Alouani-Roby v National Rugby League Limited - [2022] FWCFB 171

[2022] FWCFB 171

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Timothy Andrew Alouani-Roby
v

National Rugby League Limited, Bernard Sutton and Graham Annesley

(C2021/8124)

VICE PRESIDENT CATANZARITI

DEPUTY PRESIDENT ASBURY

DEPUTY PRESIDENT BELL
COMMISSIONER MIRABELLA

SYDNEY, 7 SEPTEMBER 2022

Appeal against decision [2021] FWC 6282 of Deputy President Cross at Sydney on 12 November 2021 in matter number C2020/9100

Introduction

Mr Timothy Andrew Alouani-Roby (Appellant) applies for permission to appeal and appeals from a Decision of Deputy President Cross[1] (the Decision) issued on 12 November 2021. In the Decision, the Deputy President upheld a jurisdictional objection in response to a general protections application involving dismissal, made under s. 365 of the Fair Work Act 2009 (FW Act) by Mr Alouani-Roby, against the National Rugby League Limited (NRL/First Respondent), Bernard Sutton (Second Respondent) and Graham Annesley (Third Respondent) (collectively Respondents).

The Deputy President determined that the Appellant was engaged under a series of maximum term contracts of employment and that the terms of the final contract of employment, expiring on 30 November 2020, reflected a genuine agreement between the parties that the Appellant’s employment relationship with the First Respondent would come to an end on that date. Accordingly, the Deputy President concluded that the Appellant’s employment ceased through the effluxion of time upon the expiry of the contract, and that he was not dismissed within the meaning of s.386(1)(a) of the FW Act and dismissed the general protections application.

The Decision at First Instance

At [9] – [18] of the Decision, the Deputy President summarised what he described as “uncontroversial facts”, as follows:

[10] The Applicant was born on 15 August 1989, and is currently 32 years of age. He is a British national, however on 14 July 2020, he became an Australian citizen. He commenced his career as a Rugby League referee in the United Kingdom in 2010. Between 2011 and 2015 inclusive, he refereed in excess of 75 Super League matches. He officiated finals matches, international matches, and in the 2013 Rugby League World Cup as a touch judge.

[11] Following the 2013 Rugby League World Cup in the United Kingdom, the NRL sponsored the Applicant’s skilled migration to Australia to officiate matches in the NRL. He was the second or third UK referee for whom the NRL offered to sponsor migration to work in Australia at that time.

[12] In around 2015, the Applicant migrated to Australia with his wife, and following some transitional training, he commenced officiating in the NRL at the end of the 2016 season. The transitional training was relatively lengthy because the rule interpretations in the NRL were significantly different to those governing Rugby League games in the UK or at International Test Match level, including the appointment and involvement of an assist referee, also known as a pocket referee.

[13] The Applicant’s employment with the NRL was governed by a series of maximum term contracts of employment. Those contracts were:

Date of Contract Date applicant signed Tier Start Date and End Date Duration

19 JANUARY
2015 2 February
2015 N/A 25 March 2015 - 26 March 2016 12 months

24 March 2016 25 March 2016 N/A 28 March 2016 - 24 March 2017 12 months

23 March 2017 Unsigned but agreed 25 March 2017 - 31 November 2019 18 months

18 April 2019 24 May 2019 Tier 4 1 December 2018 - 30 November 2019 12 months

25 November
2019 28 November
2019 Tier 4 1 December 2019 - 30 November 2020 12 months

[14] The Applicant’s final contract of employment was dated 25 November 2019 (the Contract).

[15] From 3 June 2019, the Applicant’s employment with the NRL was also covered by the national Rugby League (Match Officials) Agreement 2019 (the Agreement).

[16] Between the end of the 2016 NRL season and the end of the 2017 NRL season, the Applicant was one of two members of the emerging referees’ squad to be appointed to the assist referee role. He was consistently officiating as a touch judge up until the end of the 2017 NRL season.

[17] Following the 2017 Rugby League World Cup in Australia, New Zealand and Papua New Guinea, the Applicant took a period of annual leave to Vietnam, where he contracted an illness that affected him badly for many weeks (the Illness). On around January 2018, the Applicant returned to pre-season training while still feeling unwell due to the Illness.

[18] In around late 2017, the Second Respondent commenced in the position of General Manager of Elite Officiating, taking over from Mr Tony Archer.”

We assume that the table contains a typographical error in the fourth column with respect to the contract said to have operated for the period from 23 March 2017 – 31 November 2019 and that this contract ended on 31 November 2018. We make this assumption based on the statement at [94] of the Deputy President’s decision that four of the five contracts were of 12 months’ duration, and one had a duration of 18 months, and that the contract described in the fourth column of the table as operating from 23 March 2017 – 31 November 2019, is the only contract with a term of more than 12 months and that if the contract ended on 31 November 2018, it could be described as having a duration of 18 months. We also note that the next contract in the series commenced on 1 December 2018, immediately after 21 December 2018 and there is no reason why two contracts would overlap. If this is a typographical error, then it is immaterial, as no issue was taken with the duration of the various contracts the Appellant’s employment was governed by.

At [19] – [44] the Deputy President set out what he described as “contested facts”. These related to the adverse action alleged to have been taken against the Appellant. The Deputy President generally accepted the Appellant’s evidence about these matters. The findings were in relation to the conduct of the First and Second Respondents and in summary were that: reference had been made to the Appellant struggling with the physical demands of his role after his illness; the Appellant’s English accent had been criticised; and that a “yo-yo” fitness test had been ordered, against the advice of the First Respondent’s then Referees’ Performance Co-ordinator, to target the Appellant because of his illness. The Deputy President also accepted that the Appellant was told that in the context of meetings about his performance plan and the offer of a one-year contract, that if the position had not changed by the following year, then it could, or would likely be, the Appellant’s last contract.

At [39] the Deputy President recorded that the Appellant commenced a period of stress leave on 28 July 2020 and that, at [40], on 23 August the Appellant corresponded with the First Respondent’s General Manager of People and Culture, by email stating:

“I was really just following up on what you said about putting something in writing. However, having had time away to reflect and take advice, I do feel that the situation requires a resolution that goes beyond simply waiting for my contract to expire. I have explained why an internal investigation or reinstatement would not currently solve the issues at hand and I think it is reasonable to expect that we might enter into some sort of discussion as to a satisfactory settlement of my grievances given their gravity – bullying and personal victimisation, damage to my mental and physical health, constructive dismissal including breaches of the EBA-mandated performance appraisal process, unsafe workplace, toxic culture of fear and so on. I feel that I’ve been frank, open and professional throughout this process stretching back to last year and I would hope that I’ve laid everything out in a way that allows the organisation to find an appropriate resolution.”

At [41] the Deputy President recorded that on 2 September the Appellant received a calculation of his severance package based on an earlier cessation of employment and on 16 October the Appellant received a letter from the First Respondent regarding the end of his employment contract on 30 November 2020 and proposing severance terms in response to the Appellant’s email of 23 August 2020. The Appellant ceased employment with the First Respondent on 30 November 2020.

At [45] – [46] the Deputy President set out provisions of the National Rugby League (Match Officials) Agreement 2019 (Agreement). Relevantly, the Agreement provides for Match Officials to be engaged as a Full Time Referee or a Casual Match Official. In relation to Full Time Referees the Agreement provides as follows at clause 5.2:

5.2 Full Time Referees

(a) A Full Time Referee is one designated as such by the NRL.
(b) All Full Time Referees will be employed pursuant to a maximum-term Full Time Referee Employment Contract.
(c) Any Full Time Referee Employment Contract must be for a minimum period of 12 calendar months. There is no restriction on the maximum duration of a Full Time Referee Employment Contract.
…

The Agreement also provides that full time referees are to be appointed to a tier, which determines their remuneration. Such appointments are at the absolute discretion of the First Respondent. Further, the Agreement provides for a monthly performance review. The Deputy President then turned to consider the Appellant’s final contract of employment, setting out relevant provisions at [47] as follows:

“2. Commencement and Term

Your employment will be for a maximum term identified in Item 3 of the Schedule (‘the Term) unless terminated earlier in accordance with clause 11.

3. Duties
…

(f) During the Term, the NRL is entitled to appoint you as a match official in any capacity it chooses (including as a video referee or standby official) in any rugby league match.

(g) You have no entitlement to be appointed, nor is the NRL required to appoint you, as a match official in the NRL Competition or any other competition for a fixture in a particular week.

11. Termination

Your employment with the NRL may be terminated at any time during the Term in writing by either you or the NRL providing the notice period specified below:

The period of continuous service with the NRL at the end of the day the notice is given Period*

Not more than 1 year 1 week

More than 1 year but not more than 3 years 2 weeks

More than 3 years but not more than 5 years 3 weeks

More than 5 years 4 weeks

*In the case of notice to be given by the NRL only, the period of notice specified above is increased by one week if the Match Official is over 45 years old and has completed at least 2 years of continuous service with the NRL at the end of the day the notice is given.

17. Alteration of agreement

This Agreement constitutes the entire agreement between the parties. Any variation must be in writing and executed by all parties.

Item 3: Term

Your employment will be for a maximum term commencing on 1 December 2019 and concluding on 30 November 2020 unless terminated earlier in accordance with this Agreement. You acknowledge and agree that the NRL does not warrant or represent that your employment will continue beyond the Term and, without limiting the capacity to terminate the employment earlier than the completion of the Term, it is intended that the employment relationship will end on the completion of the Term and any decision to offer you further employment is separate and distinct from this Agreement.”

The Deputy President set out s.386 of the FW Act before turning to consider the judgement of the High Court in Workpac Pty Ltd v Rossato & Ors (Workpac v Rossato)[2] and listed the following propositions derived from the reasons of the plurality:

“(a) The character of a legal relationship between parties – including the type of employment relationship between an employer and employee - is ”determined only by reference to the legal rights and obligations which constitute that relationship.” This involves construing the terms of the contract according to their plain and ordinary meaning to determine the nature of the relationship between the parties. The parties’ ”binding contractual promises” are the ”reliable indicators of the true character of the employment relationship” and ”the function of the courts [is] to enforce [such] legal obligations.”

