Cameron Robertson v Hastings Deering
[2025] FWC 1302
•26 JUNE 2025
| [2025] FWC 1302 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Cameron Robertson
v
Hastings Deering
(U2025/554)
| DEPUTY PRESIDENT LAKE | BRISBANE, 26 JUNE 2025 |
Application for an unfair dismissal remedy – jurisdictional objection – not an employee – whether a contract exists – labour hire worker – no contract – jurisdictional objection upheld – application dismissed
Mr Cameron Robertson (the Applicant) brought an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from Hastings Deering (the Respondent).
The Respondent raised a jurisdictional objection that the Applicant was not an employee of the Respondent, and he was instead an employee of a related entity, Haynes Mechanical Pty Ltd (Haynes). To consider the merits of the Application, the Commission must determine whether the Applicant was a person protected from unfair dismissal under s.396 of the Act.
Directions were issued and a hearing was held on 19 March 2025 and 27 March 2025. The Applicant was self-represented, and Mr James Christensen from McInnes Wilson Lawyers appeared on behalf of the Respondent. Representation was granted to the Respondent for the purposes of efficiency, given the legal complexity arising from identifying elements of a contract and the indicia for determining an employment relationship.
Is the Applicant an employee of the Respondent?
The Applicant argued that he had been told that he would be able to be a permanent employee of the Respondent in the future. He states that he was interviewed at Hastings Deering by the workshop manager and following drug and alcohol test and fitness for work tests, he underwent the Hastings Deering induction. He commenced working at the Respondent’s workshop and stated that he had good feedback on his work performance. After six months in the role, the Applicant states that he asked about being made permanent and was not given an answer. He claims he was terminated by Hastings Deering.
The Applicant lodged an unfair dismissal application on 16 January 2025 naming the Respondent as Hasting Deering and alleging he had been dismissed by them on the 15 January 2025. On the 30 January 2025, Ms Riemer of Haynes advised the Commission that Haynes, not the Respondent, was the Applicant’s employer. The Applicant chose not to discontinue his application and lodge a new application naming Haynes as his employer.
On 5 February 2025, the Respondent filed a Form F3 and stated that the Applicant was not an employee and had never been employed by them in the past and that in order to pursue an application under section 394 of the Act, the Applicant must: (a) have completed the “minimum employment period” with their employer (b) have been “dismissed” by their employer.
There are two sub-issues arising from the Respondent’s jurisdiction objection that the Applicant is not an employee of the Respondent. One follows the other. Firstly, whether there is contract between the Applicants and Respondent and secondly, whether, in practice, the contract is one of an employment relationship.
The question of whether there is a contract in place involves consideration of the elements of a valid contract. I referred the parties to the elements of a valid contract from Macken’s Law of Employment, 9th Edition:[1]
The “intention” between the parties to create a legal relationship, the terms of which are enforceable.
An offer by one party and its acceptance by the other.
The contract must be supported by valuable consideration.
The parties must be legally capable of making a contract.
There must be an absence of vitiating factors.
The contract must not be rendered ineffective by reason of conduct which is illegal or contrary to public policy.
Is there a contract between the Applicant and Respondent?
Prior to considering the individual elements of a contract, it is necessary to consider in greater detail the dealings between the parties.
Recruitment process
The Applicant states that he applied online for a job with Hastings Deering.[2] He says he had applied to work with them a couple of times in the past. He says he was “assured” he would be working with Hastings Deering.[3]
Sometime after applying, the Applicant received a call from “Taylor at Haynes” about a position at Hastings Deering. The Respondent identifies that the Taylor the Applicant is referring to is Ms Taylor Collett, who is an employee of Haynes and who manages the placement of labour hire workers with Hastings Deering.[4] Ms Collett asked the Applicant questions about his qualifications and experience, including asking about whether he had a forklift licence and his manual handling experience. The Applicant said that Ms Collett asked “basic questions” and then told him she would pass on his information to Hastings Deering.
The Applicant then got a call back from Haynes to go for an interview. The Applicant at this point looked up who Haynes were and identified that they had a common owner with Hastings Deering.
Meeting on 15 April 2024
The Applicant states he then had an interview with Mr Jonathan Eddy, leading hand at Hastings Deering. According to Mr Eddy, this was a meeting rather than an interview and it occurred on 15 April 2024.
