1
Fair Work Act 2009 (Cth)
s.365—General protections
Timothy Andrew Alouani-Roby
v
National Rugby League Limited, Bernard Sutton, Graham Annesley
(C2020/9100)
DEPUTY PRESIDENT CROSS SYDNEY, 12 NOVEMBER 2021
Application to deal with contraventions involving dismissal - no dismissal - application
dismissed.
[1] On 18 December 2020, Mr Timothy Alouani-Roby (the Applicant) made an application
to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act
2009 (Cth) (the Act), alleging that adverse action involving dismissal had been taken against
him because he had protections described in sections 340, 343, 345, 346 and 351 of the Act (the
Application). The adverse action was alleged to have been taken by the National Rugby League
Limited (the First Respondent/the NRL), Mr Bernard Sutton (the Second Respondent), and Mr
Graham Annesley (the Third Respondent).
[2] The First Respondent, the Second Respondent, and the Third Respondent (collectively,
the Respondents), submit that the Applicant’s employment with the First Respondent ended
through the effluxion of time upon the expiry of the Applicant’s maximum term
contract. Accordingly, the Respondents submitted that the Applicant was not dismissed from
his employment with the First Respondent within the meaning of section 386(1) of the Act.
Directions and Evidence
[3] On 9 April 2021, directions were issued to program the manner in which the Application
was to proceed to hearing (the Directions). The Directions were as follows:
1. Timothy Andrew Alouani-Roby (the Applicant) is directed to file with the Fair
Work Commission, and serve on National Rugby League Limited, Bernard
Sutton and Graham Annesley (the Respondents), an outline of submissions,
witness statements and other documentary material the Applicant intends to rely
on in relation to the Jurisdictional Objection raised in this matter by 4pm on 16
April 2021.
[2021] FWC 6282 [Note: An appeal pursuant to s.604 (C2021/8124) was
lodged against this decision – refer to Full Bench decision dated
7 September 2022 [[2022] FWCFB 171] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/decisionssigned/html/2022FWCFB171.htm
[2021] FWC 6282
2
2. The Respondents are directed respectively to file with the Fair Work
Commission, and serve on the Applicant, an outline of submissions, witness
statements and other documentary material the Respondents intend to rely on in
relation to the Jurisdictional Objection raised in this matter by 4pm on 23 April
2021.
3. The Applicant is directed to file with the Fair Work Commission, and serve on
the Respondents, any reply material, that is, any witness statements and other
documentary material in reply to the Respondents’ witness statements and
documents by 4pm on 30 April 2021.
4. Any party that requests permission to be legally represented at the hearing is
directed to file with the Fair Work Commission, and serve on the other party, a
brief outline of submissions in support of its request by 4 pm on 23 April 2021.
[4] The parties complied with the Directions. In particular:
(a) On 16 April 2021, the Applicant filed an Outline of Submissions, a Statement
from the Applicant with annexures, and a statement of Mr Silvio Del Vecchio,
the Chairman of the Professional Rugby League Match Officials Incorporated
(the PRLMO), with annexures;
(b) On 23 April 2021, the Respondent filed an Outline of Submissions, a statement
of the Second Respondent Mr Sutton with annexures, and a statement of Ms
Eleni North, General Counsel and Company Secretary of the First Respondent;
and
(c) On 7 May 2021, the Applicant filed an Outline of Submissions in Reply together
with statements from:
(i) The Applicant;
(ii) Mr Del Vecchio;
(iii)Mr Matthew Jeffriess, the former Referees’ Performance Coordinator of
the First Respondent;
(iv) Mr Gavin Badger, a former Referee of the First Respondent and PRLMO
member;
(v) Ms Kristy Mills, the former Referees’ Performance Analyst with the First
Respondent;
(vi) Ms Michelle Minichiello, the former Referees’ Physiotherapist of the
First Respondent
[5] Additional to the Directions, on 25 May 2021, the Second Respondent, Mr Sutton, filed
a further statement of four paragraphs that noted he had made a previous statement in the matter,
[2021] FWC 6282
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referred to the six reply statements filed on behalf of the Applicant, and stated in the last two
paragraphs:
3. “I have read each of these reply statements. The reply statements cover a wide
range of matters relating to Mr Alouani-Roby and a range of former employees
of the NRL.
4. There are parts of these statements that deal with:
(a) matters that have been covered in my Initial Statement and I repeat and
rely on my Initial Statement; and
(b) matters that are not covered in my Initial Statement and with which I
disagree with. However, I understand that these matters are not relevant
for the purpose of the jurisdictional hearing and on this basis I do not
propose to respond to these matters beyond noting my disagreement.”
[6] Evidence in the matter was heard on 27 and 28 May, 2021 (the Hearing). In the Hearing,
of the witnesses for the Applicant, the Applicant, Mr Del Vecchio and Mr Jeffriess, were
required for cross- examination. Mr Badger, Ms Mills and Ms Minichiello were not required
for cross-examination and their statements were received into evidence subject to the
apportionment of appropriate weight to their evidence.1 Of the witnesses for the Respondents,
both Mr Sutton and Ms North were required for cross-examination.
[7] Subsequent to the Hearing, the parties filed written submissions which they addressed
in oral submissions on 30 July 2021. The submissions filed were:
(a) The Closing Submissions of the Applicant (the Applicant’s Submission) dated
25 June 2021;
(b) The Respondents’ Closing Written Submissions (the Respondents’ Submission)
dated 16 July 2021; and
(c) The Reply to the Respondents’ Closing Submissions (the Applicant’s Reply
Submission) dated 23 July 2021.
[8] After receipt of the Submissions referred to in the above paragraph and the further
hearing on 30 July 2021, the High Court delivered the decision in WorkPac Pty Ltd v Rossato
& Ors (Workpac),2 on 4 August 2021. At the request of the parties, further directions were
made allowing the parties to make further submissions in relation to the relevance of Workpac
to this matter. Pursuant to those further directions:
(a) The Respondents filed an outline of submissions in relation to WorkPac (the
Respondents’ WorkPac Submission) on 25 August 2021; and
1 Transcript PN 270.
2 [2021] HCA 23.
[2021] FWC 6282
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(b) The Applicant filed an outline of submissions in relation to WorkPac (the
Applicant’s WorkPac Submission) on 8 September 2021.
Background Facts and Findings
(a) Uncontroversial facts
[9] On the basis of the material before me, and the evidence led at the Hearing, the following
findings may be made about the relevant facts in this matter.
[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
[2021] FWC 6282
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[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.
(b) Contested Facts
[19] The Applicant claimed that in January 2018, shortly after the appointment of the Second
Respondent as General Manager of Elite Officiating, he was immediately pressured to perform
through his fatigue resulting from the Illness. The Applicant claimed that he never felt as though
he was allowed to fully recover from the Illness due to the Second Respondent’s demanding
and no-compromise management style.
[20] The Applicant had been a member of the PRLMO since 2015. The Applicant claimed
the Second Respondent victimised him because of, among other reasons, his membership of the
PRLMO, of which all officials except the Second Respondent’s brothers were members. The
Applicant appointed the PRLMO as his bargaining representative in negotiating the Agreement.
[21] It was in relation to the alleged conduct and comments of the Second Respondent
towards the Applicant that considerable evidence was lead in the matter. I accept that the
Respondents were surprised by the level of detail of the Applicants evidence on this issue,
which was substantially filed in the reply evidence. The Respondents were, however, able to,
and did albeit briefly in the second statement of the Second Respondent, reply and very broadly
put the evidence in issue. The Respondents were also able to challenge such evidence in cross-
examination. Notably, the evidence of three deponents was received without challenge. Further,
certain events were contemporaneously recorded on the “notes” application in the Applicant’s
mobile telephone. For those reasons, and based upon my assessment of those witnesses who
did give evidence, where the evidence of the Second Respondent on one hand, and the
Applicant and his witnesses on the other hand, diverged, I have preferred the evidence of the
Applicant and his witnesses.
[22] In relation to the First and Second Respondents’ management of the Applicant I make
the following specific factual findings:
[2021] FWC 6282
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(a) The Applicant worked with mid-level coaching staff to adopt flexible training
arrangements to accommodate the Illness. Those staff members included Mr
Jeffriess, Ms Mills and Ms Minichiello. The modifications that were
implemented to accommodate the Illness were minimal.
(b) In 2018 and 2019 generally, the Second Respondent said to Ms Mills and Ms
Minichiello regarding the Applicant’s training levels and the effect of the Illness
words to the effect of “Tim[‘s] being soft again,” directing that he not “get away
with being soft,” and that he “needed to be pushed harder.”
(c) On around 22 May 2019, the Second Respondent criticised the Applicant’s
English accent, stating that it “isn’t helping either” with respect to his on-field
communication.
(d) In early May 2019, the Applicant was dropped from an assistant referee role
after one error and officiated the balance of his match allocations as a Touch
Judge until his employment ceased.
(e) On 23 September 2019, at the conclusion of a regular referee’s gym training
session, the Applicant was sent a text message by the Second Respondent to
meet him in his office for a “friendly chat.” During the meeting, the Second
Respondent said to the Applicant words with the following effect:
“How do you think you have been going this season?”
