Fair Work Act 2009

s.365 - General protections

Chandler Macleod Group Limited, Fujitsu Australia Ltd

Section 365 - applicant not employed by respondents - application dismissed

• [1] Damien Phelan has made an application under s 365 of the Fair Work Act 2009 (Act). This provision states that if a person has been dismissed, and alleges that the dismissal was in contravention of Part 3-1, the person may apply to the Commission to deal with the dispute. The respondents, Chandler Macleod Group Limited (Chandler Macleod) and Fujitsu Australia Ltd (Fujitsu), object to the application on the ground that Mr Phelan was not employed by either company. They contend that Mr Phelan's company, H4X, was contracted by Chandler Macleod to provide services to Fujitsu, which is Chandler Macleod's client. Only an employee can be dismissed (see ss 12 and 386). If Mr Phelan was not an employee of Chandler Macleod or Fujitsu, he was not dismissed by them, and therefore had no standing to make the application.

• [2] Chandler Macleod produced an independent contractor agreement made between Recruitment Solutions (A Division of Chandler Macleod) Pty Ltd (since renamed Chandler Macleod Group Limited) and H4X. The schedule to the contract states that Mr Phelan is the authorised delegate of H4X. Mr Phelan signed the contract on behalf of H4X. The schedule provides for a service fee of $218.75 per hour, plus GST. Mr Phelan confirmed to the Commission that this was the fee that he was paid for the work that he undertook for Chandler Macleod and Fujitsu, and that to claim payment, he would submit timesheets indicating the number of hours worked. John Henderson, Chandler Macleod's program manager, said that once Fujitsu confirmed that the hours had been worked, Chandler Macleod would pay H4X the fee. On 18 August 2025, Chandler Macleod advised Mr Phelan that the contract was terminated. Jennifer Elias, Chandler Macleod's employee relations manager, said that the contract was terminated under clause 2.16(3)(c), which permitted termination if the services were not provided in accordance with acceptable business practices or to the satisfaction of the client.

• [3] Mr Phelan contended that although the contract was between Chandler Macleod and H4X, he was the one who undertook all of the relevant work; he was not able to delegate the work to someone else; he was subject to the direction of the head client, the Department of Defence; he had an 'employee' login; he received 'employee' training; Fujitsu had control over him in respect of human resources matters; and it was Fujitsu that had communicated to the Department that he should be terminated. Mr Phelan said that throughout his assignment he was required to seek approval for leave through Fujitsu managers, and to comply with Fujitsu's human resources processes, which included being subject to an internal investigation by Fujitsu. When asked which of the two respondent companies had employed and dismissed him, Mr Phelan said that it was not clear.

• [4] In my view, it is perfectly clear that Mr Phelan was not an employee of either Chandler Macleod or Fujitsu. Mr Phelan entered into a commercial agreement with Chandler Macleod on behalf of his company, H4X, to provide services. H4X was paid a fee for the work that Mr Phelan performed as the authorised delegate. The matters that Mr Phelan refers to are not inconsistent with a contracting relationship. There is nothing to suggest that the arrangement was a sham. It was a routine contracting arrangement between two corporations. Mr Phelan said that he did the work. But people always do the work of corporations. Mr Phelan impermissibly ignores the corporate veil. The practical reality of the working relationship was in accordance with the contract that Chandler Macleod and H4X entered into. For its part, Fujitsu was at a loss to understand how Mr Phelan could have been its employee. So am I. The only employment relationship in this matter was the one between Mr Phelan and his own company. By clause 2.4(l), H4X warranted that Mr Phelan was its employee. Mr Phelan confirmed to the Commission that this was indeed the case.

• [5] The applicant was not an employee of either of the respondents. He was therefore not dismissed by them. The jurisdictional objection is upheld. The application is dismissed.

J. Elias and J. Henderson for Chandler Macleod Group Limited

A. Keder and A. Beckett for Fujitsu Australia Ltd

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