Who is the employer?

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Introduction

An application for unfair dismissal must name the employer against who the claim is being made. That employer must be a national system employer. If an application is made against an entity that is not the employer, the application can be dismissed.

It may not always be clear who the employer is in every situation. An employer may be the corporate trustee of a family trust, or an entity that has been through name changes or involved in a transmission of business.

How can you find out?

Under the Fair Work Act 2009 employers are required to provide employees with a pay slip.^[1] The Fair Work Regulations requires that a pay slip must specify the employer’s name and include their Australian Business Number (ABN) if they have one.^[2]

The employer is generally the entity that pays the employee.

What if you get it wrong?

Section 586 of the Fair Work Act provides a power for the Fair Work Commission to correct or amend an application, or waive an irregularity in the form or manner in which an application is made.^[3]

An applicant can apply to the Commission to amend an application if they have made a mistake on the form such as misspelling the name or not providing the full name of the employer. In certain circumstances, this power may also be used to substitute the name of the employer.^[4]

Case example

Name of employer changed

Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 (Catanzariti VP, Harrison SDP, Bull C, 12 May 2015).

Decision at first instance [2015] FWC 790 (Williams C, 5 February 2015).

The employee lodged an unfair dismissal application which named the incorrect employer. He applied under s.586 of the Fair Work Act to amend the application to change the name of the respondent from Centurion Transport Co. Pty Ltd to CFC Consolidated P/L as trustee for CFC Employment Trust (CFC Consolidated).

Centurion Transport Co. Pty Ltd was the applicant’s employer when he was first engaged. At the time he was dismissed, his employer was CFC Consolidated Pty Ltd as trustee for CFC Employment Trust. ASIC records showed that Centurion and CFC Consolidated had a common director, the same registered office address and the same principal place of business address. The two companies had separate management and operational structures.

At first instance the Commissioner found that s.586 of the Fair Work Act did not provide the power to grant the amendment sought and dismissed the unfair dismissal application. However, on appeal the Full Bench found that s.586 did provide the power for the Commissioner to make the amendment sought. The decision at first instance was quashed and the application was amended.

References

^[1] Fair Work Act s.536.

^[2] Fair Work Regulations reg 3.46.

^[3] Fair Work Act s.586; see Narayan v MW Engineers Pty Ltd (2013) 231 IR 89 [6].

^[4] See for example Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 (Catanzariti VP, Harrison SDP, Bull C, 12 May 2015) at para. 28.

Updated time

Last updated

15 January 2020

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