DECISION

Fair Work Act 2009
s 604 - Appeal of decisions

Ms Romana Galbraith
v
Wilmar Sugar Pty Ltd t/a Wilmar Sugar
(C2017/7211)

Appeal against a decision [2017] FWC 4410 of Commissioner Spencer at Brisbane on 7 December 2017 in matter number U2017/5460 – dismissal of a person in the Queensland sugar industry – application of s 386(2) of Fair Work Act – whether each yearly engagement for the sugar crushing season constitutes continuity of employment relationship – beneficial provisions in State legislation – long service leave and personal/carers’ leave – jurisdictional objection to a seasonal worker filing an unfair dismissal application – jurisdictional objection upheld at first instance – person not dismissed – no continuity of employment – whether Commissioner erred – no error established – permission to appeal granted – appeal dismissed.

BACKGROUND

[1] Ms Romana Galbraith (the ‘Appellant’) has applied for permission to appeal and appealed a decision issued in Brisbane by Commissioner Spencer on 7 December 2017 (the ‘Decision’). 1 In the Commissioner’s decision, she dismissed the Appellant’s application, filed under s 394 of the Fair Work Act 2009 (the ‘Act’), for an unfair dismissal remedy against Wilmar Sugar Pty Ltd t/a Wilmar Sugar (‘Wilmar’ or the ‘Respondent’) and issued an order to that effect.

[2] The background to the proceedings before the Commissioner can be shortly stated. The Appellant was employed as a Juice Chemist by Wilmar, a sugar crushing mill in Ayr, Queensland, for each of the sugar crushing seasons from 2008-2014 and the 2016 crushing season. Crushing seasons generally run from July to December each year. The Appellant did not work during the 2015 crushing season. Her seasonal work for 2016 ended on, or about 23 December 2016. Prior to that point, she had been engaged, pursuant to the terms and conditions of the Wilmar Enterprise Agreement 2015 (the ‘Agreement’). The Agreement also provides for the engagement of full time employees, part-time employees and casual employees.

[3] On 8 May 2017, the Appellant was advised, in writing, that she would not be ‘re-engaged’ for the 2017 crushing season due to her failure to provide information relating to a number of shifts she had not attended during the 2016 crushing season. The Appellant contends that she was unfairly dismissed in that her dismissal was harsh, unjust and unreasonable in accordance with s 387 of the Act.

[4] The Respondent raised two jurisdictional objections to the application; firstly, that the Appellant was not an employee at the time she was notified she would not be engaged for the 2017 season; and secondly, that because the Appellant was employed ‘for the duration of a specified season’ (namely, the 2016 season which ended in December 2016) the Appellant was not dismissed, in accordance with s 386(2)(a) of the Act. Section 386 relevantly 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;…

(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 or specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

…..

(3)…’ [Our emphasis]

[5] The Respondent also seeks costs in respect to the proceedings below and this appeal in the event of its appeal being upheld.

THE COMMISSIONER’S DECISION

[6] In her Decision, the Commissioner sets out the factual background to the Appellant’s dismissal at [7]-[17], noting at [7] that the Appellant commenced working with the Respondent on 4 June 2008 and that she was engaged as a seasonal employee for the duration of each subsequent sugar crushing season, except for 2015.

[7] At [16] the Commissioner set out the Appellant’s submissions that:

‘…she was unsure of the date that her dismissal took effect as her, “work is seasonal work which usually commences on the end of May.” The Applicant later submitted that the dismissal took effect on 8 May 2017, the date on which she was notified by the Respondent that she would not be reengaged for the 2017 crushing season The written notification provided to the Applicant on 8 May 2017, stated:

‘…During our discussion between you, Damien and I on the 28th February, you were asked to provide information in relation to how you intended to attend your rostered shift in Ayr on 5th and 6th December before you became ill. In particular you were asked to provide evidence of the planned flight as you were located in Brisbane at that time.

You requested one week to provide this information because the person who booked flights was away at the time we called you to which we agreed.

You contacted me via text message on the Monday 6th March about an itinerary possibly being provided by Thursday. To date we haven’t received any information.

