s.365 - General protections

Application under s 365 - applicant not an employee - application dismissed

• [1] Earlier today I dismissed an application made by Charles Smith under s 365 of the Fair Work Act 2009 (Act) against H's On Course Golf Shop (H's). Mr Smith had previously been employed as a casual leisure attendant by the Launceston Golf Club. The Club ceased employing leisure attendants and engaged H's to provide leisure services. H's offered Mr Smith employment and sent out a proposed roster under which Mr Smith would work his first shift on 28 April 2025. This was later changed to 1 May 2025. But prior to the start of the proposed shift on 1 May 2025, H's told Mr Smith that he had to sign an individual flexibility agreement (IFA) before he could commence work. The IFA stipulated a minimum engagement of 1.5 hours, rather than 3 hours as per clause 11.6 of the Amusement, Events and Recreation Award 2020 (Award). Clause 5.3 of the Award states that an IFA can only be made after a person has commenced employment. Mr Smith refused to sign the IFA. He did not work any shifts for H's. He did not sign a contract of employment. I concluded that the proposed casual employment never commenced. Mr Smith was therefore not dismissed, and was not eligible to make an application under s 365. For this reason, the application was dismissed.

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