Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - minimum employment period - has there been a transfer of business

• [1] Mr Damien Marchese has made an application for an unfair dismissal remedy against his former employer Cubism Projects Pty Ltd (Cubism). Mr Marchese, a construction site supervisor, was initially engaged by Fetch Personnel (Fetch), a labour hire provider, to perform work on four Cubism construction projects during 2023 and 2024. On 23 July 2024, Mr Marchese commenced direct employment with Cubism in the role of construction site supervisor. While the parties are in dispute regarding how and when Mr Marchese's employment with Cubism terminated, both parties accept Mr Marchese's employment had ended by 2 May 2025.

• [2] Under the Fair Work Act 2009 (Cth) (the Act) an employee must have completed at least the minimum employment period to be eligible to bring an unfair dismissal claim against an employer.[1] For a small business employer, the minimum employment period is one year.[2] It is uncontested that Cubsim is a small business employer and accordingly Mr Marchese is required to have served one year with Cubism to be entitled to pursue an unfair dismissal claim.

• [3] It is uncontested that Mr Marchese's direct employment with Cubism was for less than the minimum employment period. Mr Marchese claims he has met the minimum employment period on the basis that his engagement with Fetch on various Cubism projects should be counted towards his service with Cubism. The only way Mr Marchese's service with Fetch can count towards Mr Marchese's service with Cubism is if Mr Marchese is a transferring employee in relation to a transfer of business between Fetch and Cubism.

• [4] This decision considers whether Mr Marchese is a transferring employee in relation to a transfer of business and, therefore, whether his service with Fetch counts towards his service with Cubism for the purpose of the minimum employment period. I note that I make no finding in relation to the other jurisdictional issue of whether there was a dismissal (or a resignation), or whether any dismissal was, in fact, unfair. I recognise Mr Marchese feels aggrieved by the situation. Similarly, I acknowledge Cubism denies it has engaged in unfair behaviour. This decision only considers the threshold jurisdictional issue of whether Mr Marchese's has completed the minimum employment period to allow him to bring an unfair dismissal claim.

• [5] The parties submitted written submissions regarding this matter, and a determinative conference was held on Tuesday 22 July 2025. Mr Marchese represented himself. Cubism was represented by Ms Grace Feeney-Connor from the Master Builders Association of Victoria. After the hearing Mr Marchese sought to submit further written material. I allowed Mr Marchese and Cubism to submit limited further material, noting a significant amount of written material had already been submitted, and a determinative conference held. Further written material from Mr Marchese included in an email on 27 July 2025, and further submissions dated 4 August 2025. Cubism also provided further submissions dated 7 August 2025.

• [6] Having considered all of the submissions and material before me, and all the circumstances of this case, for the reasons set out below, I find that Mr Marchese was not a transferring employee in relation to a transfer of business, and did not complete the minimum employment period required to make an unfair dismissal application.

• [7] For the purposes of providing background and context to this decision I have included a summary of key events based on uncontested evidence, unless otherwise stated. Where findings of contested points are required, they will be made later in the decision.

• [8] Cubism is a construction project company, specialising in industrial and commercial design and construction.

• [9] Cubism is a small business with approximately 8 employees. It engages a small number of operation staff directly, including site supervisors. Cubsim also uses labour hire companies to provide staff, including site supervisors.

• [10] Mr Marchese has expertise as a site manager in the construction industry. Mr Marchese was first engaged on Cubism's projects through Fetch labour hire company. In accordance with labour hire arrangements through Fetch, Mr Marchese worked as a site manager on four projects for Cubism over 2023 - 2024. The parties generally agreed on the dates of the four projects. Where there was some discrepancy between the dates, I have chosen the dates provided by Mr Marchese.

• The Clayton Project - 22 May 2023 to 4 August 2023;
• The Truganina Project - 30 August 2023 to approximately 20 November 2023;
• The Spotswood Project - 21 November 2023 to 29 February/8 March 2024; and

• • The Thomastown Project 5 June 2024 to approximately 3 July 2024.[3]

• [12] During these projects Mr Marchese took direct instruction from Cubism, and used Cubism equipment including wearing personal protective equipment provided by Cubism.

• [13] Around mid-2024, one of Cubism's directly engaged site supervisors left the business. Cubism sought to engage someone to fill this role.

• [14] Cubism considered a number of people as potential candidates to fill the position, but ultimately made an offer to Mr Marchese.

• [15] On 2 July 2024, Cubism provided Mr Marchese with an offer of employment to commence 23 July 2024 (or otherwise by agreement).

