Fair Work Commission

Overview

A genuine contract for a specified period may terminate by the passing of time at the end of the period rather than by termination at the initiative of the employer.^[1]

In order to be a contract for a specified period of time the dates of commencement and completion of the contract must be unambiguous.^[2]

If the contract gives either party an unqualified right to terminate the contract on notice, or with payment in lieu of notice, it will not be a contract for a specified time.^[3]

A contract giving either party the right to terminate for a breach of the contract may still be a contract for a specified period of time.^[4]

A contract may still be a contract for a specified period of time if it allows for review and extension by consent after a specified period of time.^[5]

Where there has been a series of fixed-term contracts and renewal is a mere formality the Fair Work Commission may look beyond the terms of the contract to the reality of the employment relationship.^[6]

The mere fact that an employer has decided not to offer a new contract of employment at the end of a time-limited contract which represents a genuine agreement by the parties that the employment relationship should come to an end not later than a specified date will not by itself constitute a termination at the initiative of the employer.^[7]

However where the employment contract has a defined contractual term but does not exhibit an agreement that the employment relationship will come to an end when the term expires (as in the D’Lima^[8] situation of a series of short-term standard-form contracts), a decision by the employer not to offer a further contract may become a relevant consideration as to whether there has been a termination at the initiative of the employer.^[9]

Case examples

References

^[1] Explanatory Memorandum to Fair Work Bill 2008 at para. 1532.

^[2] Andersen v Umbakumba Community Council (1994) 126 ALR 121, 125‒126 (von Doussa J).

^[3] ibid., 126.

^[4] ibid., (in passing).

^[5] Ogilvie v Warlukurlangu Artists Aboriginal Association Incorporated, PR921908 (AIRC, Hampton DP, 28 August 2002) at para. 13; outlining the broad principles in Grycan v Table Tennis Australia Incorporated, Print R7452 (AIRCFB, Giudice J, Boulton J, Cribb C, 23 July 1999); Trigar v La Trobe University, Print T2860 (AIRCFB, Giudice J, Acton SDP, Gay C, 1 November 2000); and Pacific Rim Employment Pty Ltd v Lloyd, PR912882 (AIRCFB, Giudice J, Kaufman SDP, O’Connor C, 4 January 2002) at para. 20.

^[6] Smith v Mareeba RSLA Services Club Inc [2013] FWC 351 (Spencer C, 15 March 2013) at paras 46–47; citing Banchit v St Mina’s Global Restaurants Pty Ltd, PR940477 (AIRC, Harrison C, 14 November 2003) at para. 39.