Adult entertainment performer found not to be an employee

The Fair Work Commission (FWC) has ruled that a dancer at an adult entertainment venue was an independent contractor and not an employee. This meant the dancer could not proceed with her general protections claim under the Fair Work Act 2009 (Cth) (FW Act) (Murray v 239 Brunswick Pty Ltd and Raffoul [2025]).

How to determine whether a worker is a contractor or employee

For the purposes of the FW Act, the question of whether a worker is an employee or independent contractor requires a consideration of the totality of the relationship. This involves a consideration of, among other things, the terms of the contract between the parties and an assessment of how the contract is performed in practice.

A key issue is whether a worker is a servant of another in the so-called employer’s business, or whether they carry on a trade or business of their own behalf. Does the worker present to the world at large as an emanation of the so-called employer’s business? Does the worker perform work for others?

In relation to the actual contract to perform work, important factors are:

What is actual exercising of, or the right to exercise, control by the so-called employer over the worker?
Does the worker provide tools and equipment in performing the work?
Can the worker delegate the work they have been contracted to perform to its own subcontractors or employees?
Is the worker is remunerated by periodic wages or salary, or by reference to completion of tasks?

How the FWC reached it conclusion in the ‘Murray’ case

In Murray v 239 Brunswick Pty Ltd and Raffoul (2025), the FWC considered the totality of the relationship, including the terms of the contract and how the contract was performed in practice. It ruled the real substance, practical reality and true nature of the relationship was one of principal and independent contractor.

In reaching that conclusion, the FWC took into account provisions in the dancer’s agreement with the venue that afforded a right of control over the dancer’s working arrangements. The worker had considerable control of, and independence in relation to, the timing and duration of her work, the rates charged for the work, the persons for whom the work was performed and how the work was actually performed. In particular:

although the contract specified a minimum number of shifts during particular periods, generally the dancer was able to choose the days and times when she could perform through the rostering application, and the rostering arrangements were not fixed but could be changed informally by the dancer discussing that issue with the venue’s managers; and
the involvement, direction or intervention in the work that was being performed by the dancer was minimal and limited to ensuring that the legal obligations of the venue were met.

Other features pointed towards the dancer carrying on their own trade or business, and not presenting to the world at large as an emanation of the venue’s business, were as follows:

The dancer was not paid a wage or any other remuneration by the venue for the performances at the venue. In fact, the dancer paid the venue a reservation fee to perform and a part of the income earned for each dance performance, depending on the length of the dance. The dancer could be penalised for cancelling a reservation.
The dancer’s earnings were derived directly from the clients for whom she performed not the venue. The identity of the clients, number of clients and the amounts that the clients were to pay were all determined, or in the latter case, negotiated by, the dancer. Therefore, the dancer bore the financial risk of earning or losing money for each attendance at the venue.
While the performances were conducted at the venue, there was nothing in the way of uniform, logo or other branding to suggest the worker was part of its business.
The dancer chose her own stage name and performed under that name. Any equipment or props that were to be used in the performances were to be provided by the dancer at their own expense.

Roofing company found to have placed its financial interests ahead of the safety of its workers
An NSW roofing company has been fined $300,000 after pleading guilty to failing to comply with its duties under section 19(1) of the Work Health and Safety Act 2011 (NSW) ...