, even though that belief was legally incorrect”. The proceedings against him were dismissed.
The company cross-claimed that the worker was estopped from asserting he was an employee after 13 years of conducting himself as a contractor. It relied on conventional and promissory estoppel (legal bars that prevent a party departing from a shared assumption, or from a representation another party has relied on). Justice Shariff dismissed the cross-claim, holding both estoppels “are contrary to law and public policy”, and that while the Fair Work Act contains no express prohibition on contracting out of its minimum entitlements, “that is its effect”.
“Regrettably, the ambition of the respondents’ estoppel claims was only matched by the absence of considered analysis.”
Remedy, compensation, damages and any penalties are yet to be determined. The matter is listed for case management at 10:00 am on 16 July 2026, when a referral to mediation will also be considered, and costs to date are reserved. The judgment adds Federal Court authority, following Justice Perram’s reasoning in ACE Insurance Ltd v Trifunovski, that a mutual assumption of contractor status, however long held and however genuinely believed by both sides, cannot bar a worker from recovering employee entitlements under the Fair Work Act.
Source: [2026] FCA 831
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