s.365 - Application to deal with contraventions involving dismissal

1448 Pty Ltd; Commonwealth of Australia (as represented by the Department of Education

Application to deal with contraventions involving dismissal - jurisdictional objection - whether the applicant was an employee - whether the applicant was dismissed - found that the applicant was not an employee and not dismissed - application dismissed

[1] This decision determines a jurisdictional objection made against an application commenced by Ms Rachel Anne Harrison (the Applicant) under section 365 of the Fair Work Act 2009 (FW Act). Ms Harrison identified two respondents in the application. The first respondent was identified as 1448 Pty Ltd (the First Respondent). The second respondent was identified in the application as the Department of Education ACT. Pursuant to section 586 of the FW Act, I have exercised my discretion to amend the application to identify the correct name of the second respondent, the Commonwealth of Australia (as represented by the Department of Education) (the Second Respondent).

[2] The jurisdictional objection raised by both respondents was that Ms Harrison was not an employee and that Ms Harrison was not dismissed. On 1 December 2025, the jurisdictional objection was the subject of a hearing before me. Ms Harrison appeared for herself. Ms Lisa Schumacher appeared for the First Respondent. Mr Thomas Monnox appeared for the Second Respondent. Ms Schumacher and Mr Monnox both appeared with permission granted under section 596(2)(a) of the FW Act.

[3] The relevant facts to the determination of the jurisdictional objection are set out below.

[4] Mr James Buckland is an Executive employed by the First Respondent. Mr Buckland gave unchallenged evidence, which I accept, that the First Respondent is a labour hire company which provides workers to Federal and State government departments.[1] Mr Buckland gave unchallenged evidence, which I accept, that on 1 July 2025 he had a telephone conversation with Ms Harrison. Mr Buckland discussed a APS5 Grant Assessor contracting role with the Second Respondent with Ms Harrison.[2] Mr Buckland described the engagement that occurred with Ms Harrison throughout the month of July with Ms Harrison.[3] I accept Mr Buckland's unchallenged evidence about such engagement. The engagement included Ms Harrison being sent particular documents and Ms Harrison completing documents, including the Department's Conflict of Interest and Fraud Declaration (COI / Fraud Form). On about 8 July 2025, Ms Harrison was verbally offered the job.[4] By email sent on 10 July 2025, Ms Harrison accepted the offer.[5] Mr Buckland gave unchallenged evidence, which I accept, that ultimately the Second Respondent decided not to proceed to offer the role to Ms Harrison.[6] Mr Buckland gave unchallenged evidence, which I accept, that he communicated this decision to Ms Harrison on 14 August 2025.[7]

[5] Mr Buckland gave evidence that Ms Harrison was never provided with a written contract.[8] Laura Rositano is employed by the Second Respondent as Director, Grant Workstream Team. Ms Rositano gave unchallenged evidence, which I accept, that Ms Harrison did not sign an employment contract with the Second Respondent.[9] In her opening statement at the hearing, Ms Harrison submitted that both respondents were her employers and there was an employee relationship in place, which was evidenced by "the signed legal contractual agreement between all parties". I reject Ms Harrison's submission that there was a signed legal contractual agreement between Ms Harrison and both, or either of, the respondents. Ms Harrison was cross-examined on this submission. Initially, Ms Harrison pointed to three documents, which she said evidenced the signed legal contract between herself, the First Respondent and the Second Respondent. Those documents were: (1) Information and Communications Technology (ICT) Terms and Conditions of Use, (2) External Workers Pre-employment screening pack (including Building and ICT Access, (3) Conflict of Interest Responsibilities Declaration Form. None of the documents relied upon by Ms Harrison amount to a signed legal contract involving Ms Harrison, the First Respondent and / or the Second Respondent. Ms Harrison also pointed to various text messages and emails. None of the text messages or emails relied upon by Ms Harrison amount to a signed legal contract involving Ms Harrison, the First Respondent and / or the Second Respondent. I accept the evidence of Mr Buckland and find that Ms Harrison was never provided with a written contract of employment by the First Respondent. I accept the evidence of Ms Rositano and find that Ms Harrison was never provided with a written contract of employment by the Second Respondent. I am satisfied on the evidence before me that there was no written contract of employment between Ms Harrison, the First Respondent and / or the Second Respondent.

