Andrew Bourner v Ad-Lib Theatrical Productions Pty Limited - [2025] FWC 435

[2025] FWC 435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Application for unfair dismissal remedy

Andrew Bourner

v

Ad-Lib Theatrical Productions Pty Limited

(U2024/9848)

DEPUTY PRESIDENT BUTLER

BRISBANE, 13 FEBRUARY 2025

Application for relief from unfair dismissal – jurisdictional objection – whether applicant was an employee – whether applicant was protected from unfair dismissal – whether applicant was dismissed – applicant was not protected from unfair dismissal – applicant had not completed the minimum employment period – application dismissed for want of jurisdiction

The Wakakirri Festival is a performing arts event for primary and secondary schools, held in theatres across five to eight days each year. Ad-Lib Theatrical Productions Pty Limited (Ad-Lib) trades as Wakakirri National Story Dance Festival and runs the event each festival season. Mr Bourner had worked on the event as a stage manager each year from 2010 to 2023, excluding 2020. He did not work on the event for the 2024 festival season.
On 22 August 2024, Mr Bourner applied to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Fair Work Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Ad-Lib.
Ad-Lib filed its response on 3 September 2024. It opposed Mr Bourner’s application, and objected to it on the basis that Mr Bourner was not an employee, or had not met the minimum employment period, and so is not a person protected from unfair dismissal as prescribed by section 382 of the Act. In subsequent submissions the employer has sought to add an additional objection in the alternative, that Mr Bourner was not dismissed because he had been employed for the duration of a specified season, and the employment had terminated at the end of the season.
For the reasons set out below I have decided to dismiss the objection that Mr Bourner was not an employee. However, I have decided to uphold the objection that Mr Bourner had not completed the minimum employment period and dismiss his application.

Relevant facts and background

It is common ground that Mr Bourner has worked on the Wakakirri Festival in Queensland each year since 2010, except 2020 when the festival events were cancelled because of covid restrictions. Mr Bourner initially worked as an Assistant Stage Manager, and then as Stage Manager.[1] Each year the work commenced on the first live show of the season and ended with the final live show of the season.[2]
In the years prior to 2020, Ad-Lib was invoiced for work that Mr Bourner and Assistant Stage Manager Elissa Swaine performed each festival season. Those invoices were issued under business names including “Rockstar Events” and “event AV hire.” From 2021 a corporate entity, described as Upstage Live Events Pty Ltd ATF The Upstage Live Events Trust, issued the invoices in relation to Mr Bourner and Ms Swaine’s work. I will refer to this entity as “Upstage Live Events.”
Before discussing the events of 2024, it is useful to set out the evidence in relation to the engagement for the previous festival season, in 2023.
Ad-Lib has provided a copy of a “Crew Form” that Mr Bourner completed prior to the 2023 Wakakirri Festival. I will refer to this document as the “2023 Crew Form.” It included a range of fields and questions. It was divided into the following parts:[3]
Contact details
Position
Working with Children Check
Employment
Payment is via direct bank deposit
Terms and Agreement.

In the contact details section of the 2023 Crew Form Mr Bourner gave an email address ending in @UpstageLiveEvents.com.au. He completed the “Employment” section as follows, with the questions and field headings in bold, and Mr Bourner’s responses below:
Wakakirri can employ you as a contractor (quoting an ABN) or as an individual who has signed “Statement by a Supplier” form (for not quoting an ABN) and for us to not withhold 46.5% from payment
Contractor

Business name
Upstage Live Events Pty Ltd ATF The Upstage Live Events Trust

ABN
16 711 420 294

Are you registered for GST?
YES

Invoicing Wakakirri
I understand that for payment to be processed I must send an invoice to Wakakirri after the job has been completed

Do you have current Work Cover?
YES

Do you have any current insurances other than workers Cover, such as professional Indemnity Insurance, Public Liability Insurance?
YES

Please list which one/s you have
Public Liability

Under the heading “Terms and Agreement” the following text appears:
I understand that I will report to and accept direction from the Wakakirri Show Day Coordinator and Wakakirri Head Office. I will perform my duties in accordance with the reasonable directions, policies and rules as outlined in the Crew Production Materials provided by Wakakirri Head Office and the SDC. I must attend a pre-production meeting before the first show day. I confirm that I have a current working with children’s check. I have read the official Crew Production Manual for this year and am aware of crew requirements, payment procedure, show day rates, ceremony presentation as well as what is required of me in my selected role. I understand that this position is for the current live show season only and that remuneration will not be paid in the event a show is canceled.
Yes I agree to these terms

Ad-Lib provided copies of various invoices it had received in relation to Mr Bourner and Ms Swaine’s work.
Upstage Live Events issued invoices to Wakakirri dated 19 August 2023, 24 August 2023, and 9 September 2023. The invoices included items for payment of day rates for Mr Bourner and Ms Swaine, and in one case also included items for travel allowance at 78c per kilometre as well as items for the daily rate.
Ad-Lib also provided similar invoices it had received from:
· Upstage Live Events in 2022 and 2021.
· Event AV hire in 2019 and 2018
· Rockstar Events in 2013, 2012, and 2011.

Mr Bourner says that Ad-Lib commenced paying superannuation in 2023. He has provided a pay slip from Ad-Lib to Andrew Bourner dated 27 September 2023. It shows an hourly rate of $0.0000, a pay period from 1 August to 27 September, and a gross pay and net pay amount each of $0.00. It lists the superannuation fund, and has a single payment item, “SGC Superannuation,” in the amount of $287.10 (with the same amount year-to-date). It gives the item type as “Superannuation Expenses.”[4]
Mr Bourner also provided an email from Ms MacPherson which he said he had received in 2023, regarding pay rates. The email is undated, but the attachment is dated 21 June 2023. The email stated:[5]
Hi Andrew,

Thank you for your email & Happy Friday!

