An employer cannot avoid the sham contracting provision in
section 357 of the Fair Work Act 2009 (Cth) by introducing a third
party (such as a labour hire company) into the contractual
arrangements, following today's High Court of Australia
decision in Fair Work Ombudsman v Quest South Perth Holdings Pty
Ltd [2015] HCA 45. Clayton Utz acted for the Fair Work Ombudsman
(FWO).
Quest attempt to "convert" its employees into
independent contractors
The two housekeepers were employed by Quest South Perth Pty Ltd
(Quest) to provide cleaning services. Quest
purported to "convert" the employees into independent
contractors through a triangular contracting arrangement wherein a
company known as Contracting Solutions Pty Ltd provided the
services of the housekeepers to Quest pursuant to a contract
between Contracting Solutions and Quest, and the housekeepers were
engaged by Contracting Solutions as independent contractors under
contracts for services.