Mr Eddy gave evidence that there was a need at the time for a temporary worker to fill a storeperson role in the Hastings Deering warehouse. Mr Eddy usually spoke to Ms Collett about finding temporary workers.[5]
The Applicant states that during the meeting Mr Eddy asked him further questions about his experience. The Applicant states that Mr Eddy told him that several others had applied and that he was doing the selection process for Hastings Deering. He says that Mr Eddy referred him to the benefits of working in the Sime Darby group (the corporate group which both Haynes and Hastings Deering are a part of) including discounts and the like. He said he felt Mr Eddy was trying to “sell him” on the role. The Applicant states that he told Mr Eddy that he was looking for a career, not a job.[6] Mr Eddy reportedly told the Applicant that a full-time role may be available in 6 months.
During the hearing I confirmed with the Applicant that at no point during the meeting did Mr Eddy say to him words to the effect of: “You’ve got the job”. Mr Eddy told the Applicant that he was interviewing others and that, in order to progress through the recruitment process, the candidate would have to undertake a medical assessment. The Applicant’s understanding was that if he passed a medical assessment, he would have the job.
From Mr Eddy’s perspective, he gave evidence that he has no authority as a leading hand to offer anyone a full-time role.[7] Mr Eddy recalls the meeting as follows:
19. During my meeting with Mr Robertson, we discussed the general duties he would be asked to provide if he worked within the parts team, and his background and experience for undertaking those duties.
20. During our discussions I recall expressly confirming with Mr Robertson that he understood this was a labour hire placement, to assist on a temporary basis, and that he
would be engaged via Haynes.21. Mr Roberston acknowledged he understood this but asked whether he could become a Hastings Deering employee.
22. I recall I advised Mr Robertson that it was not uncommon for workers who started out as labour hire employees, to be offered permanent employment with Hastings
Deering's when a permanent position became available. However, this was unlikely to occur for at least six months, as Hastings Deering was required to pay Haynes a recruitment fee if it directly hired a labour hire employee within six months of them being placed with the business.[8]
A significant theme of the Applicant’s evidence is that he felt mislead because he thought he would be working with Hastings Deering, not Haynes. He had resigned from his previous position in order to take up the role as Storeperson.[9]
Following the meeting with Mr Eddy, the Applicant was again contacted by Haynes for a medical assessment. He gave evidence that the Ms Collett called him approximately a week after the interview with Mr Eddy to tell him that he would be booked for a medical assessment.
The Applicant provided an email he received Workforce Health Assessors on 19 April 2024.[10] The email is partially cut off but appears to say that a health assessment “for the business of Hastings Deering” has been booked.
Mr Robertson attended the health assessment on 22 April 2024 and had a further assessment on 25 April 2024. He was certified as fit for work.[11]
The Applicant states that he spoke to Mr Eddy not long after this and informed Mr Eddy that he would give two weeks’ notice at his current job. Mr Eddy stated that he does not recall that telephone conversation.
The Respondent called Ms Kristina Riemer, Recruitment Manager for Haynes as a witness. Ms Riemer provided a copy of an email sent to the Applicant from Haynes on 7 May 2025. The email is from the Haynes Recruitment Team and states:
Hi Cameron Robertson
Thank you for your recent application with Haynes Group for the position of Storeperson.
Your application has been considered and you have now been sent the Haynes Registration via our onboarding platform Flare.
The registration will take around 15-20 minutes and you will be required to supply your personal details and complete our safety inductions.
Once you have completed the registration please reply to this email and a recruiter will be in contact with you.[12]
On 13 May 2024, the Applicant signed a document called “Application for Employment”.[13] The document is clearly headed as being from Haynes. The document asked questions about basic personal details and the Applicant’s references.
The Applicant states that he completed the paperwork on the 14th, presumably 14 May 2024. The Applicant said he then sent the paperwork back to Ms Collett.
The Respondent provided a document signed by the Applicant dated 14 May 2024 entitled “Terms and Conditions of Employment”.[14] The header of the document notes that it is from Haynes. The document begins with:
1 Casual engagement
1.1 The Company provides labour hire services to various clients. You will be employed by the Company on a casual basis from time to time to provide services to our clients at times required by the client.
1.2 Each period of engagement as a casual employee will constitute a separate period of employment from any other period of engagement.
