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[2026] FWC 335
General information, not legal advice.
Fair Work Commission
2026-02-05
Original judgment source is linked above.
s.739 - Application to deal with a dispute
The Florey Institute Of Neuroscience And Mental Health Trading AS The Florey
The Florey Institute Of Neuroscience And Mental Health Trading AS The Florey
Alleged dispute about any matters arising under the enterprise agreement and the NES - Whether the applicants are continuing employees within the meaning of the relevant clause of the Enterprise Agreement
[1] On 17 March 2025, Ms Susan Cox and Ms Soniya Survase (together, the applicants) applied for the Fair Work Commission to deal with a dispute under s 739 of the Fair Work Act 2009 (Cth) and in accordance with clause 43 of the Florey Union Enterprise Agreement 2024. The respondent in both matters is The Florey Institute of Neuroscience and Mental Health trading as The Florey.
[2] The Florey is a medical research institute, of which Neuroscience Trials Australia (NTA) is a subsidiary / division. The Florey undertakes research into treatments for brain and mind disorders. NTA is a not-for-profit organisation that receives funding from various sources including government, philanthropy, donations and commercial/industry contracts. NTA administers the clinical trials, projects or studies on behalf of other companies that are developing drugs.
[3] Ms Cox and Ms Survase were employed by the Florey within NTA. Their employments ended on 31 December 2024.
[4] A predecessor institute to the Florey first employed Ms Cox as a Project Manager on 14 January 2010 under a contract of employment for about 12 months. The Florey (and its predecessor institute) renewed or varied Ms Cox's contracts of employment around every 12 months from January 2010 until her employment ended. Ms Cox's position changed throughout her employment with the Florey. In February 2014, she became a Project Officer. In May 2017, she became Clinical Program Manager. In June 2021, she became Project Management Manager. At the time that her employment ended, Ms Cox held the position of Associate Project Director; she had held this position from September 2022.
[5] Ms Survase was first employed with the Florey on 20 November 2017. The Florey renewed or varied Ms Survase's contract of employment around every 12 months until her employment ended. Ms Survase's position changed throughout her employment with the Florey. In November 2020, Ms Survase's position changed to Clinical Program Manager. From December 2021 to April 2022, Ms Survase performed higher duties as interim NTA CRA Manager. At the time that her employment ended, Ms Survase held the position of Associate Project Director; she had held this position from September 2022.
[6] On 25 November 2024, the Florey issued letters to both Ms Cox and Ms Survase. The letters are relevantly in the same terms and said,
As you are aware, your maximum term employment with [the Florey] is due for expiry on 31 December 2024. We are giving you notice that your employment will end on 31 December 2024 by reason of effluxion of time and will not be renewed on the basis of funding.
[7] The dispute is about whether Ms Cox and Ms Survase were fixed term or continuing employees within the meaning of Clause 8 of the Agreement. The applicants say that they were continuing employees, so that when their employments ended on 31 December 2024, it was by way of redundancy, and they were therefore entitled to redundancy payments under clauses 50 and 51 of the Agreement. The Florey says that the applicants were fixed term employees and that their employments ended "by reason of the effluxion of time."
[8] The Agreement is the Florey Union Enterprise Agreement 2024. It was approved on 24 June 2024 and began to operate on 1 July 2024. Its nominal expiry date is 31 December 2025. At the time that this matter was heard and to date, the Agreement has not been replaced or terminated.
[9] The Agreement clauses that are relevant to this dispute are:
[10] I set out the reasons for my answers to the agreed questions for determination in detail below; I answer the questions as follows:
[11] I conducted conferences in this matter on 24 March and 10 April 2025.
[12] I published a decision on 23 May 2025 in [2025] FWC 1400, in which I dismissed the applicants' application for me to recuse myself from arbitrating the dispute.
[13] I published a decision on 11 June 2025 in [2025] FWC 1610 in which I concluded that the Commission had jurisdiction to deal with the dispute, including to arbitrate the dispute, in accordance with s 739 of the Act and clause 43 of the Agreement.
[14] I arbitrated the disputes on Wednesday 3 and Thursday 4 September 2025.
