Wikiversity Law Reports/Ace Insurance v Trifunovski

This is a Wikiversity Law Report.

Federal Court of Australia, Full Court

TL;DR: an example of workers being 'employees' rather than 'contractors' for the purpose of entitlements under an award such as paid leave

Facts

• The Insurance Industry Award 1998 (Cth), made under the Workplace Relations Act 1996 (Cth), conferred a right to paid leave on 'employees' in the insurance industry. (Workers who are not 'employees' are generally referred to as 'contractors' or 'independent contractors'.)
• The plaintiffs worked as sales agents for the defendant, an insurance company.
• Under the contract between the defendant company and each plaintiff insurance sales agent:
  • the agent was specified to not be employees;
  • the agent could hire their own administrative staff;
  • the agent could interpose their own company to receive some of their payments instead of receiving them personally;
  • however, the agent could not subcontract the sales work.
• The agents worked under the supervision of the company and their activities, including sales methods, were prescribed and controlled by the company.
• The company did not offer the agents paid leave. The agents sued the company for payment for that leave. The Federal Court found in favour of the agents, and the company appealed to the Full Court.

Held

• The label assigned by the parties to a contract does not determine whether a worker is an employee or not.
• The plaintiff insurance sales agents were employees rather than contractors, and therefore were entitled to paid leave and other benefits under the award.

Other publishers' references

• [2013] FCAFC 3
• (2013) 209 FCR 146