Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - whether the applicant was dismissed - application dismissed

[1] Mrs Leonella (Nella) Peel made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). Mrs Peel alleges that she was dismissed in contravention of the general protections provisions in Part 3-1 of the Act. The application has been made against Hobsons Bay City Council (Council). Council objects to the application on the basis that Mrs Peel was not dismissed by it, but rather Mrs Peel was on temporary assignment to it pursuant to a labour hire arrangement.

[2] For the reasons that follow, I find that Mrs Peel has not been dismissed within the meaning of s 386(1) of the Act. Accordingly, Mrs Peel's application is dismissed.

[3] Having regard to the evidence before the Commission, I am satisfied of the following background facts. Council is a Victorian local government employer. It has a commercial arrangement with Comensura Pty Ltd, an outsourced managed service provider. Comensura manages the engagement of labour hire companies and workers on behalf of Council.

• [4] In or about August 2025, Council sought Comensura's support in supplying a worker to provide temporary services to it in the position of Executive Support Officer. Comensura engaged Public Sector People to supply a worker to Council. Under the terms of this arrangement, Public Sector People would employ such persons (including paying remuneration for work performed). Comensura would invoice Council for the services provided, including the cost of wages paid to the worker by Public Sector People.[1]

• [5] Pursuant to this arrangement, Public Sector People supplied Mrs Peel to provide services to Council as an Executive Support Officer. Mrs Peel commenced work on placement with Council on or about 11 August 2025. In December 2025, a decision was made by Council to end the assignment. Council notified Comensura which in turn, notified Public Sector People of this decision. Public Sector People then notified Mrs Peel that her placement with Council would cease.[2]

• [6] On 27 January 2026, the Manager of Public Sector People provided Council with a letter confirming that Mrs Peel is casually employed by it, that Mrs Peel was on-hired to Council for a temporary assignment which concluded on 15 December 2025, and that despite the assignment with Council ending, Mrs Peel remains employed by Public Sector People. The letter provides relevantly as follows (referring to Mrs Peel by her alternate surname):[3]

We are writing to confirm that Leonella Torchia is a casual employee of Public Sector People. She was on-hired to Hobsons Bay City Council for a temporary assignment in the role of EA Support Officer.

Leonella's assignment with Hobsons Bay City Council concluded on 15th December 2025. However, she remains employed by Public Sector People under a zero-hour contract, and we will continue to endeavour to secure her a new assignment in line with her skills and experience.

As a recruitment agency operating in a high-demand market, we actively seek suitable opportunities for our employees following the completion of assignments.

[7] Section 365 of the Act relevantly provides that a person who has been dismissed may apply to the Commission to deal with the dispute. The circumstances in which a person is taken

to be 'dismissed' are relevantly set out in s 386(1) of the Act.

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[8] The question to be determined in this application is whether Mrs Peel was dismissed by

Council, as she contends.[4] This is an antecedent issue that must be resolved before the Commission may exercise the powers conferred by s 368 of the Act.[5]

[9] Mrs Peel submits that she was an employee of Council. First, Mrs Peel says that she was under the daily direction of the Interim Director of Sustainable Communities. Mrs Peel submits that she managed the Director's inbox and diary, triaged emails, coordinated workflow, handled Councillor requests, followed internal processes and worked set hours. Mrs Peel says that this level of control is characteristic of an employee, not a contractor. Second, Mrs Peel says that she was fully integrated into the organisation by attending monthly meetings, participating in 'catch ups,' preparing agendas, organising workshops and being told that she was an 'integral part of the team.' Third, Mrs Peel submits that she performed core operational duties including governance and executive support, councillor liaison, workflow management and process improvement. Fourth, Mrs Peel says that she did not operate an independent business, subcontract work, advertise services, invoice as a contractor and relied upon Council for work, direction and tools. Fifth, Mrs Peel submits that she was given no warning for her termination and locked out of Council's systems, consistent with being dismissed by her employer.

• [10] The documentary evidence before the Commission relevantly comprises of a 'Summary of Assignment Conditions' document which Mrs Peel accepted during the hearing was provided to her by Public Sector People.[6] This document relevantly states as follows:

(a) the 'Employee' was Mrs Peel;

(b) the 'Employer' was Public Sector People;

(c) the 'client' was Council;

(d) the 'Assignment Position' was 'EA Support Officer' commencing 11 August 2025 and ending 31 March 2026 at Council's address in Port Melbourne;

(e) the 'hours of work' may 'change at any time at the complete discretion of the Employer and/or the Client';

(f) the 'termination notice period' required the provision of one weeks' notice by the Employee in respect of 'terminating the Assignment';

(g) the 'Job Description/Statement of Works' was the 'Coordination of Director's meeting, functions and associated documentation. Maintain office procedures, filing systems and databases. Draft high-level documents including correspondence, briefing papers and reports'; and

(h) the 'hourly rate of pay' was a casual hourly rate of $65 per hour.

