[2026] FWC 1189

Fair Work Act 2009

s.365 - General protections

Josateki Vakanawa, Aminio Cava, Wainimala Sakaraia, Josateki Vunimasi, Filipe Nabainivalu, Viliame Vuladua, Josese Nokasavu

(C2026/1103, C2026/1544, C2026/1545, C2026/1546, C2026/1547, C2026/1549, C2026/1550)

Applications under s 365 - no allegation that dismissals contravened Part 3-1 - no power for the Commission to deal with the disputes - applications dismissed

[1] For reasons given on transcript earlier today, I dismissed seven related applications made under s 365 of the Fair Work Act 2009 (Act) after concluding that they did not meet the requirement of s 365(b) of the Act, and that consequently I had no power to deal with the disputes in those applications.

[2] Section 365 states that the Commission may deal with a dispute if: (a) a person has been dismissed; and (b) the person 'alleges' that he or she was 'dismissed in contravention of this Part', namely Part 3-1, which concerns general protections. The seven applicants, who are from Fiji, were employed by Whales Regional Workforce Pty Ltd (Whales), a labour hire company which had deployed them to work for its client, Woodward Foods Australia Pty Ltd (Woodward). The labour services agreement between the two companies ended in January 2026. Whales then dismissed a number of employees, including the seven applicants.

[3] The applications were in very similar terms. They named Woodward as the sole respondent. They did not refer to Whales. They cited a dismissal date in response to the relevant question in the form F8 but did not otherwise refer to their dismissal by Whales. The applicants stated that they wanted to stay in Australia and asked the Commission to deal with their host company, Woodward, regarding their claim about 'unfair treatment, unfair dismissal, breach of oral promise and misrepresentation.' At the hearing, the applicants explained that in February 2025, the CEO of Woodward had promised them that their current working arrangements would continue and that they should therefore not go to work for a different company in Dandenong, but that in August 2025 Woodward gave notice that it was terminating the contract with Whales, which was unfair and contrary to the CEO's promise. Woodward denied that the CEO had made any promise to the employees. It objected to the applications on the ground that it did not employ or dismiss any of the applicants.

[4] It was clear to me that although the seven applicants had been dismissed, they did not allege that they were dismissed in contravention of Part 3-1, and that therefore the requirement of s 365(b) was not met. The applications did not relate to their dismissal by Whales. They made no reference to Whales. This is not a case where dismissed employees have made applications against the employer that dismissed them as well as other persons said to have been involved in a dismissal that contravened Part 3-1. The applicants' complaint is solely directed at an entity that was not their employer, did not dismiss them, and is not alleged to have been involved in any unlawful dismissal. The applicants' complaint relates to an allegation that the CEO of Woodward made a promise to them nearly a year prior to their dismissal by Whales and that the CEO failed to keep that promise.

[5] The mere use of a form F8 application and the citation of provisions in Part 3-1 is not a sufficient basis to conclude that a person 'alleges that the person was dismissed in contravention of this Part'. There must be an actual allegation that the person was dismissed in contravention of the Part. An applicant might say no more than 'I was dismissed because I made a complaint'. But the allegation must exist as a matter of fact. In this case, it does not. The applicants allege unfair treatment, unfair dismissal, and breach of an oral promise by a single respondent that was not their employer and did not dismiss them. There is no allegation that the dismissal of the applicants by Whales contravened Part 3-1.

[6] The Commission cannot dismiss an application under s 365 on the basis that it has no reasonable prospects of success (see s 587(2)). But this is not the reason for my decision to dismiss the applications. The reason is that the applications do not meet the requirement of s 365(b), which is a precondition to the Commission's power to deal with the disputes in question.

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