Based on the lack of information provided, we regret to advise that you will not be reengaged this upcoming season…’

[8] At para [17], the Commissioner said:

‘[17] The Respondent submitted that the Applicant’s employment ended on 23 December 2016, at the end of the 2016 crushing season. The Respondent referred to the Applicant’s contract of employment, which set out:

“Your commencement date will be 06.06.2016. This commencement date may change due to extenuating circumstances (e.g. wet weather). Should this be the case, you will be notified of a revised commencement date.

The current ordinary time rate of pay for this position is $996.70 per week.

You will be paid weekly via electronic funds transfer.

This engagement is for the 2016 crushing season.

Unless terminated earlier, the end date of this seasonal engagement will be determined in accordance with the applicable enterprise agreement.

Except to the extent varied by this document, the terms and conditions of your existing contract of employment continue to apply. As a seasonal employee, the provisions of the applicable enterprise agreement that apply to seasonal employees will also apply to your employment…”’

[9] The Commissioner then turned her attention to the relevant legislative provisions of the Act at [18]-[23], noting particularly s 386 to which we earlier referred.

[10] At [21] the Commissioner set out ss 106, 107 and 108 and of the Industrial Relations Act 2016 (Qld), which deal with an entitlement to long service leave for seasonal employees in the sugar industry in Queensland. Section 106 relevantly provides:

‘106 Application of subdivision

This subdivision applies to the following seasonal employees-

(a) an employee employed in seasonal employment in the sugar industry;

(b) ….’

[11] Section 107 sets out the formula for the calculation of long service leave. It reads:

‘107 Entitlement to long service leave

(1) The employee is entitled to long service leave on full pay of at least the number of weeks worked out using the following formula—

Entitlement * (actual service / 10)

where—

entitlement means the entitlement to long service leave of an employee under section 95.

service means actual service expressed as a part of a year

(2) In working out the length of the employee’s continuous service—

(a) service with the employer of the employee engaged in harvesting sugar cane or farm work in the sugar industry before 23 June 1990 must not be taken into account; and

(b) a period between seasons when the employee is not employed by the employer must be taken into account if—

(i) in 1 season—the employee’s service with the employer continued until the end of the season or until an earlier day when the employee’s employment was terminated by the employer; and

(ii) in the next season—the employee’s service with the same employer started on the season’s opening or on a later day in the season when the employer required the employee to start employment.

(3) If the employee is employed by the employer between seasons, the part of the period between seasons when the employee is employed must be taken into account in working out the length of the employee’s actual service.

(4) If the employee is entitled to long service leave other than under this Act, the employee is entitled to leave that is at least as favourable as the entitlement under this section.

(5) In this section—

actual service means the total ordinary time in years actually worked by the employee during the employee’s period of continuous service.’

[12] Section 108 deals with taking long service leave and states:

‘108 Taking long service leave

(1) The employee may take long service leave between seasons.

(2) If the employee takes long service leave between seasons, the leave is taken to have started when the employee last ceased employment with the employer.’

[13] At [22] and [23] the Commissioner set out clause 4.4.1 of the Wilmar Enterprise Agreement 2015 which defines ‘seasonal employees’ and the definition of ‘seasonal employee’, as defined in the Sugar Industry Award 2010 (the ‘Modern Award’) as follows:

[22] The Wilmar Enterprise Agreement 2015 (the Agreement) at cl.4.4.1 defines, “seasonal employee,” as:

“…an employee who has been engaged by the employer on or about the commencement of the crushing season for the purpose of performing duties directly and indirectly related to crushing season operations and whose duties are completed and employment terminated on or about the end of the mill’s crushing season.”

[23] The Sugar Industry Award 2010 (the Award) defines, “seasonal employee,” as meaning:

“seasonal employee means an employee who has been engaged by the employer on or about the commencement of the crushing season for the purpose of performing duties directly and indirectly related to crushing season operations and who’s duties are completed and employment terminated on or about the end of the mill’s crushing season. For the purpose of a 38hour week only, all employees not specifically engaged as seasonal, who are engaged after the first Monday of June in any one year and before the first Monday in June in the subsequent year, will be deemed to be seasonals until the first Monday of June in that subsequent year.”

