Fair Work Act 2009

s.365 - General protections

Commonwealth of Australia as represented by the Australian Bureau of Statistics & Anor

Application to deal with a general protections dismissal dispute - whether dismissed

• [1] Ms Janis McSweeney has applied to the Commission to deal with a dispute under s.365 of the Fair Work Act 2009 (Act). Ms McSweeney alleges that she was dismissed by the Commonwealth of Australia as represented by the Australian Bureau of Statistics (ABS) in contravention of the general protections provisions in Part 3-1 of the Act.

• [2] The ABS objects to the application. It submits that Ms McSweeney was not employed by the ABS and for that reason, could not have been dismissed for the purposes of the Act.[1] If the submission is correct, Ms McSweeney has no standing to apply to the Commission under s.365.

• [3] The question is whether Ms McSweeney was dismissed by the ABS. I find that Ms McSweeney has not been dismissed by the ABS. It was not possible for Ms McSweeney to be dismissed by the ABS because she was not an employee of the ABS. On the materials, Ms McSweeney was engaged by a third party, IT Alliance Australia Pty Ltd (IT Alliance), or its related payroll entity, to provide the services of a technical writer to the ABS in connection with the review of a coding service user guide.

• [4] The services of Ms McSweeney were provided under a contract for services entered into by the ABS and IT Alliance on 24 March 2025. Under the contract, the parties agreed for the delivery of the service for a period up to 3 months (with an option to extend if required) but subject to a limit on the approved value of the contract of $49,999.99 including GST. Ms McSweeney provided the services on an hourly basis and submitted timesheets to IT Alliance. IT Alliance then invoiced the ABS for Ms McSweeney's consulting services each month by reference to the number of hours worked in that month. The contract came to an end on 6 June 2025 after Ms McSweeney was advised that the cap on contract value would likely be reached on 13 June 2025 when the contract would end, and she subsequently returned the property of ABS used in connection with provision of the services on 6 June 2025.

• [5] Ms McSweeney says that she separately entered into a contract with IT Alliance in connection with the contract of services. The contract is not in evidence. The ABS inferred, from pay advices provided by Ms McSweeney, that the contract was one of employment. The pay advices indicated payment of salary and superannuation and deduction of PAYG on behalf of Ms McSweeney. I am unable to reach a firm conclusion on the nature of the relationship between Ms McSweeney and IT Alliance. Ms McSweeney's position is that as a matter of form (but not substance) she was a contractor (and has worked as a contractor for years). It is not clear whether the submission in relation to 'form' applied only to the ABS or also to her relationship with IT Alliance.

• [6] There is no evidence that the contract for services was a sham. It reflected the reality of the arrangement between the ABS and IT Alliance, and the parties appear to have conducted themselves in accordance with its terms. There is also no evidence that the ABS intended for its relationship with Ms McSweeney to be one of employment. The materials filed indicate to the contrary, including the absence of any evidence of a contract of employment or appointment to the Australian Public Service. The ABS had no contractual relationship with Ms McSweeney at all. To the extent that a relationship of employee or contractor existed, it was between Ms McSweeney and the IT Alliance.

• [7] Given this conclusion, it is not necessary to deal with what appears to be Ms McSweeney's contention that the real substance, practical reality and true nature of her relationship with the ABS was one of employment. The submission is misconceived because it is directed to the nature of the contractual relationship between the parties. The threshold question in dispute in this matter is whether there was any contractual relationship between the parties at all. Had it been necessary to do delve further into the nature of such a relationship, I would not have been persuaded on the materials filed that the contention was made out.

The jurisdictional objection is upheld and Ms McSweeney's application under s.365 is dismissed.

R Luff for the Australian Bureau of Statistics and A Kent.

[1] Fair Work Act 2009 (Cth), s.386

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