Fair Work Act 2009
s.739—Dispute resolution

Dr Oisin Tracey
v
Murdoch University
(C2021/7445)

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

[1] On 5 November 2021 Dr Oisin Tracey (the applicant) applied under section 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a dispute settlement procedure under the Murdoch University Enterprise Agreement 2018 (the Agreement) or a dispute under a modern award, specifically the Animal Care and Veterinary Services Award 2020 (the Award). The respondent is Murdoch University (the respondent or Murdoch).

[2] The application was the subject of a conciliation conference however the matter was not resolved and the applicant requested that the dispute be arbitrated by the Commission.

Background

[3] The application was listed for hearing and directions issued to the parties. The first direction required the applicant to characterise the dispute to be arbitrated as a question to be answered by the Commission.

[4] The applicant characterised the dispute to be arbitrated as follows:

“Is Dr Oisín Tracey a national system employee of Murdoch University for the work performed through the Specialty Training Program in Small Animal Emergency and Critical Care (from 13 January 2020 to 13 January 2021) and the Specialty Training Program in Veterinary Anaesthesia and Analgesia (from 25 January 2021 to 24 January 2022), at the School of Veterinary Medicine and The Animal Hospital at Murdoch University?”

[5] At the hearing of this matter the applicant gave evidence on his own behalf. He also called as a witness in support Dr Jill Griffiths, who worked with him in the Murdoch University Animal Hospital (the Hospital) and was one of his supervisors listed on the Emergency and Critical Care Training Program (ECC Training Program) and Dr Nicole Studer, who also worked with him at the Hospital.

[6] The respondent called as a witness Dr Giselle Hosgood, Professor of Small Animal Surgery at Murdoch. Part of Dr Hosgood’s academic role is to oversee the administration of the Specialty Training Program (STP) for postgraduates which comprises the Small Animal Emergency and Critical Care program ( ECC Training Program) and the Veterinary Anaesthesia and Analgesia program (Anaesthesia Training Program). The respondent also called Dr Claire Sharp, Senior Lecturer in the School of Veterinary Medicine in the area of Emergency and Critical Care (ECC) and section head of ECC and Dr Anthea Raisis, Senior Lecturer in Veterinary Anaesthesia and Analgesia in the School of Veterinary Medicine at Murdoch and section leader of the Veterinary Anaesthesia and Analgesia section in the Hospital and supervisor of the Anaesthesia Training Program.

[7] Sometime after the hearing had been completed the Commission directed the parties to respectively file submissions in light of the decisions issued by the High Court in Jamsek v ZG Operations Pty Ltd (Jamsek) 1, and CFMMEU v Personnel Contracting Pty Ltd (Personnel Contracting).2

[8] Both parties filed submissions accordingly.

Relevant evidence and factual findings

[9] The evidence of the applicant is that he graduated from University College Dublin, Ireland, with an Honours Degree of Bachelor of Veterinary Medicine in 2016. He moved to Perth, Western Australia, and has held Certificates of Registration as a Veterinary Surgeon since 2016, with the Veterinary Surgeons Board of Western Australia (VSBWA).

[10] With respect to the respondent, it is a university that amongst other things has a School of Veterinary Medicine.

[11] The Doctor of Veterinary Medicine degree offered by the School of Veterinary Medicine (the School) is accredited by the Australian Veterinary Board’s Council, the Royal College of Veterinary Surgeons and the American Veterinary Medical Association.

[12] The evidence is that it is a requirement of accreditation that the School provide postgraduate clinical training programs.

[13] Consequently, within that School there is the Animal Hospital. The hospital’s primary purpose is as a teaching laboratory for veterinary students, both undergraduate and postgraduate. Its secondary purpose is to benefit the wider community including the veterinary profession. Specifically, the public receives the services from the hospital and the hospital serves as a tertiary referral centre for veterinary practitioners in Western Australia.

[14] The School receives some budgetary support from the respondent but the hospital is required to be cost neutral. Consequently, the hospital is required to charge for the services it provides to the public to cover expenses as much as possible. The evidence is that currently the hospital does not make a profit. 3

[15] The School offers a number of advanced clinical training programs each year which are advertised and which potential candidates must apply for. Candidates are selected on a competitive basis.