(b) Where the parties have comprehensively committed the terms of the employment relationship to a written contract and have adhered to those terms, the characterisation of the relationship must be determined by reference to the written contract. It is also relevant to have regard to the terms of any enterprise agreement which regulates the employment relationship between the parties in determining the correct characterisation of the relationship. The express terms must be given effect unless contrary to statute.

(c) Nothing in the Act regulating the employment relationship ”inhibits the freedom of the parties to enter into a contract” and “so far as casual employment is concerned, the Act leaves the making of such an arrangement to be agreed between the parties.” The proper construction of a contract of employment does not involve straining legal language and concepts ”in order to moderate the perceived unfairness resulting from a disparity of bargaining power between the parties so as to adjust their bargain.” Even the doctrines of unconscionability or undue influence do not operate to address any perceived unfairness arising from such disparity.

(d) In determining the correct legal characterisation of the employment relationship, the court’s function in construing the written employment contract is ”not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences” or ”to reshape or recast a contractual relationship in order to reflect a quasi-legislative judgment as to the just settlement of an industrial dispute.”

(e) In determining the character of a legal relationship between parties, it is not relevant to have regard to:

(i) ”unenforceable expectations or understandings that might be said to reflect the manner in which the parties performed the agreement;” or

(ii) the nature of the relationship between the parties based on the ”real substance”, “practical reality” or the ”true nature of the relationship,” because such ”an outcome does not accord with elementary notions of freedom of contract” and ”involve[s] the very kind of obscurantism that has been said to be alien to the judicial function.”

(f) To the extent that unspoken mutual undertakings or shared unenforceable expectations or understandings are capable of potentially giving rise to an implied term or a subsequent variation to the written contract, they cannot contradict or be inconsistent with express terms of the contract.” (citations omitted)

After summarising the submissions of the parties, the Deputy President set out extracts from the majority decision of a Full Bench of the Commission in Saeid Khayam v Navitas English Pty Ltd[3] (Khayam v Navitas) and cases considered by the Full Bench. In his consideration, the Deputy President identified the issue of jurisdiction, in the following terms:

“[91] The Application alleges various contraventions of the general protections contained in Pt 3-1 of the Act involving dismissal. The Commission has jurisdiction to entertain the Application only if the Applicant has been dismissed (Coles Supply Chain Pty Ltd v Milford[4]).

[92] The Respondents dispute the Applicant’s assertion that his employment terminated on the First Respondent’s initiative. If the Respondents’ contention is correct, it follows that the Applicant does not have standing to bring the Application under s.365 of the Act and the Commission therefore does not have jurisdiction either to deal with the dispute under s.368 of the Act, including conciliating the dispute and issuing a certificate that it is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. Absent such a certificate being issued, the Applicant cannot commence an application in the Federal Court of Australia or the Federal Circuit and Family Court of Australia regarding whether the Respondents have contravened the alleged general protections in relation to his dismissal.

[93] The Respondents submit that the Applicant’s employment was terminated upon the expiry of a maximum term of the Contract, and accordingly as the Applicant has not been dismissed, the Commission lacks jurisdiction to deal with the Application due to the provisions of s.368(2)(a) of the Act.”

It is common ground in the appeal that the reference to “s.368(2)(a)” of the FW Act in [93] of the Deputy President’s decision is erroneous, as there is no section s.368(2)(a) in the FW Act and s.368(2) concerns conferences of the Commission being held in private and is not relevant to any of the matters the Deputy President was determining. However, the parties do not agree as to what section of the FW Act the Deputy President intended to refer to, and the impact of the error. This is a matter to which we will return.

The Deputy President concluded that it was clear the parties had comprehensively committed the terms of the employment relationship to the written form of the contract, and that it was a maximum term contract commencing on 1 December 2019 and concluding on 30 November 2020. The Deputy President also concluded that the terms of the contract were clear and unambiguous, and that the Agreement confirmed that the correct characterisation of the relationship is that of a maximum term contract. In reaching this conclusion, the Deputy President stated that the express terms of the contract must be given effect unless contrary to statute.

The Deputy President went on to consider that the contract represented a genuine agreement between the parties, in the sense that term is used in Khayam v Navitas, that the employment relationship would not continue past 30 November 2020 and found that the unfairness or disparity of bargaining power alleged by the Appellant did not exist and that he understood that one- or two-year contracts would be given by the First Respondent. The Deputy President noted that the Appellant accepted that he signed contracts acknowledging the terms of the offers and his acceptance. The Deputy President also noted that the Appellant accepted that NRL match officials did not have indefinite careers and that those careers must come to an end eventually, because contracts are not renewed. Additionally, the Deputy President noted that the Appellant was involved in the negotiations for the Agreement and voted in favour of its approval after reading the Agreement and understanding its terms and effect and that the Agreement prescribed the use of maximum term contracts. The Deputy President found that there were maximum term contracts covering the entire period of the Appellant’s employment and that the employment relationship was co-extensive with each of the contracts.

The Deputy President rejected the Appellant’s submissions to the effect that the Respondent engaged in a process aimed at ending the employment relationship before the last contract, regardless of its terms, and that the actions of the Appellant were the significant contributing factor resulting in the termination of employment. The Deputy President found this submission to be illogical on the basis that most of the conduct relied on by the Appellant and considered by the Deputy President under the heading “Contested facts”, occurred in the six month period prior to the Appellant receiving and signing the last contract, on 28 November 2019. The Deputy President also found that none of the conduct referred to by the Appellant, could be seen as constituting an act on behalf of the Respondents that brought about the end of the employment relationship.

In relation to the question of whether the Appellant’s contract was vitiated by one of the relevant factors set out in Khayam v Navitas, the Deputy President found that the First Respondent had a legitimate purpose in using maximum term contracts for the engagement of its match officials and that such contracts did not contain objectionable terms as defined in s. 12 of the FW Act. The Deputy President also found that the contracts did not have the substantial purpose of avoiding the First Respondent’s obligations as an employer in relation to the unfair dismissal provisions or under other parts of the FW Act. Further, the Deputy President considered that the Appellant is entitled to make claims other than a general protections application involving dismissal, on the grounds that the Respondents took adverse action against him by altering his position to his prejudice or discriminating between him and other employees, thereby satisfying the objects of the FW Act.

After noting difficulty in understanding the conduct or representations that the Appellant alleged provided a proper legal foundation to prevent the First Respondent from relying upon the terms of the contract, the Deputy President noted the Appellant’s submission to the effect that while major sports use fixed term contracts to engage players and match officials, such contracts cannot be used as a cover to avoid accountability for the unlawful treatment of their employees. In relation to this submission, the Deputy President concluded that even accepting the Appellant’s submissions at their highest, the conduct and failures relied on by the Appellant did not go anywhere near providing a proper foundation for the First Respondent being prevented from relying on the express terms of the contract and went on to dismiss the application.

The appeal

The notice of appeal was filed on 1 December 2021. On 15 December 2021, Directions were issued requiring the filing of outlines of submissions concerning permission to appeal, the merits of the appeal and permission for the parties to be legally represented. The following submissions were received:

· The Appellant filed Outlines of Submissions on permission for legal representation, permission to appeal and merits of the appeal, dated 6 January 2022 and amended on 8 February 2022.
· The Respondents filed Outlines of Submissions on permission for legal representation, permission to appeal and merits of the appeal, dated 28 January 2022.

The matter was listed for hearing on 8 February 2022 in respect of both permission to appeal and the merits of the appeal. Both parties sought and were granted permission to be represented by lawyers in the appeal, on the basis that we were satisfied, pursuant to s.596(2) that legal representation would allow the Commission to deal with the appeal more efficiently, taking into account the complexity of the issues raised. We were also satisfied that it would not be unfair to allow permission. The Appellant was represented by Mr M Harmer, of Harmers Workplace Lawyers. The Respondent was represented by Mr Seck of Counsel, instructed by MinterEllison.

Following the hearing, a decision was issued on 8 April 2022 by a Full Bench in NSW Trains v James.[5] On the basis that the decision in NSW Trains v James came to a different conclusion in relation to a matter considered by the Full Bench in Khayam v Navitas, the parties were provided with an opportunity to make further written submissions on the relevance of NSW Trains v James to the issues raised in the present appeal. On 6 May 2022, further written submissions were filed by the Appellant. Submissions in response were filed by the Respondents on 20 May 2022 to which submissions in reply were filed by the Appellant on 27 May 2022.

Permission to appeal

The Appellant submits that it is in the public interest for the Commission to grant permission for the appeal on the basis of errors by the Deputy President in his consideration and application of the principles espoused by the High Court in Workpac v Rossato and that the principles in Workpac v Rossato are not determinative of the operation of s.386(1) of the Act. The Appellant submits that the impact of Workpac v Rossato, on areas of employment law other than the characterisation of the relationship between employer and employee as being casual as distinct from permanent in nature, is an important issue of public interest. The Appellant also contends that the implications arising from the Decision on the integrity of sport and particularly on the national competition conducted by the NRL raise an additional issue of public interest.

Further, the Appellant submits that the correctness of the Decision is attended with sufficient doubt to warrant reconsideration and that substantial injustice will result if permission to appeal is refused. In this regard, the Appellant contends that the Deputy President conflated the concept of the employment relationship with the employment contract, misinterpreted the Full Bench decision in Khayam v Navitas and misconstrued the significance of Workpac v Rossato in respect of the approach to of s.386(1)(a) of the FW Act. In oral submissions at the hearing of the appeal, reference was also made by the Appellant to the erroneous reference to s.368(2)(a) in paragraph [93] of the decision, which was submitted to be a further indication that the Deputy President did not properly apply the test in s.386(1)(a) of the FW Act.

