19 May HR Law Newsletter – April 2025

As we move into the second quarter of 2025, we focus on a case brief involving an adverse action claim and share an exciting HR Law staffing update with you.

CASE BRIEF: ADVERSE ACTION CLAIM AND “CONTROL” IN REMOTE ENGAGEMENTS

The Fair Work Commission (“Commission”) has recently reinforced the significance of “control” in remote engagements when determining employment status. In AB v Free Hearts Free Minds [2025] FWC 353, the Commission found that an Australian-based executive director for a US-registered charity was an employee, allowing her to pursue an adverse action claim under the Fair Work Act 2009 (Cth) (“FW Act”).

California-registered nonprofit Free Hearts Free Minds (“FHFM”) sought to dismiss the adverse action claim on the grounds that:

– The executive director, “Ms AB”, was an independent contractor; and
– FHFM’s character as a foreign entity exempted it from the FW Act.

However, Commissioner Redford determined that the nature of Ms AB’s engagement, particularly the degree of control exercised over her work, was more indicative of an employment relationship as evidence demonstrated that Ms AB:

– worked full-time for a set remuneration of $6,550.00 per month;
– received direct instructions from FHFM regarding her responsibilities;
– had no genuine capacity to refuse work;
– had a broad, ongoing role rather than discrete projects;
– represented to the public as FHFM’s Executive Director; and
– was required to complete a comprehensive handover upon termination.

Additionally, Commissioner Redford observed that while Ms AB was required to invoice FHFM, this was a requirement imposed by FHFM rather than Ms AB’s own choice. The lack of employee entitlements, such as superannuation and leave, was attributed to FHFM’s refusal to provide them rather than an indication of independent contractor status.

In addition, given that Ms AB worked entirely within Australia and the contract was entered into domestically, the Commision found FHFM to be a “national system employer” under the FW Act. As a result, the Commission had jurisdiction to hear Ms AB’s adverse action claim.

To read the case, click here.

This case serves as a reminder for employers that the element of control plays a significant factor in assessing an individual’s employee or contractor status. Failure to initially assess an individual’s status can lead to general protections and adverse action claims which can pose complicated legal risks. If your business is onboarding new staff or seeking to understand staff members employment statuses, the team at HR Law can provide expert and specialised advice.

If you require further legal advice, please email us at info@hrlaw.com.au .

WELCOME JOHAN MYBURGH TO THE HR LAW TEAM

This month, we are excited to welcome Johan Myburgh to the ever growing HR Law team.   

Johan, as Special Counsel at HR Law,  brings comprehensive experience in all aspects of employment and workplace relations law.  As an experienced workplace lawyer, and industrial relations and human resources specialist, he can assist with workplace law litigation, enterprise bargaining, dealing with unions and disputes, employment contracts, human resources policies and procedures, unfair dismissal claims, general protections claims, managing employee conduct and performance issues, ill and injured workers, workers’ compensation matters, dealing with health and wellbeing issues together with conducting workshops and workplace investigations.

If you would like to contact Johan, please email him at j.myburgh@hrlaw.com.au.

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The content of this newsletter is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.