[14] After summarising the submissions of the Respondent at [24]-[34] and the submissions of the Appellant at [35]-[42], the Commissioner addressed the two jurisdictional objections of the Respondent by reference to s 386 of the Act and paragraphs 1532 and 1534 of the Explanatory Memorandum to the Fair Work Bill 2008 at [43]-[49]. The Explanatory Memorandum states that:

‘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.

…

1534. Season has its ordinary meaning and covers a range of things, for example:

● The part of a year when a product is best or available;

● The part of a year characterised by particular conditions of weather or temperature; or

● The part of a year marked by certain conditions, festivities or other activities’

[15] At [44] the Commissioner found that it was not in dispute that the Appellant had been engaged by the Respondent as a seasonal employee. The Commissioner concluded at [50] that the Appellant’s employment with the Respondent was seasonal and ended on 23 December 2016 at the end of the 2016 crushing season. As the Appellant was no longer an employee, the jurisdiction of the Commission was not enlivened and the application was dismissed.

PRINCIPLES ON APPEAL

[16] The Decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the grounds that the decision involved a ‘significant error of fact’ (s 400(2)).

[17] In the Full Court of the Federal Court Australia decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’.  2 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.³ A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:

‘… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.’ 4

[18] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.⁵ However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.⁶

[19] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 7

[20] An appeal under s 604 is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 8 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[21] The application for permission to appeal and the merits of the appeal were listed before the Full Bench on 7 February 2018. Mr M Swan of the Australian Industry Group (‘Ai Group’) appeared for Wilmar. Pursuant to s 596(2)(a) of the Act, we granted permission for Mr P Raffles of Counsel to appear for the Appellant as it would, in our view, enable the matter to be dealt with more efficiently taking into account the complexity of this appeal.

GROUNDS OF APPEAL

[22] The Appellant advanced the following grounds of appeal:

1. The Commissioner erred by:

(a) failing to take into consideration the difference between an employee contracted for a ‘specified season’ and an employee who had been engaged for a number of seasons (albeit on separate contracts) and the relevance of the employment ‘relationship’ in the application of unfair dismissal laws.

(b) incorrectly applied the terms of s 386(2)(a) of the FW Act as ‘covering the field’ for seasonal employees in the sugar industry in Queensland, without due regard to the extent of the inconsistency of that provision with ss 106-108 of the Industrial Relations Act 2016 (Qld).

(c) Failing to consider the ‘continuity of service’ provisions relating to long service leave for seasonal employees contained in the Wilmar Enterprise Agreement 2015 (AG2015/2913).

2. The Commissioner erred by considering and applying paragraphs [1532] and [1534], without reference to paragraph [1535] of the Explanatory Memorandum to the Fair Work Bill 2008 in interpreting and applying s 386(2)(a) of the FW Act.

3. The failure to take into account paragraph 1535 was a significant omission because it shows the intended narrow application of s 386(2)(a).

[23] The Appellant also submitted that prior to issuing her decision, the Commissioner did not afford the Appellant the opportunity to put submissions on the application of Dale v Hatch P/L (‘Dale v Hatch’)  9 or the Explanatory Memorandum, thereby denying the Appellant procedural fairness. It was said that this amounted to appellable error.

[24] The Appellant submitted that in addition to the above grounds demonstrating public interest, there is appealable error because, inter alia, the legal reasoning and principles applied in the Decision are disharmonious when compared with other recent decisions of the Commission, dealing with similar matters. The Appellant referred to the decision of the Full Bench of the Commission in Khayam v Navitas English Pty Ltd T/A Navitas English (‘Navitas’), 10 noting that Navitas was published one day after the Commissioner issued her Decision.

[25] The Appellant submitted that the public interest is enlivened in this appeal because the contested issues are of significant importance for the Queensland sugar industry, the outcome of the Decision manifests a clear injustice and is counterintuitive to the nature of the relationship between an employer and employee in the sugar industry in Queensland.

[26] The Respondent submitted that permission to appeal ought not be granted as the public interest is neither supported by any reference to the circumstances of the case, or by any attempt at logical argument.

[27] In our view, this appeal raises issues of importance to the Queensland sugar industry and general application as to the approach that should be adopted by the Commission in determining whether there has been a termination of employment at the initiative of the employer, in relation to employees who are seasonal workers, who have been engaged for a number of seasons.

