Mr Antonio Corte-Real v The Commonwealth of Australia, as represented by the Department of Employment and Workplace Relations
[2025] FWCFB 153
•22 JULY 2025
| [2025] FWCFB 153 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Antonio Corte-Real
v
The Commonwealth of Australia, as represented by the Department of Employment and Workplace Relations
(C2025/5175)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 22 JULY 2025 |
Appeal against decision of Commissioner Simpson on transcript and by order (PR787312) at Brisbane on 14 May 2025 in matter number C2025/2270 - permission to appeal refused
Mr Antonio Corte-Real has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against a decision of Commissioner Simpson issued on 14 May 2025.[1] The decision determined the Respondent’s jurisdictional objection to Mr Corte-Real's general protections application involving dismissal that had been commenced under s 365 of the Act. The Commissioner found that Mr Corte-Real had not been dismissed within the meaning of s 386 of the Act. In particular, the Commissioner found that Mr Corte-Real had not been dismissed because he was employed under a contract of employment for a specified period of time and his employment had terminated at the end of the period. That is, Mr Corte-Real had not been dismissed because the exclusion in s 386(2)(a) of the Act applied. The Commissioner further found that the anti-avoidance provisions at s 386(3) of the Act did not apply to the cessation of Mr Corte-Real's employment. Those findings led the Commissioner to dismiss Mr Corte-Real's general protections application.
On 8 July 2025, the matter was the subject of a hearing before the Full Bench. The hearing concerned permission to appeal only. Mr Corte-Real did not attend the hearing. Commission staff made several unsuccessful attempts to contact Mr Corte-Real, as did Mr Corte-Real's support person who attended the hearing. After several such unsuccessful attempts were made, the Full Bench proceeded to hear the appeal in the absence of Mr Corte-Real. Ms. Gilmour, acting Principal Government Lawyer, appeared for the Commonwealth of Australia, as represented by the Department of Employment and Workplace Relations (Respondent).
At approximately 6:30pm on 8 July 2025, Mr Corte-Real sent an email to the Chambers of Deputy President Roberts, which was copied to the Respondent. The email expressed Mr Corte-Real's regret and apology for not attending the hearing and explained that he had been admitted to the Royal Hospital in Brisbane owing to a cardiac complication. The following morning, at approximately 5:02am, Mr Corte-Real sent a follow-up email, which attached a medical certificate. Arising from these events, the Chambers of Deputy President Roberts sent an email in the terms reproduced below to the parties:
Dear Parties,
We refer to the above matter and the correspondence of the Appellant attached.
We note that in the absence of the Appellant’s attendance at the hearing on 8 July 2025 the Respondent was invited to and did make oral submissions in relation to the issue of permission to appeal. At the conclusion of the hearing, the Full Bench indicated that the decision would be reserved and the matter determined on the basis of the materials and submissions that had been provided.
Having regard to the circumstances, including reason for the Appellant’s absence, the Full Bench is presently minded to allow the Appellant a further opportunity to make any further submissions in support of the application. However, the Full Bench is also of the view that the matter can be adequately determined without the need for further oral submissions and that it would be appropriate in the circumstances to determine the matter without the need to reconvene for an in-person hearing (see s.607(1) of the Act). This course could be adopted on the basis that the parties are provided with the transcript of yesterday’s proceedings and are given a further opportunity to provide brief written submissions within a reasonable period.
The parties are asked to confirm whether they consent to the course outlined above by providing a response in writing on or before 4pm today 9 July 2025.
Otherwise, if the Appellant is content for the matter to be determined on the basis of the submissions already provided without the need for a hearing or any further submissions, they should confirm that position in writing, copying the Respondent, by the time referred to above.
The parties consented to the matter being determined without the need for the hearing to be reconvened. Mr Corte-Real subsequently provided further written submissions, which have been considered by the Full Bench.
For the reasons set out below, permission to appeal is refused.