• [16] On 14 July 2024, Mr Marchese responded to the offer seeking several adjustments including, in particular, that the proposed probationary period be reduced from six months to three months given "previous service to Cubism". Cubism ultimately agreed to amend probationary period to 3 months.

• [17] Cubism hired Mr Marchese to fill the directly engaged Site Manager role, with a commencement date of 23 July 2024.

• [18] On 10 April 2024, while away from work because of injury, Mr Marchese sent a letter to Cubism raising numerous serious allegations, including an untenable work environment. Cubism contends this letter was a resignation letter. Mr Marchese denies this.

• [19] On 2 May 2025, Cubism sent a letter to Mr Marchese confirming its acceptance of his "resignation". Mr Marchese claims this letter amounted to a dismissal.

• [20] On 6 May 2025, Mr Marchese made an unfair dismissal application.

• [21] Cubism and its associated entities under the Act[4] employed a total of 8 employees at the time of Mr Marchese's resignation.[5]

• [22] At the time of the hearing Cubism engaged two site supervisors directly, and one site supervisor through Fetch. [6]

• [23] Section 382(a) of the Act provides that Mr Marchese must have completed a period of employment of at least the minimum employment period, to be protected from unfair dismissal. For employees of a small business employer, the minimum employment period is one year.[7]

• [24] It is uncontested that Cubism is a small business employer under the Act. Therefore, Mr Marchese must have completed one year of employment with Cubism to be protected from unfair dismissal.

• [25] Section 384 of the Act sets out the definition of the period of employment for the purpose of the minimum employment period. Section 384 provides:

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was as a regular casual employee; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee's period of employment with the new employer."

• [26] In this matter Mr Marchese has been directly employed by Cubism for less than one year. Unless his employment with Fetch is counted as part of his continuous service with Cubism, Mr Marchese will not have completed the minimum employment period. Mr Marchese argues his period of employment with Fetch should be counted under s 384 because:

• he was a transferring employee in relation to a transfer of business from Fetch to Cubism (s384(2)(b)(i));
• Fetch and Cubism are not associated entities (s384(2)(b)(ii); and

• Cubism did not inform Mr Marchese in writing that his service with Fetch would not be recognised (s384(2)(b)(iii)).

• [27] Therefore, Mr Marchese argues, his service with Fetch should be counted towards his continuous service with Cubism.

• [28] The key question is whether Mr Marchese was a transferring employee in relation to a transfer of business from Fetch to Cubism.

• [29] A transfer of business is defined in s 311(1) and a transferring employee is defined in s 311(2). Sections 311(1) and (2) provide as follows:

Meanings of transfer of business, old employer, new employer and transferring work

(1) There is a transfer of business from an employer (the old employer) to

another employer (the new employer) if the following requirements are

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by

(c) the work (the transferring work) the employee performs for the new

employer is the same, or substantially the same, as the work the employee

(d) there is a connection between the old employer and the new employer as

(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b)

and (c) are satisfied is a transferring employee in relation to the transfer of

• [30] The evidence in this matter establishes, and it is uncontested by the parties, that the conditions in s 311(1)(a),(b) and (c) are met. Namely:

• Mr Marchese's employment with Fetch (the old employer) was terminated (s311(1)(a));

• Mr Marchese was employed by Cubism within 3 months of the termination (s311 (1)(b)); and

• The work that Mr Marchese performed for Cubism - being construction site supervisor work- was the same or substantially the same as the work the employee performed for Fetch.

• [31] However, for there to be a transfer of business s 311(1)(d) must also be met. Similarly, for Mr Marchese to be a transferring employee in relation to a transfer of business, there must be a transfer of business under s 311 (1), which requires s 311(d) to be met.

• [32] Under s 311(1)(d) for a transfer of business to occur, there must be a connection between Fetch and Cubism, as described in subsections s 311(3-6). In this matter, the dispute is narrowed to whether there is a connection between Fetch and Cubism pursuant to s.311(5). For the purposes of this dispute, s 311(5) should read as follows:

(5) There is a connection between Fetch and Cubism if:

(a) The transferring work had been performed by Mr Marchese, as an employee of Fetch, because Cubism... had outsourced the transferring work to Fetch...; and

(b) The transferring work is performed by Mr Marchese, as an employee of Cubism, because Cubism... has ceased to outsource the work to Fetch.

• [33] In summary to determine whether Mr Marchese has completed the minimum period, I must determine whether his service with Fetch counts as continuous service with Cubism because he is a transferring employee in relation to a transfer of business. To determine whether there has been a transfer of business, I need to decide whether there is a connection between Fetch and Cubism as defined in s 311(5). In determining whether there is a connection under s 311(5) I must determine whether Cubism outsourced work to Fetch, and whether Cubism in engaging Mr Marchese ceased to outsource work to Fetch.

