Miss Skye Lee v Services Australia

[2021] FWC 3630

[2021] FWC 3630

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Skye Lee
v
Services Australia
(U2021/1829)

COMMISSIONER RIORDAN SYDNEY, 23 JUNE 2021

Application for an unfair dismissal remedy.

[1] On 4 March 2021, Miss Skye Lee (the Applicant) lodged an unfair dismissal application claiming that she was unfairly dismissed by Services Australia.

[2] On 18 March 2021, Services Australia raised a jurisdictional objection to the Application that the Applicant was not an employee of the Respondent but a contractor or employee of Hays Specialist Recruitment (Australia) Pty Ltd (Hays).

[3] On 16 March 2021, the Applicant filed a Form F1 requesting that the Commission amend her application to include Hays as the Respondent.

[4] The matter was allocated to me for determination on 23 March 2021.

[5] On 25 March 2021, correspondence was sent from my Chambers to Hays advising the matter was listed for Conference on 29 March 2021 and that it was required to attend. On 26 March 2021, correspondence was sent from Hays requesting an adjournment on the basis that it had only received Chambers’ correspondence that afternoon. The Conference was relisted to commence on 1 April 2021.

[6] On 31 March 2021, Hays filed a Form F3 – Employer Response and raised two jurisdictional objections to the Application. The Respondent objected to the Application on the basis that it was out of time and that the Applicant was not dismissed.

[7] On 21 April 2021, Services Australia filed submissions requesting that the Commission remove Services Australia as the Respondent.

[8] The matter was listed for conference on 22 April 2021. Directions were issued requiring the Applicant to file material she intends to rely on in opposing Services Australia’s application to be removed as the Respondent.

[9] The parties agreed for the Commission to determine Services Australia’s application to be removed as the Respondent on the papers.

Submissions

[10] Services Australia submitted that the Applicant was not a person protected from unfair dismissal by Services Australia because the Applicant was not engaged as an employee of Services Australia. Further, Services Australia submitted that section 22 of the Public Service Act 1999 (Cth) authorises an Agency Head, on behalf of the Commonwealth, to engage persons as employees for the purposes of the agency either as an ongoing APS employee, for a specified term or for the duration of a specified task, or for duties that are irregular or intermittent.

[11] Services Australia submitted that the Applicant was not employed by Services Australia on behalf of the Commonwealth in exercise of the power in section 22 of the Public Service Act 1999. Accordingly, it is Services Australia’s submissions that there was no lawful basis upon which the Applicant could be said to be an employee of the Commonwealth.

[12] Services Australia submitted that there is a contract between Services Australia and Hays for the provision of labour hire personnel to perform various duties and tasks. However, Services Australia stated that the contract makes it clear that those personnel remain employed by Hays at all times and that no employment relationship is established with the Commonwealth.

[13] In advancing its position, Services Australia referred to Deputy President Clancy’s decision in Sarabjeet Pal v Commonwealth of Australia represented by the Department of Home Affairs, 1 that was later affirmed by the Full Bench of the Commission.2 In this Decision, the Deputy President identified that the Full Federal Court in Re Australian Industrial Relations Commission and Another; Ex parte Commonwealth disposed of any notion of a common law employment relationship being able to be established with the Commonwealth:

“The fact that subsequent "operational" factors such as the method of work and performance would have the hypothetical effect at common law that Mr Arends was an employee does not mean that he was in employment by authority of a law of the Commonwealth, particularly in circumstances where the instrument under which the contract was made was specific in stating that the contract did not affect employment. His own belief as to his status is not relevant.” 3

[14] It is Services Australia’s submission that it cannot be the employer and hold liability for unfair dismissal under Part 3-2 of Chapter 3 of the Fair Work Act 2009 (Cth), for a person who is not engaged in accordance with the Public Service Act.

[15] The Applicant provided very little relevant information in response to the submissions of Services Australia. The Applicant submitted her position was an APS position and she was required to follow the APS Code of Conduct. As such, the Applicant asserted that her employer was Services Australia.

Consideration

[16] I have taken into account all of the written submissions that were submitted by the parties. The fact that a matter does not appear in this decision does not mean that it has not been taken into account.

Determination

[17] I am satisfied that the Applicant was an employee of Hays rather than Services Australia. I am satisfied that, whilst the Applicant believes that she had some type of employment relationship with Services Australia on the basis that she worked solely at their premises, performed work in accordance with their direction and worked in accordance with their policies and standards, Services Australia entered into a labour hire arrangement with Hays to supply personnel, such as the Applicant, to work in association with their full-time workforce.

[18] I am satisfied that the ‘Terms of Engagement’ that was attached to the Form F3 provided by Hays is a true and actual employment agreement between Hays and the Applicant. I note the following provisions of the “Terms of Engagement”:

“3.1. You acknowledge and agree that:

3.1.1. The nature of your engagement as a temporary casual worker means that there may be periods when no suitable work is available for you;

3.1.2. Hays is under no obligation to offer you any Assignments and you are under no obligation to accept Assignments offered to you by Hays; and

3.1.3. Hays has no liability to you for any payment of wages, salary, leave entitlements or otherwise, should Hays not offer you any Assignment or for periods where you are not performing any Assignment.”

“3.2. Hays does not guarantee the duration or length of any Assignment offered to you. While Hays may indicate the length of an Assignment in good faith, the Client may vary the length of or end any Assignment at its absolute discretion” …

“5.2.7. To co-operate with the Client's staff, as well as other temporary workers, and accept the direct supervision and instruction of any responsible person in the Client's organisation;”

“5.2.8. To observe any policies, procedures, rules and regulations of the Client's organisation to which your attention has been drawn or which you could reasonably be expected to be aware of. However, any policies and procedures of the Client or of Hays are not incorporated into this Agreement”.

(my emphasis)

Conclusion

[19] It is clear that the Applicant was not employed by Services Australia under the Public Service Act 1999.

[20] I am satisfied that Hays had a contract with Services Australia which clearly states that the labour hire employees provided to Services Australia remain employees of the service provider at all times.

[21] Based on the reasons provided above, I find that the Services Australia was not the employer of the Applicant. Therefore, Services Australia cannot be the respondent in an unfair dismissal application lodged by the Applicant.

[22] Services Australia’s application is upheld, and it is removed as a Respondent to the Applicant’s unfair dismissal application.

[23] A directions conference between the Applicant and Hays will be convened in the near future.

[24] I so Order.

COMMISSIONER

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<PR730999>

 1   [2019] FWC 5821 at [37].

 2   Sarabjeet Pal v Commonwealth of Australia represented by the Department of Home Affairs [2020] FWCFB 606 at [19].

 3 145 FCR 277