s.365 - General protections

Application to deal with contraventions involving dismissal - Application dismissed.

• [1] On 20 February 2025, Mr Barry Colllett (Mr Collett / the Applicant) applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with a general protections dispute involving dismissal. The Respondent in the matter was named as Suncoastbricklayers (the Respondent). The Applicant and the Respondent's name appear to have been misspelled on the application. The Applicant's name appears to be Mr Collett and the Respondent's name is Suncoast Bricklaying Pty Ltd.

• [2] The Respondent raised jurisdictional objections that the Applicant was not an employee and was not dismissed.

• [3] On 10 March 2025, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. The Applicant did not file submissions in accordance with the directions on 25 March 2025. I therefore proposed to the parties that the matter be determined on the papers based on the material filed. No objection was received.

• [4] No witness statements were filed for either party. The Applicant relied on his Form F8 application, and the Respondent relied on the Form F8A Response and their submissions.

• [5] Sections 15 and 15AA of the Act, relevantly state:

"15 Ordinary meanings of employee and employer

(1) A reference in this Act to an employee with its ordinary meaning:

(a) includes a reference to a person who is usually such an employee; and

(b) does not include a person on a vocational placement.

Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State.

(2) A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer.

Note: Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State.

15AA Determining the ordinary meanings of employee and employer

(1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.

(2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:

(a) the totality of the relationship between the individual and the person must be considered; and

(b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.

Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

(3) Subsections (1) and (2) do not apply to the following provisions of this Act:

(a) Divisions 2A and 2B of Part 1‑3;

(b) Part 3‑1, to the extent that Part 3‑1 applies only because of the operation of section 30G or 30R."

• [6] The Respondent submitted that the Applicant was a casual contractor who has worked for the Respondent on a sporadic basis between October 2024 and January 2025. During this period, the Respondent submitted that the Applicant had not had an ongoing employment relationship with the Respondent, for example:

• On or around 4 May 2024, the Applicant sent a text the Respondent seeking work on an hourly rate to assist with a specific project. The Respondent advised he did not have work at that time for the Applicant.
• On or around 27 June 2024, the Applicant sent a text the Respondent seeking work on an hourly rate to assist with a specific project. The Respondent advised he did not have work at that time for the Applicant.
• On or about 27 September 2024, the Respondent informed the Applicant that work was available at a Maroochydore work site for one day at a predetermined hourly rate. The Applicant failed to respond to this offer and, as a result, was not engaged.
• On or about 11 October 2024, the Respondent advised the Applicant of available work at a job site for four hours at a predetermined hourly rate. The Applicant accepted the offer, attended the site, and was compensated accordingly.
• On or about 15 October 2024, the Respondent informed the Applicant that work was available at a Caloundra work site for one day at a predetermined hourly rate. The Applicant failed to respond to this offer and, as a result, was not engaged.
• On or about 18 October 2024, the Respondent advised the Applicant of available work at a Maroochydore site for four hours at a predetermined hourly rate. The Applicant accepted the offer, attended the site, and was compensated accordingly.
• On or about 31 October 2024, the Respondent advised the Applicant of available work at a Brisbane site for thirty-five hours at a predetermined hourly rate. The Applicant accepted the offer, attended the site, and was compensated accordingly.
• On or around 7 November 2024 the Respondent advised the Applicant of available work at a Maroochydore site for fifteen hours at a predetermined hourly rate. The Applicant accepted the offer, attended the site, and was compensated accordingly.
• On or about 3 December 2024, the Respondent informed the Applicant that work was available at a Palmview work site for one day at a predetermined hourly rate. The Applicant failed to respond to this offer and, as a result, was not engaged.
• On or about 10 December 2024, the Respondent informed the Applicant that work was available at a Brisbane work site for one day at a predetermined hourly rate. The Applicant failed to respond to this offer and, as a result, was not engaged.
• On or around the week of 9 January 2025, the Respondent advised the Applicant of available work at site in Fiji for a predetermined daily rate. The Applicant accepted the offer, attended the site, and was compensated accordingly.
• Between 9 January 2025 to 5 February 2025 the Applicant worked at the Fiji site and was compensated accordingly with the agreed daily rate. Once the project was completed the Applicant returned home to Australia.
• On or about 6 February 2024, the Respondent informed the Applicant that work was available at a Brisbane work site for one day at a predetermined hourly rate. The Applicant failed to respond to this offer and, as a result, was not engaged.
• On or about 10 February 2024, the Respondent informed the Applicant that work was available at a Brisbane work site for one day at a predetermined hourly rate. The Applicant failed to respond to this offer and, as a result, was not engaged.
• On or about 12 February 2024, the Respondent informed the Applicant that work was available at a Brisbane work site for one day at a predetermined hourly rate. The Applicant failed to respond to this offer and, as a result, was not engaged.
• On or about 20 February 2024, the Respondent informed the Applicant that work was available at a Brisbane work site for one day at a predetermined hourly rate. The Applicant failed to respond to this offer and, as a result, was not engaged.

