Carer Takes Mum to the Fair Work Commission: What Emery v Binding Says About a Broken System

A mum manages her son’s NDIS plan. His support worker of more than 11 years stops working with the family. A few weeks later, the mum is the respondent in a Fair Work Commission claim.

It reads like a Sunday night telemovie. It is actually Emery v Binding, decided on 9 October 2026.

The family won. The Commission found the support worker was an independent contractor, not an employee, so she could not bring a general protections dismissal claim. But nobody really wins a case like this. And if you run a business that uses contractors, do not read it as good news. Read it as a warning.

What Happened in Emery v Binding?

Kathleen Emery provided disability support to Jeremy Binding for about 11.5 years. From 2014 to 2020 she did it as an employee of a disability provider. In 2020, Jeremy’s parents, Sharon and Rodney Binding, pulled his NDIS funding from that provider and started managing it themselves.

From there, the arrangement looked like this:

• She signed NDIS service agreements in 2020 and 2022 as the “provider”, using an ABN and described as self-employed.
• She held her own professional indemnity and public liability insurance. She says Mr Binding told her where to buy it and how to get an ABN.
• She invoiced through a plan manager and was paid from Jeremy’s NDIS funds at standard NDIS rates.
• The 2022 agreement said super and leave were not the family’s responsibility.
• Day to day, the parents set the roster and ran communication books, fire evacuation procedures, equipment manuals and regular staff meetings.

The working relationship ended on 8 June 2026. Ms Emery lodged a general protections claim, arguing her workplace rights had been breached and that the 2020 arrangement was a sham contract. Mrs Binding said she was never an employee, so she could not have been dismissed.

How Did the Commission Decide Whether She Was an Employee?

Since August 2024, section 15AA of the Fair Work Act says you look at the real substance and practical reality of the relationship, not just the contract. That means weighing up a long list of factors and getting the overall picture.

Deputy President Masson found plenty pointing towards employment. She could not send someone else to do the work. Her hours were set by the family’s roster. She supplied no tools, had no separate workplace and was not building a business or goodwill of her own.

But more pointed the other way. Clear written service agreements. An ABN. Her own insurance. Invoices paid through a third party at NDIS rates. No tax withheld, no leave, no super. Nothing stopping her working for other clients. And the family was not running a business, did not hold employer insurances and did not pay wages.

The Deputy President said the family’s level of control was hardly surprising given the nature of NDIS supports. The NDIS framework, the contract terms and the payment arrangements decisively outweighed everything else. She was not an employee, so the application was dismissed.

You can read the full decision here: Emery v Binding [2026] FWC 3866.

Why Does This Case Show a Broken System?

Look at what actually happened. A family wanted more say over who supported their son and how. The NDIS lets families self-manage and engage workers directly, including sole traders on an ABN. Before long, a mum is running rosters, staff meetings and fire drills. That is a workplace in every sense except the paperwork.

Nobody hands her an HR manual. The NDIS tells participants that directly employing staff is different to hiring a contractor, then leaves families to work out which one they are doing (NDIS guide). That is the same question the High Court, Parliament and the Commission have been arguing about for years.

Then there is the patchwork. A worker can be a contractor under the Fair Work Act, but super has its own test, and someone paid mainly for their labour can still trigger super obligations. Workers compensation has its own rules again, and they differ by state. Three regimes, three tests, one family at the kitchen table trying to get it right.

And here is the most disturbing part. According to the NDIS, plan funding cannot be used for legal services. So when a claim lands, the family funds its own defence or handles it alone.

It is not great for the worker either. Ms Emery went from employee with leave and super to contractor without them, doing the same job for the same young man. The Commission rejected her sham contract argument, but you can see how she ended up feeling hard done by. A system that leaves carers and families to make these calls without advice produces exactly this kind of fight.

Have We Become Too Quick to Litigate?

An 11-year working relationship ended in a Fair Work claim. Let that sink in.

General protections claims are relatively quick and cheap to lodge. Whether you were even an employee only gets tested later, after the other side has spent time, money and sleep responding. For a small business that hurts. For a family caring for a son with disability, it is a whole other level of stress.

People should be able to enforce their rights. That is not the issue. The issue is that by the time a relationship like this reaches the Commission, the system has already failed. Clear agreements, a proper exit conversation and someone to call for advice would probably have saved everyone a lot of grief.

Why Shouldn’t Your Business Take Comfort From This Decision?

Because the family won partly because they were not a business. The Commission said so. No commercial operation, no employer insurances, no wages. The control they exercised was excused because of the NDIS context.

Your business does not get those excuses. If you roster contractors, tell them how to do the work, supply the tools, do not let them send someone else and they cannot build their own business, those factors that were brushed aside here will be front and centre.

“Get an ABN and some insurance and you’re a contractor” is one of the most common red flags we see. It did not sink this family, but in a commercial setting it is exactly what a claim gets built on.

If a worker is found to be an employee, you are looking at unfair dismissal and general protections exposure, back-pay of leave and super, award underpayments and potential sham contracting penalties. And remember, genuine contractors still have some general protections. They just cannot use the dismissal pathway.

How Can You Tell If Your Contractor Is Really an Employee?

Ask yourself these questions honestly:

• Who controls how, when and where the work is done?
• Can they delegate the work or send someone else?
• Do they supply their own tools and equipment?
• Are they paid for results or a quote, or just for hours worked?
• Do they work for other clients, and could they genuinely do so?
• Do they run their own business, with their own insurance, clients and marketing?
• Does the contract match how things actually work day to day?

That last one matters most. Since 2024 the Commission looks at what really happens, not just what you wrote down. The contract still counts, as this case shows, but it cannot carry an arrangement that looks like employment in practice.

What Should You Do Now?

Do this now List everyone you pay on an ABN and run each one through the questions above. If any are paid mainly for their labour, check your super obligations. It is a separate test. Fix arrangements that look like employment while the relationship is still going, not after it ends.

 

Do this next Review your contractor agreements so they reflect how the work really happens. Put a simple, respectful exit process in place for contractors as well as staff. If you self-manage an NDIS plan, get advice before changing how your support workers are engaged.

Frequently Asked Questions

Can a contractor make a general protections claim?

Contractors have some general protections, for example against adverse action because of a workplace right. But a general protections dismissal claim requires a dismissal, and that requires employment. That is why Ms Emery’s claim was dismissed.

Does having an ABN make someone a contractor?

No. An ABN is one factor among many. The Commission looks at the whole relationship and how it works in practice.

What is section 15AA of the Fair Work Act?

It is the definition of employee and employer that started in August 2024. It requires the Commission to look at the real substance, practical reality and true nature of the relationship, including how the contract is actually performed.

Are NDIS support workers employees or contractors?

It depends on the arrangement. Workers engaged through a provider are usually employees of that provider. Workers engaged directly by self-managing participants can be either, depending on the facts.

What happens if a contractor is found to be an employee?

The business can face unfair dismissal or general protections claims, back-pay of leave, super and award entitlements, and penalties for sham contracting.

Does a written contract still matter?

Yes. In this case the service agreements carried a lot of weight. But a contract will not save you if the day-to-day reality looks like employment.

Not Sure Your Contractors Would Pass the Test?

Most businesses do not find out their contractor set-up is wrong until a claim lands. HR Gurus helps SME owners cut through the BS, check who is really an employee and fix it before it costs you. Book a call with our team today.