The Respondents contend that permission to appeal should be refused because:

· The Full Bench in Khayam v Navitas addressed the correct principles regarding the use and operation of maximum term contracts in relation to s.386(1)(a).

· The Deputy President has adopted an orthodox approach to the application of the principles enunciated in Khayam v Navitas and the decision is not attended by sufficient doubt to warrant reconsideration.

· The Deputy President’s approach is not disharmonious with other recent decisions of the Commission including Nasr v Mondelez Australia Pty Ltd[6] and Murphy v University of Southern Queensland.[7]

· The High Court decision in WorkPac v Rossato reinforces the correctness of the statement of principle in Khayam v Navitas that the parties’ written contractual terms should be given their full force and effect in defining the character of the employment relationship. Once this approach is applied, then it must follow that under the terms of the parties’ written contract of employment, the Appellant’s employment ended by expiry of the maximum term on 30 November 2020 and not at the initiative of the Respondent.

Section 604 of the FW Act provides that a person aggrieved by a decision of the Commission may appeal the decision with the permission of the Commission. By virtue of s. 604(2) without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission Tribunal identified some of the considerations that may attract the public interest as follow:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters ...”[8]

Permission to appeal may be granted where there is an arguable case of appealable error, and the decision is attended with sufficient doubt to warrant its reconsideration. In the present case, we are of the view that the appeal raises questions of general importance and significance concerning the proper construction and correct application of s.386(1)(a) of the FW Act, in the context of the interaction between Full Bench decisions in Khayam v Navitas and Sydney Trains v James. The decision is also affected by uncertainty because it refers to s.368(2)(a) of the FW Act, in circumstances where the parties accept that this section had no relevance to the issues in contest and that the references are erroneous. Further uncertainty is created by the fact that the parties do not agree on the section of the FW Act that Deputy President intended to refer to. As a result, the decision is attended with sufficient doubt to warrant reconsideration.

Accordingly, we are satisfied that it is in the public interest to grant permission to appeal, and we do so.

Appeal grounds

The Appellant advanced ten grounds, involving some overlap. The grounds in the notice of appeal did not align with the grounds as set out in the submissions filed by the Appellant and were corrected in an amended submission. The grounds of appeal assert that the Deputy President erred by:

“1.Failing to correctly apply the statutory test set out at section 386(1)(a) of the FW Act in determining whether there had been a dismissal within the meaning of the FW Act.

2.Mis-stating the statutory test by asserting that the express terms of the contract of employment must be given effect unless contrary to statute (at [99]).

3.Conflating the concepts of the employment relationship (which in this case extended for five years across several successive contract periods) with the concept of the employment contract (at [99]).

4.Finding that a single employment relationship can be “co-extensive” with several independent employment contracts. The finding that the employment contract, at Item 3 of the Schedule, determined the extent of the employment relationship (rather than the extent of the instant iteration of the contract fixing terms for the relationship for a particular period) is inconsistent with the findings of the High Court of Australia in Concut Pty Ltd v Worrell. The Applicant’s employment relationship with the First Respondent was not co-extensive with his final contract, but with the entire series of contracts by which the First Respondent periodically determined the terms of his engagement (at paragraph 103).

5.Creating a dichotomy between pre and post contract conduct and failing to take into account as a relevant consideration the pre-contract conduct of the Respondents that occurred prior to 28 November 2019 (at paragraph 105).

6.Failing to properly consider the post-contract conduct of the Respondents at all or as part of the continuum of conduct that constituted termination on the employer’s initiative for purposes of section 386(1)(a) of the FW Act (at paragraphs 106 – 108).

7.Failing to properly consider the contract as an attempt to evade the unfair dismissal and General Protection provisions of the FW Act (at paragraphs 112 – 116) and finding that the First Respondent’s use of maximum term contracts is “intended to ensure that it has the flexibility to engage the best available match officials to be part of its elite squad each session”. The use of arbitrarily determined fixed term intervals for considering the continuation of the employment relationship is a strategy with a “substantial purpose . . . to avoid the employer’s obligations” under Part 3-2 of the FW Act, within the meaning of section 386(3).

8.Failing to properly state in the decision, and failing to take into account, the relevant considerations put forward by the Applicant for the purposes of providing a proper legal foundation to prevent the Respondents from relying upon the terms of the contract as the means by which the employment relationship was terminated (at paragraphs 117 – 119).

9.Misconstruing the impact of the decision of the High Court of Australia in Workpac Pty Ltd v Rossato on the statutory test at section 386(1)(a) of the FW Act in context of the decision of the Full Bench of the Commission in Khayam v Navitas English Pty Ltd and other relevant authorities concerning the operation of maximum term contracts and the meaning of dismissal under the FW Act.

10.Mischaracterising the role of the Commission (at paragraph 117). The Commission is a tribunal, empowered under the FW Act to perform its functions according to the objects of the FW Act. It is not constrained in the performance of its role by contracts made by employers. The statutory protections for employees against adverse action taken on prohibited grounds survive attempts by employers to circumvent those protections by contract provisions. The High Court specifically distinguished its own role in Workpac v Rossato as the role of a court, and not a tribunal.”

Appellant’s submissions

In relation to grounds 1 and 2, the Appellant submits that the threshold jurisdictional issue that the Deputy President was required to determine, was whether the Appellant had been dismissed as that term is defined in s.386(1)(a) of the FW Act. In ground 1 it is contended that the Deputy President erred by failing to correctly apply the statutory test and in ground 2 that the test was mis-stated, by the Deputy President asserting that the express terms of a contract of employment must be given effect unless contrary to statute. The Appellant submits that while the existence and construction of the contract or contracts of employment between the parties are not irrelevant to the determination of the central issue, neither should they have been determinative.

The Appellant submits that there is currently no authority or legislative basis to support the approach to resolving the question of whether an employment was “terminated on the employer’s initiative” in s.386(1) merely by reference to the existence of a valid maximum term contract or by limiting the inquiry to the terms of such a contract. The Full Bench decision in Khayam v Navitas provides the correct approach to the construction of s.386(1)(a) in contrast with the earlier Full Bench decision in Department of Justice v Lunn[9] (Lunn). The Full Bench in Khayam v Navitas which held that the correct interpretation of s.386(1) of the FW Act requires a consideration of the following propositions:

a)A termination at the initiative of the employer does not refer to the termination of the contract of employment.[10]
b)A termination of employment at the initiative of the employer occurs where the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.[11]
c)It is possible that when a maximum term or outer limit contract comes to an end by effluxion of time, there may be no action on the part of the employer which resulted directly or consequently in the termination of the employment relationship. However, this cannot be assumed to be the case merely by examining the terms of the contract.[12]
d)Since a series of outer limit contracts, or even a single outer limit contract, can co-exist with an employment relationship which is ongoing, it is necessary for the purposes of determining whether the employment contract and the employment relationship are coterminous, to have regard to circumstances outside the written terms of the contract.[13]
e)In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequently, in the termination of the employment. This will necessarily involve a focus on the conduct of the employer. It will not be sufficient to assert the terms of the contract.[14]

With respect to the propositions in (b) and (e), the Appellant submits that, rather than affording primacy to the written contract of employment, the Full Bench in Khayam v Navitas adopted the decision in Mohazab v Dick Smith Electronics Pty Ltd (No2)[15] (Mohazab) as the starting point in the construction and application of s.386(1)(a). The Appellant therefore submits that in circumstances where the Appellant did not leave his employment voluntarily, it becomes necessary to interrogate whether the acts on the part of the employer have the effect of bringing about or contributing principally to the termination of the employment in a direct or consequential manner.

The acts of the Respondents said by the Appellant to have such an effect include: not allowing the Appellant to fully recover from his illness; victimising the Appellant; corrupting the performance data of the Appellant to set him up for removal; scapegoating the Appellant in relation to any error which occurred in games in which he participated; placing inappropriate performance demands on the Appellant in an attempt to force him to resign; the Second Respondent informing the Appellant in October 2019 that the First Respondent would be deciding whether to continue the employment relationship depending on its assessment of his performance in October 2020, and then prematurely telling the Appellant in June 2020 that his contract would not be renewed. These acts were said to have caused the Appellant’s health to break down to such an extent that the Appellant was unable to continue to work following a meeting on 9 June 2020.

The Appellant further contends that even if some of the Respondents’ conduct occurred prior to the signing of the last maximum term contract, it is irrelevant to distinguish between conduct that occurred before, and conduct that occurred after, the parties entering the last contract, because s.386(1)(a) is concerned with the termination of the employment relationship rather than any one of a series of employment contracts. According to the Appellant, the First Respondent’s conduct must first be assessed in accordance with principles in Mohazab and only after such an assessment is carried out, can attention be directed to the consideration of the presence or absence of a genuine agreement about the ending of the employment relationship. The concept of genuine agreement that the employment relationship will not continue after a specified date, contemplates more than the assertion of words in a written contract. In the present case, the Deputy President failed to appreciate the significance of the conduct of the employer and erroneously gave primacy to the terms of the maximum term contract. The vitiating factors referred to by the Full Bench in Khayam v Navitas is not a reference to a closed or exhaustive list and in some cases it will be necessary to go further than examining the terms of the contract.[16] According to the Appellant, the approach taken by the Deputy President is to the effect that a form of words in the employment contract is prima facie proof of a genuine agreement which can only be rebutted in a limited set of circumstances and resurrects the propositions from Lunn which were rejected in Khayam v Navitas.

The Appellant draws a distinction between employment contracts and employment relationships and submits that the Deputy President conflated the two concepts and erred in the conclusion that the Appellant’s employment contract and employment relationship were “coterminous”. The Appellant submits that it follows from the distinction between the contract of employment and the employment relationship, that a wider range of circumstances, apart from the written contract, are relevant to determining the way the contract ended. The Deputy President erred by limiting the inquiry to merely the terms of the final contract of employment rather than inquiring into a wider range of circumstances. It is contended that the correct characterisation of the Appellant’s employment relationship is one that endured for 5 years across several consecutive contractual periods. The last of the series of maximum term contract was only the final instrument imposed by the NRL. On that basis, the Appellant submits that the Deputy President misunderstood the task before him in the construction of s.386(1)(a) of the Act.