“Do you agree that you struggled with the physical demands?”
“How would you compare yourself to how others in the squad who are on
the same referee’s tier as you?”
“I have some concerns over your contract” and
“Nothing has been decided yet, but I am going to ask you to provide me
with an improvement plan.”
(f) In response, the Applicant requested that if that meeting concerned his contract,
that he wanted the meeting to be formalised and that he be afforded some time
to prepare for the discussions. In reply, the Second Respondent said, “don’t
worry, this is just a chat.”
(g) Following the meeting on 23 September 2019, the Applicant requested a meeting
with Ms Alice Rynne, General Manager of People and Culture of the NRL to
complain about that meeting. Ms Rynne reassured the Applicant that his
complaint would be treated confidentially to ensure that he did not face any
retaliation, and recommended that the Applicant completed the improvement
plan.
[2021] FWC 6282
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(h) In a telephone conversation on around 30 September 2019, the Second
Respondent directed Mr Jeffriess to oversee a yo-yo fitness test to target the
Applicant and his Illness. The contents of that conversation were as follows:
Mr Sutton “During the next referees’ training session may you
please conduct a yo-yo test for the match officials that
are not officiating in the NRL Finals.”
Mr Jeffriess “Those referees are on their off-season. Their training
loads are such that a yo-yo test would be irrelevant.”
Mr Sutton
“The results can be a baseline measure for the start of
pre-season next year.”
Mr Jeffriess “I disagree. The referees’ decreased training load
means the results won’t reflect their in-season fitness
and might also pose an unnecessary injury risk.”
Mr Sutton “Okay. The real reason for the yo-yo test is to make Tim
Roby [the Applicant] aware of his level of fitness within
the group. I want to make him feel uncomfortable to the
extent that he will retire on his own.”
Mr Jeffriess “I don’t agree with that philosophy, Bern. I don’t want
to conduct a test to specifically target someone. The
injury risk and the irrelevancy of a maximal fitness test
at this time of season is too risky.”
Mr Sutton “We will be conducting the test.”
[23] On 4 October 2019, the Applicant met with the Second Respondent to present his
improvement plan, in the form of a PowerPoint presentation with video clips embedded within
it.
[24] On around 8 October 2019, the Applicant received an invitation from the Second
Respondent to “catch up” in his office the following day. In response, the Applicant requested
for the meeting to be formalised if his contract was on the agenda. The Second Respondent
assured the Applicant that the meeting was just a chat.
[25] On 9 October 2019, the Applicant attended the Second Respondent’s office, and was
surprised to see Ms Rynne also present. The meeting was brief, lasting no more than ten
minutes. During that meeting, the Second Respondent said, “we have had meetings about your
improvement plan. If we are in the same position this time next year, then this could be your
last contract. Here is a one-year contract.” The Second Respondent claimed that in this
meeting he said to the Applicant “this is likely to be your last contract.” I note that I have
preferred the evidence of the Applicant where there is contest, however I further note that Ms
Rynne was not called to give evidence by the Respondents. While she is no longer an employee
[2021] FWC 6282
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of the First Respondent, it became apparent that no enquiries had been made of Ms Rynne
regarding this meeting or any other interactions with the Applicant.3
[26] The contract the Applicant received was the Contract, being the contract of employment
dated 25 November 2019.
[27] During February 2020, the First Respondent conducted a Rugby League Nines
Tournament in which the Applicant officiated in various roles. One game in that tournament
was decided on a decision that ultimately proved to be wrong on video replay. The Applicant
considered the accountability for that incorrect decision rested primarily with the Touch Judge,
followed by the centre referee, and then finally with the Applicant as the in-goal referee.
However, the Applicant considered that the Second Respondent unfairly singled him out for
the error, and summoned the Applicant to his office to present detailed statistics about the
Applicant’s “lack of urgency,” and commented that the Applicant’s alleged lack of pace was
“a serious concern.”
[28] Following the above meeting with the Second Respondent, the Applicant requested a
further human resources meeting with Ms Sarcha Huntley, the new General Manager of People
and Culture for the First Respondent, to complain about what he perceived as the Second
Respondent using him as a scapegoat in relation to the erroneous decision at the Nines
Tournament, and that the Applicant apprehended that the Second Respondent’s campaign
against him had worsened because the Second Respondent was made aware of the complaints
the Applicant had raised in confidence with Ms Rynne on 23 September 2019.
[29] Ms Huntley thereafter had a number of interactions with the Applicant, and in
circumstances where there was contest in the evidence between the Applicant and the
Respondents on those issues it was remarkable that evidence was not filed from Ms Huntley.
That was particularly so where the Respondent’s took the course of leading evidence from Ms
Huntley through Ms North. By way of example, in relation to the meeting referred to in the
above paragraph, Ms North’s statement deposed as follows:
38. “I have also discussed with Ms Huntley whether Mr Alouani-Roby made a
complaint directly to her in early 2020 following the incident in the NRL Nines
tournament in Perth where Mr Alouani-Roby was one of the officials
participating in a match where a significant error occurred which mean a team
lost the chance to play in a final of that tournament.
39. Ms Huntley categorically denies that Mr Alouani-Roby contacted her about that
matter in early 2020 or that he ever raised a compliant about the matter to her.”
[30] Ms North’s “evidence” regarding what Ms Huntley allegedly told her, both in relation
to the above meeting but also elsewhere in her statement, is nothing more than impermissible
hearsay. While the Commission is not bound by the rules of evidence,4 it is bound to take into
account equity and good conscience in the performance of its functions.5 It would be entirely
3 Transcript PN1475.
4 Section 591 of the Act.
5 Section 578(b) of the Act.
[2021] FWC 6282
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inequitable to afford any weight to such evidence. It is not in a form that the Applicant can test
in any meaningful way.
[31] On around 22 March 2020, at the end of the second round of the 2020 NRL season, the
coronavirus pandemic caused a two-month suspension of NRL games. One of the measures
adopted by the First Respondent to re-start the 2020 season was to remove the role of the assist
referee. As less referees were required, the Applicant’s performance for assessment was limited
to:
(a) internal fitness and training;
(b) general behaviour and attitude; and
(c) performance in the role of Touch Judge.
[32] During the recommenced 2020 NRL season, the Applicant received praise for his 2020
performance indicia from managers including the Second Respondent.
[33] On around 9 June 2020, the Applicant had made plans to meet his bank and real estate
agents to confirm the purchase of a new residence in Australia. He telephoned the Second
Respondent and said, “I will almost certainly be on time for training, but I am just giving you a
heads up that I am signing a home loan contract and might be 10 minutes late as a result.”
[34] Around 35 minutes after the above telephone call, the Second Respondent messaged the
Applicant, asking whether he was free to “jump on a web conference” with him. The Applicant
replied, “sure, what’s it for?” The Second Respondent responded, “I’ll fill you in once we jump
online.”
[35] In the web conference video link, the Second Respondent told the Applicant that he
would not be receiving a renewal of his contract for the 2021 NRL Season. In that meeting the
Second Respondent said that he had told the Applicant on 23 September 2019, that his 2020
NRL Season Contract was likely to be his last.
[36] The Applicant was one of two referees who did not receive a 2021 Contract. The other
referee was Mr Gavin Badger.
[37] On 28 July 2020, the Applicant emailed Ms Huntley a medical certificate. He advised
he would commence a period of stress leave.
[38] On 6 August 2020, the Applicant had an online video call with Ms Huntley during which
the following words were said:
Ms Huntley: “I will send you documentation in relation to your resignation and
you can decide how you would like to inform the squad about your
resignation.”
The Applicant: “I want to underline that I am not resigning but being forced to
leave under duress. I have had no choice in my dismissal.”
Ms Huntley: “Okay, that is fine.”
[2021] FWC 6282
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[39] On 11 August 2020, the Applicant sent Ms Huntley an email attaching a medical
certificate. The email stated:
“Thanks again for (video) meeting last week. The next steps as I understand them are
as follows:
• That I am unlikely to be able to return this season and you will relay this to my
manager.
• I will choose how and when I inform my colleagues and, in the meantime, my
leave is to be understood as ongoing should anyone ask.
• I am no longer required to follow the NRL Covid protocols or submit the daily
whereabouts forms.
• The NRL will confirm paid leave in writing to me now that you have the medical
certificate.
I am grateful for your understanding so far and really appreciate that you’ve enabled
me to prioritise my health at the moment. Now that there is some clarity around leave,
I’m hopeful that we can move forward towards a fuller resolution of the matter.”
[40] After further correspondence, on 23 August 2020, the Applicant sent Ms Huntley an
email. The email stated:
“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.”
[41] On 2 September 2020, Ms Huntley sent the Applicant a calculation of a summary of his
severance package based on an earlier cessation of employment.