[16] The two main postgraduate specialty training programs students can apply for are 12-month specialty training programs or three-year residency programs.

[17] The 12-month programs are a critical steppingstone for candidacy for the three-year residency programs which in turn provide prescriptive training for eligibility for specialty certification. To obtain specialist certification, a candidate must have completed a three-year residency program and an examination which is administered by a European, American or Australian specialist college.

[18] The 12-month specialty training programs are structured graduate degree programs designed to provide clinical, research and teaching experience in the discipline of the student’s choosing. Examples of disciplines include emergency and critical care, anaesthesia, equine medicine and surgery, diagnostic imaging or small animal surgery.

[19] The aim of the 12-month speciality training program is to provide a foundation for future training in a residency to become a clinical specialist or academic in the veterinary discipline of the student’s choosing. In some cases, trainees have gone straight into an academic position.

[20] The specialty training program is often the first part of the training process towards achieving a specialisation under the Veterinary Surgeons Act 1960 (WA). Most three-year residency programs have strict guidelines that must be met by the certifying colleges. One of these requirements is that applicants have completed at least one year of advanced training after veterinary School, preferably at a university.

[21] During the specialty training program trainees also undertake a postgraduate degree and as such, are enrolled as a full-time graduate student. Dr Tracey first did a Diploma of Education and next commenced a Masters of Education.

[22] This formalises the training program as being a graduate degree program. The evidence of Dr Hosgood is that the trainees are graduate students which allows the respondent to pay them an annual stipend. The stipend is divided across a 37.5-hour week for the 52 weeks of the program. In the case of the applicant for the ECC Training Program this stipend was the amount of $30,000 per annum.

[23] The evidence is that PAYG tax was deducted from the applicant’s stipend. The respondent’s evidence is that this is done to avoid the expense of seeking a tax ruling. Trainees are told at orientation to seek their own tax assistance in order to claim the tax back. 4

[24] Trainees in the program, including the applicant as detailed undertook clinical activities in the hospital under supervision. Supervision ranged from being direct, one-on-one assistance to being without any immediate direct assistance but with distant oversight.

[25] Trainees are required to complete a research project as part of their graduate studies and encouraged to write and publish case reports or a small case series to support their candidacy for ongoing residency training or postgraduate degree studies.

[26] Part of the scholarly component of the program involves trainees participating in activities including journal club, seminars and fortnightly interdisciplinary case rounds.

[27] Another facet of the training programs is trainees assisting in teaching undergraduate students in the clinical teaching in the hospital and in the laboratory. This provides an opportunity for trainees enrolled in the graduate diploma in teaching to gain real-time experience in teaching and to apply the pedagogy they are learning.

[28] The evidence is that as a graduate student at Murdoch under the terms of the program the applicant was allowed to be employed part time as long as this did not interfere with his commitments to the program and as long as it was approved by the supervisor. He could be employed in any role he liked however the applicant chose to work on a casual basis for the respondent and was paid as such for this work. This payment was separate from the amount he received from the stipend. 5

[29] Returning to the applicant, his evidence is that he had previously worked at two other veterinary emergency centres in Perth and while working at these jobs became interested in specialising in veterinary emergency and critical care. At the time, Murdoch was the only place in Western Australia offering an Emergency and Critical Care (ECC) Residency which the applicant says was a three-year training programme to become a specialist.

[30] Vacancies for the 3-year ECC Residency were advertised along with the separate 12-month Specialty Training Program in Small Animal Emergency and Critical Care (ECC Training Program). The applicant submitted an application for both the ECC Residency and the ECC Training Program.

[31] The advertisement for vacancies in these programs made it clear that they are training programs and not employment relationships. The advertisement is headed “School of Veterinary Medicine Clinical Training Programs” and repeatedly uses the words “training program” throughout and refers to a stipend being offered. 6

[32] On each occasion when the applicant applied for the respective programs his detailed application to Murdoch repeatedly refers to them as being training programs. 7

[33] Following a competitive selection process, he was not offered the ECC Residency but was offered the 12-month ECC Training Program, which he says he accepted.