Please find Adam’s response and the rates summary below:

We have used the Live Performance Award, Production and support staff level 8. This is considered a part time role as we are offering advanced agreed dates and pattern of work.

We have ensured the rate is equivalent or greater than the hrs worked based on the number of schools rehearsing and performing each day. We are also ensuring crews are not called in earlier than necessary.

Our 7 school daily rate includes 40 minutes of rehearsal for each school, 2 hr bump in, 1hr bump out, 1.5 hr of breaks plus a 2hr 4.45min show.

The attachment is a summary that appears to have been obtained from the Fair Work Ombudsman. It summarises conditions from the Award and the classification referred to in the email. It refers to employment status as “part-time.”[6]
Mr Bourner also provided an excerpt from the 2023 Crew Production Manual which stated, inter alia, “As an employee of Wakakirri, you are our best ambassador.” [7]
Ad-Lib says that the engagement between Upstage Events and Ad-Lib for the 2023 festival season concluded at the end of that season, in September 2023.[8]
Mr Bourner says he was engaged for the 2024 Wakakirri Festival. Ad-Lib says it offered Mr Bourner’s company Upstage Live Events an engagement for the upcoming 2024 Wakakirri Festival season “in early 2024,”[9] but that it had withdrawn its offer before the contract was formalised. The parties provided various documents, which shed some light on the situation.
On 3 April 2024 a Mr Watton, who Mr Bourner says was the state coordinator for the Wakakirri Festival, sent an email to an address that is shown on Mr Bourner’s material only as “Upstage,” attaching a set of dates, including dates in Queensland on 2, 7-9, and 15-16 August, and on 5-6 September. Mr Watton’s email stated as follows:[10]
Hey Andrew and Elissa

Just wanted to send you the dates for WAKA as they are quickly coming up!
Both me and Neri are busy unfortunately :( so we are sorting out another person to be the waka liaison for 2024. Someone we hope you know already!

Let me know if this is something you’re keen for again and I’ll make sure to pass your info onto the SDC when we find them.

Cheers
Jacob

Mr Bourner says that in May 2024 he noticed the dates on the website for the 2024 season had been updated.[11]
On 13 May 2024, Mr Bourner, using his Upstage Live Events email account, emailed Mr Watton as follows:
Hi Jacob,

Hope you’re keeping well.

I see Fri 9 Aug dropped from the heats schedule now too according to the website.

So if i’m right, these are the dates:
Performance Show only – The Events Centre 2 August
Performance Shows – Logan Entertainment Centre 6 – 8 August.
Awards Shows – Logan Entertainment Centre 5 – 6 September

Regards,
Andrew Bourner
Technical Director | Upstage Live Events Pty Ltd
(emphasis and punctuation in original)

In reply on 15 May Mr Watton emailed “Those are the dates! Lock them in she says to me via email! Cheers J.” Mr Bourner says the word “she” is a reference to Ms MacPherson.[12]
On 4 Thursday July 2024 Mr Bourner emailed Mr Watton, saying “Hope you’re well. Just over a month now until our first Waka at Caloundra. Who’s my QLD liaison?” Mr Watton responded the same day with “Eeek have they not reached out! I shall email.”[13] A few minutes later Mr Bourner responded with “haha I have heard nothing yet!”[14]
On the evening of Monday 8 July Mr Watton emailed again saying “Hope someone has reached out today! His name is Brendan Hodder.” The email then gave Mr Hodder’s email address. Later that evening Mr Bourner responded with “No, nothing yet! Who’s Brendan? New QLD rep?” and a couple of hours later, Mr Watton responded with “New rep!”[15]
The following morning, 9 July 2024, Mr Bourner responded with “I shall email Brendan today :)”[16] and then did so, later that morning. Mr Bourner’s email to Mr Hodder was:[17]
Hi Brendan,

Hope you’re well.

Jacob has passed on your details to me, as I have been liaising with him in regards to Wakakirri 2024 dates. I’m Andrew the Stage Manager and Elissa is the Assistant Stage Manager – we have worked together on this show for a long time now!

I am just checking we are all on track for the first event Fri 2 August at Caloundra Events Centre?

A bit closer I will be asking you for the rehearsal schedule and a link to the media so I can download and get prepared from my end.

Looking forward to meeting you and working together on what is always a very fun show!

Regards,
Andrew Bourner
Technical Director | Upstage Live Events Pty Ltd

Mr Hodder responded around ten minutes later saying:[18]
Hi Andrew,
Thanks for getting in touch – Looking forward to connecting with you and Elissa and working together on the Wakakirri show!
I’m only just returning home from working a big gig in Sydney and plan to sit down to look at this one in the next couple of days. I’ll be in touch very soon!
Cheers,
Brendan

On 12 July 2024, Mr Hodder emailed “Upstage” as follows:[19]
Hi Andrew and Elissa,

Thanks for your patience while I organized myself for the upcoming term and for reaching out ahead of time. I’m very much looking forward to working with you both.
Here are the links to the Crew Production Manual, Social Media Brief and the Live Show Script. [Each of these was hyperlinked.] Once the Production Sheets become available I will send them through. If any of your details have changed since the last time you worked Wakakirri, please complete a new Crew Employment Form. [“Crew Employment Form” was also hyperlinked.]

Can you please advise the best email address for yourself Elissa?

Lastly, if you could please nominate a day and time that you are both available to attend a Crew Zoom meeting before the 19/07, I will schedule this with Erikka. I’m available Mon-Fri before 3 pm.

Looking forward to hearing from you soon.