[42] On 16 October 2020, the First Respondent wrote a letter to the Applicant in the
following terms:
[2021] FWC 6282
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Ell NRL Tim Roby troby@nrl.com.au 16 October 2020 Dear Tim, I refer to our call yesterday on 16 October 2020 with the Head of Elite Football - Graham Annesley, PRMLO Representative - Martin Ryan, and the General Manager of People and Culture - Sarcha Huntley. The purpose of the call was to discuss issues you have previously raised regarding the end of your employment contract on 30November 2020. During the meeting you indicated you were seeking a monetary settlement over and above the severance package as prescribed by the Enterprise Agreement between the NRL and PRLMO and as set out in an email sent to you on 2 September 2020 (summary attached). The Head of Elite Football, Graham Annesley, confirmed the severance package and offered additional: supplementary Career Transitioning assistance; and Counselling. In the absence of any formal complaint the General Manager of People and Culture is unable to substantiate claims previously raised by you. We noted you previously declined to raise grievances as a formal complaint. This was confirmed in an email you sent to the General Manager of People and Culture on the 23 August 2020, where you stated: "you 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 “: In considering the points raised in the call yesterday and previous correspondence, the NRL proposes the following severance terms: Termination package which includes a Career Transition Payment (see attached); Additional Career Transition assistance (up to 6 months of outplacement); and Counselling for up to 6 months with our Employee Assistance Program - Benestar (or A reimbursement of reasonable psychological fees incurred for a period up to 6 months on presentation of invoices).
[2021] FWC 6282
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NRL On behalf of NRL, I thank you for all your hard work and hope that we will be able to make this transition as smooth as possible for you. If you wish to discuss any details of the matters raised in this letter, please contact either me or Graham Annesley. Yours Sincerely Sarcha Huntley General Manager of People & Culture
STRICTLY CONFIDENTIAL Termination Summary Coversheet Date of calcualtion 2/09/2020 Employee Name Tim Roby Date of Commencement 25/03/2015 Role Referee Date of Exit 30/09/2020 Business Unit Elite Tenure (years) 5.51 Employee ID 200320 Termination Reason Mutal Agreement Hourly rate $ 67.1277 Hours / day 7.6 Monthly Salary $ 11,053.92 Hours / week 38 Annual Salary $ 132,647.02 Payment Frequency Monthly (in arrears) Leave Payments Hours Days Payment Comment Annual Leave 266 35.0 $ 17,855.97 7 weeks Long Service Leave 170.1351 4.5 $ 11,420.78 Employment Termination Payment (ETP) Hours Payment Comment Notice Payment in Lieu 329.34 $ 22,107.84 Period remaining up to 30/11/2020 (2 Months) 7 week's of base salary for Other 266 $ 17,855.97 5 years of service (Career Transition Payment) Total Termination Payment 69,240.55 (Gross)
[2021] FWC 6282
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[43] On 18 November 2020, the Second Respondent stood down from his role as General
Manager of Elite Officiating.
[44] On 30 November 2020, the Applicant ceased employment with the First Respondent.
(c) The Agreement
[45] From 3 June 2019, the Applicant’s employment was also covered by the Agreement.
The relevant provisions of the Agreement for the purposes of the Application are the following:
1. “Scope
(a) This Agreement covers:
(i) the NRL; and
(ii) Match Officials who are employed by the NRL to officiate rugby
league matches in an on-field capacity.
(b) The NRL acknowledges the PRLMO as a bargaining representative of a
number of Match Officials covered by this Agreement.
5. Types of Employment
5.1 Types of Employment
Match Officials will be engaged on one of the following bases:
(a) as a Full Time Referee; or
(b) as a Casual Match Official.
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 Refereee 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.
…
(e) The NRL will maintain a list of all Full Time Referees
(Emphasis added)
[2021] FWC 6282
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…
7. Appointment to a tier
(a) The NRL will appoint all Full Time Referees to one of the following tiers:
(i) Tier 1;
(ii) Tier 2;
(iii)Tier 3;
(iv) Tier 4; or
(v) Tier 5.
(b) The appointment of a Full Time Referee to a relevant tier will be used to
determine the base salary of each Full Time Referee under this
Agreement.
(c) The NRL undertakes that:
(i) no less than 30% of the total number of Full Time Referees will be
allocated across Tier 1 and Tier 2 each year;
(ii) no less than 30% of the total number Full Time Referees will be
allocated to Tier 3 each year;
(iii)all remaining Full Time Referees will be allocated across Tier 4
and Tier 5 each year;
(iv) a Full Time Referee will not be moved into Tier 5 from a higher
tier (eg. a Full Time Referee will not move from Tier 4 to Tier 5)
and the maximum length of time that a Full Time Referee can
remain in Tier 5 is three years.
(d) Appointment of a Full Time Referee to a tier is at the sole discretion of the
NRL (including determining whether Full Time Referees are appointed to higher
or lower tiers or remain at the same tier).
…
22a. Performance Review
By no later than April 2019, the NRL will establish a documented monthly performance
review process for Full Time Referees. The NRL will consult with Match Officials and
the PRLMO regarding the establishment of the performance review process. The NRL
may change the performance review process from time to time during the Term of this
[2021] FWC 6282
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Agreement. Where a change is made to the process the NRL will consult with Match
Officials. The Performance Review process is not incorporated into this Agreement.
23. Career transition payment
(a) Subject to clause 23(b) below and the terms of this clause, where a Full
Time Referee’s employment with the NRL terminates (except where the
referee’s employment is terminated by the NRL for serious misconduct),
he/she will be eligible to receive a Career Transition Payment calculated
in accordance with Schedule 2.
(b) A Full Time Referee who is employed by the NRL in another capacity
immediately
(c) following the termination of his/her Full Time Referee Employment
Contract is not eligible to receive a Career Transition Payment.
Schedule 2 – Career transition payment
(Full Time Referees only)
Period of continuous service as a Full Time Referee End of Career Payment
At least 5 years but less than 6 years Equivalent to 7 weeks’ base salary
At least 6 years but less than 7 years Equivalent to 8 weeks’ base salary
At least 7 years but less than 8 years Equivalent to 9 weeks’ base salary
At least 8 years but less than 9 years Equivalent to 10 weeks’ base salary
At least 9 years but less than 10 years Equivalent to 11 weeks’ base salary
At least 10 years Equivalent to 14 weeks’ base salary
The payment is capped at 14 weeks for service beyond 10 years of service as a Full
Time Referee.”
[46] The Applicant claimed that the Respondents never undertook the documented monthly
performance review as set out in the Agreement at clause 22a, although that position seemed to
alter during the Hearing to the position that the First Respondent only complied with the
monthly performance appraisals for the first three months of the Agreement.6 I accept, however,
that if deficiencies in compliance with Clause 22a of the Agreement did occur in relation to the
Applicant, such breaches were “technical,” resulting from:
(a) The Applicant not performing any appraisable duties after August 2019, due to
his not being involved in finals officiating;7
(b) The NRL competition being suspended after two rounds in 2020; and
(c) The Applicant ceasing to perform duties shortly after the resumption of the 2020
competition.
6 Transcript PN 1614.
7 Transcript PN 1615
[2021] FWC 6282
16
(d) The Contract
[47] The Applicant’s final contract of employment was dated 25 November 2019 (the
Contract). The relevant provisions of the Contract for the purposes of the Application are the
following:
“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:
*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 lease 2 years of continuous service with the NRL at the end of the day the notice is
given.
The period of continuous service with the Period* NRL at the end of the day the notice is given Not more than 1 year 1 week More than 1 year but not more than 3 2 weeks years More than 3 years but not more than 5 3 weeks years More than 5 years 4 weeks
[2021] FWC 6282
17
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 id separate and distinct from this Agreement.”
The Relevant Legislation
[48] Section 386 of the Act, which outlines the meaning of dismissal, provides:
Meaning of Dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified
period of time, for a specified task, or for the duration of a specified season, and
the employment has terminated at the end of the period, on completion of the
task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any
reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
[2021] FWC 6282
18
(i) the demotion does not involve a significant reduction in his or her
remuneration or duties; and
(ii) he or she remains employed with the employer that effected the
demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (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 this Part.
The Decision in Workpac Pty Ltd v Rossato
[49] On 4 August 2021, after receipt of the written submissions from the parties, and the
further hearing on 30 July 2021, the High Court delivered its judgment in WorkPac Pty Ltd v
Rossato & Ors (Workpac).8 Workpac considered the correct test for determining whether an
employee is a casual employee for the purposes of s.86 of the Act. That section provides that
casual employees are not entitled to annual leave under Pt 2-2 Div 6 of the Act. At the relevant
time the Act did not contain a definition of “casual employee.”
[50] The High Court held that a casual employee is an employee who has not been given a
firm advance commitment to ongoing work by the employer in the contract of employment.9
On the facts in Workpac, the High Court found that Mr Rossato’s contract of employment did
not contain a firm advance commitment to ongoing work. In the course of their reasons, the
plurality applied the following propositions as steps to reach this conclusion:
(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.”10 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.11 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.”12
(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.13 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
8 [2021] HCA 23.
