s.394 - Unfair dismissal

Unfair dismissal applications - jurisdictional objection - wrong employer named as respondent - "true employer" test - applicants have named the wrong employer - applications to amend name of the employer - amendments made - applications to proceed.

• [1] Margaret Attard, Suzan Azzi, and Julieanne Dossantos (Applicants) have filed unfair dismissal applications which allege they were dismissed by Loughlin Pty Ltd (Loughlin). Loughlin is part of a corporate group that operates a business named Insight Charity Fundraising Services (Insight Group). The Insight Group's main business is conducting fundraising raffles for charities. Other corporate entities within the Insight Group include Insight Holdings Consolidated Pty Ltd (Insight Holdings), Insight FTS Pty Ltd (Insight FTS), and Insight Human Resources Pty Ltd (Insight Human Resources). There is no dispute that the Applicants were paid wages by Insight FTS throughout their employment, and this is reflected in pay slips and group certificates issued to the Applicants. Superannuation contributions were also made by Insight FTS for the benefit of the Applicants. This is a "true employer" case where the Applicants argue that Insight FTS was an "employer of record", but their "true employer" was Loughlin.

• [2] Loughlin raised jurisdictional objections to the applications on the ground that it did not employ or dismiss the Applicants. Loughlin says the unfair dismissal applications should have named Insight FTS as the respondent employer. Loughlin requested that the Commission resolve the jurisdictional issue concerning the correct employer for all three applications before further steps are taken in relation to the applications. This was not opposed by the Applicants. If I find Insight FTS was the "true employer" of the Applicants, the Applicants seek to amend their applications to identify Insight FTS as the respondent employer. The amendment is opposed by Insight FTS.

• [3] Directions were issued for the filing of evidence and submissions on the jurisdictional issue and a hearing was held in Sydney on 7 April 2025. Alice Orchiston (Senior Industrial Officer - Strategic Power - United Workers' Union (UWU)) represented the Applicants. Andrew Salmon (In-house solicitor for the Insight Group) represented Loughlin. I granted permission for Loughlin to be represented at the hearing. This was not opposed by the Applicants. It is likely that permission was not strictly required, given Mr Salmon's in-house role.

• [4] Ms Attard provided a witness statement dated 21 March 2025 and was not required for cross-examination. Ms Attard says she has worked as a casual telemarketer since 28 September 2020. Ms Attard says she understood that she was employed by "Insight Charity Fundraising Services." Ms Attard states nobody in the office referred to Insight FTS. Ms Attard provided documentary evidence which establishes phone scripts, emails, and reference letters referred to the business as Insight Charity Fundraising Services, as opposed to Insight FTS. Ms Attard provided a copy of a reference letter dated 20 January 2025 which identifies in the footer the names "Insight Charity Fundraising Services" and "Loughlin Pty Ltd."

• [5] Cam Sayers (UWU Organiser) provided a witness statement dated 24 March 2025 and was not required for cross-examination. Mr Sayers provides evidence about bargaining for a new enterprise agreement to cover "InsightCFS' telemarketing employees" since approximately September 2019. Mr Sayers provided a copy of a log of claims he sent to Insight Charity Fundraising Services on 19 September 2019 and a draft Notice of Employee Representational Rights. Mr Sayers says the negotiations did not result in a new enterprise agreement. Mr Sayers says he always understood Insight CFS was the employer of the telemarketers. Mr Sayers says Ms Azzi and Ms Dossantos have been actively raising safety issues in their role as UWU delegates. Mr Sayers states the UWU has not had any delegates at InsightCFS since Ms Azzi and Ms Dossantos were dismissed on 9 January 2025.

