Federal Court of Australia

Alouani-Roby v National Rugby League Ltd [2024] FCA 12

ORDERS

THE COURT ORDERS THAT:

1.    A notation to be made on the Court file that, in the event that any non-party seeks access to the file (where the effect of such a request would mean that the name and tier of each Match Official in pages 761 to 2254 of the court book would be disclosed), the parties be informed of the request and be afforded an opportunity to make submissions prior to access being granted.

2.    The application be dismissed.

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

REASONS FOR JUDGMENT

RAPER J:

1    This application asserts jurisdictional error by a Full Bench of the Fair Work Commission. The Full Bench upheld an appeal from a Deputy President of the FWC where the Deputy President had found Mr Alouani-Roby had not been “dismissed” from his employment with National Rugby League Limited (the NRL) within the meaning of s 386(1)(a) of the Fair Work Act 2009 (Cth). This finding deprived Mr Alouani of bringing proceedings alleging adverse action involving dismissal under ss 340, 343, 345, 346 and 351 of the FW Act.

2    Mr Alouani-Roby was employed by the NRL, in the position of Tier 4 Referee, pursuant to a series of maximum term contracts. Mr Alouani-Roby’s final contract of employment was dated 25 November 2019, with a start date of 1 December 2019 and an end date of 30 November 2020 (the Contract). The Deputy President dismissed Mr Alouani-Roby’s application on the basis that the employment relationship ended by the effluxion of time upon the expiry of his Contract and not on the initiative of his employer, the NRL: Timothy Andrew Alouani-Roby v National Rugby League Limited, Bernard Sutton, Graham Annesley [2021] FWC 6282 (the original decision or D). This finding was upheld on appeal by the Full Bench of the FWC in Timothy Andrew Alouani-Roby v National Rugby League Limited, Bernard Sutton and Graham Annesley [2022] FWCFB 171; 318 IR 389 (the Full Bench decision or FBD).

3    The question for determination in this application is whether the Full Bench has committed jurisdictional error.

4    A person may bring a general protections application involving dismissal under s 365 of the FW Act, if the person has been dismissed within the meaning of s 386, which provides:

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

(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:

(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.

5    Relevantly, for the purposes of this review proceeding, specific attention is given to whether Mr Alouani-Roby’s employment was terminated on the NRL’s initiative (within the meaning of s 386(1)(a)). Both the Deputy President and Full Bench of the FWC found that Mr Alouani-Roby’s employment was not terminated on the NRL’s initiative but rather by reason of Mr Alouani-Roby’s fixed-term Contract expiring. The jurisdictional error is said to have manifested by reason of the FWC’s blinkered reliance on the terms of the fixed-term Contract and its failure to undertake the broader requisite inquiry into the NRL’s conduct prior to the end of the contractual term. It was accepted by both parties that the Contract’s terms were relevant to the determination of the issue, but the extent of reliance upon the Contract was in issue.

6    The respondents (hereafter, just referred to as the NRL) contend that the Full Bench decision was not affected by jurisdictional error and, alternatively submit, even if it was, the error was not material and as such the Court should not exercise its discretion in granting the prerogative relief sought given it could be satisfied that there was no dismissal in any event by operation of s 386(2)(a): Mr Alouani-Roby was employed under a contract of employment for a specified period of time and his employment terminated upon the expiry of that period of time.

7    For the reasons which follow, Mr Alouani-Roby has failed to establish that the Full Bench decision was affected by jurisdictional error. The Full Bench asked the right question and did not misapply itself in the inquiry it undertook to determine the answer.

The original decision

8    On 18 December 2020, Mr Alouani-Roby made an application to the FWC, pursuant to s 365 of the FW Act, alleging adverse action involving dismissal. On 29 December 2020, the respondents (including the NRL) raised a jurisdictional objection to Mr Alouani-Roby’s application on the basis that Mr Alouani-Roby was not “dismissed” within the meaning of s 386(1) of the FW Act.

9    On 3 May 2021, the jurisdictional objection was heard by Deputy President Cross. However, on 4 August 2021, the High Court handed down judgment in WorkPac Pty Ltd v Rossato [2021] HCA 23; 271 CLR 456. On 11 August 2021, the Deputy President made directions for the filing of submissions by both parties regarding the impact of WorkPac on Mr Alouani-Roby’s application (which both parties did). The Deputy President’s decision was handed down on 12 November 2021. In it, he found Mr Alouani-Roby’s employment was not terminated at the initiative of the NRL, and as such he was not dismissed pursuant to s 386(1)(a) of the FW Act: at D[121].

10    The following aspects of the Deputy President’s reasons are relevant to this review.

11    It was uncontroversial that Mr Alouani-Roby’s employment was governed by a series of maximum term contracts of employment which were (at D[13]):

12    It was noted on appeal, at FBD[4], that there was an error with respect to the asterisked end date of the 2017 contract referred to above. The Full Bench assumed that the end date was the end of November 2018, not “31 November 2019”.

13    The Deputy President made a number of findings with respect to the large body of evidence relied upon by Mr Alouani-Roby as to the conduct of the NRL over a long period prior to the cessation of his employment, at D[22]–[44], which included relevantly: in 2019, Mr Sutton (General Manager of Elite Officiating) raised concerns with Mr Alouani-Roby regarding his fitness levels: at D[22(e)]. On 9 October 2019, at a meeting between Mr Sutton and Mr Alouani-Roby, Mr Sutton 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”: at D[25], [106]. Mr Alouani-Roby’s last Contract was dated 25 November 2019: at D[26]. Mr Alouani-Roby considered that during February 2020, Mr Sutton unfairly singled him out for error, presented detailed statistics about Mr Alouani-Roby’s “lack of urgency” and commented that his alleged lack of pace was a “serious concern”: at D[27]. Mr Alouani-Roby thereafter complained to and had a number of interactions with the NRL human resources manager, Ms Huntley: at D[28]–[29]. On around 22 March 2020, at the end of the second round of the 2020 NRL season, the pandemic caused a two-month suspension of NRL games and the reduction from two referees to one referee per game: at D[31]. During the recommenced 2020 NRL season, Mr Alouani-Roby received praise for his 2020 performance indicia from managers including Mr Sutton: at D[32].

14    Around 9 June 2020, Mr Alouani-Roby made plans to meet his bank and real estate agents to confirm the purchase of a new residence in Australia and called Mr Sutton to inform him that he would be late that day because he was signing a home loan contract: at D[33]. Around 35 minutes after the call, via video link, Mr Sutton told Mr Alouani-Roby that he would not be receiving a renewal of his contract for the 2021 NRL season: at D[35]. Mr Alouani-Roby was one of two referees who did not receive a 2021 contract: at D[36].

15    It is worthwhile extracting the parties’ interactions prior to the expiry of the Contract on 25 November 2020, as contained in the Deputy President’s reasons:

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.”

