The Respondent (BlaQ Aboriginal Corporation) was represented (with permission) by Ms Sara Mansour, Lawyer, assisted by Ms Mariam Noorzai, Lawyer, Employsure Law.

[1] Form F8, 4 April 2024, at Items 3.2 to 3.4.

[2] The employment contract in this case was made in March 2023 (i.e. before the commencement of the legislative changes under the Fair Work Act 2009 (FW Act), that apply to fixed term contracts entered into on or after 6 December 2023, per Division 5 of Part 2-9 of the FW Act, ss. 333E-333L).

[3] I accept that the reference to 19 May 2022 was a typographical error, and should instead read 19 May 2023: Transcript, PN344-PN345.

[5] Transcript, PN112-PN118, PN143, and PN210-PN212.

[12] Ibid, PN234-PN237, PN244, PN265-PN267, PN302.

[14] See the decision of the Full Federal Court in Coles Supply Chain v Milford [2020] FCAFC 152, at [74]-[75], and Lipa Pharmaceuticals Ltd v Mariam Jarouche [2023] FWCFB 101, at [23].

[15] In relation to the application of s.386 of the FW Act to general protections involving dismissal claims, see Coles Supply Chain v Milford [2020] FCAFC 152; (2020) 300 IR 146, and Fair Work Ombudsman v Austrend International [2018] FCA 171; (2018) 273 IR 439. See also the discussion in Morris v Allied Express Transport [2016] FCCA 1589, at [116] and [117], and Searle v Moly Mines Limited [2008] AIRCFB 1088; (2008) 174 IR 21, at [17].

[16] Mohazab v Dick Smith Electronics (2005) 62 IR 200, at 205 to 206. See also: O'Meara v Stanley Works Pty Ltd [2006] AIRC 496, at [19] to [23]; Mahony v White [2016] FCAFC 160, at [23]; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162, at [75]; Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154, at 160; Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162; (2017) 273 IR 441.

[17] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162; (2017) 273 IR 441.

[18] [2022] FWCFB 55; (2022) 316 IR 1.

[20] Department of Justice v Lunn (2006) 158 IR 410.

[21] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 265; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456.

[23] [2017] FWCFB 5162; (2017) 273 IR 441, at [25] and [77].

[24] Ibid, at [90], and [93]-[96].

[26] Alouani-Roby v National Rugby League Limited [2021] FWC 6282; (2022) 318 IR 389.

[27] [2021] HCA 23; (2021) 271 CLR 456.

[29] Alouani-Roby v National Rugby League Limited [2022] FWCFB 171; (2022) 318 IR 389.

[31] Alouani-Roby v National Rugby League Limited [2024] FCA 12; (2024) 328 IR 226.

[33] Ibid, at [97], see also at [101].

[35] See WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456, at 479-80, [65].

[36] Marsh v Macquarie University (2005) 147 IR 401, at [17].

[37] Gamage v Darwin International Hotels Pty Ltd [2024] FWC 1036, at [44] (first sentence); Garriock v Australian Taekwondo Ltd [2024] FWC 350. Note also, decision of O'Riordan C in Construction, Forestry and Maritime Employees Union v Svitzer Australia Pty Ltd [2024] FWC 655, at [179]-[180] and [183]; and decision of Yilmaz C in Erwin Wibowo v Equifax Australasia Group Services Pty Limited [2024] FWC 1591, at [19]-[31], where the Commissioner accepts the reasoning of Raper J in respect of s.386(2)(a) (at [19]), but nonetheless goes on to determine the matter by reference to s.386(1)(a) of the FW Act and the majority decision in Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162; (2017) 273 IR 441, at [75].

[38] [2024] FWC 350.

[39] The ultimate finding that the Applicant was "dismissed" ( [2024] FWC 350, at [56]), does not concern the "2020 Contract", but the "2023 Contract", which Wilson C found was binding and was terminated at the initiative of the Respondent within its specified term. The 'outcome' of the case in Garriock v Australian Taekwondo Ltd is thus not to the point.

[40] [2022] FCAFC 165.

[42] [2021] HCA 23; (2021) 271 CLR 456

[43] [2022] HCA 1; (2022) 275 CLR 265.

[44] [2022] HCA 2.

[45] [2022] HCA 1; (2022) 275 CLR 265, at [59]-[60], per Kiefel CJ, and Keane and Edelman JJ.

[46] Ibid, at [124], per Gageler and Gleeson JJ, citing Connelly v Wells (1994) 55 IR 73, per Gleeson CJ, at 74 (who in turn cited Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597, at 601).

[48] See WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456, at 479-80, [65]. The reference to contrary to "statute" would include such terms being contrary to a relevant industrial instrument made under statute.

[49] James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583, at 603. Cited by Gordon J in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 265, at [176] (footnote [291]). See also Smith v Hughes (1871) LR 6 QB 597, at 607.

[50] Alouani-Roby v National Rugby League Limited [2024] FCA 12; (2024) 328 IR 226, at [97] and [101]. Compare Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162; (2017) 273 IR 441, at [84]-[96].

[51] WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456, at [117].

[52] [1948] HCA 20; (1948) 76 CLR 646.

[53] Ibid, at 649. Endorsed in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, at [38]-[47].

[54] Applicant's Supplementary Submissions, 4 July 2024, at [10]. Respondent's Supplementary Submissions, 5 July 2024, at [3]-[4].

[55] Ibid, at [14], and [34]-[35].

[56] Palser v Grinling [1948] AC 291.

[57] "Knowledge" and "Belief" are not synonymous: Anderson v Lynch (1982) 17 NTR 21.

[58] Competition law: Dowling v Dalgety Australia Ltd [1992] FCA 35; (1992) 34 FCR 109; 106 ALR 75; Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd [1989] HCA 6; (1989) 167 CLR 177.

[59] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 4092 (permission to appeal decision), at [35]-[57] (permission to appeal denied based upon the correctness of the factual findings of the first instance decision in [2017] FWC 1524); Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162; (2017) 273 IR 441, at [143]; Fair Work Bill 2009 Explanatory Memorandum, at [1536].

[60] WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456, at 479-80 [65].

[61] Social, Community, Home Care and Disability Services Industry Award 2010, Level 4, Pay Point 1, Full Time.

[62] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162; (2017) 273 IR 441, at [72].

[63] Including as to the Second Contract's retrospective effect in the two weeks prior to execution. The Applicant does not assert that terms and conditions beneficial to her under the Second Contract do not apply from 15 March 2023.

[64] Inntrepreneur Pub Co. vs East Crown Ltd [2000] 2 Lloyds Rep 611; Hope v RCA Photophone of Australia Pty Ltd [1937] HCA 90; 59 CLR 348.

[65] Department of Justice v Lunn (2006) 158 IR 410, at 416-418, [13]-[17].

[66] See WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456, at 479-80, [65].

[67] Social, Community, Home Care and Disability Services Industry Award 2010.

[68] See, for example, Department of Justice v Lunn (2006) 158 IR 410, at [33]-[36].

[69] [2022] FWC 1499, at [58]-[60].

[70] [2022] FWCFB 146, at [68], [70] and [73], albeit the reasoning (at [48], [52], [54]-[55]) is based upon a determination under s.386(1)(a) of the FW Act, and the application of the majority decision in Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162; (2017) 273 IR 441.

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