Best regards,
Brendan

Mr Bourner says that no new Crew Employment Form was submitted, because no details had changed.
On 16 July 2024, Mr Hodder forwarded to “Upstage” an email from Ms MacPherson advising details of a Zoom Meeting referred to as “QLD Pre-Season Meeting,” for 26 July 2024.[20] Mr Bourner says he advised that he was not available at the time for which the meeting was scheduled, after which it was rescheduled. On 17 July Mr Hodder forwarded another email from Ms MacPherson with a revised meeting date of 31 July 2024.[21]
On 18 July 2024, Mr Hodder sent another email to “Upstage,” forwarding an email from Ms MacPherson setting out a rehearsal schedule.[22]
On 22 July 2024, Mr Hodder organised a Zoom meeting for 24 July with Mr Bourner to go over details of the up-coming events.[23]
Mr Bourner has provided a document entitled “Show day coordinator production sheet: the events centre” on Wakakirri letterhead dated 23 July 2024 listing “Andrew” as the State Manager and “Elissa” as Assistant Stage Manager.[24]
Mr Bourner says this Zoom meeting occurred on 24 July and lasted 30 minutes. He says he mentioned to Mr Hodder, during this Zoom call, that during the meeting on 31 July he wanted to discuss pay rates and employee entitlements with Ms MacPherson as he was unhappy with the current arrangement. He says that prior to this meeting, the pay rates had not been made available to him.
On 27 July 2024, Mr Hodder forwarded an email from Ms MacPherson dated 26 July, to “Upstage,” Elissa Swaine, and two others. Ms MacPherson’s email of 26 July had commenced with “Please pass the following info on to you crew. [smiley face emoji].” It went on to indicate that Ms MacPherson would be at the venue for bump-in on Friday morning and would return at around 4 pm. The email stated that Wednesday’s meeting was cancelled.[25]
Mr Bourner says he expressed disappointment about this as he had moved other commitments to be available for the meeting of 31 July. It is not clear how or to whom he expressed this disappointment.
That same day, Saturday 27 July, Mr Bourner emailed Ms MacPherson directly:[26]
Hi Erikka,

Hope you’re well. We are looking forward to meeting you on Friday in Caloundra!

I am checking on the 2024 rates for both Caloundra and Logan events.

Last year we had $450 for Caloundra and $360 Logan. Plus mileage of 0.78c/km over 90km return. ATO rate is now $0.88/km FYI. Live Performance Award increased pay rates again on 1 July 2024 to keep up with inflation.

Can you please advise new rates to invoice for this year?

Regards
Andrew Bourner
Technical Director | Upstage Live Events Pty Ltd

On Monday 29 July, Ms MacPherson emailed back:[27]
Hi Andrew & Elissa,

Same to you! Thanks for your email.

Caloundra is a seven school day, so it fits under the bracket of our $360 day rate +super & GST (if registered.)

All Logan shows will be the same with 6 - 7 schools per day.

The travel allowance is the same as last year at this stage however I will ask Adam to increase it to the ATO rate of $0.88c/km.

Chookas,
Erikka.

The same day Mr Bourner responded:[28]
Hi Erikka,

Thanks for that.

If you can get Adam to check the calculations for Caloundra that would be appreciated.

Although it’s a 7 school day, we’ve been called at 9.45am and will leave about 9.30pm - so roughly 12hrs onsite. This is below the award rate, which I’m sure is not intentional on Wakakirri’s behalf.

Adam can call me to discuss if he likes, but last year’s $450 for Caloundra was acceptable. This year Wakakirri has similar expectations for hours onsite, so the same rate would be acceptable. Not sure about you, but I don’t feel like earning less year on year with the cost of living increasing so much!

Thank-you for your understanding. I am hopeful Adam can come to an understanding on this promptly with our first show day on Friday in Caloundra.

Looking forward to meeting you there in the morning :)

Regards,
Andrew Bourner
Technical Director | Upstage Live Events Pty Ltd

On Tuesday 30 July Ms MacPherson responded:[29]
Hi Andrew,

I have confirmed with Adam that the travel allowance will increase to the $0.88c per km after 90km return.

The day rate remains $360 for 7 school days as it had been calculated according to the award.

Chookas,
Erikka.

The same day, Tuesday 30 July, Mr Bourner responded:[30]
Hi Erikka,

Thanks for the email. This is good news regarding the travel rate increase.

1) Can you please share the numbers Wakakirri is using to calculate this rate? Casual employees level 8 are now $39.73/hr on the LPA as per the increase 1 July 2024.

2) If you claim, as per last year, we are part-time employees and use this to justify a lower rate (I believe incorrectly, but only FairWork will be able to make a call on this), can you please indicate why our additional entitlements (annual leave, sick & carer’s leave, long service leave, family leave) haven’t been paid?

3) There is also a Transmission Or Recording Allowance under the LPA which technically should be getting paid too which equates to $164.14 per performance.

4) The number of schools performing doesn’t have a correlation to the pay rate. Staff are paid for the number of hours they work.

5) It’s unreasonable to ask us to work for 20% less ($360 now instead of $450) than last year, but expect a similar amount of hours onsite. As you know, wages go up to keep up with inflation - not the other way.

We do love working on Wakakirri, but are not interested in doing so when we would be going backwards year on year.

Regards,
Andrew Bourner
Technical Director | Upstage Live Events Pty Ltd

On the morning of Thursday 1 August, Mr Hodder sent an email to “Upstage,” Ms Swaine and one other person, “checking in with you all in the leadup to bumping in at 09:45 hrs tomorrow morning at the Events Centre Caloundra.” The email stated, “If there have been any changes on your end at all please let me know asap so I have time to action before tomorrow otherwise I’ll assume nothing has changed with anyone’s circumstances.” The email went on to provide information about a morning crew huddle, resourcing, and meals, and a reminder to review the Crew Manual. Mr Bourner responded thanking him for the check-in, and saying “Yes, we are pumped and ready for tomorrow …”.[31] Mr Hodder appears to have responded with a thumbs up emoji.[32]
Later that same morning, 1 August, Ms MacPherson responded directly to Mr Bourner:[33]
Dear Andrew and Elissa,

Whilst I understand and respect your position, I am unable to meet your requirements at such short notice and therefore accept your decision to discontinue working with us.