[6] Mr Buckland gave evidence that Ms Harrison did not perform any work for the First Respondent.[10] Ms Rositano gave evidence that Ms Harrison did not perform any work for the Second Respondent either as an employee or a labour hire worker.[11] In cross-examination, Ms Harrison gave evidence that she performed work for the First Respondent. In summary terms, Ms Harrison's evidence was that the work she performed was accepting the contract. As explained above, I reject Ms Harrison's evidence that she accepted a contract. There was no contract. I am satisfied that Ms Harrison did not perform any work for the First Respondent or the Second Respondent. In making this finding, I reject any suggestion that the text messages, emails, telephone calls etcetera or the completion of various documents in what may be referred to as the pre-employment period amounts to work.

[7] Mr Buckland gave evidence that Ms Harrison did not receive any payment from the First Respondent.[12] Ms Rositano gave evidence that Ms Harrison was not paid by the Second Respondent, including as a labour hire worker.[13] Ms Harrison confirmed in cross-examination that she never received any remuneration from the First Respondent. I am satisfied that Ms Harrison was not paid wages or any other monetary amount from the First Respondent or the Second Respondent. I am satisfied that Ms Harrison did not receive any other benefit from the First Respondent or the Second Respondent.

[8] An application can only be made under section 365 of the FW Act if a person has been dismissed. Dismissed is defined at section 386 of the FW Act.[14] A person must first have been an employee to be dismissed. Section 12 of the FW Act provides that an employee and employer is defined in the first Division of each Part of the FW Act. Section 335 of the FW Act provides employee and employer have their ordinary meaning. The method to be used to ascertain the ordinary meaning of the terms employee and employer is set out at section 15AA of the FW Act, which commenced in operation on 26 August 2024 following legislative amendment.[15] Section 15AA applies to a relationship entered into before that commencement date that is in existence as at that date.[16] As explained by Deputy President Roberts in Mrs Ann Marie Keogh v Onyx Developments Pty Ltd:[17] (citations omitted)

[9] Section15AA(2) requires a consideration of the totality of the relationship which involves a consideration of, amongst other things, the terms of the contract between the parties and an assessment as to how the contract is performed in practice. The approach to a consideration of the totality of the relationship under s.15AA is guided by the common law principles established by cases such as Stevens v. Brodribb Sawmilling Co. Pty Ltd and Hollis v Vabu Pty Ltd and involves a reversion to the multifactorial test that was well known and widely applied prior to the High Court decisions in CFMMEU v. Personnel Contracting and ZG Operations v. Jamsek. (emphasis added).

[9] Determining the question of whether Ms Harrison was an employee does not require consideration of such a multifactorial test,[18] which has been routinely deployed to determine the binary question of whether a person is an employee or an independent contractor. The answer is much more straightforward because I am satisfied that there was no contract of employment between Ms Harrison, the First Respondent and / or the Second Respondent. A similar question to the present was recently considered by Justice Lee of the Federal Court of Australia in Burt v University of Sydney (Common Question)[19], which included a summary of the essential features of a contract of employment. The first principle being "Contract is the principal source of the legal relationship, and there can be no employment without a contract".[20] The second, third and fourth principles identified by Lee J are reproduced below: (citations omitted)

[49] Secondly, the contract must involve the performance of work: the first question in any enquiry as to whether a contract of employment exists is whether "work is being done by a person in performance of a contractual obligation to a second person"...

[50] Thirdly, there must be a wage or other remuneration, otherwise there will be no consideration.

[51] Fourthly, there must be an obligation on one party to provide, and the other party to undertake, work. The obligation required to constitute a contract of employment is that "the putative employer be obliged to pay the putative employee in accordance with the terms of the contract for services reasonably demanded under it...

[10] Lee J's consideration of the applicable principles in Burt also included the observations reproduced below: (citations omitted)

[57] ... the question of whether the relationship is one between employer and employee involves consideration of what has sometimes been considered an "irreducible minimum of mutual obligation" requiring: (a) a putative employer to pay remuneration to the putative employee as consideration for the services reasonably required under a contract; and (b) the putative employee is obliged to perform such services when so required.

[58] Put another way, the arrangements must be able to be characterised as a work-wage bargain; that is, "[t]he consideration for work is wages, and the consideration for wages is work".