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:

    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 30 November 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 reimbursement of reasonable psychological fees incurred for a period up to 6 months on presentation of invoices).

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

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.

16    The Deputy President then referred to material aspects of the governing industrial agreement, the National Rugby League (Match Officials) Agreement 2019 (the Agreement), including cl 15.2 of the Agreement, which stipulated that “[a]ny 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”: at D[45]. The Deputy President also placed the dispute in context by reference to the terms of the Contract, including its maximum term, at D[47], which is extracted as follows:

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 continued 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 [sic] separate and distinct from this Agreement.

17    Central to the NRL’s jurisdictional challenge was that Mr Alouani-Roby’s employment was terminated upon the expiry of the maximum term of the Contract. Accordingly, it is unsurprising that the Deputy President commenced his consideration of the jurisdictional question by reference to the Contract: at D[94]–[99].

18    The Deputy President then considered a portion of the relevant indicia arising from Khayam v Navitas English Pty Ltd [2017] FWCFB 5162; 273 IR 44 (as relied upon by Mr Alouani-Roby) as to whether there was a “genuine agreement” between the parties that the employment relationship would not continue beyond 30 November 2020: at D[100]–[103]. The Deputy President addressed Mr Alouani-Roby’s contention that the maximum term contracts comprised unilateral offerings, devoid of negotiation, such that they were not the result of genuine mutual agreement. In this context, reference was made to the reasoning in WorkPac, where the plurality observed that the proper construction of an employment contract does not involve straining legal language and concepts “in order to moderate a perceived unfairness resulting from a disparity in bargaining power between the parties so as to adjust their bargain”: at [63]. However, in any event, that holding was not applied: the Deputy President found that he did “not consider that the alleged unfairness or disparity of bargaining power existed between the parties” (at D[102]) by reason of Mr Alouani-Roby understanding:

…that one or two year contracts would be given by the First Respondent, the Applicant signed contracts acknowledging the terms of the offers and his acceptance, 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. 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. The Agreement prescribed the use of maximum term contracts.

(Footnotes omitted.)

19    Under the heading “Termination at the First Respondent’s Initiative”, the Deputy President dealt with Mr Alouani-Roby’s argument that the termination was at the NRL’s initiative by reason of it engaging in (at D[104]):

…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 [NRL] and Second Respondent were the principal contributing factor which resulted in the termination of the employment.

20    The Deputy President described Mr Alouani-Roby’s submission as being, in large part, “illogical” by reason of the conduct relied upon as constituting the principal contributing factor, most of which were contained in D[22]–[25], occurred in the six-month period prior to Mr Alouani-Roby receiving and signing the Contract finding, at D[105]:

…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 [sic] 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.

21    With respect to the purported acts relied upon by Mr Alouani-Roby that occurred after the execution of the Contract, the Deputy President found, at D[106]–[108]:

106    …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, 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 [sic] act on the part of the First or Second Respondents that bought [sic] 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.

22    Again, the Deputy President did not assume a myopic stance by only referring to the terms of the Contract when resolving the issue, and in fact considered each of the vitiating factors identified in Khayam deployed by Mr Alouani-Roby, namely whether the Contract was contrary to public policy because it frustrated the policy or operation of the FW Act or because it prevents access to the jurisdiction, and whether during the term of the employment relationship the NRL engaged in conduct or made representations which provided a proper legal foundation to prevent the NRL from relying upon the terms of the Contract as a means by which the employment relationship terminated: at D[109]–[119].

23    As to the public policy argument, the Deputy President distinguished the cases cited by Khayam, namely D’Lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19 and Fisher v Edith Cowan University (No 2) (1997) 72 IR 464, from the circumstances of this case and found:

114    …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” generally, 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, will be satisfied, and the relevant matters that the Commission must take into account, will be considered.

(Footnotes omitted.)

24    With respect to the purported conduct or representation vitiating factor, the Deputy President referred to the holding in WorkPac that express terms of contracts should not be disregarded in favour of the subjective expectations or understandings of one or both parties: at D[117]. The Deputy President identified what he understood, at D[118], to be the impugned conduct, namely that the NRL had used “fixed term contracts as a cover to avoid accountability for unlawful treatment of their employees” and found at D[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 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.

25    Ultimately, the Deputy President found that Mr Alouani-Roby was engaged under a series of maximum term contracts based on the genuine operational requirements of the NRL, and that the terms of the Contract reflected a genuine agreement of the parties that the employment relationship would end upon the Contract’s expiry. The Deputy President found that there were no vitiating factors (as identified in Khayam). Given the same, the Deputy President concluded that Mr Alouani-Roby’s employment was not terminated on the initiative of the NRL, and he was therefore not dismissed within the meaning of s 386(1)(a).

The appeal to the Full Bench

26    Mr Alouani-Roby filed a notice of appeal on 1 December 2021, and was heard by the Full Bench on 8 February 2022 in respect of both permission to appeal and the substantive appeal: at FBD[19].

27    The Full Bench was satisfied that it was in the public interest to grant permission to appeal: at FBD[26]. However, the Full Bench dismissed Mr Alouani-Roby’s substantive appeal: at FBD[174].

28    Mr Alouani-Roby advanced ten grounds of appeal, which are extracted as follows (at FBD[27]):

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

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

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

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

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

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

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

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

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

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

29    The Full Bench commenced its final deliberations by considering the legislation and relevant case law. It identified the relevant question for determination, as before the Deputy President, as being “whether [Mr Alouani-Roby] had been dismissed within the meaning in s 386(1)(a) of the FW Act”: at FBD[98].

30    Notation was made of the fact that it was common ground that the Contract was not a “contract of employment for a specified period of time” within the meaning in s 386(2)(a) of the FW Act, on the basis that the contract provided an unqualified right of termination with notice before the specified end date (30 November 2020), citing the distinction identified in Khayam between a contract “for a specified period” and a contract “which specifies an outer limit or a maximum term”, finding at FBD[99]:

…[T]he distinction depends on whether the contract provides for an unqualified right for either party to terminate the contract. The former type of contract is sometimes referred to as a fixed term contract and the latter, variously, as an outer limit, time limited or maximum term contract.

31    In the context of considering the central question the Deputy President was required to address, consideration was given to Khayam, NSW Trains v James [2022] FWCFB 55; 316 IR 1 and Department of Justice v Lunn (2006) 158 IR 410. The Full Bench determined, contrary to the submission of NRL, that the recent NSW Trains v James decision did not impinge on the correctness of Khayam, which remained relevant to the present appeal: at FBD[103].

32    The Full Bench noted that Mr Alouani-Roby did not dispute that his employment relationship with the NRL ended on the same date as the expiry of the term of his Contract: at FBD[103].