1.3 The Company makes no commitment to provide you with regular or ongoing employment and nothing in this letter should be taken as constituting such a commitment. As the basis of any period of employment is casual, you will have no entitlement to continuing or further employment after the conclusion of each engagement.
1.4However, should an employee achieve 6 months of regular and systematic casual service on their current Assignment, a request may be submitted to the Employer, in writing, requesting conversion of the Employee’s employment to permanency. The Employer will make reasonable efforts to accommodate such a request. Where, despite reasonable efforts, the Employer is unable to satisfy such a request, the Employer will provide the Employee with reasons.
On 14 May 2024, the Applicant received the following email from Ms Collett from Haynes:[15]
Hi Cameron Robertson,
We are pleased to offer you employment with Haynes Mechanical Pty Ltd (the Company) on a casual basis. Your engagement with the Company as a casual employee is as per the terms of the following Notice of Assignment.
Employer
Haynes Mechanical Pty Ltd
ABN 49 066 059 541Name of Client
Hastings Deering (Australia) Ltd
43002- CairnsSite Contact Name & Number (please
save in your phone)Jonathan Eddy - Parts Leading Hand | [phone number redacted] Client Address 101 Kenny St, Cairns City QLD 4870 Start Time 8:30am Position Title Storeperson Employment Type Casual Commencement
Date of Assignment15/05/2024 Hours of Work As directed by the client. Hours of work to
include up to 38 ordinary hours per week,
which may be averaged over 12 weeks and
include all days of the week and public
holidays as required.Hourly Rate $31.00 per hour plus penalties Hourly Rate
DefinitionThe casual hourly rate is inclusive of 25%
loading lieu of any entitlement to paid leave
(except LSL as per legislative requirements),
redundancy or notice.PPE Requirements HIVIS Shirt, Pants and Steel Cap Boots
*Safety Glasses, Gloves & Glove
supplied by Hastings Deering*Special Conditions
.The hourly rate may be subject to change
dependent on each assignment period
* Please note if you are unable to attend a rostered shift, contact your Supervisor AND your Haynes Recruitment Coordinator before the absence.
Any incidents or injuries (work-related or non-work-related) are to be reported to your
Supervisor AND your Haynes Recruitment Coordinator.
You will receive an email for electronic Fast Track Timesheets within 48 hours of
commencement.
Please note the following;
· Pay week is Monday - Sunday each week.
· Timesheets are to be submitted your last shift of the week to ensure your supervisor has enough time to also log in and approve your timesheet by cut off on Monday.
· Failure to submit your timesheet by 10 am Mondays may result in the delay of payment being received.
· Payment will be received into your nominated bank account no later than Thursday each week.
· If you have any questions regarding timesheets or payment, please contact our administration team via email at [email address redacted].
(emphasis added)
A Hastings Deering site induction checklist was completed on 15 May 2024. The Applicant’s name appears as the inductee and the Company Name is stated to be Haynes.[16] The Applicant signed off on having completed the site induction and Mr Eddy was the inductor. The Applicant argues that there is something nefarious behind the writing on the form being completed in different handwriting and different pen colours.[17] The most rational explanation would be that one section was completed by the Applicant and the other by Mr Eddy. I decline to make any inference based on the handwriting.
The Applicant received his uniform approximately two months into his role. The Applicant wore a Haynes uniform in the workshop. The Applicant says this detail is an afterthought and irrelevant. Similarly, the Applicant argues that the fact that Haynes paid him on a fortnightly basis for his work is an “afterthought” and does not support Haynes being his employer.
The Applicant submitted timesheets to the Haynes through an app that Haynes uses, “FastTrack”. Hastings Deering uses a different app for its employees’ timesheets.[18] The payslips provided evidence that Haynes paid the Applicant.
Between 15 May 2024 and 15 January 2025, when the Applicant’s employment was terminated, the Applicant completed several online induction courses. The email evidence which the Applicant provided indicates that the induction courses were requested by Hastings Deering. Mr Kegan Scherf, employee relations manager for Hastings Deering, stated:
28. I am aware that on 20 February 2025, Mr Roberston sent to the Commission two emails containing various screenshots taken by Mr Roberston.