• [6] Ms Azzi provided a witness statement dated 21 March 2025 and was not required for cross-examination. Ms Azzi says she commenced working for Insight Charity Fundraising Services as a casual telemarketer on 2 November 2017. Ms Azzi provides evidence about her regular duties and her roles as a safety delegate and union delegate. Ms Azzi says she does not recall receiving an employment contract when she started at Insight. Ms Azzi refers to declining to sign a part-time employment contract on 10 July 2023 because she was concerned it would mean she could not continue in her delegate roles. Ms Azzi says she understood her employer was Insight Charity Fundraising Services. Ms Azzi was not aware there was a group of companies. Ms Azzi refers to the business always operating as Insight Charity Fundraising Services or InsightCFS. Ms Azzi provided a copy of a reference letter dated 20 January 2025 which identifies in the footer the names "Insight Charity Fundraising Services" and "Loughlin Pty Ltd."

• [7] Ms Dossantos provided a witness statement dated 21 March 2025 and was cross-examined on her evidence. Ms Dossantos says she started working at Insight Charity Fundraising Services as a casual telemarketer on 28 September 2017. Ms Dossantos provides evidence about her regular duties and roles as a safety delegate and union delegate. Ms Dossantos attached copies of an InsightCFS Grievance Handling Procedure dated 1 March 2022 and an InsightCFS Workplace Discrimination Policy dated 1 March 2022 which she says is the only paperwork she received in relation to her employment conditions. Ms Dossantos says she declined to sign a part-time employment contract on 11 July 2023 because Benjamin Taber (Chief Operating Officer - Insight) told her it would prevent her being a union delegate. Ms Dossantos attached a copy of the draft contract to her statement. Ms Dossantos states she always understood her employer was Insight Charity Fundraising Services or InsightCFS. Ms Dossantos says she was not aware there was a group of companies. Ms Dossantos provides evidence about the business operating under the name Insight. Ms Dossantos provided a copy of a reference letter dated 20 January 2025 which identifies in the footer the names "Insight Charity Fundraising Services" and "Loughlin Pty Ltd."

• [8] The other documentary evidence relied upon by the Applicants is identified in the Schedule to the Decision. I have reviewed all the evidence.

• [9] Mr Taber provided a witness statement dated 7 March 2025 and was cross-examined on his evidence. Mr Taber says the Insight business has at all times employed staff, including himself, in one of two employment service companies. Mr Taber says the Applicants were casual employees of Insight FTS and says they declined offers of permanent employment. Mr Taber attached a copy of Ms Attard's employment contract and says contracts for Ms Azzi and Ms Dossantos have been lost. Mr Taber provided copies of payslips issued to the Applicants during their employment which identified Insight FTS as the employer. Mr Taber says Insight FTS has employed over 3,500 people over 14 years.

• [10] Mr Taber also provided a witness statement dated 1 April 2025. This referred to a separate recent case in the Commission involving an employee of Insight FTS. Mr Taber also provides ASIC records which demonstrate the ownership of business names within the Insight Group.

• [11] Simon Quinn (Managing Director of Insight FTS, amongst other roles in the Insight Group) provided a witness statement dated 10 March 2025 and was cross-examined on his evidence. Mr Quinn says Insight FTS and other companies operate the business InsightCFS. Mr Quinn says service companies have been used within the Insight Group to manage potential conflict of interest risks. Mr Quinn says the main operating entity of the Insight Group is Insight Holdings. Mr Quinn says service companies have been used to employ people within the Insight Group since 2003. Mr Quinn says there was a practice of executing detailed service agreements between the entities but that has fallen into disuse. Mr Quinn confirms he is sole director of Insight FTS. Mr Quinn refers to negotiating an enterprise agreement with the then National Union of Workers in 2015 and 2016. Mr Quinn says negotiations for a new enterprise agreement commenced in early 2023 but have been discontinued. Mr Quinn says Ms Azzi and Ms Dossantos were involved in the enterprise agreement negotiations as union delegates. Mr Quinn says the prospect of including Loughlin as an employer to be covered by the enterprise agreement was never raised. Mr Quinn says InsightFTS has become unfinancial and he considers that the work of the business has ended. Mr Quinn says when some remaining transactions are completed InsightFTS will be placed into administration or liquidated.