[15] Ms Cox and Ms Survase both gave evidence on their own behalf. They also relied on the evidence of the following:
[17] The principles for interpreting enterprise agreements are well-settled. They have been recently and comprehensively set out by Full Benches of the Commission in AMWU v Berri Limited [2017] FWCFB 3005 at [114]; and HSU v Mercy Hospitals Victoria Ltd [2024] FWCFB 235 at [112], and by the Full Court of the Federal Court in James Cook University v Ridd [2020] FCAFC 123 at [65].
[18] In summary, the starting point for interpretation is the ordinary meaning of the words, read as a whole and in context. A purposive approach to interpreting the agreement is to be preferred over a narrow or pedantic approach, and a generous construction over a technical or strictly literal one. Last, the words of the agreement must be understood in light of its industrial context, and the customs and working conditions of a particular industry.
[19] I have applied these principles to my interpretation of the Agreement as it applies to the facts of these matters.
Question 1: Whether the applicants are continuing employees within the meaning of clause 8.10 of The Florey Union Enterprise Agreement 2024?
The Commission's power to arbitrate relates only to the current enterprise agreement
[20] Clause 43 of the Agreement requires that the dispute be about a matter arising under this Agreement. The Agreement commenced operation on 1 July 2024.
[21] The applicants' employment with the Florey pre-dates the Agreement. Ms Cox has been employed on contracts of about 12 months each since 2010. Ms Survase has been employed on contracts of about 12 months each since 2017. It appears that each contract renewal occurred in the final months of the prior contract, such that there was no break in employment between contracts. Both applicants took periods of maternity leave; there is no contest about the applicants remaining employed with the Florey during those periods of maternity leave.
[22] I propose to only answer the questions in relation to the most recent contract of employment under the current Agreement. I consider that clause 43 cannot apply to a dispute about whether the applicants were continuing employees under an earlier agreement, or before 1 July 2024 (when the Agreement began to operate).
[23] Of relevance is Deputy President Asbury's (as she then was) observation in AMIEU v Primo Foods Pty Ltd [2023] FWC 570 at [83]:
That the dispute lodged under a dispute settlement term in a currently operative enterprise agreement involves an employee's continuous service under a previous agreement that is inoperative when the dispute is notified, does not deprive the Commission of power to deal with the dispute under the terms of an operative enterprise agreement, in a manner authorised by s 739(4) of the FW Act, and the terms of the relevant agreement.
[24] The dispute in Primo Foods was about the meaning of "base rate of pay" for employees on public holidays that they did not work and when taking personal leave where those employees worked and were paid at a higher classification level than their substantive classification either permanently or regularly for long periods of time. The applicant in Primo Foods asked the Commission to arbitrate a dispute that was about payments that were made under a currently operating agreement and under a previous agreement that had ceased to operate. Deputy President Asbury formed the view that the Commission could arbitrate the dispute even though it related to some payments that were made under an earlier, no longer operative agreement, as the dispute related to entitlements under the NES.
[25] In contrast, this dispute is about whether the applicants were continuing employees within the meaning of the Agreement and does not relate to any matters under the NES. The Commission could not under s 739 of the Act and the terms of clause 43 of the Agreement deal with a dispute that arose under an earlier agreement. There being no dispute about the regular renewals of contracts for the applicants, if the applicants were continuing employees when their employment ended on 31 December 2024, their period of continuous service commenced from their first contract (14 January 2010 for Ms Cox; 20 November 2017 for Ms Survase).
[26] Despite the above, factual matters relating to the employment relationship prior to the operation of the current Agreement may be relevant in answering the questions, and I address them where relevant.
[27] The Agreement defines continuing employment in Clause 8.10 to mean:
all employment other than "fixed term" or "casual".
[28] So, continuing employment is defined by what it is not. That is, in order for Ms Cox and Ms Survase to be continuing employees, they must not be fixed term or casual employees. Fixed-term and casual employment are defined in the Agreement.
[29] The title of Clause 8 of the Agreement is "Modes of Employment." Clause 8.1 provides that the Florey may engage an employee in one of 3 categories of employment:
[30] Clause 8.2 defines full-time employment. Clauses 8.3 and 8.4 define part-time employment. Both may be subcategories of continuing or fixed-term employment.