29. I note that a number of those screenshots are of emails or messages from Rapid Global.
30. Rapid Global is a software company who specialise in compliance, safety and risk management software. Hastings Deering engages Rapid Global to assist with the delivery of its safety induction courses and training, including for temporary labour workers such as Mr Robertson.
On 15 January 2025, the Applicant was notified by Haynes that his employment had been terminated. According to Haynes, the reasons for the termination was: “due to performance concerns along with challenging market conditions, Mr Robertson’s position was no longer required”.
On the same day, the Applicant sent a text message to Ms Collett:
Hi Taylor,
Just letting you know that it's now with fairwork Co. Being treated differently under the
fairwork acts is illegal whether you're part time or full time if you've been employed over 6 months. So just letting you know I've already won these cases and it's an easy victory from here/a walk in the park .I know you didn't mean to do the wrong thing but Scott has broken the law under the law of fairwork Co Australia. He's in for a shock. As I've already submitted the form 2 for unfair dismissal I will be preceding forth with it. Thankyou Taylor for giving me the opportunity. If I don't hear from you in the future take care.
Consideration
The Applicant relied on intuition more than evidence. The Applicant primarily referred to “information on the Fair Work website” in support of his argument. The Applicant provided his evidence in the form of individual screenshots. He seemed to not read the information which was sent to him by the Commission. He also had repeated issues opening pdf files. While the role of the Commission is not to provide IT support, equally if parties can explain what the issue is, the Commission can provide assistance. The Applicant offered no helpful explanation. Accommodations were made for the Applicant. The hearing was held over two days to allow the Applicant to provide further evidence addressing the key issues and to access the digital materials. I also allowed the parties an opportunity to provide written closing submission after the hearing.
To assist the Applicant, as he has no legal training, I provided a list of the elements of a valid contract to the parties. He did not address those elements in his written submissions.
The Applicant was not an impressive witness. He was vague when recalling relevant details and was argumentative and dismissive under cross-examination, even when asked about basic facts. This behaviour negatively affected the Applicant’s credibility.
The Applicant primarily makes a misleading and deceptive conduct argument, for which he is in the wrong jurisdiction.
Elements of contract
Intention to create legal relations
The Respondent asserts that:
[29] The Respondent submits that the only contact between the Applicant and the Respondent prior to his placement on 15 May 2024, was in a meeting between Mr Jonathan Eddy, who is a leading hand in the parts area, and the Applicant on 15 April 2024.
[30] Consistent with the Engagement Process under the Master Services Agreement, the purpose of this meeting was for Mr Eddy to provide his “feedback on the proposed worker” and advise Haynes Mechanical whether to progress to the next stage in the Engagement Process, being the scheduling of medical assessment.
The Applicant claims that he was told that 6 months down the track, there may be a full-time role available with Hasting Deering. Mr Eddy stated that he told the Applicant:
I recall I advised Mr Robertson that it was not uncommon for workers who started out as labour hire employees, to be offered permanent employment with Hastings Deering's when a permanent position became available. However, this was unlikely to occur for at least six months, as Hastings Deering was required to pay Haynes a recruitment fee if it directly hired a labour hire employee within six months of them being placed with the business
The Applicant referred to his prior employment experience with P&O Cruises as informing his understanding. He asserts that the Respondent took a much more active role in recruitment than would be expected for a host employer. He said:
I was selected by Jonathan personally to work for hastings deering, I had got my opportunity to work for the company. Jonathan then organised a drug and alcohol test and general fitness test at the W.H.A. clinic. I passed the test then I moved on to the induction process (not through Haynes, through hastings deering) I did several hours worth of online inductions and caterpillar modules because caterpillar are the products they sell.[19]
The Applicant either misunderstood or deliberately misconstrued the situation. The evidence is that:
Haynes was the one who posted the advertisement for the Storeperson position;[20]
Haynes reviewed the Applicant’s application;
Ms Collett from Haynes made initial contact with the Applicant and asked about his skills and experience;
Haynes then requested that the Applicant meeting with Mr Eddy;
Haynes, not Mr Eddy, coordinated the medical assessment. The testimony from the Applicant was that Ms Collett called him after the interview to tell him he would be booked for an assessment. The booking confirmation from the medical assessors indicates that the assessment is “for Hastings Deering” but the Respondent asserts that Haynes coordinated it;
Haynes Recruitment sent the Applicant an email on 7 May 2024 asking him to complete onboarding registration which the Applicant did;
On 10 May 2024, Ms Collett texted the Applicant and asked him to let her know he went with his induction;
On 13 May 2024, the Applicant completed an Application for Employment with Haynes;
On 14 May 2024, the Applicant signed the Haynes “Terms and Conditions of Employment” document; and
On 14 May 2024, the Applicant received a notice of assignment document noting Haynes as his employer and Hastings Deering as the client.