On behalf of the festival and the thousands of students who have participated in QLD over these many years, please accept my deepest gratitude and thanks for your hard work and efforts with Wakakirri.

Wishing you both all the very best in your future endeavours.

Chookas,
Erikka.

At around 1.30 pm that day, Mr Bourner emailed Ms MacPherson again, saying “Thanks for your email. We do love Wakakirri and wish to till be involved with this year’s events as we’ve had the dates in our calendars all year!” At around 5.30 pm he emailed Mr Hodder saying “I have been emailing Erikka in relation to the day rates and how they are calculated in relation to the Live Performance Award. I got an email today saying she accepts our decision to discontinue working with Wakakirri. Not something we indicated at all or would want. We are confused to be honest as we had all these dates locked in our calendars and just wanted more clarity as to how they are calculating the day rates.”[34]

That night, having received no response from Ms MacPherson, Mr Bourner emailed again, saying “Hi Erikka, Just checking if we are needed tomorrow at Caloundra.”[35]
Mr Hodder emailed Mr Bourner later that same night, saying “Hi Andrew, Apologies for the late evening response – was working with a client today. I’m not sure about the details behind the outcome of your discussions with Erikka I’m afraid, only that I was advised today the Stage Management roles had been replaced. Sorry I’m not able to provide any other details man. It’s a shame something couldn’t have been worked out in time.” The following morning Mr Bourner responded with “Hi Brendan, Thanks for the reply. Something doesn’t feel right here. I’m going to get the FairWork Ombudsman to investigate.”[36]
Mr Bourner emailed Mr Loxley that afternoon, 2 August:[37]
Good afternoon Adam,

I hope you are well.

Today’s a sad day for Elissa and I, and one for the larger performing arts industry. I’m sitting here writing this email to express my great disappointment with the conduct of Wakakirri in relation to our unfair dismissal for the 2024 season at the Sunshine Coast and Brisbane venues.

Many weeks back I had queried Brendan in regards to the rates. On Saturday last I was asked to email Erikka to clarify the 2024 rates. I was having a robust discussion with Erikka via email in relation to pay rates and entitlements for our work – a discussion any employer should be willing to have.

In 2023, we were advised the wages had been calculated based on a part-time contract under the Live Performance Award in 2022. Erikka was able to provide the calculations which were used to formulate the day rate. We accepted this despite the old 2022 Award being used.

The Live Performance Award was updated on 1 July 2024.

This year, however, I had posed the following questions:
[here he set out the questions from his email to Ms MacPherson of 30 July]

Instead of these questions being answered, I was met with an email advising us Wakakirri (Erikka) accepts our decision to discontinue working with the organisation.

A very strange response considering we were only asking for clarification on how the rates were calculated. That afternoon I responded that we still wish to be involved as we’ve had the dates in our calendars for many months now and I declined other work subsequently. Later that night I sent another email asking if we were still required onsite. There has been no response to either of those emails yet.

In my quest to figure out what was happening, I emailed Brendan last night and received a response at 9.30pm saying we had been replaced. Today we sit here having lost a full day’s work and I’m guessing subsequent days for the remainder of the season. This is not something we had requested at all or were satisfied with.

To not communicate and be able to explain how the rate is being calculated is unacceptable for any organisation.

We were simply trying to have a reasonable open conversation regard rates. Nothing more. Instead we were unfairly dismissed. The correct period of notice was not served by Wakakirri.

This would have been my 14^th year being involved with Wakakirri. It is very disappointing the end has come through this situation.

We will be sending our invoice for payment for the Sunshine Coast and Brisbane events.

Failing payment within 7 days, I will be seeking the advice of the Fair Work Commission and my solicitor to get this issue resolved promptly and fairly.

On 7 August Mr Loxley emailed Upstage and Ms Swaine as follows:
Dear Andrew,

Thank you for your email.

I understand this is an unfortunate situation for you. Organising Wakakirri is a lengthy and complex process, and we endeavour to finalise all aspects of production as early as possible. With this in mind our decision not to utilise your services was not made lightly and was considered in the best interests of the overall event and our staff.

It is important to note that you initiated negotiations only four business days before the first show, despite having been offered the role and rate of pay several weeks in advance. Whilst we don’t object to enquiries of this nature, it adds a level of complexity and pressure when there are time constraints as I’m sure you were aware. At a time when everyone at Wakakirri is already under significant pressure with shows commencing nationwide, Erikka responded to your ongoing inquiries promptly and clearly stated our position. Our concerns about your commitment were highlighted after your reply email on Tuesday where you made it clear your [sic] were unhappy with the offer and concluded with “we do love working with Wakakirri, but are not interested in doing so when we would be going backwards year on year.”

Given the short notice, we could not guarantee that we could resolve your issues and requests in time and ensure staff availability for our Queensland shows. Consequently, we decided to seek other options which we were entitled to do. You have not worked for Wakakirri since the 2023 season, after which your employment ended, as clearly stated in the 2023 employment registration you submitted. Your employment in 2024 was conditional upon your agreement to the 2024 offer and terms and conditions of employment, an offer that you decided to negotiate at the last minute.

Furthermore, it is important to note that although you were offered a role with Wakakirri, you had not formally accepted the position by completing our employment registration form, which includes the working with children check, payment details, superannuation information, and acceptance of our terms and conditions. This annual process, which you are familiar with from your previous work with Wakakirri, was overdue and essential before you could consider yourself employed or being work with Wakakirri in 2024.

Thank you for your understanding.

Sincerely,
Adam Loxley
Wakakirri | Festival Director

Mr Bourner filed his application for an unfair dismissal remedy on 22 August 2024.