• [34] Mr Marchese advanced various arguments in support of his position that his service as a labour hire employee with Fetch should be counted towards service with Cubism. While diverse, Mr Marchese's contentions broadly fit into three interrelated categories:

• First that the work Mr Marchese performed as a site supervisor is integral to Cubism;

• Second, that there was a transfer of business between Fetch and Cubism, to the effect that his prior service with Fetch should be considered service with Cubism; and

• Third, that his work while engaged by Fetch constituted casual employment with Cubism.

• [35] First, Mr Marchese sought to establish that the site supervisor role is an integral role for Cubism. Mr Marchese submitted his role as site supervisor had a high degree of autonomy and accountability and that he had "strategic oversight of entire construction sites, legal and safety compliance, stakeholder engagement, and full cycle site-based project delivery".[8] Mr Marchese submits that Cubism's preference for his services from project to project indicates that he was valued, respected, and trusted, which demonstrates a clear pattern of continuous and expected employment.[9] Mr Marchese points to witness evidence by Marcus Richards and Leeham Bansagi confirming that the site supervisor role is important.

• [36] Second, Mr Marchese claims that the time he worked for Fetch should be included in his period of service because there was a transfer of business, pursuant to s.311 of the Act.

• [37] In this regard Mr Marchese submits he meets the definition "transferring employee" for the purpose of s 311(2), as it is uncontested that s 311(1)(a), (b) and (c) have been met.

• [38] In relation to whether there has been a transfer of business pursuant to s 311(5), Mr Marchese submits that his role as a site supervisor was outsourced via Fetch and then brought in-house to Cubism once he was directly employed by Cubism. Mr Marchese argues the cessation of the outsourcing of his role to Fetch satisfies s.311(5). [10] In this regard Mr Marchese sought to rely on, amongst other cases, Taulapapa v Toll Personnel Pty Ltd (Taulapapa) [2018] FWC 6242. In Taulapapa, a which decision involves a labour hire employee transitioning to employment with a new employer, the Commission found a connection pursuant to s 311(5) had been established, and the period of service with the labour hire provider was recognised.

• [39] Mr Marchese submits the site supervisor role with Fetch cannot properly be seen as a 'temporary staffing gap'. He objects to the site supervisor role being classified as supplementary labour, or gap-filling, top-up staff. Mr Marchese argues the site supervisor role is a senior position, integral to project delivery.[11]

• [40] Thirdly, Mr Marchese argues that his work for Cubism while employed by Fetch met several requirements which he claims are indicative of a direct employment relationship between himself and Cubism. These included arguments that:

• • Whilst his arrangement with Cubism began as labour hire, it quickly evolved to meet the criteria for a "regular and systematic basis" with a "reasonable expectation of continuing employment."[12]

• Between May 2023 to July 2024, Mr Marchese was continuously engaged in a sequence of projects for Cubism, with no significant breaks or interruptions.

• • Cubism had a high degree of control over Mr Marchese's day-to-day work, including regular direct contact via phone between Mr Marchese and Mr Marcus Bansagi of the Respondent.[13] Mr Marchese argues this was confirmed in cross-examination by Mr Richards and Mr Bansagi.

• • Mr Marchese and Cubism regularly had discussions about future projects or other future work, including discussions with Mr Richards regarding full-time employment which commenced in or around October 2023. Mr Marchese states that in late 2023 to early 2024, he had advised Cubism of his "serious interest in going full-time with the company" but he was "not ready to do so yet."[14] The parties revisited this discussion at the commencement of a new project in June 2024, which culminated in Mr Marchese's draft full-time offer on 2 July 2024. Mr Marchese contends that Mr Richards' interest in Mr Marchese's full-time employment with Cubism is indicative of an expectation of ongoing employment.

• • Mr Marchese argues that his reduced period of notice was "explicit acknowledgement of prior service". [15]

Cubism's Submissions and Evidence - Period with Fetch

• [41] Cubism relies on the witness evidence of Mr Marcus Richards, Director and Mr Leeham Bansagi, Director.

• [42] Cubism submits that a transfer of business between Fetch and Cubism has not occurred within the meaning of s 311 as a 'connection' between Fetch and Cubism has not been established. In particular, the requirements of s 311(5) have not been met.

• [43] First, Cubism submits there has never been an outsourcing of work by Cubism to Fetch. In this regard Cubism relies on Abbot v Acciona Infrastructure Australia Pty Ltd (Abbott) [16] where DP Asbury considered that the term 'outsource' required "something more than an employee ceasing to perform particular work for one employer and commencing to perform the same or substantially the same work at the same location for another employer..."[17] . Cubism relies on Abbott to support its position that whilst Cubism engages labour hire providers to provide temporary and supplementary labour, this is different to outsourcing any work or business function.