I see no objective evidence of an intention by the Respondent to enter into legal relations with the Applicant. The request for the Applicant to attend a meeting with Mr Eddy or to complete safety induction courses with the Respondent is not inconsistent with that finding. The Applicant would be working in the Respondent’s warehouse, it completely logical for the Respondent to meet with the Applicant and to ensure he is trained on their safety procedures.
Offer and acceptance
As I indicated above, I asked the Applicant to specifically describe the words Mr Eddy said to him during their meeting on 15 April 2024. The Applicant said that Mr Eddy told him “I’ve got to see some other people” but said that once the Applicant passed the medical he would be “good to work with them”. The Applicant also confirmed that Mr Eddy did not tell him in exact terms that there would be an offer of employment once he passed the medical.
Mr Eddy stated that at no stage did he offer the Applicant employment with the Respondent, nor does he have authority to do so.[21] Mr Eddy confirms that he mentioned that it was not uncommon for labour hire workers to become full time employees,[22] but the statement went no further than that.
There is no evidence from either the Applicant or the Respondent to indicate that the Applicant was offered employment with the Respondent by Mr Eddy, which he accepted. Even on the Applicant’s recollection, which I note is vague, Mr Eddy told him that he had to “see other people”. There is no evidence that Mr Eddy made any statement in the form of a conditional offer of employment with the Respondent, once the Applicant passed a medical assessment. Nor is there any evidence of acceptance of such an offer by the Applicant. The Applicant made clear to Mr Eddy that he had a current job which he would have to resign from.
Post 15 April 2024, there is no evidence of any offer or acceptance between the Applicant and Respondent. The “Application for Employment” form and “Terms and Conditions of Employment” document were issued by Haynes. The Applicant alleges that he had a telephone conversation with Mr Eddy after he was certified as fit for work about giving his notice at his current job. However, Mr Eddy did not recall that conversation. Further, there is no evidence that any offer of employment with Hastings Deering had been made. At most, the Applicant was relying on the possibility of a future opportunity for full time employment.
I find there was no offer and acceptance between the Applicant and Respondent.
Consideration
It is accepted that the Applicant’s wages and entitlements were paid by the Haynes and not the Respondent. However, this is not necessarily determinative. It is not uncommon for wages to be paid by a company other than the employer. An employer can outsource payroll to another entity.
However, in situations where another company pays employees, rather than the employer, there is usually evidence of the first company being engaged to pay employees. There is no such agreement here. The Respondent engaged Haynes to provide labour. There was no agreement for how Haynes should pay its workers.
I find there was no consideration flowing from the Respondent to the Applicant.
Legal capacity
There is no suggestion of legal incapacity of either the Applicant or Respondent.
Vitiating factors, illegality and public policy
Whether the arrangement is a sham
The argument by the Applicant as far as can be discerned is that his real employer was the Respondent and the arrangement through Haynes was a charade and in fact as both Haynes Mechanical and Hastings Deering have a common overseas owner, and that the arrangement is a sham to obfuscate the real employment relationship.
The Applicant argues he was employed by Hastings Deering because Hastings Deering and Haynes are “the same company”. That is clearly factually incorrect, based on the ASIC searches conducted by the Commission. However, the two companies are in the same corporate group. They would be considered related entities within the meaning of the Corporations Act.
The parent organisation, Sime Darby, purchased Hastings Deering in 1993 and, through an acquisition in 2003, purchased Haynes Mechanical Pty Ltd.
The Applicant particularly relies heavily on one sentence of the Unfair Dismissals Benchbook,[23] where it states: “In some situations the labour hire agency and the host employer may be related entities. If this is the case, the host employer may be found to be the employer, regardless of the contract for work with the labour hire agency.”[24] There is no cited authority for that proposition, and, in any event, I am not bound by the Benchbooks.