Decision under appeal
Mr Corte-Real was previously employed by HAYS Recruitment and assigned to work for the Department of Employment and Workplace Relations (DEWR). Mr Corte-Real worked as a labour hire worker on assignment to DEWR for a period of over eight years. He commenced the assignment with DEWR on approximately 14 October 2015. The labour hire arrangement ended on 29 February 2024.
That arrangement ended because Mr Corte-Real was offered and accepted employment with DEWR. The contract under which Mr Corte-Real was employed by DEWR was before the Commissioner.[2] The Commissioner identified that the contract was expressed to be a non-ongoing contract. Mr Corte-Real accepts that the contract had a commencement date of 1 March 2024 and a cessation date of 28 February 2025.[3] Mr Corte-Real accepts that his dismissal took effect on 28 February 2025.[4] It was the inclusion of the commencement date and cessation date in the contract, and the fact that Mr Corte-Real's employment with DEWR terminated on that cessation date that led the Commissioner to find that Mr Corte-Real had not been dismissed because of the operation of s 386(2)(a) of the Act.
The transcript reveals that the Commissioner considered s 386(3) of the Act. Section 386(3) operates as an exception to s 386(2). Section 386(3) provides that s 386(2) does not apply to a person employed under a contract of a kind referred to in s 386(2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under part 3-2 of the Act. The Commissioner was not satisfied that the substantial purpose of Mr Corte-Real being employed under the contract was to avoid part 3-2 of the Act. The Commissioner’s finding that the anti-avoidance provisions in s 386(3) were not satisfied was based on the uncontested evidence of two witnesses for the Respondent.
Permission to appeal
There is no right of appeal, and an appeal may only be made with permission of the Commission under s 604(1) of the Act. Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:
“… 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 decision dealing with similar matters.’’[6]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[7] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[8]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[9] However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
Grounds of appeal and public interest
The Notice of Appeal filed by Mr Corte-Real sets out what are said to be nine grounds of appeal. The first two grounds are not grounds of appeal. The first ground and the second ground are best described as an introduction to the grounds that follow. Ground eight and ground nine are best described as a summary. They are not grounds of appeal. By ground seven Mr Corte-Real contends that the Commissioner should have determined that Mr Corte-Real was dismissed and then proceeded to determine the merits of the application, and made findings that Mr Corte-Real was unfairly dismissed. The Commissioner was not tasked with determining the merits of the application, nor was the Commissioner tasked with determining whether Mr Corte-Real was unfairly dismissed. The matter involved an application under Part 3-1 of the Act. The Commissioner was required to determine the question of whether Mr Corte-Real had been dismissed within the meaning of the Act.[10] Grounds one, two, seven, eight and nine do not disclose any arguable appealable error by the Commissioner or otherwise attract the public interest.
Ground three challenges the Commissioner’s finding that Mr Corte-Real was not dismissed primarily by reference to his assignment as a labour hire worker with DEWR. As already explained, Mr Corte-Real was employed by HAYS and assigned to work for DEWR for over eight years immediately prior to the commencement of his employment with DEWR. Ground three was explained by Mr Corte-Real in these terms: “a reasonable person in my circumstances would have expected to continue employment for some time under the new contract and not just 12 months. A reasonable person would have assumed that the contract was merely a change in how the employment relationship was documented and not a substantive change to it. This is what I mean when I say the matter at hand is not just the one-year contract coming to an end, but rather an assessment of how it interacts with the prior relationship of employment spanning over nine years. Based on my nine years of employment and the resulting relationship of employment, I expected that the one-year contract would not be the end. This expectation was further driven by the severe hardship circumstances surrounding my health during this time...”.[11]
The enquiry posed by s 386(2)(a) of the Act is not to be answered by a ‘reasonable person’ test, or the subjective expectation of the relevant employee, that employment may continue beyond the end date specified in the contract. Whether a person has been dismissed within the meaning of s 386 is a finding of fact to be made objectively having regard to the evidence before the Commission. Moreover, in Alouani-Roby v National Rugby League Ltd[12] (Alouani-Roby(Full Court)), the Full Court of the Federal Court of Australia make clear that except in the case of a sham contract, which Mr Corte-Real does not contend was the case here, what an employee expects to occur beyond the end date of a contract for a specified period of time is irrelevant.[13] We reject the criticism implicit in ground three that the Commissioner erred by not answering the enquiry posed by s 386(2)(a) by reference to a ‘reasonable person’ test or the expectations of Mr Corte-Real. The third ground does not disclose appealable error by the Commissioner or otherwise attract the public interest.