[34] The applicant’s evidence was that at that time he was then emailed three documents (the ECC training documents):

1. A letter confirming his application had been successful dated 17 September 2019  8

2. A document detailing the Conditions of stipend for the 12-month Specialty Training – Veterinary Education Emphasis 9

3. The Specialty Training Program in Small Animal Emergency and Critical Care Program Description 2020 – 2021. 10

[35] The 17 September 2019 letter confirms he has been successful in his application for the 12 month “…training position in Emergency and Critical Care …”.

[36] The Conditions of Stipend document reads as follows.

“The stipend shall be governed by the following conditions:

Eligibility

1. In order to be considered for a stipend, an applicant shall be recommended by the Principal of the College of Veterinary Medicine and the Dean of the Faculty of the School of Education after a competitive selection process.

2. A student must be enrolled as a full time student on an internal basis in a postgraduate degree at the University.

Stipend and Allowances

3. An annual taxable stipend of $30,000 will be paid for a period of 12 months for the duration of study. The level of the stipend shall not be reduced during the period of the award. The stipend will be paid on a fortnightly basis.

4. Tuition fees are applicable and domestic fees will be paid for by the School of Veterinary and Life Sciences.

5. A stipend may be supplemented by other similar awards or by funds placed at the disposal of the University. (A “similar award” means another award, stipend, bursary or the like which provides benefits similar to those provided under the Award).

6. There is no funding or reimbursement for relocation expenses (including travel).

7. All other student fees (SSAF, parking, fines, miscellaneous administrative fees) will be paid by the student.

Annual Leave

8. Students are entitled to up to 10 days paid annual leave per year. Annual leave is calculated on a pro-rata basis and no more than 10 days annual leave may be accumulated.

9. Leave must be taken during the tenure of the stipend and must be approved by the supervisor before it is taken.

10. University holidays are not included in the 10 days leave.

11. There is no compensation for unused leave.

Personal Leave

12. Up to 10 days personal leave are available per year. Personal leave is calculated on a pro-rata basis and no more than 10 days will be accumulated.

13. Leave must be approved by the supervisor before it is taken. Relevant documentation must be submitted to the supervisor to support the personal leave.

14. There is no compensation for unused leave.

Employment

15. Scholarship holders may undertake employment subject to the following conditions:

a. Such work is to be of a part-time nature only;

b. A full-time candidate may undertake up to 240 hours of employment per year, but normally no more than 8 hours in any one week, including weekends. If the employment consists of tutoring and/or lecturing, the total includes the time required for preparation and marking. Any employment beyond these limits requires the approval of the student’s principal or sole supervisor and the Manager of the Graduate Centre.

Work undertaken must not interfere with the student’s program or pose a conflict of interest.

Suspension

16. Stipend holders may be eligible to apply for suspension of their studies where the circumstances are exceptional and beyond the control of the student.

Termination

17. The stipend will be terminated at the end of the 12 months, as stipulated in the Training in Veterinary Education Program Description.

18. The stipend will be terminated before this time if after due enquiries, the University concludes that students have not fulfilled their obligations, met the eligibility criteria or if they are not making satisfactory progress.

Specific University Obligations

19. The University will be fair and equitable in the use of its discretionary powers. The University will advise students of appropriate appeal mechanisms for resolution of any academic disputes that might arise during their candidature. The University will pay the student all entitlements due under the Award.

Specific Student Obligations

20. Program obligations

a. The students shall agree to the conditions of the Training in Veterinary Education Program, as specified by the Department administering the Training program. The student should receive a copy of the Training in Veterinary Education Program description from their supervisor at the beginning of the program and provide a signed acknowledgement of such receipt.

General

Students shall:

a. Diligently and to the best of their ability apply themselves to the successful completion of the degree;

b. Abide by all University statutes, regulations, policies and procedures during the course of their degree;

c. Abide by the NH & MRC codes on human and animal experimentation, guidelines established by the Australian Government’s Recombinant DNA Monitoring Committee and rulings of the safety and ethics committees of the University”

[37] The applicant signed an acceptance advice document which he dated 20 September 2019 11 which reads as follows

“I accept the offer of the above stipend at Murdoch University subject to the stipend conditions, which I have read and accept. I provide an assurance that I will be able to devote myself to my studies during all required working hours throughout the year. I have not and will not sign over the Intellectual Property involved in any work I conduct during the tenure of this award, without the prior written approval of the Director of the Division of Research and Development.”

