Jaggi v Burwood Council [2025] NSWIRComm 1025

(1) was harsh because his position was in fact made redundant and he was not paid five weeks' notice, plus five weeks' severance pay, as required under the Local Government (State) Award 2023 (LG Award);

(2) was unjust and unreasonable as he was not offered any measures to mitigate the adverse impacts of the loss of his employment, including re-training and redeployment into one of the new positions established in the Respondent's re-structure of its finance department; and

(3) was unjust and harsh because of differential treatment and victimisation.

1. The Applicant asserts in his victimisation claim that as a result of the Applicant commencing separate proceedings of "an industrial nature" against Parramatta Council on 26 July 2023, which proceedings came to the attention of Burwood Council, (after the Applicant had signed the employment contract) Burwood Council victimised him by imposing the following detriments upon him:

(1) making his position redundant[2] and/or unfairly bringing his employment to an end;[3]

(2) not offering him "any measures to mitigate the adverse effects of the restructure on the loss of his employment by advertising the 3 position[s] internally, offering him training-retaining, redeployment to those positions" ;[4]

(3) depriving him of five weeks' pay in lieu of notice and five weeks' severance pay;[5] and

(4) treating him differently to how other staff members had been treated in the past in similar circumstances.[6]

1. The Applicant seeks re-employment and compensation.
2. The Applicant was unrepresented throughout both proceedings. Despite not being a lawyer, the Applicant had a good grasp of the matters at issue in these proceedings, the law governing employment relationships generally and the procedures involved in presenting his case. Indeed, I consider that many of the arguments made by the Applicant showed a considerable degree of sophistication, not typical of self-represented litigants. However, for the reasons developed below, the Applicant's claims must fail.

1. The Applicant set out the relevant background in his statements made and filed on 25 September 2024[7] and 4 November 2024.[8] He also relied on a statement made by a co-worker, Daran Sarma, dated 4 November 2024.[9] The Respondent relied on two short statements in reply to the Applicant's evidence: one by the Director Corporate Services for the Respondent, Fab Zincone, dated 28 October 2024;[10] and the other by Maria Lazzaro, the Respondent's Finance Controller, also dated 28 October 2024.[11] All of the witnesses were cross examined and generally speaking I considered that all the witnesses gave their oral evidence to the best of their honest recollection. Ms Lazzaro gave a number of rather incoherent answers, but I do not consider she was attempting to avoid giving a straight answer, but rather her answers were the result of somewhat confusing questions asked by the Applicant.
2. The Respondent tendered, during its cross examination of the Applicant, a bundle of documents establishing the payment of certain sums of money to the Applicant by way of workers' compensation during the period August - October 2024. The Respondent had not included these documents in the evidence it had filed and served, nor mentioned their import in its written submissions and the first notice the Applicant had that the Respondent intended to rely on them was apparently the night before the hearing. The Applicant made no objection to the tender of the documents and both parties made oral closing submissions as how the Commission ought to treat workers compensation earnings if the Commission were to consider that the Applicant should be awarded compensation. However, on 2 December 2024, after I had reserved my decision, the Applicant applied by correspondence sent to the Registry, to be granted leave to file short written submissions in relation to the treatment of the worker's compensation payments in the event Commission were satisfied that the termination was unfair and/or was a result of victimisation and reinstatement/redeployment were considered to be impracticable. The Applicant submitted that he had not been given sufficient notice of the Respondent's submissions in respect of this matter and "being [a] self-represented litigant, [he] was not prepared to make proper closing submissions in relation to this aspect on the hearing day as no prior notice was provided to [him]."[12]
3. The Respondent consented to the Applicant's request for leave on the basis that it be given the opportunity to respond to the proposed further submissions. On 3 December 2024 I made orders directing the Applicant to file and serve any further submissions by 12 December 2024 and that the Respondent file and serve any submissions in reply by 20 December 2024.
4. The Applicant duly filed submissions on 12 December 2024, however they went beyond the scope of the leave I had granted and purported to address other matters which the Applicant had identified after reviewing the transcript of the hearing, which he considered he had not addressed in closing oral submissions. I did not consider that to be a sufficient basis to allow the Applicant a further opportunity to argue his case and accordingly, on 17 December 2024 the Commission wrote to the parties advising that only the Applicant's further submissions made under the heading of "REMEDY - COMPENSATION" (paragraphs [24]-[49]) would be considered and that the Respondent should only respond to those paragraphs in its submission in reply. The Respondent filed its further submissions on 20 December 2024.
5. In addition to the submissions just mentioned, the Applicant filed an Outline of Submissions dated 25 September 2024 (AS), an Outline of Submissions in Reply dated 11 November 2024 (ARS) and, (in circumstances I will explain below) further submissions on 22 April 2025 (AS22April). The Respondent filed an Outline of Submissions in respect of each of the two proceedings dated 28 October 2024 and further submissions on 6 May 2025 (RS6May). I have carefully considered both parties' written and oral submissions. The extensive reasons set out below attempt to address the gravamen of the arguments made by each of the parties, however in the interests of not burdening my already overburdened decision with more words, I have not referred directly to each, and every submission made by the parties.

1. While the Respondent took issue with the Applicant's account of a number exchanges that the Applicant said he had with other employees of the Respondent, and the parties are at odds as to the nature of the Applicant's employment and whether the Respondent breached the LG Award when it entered into a 12-month contract with the Applicant, the basic facts of this matter are otherwise not disputed.
2. The Applicant's relationship with the Respondent commenced on or around 2 July 2023, when the Applicant was engaged by the Respondent through a labour hire agency to work within the Respondent's financial services team on a casual basis.
3. On or around 6 July 2023 the Applicant was offered the role of Senior Finance Business Partner at nearby Parramatta City Council on a permanent basis. The Applicant informed Ms Lazzaro about the offer. It is not in dispute that the Applicant had conversations with Ms Lazzaro after 6 July 2023 during which the Applicant expressed a desire to remain at Burwood Council. While the Applicant told Ms Lazzaro that he would prefer to stay at Burwood Council because "it was more important for him to be working in a good team than to be employed in a more senior role or higher profile organisation",[13] it is apparent that the real reason he was keen to stay on at the Respondent was because, unbeknown to the Respondent, Parramatta Council had withdrawn its offer to the Applicant a few days after it was made.[14]
4. The evidence of Ms Lazzaro indicates that she (and it seems others at the Council), were keen to retain the Applicant's services and she considered, in light of the offer from Parramatta City Council, that the Respondent "had to move quickly in order to keep him."[15]
5. It is not in dispute that Ms Lazzaro told the Applicant that he could only be offered employment for 12 months. She explained in her written evidence that the reason for that was "in local government we are required to advertise roles and recruit them through a meritorious selection process."
6. It seems that Ms Lazzaro was referring to the following provisions in the Local Government Act 1993 (LG Act), which, from 1 August 2018[16] to 31 August 2024,[17] read as follows:

348 Advertising of staff positions

(1) When it is proposed to make an appointment to a position within the organisation structure of the council, the position must be advertised in a manner sufficient to enable suitably qualified persons to apply for the position.

(2) (Repealed)

(3) This section does not apply to -

(a) the re-appointment, under a new contract, of a senior staff member, or

(b) the appointment of an employee if the term of employment is for -

(i) not more than 12 months, or

(ii) two or more periods that together are not more than 12 months in any period of 2 years.

349 Appointments to be on merit

(1) When the decision is being made to appoint a person to a position -

(a) only a person who has applied for appointment to the position may be selected, and

(b) from among the applicants eligible for appointment, the applicant who has the greatest merit is to be selected.

(2) The merit of the persons eligible for appointment to a position is to be determined according to -

(a) the nature of the duties of the position, and

(b) the abilities, qualifications, experience and standard of work performance of those persons relevant to those duties.

(3) In determining the merit of a person eligible for appointment to a position, regard is to be had to the objects of Part 4 of this Chapter (see section 344).

...

351 Temporary appointments

(1) If a position (including a senior staff position) within the organisation structure of the council is vacant or the holder of such a position is suspended from duty, sick or absent -

(a) the council, in the case of the general manager's position, or

(b) the general manager, in the case of any other position,

may appoint a person to the position temporarily.

(2) A person who is appointed to a position temporarily may not continue in that position -

(a) if the holder of the position is on parental leave - for a period of more than 24 months, or

(b) in any other case - for a period of more than 12 months.

1. I pause at this juncture to observe that ss 348 and 351 only apply to "a position within the organisation structure of the council". "Organisation structure" is not defined in the LG Act, however Part 1 of Chapter 11 of the LG Act deals with "Organisation structure". From 30 August 2016[18] to 31 August 2024 that Part read as follows:

Part 1 Organisation structure

332 Determination of structure

(1) A council must, after consulting the general manager, determine the following -

(a) the senior staff positions within the organisation structure of the council,

(b) the roles and reporting lines (for other senior staff) of holders of senior staff positions,

(c) the resources to be allocated towards the employment of staff.

(1A) The general manager must, after consulting the council, determine the positions (other than the senior staff positions) within the organisation structure of the council.

(1B) The positions within the organisation structure of the council are to be determined so as to give effect to the priorities set out in the strategic plans (including the community strategic plan) and delivery program of the council.

(2) A council may not determine a position to be a senior staff position unless -

(a) the responsibilities, skills and accountabilities of the position are generally equivalent to those applicable to the Executive Band of the Local Government (State) Award, and

(b) the total remuneration package payable with respect to the position is equal to or greater than the minimum remuneration package (within the meaning of Part 3B of the Statutory and Other Offices Remuneration Act 1975) payable with respect to senior executives whose positions are graded Band 1 under the Government Sector Employment Act 2013.

(3) For the purposes of subsection (2)(b), the total remuneration package payable with respect to a position within a council's organisation structure includes -

(a) the total value of the salary component of the package, and

(b) the total amount payable by the council by way of the employer's contribution to any superannuation scheme to which the holder of the position may be a contributor, and

(c) the total value of any non-cash benefits for which the holder of the position may elect under the package, and

(d) the total amount payable by the council by way of fringe benefits tax for any such non-cash benefits.

333 Re-determination and review of structure

The organisation structure may be re-determined under this Part from time to time. The council must review, and may re-determine, the organisation structure within 12 months after any ordinary election of the council.

1. Section 332 was significantly amended on 1 September 2024[19] so that from that date the section now reads:

332 Determination of structure

(1) A council must, after consulting the general manager, determine the resources to be allocated towards the employment of staff.

(1A) The general manager must, after consulting the council, determine the positions within the organisation structure of the council.

(1B) The positions within the organisation structure of the council are to be determined so as to give effect to the priorities set out in the strategic plans (including the community strategic plan) and delivery program of the council.

(2), (3) (Repealed)

1. From these provisions I understand that it was, and is, a requirement that local councils have a formalised organisation structure, and that the general manager is to determine the positions within the organisation structure of the council, (other than senior staff positions prior to 1 September 2024), after consulting the council.
2. There are two provisions of the LG Award which further regulate the appointment of staff at councils covered by the Award (which includes the Respondent), being cll 35 and 36, the later clause being central to this dispute. Those clauses are, and were at all relevant times, in the following terms:

35. Appointment and Promotion

(i) Where an employer is required by section 348 of the Local Government Act 1993 (NSW) to advertise a position within the organisation structure of the employer, prior to advertising the position externally, the employer may consider advertising the position internally if such an approach enables suitably qualified persons to apply for the position.

(ii) Where a job applicant for a position is unsuccessful, they may request the reason(s) as to why they were not appointed, and upon such request, the employer shall provide the reason(s).

(iii) Where an employee has applied for a position and their application is unsuccessful, they may request a review of their individual education and training needs.

(iv) Employers shall provide every new employee a copy of the Local Government Employee Information Statement ("LGEIS") approved by the Association and Unions before, or as soon as possible after, they commence employment with the employer.

36. Term Contracts

(i) The employer may only employ a person on a term contract of employment in the following situations:

(a) for the life of a specific task or project that has a definable work activity, or

(b) to perform the duties associated with an externally funded position where the length of the employment depends on the length of the funding, or

(c) to perform the duties associated with a vacant position until the vacant position is filled on a permanent basis, provided that the duration is no longer than is reasonably necessary to undertake recruitment for the vacant position, or

(d) to temporarily replace an employee who is on approved leave, secondment, workers compensation, acting in a different position or working reduced hours under a flexible work and leave arrangement, or

(e) to undertake training and work as part of an apprenticeship, traineeship, graduate training program or student work experience program in conjunction with an education institution, or

(f) to trial a new work area, provided that the duration is no longer than is reasonably necessary to trial the new work area, or

(g) to perform the duties associated with a vacant position during the intervening period between when the employer has made a definite decision to introduce major changes in production, program, organisation structure or technology that are likely to have significant effects on the employment in the vacant position and the date that the changes are implemented; or

(h) to accommodate time limitations imposed by law or sought by the employee (e.g. visa restrictions); or

(i) to perform seasonal work (also see subclause 23E(xii) of this Award).

(ii) As of the first full pay period on or after 1 July 2020, employers shall identify in the letter of offer / contract of employment offered to a prospective employee, and the position description (where appropriate), the relevant situation identified in subclause (i) above that gives rise to employment pursuant to a fixed or maximum term contract.

1. There is no dispute that the LG Award applied to the Applicant's employment with the Respondent.
2. Taking into account the above identified sections of the LG Act and the above identified clauses of the LG Award I conclude that:

(1) when it is proposed to make an appointment to a position within the organisation structure of the council, (as determined and formalised by the general manager in consultation with council), the position must be advertised in a manner sufficient to enable suitably qualified persons to apply for the position, unless, relevantly, the term of the appointment is for not more than 12 months, or two or more periods that together are not more than 12 months in any period of 2 years;

(2) if advertisement is required by s 348, a council has the option, pursuant to cl 35(i) of the LG Award, to only advertise the position internally if such an approach enables suitably qualified persons to apply for the position;

(3) when it is proposed to make an appointment to a position which is not within the organisation structure of the council (the LG Act does not appear to preclude such an appointment), there is no need to advertise the position;

(4) only a person who has applied for a position (within the organisation structure or not) may be selected for the position and of those applicants who are eligible for the position, the applicant with the greatest merit is to be selected;

(5) regardless whether the position is within the organisation structure or not, a council is permitted to employ a person on a temporary (term) contract, but if the position is one within the organisation structure the term must only be for a maximum period of 12 months, or 24 months if the usual holder of the position is on parental leave; and

(6) regardless whether the position is within the organisation structure or not, a council may only employ a person on term contract of employment if one of the situations prescribed in cl 36(i) of the LG Award applies.

1. Returning to the chronology of events, on 13 July 2023, Ms Lazzaro provided a "workplace change proposal form" to Mr Zincone, which had been prepared by the outgoing Chief Financial Officer, Wayne Armitage, which proposed the creation of a temporary "Finance Business Partner" position for a period of 12 months, with a view to offering the Applicant the position. The proposal form identified the proposed workplace change in the following way:

"● Create a Finance Business Partner position for a twelve month temporary contract period to August 2024 to replace Finance Undergraduate Officer until the implementation of the Service Review Recommendations.

● The Position of Finance Undergraduate Officer is currently vacant."

1. The "Service Review" referred to in the workplace change proposal form was an external review that the Respondent had engaged BDO Australia to conduct into its financial services function, in or about January 2023. BDO Australia had delivered its report to the Respondent in April 2023. The report made various recommendations with respect to the people, processes, systems and technology of the financial services team. The Respondent broadly accepted the findings and recommendations of the BDO review and the "recommendations were endorsed for implementation"[20] in or around June/July 2023 (as implicit from the reference in the workplace change proposal form to the expected implementation of the review). According to Mr Zincone, the process of implementing the recommendations was expected to gradually occur over a period of years. Notably the recommendation which BDO Australia identified as having the highest priority was:

"● Refresh Finance team structure to be more fit-for-purpose, including the following roles:

� Treasury

� Finance Business Partner"

1. The workplace change proposal form contained the following reasons for the change:

"●In March 2023 a finance service review was undertaken by BDO and one of the recommendations included a refresh to the finance team structure to be more fit for purpose and to include the role of Finance Business Partner within the current personnel.

●In March 2023 the undergraduate resigned from Council as the position was to be advertised externally due to the conclusion of the final twelve month extension concluding in June 2023.

