A tutor on a national early childhood program worked for less than a month before being given notice, and the Fair Work Commission has found her earlier service with a Queensland Health service cannot be added to that period.
The worker delivered the Home Interaction Program for Parents and Youngsters (HIPPY), a national program operated by the Brotherhood of St Laurence, at Inala in Queensland. The program had previously been delivered locally by the State of Queensland through Queensland Health’s Southern Queensland Centre of Excellence in Aboriginal and Torres Strait Islander Primary Health Care, also known as the Inala Indigenous Health Service and referred to in the decision as COE. COE decided in 2025 to stop providing HIPPY. The Brotherhood of St Laurence then ran a competitive process to engage a replacement, and Wandarrah Pre School & Community Centre was selected.
The worker’s employment with COE ended as a consequence of that decision. Wandarrah offered her a HIPPY Tutor role on 19 January 2026, to begin that day on a one-year engagement. She received notice of dismissal on 11 February 2026, with effect from that date, and lodged her application on 22 February 2026, which the Commission found was within the period required by s 394(2) of the Fair Work Act 2009.
To be protected from unfair dismissal under s 382, an employee must have completed the minimum employment period (a qualifying period of service before an unfair dismissal claim can be made). Deputy President Butler found Wandarrah had more than 15 employees at the relevant time and was not a small business employer, so the period was six months.
that time worked for COE should not be added to the worker’s service with Wandarrah, leaving her short of the minimum employment period.
the contrary, that the earlier service did count towards the period.
that the two organisations were not associated entities within the meaning of s 50AAA of the Corporations Act 2001, so s 22(7)(a) did not assist, and that none of the connections in s 311 establishing a transfer of business were made out. Wandarrah used some of the same HIPPY resources that COE had used, but that alone did not amount to a transfer of assets. As the decision put it: “There is nothing that establishes the HIPPY resources were transferred to Wandarrah from COE in accordance with an arrangement between the two.” COE stopped using the resources once it ended delivery of the program by arrangement with the Brotherhood of St Laurence, and Wandarrah picked them up when it began delivery under its own arrangement with the Brotherhood.
On outsourcing under s 311(4), the Deputy President found no basis to conclude that the work moved across because COE had outsourced it. Wandarrah had taken over as provider, but it had contracted with the Brotherhood of St Laurence, and there was no basis to find that COE and the Brotherhood were associated entities. Insourcing under s 311(5) was not made out, the Deputy President finding that Wandarrah had not provided the program before January 2026.
With no transfer of employment between associated entities and no transfer of business, the period of employment ran only from 19 January 2026 to 11 February 2026. The application was dismissed.
At the determinative conference, held in Brisbane on 24 September 2026, no material facts were in contest, only their legal effect for the purposes of the minimum employment period. The worker was represented by a family member with permission, and Wandarrah was granted permission to be represented by a paid agent, which the worker did not oppose.
At a glance
- Parties: An individual applicant v Wandarrah Pre School & Community Centre (U2026/1143)
- Citation: [2026] FWC 3680, 2 October 2026, Deputy President Butler
- Section: Fair Work Act 2009 ss 22, 311, 382, 383, 384 and 394
- Outcome: Minimum employment period of six months not met; application dismissed
- Who it affects: Employees who move between providers when a funded program changes hands, and the community sector organisations that take over delivery
The decision applies the s 311 connections to a change of delivery partner arranged by the organisation that operates a national program, rather than an arrangement struck between the outgoing and incoming employers. On those facts, shared use of program resources and continuity of the program itself did not preserve the employee’s service.
Source: [2026] FWC 3680
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