However, contrary to the Respondent’s submissions, the Applicant’s argument is not completely meritless. There is some precedent for the argument that in situations of related entities or corporate group, where a labour hire company is related to the host company, the labour hire company can be found to be the “true employer”. In Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176 (‘Ramsay Food’), which involved a labour hire company supply labour to a related company, Buchanan J held:
[60] I accept, therefore, that arrangements whereby labour is provided by one company to another, without the recipient becoming thereby an employer, are longstanding and unremarkable. There appears no place for an assumption of illegality or illegitimate purpose from the mere fact that a “labour hire” arrangement has been put in place. The Australian cases recognise that, provided the arrangement meets certain objective criteria.
…[76] There may be many reasons why companies, businesses or enterprises associated with each other might wish to organise their affairs in a way where one legal personality employs labour for the ultimate use and benefit of other legal personalities. Such arrangements will often not be characterised or accompanied by the apparent profitability or identified reward which might be necessary in order to regard an arms-length arrangement as a genuine one.
[77] In such intra-group arrangements there may be overlapping, or even common, directorships, interlocking shareholdings (either cross-ownership or through ultimate ownership) and there is frequently a system of cross-guarantees in place. Little of this may be apparent to outsiders. The details may not be discoverable through the public records system. Arrangements between or amongst companies related in this way where one company (or more) operates to engage labour while others are concerned with management, operations, marketing or sales are by no means unusual. They are certainly not illegal. Arrangements along these lines may even be indispensible for some forms of business activity e.g. joint ventures. Although more than mere lip service must be paid to the separation of legal personality provided by individual incorporation, the tests applied to other labour hire arrangements, of independence and separate business, are either not relevant or are much less readily applied in such a circumstance.
[78] Nevertheless, it must be possible to identify a rational explanation for the arrangement and the explanation must be satisfactorily related to an intelligible business objective. That is so because otherwise, doctrines of agency, at least, may operate to defeat a bare claim of independence and isolated liability, supported only by a bare reference to separate incorporation. That is particularly likely to be the case when: the separate employing company is completely reliant upon a company to which it purportedly supplies labour; it has no assets and no management structure of its own; and it exists only as a corporate shell to protect another company, which does have assets, from liability to employees. In such a case a court might not hesitate long before pronouncing the arrangement ineffective or, in a more serious case, a sham.
…[97] Tested against the principles for determining whether a person or entity is, or is not, the employer of an individual, Tempus fails every test and Ramsey Food Processing, through its human agents, satisfies every legal test. It makes no difference to this analysis that Mr Marshall was nominally employed by Mortimer Administration or that Mr Considine’s services were nominally provided through Drama or that Mr Allen may have been nominally employed by Paul Allen Contracting or that Ms Park may have appeared on the books of Mortimer Administration as its employee also. Corporations act through human agents, whether other corporations are inter-positioned between the first corporation and those human agents or not. Ultimately each of the persons I have mentioned performed their services and carried out their duties in the business of Ramsey Food Processing and for the purposes of that business. When they dealt with the general workforce, and the complainant employees in particular, they did not do so on the evidence before me for the purpose of the business of any of the labour hire or service companies. Certainly that is unmistakably the case so far as Tempus is concerned.
[98] Tempus bore none of the characteristics of an employer. It had no business of its own. It earned no money. It had no interest in the engagement of any employee except as a favour to the respondents. Ramsey Food Processing, on the other hand, had every right and privilege normally associated with an employer in its dealings with the workforce at the abattoir. It had the right to recruit employees and to dismiss them. It had the right to decide what work was to be performed and by whom. With those rights came corresponding obligations. Those obligations were not displaced by the inter-positioning of Tempus, the Tempus bank account or the Tempus letterhead.
It would go too far to suggest that the effect of the Ramsey Food is that wherever the labour hire company and host entity are related, it should be found that the host entity is the true employer. It is only where the circumstances of the arrangement indicate that it may be a sham that it may be found that the host entity is the true employer.
The consideration of agency and control within corporate groups was further explored in Revill v John Holland Group Pty Ltd [2022] FCAFC 178 where Feutrill J said:
[159] The facts referred to in subparagraphs (a)-(d) above do not take the matter any further than Mr Revill’s submission to the effect that JH Group owns 100% of the shares in JHPL and controls it through share ownership and common directors. It is evident that JH Group has legal and practical control of JHPL as its subsidiary. However, control of that nature does not mean that the subsidiary is agent of the parent or that employees of the subsidiary are employees of the parent. It does not support an inference or submission that, through ownership and common directors, JH Group “is the head and brain” of JHPL or that the business of JHPL is not a separate business of that company.
