Federal Court of Australia

Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    Between February 2015 and November 2020, the appellant, Mr Alouani-Roby, worked for the first respondent (the “NRL”) as a professional rugby league umpire. He served pursuant to a series of consecutive contracts of employment, each of which ran for a stipulated term. In June 2020, he was informed that the NRL would not renew his tenure as an umpire after his then-extant contract came to an end in November 2020. That transpired and he has not worked as an NRL umpire since.

2    On 18 December 2020, Mr Alouani-Roby made an application to the fourth respondent (the “Commission”) under Pt 3-1 of the Fair Work Act 2009 (Cth) (the “FW Act”). By that application, he alleged that he had been “dismissed” from his employment with the first respondent in circumstances amounting to unlawful “adverse action”; and that the second and third respondents had been accessorily involved in that conduct. In order that he might commence court proceedings for remedies relating thereto, s 370 of the FW Act operated so as to require that he first obtain from the Commission a certificate issued under s 368(3)(a) of the FW Act. The Commission’s power to issue such a certificate turned, in part, upon Mr Alouani-Roby’s establishing that he had been “dismissed”, within the meaning given to that expression by s 386(1) of the FW Act.

3    In that endeavour, Mr Alouani-Roby was unsuccessful. By a decision dated 12 November 2021, Deputy President Cross of the Commission determined that his employment with the NRL had come to an end not as a consequence of dismissal but through the expiry of the term of his employment contract. As a result, no certificate under s 368(3)(a) of the FW Act was issued and Mr Alouani-Roby’s application to the Commission was dismissed.

4    Mr Alouani-Roby was granted permission to appeal from that ruling but a Full Bench of the Commission dismissed his appeal: Timothy Andrew Alouani-Roby v National Rugby League Limited & Ors [2022] FWCFB 171 (Catanzariti VP, Asbury and Bell DPP, and Mirabella C; hereafter, the “Full Bench Decision”). In short, it agreed that Mr Alouani-Roby’s employment with the NRL had terminated upon the expiry of the term for which his employment contract had provided and not as a result of his having been “dismissed” by the NRL.

5    Mr Alouani-Roby then made an application to this Court for judicial review of the Full Bench Decision. He alleged that the Full Bench Decision proceeded upon a misconstruction of the circumstances in which the FW Act recognises that a person has been “dismissed”; and that, in consequence, it was a product of jurisdictional error that the court ought to correct by means of prerogative relief.

6    That contention also failed and Mr Alouani-Roby’s application was dismissed: Alouani-Roby v National Rugby League Ltd [2024] FCA 12 (Raper J; hereafter, the “Primary Judgment”). By notice of appeal dated 14 February 2024, Mr Alouani-Roby appeals from the Primary Judgment. For the reasons that follow, the appeal should (and will) be dismissed.

The relevant statutory framework

7    Part 3-1 of the FW Act is entitled, “general protections”. Amongst other things, it prohibits employers from subjecting employees to “adverse action” for proscribed reasons. Relevantly for present purposes, adverse action is defined to include the termination of an employee’s employment by means of dismissal.

8    Section 340(1) of the FW Act prohibits (amongst other things) employers from subjecting employees to adverse action on account of their possession or exercise of “workplace right[s]”. For present purposes, it is unnecessary to particularise what does or does not constitute a workplace right; it suffices to observe that Mr Alouani-Roby contends that his career as an NRL umpire came to an end because he possessed and exercised rights of that nature.

9    Division 8 of Pt 3-1 of the FW Act is entitled, “Compliance”. It commences with Subdiv A, which is concerned with “Contraventions [of Pt 3-1] involving dismissal”. Section 365 contemplates that a person who alleges that he or she was dismissed from his or her employment in contravention of Pt 3-1 may “…apply to the [Commission] for the [Commission] to deal with the dispute.”

10    Section 368 of the FW Act addresses how the Commission might “deal with” such a dispute. Relevantly, it provides:

368 Dealing with a dismissal dispute (other than by arbitration)

(1)     If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).

Note:     The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.

(2)     Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).

Note:     For conferences, see section 592.

(3)     If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(a)     the FWC must issue a certificate to that effect; and

(b)     if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

(4)     A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.

11    The Commission is additionally empowered, with the parties’ consent, to “deal with” a dispute that is commenced by application under s 365 of the FW Act by exercising powers of arbitration: FW Act, s 369. Section 370 addresses what might transpire in the absence of such agreement:

370 Taking a dismissal dispute to court

A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(a)     both of the following apply:

(i)     the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii)     the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b)     the general protections court application includes an application for an interim injunction.

Note 1:        Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).

Note 2:     For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.

12    Section 12 of the FW Act defines what is meant by the term “dismissed”. It does so by engaging the more expansive definition of that term in s 386 of the FW Act. Section 386 forms part of Pt 3-2 of the FW Act, which is entitled “unfair dismissal”. Relevantly, it provides (and, at material times, provided) as follows, namely:

386 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

…

(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.