In oral submissions at the hearing, the Appellant raised an additional error said to be relevant to ground 1, at [93] of the decision where the Deputy President referred to “s. 368(2)(a)” of the FW Act. Paragraph [93] of the decision is as follows:

“[93] The Respondents submit that the Applicant’s employment was terminated upon the expiry of a maximum term of the Contract, and accordingly as the Applicant has not been dismissed, the Commission lacks jurisdiction to deal with the Application due to the provisions of s.368(2)(a) of the Act.” (emphasis added)

The Appellant points out that there is no section numbered “s.368(2)(a)” in the FW Act and posits that the Deputy President intended to refer to s.386(2)(a), which provides that a person has not been dismissed if the person is employed under a contract of employment for a specified period of time, a specified task or a season, if the employment has terminated at the end of the period, on completion of the task or at the end of the season. The Appellant contends that this is an error on the basis that in the proceedings before the Deputy President, it was not disputed between the parties that the contract and the enterprise agreement carry a right of termination provision that would clearly take the whole case outside the exception in s. 386(2)(a). The Appellant’s entire case was put under s.386(1)(a) and that was the case met by the Respondents. This error is asserted to be the reason why there has been a fundamental miscarriage and the test under s.386(1)(a) was not properly applied. This was also said to be relevant to ground 2 and to explain the Deputy President’s misapplication of the High Court decision in Workpac Pty Ltd v Rossato.[17] In this regard, the Appellant submits that consideration of that decision would have been appropriate if the Deputy President were dealing with a case under s.386(2)(a).

Grounds 3 and 4 concern the way the Deputy President dealt with the concepts of the employment relationship and the employment contract. In relation to ground 3 the Appellant submits that is incorrect to say, as the Deputy President does at paragraph [99] of the decision that: “the correct characterisation of the relationship is that of a maximum term contract”. Such a statement inappropriately conflates the concept of the employment relationship, which in the Appellant’s case extended for five years across several successive contract periods, with the concept of the employment contract. The correct characterisation of the relationship is an employment relationship enduring for five years. The maximum term contract was the final instrument imposed by the Respondent.

In relation to appeal ground 4, the Appellant contends that the Deputy President was in error in reaching a conclusion that the employment contract and the employment relationship were coterminous, by examining only the employment contract. Further, the Appellant contends that finding that the contract dated 25 November 2019 determined the extent of the employment relationship (rather than the extent of the instant iteration of the contract fixing terms for a particular period) is inconsistent with the findings of the High Court in Concut Pty Ltd v Worrell.[18]

Grounds 5 and 6 concern the relevance of conduct occurring prior to the Appellant signing the final contract. The Appellant contends that the Deputy President created a dichotomy between pre and post-contract conduct, and failed to take into account as a relevant consideration the pre-contract conduct of the Respondents that occurred prior to 28 November 2019 (at [105] of the decision) and to properly consider the post-contract conduct of the Respondents at all, or as part of the continuum of conduct that constituted termination on the employer’s initiative for the purposes of s.386(1)(a) of the FW Act (at [106]-[108] of the decision). The Appellant also contends that the Deputy President’s identification of certain conduct as “pre contract” conduct, and certain other conduct as “post contract” conduct is derived from, and perpetuates, the misconception that the employment relationship was co-extensive with separate contract periods rather than a continuing employment relationship enduring for five years. The Appellant also points to the finding at paragraph [106] where the Deputy President accepts that the Second Respondent said to the Appellant that the First Respondent would be deciding whether to continue the employment relationship depending on its assessment of the Appellant’s performance.

In ground 7 the Appellant asserts that the Deputy President erred by failing to properly consider the contract as an attempt to evade the unfair dismissal and General Protections provisions of the Act (at paragraphs [112]-[116]). Reference was made to the statement at paragraph [112] that:

“[t]he First Respondent’s use of maximum term contracts is intended to ensure that it has the flexibility to engage the best match officials to be part of its elite squad each season.”

This is contended by the Appellant to describe a deliberate strategy on the part of the First Respondent to secure an exemption from the application of the FW Act’s requirements that employers are able to provide a demonstrably valid reason and fair procedures when terminating employment relationships and that employers must not dismiss employees for prohibited reasons for the purposes of the General Protections provisions in Part 3-1 of the FW Act. The FW Act’s General Protections and unfair dismissal provisions are purposefully intended to provide oversight by the Commission of the exercise by employers of this kind of “flexibility”. The Appellant submitted that the Deputy President’s acceptance of the First Respondent’s use of maximum term contracts for the engagement of match officials as having a “legitimate, considered and understandable purpose” also ignores uncontested evidence that the performance data of the Appellant was actively manipulated by the Second Respondent to support the unfair treatment of the Appellant.

It was also submitted that at [75](5)(b) of Khayam v Navitas, the Full Bench recognised that maximum term contracts should not be used as a shield to avoid scrutiny of, and accountability for, conduct which the FW Act makes unlawful. The statement of the Deputy President at paragraph [115] of the decision to the effect that the ‘exclusion of the jurisdiction arising in relation to general protections arises from the meaning in the Act prescribed for dismissal’ generally, and the exclusion contained at s.386(2)(a), and not from the terms of the contract, reassigns responsibility for an exclusion which the Deputy President has derived from reliance entirely on the terms of the contract. It is small comfort to the Appellant that the Deputy President does not consider that the contract precludes action in relation to, or accountability for, the full range of unlawful conduct under Part 3-1 of the FW Act, where the NRL has been permitted to contract out of accountability for its most significant contravention.

Ground 8 asserts that the Deputy President erred by failing to properly state in the decision or take into account the relevant considerations put forward by the Appellant for the purposes of providing a proper legal foundation to prevent the Respondents from relying upon the terms of the contract as the means by which the employment relationship was terminated (at paragraphs [117]-[119]). The Appellant also pointed to the fact that the Deputy President noted at [21] that he preferred the evidence of the Appellant and his witnesses to that of the Second Respondent. The evidence preferred by the Deputy President was that work practices external to the written contract were such that contracts of match officials were routinely renewed unless there was a specific reason for non-renewal and there was an expectation of ongoing employment absent some active step on the part of the NRL by way of a “tap on the shoulder”. The Deputy President also accepted the evidence of the Appellant that he was told by the Second Respondent that the First Respondent would decide whether to continue the employment relationship depending on its assessment of the Appellant’s performance in October 2020 when the reality was that the Second Respondent had already decided to get rid of the Appellant.

It was also submitted that the evidence accepted by the Deputy President was that the Respondents had engaged in a series of acts, as described in the Schedule of Factual Findings attached to the Appellant’s written submissions, providing a proper legal foundation to prevent the Respondents from relying on the terms of the contract as the means by which the employment relationship was terminated.

In appeal ground 9 it is asserted that the Deputy President erred by misconstruing the proper effect of the decision of the High Court in Workpac v Rossato on the statutory test at s.386(1)(a) of the FW Act in the context of the Full Bench decision in Khayam v Navitas. In this regard it is submitted that the Deputy President erred by finding that a valid maximum term contract is sufficient to constitute a genuine agreement, such that the contract itself must be found to be invalid to avoid the existence of a genuine agreement, is contrary to the decision in Khayam v Navitas. The Deputy President also incorrectly cited Workpac v Rossato to assert the primacy of the terms committed to a contract document, to determine the rights of the parties to an employment relationship. This, the Appellant contends, misconstrues the import of Workpac v Rossato in the context of a claim brought under the general protections provisions, because that case is relevant to determining how employment was characterised, but irrelevant to the question of how the end of an employment relationship is characterised.

In appeal ground 10 it is contended that unlike a court, the Commission is a Tribunal empowered to perform its functions under the Act and is not constrained by contracts. The statutory protections for employees against adverse action taken on prohibited grounds, survive attempts by employers to circumvent those protections by contract provisions and statutory obligations that override arrangements made by private contract.

In oral submissions the Appellant contended that if the test in Mohazab is properly applied to the facts in the present case, it is clear that as a matter of practical reality, it was the First Respondent that initiated the end of the Appellant’s employment relationship. The Appellant also contended that consistent with the judgment of Perram J in Quirk v Construction, Forestry, Mining, Maritime, Mining and Energy Union[19] (Quirk), it is not the case that a contract which comes to an end under its own terms, cannot in any circumstance constitute a termination within the meaning in s.386. Even if an outer limit contract ends through effluxion of time, the test under Mohazeb as to who initiated that outcome, must still be applied. According to the Appellant, the initiative of the First Respondent was to set up an entire scheme of employment which gave it discretion to select and rank match officials and decide who will get a shorter or longer contract, or who will get a contract at all. While it is appropriate for the First Respondent to have that discretion, what is in issue is the attempt to purport that the scheme and the process of selecting who will or will not be given contracts and the duration of the contracts given, escapes the general protections and unfair dismissal provisions in the FW Act. The Appellant contends that the scheme was used to select him out of the entire group and then marginalise him through discriminatory and artificial statistics to force him out.

Further, the fact that the Deputy President generally preferred the evidence of the Appellant and his witnesses, and submitted that this meant that the evidence should be considered as additional facts over and above the scheme operated by the second Respondent, that impacted the Appellant being selected and not offered a further contract. The result was that the Appellant was informed that the October 2019 contact would likely be his last and the Second Respondent allowed the contract to run until the end date, and for the Appellant to be selected as one of two referees who would not get further employment. Reference was also made to the evidence before the Deputy President, said to have been accepted, that indicated the Appellant was discriminated against on the ground of disability and that the selection process which resulted in him not being offered a further contract, was corrupt. In this regard, reference was made to evidence of corruption of data and other conduct engaged in by the Second Respondent which was accepted by the Deputy President. It was submitted that this corruption by an employer should be scrutinised under unfair dismissal or general protections provisions of the FW Act.