The Respondent is not, of course, the owner of Haynes but the paragraph illustrates that actual or practical legal control of the labour hire company is not enough to establish an employment relationship. Examination of the particular circumstances is required.
It appears that there is a close working relationship between both companies, evidenced partly by the fact that the Respondent was able to obtain such voluminous evidence from other company for this matter without a subpoena. The working relationship conceded by the Respondent. Mr Scherf states that Hastings Deering often sources labour hire workers through Haynes.
The Respondent provided a copy of the Labour Hire Agreement between Hastings Deering and Haynes. Without going into details about the terms of payment, I am satisfied that Haynes charges commercial rates under that agreement for the provision of labour. Haynes also provides labour hire services to other companies and government entities and does not only provide those services to the Respondent. Additionally, the Respondent asserts that Haynes is only one of several labour hire providers which the Respondent uses.[25] The Respondent has a management structure separate to the Respondent. I am satisfied that the arrangement is not a sham and there is therefore no reason to look behind the corporate structure when considering whether a contract exists between the Applicant and the Respondent.
The Applicant made irrelevant allegations about the labour practices of the parent company of both Haynes and Hastings Deering. These allegations are not relevant to whether the arrangement between Haynes and Hastings Deering is a sham. Further, the Applicant referred to the Respondent and their witnesses as being liars on multiple occasions. Those accusations are not made out.
Conclusion
I find there was no contract in existence between the Applicant and Respondent. There was no intention to create legal relations, no offer and acceptance and no consideration. Accordingly, the Applicant was not employed by the Respondent. He was employed by Haynes.
Having found that no contract exists, it is not necessary to reach a conclusion on whether the relationship was, in practice, an employment relationship. However, I note that there are matters raised on the facts which suggest that it would, in my view, be considered a contractor relationship.
The Applicant was not employed by the Respondent and was therefore not “dismissed” within the meaning of s.386 of the Act. Accordingly, the Commission does not have jurisdiction to determine the merits of the claim. The jurisdictional objection is upheld and the unfair dismissal is dismissed. I Order accordingly.
DEPUTY PRESIDENT
Appearances:
C Robertson for himself as the Applicant
J Christensen for the Respondent of McInnes Wilson Lawyers
Hearing details:
19 March and 27 March 2025
Brisbane
Hearing via Microsoft Teams
Final written submissions:
Applicant 30 March 2025
Respondent 7 April 2025
[1] Carolyn Sappiddeen et al, Macken’s Law of Employment, (Thomson Reuters, 9th Edition, 2022) 108
[2] Applicant email to Chambers dated 13 March 2025
[3] Ibid
[4] Statutory Declaration of Kegan Scherf [23]
[5] Statutory Declaration of Jonathan Eddy [16]
[6] Applicant email to Chambers dated 13 March 2025
[7] Statutory Declaration of Jonathan Eddy [25]
[8] Ibid [19]-[22].
[9] Email from Applicant to Chambers dated 16 March 2025
[10] Email from the Applicant to Chambers dated 3 March 2025
[11] WHA Clearance letter
[12] Annexure KR-2 to Kristina Riemer Witness Statement
[13] Annexure KR-3 to Kristina Riemer Witness Statement
[14] Annexure KR-4 to Kristina Riemer Witness Statement
[15] Annexure KR-5 to Kristina Riemer Witness Statement
[16] Annexure JE-1 to Jonathan Eddy Witness Statement
[17] Applicant email to Chambers dated 24 March 2025
[18] Witness Statement of Kristina Riemer [23].
[19] Applicant Email to Chambers dated 13 March 2025
[20] Respondent Closing Submissions [27]; Witness Statement of Kristina Riemer [16]
[21] Jonathan Eddy Witness Statement [25].
[22] Ibid [22].
[23] See Applicant Closing Submissions dated 30 March 2025 and page 27 of the Digital Hearing Book.
[24] “Labour hire workers”, Unfair Dismissals Benchbook (Web page) < Respondent Closing Submissions [16]
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