The Fair Work Commission (FWC) allowed Samuel Nicholls, a project manager, to proceed with an adverse action claim after a jurisdictional challenge by the respondent. The FWC found that his employer, Built MG Pty Ltd (BMG) labelled Nicholls an independent contractor to facilitate his request for his income to be paid into a trust account, despite Nicholls actually being an employee.

Background

Nicholls made an application under section 365 of the Fair Work Act 2009 (Cth) (the Act), alleging that because he exercised a workplace right, BMG had taken adverse action by dismissing him from his employment at BMG on 13 February 2026. BMG raised a jurisdictional objection claiming that Nicholls was not an employee, but rather an independent contractor.

BMG and the Trustee for Nicholls Family Trust (Trustee) entered a contract titled ‘Independent Contractor Agreement’ in April 2025. This contract provided that:

1. the Trustee is required to provide services to BMG in accordance with a position description at the head office, site office or a location otherwise directed by BMG
2. a consultancy fee of $175,000 per annum was to be paid by BMG to the Trustee
3. the Trustee warrants that any personnel it engages who are approved by BMG to provide services are employees of the Trustee who will pay their wages, income tax and superannuation
4. the Trustee is entitled to be absent for 20 days each year for recreation and is entitled to an invoice for that time
5. the Trustee is entitled to be absent for 10 days each year due to personal illness and is entitled to an invoice for that time
6. the Trustee is required to work 45 hours per week (Monday to Friday) with some reasonable additional hours, including some weekends
7. either party may terminate the contract by providing one month’s notice in writing
8. a restriction on the Trustee subcontracting any obligations contained in the contract without prior agreement from BMG
9. the trustee must pay a $10,000 exit fee if it was to terminate the contract within two years of the operative date after an initial six-month probation period.

Evidence demonstrated that BMG invoiced themselves, rather than Nicholls invoicing BMG and that Nicholls was paid weekly by BMG and the Remittance Advice stated ‘weekly wage’. Mr Nicholls paid GST for the amounts that were paid to the Trustee.

Evidence also demonstrated that Nicholls chose to use his own laptop despite being provided with one and Nicholls undertook the subsequent work because of the contract.

Decision

The FWC formed the view that the clause that seemed to allow the Trustee to employ their own personnel was rather restrictive, as express approval from BMG was required to do so, therefore demonstrating the level of control BMG had. Along with the other evidence presented, the FWC formed the view that this demonstrated the relationship between BMG and Nicholls was one of an employer and employee.

The FWC also considered the ‘multifactorial test’ as was established in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Hollis v Vabu Pty Ltd (2001) 207 CLR 21 and the application of section 15AA of the Act and held that “it is clear on the evidence that the overall nature of the relationship was one of employee and employer.”

Therefore, the FWC has jurisdiction to deal with the application made by Nicholls under section 365 of the Act.

Key takeaways

This decision reinforces that the FWC will carefully consider a variety of factors to assess the true nature of the relationship to determine if someone was an employee or an independent contractor. As the FWC highlighted in this decision, the introduction of section 15AA of the Act requires it to examine the “real substance, practical reality and true nature of the relationship.” Therefore, whilst there have been previous high-profile decisions on similar issues such as Deliveroo Australia Pty Ltd v Diego Franco [2022] FWCFB 156, the FWC must now carefully examine the individual circumstances of each case in order to follow section 15AA of the Act.

Through this decision, the FWC again demonstrates that simply labelling someone an independent contractor does not necessarily mean they are an independent contractor, even when the contracting party is a Trustee.

Given the complexities surrounding independent contractors, please contact your legal adviser for assistance when considering engaging the services of an independent contractor.

Samuel Nicholls v Built MG Pty Ltd [2026] FWC 2575