Legislative framework

Part 3-2 of the Fair Work Act 2009 (Cth) (the Fair Work Act) relates to unfair dismissal. In unfair dismissal cases the two main questions are:[38]
· Was the Applicant “protected from unfair dismissal” at the time their employment ended?[39]
· Was the Applicant unfairly dismissed?[40]

These questions are considered in that order. If the Commission is satisfied that the answer to both is yes, then it can consider whether to order a remedy for the unfair dismissal.
There are various conditions an applicant has to meet to be protected from unfair dismissal. A threshold question is whether the applicant is an employee, which arises in relation to both of the questions set out above.
If Mr Bourner was not an employee he was not protected from unfair dismissal,[41] and cannot have been “dismissed” within the meaning of that term for the purposes of the relevant provisions.[42] If he was not an employee the Commission cannot order a remedy for unfair dismissal.[43]
Section 380 provides that in the relevant Part of the Act, Part 3-2 – Unfair Dismissal, “employee” means a national system employee, and “employer” means a national system employer. Those terms are defined in Part 1-2– Definitions, in ss 12, 13 and 14 by reference to what makes the employer a “national system employer.” In general terms these definitions relate to the qualifying phrase “national system,” necessary for constitutional reasons that need not be discussed here, while the terms “employee” and “employer” have their ordinary meaning.[44]
Determining whether Mr Bourner was an employee will, relevantly, turn on whether he was an employee within the ordinary meaning of that term. Deciding this question is not necessarily straight-forward. There is a long history of decisions in this tribunal and the courts in relation to deciding whether a person is an employee. To the extent appropriate I will consider these decisions below.
It is also notable that section 15AA of the Fair Work Act relates to determining the ordinary meanings of employee and employer. That section took effect from 26 August 2024,[45] after Mr Bourner filed his application.
If Mr Bourner was an employee, then, in considering whether he was protected from unfair dismissal, the issue in this case is whether he had completed the minimum employment period.[46] The requirement is:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
…

The minimum employment period is either six months or one year, depending on whether the employer is a small business employer for the purposes of the Fair Work Act.[47] The term “period of employment” is defined in s 384 relevantly as follows:
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
…

“Continuous service” is defined in s 22 of the Fair Work Act:
22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2 - 2 (which deals with community service leave); or
(ii) a period of stand down under Part 3 - 5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.

…

The question may then arise as to whether Mr Bourner was dismissed. “Dismissed” has a particular meaning in the Fair Work Act, which is set out in s 386. Under that section, a person has not been dismissed if the person was employed under a contract of employment for the duration of a specified season, and the employment has terminated at the end of the season.[48]
Having made those observations about the legislative framework I now turn to the application in these proceedings.

This application and the objections

The application was made on 22 August, and the employer response was filed on 3 September. The matter did not resolve via conciliation and was allocated to my chambers. In anticipation of deciding the Respondent’s objection, I issued Directions for the parties to exchange materials.
Various procedural matters were dealt with in the weeks following those Directions being issued.
A determinative conference, to decide the Respondent’s objections, was held on 11 December 2024. Each party was unrepresented. Mr Bourner gave evidence, and Mr Loxley gave evidence for the Respondent.

Submissions

The Respondent filed submissions in the Commission on 25 October 2024. The Applicant filed materials, containing argument, in the Commission on 11 November 2024. The Respondent files materials in reply on 3 December 2024.
In summary, Ad-Lib says:
a) Mr Bourner was not an employee of Ad-Lib, and never had been;

b) If Mr Bourner was an employee, then:

i. he did not complete the minimum employment period, having regard to the total number of days worked since 2010, and was therefore not protected from unfair dismissal;

ii. he was hired for a specific season, the 2023 season, his engagement ended at the end of that season, there was no automatic renewal and no formalised contract by which he was to be engaged for the 2024 season, and it was able to, and did, withdraw its offer to him in relation to the 2024 season. So, he was not dismissed on 2 August 2024.

It also argues Mr Bourner’s claim is vexatious.
Mr Bourner says he was an employee of Ad-Lib. He referred the Commission to CFMMEU v Personnel Contracting [2022] HCA 1 (which I will refer to as “Personnel”) and ZG Operations v Jamsek [2022] HCA 2 (which I will refer to as “Jamsek”). He argues that he was a permanent part-time employee. He says he has had ongoing involvement with Wakakirri since 2010 (excluding 2020 when the events were cancelled). I take this as a tacit submission that he had completed the minimum employment period. He points to the email correspondence and other documents referred to above as showing that he had been engaged for the 2024 season. The 2024 season had not finished as at 1 August 2024, which Mr Bourner says was the date of dismissal.
I will deal with the parties’ submissions in further detail, to the extent necessary, below. I will first consider the question of whether Mr Bourner was an employee.

Was the Applicant an employee of the Respondent?

The issue to be decided is whether the Applicant was an employee of the Respondent.
The application was filed on 22 August 2024, prior to new section 15AA of the Fair Work Act taking effect. Accordingly, I will consider Personnel and Jamsek. A Full Bench has summarised the approach under Personnel.[49] In brief the approach is as follows.
a) If there is a wholly written, comprehensive contract that is not a sham or otherwise ineffective, the question is to be determined solely by reference to the rights and obligations under that contract. It is not permissible to examine or review the performance of the contract or the course of dealings between the parties.

b) The parties’ subsequent conduct may be considered to ascertain the existence of variation of contractual terms.

c) The multifactorial approach has relevance only in respect of the required assessment of the terms of the contract.

d) It is necessary to focus on those aspects of the contractual relationship which bear more directly upon whether the worker’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise.

e) Existence of a contractual right to control the activities of the worker (including how, where and when the work is done) is a major signifier of an employment relationship.

f) The label placed on the relationship by the contract is not relevant or at least is not determinative.