CONSIDERATION

Appeal Grounds 1(a), (b) and (c)

[28] The Appellant contended that the Commissioner erred by failing to take into consideration the difference between an employee contracted for a ‘specified season’ and an employee who had been engaged for a number of seasons (albeit on separate contracts) and the relevance of the employment ‘relationship’ in the application of unfair dismissal laws. The Appellant also contended that the Commissioner did not give due regard to the extent of the inconsistency of ss 106-108 of the Industrial Relations Act 2016(Qld), and failed to consider the ‘continuity of service provisions relating to LSL for seasonal employees contained within the Agreement.

[29] The Appellant submitted that the Commissioner ought to have found that notwithstanding her ‘engagement’, per the written agreement for the 2016 season, there existed an ongoing employment relationship which extended from the time her employment commenced in 2008 until the employer terminated that relationship on 8 May 2017, being the date she was notified that she would not be reengaged for the 2017 crushing season; see: para [8] above.

[30] On the other hand, the Respondent submits that it did not terminate the Appellant’s employment at its own initiative on 8 May 2017, because there was no employment relationship at that time and that the Commissioner correctly decided that the employment of the Appellant ended on 23 December 2016, at the end of the crushing season. Therefore, in accordance with s 386(2)(a) of the Act, the jurisdiction of the Commission was not enlivened.

[31] In support of her contentions, the Appellant argued that for the duration of her employment she accrued personal leave and pro-rata long service leave and that the Agreement expressly recognises the accrual of long service leave. We will return to these matters later. It is convenient to deal firstly, with the relevance of the employment relationship in the application of unfair dismissal laws.

[32] The Appellant contended that the Respondent’s reliance on s 386(2)(a) is not sustainable in that the term ‘employment’ as used in the section refers to the employment relationship. In this respect, the Appellant relied on the decision in Brackenridge v Toyota Motor Corporation Australia Limited, 11 and, in part, on the High Court judgement in Commonwealth Bank of Australia v Barker (‘Barker’),12 particularly the discussion of the distinction between the employment relationship and the contract of employment. In Barker, the majority referred to Visscher v Giudice13 and said:

‘There is a distinction, relevant in cases of wrongful dismissal, between the employment relationship and the contract of employment, such that the contract may persist when the relationship is at an end.’ 14

[33] The Appellant also relied on the more recent decisions in Navitas and a judgement of the South Australian Supreme Court in Bampton v Viterra Limited. 15 In Navitas, the Full Bench considered the application of s 386(2) in relation to the meaning of ‘contract of employment for a specified period of time’ and found that where such a contract provided for an unqualified right for either party to terminate the contract on notice or payment in lieu of notice, the contract was not a contract of employment for a specified period, and the exclusion in section 386(2)(a) did not apply.

[34] The parties acknowledged that whilst strictly speaking Navitas was a decision about a ‘contract of employment for a specified period of time’, the principles set out in Navitas, are applicable also to a contract of employment ‘for the duration of a specified season’.

[35] The Appellant further submitted that the relationship of employment between the Appellant and the Respondent was ongoing, and not brought to an end in December 2016, as evidenced by the terms of the contract, the Agreement and the Industrial Relations Act 2016 (Qld).

[36] At the beginning of the 2016 season the Appellant was provided with a letter of offer/engagement. The details of the letter are set out in paragraph [17] of the Commissioner’s decision and reproduced in part below. The letter states:

‘… This engagement is for the 2016 crushing season.

Unless terminated earlier, the end date of this seasonal engagement will be determined in accordance with the applicable enterprise agreement.

Except to the extent varied by this document, the terms and conditions of your existing contract of employment continue to apply. As a seasonal employee, the provisions of the applicable enterprise agreement that apply to seasonal employees will also apply to your employment.’

[37] The Appellant argues that the letter of engagement was not intended to be a stand-alone contract, which would terminate at the end of the crushing season; rather, it characterises the relationship as an ‘engagement for the 2016 crushing season’. Secondly, the letter refers to the amending effect of ‘this document’ to the ‘existing contract of employment’. The ‘existing contract of employment’ is the contract provided by the Respondent to the Appellant as part of her engagement for the 2013 crushing season. The 2013 Contract states, inter alia, that:

‘This letter sets out the standard terms and conditions of employment which, unless varied, will apply to your employment with Sucrogen [the former name of the employer] for the 2013 crushing season.’

