Still no closer to a concept of “joint employment” in Australia

Two Fair Work Commission decisions handed down in January 2021 confrm that we are still no closer to recognising a concept of “joint employment” in Australian employment law.

Both decisions involved challenges to the Commission’s unfair dismissal jurisdiction.

In Don Allan v Cleanaway Waste Management Company T/A Cleanaway Port Adelaide Solid Waste Services [2021] FWC 20 (5 January 2021), the challenge came about because the applicant for reinstatement, who had previously worked with the respondent employer through a labour-hire firm, was unable to satisfy the minimum employment period necessary to entitle him to seek reinstatement. He argued that time spent in service of the labour-hire firm should be aggregated with time spent in direct employment of the respondent. To support his contention, he argued that the labour-hire firm and its client had been his joint employers.

In Toni Bou Lattouf v Bechtel Australia Pty Limited [2021] FWC 142 (25 January 2021), the challenge came about because the applicant, an Australian citizen who had been working overseas for a foreign entity within the Bechtel Group at the time of his dismissal, could not establish that it was the Australian entity named as respondent, rather than the foreign entity, that was his employer. To get around the difficulty, he argued that the Australian entity was jointly his employer with the foreign entity.

In both cases, which were heard by Deputy President Anderson in Adelaide, the applicants were unsuccessful. The reasons were similar. It comes down to this (as held in the Cleanaway decision):

Joint Employment

[78] Nor do I accept the proposition that Mr Allan was jointly employed by both Tecside and Cleanaway. There is no legal foundation on which a claim of joint employment in respect of the same work can be made or sustained under Australian law. I adopt the observations of Hampton DP in Costello v Allstaff Industrial Personnel (SA) Pty Ltd [33] and the later observations of a full bench of this Commission in FP Group v Tooheys on this point where it was said:[34]

“the application of a concept of joint employment to labour hire arrangements would involve a very considerable development of the common law…we do not consider that the Commission’s role as a statutory tribunal extends to engagement in the development of the common law. That is a matter for the courts.”

[79] Such an approach is consistent with observations made by a separate full bench in French Accent:

“[26] Moreover, the nature of the ultimate question is such that in any given case that is not clear cut, reasonable judicial minds may differ as to the correct answer in any given case. This was explicitly recognised in Roy Morgan. This necessarily means that there is an area of uncertainty for businesses that wish to engage only on the basis of independent contract and not on the basis of employment. Any change to the present approach is a matter for the legislature. Our duty is to continue to apply the established general law approach until legislation or the High Court requires otherwise.” (emphasis added)

Neither the legislature nor the High Court has shown much sign of requiring otherwise to date.

Andrew C. Wood

Aged Care Royal Commission: Recommendation 89 – “heartening”!

Working my way through the recently released Aged Care Royal Commission’s Final Report into Aged Care Quality & Safety, It was encouraging to read the recommendations for a rights-based approach to safe and quality aged care for people receiving or seeking care and for informal care-givers.

A rights-based approach recognises an entitlement to safe and quality care, placing the care recipient at the centre – as more than a passive subject, who might be expected to be grateful if they receive care, and agreeably accepting if they don’t. It is empowering and, whilst still recognising that we might be dependent on others for our care needs, lifts us out of the sort of relational dependency that can, too often, erode hope and lead to despondency. So that was good.

What I was also hoping to find, was any recommendation for greater recognition of aged care workers’ rights to sustainable employability, balancing the well-being and job requirements of aged care workforce members,* including rights to skills and career development, support, continuity, communication, reasonable staffing ratios, and a right to be respected and valued as a member of a vital and caring workforce.

Maybe these rights are taken as givens – so obvious that they don’t need to be mentioned. But I’m not so sure.

It seems to me that there may be appreciative and relational aspects to aged care workforce development which may be difficult to grasp because they are not always easy to articulate, and even less easy to measure. There is a need for aged care workforce assessment and development that doesn’t always start with, “The problem with the workforce is that…” . The problems may be real; but the solutions might sometimes be found in a different framing.

I was therefore heartened to read Commissioner Brigg’s recommendation (rec. 89) of a requirement for aged care providers’ governing bodies to adopt and implement a plan to manage and support staff training, professional development and continuous learning, staff feedback and engagement, and team building. And to see that it gets done quickly, the Commissioner proposed a July 2021 deadline.

I’m looking forward to reading the Government’s response. I hope they take it up. It’s a fair starting point. I’d like to see it elevated into an aged care workforce “right”. It’s one that would benefit everobody.

Andrew C. Wood

  • See BSI Standards PD ISO/TR 30406:2017.