[31] There were periods of time when Ms Cox and Ms Survase were engaged on a part-time basis. Whether they were full-time or part-time does not affect whether they were continuing or fixed-term, as full-time or part-time employment are subsidiary categories of both continuing and fixed-term employments.
[32] Clause 8.19 of the Agreement requires the employer to provide the employee with an instrument of appointment, at the time of the appointment. The instrument must state the type of employment and inform the employee of relevant terms of the engagement. Clause 8.19 is prescriptive. The Agreement specifies what is required for different employment types. For all types of employment except casual employment, the Florey must state the employee's classification level, salary, position description and hours of work. For part-time professional employees, the Florey must also specify the days of the week, start and finish times and number of hours to be worked each day. For casual employees, the Florey must specify the duties and relevant rates of pay. For fixed-term employees, clause 8.19(d) specifies what information must be provided. I detail this further below.
[33] Clause 8.5 defines casual employment. Clauses 8.6, 8.7, 8.8 and 8.9 provides for relevant terms and conditions. There was consensus that Ms Cox and Ms Survase were not casual employees within the meaning of clause 8.5.
[34] The key issue in this matter is whether Ms Cox and Ms Survase were fixed term employees, such that they would not be continuing employees within the meaning of clause 8.10 of the Agreement.
[35] Clauses 8.11 to 8.19 relate to fixed term employment, but they are not all definition clauses.
[36] Clauses 8.12, 8.14, 8.15, 8.16. 8.17 and 8.18 provide for entitlements but do not define fixed term employment under the Agreement.
[37] Clause 8.11 defines fixed term employment. Clause 8.13 places a limitation on the use of fixed-term employment. Clause 8.19 is titled - "Requirement to state terms of engagement." I deal with each clause separately below.
Fixed term employment means employment for a specified term or ascertainable period, for which the instrument of engagement will specify the starting and finishing dates of that employment, (or in lieu of a finishing date, will specify the circumstance(s) or contingency relating to a specific task or project, upon the occurrence of which the term of the employment shall expire), and for which, during the term of employment, the contract is not terminable, by the Florey, other than during a probationary period, for cause based upon serious or wilful misconduct, or for repeated underperformance.
[39] There are 2 aspects to the above definition. First, that the employment is for a period that is specified or ascertainable within the instrument of engagement and second, that the contract is only terminable in the listed limited circumstances.
Did the instrument of engagement specify a period of employment?
[40] I was supplied with the instruments of engagement for Ms Cox and Ms Survase dating back to their first engagements (in 2010 and 2017 respectively). The most recent engagement letter for Ms Cox is dated 27 March 2024. The most recent engagement letter for Ms Survase is dated 24 May 2024.
[41] The letter to Ms Cox dated 27 March 2024 said:
I write to confirm that your contract of employment has been extended from 1 July 2024 to 31 December 2024.
Your employment will cease on the end date specified above unless renewed in writing prior to that date.
This is fixed-term employment provided for from funding external to the Florey. The Florey is under no obligation to offer further employment at expiration of this fixed term employment.
All other conditions of your employment remain unchanged.
[42] The letter asked for acceptance by signing and returning a copy of the letter. Ms Cox signed and returned the letter but marked it with the following:
By signing this document, I accept that my contract of employment has been extended from 01Jul2024 to 31Dec2024, however I believe that my position is continuing employment/ ongoing. I reserve my rights in respect of disputes relating to my employment category.
[43] The letter to Ms Survase dated 24 May 2024 details the following:
[44] The letter asked for acceptance by signing and returning a copy of the letter. Ms Survase signed and returned the letter but marked it with the following:
By signing this extension letter, I accept that my contract of employment has been extended from the 01 July 2024 to 31 December 2024. I understand that my position is ongoing/continuing employment. I reserve the rights for disputes relating to my employment category.
[45] The most recent engagement letters to Ms Cox and Ms Survase clearly specified a term with start and finish dates. It meets the first aspect of the definition in clause 8.11.
