Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] On 21 August 2024, Ms Vicky Drivilas (the Applicant) lodged an application (the Application) in the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act), against Sydney Catholic Schools Limited (the Respondent).

• [2] The Applicant most recently claimed to have commenced employment with the Respondent on or about 21 November 2023. The Applicant claimed to have been dismissed by the Respondent on 5 December 2024.

• [3] The Respondent raised jurisdictional objections to the Application, being:

(a) That the Applicant was not dismissed within the meaning of s.386 of the Act because:

(b) If the Applicant was dismissed, that the Application is out of time being lodged more than 21 days after the dismissal took effect.

• [4] Directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). In response to the Directions each party filed materials, and the materials relied upon by the parties at the Hearing were:

(a) For the Applicant, a Statement of the Applicant and an Outline of Submissions both dated 21 February 2025;

(b) For the Respondent, an Outline of Submissions dated 7 March 2025; and

(c) A Statement of the Applicant in Reply and an Outline of Submissions both dated 14 March 2025.

• [5] The Applicant was not required for cross-examination.

• [6] The Applicant commenced her employment with the Respondent on 5 February 2001 as a teacher at Marist Catholic College North Shore (MCCNS). Over the years, she served as a permanent full-time Science, Biology, and Mathematics Teacher.

• [7] On 26 June 2023 the Applicant resigned from her position. Her resignation email relevantly read:

I am writing to let you know that after much consideration, I have decided to resign from my position as a teacher in the science department.

As you know, I have worked for over 22 years at Marist Catholic College North Shore and have always been committed to the values it upholds.

Please be advised that my resignation is effective Monday, 26 June, giving one month's calendar notice.

• [8] On 28 June 2023, the Principal of MCCNS, Mr Anthony Boys, sent the following email confirming her resignation:

I am writing to confirm that I have received and accepted your written resignation from your role at Marist Catholic College North Shore dated 26 June 2023.

Your last day at the College will be 30 June 2023. Your last day of employment will be 6 August 2023, at the completion of the previously agreed period of leave. Please ensure that you have returned your device and keys prior to your departure.

Vicky, as I hope has been relayed to you in our conversations, please accept the College's sincere thanks for the profound presence, care and authenticity that marked your tenure and engagement among this community.

• [9] The Applicant's last day of work was 30 June 2023, and her employment officially ended on 6 August 2023 following a period of leave. On or about 7 August 2023, the Applicant lost access to her work email address.

• [10] In November 2023 the Applicant decided she was ready to investigate returning to work with the Respondent but in a casual capacity. The Applicant noted that the Respondent's website had information on casual employment that included the statement that:

All teachers and general employees must be registered to work before being engaged at any of our Sydney Catholic Schools (SCS).

• [11] On 16 November 2023, the Applicant contacted the Respondent's People and Culture team to inquire about converting her status from permanent to casual. The email inquiry was as follows:

My name is Vicky Drivilas and I was working as a permanent Science/ Maths Teacher for 22 years at Marist Catholic College North Shore. I finished up my permanent position at the end of Term 2, 2023 and now would like to come back as a casual.

It would be much appreciated, if I could have a casual record so that I can do casual work as soon as possible. I would also like to know how my Proficient accreditation is affected when working as a casual teacher.

Please note: My Bank details and Superannuation remain the same, they have not changed.

• [12] After the above email, and from 17 November 2024 onwards, the Applicant's access to her previous work email address was reinstated and she started receiving emails again.

• [13] On 21 November 2023, the Respondent reactivated the Applicant's casual employment record, reinstating her employee ID number and work email address. The email confirming her reactivation read:

I am happy to confirm that we have reactivated your casual employment record with Sydney Catholic Schools and you may now be engaged in casual work. Your employee ID number is [redacted].

• [14] The Applicant received another email on 21 November 2023, that advised in part:

Case Description: To go from Permanent teaching into Casual teaching asap

This is to confirm that we have approved your re-registration.

• [15] Despite this reactivation, the Applicant did not perform any work or receive any payment from the Respondent. She actively sought casual work by contacting various principals within the Respondent's system of schools, including MCCNS, Trinity Catholic College, and Marist College Eastwood, but was unsuccessful in securing any assignments.

• [16] On 30 November 2023, the Applicant received an email to her work email address with the Respondent's Connect Newsletter titled "Connect Newsletter: Christmas at the Cathedral is Coming + Family Event with Jason Evert".

• [17] On 14 December 2023, the Applicant received an email to her work email address with the Respondent's Connect Newsletter titled "Connect Newsletter: Chaplains' advice for school leaves+ Don't miss Christmas at the Cathedral".

• [18] On 22 December 2023, the Applicant received an email from Mr Eric Leahy, Director of People and Culture, addressed "Dear Colleagues" to her work email address. That email announced that the Fair Work Commission had approved the NSW and ACT Catholic Systemic Schools Enterprise Agreement 2023.

• [19] In or around January 2024, the Applicant was applying for rental properties. On 9 January 2024, the Applicant received an email from the Respondent's Administration Assistant: P&C Services advising the Applicant that she had received a request from realestate.com.au to complete an employment reference check on the Applicant's behalf and asking for the Applicant's permission to respond. The Applicant responded and indicated that she intended to start 5-day casual teaching in 2024 and authorised the Administration Assistant to release her employment information.

