A man who sold his family’s automotive service centre and stayed on to help run it under a consultancy agreement, invoicing the buyer through his own corporate entity, cannot pursue a general protections dismissal claim against the purchaser. A Full Bench of the Fair Work Commission has refused him permission to appeal (the threshold approval needed before an appeal can proceed) against a finding that he was an independent contractor who, in the Deputy President’s words, was “carrying on a business of his own”.
The applicant had been chief executive and chief financial officer of his family business group, which sold the Chapel Corner Service Centre to RPM Automotive Holdings Pty Ltd under a business sale agreement. That agreement provided for the centre’s employees, other than the applicant, to remain after the transfer, and specified that the applicant would not become an employee of the buyer. Instead, the parties executed a consultancy agreement under which he supplied “management, transition and consultancy services”, with fees invoiced by his own corporate trustee entity.
When the consultancy arrangement ended, the applicant lodged a general protections application involving dismissal under s.365 of the Fair Work Act 2009 (an application alleging adverse action connected with a dismissal). Deputy President Masson dismissed it on 11 December 2025 ([2025] FWC 3800), finding that under s.15AA of the Act, which requires the employment question to be determined by the “real substance, practical reality and true nature” of the relationship, the applicant was not an employee and so had not been dismissed within the meaning of s.386.
At a glance
- Parties: The applicant (a former business owner, anonymised) v RPM Automotive Holdings Pty Ltd and another
- Citation: [2026] FWCFB 168
- Section: ss.604, 365, 386 and 15AA of the Fair Work Act 2009
- Outcome: Permission to appeal refused; the finding that the applicant was an independent contractor stands
- Who it affects: Business sellers engaged by purchasers under consultancy arrangements
The Deputy President erred in treating the sale agreement and the consultancy agreement as interrelated, wrongly characterised his cross-examination answer as a concession that the arrangement was not a sham, gave undue weight to the commercial incentives of the earn-out period (payments to the seller tied to the business’s post-sale performance) which had ended on 1 September 2024, and went beyond the relationship between the individual and the engaging entity, contrary to the “totality of relationship” test in s.15AA.
None of the grounds raised an arguable case of appealable error. The evidence supported the finding that the two agreements were interrelated, the description of the cross-examination answer was fair, and the earn-out arrangements were relevant as part of “the broader commercial context” in which the relationship operated, consistent with Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118.
On the fourth ground, the Full Bench described the argument as “misconceived”. Assessing the real substance and practical reality of a relationship under s.15AA, it said, “may require looking past corporate structures, trusts, and agreements between persons other than the individual” and the company whose relationship is being considered.
The bench also held it was open to the Deputy President to take into account the applicant’s failure to protest the contractor characterisation during the engagement, given the parties were “sophisticated business people and the arrangements in question cannot be regarded as one-sided or unilaterally imposed”.
Vice President Gibian, Deputy President Bell and Deputy President Butler heard the matter in Melbourne on 18 March 2026 and delivered the decision on 8 July 2026, concluding that neither the public interest nor general discretionary grounds warranted permission to appeal under s.604.
The decision leaves the first-instance ruling intact and confirms that the s.15AA assessment can extend to surrounding commercial arrangements, including trusts, corporate vehicles and sale agreements, when the Commission weighs whether a person engaged after selling a business is an employee or a contractor.
Source: [2026] FWCFB 168
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