33    The reasoning thereafter considered the critical aspects of Khayam concerning what constitutes a dismissal within the meaning of s 386(1)(a), citing the five principles from that decision, which it is worthwhile extracting here (at FBD[104]):

We turn now to consider the following principles in [75] of the Full Bench decision in Khayam v Navitas:

(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. The 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 (Griffın/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 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).

34    The Full Bench surveyed, in an expansive way, a number of decisions from which each of the principles derived, together with subsequent related jurisprudence (at FBD[105]–[122]), including Fisher, upon which Mr Alouani-Roby heavily relied on appeal (at FBD [107]–[111]), a number of cases involving employees employed pursuant to a series of fixed-term contracts, particularly D’Lima, in which the Industrial Relations Court had accepted that despite Ms D’Lima being employed under such a series, the termination of her employment was at the employer’s initiative because “[t]he practice of signing of further contracts for alleged periods of temporary employment appears to have been one of mere administrative convenience and cannot compel the Court to ignore the weight of strong countervailing factors indicating a continuous employment relationship” (at FBD[116], citing D’Lima at 25–6). Mr Alouani-Roby, before the Full Bench and before this Court makes a submission that the NRL acted in a like manner. Specific mention was made of an aspect of the Full Court of the Industrial Relations Court’s observation in Fisher that D’Lima was a case where “it was held that the evidence established that the employment contract was not restricted to the terms of a written document”: at FBD[117].

35    The Full Bench identified the central question posed by s 386(1)(a) as being “whether a person has been dismissed by virtue of the person’s employment being terminated on the employer’s initiative”: at FBD[123]. Indeed, the Full Bench thereafter illuminates the breadth of “terminated” to not be restricted to a legal event that ends the relationship that is an action of the employer but to simply require that the employer initiate the ending of the employment.

36    Further consideration will be given below to the substance of Full Bench’s deliberations upon which this review is premised.

37    It is sufficient to note that ultimately, the Full Bench found that the Deputy President had correctly considered the entire employment relationship, and had not focussed on the terms of the Contract in concluding that Mr Alouani-Roby had not been dismissed within the meaning of s 386(1)(a): at FBD[147].

The present proceeding

38    In the affidavit of Mr James El-Jalkh, solicitor, in support of the application, under the heading “Grounds on which the Applicant applies for relief under section 39B of the Judiciary Act”, Mr El-Jalkh deposed that it was Mr Alouani-Roby’s contention that:

(a)     the decision of the Full Bench of the FWC in Timothy Andrew Alouani-Roby v National Rugby League Limited, Bernard Sutton and Graham Annesley [2022] FWCFB 171 involved jurisdictional error.

(b)     that the FWC has constructively failed to exercise its jurisdiction because it has misconstrued the nature of its functions as conferred by section 576(1)(h) of the FW Act in relation to Part 3-1.

39    By Mr Alouani-Roby’s summary of his grounds and contentions, which were in essence submissions, Mr Alouani-Roby contends that in the FWC reaching the wrong conclusion (that Mr Alouani-Roby’s employment was not terminated on the NRL’s initiative), the FWC’s decision was affected by jurisdictional error because either the FWC misunderstood the nature of the jurisdiction granted to it, or failed to exercise its jurisdiction as required under the FW Act because the FWC failed to address the task statutory task required under s 386(1)(a) to the facts in the case by misconceiving its role and applying an erroneous approach: the FWC gave primacy to the most recent contract in a series of written contracts applicable to Mr Alouani-Roby’s employment, ignoring the “continuing employment relationship between the parties commencing in March 2015” and the conduct of the NRL aimed at bringing that relationship to an end (both before and after the signing of that last Contract). That error purportedly arose from an incorrect application of the High Court’s reasoning in WorkPac (being the system of contracting utilised by the NRL to avoid extant protections under the FW Act) which meant it failed to have regard to equity and good conscience and the merits of the matter as required under s 578 of the FW Act.

40    An additional way that the FWC purportedly failed to exercise its jurisdiction was “by permitting the [NRL] to contract out of the FWC’s inquiry into conduct which the FW Act makes unlawful”.

41    Section 39B of the Judiciary Act 1903 (Cth) prescribes that the Court’s original jurisdiction includes any matter in which a writ of mandamus or prohibition or an injunction is sought against the Commonwealth (s 39B(1)) and matters arising under any laws made by the Parliament (not including criminal matters) (s 39B(1A)(c)). Section 562 of the FW Act confers jurisdiction on this Court in relation to any matter arising under that Act.

Summary of Mr Alouani-Roby’s submissions

42    Mr Alouani-Roby contends that the Full Bench decision was affected by jurisdictional error in determining that Mr Alouani-Roby had not been dismissed within the meaning of s 386(1)(a) of the FW Act, and this error arose because the Full Bench misunderstood the nature of its jurisdiction and failed to apply itself to the question prescribed by the FW Act.

43    This error is said to have arisen because the determination of the statutory question under s 386(1)(a) is not limited to a consideration of an employee’s most recent contract of employment (which is what Mr Alouani-Roby alleges the FWC did). By concluding that Mr Alouani-Roby’s employment had been terminated because the Contract was terminated by the effluxion of time, the FWC ignored the continuing employment relationship and the conduct of the NRL aimed at bringing that relationship to an end which occurred both before and after the signing of the Contract. In doing so, Mr Alouani-Roby submitted that the FWC misapplied the first two principles in Khayam, namely: given that there were a series of time-limited contracts here, the analysis depended on a “consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract” (and there was no such analysis); and the focus of the inquiry was 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 (there was no such consideration). This is consistent with the holding in D’Lima, that the reality of the employment relationship was pertinent, and Fisher (at 470):

…[I]f 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.

By referring to “recourse to contracts of employment for a specified period the aim of which is to avoid the protection resulting from the Convention (and the Recommendation)”, the terms of the Convention and the Recommendation recognize that the use of such contracts may be at the direction, and for the benefit, of the employer and that entry into such a contract by an employee may not signify either the intention or the desire of the employee to terminate the employment relationship at the end of the period specified in the employment contract.

44    This misapplication was purportedly manifest in the FWC’s failure to have regard to the practical reality of the circumstances, which purportedly had two components: first, the scheme of contractual arrangements; and secondly, in this context, the specific application of this contractual scheme which placed Mr Alouani-Roby in a particular “position”, whereby he was ranked “at the bottom end of the squad that render[ed] him vulnerable not to be dealt a contract at the discretion and initiative of the NRL”. Mr Alouani-Roby contends that he was in that bottom ranking “position” because of the purported inappropriate behaviour of the NRL which was, amongst other things, contrary to the general protections provisions of the FW Act, as he had a health condition and faced disability discrimination.