13    Section 578 of the FW Act assumes some—although, for reasons that will later become apparent, limited—significance to the present appeal. Relevantly, it provides (and provided) as follows, namely:

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a)     the objects of this Act, and any objects of the part of this Act; and

(b)     equity, good conscience and the merits of the matter; and

…

Background facts

14    The facts with which the present appeal engages are not materially in dispute. They were partly set out as follows (and without controversy) in Deputy President Cross’s decision (and later replicated verbatim in the Full Bench Decision):

[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:

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

15    The references to Mr Alouani-Roby’s “Tier” are references to the remuneration band pursuant to which he was paid.

16    It is common ground that Mr Alouani-Roby was told that he would not be offered—and, in fact, was not offered—a further contract after 30 November 2020. Mr Alouani-Roby attributes that decision to his possession and exercise of workplace rights; but, for present purposes, there is no need to delve into those reasons.

17    At the time that his tenure as an NRL referee ended, Mr Alouani-Roby’s employment was subject to the terms of the National Rugby League (Match Officials) Agreement 2019, an enterprise agreement in force pursuant to the provisions of Pt 2-4 of the FW Act (hereafter, the “EA”). Clause 5.2 of the EA provided as follows, namely:

5.2 Full Time Referees

(a)     A Full Time Referee is one designated as such by the NRL.

(b)     All Full Time Referees will be employed pursuant to a maximum-term Full Time Referee Employment Contract.

(c)     Any Full Time Referee Employment Contract must be for a minimum period of 12 calendar months. There is no restriction on the maximum duration of a Full Time Referee Employment Contract.

…

18    The Full Bench Decision recorded the relevant terms of Mr Alouani-Roby’s final contract of employment with the NRL. It is convenient to replicate them (Full Bench Decision, [9]):

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 least 2 years of continuous service with the NRL at the end of the day the notice is given.

[…]

17. Alteration of agreement

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

[…]

Item 3: Term

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

The Full Bench Decision

19    Following Deputy President Cross’s dismissal of his application, Mr Alouani-Roby sought to appeal to a Full Bench of the Commission. His notice of appeal advanced ten appeal grounds. It is unnecessary to replicate them presently; it suffices to note that, by his notice, Mr Alouani-Roby invited the Full Bench to conclude that the NRL’s decision not to extend his tenure as a match referee amounted to a decision to dismiss him from his employment.

20    The appeal to the Full Bench did not proceed as of right. Instead, in order that he might agitate it, Mr Alouani-Roby required permission: FW Act, s 604(1). For reasons that do not bear upon this appeal (and upon which, for that reason, we need not elaborate), the Full Bench was inclined to grant that permission.

21    The Full Bench Decision assumes a familiar appearance. After setting out the relevant background facts, addressing the issue of permission to appeal, summarising the parties’ submissions and identifying the relevant statutory provisions, the Full Bench set about addressing Mr Alouani-Roby’s appeal grounds. It began that task by identifying the question arising for its determination, namely “…whether [Mr Alouani-Roby] had been dismissed within the meaning in s.386(1)(a) of the FW Act”: Full Bench Decision, [98].

22    After a lengthy analysis of relevant case law, the Full Bench was drawn to state the following conclusions, namely (Full Bench Decision, [131]):

For the purposes of analysing whether there has been a dismissal, within the meaning in s.386(1)(a), consideration of the entire employment relationship … includes consideration of the contract of employment in operation at the time of the employment ending and may also include consideration of other employment contracts during the entire employment relationship (or series o[f] employment relationships…). As we have noted, the contract of employment is fundamental to, and underpins, the employment relationship. In addition to the terms of the contract, consideration of the entire employment relationship may, depending on the facts, require examination of a range of matters…including: the field of employment in which the contract operates; the terms of any industrial instruments including awards and enterprise agreements applicable to the relevant employment; all contracts in a series of time limited contracts; the context in which the contract of employment and the employment relationship operated; conduct of the parties during the relationship and the circumstance in which the employment ended. Consideration may also be required as to whether there are vitiating factors so that there is no legally effective time limit on the employment.

23    Thereafter, the Full Bench addressed the discrete appeal grounds that Mr Alouani-Roby had advanced. In doing so, it concluded that Mr Alouani-Roby’s “…final contract reflected a genuine agreement on the part of [he and the NRL] that the employment relationship would not continue after 30 November 2020… [and that there was] no indication that the contracts were a practice put in place by the [NRL] for mere administrative convenience”: Full Bench Decision, [140]. The Full Bench continued:

[Deputy President Cross] accepted the Respondents’ evidence and submissions that the use of maximum term contracts was appropriate in the field of elite professional sports and the intention was to ensure that the best available match officials would be engaged each season. The Deputy President also found that there was a legitimate purpose for this mode of employing match officials and it was significant that maximum term contracts were specified as the mode of employment for all persons employed in the same capacity as [Mr Alouani-Roby]. [Mr Alouani-Roby] did not dispute these findings in the appeal and appears to contend that notwithstanding that a mechanism for employing other match officials was legitimate, it was not legitimate with respect to the employment of [Mr Alouani-Roby]. We do not accept that submission.

