FWC looks at employment relationship involving labour hire company
The Fair Work Commission (FWC) recently dealt with a case involving a labour hire worker who claimed he was unfairly dismissed by a construction company.
The worker argued that he should be protected under unfair dismissal laws, despite not having signed an employment contract with the company.
He said that as a prospective employee who had started the onboarding process, he should have the same workplace rights as a direct employee.
The case raises important questions about the nature of employment relationships in labour hire situations and the extent of unfair dismissal protections.
The labour hire arrangement
The case centred on a worker who was initially engaged by ProtechPersonnel (WA) Pty Ltd, a labour hire company, as a casual builder's labourer and hoist operator. He was assigned to work for Multiplex Constructions Pty Ltd at the ECU Inner City Campus construction project in February 2024.
In May 2024, Multiplex site management approached the worker about potentially becoming their direct employee under clause 18.3(k) of the Multiplex Australasia Pty Ltd and CFMEU (WA) Enterprise Agreement 2024-2027.
Following this, the worker started the onboarding process with Multiplex, which included providing required documents and completing a pre-employment medical assessment.
On 18 June 2024, the worker informed Multiplex's human resources representative that he had passed the medical assessment. The representative responded, saying:
"Fantastic news...I still can't act on anything until I receive the medical results from Complete Corporate Health which may take some time...Let's leave your proposed Start Date as the 1 July for now, as this may still be achievable".
However, on 25 June 2024, before an employment contract was issued or signed, Multiplex told the worker that his services were no longer required on the project.
Was there an employment relationship?
Believing he had been unfairly dismissed, the worker filed an application with the FWC under section 365 of the Fair Work Act 2009. He argued that he had made safety complaints on site, which he claimed led to his dismissal.
Multiplex objected to the application, arguing that they had never actually employed the worker and therefore could not have dismissed him.
The key issue before the FWC was whether an employment relationship existed between the worker and Multiplex. The FWC had to determine this jurisdictional issue before it could consider the unfair dismissal claim.
Several key facts emerged during the hearing:
- The worker was employed by the labour hire company, not directly by Multiplex.
- While discussions about direct employment had occurred, no employment contract had been issued or signed.
- The worker had never received pay directly from Multiplex.
The FWC's decision hinged on these points, as the Commissioner explained:
"Accordingly, for there to have been a dismissal, there must have been an employment relationship and/or employment contract."
Worker’s arguments
The worker presented several arguments to support his case. He claimed that labour hire employees are protected by the general protections provisions in the Fair Work Act.
He also argued that as a prospective employee, he should have the same workplace rights as a direct employee.
The worker cited several case authorities to support these positions. However, the FWC found that these arguments didn't address the fundamental issue of whether a dismissal had occurred.
No employment relationship for ‘prospective’ worker
After considering the evidence and arguments, the FWC determined that no employment relationship existed between the worker and Multiplex. The Commissioner stated:
"Based on the above, I find that there was no employment relationship between [the worker] and [the employer]. [The worker] even conceded during the hearing that he was not a 'direct employee' of [the employer]. It follows that [the employer] could not dismiss him."
The FWC also addressed the worker's argument about being a prospective employee, citing a previous decision:
"Secondly, even if [the worker] was a prospective employee, he was not dismissed from as no employment relationship with [the employer] had been entered into let alone terminated by [the employer]. The notion of being dismissed from employment whilst only a prospective employee (that is, yet to be employed) is nonsensical."
As a result, the FWC dismissed the worker's application, finding that it lacked jurisdiction to hear the unfair dismissal claim.
The decision underscores the need for both workers and employers to understand the precise nature of their relationship, especially during transitional periods. It also serves as a reminder that unfair dismissal protections are tied to the existence of an employment relationship, not merely the prospect of future employment.