In summary, it was submitted that the evidence before the Deputy President established that the Appellant was placed in a position whereby, he was linked to a scheme, brought about by a series of acts, discretions, and selections by the First Respondent, and that the selection of the Appellant within that scheme was based on disability discrimination, dishonesty, and corrupt data. It was further contended that, but for this conduct, the Appellant would not have been in a position where he was selected and not offered a further contract. It was clearly an initiative of the First Respondent to bring about the position that was reached in October 2019 and when the test in Mohazab is applied to the facts, the termination of the Appellant’s employment did not occur through the effluxion of time and consistent with what the Full Bench said in Khayam v Navitas, consideration of the entire employment relationship establishes this.

The Appellant also contended that the decision of Perram J in Quirk has modified the position in Fisher v Edith Cowan University (No 2) (Fisher) and is authority for the proposition that: “Even if one comes to the end of a genuine outer limit contract, and effluxion of time is the legal event that brings the employment relationship to an end, one still has to ask was there an initiative of the employer that brought that about.”[20] Further, in response to a question from the Full Bench as to whether it was the Appellant’s submission that the act of entering into a 12 month contract in 2019 was equivalent to the First Respondent giving notice to the Appellant, Mr Harmer for the Appellant said:

“MR HARMER: Justice Perram, with respect, selects that example as a very simplistic example. The employer gives notice, so of course the employer brought it about yet the event is the end of the notice that brings about the end of the contract. He goes on to say that one has to look at whether, regardless of whether the contract ends by whatever mode of operation of law. So here, yes, the mode of operation of law is arguably effluxion of time, outer limit contract. But one has to look at whether that results from the actions of the employer.

So the acts of the employer here, as we’ve said, are the ones that set up the scheme, make a selection, rank people within that selection, select Mr Alouani-Roby, corrupt material to confirm that - base that pressure on disability discrimination and because of his chronic fatigue he’s seen as not being up to it - they are all acts by the employer that result across the 23 referees, and Mr Alouani-Roby being one of the 2 put in that, quote, ‘position’. So the conduct that brought about that position is what brings about his being in a position whereby he falls off the end of his contract. No one else did except for Mr Badger.”[21]

In response to a further question, Mr Harmer clarified that the Appellant does not contend that merely by entering a fixed term or outer limit contract, the First Respondent brought about the end of the employment relationship, and submitted that in the present case, there are numerous acts of the employer that resulted in the Appellant’s employment being terminated on the initiative of the First Respondent.[22] Reference was also made to the decision of the Full Court of the Federal Court in Fisher where it was observed that recourse to contracts of employment for a specified period, which while on their face may provide for consensual termination of the employment relationship by the effluxion of time, did not, in itself, avoid the protection that results from implementation of the Convention that then underpinned the legislation. The termination may, in certain circumstances, be a termination at the initiative of the employer.[23]

Clarification was provided in relation to the “scheme” alleged by the Appellant which was said to be not only the use of outer limit contracts by the First Respondent, but the totality of circumstances including the contract and the manner the Appellant was dealt with by the Respondents. Reference was also made to the cross-examination of the Appellant in the proceedings before the Deputy President, where the Appellant was asked about his understanding of time limited contracts and said that he did not understand that a 12-month contract meant that his employment would end at that time or that he would not have employment after the contract expired.[24] The Appellant’s evidence in re-examination was to the effect that he believed that despite the contract stating that it will run for a year, this did not mean that he could be pushed arbitrarily out of employment and there would have to be performance reasons for this to occur.[25]

Further, it was submitted that it was held out to the Appellant that he would have the 2020 season to demonstrate whether his ranking was sufficient for him to be offered a further contract, and contrary to that representation, by February 2020, prior to the end of the season, the Second Respondent was expressing the pre-emptive view that the Appellant “was already gone” and would not be offered a further contract. This was also said to be consistent with the view expressed by the Second Respondent in 2019.[26] Subsequently, in June 2020, without proper testing, the decision was confirmed and what was held out to the Appellant was not fulfilled. This is a circumstance of the kind set out in Khayam v Navitas at [75] (5)(e). While the Appellant could argue estoppel, the application of Mohazab to the facts in this case, results in jurisdiction being established without the need to go that far. The Deputy President’s failure to capture this aspect of the Appellant’s case at first instance, was said to be the result of him erroneously applying s.386(2)(a) of the FW Act.

In oral submissions in reply, the Appellant contended that the Respondents’ submissions about the nature of the error in paragraph [93] of the Deputy President’s decision ignores the repeated instances in the decision where the Deputy President referred to s.368(2)(a) of the FW Act. The Appellant further submitted that principles 2 and 4 of in Khayam v Navitas were relevant and maintained that at first instance arguments in relation to principle 5 (b) and (e) had been raised. In this regard, it is the Appellant’s case that although he was given a final 12-month contract, within three months of that contract commencing a decision had already been made that he would not be offered a further contract. As a result, the opportunity to shift the position was never fulfilled, which gives rise to an estoppel. In terms of the “but for” test in Mohazab, whether one refers to this as a causal nexus, there is a link between the facts, including the conduct of the Second Respondent, and the Appellant being placed in a position where he was selected and not offered a further contract.

In further written submissions addressing the Full Bench decision in NSW Trains v James, the Appellant identified that the Full Bench in that case had departed from the earlier conclusion in Khayam v Navitas by finding that s.386(1)(a) of the FW Act would be satisfied if either the employment relationship or the contract of employment had been terminated at the initiative of the employer.[27] If s.386(1)(a) should be construed as including termination of the person’s employment relationship with his or her employer on the employer’s initiative, and also termination of the person’s contract of employment with his or her employer on the employer’s initiative, then the person will be dismissed if the employer terminates either the employment relationship or the employment contract. Even if the contract comes to an end without the intervention of the employer, there remains the possibility that the contract was not coterminous with the employment relationship and that the employer has taken active steps to bring the employment relationship to an end. In this manner, just because a contract terminates by operation of its terms does not preclude the possibility of a dismissal under s.386(1)(a).

Assuming that the proposition adopted by the Full Bench in NSW Trains v James is to be applied to all circumstances in which it falls to be considered whether an employee has been dismissed for the purposes of s.386, then the question of whether an employee has been dismissed cannot be determined by looking only to the contract and its operation, except in circumstances which fit within s.386(2)(a). Further, the decision in NSW Trains v James maintains the distinction between the contract of employment and the employment relationship and indicates that if either one is terminated at the employer’s initiative, then the employee will have been dismissed for the purposes of s.386(1)(a). Regardless of the terms of the Appellant’s final contract of employment, it is sufficient if either that contract, or the employment relationship between the First Respondent and the Appellant, was terminated on the initiative of the First Respondent, for the Appellant to fall within the terms of s.386(1)(a) of the FW Act, as it has now been interpreted in NSW Trains v James. Nothing in NSW Trains v James suggests that a different interpretation should be given to the term “termination at the initiative of the employer” than given in Mohazab or Quirk.

The Appellant submitted that the Full Bench should determine the appeal by finding that the Commission has jurisdiction to deal with the Appellant’s general protections application and remit the matter for the process of conciliation and if necessary, the issuing of a certificate.

Respondents’ submissions

The Respondents submit that each of grounds 1, 2, 8 and 9[28] concern the correct construction and application of s.386(1)(a) of the FW Act and the relevance of the terms and operation of a maximum term contract of employment, to determining whether there has been a termination of employment on the First Respondent’s initiative. Grounds 1, 2 and 8 concern a contention by the Appellant that the Deputy President misapplied the statutory test in s.386(1)(a) by concluding that the express terms of the contract of employment must be given effect rather than enquiring whether the First Respondent’s actions comprised the principal contributing factors which resulted, directly or consequently, in the termination of the employment relationship. Ground 9 relates to a contention that the Deputy President erred in finding that the High Court decision in Workpac v Rossato concerning the contract of employment, is conclusive to determining whether there has been a termination of the employment on the first Respondent’s initiative.

The Respondents also submit that it is not in dispute that the Appellant’s employment relationship ceased on 30 November 2020 and the central dispute between the parties is whether the employment relationship ended by the effluxion of time as a result of the expiry of the Appellant’s maximum term contract or by the Respondents’ actions. In this respect, the Respondents contend that the Appellant’s submission consists of two related propositions. The first proposition is that in determining whether termination of employment was on the initiative of the employer within the meaning of s.386(1)(a), the central focus is placed on the actions of the employer and not the legal event or mechanism that brought the contract to an end. The second proposition is that the phrase “termination of employment” in s.386(1) is a reference to the employment relationship and therefore requires an examination of all circumstances in determining whether there has been a termination of employment on the initiative of the employer and not just the contract of employment.

In relation to the first proposition, the Respondents submit that for the purposes of demonstrating that a person has been dismissed within the meaning of s.386(1)(a) of the FW Act, the employer’s action must be the “principal contributing factor” that results in the termination of the employment relationship.[29] The use of the passive verb “terminated” does not require that the legal event which ends the employment relationship to have been taken by the employer. Rather, it is sufficient that an employer “initiated” the termination by engaging in conduct which is intended or had the probable effect or result of bringing the employee’s employment to an end.[30] There must therefore be a causal nexus between the actions of the employer and the ending of the employment relationship.[31] According to the Respondents, the types of cases which have generally invoked the application of principles such as the statement of Perram J in Quirk[32], cited by the Appellant, involve constructive dismissal, where an employee has terminated the contract by accepting a repudiatory breach by the employer or has been “forced” to resign as a result of the employer’s conduct.

In determining whether there is a causal nexus between the actions of the employer and the ending of the employment relationship, it is relevant to determine whether the mechanism for terminating the contract of employment has been enlivened by the actions of the employer under the contract. If a contract of employment ends by operation of law without any act by the employer to trigger the termination, then there will be no termination of employment within the meaning of s.386(1)(a). However, if the contract or other law requires an employer to take an antecedent step that results in the termination of the contract by operation of its terms, then the employer may have initiated the termination of employment.