9 Workpac at [55]-[67] per Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ; at [118] per Gagelar J.
10 Workpac, [57].
11 Workpac, [88] and [97].
12 Workpac, [62].
13 Workpac, [67] and [101].
[2021] FWC 6282
19
correct characterisation of the relationship.14 The express terms must be given effect
unless contrary to statute.15
(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.”16 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.”17 Even the doctrines of unconscionability or undue
influence do not operate to address any perceived unfairness arising from such
disparity.18
(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.”19
(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;”20 or
(ii) the nature of the relationship between the parties based on the “real
substance”, “practical reality” or the “true nature of the relationship,”21
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.”22
(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.23
14 Workpac, [81].
15 Workpac, [65].
16 Workpac, [58].
17 Workpac, [63].
18 Workpac, [63].
19 Workpac, [62].
20 Workpac, [57], see also [62]-[64].
21 Workpac, [98]-[99]
22 Workpac, [99].
23 Workpac, [65] and [105].
[2021] FWC 6282
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The Applicant’s Submissions
[51] The Applicant noted that while the Respondents assert the question of whether the First
Respondent dismissed the Applicant, as that term is defined in s.386 of the Act, should be
determined by a narrow enquiry as to the terms of Applicant’s written contract of employment,
the Applicant’s contention is that the Applicant’s contract of employment was not of the kind
the ending of which qualified for an exemption from what would otherwise be a dismissal in
section 386(2)(a). That is because the exemption provided in s.386(2)(a) applies to persons
employed “under a contract of employment for a specified period of time, for a specified task,
or for the duration of a specified season.”
[52] The inclusion of an unqualified right of early termination in the Applicant’s employment
contract had the result that the contract was not a contract of employment for a specified period
of time, for a specified task, or for the duration of a specified season. As the Applicant’s contract
does not qualify for an exemption under s.386(2)(a), and he did not resign for the purposes of
s.386(1)(b), the question of whether he was dismissed falls to be determined according to
s.386(1)(a).
[53] Thus the central question which should determine the Respondents’ jurisdictional
objection is whether the Applicant’s employment relationship with the First Respondent was
terminated on the First Respondent’s initiative.24
[54] The Applicant submitted that, as the Act is currently drafted, only contracts that conform
with the description in s.386(2) qualify for automatic exemption from possible dismissal at the
employer’s initiative. In Khayam v Navitas English Pty Ltd (Khayam),25 the Full Bench
considered that the mere existence of an outer limits contract did not determine the answer to
the question of whether it was the action of the employer which resulted in the termination of
the employment relationship. According to the Full Bench in Khayam, the existence of a
maximum term contract is no bar to an examination of the whole of the circumstances of the
employment to determine whether there has been termination at the employer’s initiative. The
Full Bench in Khayam said that if:
(a) the employment relationship and the outer limits contract are co-extensive; and
(b) there is genuine mutual agreement between the parties to an outer limits contract
reached at the time of entering into that contract that the employment relationship
will end at the time the contract comes to an end; and
(c) the contract is allowed to run its course as contemplated;
then the employment relationship will not have been terminated at the employer’s initiative
because the employment relationship has ended as mutually agreed in advance.
[55] Of the three considerations identified in the above paragraph, the Applicant submitted:
24 See for example, Mohazab v Dick Smith Electronics Pty Ltd (No2) (1995) 62 IR 200.
25 [2017] FWCFB 5162.
[2021] FWC 6282
21
(a) the employment relationship and the outer limits contract were not co-extensive,
because there was of ongoing employment absent some active step on the part of
the First Respondent; and
(b) there was not genuine mutual agreement between the parties to an outer limits
contract because the contracts were unilateral offerings of the First Respondent, not
the subject of negotiation; and
(c) the contract was not allowed to run its course as contemplated, and the First
Respondent took active steps to initiate the termination of the Applicant’s
employment. Those active steps were those referred to above under the sub-heading
“Contested Facts,” that I have generally found occurred.
The Respondents’ Submissions
[56] The Respondents noted that, for the purposes of the hearing of this matter, they accepted
the correctness of the Full Bench’s decision in Khayam. However, the Respondents reserved
the right to challenge the correctness of the principles outlined in Khayam on appeal or in later
proceedings.
[57] The Respondents noted that the Full Bench in Khayam 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 the 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 at the employer’s initiative.
[58] The Respondents submitted that the Full Bench’s use of the expression ‘genuine
agreement’ must be understood in the context of its statement later in the same paragraph [at
75](4), as being used in contradistinction to a time-limited contract that “does not in truth
represent an agreement that the employment relationship will end at a particular time.” The
words “does not in truth” suggest that the time-limited contract is a sham because it does not
reflect the actual manner in which the parties conducted themselves in the course of the
employment relationship and is intended to disguise the true legal status or effect of the
arrangements.26 The basis for a sham is that the real character and purpose of the arrangements
were illegitimate in seeking to deceive and are thus devoid of legal content.27
[59] The Respondent submitted that none of the authorities cited in Khayam suggest that the
absence of a ‘genuine agreement’ arises because of an inequality of bargaining power between
the parties and that the contract has been unilaterally imposed without negotiation. Even if the
contracts are standard form contracts of adhesion presented on a take-it-or-leave-it basis, unless
one of the relevant factors that may vitiate an otherwise validly formed contract exists as set
out at Khayam at [75](5) such as misrepresentation, unconscionable dealing, duress, undue
26 Sharment Pty Ltd v Official Trustee in Bankruptcy (1988) 82 ALR 530 at 537.
27 Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 Ff R 174 [109] - [117], [121].
[2021] FWC 6282
22
influence, and their statutory equivalents (such as the prohibitions on misleading and deceptive
conduct and unconscionable conduct), then the contract is considered to have been voluntarily
and genuinely made and therefore valid and enforceable.28
[60] The reference to ‘genuine agreement’ in Khayam must be understood as being consistent
with the general law and not creating a freestanding mechanism to invalidate otherwise validly
made contracts between an employer and employee by reference to an ideal of the need for
good faith bargaining or the existence of a parity of bargaining power before a valid contract
can be made.29 Each of the Applicant’s maximum term contracts stated in clear and
unambiguous terms that the contracts operated for a specified period unless terminated earlier
in accordance with the contract. The employment relationship and each of the maximum term
contracts between the First Respondent and the Applicant were co-extensive in that there were
maximum term contracts in place covering the whole of Mr Alouani-Roby’s employment
relationship.
[61] The Respondents submitted that, even assuming that a genuine agreement requires
negotiation between the parties in equal positions of power and bargaining in good faith, the
Contract was made against the background of enterprise bargaining negotiations where the
requirements of a genuine agreement were satisfied based on that more liberal definition.
[62] The Respondents noted that the use of maximum term contracts was a long-standing
feature of the employment relationship between the First Respondent, the Applicant, and other
match officials, as reflected in the unregistered and registered collective arrangements
negotiated between the First Respondent and the PRLMO on behalf of match officials. The use
of maximum term contracts to engage its match officials is endorsed through its recognition in
the previous unregistered agreement and the Agreement. As maximum term contracts are
prescribed as the sole basis for the engagement of full-time match referees under the
Agreement, it follows that there is an implied prohibition in the Agreement forbidding the
engagement of full-time referees under different types of employment except by a maximum
term contract. The engagement of match officials under a type of employment agreement other
than a maximum term contract would be contrary to clause 5.2 of the Agreement and would
contravene s.50 of the Act.
[63] The Respondents also noted that the Agreement provides for a ‘career transition
payment’ where a full-time match official’s employment terminates with the First Respondent
(except for serious misconduct). The First Respondent submitted that bargaining for the
inclusion of the career transitional payment implicitly recognised that the careers of match
officials are not indefinite and, unless a further contract is offered, then match officials will
need to seek employment elsewhere. The use of maximum term contracts is appropriate in the
relevant field of employment of elite professional sports, and there is nothing in the contracts
of employment that have the purpose of frustrating the purposes or operation of the Act or
preventing access to the courts.
28 John Dorahy's Fitness Centre Pty Ltd v Buchanan [1996] NSWSC 628; Australian Securities and Investments Commission
v Australia and New Zealand Banking Group Limited (No 3) [2020] FCA 1421 at [17] and [44]; Dialogue Consulting Pty
Ltd v Instagram, Inc [2020] FCA 1846 at [238]; Epic Games, Inc v Apple Inc (Stay Application) [2021] FCA 338 at [14]-
[17].
29 Nasr v Mondelez Australia Pty Ltd [2021] FWC 2802 at [57]- [63].
[2021] FWC 6282
23
[64] The Respondents submitted that it is misconceived for the Applicant to claim 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. The Applicant claims that the alleged adverse action
occurred during the course of his employment. He is still entitled to make claims that the First
Respondent 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.
[65] Finally, the Respondents denied that the Applicant was unfairly targeted for removal
and the Contract was not allowed to ‘run its course’ by reaching the end of its maximum term.
Insofar as the Applicant relies on conduct predating the making of the Contract on 28 November
2019, it cannot be relevant to the termination of the employment relationship as it is illogical
that an employer’s conduct which occurred before the parties entered into the last contract
initiated the termination of a contract that was yet come into existence. The First Respondent
made the decision not to renew the Applicant’s maximum term contract at the end of 2019, after
an extensive evaluation and consultation process amongst relevant officials, which found that
there were up-and-coming match officials who deserved a place in the elite squad ahead of the
Applicant and so he should not be offered further employment. The First Respondent did,
however, decide to offer the Applicant a final maximum term contract of 12 months for the
2020 NRL season so that the Applicant was not taken by surprise by the end of his tenure as
part of the Elite Squad.