• [12] Mr Quinn provided a further statement dated 1 April 2025. Mr Quinn says he is the sole director of Loughlin. Mr Quinn says Loughlin was formed in 1997 as a consulting company and it entered the fundraising sector in 2002. Loughlin adopted the business name of Insight Charity Fundraising Services in November 2007. Mr Quinn says he created Insight Holdings in 2004 to be a contracting company with Loughlin managing the delivery of the contracts. Mr Quinn says he was advised to separate the company that manages client funds from the company that manages employees. Mr Quinn says the turnover of Loughlin grew from 2004 to 2010 and he was advised to further separate the employment activity from campaign management functions. Mr Quinn says Insight Human Resources was established in 2004 and it adopted the business name "Insight Human Resources" in 2013. Mr Quinn says Insight Human Resources employs campaign management staff. Mr Quinn says Insight Human Resources is contracted to Loughlin and invoiced Loughlin for its services each fortnight until December 2024.

• [13] Mr Quinn states Insight FTS was established in 2010 to employ telephone fundraising staff. Insight FTS adopted the business name "Insight Fundraising" in 2014. Mr Quinn says the primary function of Insight FTS is to conduct telephone sales for charity fundraising. Mr Quinn says Insight FTS is contracted to Loughlin and invoiced Loughlin for its services each fortnight until December 2024.

• [14] Mr Quinn says he decided to create service entities to separate the functions and risks within the Insight Group. Mr Quinn says Insight Holdings enters contracts with charity clients. Insight Holdings contracts with Loughlin to manage the campaigns, which typically last for four months. Loughlin engages Insight Human Resources to provide campaign staff. Loughlin engages Insight FTS to employ and manage telephone sales staff.

• Employs staff to recruit and supervise other staff;
• Has its own financial accounts;
• Pays superannuation, payroll tax, and workers' compensation premiums;
• Is registered for GST;
• Files returns and pays company tax;
• Is a party to an enterprise agreement;
• Operates services from the domain name: www.insightfundraising.com.au; and
• Responds to employee legal proceedings.

• [16] Mr Quinn accepts that Insight FTS has adopted the corporate branding of Insight Charity Fundraising Services at times but says the legal name of the company has been clear.

• [17] Mr Quinn says Ms Dossantos should have been aware that her employer was Insight FTS given her involvement in bargaining for an enterprise agreement with Insight FTS.

• [18] Mr Quinn says Insight Holdings lost a client in July 2024 which had represented half of the Insight Group's revenue. Mr Quinn says this has created significant financial difficulties. Mr Quinn says new smaller clients have been acquired in October 2024 and early 2025 which has led to the business seeking new employees through Seek.com advertising.

• [19] Mr Quinn says Loughlin has moved to new smaller premises following the downturn in revenue and the seating for telephone sales staff has been reduced from over 80 to 20 seats. Mr Quinn says more space has been allocated to marketing staff.

• [20] Mr Quinn says he has had to make difficult decisions regarding the employment of several people in December 2024 and January 2025, but says the decisions were necessary due to the changed operating conditions.

• [21] Mr Quinn attached an email from Mr Sayers dated 27 July 2023 regarding bargaining for a new enterprise agreement. Mr Sayers' email attached a revised log of claims. There are 14 items in the log of claims. The first item says the exiting enterprise agreement should form the basis of negotiations for the new agreement.

• [22] Significant attention was focused on compliance issues during the cross-examination of Mr Taber and Mr Quinn. While some issues of substance were identified, I do not consider compliance issues to be overly relevant to the confined legal issue of identifying the correct employer for the Applicants. The cross-examination also revealed a degree of confusion about the legal and administrative arrangements within the Insight Group from Mr Taber and Mr Quinn.

• [23] Justice Buchanan provided a detailed summary of legal principles applicable in "true employer" cases in Fair Work Ombudsman v Ramsey Food Processing Pty Ltd and Another.[1] This included the following section specifically focused on intra-group cases:[2]

Arrangements within a group of companies, or between or amongst associated companies present different issues. The matters I am about to discuss have no real significance for the arrangements with Tempus. It would not matter if they did. The Tempus arrangements did not pass the tests I will identify and discuss. Those tests may have been relevant to a consideration of the arrangements with the earlier Ramsey "employing" companies but that is not the issue for present attention.