The Respondents contend that the Appellant’s reliance on statements made in Khayam v Navitas at [75] (1) – [75](3) concerning the acts of the Respondents, erects a false dichotomy by treating the employment relationship and the contract of employment as distinct concepts. This is not correct. It is uncontroversial that the employment contract creates the basis of, and underpins, the employment relationship.[33] The employment relationship does not stand independently to the contract of employment and indeed cannot exist without a contract of employment. Even though an ongoing employment relationship is capable of being comprised by successive contracts of employment, it does not change the fact that the terms and conditions of the employment relationship will be chiefly defined by the contract of employment supplemented by statute (including modern awards and enterprise agreements).[34]

Once it is understood that the notion of the employment relationship is based upon, and therefore necessarily shaped by, the proper construction and content of the contract of employment, the starting point must be to examine the character of the legal relationship between the parties by reference to its terms. It is therefore critical to have regard to the terms of the contract to ascertain the means by which it terminates and whether an employer’s conduct is causally linked to its termination. In Workpac v Rossato at [56] citing the earlier judgment in Commonwealth Bank of Australia v Barker, the High Court highlighted that employment concepts used in the FW Act must be understood in a “legal” framework defined by statute and common law, which informs the common law concept of the contract of employment. Even though this proposition was applied by the High Court to the notion of casual employment, it has equal application to the notion of the termination of employment in s.386(1)(a) of the FW Act. In particular, the plurality in Workpac v Rossato found that the nature of the employment relationship, including the termination of that relationship, must be ascertained by reference to its written terms. This involves construing the terms of the contract according to their plain and ordinary meaning, to determine the nature of the relationship between the parties. Thus, where the parties have comprehensively committed the terms of the employment relationship to a written contract and have adhered to those terms, the characterisation of the relationship must be determined by reference to the written contract, and the relevant industrial instruments such as an enterprise agreement, and given effect, unless contrary to statute.

As a result of the principles set out in Workpac v Rossato, it is therefore necessary to have regard to the terms of the Appellant’s employment contract, to determine whether the contract, according to its terms, initiated the termination of employment. Relevantly, clause 2 and item 3 of the last contract dated 25 November 2019, define the nature of the employment relationship as a maximum term contract which ends upon its expiry on 30 November 2020 and that the parties intended that the employment relationship would end at the completion of the term. Clause 5.2 of the Agreement approved by Commissioner Lee on 27 May 2019, mandated maximum term contracts to be the sole basis for engagement. The Appellant voted in favour of the Agreement after reading it and understanding its terms and effect. The First Respondent did not have to take any additional antecedent steps to give effect to the expiry of the term. Moreover, the written contract constituted “the entire agreement between the parties” and that “any variation must be in writing and executed by all the parties” (clause 17). It follows that under the agreement the Appellant’s employment ended by expiry of the maximum term on 30 November 2020 and not on the initiative of the First Respondent.

Consistent with this approach, the Full Bench in Khayamv Navitas recognised that where a valid and applicable maximum term contract exists, it is capable of operating according to its terms to terminate the employment relationship by the effluxion of time and not on the initiative of the employer. Relevantly, the Full Bench in that case stated at [75(4)] that a “genuine agreement” made between an employer and employee that the employment relationship will not continue after a specified date, results in the employment terminating by reason of the agreement of the parties and not at the initiative of the employer, unless there is a vitiating or other type of factor that excuses the parties from performing the contract. Conversely, the Full Bench stated that mere decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date and therefore does not terminate the employment relationship on the employer’s initiative. To adapt the language of the test used in Mohazab, in the present case, the expiry of the maximum term under the Appellant’s contract of employment was the “principal contributing factor” resulting in the termination of the employment relationship and not the actions of the First Respondent.

Accordingly, the Deputy President correctly held that the High Court’s approach in Workpac v Rossato to the interpretation and effect of comprehensive written employment contracts in relation to the correct characterisation of the nature and type of employment relationship under the FW Act, supports the proposition that where the parties have entered into a genuine agreement in the sense expressed in Khayam v Navitas, the agreement must be given effect according to its ordinary language. Contrary to the Appellant’s submission, Workpac v Rossato supports the Full Bench’s approach in Khayam v Navitas. In determining jurisdiction, the Commission must apply this approach. Also, contrary to the Appellant’s submission, the Respondents contend that the Commission’s approach to construing and applying the law is not different to a court of law.

In relation to the Appellant’s submission with respect to active steps being taken to bring about the termination of his employment, while contending that the Appellant has embellished and not accurately described the relevant acts, even assuming such conduct occurred, once the terms of the written agreement are given effect, it is irrelevant to have regard to those factors. This is because under the contract the First Respondent did not have to take any additional action to terminate the Appellant’s employment. The Appellant also contends that the Appellant’s submission appears to be more consistent with an allegation of constructive dismissal. However, the Appellant does not contend that he resigned from his employment in response to the Respondents’ alleged action and accepts that his employment ended on 30 November 2020 (consistent with the expiry of the maximum term under the contract). As there is no causal relationship between the First Respondent’s alleged acts and the termination of employment, none of the matters listed by the Appellant could have played a part in his employment coming to an end. Accordingly, appeal grounds 1, 2, 8 and 9 are not made out.

In relation to grounds 5 and 6 – the relevance of conduct occurring prior to the signing of the contract – the Respondents submit that once it is accepted that the Appellant’s contract of employment dated 24 November 2019, represented a valid and genuine agreement, then it must follow that this ground must also fail. The Deputy President correctly held that none of the alleged conduct prior to entering the contract could have resulted in bringing the employment relationship embodied in the final contract to an end.

In ground 7 it is contended that the maximum term contracts between the First Respondent and the Appellant were vitiated on the basis that they are contrary to public policy by erecting “a shield to avoid scrutiny of, and accountability for” unlawful conduct under Pt 3-1 of the FW Act. In support of this submission, the Appellant relies on the statement of the Full Bench in Khayam v Navitas, that a time-limited contract may be contrary to public policy because it has the purpose of frustrating the policy or operation of the FW Act.

There is no evidence to support the Appellant’s assertion that the First Respondent’s use of maximum term contracts to ensure that it has the flexibility to engage the best match officials to be part of the elite squad, “describes a deliberate strategy on the part of the [NRL] to secure an exemption” from the requirements of Pt 3-1 and Pt 3-2 of the FW Act or that the First Respondent had such a purpose. In determining whether a contract has an impermissible purpose contrary to public policy, the Full Bench importantly noted in Khayam v Navitas that it is relevant to have regard to whether the use of time limited contracts “is appropriate in the relevant field of employment”.

In the present case, no challenge is made to the Deputy President’s finding that the use of maximum term contracts is appropriate in elite professional sports. This is consistent with its recognition as the sole type of employment under clause 5.2 of the Enterprise Agreement.[35] As found by the Deputy President, there is nothing in the contract of employment, evidencing, as one of its purposes, the frustration of the objects or operation of the FW Act or preventing access to the courts. To have such a purpose, it is necessary that the contract have as one of its chief purposes the furtherance of an illegal purpose or that the activities contemplated to be carried out under the contract would have such a purpose.

The text and authorities cited by the Full Bench in Khayam v Navitas concern a class of contracts where one or more of the key terms seeks to contract out of the employee’s statutory rights and entitlements. The Appellant seems to suggest that any contract which, by virtue of its operation, excludes the operation of beneficial provisions, such as unfair dismissal or general protection provisions, is contrary to public policy. Based on that argument, taken to its extreme, any provision of a contract which takes an employee outside the operation of the FW Act is contrary to public policy, and is an absurd outcome, highlighting the fallacy of the Appellant’s claim.

The Appellant’s submission also appears to be that any use of a maximum term contract, by itself, is contrary to public policy because it would exclude the operation of Pt 3-1 of the FW Act where an employer has allowed a maximum contract to expire and decided not to engage the employee beyond that time. This submission, in effect, seeks to throw into doubt the legal efficacy of time-limited contracts. However, the exclusion of contracts for a specified period in s.386(2)(a) of the FW Act and the principles at [75(4)] in Khayam v Navitas English recognise that there is nothing inherently illegitimate in using fixed term or maximum term contracts as a means of engaging employees.

To the extent that the Appellant claims that the maximum term contract erects “a shield to avoid scrutiny of, and accountability for” unlawful conduct under Pt 3-1 of the FW Act, this submission is misconceived. As the Appellant claims that the alleged adverse action occurred during the course of his employment, even if he cannot make a claim of adverse action in relation to his cessation of employment because he has not been dismissed, he is entitled to make claims that Respondent’s took adverse action against him by injuring him in his employment, altering his position to his prejudice in his employment or that there has been discrimination between him and other employees. Further, to the extent that the expiry of the maximum term contract is not capable of giving rise to a claim for adverse action, this is a result of the operation of the FW Act. The Appellant’s assertions about the Second Respondent manipulating data to support unfair treatment of the Appellant (which is denied) is not relevant to the question of whether the Appellant’s contract is contrary to public policy.

In relation to the alleged typographical error in paragraph [93] of the decision, it was submitted by the Respondents that the typographical error is in the subsection and the reference was intended to be to s.368(3)(a) rather than to s.368(2)(a) of the FW Act. In support of this submission the Respondents referred to the context in which paragraph [93] of the Deputy President’s decision appears. Firstly, the paragraph in which the reference appears is under a heading “(a) The Issue of Jurisdiction”. Paragraph [91] which appears immediately under that heading, refers to the application alleging various contraventions of the general protections contained in Part 3 – 1 of the FW Act, involving dismissal.

