Samantha Abakir v Cleanaway Operations Pty Ltd - [2023] FWC 3448

[2023] FWC 3448

The attached document replaces the document previously issued with the above code on 21 December 2023.

In Paragraph [75] the word “four” should read “five”

Liam Butterworth
Associate to Deputy President Anderson.

Dated 22 December 2023

[2023] FWC 3448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

Section 365 - Application to deal with contraventions involving dismissal

Samantha Abakir
v

Cleanaway Operations Pty Ltd

(C2023/6340)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 21 DECEMBER 2023

Application to deal with contraventions involving dismissal – jurisdiction – labour hire arrangement – placement cancelled by host business – whether employed by host business – change of duties – not an employee of host business – not dismissed by respondent – jurisdictional objection upheld – application dismissed

On 16 October 2023 Samantha Abakir (Ms Abakir or the applicant) made a general protections application to the Commission under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging contraventions of the FW Act associated with an alleged dismissal.

Ms Abakir’s application is against Cleanaway Pty Ltd which she claims committed the contraventions (Cleanaway or the respondent).

Cleanaway oppose the application. It filed a response on 8 November 2023 raising a jurisdictional issue.

The jurisdictional issue advanced is that Ms Abakir was not employed by Cleanaway and thus not dismissed by it within the meaning of the FW Act. Cleanaway contend that Ms Abakir was a labour hire employee employed by WorkPac Pty Ltd (WorkPac) and placed to work at Cleanaway under a commercial labour supply arrangement between Cleanaway and WorkPac.

Ms Abakir submits that she was employed by Cleanaway because of the control it exercised over her work, because whilst employed her duties changed at Cleanaway’s initiative from those originally performed and because Cleanaway removed her from its workplace. She says it did so for an unlawful reason, being attempts to secure market rate remuneration for the changed duties.

The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires the Commission to determine a dispute about the fact of a dismissal from employment under s 365 of the FW Act before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the jurisdictional issue if Ms Abakir’s application is to proceed.

I issued directions on 22 November 2023.

I heard the jurisdictional matter by video on 13 December 2023. Ms Abakir was self-represented. Cleanaway was represented by an external legal practitioner, with permission.[2] I provided Ms Abakir a measure of assistance, consistent with my independent statutory role, to ensure her case was presented and that of Cleanaway appropriately tested.

I received evidence and submissions, including oral evidence from two persons:

· Ms Samantha Abakir (applicant); and

· Mr Leo Oldridge (Cleanaway’s Head of Infrastructure Projects).

Facts relevant to the jurisdictional issue are generally not in dispute save in limited yet important areas, such as whether Ms Abakir was promised direct employment by Cleanaway or promised higher…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 3448
Decision Date: 21 DECEMBER 2023

CaseChat Overview and Summary

Samantha Abakir filed an application under section 365 of the Fair Work Act 2009, alleging that Cleanaway Operations Pty Ltd had contravened the Act by dismissing her. Cleanaway, the respondent, opposed the application and raised a jurisdictional objection, contending that Ms Abakir was not their employee but rather a labour hire employee of WorkPac Pty Ltd, placed at Cleanaway under a labour supply agreement. The key issue before the Court was whether Ms Abakir was employed by Cleanaway, which would be necessary for the Court to have jurisdiction over the matter.

Deputy President Anderson, after hearing submissions and reviewing evidence, found that Ms Abakir was not employed by Cleanaway but rather by WorkPac. The Court noted the existence of a commercial labour hire agreement between Cleanaway and WorkPac, under which Ms Abakir was engaged. The employment agreements Ms Abakir entered into were with WorkPac, not Cleanaway. The Court also found that the conduct of the parties was consistent with the labour supply arrangement between WorkPac and Cleanaway and the employment arrangement between WorkPac and Ms Abakir. Ms Abakir's argument that Cleanaway's control over her day-to-day work made her their employee was rejected. The Court found that the arrangement between Cleanaway, WorkPac, and Ms Abakir had "commercial authenticity" and "commercial practicality" and was not a sham.

The Court concluded that Ms Abakir was not dismissed by Cleanaway as she was not their employee. Therefore, the Court did not have jurisdiction to deal with the application, and it was dismissed. The Court did not need to address Cleanaway's secondary issue that the ending of the placement coincided with the conclusion of its term and was not, in any event, a dismissal.

Orders