There may be many reasons why companies, businesses or enterprises associated with each other might wish to organise their affairs in a way where one legal personality employs labour for the ultimate use and benefit of other legal personalities. Such arrangements will often not be characterised or accompanied by the apparent profitability or identified reward which might be necessary in order to regard an arms-length arrangement as a genuine one.

In such intra-group arrangements there may be overlapping, or even common, directorships, interlocking shareholdings (either cross-ownership or through ultimate ownership) and there is frequently a system of cross-guarantees in place. Little of this may be apparent to outsiders. The details may not be discoverable through the public records system. Arrangements between or amongst companies related in this way where one company (or more) operates to engage labour while others are concerned with management, operations, marketing or sales are by no means unusual. They are certainly not illegal. Arrangements along these lines may even be indispensible for some forms of business activity e.g. joint ventures. Although more than mere lip service must be paid to the separation of legal personality provided by individual incorporation, the tests applied to other labour hire arrangements, of independence and separate business, are either not relevant or are much less readily applied in such a circumstance.

Nevertheless, it must be possible to identify a rational explanation for the arrangement and the explanation must be satisfactorily related to an intelligible business objective. That is so because otherwise, doctrines of agency, at least, may operate to defeat a bare claim of independence and isolated liability, supported only by a bare reference to separate incorporation. That is particularly likely to be the case when: the separate employing company is completely reliant upon a company to which it purportedly supplies labour; it has no assets and no management structure of its own; and it exists only as a corporate shell to protect another company, which does have assets, from liability to employees. In such a case a court might not hesitate long before pronouncing the arrangement ineffective or, in a more serious case, a sham.

In Textile Footwear & Clothing Union of Australia v Bellechic Pty Ltd [1998] FCA 1465 ("Bellechic") Ryan J said, of restructured arrangements in a group of companies:

In ... circumstances, in which the employees were engaged to work in a business in which a number of separate corporate entities participated otherwise than as partners, it was open to those controlling the business to select which company should be the employer provided that the selection was consistent with the financial and administrative organisation of the business and was not otherwise a sham.

On the facts of that case his Honour found that the attempted re-arrangement of employment obligations was ineffective and that changes to the appearance of employment relationships were done for the "administrative convenience" of the real employer.

Similarly, in Romero v Auty [2000] VSC 462; (2001) 19 ACLC 206; [2000] VSC 462, Warren J found that an attempt to change employment obligations from one company to another was ineffective to do so. Her Honour recorded matters similar to some of the arrangements in the present case, saying (at [25]):

It appeared to be agreed between the parties that Westbury Joinery Services [the new "employer"] was the corporate vehicle whereby the company paid moneys to it for the payment of payroll and related matters. Funds to meet the weekly payroll were credited on a weekly basis to the Westbury Joinery Services account from the company [the "previous" employer Westbury Joinery Company Pty Ltd] accounts. The company provided only sufficient funds to cover the payroll and to maintain a modest account balance. Other payments made from the Westbury Joinery Services account, for example, bonus payments, superannuation payments and employee entitlements were covered by the transfer of funds from the company. Westbury Joinery Services paid the labour and associated costs of the company. It did not have significant assets and made no provision in its accounts for accrued employee entitlements. Such entitlements were uniformly met by the transfer of funds from the company for that purpose.

There was evidence that group certificates were issued by the new "employer" which dealt, in its own name, with the Australian Taxation Office, and that the new "employer" was the insured party for workers compensation purposes, rather than the "previous" employer. Notwithstanding those matters, her Honour found that the altered arrangements were ineffective to alter the true position about employment.

Conversely, in the case upon which the respondents placed most weight in the present proceedings, Golden Plains Fodder Australia Pty Ltd v Millard [2007] SASC 391 ("Golden Plains"), a Full Court of the Supreme Court of South Australia upheld a finding of a trial judge that a change of employer from one company in a group to another was not a sham, but legally effective."