45    This is said to constitute a “vital failing” of the FWC when performing its functions under this remedial piece of legislation, particularly those going to the general protections provisions, and its obligations under ss 578(a) and (b) of FW Act when exercising its powers to take into account the objects of the FW Act and “equity, good conscience and the merits of the matter”. This required the FWC to consider all the circumstances and to get to the heart of the matter. Instead, the Full Bench erred by narrowing its focus to binding contractual obligations and accepting the system of contracting utilised by the NRL as beyond its field of inquiry.

Additional grounds relied upon by the respondents

46    The respondents contend that the FWC’s decision was not infected by jurisdictional error but, even if it was, the error was immaterial because the NRL had not dismissed Mr Alouani-Roby due to the operation of s 386(2)(a). Specifically, Mr Alouani-Roby was employed under a contract of employment for a specified period of time and his employment terminated upon the expiry of the specified period.

Consideration

Nature of the jurisdiction

47    For Mr Alouani-Roby’s application to succeed it is necessary for him to show that the Full Bench committed jurisdictional error.

48    Mr Alouani-Roby claims that the jurisdictional error comprised, first, the misapprehension and misapplication of the statutory test under s 386(1)(a) by a restricted consideration of his most recent Contract and failing to have regard to the initiatives of the NRL and, secondly, not having regard to, or failing to take into account, matters required under s 578 of the FW Act.

49    An administrative tribunal commits jurisdictional error where it exceeds its authority or power or declines to exercise that authority or power by identifying the wrong issue or asking itself the wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion: Craig v South Australia (1995) 184 CLR 163 at 179; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [31] per Kirby J; Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591 at [43].

50    In Bobrenitsky v Sydney Trains [2023] FCAFC 96; 298 FCR 34, the Full Court described the appropriate test to apply when determining whether a decision by the FWC is affected by jurisdictional error (at [48]–[50]):

48     To make good on the proposition inherent in ground 1A, Mr Bobrenitsky must demonstrate that the full bench’s exercise of appellate power in this matter was the product of an error of law by reason of which it was moved:

…to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or…to make an erroneous finding or to reach a mistaken conclusion…

See: Craig v South Australia (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

49     In Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, Jordan CJ summarised the position as follows (at 420, references omitted):

…[T]he mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction... But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply “a wrong and inadmissible test”…; or to “misconceive its duty,” or “not to apply itself to the question which the law prescribes”…; or “to misunderstand the nature of the opinion which it is to form”…, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law…

50     More recently, in Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537 (Allsop CJ, Siopis and Buchanan JJ; hereafter “Toms”), this court described (at 551 [59]) as follows the task with which the court is now confronted:

…The task on judicial review is not simply to assess whether an administrative tribunal was right or wrong in its conclusions, or whether it made errors in its analysis. The task is not to correct perceived errors made within jurisdiction. The task is to examine whether the tribunal misconceived its role or otherwise failed to exercise its jurisdiction so that its decision should not be seen as a true exercise of the power committed to it at all.

(See also and to similar effect: Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385, 403 [90] (Flick, White and Perry JJ))

(Emphasis added.)

51    As can be seen from the Full Court’s decision in Toms, there is a distinction between errors that are in excess of jurisdiction, and errors that are within jurisdiction. If the Full Bench makes an error in answering the correct question (ie, whether Mr Alouani-Roby had been “dismissed” within the meaning of s 386(1)(a)), it may not be an error outside of jurisdiction, but rather an error within jurisdiction, because when determining whether Mr Alouani-Roby had been dismissed, factual findings need to be made, which is “quintessentially” a matter for the FWC. Noting this distinction, the respondents submitted that if the Full Bench asked themselves the right question, it did not matter whether this Court may have come to a different conclusion to that of the Full Bench, because that is an error the Full Bench was entitled to make.

52    The question of whether there has been a termination on the initiative of the employer is a factual decision: Coles at [64]–[71].

53    The determination of a factual issue is based on the FWC forming a state of satisfaction as to the existence of a particular fact, which is only susceptible to narrow attack on a jurisdictional basis: D&D Traffic Management Pty Ltd v Australian Workers’ Union [2022] FCAFC 113; 178 ALD 164 at [32]–[35].

Purported failure to answer the question or understand the nature of its jurisdiction

54    It may be accepted that the determination of whether Mr Alouani-Roby was dismissed within the meaning of s 386(1)(a) involves a factual inquiry by reference to the termination of the employment relationship (including, where necessary, the circumstances of the entire relationship) not by reference merely to the applicable employment contract. Mr Alouani-Roby accepts that the terms of the Contract are relevant to that inquiry. Furthermore, the authorities have long recognised that a termination will not constitute a “dismissal” within the meaning of s 386(1)(a) where the terms of “an operative time-limited contract reflect a genuine agreement on the part of the employer and the employee” absent a vitiating or other factor of the type referred to in principle five of the Khayam decision extracted at [33] above.

55    The terms of s 386 (and its predecessor provisions) reflect this position. Section 386(2)(a) specifically excludes persons from the unfair dismissal and general protections claims involving dismissal who were employed under a contract of employment for a specified period. This position reflects the terms of the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, opened for signature 22 June 1982, ATS 1994 4, (entered into force 23 November 1985), which underpinned the first occasion, under federal industrial legislation, which permitted the exclusion of certain categories of employees, including those engaged under a contract of employment, from the unfair dismissal protections: see s 170CC of the former Industrial Relations Act 1988 (Cth) (as introduced in the Industrial Relations Reform Act 1993 (Cth)) and reg 30B of the Industrial Relations Regulations 1989 (Cth) (as introduced in the Industrial Relations Regulations (Amendment) 1994 (Cth)). The effect of those provisions was replicated in the subsequent Workplace Relations Act 1996 (Cth) (as amended by the Workplace Relations Amendment (Fair Termination) Act 2003 (Cth)) at s 170CBA, though no longer with reference to and reliance upon the Convention.

56    However, as recognised in Fisher, the Termination of Employment Recommendation (1982) (Recommendations to the Convention), noted that adequate safeguards should be provided against recourse to contracts of employment for a specified period of time in order to avoid protection resulting from the Convention: Fisher at 467–8. Suggested legislative safeguards were said to include limiting recourse to such contracts where it was only apt to do so by the nature of the work being undertaken and the circumstances of the parties. Reflective of the same, multiple authorities have identified circumstances in which a termination of employment occurring at the end of a time-limited employment contract may nonetheless constitute a termination at the initiative of the employer, for example where a series of contracts were entered into merely for administrative convenience: see most particularly Khayam at [75(5)] and D’Lima at 26. In Fisher, it was held that, despite Ms Fisher having been employed under three fixed term contracts, the use of that contracting arrangement was not unreal, unconscientious or oppressive, and accordingly, there had not been a termination at the initiative of the employer: at 472. Indeed, the Full Bench, in this case, considered each of those authorities, as well as others, in detail: FBD[107]–[117].