Grounds 4, 5, and 6 are critical of the Commissioner’s reliance on the Full Court’s decision in Alouani-Roby (Full Court). The transcript reveals that the Commissioner applied Alouani-Roby (Full Court) in finding that Mr Corte-Real was not dismissed within the meaning of s 386 of the Act. The written submissions filed by Mr Corte-Real in support of his appeal contains lengthy analysis about many decisions of the Commission and various Courts. Some 26 decisions are referred to by Mr Corte-Real.[14] There is no reference or discussion in Mr Corte-Real’s material to the decision of a Full Bench of the Commission in Muria Roberts v TasTAFE[15] (Roberts v TasTAFE), which was issued on 8 January 2025. The Full Bench in Roberts v TasTAFE make clear that Mr Corte-Real's criticism of the application of Alouani-Roby (Full Court) to his case is misconceived. The Full Bench in Roberts v TasTAFE applied the reasoning in Alouani-Roby (Full Court) and held at [31]:
The consequence is that a contract of employment which records a designated end date at which the employment will terminate is capable of being described as “a contract of employment for a specified period of time” even if the contract contains an unconditional or unqualified right to terminate during its term. If the employment of a person who is employed under such a contract terminates “at the end of the period”, the person has not been “dismissed” for the purposes of s 386 of the Act by operation of the exception in s 386(2)(a).
We have examined the contract between Mr Corte-Real and DEWR.[16] The contract meets that description. Mr. Corte-Real’s employment terminated at the end of the period specified in the contract. The consequence is that Mr Corte-Real was not dismissed within the meaning of s 386 of the Act. The fourth, fifth, and sixth grounds do not disclose appealable error by the Commissioner or otherwise attract the public interest.
Finally, much of the written submissions filed by Mr Corte-Real in support of his appeal were focused on the anti-avoidance provision in s 386(3). The submissions did not rise any higher than assertions. There did not appear to be any evidentiary basis before the Commissioner to support a finding that s 386(3) was satisfied. Mr Corte-Real did not point to any error that the Commissioner is said to have made in finding that the anti-avoidance provisions in s 386(3) were not applicable. As explained, the Commissioner’s finding with respect to s 386(3) was based on the uncontested evidence of two witnesses for the Respondent. On appeal, Mr Corte-Real did not submit that the Commissioner erred in making his finding under s 386(3) based on that uncontested evidence. Mr Corte-Real's submissions concerning s. 386(3) do not disclose appealable error by the Commissioner or otherwise attract the public interest.
Conclusion and disposition
The grounds of appeal do not disclose an arguable case of error. We are not satisfied that that the appeal attracts the public interest. There are no genuine issues of law, principle or wider application.
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
S.Gilmour, for the Respondent
Hearing details:
Sydney by Video using Microsoft Teams
2025
8 July
[1] PR787312, 14 May 2025.
[2] Appeal Book (AB), pages 136 – 139.
[3] Ground 3 of the Notice of Appeal filed on 4 June 2025.
[4] AB, page 57.
[5] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[6] [2010] FWAFB 5343, 197 1R 266 at [24]-[27].
[7] Wan v AIRC [2001] FCA 1803. 116 FCR 481 at [30].
[8] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[9] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[10] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67], [74]-[75]
[11] Paragraph 3 of question 2.1 of the Notice of Appeal.
[12] [2024] FCAFC 161.
[13] Ibid at [57]-[68].
[14] AB, pages 6 – 17.
[15] [2025] FWCFB 3.
[16] AB, pages 136 – 139.
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