[59] This task of determining whether a contract for service has been created will often require characterising the purpose for which work is required to be performed and the purpose of the payment received...

[11] The same fundamental point was explained by Deputy President Wright in Paul Mifsud v Fire and Rescue NSW Band Incorporated:[21] (citations omitted)

[52] It is well established that an employment relationship exists only where a person agrees to perform work pursuant to a 'contract of service' or contract of employment. If there is no contract of employment identified between the parties, then Mr Mifsud and Mr Webster cannot be employees of the Respondent.

[53] Numerous decisions of this Commission refer to the basic essential requirements for an agreement to be legally enforceable as a contract as being

• The parties must have reached agreement as to the terms of the contract.

• The agreement must involve the provision of "consideration" by each party.

• The agreement must be intended by the parties to be legally enforceable.

• The terms of the agreement must be certain and complete and there must be no element of illegality or any other vitiating factor that would deprive the agreement of legal effect.

[12] The contract of employment does not need to be written. However, the authorities, which I apply, clearly establish that a person cannot be considered an employee without a contract of employment.[22] This is also evident from section 15AA(2)(b) of the FW Act, which plainly presumes the existence of a contract of employment. It is difficult to see how the totality of the relationship could be considered, as required by section 15AA(2) of the FW Act, in the absence of a contract of employment.

[13] I have found that there was no written contract of employment between Ms Harrison, the First Respondent and / or the Second Respondent. I do not accept that Ms Harrison being verbally offered the job on about 8 July 2025 and Ms Harrison accepting the offer by email sent on 10 July 2025 amounts to a contract of employment with the First Respondent and / or the Second Respondent. There are several reasons for this finding. Very briefly: (1) I have found that Ms Harrison did not perform work for the First Respondent or the Second Respondent. That is, there was no work done by Ms Harrison at all, and certainly no work performed in the performance of a contractual obligation to either respondent. (2) I have found that Ms Harrison did not receive wages, another monetary amount or other benefit from the First Respondent or the Second Respondent. That is, there was no consideration. These two findings demonstrate that there was no 'work-wage' bargain and consequently no employment relationship between Ms Harrison, the First Respondent and / or the Second Respondent. Finally, I am not satisfied that the verbal offer and Ms Harrison's acceptance by email fulfil any of the basic essential requirements identified by Deputy President Wright in Mifsud at [53].

[14] The absence of a contract between Ms Harrison, the First Respondent and / or the Second Respondent is fatal to Ms Harrison's argument that she was an employee of the First Respondent and / or the Second Respondent. The fact that Ms Harrison was not an employee means that she cannot have been dismissed by the First Respondent and / or the Second Respondent. My finding that Ms Harrison was not dismissed means that I am required to dismiss Ms Harrison's application. An order to that effect will be issued separately to this decision.

[1] Paragraph 4 of the Witness Statement of James Buckland dated 28 November 2025 (Buckland Statement).

[2] Paragraph 7 of the Buckland Statement.

[3] Paragraphs 10 - 28 of the Buckland Statement.

[6] Paragraph 29 of the Buckland Statement.

[7] Paragraph 31 of the Buckland Statement.

[8] Paragraph 36 of the Buckland Statement.

[9] Paragraph 24 of the Witness Statement of Laura Rossitano (Rossitano Statement).

[10] Paragraph 37 of the Buckland Statement.

[11] Paragraphs 24 and 27(a) of the Rossitano Statement.

[12] Paragraph 37 of the Buckland Statement.

[13] Paragraphs 24 & 27(b) of the Buckland Statement.

[15] Doeassel Group Pty Ltd v Joanna Pascua [2025] FWCFB 43 at [26].

[16] Mrs Ann Marie Keogh v Onyx Developments Pty Ltd [2025] FWC 3274 at [8].

[17] [2025] FWC 3274.

[18] See, for example_, Jiang Shen Cai trading as French Accent_ v Michael Anthony Do Rozario [2011] FWAFB 8307, especially at [30].

[19] [2025] FCA 601 at [44] - [59].

[21] [2024] FWC 853.

[22] See also, Mark Pitt v The Scout Association of Australia Queensland Branch [2021] FWC 63 at [34] - [40]. Upheld on appeal in Mark Pitt and Sharon Campione v The Scout Association of Australia Queensland Branch [2021] FWCFB 1241.

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