[38] The 2013 Contract provides for an engagement for a specified period being the 2013 crushing season. That period of engagement was varied by a new engagement letter in 2014 and again in 2016. It was said that the 2013 Contract does not provide an unqualified right for either party to terminate the contract, on notice, or by payment in lieu of notice.

[39] We do not accept the proposition that the reference to the ‘existing contract’ means an ongoing employment relationship was, or could be established. The 2013 Contract sets out the standard terms and conditions of employment which, unless varied, will apply to the employment for the relevant season for which the employee is engaged/employed. The relevant term being varied by the engagement letter is plainly the term that identifies the period for which the contract would apply (each crushing season). There is no reason to draw any distinction between the relevant words in the 2013 Agreement and the express provision in the 2016 engagement letter that ‘This engagement is for the 2016 crushing season’. Moreover, this reference is consistent with the 2016 engagement letter, referring to ‘your commencement date will be 06.06.2016’. The term in this instance would be that the contract applies for the ‘2016 crushing season’. Reference to the ‘existing contract’ in the statement of engagement is merely a statement of administrative convenience. There are no other words that support a conclusion for which the Appellant contended. Had the Appellant not received a new letter of engagement, the 2013 Contract, as it stands, would have only existed for the ‘2013 crushing season’. Accordingly, we are not satisfied that the Appellant has made out a case that the contract or the employment relationship would have remained ongoing, absent the subsequent letters of engagement.

[40] The Appellant argued that the termination provisions (cl 8.8) in the Agreement, together with clause 4.1.2(a) and (b) do not lead to a conclusion that the ‘employment relationship’ ended between the parties at the end of the 2016 season. The letter of engagement states that as a seasonal employee, the provisions of the Agreement apply. ‘Seasonal employee’ is defined in Cl.4.4.1 of the Agreement as:

‘‘Seasonal Employee’ means an employee who has been engaged by the employer on or about the commencement of the crushing season for the purpose of performing duties directly and indirectly related to crushing season operations and whose duties are completed and employment terminated on or about the end of the mill’s crushing season.’

In our view, there is no warrant or reason to give a meaning to the term ‘seasonal employee’ other than its plain, ordinary meaning as expressed in the Agreement; see: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v Berri Pty Ltd (‘Berri’) 16 and the recent judgement of the Full Court of the Federal Court of Australia in WorkPac Pty Ltd v Skene.17

[41] The termination provisions of the Agreement are set out in Clause 4.9. Clause 4.9.1(e)-(f) states:

(a) …

(b) …

(c) …

(d) …

(e) Subject to clause 4.9.1(f) below, the period of notice in this subclause 4.9.1 shall not apply to casual employees, fixed term employees, or seasonal employees, nor in the case of dismissal for serious misconduct (including but not limited to dishonesty, intoxication or wilful disobedience) or other grounds that justify instant dismissal.

(f) Wilmar will give 2 days' written notice of termination of employment to fixed term and seasonal employees, except in the case of termination of employment by reason of the cessation of the crushing season or, in the case of fixed term employees, by expiry of their fixed term contract. Notice of termination at the cessation of the crushing season for seasonal employees will be provided in accordance with clause 4.1.2(a) above.

[42] In respect to the required notice in cl 4.9.1(f) above, cl 4.1.2 provides:

(a) Notice Period

Wilmar will include the "databank" end-of-season projected date in all site newsletters from mid-season. The anticipated end of crushing will be posted on notice boards 6 weeks prior to the projected finish date. Notice to employees will be updated daily in the final week of crushing with the expectation that all seasonals, unless specifically notified in writing to the contrary, will complete their contract of employment at the end of their last crushing shift.

(b) Employment

Employment It is intended that seasonal employees who have performed satisfactorily throughout the season will have the first opportunity for employment in the following season. Satisfactory performance is defined as performance that has not attracted formal performance counselling. Seasonals who wish to be considered for re-employment must confirm their desire to return by the date nominated at each region.