●The intention was to evaluate the position between a Finance Trainee or Internship/Undergraduate position and recruit based on merit.

●The Finance Trainee or Internship / Undergraduate position has been beneficial to the team structure however as identified in the Service Review a more senior role is required to deliver on the improvements and recommendations identified as part of the Service Review.

●In May 2023 approval was granted to engage labour hire to replace the Finance Undergraduate position at a more senior level until the Financial Service Review structure was completed.

●Since then circumstances have changed within the Finance Team with the retirement of the CFO and it has become more evident that a more senior role is required in the interim.

●Approval is sought to recruit a Finance Business Partner for a twelve month temporary position until the Service Review recommendations can be implemented and also to support the transition to the new ERP [Enterprise Resourcing Plan].

●It is intended to offer a twelve month temporary position to Vikram Jaggi who commenced with council through a labour hire engagement on 4 July 2023 through Local Government Appointments.

●In a short period of time Vikram has been with council he appears to be a great fit with Council, has local government experience and is picking up tasks and systems very quickly with little or no training, and is consolidating information from different sources very quickly.

●Vikram has notified Council that he has been successful with Parramatta Council as a Senior Business Partner and will be commencing on 24 July 2023. Vikram has indicated that he enjoys the role with Burwood Council and can see that there are future opportunities however due to his current personal requirements needs to have certainty with longer term roles.

●It is also expected that there will be some savings to come from the change over from CFO to Finance Manager."

1. The workplace change proposal form set how the proposed temporary role would be funded as follows:

"Expected savings:

$47k from CFO position

$10k from proposed finance team restructure (Financial Operations G5 will be replaced by Finance Officer G4)

$57K total savings

The savings are offset by the temporary 12 month Business Partner position increase to budget of $77k.

Overall net impact to finance budget will be $20k increase after completion of the finance team restructure.

These changes are temporary until the new structure is adopted."

1. Mr Zincone's evidence was that on 17 July 2023 he endorsed the workplace change proposal and authorised it to proceed to the General Manager for approval. Mr Zincone gave evidence which I discuss at [49] below, that the Finance Business Partner position was not made part of the "organisation structure".
2. On or about 24 July 2023, the Respondent offered the Applicant an employment contract for the position of Finance Business Partner for one year. The contract, which was signed by the Applicant on 25 July 2023, was headed "Full-Time Maximum Term Contract" and was expressed to be "effective from Monday 31 July 2023 to Tuesday, 30 July 2024." The contract contained the following relevant terms:

"Conditions of Employment

a) The conditions of your employment will be in accordance with the Local Government (State) Award 2023 as varied from time to time and with Council's Code of Conduct and Policies and procedures as varied from time to time.

b) ...

c) This maximum term contract is non-continuous and is made in accordance with the Local Government (State) Award 2023, Clause 36 (i) (g). You are engaged as a temporary employee for the purpose to perform the duties associated with a vacant position during the intervening period between when the employer has made a definite decision to introduce major changes in production, program, organisation structure or technology that are likely to have significant effects on the employment in the vacant position and the date that the changes are implemented. The parties may agree that the contract may cease at an earlier date. Council can bring this contract to an end by providing two (2) weeks' notice in writing."

...

Notice

q) Should you wish to cease your employment with Burwood Council, you are required to provide written notice in accordance with the provisions outlined within the Local Government (State) Award 2023 Clause 41."

(Italics in original.)

1. It will be observed that the provisions of the LG Award were expressly incorporated into the contract of employment by reference.
2. Attached to the contract of employment was a position description. The "Position Title" in the position description is recorded as "Finance Business Partner - Maximum Term Contract, non-continuance in accordance with the Local Government (State) Award 2023, Clause 36(i)(g)". Part 10 of the position description contained an organisational chart under the heading "Organisational Relationships". The position of "Finance Business Partner" was shown as one of four positions responsible to the "Financial Management Accountant".
3. According to the Applicant in his evidence in chief, prior to signing the contract he had a conversation with Ms Lazzaro during which she said words to the effect that:

"this role can be offered for 12 months only at this stage however if someone is doing fine in their job, they will get the permanent role anyway when the role is available on an ongoing basis. It happened before as well, and I find it very unfair that we put other candidates in a situation where they put so much time and efforts for a role when we already know who the most preferred candidate is."[21]

1. The reference to "other candidates" clearly conveys that when "the role" was "available on an ongoing basis" there would be other candidates and implicitly the Applicant would have to apply for the role at that time.
2. Ms Lazzaro agreed that she told the Applicant that the role could only be offered for 12 months, but strongly disputed that she said he would get the job on a permanent basis if he was doing fine in the job, explaining that the reason she would not have said this was that she was aware that permanent positions had to be advertised and recruited through a meritorious selection process and she did not have authority to promise the Applicant permanent employment. She could not recall saying the words "it happened before as well", but in her evidence in chief and during cross examination she expressed views that reflect the balance of the asserted conversation, that is, that she personally felt it was unfair to external candidates when there was an internal candidate who had been acting in the advertised role who, as a result of acting in the role, would be best placed to secure the advertised role. She clarified however, that that was not always the case.[22]
3. The Applicant gave evidence in chief that after signing the contract, Ms Lazzaro said to him on multiple occasions words to the effect of:

"I think you will be the best candidate for this role especially when you had (sic) worked in the Council for one year and already have the experience with the new accounting system (Ready Community) and have built up relationships with the internal stakeholders."[23]

1. Again, the use of the phrase "best candidate" implies that there would, or at least could be, other (inferior) candidates.
2. I do not accept that Ms Lazzaro told the Applicant, before or after he signed the contract, that he (or "someone") would be offered the job an on a permanent basis after 12 months if he (or "someone") was "doing fine" in the job, for the reasons she explained. However, as it is clear she was keen to retain the services of the Applicant, I accept that she did tell him that a permanent role for which he was qualified was likely to be created and I consider it more likely than not that she did say to the Applicant, prior to him signing the contract, something along the lines of what she admitted she said to him, in or around May 2024, namely:

"... an internal acting applicant will have a very strong application because of their knowledge of the business, processes and systems..."

1. Frankly, such a statement really could not be gainsaid.
2. In cross examination the Applicant suggested that Ms Lazzaro had told him "so many times that this position will never be advertised externally. It will be advertised internally."[24] Given:

(1) that the Applicant only gave this evidence in cross examination, despite its importance to his case that he had been induced into entering the term contract on the basis of misrepresentations;

(2) in light of the evidence that clearly showed that Ms Lazzaro was well aware that appointments for permanent positions had to be advertised, and could be advertised externally or internally;

(3) the Applicant did not put this account to Ms Lazzaro in cross examination; and

(4) the fact, as admitted by the Applicant, that when the Applicant was advised in May 2024 that the role would be advertised externally (as I explain below) he raised no objection,[25]

I do not believe Ms Lazzaro did say this, and even if she did, there is no evidence to establish that she said it before the Applicant signed the employment contract.

1. To reiterate, even on the Applicant's versions of what Ms Lazzaro told him, it is clear that he was told prior to signing the contract that he would only have a twelve-month contract and that after that time he would have to apply for "the permanent role" and go through a selection process that may involve other candidates. No doubt in part because of the statements I consider were made by Ms Lazzaro, the Applicant hoped and perhaps expected, that he would be successful in securing "the permanent role" if he performed well in the temporary role.
2. On 26 July 2023, the Applicant commenced proceedings in the Industrial Relations Commission against Parramatta City Council seeking relief from victimisation. The Applicant agreed in cross examination that he did not tell anyone at the Respondent about the proceedings[26] and there is no evidence that anyone from the Respondent was aware of the withdrawal of the employment offer by Parramatta City Council or the commencement or intended commencement of proceedings by the Applicant against Parramatta City Council prior to the Respondent entering into the employment contract with the Respondent on 25 July 2023.
3. On or around 21 September 2023, Parramatta City Council, via its representative, Local Government NSW, issued a Summons to Produce to the Respondent, to enable Parramatta City Council to obtain evidence in its defence of the Applicant's victimisation claim. It is clear therefore that the Respondent was aware of the Applicant's proceedings against Parramatta City Council from at least 21 September 2023.
4. Much of the hearing time focused on the nature of the duties the Applicant was required to perform while he was employed with the Respondent. This was because the Applicant contended that he was not in fact required to perform the duties associated with a vacant position during the intervening period between when the employer had made a definite decision to introduce major changes in production, program, organisation structure or technology that were likely to have significant effects on the employment in the vacant position and the date that the changes were implemented, this being the situation the Respondent had identified in the letter of offer/contract of employment as justifying the Applicant's temporary contact, as required by cl 36 of the LG Award.
5. It will be recalled that the workplace change proposal form identified that the position of Finance Business Partner was to be created to "replace [the] Finance Undergraduate Officer until the implementation of the Service Review Recommendations". The Applicant asserted that he did not in fact perform tasks which the Finance Undergraduate Officer (FUO) did. The evidence indicated that many of the tasks the Applicant was required to undertake were not ones that were listed in the FUO's position description, although I note that Ms Lazzaro disputed that the FUO position description shown to her in cross examination, being a document I understand the Respondent produced in answer to a Summons to Produce, was in fact the FUO's position description.
6. The evidence also indicated that many of the tasks the Applicant in fact undertook were not tasks which the erstwhile FUO, Ms Sacha Spiteri, had undertaken, however Mr Sarma's undisputed evidence is that daily bank reconciliations and creating part of the accounts payable master accounts were tasks performed by Ms Spiteri, and after she left, those tasks were performed by Mr Sarma until the Applicant commenced, at which time those tasks were assigned to the Applicant. Indeed, the Applicant's own evidence, given in reply, was that his regular duties included "assisting in bank reconciliation and supplier master creation",[27] however he maintained that he did these tasks "to assist others on a temporary basis."[28]
7. Ms Lazzaro agreed in cross examination that the duties listed in the Finance Business Partner position description were not the same as the duties in the FUO position and then went on to say:

"You couldn't expect a trainee to perform the duties that a qualified accountant can do. The trainee themselves, it was a broad position description for the trainee from memory and as well the trainee position covered all areas of finance.[29]

...

The finance trainee position was there across a broad range of - across the whole of the accounts team. The finance trainee position started in 2019. At the time there was a particular push being a trainee that that person would get exposure across all areas of finance. They were involved in procurement, in rates, in accounts payable, accounts receivable, reporting and all areas of finance."[30]

1. On 22 May 2024, the Applicant attended a meeting with Tara Donaldson, Director People and Culture, Burwood Council and Sarah Seaman, Manager Finance, Burwood Council to discuss proposed changes to the Respondent's finance department arising from BDO Australia's service review and recommendations. One of the changes was the creation of what the Applicant himself described in his evidence in chief as a "new position",[31] styled "Business Partner/Process Improvement Finance".
2. At the meeting the Applicant was handed an "Information Pack" which included, among other things, a letter from Mr Zincone dated 22 May 2024, headed "Proposed Changes to Organisation Structure - Finance Team"; charts headed "Current Organisation Structure" and "Proposed Organisation Structure" and a Position Description for the position title "Business Partner/Process Improvement, Finance".
3. The Applicant gave evidence that he noticed that his position of "Finance Business Partner" was not on the new organisational chart, but he did not raise any issue about that at the time, nor suggested he would be entitled to a redundancy payment, because he says he was under the impression, apparently based on his discussions with Ms Lazzaro, that he would "transition" into the new position of Business Partner/Process Improvements.[32]
4. There are a few points to note about the documents contained within the information pack provided to the Applicant. The first, is that the Applicant's position was not shown on the diagrams of either the current or the proposed organisation structure. I questioned Mr Zincone about that and he explained that the charts only showed permanent roles, what he called "the establishment"; the Applicant's role was not shown in the current organisation structure as it was only a temporary role.[33] I understand that Mr Zincone's reference to "the establishment" is a reference to the "organisation structure" within the meaning of s 332 of the LG Act.
5. The next is that a comparison of the position description for "Finance Business Partner" which was given to the Applicant in July 2023[34], with the position description for "Business Partner/Process Improvement",[35] provided to the Applicant in May 2024 as part of the information pack, reveals that while there are similarities between the two roles, there are important differences. In particular, the "Business Partner/Process Improvement" role involved the following accountabilities which were not listed accountabilities of the "Finance Business Partner" role:

● Preparation of the annual budget, quarterly review and long term financial plan;[36]

● Continually work with all departments in Council to identify and implement process and system improvement.

● Maintain system control over the maintenance and development of the general ledger and reporting changes in the system;

● Maintain Council's Asset Register and assist with Council's asset management plans.

● Review and monitor Council's Works program and their sources of funding.

● Maintain the register for developer contribution and corresponding Works program.[37]

1. The content of the letter from Mr Zincone is also important. After referring to the BDO Australia service review in March 2023 and work done since September 2023 by Sarah Seaman, Finance Manager "reviewing internal practices, systems and processes, and analysing the role responsibilities within the Finance team" the letter announced (with emphasis added):

"As a result and following consultation with the General Manager and Executive team, a proposal is made to alter the Finance organisation structure and redefine position descriptions. .... The new team structure will facilitate cross skilling and ensure continuity of a high standard of service provision at peak times, and when staff are on leave, and remove the current silo working approach.

...

I confirm that the following has been discussed with you during the meeting you attended today with Sarah Seaman, Finance Manager, and also attended by Tara Donaldson Director People and Performance:-

● The role of Business Partner/Process Improvement Finance is a newly created role and will be an ongoing position in Council's staff establishment. This position will be advertised externally in accordance with the requirements of the Local Government Act 1993.

● This position will be advertised at the end of the 28-day consultation period following staff feedback during this process.

Today marks the start of the 28-day consultation period as per Clause 42 Workplace Change, of the Local Government (State) Award 2023. ...

Following consideration of staff feedback from the 28-day consultation period, a final decision regarding the proposed organisation structure changes will be made. Arrangements will be made to meet with you again on Friday, 28 June 2024, to confirm these changes and your employment arrangements as they relate to your current maximum term contract.

It is proposed that the new Finance Team organisation structure will be implemented on Monday, 1 July 2024 pending feedback from the consultation process. Upon commencement of the implementation process, the position of Business Partner/Process Improvement will be advertised."[38]

1. In cross examination the Applicant gave evidence that during the meeting he asked what would happen if a final decision regarding the proposed organisation structure changes had not been made before his contract expired and was told by Ms Seaman that his contract "would be extended beyond 30 July".[39]
2. The Applicant did not say anything at the meeting on 22 May 2024, or to anyone at any time thereafter, to the effect that:

(1) his position of Finance Business Partner was a permanent position[40] and should be shown on the current organisation structure;

(2) that the duties he was currently undertaking were the same as those listed in the position description for the position of Business Partner/Process Improvement and therefore it was not accurate to describe that position as a "newly created role";

(3) that if the position of Business Partner/Process Improvement was a newly created role and his role as Finance Business Partner was not to continue, as a permanent employee he should be regarded as redundant and entitled to the benefits afforded to redundant employees; or

(4) that he had been told previously by Ms Lazzaro that the permanent position equating or replacing the Finance Business Partner position would be advertised internally, not externally, and in those circumstances the Respondent should not advertise the position externally.

1. Given the claims that the Applicant now pursues, I would have expected the Applicant to have raised these concerns, perhaps not at the meeting on 22 May 2024, but shortly after having had an opportunity of reading the documents contained in the information pack.
2. The Applicant gave evidence in cross examination, to the effect he did not raise these concerns because he understood, apparently by reason of things said to him by Ms Lazzaro, that the Respondent was merely following a "process" that it was obliged to do by reason of legislation, but that the inevitable outcome of that "process" would be that he would be appointed to the permanent role. Accordingly, none of the information contained in the information pack raised a red flag to the Applicant. As he explained in an exchange with me:

"Q. Mr Jaggi, a moment ago you said ...you didn't take Ms Lazzaro's statements as a promise and you were going to continue to say something but you got cut off.

