Told to get an ABN to clean bricks, he was an employee all along

Mr Gutierrez came from Colombia and was working in Australia on a visa. Through a mutual friend he approached Mr Nguyen for work, and in July 2015 he started as a brick cleaner. He was told he needed an ABN and had to send invoices to get paid. He was paid $16 an hour.

He had no business of his own. The equipment he used belonged to Mr Nguyen, and he had no previous skills or experience in the work. He gave evidence that in about July 2016 he was told to add GST to his invoices, but they did not go up: his hourly amount was cut by 10 per cent and GST added to the reduced figure, so the total cost to Mr Nguyen stayed the same. He also said that from about 7 November to 30 November 2016 he kept working full time and was not paid at all.

With JobWatch acting for him, he took Mr Nguyen to the Federal Circuit Court. Mr Nguyen knew about the case but did not appear. Judge McNab found that, objectively, Mr Gutierrez was not conducting a business, and that having him invoice as if he were was "a sham arrangement" under s 357 of the Fair Work Act. He was an employee, and the Cleaning Services Award 2010 applied to his work.

The court ordered Mr Nguyen to pay $7,480.70, made up of $4,109.59 in unpaid wages and $3,371.11 in unpaid superannuation, plus $1,484.62 in interest.