• [24] The Applicants referred to the New South Wales Court of Appeal (Gleeson, White and Brereton JJA) judgment in Resilient Investment Group Pty Ltd v Barnet and Hodgkinson[3] (Resilient Investment Group) in support of their position. This judgment is important because it determined the High Court judgements in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[4] and ZG Operations Australia Pty Ltd v Jamsek[5], and WorkPac Pty Ltd v Rossato[6] did not overturn the "true employer" principles previously established in cases such as Pitcher v Langford[7] and Shaw v Bindaree Beef.[8] The Court of Appeal confirmed that the "substance and totality of the relationship"[9] must be considered to determine who was the employer and that the High Court cases which gave primacy to the terms of a detailed written contract had not disturbed that "true employer" test. The Court of Appeal also confirmed that documents such as employment contracts, payslips, and ATO documents are relevant but "not determinative of who is the employer."[10]

• [25] However, beyond the points above, I do not consider the judgment in Resilient Investment Group to be overly helpful in assessing the facts of this case. The "on the record" employer in that case was Aspirio Pty Ltd (in liq) (Aspirio). Aspirio did not carry out any business activities, had no assets or revenue stream, and Aspirio did not pay its employees directly.[11] I consider that makes the circumstances of Aspirio quite different to those of Insight FTS. Insight FTS pays its employees directly and has a revenue stream from Loughlin. Insight FTS engages in business activities through the work of telemarketers. Importantly, Insight FTS has also engaged in the business activity of negotiating an enterprise agreement with its employees that was approved by the Commission and titled the Insight FTS Pty Ltd and National Union of Workers Enterprise Agreement 2016 or the Professional Fundraising Agreement (Enterprise Agreement).[12]

• [26] The Applicants also referred to the Supreme Court judgment In the matter of Branded Media Holdings Pty Limited (in liquidation); In the matter of Brand New Media Pty Limited (subject to a Deed of Company Arrangement)[13] (Branded Media Holdings) in support of their position. This is another "true employer" case. Justice Black reached the following conclusion in relation to the identity of the employer:

"As I have noted above in addressing the parties' submissions, a structure by which Holdings was the employing entity, where it had no assets or revenue from which it could meet employees' entitlements, and did not charge for its services, would have had no intelligible business purpose, or at least no proper purpose. The documentation of the relationship is consistent with Holdings being an "employer of record" and is less significant in identifying the true employer than the fact that BNM incurred the costs of paying employees for entities across the group and on-charged other subsidiaries in respect of those costs. The question of direction or control is, at best, neutral where the issue arises in respect of a corporate group; and those said to have exercised that control were either employed by BNM (in the case of Mr Smith) or otherwise had involvements with both Holdings and BNM in different capacities. For these reasons, and adopting substantially the same reasoning as was adopted in Gothard, it seems to me that BNM rather than Holdings was the true employer of the Specified Employees."[14]

• [27] I also consider the facts in Branded Media Holdings can be distinguished from the facts in this case. Holdings, which was the "employer of record", had no assets or revenue from which it could meet employee entitlements and did not charge for its services. BNM, which was found to be the "true employer", incurred the cost of paying employee entitlements. That is quite different to the situation here whereby Insight FTS pays wages and other conditions directly and received payment for its services from Loughlin. The existence of the Enterprise Agreement is another significant difference between Insight FTS and the situation of Holdings in Branded Media Holdings.

• [28] I consider the significance of the Enterprise Agreement was understated in the Applicants' submissions. The United Workers' Union (through the then National Union of Workers) negotiated the Enterprise Agreement to cover employees of Insight FTS "who perform outbound or inbound telephone sales work, solicit donations and are employed by the Employer in the state of New South Wales."[15] That description captures the work performed by the Applicants. The UWU did not oppose the approval of the Enterprise Agreement and requested to be covered by the Enterprise Agreement. Further, the UWU's log of claims for a new enterprise agreement did not raise any issue with Insight FTS being identified as the employer to be covered by the new agreement. It is difficult to accept the Applicants' argument that Insight FTS is not their "true employer" in circumstances whereby their union, the UWU, is on the record accepting that Insight FTS is the "true employer" since at least 2017.