• [44] Alternatively, Cubism submits that if Cubism has outsourced work to Fetch, it has never ceased to outsource work as required in s 311(5)(b). In this regard, Cubism relies on Joseph Tiaki v Yarra City Council t/a Yarra City Council (Tiaki v Yarra City)[18].

• [45] Cubism refutes the Applicant's argument that outsourcing has ceased, because he as an individual employee was engaged by Cubism. Cubism argues that s 311(5)(b) applies to "transferring work", not a particular employee. Cubism provided evidence that it continues to utilise Fetch and other labour hire providers to supply temporary and supplementary labour, including site supervision.

• [46] In response to Mr Marchese's other submissions, Cubism makes the following arguments:

• Cubism rejects Mr Marchese's argument that either of the respondent's witnesses conceded that there was a transfer of business.

• • Cubism refutes Mr Marchese's argument that the reduction in the probation period constitutes recognition of prior service. Cubism submits being familiar with Mr Marchese's work as a labour hire employee does not equate to legal recognition of prior service. The reduction in the probationary period was a 'a contractual matter, and ... does not establish continuity of employment".[19]

• • Cubism refutes Mr Marchese's arguments that whilst he was engaged by Fetch he had a 'reasonable expectation of continuing employment' with Cubism. First, Cubism points out that phrase relates to s 384(2). Section 384(2), is only relevant if Mr Marchese had been a direct casual for Cubism instead of Fetch. In any event Cubism argues that the applicant was engaged on a 'project-by-project basis, for defined durations, and his engagements ceased upon the conclusion of each project."[20]

• Cubism also refutes Mr Marchese's arguments going to 'control', arguing that these are only relevant where the issue is whether a worker is an employee or an independent contractor.

• While site supervisor role is important, the Applicant was not integral to business.

Is there a connection under s 311(5)

• [47] The definition of "outsource" is neither provided in the Act, nor substantially discussed in any determination of a Full Bench of the Commission. In these circumstances, I am guided by multiple decisions by individual Members of the Commission.

• [48] It is clear that in some instances where labour hire is initially used to engage labour, and then the worker is hired directly by the host employer to perform the same job, this will be considered ceasing of outsourcing as envisaged by 311(5). In Taulapapa**[21]** Commissioner Cambridge considered a matter where a warehouse worker who had initially been engaged as a labour hire casual employee by Staff Australia, was then engaged by Toll Personnel to perform the same work. The Applicant in Taulapapa had worked on a regular and systematic basis with Staff Australia for almost a year before. In Taulapapa the provision of temporary labour transitioned from Staff Australia to Toll People, and a number of Staff Australia employees, including the Applicant, were offered contracts with Toll Personnel. In these circumstances Commissioner Cambridge considered there was a transfer of business between Staff Australia and Toll Personnel.

• [49] However, it is also clear that s 311(5) does not always apply to circumstances where a host employer engages a labour hire employee, and ultimately whether work has been 'outsourced' or not will depend on the factual situation of the individual case. In this regard I agree with the following comments by Asbury DP:

"In my view there is a distinction between an employer engaging supplementary labour through a labour hire company and outsourcing work. There will be occasions where the distinction is difficult to establish and the side of the line that a particular case falls on will be determined by the facts and circumstances of that case including:

• The nature of the arrangement between the provider of the labour and the company;

• Whether that arrangement continues after the putative outsourcing has taken place;

• Whether all or some of the labour hire employees in the particular workplace are

offered employment at the time of the putative cessation of the outsourcing; and

• Whether the company engaging the labour has some employees "in house" who are carrying out the work and will continue to do so."

• [50] I am of the view that it is clear on the evidence that the role of site supervisor on a project is an integral and necessary role for Cubism's construction projects.

• [51] In this case the evidence before me establishes that Cubism directly engages a small number of on-going key operational staff, including site supervisors. Cubism then supplements its directly employed operational staff with labour hire staff to cover time-defined projects (i.e. labour hire employees are not engaged on an ongoing basis, they are employed for the length of a particular project).

• [52] I find that Cubism outsourced work to Fetch and other labour hire provides to provide supplementary labour for time defined projects.

• [53] However, I am of the view that the evidence does not establish that Mr Marchese's engagement with Cubism equates to a ceasing of outsourced work for the purposes of s 311(5). In coming to this conclusion I have taken the following into account:

• Mr Marchese was engaged by Fetch for Cubism to perform work as a site supervisor on four time-defined projects.