24    The Full Bench characterised the final contract between Mr Alouani-Roby and the NRL as “…a genuine agreement on the part of the employer and employee that the employment relationship would not continue past 30 November 2020”: Full Bench Decision, [142]. Ultimately, it was not persuaded that Deputy President Cross had erred by concluding that Mr Alouani-Roby’s employment with the NRL came to an end otherwise than by dismissal. Mr Alouani-Roby’s appeal was, thus, dismissed.

The Primary Judgment and the present appeal

25    Unhappy with that reality, Mr Alouani-Roby applied to this Court for judicial review of the Full Bench Decision. He maintained that the Full Bench Decision was founded upon an error of jurisdiction, namely that the circumstances in which his employment with the NRL had come to an end were not sufficient to bespeak his having been dismissed for the purposes of s 386(1) of the FW Act.

26    The learned primary judge disagreed. For present purposes, it suffices to note that that disagreement was erected upon two foundations. First, her Honour was minded to accept that the Full Bench of the Commission had correctly applied itself to assessing whether the circumstances attending the end of Mr Alouani-Roby’s employment as an NRL match referee were such as to bespeak his having been “dismissed” for the purposes of s 386(1) of the FW Act. Second, her Honour accepted an additional contention that had not been raised before the Full Bench: namely, that s 386(2)(a) of the FW Act applied so as to preclude a finding that the circumstances here presenting were circumstances consistent with dismissal.

27    Something further should be said about that second dimension to the Primary Judgment. Before the Commission, the respondents accepted that Mr Alouani-Roby’s employment had been governed by a series of what were described as “outer limit” contracts: that is, contracts for specified terms that were nonetheless terminable upon notice. It was accepted before the Commission that contracts of that kind were not contracts of the kind described by s 386(2)(a) of the FW Act (that is, were not “contract[s] of employment for a specified period of time”). Before the primary judge, the respondents submitted, for the first time, that Mr Alouani-Roby’s contracts were—and, more specifically, that his final contract was—within that description.

28    Her Honour accepted “…that s 386(2)(a) [of the FW Act] applies to outer limit contracts which allow for early termination but only applies where the employee’s employment has been terminated at the end of the specified period of time”: Primary Judgment, [97]. In reaching that view, her Honour had occasion (Primary Judgment, [99]) to consider the terms of the explanatory memorandum that accompanied the passage of the Fair Work Bill 2008 (Cth), which, as to what later became s 386(2)(a) of the FW Act, relevantly said as follows (at [1532]):

Paragraph 386(2)(a) reflects the common law position that termination in [circumstances involving employment for a specified period of time, for a specified task, or for the duration of a specified season] would not be a dismissal. The fact that an employment contract may allow for earlier termination would not alter the application of this provision as the employment has terminated at the end of the period, task or season. However, if a person engaged on this sort of contract is terminated prior to the end time specified in the contract, they may seek an unfair dismissal remedy if they satisfy the other requirements.

29    Mr Alouani-Roby now presses four grounds of appeal, which it is convenient now to replicate:

1.    The primary judge erred in characterising the Full Bench Decision as demonstrating that the Full Bench had applied itself to the question prescribed by section 386(1)(a) of the Fair Work Act 2009 (Cth) (“FW Act”).

2.    The primary judge erred in characterising the Full Bench Decision as demonstrating that the Full Bench had engaged in the requisite inquiry into the National Rugby League Limited’s conduct during the whole of its employment relationship with the Appellant which inquiry was required of it in applying section 386(1)(a) of the FW Act to the question of how that employment relationship came to an end.

3.    The primary judge erred in the interpretation and application of the obligations conferred on the Full Bench by section 578 of the FW Act to consider the objects of the FW Act and equity, good conscience and the merits of the matter.

4.    The primary judge erred in the construction of section 386 of the FW Act in concluding that section 386(2)(a) of the FW Act applies to outer limits contracts which allow for early termination.

30    Beyond what has already been said, it is unnecessary to rehearse the learned primary judge’s reasons. By the present appeal, Mr Alouani-Roby maintains that her Honour was wrong not to discern jurisdictional error on the part of the Commission Full Bench. If he is right about that—that is to say, if the Full Bench Decision was a product of jurisdictional error as he alleges—then it will necessarily follow that the primary judge erred by concluding otherwise and the appeal should succeed. If he is not right about that—that is to say, if no such jurisdictional error is made out—then her Honour’s conclusion to that effect will have been correct and the appeal should fail.

31    In either case, the Court’s focus presently must remain upon the Full Bench Decision.

32    Mr Alouani-Roby’s first three appeal grounds distil to a relatively simple proposition: namely, that the Full Bench of the Commission was wrong to find that the circumstances in which Mr Alouani-Roby’s tenure as an NRL referee came to an end were insufficient to constitute dismissal under s 386(1) of the FW Act. He maintains that that conclusion was premised upon misconstructions of what the statute contemplates; and, hence, that the error identified was one of jurisdiction.