Did not limit inquiry to the Contract

57    As is apparent from Mr Alouani-Roby’s submissions, there is an intertwining between the bases upon which he relies as constituting jurisdictional error where he says that the FWC, as constituted by both Deputy President Cross and the Full Bench, committed various forms of jurisdictional error by virtue of their giving primacy to Mr Alouani-Roby’s recent Contract, and to various aspects of the decision in WorkPac.

58    However, contrary to Mr Alouani-Roby’s submission, it is abundantly clear from the Full Bench’s reasoning that it did not limit its consideration to only the most recent contractual terms, but rather to the entirety of the circumstances giving rise to and constituting the employment relationship. This is evident from the commencement of the Full Bench’s consideration where it deals with the relevant case law. First, it identifies the correct question at FBD[98] being “whether the appellant had been dismissed within the meaning of s 386(1)(a)”. At hearing, Mr Alouani-Roby conceded that the correct question had been asked but claimed that it had been misapplied by the FWC’s limited inquiry (namely, limited only to the terms of Mr Alouani-Roby’s most recent contract). Secondly, it identified the relevant jurisprudence, including Khayam and, contrary to the submission of the respondents below, found, consistent with the position of Mr Alouani-Roby, that the principles identified in Khayam remain relevant to the determination of jurisdiction under s 386(1)(a). This is apparent from FBD[103]. Thereafter, the Full Bench recited the principles in Khayam at FBD[104], and dealt with the case law underpinning and/or affirming each of the five principles identified in that decision. The Full Bench then, again, restated the correct question at FBD[123], which is extracted as follows:

Before turning to consider the appeal grounds in the present case, we make some general observations. As the cases establish, the central question posed by s 386(l)(a) is whether a person has been dismissed by virtue of the person’s employment being terminated on the employer’s initiative. The use of the verb “terminated” does not require the legal event that ends the relationship to be an action of the employer and simply requires that the employer initiate the ending of the employment.

59    The Full Bench thereafter applied the relevant test.

60    The Full Bench, consistently with Mr Alouani-Roby’s submission, stated that the question of whether the employee’s termination was at the initiative of the employer (as is notable from the first principle at [75] of Khayam) is answered by focusing not only on the employment contract, but the entire employment relationship: at FBD[130]. The Full Bench restates the same at FBD[131]. But the Full Bench does note, when responding to Mr Alouani-Roby’s submission, that the FWC is not empowered to determine whether a person has been dismissed based on a view that it would be fair or just for the person to be eligible to seek a particular remedy (at FBD[133]). The Full Bench thereafter found (at FBD[134]) that, in their view, the grounds of appeal and submissions as to the construction and application of s 386(1)(a) involve the inversion of the inquiry by “focusing on the Deputy President’s findings about the conduct alleged by the appellant rather than the entire employment relationship” (emphasis added). Accordingly, it is abundantly clear from their reasons and how they construe and apply the relevant test thereafter, that there is no basis on any of the grounds upon which it can be said that they asked the wrong question or misapplied the legal test with respect to what was required of them.

61    It is clear that the Full Bench gave consideration to the “centrality” of the employment relationship, and one can see from FBD[137]–[142], that they gave consideration to the circumstances giving rise to the system of maximum term contracts. At FBD[139] the Full Bench found that the NRL allowed the Contract to expire as it was permitted to do and “acted passively, rather than taking any steps that would constitute termination of employment of [the NRL’s] initiative”. How they arrive at that conclusion is evident from the reasoning which precedes it and what follows it. Notably they consider whether there was a genuine agreement between Mr Alouani-Roby and the NRL and note in particular findings that were made by the Deputy President, which were not the subject of dispute on appeal, as to why the agreement was a genuine one.

62    They thereafter deal with an argument raised before them and consistent with some of the arguments raised before this Court, at FBD[141], as to the circumstances giving rise to the most recent Contract, and how Mr Alouani-Roby understood that one-to-two year contracts would be given, and signed them, and that Mr Alouani-Roby was forewarned that, if the parties were in the same position at the end of the contractual period, it was likely that it would be his last. By virtue of this, they found that, consistent with principle four in Khayam, there was a genuine agreement between them: at FBD[142].

Did not fail to have regard to the practical reality

63    Contrary to Mr Alouani-Roby’s claim, the Full Bench did not ignore or fail to have regard to the practical reality of the employment relationship. Rather, the Full Bench considered the two initiatives Mr Alouani-Roby sought to deploy on appeal, and has again sought to rely on in this review, at FBD[142]–[145], extracted as follows:

142    Accordingly, consistent with principle 4, there was a genuine agreement on the part of the employer and employee that the employment relationship would not continue past 30 November 2020. Notwithstanding that position, the Appellant asserts that he did not leave his employment voluntarily and that the following matters are initiatives of the Respondents, which were the principal contributing factors to the ending of his employment. The first initiative is said to have been that the First Respondent set up an entire scheme of employment which gave it discretion to select and rank match officials and decide who will get shorter or longer contracts, or who will get contracts at all.

143     Secondly, it is asserted that the Respondents engaged in conduct described in paragraph [31] above, including not allowing the Appellant to fully recover from his illness; victimisation; corruption of the Appellant’s performance data to set him up for removal; scapegoating the Appellant in relation to any errors; placing inappropriate performance demands on the Appellant in an attempt to force him to resign; informing the Appellant in October 2019 a decision would be made whether to continue the employment relationship depending on his performance in October 2020, and then prematurely telling the Appellant in June 2020 that his contract would not be renewed; and causing the Appellant’s health to break down to such an extent that the Appellant was unable to continue to work following a meeting on 9 June 2020.

144     With respect to the first initiative alleged by the Appellant, consistent with the observation in Workpac v Rossato, nothing in the statutory framework within which the employment relationship has been established, inhibits the freedom of parties to enter into a maximum term contract. It cannot be that the mere act of the First Respondent entering a maximum term contract with the Appellant is, of itself, the principal contributing factor resulting in the termination of employment if employment terminates as provided in the contract. Maximum term contracts are also authorised by the National Rugby League (Match Officials) Agreement 2019, an enterprise agreement approved by the Commission, as a mechanism for the First Respondent to employ match officials. The Appellant’s contract was consistent with the terms of that agreement.