A. This was not that Ms Lazzaro did not have the authority to appoint me. It was not that sort of promise. It was the - the representation that she made is that, "We need to just follow through this process and it will be advertised internally. This position will be advertised internally. You go through this process. There is no other person who is going to apply for this position and you will get that position." That's how I was told to go through the process. It wasn't that, "Vikram, I'm going to appoint you on that position." Ms Lazzaro never said these words. Because initially, Commissioner, when in July 2023 Ms Lazzaro was the one who, and I said that in my statement, that she showed interest, "Vikram, you can - would you like to stay in the council?" Then she took that through the approval process, went to the director Mr Zincone, Fab, and she got the approval and she appointed me. I had no reason to believe that if she could do that in July 2023 telling me I'm going to get this position created, she got the approval and she said, "Vikram, that's how it's going to happen," I had all the reasons to believe that that's how it's going to flow, that she will again get the approval or set the process that way that I will be appointed to the permanent role when that will be available." [41]

1. The Applicant explained why the announcement on 22 May 2024 of the "newly created role" still gave him no cause for concern:

"..if you go into the letter that Mr Fab issued on 22 May, that clearly tells me - in my letter they actually mention that position. That indicated to me I need to apply for that one. When they issued the letter they did not mention any other role but they mentioned only that role. So the whole idea that I was told is - was reflected in that letter of 22 May where it was written that this is a new position. They did not talk about any other position in that one. They simply talked about the finance business partner. I did not have much reason to believe that it was so different role. They did it for whatever reasons but they know better those reasons. All I knew, I was a finance business partner. Then they created this new position which was finance business partner slash process improvement, which process improvement is already a part of my position description as a finance business partner. Process improvement is not something that you say is a new title. It's a responsibility or the accountability of almost every position description. So even when I looked at the title of this position they said it's a new position, it was no different to me. It was basically the finance business partner position. They did that and said that it's a new position for the reasons they know better."[42]

1. Even the fact the newly created position was to be advertised externally still did not concern the Applicant, as he explained (with emphasis added):

"A. No, I did not find that overly [concerning] because what I was told is that this is a process they need to go through, so I did not find - as long as - what I was told is that I'm going to get into that position. I did not want to talk to the board in saying, "Don't even follow the process that you need to follow." They were allowed to follow the process as they believed that they should, what I believed is that I was going to get that position. When I had the meeting on 22 May, it was Sarah Seaman and Tara Donaldson who was the HR director in there, and what I was told in that was basically that we will - you - I asked a specific question about that. I asked a question about my contract and what is going to happen and they said in that meeting that we'll simply extent your contract, if the things are not resolved in that period, so even on 22 May, when the meeting happened between Sarah, Tara Donaldson and myself, Ms Seaman said at that point in time that my contract would be extended beyond 30 July but then she looked at - sorry.

Even at that point, I was told basically the same thing, that this is the position that you are going for. Formally, they could not say that you're going to get the position. Sarah and Tara did not say in that meeting, "Vikram, you are going to get the position." What they said is that we are going to extend the contract in case things are not finalised before your contract is going to expire."[43]

1. It seems the Applicant had some idea that what the Respondent was doing during the period May - July 2024 was engaging in some kind of sham (although he did not use that description), to comply with its legislative obligations, but the conclusion of that process would inevitably see him appointed to the permanent role of Business Partner/Process Improvement.
2. I accept that this is indeed what the Applicant thought would occur. However, the evidence does not support a finding that this expectation was reasonably based upon any representation made by anyone at the Respondent, before or after he signed the employment contract. Certainly, the Applicant had a reasonable basis to hope that he might be selected for the permanent role of Business Partner/Process Improvement, however there was simply no basis for him to expect that he would, as a matter or course, be appointed to the role.
3. According to the Applicant in his evidence in chief, a few days after his meeting with Ms Seaman and Ms Donaldson he had a discussion with Ms Lazzaro on Microsoft Teams during which she said words to the effect:

"I don't understand why it was decided to advertise the new Finance Business Partner Role externally when we already have the preferred candidate internally. I had a discussion on this matter with Sarah to understand her reasons, but I believe it could have been done differently. [44]

1. The Applicant then gave the following evidence:

"I vaguely remember that Ms Lazzaro also made remarks in words to the effect that "Cindy [Yu] went through a similar situation a few years ago where she was appointed initially on a term contract and then the position was advertised internally which she was appointed on."[45]

1. Ms Lazzaro did not directly contradict the Applicant's account of the first part of the conversation as set out at [60] above, in her written evidence, which she said happened in the presence of Cindy Yu, but says she also expressed her view that she thought it _"unfair that external applicants are not notified that there is already an acting person in the role before they go to the effort of making an application."46[46]_he also gave evidence that she said:

"... that the applicant may not be interested to apply for the position and I further went on to say that whilst an internal acting applicant will have a very strong application because their knowledge of the business, processes and systems, I have seen it happen that the internal acting person is not successful during the recruitment process and the other applicants may present better with experience, skills, etc and the process of offering the position would be based on the criteria set."[47]

"In the same conversation we discussed Ms Yu's appointment to a permanent Accountant role in May 2018. Ms Yu was required to go through an externally advertised selection process including a panel interview in order to appointed to her role. To this end, the claims made in paragraph [24] of the Applicant's statement are both untrue regarding my statements and factually incorrect regarding Ms Yu's appointment."[48]

During this conversation, I can recall the Applicant stating that he is familiar with the recruitment process in Local Government, that the process is being followed and that he had no issues."[49]

1. There are two observations to make about this evidence. First, the Applicant filed a statement in reply which addressed Ms Lazzaro's evidence in chief, however this statement did not deny that he had said that he was "familiar with the recruitment process in Local Government, that the process is being followed and that he had no issues." I accept that he did say this and that it was an accurate statement of fact.
2. The second point concerns the evidence regarding the conversation concerning the circumstances by which Ms Yu obtained permanent employment. Ms Yu was not called to give evidence and her failure to give evidence was not explained. There was no evidence that she is no longer employed by the Respondent. Those circumstances would enable me to draw an inference that Ms Yu, if called, would not have supported Ms Lazzaro's version of the conversation.
3. However, on balance I accept Ms Lazzaro's account for the following reasons:

(1) the Applicant's evidence was that he only vaguely recalled the conversation and his evidence was wholly hearsay in nature;

(2) Ms Lazzaro's evidence on the other hand was both hearsay, but also direct evidence that Ms Yu's appointment - made six years previously - was advertised externally, in circumstances where Ms Lazzaro was employed in the finance department at the time and would likely have had personal knowledge of the matter; and

(3) Ms Lazzaro's evidence throughout the hearing was consistently to the effect that she disagreed with/disliked the practice of externally advertising a position when there was a strong internal candidate, because she thought it was unfair to the external candidates - not because she felt the internal candidate should not have to prove themselves against external candidates. That being the case it is far more likely she used Ms Yu as an example of how the process which was to be embarked upon could be unfair to external candidates, rather than as an example of some kind of preference being given to temporary employees by the Respondent deciding only to advertise internally.

1. I note that neither the Applicant, nor Ms Lazzaro, were cross examined on this aspect of their evidence.
2. What seems clear from the both the Applicant's and Ms Lazzaro's evidence is that Ms Lazzaro was frustrated that the new position of Business Partner/Process Improvement was to be advertised externally. Consequently, she had a conversation with Ms Seaman to ascertain "whether there were any alternatives"[50] and was told "there were none".[51]
3. The Applicant cross examined Ms Lazzaro extensively regarding her conversation with Ms Seaman. She had limited recollection of the conversation. Her best account of the conversation was as follows:

"A: At the time there was a restructure. There was a number of staff that it affected. I had a lot of conversations with a lot of different people. I did not keep a record of every conversation that I had and I certainly can't recall - definitely we had a conversation. I spoke to Sarah and it was more about my frustrations, even the conversation I had with Sarah, about the way local government applications are done as opposed to saying that you should be the referred internal candidate to be offered the position.

Q. But your frustration stemmed from - the context was my advertisement?

A. The frustration was about the process that local government does for every person that comes in and is acting in a position. It's not that it stems from you. We also all know that that's the process that local government needs to follow."[52]

1. I followed this up with a question of my own and had the following exchange with Ms Lazzaro:

"Q. Ms Lazzaro, can I just clarify, your frustration with the process, is the frustration that when someone is acting in a role you then advertise externally or is it--

A. That we--

Q. --is your frustration that when you advertise externally you don't tell the external candidates there's an internal candidate or is it both things?

A. No, it's about that the external applicant who wastes a lot of time, and it's only my personal views--

Q. Yep.

A. --that they spend a lot of time making an application for something where someone has been acting and while I've always said that while the acting person may have the ability to put together a really great submission, it has happened many times where that's not the person that's successful in being awarded the role."[53]

1. According to the Applicant, he was informed, on or about 28 June 2024, that the proposed restructure would be implemented with effect from 8 July 2024. On or about 22 July 2024 the Applicant applied for the new role of "Business Partner/Process Improvement Finance."
2. On or about 26 July 2024 the Applicant received a phone call from Ms Seaman during which she confirmed that his employment contract would not be extended and that his last day would be 30 July 2024. Again, the Applicant did not raise any concern at this time about either about the conclusion of his employment or with the external advertisement of the appointment for the new role. Sometime thereafter the Applicant was informed that his application for the new role was unsuccessful.[54]
3. On or about 31 July 2024, the day after his employment with the Respondent ended, the Applicant commenced receiving workers compensation arising from an injury he alleged he suffered while working for the Respondent. Approximately two weeks later the Applicant commenced these proceedings.

1. Section 84 of the IR Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust", for their claim to be deal with under Part 6 of Chapter 2 of the IR Act. Section 83 relevantly provides:

83 Application of Part

(1) This Part applies to the dismissal of -

(a) any public sector employee, or

(b) any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $62,200 (or such greater amount as is prescribed by the regulations).

...

(2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes -

(a) employees engaged under a contract of employment for a specified period of time or a specific task,

(b) employees serving a period of probation or qualifying period,

(c) employees engaged on a casual basis for a short period,

(d) employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances,

(e) employees in relation to whom the operation of the provisions of this Part causes or would cause substantial problems because of -

(i) their particular conditions of employment, or

(ii) the size or nature of the undertakings in which they are employed.

(3) ...

(4) ..

(5) In this Part -

dismissal includes -

(a) the threat of dismissal, and

(b) in the case of a public sector employee - dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee.

1. While the Applicant was engaged under a contract of employment for a specified period of time, the exception from the application of Part 6 of Chapter 2 provided for in s 83(2)(a) does not apply in this case and the Respondent places no reliance on it, as reg 6(1)(a) of the Industrial Relations (General) Regulation 2020 (IR Regulation) prescribes that the exemption applies to employees engaged under a contract of employment for a specified period of less than six months.
2. The exemptions provided for in s 83(2) are not however, the only way that an employee may be disentitled from seeking relief under Part 6. To be entitled to make a claim under Part 6, there must have been a "dismissal", or, in other words, the Applicant must have been dismissed. The IR Act does not define "dismissal", other than to the extent of specifying, in s 83(5), certain circumstances which the word will be taken to encompass. Nevertheless, it is now well established in this jurisdiction, consistent with the remarks of the majority in Victoria v The Commonwealth; (1996) 187 CLR 416; [1996] HCA 56 at 520 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ), that an employer does not "dismiss" an employee when his or her term of employment expires: see Custovic and State of New South Wales (Department of Family and Community Services - Housing NSW) [2014] NSWIRComm 48; 247 IR 414 at [87] - [88]; Naulty v Shoalhaven City Council [2021] NSWIRComm 1012 at [66]; Alexandra Boyce v Industrial Relations Secretary on behalf of the Australian Museum Trust [2019] NSWIRComm 1013; 284 IR 221; Dhillon v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1050 and Alouani-Roby v National Rugby League Ltd (2024) 307 FCR 65; [2024] FCAFC 161 at [55]. Rather, as explained by the High Court in Victoria v The Commonwealth, the employment comes to an end by agreement, or, where the term is fixed by award or statute, by operation of law, and the effluxion of time. "Dismissal" involves the "termination of services by the employer without the employee's consent": Smith v Director-General of School Education [1993] NSWIRComm 134; (1993) 31 NSWLR 349 at 366; [1993] NSWIRComm 134, citing Brereton J in Ex Parte Wurth; Re Tully (1954) 55 SR (NSW) 47.
3. I interpolate at this juncture to address a submission made by the Applicant, AS22April. The Applicant submitted at AS22April [6] and [7]:

"The intent of section 83(2)(a) of the Act was to legislate the common law position that conclusion of a Fixed Term Contract on reaching the specified end-date is not considered as 'dismissal' for the purposes of Part 6 of Chapter 2 of the Act. Regulation 6(1)(a) however provided that if the employment relationship was established by a Fixed Term Contract of 6 months or more, an employee will not be excluded from the protections under Part 6 of Chapter 2 of the Act, meaning the conclusion of employment contract on the specified end-date will be considered as 'dismissal'.

... I[t] follows that the Regulations barred the Respondent from claiming, as it did, that there was no 'dismissal' at their initiative and the Applicant's employment was concluded by effluxion of time be reaching its end-date."

1. The Applicant provided no authority in support of this submission, and it is plainly wrong. Section 83(2) of the IR Act and reg 6(1)(a) of the IR Regulation do not provide on their terms that if the employment relationship was established by a fixed term contract of six months or more, an employee will not be excluded from the protections under Part 6 of Chapter 2 of the Act. Rather, they provide that where an employee is engaged under a contract of employment for a specified period of less than six months, they will be exempted from Part 6 of Chapter 2 of the Act and the protections afforded therein. Thus, if the employment of an employee on a contract of less than six months, is brought to an end at the initiative of the employer before the end of the term, they will be unable to seek relief for unfair dismissal. The intent of the provisions is not, as the Applicant submits, to legislate the common law position that the conclusion of a fixed term contract on reaching the specified end date is not considered as a 'dismissal', rather it is to deny access to redress for unfair dismissal, and thereby avoid the expenditure of resources on that process, if the term of employment was less than six months.
2. The Respondent squarely submitted at [8] of its Outline of Submissions (RS) that the Applicant was not dismissed within the meaning of s 84 of the IR Act, but rather "that the Applicant's engagement came to an end pursuant to the agreed terms of his maximum term contract of employment." During closing submissions counsel for the Respondent made the following statement:

"You will note, Commissioner, that we haven't taken a jurisdictional challenge by saying that because it was a termed contract and it ended because of the effluxion of time, and that in part is because by the time one runs jurisdictional arguments, you're better off to just run a hearing in one day as a costs benefit to everyone. But in addition, of course, there's victimisation proceedings which are on foot that would've needed to be determined, so [it's] just more prudent to deal with everything at the same time."[55]

1. I did not understand this submission to mean that the Respondent did not make a jurisdictional challenge at all - by contending that the Applicant was not dismissed it necessarily raised a jurisdictional challenge. Rather, I understood from counsel's submission that the Respondent decided not to bring an interlocutory application to have the unfair dismissal claim summarily dismissed, (as is commonly done), in circumstances where it still had to answer the victimisation claim.
2. In any event, regardless of the Respondent's attitude to the matter, consistent with the "first duty" of every judicial officer, particularly one presiding over a tribunal with limited jurisdiction, the Commission must satisfy itself that it has the jurisdiction to deal with the matter: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31; (1911) 12 CLR 398 at 415. In short, the Commission cannot proceed to deal with the Applicant's unfair dismissal claim if he was not in fact dismissed.
3. It was manifestly clear during the hearing that the Applicant maintained that he had been dismissed within the meaning of ss 83 and 84, either on 30 July 2024, when his contract ostensibly came to an end; or alternatively, on 28 June 2024, when, according to the Applicant, "a final decision was made to make the Applicant's position redundant,"[56] or on 8 July 2024, when the restructure came into effect; and the Applicant made extensive submissions as to why this was so. However, after the hearing and after I had reserved my decision, upon reviewing the transcript (in particular the submission made by counsel for the respondent referred to at [79] above) and the written evidence and submissions in order to prepare my decision, I became concerned that the Applicant may have not fully appreciated that his application could be dismissed for want of jurisdiction on the basis that he had not been dismissed within the meaning of s 83 of IR Act; and further, that neither party had adequately addressed the question of what effect a breach of cl 36 of the LG Award, as asserted by the Applicant, would have on the employment contract.
4. The Applicant contended that the time limit stipulated in his employment contract was not legally effective because:

(1) by reason of the LG Award, local government appointments can only end by "effluxion of time" if:

(a) they are "temporary in nature" and specifically fall into one of the situations identified in cl 36(i) of the LG Award; and

(b) the situation is correctly identified by the employer at the time of entering into the employment contract, by reasons of cl 36(ii) of the LG Award;

(2) however, his employment was ongoing in nature and did not fall within cl 36(i)(g) as asserted by the Respondent;[57] and

(3) the employment contract "was offered to him by way of misrepresentation and misleading conduct."[58]

1. In ASR the Applicant summarised his unfair his unfair dismissal case in the following terms:

"24 ... the Applicant submits that the end-date mentioned in his term contact did not have any legal validity because the term contract:

i. was in breach of clause 36 of the Award and/or

ii. was offered to him by way of misrepresentation and misleading conduct.