33    The fourth ground of appeal concerns her Honour’s conclusion about the application of s 386(2)(a) of the FW Act. For reasons that might become apparent, it is convenient first to address Mr Alouani-Roby’s fourth ground of appeal.

Ground 4: application of s 386(2)(a)

34    The exception to which s 386(2)(a) of the FW Act gives effect has been a feature of the Commonwealth statutory unfair dismissal regime since it commenced in 1994 as Pt VIA of the then Industrial Relations Act 1988 (Cth) (the “IR Act”). Division 3 of that Part was entitled “Termination of employment”. Section 170CC (which was within that Division) provided as follows:

The regulations may exclude specified employees from the operation of specified provisions of this Division. An exclusion has effect only if:

(a)    it is permitted by paragraph 2 of Article 2 of the Termination of Employment Convention…

…

35    As might be apparent, the exclusion (as effected by regulation) reflected the terms of the “convention concerning termination of employment at the initiative of the employer”, which was adopted by the International Labour Organisation’s General Conference on 22 June 1982. Amongst other things, that convention proclaimed that “[t]he employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.” Paragraph 2 of Art 2 thereof permitted ILO member States to:

…exclude the following categories of employed persons from all or some of the provisions of this Convention:

(a)    workers engaged under a contract of employment for a specified period of time or a specified task;

…

36    Section 170CC later assumed a slightly amended form within the Workplace Relations Act 1996 (Cth) (the “WR Act”). There, it permitted the making of regulations to exclude from unfair dismissal protections “employees engaged under a contract of employment for a specified period of time or a specified task”: s 170CC(1)(a). Regs 30B(1)(a) and (b) of the Workplace Relations Regulations provided to that effect.

37    In 2003, that exclusion was moved from the regulations to the statute itself. The Workplace Relations Amendment (Fair Termination) Act 2003 (Cth) introduced into the WR Act s 170CBA, subs (1)(a) of which excluded from the unfair dismissal provisions of Div 3 “…an employee engaged under a contract of employment for a specified period of time”. “Note 1” subjoined to that provision acknowledged that:

The expression employee engaged under a contract of employment for a specified period of time (used in paragraph (a)) has been addressed in a number of cases before the Industrial Relations Court of Australia, including, in particular, Cooper v Darwin Rugby League Inc (1994) 57 IR 238, Andersen v Umbakumba Community Council (1994) 126 ALR 121, D’Lima v Board of Management, Princess Margaret Hospital for Children (1995-1996) 64 IR 19 and Fisher v Edith Cowan University (unreported judgment of Madgwick J, 12 November 1996, No. WI 1061 of 1996).

An equivalent note had previously been subjoined to reg 30B(1).

38    In (or with effect from) March 2006, the WR Act was substantially amended. Nonetheless, the unfair dismissal provisions that continued maintained a materially identical exclusion in the form of s 638(1)(a) (and the identical note that was subjoined to it).

39    Thus from March 1994 until the repeal of the WR Act in July 2009, the federal unfair dismissal regime maintained a consistent exclusion of employees who were “engaged under a contract of employment for a specified time”. That exclusion had its origins in international law and, as the notes subjoined to s 170CBA and, later, s 638 of the WR Act suggested, the phrase giving effect to it was the subject of occasional judicial consideration.

40    In Cooper v Darwin Rugby League Inc (1994) 57 IR 238, for example, the Industrial Relations Court of Australia had occasion to consider the application of the exclusion to an employee who was dismissed on notice. The employee, Mr Cooper, had been engaged for a three-year term; but the written contract that he had executed permitted termination by either party on notice or “in the case of misconduct”. He sought to challenge his dismissal under the unfair dismissal provisions of the IR Act; and the employer sought to have that challenge summarily dismissed on the ground that it was bound to fail because of his exclusion from the protections that those provisions otherwise afforded.

41    Dismissing the interlocutory application, Northrop J held (at 241-2):

…There is much to be said for the view that the exclusion of the operation of the provisions of the Act specified by regulation made under s 170CC arises only where the term specified by the contract of employment has ended by effluxion of time. The relevant provisions cannot apply where the employment is terminated by agreement or by the unilateral action of an employee. In these events, the employer has no remedy and the exclusion provisions cannot apply.

42    A similar question arose (again in the Industrial Relations Court of Australia) in Andersen v Umbakumba Community Council (1994) 56 IR 102 (“Andersen”; von Doussa J). There, after referring to the principles applicable to the construction of international conventions, the court observed as follows (at 106-7):

In the expression, “specified” is the past participle of the verb “to specify”. The ordinary meaning in the English language of “to specify” is to mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail: Shorter Oxford English Dictionary, 3rd ed. In the context of Art 2, par 2(a) of the Termination of Employment Convention “specified” identifies a period of time or a task the scope and parameters of which are stated definitely. A “specified period of time” is a period of time that has certainty about it. A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment. As the period of time is defined in this way, it is apt to refer to a contract of employment for a specified period of time as a contract of employment for a fixed term, although this is not the description used in the regulation.

