Ms Svetlana Phoenix v Water NSW
[2024] FWC 2052
•21 AUGUST 2024
| [2024] FWC 2052 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Svetlana Phoenix
v
Water NSW
(C2024/3883)
| DEPUTY PRESIDENT CROSS | SYDNEY, 21 AUGUST 2024 |
Application to deal with contraventions involving dismissal
On 10 June 2024, Ms Svetlana Phoenix (the Applicant) lodged an application (the Application) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that WaterNSW Infrastructure Pty Ltd had dismissed the Applicant from her employment in contravention of Part 3-1 of the Act (the Application).
On 24 June 2024, Water NSW (the Respondent) filed a Form F8A – Response to a general protections application involving dismissal (the Form F8A). In the Form F8A, the Respondent:
(a) Noted that the entity named as the Respondent in the Application was in fact Water NSW and WaterNSW Infrastructure Pty Ltd was a wholly owned subsidiary of Water NSW.
(b) Raised a jurisdictional objection that the Applicant was not dismissed within the meaning of section 386 of the Act because she was not an employee of the Respondent.
Background
The Respondent from time to time engages workers through labour hire and/or agency arrangements. This is done through a NSW Government Contingent Workforce Scheme. This scheme gives the Respondent access to a pre-approved list of Managed Service Providers (MSP), through whom contingent labour can be engaged. One of the MSPs is Kelly Outsourcing and Consulting Group (Kelly OGC). The Respondent has a contract with Kelly OGC to provide contingent labour. The WaterNSW Enterprise Agreement 2023 – 2026 (the Agreement) also recognises that workers will be engaged via labour hire or agency arrangement. The Agreement provides:
3.5 Types of employment — temporary employment, labour hire and agency workers
(a) The engagement of temporary employees, labour hire and agency workers shall not:
(i) be used as an alternative to permanent positions or employment; or
(ii) deprive permanent employees of opportunities to temporarily undertake alternative or higher-level positions for career enrichment or development.
(b) A temporary employee, labour hire or agency worker may only be engaged where there will be no ongoing need for either the person or the position.
(c) WaterNSW will provide a regular briefing on types of employment to the Peak Consultative Group in accordance with the Peak Consultative Group Terms of Reference.
…
(e) Labour hire and agency workers
(i) A labour hire or agency worker is a person who is not employed by WaterNSW but who performs work for WaterNSW pursuant to a contract between WaterNSW and another organisation.
(ii) A labour hire or agency worker may only perform work for WaterNSW for a period of up to 12 months.
(iii) WaterNSW will require that a labour hire or agency worker is paid no less than the amount provided in this Agreement to be paid to a WaterNSW employee performing similar work.
Through the Contingent Workforce Scheme, Water NSW has a contract with Kelly Outsourcing and Consulting Group (Kelly OGC) to supply contingent labour on behalf of Water NSW. When the Respondent determines that an additional resource is required it issues a Work Order to Kelly OGC. The Respondent understands that Kelly OGC sources labour for the relevant placement.
At the time the Applicant was engaged, the Respondent identified that it required an additional resource to assist with the completion of a number of legacy matters. The Respondent submitted that due high volume of transactions associated with the legacy work and the workload pressure, additional resources were required to assist with administration. As this was a short-term requirement, funding was provided to engage a resource on a short-term basis to focus on completing transactions associated with the legacy work.
The Applicant was assigned to the Respondent through a labour hire arrangement, and in response to a Work Order that was completed for the supply of contingent labour. The Applicant was not engaged to perform any role in the Respondent’s structure but was an additional resource. The Applicant was placed with the Respondent pursuant to a Work Order by Kelly OGC. The last pay to the Applicant was made by CGC Recruitment.
The Applicant’s engagement as Lease Officer commenced on 23 August 2023.
In February 2024, a permanent placement as Lease Officer became available in the Property Team at Water NSW, and the Applicant applied for that position. The Applicant states that she was told that she wouldn't be given an opportunity to be interviewed for that role due to her being under-qualified.
The Lease Officer position was given to another person who the Applicant claimed had never delivered services for the Government in the past but worked in the past at Harvey Norman with the current Property Specialist at Water NSW.
On 17 May 2024, the Ms Andrea Patrick, Manager Procurement, Corporate Property and Services Finance Legal & Risk of Water NSW, sent the following email to the Applicant:
Thank you for your time just now regarding your engagement with WaterNSW.
As discussed the nature of the property work and volume has changed over the course of your engagement and we have taken the decision to terminate your contract early. As you mentioned you are overqualified for the work you are being asked to do. Your last day with WaterNSW will be Friday 24 May, 2024.
You have agreed to drop off your IT equipment and staff pass at the Parramatta office on Monday 27 May and if you hand this back to Kris on reception that would be appreciated.
Chloe will discuss any work related handover requirements and agree what activities are required to be completed in your final week when she is back on Monday.
Let me know if you have any questions and thank you for your contribution to the Property team during your time with us.
Kind regards
The Application
In the Application, the Applicant named the Respondent as WaterNSW Infrastructure Pty Ltd. The following answers were provided by the Applicant:
When was the Applicant told about being dismissed? --- Friday, 17 May 2024
When did the Applicant's dismissal take effect? --- Friday, 24 May 2024
Does the Applicant allege that they were dismissed in contravention of the general protections provisions in part 3-1 of the Fair Work Act 2009? --- Yes
The reason(s) that the Applicant believes apply to their dismissal. --- I have exercised my workplace right to request the formal feed back on why my application for the position of the Lease officer I was constructed for more then 6 months by that time was rejected.