25. The Applicant submits that if his appointment could not be temporary, it can only be permanent and ongoing. Any other situation is not possible."

1. In the premises, the Applicant submitted that the Respondent did not have a valid reason to end his employment and consequently his dismissal was unfair.[59]
2. The Applicant referred to a number of cases that he claimed supported his submission that, given the terms of cl 36 of the LG Award and the factual context of his employment, his employment could not temporary and must be regarded as permanent and ongoing, in particular the Full Bench decision of the Fair Work Commission in Khayam v Navitas English Pty Ltd (2017) 273 IR 44; [2017] FWCFB 5162. However, my own research after the hearing had revealed authorities that cast doubt on that proposition and, on 12 December 2024, the Full Court of the Federal Court published its decision in Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161; 307 FCR 65 which overruled Khayam. Aside from the concerns I have already outlined at [82] above, I was concerned in those circumstances to ensure that the Applicant, being un-represented, was given an opportunity to address those authorities and to making any further submissions regarding the jurisdictional question he may wish to make.
3. In the circumstances, on 3 April 2025, I made the following directions in chambers:

1. The Commission has determined that the parties should be invited to make further submissions regarding the issue set in the letter to be sent by the Commission to the parties dated 3 April 2025 and that her (sic) decision will be reserved after the parties have been given an opportunity to make further written submissions.

2. The applicant is to file and serve any submissions, not exceeding 10 pages, regarding the issue set out in the letter to be sent by the Commission to the parties dated 3 April 2025, by 4:00pm on 15 April 2025.

3. The respondent is to file and serve any submissions regarding the issue set out in the letter to be sent by the Commission to the parties dated 3 April 2025, not exceeding 10 pages, by 4:00pm on 29 April 2025.

1. The letter sent by the Commission on 3 April 2025, relevantly stated:

"The issue the parties may wish to address are (sic):

If the Respondent breached cl 36 of the Local Government (State) Award 2022, does this result in the Applicant being deemed to be employed on an ongoing basis, such that the termination of the employment on or about 30 July 2024 (assuming this was the date of termination) was a dismissal within the meaning of s 83 of the Industrial Relations Act or does the fixed-term of the contract continue to (sic) effect?

In addressing this issue the parties should consider National Tertiary Education Industry Union v University of Wollongong [2002] FCA 31 and Independent Education Union of Australia v Australian International Academy of Education Inc [2012] FCA 1512, which may indicate that doing an act in relation to a contract that is prohibited by a statute or an industrial award is not transmogrified into an act compliant with the statute by virtue of the contravention. In considering whether this is the case here the parties may also wish to consider:

• the remarks of the High Court in Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; (1978) 139 CLR 410 at 413 that; "[t]he question whether a statute, on its proper construction, intends to vitiate a contract made in breach of its provisions, is one which must be determined in accordance with the ordinary principles that govern the construction of statutes."

• the enforcement provisions contained in Chapter 7 of the Industrial Relations Act and the effect of s 406(2) of the Industrial Relations Act and any other relevant provision of the Act;

• the decision of Commissioner Sloan in Alexandra Boyce v Industrial Relations Secretary on behalf of the Australian Museum Trust [2019] NSWIRComm 1013; 284 IR 221; and

• the decision of the Full Court of the Federal Court in Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161, delivered after the hearing in this matter, which overruled Khayam v Navitas English Pty Ltd [2017] FWCFB 5162; 273 IR 44 upon which the Applicant relies."

1. Pursuant to the direction I had made on 3 April 2025 and following the grant of an extension of time, the Applicant filed AS22April and the Respondent filed RS6May.
2. At AS22April [32] the Applicant referred to written statements made by Ms Lazzaro, Mr Zincone and Ms Cindy Yu which had apparently been provided to the Applicant by the Respondent's workers compensation insurer, Statecover Insurance Pty Ltd, after the hearing on 26 November 2024, which he contends supports his submission that his position continued in the new finance department restructure, which in turn supports his contention that his employment was permanent and ongoing. He foreshadowed making an application to the Commission to re-open his case to include these statements in evidence. The Respondent opposed the notion of the Applicant re-opening his case in RS6May. On 16 May 2024 the Applicant filed a Notice of Motion seeking leave "to open the evidence to include the statements of Ms Maria Lazzaro, Mr Fab Zincone, Cindy Yu and Ms Sarah Seaman."
3. For the reasons I will explain at length below, I have determined that the Applicant was validly employed on a temporary basis and that his employment came to an end through the effluxion of time. I have determined that the Respondent did not breach cl 36(i), but did breach cl 36(ii). The breach of cl 36(ii) does not however, result in the termination of the Applicant's employment being a dismissal within the meaning of Part 6 of Ch 2 of the IR Act or result in the Applicant being engaged on an ongoing, permanent basis. Even if the Respondent had breached of cl 36(i), this would not result in the Applicant being engaged on an ongoing, permanent basis, but it would mean, for reasons I will explain, that the ending of the employment relationship at the conclusion of the contractual term, would be a dismissal for the purposes of Part 6 of Ch 2 of the IR Act.
4. My conclusions would remain unchanged, even if the Applicant's position continued in precisely the same form in the new finance department restructure, as now contended for by the Applicant - a position somewhat at odds with his initial contention that his original stance that the position was made redundant.
5. For reasons I explain at [126] - [130] below, if the Applicant's position did continue in the new organisation structure as the Applicant now alleges, this, if anything, only reinforces the conclusion that his employment in that position was temporary, that it came to an end due to the effluxion of time and he was not made redundant as alleged in his applications. In those circumstances it would not be consistent with my obligation pursuant to s 56 of the Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in the proceedings to hear the Applicant's notice of motion to re-open his evidence, as even if the further evidence were admitted, it would make no difference to the decision I had already reached ahead of the first return of the motion and accordingly I propose to summarily dismiss it.
6. To the extent that the Respondent breached cl 36 of the LG Award, in circumstances where the clause has been incorporated by reference as a term of the employment contract, the Applicant may have a claim for damages for breach of contract and the Respondent may be liable for a civil penalty for breach of an award pursuant to Part 1 of Chapter 7 of the IR Act. It is even possible that the Applicant may have a claim under s 106 of the IR Act on the basis that the employment contract was an "unfair contract". However, as I will explain in detail below, the breach as I have found occurred would not result in the time limit stipulated in the contract being invalid or ineffective at law generally, as the breach does not vitiate the agreement the parties had reached that the employment contract, and the employment relationship (to the extent there is a difference), would end after a stipulated period, on a stipulated day, nor does it otherwise convert the Applicant's employment into ongoing, permanent employment. As I have already stated, a breach of cl 36(i) would however, result in the ending of the employment contract/relationship at the end of the stipulated period, on the stipulated day, in accordance with the contract, being a "dismissal" within the meaning of Part 6 of Ch 2 of the IR Act.
7. On the other hand, if the Applicant could establish that he was induced to enter into the fixed term employment contract by misrepresentation or misleading conduct, this could have the effect of vitiating the apparent agreement of the Applicant as to the term of his employment, such that it could not be said that the employment came to an end by agreement and the effluxion of time. However, as the evidence reveals and as I will explain below, the Applicant failed to establish that he was induced to enter the fixed term contract by misrepresentation or misleading conduct.
8. The Applicant also contended that even if his employment contract came to an end on 30 July 2024, his employment relationship was in fact terminated on 28 June 2024 when, "a final decision was made to make the Applicant's position redundant", or on 8 July 2024, when the restructure came into effect.
9. For reasons I will explain below, neither the employment contract nor the employment relationship - to the extent there is any distinction between the two - was terminated on 28 June 2024 or on 8 July 2024. The employment contract and the employment relationship continued until 30 July 2024 when both came to an end.
10. In the premises, I accept the Respondent's submission that the Applicant's employment came to an end due to the agreed effluxion of time and that the Applicant was therefore not dismissed by the Respondent within the meaning of s 83. In those circumstances the Commission lacks the jurisdiction to hear and determine the unfair dismissal claim and it must be dismissed.

Was the Applicant's Employment Permanent and Ongoing?

1. The AS22April contained a helpful summary of why the Applicant contends that his employment was ongoing and permanent. The summary essentially distilled the arguments the Applicant had made in the AS and the ARS, while adding the further argument, that I have already addressed and dismissed, that reg 6(1)(a) of the IR Regulation "barred" the Respondent from claiming that there was no dismissal.
2. At the risk of repetition, if the Applicant were correct, and his employment was as a matter of fact and law, permanent and ongoing, the termination of it on 30 July 2024 would constitute a dismissal and the Commission would have jurisdiction to determine whether the dismissal was unfair within the meaning of Part 6 of Chapter 2 of the IR Act.
3. The Applicant submitted at AS22April [28] that the Commission must find that the nature of the Applicant's employment was permanent because:

"i. The Respondent was bound by the Award provisions of section 12 of the [IR Act] and therefore did not have the authority to employ the Applicant on a term contract in contravention of clause 36 of the Award ...;

ii. Permanent appointments in the (sic) Local Government are the norm and term contracts are only exceptions in limited circumstances allowed under cl[a]use 36 of the Award ...;

iii. The Applicant's role continued in the new finance department restructure ...;

iv. The Applicant's role could not be considered as casual and therefore, the only category where this appointment could fit is 'ongoing'. (Commissioner Sloan in Boyce at [89]) ...;

v. Because of the (sic) clause 36 of the Award applicable to his employment, the Applicant had expected his employment to continue until he resigned, or his employment was terminated by the Respondent. [The] Respondent was not allowed to rely on conclusion of his employment via effluxion of time. (Commissioner Sloan at [91] of Boyce). Similar expectation of employment to continue until the Applicant had resigned or was dismissed also arises due to the application of regulation 6(1)(a) [of the IR Regulation]."

1. I shall deal with each of the Applicant's contentions seriatim, although as will be revealed, they are not discrete arguments.

The allegation the Respondent did not have authority to employ the Applicant on a term contract in contravention of cl 36 of the Award.

(1) An award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award.

(2) An award that applies to a particular industry is, subject to its terms, taken to bind all employees and employers engaged in the industry.

(3) An award is, subject to its terms, binding on all industrial organisations that were a party to the making of the award.

1. There is no question that the Respondent was bound to apply the provisions of the LG Award and it does not contend otherwise.
2. As recorded above, the Respondent had identified in the letter of offer/contract of employment, as it was required to do pursuant to cl 36(ii), that cl 36(i)(g) was the 'relevant situation' that gave rise to the Applicant being employed pursuant to a fixed or maximum term contract. The Applicant says that he was not in fact engaged to perform duties associated with a vacant position, this being one of the criteria required to enliven cl 36(i)(g), but rather that his position was a newly created position, such that the Respondent was in breach of cl 36(i)(g) and cl 36(ii). The Applicant says that this meant that the Respondent did not have authority to employ the Applicant on a term contract and therefore his employment was ongoing.
3. Davis J set out a useful and succinct summary of the principles concerning the approach to construing awards in New South Wales Nurses and Midwives' Association v State of NSW [2024] NSWSC 636 at [15]:

"(a) The interpretation of an industrial instrument commences with the ordinary meaning of the words used understood in the light of its industrial context and purpose.

(b) An overly strict or literal approach to construction of industrial awards is rarely appropriate. It is justifiable to read an award so as to give effect to its evident purposes despite mere inconsistencies or infelicities of expression. Meanings that "avoid inconvenience or injustice may reasonably be strained for."

(c) Awards are to be seen as beneficial instruments. A generous construction is to be applied over a strictly literal approach.

(d) Regard is to be had to the practical consequences that will flow from a particular construction when interpreting the provisions of an award.

(e) Context is of significance in interpretating industrial instruments. However, while purpose, history and industrial context are relevant in construing an award, a narrow or industrially impractical interpretations will be eschewed, the task remains one of interpreting a document based on the objective meaning of its text. In that way, the Court is "not free to give effect to some anteriorly derived notion of what would be fair or just".

(f) Relevant context includes firstly the whole of the text of the document but also extends to the circumstances in which the instrument was made and its historical antecedents. Nevertheless, awards are construed objectively where the parties' subjective intentions and beliefs are not relevant.

(g) The statutory context in which awards are made includes that the Industrial Relations Commission must make awards to set "fair and reasonable conditions of employment for employees" (s 10 of the Industrial Relations Act 1996 (NSW))."

1. In considering the Applicant's arguments regarding cl 36 I have had regard to these construction principles.
2. The evidence establishes that as at the date of the commencement of the Applicant's employment with the Respondent, the position of FUO was vacant and the position of Chief Financial Officer (CFO) was, or was about to be, vacant. The Respondent had determined to introduce major changes to production, organisation structure and technology of the finance services team in light of the BDO Australia services review, which had identified that a "refresh" of the finance team structure was required in order that it was more "fit-for-purpose" but was not yet ready to implement those changes. In those circumstances the Respondent did not wish to fill the vacant "establishment" positions of FUO and CFO, pending finalisation of the new organisation structure.
3. Instead, the Respondent created a temporary role to perform duties "associated with" the vacant FUO role, and the about to be vacant, CFO role. That the duties included those "associated with" the vacant CFO role was confirmed by Mr Zincone in cross examination[60] and is apparent from the statement in the workplace change proposal form that:

"...circumstances have changed within the Finance Team with the retirement of the CFO and it has become more evident that a more senior role is required in the interim."

1. The Applicant sought to establish in cross examination of Ms Lazzaro that Ms Seaman was employed in September 2023 as Finance Manager to replace CFO, Wayne Armitage, who retired on or about 31 July 2024,[61] hence the more senior duties the Applicant was performing were not those "associated with" the role of CFO, however I accept Ms Lazzaro's evidence that she could not say whether every part of the CFO and Ms Seaman's positions were "like for like".[62] I accept that Ms Seaman, who is the "Finance Manager" and who is now the head of the finance department instead of the CFO, was and is likely to be undertaking many of the functions that previously were performed by the CFO, however it is also clear from the evidence that the vacation of the CFO role ahead of the finalisation of the new organisation structure meant that there was a need, during the period from July 2023 through to July 2024, for a senior accountant to be appointed to help support the finance team. In that sense, as I will explain further below, the duties the Applicant was employed to perform were "associated with" the vacant role of CFO.
2. In any event, as I set out at [43] above, while the evidence established that many of the tasks the Applicant was required to undertake were not tasks which the previously employed FUO undertook, two of the tasks the Applicant was required to perform, namely the daily bank reconciliations and creating part of the accounts payable master accounts, were such tasks.
3. The Applicant essentially argued that cl 36(i)(g) was not engaged because he did not perform the exact duties of the FUO and was required to perform many other duties that required a level of skill and knowledge more advanced that a FUO, this being the only vacant role identified in the employment contract. While this was certainly the case and it is not in dispute that the Applicant's role of "Finance Business Manager" was a specially created role, to say that it did not fall within the circumstances prescribed in cl 36(i)(g) would involve an overly strict or literal approach to the construction of cl 36(i)(g) without regard to its context and purpose; the meaning of the word "associated"; ignores the reality that there were in fact two vacant roles; and would result in a clause that was industrially impractical.
4. It is clear that cl 36(i)(g) is to apply when positions within a council's organisation structure, which necessarily including the duties connected or "associated" to those positions, are in a state of uncertainty and when the expected organisational change is "likely to have significant effects on the employment in the vacant position". In other words, the vacant position, and necessarily the duties of that vacant position, are not expected to continue following the anticipated organisational change, in the same form and with the same content. Those very circumstances may make it difficult for a council to recruit a person to cover duties allied, related or connected to a vacant position for a temporary period, if they are restricted to only being able to a recruit a person to perform exactly the same duties as those of the vacant position.
5. Conversely, the clause also indicates a clear intention to limit councils' ability to employ a person on a term contract. The fact of anticipated organisational change does not give a council carte blanche to employ people on term contacts (potentially longer than 12 months if appropriately advertised). I accept the thrust of the Respondent's submission that there is a "general policy intent" or "public interest" in:

"limiting the use of term contracts to promote job security, reduce constant uncertainty and financial insecurity and discourage the exploitation of employees ..."[63]

1. Definitions of "associate" in the Macquarie Dictionary include "to connect by some relation, as in thought" and "allied; concomitant".[64] Clause 36(i)(g) requires that the duties the proposed temporary employee is to perform be "associated with", that is, connected or related to, those usually performed by the holder of the vacant position. I consider that a generous construction to cl 36(i)(g) is warranted to give effect to its evident purpose, which is to allow councils to employ persons on temporary contracts to cover duties which need to be performed, but which the council may struggle to have performed due to the existence of a vacant position within the organisation structure, for the period between deciding to make organisational changes and actually implementing those changes, where those changes are like to have a significant effect on the employment in the vacant position. To that end, the duties of the temporary employee do not need to align precisely with the vacant position, but they do need to be related or connected with the vacant position.
2. For completeness I note that cl 36(i)(b) and (c) refer to "duties associated with an externally funded position" and "duties associated with a vacant position", respectively. My interpretation of the phrase "associated with" can apply equally to these clauses without any difficulty or inconsistency arising. To illustrate:

(1) A council may have secured Government or private funding to employ a particular specialist for two years. To operate effectively that specialist may need administrative assistance, the cost of which is otherwise not encompassed within the funding. It seems to me that cl 36(1)(b) would enable the council to employ an administrative assistant to perform duties "associated with" the externally funded specialist position, for the same term as the funded specialist position.

