FWC examines if integrated business operations support claim for separate entities to be seen as single employer
The Fair Work Commission (FWC) recently dealt with a dismissal case involving a training manager who argued his casual employment across multiple associated entities counted toward the minimum employment period.
The worker said his casual employment across three franchise locations operated by associated entities should be combined to meet the six-month minimum employment period requirement.
He maintained that his work pattern demonstrated regular and systematic engagement despite varying hours and locations, creating reasonable expectations of continuing employment.
The employer contested the employment duration calculation, arguing the worker's casual engagement was sporadic and irregular, insufficient to meet legislative requirements for unfair dismissal protection.
Associated entities create single employer structure
The employment relationship involved a golf and entertainment company operating three franchise locations through separate legal entities under common ownership and control.
The business owner operated locations in different cities, all controlled by a corporate trustee structure with shared directorship and management oversight.
During proceedings, the owner confirmed that all three franchises were separate entities controlled by a corporate trustee of which he was a director.
He acknowledged purchasing the businesses at different times between 2021 and 2024, creating an integrated business structure with shared operational control.
The Commission determined that due to the shared corporate trustee arrangement, the separate businesses qualified as associated entities under corporations legislation.
This finding meant employees across all entities must be counted together for small business threshold calculations, resulting in the employer having more than 15 staff and losing small business protections.
Employment pattern spans multiple locations
The worker's employment history demonstrated consistent engagement across the associated entities from October 2021 through to permanent appointment in late 2024.
Documentary evidence, including payslips and timesheets, revealed regular work patterns across different locations, with administrative arrangements sometimes consolidating hours through single entities for payment purposes.
The operations manager provided evidence that the worker was systematically employed, performing roughly full-time hours every week from one store's opening until permanent employment commenced.
She testified that the worker maintained 2-3 days per week from March 2024 onwards, which she considered systematic engagement.
Financial records showed the worker earned approximately $2,600 from June to September 2024, averaging 1-2 shifts per fortnight across locations.
However, payslip analysis revealed more consistent engagement than the roster records suggested, with the worker performing duties that included training, cleaning, and shift coverage across the business network.
Regularity versus systematic engagement disputed
The employer argued that employment was sporadic and non-systematic, pointing to gaps between work periods and irregular rostering patterns.
Management evidence suggested shifts were not rostered in advance, occurred at different times on different days, and sometimes involved month-long gaps followed by consecutive work periods.
The employer relied heavily on rostering records showing the worker was only formally rostered six times in six months, leading to September 2024, with four instances being consecutive. Management argued this demonstrated irregular, ad hoc engagement rather than systematic employment, creating reasonable expectations of continuing work.
The worker countered that rostering was not an adequate reflection of actual hours worked, though he acknowledged all work would appear on payslips.
He maintained that from June 2024 onwards, he was regularly rostered for various shifts, including cleaning duties, and worked continuously across multiple roles and locations.
Legal framework focuses on engagement pattern
The Commission applied established legal principles distinguishing between regularity of engagement versus regularity of hours worked under such engagements.
Case law established that engagement must be regular and systematic, but this does not require predictable work schedules or guaranteed minimum hours.
The FWC noted that systematic engagement can occur through ongoing reliance upon the worker's services as an incident of the business operation.
The concept does not require workers to foresee when services may be needed, provided the engagement pattern demonstrates some system, method, or plan rather than purely occasional work.
Legal precedent established that evidence of regular and systematic employment can be demonstrated where employers offer suitable work when available, at times when employees make themselves generally available, with sufficient frequency that engagement cannot be regarded as occasional or irregular.
Associated entity work aggregated for assessment
The FWC determined that casual work performed at stores operated by associated entities should be counted together for assessing whether employment was regular and systematic.
The integration between entities, common control structure, and deployment of the worker across locations supported treating the arrangement as unified employment.
The operations manager's authority to deploy the worker across different stores at the owner's direction demonstrated the level of integration between entities.
This operational reality supported concluding that casual hours at both stores should be aggregated when assessing employment regularity and worker expectations.
The FWC found that from September 2024 up to permanent employment commencement, the worker could properly be described as a regular and systematic casual employee.
The analysis of hours worked demonstrated both regular engagement and reasonable expectations of continuing employment on a systematic basis, enabling progression to substantive unfair dismissal consideration.
