The decision in Mr Matthew Kruger v Rio Tinto Exploration T/A RTX [2012] FWA 8638

This case pertains to the jurisdictional challenge by Rio Tinto Exploration (‘RTX’) in regards to the employment status of Mr Kruger, an employee of Gnomic Exploration Services (‘Gnomic).

Kruger had made a claim against RTX pursuant to s 394 of the Fair Work Act 2009 (‘the Act’), seeking an unfair dismissal remedy.


RTX’s jurisdictional challenge

Gnomic is a supplier of geoscience and geo-technical contractors and consultants to the Australian minerals and energy industries, and is responsible for (amongst other things) the superannuation, payroll tax, public liability insurance and workers’ compensation insurance for its employees.

RTX had contracted Gnomic’s services and consequently claims that it is not Kruger’s employer, arguing on the grounds that he was at all times employed by Gnomic.


Kruger’s response

Kruger provided a signed copy of a contract that Rio Tinto had offered him.

He argued that RTX had illegally ended the contract by fabricating a story.

The contract upon which Kruger relied contained the following information:

  • Stated that Kruger was employed by Gnomic Exploration Services as a PAYG employee, contracted to Rio Tinto Explorations as a Field Assistant.
  • Ensured the provision of a Gnomic work shirt for Kruger to wear to work.
  • Required that both parties give sufficient notice of intention to terminate the contract.
  • Stated that the client company and contractor reserved the right to immediate termination based on unlawful misconduct by any of the relevant parties.
  • Stated that Gnomic would be charging RTX a management fee to cover Works Compensation, Professional Indemnity and Public Liability Insurance.
  • Stated that Gnomic would pay a 9% SGC on Kruger’s behalf.
  • Stated that Gnomic would pay payroll tax on Kruger’s gross wages and superannuation.


RTX’s submissions

In the documentation submitted by RTX was an agreement between RTX and Gnomic pertaining to the services provided by Gnomic.

Clause 11 of this agreement stated that “Nothing in this Agreement shall constitute Rio Tinto as an employer of you”.

Matthew Hatzl ( and RTX Field Superintendent) also provided the following evidence:

  • Employees of RTX wear Rio Tinto shirts, and Gnomic provides its employees with a shirt (as do other contractors) and Gnomic booklets on first aid and risk assessment
  • The contract with Gnomic is renewed every month to replace the roles within the field
  • Gnomic contractors are contracted to RTX for 1-2 field seasons
  • Gnomic contractors are required to complete a time sheet, signed by Mr Hatzl and Gnomic provides weekly invoices to RTX for the services provided. Gnomic then pays its employees on a weekly or daily basis.


Tribunal’s conclusions

Based on Kruger’s response, the Tribunal held that prima facie it appeared as though Kruger was an employee of Gnomic rather than RTX. Moreover Kruger was aware that he was not an employee of RTX, as he had previously stated that RTX had offered him full-time employment (as opposed to the basis on which he worked for Gnomic). He had rejected this offer.

RTX was not the relevant employer to be pursued in regards to this unfair dismissal claim.

Peter Gell

Peter was admitted as a solicitor in 1981 and holds qualifications in law and a Masters degree in taxation conferred by the University of NSW. Peter practises in taxation advisory, estate planning and wills, probate and commercial law.