(c) This clause 4.1.2 does not apply to fixed term employees.

[43] The Appellant submitted that the above references in the Agreement raise the question of genuine agreement as outlined at paragraph [75] of Navitas; see later para [45]. It is further submitted that the contractual arrangements distinguished that for the purpose of s 386(2)(a) of the Act, there could not have been a contract for a ‘specified season’; rather, there was an ongoing contract. In the alternative, even if the engagement letter did amount to a contract for the 2016 season, under the amended terms to her 2013 Contract, the employment relationship was ongoing.

[44] We accept that the Commissioner does not directly address the reference to ‘an existing contract’. However, at paragraph [6] of the Decision she said:

‘[6] Whilst not all of the submissions and evidence are referred to in this Decision, all of such have been considered.’

[45] Plainly, the Commissioner could not have had regard to Navitas, when Navitas was not published until after the Commissioner’s decision. Nevertheless, we do not consider the conclusions of the majority in Navitas, are inconsistent with the Commissioner’s findings on jurisdiction in this case. The relevant summation passages in Navitas are set out by the majority at [75]. We set out in full this paragraph to ensure the full relevance and application of the decision is understood within the context of the facts and circumstances of this case:

‘[75] Having regard to these propositions and the court decisions to which we have earlier referred, we consider that s 386(1)(a) should be interpreted and applied as follows:

(1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.

(2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(3) In Mahony v White the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer - that is, as a result of some decision or act on the part of the employer that brought about that outcome.

(4) Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer. Further, in those circumstances a decision by the employer not to offer any further contract of employment will not be relevant to the question of whether there was a termination of employment at the initiative of the employment. 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 (Griffin/Fisher). However if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time (as, for example, in D’Lima), the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(5) In some cases it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative:

(a) The time-limited contract itself may be vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The categories potentially relevant in an employment context include the following:

● the employee entered into the contract as a result of misrepresentation or misleading conduct by the employer;

● the employee entered into the contract as a result of a serious mistake about its contents or subject matter;

● there has been unconscionable conduct associated with the making of the contract, which may relevantly include that the employer took advantage of a disability affecting the employee such as lack of education, lack of information, lack of independent advice or illiteracy;

● the employment contract was entered into by the employee under duress or coercion (which might include the types of coercion prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of the employer;

● the employee lacked the legal capacity to make the contract; or

● the contract was a sham in the sense that it was not intended by the parties to give legal effect to its apparent terms or in the broader sense dealt with in Pt 3-1 Div 6 of the FW Act.

If any of the above applies there will be no legally effective time-limit on the employment (Fisher).

(b) The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission’s unfair dismissal jurisdiction). Whether the employment was constituted by successive short term contracts or the use of time-limited contracts was appropriate in the relevant field of 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).’

[46] To the extent that there was some reference by the Appellant to the genuineness of the contract, of a kind set out immediately above in Navitas, we do not consider that such a characterisation of the arrangement between the Appellant and the Respondent is open on the evidence. In any event, a submission based on a conclusion in a decision not yet published, obviously could not have been raised in the proceedings before the Commissioner.

[47] Navitas stands for the proposition that 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 the termination of the employment relationship, not by reference to the termination of the contract. In cases where there is an operative provision for the termination of the employment relationship, by either party prior to the expiration of the contract, a further examination of the circumstances must take place.

[48] In this case, there was an end to the employment relationship as a consequence of the seasonal nature of the work. Unlike in Navitas, here the work ends at the end of a season and work in the next season or subsequent seasons, is not guaranteed.

[49] We do not accept the submission that the use of the term ‘engagement’ in the letter of offer would change what was expressly intended to be a contract for a specified season. The word ‘engagement’ has been used interchangeably with employment throughout each of the contracts provided to the Appellant at the commencement of each crushing season. ‘Engagement’ is defined as ‘employment of a period or post of employment’. It is not open to give the term a wider meaning than for the period of employment that the Appellant was to be employed, being the specified 2016 crushing season.