(2) Similarly, where a council has a vacant position, it may be operationally necessary to have an existing employee or employees with knowledge of the council's systems and processes, to perform the duties of the vacant position and for the council to employ someone else, on a short-term contract, no longer than is reasonably necessary to undertake recruitment for the vacant position, to cover duties usually performed by the existing employee(s) who are to be engaged to perform the duties of the vacant position. The duties of the temporary employee may be regarded as being "associated with" the vacant position and a term contract to engage someone to perform those duties would be permitted by cl 36(i)(c).

1. Such construction does not result in any injustice and best addresses the industrial context that councils confront, and which are sought to be addressed by cl 36. While it may be accepted, that the LG Act and the LG Award evince an intention that term contracts should be the exception rather than the rule, provided an employee is not mislead, and provided ss 348 - 351 of the LG Act and cll 35 and 36 of the LG Award are complied with, there is no injustice visited upon an employee employed on a term contract. Compliance with the provisions of the LG Act and the setting of the outer limits of such contracts as provided for in cl 36 also ensures there is no injustice visited upon the broader workforce.
2. Returning to the present matter, it is clear that the Applicant was employed during the intervening period between when the Respondent had made a definite decision to introduce major changes in the production and organisation structure of the financial services team and the technology used by that team, which had occurred in or around June/July 2023, and the date that the changes were to be implemented, which ultimately transpired to be in July 2024.
3. It is also abundantly clear that the anticipated organisational change to be implemented was likely to have a significant effect on the employment in both vacant positions. Neither the FUO or the CFO positions were maintained, in that form, in the July 2024 restructure and this was foreshadowed in the workplace change proposal form.
4. I consider that the circumstances the Respondent found itself in in July 2023 fell squarely within those contemplated by cl 36(i)(g) and it properly employed the Applicant on a term contract for 12 months. Pursuant to cl 36(ii) the Respondent identified in the letter of offer/contract of employment that cl 36(i)(g) was the "relevant situation" identified in cl 36(i) that gave rise to the employment pursuant to a fixed or maximum term contract. It is true that it only identified the FUO position, and not the CFO position, as the relevant vacant position, however identification of the vacant position is not an express requirement of cl 36(ii).
5. The Applicant made two further arguments against a finding that his employment was compliant with cl 36(i)(g). The first, is that cl 36(i)(g) refers only to a single "vacant position", therefore the Respondent cannot rely on there being two vacant positions. Section 8(b) of the Interpretation Act 1987 provides that in any Act or instrument a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form. There is no force in the Applicant's argument, which in any event would act contrary to the evident purpose of the clause.
6. The second argument, relies upon the following remarks made by Chief Commissioner Constant in Naulty v Shoalhaven City Council [2021] NSWIRComm 1012 at [64], (being a decision in which the Chief Commissioner had to consider the construction of the equivalent of cl 36 of the LG Award):

"A significant change to the duties of a position may result in a position of the same title no longer being the same position and this could result in a breach of cl 34. However, this is not the circumstance here, either while the new billing system was being implemented and the applicant performed the role of Administration Officer or later once the system was implemented. There is nothing in the text of the Award to support the submission that a small modification to a position description is in breach of the Award. Nor has authority been identified for the applicant's proposition that there "is a prohibition on any change being made to the position description". The text of the Award contains no such prohibition."

1. The Applicant argued that even if he was initially engaged to perform duties associated with the CFO role, once Ms Seaman was employed, his position must have significantly changed, resulting in a breach of cl 36(i)(g). I disagree. The Chief Commissioner's obiter remarks speak only to the fact that each case must be determined on its own facts. Further, the balance of the remarks support a wide and practical construction of cl 36 (cl 34 in the Award the Chief Commissioner was considering). I repeat what I said at [110] as regards the Applicant undertaking duties "associated with" the vacant role of CFO.
2. If I am wrong about the interpretation of cl 36(i)(g), and in any event, I consider that the Applicant's employment also fell within the scope of cl 36(i)(a) and cl 36(i)(f).
3. Clause 36(i)(f) allowed the Respondent to employ the Applicant on a term contract to "trial a new work area, provided that the duration is no longer than is reasonably necessary to trial the new work area." Ms Lazzaro gave the following evidence in cross examination, that indicated that the Applicant's position as Finance Business Partner was not only designed to cover duties associated with the vacant FUO position, but to trial a version of the Finance Business Partner role recommended by the BDO service review:

Q. Maria, what was your understanding of why the finance business partner role was created?

A. The finance business partner role, we - as I've - so we had service - we had - we were in the middle of a service review. We also had the undergraduate leaving at the time and there was a discussion around - now I'm just - I need to sort of think back. The discussion that occurred was that the undergraduate's time had come up, the two year period or whatever the undergraduate position was at, and I can't recall now the exact timing. There was a service recommendation and rather than put in anything in set in concrete, it was to look at it for a trial, and I very specifically remember Fab and Wayne also saying that it was for a period of time, a trial while we bed down and review and work through the service recommendations and spend the time to go through those service recommendations. So that's my recollection of it.[65]

1. The notion that the Applicant was employed to trial a version of the finance business partner position which had been recommended by BDO Australia, is consistent with the position that the Applicant now puts (apparently supported by the further evidence he proposed to adduce referred to at [90] above) that his position essentially continued in the new restructure, albeit under a slightly different name. If this is what occurred, (noting that on its face there are significant differences in the two positions, as I outlined at [50] above), there was nothing wrong with that, in circumstances where the contract was only for 12 months, thereby ensuring that ss 348 and 351 were not breached, and provided it was for no longer than necessary to trial the new work area. I consider the evidence established that it was reasonable for the trial to extend for 12 months, noting that it in fact took the Respondent that long to finalise the details of the proposed restructure and the exact duties the Business Partner/Process Improvement position would undertake.
2. The fact that a trial may result in a different permanent role being created does not detract from the fact that a temporary appointment was a trial. Plainly enough a trial may have indicated that a different role with different duties would better achieve an employer's objective than the trialled role.
3. Additionally, cl 36(i)(a) was engaged. The workplace change proposal identified that "approval was sought to recruit a Finance Business Partner for a twelve month temporary position until the Service Review recommendations can be implemented and also to support the transition to the new ERP." (Emphasis added).
4. The Applicant explained in submissions that "ERP" stood for "enterprise resourcing plan" and referred to new software.[66] I therefore infer that the Applicant was also engaged for a "specific task or project", namely, to support the transition to new software.
5. Sub-clauses 36(i)(a), (f) and (g) all provided the Respondent with the ability to employ the Applicant on a term contact. While it is the case that sub-clauses 36(i)(a) - (i) are joined by the disjunctive "or", this does not mean that only one situation can be applicable. Such an interpretation would not be consistent with the industrial reality that more than one of the prescribed situations could exist in fact. Plainly the clause is intended to allow a term contract if any of the prescribed situations exist.
6. Even if the Applicant's position continued unchanged in the Respondent's organisation structure after the Applicant's employment concluded in 30 July 2024, as the Applicant now asserts, it is clear that once the Respondent determined to make the position (or a version of it) a permanent position within the organisation structure, which only occurred in July 2024, after the consultation period, the Respondent was obliged, by reason of ss 348 and 351 of the LG Act, to offer the position on a permanent basis after advertising the position (internally or externally). It was then obliged, by reason of s 351, to select the most meritorious applicant.
7. As cl 36(i)(a) and (f) were engaged, along with cl 36(i)(g), the Respondent had not fully identified "the relevant situation identified in subclause (i)", in breach of cl 36(ii), however, for reasons I will now explain, I do not consider that a breach of cl 36(ii) would result in the Applicant being engaged on an ongoing basis or otherwise disentitle the Respondent from relying on the express terms of the agreement, including as regards the application of Part 6 of Ch 2 of the IR Act.

1. The effect of a breach of cl 36 of the LG Award is far from straightforward and alas, my conclusion on the question will take some pages to explain.
2. As I have already set out at length, the Applicant contends that a breach of either sub-cl 36(i) or (ii) results in the provision in the employment contract setting an end date for his employment being illegal, void, invalid or otherwise unenforceable, with the result that his employment was permanent. The Respondent on the other hand submits that neither the LG Award, nor the LG Act "impose an ongoing employment relationship in the event of non-compliance"[67]; that a "breach of a statutory instrument with respect to a contract of employment does not transmogrify the contract into a different agreement which includes terms which comply with the relevant statutory rules"[68] and the Commission does not have "authority" to "make findings or orders which affect its jurisdiction"[69] and consequently the alleged award breach is "irrelevant to the determination of whether the Applicant was "dismissed" within the meaning of s 83 of the Act".[70]
3. For the reasons which I will now explain, I consider the correct approach rests somewhere between the parties' respective positions. In summary:

(1) a breach of cl 36(i) of the LG Award would disentitle the Respondent from reliance upon the agreed effluxion of time as the reason for the employment relationship being brought to an end for the purposes of Part 6 of Ch 2 of the IR Act, such that there would be a dismissal within the meaning of s 83 of the IR Act, but it is not axiomatic that such dismissal would be unfair simply by reason of the breach;

(2) however, a breach of cl 36(i) would not transmogrify the employment contract into one providing for permanent and ongoing employment, capable of specific performance or enforcement through other injunctive relief; and

(3) a breach of cl 36(ii), as is the case in this matter, does not disentitle the Respondent from reliance, for any purpose, upon the agreed effluxion of time as stipulated in the contract to bring the employment relationship to an end, nor does it transmogrify the employment contract into one providing for permanent and ongoing employment, capable of specific performance or enforcement through other injunctive relief.

1. The present case is very similar to National Tertiary Education Industry Union v University of Wollongong [2002] FCA 31. In that case the applicant employee had accepted employment with the University of Wollongong on a fixed-term contract. The University and its academic staff were subject to the terms of an enterprise agreement that had been certified by the Australian Industrial Relations Commission. Under the terms of the enterprise agreement employment on a fixed term basis was only permitted for certain purposes, including for a "specific task or project". The applicant was employed, on a fixed term contract which was to run from 1 February 2001 to 31 January 2002, to "teach core subjects within the undergraduate and postgraduate programs". In around May 2001 the applicant raised a concern with the University that his position had not been appropriately classified as a fixed-term contract. Toward the end of 2001, while discussions between the applicant and the University ensued regarding the appropriateness of his fixed term contract, the University advertised a full time, continuing position corresponding to the position held by the applicant. The applicant applied for the position but was not successful. The University advised the applicant that his employment would cease on 31 January 2002, as stipulated in his contract. The Union and the employee commenced proceedings seeking, inter alia, a declaration that the employment was of a continuing nature.
2. Branson J found, at [33], that the University had breached the enterprise agreement. She found, at [29], that the relevant term of the agreement "reveals an intention that "fixed-term employment" is to be the exception, rather than the rule, for academic staff of the University of Wollongong" and rejected the University's argument that the applicant had been employed to undertake a "specific task or project". However, her Honour declined to declare that in those circumstances the applicant's employment was ongoing and declined to grant any ancillary relief predicated on that premise.
3. Her Honour noted, at [37] - [38], that the enterprise agreement was silent as to the consequences of the University using fixed-term agreements in circumstances outside of those permitted under the enterprise agreement and so the consequences of the University's breach of the clause was to be determined by reference to the Workplace Relations Act 1996 (Cth) (WR Act). Section 178 of the WR Act provided for the imposition of penalties for breach of a term of a certified agreement and for ancillary relief, however nothing in s 178 provided a basis for the applicants' argument that a breach of a certified agreement can alter the express term of a contract of employment.
4. Her Honour concluded at [39]:

"Neither s 178, nor any other provision of the WR Act, discloses, in my view, an intention that a consequence of the type for which the applicants here contend should flow from a breach of a term of an enterprise agreement. Were an intention able to be gleaned from the terms of the WR Act that the making of contracts in breach of enterprise agreements is prohibited, it would be necessary to consider whether the statute also discloses an intention that such contracts should be rendered void and unenforceable (see Yango Pastoral Company Pty Ltd v First Chicago Australia Limited [1978] HCA 42; (1978) 139 CLR 410). However, in this case the applicants do not argue in favour of invalidity. They argue in favour of a "contract" of employment coming into existence, the terms of which do not reflect any offer made by the University or accepted by Dr Rodwell. No principle of law was identified by the applicants which would justify the Court in declaring the existence of such a "contract"."

1. Branson J's approach in National Tertiary Education Industry Union v University of Wollongong is, with respect, consistent with the principled approach to statutory illegality. There was once a presumption that a contract expressly or impliedly prohibited by statute is void and unenforceable. However, as the High Court made clear in Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; (1978) 139 CLR 410 and in subsequent cases such as Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 (at [11]), and Gnych v Polish Club Ltd [2015] HCA 23; (2015) 255 CLR 414 (at [64]), "[t]he question whether a statute, on its proper construction, intends to vitiate a contract made in breach of its provisions, is one which must be determined in accordance with the ordinary principles that govern the construction of statutes.": Yango Pastoral Co at 413.
2. Moreover, as Branson J identified, a finding that a contract or a term of a contract was void or unenforceable does not, of itself, create a contract on different terms. As the learned author of The Contract of Employment, explains:

"...doing an act in relation to a contract that is prohibited by a statute or an industrial award is not transmogrified into an act compliant with the statute by virtue of the contravention. In NTEIU v University of Wollongong, the employer could only appoint an employee as a fixed term employee in certain circumstances specified in an industrial instrument. In contravention of the instrument, the employer appointed the employee as a fixed term employee in other circumstances. The court rejected the argument that, as a consequence, the employee was deemed to have been engaged on an ongoing basis."[71]

1. I pause to note her Honour's observation at [39] that in the case before her "the applicants [did] not argue in favour of invalidity." The Applicant in this case does, however. He contends that that part of his contract providing for his employment to be for a maximum term, is invalid.
2. National Tertiary Education Industry Union v University of Wollongong was considered by Gray J in Independent Education Union of Australia v Australian International Academy of Education Inc [2012] FCA 1512, who arrived at a similar view to that taken by Branson J. In that case, the Union and its member, a schoolteacher, alleged that the respondent had contravened the Educational Services (Teachers) Award 2010 when it employed the teacher on a fixed term contract in circumstances where the award requirements for the making of such appointments were not satisfied. The applicants sought the imposition of pecuniary penalties, but also an order declaring that the teacher was a full-time employee of the respondent, and an order that the respondent compensate the teacher for any loss and damage caused by the alleged contraventions. The applicants also sought, pursuant to s 545 of the Fair Work Act 2009 (Cth), an interlocutory injunction to restrain the respondent from dismissing or terminating the teacher and that the respondent treat the teacher as a full-time employee, until the hearing or further order. It was the interlocutory application that Gray J was called upon to determine.
3. At [12], [15] and [16], Gray J noted that while s 545 of the Fair Work Act gave the Court very wide powers - wider than s 178 of the Workplace Relations Act, which Branson J had considered in National Tertiary Education Industry Union v University of Wollongong - he then went on to say, at [16] -[19]:

"16. Whatever the breadth of the discretion to formulate orders offered by s 545(1) of the Fair Work Act, it remains difficult to see a principle of law that would justify the Court in creating a contract that simply did not exist. Even if it could be said that cl 10.6 of the Award deprived the respondent of any power to employ an employee for a fixed term unless the requisite circumstances existed, as was the case in the University of Wollongong case, the applicants here do not contend that any contract entered into by the second applicant with the respondent should be rendered void and unenforceable. Rather, they contend that it should be assumed that, because the respondent was unable to employ the second applicant for fixed terms, she would have been employed as a full-time employee teacher. The suggestion is that her employment of such a notional kind should therefore be enforced by injunction. This proposition is difficult enough in itself.