Following Personnel and Jamsek I will first consider whether there was a written contract between Mr Bourner and Ad-Lib in effect as at 1 August 2024.
As indicated above the 2023 Crew Form ended with a section called Terms and Agreement which provided:
I understand that I will report to and accept direction from the Wakakirri Show Day Coordinator and Wakakirri Head Ofﬁce. I will perform my duties in accordance with the reasonable directions, policies and rules as outlined in the Crew Production Materials provided by Wakakirri Head Ofﬁce and the SDC. I must attend a pre-production meeting before the ﬁrst show day. I conﬁrm that I have a current working with children’s check. I have read the ofﬁcial Crew Production Manual for this year and am aware of crew requirements, payment procedure, show day rates, ceremony presentation as well as what is required of me in my selected role. I understand that this position is for the current live show season only and that remuneration will not be paid in the event a show is canceled.

The response from Mr Bourner was “Yes I agree to these terms.” The Terms in the 2023 Crew Form incorporated the Crew Production Manual for that year, by reference. Only a brief excerpt of that document is before me, but I infer from the text above that the Manual provided for day rates (that is, payment rates).
The 2023 Crew Form anticipated Mr Bourner providing his business name. Mr Bourner listed “Upstage Live Events Pty Ltd ATF The Upstage Live Events Trust” in the relevant field. But it is self-evidently not a business name but the name of a corporate entity and the trust for which it is the trustee.
Was Mr Bourner a party to the “Agreement” in the 2023 Crew Form, or did he accept on behalf of Upstage Live Events? The former. The blank Crew Form represented Ad-Lib’s offer. The terms require the offeree to report to and accept direction from certain people, and to perform duties. The terms required the offeree to attend a pre-production meeting, which suggests the offeree is a natural person. The terms required the offeree to warrant they had a working with children check. These are checks obtained by persons who are or will be employees, volunteers, or executive officers of companies (necessarily, natural persons) in certain regulated employment and businesses.[50] The “Terms and Agreement” provision constituted an offer capable of acceptance only by a natural person. The better view is that Ad-Lib was making the offer to a natural person, and Mr Bourner agreed to it on his own behalf.
Was this a new contract or a variation of an existing contract? Invoices aside, there were no documents put before me showing any written terms agreed between Ad-Lib on the one part and Mr Bourner or Upstage Live Events on the other, from years prior to 2023. The parties were in dispute about the extent to which similar Crew Forms had been utilised in those prior years. No Crew Form from a previous year is before me.
What is apparent from the evidence is that on the face of its written terms, the contract that was in place in 2023 expired at the end of the live show season that year. There is nothing before me to indicate there was any agreement between the parties, during the life of the parties, to vary the contract to provide for a later termination date.
So, if there was a written contract in 2024 it was a new contract. What can be said about its terms? There was an email from Mr Watton on 3 April that:
a) made clear he was not the “waka liaison” for 2024; and

b) asked about Mr Bourner and Ms Swaine’s interest in working on the festival that year, so that he could pass that interest on to the new person.

There were some emails between Mr Watton and Mr Bourner in May about dates, in which Mr Watton appears to have passed on a message from Ms MacPherson confirming that those were the dates.
On 4 July Mr Bourner chased Mr Watton for the name of the new liaison. On 8 July Mr Watton advised the identify of the new liaison. On 9 July Mr Bourner contacted the new liaison, Mr Hodder, directly. His email conveyed the impression that his engagement, and Ms Swaine’s, was a foregone conclusion. Mr Hodder sent back a short acknowledgement on the same date, but did not send a substantive email until 12 July 2024.
The email of 12 July 2024 constituted an offer. As indicated above it was addressed to both “Andrew” and “Elissa,” and stated, relevantly:
Here are the links to the Crew Production Manual, Social Media Brief and the Live Show Script. [Each of these was hyperlinked.] Once the Production Sheets become available I will send them through. If any of your details have changed since the last time you worked Wakakirri, please complete a new Crew Employment Form. [“Crew Employment Form” was also hyperlinked.]

Can you please advise the best email address for yourself Elissa?

Lastly, if you could please nominate a day and time that you are both available to attend a Crew Zoom meeting before the 19/07, I will schedule this with Erikka. I’m available Mon-Fri before 3 pm.

As I have indicated above, in 2023 the Crew Form included a Terms and Agreement provision which incorporated the 2023 Crew Production Manual by reference. And the 2023 Crew Production Manual, it can be inferred, contained various terms including pay rates. But no party put the 2024 Crew Employment Form or the 2024 Crew Production Manual before me. It may have been open to draw an adverse Jones v Dunkel inference from the Respondent’s failure to put this material into evidence. But even if such an inference were drawn that would not assist me in being able to identify the terms of the contract to the extent that they were written in the 2024 Crew Employment Form and/or 2024 Crew Production Manual that are not before me. I do not draw any Jones v Dunkel inference.