The Applicant’s Reply Submission
[66] The Applicant submitted that the Respondents’ Submissions were underpinned by a
fundamental distortion of what was decided by the Full bench in Khayam and continued to
misrepresent the manner in which maximum term contracts are utilised by the First Respondent
as a matter of practical reality.
[67] The Applicant submitted it is clear from the manner in which the maximum term
contracts operated in practice that the Applicant’s employment relationship with the First
Respondent was not coextensive with the last of his contracts. If it is determined that the
employment relationship was not coextensive with the last of his contracts, the analysis then
moves on to paragraph [75](2) and paragraph [75](3) of Khayam, and the concept of
“termination at the initiative of the employer” to see if what has occurred satisfies that test.
[68] 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. The Applicant submitted such enquiry would result in a finding of termination at
the initiative of the Employer. The alleged “genuine agreement” asserted by the Respondents
has no work to do and does not undo that conclusion.
[69] Regarding the alleged misrepresentation of the manner in which maximum term
contracts are utilised, the Applicant submitted the Respondents’ position was undermined by
the lack of rigour in the determination, assessment or documentation of the performance data
of match officials generally, and the Applicant in particular. The asserted legitimate purpose in
using maximum term contracts cannot be achieved in the absence of such performance data.
[2021] FWC 6282
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Further, not only was performance data not objectively determined, assessed or documented in
accordance with the Agreement in relation to Applicant, but the performance data of Applicant
was actively manipulated by Second Respondent to support the unfair treatment of the
Applicant.
[70] While the unregistered and registered industrial agreements provide for the use of
maximum term contracts, they do not dictate how those maximum term contracts are utilised
in practice. The industrial agreements do not endorse the use of maximum term agreements in
a particular manner with regard to the employment relationship.
The Respondents’ WorkPac Submission
[71] The Respondents contended that the High Court’s approach in Workpac 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 Act
supports their submission that the parties had entered into a genuine agreement in the sense
expressed in Khayam.
[72] The nature of the employment relationship between an employer and an employee is to
be determined by reference to the terms and conditions of employment contained in the written
contract of employment and the adherence of the parties to the contract. A maximum term
contract is a type of employment relationship. Clause 2 and item 3 of the Contract define the
nature of the employment relationship as a maximum term contract which ends upon its expiry
on 30 November 2020. The meaning and operation of these express terms of the contract are
clear on the plain and ordinary language used. Moreover, the written contract constituted “the
entire agreement between the parties” and “any variation must be in writing and executed by
all the parties” (cl 17).
[73] The Respondents submitted that the High Court in Workpac makes it clear that these
written contractual terms should be given their full force and effect in defining the character of
the employment relationship. Once this approach is adopted, then it must follow that the
Applicant’s employment ended by expiry of the maximum term on 30 November 2020 and not
at the initiative of the First Respondent. Further, the clear effect of Workpac is to obliterate the
Applicant’s central contention that the terms of the Contract should not be accorded its legal
effect based on its plain and ordinary meaning. The High Court rejected the contentions the
Applicant seeks to advance that the express terms of the Contract be disregarded, and that it be
reshaped or recast to address the perceived unfairness resulting from a disparity of bargaining
power, to reflect notions of industrial justice, to accommodate the subjective expectations or
understandings of one or both parties, or be varied by the alleged practical reality of the
relationship.
The Applicant’s Workpac Submission
[74] The Applicant submitted that much of what the High Court found in Workpac about
what was relevant to its enquiry regarding the characterisation of Mr Rossato’s employment
must be understood in light of the particular determinative feature on which the High Court
settled. The issue being determined in WorkPac was one which, because of its particular nature,
fell to be determined by the existence or otherwise of binding obligations between the parties.
[2021] FWC 6282
25
The source of those binding obligations was the contract between Robert Rossato and WorkPac.
Mr Rossato did not rely on any non-contractual aspects of his employment relationship to
establish a firm advance commitment as to the duration of his employment.
[75] Workpac was a decision concerning contractual obligations which did not involve the
need to consider the distinction between the contract of employment and the employment
relationship, or considerations relevant to the characterisation of how an employment
relationship came to an end. The determination of the jurisdictional objection raised by the
Respondents in response to the Application, in contrast, is all about the employment
relationship and the process by which it ended.
[76] The Applicant submitted that the High Court should not be taken to have said that
employers and employees are free to avoid the protections provided for in the Act by the
mechanism of contract, or that the statutory framework applicable to the employment contains
no constraints on the arrangements that can be agreed between the parties. The Applicant does
not advance as a principal contention, or at all, that the Contract was not a “genuine contract.”
The Applicant says that the maximum term contract does not, in the words of the majority in
Khayam “reflect a genuine agreement on the part of the employer and employee that the
employment relationship will not continue after a specified date.”30
[77] Whether the contract reflects a genuine agreement on this particular matter is not
equivalent to the question of whether or not the contract itself is “genuine.” The Applicant does
say that there was no genuine agreement that the employment relationship would not continue
after a specified date, and it is not necessary to “displace the written contract” as claimed in the
Respondents’ WorkPac Submissions. The written contract is not determinative of the question
of whether it was the actions of the Respondents which were the principal contributing factor
which resulted in the termination of the employment relationship.
[78] The Applicant submitted that the Commission should have regard to the practical reality
of the situation and the way that the parties conducted themselves in practice. Nothing in the
WorkPac prevents this approach. This is so because the High Court in WorkPac was involved
in an entirely different exercise and one to which construing the contract according to orthodox
contractual principles was central. The part played by the express written terms of the contract
of employment in the resolution of the issue to be determined in WorkPac is not comparable
with the part played by the Contract in determining whether Applicant was dismissed for the
purposes of s.386(1)(a) of the Act.
Khayam and Other Referenced Authorities
[79] In Khayam the Full Bench of the Commission considered the issue of whether there can
be termination at the initiative of an employer where a fixed term contract expires. The decision
particularly concerned the concept of a “maximum term” contract or “outer limit” contract,
namely one with a nominated expiry date but with a right to terminate during the term. It
considered the question of whether the earlier Full Bench decision of Department of Justice v
Lunn, 31 (Lunn) was correctly decided.
30 Khayam at [75(4)].
31 (2006) 158 IR 410.
[2021] FWC 6282
26
[80] The parties accepted the correctness of Khayam for the purposes of the Application,
though as noted the Respondents reserved the right to challenge the correctness of the principles
outlined in Khayam on appeal or in later proceedings.
[81] Mr Khayam was employed by Navitas as a casual employee to perform teaching
services from 2005 to 2012. On 14 April 2012 Mr Khayam was offered, by letter of offer,
employment as a “fixed-term teacher” until 30 June 2013. The letter provided that either party
could terminate the employment by giving 4 weeks' written notice. Mr Khayam accepted that
offer. After the completion of that period of employment, Mr Khayam was offered and accepted
employment on substantially the same terms for the period from 1 July 2013 to 30 June 2014.
In June 2014, Mr Khayam was initially told his contract would not be “renewed” because his
administrative work had been unsatisfactory. However, after further discussions Mr Khayam
was then offered, and accepted, another employment contract for the period 1 July 2014 to
30 June 2016. The letter of offer for this last period of employment relevantly stated:
“Dear Saeid,
I am pleased to offer you fixed-term, Full-Time employment as a Teacher with Navitas
English Pty Ltd from 1st July 2014 to 20 June 2016 (The Expiry Date). Your employment
will terminate automatically on the Expiry Date, unless it is terminated earlier by either
party.
…
Either party may terminate this contract of employment at any time by providing 4
weeks' written notice, or in the case of Navitas English, by providing 4 weeks' pay in
lieu of Notice. If you fail to give 4 weeks written notice of your termination Navitas
English may withhold monies due to you on termination, the withheld amount being
equivalent to your normal pay for the shortfall period. However, Navitas English may
end your employment at any time and without notice because of any serious misconduct
by you; if you are charged with any criminal offence which in the reasonable opinion of
Navitas English brings you or Navitas English into disrepute; if you are continually or
significantly absent or demonstrate incompetence with regard to the performance of
your duties during this appointment; or if you are continually or significantly neglectful
of your duties during this appointment … ”
[82] At the end of the term of the last of those contracts, Navitas determined not to offer
Mr Khayam a further contract due to concerns it had regarding his performance. Mr Khayam
contended that this constituted a dismissal within the meaning of s 386(1)(a) of the Act, as his
employment had been terminated at the initiative of the employer. Navitas contended that there
had been no dismissal, and that the Mr Khayam’s employment contract had terminated simply
through the effluxion of time.
[83] In Khayam the majority of the Full Bench held:32
“that the mere fact that an employer has decided not to offer a new contract of
employment at the end of a time-limited contract which represents a genuine agreement
32 Khayam at [72].
[2021] FWC 6282
27
by the parties that the employment relationship should come to an end not later than a
specified date will not by itself constitute a termination at the initiative of the employer.”