[11] The 'Summary of Assignment Conditions' demonstrate that Mrs Peel was temporarily assigned to Council on 11 August 2025 to perform the role of 'EA Support Officer.' The assignment conditions make it sufficiently clear that Mrs Peel was engaged and paid by Public Sector People as a casual employee. This is consistent with the stated position of Public Sector People which advised that Mrs Peel was (and in its view, remained, as at 27 January 2026) a casual employee of Public Sector People who was on temporary assignment to Council until 15 December 2025.

[12] The evidence of Council's Senior People Experience Business Partner, Melanie Watkinson, demonstrates the commercial relationship between Comensura, Public Sector People and Council pursuant to which Mrs Peel was engaged. This evidence includes a tax invoice from Comensura, identifying Council as the 'customer', for 'co-ordinating the management and supply of contract labour.' The evidence also includes timesheets in respect of the hours Mrs Peel worked and the fees paid by Council for Mrs Peel's engagement.

• [13] Mrs Peel declined to accept during the hearing that she was an employee of Public Sector People and said that this was merely a 'label.' I understand Mrs Peel's position to be that the Commission should characterise her relationship with Council by reference to her rights and duties to determine whether an employment relationship existed. Mrs Peel relies upon aspects of the judgements of the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[7] (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek[8] (Jamsek) together with the matters at paragraph [9] of this decision to support her contention that she was, in reality, an employee of Council. In this context, I understand Mrs Peel's position to be that she was dismissed by Council at its initiative within the meaning of s 386(1)(a).

[14] Council contends that Mrs Peel's reliance upon Personnel Contracting and Jamsek is misplaced. I accept that an analysis of any ostensible control placed by Council over Mrs Peel's work while on assignment, in the manner urged by Mrs Peel, is not necessary in this case. In any event, the evidence before the Commission does not support Mrs Peel's contentions. The evidence as to the conduct of the parties insofar as it concerns control over Mrs Peel and her integration into Council, is consistent with a labour supply arrangement. The duties set out by Public Sector People in the 'Summary of Assignment Conditions' document expressly contemplate that Mrs Peel was to coordinate the Director's inbox, meetings, functions, filing and office matters. Further, the contractual material between Mrs Peel and Public Sector People provides that in performing the assignment, Mrs Peel was required to draft high-level documents, correspondence, briefing papers and reports. These matters do not demonstrate that Mrs Peel was an employee but rather are tasks that were expressly contemplated as part of Mrs Peel's assignment to Council.

[15] Mrs Peel's contention that she was an employee of Council because she did not operate an independent business, subcontract work, advertise services or invoice as a contractor does not take Mrs Peel's case any further. It is not contended that Mrs Peel was operating an independent business or invoicing as a contractor. At all times, it is accepted that Mrs Peel was an employee; however, contrary to Mrs Peel's position, she was not an employee of the respondent to this application.

• [16] I am satisfied and I find that Mrs Peel was temporarily assigned by her employer, Public Sector People, to Council pursuant to the 'Summary of Assignment Conditions' document. There is no evidence that Mrs Peel was offered a written employment contract by Council, nor did Council make Mrs Peel any verbal offers of employment. In circumstances where there can be only one employer,[9] I am satisfied that Mrs Peel's employer at all material times was Public Sector People.

[17] By sections 12 and 386(1) of the Act, a 'dismissal' is defined by reference to employment. I am satisfied and I find that there was no employment relationship between Mrs Peel and Council. Council's election to end Mrs Peel's assignment was not an act of dismissal by Council because Council was not Mrs Peel's employer. In these circumstances, I am satisfied that Council did not (and could not) dismiss Mrs Peel within the meaning of s 386(1)(a) of the Act, or at all.

[18] I acknowledge Mrs Peel's contention that she was given no warning for the cessation of her assignment. Mrs Peel contends, amongst other things, that it was in retribution for raising bullying-related allegations in respect of Council's employees and occurred shortly after her temporary assignment with Council had been extended. However, this is not a matter that bears upon the narrow jurisdiction of the Commission in this matter, which is confined to determining Council's objection that it was not Mrs Peel's employer and therefore did not dismiss her. For the reasons given, Council's jurisdictional objection has been upheld.

[19] I find that Mrs Peel has not been dismissed within the meaning of s 386(1) of the Act. Consequently, at the time she made her application in the Commission, Mrs Peel was not a person who has been dismissed for the purposes of s 365 of the Act. Council's jurisdictional objection is upheld, and Mrs Peel's application is dismissed.

[1] Exhibit 1, Digital Hearing Book (DHB) 125 at [5]-[6].

[4] Fair Work Act 2009 (Cth) s 365.

[5] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591 at [67].

[7] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165.

[8] [2022] HCA 2; 275 CLR 254.

[9] See FP Group Pty Ltd v Tooheys Pty Ltd [2013] FWCFB 9605; 238 IR 239.

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