145     In relation to the second initiative alleged by the Appellant, we are of the view that if it is accepted that all the conduct took place, the conduct was not the principal contributing factor which resulted directly or consequentially in the termination of the Appellant’s employment. For the reasons set out below in relation to other related grounds of appeal, on the Appellant’s evidence, the conduct occurred before the final contract commenced and was unrelated to the terms of the final contract when the context in which the final contract was made is considered. Further, the Appellant’s employment ended pursuant to the agreed terms of the final contract, independently of the conduct and there is no causal relationship between the conduct and the ending of the employment consistent with the term of the last contract. The Appellant did not resign his employment because of the conduct and the Respondents took no steps to end the employment either directly or consequentially and there was no requirement that they take such steps for the contract to end, given its terms. In the context of the entire employment relationship, the last employment contract is not connected to the alleged conduct but is consistent with the manner in which the First Respondent employed all full-time match officials as provided for in the Agreement. In short, the final contract was entered into despite the conduct and there is no causal connection between the conduct and the ending of the Appellant’s employment consistent with the terms of his contract.

64    I do not accept the FWC erred by purportedly failing to have regard to the practical reality of the situation.

65    It was Mr Alouani-Roby’s submission before the Deputy President that “[t]he reason [his employment was terminated]…was not as a consequence of the effluxion of time of his outer limits contract but was the consequence of a deliberate course of action on the part of Mr Sutton, assisted by the inaction of the NRL, to remove…[him] from his match official position”. He submitted it was not the expiration of the Contract, but the “hostile work environment, and the bullying and retaliatory conduct on the part of Mr Sutton and the NRL” that resulted directly in the termination. The Full Bench was cognisant of and correctly summarised his submission to this effect, namely, that Mr Alouani-Roby claimed that he “was placed in a position whereby, he was linked to a scheme, brought about by a series of acts, discretions, and selections by the [NRL], and that the selection of [him] within that scheme was based on disability discrimination, dishonesty and corrupt data”: at FBD[48].

66    As the Full Bench observed, at FBD[142], the first initiative was purportedly the setting up of “an entire scheme of employment which gave [the NRL] discretion to select and rank match officials and decide who will get shorter or longer contracts, or who will get contracts at all”.

67    It may be accepted that if the FWC had closed its mind to a consideration of the circumstances leading up to the termination of employment and had not undertaken the requisite factual inquiry, then such a failure may, depending on the circumstances, lead to error. However, that is not what the Deputy President did nor the Full Bench on appeal. The determination of the cause of the termination is a factual exercise undertaken daily by this specialist tribunal. The weight given to the facts are within its remit. It is evident from the above that specific consideration was given to each of the purported “initiatives” and why the Full Bench was not convinced that the Deputy President had erred in his conclusion.

68    With respect to the first initiative (ie, the scheme of contracting and selection and ranking) it is worth considering the Full Bench’s findings at FBD[142]–[145] (extracted at [63] above), in the context of relevant aspects of its earlier reasoning. It is a question of fact as to whether the NRL deployed a deliberate strategy through a system of contracting designed to avoid the protections of the FW Act. It is also a question of fact as to whether maximum term contracts are appropriate in particular fields or industries. The Full Bench had already: (a) recognised that the entering into a series of fixed-term contracts did not mean that the termination may not otherwise be at the NRL’s initiative by its consideration of authorities where this had been found to be case (FBD[107]–[117]); (b) recognised, consistent with what had been noted in the Recommendations to the Convention concerning adequate safeguards, that an indication as to the appropriateness of this kind of contracting in a particular industry may be gleaned from applicable industrial instruments (at FBD [110], [131]) and, where in this case, an enterprise agreement approved by the FWC prior to Mr Alouani-Roby’s Contract commencing, “specifically provided for all persons employed as full-time referees to be employed on maximum term contracts” (at FBD[137]); (c) noted that the terms of the Contract to which Mr Alouani-Roby agreed that the employment relationship would end on the completion of the Contract term and that any decision as to whether to offer further employment would be separate and distinct from the Contract (at FBD[138]); (d) found that the evidence established that the NRL allowed the Contract to expire as it was permitted to do, and acted passively, rather than taking any steps by which the termination would have been at their initiative (at FBD[139]); (e) accepted that the evidence before the Deputy President was that the agreement was a “genuine” one, that the circumstances of D’Lima were not evident here, and that maximum term contracts were appropriate “in the field of elite professional sports”, which Mr Alouani-Roby had not disputed (at FBD[140]); and (f) referred to Mr Alouani-Roby’s evidence as to what he was told when he entered into the last Contract, namely that if the parties were in the same position the following year it was likely to be his last Contract and, notwithstanding this advice, he signed the Contract (at FBD[141]).

69    I can discern no error of a jurisdictional kind in the way that the Full Bench considered the first initiative and made the conclusion it did at FBD[144]. It was open for the Full Bench to conclude, as the Deputy President had, that there is no prohibition on employees being employed under maximum term contracts. The legislation specifically recognises the same by the inclusion of the exception in s 386(2)(a). However, as can be seen above, the Full Bench was alive to the possibility that such an arrangement was not a true reflection of the reality, but dismissed it, in a reasoned way with reference to Mr Alouani-Roby’s arguments and the evidence.

70    Mr Alouani-Roby submitted that the reference to WorkPac (at FBD[144]) and the capacity for contractual freedom was not to the point, an irrelevant consideration, and evinced the deployment of an incorrect (narrow contractual lens) test contrary to the reasoning in Fisher at 470 and the test in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. However, I do not accept that a reading of the paragraph as a whole, together with what precedes and proceeds after it, demonstrates error.

71    Related in a thematic way, Mr Alouani-Roby submitted that the FWC erroneously concluded that the FW Act prevented the abovementioned “contractual device” from being considered as an attempt to evade the unfair dismissal and general protections provisions in the FW Act, relying on the Full Bench’s reasoning at FBD[166], which is as follows:

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

(Emphasis added.)

72    I do not accept, as is evident from this reasoning, that the Full Bench believed that the FW Act prevented this “contractual device” from being considered. The Full Bench engaged with each of Mr Alouani-Roby’s arguments as to the contractual arrangements and did not fail to take into account the wider picture of those arrangements. Rather, the Full Bench ultimately did not accept, as it was open for it to do so, the import of those arguments.

73    Ultimately, the Full Bench did not accept that the Contract was an attempt to evade unfair dismissal and general protections provisions and gave consideration to why in this industry the use of time limited contracts was appropriate (affirming the conclusions of the Deputy President): at FBD[166]–[170]. Whether or not a contract is appropriate to a field of employment is ultimately a factual question, which requires an evaluative consideration by the FWC. The FWC is appropriately placed to undertake this evaluation due to its specialist expertise and the fact that Commissioners deal with these practical issues on a day-to-day basis.