[38] The program description reads as follows.

“Murdoch University, School of Veterinary Medicine
Specialty Training Program in Small Animal Emergency and Critical Care
Program Description 2020-2021

The specialty training program is a structured 12 month program designed to provide clinical training in the fields of emergency and critical care (ECC) and to allow completion of a graduate diploma in postgraduate education. The learning objectives are:

•  The obtain knowledge and practical skills in the field of small animal ECC

•  To understand the principles of tertiary teaching at a tertiary level; and

•  To obtain experience in clinical teaching at a tertiary level.

Ultimately the aim of the training program is to provide a foundation for future training as a clinical specialist and/or academic in the field of veterinary special. All training will be undertaken within The Animal Hospital at Murdoch University (TAHMU), School of Veterinary Medicine, or within the School of Education at the Murdoch University campus.

The training program is divided into three main components:

1. Training within the clinical disciplines of small animal ECC

2. Assistance with teaching within several undergraduate units in the Doctor of Veterinary Medicine program

3. Completion of the Graduate Diploma in Education (Tertiary and Adult)

The average time assigned to each of the above areas each will vary throughout the year.

Each component is described in more detail below.

1. Training within the clinical disciplines of small animal emergency and critical care

Clinical duties in the training program will include:

•  Assisting with providing a critical care service to TAHMU

•  Assisting with providing emergency services to primary accession and referral emergency patients

•  Participation in clinical research undertaken within TAHMU

•  Participation in ECC academic activities including case rounds, journal club, and research rounds

•  Participation in multidisciplinary rounds (MDR) and seminar

2. Assistance with teaching within several undergraduate units in the Doctor of Veterinary Medicine (DVM) program

The ECC specialty trainee will participate in practical classes and clinical teaching in the following units within the DVM program

•  VET638; Small Animal Practice 2, the unit that includes the ECC core rotation

•  VET618; Equine, Afterhours, and Diagnostic imaging, the unit that includes the ECC afterhours rotation (shared with equine afterhours)

•  VET652; Advanced Topics Small Animal

•  VET 651; Advanced Topics Mixed Animal Practice

3. Completion of the Graduate Diploma in Education (Tertiary and Adult)

Completion of the GradDipEd is a mandatory component of the ECC specialty trainee position. This diploma is an established Murdoch University CRICOS registered course designed to train the participants to teach adults a specialist subject in a range of settings.

The diploma is a one-year full-time course. The course is beneficial to any veterinarian planning to enter an academic career.

Supervision

The ECC specialty trainee is overseen by the School of Veterinary Medicine academics (Dr Claire Sharp, Lisa Smart, Melissa Claus), TAHMU ECC registrar (Dr Corrin Boyd), and TAHMU ECC veterinary supervisor (Dr Jill Griffiths)”

[39] The applicant’s evidence was that he participated in the ECC Training Program from 13 January 2020 to 13 January 2021. During that year he was enrolled as a full-time student at Murdoch University, in the Graduate Diploma. He also worked in the Animal Hospital, alternating one week on day shifts in the Intensive Care Unit (ICU) and one week on evening-shifts on the Emergency Service.

[40] During the ECC Training Program the applicant says he also had a contract of casual employment with the emergency department and was paid accordingly for this work. This was so he could pick up additional shifts if he wished to supplement his stipend. Halfway through the year he started to work casual shifts at the weekend. This was typically one casual shift per fortnight.

[41] During his year in the ECC Training Program he applied for a 1-year Specialty Training Program in Veterinary Anaesthesia and Analgesia (Anaesthesia Training Program).

