Headcount, contractors, and a payroll report that landed at the eleventh hour
A worker tried to argue contractors should count toward her employer's headcount. The Fair Work Commission disagreed.
The Fair Work Commission has thrown out an unfair dismissal application against Buildcraft WA Pty Ltd, ruling on 18 May 2026 that the company is a small business and the worker had not been there long enough to bring her claim.
Shayna Gough worked at Buildcraft from 27 May 2025 to 4 December 2025. She lodged her application four days later, on 8 December 2025. The employer pushed back straight away, arguing Gough had not served the minimum employment period under section 382(a) of the Fair Work Act 2009.
That period depends on company size. Employers with 15 or more workers get six months. Small business employers - fewer than 15 - get 12. Gough's case lived or died on which side of that line Buildcraft fell.
She argued it had 23 workers. To back that up, she filed a staff planner and tender documents showing the larger number in late November and early December 2025. The problem was that several of those people were contractors, engaged through their Australian Business Numbers. Gough said they were not real contractors - they were doing the work of employees and should be counted as such.
A former employee and colleague, Ms St Clair, provided a witness statement on the contractor arrangements. St Clair was not available for examination at the hearing.
Buildcraft, for its part,...
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