Case

Which case won?

casea
The case for the sex worker
  • Many aspects of my role demonstrate that I was a casual employee, not a contractor.
  • I was expected to adhere to rostering arrangements and was unable to cancel my shifts once they had been allocated.
  • I was unable to delegate my work or my shifts to others.
  • I was required to work shifts which were at least six hours long.
  • I was required to adhere to my employer’s dress code.
  • The prices for my services were set by my employer.
  • I was expected to use equipment and supplies which were supplied by my employer and I had to abide by limits on access to such equipment and supplies.
  • I was forbidden to use my personal phone when clients were present.
  • All of these factors demonstrate the existence on an employment relationship. To say I was an independent contractor is absurd when I do not even have an Australian Business Number (ABN).
  • As I was a casual employee, terminating my services amounts to unfair dismissal. I deserve an unfair dismissal remedy in these circumstances.
caseb
The case for the brothel
  • The sex worker was engaged by us as an independent contractor conducting her own business, not as an employee. We merely provide booking, introduction, accommodation and related support and statutory services to sex workers, who conduct sole trader business activities.
  • The booklet which the sex worker was given before she started work and the agreement she signed made it clear that she was not an employee and that there was no financial relationship between us and her. We derived no material benefit from the transactions between the sex worker and her clients.
  • The sex worker has conceded that she signed a contract during her interview.
  • The sex worker was free to refuse any booking on any grounds. She was able to exercise her discretion on who she provided services to, which services she provided and how those services were performed.
  • The sex worker was free to cancel her shifts if she wanted to.
  • We had no right to discipline her for any failure to work the minimum shift length of six hours, or for refusing to work extended shifts when requested.
  • It is true that the sex worker was unable to delegate her work or her shifts to anyone else, but that is because it is the nature of sex work to be unlikely to be capable of delegation.
  • While she claims that we set prices for her services, in fact all sex workers are free to negotiate prices with each individual client.
  • We terminated the sex worker’s services, as we were entitled to do under the agreement, because of her unacceptable and threatening behaviour.
  • The definition of “dismissed” presupposes the prior existence of an employment relationship. As the sex worker was not an employee, she could not be dismissed within the meaning of the Fair Work Act. Therefore her application for an unfair dismissal remedy is invalid and should be dismissed by the court.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a57%
case b43%

Expert commentary on the court's decision

Geoff Baldwin
Geoff BaldwinConsultant Lawyer
“The Commission noted the ‘primacy of the contract’ in ascertaining the nature of the employment relationship. Where such a contract exists, it is the rights and obligations under that contract which determine the nature of the relationship.”
Court finds sex worker was an independent contractor

In Lucy Helft v Top Of The Town [2022] FWC 2656, the Fair Work Commission determined that the sex worker, Ms Lucy Helft, was an independent contractor in the work she undertook at the adult services venue Top of the Town.

As she was not found to be an employee, she was not eligible to apply for an unfair dismissal remedy and her application was dismissed.

Primacy of contract in ascertaining nature of relationship

The Commission noted the “primacy of the contract” in ascertaining the nature of the relationship between a worker and their work provider. Where such a contract exists, it is the rights and obligations under that contract which determine the nature of the relationship.  

In so doing, the Commission relied on two decisions made in January 2022 by the High Court: ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1. (For more information please see Independent contractor or employee? Why it’s a bit of a legal circus.) 

Top of the Town pointed to the agency agreement which it claimed Ms Helft had signed, stating that it was a requirement for all sex workers to sign a copy of the agency agreement before they were permitted to work at the brothel.

The agency agreement explicitly stated that the Principal (as the sex worker was defined) was not an employee of the Agent (as the brothel was defined), nor was the Agent an employee of the Principal.

Absence of signed copy of agreement between parties

While Ms Helft agreed that she had signed a contract of some sort prior to starting work, Top of the Town was unable to produce a signed copy of the agreement that it claimed Ms Helft had signed – or, indeed, a copy of any agreement signed by any other sex worker.

In these circumstances, the Commission could not be satisfied that the contract Ms Helft had signed was the same as the version of the agency agreement which Top of the Town had presented to the Commission.

Since there was no written contract available to the Commission, it was necessary for it  to “identify by way of inference from the dealings between the parties” what the nature of their relationship was.

No financial relationship between sex worker and brothel

On examining the dealings between Ms Helft and Top of the Town, the Commission concluded that Ms Helft had the right to negotiate the type of services she provided and the price for those services with any client.

The Commission found that there was no financial relationship between Ms Helft and Top of the Town, which merely provided administrative assistance to ensure Ms Helft was paid by the client. Top of the Town itself did not derive any material benefit from that transaction.

“Right to control” as indicator of employment relationship

The Commission noted that “the right to control” had historically been the most significant indicator of an employment relationship.

Ms Helft argued that Top of the Town controlled many aspects of her work, requiring her to perform shifts of a minimum length, wear clothing which conformed with a dress code and be present in the lounge area when clients attended the brothel.

According to Ms Helft, this control also meant she could not delegate her shifts to anyone else and had to refrain from taking a break or from using her mobile phone when clients were present.

However, these aspects were considered to be of marginal significance when compared to the rights of control retained by Ms Helft.

Sex worker retained right to refuse to provide services to any client

The Commission found that Ms Helft determined when she would work by notifying Top of the Town of her availability to work her preferred shifts. Any rostering arrangement was subject to her right to decline to perform a shift, even after it had been allocated to her.

Crucially, the Commission was persuaded that Top of the Town had “no right or responsibility in requiring, controlling or supervising” the sex work performed by Ms Helft. She retained the right to refuse to provide services to any client at any point and felt safe to do so.

Because of these factors, the Commission concluded that Ms Helft retained a right to control the fundamental elements of her relationship with Top of the Town.

The Commission stated that while the absence of a right to delegate work is indicative of an employment relationship, not an independent contractor relationship, in Ms Helft’s case this was not so, as she retained the absolute right to refuse to provide her services at any point.

The absence of a financial relationship between Ms Helft and Top of the Town, and the absence of any significant right of control by Top of the Town over Ms Helft, indicated that her relationship to the brothel was that of independent contractor.

Consequently, her application for an unfair dismissal remedy was dismissed.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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