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