[42] Subsequently he was also offered this traineeship. The applicant’s evidence was this Anaesthesia Training Program was subject to a letter of confirmation 12 and conditions of stipend13 which were identical to those received by him the previous year for the ECC Training Program discussed above. He says he was also provided with a Veterinary Anaesthesia and Analgesia Training Program Description document which is set out below: (Together these documents are the Anaesthesia training documents.)14

“Specialty Training Program In Veterinary Anaesthesia And Analgesia 2019

The specialty training program is a structured 12-month programme designed to provide clinical training in the fields of anaesthesia and analgesia and to allow completion of a graduate certificate in teaching skills. The learning objectives are:

•  To obtain knowledge and practical skills in the field of anaesthesia and analgesia of all veterinary species particularly small animals and horses

•  To understand the principles of teaching at a tertiary level

•  To obtain experience in clinical teaching at a tertiary level

Ultimately, the aim of the training program is to provide a foundation for future training as a clinical specialist and/or academic in the field of veterinary science. All training will be undertaken within Murdoch University Veterinary Hospital (MUVH), School of Veterinary and Life Sciences, or within the School of Education at the Murdoch University campus.

The training program is divided into four main components:

1. Training within the clinical discipline of veterinary anaesthesia and analgesia

2. Assistance with teaching within several undergraduate units in the veterinary science programme

3. Completion of the Graduate Diploma in Education (Tertiary and Adult) (G1025)

4. Completion of a research project or case series

The average time assigned to each of the above areas each week will vary throughout the year. Notably greater time will be assigned to practical teaching of undergraduate veterinary students and to completion of the Graduate Diploma in teaching periods. In non-teaching periods, a relatively greater proportion of time will be assigned to working and training within the anaesthesia section of MUVH. There will the possibility of assisting/completing a research project if interested. The following table is a guide to time allocated to different aspects of the training program.

1. Training within the clinical discipline of veterinary anaesthesia

Clinical duties within the training programme will include:

•  Assisting with providing anaesthesia service to MUVH

•  Participation in journal club, case rounds, and seminars

•  Participation in research undertaken within the MUVH

•  Participation in multidisciplinary rounds and seminars

2. Assistance with teaching within several undergraduate units in the veterinary science programme

It will be necessary to participate in practical classes and clinical teaching in the following units within the undergraduate veterinary degree programme:

•  Third year

•  VET301 S2 Principles of Surgery & Anaesthesia

•  • Fourth year

•  Vet607 S1 and S2 DVM surgery laboratory classes

•  Fifth year

•  VET638 SAP 1 and 2 Anaesthesia core clinical rotation teaching and assistance with anaesthesia for surgery performed during shelter rotation

•  Vet652 Small animal streaming

3. Completion of the Graduate Diploma in Education (Tertiary and Adult) (G1025)

Completion of the Graduate Diploma in Education (Tertiary and Adult) will be mandatory during the training period. This diploma is an established Murdoch University CRICOS registered course designed to train the participants to teach adults a specialist subject in a range of settings. The diploma is a one-year full time course, and is already an obligatory component of internship programmes in other clinical specialties within the School of Veterinary and Biomedical Sciences. The course is beneficial to any veterinarian planning to enter an

academic career.

Additional units must be completed during the programme. These optional units will be chosen to specifically enhance teaching ability within the field of veterinary science.

Supervisors:

Teaching/research

Dr Anthea Raisis

Dr Martina Mosing (Mag. med. vet. Dr. med. vet, Dip ECVAA)

Clinical supervision

Dr Eleanor Drynan

Dr Griet Haitjema

Dr Leon Warne”

[43] As was the case for the ECC Training Program, the Anaesthesia Training Program required the applicant be enrolled as a full-time student at Murdoch University and participate in work at the Hospital and the School. Because he had already completed the Graduate Diploma during the ECC Training Program, he says he was offered to enrol in the Master of Education (Research) (the Masters) instead. The work expected of him during the Anaesthesia Training Program was to be split between the Hospital and the School of Veterinary Medicine (the School). Whilst the rotation between the School and the Hospital varied throughout the year, he says he mostly spent two weeks working in the Hospital followed by two weeks working in the School.

[44] Again, whilst completing the Anaesthesia Training Program he separately had a contract of casual employment with the anaesthesia department and was paid accordingly for this work.

[45] The applicant’s evidence was that when he was applying for the ECC Training Program he was aware of how the program was structured and ran and what would be involved.