Secondly, in paragraph [92] the Deputy President refers to the Respondents’ assertion that the Appellant was not dismissed, and observes that if this contention is correct, the Appellant does not have standing to bring the application under s.365 of the FW Act and the Commission does not have jurisdiction to deal with the application under s.368, including by conciliating the dispute and issuing a certificate that it is satisfied that all attempts to resolve the dispute have been or are likely to be, unsuccessful. Thirdly, the Deputy President goes on in that paragraph to observe that absent such a certificate being issued the Appellant cannot commence an application in the Federal Court or the Federal Circuit Court, regarding whether the Respondents have contravened the alleged general protections in relation to the Appellant’s dismissal. The Respondents submit that read in this context, the reference in paragraph [92] of the Deputy President’s decision should be taken to be a reference to s.368(3)(a) of the FW Act.

The Respondents submit that the certificate under s.368(3)(a) is a “gateway” for the Federal Court or the Federal Circuit Court determining any general protections claim made under Part 3 – 1 of the FW Act. Further, the Respondents submit that no certificate could be granted unless the Commission formed the view that a dismissal had taken place. The error should not be seen as some major flaw in the entire analysis which followed from paragraph [94] of the decision onwards, but rather as a contextually incorrect reference to the wrong section. This was also said to be clear from the remainder of the decision and the references to the principles in Khayam v Navitas. Finally, the decision directs attention to the correct question under s.386(1)(a) “Termination at the First Respondent’s initiative.” As a result, the error has no substance and was raised opportunistically. While accepting that the case before the Deputy President was fought entirely on s.386(1)(a) and that s.386(2)(a) had no relevance, the Respondent maintained that s.386(2)(a) was not analysed in the Deputy President’s decision in any event.

For these reasons, appeal grounds 1, 2, 8 and 9 are dismissed.

Relevance of conduct occurring prior to the signing of the contract

In relation to grounds 5 and 6, we agree with the Respondent’s submission that this appeal ground fails on the basis that as the Appellant’s final contract of employment was a valid and genuine agreement, none of the conduct identified by the Deputy President prior to entering into the contract in November 2019, resulted in bringing the employment relationship to an end on 30 November 2020. For the reasons we have discussed, there was no causal connection between the conduct and the ending of the contract by effluxion of time. In short, the contract ended consistent with the terms agreed between the First Respondent and the Appellant, regardless of the conduct complained of by the Appellant, and without any action on the part of the First Respondent, other than the action of making the contract. This was not a case where, but for the conduct, the contract would not have ended and absent the conduct, the Appellant would have been in exactly the same position – party to a time limited contract, ending on 30 November 2020.

Appeal ground 4 is dismissed.

Conflation of the employment relationship and the employment contract

We do not accept that the Deputy President conflated the employment relationship with the concept of the employment contract as asserted in ground 3. It is well established that there are cases where a series of rolling outer limits contracts with substantially similar terms, can extend across a single employment relationship. It may also be the case that upon the ending of an outer limit contract of employment and its replacement with a new contract, a new employment relationship may be created. In Fisher, Madgwick J considered that had the decision been made to reappoint the employee, another employment and contractual relationship would have been created. However, in that case, Ms Fisher’s employment ended when she was unsuccessful in being appointed to a three-year role which was otherwise substantially the same as the role she had filled under three successive one year contracts. It may have been that the view of Madgwick J that a new employment relationship would have been created because the final contract would have had a term of three years, rather than one year and accordingly would have resulted in a new and different employment relationship being created.

Conversely, the outcome in Khayam v Navitas, may have been that the multiple outer limits contracts were coterminous with a single employment relationship. There were no substantial differences between the contracts in Khayam v Navitas and it is arguable that there was a single employment relationship coterminous with the maximum term contracts spanning the entire period from 14 April 2012 when the first of such contracts was agreed and 20 June 2016 when the last contract ended. In this regard we note that the Full Bench remitted the matter to the Commissioner to determine in accordance with the principles established in its decision and the matter was subsequently resolved without further hearing. It was also suggested by Katzman J in Broadlex that when a new contract is offered and accepted, and the subsequent employment relationship is fundamentally different, there may be a termination of the employment relationship. Regardless of whether there is a single employment relationship that is coterminous with the entire period covered by a series of maximum term employment contracts, or a new employment relationship is created when each maximum term contract is made, determining whether an employee has been dismissed within the meaning in s.386(1) involves a similar exercise of examining the contract in effect at the time the employment ends and may require the entire period over which the contracts extended to be considered to determine whether there has been a termination of employment at the initiative of the employer at the end of the last of those contracts. Further, it would be entirely consistent with the principles in Khayam v Navitas to consider each employment relationship over the period of the employment, if it was determined that there was more than one employment relationship.

However, in the present case, whether the employment relationship was coterminous with the period from the commencement of the Appellant’s first contract to the completion of his final contract, is not determinative of whether he was dismissed within the meaning in s.386(1)(a) upon the completion of the term of his final contract. As was the case with each of the preceding contracts, the final contract was for a maximum term and terminated at the conclusion of the term. For reasons we have stated, we consider that the Deputy President did not err in his consideration of the relevant matters in concluding that the Appellant was not dismissed.

In relation to appeal ground 4, it is asserted that the conclusion at [103] of the Deputy President’s decision is inconsistent with the findings of the High Court in Concut Pty Ltd v Worrell[84] on the basis that the Deputy President found that the employment contract determined the extent of the employment relationship and that his final contract periodically determined that relationship. Paragraph [103] of the decision is in the following terms:

“[103] The employment relationship between the First Respondent and the Applicant was co-extensive with each of the maximum term contracts that the First Respondent and the Applicant entered into, and the Agreement. I accept that there were maximum term contracts in place covering the whole of the Applicant’s employment with the First Respondent. The Contract, at Item 3 of the Schedule, specifically provided that ‘it is intended that the employment relationship will end on the completion of the term and any decision to offer you further employment is separate and distinct from this Agreement’.” (emphasis in original).

The Appellant contends that the Deputy President should have found that the employment relationship was co-extensive with the entire series of contracts. Firstly, for reasons we have given in relation to ground 3 above, this is not determinative of whether there has been a termination of the Appellant’s employment at the initiative of the employer. The Deputy President considered the last contract in the series of time limited contracts that had applied to the Appellant’s employment and all other relevant matters consistent with the principles in Khayam v Navitas. In this regard, the Appellant does not complain of a failure to consider a relevant matter, but rather the weight that was put on matters in the overall assessment of whether the Appellant’s employment was terminated for the purposes of s.386(1)(a).

Secondly, the decision in Concut v Worrell does not support the Appellant’s contentions. That case concerned an appeal from a decision of the Queensland Court of Appeal, which held that an oral employment agreement reached at the commencement of employment and a subsequent written contract of employment (referred to as the Service Agreement), were discrete agreements and that the Service Agreement terminated and replaced the earlier oral agreement. At issue was whether a provision of the Service Agreement that provided for termination of employment without notice, if the employee was guilty of misconduct, applied to conduct before the written agreement was made. To answer this question required an analysis of what the High Court described as the relationship between the Service Agreement and the antecedent employment relationship. The majority (Gleeson CJ, Gaudron and Gummow JJ) said (citations omitted):

“The relevant principles are well settled. In Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd, Gleeson CJ, Gaudron, McHugh and Hayne JJ said:

‘When the parties to an existing contract enter into a further contract by which they vary the original contract, then, by hypothesis, they have made two contracts. For one reason or another, it may be material to determine whether the effect of the second contract is to bring an end to the first contract and replace it with the second, or whether the effect is to leave the first contract standing, subject to the alteration. For example, something may turn upon the place, or the time, or the form, of the contract, and it may therefore be necessary to decide whether the original contract subsists.’

Their Honours went on to refer to the judgment of Taylor J in Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd. Taylor J had rejected submissions that (a) ’it is impossible by a subsequent agreement, merely, to vary or modify an existing contract” and (b) ”[an] agreement which purports to vary an existing contract operates … first of all to abrogate entirely the existing contractual relationship and, then, to reinstate the terms of the old contract as varied or modified by the new agreement’. His Honour, to the contrary, accepted the propositions that (a) the earlier contract might be rescinded altogether, the determining factor being the intention of the parties disclosed by the later agreement; (b) partial rescission is a variation, not the destruction, of the contractual relationship between the parties; and (c) the earlier contract may be varied by way of (i) partial rescission with or without the substitution of new terms for those rescinded and (ii) the addition of new terms with or without any partial rescission at all. In Tallerman, Kitto J spoke in terms which involved acceptance of propositions (a) and (b) as identified above, adding that whilst ‘in strict logic’ a variation may be a new contract, ‘the discharge of an old contract is a matter of intention’.”[85]

The majority considered that the text of the Service Agreement itself, as well as the surrounding circumstances, indicated that a conclusion that the Service Agreement discharged the prior contractual relationship and became the exclusive charter of the rights of the parties, would not be in accord with their manifest intention. The majority went on to conclude the employment relationship continued but was supplemented by the terms of the Service Agreement.

The facts in Concut v Worrell bear little resemblance to the present case. The first four contracts the Appellant entered into had fixed terms, which expired. In the present case, the manifest intention of the parties, indicated by the clear terms of the final contract, was that the employment relationship would end on the completion of the term of that contract and any decision to offer further employment to the Appellant would be separate and distinct from the contract. In those circumstances the Deputy President was correct to conclude as he did in paragraph [93] that the employment relationship between the First Respondent and the Appellant was coextensive with each of the maximum term contracts.

Accordingly, appeal grounds 3 and 4 are dismissed.

Contract as an attempt to evade unfair dismissal and general protections provisions

In our view, this ground of appeal is misconceived. The FW Act contains provisions excluding employees whose employment ends pursuant to the expiry of a genuine outer limit contract of employment, from remedies for dismissal. No party in the appeal contends that the contract was not an outer limit contract and that where such contracts are genuine, a termination of employment as agreed between the parties to the contract will not be a termination at the initiative of the employer for the purposes of s.386(1)(a). The exclusion of an employee whose employment terminates in accordance with the terms of an outer limit contract from remedies for unfair dismissal or dismissal involving adverse action, operates because the FW Act provides for such exclusions. A contract of employment cannot be contrary to public policy or be found to evade such provisions, simply because statutory exclusions operate upon it. Further, employers are entitled to structure their employment arrangements on the basis that such exclusions will operate.