[84] The majority of the Full Bench then set out the following principles which it found
applied to the interpretation of section 386(1)(a) of the Act:33
“Having regard to these propositions and the court decisions to which we have earlier
referred, we consider that s 386(1)(a) should be interpreted and applied as follows:
(1) The analysis of whether there has been a termination at the initiative of the employer
for the purpose of s 386(1)(a) is to be conducted by reference to termination of the
employment relationship, not by reference to the termination of the contract of
employment operative immediately before the cessation of the employment. This
distinction is important in the case of an employment relationship made up of a sequence
of time-limited contracts of employment, where the termination has occurred at the end
of the term of the last of those contracts. In that situation, the analysis may, depending
on the facts, require consideration of the circumstances of the entire employment
relationship, not merely the terms of the final employment contract.
(2) As stated in Mohazab, the expression “termination at the initiative of the employer”
is a reference to a termination that is brought about by an employer and which is not
agreed to by the employee. 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
consequentially, in the termination of the employment.
(3) In Mahony v White the Full Court stated that a termination of employment may be
done at the initiative of the employer even though it was not done by the employer. In
circumstances where the parties to a time-limited contract have agreed that their
contract will expire on a specified date but have not agreed on the termination of their
employment relationship, it may be the case that the termination of employment is
effected by the expiry of the contract, but that does not exclude the possibility that the
termination of employment relationship occurred at the initiative of the employer - that
is, as a result of some decision or act on the part of the employer that brought about
that outcome.
(4) Where the terms of an operative time-limited contract reflect a genuine agreement
on the part of the employer and employee that the employment relationship will not
continue after a specified date and the employment relationship comes to an end on the
specified date, then, absent a vitiating or other factor of the type to which we refer in
(5) below, the employment relationship will have been terminated by reason of the
agreement between the parties and there will be no termination at the initiative of the
employer. Further, in those circumstances a decision by the employer not to offer any
further contract of employment will not be relevant to the question of whether there was
a termination of employment at the initiative of the employment (sic.). The decision not
to offer further employment is separate and distinct from the earlier agreement between
33 Khayam at [75].
[2021] FWC 6282
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the parties to end the employment relationship on a particular date (Griffin/Fisher).
However if the time-limited contract does not in truth represent an agreement that the
employment relationship will end at a particular time (as, for example, in D’Lima), the
decision not to offer a further contract will be one of the factual matters to be considered
in determining whether an action on the part of the employer was the principal
contributing factor which results, directly or consequentially, in the termination of the
employment.
(5) In some cases it will be necessary to go further than just examining the terms of any
contract in which the parties have ostensibly agreed to terminate the employment
relationship at a particular time. It is not necessary or appropriate that we attempt to
identify exhaustively all relevant matters, but the authorities to which we have earlier
referred indicate that the following are likely to be relevant and may in some cases be
determinative:
(a) The time-limited contract itself may be vitiated by one of the recognised
categories by which the law excuses parties from performance of a contract. The
categories potentially relevant in an employment context include the following:
• the employee entered into the contract as a result of misrepresentation
or misleading conduct by the employer;
• the employee entered into the contract as a result of a serious mistake
about its contents or subject matter;
• there has been unconscionable conduct associated with the making of
the contract, which may relevantly include that the employer took
advantage of a disability affecting the employee such as lack of education,
lack of information, lack of independent advice or illiteracy;
• the employment contract was entered into by the employee under duress
or coercion (which might include the types of coercion prohibited in ss
343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of
the employer;
• the employee lacked the legal capacity to make the contract; or
• the contract was a sham in the sense that it was not intended by the
parties to give legal effect to its apparent terms or in the broader sense
dealt with in Pt 3-1 Div 6 of the FW Act. If any of the above applies there
will be no legally effective time-limit on the employment (Fisher).
(b) The time-limited employment contract may be illegal or contrary to public
policy (for example, it contains relevantly objectionable terms as defined in s 12
of the FW Act or has the purpose of frustrating the policy or operation of the FW
Act or preventing access to the Commission’s unfair dismissal jurisdiction).
Whether the employment was constituted by successive short term contracts or
the use of time-limited contracts was appropriate in the relevant field of
[2021] FWC 6282
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employment may be some of the considerations relevant to an examination of the
employer’s purpose for entering into such contracts (D’Lima/Fisher).
(c) The contract may have been varied, replaced or abandoned by way of a
separate agreement, whether in writing and/or orally, such that its ostensible
time limit no longer applies (Fisher).
(d) The employment contract may not be limited to the terms of a written
document and may, for example, be one of a series of standard-form contracts
which operated for administrative convenience and did not represent the reality
or the totality of the terms of the employment relationship (Fisher/D’Lima).
(e) During the term of the employment relationship the employer may have
engaged in conduct or made representations (for example, representing to the
employee that the employment will continue subject to conduct and performance
notwithstanding a contractual time limit on the employment) which provide a
proper legal foundation to prevent the employer from relying upon the terms of
the contract as the means by which the employment relationship has been
terminated (Fisher).
(f) The terms of the contract time-limiting the employment may be inconsistent
with the terms of an award or enterprise agreement given effect by the FW Act
which prohibit or regulate fixed-term employment, in which case the terms of
the award or agreement will prevail over the contract (Fisher).”
[85] The Full Bench majority relied particularly on the decisions in D'Lima v Board of
Management, Princess Margaret Hospital for Children,34 (D’Lima), Fisher v Edith Cowan
University (No 2)35 (Fisher) and Griffin v Australian Postal Corp,36 (Griffin), (dated 25 August
1995, 2 April 1997 and 1 June 1998 respectively), in formulating their interpretation of
s.386(1)(a). The facts and conclusions of those decisions are instructive in understanding the
interpretation outlined by the Full Bench majority, notwithstanding that they involved previous
legislative incarnations.
[86] D’Lima involved a cleaner employed by a hospital for a period of about a year and a
half pursuant to a series of fixed term employment contracts each for a period of about four
weeks. Her employment terminated at the end of the term of the last contract, for the reason
that the employer was dissatisfied with her performance. The evidence before the Industrial
Relations Court (Marshall J) was that the practice of signing further contracts for alleged
periods of temporary employment had been one of mere administrative convenience, and could
not compel the Court to ignore the weight of strong countervailing factors indicating a
continuous employment relationship. The Court determined that there had been a termination
at the initiative of the employer.
34 (1995) 64 IR 19.
35 (1997) 72 IR 464.
36 (1998) 155 ALR 369.
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[87] Fisher involved an application by an academic for relief from termination of
employment in circumstances where the academic had been employed pursuant to three
successive annual contracts, and the employment terminated at the end of the third contract
after the academic was unsuccessful in a merit selection for a three-year appointment to the
same role. While at first instance a Judicial Registrar had found termination at the initiative of
the employer, on review before the Industrial Relations Court, Madgwick J reached the opposite
conclusion, which conclusion was affirmed on appeal by the Full Court.
[88] While the Full Court eventually found that the employment relationship was as set out
in the employment contract, and it was open to Madgwick J to conclude that the termination of
employment had been effected by the expiration of the period specified in the contract and not
at the initiative of the University, the Full Court acknowledged that different factual
circumstances could result in a different conclusion regarding termination at the initiative of
the employer. The Full Court observed:37
“If an industrial dispute has been in part resolved by an award made under, and given
force by, the Act and the award prescribes the minimum conditions to apply in an
employment relationship and regulates or prevents the use of fixed-term employment
contracts, the provisions of that award would be part of the material on which a finding
of fact may be made that an employment relationship exists beyond the term fixed by an
employment contract made between an employer and an employee bound by the award.
(See Byrne per Brennan CJ, Dawson, Toohey JJ at 442.) In such a case the statutory
remedies provided by Div 3 would apply to a termination of an employment relationship
governed by the award, if the termination is effected by reliance by the employer,
contrary to the terms of the award, on the expiration of the period for employment
specified in the contract as the occurrence that has terminated the employment
relationship. In such a circumstance the employee would not be restricted to the
remedies provided by the Act for the breach of an award, it being clear in its terms that
Div 3 provides a right to apply for a remedy in such a circumstance. It was not submitted
to his Honour that, as between Ms Fisher and the University, the use of an employment
contract for a fixed term was controlled or prevented by the provisions of an award.
There may also be termination of the employment at the initiative of the employer and
not pursuant to the mutual will of the parties if the terms of a fixed period contract have
been varied in the course of performance of the contract, or the contract has been
abandoned and replaced by another agreement, or the employer has engaged in conduct
or representations which estop the employer from relying upon the terms of the contract
as the means by which the employment relationship has been terminated. In those
circumstances an employee may show that reliance by the employer upon the purported
effluxion of a period of time for employment is, in fact, termination of the employment
at the employer's initiative.”
and
“His Honour was aware that on different facts a contrary conclusion could have been
reached. His Honour referred to a fixed-term contract that was “unreal,
37 72 IR 464 at 470 and 472.
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unconscientious or oppressive as against an employee of any special vulnerability” as
an example of termination of employment at the expiration of a fixed term as termination
at the employer's initiative, and also acknowledged that such a conclusion may follow
in a case in which it was shown that fixed-term contracts were not regarded as
appropriate in the relevant field of employment and where there was continuation of the
employee's position after termination of the employee's employment. It follows that the
particular facts of other cases, possibly including cases of academic appointments made
by successive short term contracts of employment, may support a determination that a
termination of employment was at the initiative of the employer.”