Mr Hodder’s email at least implies that the Crew Employment Form seeks similar information to the 2023 Crew Form in that he indicates that it need be completed only if any of details had changed. But there is no evidence before me that allows me to discern whether there was an equivalent “Terms and Agreement” provision and, if so, what it said. It follows that I do not have anything to indicate whether the 2024 Crew Production Manual was incorporated by reference. Though I can infer that there were at least some terms that were in writing, the content of such written terms is not able to be confidently inferred from the evidence. It would be an error to cross the line from inference into conjecture.[51]
Mr Bourner says that no new Crew Employment Form was submitted, because no details had changed. Given that he did not submit the Crew Employment Form, did he otherwise accept the offer? As indicated Mr Hodder expressly indicated that returning the form was unnecessary unless details had changed. He did, though, tell Mr Bourner to provide his availability for a Crew Zoom meeting. It is not clear whether Mr Bourner did so but four days later one was scheduled, at a time when Mr Bourner says he was not available. The date was changed the following day to accommodate Mr Bourner. From this it is clear enough that Mr Bourner took steps to schedule or at least reschedule the meeting. In my view this can be taken as acceptance of the offer of 12 July 2024. The parties’ subsequent conduct was consistent with a shared view that Mr Bourner had been engaged to work on the festival in the 2024 live show season. But again, I do not have the before me the full content of the offer of 12 July 2024.
In the circumstances I find that the Respondent has not made out its jurisdictional objection, as it was required to do to succeed in that regard.[52] Nor do I consider that Mr Bourner has yet proven his status as an employee. In the circumstances, I will take an approach similar to that taken in Ranili and Ors v Datatime Services Pty Ltd.[53] I make no positive finding as to whether Mr Bourner was an employee, but I dismiss this jurisdictional objection. Mr Bourner would still have to prove that he was an employee, in order to make out his case in the substantive matter, if the matter was to proceed to hearing and determination. But as I indicated above, I have decided to uphold the second of the objections, relating to the minimum employment period. I will turn to that issue now.
The question is whether Mr Bourner’s service allowed him to meet the minimum employment period assuming he was an employee. Mr Bourner argued he was a part-time employee, but also made submissions about the provisions of ss 383 and 384 that relate to casuals, regarding regular and systemic employment, and reasonable expectation of ongoing employment. The Respondent argues Mr Bourner was not an employee at all. In my view, if Mr Bourner was an employee, he was a seasonal employee, at least in 2023, having regard to that year’s Crew Form. I have referred to some decisions below that differ as to whether there is distinction between casual and seasonal employment in this context. Before referring to them I will make some observations about how the Fair Work Act’s unfair dismissal provisions operate in relation to seasonal employment.
Prior to the Fair Work Act, seasonal employees were simply excluded from the operation of the unfair dismissal provisions.[54] Under the Fair Work Act, the provisions are different. A seasonal employee is not ‘dismissed’ if their employment comes to an end at the end of the season.[55] This different approach means the question of whether a seasonal employee whose employment ended other than at the season can be ‘protected from unfair dismissal,’ can be in issue. That in turn raises the issue of how service as a seasonal employee is to be treated for the purposes of the minimum employment period.
In Ponce v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic[56] Roe C was considering the effect of ss 383 and 384 in relation to casuals, and what could constitute regular and systemic employment. His view was that full-time and part-time work was by definition regular and systematic.[57] As to casual work he said:[58]
[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.

(citations omitted)

This might be construed as meaning that casual work that is also seasonal work could be taken to be regular and systemic casual work notwithstanding the long periods of absence inherent in seasonal work.
In Unilever Australia Trading Limited v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[59] (Unilever) a Full Bench considered continuity of service for seasonal workers in the context of the construction of an enterprise agreement. They relevantly said:[60]
[18] Casual and seasonal employees render service. In relation to casuals, the common law position is that each engagement stands alone. Each engagement constitutes a period of service, but there is no continuity of service from one engagement to the next. Such is the case also with seasonal workers, who render service for each season they are engaged, but ordinarily do not have continuity of service from one season to the next. The common law position can of course be altered by statute, contract, or an industrial instrument.

(citation omitted)

In Joshua Rei v Marlau Nominees Pty. Ltd. T/A Paramount Liquor,[61] the employer described its work as seasonal, with casuals working more hours during the peak season. Mr Rei was employed until July 2019 and was employed again three months later, both times as a casual. When he finished up in July 2019, he headed off to do seasonal work in the snow fields, with no expectation of continuing regular and systematic work on his return, only a prospect of a further engagement. Then, when he did pick up work with Paramount again three months later, he was engaged on a regular and systematic basis. He was dismissed for misconduct after eight weeks, and at that point did have an expectation of continuing employment. The consequence was that only the service during the employment that had commenced in late 2019 was taken into account, and he did not meet the minimum employment period requirement.[62]
In Kerry Grey v CBH Group[63] the Commission was dealing with an application for an extension of time. In doing so the Commission considered the merits of the substantive application, and said:[64]
[28] On its face seasonal agricultural casual employment such as this, by its very nature, is unlikely to meet the requirements of section 384(2) of the Act. Consequently, it is more likely than not that this aspect of the Respondent’s further jurisdictional objections would succeed. This weighs against granting an extension of time.

In Isaac Howard v Falls Creek Ski Lift Pty Ltd T/A Falls Creek Ski Lift Group[65] (Howard) the Full Bench considered a situation in which a seasonal worker had not been offered work for the current season. They said:[66]
[33] Mr Howard’s employment contract and relationship with Falls Creek concluded on 2 October 2022 by reason of the agreement between the parties, as recorded in the employment contract. There was no termination at the initiative of Falls Creek. Further, in those circumstances the decision by Falls Creek, in February 2023, not to offer any further contract of employment to Mr Howard is not relevant to the question of whether there was a termination of employment at the initiative of the employer. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment contract and relationship at the conclusion of the 2022 winter season. It follows that Mr Howard was not dismissed within the meaning of s 386 of the Act and it was correct for the Deputy President to dismiss his unfair dismissal application.

(citations omitted)

The facts of this matter differ in that Mr Bourner was offered an engagement for the new season, and, in my view, having regard to the basis on which Mr Hodder put the offer, accepted it by his conduct. However, it is relevant that the Full Bench considered that the employment contract and relationship had ended at the conclusion of the previous season as recorded in the employment contract. That bears obvious similarity to the situation here, bearing in mind the content of the “Terms and Agreement” provision in the 2023 Crew Form that Mr Bourner accepted.
Taking an approach consistent with the foregoing decisions, including the Full Bench decisions in Unilever and Howard, requires:
· taking the employment contract and relationship as having ended at the end of the previous season;

· considering that there is not continuity of service between the current season’s work and the previous season’s work.

