s.365 - General protections

Application made under s 365 - jurisdictional objection dismissed

[1] Earlier today, for reasons given on transcript which I now summarise, I dismissed a jurisdictional objection raised by AWX Pty Ltd (AWX) to a s 365 application filed by Brent Houston. AWX is a labour hire business. Mr Houston was deployed to work at one of AWX's clients. In late December 2025, the client advised AWX that it no longer required Mr Houston. On 1 January 2026, AWX sent Mr Houston a text message stating that the client no longer required him, but that AWX would do its best to find him a new position 'asap'. On 5 January 2026, having received no other assignment, and thinking his employment had ended, Mr Houston asked AWX to issue him a separation certificate. On 7 January 2026, it did so. The certificate stated that the employment had ended because of a 'shortage of work'. AWX said that it had in mind the shortage of work caused by the client's advice that it no longer needed Mr Houston. But this is not what the certificate means when it speaks of a shortage of work. AWX did not indicate on the form that Mr Houston had ceased work voluntarily. AWX said that it issues separation certificates to casuals who request them if they do not have assignments, so that they can access Centrelink benefits. I accept this. But if AWX believes the casual is resigning, it should confirm this and also state in the certificate that the employee is ceasing work voluntarily. In my view Mr Houston's employment was terminated on the employer's initiative, and he was therefore dismissed within the meaning of s 386(1)(a) of the Act.

[2] Having determined the jurisdictional objection, I conducted a conference to deal with the dispute as required by s 368 and issued a certificate under s 368(3)(a). I have advised the parties that, taking into account all the material before me, I do not consider that arbitration under s 369 or a general protections court application would have a reasonable prospect of success (see s 368(3)(b)).

Printed by authority of the Commonwealth Government Printer