• [29] I can understand why the Applicants are reluctant to accept that Insight FTS was their "true employer" given Mr Quinn has stated the company will shortly be placed into administration or liquidation. However, these matters are not overly relevant to the legal assessment of whether Insight FTS was the "true employer" of the Applicants.

• [30] Mr Quinn provided detailed evidence regarding why the Insight Group decided that Insight FTS would employ and manage telephone sales staff in his statement dated 1 April 2025. Mr Quinn states he "resolved to properly separate the different functions of the business and the different risks of its activities and the need for use of service entities was appropriate." This evidence was not significantly undermined in cross-examination. I am satisfied based on this evidence that there "is a rational explanation for the arrangement" and the explanation is "satisfactorily related to an intelligible business objective".

• [31] Insight FTS was not merely an "employer of record" as referred to in the cases relied upon by the Applicants. Insight FTS received revenue and used the revenue to pay employment entitlements and insurance premiums directly. Insight FTS engaged in the business activity of performing telephone sales work and engaged in the business activity of negotiating the Enterprise Agreement. Insight FTS also engaged in the business activity of trying to negotiate a new enterprise agreement in more recent years.

• [32] I consider the documentary evidence in this case falls strongly in favour of finding that Insight FTS was the "true employer" of the Applicants. This is consistent with pay slips, Ms Attard's employment contract, the draft contracts provided to Ms Azzi and Ms Dossantos, group certificates, superannuation contribution payments, and workers' compensation premium payments. The generic policy documents, internal communications, and website information relied upon by the Applicants cannot outweigh the array of other documentary evidence which indicates Insight FTS is the "true employer."

• [33] I can understand why the Applicants have been confused about who they were employed by, given the way that the Insight Group operates. However, the Applicants cannot have been legally employed by the business name "Insight Charity Fundraising Services". A business name is not a legal entity that can employ people. The fact that Loughlin owned this business name and that the business name was commonly referred to as part of the operations of the Insight Group does not establish that Loughlin was the "true employer", given the range of other evidence which indicates it was Insight FTS. The subjective understanding of employees is also not overly relevant to the legal assessment that is required.

• [34] This is certainly not a case where Insight FTS was "hiding in the shadows" as some unknown employing entity. Insight FTS was clearly identified as the employer on pay slips, Ms Attard's contract and the draft contracts provided to Ms Azzi and Ms Dossantos, and the Enterprise Agreement. There was ample opportunity for everybody to be aware about who the employing entity was.

• [35] For the reasons identified above, I find that Insight FTS was the "true employer" of the Applicants.

Application to amend the name of the employer

• [36] My finding that Insight FTS was the "true employer" of the Applicants would normally mean the applications against Loughlin would be dismissed.

• [37] However, the Applicants have applied to amend their applications to name Insight FTS as the employer, in the event I find that Insight FTS was their "true employer." The amendment is opposed by Loughlin, Insight FTS and seemingly the Insight Group. There is no dispute that the name of the employer respondent can be amended using the discretionary power in s.586 of the FW Act.[16] Mr Salmon submitted I should not exercise my discretion because it should have been obvious to the Applicants that they named the wrong employer, and that Loughlin has been unnecessarily required to expend resources defending applications that named the wrong employer.

• [38] There is merit to Mr Salmon's submission. However, the Commission is required to exercise its powers in a manner that is "fair and just"[17], and unfair dismissal procedures are intended to be "quick, flexible and informal."[18] I consider these objectives weigh in favour of allowing the amendment, aside from the issue of speediness.

• [39] Although I have found against the Applicants in terms of the "true employer" issue, their argument was not without merit. The Insight Group's internal arrangements are reasonably confusing and even Mr Quinn and Mr Taber had some difficulty explaining them. I also consider that much of the material that Loughlin has filed in relation to the jurisdictional issue will be relevant to the substantive case against Insight FTS. The resources have not all been wasted. I also consider the Applicants are likely blameless in relation to the decision to name Loughlin as the employer, it appears they relied on advice from the UWU. These matters weigh in favour of allowing the amendment.

