Ace Insurance may face more claims from former agents over holiday and long-service leave after losing a Federal Court appeal.

There are “in excess of 100 representatives of Ace” considering action, according to Bernard O’Donnell, of KP O’Donnell and Associates – the agents’ legal adviser.

“We will be looking at each individual’s contracts and service to see if they have grounds for a claim,” he told insuranceNEWS.com.au. “We will also be looking to see if any claims are within the required time period to launch any action.”

Ace appealed against the decision last year to award five former agents holiday and long-service pay after the court ruled they were in fact employees. The insurer argued the five were independent contractors.

In his appeal judgement, Federal Court judge Robert Buchanan says Ace argued the original trial judge “misunderstood the nature of the enquiry to be made to resolve the issues before him”.

At issue, Ace said, were the identification of employment relationships and who the agents were working for.

Justice Buchanan says the first point may be contestable but historical precedents “did not distract the trial judge’s attention from the need to apply the tests laid down in the cases surveyed earlier”.

On the second issue, Justice Buchanan says the judge’s assessment of the evidence was correct.

“The importance of the subsequent analysis... was that it showed the agents had no business of their own; they were working only in the business of Ace,” he said. “They had no real independence of action or true independence of organisation.

“Once the mutual representation, that the agents were not employees, was set to one side there was no adequate foundation for a conclusion that the relationship was anything other than one of employment.”

Mr O’Donnell says amounts awarded to the claimants have not been paid by Ace, nor has the $10,000 penalty awarded to the five agents.

“With the appeal dismissing the action, we will now make orders for payment of these sums,” he said. “Even if Ace appeals the decision to the High Court, which I understand has been discussed, there is nothing to stop these payments now being made.”