The Position of the Applicant at the Hearing
This matter was heard on 2 August 2024 (the Hearing). At the Hearing, the Applicant sought to present a different case to that contained in the Application. While acknowledging that she lodged a general protections application involving dismissal,[1] the Applicant seemed to accept she was a contractor of the Respondent, and stated:[2]
I am not arguing whether or not I was an employee of Water NSW. It's clearly stated since the beginning that I was contracted to deliver services to Water NSW, so I don't understand why there is such a big (indistinct) explaining to me that I was a contractor when I do know that. Thank you.
And later:[3]
I was contracted, so I wasn't an employee.
And:[4]
Well, only to the ground, I wasn't given an opportunity to be employed and progress from being a contractor as an employee.
The Applicant sought to advance at the Hearing a case involving her as a prospective employee of the Respondent. The Applicant stated:[5]
So I have explained myself how my right as a prospective employee was violated. I have explained how that violation is connected to shortening the duration of my engagement by six weeks.
And:[6]
Contractors also have the right to be protected at the workplace under the Fair Work system. It doesn't have to be a direct employee. You can be a contractor and you can apply for the protection from being bullied and discriminated.
Consideration
The mere existence of an arrangement under which a first company provides labour to a second company does not point to the second company being the employer of the labour so provided. The general position was stated by Buchanan J in Fair Work Ombudsman v Ramsey Food Processing Pty Ltd as follows:[7]
“[60] ... 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.
[61] Utilisation in Australia of labour hire arrangements has increased significantly in past decades. There is no doubt that sometimes such arrangements reflect a desire by the proprietors of a business to avoid liability for employment related obligations. That is not illegal as an objective.”
A similar observation was made by Merkel J in Damevski v Guidice:[8]
“[173] In general, the courts have held that the interposition of a labour hiring agency between its clients and the workers it hires out to them does not result in an employee- employer relationship between the client and the worker: see Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438; Skilled Engineering Pty Ltd v Gill (unreported, Full Court of the South Australian Supreme Court, King CJ, Cox and Bollen JJ, 11 July 1991); McMahon Services Pty Ltd v Cox (2001) 78 SASR 540; Swift Placements Pty Limited v Workcover Authority of New South Wales (Inspector May) [2000] NSWIRComm 9; (2000) 96 IR 69; Drake Personnel Ltd v Commissioner of State Revenue [2000] VSCA 122; [2000] 2 VR 635; Construction Industry Training Board v Labour Force Ltd [1970] 3 All ER 220; McMeechan v Secretary of State for Employment [1996] EWCA Civ 1166; [1997] ICR 549; Montgomery v Johnson Underwood Ltd [2001] EWCA Civ 318; [2001] ICR 819.”
While the Applicant seemed to accept in the Hearing that she was not and had never been an employee of the Respondent,[9] I formally find that the Applicant was not an employee of the Respondent.
Section 12 of the Act defines the word “dismissed” by reference to section 386 of the FW Act. In Coles Supply Chain Pty Ltd v Milford (Milford),[10] it was accepted by the Full Court of the Federal Court of Australia that the definition of dismissed, as it appears in section 386 of the Act, is the relevant antecedent issue going to the existence of the Commission’s authority to compel an employer to participate in its conciliation processes. The Full Court held:[11]
It is necessary to begin with a broad survey of the relevant provisions of the FW Act, and the context in which they are placed in the statute as a whole.
Part 3-1 of the FW Act is titled “General Protections”. Section 340(1) relevantly provides that a person must not take “adverse action” against another person because the other person has exercised (or proposes to exercise) a “workplace right”. Adverse action is taken by an employer against an employee if the employer (relevantly) dismisses the employee and that action is not authorised by law: s 342(1), item 1; s 342(3). There are other defined adverse actions that do not involve dismissal.
[Emphasis added]
Section 386 of the FW Act provides:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.
As the Applicant was not an employee of the Respondent, she could not be dismissed by the Respondent. As the Full Court observed in Milford:[12]
… Whether or not a person has been dismissed also determines whether the person may apply under Subdiv A or Subdiv B of Pt 3-1. In the latter case, the employer may be compelled to participate in a conference but the person conducting the conference has no power to direct that it be conducted in public: s 374(2). …
As the Applicant was not dismissed, she could not apply for relief under Sub-division A of Part 3-1 of the Act. The Application must be dismissed.
DEPUTY PRESIDENT
Appearances:
Ms S Phoenix, the Applicant.
Ms L Shanahan, Solicitor, on behalf of the Respondent.
Hearing details:
2PM.
Microsoft Teams.
2 August 2024.
[1] Transcript PN 23.
[2] Transcript PN 25.
[3] Transcript PN 116.
[4] Transcript PN 118.
[5] Transcript PN 32.
[6] Transcript PN 100.
[7] (2011) 198 FCR 174.
[8] (2003) 133 FCR 438.
[9] Transcript PN 25.
[10] [2020] FCAFC 152.
[11] Ibid at [13] and [14].
[12] Milford at [66].
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