[46] His evidence was that he applied for the Anaesthesia Training Program when he was only halfway through the ECC Training Program, and he understood what would be involved in the second training program when he applied for it. 15

[47] The applicant had carefully read all the documents before signing to accept them. 16

[48] The witnesses gave significant additional evidence regarding the work the applicant did in both the School and the Hospital as required by the ECC Training Program and the Anaesthesia Training Program.

Submissions

The respondent

[49] The respondent submits that the relationship between the applicant and the respondent was not that of employee and employer.

[50] The respondent submits that Specialist Training Programs which the applicant participated in, namely the ECC Training Program and the Anaesthesia Training Program are a method of training used by Murdoch to train veterinarians to give them experience towards achieving a specialisation under the Veterinary Surgeons Act 1960 (WA).

[51] The programs are composed of two parts: being enrolment in a teaching qualification with Murdoch and a work placement within Murdoch’s Animal Hospital. Enrolees in these are paid a fortnightly stipend and their educational costs are covered by Murdoch.

[52] The respondent submits as such the applicant participated in these programs as a trainee not as an employee.

[53] The respondent submits there is a lack of jurisdiction to determine the dispute because the applicant, not being an employee, was not covered by either the Agreement or the Award.

[54] Separately the respondent submits that the Award by virtue of clause 4 applies only to private veterinary surgery practices and Murdoch is a public university and the Hospital is not a private veterinary surgery practice, nor is it a community-based charity organisation.

[55] The respondent submits that the applicant has not argued that the contractual agreement between himself and Murdoch was a sham or had otherwise been varied or displaced by conduct of the parties. 17

[56] The applicant was fully aware of the contents of the documents that he signed as accepting and understanding he was entering into a student training program and not a contract of employment.

[57] The respondent submits the ECC documents make up the contract between the applicant and Murdoch for the ECC Training Program: these being the letter confirming his application had been successful dated 17 September 2019, 18 the document detailing the Conditions of stipend for the 12 months Specialty Training – Veterinary Education Emphasis19 and the Specialty Training Program in Small Animal Emergency and Critical Care Program Description 2020 – 2021.20 Similarly the respondent submits the Anaesthesia documents make up the parties’ contract for the Anaesthesia Training Program.

[58] The respondent relies on the High Court authorities of Jamsek and Personnel Contracting and submits that these documents are unambiguous, comprehensive and clearly record the relationship as one of university and student trainee, not a relationship of employer and employee.

[59] Consequently, the respondent submits that the Commission should uphold the respondent’s jurisdictional objection and so find the answer to the question posed by the applicant is “no”.

The applicant

[60] The applicant submits that the High Court decisions in Jamsek and Personnel Contracting make it clear that labels the parties may have chosen to describe their relationship is not determinative nor even relevant to determining the character of the relationship.

[61] The applicant submits it is then the parties’ contractual rights and obligations they entered into that demonstrate the true character of the relationship in this case between himself and the University.

[62] He says in the circumstances here the contracts only partly provide the rights and obligations of the parties and there are various conditions such as rostered hours and required after hours duty which are not in the contract. He submits that the contract between himself and Murdoch is vague or opaque because there is for example no clear guidelines regarding the expected time commitment for the program participants.

[63] He submits that the University’s policies state the University is required to communicate the required time commitment to prospective students. This means that irrespective of whether he is a student or an employee, the university is still obligated to provide information regarding his time commitment. As a result, there is no justification for the time commitment required of the program to not be included in the contract.

[64] The applicant submits the consequence of omitting such a term from the contract is that the rights and obligations of the parties are only partly committed to the contracts and the contract is therefore vague. As a consequence, the Commission is justified in this case in also analysing the conduct of the relationship after the contract was formed.

[65] The applicant submits that both the contract itself and an analysis of the conduct of the relationship of the parties after the parties entered into the contract demonstrates an employment relationship between himself and the respondent.

[66] The applicant submits finally that he is a national system employer for the purposes of the Act and the Commissions answer to the question posed for determination should be ‘yes”.

Consideration

[67] In this case the applicant argues he was an employee of the respondent.

[68] The respondent objects to the application arguing the applicant was not an employee. It does not argue he was an independent contractor but rather that he was a student trainee.

[69] The High Court in WorkPac Pty Ltd v Rossato (Rossato) 21 held that the character of the legal relationships between parties must be determined only by reference to the legal rights and obligations which constitute the relationship between two parties.