A contract of employment to run throughout a nominated number of days, weeks, or years would be a contract of employment for a specified period of time. If the terms of the contract of employment, instead of identifying in this manner the period of time during which it is to run, provides that it is to run until some future event, the timing of the happening of which is uncertain when the contract is made, the contract will be for an indeterminate period of time.

…

In the present case cl 3 and Sch 1 of the Employment Agreement clearly state both a commencement date for the employment and a cessation date, but in light of the right of either party to the contract arising under cl 21(c) to bring the employment to an end on two weeks[’] notice, and the right of the employer under cl 21(d) to bring the employment to end without notice on payment of two weeks[’] salary, the cessation date merely records the outer limit of a period beyond which the contract of employment will not run (unless a new Agreement is entered into pursuant to cl 29). Within the period stated in Sch 1 the period of the contract of employment is indeterminate. At any point during the two year period identified by the commencement and cessation dates neither side could know with any certainty when the period of the contract of employment might come to an end.

… Different considerations may apply where a contract of employment for a period of time fixed by clearly stated dates of commencement and cessation contains a term which permits either side to terminate the contract on breach by the other side. In such a case, it is possible that the contract would be characterised as a contract of employment for a specified period of time notwithstanding the possibility that on breach of its term by one side or the other it may sooner come to an end.

43    In D’Lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19 (Marshall J), the Industrial Relations Court of Australia rejected an argument that an employee who had been engaged on a series of “…contracts for alleged periods of temporary employment” was excluded from the protections of the unfair dismissal regime. Marshall J concluded (at 26) that the practice of entering such contracts appeared “…to have 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”.

44    The same court reached a similar conclusion in Fisher v Edith Cowan University (No 2) (1997) 72 IR 464 (Lee, Marshall and North JJ). There, as here, the employee had been engaged pursuant to a series of contracts for identified terms. The court observed (at 470):

…if an employer arranges for an employee to render service under consecutive contracts of employment for specified periods of short duration, where the nature of the employment is appropriate for a contract of indeterminate duration, and the employee had no say in the terms of the agreement, it may be said that the contract served the purpose of the employer by providing additional control over the employee. In such circumstances if the employment relationship is terminated by the refusal of the employer to “roll-over” the employment contract, the termination may be seen as part and parcel of an initiative taken by the employer at the commencement of the contract of employment to reserve that power.

45    With the passage of the FW Act in 2009, new unfair dismissal protections were enacted. Section 386 was amongst them. Section 386(2)(a) of the FW Act, however, was not in the same terms as the exclusions that preceded it. Specifically, it consolidated various species of exclusion and introduced the concluding words, “…and the employment has terminated at the end of the period [etc]”. The note that had adorned predecessor provisions since 2003 was not replicated. Thus, from July 2009, the FW Act contemplated that employment contracts that were “for a specified period of time” could include contracts that were terminable otherwise than by the expiry of that period.

46    The learned primary judge accepted a contention advanced by the respondents that earlier case law considering the meaning of “contract of employment for a specified period of time” -particularly Andersen and the view expressed by von Doussa J that a contract that “…is to run until some future event, the timing of the happening of which is uncertain when the contract is made…will be for an indeterminate period of time” - should have limited, if any, application to s 386(2)(a) of the FW Act.

47    The significance of that conclusion might be apparent. As has been seen, Mr Alouani-Roby’s final contract of employment was terminable upon notice (above, [18]). It was that feature that was said to qualify it as an “outer limit” contract. Before the Commission, the respondents did not contend that it was a contract of the kind to which s 386(2)(a) of the FW Act referred. Given the state of authority within the Commission at the time—most recently and authoritatively expressed in Khayam v Navitas English Pty Ltd (2017) 273 IR 44 (Hatcher VP, Colman DP and Saunders C) (“Khayam”)—that forensic choice was unsurprising.

48    Nonetheless, there was no controversy, either in the Commission or below, that Mr Alouani-Roby’s employment with the NRL came to an end upon the expiry of the term for which his contract provided. Mr Alouani-Roby, of course, maintains that the NRL engineered that outcome for reasons that Pt 3-1 of the FW Act proscribes; but the conclusion of the employment at that point is (and was) not disputed.

49    If, as the learned primary judge found, it were the case that Mr Alouani-Roby was employed pursuant to a contract of employment for a specified period of time and that his employment terminated at the end of that period, then it will necessarily follow that any error of law affecting the Full Bench Decision will be immaterial (and, therefore, not an error of jurisdiction), because the Commission would have been obliged on that alternative basis to dismiss his application precisely as it did.

50    That is the conclusion to which her Honour was attracted: Primary Judgment, [101]. Respectfully, she did not err in favouring it. The concluding words in which s 386(2)(a) is expressed very clearly disclose that the statutory conception of “a contract of employment for a specified period of time” is apt to include fixed-term contracts that are terminable otherwise than by the expiry of their fixed terms. At least for present purposes, a contract of employment that is expressed to terminate upon the expiry of a nominated term is a contract for a specified period of time; and it is no less so merely because it reserves for the parties other modes of earlier termination.