• [7] The Respondent submitted that the Applicant was an independent contractor, not an employee. It submitted this was evidenced by the Applicant not receiving leave entitlements, was not paid a regular wage, works independently with full control over how and where the work is performed, and provides his own tools and equipment necessary for the completion of the work.

• [8] The Respondent submitted that the working relationship effectively ceased when the Applicant failed to respond to multiple inquiries regarding his availability for work, including on 10 February 2025, 12 February 2025, and 20 February 2025. Despite the Respondent's repeated attempts to obtain confirmation of the Applicant's availability, no response was provided by the Applicant. Additionally, the Applicant has neither communicated their availability nor attended work since January 2025.

• [9] The Applicant did not make any submissions on the jurisdictional objections. When followed up on whether he intended to file any submissions, on 27 March 2025, he replied:

"Sorry I have been not in the best head space since this has all started, 1st talking with legal aid and they saying that under the circumstances they thought I wouldn't have a chance. And then seen these emails coming in didn't understand what I was meant to do next..."

• [10] On 28 March 2025, my Chambers outlined the process for the Applicant in an email, relevantly noting:

"If you intend to continue your application, you will need to email in submissions (reasons) for why you say you were an employee and why you were dismissed. You will need to do this as soon as possible, as your deadline has passed."

• [11] Later that same day, my Chambers issued further correspondence noting:

"The Commissioner notes your correspondence of yesterday including the reference to advice received. Further, we have not received a response to our email correspondence of yesterday at 11:06am AEST or received any additional material from you to support your claim.

In the absence of you advising if you intend to withdraw the application, in the circumstances the Commissioner will cancel the hearing and decide the matter on the material filed, without the need for a hearing.

A decision will be issued in due course regarding the jurisdictional objections, unless the Applicant wishes to withdraw his application or file any material."

• [12] No further correspondence has been received from the Applicant to date. The originating Form F8 Application refers to the Applicant being sent home at short notice while working on an island east of Fiji and not being paid the amount he was going to be paid for working overseas. The Form F8 does not state that he had been advised by the Respondent that his employment was being terminated.

• [13] On the basis of the material filed by the Respondent, and the failure of the Applicant to file any material beyond the application itself, or to seek to respond to the submissions filed by the Respondent, or to otherwise seek to prosecute his application I am satisfied, putting aside the argument as to whether he was a contractor or an employee, that even if he was an employee, he was not dismissed within the meaning of s.386 of the Act.

• [14] A contractor cannot be dismissed, within the meaning of s.386. However given the material filed does not support a conclusion that the relationship, whether it was contracting or employment, was ended at the initiative of the Respondent, I am able to be satisfied that there was no dismissal at the initiative of the Respondent, and therefore it is unnecessary to consider the other jurisdictional objection, as even in circumstances where it was found the Applicant was an employee, he would still not be within jurisdiction.

Based on the conclusions above the application is dismissed for want of jurisdiction. An order will be issued to that effect separately and concurrently with this decision.

Printed by authority of the Commonwealth Government Printer