[50] We turn now to the ground of appeal dealing with the proposition that the Commissioner failed to have regard to relevant matters; namely, the provisions of the Industrial Relations Act 2016 (Qld) in respect to long service leave and the provisions in the Agreement recognising long service leave and personal/carers’ leave.

[51] Clause 7.12 of the Agreement provides:

All employees covered by this agreement are entitled to long service leave on full pay under, subject to, and in accordance with Attachment 4.

[52] Attachment 4, referred to above, sets out how long service leave is to be calculated for ‘Seasonal Employees’. The Note to the Table states:

(a) If a seasonal employee misses a crushing season, continuity of service is broken. Service for long service leave calculations will recommence at the start of the next crushing season worked.

(b) Continuity of service is recognised as long as an employee is available to work when required at the commencement of the season and is still available until no longer required at the end of the season.

(c) As a result of changes to 1999 IR Act, a seasonal employee will be entitled to long service leave after 10 seasons and pro rata after a further 5 seasons. There is no further restriction placed on the accrual of pro rata entitlement. The formula for calculating entitlement is based on 13 weeks for 10 years not 15 years as stated in the IR Act.

(d) Section 50 (5) states that if an employee is employed by the employer between seasons, the part of the period between seasons when the employee is employed must be taken into account in working out the length of the employee's actual service.

(e) A "season" in the sugar industry for the purposes of the IR Act, is the crushing season.

[53] Clause 7.8 of the Agreement deals with personal/carers’ leave and at s 7.8.1(a):

Every employee shall become entitled to not less than 76 hours for each completed year of employment (or if the National Employment Standards require a more generous entitlement, then that will apply). The entitlement accrues progressively during a year of service according to the employee's ordinary hours of work.

[54] Sub-clause 7.8.7 makes further specific provisions for seasonal employees as follows:

Seasonal personnel will be offered additional employment at the end of each crushing season to the extent of two (2) times the number of full days personal/carer's leave accrued during that season (less unpaid absences), on the understanding that no personal/carer's leave entitlements or chronic sick leave entitlements will be paid during this period.

The seasonal employee’s accrued personal/carer's leave hours will be unaffected by the acceptance of this additional employment.

[55] From a fair reading of the Commissioner’s decision, it is apparent that she was ‘live’ to these matters in the context of the provisions in s 386(2)(a) of the Act and her consideration of all the other evidence dealing with the contract of employment. In our view, the fact that seasonal employees have a benefit to accrue long service leave and personal/carer’s leave, is not determinative of the true nature of the employment relationship. These are beneficial deeming provisions under State legislation, wholly independent of the engagement terms arising from each year’s crushing season. We observe that these provisions are akin to long service leave which is available to employees engaged in contract cleaning in some States. The fact that State legislatures deem it appropriate to provide such benefits does not depend on the engagement of employment, on a contract by contract basis, with different cleaning contract employers.

[56] Further, we do not consider the Commissioner failed to take these matters into account. In our opinion, she expressly did so and correctly concluded that these matters did not alter the fundamental underpinning nature of each contract of engagement, being for each crushing season. Moreover, cl 7.8.5 of the Agreement is consistent with our primary conclusions as it states the accrual of personal leave is available ‘provided that the employee shall have been reemployed by that employer’.

[57] Lastly, there is no substance to the appeal ground of a denial of procedural fairness, because the Commissioner did not seek submissions from the Appellant on Dale v Hatch and the Explanatory Memorandum in the Fair Work Bill 2009. The fact that a Member of the Commission refers to published authority, albeit in a different context, and the terms of the Explanatory Memorandum to the Act, cannot be criticised - let alone be regarded as a denial of procedural fairness - in circumstances where the parties were legally represented. Given the Appellant was legally represented, it must be presumed that her legal advisers was aware of, and had researched all of the published authority on the particular subject matter here in question; a fortiori, when it concerns the application of a specific statutory provision by reference to the Act’s Explanatory Memorandum. In any event, the Appellant’s submission that para 1535 of the Explanatory Memorandum has a limiting or narrowing effect on s 386(2)(a), cannot be accepted. It is no more than an example of when an employer may reduce the number of employees as the crushing season winds down. The use of examples is a common feature in an Explanatory Memorandum.