51    The proposition just stated is, it must be said, difficult to reconcile with what von Doussa J observed in Andersen. Albeit in obiter—and in a very different context—those observations were referred to with apparent approval in Barratt v Howard (2000) 96 FCR 428, 448 [70] (Beaumont, French and Merkel JJ). Although the position may have changed since, the proposition is inconsistent with Commission authority that prevailed at the point of the Full Bench Decision: Khayam at 83-90 [77]-[96] (Hatcher VP, Colman DP and Saunders C); but see also Wibowo v Equifax Australasia Group Services Pty Ltd [2024] FWCFB 383, [18]-[19] (Millhouse DP, Lee and Wilson CC).

52    Be that as it may, we think that the import of the words in which s 386(2)(a) of the FW Act is expressed is appreciably clear: a contract that is expressed, whether subject to other rights or not, to run for a nominated term is, for the purposes of s 386(2)(a) of the FW Act, a contract for a specified period; and remains as much notwithstanding that it might lawfully be brought to end otherwise than by (which is to say, before) the expiry of that period. If we are wrong about that and s 386(2)(a) of the FW Act permits of alternative constructions, any attendant ambiguity is immediately resolved upon consultation of the explanatory memorandum that accompanied the Fair Work Bill 2008 (Cth) (above, [28]). The intention underpinning the section could hardly have been made clearer: the “…fact that an employment contract may allow for earlier termination would not alter the application of [s 386(2)(a)]”.

53    The authorities decided under differently-expressed provisions, although perhaps not wholly irrelevant, are not presently instructive. It is unnecessary that we should express a view about the correctness of, in particular, the decision of the Industrial Relations Court in Andersen. It suffices to observe that whatever might have been the correct construction of the phrase “contract of employment for a specified period of time” under earlier (and different) statutory and regulatory pronouncements, the correct way to construe those words as they appear in s 386(2)(a) of the FW Act is the way in which the learned primary judge was minded to construe them.

54    That is so notwithstanding the significant (although not complete) commonality of terms as between s 386(2)(a) of the FW Act and its statutory ancestors. Ordinarily, the retention in new or amended legislation of an expression that has a judicially-construed meaning brings with it a presumption that that same meaning was intended to be conveyed: Re Alcan Australia Ltd; ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96, 106 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). The learned primary judge was alive to that presumption. Her Honour referred (Primary Judgment, [97]-[98]) to the reality:

…that the phrase “contract of employment for a specified period of time” is replicated in the FW Act and … had previously been construed as not applying to contracts which were essentially outer limit contracts which allowed for early termination … However, the phrase must be construed in the context of the current, differently crafted, legislative provision as a whole. That context is instructive and supports the view that the legislature intended that the provision have a different effect than how its predecessor provisions had been interpreted…

Further, given the difference between the provisions, I do not accept that the re-enactment presumption applies. The availability of the presumption depends on the nature of the legislation, the legislative context and the legislative history indicating an awareness on the part of the legislature of earlier authority on the meaning of the language that is being reenacted. Where the provision later enacted is in an altered form, it is presumed to have a different meaning: Baini v The Queen [2012] HCA 59l; 246 CLR 469 at [43]–[44] per Gageler J.

55    Respectfully, those observations are unimpeachable. The statutory purpose underpinning s 386(2)(a) of the FW Act is to exclude from protection for unfair dismissal those whose employment terminates by agreement—rather than by or in response to some unilateral act of an employer—upon the completion of an agreed (and specified) period, task or season. As the learned primary judge noted, exclusion in that sense accords with a reality of the common law, namely that “[a]s a matter of ordinary language, an employer does not terminate an employee’s employment when his or her term of employment expires”: Victoria v The Commonwealth (1996) 187 CLR 416, 520 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).

56    It follows that Mr Alouani-Roby’s fourth ground of appeal must fail. Respectfully, the learned primary judge was correct to conclude that any error on the part of the Commission (assuming that she was wrong to have earlier concluded that it had not made any) would fall short of the threshold necessary to warrant the grant of prerogative relief.

Grounds 1, 2 and 3: the “practical reality”

57    Having concluded that the Full Bench Decision is defensible on the basis that is the subject of appeal ground 4, it is not strictly necessary to address the other of Mr Alouani-Roby’s appeal grounds: Boensch v Pascoe (2019) 268 CLR 593, 600-1 [7]-[8] (Kiefel CJ, Gageler and Keane JJ), 629-30 [101] (Bell, Nettle, Gordon and Edelman JJ). Nonetheless—and in deference to the submissions that were skilfully advanced—we shall do so, albeit perhaps not to the granular level that might otherwise be appropriate.