Were the contracts of employment only terminable for the circumstances listed?
[46] A question arises as to whether the contract was terminable, other than for the 3 permitted grounds - (1) during a probationary period; (2) for serious or wilful misconduct and (3) for repeated underperformance. The contracts were not terminated for any of those reasons, but if they were capable of being terminated for reasons other than those reasons, the employment would not be fixed-term employment within the meaning of clause 8.11 of the Agreement. The applicants submit that their contracts of employment permitted the Florey to terminate that employment by giving 4 weeks' notice. But given the extensive history of the applicants' employment with the Florey, a key issue is what were the contracts of employment for Ms Cox and Ms Survase?
[47] Throughout the entire period of Ms Cox's employment with the Florey (January 2010 to 31 December 2024), she received various documents that could form her contract of employment.
[48] The Florey provided Ms Cox with the following "Employment Agreements":
[49] Each of the employment agreements had a clause that allowed the employer to terminate the employment on notice:
[50] Each of the employment agreements also had a clause that listed 6 circumstances that allowed the employer to terminate the employment without notice.
[51] The Florey provided Ms Cox with the following letters extending her employment:
[52] All the letters extending Ms Cox's period of employment specified start and end dates. Most, but not all, referred to the employment ceasing on the end date unless renewed in writing prior to that end date. The extension letters that did not refer to the employment ending were the letters dated 20 January 2012, 11 January 2013 and 3 February 2015. All the letters referred to Ms Cox's conditions of employment remaining the same, except as varied and, from the letter dated 24 January 2019, that the employment would be governed by the Florey's enterprise bargaining agreement.
[53] Ms Cox signed the extension letters dated 10 January 2024 and 27 March 2024. Ms Cox added words below her signature stating that she believed her position was ongoing and reserved her rights (as referred to in paragraph [42] above).
[54] The Florey also sent Ms Cox letters that varied her employment:
[55] Almost all the variation letters referred to Ms Cox's employment conditions remaining unchanged and that her employment would be governed by the Florey's enterprise bargaining agreement.
[56] Other than in the employment agreements dated 13 January 2010, 17 February 2011 and 28 January 2014, there were no references to the employer's entitlement to terminate the employment relationship. Each of the employment agreements provided for the employer to terminate the agreement by giving notice.
[57] The Florey provided Ms Survase with a letter dated 24 October 2017 that also contained an employment agreement. That document included a clause relating to termination of employment (clause 11). Clause 11 allowed the employer to terminate the employment on notice for various reasons (unsatisfactory performance, redundancy, misconduct or serious misconduct), and separately listed 6 circumstances that allowed the employer to terminate the employment without notice.
[58] The Florey provided Ms Survase with the following letters extending her employment:
[59] All the letters extending Ms Survase's period of employment specified start and end dates. Most, but not all, referred to the employment ceasing on the end date unless renewed in writing prior to that end date. All the letters referred to Ms Survase's conditions of employment remaining the same, except as varied and that the employment would be governed by the Florey's enterprise bargaining agreement.
[60] Ms Survase signed the extension letters dated 20 October 2023, 10 January 2024 and 24 May 2024. Ms Survase added words below her signature stating that she understood her employment was ongoing/continuing and that she reserved her rights (as referred to in paragraph [44] above).
[61] The Florey also sent Ms Survase letters that varied her employment:
[62] All the variation letters stated that Ms Survase's employment conditions remain unchanged and was otherwise governed by the Florey's enterprise bargaining agreement.
[63] There were many documents that contained variations to the contracts of employment of Ms Cox and Ms Survase, the terms relating to termination remain substantially unchanged. In short, the documents make clear that the employment is for a fixed period, but some documents provide for termination. However, once the Florey had entered into an enterprise bargaining agreement, the contracts of employment of Ms Cox and Ms Survase were governed by that agreement.
[64] In relation to whether the contracts of employment were terminable for reasons other than those permitted reasons in clause 8.11 of the Agreement, the relevant contractual terms relating to termination of the employment were:
[65] The clauses are worded differently, but both allow for termination on notice. For Ms Cox, clause 10 in the agreement dated 28 January 2014 allowed for termination on notice for any reason. For Ms Survase, clause 11 in the agreement dated 24 October 2017 allowed for termination on notice but only on specified grounds (underperformance, redundancy, misconduct, and serious misconduct).