[58] Finally, we do not consider that the facts and circumstances of this case warrant a departure from the usual costs proposition, that a party to a proceeding in a matter under the Act, should bear their own costs; see: s 611(1) of the Act.

Postscript

[59] Before publication of our Decision, the Full Bench received an application from the Appellant’s Counsel for the admission of fresh evidence, which it was said provided further evidence in support of the Appellant’s appeal. This evidence was a letter from Wilmar, dated 27 September 2018 to the Appellant, in relation to the 2018 crushing season. The letter reads as follows:

‘Dear Romana,

Our records indicate that you have not returned for the 2018 crushing season as a Seasonal employee.

In accordance with the Queensland Industrial Relations Act 2016, your continuity of service is broken. Should you be reengaged by Wilmar Sugar Pty Ltd, your employment will be treated as a new engagement.

Please be aware that you should contact the administrator of your superannuation fund to make the appropriate arrangements in relation to your superannuation account.

Should you have any questions, please contact the Wilmar payroll team on [removed].

Kind regard

Daniel Ellis

Remuneration Manager’

[60] The respondent opposed the admission of this evidence on the basis it was irrelevant to the issues to be determined by the Full Bench in this appeal and the letter adds nothing to the evidence and submissions of the Appellant in the appeal. Recourse to this letter for the purposes of demonstrating an entitlement to the pay out of accrued long service leave, was irrelevant to answering the questions answered by the Commissioner in the respondent’s favour; namely:

(1) Was the Appellant an employee of Wilmar at the time at which Wilmar made the decision about which the Appellant complains?

(2) Did Wilmar dismiss the Appellant within the meaning given to that term by s 386 of the Act?

[61] The principles to be applied when an appeal bench is asked to accept fresh evidence are well known. These were articulated in the Full Bench decision of Loftus v Earth Force Personnel Pty Ltd: 18

‘[14] Section 607(2) of the Act provides that:

The FWC may:

(a) admit further evidence; and

(b) take into account any other information or evidence.

[15] Relevant material that comes to light subsequent to the time of an initial hearing may be admitted if it bears on an issue to be determined in the appeal. The exercise of the discretion to admit further evidence is in general guided by the principles set out in Akins v National Australia Bank. In Akins, the Court held at that:

Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible. 

[16] In considering whether to exercise the discretion in s.607(2), it is permissible in an appropriate case to depart from the principles set out in Akins and the principles need not be strictly applied. However, we do not think this is an appropriate case.’ [Endnotes removed]

[62] We have decided to refuse the admission of this fresh evidence. We agree with Wilmar that the letter merely clarifies the accrued long service leave entitlements of the Appellant, flowing from the State Act and confirms the true nature of seasonal work in the Queensland sugar industry. The letter adds nothing to the evidence in this case, or the Appellant’s submissions in the appeal. There is no likelihood that the admission of this evidence would produce a different result, either in the proceedings below, or before us on appeal.

ORDERS

[63] For the abovementioned reasons, we are not satisfied that any of the Appellant’s grounds of appeal have been made out and the appeal should be dismissed. We make the following orders:

1. Permission to appeal is granted.

2. The appeal is dismissed.

3. Each party to bear their own costs.

DEPUTY PRESIDENT

Appearances:

P Raffles of Counsel for the applicant with J O’Donnell instructing.

M Swan of AI Group with D Masin for the respondent.

Hearing details:

2018.

Melbourne:

7 February.

Printed by authority of the Commonwealth Government Printer

<PR701899>

 1   [2017] FWC 4410.

 2   (2011) 192 FCR 78 at [43].

3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].

 4   [2010] FWAFB 5343, 197 IR 266 at [24] – [27].

5 Wan v AIRC (2001) 116 FCR 481 at [30].

6 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

 7   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].

 8  This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 9   [2016] FWCFB 922.

 10   [2017] FWCFB 5162.

 11   [1995] IRCA 466; 64 IR 77.

 12   [2014] HCA 32.

 13   [2009] HCA 34.

 14   [2014] HCA 32 at [4].

 15   [2015] SASCFC 87 (06 June 2015).

 16   [2017] FWCFB 3005.

 17   [2018] FCAFC 131.

 18   [2014] FWCFB 1978 at [14]- [17]