58    At their core, appeal grounds 1 and 2 charge the Commission with having misconstrued what is and is not within the contemplation of the statutory conception of “dismissed” in s 386(1) of the FW Act (and, in particular, its application by s 365). Mr Alouani-Roby contends that, properly construed, “dismissed” is apt to cover circumstances in which an employer opts not to renew the engagement of an employee whom it has engaged, on a “take it or leave it” basis, over a series of fixed-term (or outer-limit) contracts spanning a period of time.

59    Mr Alouani-Roby maintains that “dismissed”, in that sense, embodies the “practical reality” of the relationship that is established by that series of contracts as between an employer and an employee. An employee who legitimately considers that his or her employment will be renewed upon the expiry of an extant contract should, he says, be understood to have been “dismissed” if it is not.

60    In developing those contentions, Mr Alouani-Roby was keen to impress upon the Court some aspects of the “practical reality” that were said to inform the statutory conception of “dismissed” in s 386 of the FW Act. Reference was made to another employee whose tenure had extended over some 20 years (compared to Mr Alouani-Roby’s five). Additionally, it was said that the reasons that the NRL offered to Mr Alouani-Roby for the non-renewal of his engagement had been concocted, or were based on false or engineered performance metrics.

61    Respectfully, none of that is relevant or instructive. Section 386 of the FW Act is concerned with the termination of an employee’s employment at his or her employer’s initiative: that is, with the mechanics of how employment is brought to an end by an employer.

62    Mr Alouani-Roby maintains that he had a legitimate expectation that his employment relationship with the NRL would continue beyond the expiry of his contract in November 2020. If, by that, he means that he legitimately expected that he would be offered a new contract, then perhaps that might be accepted. Nonetheless, by its nature, employment is a product of contract: it subsists in the acceptance of an offer to serve in return for agreed consideration. Termination of employment, then, necessarily requires the termination of a contract. There can be no expectation of an ongoing employment relationship without an ongoing employment contract.

63    What Mr Alouani-Roby expected would occur at the expiry of his contract is irrelevant (excepting, perhaps, to the extent that it might reflect that his employment contract was a sham transaction not to be given effect according to its terms). At least for present purposes, distinctions between employment relationships and employment contracts are artificial: the termination of an employment relationship and the termination of an employment contract are the same thing. Employment relationships can be created, changed and brought to an end; but (leaving aside possible exceptions involving repudiatory breach, as to which see Visscher v Giudice (2009) 239 CLR 361) only ever upon the execution, variation or termination of an employment contract. That being so, the reference in s 386(1)(a) of the FW Act to “the person’s employment with his or her employer [having been] terminated” can only be understood as a reference to the person’s contract of employment being brought to an end (or, perhaps in some cases, repudiated).

64    As much follows (to the extent that it was ever in doubt) from the judgment of the High Court in WorkPac Pty Ltd v Rossato (2021) 271 CLR 456 (“Rossato”). There, it was suggested that the nature of an employee’s employment (the issue in that case being whether Mr Rossato was employed on a casual basis) fell to be determined having regard to “…the real substance, practical reality and true nature of the employment relationship…” (citing WorkPac Pty Ltd v Skene (2018) 264 FCR 536, 576 [180]; Tracey, Bromberg and Rangiah JJ). That appeal to notions of “practical reality” was given short shrift: the plurality (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ) explained (at 478 [61]) that, when identifying the nature of employment, “[s]ome amorphous, innominate hope or expectation falling short of a binding promise enforceable by the courts is not sufficient”. Instead, the court was concerned to define the legal relationship there in issue by reference to the binding contractual terms upon which the parties had agreed, warning that anything less risked a “…descent into the obscurantism that would accompany acceptance of an invitation to enforce ‘something more than an expectation’ but less than a contractual obligation”: Rossato, 479 [63] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ). Their Honours went further, explaining that reliance upon abstract notions such as “shared ‘contemplations’” and “expectations” would “…[signal] a departure from orthodox legal analysis”: Rossato, 479 [64] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ).

65    Presently, of course, it has never been doubted that Mr Alouani-Roby’s contract of employment terminated upon the expiry of its agreed term. It was not argued in the Commission that that contract was apt to be disregarded as an ineffectual record of the contractual bargain that Mr Alouani-Roby struck with the NRL. Indeed, there has never been any suggestion (including before the primary judge) that it was anything other than an agreement genuinely struck (albeit that Mr Alouani-Roby maintains that it did not, of itself, presuppose that his employment relationship with the NRL would terminate upon its expiry).

66    It may well be that the reasons that the NRL proffered for not renewing Mr Alouani-Roby’s employment after November 2020 were unfair or invalid in some way. That is not for this Court to say. To venture into that territory is to be distracted from the terms of the contract and the circumstances in which it envisaged that it would terminate. For present purposes, the NRL’s reasons for not renewing Mr Alouani-Roby’s engagement are irrelevant. The question has always been and remains: how did the employment contract terminate (and, more specifically, did it terminate by force of some conduct attributable to the NRL)?

67    Mr Alouani-Roby contends that:

(1)    “[t]he [Commission] was in error in refusing to look beyond the terms of the written contract to determine whether there was, as a question of fact, a genuine agreement that the employment relationship would end on a specified date”; and

(2)    “[d]etermining whether there is a genuine agreement that the employment relationship would end at a particular time is not one of contractual construction but rather one of determining the true intentions or expectations of the parties”.

