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The Facts
Sex worker's work arrangement covered by agency
agreement
A sex worker commenced working at a Melbourne brothel in August
2019. Her work arrangement was set out in an agency agreement,
which specified that she was not a partner, a joint venturer or an
employee of the brothel.
The agreement further stated that the sex worker was free to
refuse any client booking on any grounds, and that the brothel did
not direct or control sex workers "in the nature or conduct of
delivering their personal services".
While the brothel was not able to produce a copy of the agency
agreement that it claimed the sex worker had signed, the sex worker
conceded that she had signed a contract during her initial
interview at the brothel, although she too was unable to produce a
copy of that document.
Relationship between sex worker and brothel deteriorates
In November 2021 the sex worker suffered an injury and was
hospitalised. Upon her return to work in December 2021, she was
limited in the services she could offer to clients due to her
injury.
The sex worker became increasingly concerned about hygiene,
health and safety at the brothel. She raised these concerns at a
meeting with a manager in March 2022 and again at two subsequent
meetings in June the same year.
Following the last of these meetings, the sex worker received a
text message from the staff phone number, informing her that she
had no more shifts at the brothel and could only attend the
premises to collect her belongings.
Was the sex worker unfairly dismissed?
The sex worker made an application to the Fair Work Commission,
claiming that she had been a casual employee of the brothel, had
been unfairly dismissed and was therefore eligible for an unfair
dismissal remedy.
In order to decide whether the sex worker was eligible for an
unfair dismissal remedy, the FWC first had to determine whether or
not she had been an employee.
CASE A
The case for the sex worker
CASE B
The case for the brothel
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.
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
