Charles Smith v H's on Course Golf Shop Summary

[2025] FWC 1837

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Charles Smith
v

H’s On Course Golf Shop

(C2025/4667)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 27 JUNE 2025

Application under s 365 – applicant not an employee – application dismissed

Earlier today I dismissed an application made by Charles Smith under s 365 of the Fair Work Act 2009 (Act) against H’s On Course Golf Shop (H’s). Mr Smith had previously been employed as a casual leisure attendant by the Launceston Golf Club. The Club ceased employing leisure attendants and engaged H’s to provide leisure services. H’s offered Mr Smith employment and sent out a proposed roster under which Mr Smith would work his first shift on 28 April 2025. This was later changed to 1 May 2025. But prior to the start of the proposed shift on 1 May 2025, H’s told Mr Smith that he had to sign an individual flexibility agreement (IFA) before he could commence work. The IFA stipulated a minimum engagement of 1.5 hours, rather than 3 hours as per clause 11.6 of the Amusement, Events and Recreation Award 2020 (Award). Clause 5.3 of the Award states that an IFA can only be made after a person has commenced employment. Mr Smith refused to sign the IFA. He did not work any shifts for H’s. He did not sign a contract of employment. I concluded that the proposed casual employment never commenced. Mr Smith was therefore not dismissed, and was not eligible to make an application under s 365. For this reason, the application was dismissed.

DEPUTY PRESIDENT

Hearing details:

2025
Melbourne
27 June

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Charles Smith applied to the Fair Work Commission (FWC) under section 365 of the Fair Work Act 2009, claiming that H's On Course Golf Shop had unfairly dismissed him. Mr Smith had been employed by Launceston Golf Club as a casual leisure attendant, but the Club ceased employing such staff and engaged H's to provide leisure services instead. H's offered Mr Smith a position and provided a proposed roster for him to commence work on 28 April 2025, later changed to 1 May 2025. However, prior to his proposed first shift, H's required Mr Smith to sign an individual flexibility agreement (IFA) which stipulated a minimum engagement of 1.5 hours, rather than 3 hours as per clause 11.6 of the Award. Clause 5.3 of the Award states that an IFA can only be made after a person has commenced employment. Mr Smith refused to sign the IFA and did not commence employment with H's.

The FWC was required to determine whether Mr Smith was an employee of H's and whether he had been unfairly dismissed. The central issue was whether Mr Smith had been dismissed by H's, or if he had simply declined to enter into an employment relationship with them. The FWC considered whether the proposed employment had actually commenced, given that Mr Smith had not signed a contract of employment or completed any shifts for H's. The FWC also needed to consider the validity of the IFA and whether it was permissible under the Award for H's to require Mr Smith to sign it prior to commencing employment.

The FWC concluded that Mr Smith had not been dismissed by H's, as the proposed casual employment had never commenced. The FWC found that Mr Smith had not signed a contract of employment or completed any shifts for H's, and therefore could not be considered an employee. The IFA was also found to be invalid, as it contravened clause 5.3 of the Award by requiring Mr Smith to sign it prior to commencing employment. Given that Mr Smith had not been dismissed by H's, he was not eligible to make an application under section 365 of the Fair Work Act. The application was dismissed.

Charles Smith v H's on Course Golf Shop

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established