Fair Work Commission rules disability support worker as employee: implications for NDIS sector

An arm and hand holding a pen ready to sign a contract

On Thursday 20 June 2024, a Full Bench of the Fair Work Commission handed down its decision in Aspire 2 Life Pty Ltd v Jessica Tidmarsh [2024] FWCFB 289. Aspire 2 Life appealed the decision of Deputy President Roberts of 27 October 2023. The Commission upheld the decision that determined Ms Tidmarsh, a disability support worker, was an employee of Aspire 2 Life, not an independent contractor.

The terms and conditions of Ms Tidmarsh's engagement were set out in two documents. Both documents described Ms Tidmarsh as an independent contractor. Under those arrangements, Ms Tidmarsh was required to have an Australian Business Number, submit invoices for her time, be responsible for her own tax and superannuation and supply her own equipment.

The Commission conducted a detailed review of the contractual rights and obligations of each party and the Aspire 2 Life business model. At first instance, the Deputy President considered the terms of the contract describing Ms Tidmarsh as an independent contractor were to be given little or no weight in the overall analysis. The Full Bench agreed.

Determinative factors in this case were the degree of control exercised by Aspire 2 Life over Ms Tidmarsh's work including the way in which work was to be undertaken, the timing of such work, and the clients to be cared for. Both at first instance and on appeal, the Commission considered Ms Tidmarsh did not operate an independent business but was integrated into Aspire 2 Life's business in a way in which an employee would be.

The High Court decision in CFMEU v Personnel Contracting Pty Ltd was distinguished in that Aspire 2 Life was not merely a "finder of labour" in that its business involved the operation of a case management, support coordination service for the elderly. The company was responsible for negotiating the services clients would receive, the fees for those services and the ongoing management of the delivery of those services.

The outcome of this case will have significant implications for the classification of employment relationships and independent contracting arrangements, particularly in the NDIS and community services sector. This was acknowledged by the Full Bench in its decision.

In this case, there was contractual documentation in place to strongly indicate an independent contractor relationship, but the Commission took the view that this was an employer-employee relationship. Organisations will need to consider whether they should review their operations on account of this decision. If you would like more information about the classification of these relationships, the process to undertake review of current employment relationships, or any other points raised, please contact the Lander & Rogers' Workplace Relations & Safety team.

You can read the full judgement here.

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.


Jordan Kopp-Collins

Jordan Kopp-Collins