Why did FWC rule against a worker with 13 years of experience?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim from a long-serving stage manager who argued he was inappropriately dismissed just before a festival season began. The worker claimed he was simply trying to negotiate fair pay rates when the employer abruptly terminated his services.
The worker argued he had established an ongoing employment relationship over more than a decade of service, having worked at the same annual event from 2010 to 2023 (except during COVID cancellations in 2020). He maintained that communications throughout 2024 confirmed his engagement for the upcoming season.
The employer rejected these claims, arguing the worker was never their employee but rather a contractor, and that even if he had been an employee, his service did not meet the minimum employment period required for unfair dismissal protection.
They further maintained that the arrangement had always been for specific seasons only, with no guarantee of renewal.
The Wakakirri Festival is a performing arts event for primary and secondary schools held in theatres across five to eight days each year. The worker had worked as a stage manager at this event annually from 2010 to 2023, except for 2020 when the festival was cancelled due to COVID restrictions.
Initially, the worker was an Assistant Stage Manager, then progressed to Stage Manager. Each year, his work started on the first live show of the season and ended with the final show of the season.
Before 2020, the festival organisers were invoiced for the worker's services under business names including "Rockstar Events" and "event AV hire." From 2021 onwards, a company called Upstage Live Events Pty Ltd issued the invoices for the worker and an assistant stage manager.
For the 2023 festival, the worker completed a "Crew Form" where he listed Upstage Live Events as his contractor business name. He also confirmed having GST registration, workers' compensation coverage, and public liability insurance.
The form included a "Terms and Agreement" section which clearly stated: "I understand that this position is for the current live show season only and that remuneration will not be paid in the event a show is canceled." The worker had agreed to these terms.
In April 2024, the state coordinator for the Wakakirri Festival emailed the worker about the upcoming 2024 festival dates, asking: "Let me know if this is something you're keen for again and I'll make sure to pass your info onto the SDC when we find them."
In May, the worker noticed updated dates on the website and emailed the coordinator to confirm them. The coordinator replied: "Those are the dates! Lock them in she says to me via email!" The worker understood this "she" to be referring to the festival director.
As the first event in August approached, the worker contacted the coordinator asking: "Hope you're well. Just over a month now until our first Waka at Caloundra. Who's my QLD liaison?" This led to him being put in touch with a new Queensland representative.
On July 12, the new representative emailed the worker with links to the Crew Production Manual, Social Media Brief, and Live Show Script, noting: "If any of your details have changed since the last time you worked Wakakirri, please complete a new Crew Employment Form."
The worker said no new form was submitted because his details hadn't changed. He then participated in scheduling a pre-season Zoom meeting and received a rehearsal schedule from the festival organisers.
On July 27, the worker emailed the festival director about pay rates for the 2024 season, noting the previous year's rates and the increased Australian Taxation Office (ATO) mileage rate.
The festival director responded that all shows would be paid at $360 plus super and GST for "seven school days" with the same travel allowance as before.
The worker questioned this decision on July 29, writing: "Although it's a 7 school day, we've been called at 9.45am and will leave about 9.30pm - so roughly 12hrs onsite. This is below the award rate, which I'm sure is not intentional on [the employer's] behalf."
He added: "Not sure about you, but I don't feel like earning less year on year with the cost of living increasing so much!"
After further back-and-forth about pay calculations, the worker sent a detailed email on July 30 raising five points about award rates, employment status, entitlements, and the reasonableness of the proposed pay. He stated: "We do love working on Wakakirri, but are not interested in doing so when we would be going backwards year on year."
On August 1, just one day before the first show, the festival director sent an email stating: "Whilst I understand and respect your position, I am unable to meet your requirements at such short notice and therefore accept your decision to discontinue working with us."
The worker immediately replied that he still wanted to be involved and had blocked out the dates in his calendar months earlier. When he received no response, he filed an unfair dismissal application with the FWC on August 22, 2024.
The employer objected on three grounds: that the worker was not an employee, had not met the minimum employment period, and had not been dismissed because his employment was for a specified season that had ended.
The FWC examined whether there was a written contract in effect as of August 1, 2024. While there was evidence of the 2023 contract (which stated the position was "for the current live show season only"), the full terms of any 2024 agreement weren't clearly established in the evidence.
The Commission noted that recent High Court decisions required examining the contractual relationship: "Existence of a contractual right to control the activities of [the worker] (including how, where and when the work is done) is a major signifier of an employment relationship."
While the FWC didn't make a definitive finding on whether the worker was an employee, it determined that the worker hadn't completed the minimum employment period required for unfair dismissal protection under the Fair Work Act.
The Commission considered how seasonal employment affects continuity of service, citing earlier decisions that established: "[seasonal workers]... render service for each season they are engaged, but ordinarily do not have continuity of service from one season to the next."
This interpretation aligned with previous Full Bench decisions which found that seasonal employment contracts typically end at the conclusion of each season, creating a break in service continuity.
The Commission explained: "Taking an approach consistent with the foregoing decisions... requires: taking the employment contract and relationship as having ended at the end of the previous season; considering that there is not continuity of service between the current season's work and the previous season's work."
The FWC noted the practical implications of this approach: "An implication of this approach is that... seasonal workers may be unlikely to meet the minimum employment period. People negotiating employment contracts or enterprise agreements can turn their minds to this issue."
Since the worker's 2024 engagement had only started somewhere between July 12 and August 2, he hadn't completed the minimum employment period required for unfair dismissal protection. The application was therefore dismissed.