74    The Full Bench engaged with this issue at FBD[140], taking into account Deputy President Cross’s findings at D[112]–[113]. There was evidence from Mr Sutton regarding the appropriateness of using the scheme of contracting used by the NRL: the NRL operates on a season-by-season basis and, as such, there is a desire to use the highest quality officials. The ranking of the NRL officials is usually conducted on a season-by-season basis. Ultimately, like in every professional sport, there must be an evaluation about who the best match officials are, and this will change each season. In these circumstances, using a fixed or maximum-term contract ensures that the NRL maintains flexibility to ensure that the best match officials are part of the squad. The Full Bench’s reasoning at FBD[140] is extracted as follows:

In all the circumstances, including the evidence set out in the Deputy President’s decision, the final contract reflected a genuine agreement on the part of the Appellant and the First Respondent, that the employment relationship would not continue after 30 November 2020, and it is not in dispute that it came to an end on that date. It is also the case that circumstances of the kind that pertained in D’Lima are not evident in the present case. There is no indication that the contracts were a practice put in place by the First Respondent for mere administrative convenience. The Deputy President 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 the Appellant. The Appellant 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 the Appellant. We do not accept that submission.

75    As to Mr Alouani-Roby’s argument regarding the NRL’s purported ranking of its officials against one another: as submitted by the NRL, the question of ranking is directed to why there was not a further contract afforded to Mr Alouani-Roby. As recognised by the Full Bench, there is a factual distinction (as was also recognised in Khayam at [75(4)]) between, on the one hand, the making of a genuine agreement which provides that the employment relationship will not extend beyond a specified date and, on the other hand, a decision by an employer not to offer a further contract of employment. As to whether there is such a distinction, and the determination of the “cause” of the termination, these are ultimately questions of fact to be determined by the trier of fact.

76    There was an overlap between the allegations which underpinned the first and second initiatives, as can be seen from Mr Alouani-Roby’s submissions and how the Full Bench described them. As to the second initiative, the Full Bench understood (and no issue was taken on appeal in this respect) it was that the respondents engaged in a course of conduct which, inter alia, included not allowing Mr Alouani-Roby to fully recover from his illness, victimising him, corrupting the performance data to set him up for removal and scapegoating him for game errors: at FBD[31], [143]. Again, as to whether such conduct was causative of the termination is a matter to be determined on the facts. The Full Bench determined that the “conduct occurred before the final contract commenced and was unrelated to the terms of the final contract”: at FBD[145]. It determined that there was no causal relationship between the conduct and the ending of employment. I can discern no error of a jurisdictional nature as to the approach taken leading to the conclusions drawn by the specialist tribunal.

“But for” argument

77    A related attack on the FWC’s exercise of its jurisdiction is said to have occurred on the basis that the FWC failed to apply a “but for” test, described in Mohazab at 205–6 as being that the relevant question is whether, “had the employer not taken the action it did, the employee would have remained in the employment relationship”.

78    On his submission, but for the NRL’s system of allocating or not allocating fixed-term contracts dependent on employee rankings, where Mr Alouani-Roby was positioned at a level in the squad where he would not be allocated a contract, Mr Alouani-Roby’s “relationship with the NRL would have continued” and he would have been given “another contract”. In this context, Mr Alouani-Roby’s attack was on the Deputy President’s and the Full Bench’s findings that there was no causal connection back to the system of allocation of contracts and the positioning of Mr Alouani-Roby at a low level in the squad. In essence, paraphrasing the analogy deployed by Perram J in Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587; 398 ALR 39 at [228], the NRL had a loaded gun which was self-executing.

79    I do not accept that the “but for” test applies when determining whether a person had been dismissed on the employer’s initiative pursuant to s 386(1)(a). The principle outlined in Mohazab (namely, “a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship” (at 205)) on which Mr Alouani-Roby relies is not, in fact, a “but for” test. Rather, the holding requires the identification of the principal contributing factor, namely the causal link to the termination of employment. The authorities that concern constructive dismissal (including Mohazab) illustrate why the “but for” test is not an appropriate test: they make clear that determining whether a person was dismissed at an employer’s initiative depends upon either the intention or probability of a consequence which is known by the employer that the employment would terminate. Such an involved inquiry is far from a simplistic “but for” assessment. By way of illustration, in Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154, the Industrial Relations Court considered whether an employee who resigned was in fact constructively dismissed. Justice Moore opined (at 160–1):

… it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct.

(Emphasis added.)

80    Similarly, in Pawel v Australian Industrial Relations Commission [1999] FCA 1660; 94 FCR 231 (another constructive dismissal case), Dowsett J observed that if “initiative” implies only causation, it will usually be arguable that the employer has “initiated” the termination, stating at [58]:

…Although it may be good managerial practice to offer job satisfaction, it cannot be guaranteed. Many dissatisfied employees resign. The process prescribed in Div 3, which depends on termination, is too cumbersome to have been intended to resolve issues of that kind. I do not accept that any employee whose decision to resign was, to some extent, motivated by action or inaction on the part of the employer, may initiate proceedings pursuant to s 170CE(l). Mere “causation” or “motivation” will not satisfy the requirement that the termination be at the initiative of the employer. For similar reasons, I doubt the efficacy of any “but for” test.

81    Whilst Dowsett J was not in the majority, his Honour’s position was not contrary to the majority’s reasons, nor did the majority deal with the “but for” issue in their Honours’ reasons.

82    As such, in order to determine whether an employee has been terminated at the initiative of the employer, there must be intent (which requires an assessment of the employer’s state of mind), or there must be, objectively, the probability that termination would result by virtue of the employer’s conduct. Accordingly, the Full Bench was required to evaluate all the evidence and determine as a matter of fact what caused the termination. The Full Bench did not erroneously limit their inquiry, as alleged by Mr Alouani-Roby and considered above, but rather, came to a conclusion on the facts which he does not agree with, namely, that the NRL allowed Mr Alouani-Roby’s Contract to expire (as it was entitled to) and acted passively, rather than taking any steps that could constitute termination of employment on the NRL’s initiative: at FBD[139].

Purported misunderstanding of jurisdiction

83    In addition, I do not accept that the Full Bench failed to approach the matter with a proper understanding of its jurisdiction as a tribunal to consider matters in accordance with s 578 of the FW Act (considering the objects of the FW Act and equity, good conscience, and the merits of the matter). This was said to have occurred by the narrowness of the Full Bench’s focus on binding contractual obligations and accepting the system of contracting utilised by the NRL as beyond its field of inquiry. For the reasons outlined above, I do not accept that the Full Bench had such a narrow focus, nor do I accept that the Full Bench has failed to adhere to any obligation arising from s 578.

84    Section 578 is contained within Pt 5-1 of the FW Act, which concerns the conferral and performance of the FWC’s functions. Other provisions contained within Pt 5-1 (including ss 577(1), 590(1) and 591) indicate that s 578 is directed to providing the FWC with a high degree of flexibility in relation to types and forms of evidence that it may receive, and the procedure it may adopt, but it is not intended to affect substantive rules of law.

