An ABN, an invoice and no super - that was enough to sink an 11-year claim
After 11.5 years caring for the same client, a disability support worker has been told she was never actually employed - and therefore could not have been dismissed.
The Fair Work Commission dismissed the worker's general protections claim on October 9, finding she was an independent contractor, not an employee, despite years of rostered shifts, procedure manuals and regular staff meetings.
The worker had provided support to a young man with a disability through the National Disability Insurance Scheme since around 2014. For the first six years, she worked through a registered NDIS provider, Adam Inc. That changed in 2020 when the participant's parents decided to self-manage their son's NDIS package.
The worker says she was told her conditions would stay the same - the only difference being she would now submit invoices. According to the decision, she says she was advised to get an ABN and purchase her own insurance.
What she signed, however, was not an employment contract. It was a service agreement. It listed her ABN, described her as self-employed, and attached a certificate of professional indemnity and public liability insurance in her name.
A second service agreement followed in June 2022. It was more explicit: no superannuation, no annual leave, no sick leave. Payment came not from the respondent directly but through a third-party plan management provider, drawn from the participant's NDIS...
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