[66] There is some attraction to the applicants' argument that their contracts of employment were terminable on notice because of the above 2 clauses. I observe that this argument is clearest for Ms Cox. Clause 11 in Ms Survase's agreement dated 24 October 2017 does not clearly allow for termination on notice. But this fails to consider that their employments were governed by the Florey's enterprise bargaining agreements as clearly expressed in the majority of letters that renewed their contracts of employment or varied their contracts (by way of promotion, changed hours of work or in relation to maternity/parental leave).
[67] Ultimately, when considering the terms of the majority of the renewal and variation letters specifying the period of employment and that it would end unless renewed in writing prior, with the fact that the agreements containing a clause for termination on notice were in the early part of the employment relationships, this tends against a finding that the contract of employment included a right for the employer to terminate the relationship on notice.
[68] I find that the contracts of employment of Ms Cox and Ms Survase were not terminable on notice or other than for the 3 listed grounds in clause 8.11 of the Agreement. I conclude therefore that Ms Cox's and Ms Survase's employment was "fixed-term employment" within the meaning of clause 8.11 of the Agreement.
The use of fixed-term employment shall be limited to the employment of an Employee engaged on work activity that comes within the description of one or more of the following circumstances:
Specific task or project shall mean a definable work activity which has a starting time, and which is expected to be completed within an anticipated timeframe. Without limiting the generality of that circumstance, it shall also include a period of employment provided for from identifiable funding external to the Florey.
Replacement Employee means an Employee undertaking work activity replacing a full-time or part-time Employee for a definable period for which the latter Employee is on authorised leave of absence.
Research means work activity by a person engaged on research-only functions for a contract period not exceeding seven years.
[70] Clause 8.13 is clearly expressed as a limitation on the Florey's ability to engage employees in the mode of fixed term employment to one of 3 circumstances. By use of the term 'one or more' the circumstances may overlap but the 3 listed circumstances are the only circumstances in which the Florey may employ employees using fixed-term employment under the Agreement. However, while 8.13 may limit the Florey's use of fixed-term employment, clause 8.13 does not define what fixed-term employment is; only 8.11 is a definitions clause.
[71] The applicants submit that clauses 8.13(b) - replacement employee and 8.13(c) - research are not relevant to their circumstances. The applicants submit that only 8.13(a) - specific task or project is relevant but that their employment was not for a specific task or project, and so they were not fixed-term employees.
[72] Although I have concluded that only clause 8.11 defines what fixed-term employment is under the Agreement, for completeness, I address the submissions about whether the applicants' were employed for a specific task or project.
[73] The definition of 'specific task or project' has 2 parts. The first part is definable work activity that has a start and anticipated finish time. The second part provides for a subsidiary or non-exclusive example of definable work activity, which is that the employment is provided for from funding external to the Florey. There is no requirement for both parts of the definition of 'specific task or project' to be met because the second part is not an alternative definition; it is a subsidiary or example of the first part.
[74] The applicants submit that a majority of their duties did not relate to specific projects. Ms Cox was nominally allocated to the 'Bright Minds Bioscience' project but gave evidence that in her role as Associate Project Director, she only spent one or two hours per week on that project. Ms Survase was nominally allocated to CervoMed, also for one hour per week to that project. The majority of the applicants' time was management and supervision. Ms Cox and Ms Survase managed and supervised other staff who were employed across various projects, and not just the Bright Minds or Cervomed projects to which they were respectively allocated. I accept their evidence, and the evidence of Ms Skoff and Ms Smileski in this regard.
[75] However, I accept the respondent's evidence that NTA is not internally funded and all of the NTA work is funded from sources external to the Florey. I accept Mr Pirie's and Mr Barlow's evidence about how the Florey sources its funding, and how it assigns and budgets for staff salaries from its sources of funding. I also accept Mr Pirie's evidence that Ms Cox's and Ms Survase's employment were funded from external sources, including the Bright Minds and Cervomed projects. As such, their employments were provided for from funding external to the Florey and meets the definition in the second part of clause 8.13(a), which is an example of a 'specific task or project.'
