Labour hire arrangements and fair work law

The Fair Work Commission has rejected the proposition that in a standard labour hire employment structure the legal relationship is between both the labour hire agency AND the host employer.

“Nor do I accept the proposition that Mr Wheare was jointly employed by both 1800 Drivers and Hi Trans. 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 9 and the later observations of a full bench of this Commission in FP Group v Tooheys on this point where it was said:10

“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.”

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.”

Wheare v Hi Trans Express  [2020] FWC 7068 delivered 24 December 2020 – Anderson DP