[89] Griffin concerned a claim by an employee that he had been unlawfully terminated when
his employment with Australia Post ceased on his 65th birthday. Australia Post argued that the
termination was not at its initiative, and relied on an award which stated that an officer could
be employed to the age of 65 and, in the alternative, on two determinations which had the effect
of imposing as a term of the employee's employment the requirement that upon attaining the
age of 65 years the employee would cease to be an officer of Australia Post. There was no
dispute that Australia Post had the ability to offer further, albeit temporary, employment to an
employee after their 65th birthday. The majority (Spender and von Doussa JJ, Marshall J
dissenting) held that the employee's employment was not terminated at his employer's initiative.
Instead, they concluded that his employment came to an end by operation of law, namely by
force of the age term imposed on his employment by the award and determinations, or
alternatively by the determinations.
[90] Griffin is seen to illustrate the position that the mere fact that an employer has decided
not to offer a new contract of employment at the end of a time-limited contract, which represents
a genuine agreement by the parties that the employment relationship should come to an end not
later than a specified date, will not by itself constitute a termination at the initiative of the
employer.
Consideration
(a) The Issue of Jurisdiction
[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).38
[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
38 [2020] FCAFC 152 at [74]-[75].
[2021] FWC 6282
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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.39
[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.
(b) The Contract
[94] It is uncontested that the Applicant was employed on a series of five maximum term
contracts, four of which contracts were of twelve months duration, and one for eighteen months
duration. It is also uncontested that the Applicant’s employment ended concurrently with the
expiry of the Contract. It is therefore necessary to ascertain the terms of the Contract according
to their plain and ordinary meaning to determine the nature of the relationship between the
parties.40
[95] As the plurality of the High Court found in Rossato:41
“A court can determine the character of a legal relationship between the parties only
by reference to the legal rights and obligations which constitute that relationship. The
search for the existence or otherwise of a "firm advance commitment" must be for
enforceable terms, and not unenforceable expectations or understandings that might be
said to reflect the manner in which the parties performed their agreement.”
And:
“Three additional points may be made here. First, while mutual undertakings may not
always be express, where there are express terms of the contract between the parties,
they must be given effect unless they are contrary to statute. Secondly, if the mutual
undertakings are said to be implied in what has been agreed, they cannot be inconsistent
with the express terms of the contract. Thirdly, if the mutual undertakings are to be
inferred from conduct, then they may take effect as contractual variations. It is because
contracts, whether as originally agreed or as varied, create binding obligations that
they constitute "firm advance commitments."
[96] The Contract contained provisions that outlined the legal relationship between the
parties. It specifically stated that it was for a maximum term commencing on 1 December 2019
and concluding on 30 November 2020, unless terminated earlier in accordance with the
Contract. The Contract also specified that the Applicant had no entitlement to be appointed to
referee a fixture in any particular week. The Contract further provided that it constituted the
entire agreement between the parties, and required any such variation to be executed in writing.
39 Section 370(a) of the Act.
40 Workpac at [88] and [97].
41 Workpac, at [57] and [65].
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[97] The Agreement also contained provisions reflective of the employment of referees
pursuant to maximum term contracts. Clauses 5.2(b) and (c) specifically provide:
“(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.”
[98] Clause 23 of the Agreement outlines a career transition payment that is payable where
a Full Time Referee’s employment terminates other than for misconduct. No entitlement to a
payment exists until a Referee has at least 5 years service, where an entitlement to 7 weeks base
salary accrues. The scale of payments increases until a Referee has up to at least 10 years of
service, where an entitlement to 14 weeks base salary accrues.
[99] It is clear that the parties comprehensively committed the terms of the employment
relationship to the written form of the Contract, and that the Contract is a maximum term
commencing on 1 December 2019 and concluding on 30 November 2020. The terms of the
Contract are clear and unambiguous. Further, insofar as regard is had to the terms of Agreement
which regulates the employment relationship between the parties, the Agreement confirms the
correct characterisation of the relationship is that of a maximum term contract.42 The express
terms of the Contract must be given effect unless contrary to statute.43
(c) Khayam – Genuine Agreement
[100] I also consider that the Contract represented a “genuine agreement” between the parties,
as that term is used in Khayam,44 that the employment relationship would not continue beyond
30 November 2020. The High Court’s decision in Workpac has reinforced the primacy of the
enforceable terms agreed between the parties in a contract.
[101] The Applicant, in asserting the lack of “genuine mutual agreement” (with “mutual”
having been added by the Applicant to the Full Bench’s phraseology), submitted that the
maximum term contracts were unilateral offerings of the First Respondent, they were not
subject of negotiation, nor were their terms the result of genuine mutual agreement between the
match officials to whom they were offered and the First Respondent.
[102] The High Court made clear in Workpac, however, that 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.”45 Nonetheless, I do not consider that the alleged
unfairness or disparity of bargaining power existed between the parties. The Applicant
42 Workpac at [81].
43 Workpac at [65].
44 Khayam at [75(4)].
45 Workpac at [63].
[2021] FWC 6282
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understood that one or two year contracts would be given by the First Respondent,46 the
Applicant signed contracts acknowledging the terms of the offers and his acceptance,47 and
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.48 Additionally, the Applicant 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.49 The Agreement prescribed the use of
maximum term contracts.
[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 added).
(d) Termination at the First Respondent’s Initiative
[104] The Applicant submitted that the First Respondent nonetheless engaged in a process aimed
at unilaterally ending its employment relationship with the Applicant before the last contract and
regardless of its terms, and the actions on the part of the First and Second Respondents were the
principal contributing factor which resulted in the termination of the employment.
[105] The Applicant’s submission is in large part illogical. The conduct relied upon as
constituting action by the First Respondent being the principal contributing factor which
resulted, directly or consequentially, in the Applicant’s termination was that which I have found
occurred above under the heading “Contested Facts.” Most of those events, particularly those
at paragraphs [22] to [25], occurred in the six-month period prior to the Applicant receiving and
signing the Contract on 28 November 2019. I do not accept that such conduct occurring prior
to the execution of the Contract could be seen in any way as constituting an act on the part of
the First or Second Respondents that bought about the end of the employment relationship. To
the contrary, the execution of the Contract was an act that supported the continuation of the
employment relationship.
[106] As to the acts relied upon by the Applicant that occurred after the execution of the
Contract that allegedly bought about the end of the employment relationship, I consider the
impact of those acts must be considered within the prism of the meeting that occurred on 9
October 2019, between the Applicant, the Second Respondent and Ms Rynne. I have accepted
that the Second Respondent said, “we have had meetings about your improvement plan. If we
are in the same position this time next year, then this could be your last contract. Here is a one-
year contract.” I further note the Second Respondent claimed, but I did not accept, that in this
meeting he said to the Applicant “this is likely to be your last contract.” However, whether it
was put to the Applicant that it “could be” or would “likely be” the Applicant’s last contract,
46 Transcript PN 808.
47 Transcript PN 844.
48 Transcript PN 891 and 892.
49 Transcript PN 1063.
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such notification was not an act directed at the termination of the Applicant’s employment as
submitted by the Applicant. Rather, the First Respondent was seeking to keep the Applicant
appraised of the likelihood or not of the continuation of the employment relationship.
[107] It was, in fact, a positive result for the Applicant that he received the Contract because
an extensive evaluation and consultation process amongst relevant NRL officials in late 2019
had determined that the Applicant should not be offered further employment as there were up-
and-coming match officials who deserved a place in the elite squad ahead of the Applicant.
However, the First Respondent decided to offer the Applicant a final maximum term contract
of 12 months for the 2020 NRL season so that he was not taken by surprise by the end of his
tenure as part of the Elite Squad. I further note that the decision to offer the Contract to the
Applicant had a material financial benefit to the Applicant as his period of service, that
commenced on 25 March 2015, exceeded five years of service during the Contract and so the
Applicant gained an entitlement to the Career Transition Payment pursuant to the Agreement.
[108] I do not consider that any of the acts referred to by the Applicant that occurred during
the Contract could be seen as constituting and act on the part of the First or Second Respondents
that bought about the end of the employment relationship. In the Applicant’s Reply Submission,
the “most significant active step” in that period was identified as being that on 9 June 2020, the
Second Respondent told the Applicant that he would not be receiving a renewal of his
employment contract for the 2021 NRL Season. The genesis of that communication was,
however, that the Applicant had 35 minutes prior advised the Second Respondent that he was
meeting his bank and real estate agents to confirm the purchase of a new residence in Australia.
The Second Respondent acted promptly to provide the Applicant with a clear statement of his
future in order to assist the Applicant in his financial dealings. There was no obligation upon
the Second Respondent to do so, and it is clear that the Applicant had received a negative
prognosis regarding the employment relationship on 9 October 2019, but the Second
Respondent clearly sought that the Applicant have full knowledge of the cessation of the
employment relationship prior to his taking on financial encumbrances.
(e) Khayam – Vitiating Factors
[109] Unless one of the relevant factors that may vitiate an otherwise validly formed contract
exists as set out at Khayam,50 such as misrepresentation, unconscionable dealing, duress, undue
influence, and their statutory equivalents (such as the prohibitions on misleading and deceptive
conduct and unconscionable conduct), then the contract is considered to have been voluntarily
and genuinely made and, therefore, valid and enforceable.
