FWC examines employment markers in informal arrangements
The Fair Work Commission (FWC) recently dealt with a case examining whether a worker who received accommodation in exchange for services at a Queensland hotel was an employee. The matter arose from a dispute over adverse action under workplace protection laws.
The worker claimed he had a verbal agreement for $1,000 weekly payments plus accommodation at the Mt Carbine Hotel.
The hotel manager maintained that the arrangement was voluntary, with accommodation and meals provided in return for help, except for one period where payment was agreed.
The arrangement ended after an altercation on October 7, 2024, leading to the worker's departure from the premises.
In October 2024, the worker filed a general protections application with the Fair Work Commission under section 340 of the Fair Work Act 2009. The hotel manager objected, claiming no dismissal occurred as the worker was a volunteer who performed work for accommodation and meals.
During the Cairns hearing on January 10, 2025, both parties represented themselves. The hotel manager, while not the owner of Mt Carbine Hotel, confirmed sole responsibility for managing the establishment for at least 12 months.
The arrangement began after a previous worker named Sophia, who had cleaned the hotel for accommodation, left for interstate. Evidence showed Sophia worked 20-30 hours weekly with specified duties and start times.
According to the decision, the worker moved into a caravan at the hotel premises and started work on August 10, 2024. The manager paid for the worker's hotel management certification to ensure qualified supervision was available within an hour of the premises.
Documentary evidence included a $500 cash payment made in September 2024, which the Commission noted: "Between 10 August 2024 and 7 October 2024, [the worker] received one payment of $500 in cash, which he deposited on 18 September 2024."
The Commission considered text messages showing work directions, including instructions about turning off pumps, collecting supplies, and changing operating hours.
The FWC examined whether the parties intended to create legal relations. The decision cited established legal principles: "...the search for the 'intention to create contractual relations' requires an objective assessment of the state of affairs between the parties... It describes what it would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened."
The Commission highlighted several factors indicating employment, including that "[the worker] was required to be available to manage the hotel from 9am to 9pm, 7 days a week."
The decision observed: "These examples illustrate the incongruity between [the manager's] contention that [the worker] was a volunteer, free to come and go as he pleased, and what was actually happening in practice."
After examining the evidence, the Commission stated: "I am satisfied that an employment relationship existed." This finding was based on multiple factors, including work patterns, duties performed, and payment evidence.
The Commission determined: "[The worker] was dismissed at the initiative of [the manager] on 7 October 2024 in accordance with s.386(1) of the Act."
Following this determination, the Fair Work Commission scheduled the matter for further conference under section 368 of the Fair Work Act to address the substantive general protections claim.