17. However wide a discretion the Court may have to make orders consequent upon contraventions of awards, it must be doubted whether the change in the legislative provisions has so broadened the power as to enable the Court to create employment relationships, or to create employment relationships of kinds that have not hitherto existed.

18. Even if it be assumed that the respondent, having a vacancy for a teacher, would have wished to employ one, it cannot necessarily be assumed that it would have taken the step of employing the second applicant as a full-time employee. Although the specific provisions relating to part-time employment and casual employment would seem to rule out the filling of a vacancy by something other than a full-time employee, it is not impossible to suppose that the respondent could have cobbled together some form of part-time employment for one or more teachers, or some form of casual employment for one or more periods, in order to cope with the vacancy.

19. More importantly, however, it is inappropriate for the Court to be inventing relationships as a means of dealing with the contravention of awards. If a power of that kind can ever be exercised, it must be in extremely rare cases."

1. Again, I note that the Applicant in this case, unlike the applicants in the above case, does contend that the contract he entered into with the Respondent should (now) be rendered void and unenforceable.
2. In the present case, I accept that cl 36 of the LG Award reveals an intention that fixed-term contracts are to be the exception rather than the rule, however as with the enterprise agreements in the above-mentioned cases, there is nothing in the LG Award which states that a consequence of a breach of cl 36 is that the employment shall be regarded as permanent and ongoing, or for that matter that any term in an employment contract providing for the contract to come to end on a specified date or after a specified period of time, shall be regarded as void and/or unenforceable.
3. While cl 36(i) of the LG Award provides that the employer may only employ a person on a term contract of employment in one of the nine specified situations, and cl 36(ii) provides that the employer must identify in the letter of offer/contract of employment, which of those nine situations give rise to employment pursuant to a fixed or maximum term contract, the LG Award is silent as to the consequences of the employer breaching cl 36.
4. The consequence of breaching an award is principally dealt with in Chapter 7 of the IR Act. Leaving aside that only the Industrial Court has the power to make orders under Chapter 7, nothing in that Chapter provides that contracts entered into in breach of an award (or other industrial instrument) are to be void or otherwise unenforceable or, are to be regarded as varied so as to be compliant with an award and there is no provision in Chapter 7 that gives the Industrial Court the power to alter the express terms of a contract.
5. A power to vary a contract, including certain employment contracts, is bestowed on the Industrial Court pursuant to s 106 of the IR Act, if the Industrial Court first finds that the contract is an "unfair contract" as defined in s 105(1). A contract that "is designed to, or does, avoid the provisions of an industrial instrument" will constitute an "unfair contract". However, such a finding must be made and an order made to vary the contract, before the contract will be transformed from a term contract to an ongoing contract.
6. Section 406(2) of the IR Act provides that:

The provisions of a contract of employment or other contract do not have effect to the extent that they provide an employee with a benefit that is less favourable to the employee than the benefit to which the employee is entitled under an industrial instrument.

1. I do not consider that the LG Award, by cl 36 or otherwise, conferred upon the Applicant a "benefit" in the form of ongoing, permanent employment. While it may be accepted that temporary employment in local government is to be the exception rather than the rule, and may only be offered if the situation is one described within cl 36(i), there is nothing within cl 36, or the LG Award more broadly, which bestows upon a person an entitlement to ongoing employment. To paraphrase Gray J in Independent Education Union of Australia v Australian International Academy of Education Inc, even if it be assumed that a local council such as the Respondent, wished to employ a person to fulfil a role within the council, it cannot necessarily be assumed that, if the circumstances confronting the council do not conform to those prescribed in cl 36 and so would not permit the employment of a person on a temporary basis, it will take the step of employing the person on a permanent basis. Plainly enough, if a local government wished to employ a person on a term contract, but is was unable do it so due to the strictures of cl 36, it may decide not to employ anyone at all.
2. It seems to me that in the circumstances of this case that was a realistic possibility. The workplace change proposal form, (prepared in response to a representation by the Applicant that he may leave to be employed at Parramatta City Council), recorded that in May 2023 approval was granted to engage labour hire (namely, the Applicant via a labour hire firm) to replace the finance undergraduate position at a more senior level until the financial service review structure was completed. It seems likely that if the Respondent, through its servants, had formed the view that cl 36 did not permit the Respondent to employ the Applicant on a temporary basis, it would have continued to engage his services through labour hire rather than to offer him employment on an ongoing basis, prior to the finalisation of the revised organisation structure following the BDO Australia service review. There is of course no evidence that this is what the Respondent would have done, and I make no finding that this is what the Respondent would have done. The hypothetical is used only to demonstrate that cl 36 does not confer an entitlement (benefit) of ongoing, permanent employment on a temporary employee who may have been employed despite the absence of circumstances prescribed by cl 36, so as to engage s 406 of the IR Act.
3. To further illustrate that cl 36 confers no benefit for the purposes of s 406 of the IR Act, I note that there are instances where an entitlement to permanent employment is provided by an industrial instrument, which would engage the operation of s 406. For instance, cl 13.6(d) of the Roads and Maritime Services Consolidated Salaried Award 2019 provides:

Where a Temporary Employee is engaged for a fixed period of more than 24 months the Employee will be made permanent.

1. As already stated, there is nothing in the LG Award that indicates that an employee employed on a term contract in contravention of cl 36 will be regarded as a permanent employee or that expressly provides that the contract will otherwise be void and/or unenforceable.
2. The Applicant in AS22April made a number of quite sensible, but ultimately unpersuasive, arguments as to why a contravention of cl 36 meant that his employment was permanent.
3. The Applicant submitted at [21] of AS22April that the Commission must have regard to award construction principles including:

(1) that, in the event of ambiguity, awards must be interpreted with a beneficial approach in favour of employees;

(2) consideration must be given to the specific mischief the award provision is intended to remedy; and

(3) meanings which avoid inconvenience and injustice may reasonably be strained for.

1. I accept that each of those principles are relevant, however application of those principles and others applicable to the interpretation of industrial awards, as summarised by Davis J in New South Wales Nurses and Midwives' Association v State of NSW, does not lead to an interpretation of cl 36 to the effect that an employee engaged on a term contract in contravention of the clause will be regarded as having been engaged on a permanent basis.
2. As Davis J said at [15(e)] "the task remains one of interpreting a document based on the objective meaning of its text. ... the Court [Commission] is "not free to give effect to some anteriorly derived notion of what would be fair or just"". Put simply there is no basis from the text of cl 36 to conclude that noncompliance with cl 36 will result in employment being regarded as ongoing.
3. Conversely, when "regard is had to the practical consequences that will flow from a particular construction when interpreting the provisions of an award (New South Wales Nurses and Midwives' Association v State of NSW at [15(d)]), it is readily apparent that the construction urged by the Applicant has the potential to result in the requirement for appointments to positions within the organisation structure of a council to be advertised, as prescribed in s 348 of the LG Act, to be by-passed. As the Respondent submitted at RS6May [26], an interpretation which facilitates the avoidance of statutory rules should not be adopted. Indeed, it may be readily inferred that the requirements of ss 348 and 349 are why the LG Award does not expressly provide that a contravention of cl 36 will result in employment being regarded as ongoing.
4. Whilst I agree with the submission at AS22April [22] that the purpose and policy of cl 36 is to, inter alia, limit the use of term contracts to promote job security, this fact alone does not permit the construction contended for by the Applicant, nor does the fact that an inconvenience or injustice may result. The Commission is not at liberty to write terms into an award to better achieve what it might regard as the public policy behind a particular award provision or to otherwise "give effect to some anteriorly derived notion of what would be fair or just".
5. The Applicant submitted at [30] of AS22April (as he had in his earlier written submissions), by reliance on the Full Federal Court's decision in Fisher v Edith Cowan University [1997] IRCA 98; (1997) 72 IR 464 (Lee, Marshall, North JJ), that a breach of an award provision such as cl 36 which prevents the use of fixed-term employment contracts, "would be part of the material on which a finding of fact may be made that an employment relationship exists beyond the term fixed by an employment contract made between an employer and an employee bound by the award."[72] The Full Federal Court went on to say:

"In such a case the statutory remedies provided by Div 3 [of Part IVA of the Industrial Relations Act 1988 (Cth) which deal with termination of employment] would apply to a termination of an employment relationship governed by the award, if the termination is effected by reliance by the employer, contrary to the terms of the award, on the expiration of the period for employment specified in the contract as the occurrence that has terminated the employment relationship. In such a circumstance the employee would not be restricted to the remedies provided by the Act for the breach of an award, it being clear in its terms that Div 3 provides a right to apply for a remedy in such a circumstance."[73]

1. Ms Fisher was an academic at Edith Cowan University who had applied for relief from termination of employment in circumstances where she had been employed pursuant to three successive annual contracts, and the employment terminated at the end of the third contract after Ms Fisher was unsuccessful in a merit selection for a three-year appointment to the same role. The Full Court upheld the decision of Madgwick J who had found that the employment terminated at the end of the term contract by reason of the agreement of the parties, made a year earlier, that it should so terminate and that the decision of the employer not to offer a further term of employment did not and could not affect that fact.
2. The Full Court said at 472:

"In the present case it appeared to be accepted that the employment relationship was as set out in the terms of the employment contract, and, therefore, it was open to his Honour to conclude that the termination of employment had been effected by the expiration of the period specified in the contract and not at the initiative of the University.

His Honour noted that the case had to be decided on the particular circumstances put before him and determined that on those facts it could not be concluded that there had been a termination of employment at the initiative of the University.

His Honour was aware that on different facts a contrary conclusion could have been reached. His Honour referred to a fixed-term contract that was "unreal, unconscientious or oppressive as against an employee of any special vulnerability" as an example of termination of employment at the expiration of a fixed term as termination at the employer's initiative, and also acknowledged that such a conclusion may follow in a case in which it was shown that fixed-term contracts were not regarded as appropriate in the relevant field of employment and where there was continuation of the employee's position after termination of the employee's employment. It follows that the particular facts of other cases, possibly including cases of academic appointments made by successive short term contracts of employment, may support a determination that a termination of employment was at the initiative of the employer."

1. It is clear, given the decisions made by Madgwick J and the Full Court that Ms Fisher's termination had been effected by the expiration of the period specified in the contract and not at the initiative of the university, that the remarks made by them as to when the termination of employment at the expiration of a fixed term could nevertheless be a termination at the employer's initiative were in the nature of obiter dicta. Importantly, both stressed that each case will turn on its own facts. Also, importantly for present purposes, the remarks of the Full Court that I have set out at [161] above, included the following further sentence:

"It was not submitted to his Honour that, as between Ms Fisher and the University, the use of an employment contract for a fixed term was controlled or prevented by the provisions of an award."[74]

1. While the decision of Fisher is clearly not binding authority for the proposition that if an employer enters into a fixed term contract in contravention of a provision in an award it is not entitled to rely on the expiration of the period for employment specified in the contract as the occurrence that has terminated the employment relationship, it may be regarded, none the less, as "seriously considered dicta" as described by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 to which I would have serious regard.
2. Fisher was cited with approval by Hatcher VP and Saunders C in the oft-referenced decision of the Khayam v Navitas English Pty Ltd [2017] FWCFB 5162; 273 IR 44 (Colman DP dissenting). The Applicant placed much reliance on this decision in each of his written submissions and in particular what the majority said at [75].
3. Mr Khayam had been employed by Navitas on a series of time-limited contracts. At the end of the term of the last of those contracts, Navitas determined not to offer Mr Khayam a further contract due to concerns it had regarding his performance. Mr Khayam contended, as Ms Fisher had done earlier in respect of the Industrial Relations Act 1988 (Cth), that this constituted a dismissal within the meaning of s 386(1)(a) of the Fair Work Act 2009 (Cth) (FW Act) in that his employment had been "terminated on the employer's initiative". Navitas contended that there had been no dismissal, and that Mr Khyam's employment had terminated simply through the effluxion of time. The Commissioner at first instance agreed with Navitas. On appeal the majority considered it was possible that Mr Khyam had been dismissed within the meaning of s 386(1)(a) of the FW Act and referred the matter back to the primary Commissioner for re-determination.
4. In reaching its view, the majority made a series of statements as to how s 386(1)(a) should be interpreted which it summarised at [75]:

"(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)."

1. The Applicant placed considerable reliance upon what the majority said at [75(5)(f)]. Notably, as with Fisher, the statements made by the majority are obiter.
2. On 12 December 2024 - after the hearing in this matter - the Full Court of the Federal Court in Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 (Snaden, Meagher and Needham JJ) overruled Khayam, in so far as it had been authority for the proposition that where a fixed term contract contained the unqualified right for either party to terminate the contract on notice the contract was not a contract of employment for a specified period, and the exclusion from the definition of "dismissed" provided for in s 386(2)(a) of the FW Act did not apply. That is not a question that arises in this case, (which of course is brought under the IR Act in any event), however the Full Court also dismissed Mr Alouni-Roby's argument that he had been "dismissed" when his employment relationship was brought to end when his employment contract was not renewed, in circumstances where, having had his contract renewed previously, he had a legitimate expectation that his contract would be renewed. In doing so the Full Court made remarks that qualify to some extent the remarks made by majority in Khayam at [75].
3. Section 386 of the FW Act is central to the decision in Alouani-Roby. It 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; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

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

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

...

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

1. The Full Court at [61] noted that s 386 is concerned "with the mechanics of how employment is brought to an end by an employer" and then went on to say:

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

63. What Mr Alouani-Roby expected would occur at the expiry of his contract is irrelevant (excepting, perhaps, to the extent that it might reflect that his employment contract was a sham transaction not to be given effect according to its terms). At least for present purposes, distinctions between employment relationships and employment contracts are artificial: the termination of an employment relationship and the termination of an employment contract are the same thing. Employment relationships can be created, changed and brought to an end; but (leaving aside possible exceptions involving repudiatory breach, as to which see Visscher v Giudice [2009] HCA 34; (2009) 239 CLR 361) only ever upon the execution, variation or termination of an employment contract. That being so, the reference in s 386(1)(a) of the FW Act to "the person's employment with his or her employer [having been] terminated" can only be understood as a reference to the person's contract of employment being brought to an end (or, perhaps in some cases, repudiated)."

1. I will return to these remarks further below.
2. Relevantly for present purposes, the Full Court said at [70], in relation to s 386(3):

"...the statutory intention is, we think, patently clear: fixed-term employment contracts are not available as a concocted vehicle through which an employer might illegitimately avoid subjection to the FW Act's unfair dismissal provisions. On the contrary, there is much to commend the suggestion that the Act will only inoculate fixed-term employment contracts from the application of those provisions in circumstances where their use is appropriate and adapted to particular employment scenarios. So much is consistent with the recent introduction (after Mr Alouani-Roby's employment terminated) of Div 5 of Pt 2-9 of the FW Act, which imposes substantial limitations upon the use of fixed-term employment contracts."

