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A Brisbane-based night club operator was called upon to define his employment practices after a dancer claimed she was unfairly dismissed.
The Fair Work Commission recently received an application to deal with contraventions involving dismissal brought forward by a dancer working out of a nightclub in Brisbane's Fortitude Valley.
Despite originally filing the application, the dancer failed to appear before the commission after continuous requests and time extensions, resulting in no evidence being supplied on her behalf.
The nightclub director, however, submitted a flurry of evidence attempting to prove that the dancer was in fact not employed by the establishment.
Holding a nightclub licence and adult entertainment permit allows the nightclub operator to provide live entertainment on their premises, including a person performing an act of an explicit sexual nature, excluding direct sex acts and solicitation.
This entertainment includes lap dances, which the club accommodates with two additional rooms near the main stage, called the ‘lap room and the ‘VIP lap room’. The dancers are not paid for performing on the main stage. Instead, they are only paid for performing private dances for clients in these lap rooms, often with cash.
The nightclub operator submitted that he does not pay the dancers for any entertainment they provide. If a dancer opts out of performing private dances and does not receive tips, they may forgo earning any money.
The dancer who filed the application commenced work at the establishment in September 2023 after reaching an agreement with the operator. The dancer would not receive any remuneration from the club, making her income directly from clients, either by cash or bank transfers.
The rostering was scheduled through Deputy, which gave the dancers the autonomy to select shifts within time slots that worked for them. Under the agreement, if a dancer fails to co-ordinate a replacement for their scheduled shift or give sufficient notice for cancelling, they are issued a fine.
On top of the potential fines, dancers must pay a door fee to the club based on the time they arrive, with the busier hours accumulating to a higher fee. If a dancer arrives before 7:00pm, a door fee is not issued. Depending on the duration of a lap dance, dancers must also pay a fixed price to the nightclub per dance, risking a loss if the dancer cannot secure enough clients in one night.
According to the club operator, no scheduled shifts or hours were put forward to the dancer during her tenure at the establishment, nor were any minimum shift requirements or set days of work. The onus is on the dancers to approach potential clients, as the nightclub does not allocate dances.
The nightclub owner claimed that the dancers are allowed to set their own choreography and routine as long as they are abiding by the legal requirements.
Dancers do not receive superannuation, sick leave, annual leave, or any other forms of employment entitlements from the nightclub.
No iterations of uniforms or advertising logos are required for the dancers to wear. If the dancers decide to use props or equipment during performances, it must be their property and at their own discretion.
After considering the evidence, the FWC concluded that the relationship, including the terms of agreement set between the two parties, represents one of ‘principal,’ finding that the dancer was not employed but was instead an independent contractor.
However, when assessing the validity of the evidence presented by the nightclub operator, the FWC omitted that the missing input on behalf of the dancer was a key contribution to their decision in establishing the “practical realities/true nature of the relationship and the performance of the contract.”
“It is possible that a contested hearing and different findings would have yielded a different result,” FWC deputy president Thomas Roberts said.
“In the application filed, the [dancer] had contended, for example, that she was directed by the [nightclub operator] to perform duties outside the scope of an (unsigned) performance contract and that the [nightclub operator] exercised control over how the [dancer] completed her performance obligations. As no evidence was provided to this effect, those matters can be taken no further.”
RELATED TERMS
An employee is a person who has signed a contract with a company to provide services in exchange for pay or benefits. Employees vary from other employees like contractors in that their employer has the legal authority to set their working conditions, hours, and working practises.
When a company terminates an employee's job for improper or illegitimate reasons, it is known as an unfair dismissal.
Kace O'Neill
Kace O'Neill is a Graduate Journalist for HR Leader. Kace studied Media Communications and Maori studies at the University of Otago, he has a passion for sports and storytelling.