• [40] I am also somewhat confused about Mr Quinn's actions in seemingly closing the operations of Insight FTS in late 2024. Mr Quinn referred to financial issues, but that does not sit comfortably with the evidence that Insight FTS' revenue comes from Loughlin. It seems that any financial issues would be traced back to the operations of Insight Holdings or Loughlin. It also appears there are still telemarketers performing work, albeit it is a smaller number in a smaller office. It is unclear who is employing these people if Insight FTS is not operating. I consider this uncertainty weighs in favour of allowing the amendment.

• [41] I also consider it is conceivable that evidence subsequently filed by the parties could indicate that the "true employer" of the Applicants was Insight Holdings. Some of the evidence filed thus far suggests that Mr Quinn essentially controls the Insight Group of companies through his positions with Insight Holdings. For example, Mr Quinn has given evidence that "the main operating entity of the Insight business is Insight Holdings Consolidated Pty Ltd, which contracts with clients." I consider these issues should be further explored in the substantive proceedings. This weighs in favour of allowing the amendment so the substantive applications can proceed to be dealt with.

• [42] For these reasons, I have decided to amend the Applicants' unfair dismissal applications to name Insight FTS as the respondent employer. The amendment resolves the jurisdictional objection and means the Commission can continue dealing with the applications in accordance with its normal processes. I will shortly list a Mention/Directions proceeding to discuss the progress of the cases.

• [43] I find that Insight FTS was the "true employer" of the Applicants.

• [44] I have allowed the Applicants' unfair dismissal applications to be amended to identify Insight FTS as the employer.

• [45] The jurisdictional objection falls away with my decision to amend the applications.

Ms Orchiston from United Workers' Union representing the Applicants.

A1 Margaret Attard witness statement dated 21 March 2025 and annexures.

A2 Cam Sayers witness statement dated 24 March 2025 and annexures.

A3 Susan Azzi witness statement dated 21 March 2025 and annexures.

A4 Julieanne Dossantos witness statement dated 21 March 2025 and annexures.

A5 Fair Work Information statement showing 1 July 2020 national minimum wage rates.

A6 Fair Work Information statement showing 1 July 2019 national minimum wage rates.

A8 Screenshot from the website https://insightfundraising.com.au which relevantly states: "Insight Charity Fundraising Services is a business name of Insight Holdings Consolidated Pty Ltd (ABN 55 111 803 475) an Insight group company."

A9 Insight Fundraising Grievance Handling Procedure dated 1 March 2024 which relevantly states: "This policy applies to everyone who works at InsightCFS including the owner, sales agents, administrative support staff, managers, temporary workers, and anyone applying for a position with us..."

R1 Benjamin Taber witness statement dated 7 March 2025 and annexures.

R2 Benjamin Taber witness statement dated 1 April 2025 and annexures.

R3 Simon Quinn witness statement dated 10 March 2025 and annexures.

R4 Simon Quinn witness statement dated 1 April 2025 and annexures.

Applicants' outline of submissions dated 24 March 2025.

Loughlin's outline of submissions dated 1 April 2025.

[1] (2011) 198 FCR 174; [2011] FCA 1176.

[3] (2023) 111 NSWLR 446; [2023] NSWCA 118.

[4] (2022) 96 ALJR 89; [2022] HCA 1.

[5] (2022) 96 ALJR 144; [2022] HCA 2.

[6] (2021) 271 CLR 456; [2021] HCA 23.

[7] (1991) 23 NSWLR 142.

[8] [2007] NSWCA 125.

[9] Resilient Investment Group Pty Ltd v Barnet and Hodgkinson (2023) 111 NSWLR 446; [2023] NSWCA 118, Gleeson JA at [165].

[12] Insight FTS Pty Ltd and National Union of Workers Enterprise Agreement 2016 or the Professional Fundraising Agreement [2017] FWCA 979: AE423376.

[13] [2020] NSWSC 557.

[15] Clause 5 of the Enterprise Agreement.

[16] Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371.

[17] Fair Work Act 2009 (Cth) s 577.

[18] Ibid s 381.

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