1. Div 5 of Pt 2-9 of the FW Act - Fixed Term Contracts - was introduced on 6 December 2023 by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), a fact noted in AS22 April at [24]. The Division, as the Applicant submitted, appears to overcome the difficulties that confronted the applicants in both National Tertiary Education Industry Union v University of Wollongong and Independent Education Union of Australia v Australian International Academy of Education Inc, as s 333G of the FW Act now provides:

(1) If a person enters into a contract of employment with an employee in contravention of subsection 333E(1):

(a) the term of the contract that provides that the contract will terminate at the end of an identifiable period is taken to have no effect; and

(b) the contravention is taken not to affect the validity of any other term of the contract.

1. Section 333E(1), in summary and at the risk of oversimplification, prevents fixed term contracts, (incorporating renewed and consecutive contracts), of greater than 2 years.
2. To borrow the language used by Branson J in National Tertiary Education Industry Union v University of Wollongong, the introduction of Div 5 of Pt 2-9 into the FW Act discloses a clear intention that a term providing that an employment contract will terminate at the end of an identified period of 2 years or more (cumulatively), is to have no effect and will be unenforceable, while leaving the balance of the contract in place.
3. The IR Act does not contain provisions equivalent to Div 5 of Pt 2-9 or s 386(3) of the FW Act and there is nothing in the LG Award (or the LG Act) which plainly discloses the effect of a breach of cl 36. Nevertheless, what these Federal provisions and the remarks made about them by the Full Court in Alouani-Roby extracted at [174] above indicate, consistent with the view, taken in Fisher and in Khayam, is that in determining whether there has been a "dismissal" so as to engage the protective unfair dismissal jurisdiction there are good policy reasons to avoid an approach which would allow an employer to avoid the jurisdiction by relying on the expiration of the period for employment specified in the contract as the occurrence that has terminated the employment relationship, in circumstances where the applicable industrial instrument does not permit such a contract.
4. Ultimately the decision that has provided me with the most guidance on the question, albeit that it is distinguishable from the present matter, is the decision, relied upon by the Applicant, of Sloan C in Alexandra Boyce v Industrial Relations Secretary on behalf of the Australian Museum Trust [2019] NSWIRComm 1013; 284 IR 221.
5. Ms Boyce had been employed by the Museum on a series of six, fixed term contracts. Her period of employment with the Museum was unbroken from 12 November 2012 until its cessation in 2018. The respondent relied on the express terms of those contracts, and in particular the sixth and last contract, to submit that Ms Boyce was employed on temporary contract of employment for a specified period of time that came to an end as agreed between Ms Boyce and the Respondent and therefore there was no dismissal and the Commission therefore did not have jurisdiction to hear the Applicant's claim for relief pursuant to Part 6 of Chapter 2 of the IR Act.
6. Ms Boyce's employment had initially been subject to the Public Sector Employment and Management Act 2002. After 2014, her employment was subject to the terms of the Government Sector Employment Act 2013 (GSE Act). Sections 42 and 43 of the GSE Act provided:

42 Application of Division

(1) This Division applies to Public Service employees other than Secretaries of Departments, heads of other Public Service agencies and other Public Service senior executives.

(2) The employees to whom this Division applies are referred to in this Division as Public Service non-executive employees.

43 Kinds of employment

(1) Employment as a Public Service non-executive employee may be any one of the following kinds of employment:

(a) ongoing employment,

(b) temporary employment,

(c) casual employment.

(2) Ongoing employment is employment that continues until the employee resigns or his or her employment is terminated.

(3) Temporary employment is employment for a temporary purpose.

(4) Casual employment is employment to carry out irregular, intermittent, short-term, urgent or other work as and when required.

...

1. At [53] - [54] of his decision Commissioner Sloan said:

"53. Concepts derived from the common law of employment cannot derogate from, or distract attention away from, the requirements of the relevant statutory scheme: Corrective Services NSW v Danwer [2013] NSWIRComm 61 at [27]- [29]; Grant Johnson and Department of Industry (On Behalf of the Secretary of Department of Industry) [2017] NSWIRComm1067 at [12] and [13].

54. In Director-General of Education and Ors v Suttling [1987] HCA 3; (1987) 162 CLR 427 Brennan J (with whom Mason ACJ and Deane J agreed) stated (at 437-438):

"Members of the Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute: see, for example, Gould v Stuart; Carey v The Commonwealth; Lucy v The Commonwealth. However, the contractual nature of the relationship has not been universally accepted: see, for example, Monckton v The Commonwealth; Lucy v. The Commonwealth; Geddes v. Magrath; Morgan v. Geddes; The Commonwealth v Welsh; and cf. Ryder v Foley. And sometimes an espousal of one view rather than the other has been avoided: see, for example, Reilly v The King; Kodeeswaran v Attorney-General of Ceylon. If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service: McVicar v Commissioner for Railways (NSW)." (Footnotes omitted)

55. It follows from these authorities that the appellation the parties may have attributed to the relationship will not be determinative. The true nature of the employment must be discerned from all of the facts in the context of the statutory scheme that applied to the employment."

1. Commissioner Sloan found (at [88]), on the evidence, that Ms Boyce had not been employed, other than perhaps in respect of her fifth contract, to meet a purpose that was temporary, "in the sense that it was not ongoing or was "for a time only"".[75] Consequently, he concluded she could not have been in temporary employment within the meaning of ss 43(1) and 43(3) of the GSE Act. He went on to explain at [89] - [91]:

"89. Whatever labels the parties may have put on their relationship, and whatever understanding they may have had regarding the nature of that relationship, they remained bound by and subject to the terms of the GSE Act. The GSE Act allows for employment in one of three categories. If Ms Boyce was not in casual employment or temporary employment, she must have been employed in ongoing employment.

90. This is not a case of Ms Boyce being "deemed" as being in ongoing employment, as contended by her. Rather, in circumstances where there is no dispute that an employment relationship exists, that relationship must fall within one of the types of employment in s 43(1) of the GSE Act. Only then, to adopt the language in Suttling, would "the contract...be consistent with any statutory provision which affects the relationship".

91. Ms Boyce is properly to be regarded as having been in ongoing employment with the Museum. Within the terms of s 43(2) of the GSE Act she could have expected her employment to continue until she resigned or her employment was terminated. On the basis of the language in that section, and having regard to Parliament having affixed the adjective "ongoing" to the employment, it was and is not open to the Museum to plead that Ms Boyce was engaged on a fixed term contract that expired through the effluxion of time."

1. I observe that unlike in the two University decisions discussed above, the situation in Boyce did not involve the 'transmogrifying" of the employment contract into a different type of contract. Rather, Commissioner Sloan found that by reason of the provisions in the GSE Act, Ms Boyce was, as a matter of fact and law, in ongoing employment with the Museum.
2. The Respondent pointed out at RS6May [19] that the provisions of the GSE Act have no application or relevance to this matter and "there have been no equivalent statutory or award provisions identified that can be argued as affecting a determination of the nature of the Applicant's employment as being ongoing or temporary." I agree with that submission.
3. In the present matter the LG Act is the source of the authority for the establishment of local councils and the source of their authority to employ staff. There is nothing in that Act (at least nothing to which my attention has been drawn) that would indicate that the Applicant's 12-month maximum term contract was at variance with that Act.
4. However, by reason of s 12 of the IR Act, awards made by the Commission are binding on all employees and employers to which it relates. In other words, the terms of an award have statutory force. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Brennan CJ, Dawson and Toohey JJ observed at 425 that, "an award is not a statute", but is enforceable under statute. In the same case, McHugh and Gummow JJ held at 455, "Of itself, the Award could not answer the description of a law of the Commonwealth" and, "the Award is made part of the law, not by its own force but by force of its adoption by the statute". The Full Federal Court discussed at length the "legislative character" of industrial instruments in James Cook University v Ridd, [2020] FCAFC 123; (2020) 278 FCR 566 at [222] - [227].
5. Plainly cl 36 of the LG Award has the force of a law and no party contends otherwise. The question remains however, what is the effect of a breach of the clause?
6. Given the statutory force given to the LG Award and mindful of the guidance provided by the majority in Director-General of Education and Ors v Suttling, the terms of contracts of employment entered into by local councils which are subject to the LG Award, must be consistent with that award. Clause 36(i) imposes a prohibition on term contracts unless at least one of the nine situations prescribed in the clause exist. Following the obiter remarks in Fisher and Khayam, I consider that if a council enters into a term contract in contravention of cl 36(i) it cannot say that the agreed effluxion of time has brought the contract to an end. The term will be unenforceable, on the basis of illegality, for the purposes of Part 6 of Ch 2 of the IR Act. A reliance on a term stipulating the end date of the contract by the employer in those circumstances will therefore constitute a dismissal within the meaning of s 83 of the IR Act. Of course, whether the dismissal was unfair will depend on all the circumstances of the dismissal, including the fact that the employee may have entered into the contract willingly and perhaps even with a preference for a term contract. It is certainly not axiomatic that such dismissal would be unfair simply by reason of the breach of cl 36, although no doubt the breach may be a relevant circumstance in assessing whether the termination was unfair.
7. Such an interpretation of cl 36(i) gives effect to the policy intent of the provision discussed at [114] and applies a beneficial approach in favour employees. It would be contrary to the purpose or objective of cl 36 and public policy more generally, to allow an employer to act contrary to law, and thereby remove a benefit afforded to employees by legislation, namely the protection against unfair dismissal.
8. Such interpretation is also consistent with the authorities on what traditionally constitutes a "dismissal", in that the termination will have occurred "by the employer without the employee's consent" or at the employer's initiative: the dismissal will have occurred by reason of the employer breaching cl 36(i) and then relying on a term not permitted by that clause to bring the employment to an end; the employee, as evidenced by the bringing of unfair dismissal proceedings, did not consent to the termination of their employment in those circumstances.
9. However, following the decisions of the Federal Court in National Tertiary Education Industry Union v University of Wollongong and Independent Education Union of Australia v Australian International Academy of Education Inc and in the absence of any statutory or award provision such as that which applied in Boyce, a breach of cl 36(i) cannot transmogrify the employment contract into one providing for permanent and ongoing employment.
10. The fact that an employment relationship entered into in breach of cl 36(i) cannot be regarded and enforced as ongoing, permanent employment, yet the employee may seek redress for unfair dismissal if the employer relies on the effluxion of time as specified in the contract to bring the contract to an end may seem contradictory, but they are different things.
11. A council in breach of cl 36(i) has a choice. It may rely on the effluxion of time to bring the contract to an end, as permitted by the express terms of the contact, and if need be, defend any claim that the termination (dismissal) was unfair in the circumstances. It is not difficult to conceive of factual scenarios whereby a council may prevail in such a context. Alternatively, it may decide not to bring the employment relationship to an end, although of course the council's ability to take this course may, depending on the circumstances, be curtailed by its obligations under ss 348 - 351 of the LG Act.
12. A breach of cl 36(ii) does not however, disentitle the Respondent from reliance upon the agreed effluxion of time as stipulated in the contract to bring the employment relationship to an end for the purposes of Part 6 of Ch 2 of the IR Act. Clause 36(ii), on its terms, unlike cl 36(i), does not prevent or curtail the ability of a council to enter into term contracts. A breach of cl 36(ii) may be addressed by one of the mechanisms I discussed at [94], but it otherwise has no effect on the validity or enforceability of terms in an employment contract.

The allegation that permanent contracts are "the norm", while term contracts are the exception

1. The Applicant submitted at AS22April [31], by reference to the remarks of Branson J in National Tertiary Education Union v University of Wollongong, that the Commission must find that the nature of the Applicant's employment was permanent because permanent appointments in local government are "the norm" and term contracts are only allowed in limited circumstances as set out in cl 36 of the LG Award.
2. My reasons at paragraphs [117], [146], [151] and [190] address this submission. The Applicant's employment was not permanent in nature or otherwise.

The allegation the Applicant's role continued in the new finance department restructure

1. The Applicant submitted at AS22April [32] and [33] that his role in fact continued in the new structure of the finance department, based on the new evidence he had obtained from Statecover Insurance.
2. I have already addressed at [92] - [93] and [126] - [131] why this evidence, if admitted, would not change my finding that the Applicant's employment was not permanent and ongoing, even if the role he performed whilst employed remained unchanged after the restructure.

The allegation the Applicant's role could not be considered as casual and therefore must be 'ongoing'

1. The Applicant made the following submission at AS22April [34]:

"It is common knowledge, there are only two kinds of employments (sic), ongoing or temporary. Temporary appointments have two branches, term contracts and casual appointments. The evidence is clear that [the] Applicant's appointment was not on day-to-day casual need basis but for 35 hours per week."

1. As set out at [101] above the Applicant had submitted at AS22April [28iv] by reference to Boyce at [89], that as his role could not be considered to be casual the only category where his appointment could fit is "ongoing". Leaving aside that that logically still leaves the possibility of temporary employment, it is clear from my discussion of Boyce at [180] - [183] above, that Commissioner Sloan concluded that Ms Boyce employment was ongoing only because of the express provisions of the GSE Act. Section 43 of the GSE Act only permitted three types of employment and as Ms Boyce's employment did not fall into two of them, her employment must have fallen into the third, namely, ongoing employment. As I said at [185] there is no provision equivalent to s 43 of the GSE Act in the LG Act or the LG Award. For the reasons already explained at length, the Applicant's employment was not ongoing.

The allegation that by virtue of cl 36 and reg 6(1)(a(), the Applicant had an expectation that his employment would continue until he resigned or was terminated

1. The Applicant submitted at AS22April [28v] that:

Because of the (sic) clause 36 of the Award applicable to his employment, the Applicant had expected his employment to continue until he resigned, or his employment was terminated by the Respondent. [The] Respondent was not allowed to rely on conclusion of his employment via effluxion of time. (Commissioner Sloan at [91] of Boyce). Similar expectation of employment to continue until the Applicant had resigned or was dismissed also arises due to the application of regulation 6(1)(a) [of the IR Regulation

1. There are two difficulties with this submission. First, any expectations the Applicant had as to the effect of cl 36 and reg 6(1)(a) were misconceived as a matter of fact and law.
2. Second, the Applicant led no evidence whatsoever that prior to 30 July 2024 he had considered either cl 36 of the LG Award or reg 6 of the IR Regulation and formed the said expectation. Indeed, the sequence of events strongly indicates that these provisions were only considered by the Applicant after 30 July 2024, with reg 6 only being considered after the hearing.
3. In the premises any expectation the Applicant may have had is irrelevant.
4. For completeness, and consistent with the view taken by the Full Court in Alouani-Roby at [63], which I set out at [172] above, what the Applicant expected would occur at the expiry of his contract is irrelevant, including any expectation that he would be made Business Partner/ Process Improvement following the Respondent going through, what he regarded as the motions of a legitimate recruitment exercise to comply with its obligations under the LG Act. If the Applicant had established that he had expressly been told that this is what would occur, and that he relied on those representations to his detriment, such expectation might be relevant, however the evidence falls far short of establishing that he was told anything of that kind.

Was the Fixed Term Contract Vitiated by Misrepresentation or Misleading Conduct?

1. As noted at [95] above and consistent with the remarks made in Fisher and Khayam and the usual principles of contract law_,_ if the Applicant could establish that he was induced to enter into the fixed term employment contract by misrepresentation or misleading conduct, or that he had entered into the contract as a result of a serious mistake about its contents or subject matter, this could have the effect of vitiating the apparent agreement of the Applicant as to the term of his employment, such that it could not be said that the employment came to an end by agreement and the effluxion of time.
2. As discussed at length at [15], [31] - [39] above, even on the Applicant's versions of what Ms Lazzaro told him, it is clear that that she did not say that his employment would certainly continue nor did she say anything that would reasonably indicate that this would be the case. In any event, there is no evidence whatsoever that the Applicant relied on any representation made by Ms Lazzaro or by anyone else, when he decided to enter into the contract. Nor is there any evidence that the Applicant mistook the contents and subject matter of the contract.
3. In the premises there is no basis upon which it could be said that the agreement that the employment contract would end on 30 July 2024 was not an agreement freely made.
4. As I have already stated, I have no doubt that the Applicant hoped and perhaps expected in light of the things I have found that Ms Lazzaro said, that he would be successful in securing "the permanent role" if he performed well in the temporary role. However, as the Full Court said in Alouani-Roby, there can be no expectation of an ongoing employment relationship without an ongoing employment contract and the Applicant well understood and had freely agreed, that his employment contract would come to an end on 30 July 2024.