[70] Subsequently the High Court in Jamsek and Personnel Contracting applied the principle in Rossato in two separate cases where it was disputed whether particular individuals were engaged as employees or rather as independent contractors. In both of these cases the High Court reinforced that, where the parties have comprehensively committed the terms of their relationship to a valid written contract, determining the character of their relationship is to proceed by reference to that written contract.

[71] In this case I find that the two contracts entered into between the applicant and the respondent are made up respectively by the ECC training documents and by the Anaesthesia training documents.

[72] Notwithstanding the applicant’s submission to the contrary, I do find that the parties in each of these contracts did comprehensively record the terms of their relationship in writing.

[73] I am satisfied therefore that that the principles stated in Personnel Contracting are applicable to the determination of the respondent’s jurisdictional objection, noting however that in this case the contest is not whether an individual was an individual contractor or an employee but rather a trainee or an employee.

[74] The principles 22 which may be derived from Personnel Contracting are as follows:

(1) When characterising a relationship regulated by a wholly written, comprehensive contract which is not a sham or otherwise ineffective, the question is to be determined solely by reference to the rights and obligations under that contract. It is not permissible to examine or review the performance of the contract or the course of dealings between the parties. 23

(2) The subsequent conduct of the parties may be considered to ascertain the existence of variation of contractual terms. 24

3) The multifactorial approach only has relevance in respect of the required assessment of the terms of the contract. 25

(4) It is necessary to focus on those aspects of the contractual relationship which bear more directly upon whether the worker’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise. 26 The question is: whether, by the terms of the contract, the worker is contracted to work in the business or enterprise of the purported employer.27

(5) Existence of a contractual right to control the activities of the worker (including how, where and when the work is done) is a major signifier of an employment relationship. 28

(6) The label or characterisation placed on the relationship by the contract is not relevant even as a “tie breaker”, 29 or at least it is not determinative.30

[75] In this case on the evidence there is no suggestion that the contracts entered into by the parties were a sham nor that after the respective contracts formation the parties agreed to any variation. 31

[76] The applicant applied for, on each occasion, what was advertised expressly as a training program, something which he repeated a number of times in both of his letters of application.

[77] Both of the documents, set out above, which provide details of the respective programs, 32 open as follows,

“The specialty training program is a structured 12-month program designed to provide clinical training in the fields of…… and to allow completion of a graduate diploma in postgraduate education.”

[78] The program description documents respectively continue on to specify the learning objectives of the program, then explain that the training program provides a foundation for future training as a clinical specialist and/or an academic.

[79] Both program description documents continue on further to detail the three main components: being training within the clinical discipline, assisting teaching or teaching within undergraduate units and then completion of either the graduate diploma in education or the accelerated RMT.

[80] Further detail is then provided regarding these three main components.

[81] Both of these documents unambiguously detail a program of training.

[82] There is nothing in either of these program documents that refers to employment.

[83] The conditions of stipend document for each 12-month specialty training program is identical.

[84] Relevantly, to be eligible for the stipend the applicant must have been a student enrolled as a full-time student in a postgraduate degree.

[85] The stipend of $30,000 per annum will be paid for the 12 months duration of study. Tuition fees and domestic fees will be paid by the School.

[86] Students are entitled to up to 10 days paid annual leave per year. Leave must be taken during the tenure of the stipend. There is no compensation for unused leave.

[87] Up to 10 days’ personal leave are available per year. There is no compensation for unused leave.

[88] Scholarship holders may undertake employment subject to various conditions: namely the work being part-time only and up to 240 hours per year and normally no more than eight hours in any one week. Employment beyond these limits requires the approval of the student’s principal or supervisor. Work undertaken must not interfere with the student’s program.

[89] Stipend holders may be able to apply for suspension of their studies should the circumstances be exceptional.

[90] The stipend will be terminated at the end of 12 months as stipulated in the training program description.

[91] The stipend will be terminated if the University concludes the students have not fulfilled their obligations, met eligibility criteria or are not making satisfactory progress.

[92] Students shall diligently and to the best of their ability apply themselves to the successful completion of the degree.