• In mid-2024, one of Cubism's directly engaged supervisor roles became vacant.

• I find that in engaging Mr Marchese, Cubism was not 'bringing in house' Mr Marchese's role with Fetch as a temporary site supervisor on time-defined projects. Rather Cubism was replacing one of its directly employed 'on-going' operational staff.

• In engaging Mr Marchese, Cubism was not ceasing its arrangements with Fetch to engage supplementary labour (including site supervisors) on its projects. This is illustrated by the fact that:

• Unlike in Taulapapa, no other Fetch employee was offered employment with Cubism at the time.

• In fact at the date of the hearing Fetch continued to provide Cubism with supplementary site supervisors for time-defined projects.

• [54] For the above reasons I find that Cubism did not cease to outsource work to Fetch when it directly engaged Mr Marchese. Therefore, the requirements of s 311(5) have not been met, and there has been no transfer of business between Fetch and Cubism. Accordingly, Mr Marchese's employment with Fetch does not count towards continuous service with Cubism as a result of a transfer of business.

• [55] For completeness, I note that even if I had found there was a transfer of business between Fetch and Cubism, it is unclear to me that Mr Marchese would have been able to establish that his service on the four distinct projects should be considered continuous service with each other, or continuous service with his engagement in a full time ongoing role with Cubism. With the exception of the Truganina and Spotswood Project, there were gaps of a number of weeks in between the end of a project and the start of a new project. The Thomastown Project ceased on 3 July 2024, before Mr Marchese was engaged by Cubism on 23 July 2025.

• [56] The other matters raised by Mr Marchese in his submissions were not directly relevant to considering whether Mr Marchese's employment with Fetch should be counted toward employment with Cubism. For completeness, however, I note the following matters:

• Mr Marchese argued that the fact Cubism reduced his probationary period in their offer of employment to him revealed that Cubism counted his service with Fetch, and therefore his service with Fetch should count towards the minimum employment period. I reject this argument. Employees and Employers can negotiate and agree on a range of conditions including the length of probationary period. It is highly likely Cubism felt comfortable reducing the probationary period because they were aware of Mr Marchese's work ethic during his engagement through Fetch on Cubism projects. However, acknowledging performance does not create legally binding service. The length of a probationary period is quite a separate matter to the minimum employment period for the purposes of 382(a) of the Act.

• Mr Marchese' arguments around 'reasonable expectation of continuing employment' relate to s 384(2)(a)(i) of the Act, which goes to whether a directly employed casual can count periods of employment towards their minimum employment period. Without establishing there has been a transfer of business, this section is not relevant to this matter.

• Mr Marchese's submissions regarding Cubism having a high degree of control over his day-to-day work are not particularly relevant to this matter, because it is uncontested that Mr Marchese was engaged by Fetch prior to Cubism. (Such submissions would have been more relevant if Mr Marchese had been an independent contractor, and it was in dispute about whether he was actually an employee). In any event, on the evidence before me, the work arrangements between Cubism and Mr Marchese when he was engaged by Fetch, appear to me to be uncontroversial and relatively standard practices applying to labour hire employees.

• [57] I want to acknowledge that Mr Marchese performed important and skilful work for Cubism as a site supervisor, initially as a labour hire employee engaged by Fetch, and then as a direct employee of Cubism.

• [58] However, for the reasons given above, I cannot find that Mr Marchese completed the minimum employment period required to make an unfair dismissal application.

• [59] Cubism did not cease to outsource work to Fetch when it directly engaged Mr Marchese, and therefore the requirements of s 311(5) have not been met, and there has been no transfer of business between Fetch and Cubism. Accordingly, Mr Marchese's employment with Fetch does not count towards continuous service with Cubism.

• [60] As Mr Marchese's services with Fetch does not count towards his period of employment with Cubism, Mr Marchese has not completed the minimum period of employment required under the Act. Accordingly, Mr Marchese is not a person protected from unfair dismissal, and his application must be dismissed.

[1] Fair Work Act 2009 (Cth) s.382 ('the Act').

[3] DHB 78 Marchese Statement and DHB 423 at [3] Bansagi Statement.

[4] The Act s.23, Corporations Act 2001 (Cth), s.50AAA.

[5] Witness Statement of Mr Marcus Richards ('Richards'), DHB Page 365.

[9] Mr Marchese's Submissions, [19], DHB page 45.

[10] Mr Marchese's further submissions p 1.

[11] Mr Marchese further submissions p.1

[12] Mr Marchese's Submissions, [16], DHB page 44.

[16] [2018] FWC 5609.

[18] [2018] FWC 214.

[20] Respondent's outline of further and final submissions at [2.].

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