[110] The Applicant submits that the First Respondent cannot rely on any agreement between
the parties as to when the employment relationship will end, having regard to the vitiating
factors described in Kyayam at:
(a) Paragraph [75](5)(b) - The Contract being contrary to public policy, because, for
example, it has the purpose of frustrating the policy or operation of the Act or
because it prevents access to the jurisdiction of the Act; and
50 Khayam at [75](5).
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(b) Paragraph [75](5)(e) - During the term of the employment relationship the First
Respondent engaged in conduct or made representations (for example,
representing to the Applicant that the employment would continue subject to
conduct and performance notwithstanding a contractual time limit on the
employment) which provided a proper legal foundation to prevent the First
Respondent from relying upon the terms of the Contract as a means by which
the employment relationship terminated.
(i) Paragraph [75](5)(b) - The Contract being Contrary to Public Policy
[111] In Khayam, the Full Bench referred to contracts being illegal or contrary to public
policy. Examples given were contracts containing relevantly objectionable terms as defined in
s.12 of the Act, or having the purpose of frustrating the policy or operation of the Act, or
preventing access to the Commission’s unfair dismissal jurisdiction. The definition of
“objectionable term” as defined in s.12 of the Act, which provides:
"objectionable term" means a term that:
(a) requires, has the effect of requiring, or purports to require or have the effect of
requiring; or
(b) permits, has the effect of permitting, or purports to permit or have the effect of
permitting;
either of the following:
(c) a contravention of Part 3-1 (which deals with general protections);
(d) the payment of a bargaining services fee.”
[112] The Full Bench further noted that a consideration of the relevant field of employment
may disclose whether the use of time limited contracts was appropriate. I agree with the
Respondents’ submission that the First Respondent’s use of maximum term contracts is
appropriate in the relevant field of employment of elite professional sports. There are evident
genuine operational reasons relating to the First Respondent being required to engage full-time
match officials to officiate games so that games can be played at the highest level, in accordance
with the rules but at the same time remain an entertaining spectacle. 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 season. The First Respondent has a
legitimate purpose in using maximum term contracts for the engagement of its match officials.
[113] In Khayam, the Full Bench referenced D’Lima and Fisher. The facts in D’Lima,
involving a cleaner employed by a hospital for a period of about a year and a half pursuant to a
series of fixed term employment contracts each for a period of about four weeks, stands in stark
contrast to the matter at hand. While the Court in D’Lima found that the practice of signing
further contracts for alleged periods of temporary employment had been one of mere
administrative convenience, the same cannot be said in the circumstances of the NRL, where
[2021] FWC 6282
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the use of maximum term contracts for the engagement of match officials has a legitimate,
considered and understandable purpose.
[114] Fisher, as it relates to contracts being illegal or contrary to public policy, was the genesis
of the consideration of the relevant field of employment when considering whether fixed-term
contracts were regarded as appropriate or not. While s.386(3) of the Act specifically excludes
from the exception under s.386(2)(a) contracts whose substantial purpose is to avoid the
employer’s obligations regarding unfair dismissals, and contracts frustrating the policy and
objects of other parts of the Act would similarly be void as against public policy, I do not
consider the Contract or its predecessors had such purpose, substantial or otherwise. As I have
found above, the use of maximum term contracts for the engagement of match officials has a
legitimate, considered and understandable purpose.
[115] Contrary to the Applicant’s submission, there is nothing in the Contract, or its
predecessors, that has the purpose of frustrating the operation of the Act or preventing access
to the otherwise available jurisdiction. The exclusion of the jurisdiction arising in relation to
general protections contained in Pt 3-1 of the Act involving dismissal arises from the meaning
in the Act prescribed for “dismissal”51generally, and the exclusion contained at s.386(2)(a),
and not from the terms of the Contract.
[116] While s.386(3) of the Act specifically excludes from the exception under s.386(2)(a),
contracts whose substantial purpose is to avoid the employers obligations regarding unfair
dismissals, and contracts frustrating the policy and objects of other parts of the Act would
similarly be void as against public policy, I do not consider the Contract or its predecessors had
such purpose, substantial or otherwise. Indeed, the Contract does not preclude action in relation
to, or accountability for, unlawful conduct under Pt 3-1 of the Act. The Applicant acknowledges
that he is nonetheless entitled to make claims that the Respondents 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. In such proceedings,
the objects of the Act,52 will be satisfied, and the relevant matters that the Commission must
take into account,53 will be considered.
(ii) Paragraph [75](5)(e) – Conduct/Representations
[117] In Workpac, the High Court rejected the contention that the express terms of the
Contract could be disregarded to accommodate the subjective expectations or understandings
of one or both parties, or be varied by the alleged practical reality of the relationship. The High
Court held:54
“To insist upon binding contractual promises as reliable indicators of the true character
of the employment relationship is to recognise that it is the function of the courts to
enforce legal obligations, not to act as an industrial arbiter whose function is to
synthesise a new concord out of industrial differences. That it is no part of the judicial
51 Section 386 of the Act.
52 Section 336 of the Act.
53 Section 578 of the Act.
54 Workpac at [62] to [64].
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function to reshape or recast a contractual relationship in order to reflect a quasi-
legislative judgment as to the just settlement of an industrial dispute has been
emphatically the case in Australia at the federal level since the Boilermakers Case.
To insist that nothing less than binding contractual terms are apt to characterise the
legal relationship between employer and employee is also necessary in order to avoid
the descent into the obscurantism that would accompany acceptance of an invitation to
enforce "something more than an expectation" but less than a contractual obligation. It
is no part of the judicial function in relation to the construction of contracts to strain
language and legal concepts in order to moderate a perceived unfairness resulting from
a disparity in bargaining power between the parties so as to adjust their bargain. It has
rightly been said that it is not a legitimate role for a court to force upon the words of
the parties' bargain "a meaning which they cannot fairly bear [to] substitute for the
bargain actually made one which the court believes could better have been made". Even
the recognised doctrines of unconscionability or undue influence do not support such a
course; and in any event, neither Mr Rossato, nor any of the interveners, sought to
suggest that the doctrines of unconscionability or undue influence had any part to play
in the resolution of the present dispute.
Notwithstanding the express preference of White J for a contractual analysis that
establishes the parties' enforceable rights and duties at the commencement of the
employment, his Honour reasoned to his conclusion by reference to notions of
"underlying" and "unspoken mutual undertaking[s]" , shared "contemplation[s]",
"indication[s]" and "expectation[s]". None of these notions amounted to express
contractual terms; nor would any have satisfied the test for the implication of a term.
The deployment of these notions signals a departure from orthodox legal analysis.”
(Footnotes omitted)
[118] It is difficult to understand precisely the conduct or representations that the Applicant
alleges provide a proper legal foundation to prevent the First Respondent from relying upon the
terms of the Contract. In the Applicant’s Reply Submission, the following submission was
made:
“In reply the Applicant says this is putting the potential cleansing effect of a legitimate
purpose too highly. In any event, the NRL’s objective lack of diligence with regard to
performance assessment disentitles it from relying on such an aspirational but not
implemented purpose.
It may be the case as the Respondents’ state at paragraph [38] of the Respondents’
Closing Submissions that: “Every other major professional sport in the world uses fixed
term contracts to engage players and match officials.” However, it is not the case that
all other sporting organisations use fixed term contracts as a cover to avoid
accountability for unlawful treatment of their employees, in the manner in which the
NRL is attempting to do on this occasion.”
[119] In light of the above submissions, it would appear the Applicant refers to the conduct
which I have found occurred above under the heading “Contested Facts,” and the Applicant’s
[2021] FWC 6282
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assertion that the Respondents never undertook the documented monthly performance review
as set out in the Agreement at clause 22a, which I have not accepted as soundly based. Even
accepting the Applicant’s submissions at their highest, the conduct and failures relied upon by
the Applicant do not go anywhere near providing a proper foundation for the First Respondent
being prevented from relying on the express terms of the Contract.
Conclusion
[120] I find that the Applicant was engaged under a series of maximum term contracts based
on the genuine operational requirements of the First Respondent. I find that the terms of the
Contract reflected the genuine agreement of the parties that the employment relationship would
end upon the expiry of the Contract. I find that there are no vitiating factors as identified by the
Full Bench in Khayam applicable to the Applicant’s circumstances.
[121] Accordingly, I find that the employment relationship between the Applicant and the
First Respondent ended by the effluxion of time upon the expiry of the Contract. I therefore
find that the Applicant’s employment was not terminated on the initiative of the First
Respondent. The Applicant was therefore not dismissed pursuant to s. 386(1)(a) of the Act and
the Application must therefore be dismissed.
[122] The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Harmer, for the Applicant.
Mr Seck, for the Respondents.
Hearing details:
Sydney.
2021.
May 27 and 28, July 30.
FOR THE FAL WORT WORK COMMISSION THE SEAL OF THE
[2021] FWC 6282
40
Final written submissions:
2021.
September 8.
Printed by authority of the Commonwealth Government Printer
PR735559