[76] The applicants also assert that Clause 8.19 is relevant to whether they are fixed term or continuing employees. Clause 8.19 prescribes the information that the Florey must provide to an employee at the time of their appointment. For fixed-term employees, clause 8.19(d) requires the Florey to inform the employee of:
[77] I am of the view that Clause 8.19 is not a definitions clause. Only clause 8.11 defines fixed-term employment. Clause 8.13 limits the use of fixed-term employment to specified circumstances and clause 8.19 sets out the information that must be provided to an employee. Contraventions of clauses 8.13 and 8.19 are just that - contraventions of the agreement from which a cause of action may arise - but would not alter the employment from being fixed term employment if it meets the definition in clause 8.11.
[78] For completeness, while I do not consider that clause 8.19 defines fixed-term employment, I deal with whether the letters of engagement for Ms Cox and Ms Survase that relate to their period of employment after the start of the Agreement include the above information. As detailed above at paragraphs [40] - [45], the letters for both Ms Cox and Ms Survase specified the term of the employment. There was no relevant period of probation for Ms Cox nor Ms Survase, so this information was not required. Ms Cox's letter dated 27 March 2024 specified that the employment was provided for from funding external to the Florey, being a subsidiary of a specific task or project, as detailed at paragraphs [70] - 75]. Ms Survase's letter dated 23 May 2024 did not include wording about her employment being funded from funding external to the Florey. The immediately preceding letter dated 10 January 2024 did include that wording. At the highest, this failure to state that the employment was funded from funding external to the Florey may be a contravention of clause 8.19 but does not alter that the employment was externally funded and therefore met the criteria in clause 8.13(a).
Question 1: Whether the applicants are continuing employees within the meaning of clause 8.10 of The Florey Union Enterprise Agreement 2024?
[79] In conclusion my answer to question 1 is that the applicants were not continuing employees within the meaning of clause 8.10 of the Agreement. Their employment met the definition in clause 8.11 of the Agreement. Clause 8.13 limits the employer's ability to use fixed term employment to specific circumstances only but is not relevant to defining what fixed term employment is. Clause 8.19 sets out the employer's obligations in relation to the information that it must provide to fixed term employees but again, does not define what fixed-term employment is.
Question 2: Whether the applicants' employment was terminated for the reason of redundancy within the meaning of clause 50.1(c) of the Agreement?
[80] As I have answered "no," to the first question, it necessarily follows that I must answer, "no," to the second question. The applicants' employments ended at the end of the period specified in their letters of engagement (for Ms Cox, the letter dated 27 March 2024; for Ms Survase, the letter dated 24 May 2024.)
[81] For the sake of completeness, if I had found that Ms Cox and Ms Survase were continuing employees, I would have found that their employments ended by way of redundancy. The respondent's evidence demonstrates that for financial reasons, it could not continue with the employments of Ms Cox and Ms Survase. Both Mr Pirie and Mr Barlow give evidence about the difficult funding situation for the NTA and similar research institutes, and Mr Barlow gives specific evidence that the Bright Minds Biosciences study was terminated.
Question 3: Whether the applicants are entitled to a redundancy payment under Clause 51 of the Agreement?
[82] As I have answered "no," to the first and second questions, it necessarily follows that I must answer, "no," to the third question. In addition, clause 51.1 of the Agreement clearly states that redundancy arrangements only apply to continuing employees.
[83] For the sake of completeness, if I had found that Ms Cox and Ms Survase were continuing employees, I would have found that their continuous service would have commenced:
Mr R Terns, of counsel, instructed by Mr Wolf Legal, with permission, on behalf of the Applicants.
Mr A Galbraith, of counsel_,_ instructed by Mills Oakley with permission, on behalf of the Respondent.
Printed by authority of the Commonwealth Government Printer
Susan Cox
The Florey Institute Of Neuroscience And Mental Health Trading AS The Florey [2026] FWC 335