Applying the principles in Khayam v Navitas, which both parties submitted were appropriate, the Deputy President’s finding that the use of time limited contracts is appropriate for elite sports was open to him on the evidence and discloses no error. The contracts are not successive short-term contracts of the kind described in D’Lima and the minimum duration of the contracts is specified in the Agreement approved by the FW Commission. The Full Bench in Khayam v Navitas referred in principle 5(b) to contracts that may be illegal or contrary to public policy and (in end note 82 in that paragraph) gave as examples contracts containing objectionable terms as defined in s.12 of the FW Act or terms of the kind discussed by the New South Wales Court of Appeal in Qantas Airways Ltd v Gubbins.[86] The contract terms discussed in that case by Gleeson CJ and Handley JA, involved persons affected by discriminatory practices bargaining away in advance their rights to seek relief under relevant legislation. It was held that the evident policy of the statute is that such practices should cease, and this was supported by the existence of the power given under the Anti-Discrimination Act 1977 for the Equal Opportunity Tribunal to declare void, any contract or agreement made in contravention of that Act.

While the FW Act does not contain such a provision, the Commission is to act in all matters according to equity, good conscience and the substantial merits of the case. This requires the Commission to apply the ordinary law and if the contract in the present case infringed the principle that rights under statute should not be bargained away, this would have been a relevant matter in determining whether the contract represented a genuine agreement or was vitiated.

In our view, the contract in the present case contains no such provision. The mere fact that an employer and employee make a maximum term contract, attracts exclusions from rights associated with dismissal if employment ends by the operation of the agreed terms of the contract. This is because of the operation of the exclusions in the relevant provisions of the FW Act is predicated on the legitimate existence of time limited contracts and contracts of the kind described in s.386(2)(a) and the mere act of an employer initiating and making such a contract with an employee, cannot, of itself, constitute an attempt to evade unfair dismissal and general protections provisions in the FW Act.

For these reasons we also do not accept that the contract is caught by the anti-avoidance provisions in s.386(3) of the FW Act as its purpose, much less its substantial purpose, is not to avoid obligations under Part 3 – 1 of the FW Act. In any event, those provisions apply to contracts of the kind described in s.386(2) and it is common ground that the contract in the present case is not such a contract. Further, we agree with the Deputy President’s assessment that the general protections provisions are not excluded by the contract between the First Respondent and the Appellant, and that the Appellant is entitled to make an adverse action claim asserting conduct including injury in employment, prejudicial alteration of his position or discrimination. We note that such claims may include adverse action involving the Appellant in his capacity as an employee or possibly as a prospective employee, in circumstances where the Appellant has not been dismissed and cannot make an application under s.365 of the FW Act.

Accordingly, appeal ground 7 is dismissed.

Mischaracterisation of the Commission’s role

Appeal ground 10 asserts that the Commission is not a court and is empowered to perform its role under the FW Act, unconstrained by the contracts made by employers. It is further asserted that statutory protections for employees against adverse action on prohibited grounds, survives attempts by employer to circumvent such provisions by contract terms.

For the reasons we have given in relation to appeal ground 7 we do not accept that the contract in the present case is such a contract. Further, as we have observed in relation to the appeal grounds concerning statutory construction, the matter subject of the proceedings before the Deputy President and the present appeal, concerns a jurisdictional objection to the application. The Appellant cannot make the application unless he has been dismissed and it is no part of the Commission’s role to allow an application to proceed to a court if that jurisdictional prerequisite has not been met. Even if we had concluded that adverse action had been taken against the Appellant (which we have not) the Commission would have no jurisdiction to allow the application to proceed. Appeal ground 10 is also dismissed.

Disposition of the appeal

For the reasons given, the appeal is dismissed.

VICE PRESIDENT

Appearances:

M Harmer of Harmers Workplace Lawyers LP for the Appellant.

M Seck of Counsel instructed by MinterEllison for the Respondent.

Hearing details:

2022.
Sydney (via Microsoft Teams)
8 February.

Final written submissions:

Appellant, 27 May 2022

Respondent, 20 May 2022

[1] [2021] FWC 6282.

[2] [2021] HCA 23.

[3] [2017] FWCFB 5162.

[4] [2020] FCAFC 152 at [74]-[75].

[5] [2022] FWCFB 55.

[6] [2021] FWC 2802.

[7] [2021] FWCFB 3603.

[8] [2010) 197 IR 266, [27].

[9] (2006) 158 IR 410.

[10] Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [50].

[11] Ibid at [50].

[12] Ibid at [44], [54], [55], [60], [63] and [66].

[13] Ibid at [33] and [63].

[14] Ibid at [75](2).

[15] (1995) 62 IR 200.

[16] Op cit at [75](5).

[17] [2021] HCA 23; 95 ALJR 681.

[18] [2000] HCA 64.

[19] [2021] FCA 1587.

[20] Transcript of Appeal PN208.

[21] Transcript of Appeal PN218 – 219.

[22] Transcript of Appeal PN220 – 223.

[23] (1997) 72 IR 464 at 469.

[24] Transcript of proceedings 27 May 2021 PN747, 925 (Appeal Book page 123,139).

[25] Transcript of proceedings 28 May 2021 PN1175 – 1182.

[26] Transcript of appeal PN282.

[27] [2022] FWCFB 55 at paragraph [45]

[28] Subsequent to the Appellant correcting the references to specific appeal grounds, in its outline of submissions in the appeal.

[29] Mohazab (1995) 62 IR 200 at 205-205; Mahony v White [2016] FCAFC 160, 226 IR 221 at [21].

[30] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154 at 160-161; Mahony v White [2016] FCAFC

160, 226 IR 221 at [18]-[24].

[31] Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231; (1999) 97 IR 392 at [56]-[58]; Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587 at [221].

[32] [2021] FCA 1587.

[33] Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [1]; also at [16], citing Byrne v Australian

Airlines Ltd (1995) 185 CLR 410 at 436; Workpac Pty Ltd v Rossato [2021] HCA 23 at [57]

[34] Concut Pty Ltd v Worrell [2000] HCA 64; 75 ALJR 312 at [18]-[22].

[35] Exh R4, Annexure E3, Appeal Book page 2108

[36] 155 ALR 369.

[37] Ibid at 371 citing Gummow J in Qantas Airways Ltd v Christie (1998) 152 ALR 365.

[38] NSW Trains v James op. cit. at [76]-[80].

[39] Ibid at [124]-[126].

[40] Ibid at [33].

[41] Ibid at [38].

[42] Ibid at [38].

[43] Ibid at [123], [131].

[44] WorkPac Pty Ltd v Rossato [2021] HCA 23; 95 ALJR 681 at [81].

[45] Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 418-421, 456; Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 at 423; CFMEU v Wagstaff Piling Pty Ltd (2012) 203 FCR 371 at [30]; DL Employment Pty Ltd v Australian Manufacturing Workers Union (2014) 247 IR 234 at [53].

[46] NTEIU v University of Wollongong [2002] FCA 31 at [38]-[39]; Independent Education Union of Australia v Australian International Academy of Education Inc [2012] FCA 1512 at [13]-[19].

[47] See Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 at 423.

[48] Yango Pastoral Company Pty Ltd (1978) 139 CLR 410 at 432; Nelson v Nelson (1995) 184 CLR 538 at 552.

[49] [2022] FWCFB 55 at [45].

[50] [2017] FWCFB 5162 at [75](1).

[51] (2006) 158 IR 410.

[52] (1995) 62 IR 200.

[53] Ibid at 205 – 206.

[54] (2016) 262 IR 221.

[55] Ibid at 228.

[56] (1997) 72 IR 464.

[57] [1995] IRCA 407, 64 IR 19.

[58] Fisher v Edith Cowan (1996) 70 IR 206.

[59] Ibid at 210.

[60] Ibid at 209 – 211.

[61] Ibid at 211.

[62] Fisher v Edith Cowan University (No. 2) (1997) 72 IR 464.

[63] Ibid at 470.

[64] Ibid at 471.

[65] Ibid at 471.

[66] Ibid at 472.

[67] (1996) 68 IR 248;

[68] (1996) 65 IR 374.

[69] (1995) 64 IR 19.

[70] 155 ALR 369.

[71] Ibid at 371.

[72] (1994) 1 IRCR 457 at 462; 56 IR 102 at 106.

[73] (1995) 64 IR 19 at 25-26.

[74] (1997) 72 IR 464 at 472.

[75] [2021] FCA 1587 at [49].

[76] (2013) FCA 190.

[77] Ibid at [26].

[78] [2021] HCA 23.

[79] Ibid at [56].

[80] Transcript of proceedings 27 May 2021 PN925 Appeal Book p. 139.

[81] Transcript of proceedings 28 May 2021 PN1177 Appeal Book p. 162 – 163.

[82] [2021] HCA 23 at [57].

[83] Ibid at [62].

[84] [2002] HCA 64.

[85] Ibid at [19].

[86] (1992) IR 292 at 295.

Printed by authority of the Commonwealth Government Printer

Date of Contract	Date applicant signed	Tier	Start Date and End Date	Duration
19 JANUARY 2015	2 February 2015	N/A	25 March 2015 - 26 March 2016	12 months
24 March 2016	25 March 2016	N/A	28 March 2016 - 24 March 2017	12 months
23 March 2017	Unsigned but agreed	25 March 2017 - 31 November 2019	18 months
18 April 2019	24 May 2019	Tier 4	1 December 2018 - 30 November 2019	12 months
25 November 2019	28 November 2019	Tier 4	1 December 2019 - 30 November 2020	12 months

The period of continuous service with the NRL at the end of the day the notice is given	Period*
Not more than 1 year	1 week
More than 1 year but not more than 3 years	2 weeks
More than 3 years but not more than 5 years	3 weeks
More than 5 years	4 weeks