[93] Finally, for both training programs the applicant signed a document stating that he accepted the offer of the stipend subject to the stipend conditions and providing an assurance that he will be able to devote himself to his studies.

[94] Again, there is nothing in the conditions of stipend document that suggests at all that the 12-month specialty training is an employment relationship.

[95] At this point it is perhaps useful to highlight an important general principle relied upon by the High Court in Personnel Contracting as follows:

“[176] One "general principle" of construction of contracts is that "it is not legitimate to use as an aid in the construction of [a] contract anything which the parties said or did after it was made" (what might be described as "subsequent conduct"). The rationale of the general principle, identified by Lord Reid in James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd, is to avoid the result "that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later". The general principle may permit exceptions. No party contended that any exception should be recognised in this appeal.”

Footnotes omitted.

[96] The critical principle the High Court reinforced here is that what a contract meant the day it was signed cannot be changed by subsequent events. Contractual certainty is critical to both parties. So it is in this case.

[97] In this matter it is clear that the rights and obligations under each of the contracts, as detailed respectively in the ECC training documents and the Anaesthesia training documents, comprehensively record the relationship between the respondent and the applicant.

[98] The subsequent conduct of the parties does not demonstrate the existence of any variation of those contractual terms.

[99] The contractual terms agreed to by the parties very clearly show that the relationship was that of University and student trainee.

[100] There is no basis to find that the relationship between the respondent and the applicant was that of employer and employee.

[101] Consequently, the Commission’s decision is to uphold the respondent’s jurisdictional objection.

[102] Dr Tracey was not an employee of Murdoch. Therefore, Dr Tracey was not able to bring a dispute to the Commission under either the Agreement or the Award. Consequently, the Commission has no jurisdiction to determine his application.

[103] This application will be dismissed for want of jurisdiction and an order to that effect will be issued in conjunction with this decision. There is no need to consider the other jurisdictional objections of the respondent.

[104] As the respondent has submitted, determining the issue of jurisdiction also deals with the substantive question Dr Tracey asked the Commission to determine. In short although there is no jurisdiction to decide the matter the answer to that question would also be “No”.

Printed by authority of the Commonwealth Government Printer

<PR744586>

 1   2022 HCA 2.

 2   2022 HCA 1.

 3   Statement of Dr Hosgood par 5 to 15.

 4   Statement of Dr Hosgood paragraph 16 to 30.

 5   Statement of Dr Hosgood paragraphs 31 to 60.

 6   Court book page 610.

 7   Court book pages 612, 613.

 8   Court Book page 72.

 9   Court Book page 73 and 74.

 10   Court Book page 79.

 11   court book page 75.

 12   court book page 81 and 82.

 13   court book page 83 and 84.

 14   Court book page 86 and 87.

 15   PN 98 - PN 110.

 16   PN 178.

 17   PN 612.

 18   Court Book page 72.

 19   Court Book page 73 and 74.

 20   Court Book page 79.

 21   2021 392 ALR 39 at [57] and [62].

 22   [2022] FWCFB 129 at [74].

 23   [2022] HCA 1, 96 ALJR 89, 312 IR 1 at [40]-[62] per Kiefel CJ, Keane and Edelman JJ; [172]-[178] per Gordon J; [203] per Steward J.

 24   Ibid at [42], [45] per Kiefel CJ, Keane and Edelman JJ; [177]-[178], [188]-[190] per Gordon J; [203] per Steward J.

 25   Ibid at [33]-[34], [47], [61] per Kiefel CJ, Keane and Edelman JJ; [174], [186]-[189] per Gordon J; [203] per Steward J.

 26   Ibid at [39] per Kiefel CJ, Keane and Edelman JJ.

 27   Ibid at [180]-[186] per Gordon J, [203] per Steward J.

 28   Ibid at [73]-[74] per Kiefel CJ, Keane and Edelman JJ, [113]-[114], [121] per Gageler and Gleeson JJ.

 29   Ibid at [58], [63]-[66], [79] per Kiefel CJ, Keane and Edelman JJ.

 30   Ibid at [127] per Gageler and Gleeson JJ, [184] per Gordon J, [203] per Steward J.

 31   PN 612.

 32   Court book page 615 – 618.