In Mr Zhan Gao v Department of Human Services [2011] FWAFB 3050, the case involved a defendant to unfair dismissal proceedings, the Department of Human Services, asserting it wasn’t the employer. The Department asserted that Hays Specialist Recruitment, a labour hire organisation, was the true employer. Hays willingly acknowledged it was the employer. However, the former employee, Mr Gao, alleged the Department was the employer.

The evidence made factual findings difficult and the formal decision of the Full Bench of Fair Work Australia was to send the matter back to the original tribunal member for further consideration.

From the limited material summarised in the judgment, there was evidence that the Department carried out the recruitment process in relation to Mr Gao, but then sought to have him engaged through Hays. No contracts between Hays and Mr Gao were tendered, and Mr Gao’s first contract with Hays appeared to occur after his employment commenced.

Although FWA has not yet determined the outcome of this case, the case illustrates the need for organisations that receive the benefit of workers from a labour hire provider to carefully consider the substance of any relationship established between it and its workers. Relevantly, host organisations need to consider whether the circumstances surrounding the engagement of a worker, including any documentation, are consistent with the desired relationship sought to be created with that worker.