This decision of the Fair Work Commission deals with some of the employment law issues associated with labour hire arrangements.
.“[1]
This is a decision about whether Ms Danielle McMurtry (the applicant) is an employee of Parks Victoria (the respondent).
[2]
Ms McMurtry worked at the Tidal River General Store. Ms McMurtry applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Act. She says that she was dismissed by Parks Victoria on 14 October 2025. In order to be dismissed, she must have been employed.
[3]
Parks Victoria object to the application on the grounds that they did not employ Ms McMurtry. Parks Victoria say that Ms McMurtry was their employee, but that she ceased being their employee on 30 June 2025, when her fixed term contract ended. Around this time, Parks Victoria had decided that staff at various of its sites would be engaged on commercial contracts by external providers. Parks Victoria engaged Hudson Global Resources (Aust) Pty Ltd – a labour hire company – for the Tidal River site. Parks Victoria say that Ms McMurtry was employed by Hudson, and that it was Hudson who dismissed Ms McMurtry.
[4]
Ms McMurtry has not made an application against Hudson and Hudson is not a respondent to this application.
[5]
Based on the materials before me, I am not satisfied that Ms McMurtry was an employee of Parks Victoria.
[6]
On my request, Ms McMurtry supplied me with her payslips for the month before her employment ended. All the payslips show that Hudson paid her wages.
[2026] FWC 1760
DECISION
[2026] FWC 1760
2
[7] Ms McMurtry does not dispute that Hudson was her employer. Her submission is that,
despite the change in her contractual arrangements in June 2025, there was no practical
change in her day-to-day work, she worked solely at the Tidal River General Store and took
direction from Parks Victoria personnel. She also said that she was unable to work if Parks
Victoria withdrew her access to the site.
[8] In relation to Ms McMurtry’s submission that the practical reality of her employment
was that Parks Victoria exercised control over the performance of her work, this is standard
and commonplace in labour hire arrangements. Although s 15AA of the Act provides that
“whether a person is an employer of an individual within the ordinary meaning of that
expression, is to be determined by ascertaining the real substance, practical reality and true
nature of the relationship between the individual and the person”, this is directed towards
whether a person is an employee or independent contractor, as the note to that section makes
clear by referring to the High Court decisions of Construction, Forestry, Maritime, Mining
and Energy Union (CFMMEU) v Personnel Contracting Pty Ltd (2022) 275 CLR 165 and
ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254.
[9] Where a person is employed by a labour hire company, the nature of that relationship
is that they are employed by the labour hire company, and placed into a “host” workplace
where the host exercises control over the person’s day-to-day activities. The totality of the
relationship is that there is no contractual relationship between the applicant and the host
workplace. The contractual relationship is between the applicant and the labour hire company.
There is usually also a separate contractual relationship between the labour hire company and
host workplace. But there is no contractual relationship between the host workplace and the
applicant. That does not mean that a labour hire company is absolved of their obligations to
not unfairly dismiss an employee, but that is not presently relevant in this matter because Ms
McMurtry has not made an application against Hudson.
[10] It is clear that Ms McMurtry was employed by Hudson. Ms McMurtry does not
dispute this. At the time that her employment at Tidal River General Store ended, there was
no contractual relationship between Ms McMurtry and Parks Victoria. As Parks Victoria, the
respondent to this application, was not Ms McMurtry’s employer, they could not have
dismissed her from her employment with Hudson. They may have been able to influence that
decision, and Hudson would have been obliged to ensure that its decision to terminate Ms
McMurtry’s employment based on the host workplace’s request was nevertheless fair. But
that is not the application that Ms McMurtry has made. She has made an application against
‘Parks Victoria. Parks Victoria are not her employer. I dismiss the application.”
McMurtry v Parks Victoria [2026] FWC 1760 delivered 15 May 2026 per Tran C
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