Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd

The Fair Work Ombudsman and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to the Federal Circuit Court of Australia for orders against Personnel Contracting Pty Ltd (Personnel) and a worker, Mr McCourt, alleging contraventions of the Fair Work Act 2009 (Cth) for breaches of the Building and Construction General On-Site Award 2010. The applicants sought a declaration that Mr McCourt was an employee of Personnel and that therefore Personnel was liable to pay him unpaid wages, superannuation and other entitlements. They also sought orders against Personnel and Mr McCourt for contraventions of the Building and Construction General On-Site Award 2010. The central issue in the proceeding was the nature of the contract between Personnel and Mr McCourt. The applicants submitted that Mr McCourt was an employee of Personnel, and that Personnel had contravened the Building and Construction General On-Site Award 2010 by not paying Mr McCourt the applicable award wages and entitlements. Personnel submitted that Mr McCourt was not its employee but rather a self-employed contractor, and that the relationship between Personnel and Mr McCourt was one of principal and contractor. The Court found that the relationship between Personnel and Mr McCourt was not one of employment but one of principal and self-employed contractor. The Court found that the terms of the Labour Hire Agreement between Personnel and Mr McCourt, and the conduct of the parties, indicated that Mr McCourt was not an employee of Personnel but rather a self-employed contractor. The Court found that the agreement between Personnel and Mr McCourt was one of principal and contractor, and that Personnel was not liable to pay Mr McCourt unpaid wages, superannuation and other entitlements. The proceeding was dismissed. The Court made no orders against Personnel or Mr McCourt.