Introduction
The Fair Work Commission's (FWC) recent decision in Rosmaria Binti Ahmad Subki v Stanley Black & Decker Australia Pty Ltd emphasizes the significance of clearly defined employment relationships in labour hire arrangements. This case examined whether a host company could be deemed a “joint employer” when exerting control over a worker’s day-to-day tasks, ultimately determining that the worker’s employment relationship rested solely with the labour hire agency.
Background of the Case
Ms. Ahmad Subki, employed by ProQuest Recruitment Pty Ltd, was assigned to work at Stanley Black & Decker’s warehouse in January 2023 under a casual labour hire arrangement. Her role involved packing duties, and ProQuest managed her recruitment, payment, and employment terms. Stanley Black & Decker supervised her daily tasks but did not directly employ her.
In June 2024, following an incident involving a power industrial vehicle collision with another worker, Stanley Black & Decker informed ProQuest that Ms. Ahmad Subki was no longer required to work at the warehouse. As a result, she lodged an unfair dismissal claim against Stanley Black & Decker, contending that the company controlled key aspects of her employment and should be treated as a joint employer for the purposes of her dismissal.
Legal Considerations: Employment Relationships
The case hinged on whether Stanley Black & Decker could be considered Ms. Ahmad Subki’s employer. Section 386(1) of the Fair Work Act defines “dismissal” in terms of an employer terminating an employee’s contract. Ms. Ahmad Subki argued that while ProQuest was responsible for her pay and recruitment, Stanley Black & Decker exerted sufficient control over her work, including performance assessments and engagement decisions, to qualify as a joint employer. She claimed that decisions concerning her employment continuation were made solely by Stanley Black & Decker.
Stanley Black & Decker, however, objected on jurisdictional grounds, asserting that ProQuest was her sole employer and the company merely ended her assignment, not her employment. This objection raised critical questions about employment responsibility within labour hire arrangements.
FWC’s Analysis and Findings
Deputy President Millhouse examined the evidence, including Ms. Ahmad Subki’s employment contract with ProQuest, which explicitly defined ProQuest as her employer. The contract clarified that while the client (Stanley Black & Decker) could give day-to-day instructions, it did not establish an employment relationship. Additionally, ProQuest retained control over recruitment, employment terms, and wages.
The FWC further reviewed documents such as invoices and payslips, which reinforced ProQuest’s role as the employer. Notably, the terms of business between ProQuest and Stanley Black & Decker outlined that ProQuest provided labour hire services to the client in exchange for a fee, maintaining sole responsibility for employment matters.
In assessing these documents, the FWC concluded that Stanley Black & Decker’s decision to end the assignment did not equate to dismissal under s. 386(1) of the Fair Work Act, as they were not Ms. Ahmad Subki’s employer. Deputy President Millhouse stated, “The respondent’s election to end [the worker’s] assignment was not an act of dismissal by it, because [the respondent] was not [the worker’s] employer.”
Control and Supervision in Labour Hire Arrangements
The FWC acknowledged that while Stanley Black & Decker supervised Ms. Ahmad Subki’s daily work, the legal framework of the labour hire agreement was pivotal. The case illustrated that day-to-day control over tasks does not automatically establish an employment relationship. Despite Ms. Ahmad Subki’s contention that the host company made key decisions regarding her employment, the FWC found that ProQuest’s authority as the employer remained intact throughout her assignment.
The FWC reiterated that a dismissal requires an employer-employee relationship, and Stanley Black & Decker’s role as the client did not extend beyond managing the daily performance of Ms. Ahmad Subki’s duties. This finding aligns with the Full Bench decision in FP Group Pty Ltd v Tooheys Pty Ltd, which affirmed that Australian law does not recognize the concept of joint employment in such contexts.
Conclusion
The FWC ultimately upheld Stanley Black & Decker’s jurisdictional objection, ruling that the company was not responsible for dismissing Ms. Ahmad Subki because she was employed by ProQuest. The dismissal claim was dismissed, reinforcing the importance of clearly defined employment terms in labour hire arrangements. This case underscores the necessity for workers and employers alike to understand the legal distinctions between employment and assignment, particularly in temporary or casual labour contexts.
By clarifying employment responsibilities, this ruling provides valuable guidance on how labour hire arrangements operate within the boundaries of the Fair Work Act and highlights the need for workers to pursue claims against the correct employer when seeking unfair dismissal remedies.
Rosmaria Binti Ahmad Subki v Stanley Black & Decker Australia Pty Ltd (U2024/7073)
DEPUTY PRESIDENT MILLHOUSE
MELBOURNE, 25 SEPTEMBER 2024
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