Kristy Barlow v Axima Pty Ltd

[2016] FWC 4149

[2016] FWC 4149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kristy Barlow
v
Axima Pty Ltd
(U2016/591)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 JUNE 2016

Application for relief from unfair dismissal.

[1] Ms Kristy Barlow made an application alleging the termination of her employment by Axima Pty Ltd was unfair. Axima objected to the application on the basis that it did not employ Ms Barlow rather she was employed by a labour hire company, Strategy One Human Resources.

[2] Ms Karen Browne, the Chief Financial Officer of Axima, gave evidence that Axima runs warehouses for third parties. It directly employs permanent workers and sources additional casual workers from labour hire companies. It does so, to deal with the peaks and troughs of ts business.

[3] Ms Browne gave evidence that the labour hire companies employ or otherwise engage the workers and pay the workers. It pays workers compensation insurance and superannuation and provides its employees with payslips and payment summaries. Axima is entitled to refuse to permit workers supplied by the labour hire company to perform work. Axima directs the way work is provided on site and it provides personal protective clothing and can determine the hours when particular work is performed. Strategy One is a labour hire company used by Axima.

[4] Ms Browne gave evidence that Axima and Strategy One are not related companies.

[5] Ms Barlow gave evidence she knew someone at Axima who got her the job. She said that Axima don’t employ pickers and she was engaged by Strategy One. She said her payslip was provided by Strategy One but it referred to work being performed for Axima.

[6] Ms Barlow gave evidence that she signed a document provided to her by Strategy One but did not provide copy of the document. She read from the document and said that it was not a contract but it provided for her to work for Axima. It read “by signing this application you are confirming that you have read and understood Strategy One’s Induction Manual; advised Strategy One Human Resources of all health issues past and present; provided full and accurate information in the application and your resume; authorise Strategy One to check with whoever we deem necessary to verify your employment; and authorise Strategy One to provide other employees.

[7] There was nothing in what Ms Barlow read that suggested that her employer was Axima.

[8] Ms Barlow said that all the work she performed was done for Axima; it supplied her tools for work; she had to notify Axima if she was late or sick; Axima agreed to change her hours without reference to Strategy One; advice from Strategy One that she was not required to attend the site was overridden by Axima; and Axima benefited from her work. She said she was there for over seven months.

[9] Ms Barlow stated that Axima didn’t employ her but it owed her a duty of care and it was required to protect casual employees from bullying and harassment. She said she had legal advice that Axima would say it was not her employer but all her work was done for Axima and it benefited from her work. She said there were no grounds for it to dismiss her.

[10] Ms Barlow said Strategy One had not done anything wrong. It had found her work after she stopped working at Axima but for personal reasons she was not able to continue. She said she had no issue with them.

Who was Ms Barlow’s employer?

[11] I am satisfied that Ms Barlow was not an employee of Axima. So much is confirmed by Ms Barlow’s own evidence. Labour hire is a common feature of employment in Australia. There is nothing in the evidence to suggest that Strategy One is merely a paymaster for Axima. Further there is no evidence that the engagement of Ms Barlow by Strategy One was a sham to hide the true nature of the employment. That Strategy One was Ms Barlow’s employer is confirmed by her evidence that it found her an alternative engagement after she was no longer required by Axima.

[12] Ms Barlow’s application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

K. Barlow on her own behalf.

K. Browne for the Respondent.

Hearing details:

2016.

Melbourne and Sydney, by video link:

21 June.

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