This approach is also consistent with ss 383, 384 and 22, in my respectful opinion.
An implication of this approach is that, as observed in Kerry Grey v CBH Group, seasonal workers may be unlikely to meet the minimum employment period. People negotiating employment contracts or enterprise agreements can turn their minds to this issue.
Adopting the approach set out above, and assuming, without finding, for the purposes of considering this issue that Mr Bourner was an employee, then at the time of his dismissal he had completed only a short period of continuous service. There is nothing on the material that states an explicit start date for the engagement. I can infer that it was somewhere between 12 July 2024 and 2 August 2024. So, I uphold Ad-Lib’s objection that Mr Bourner had not completed the minimum employment period.
It follows that it is not necessary to consider the issue of whether Mr Bourner had been dismissed.

Conclusion

I have dismissed the Respondent’s objection that it had made on the basis that Mr Bourner was not an employee for the reasons stated above. However, I have upheld the Respondent’s objection that Mr Bourner was not protected from unfair dismissal when his employment came to an end.
I order as follows:
A.The application is dismissed.

DEPUTY PRESIDENT

Appearances:

A Bourner, the Applicant, on his own behalf
A Loxley for the Respondent

Determinative Conference details:

2024
Brisbane and via Microsoft Teams (Video Conference)
11 December

[1] Exhibit R1, Witness statement of Mr Adam Loxley dated 25 October 2024, 2.

[2] Ibid.

[3] Exhibit R2, 2023 Crew Form.

[4] Exhibit A1, Applicant’s materials, Appendix E.

[5] Exhibit A1, Applicant’s materials, Appendix B.

[6] Exhibit A1, Applicant’s materials, Appendix C.

[7] Exhibit A1, Applicant’s materials, Appendix F.

[8] Exhibit R1, Witness statement of Mr Adam Loxley dated 25 October 2024, 3.

[9] Ibid.

[10] Exhibit A1, Applicant’s materials, Appendix H.

[11] Exhibit A2, Applicant’s statement.

[12] Exhibit A1, Applicant’s materials, Appendix I.

[13] Exhibit A1, Applicant’s materials, Appendix J.

[14] Exhibit A1, Applicant’s materials, Appendix K.

[15] Ibid.

[16] Exhibit A1, Applicant’s materials, Appendix K.

[17] Exhibit A1, Applicant’s materials, Appendix L.

[18] Exhibit A1, Applicant’s materials, Appendix L.

[19] Exhibit A1, Applicant’s materials, Appendix M.

[20] Exhibit A1, Applicant’s materials, Appendix N.

[21] Exhibit A1, Applicant’s materials, Appendix O.

[22] Exhibit A1, Applicant’s materials, Appendix P.

[23] Exhibit A1, Applicant’s materials, Appendix Q.

[24] Exhibit A1, Applicant’s materials, Appendix G.

[25] Exhibit A1, Applicant’s materials, Appendix R.

[26] Exhibit A1, Applicant’s materials, Appendix S; Exhibit R8.

[27] Ibid.

[28] Exhibit A1, Applicant’s materials, Appendix T; Exhibit R8.

[29] Ibid.

[30] Ibid.

[31] Exhibit A1, Applicant’s materials, Appendix V.

[32] Exhibit A1, Applicant’s materials, Appendix W.

[33] Exhibit A1, Applicant’s materials, Appendix T; Exhibit R8.

[34] Exhibit A1, Applicant’s materials, Appendix W.

[35] Exhibit A1, Applicant’s materials, Appendix U.

[36] Exhibit A1, Applicant’s materials, Appendix W.

[37] Exhibit A1, Applicant’s materials, Appendix X.

[38] Fair Work Act 2009 (Cth) s 390.

[39] Fair Work Act 2009 (Cth) s 382.

[40] Fair Work Act 2009 (Cth) ss 385 and 390(1).

[41] Fair Work Act 2009 (Cth) s 382(a).

[42] Fair Work Act 2009 (Cth) s 386.

[43] Fair Work Act 2009 s 390(1)(a).

[44] See also Fair Work Act 2009 (Cth) s 11.

[45] Fair Work Act 2009 (Cth) sch 1 subcl 116(1).

[46] Fair Work Act 2009 (Cth) s 382(a).

[47] Fair Work Act 2009 (Cth) s 383.

[48] Fair Work Act 2009 (Cth) s 386(2)(a).

[49] Chambers and O’Brien v Broadway Homes Pty Ltd [2022] FWCFB 129, [74].

[50] Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 156, 157, 175, 176B and sch 1.

[51] Belena Ranili, Nicole Radford, Anna Mizrahi and Phyllis Burns - Woods v Datatime Services Pty Ltd[2003] AIRC 597 (PR932016), [24].

[52] Abraham Abdalla v Viewdaze Pty Ltd[2002] AIRC 1150 (PR922818), [6].

[53] PR932016 [2003] AIRC 597. See also Abraham Abdalla v Viewdaze Pty Ltd[2002] AIRC 1150 (PR922818), [6] and Roger Douglas Bigum v Western Australian Aboriginal Media Association[2005] AIRC 229 (PR956560), [64] to [67].

[54] Workplace Relations Act 1996 (Cth) as in force immediately prior to the commencement of the Fair Work Act 2009 (Cth), subss 638(1) and (8).

[55] Fair Work Act 2009 (Cth) s 386(2)(a).

[56] [2010] FWA 2078.

[57] Ibid, [67].

[58] Ibid, [66].

[59] [2018] FWCFB 4463.

[60] Ibid, [18].

[61] [2020] FWC 2501.

[62] Ibid., [49] to [51].

[63] [2022] FWC 518.

[64] Ibid, [28].

[65] [2023] FWCFB 154.

[66] Ibid, [33].

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Citations

Andrew Bourner v Ad-Lib Theatrical Productions Pty Limited [2025] FWC 435

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Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1

ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2