68    Respectfully and for the reasons identified above, neither contention can be accepted.

69    Similarly, Mr Alouani-Roby’s contention that the proper exercise of the Commission’s jurisdiction required that it “…consider as a question of fact how the [r]espondents conducted themselves towards Mr Alouani-Roby and then make an assessment of the legal effect of that conduct” is misplaced. The termination of Mr Alouani-Roby’s contract of employment was not relevantly borne upon by the manner in which he and other referees were treated.

70    None of that serves to doubt that, in the right case, conduct of that kind might suffice to engage s 386(3) of the FW Act. In this matter, there has never been any suggestion that s 386(3) of the FW Act had any application. That, of course, reflects that the first time that the respondents relied upon s 386(2)(a) of the FW Act was when the matter came before the learned primary judge. Regardless, the statutory intention is, we think, patently clear: fixed-term employment contracts are not available as a concocted vehicle through which an employer might illegitimately avoid subjection to the FW Act’s unfair dismissal provisions. On the contrary, there is much to commend the suggestion that the Act will only inoculate fixed-term employment contracts from the application of those provisions in circumstances where their use is appropriate and adapted to particular employment scenarios. So much is consistent with the recent introduction (after Mr Alouani-Roby’s employment terminated) of Div 5 of Pt 2-9 of the FW Act, which imposes substantial limitations upon the use of fixed-term employment contracts.

71    Much as did the Commission (albeit in a slightly different context), we have no doubt that the use of such contracts in the engagement of professional sports personnel (including match referees) would suffice as appropriate in that sense. It is in the very nature of engagement in that universe that one’s tenure will be limited by the ravages of age. Fixed-term contracts are an obvious and appropriate way of accounting for that reality. Had Mr Alouani-Roby attempted any argument to the contrary, we would have been very slow to accept it.

72    Appeal grounds 1 and 2 are not made out. The Commission did not misunderstand the limits of the phrase “dismissed” in s 386 of the FW Act, nor did it relevantly fail to take account of anything of which the FW Act required that it take account in assessing whether the circumstances sufficed to engage that definition. The Full Bench Decision was not the product of jurisdictional error as alleged and, in so concluding, the primary judge did not err.

73    That is a convenient point at which to consider appeal ground 3. Mr Alouani-Roby maintains that the Commission committed an error of jurisdiction by failing to consider what it was required to by operation of s 578 of the FW Act; and that, insofar as her Honour found that no such failure had occurred, the learned primary judge erred.

74    Mr Alouani-Roby’s contention was that compliance with s 578 of the FW Act required that the Commission “…assess the NRL’s conduct, and its effect on how its employment relationship with [him] came to an end”. He maintains that, had the Commission performed its function in the way that s 578 of the FW Act contemplates, it would have:

(1)    turned its mind to whether there was a genuine agreement “…that the employment relationship would come to an end at the expiry of the outer limits contract”;

(2)    taken account of the NRL’s conduct towards him “during the whole of the employment relationship”; and

(3)    had “…regard to the role of the system of contracting adopted by the NRL”.

75    Respectfully, there is nothing in any of those contentions. Mr Alouani-Roby’s argument proceeds, at least in part, upon the flawed and self-evidently circular proposition that his construction of s 386 and its application in the present matter is the only one that is consistent with equity, good conscience and merit. For reasons already addressed, it is not only not consistent in that sense; it is, in truth, wrong. There is nothing consistent with equity, good conscience or merit in the idea that the proper exercise of the Commission’s jurisdiction required that it prefer the incorrect application of s 386 of the FW Act for which Mr Alouani-Roby had contended. As the learned primary judge concluded (Primary Judgment, [87]), correctly with respect: the obligation that s 578 of the FW Act contemplates “…does not [provide] a basis for the statutory decision-maker to ignore or modify the rules of law applicable to its jurisdiction”.

76    Section 578 of the FW Act does not apply as any kind of gloss upon the terms in which s 386 is couched. The question that those terms posed (relevantly for present purposes) was whether Mr Alouani-Roby’s final contract of employment terminated by the expiry of its term or by something that the NRL did. That is the question that the Commission answered. There is nothing about the objects of the Act, nor anything premised in notions of equity, good conscience or merit—much less anything going to the Commission’s jurisdiction—that required the Commission to approach that question in anything other than the way that it did.

77    The primary judge was led so to conclude and, respectfully, her Honour did not err. Appeal ground 3 is not made good.

Conclusions

78    The Full Bench Decision was not a product of jurisdictional error as Mr Alouani-Roby has alleged and, respectfully, the learned primary judge was correct to decide as much. The appeal should be dismissed. Section 570 of the FW Act likely precludes the making of any order as to costs; but, if that is wrong, the respondents (or any one or more of them) can make a suitable application in due course.

Associate:

Dated:    12 December 2024

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