Whether a delivery or franchise contract constitutes a contract 'whereby a person performs work in any industry' under s 106 of the Industrial Relations Act 1996 (NSW) requires an evaluative judgment considering multiple factors: the nature of the work, whether it could be performed by employees, the independence of the contractor's business, the extent to which the contract contemplates and controls the work of identified individuals, and the practical impact on hours and remuneration. There can be more than one contract whereby a person performs work in an industry in a chain of contractual relationships. When the Court of Appeal reviews a refusal to summarily dismiss on jurisdictional grounds, it assesses whether the case is reasonably arguable, not whether jurisdiction exists as a final determination.
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