85    The words “equity, good conscience and the merits of the matter” and cognate expressions have been used for centuries in various legislative settings, where their meaning depends on the statutory context. In the context of the FW Act, s 578 forms part of a set of provisions that are intended to be facultative, whose purpose has been described, with respect to similar provisions under migration legislation as freeing tribunals “at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals”: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 61 at [49] (per Gleeson CJ and McHugh J).

86    The application of s 578 will vary depending on the particular function, jurisdiction or power being exercised by the FWC, having regard to the particular decision that must be made. Section 578 is not a source of additional jurisdiction, but rather provides discretion as to the manner in which the jurisdiction may be exercised: see Griggs v Norris Group of Companies [2006] SASC 23; 94 SASR 126 at [36], [41].

87    The obligation to take into account “equity, good conscience and the merits of the matter” does not provided a basis for the statutory decision-maker to ignore or modify the rules of law applicable to its jurisdiction.

88    The Full Bench was required to satisfy itself of the existence of a jurisdictional fact (ie, whether Mr Alouani-Roby had been dismissed pursuant to s 386(1)). In a judicial review application, this Court is to determine whether the FWC was correct in finding that a jurisdictional fact existed. Section 578(b) does not apply to the Court’s power in determining such a question of law nor modify the legal approach to the FWC’s determination of whether Mr Alouani-Roby was dismissed within the meaning of s 386(1).

The respondents’ alternative case

89    In the alternative, the respondents contend, even if the Full Bench had erred, the error was not material or the Court would not exercise its discretion in granting the relief sought, on the basis that the NRL had not dismissed Mr Alouani-Roby within the meaning of s 386 given the available exception under s 386(2)(a): Mr Alouani-Roby was employed under a contract of employment for a specified period of time and his employment terminated upon the expiry of the specified period.

90    Given my finding above, there is strictly no necessity to deal with this alternative case. However, in the event that I am wrong, my reasons with respect to this argument are briefly as follows.

91    It is not in dispute, as the Deputy President found, that the NRL and Mr Alouani-Roby entered into the Contract and this contract was terminated on 30 November 2020: at D[44]. The Contract provided that it operated for a maximum term commencing on 1 December 2019 and terminated on 30 November 2020 and that the parties intended that the employment relationship would end at the completion of the term but could be terminated earlier in accordance with its terms: see item 3 of the Contract extracted above.

92    I am concerned that this argument is being raised when it was not run before the Full Bench. Such a course is not to be encouraged particularly where the argument is contrary to the holding of a previous, differently constituted FWC Full Bench decision, in Khayam. In Khayam, the Full Bench held, applying the reasoning from previous authorities construing predecessor legislation, that s 386(2)(a) did not apply to maximum term contracts which allowed for early termination: Khayam at [77]–[96].

93    However, I accept, that s 386(2)(a) arises in a differently constituted provision and the subsection itself is worded differently from the predecessor provisions. The most recent predecessor provision, the relevant portion of s 170CBA of the Workplace Relations Act 1996 (Cth) provided:

170CBA Exclusions

Exclusions from Subdivisions B, D, E and F and sections 170CL and 170CM

(1)    The following kinds of employee are excluded from the operation of Subdivisions B, D, E and F and sections 170CL and 170CM:

(a)    an employee engaged under a contract of employment for a specified period of time;

(b)    an employee engaged under a contract of employment for a specified task;

…

94    I note that the current corresponding exclusion provides as follows:

…

(2)     However, a person has not been dismissed if:

(a)     a 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.

…

95    There is a notable difference between the predecessor provision and the current provision. The current provision not only identifies the types of contracts excluded but also the circumstance in which those contracts come to an end.

96    There would be no need for the former stipulation if the legislature had intended that “a person was employed under a contract of employment for a specified period” not apply to maximum term contracts which contained early termination clauses. If one were to interpret the provision, as not applying to maximum term contracts which contained early termination clauses, this result appears to be directly contrary to the intent of the provision.

97    I accept that the contrary argument is that the phrase “contract of employment for a specified period of time” is replicated in the FW Act and that the phrase had previously been construed as not applying to contracts which were essentially outer limit contracts which allowed for early termination: see Cooper v Darwin Rugby League Inc (1994) 57 IR 238 at 241; Andersen v Umbakumba Community Council (1994) 126 ALR 121 at 125–6. 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. A construction of the provision on its terms supports the NRL’s interpretation without need for recourse to the extrinsic material. I accept the NRL’s argument that s 386(2)(a) 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.

98    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 re-enacted. 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.

99    However, in any event, the extrinsic material expressly supports this view: The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) confirms that s 386(2)(a) was intended to have a different operation to earlier exclusions (at [1532]):

Paragraph 386(2)(a) reflects the common law position that termination in these circumstances 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.

100    Reference to the “common law position” is instructive. The common law position is that, regardless of whether a contract is capable of early termination, contracts that have a fixed and maximum term terminate automatically upon their expiration: Victoria v Commonwealth (1996) 187 CLR 416 at 520; Coleman v Mirror Newspapers Ltd (1967) 10 FLR 426 at 429.

101    Accordingly, if I were wrong regarding the absence of error, the error would not be material in the circumstances given the availability of this alternative argument to the NRL and the Court would not, in the circumstances, be minded to exercise its discretion to grant the relief sought by Mr Alouani-Roby.

Confidentiality orders

102    At hearing, the parties noted that a number of documents were (and continue to be) subject to confidentiality orders made by the FWC. These documents are now contained in the court book. Counsel for the NRL suggested at hearing that, out of abundant caution, it may be necessary for the Court to make its own confidentiality orders with respect to the same documents. This course was not objected to by Mr Alouani-Roby’s solicitor, and as such I suggested that the parties draft proposed confidentiality orders for the relevant documents contained in the court book.

103    The parties provided consent orders to my chambers seeking confidentiality of certain information contained within documents that formed part of the court book for the purposes of this proceeding. The orders sought were as follows:

THE COURT ORDERS BY CONSENT THAT:

1.    In relation to the contract documents and related ‘key’ documents which are items 24 and 25 in the Court Book (pages 761 to 2254), the following information will be prohibited from publication and kept confidential to the parties and the Federal Court only, other than for the purposes of the current Federal Court proceedings or by the First Respondent in the course of its business operations:

(a)    The name and tier of each Match Official (other than the Applicant) to which a contract relates.

104    However, the parties provided no formal application, supporting evidence nor submissions as to why the order should be made. In the circumstances, I am not in a position to make such an order. Accordingly, the appropriate course is for a notation to be made on the Court file that, in the event that any non-party seeks access to the file (where the effect of such a request would mean that the name and tier of each Match Official in pages 761 to 2254 of the court book would be disclosed), the parties be informed of the request and be afforded an opportunity to make submissions prior to access being granted.

Conclusion

105    For the above reasons, the application should be dismissed.

Associate:

Dated:    18 January 2024

SCHEDULE OF PARTIES