When reviewing a recent decision in William Zammit v Larrakia Nation Aboriginal Corporation. [2015] FWC 7368 (U2015/9313). BISSETT,C. 30 OCTOBER 2015, where the applicant failed due to wont of jurisdiction (ie the Commissioner found the contract to be a true fixed term contract), this decision referred to another citation in:

 

Miss Eleanor Downes v The Uniting Church in Australia Property Trust (Q.) T/A Wesley Mission Brisbane. [2013] FWC 8890 (U2013/10566). RICHARD, SDP. 19 NOVEMBER 2013

 

In the Richard decision, Ms Downs was “paid out her contract (by four weeks) and as such the SPS found that it was not a true fixed term contract, because it did not end by the “effluxion of time”.

 

However, whilst finding in favour of the applicant, the SDP cautioned:

 

“The critical question for the purposes of any arbitration – and it is one about which the Applicant may seek advice – is whether the Applicant, even if she was found to have been harshly unjustly and unreasonably dismissed (and that is a question that remains very much left open for determination) would have any scope for re-employment, or compensation in lieu, as a consequence of the employer having discharged its obligations to her in full.

 

“The Applicant would need to carefully consider this question before pressing her claim further.”

 

[IE: She “won” but she “lost”].

 

The importance of this decision is the amount of work that the SDP put into it, including examining the many precedents. The SDP then compare ding the Fair Work Act explanatory Memorandum, with wording of the Act itself, finding:

 

“Here, the meaning of an employee engaged under a contract of employment for a specified period of time is not one that emerges from the plain words of the statute as such, or its context, as it is not a defined term. But the phrase has a meaning derived from judicial interpretation over time (and which is reflected in the parochial authorities).

  

“The Parliament may have intended by the exclusion of the statutory note in the Act to provide a different definition of the phrase that is consistent with the Explanatory Memorandum. Yet Parliament did not see fit to alter the statutory phrase itself. The jurisdictional exclusion remains referrable to an employee engaged under a contract of employment for a specified period of time. The words of the central statutory phrase have not been amended. The exclusion of the statutory notation arguably changes little as such notes are not a substitute for the words of the statute itself.”

 

[In short, you can have all the explanatory documents you like, but unless the words are transferred to the Act, then they mean zero].

 

The main point of this article is to reinforce the following:

 

  • Having a probationary employment clause is okay as:

 

“…should the Applicant fail to satisfactorily achieve service of the contract [as] the probationary provision in the contract is not a broad or unfettered right to terminate the contract.”

 

  • A clause that ends the contract because of a breach by the other party is also acceptable.

 

  • An “unqualified right” (such as a termination clause) “… to terminate without reason…cannot be so characterised (as one contract of employment for a specified period of time).”

 

Commentary

 

It is my strong opinion that temporary contracts of employment should be used with great caution, whereas casual employment might be a more appropriate option.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.