Was the employment relationship brought to end otherwise than through the effluxion of time?

1. Paragraph 3 of the Applicant's Application for Relief for Unfair Dismissal read as follows:

"The Burwood Council made the define (sic) decision on 28 June 2024 to implement the new structure and those changes were made effective 8 July 2024. Even is (sic) the Commission finds that the Council correctly identified Clause 36ig while entering into the employment contract with the Applicant, his term of employment could not have continued beyond 8 July 2024 as per the clause identified by the Council.

Clause 36ig [provides ....]

However the Applicant continued to work at Burwood Council until 30 July 2024. This means that the employment of the Applicant with Burwood Council after 8 July 2024 was not governed by the maximum term contract signed by the parties as this contract could not override the Award provisions and as a consequence, the end date mentioned in it can not said (sic) to have any legal validity."

1. The argument made at AS [40 was slightly different:

"The Respondent has claimed that the contract of employment came to an end by reaching its end date of 30 July 2024 however the Applicant's claim is that the employment relationship was already terminated at the initiative of the employer when a final decision was made to make the Applicant's position redundant on 28 June 2024."

1. I do not consider either argument has merit.
2. The evidence establishes that a decision to introduce major changes in production, organisation structure and technology in the financial services department had been taken in or around June/July 2023. The decision to implement the new organisation structure and all that that entailed was made in or around May 2024, subject to consultation in accordance with cl 42 of the LG Award.
3. The Applicant was told, on 22 May 2024, that if a final decision regarding the proposed organisation structure changes had not been made before his contract expired, his contract would be extended.
4. The Applicant was told on or about 28 June 2024, that the proposed restructure would be "implemented" with effect from 8 July 2024, however the evidence also established that the new role of Business Partner/Process Improvement was not filled until after 30 July 2024. In that sense the changes had not been "implemented". While it may well have been the case that the new organisation structure had been approved, on or around 28 June 2024, in the manner required by s 332 of the LG Act, (thereby avoiding the need to extend the Applicant's contract), and was to commence operation on 8 July 2024, until the positions in the organisation structure were filled I do not consider that the changes referred to in cl 36(i)(g) had been implemented.
5. In any event, I do not consider that the fact that cl 36(ii)(g) allows a term contact for the period up to when the date proposed changes are "implemented" means that the contract must terminate on the exact date the changes are approved and adopted or even on the exact day the changes commence in operation. Such an approach would involve an overly strict or literal approach to construction of cl 36(i)(g) and would result in considerable inconvenience to employer and employee alike.
6. The evidence clearly shows that the Applicant's employment relationship and employment contract with the Respondent continued after 28 June 2024 and after 8 July 2024. His services were still required and he was not made redundant ahead of the expiry of the term of his contract.
7. On or about 26 July 2024 the Applicant received a phone call from Ms Seaman during which she confirmed that his employment contract would not be extended and that his last day would be 30 July 2024. As the Applicant stated in his application he continued to work at the Respondent until 30 July 2024.
8. The Applicant's employment contact and employment relationship with the Respondent came to an end on 30 July 2024 due to the agreed effluxion of time.

1. The Applicant's employment came to an end due to the agreed effluxion of time and the Applicant was therefore not dismissed by the Respondent within the meaning of s 83. In those circumstances the Commission lacks the jurisdiction to hear and determine the unfair dismissal claim and it must be dismissed.

1. Thankfully, the Applicant's claim for relief from victimisation can be dealt with more succinctly.

1. The following provisions of the IR Act are relevant:

210 Freedom from victimisation

(1) An employer or industrial organisation must not victimise an employee or prospective employee because the person -

(a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or

(b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or

(c) refuses to engage in industrial action, or

(d) exercises functions conferred under this Act, or

(e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or

(f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or

(g) participates, or proposes to participate, in proceedings relating to an industrial matter, or

(h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or

(i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or

(ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety National Law (NSW), or

(ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator (within the meaning of the Transport Administration Act 1988) or a person employed in the Transport Service, or

(ic) informs any person or body of, or gives evidence in relation to, a breach or alleged breach of the Dangerous Goods (Road and Rail Transport) Act 2008 or the regulations under that Act (or a provision of a law of another State or Territory that corresponds to that Act or those regulations), or

(j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, or

(k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995.

(2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.

213 Enforcement

(1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part.

(2) The Commission may, in particular, for that purpose do any one or more of the following -

(a) order the reinstatement or re-employment of an employee,

(b) order the employer to promote or otherwise advance an employee in his or her employment,

(c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone,

(d) order the employer to employ a prospective employee,

(e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat,

(f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity,

(g) make consequential orders (including orders concerning continuity of service).

(3) An application for an order under this section must be made within 21 days after the contravention concerned.

(4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to -

(a) the reason for, and the length of, the delay in making the application, and

(b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and

(c) the conduct in relation to which the order is sought.

1. The IR Act does not define the term 'victimise' as it appears in s 210, however it has been interpretated to mean conduct which causes an employee to suffer some injury, hardship or loss or to otherwise treat the employee harshly, unfairly or to his or her disadvantage in or in relation to his/her employment: Public Service Association of New South Wales v Teterycz (1998) 82 IR 172, [1998] NSWIRComm 415: Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 at [60]; Jaggi v Health Secretary in respect of the Western Sydney Local Health District [2022] NSWIRComm 1032 at [60]; or, by inference from the words used in s 210(2), where an employee suffers any detriment: Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036 at [16].
2. Section 210(2) sets up a rebuttable presumption that if an employee has suffered a detriment, it will have been suffered due to one of the prohibited reasons set out in s 210(1). However, it is incumbent upon the employee to first identify and establish the existence of a proscribed factor in s 210(1) before the onus will shift to the employer to prove that the proscribed factor was not a substantial and operative cause of the detrimental action: Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 at [43], cited with approval in Kinninmont at [62], [84]; Basan v Commissioner of Police (No 3) [2023] NSWIRComm 1028 at [53].
3. Thus, before any onus shifts to the employer, the applicant employee (or industrial organisation on their behalf) must first:

(1) establish that they have suffered a detriment within the meaning of s 210(2); and

(2) establish the existence of a protected matter, as listed in s 210(1); and

(3) allege that the detriment was suffered because of the protected matter referred to in s 210(1): Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police [2024] NSWIRComm 1001 at [31].

The Applicant's Claim and the Parties' Submissions

1. The Applicant's claim is set out concisely at [24] of the application as follows:

"The Applicant therefore alleges that because he participated in the proceedings of an industrial nature against the Parramatta Council, Burwood Council considered him a trouble maker and a potential 'risk' in the future and decided (detriments listed below);

a. to make his position redundant;

b. to not offer him any measures to mitigate the adverse effects of the restructure on the loss of his employment by advertising the 3 position (sic) internally, offering him training-retraining, redeployment to those positions;

c. to deprive him of the 5 weeks notice pay and 5 weeks severance pay; and

d. to treat him differently to how other staff members had been treated in the past in similar circumstances."

"There is no dispute that the Applicant's employment finished on 30 July 2024 which is an undeniable detriment by any standard of evidence. The Applicant further relies on this submissions in the Unfair Dismissal Matter to allege that the termination of this employment by Burwood Council was unfair within the meaning of section 84 of the Act."

1. The Respondent submitted at RS [13] that the prohibition in s 210 "contemplates an employer engaging in a positive act or decision which causes a detriment to an applicant". It says this follows the ordinary meaning of the words "must not victimise" in s 210(1) and the contemplation of "detrimental action" in s 210(2).
2. The Respondent submitted at RS [13] that the requirement for victimisation to occur as a result of a positive act or decision of an employer is also supported by:

(1) the Full Bench's definition of "victimise" in Teterycz ;

(2) Commissioner Newall's description of the statutory scheme in Bruce at [16] as setting out "a series of bases on which an employer is prohibited from acting toward an employee, and then by providing that where a 'detriment' is suffered by an employee by reason of 'detrimental action' by the employer, there is a rebuttable presumption that the detriment was for one of the prohibited reasons set out in s 210 ..."; and

(3) the Full Bench in Twentieth Superpace considering, at [43], the following to be a precondition for the enlivening of the presumption that a detrimental action was undertaken for a prohibited reason: "demonstrated detriment as a result of an action by an employer."

1. The Respondent submitted at RS [15] that "it is not possible for s 210 to be interpreted as applying to events which occur without any positive act or decision of the employer and which, therefore, cannot be affected (or infected) by any reasoning of the employer."
2. The Respondent submitted at RS [27]:

"The Applicant's employment with the Respondent was not brought to an end by the Respondent but came to an end pursuant to the agreed terms of the maximum term contract pursued by the Applicant from early July 2023 and eventually signed by the Applicant on 25 July 2023."

1. In ARS at [32] the Applicant referred to the decision of Judge Cameron in Farac v Pendal Group Limited [2021] FedCFamC2G 25; 310 IR 364 where it was held that inaction by an employer can constitute adverse action under the FW Act.
2. At ARS [33] the Respondent submitted:

"...a n inaction in some situations may not be adverse or detrimental action. E.g., if an employee was not promoted. In such situations, the courts generally apply 'before' and 'after' test. Not promoting an employee may not be adverse action because the employee is not worse off afterwards. However, if in such situations, there was a requirement, under the Award or contract of employment, for the employer to promote the employee, e.g., a promotion is [a] must after a satisfactory performance assessment or reaching the target, and if the employer chose not to fulfil their obligations under the award or contract and decline the promotion, then it may be considered as adverse action in a particular set of circumstances."

1. Lastly, the Respondent submitted during opening oral submissions that the protected attribute prescribed in s 210(1)(g), being the attribute upon which the Applicant relies, namely participation in proceedings relating to an industrial matter, must in some way relate to the employer. In other words that the industrial matter must be one in which the employer is involved.[76]

1. Victimisation must arise from the action of the employer which causes a detriment to an employee. That the employer must have engaged in some kind action, is recognised by s 210(2) which refers to an employee suffering "detriment as a result of action by the employer". Such action may, as the Applicant submitted, take the form of a decision to engage in inaction, such as failing to promote or appoint someone.
2. In light of my findings above in respect of the Applicant's unfair dismissal claim and in particular, that the contract of employment came to an end due to the agreed effuxion of time, the claim that the Applicant suffered the following detriments by reason of action taken by the Respondent cannot be sustained:

(1) the termination of his employment;

(2) depriving the Applicant of 5 weeks notice pay and 5 weeks severance pay, as, in circumstances where his maximum term contract came to end due the effluxion of time, the Applicant had no statutory or contractual entitlement to these sums;

(3) not offering the Applicant training-retaining or redeployment to the newly created positions, as the Applicant had no statutory or contractual entitlement to these things.

1. Those matters cannot be regarded as detriments in the circumstances and in any event, they did not arise as a result of action by the employer, but rather were the result of the application of the terms of a contract entered into well before the Respondent had any knowledge of the alleged protected attribute.
2. Further, as a matter of fact, the Applicant was not made redundant, as alleged in the application.
3. The Applicant did not explain precisely how the Respondent's decision to advertise the vacant positions arising from the new restructure internally, (noting the evidence only concerned one position, that of Business Partner/Process Improvement), constituted a detriment within the meaning of s 210. I infer it is because the Applicant considered he would have had more of a chance at securing one of the roles if the pool of candidates was smaller. However, this was not established on the evidence. In any event it is difficult to see how a decision to advertise vacant positions externally, in compliance with s 348 of the LG Act, could constitute a detriment to the Applicant for the purposes of s 210. A finding that compliance by an employer with its statutory obligations constituted a detriment to an employee would be perverse. In any event it was not established on the evidence how the Applicant was worse off by the decision of the Respondent to advertise the vacant position externally.
4. Lastly, while conceptually being treated "differently to how other staff members had been treated in the past in similar circumstances" might constitute a detriment, it of course depends on what that treatment was. Being given a substantial bonus when other staff in the past had not been given a bonus could hardly be seen as detriment.
5. From what I understand of the Applicant's submissions, he asserts that in advertising the Business Partner/Process Improvement role externally, the Respondent treated the Applicant differently to Ms Yu who he alleged had secured a permanent position six years earlier, which had only be advertised internally, after working for the Respondent on a temporary basis. As discussed at [61] - [66] this fact was not made out on the evidence.
6. The Applicant has failed to establish that he has suffered a detriment within the meaning of s 210(2) of the IR Act. I do not therefore need to consider whether the Applicant has established the existence of the protected matter listed in s 210(1)(g), or moreover, the Respondent's argument that the putative "industrial matter" must be one which concerned the Respondent. As the Applicant has failed to establish that he has suffered a detriment within the meaning of s 210(2), the presumption provided for by s 210(2) does not arise.
7. The Applicant has failed to establish victimisation and is not entitled to any relief pursuant to s 213 of the IR Act.

(1) The Notice of Motion filed by the Applicant on 16 May 2025 is dismissed.

(2) The Unfair Dismissal Application is dismissed for want of jurisdiction.

(3) The Application for Relief from Victimisation is dismissed.

[1] Applicant's Submissions dated 25 September 2024 at [27] - [28].

[2] Application for Relief from Victimisation, [24(a)].

[3] Applicant's Submissions dated 25 September 2024, [65].

[4] Application for Relief from Victimisation, [24(b)].

[12] Email from the Applicant to the Commission dated 2 December 2024.

[14] Tcpt, 26 November 2024, p 30(19), (45).

[16] The date of commencement of the commencement of amendments made to the LG Act by the State Law (Miscellaneous Provisions) Act 2018.

[17] Sections 348 and 351 of Local Government Act 1993 were amended on 1 September 2024 by the Local Government Amendment (Employment Arrangements) Act 2024 to change the words "senior staff member" and "senior staff position" to "general manager" and "general manager position" respectively.

[18] Being the date of the commencement of the Local Government Amendment (Governance and Planning) Act 2016.

[19] By the Local Government Amendment (Employment Arrangements) Act 2024.

[22] Tcpt, 26 November 2024, p 61(44)-62(4).

[24] Tcpt, 26 November 2024, pp 25(24)-(26), 26(1)-(4).

[25] Tcpt, 26 November 2024, p 29(30)-(31).

[26] Tcpt, 26 November 2024, p 31(16) - (18).

[29] Tcpt, 26 November 2024, p 66(28)-(31).

[30] Tcpt, 26 November 2024, p 67(9)-(14).

[33] Tcpt, 26 November 2024, p 48(25)-(34).

[36] The Finance Business Partner was only required to oversee budgeting and assist with the budget process.

[37] Although the Applicant's evidence suggested he may have done some tasks that were associated with this accountability, in practice: Ex A3 [11].

[40] Tcpt, 26 November 2024, p 21(38) - 22(7).

[41] Tcpt, 26 November 2024, pp 25(46) - 26(15).

[43] Tcpt, 26 November 2024, p 29(31)-(50).

[50] Tcpt, 26 November 2024, p 58(10); p 62(9)-(10).

[52] Tcpt, 26 November 2024, p 61(17)-(28).

[53] Tcpt, 26 November 2024, pp 61(39) - (4).

[54] Tcpt, 26 November 2024, pp 24(49) - 25(1),

[55] Tcpt, 26 November 2024, p 79(33)-(39).

[60] Tcpt, 26 November 2024, p 53(33)-(42).

[61] Tcpt, 26 November 2024, p 72 (1)-(10).

[62] Tcpt, 26 November 2024, p 71(18)-(20).

[64] Macquarie Dictionary, online ed, accessed 22 May 2025.

[65] Tcpt, 26 November 2024, p 65(2)-(32).

[66] Tcpt, 26 November 2024, p 83(24)-(25).

[71] Mark Iving, The Contract of Employment, (2nd ed, 2019, Lexis Nexis) at 5.26.

[72] Fisher v Edith Cowan University [1997] IRCA 98; (1997) 72 IR 464 at 470.

[75] Alexandra Boyce v Industrial Relations Secretary on behalf of the Australian Museum Trust [2019] NSWIRComm 1013; 284 IR 221 at [64].

[76] Tcpt, 26 November 2024, p 9(31) - (41).