FWC finds that engaging a labour hire employee is Outsourcing

In Burdziejko v ERGT Australia Pty Ltd [2015] FWC 2308 (1 April 2015), the Fair Work Commission (FWC) decided that ERGT 'outsourced' work when it engaged a worker from a labour hire agency to do work for a new client. The decision has ramifications for anyone employing labour hire workers within three months of termination of their assignment.

FACTS

Burdziejko had initially been employed by Hays (a labour hire provider) to work at ERGT. After three months she was offered ongoing employment by ERGT, which she accepted. She later alleged that she had been unfairly dismissed by ERGT. ERGT argued that the FWC should not deal with the unfair dismissal claim by conciliation until its jurisdictional argument had been determined, i.e. that Burdziejko had not been employed for the prescribed minimum period of employment of 6 months.¹