• [20] On 1 June 2024 at 11.56 am, 4 June 2024 at 5.28 pm, and 4 June 2024 at 7.59 pm, the Applicant sent three emails to Mr Boys requesting casual work at MCCNS. The content of those emails was substantially similar, with the first email providing:

l am writing to connect with you to obtain relief teaching work at a school that I hold dear in my heart. I am missing the students and wish to return to teaching at Marist Catholic College North shore after an absence of 10 months. l am available 5 days per week, to meet relief needs within the school.

I wish to apologise for any hurt I may have caused you Anthony & promise to support you, the primary instructional leader of Marist Catholic College North Shore so that your school, is recognised as excellent and responsive by its community.

Look forward to your early response as I would love to start right away.

• [21] The Applicant explained that the reason three similar emails were sent as being:

(a) The Applicant realised that the first email was sent from her work email, and it erroneously contained the MCCNS crest and my position title as Science Teacher in the email signature;

(b) The second email on 4 June 2024 at 17.28pm was from her private email address noting that no response had been received from Ms Boys; and

(c) In the third email of 4 June 2024 at 19.59pm, the Applicant removed the MCCNS crest, and amended her title in the signature to "Relief teacher wanting to work at MCCNS".

• [22] On 5 June 2024, at 8.04am, the Applicant received an email response from Mr Boys. Mr Boys response was as follows:

I acknowledge receipt of your emails (4.6.24 of 7:59pm, 4.6.24 of 5:28pm, 1 June 11:57am). I am pleased these last 10 months have been a time to reflect on your teaching vocation and an opportunity to discern the goodness and capacity of Marist Catholic College. While I appreciate your keen interest in returning for casual work, there were a number of issues that I believe remain unresolved from your time on the permanent staff; it would be necessary for these to be openly and thoroughly canvassed prior to any return. I do note that you have sought to cursorily acknowledge and address some of these matters in your emails; thank you.

Presently the College is well placed with regard to casual staff available to support short or medium term block-work. I will inform John Carnabuci of your availability and should the need arise I will make contact with you at that time to ascertain your availability and your openness to addressing matters as previously raised.

• [23] Upon receiving the above email, the Applicant perceived that whatever had happened when she was a permanent employee was an obstacle to her obtaining casual work at MCCNS. The Applicant then sent four further emails to Mr Boys on 4 and 5 June 2024, as follows:

I am writing to connect with you to obtain relief teaching work at your school, a school that I hold dear in my heart. I am missing the students and wish to return, doing relief teaching at Marist Catholic College North Shore after an absence of 10 months.

I am available 5 days per week, to meet the relief needs within the school.

I wish to apologise for any hurt that I may have caused you Anthony & promise to support you, the primary instructional leader of Marist Catholic College North Shore so that your school, is recognised as excellent and responsive by its community.

I have obtained my relief teaching number, have Working With Children Clearance & would love to be given the opportunity to connect with you and your school again.

Thank you for responding to my emails Anthony. Very much appreciated!

I absolutely agree with you as I too would like to resolve issues that you believe remain unsolved from my 22 years working at your school.

I don't exactly know how to go about resolving these issues as there are no perfect sentences that I can craft that will break through an unwilling mind. I wanted to reach out to you earlier but felt there would only be an endless expanse of frustration & pain trying in vain to do the impossible. In the end, all I could do is focus on my self & my own choices & leave you to yours.

For the pain I caused you Anthony...I'm deeply sorry.

Anthony, earlier this year, I received an email from one of my students, [REDACTED]

It was on receiving this email that I knew in my heart that some boys appreciated my contribution in helping them become good men, whilst doing my best to teach them Science.

This email has been extremely difficult to write Anthony. I don't know how to resolve issues that remain.

Email I just sent you Anthony, did not read as I intended. Im not well versed in writing as you, so if I continue, I will ruin chance of resolving anything with you.

Could we please just have a chat after work when you are free?

I don't want to revisit the past Anthony but if it helps to understand what was behind my reactions & hopefully help mend our working relationship .... I was in a state of mental, emotional & physical exhaustion. I didn't respond to you with kindness simply because I couldn't at the time. I was hurt & in my thinking .... you were to blame. I know now that the stress/burnout stemmed from a variety of sources. I don't want to go into any more detail but hope this allows you to get a more accurate picture of the situation at the time.

Principal burnout is also an Invisible crisis, so if you're still at work, get out of there.

I'm living at North Sydney, so if you wanted to meet to chat in person, happy to do so.

• [24] Mr Boys did not respond to the above four emails, and one week later on 12 June 2024 at 11.25pm, the Applicant again emailed Mr Boys as follows:

I need to learn to apologise more graciously, to you.

I would like to apologise for writing that you have an unwilling mind. You are an effective Principal & I thank you for maintaining control & not responding to my disrespectful comment. It would be a normal reaction from a passionate Principal to take my comment personally. Refraining from responding has allowed accountability to work, which is the right thing to do for both you & me. Your pause & unwillingness to react by a response email, has certainly taught me to be more respectful towards you & only hope you will refrain from enforcing a consequence like not allowing me to

Re: Issues that you believe remain unresolved from my time on the permanent staff

Trust that I value your time & understand the enormity of your job as K-12 Principal.

I'm sorry I complained about everything & for becoming extremely disrespectful on my last day of teaching at Marist. I now know this was my problem. I certainly didn't exhibit characteristics of professionalism. I always had the ability to handle myself in a manner that reflected positively on the school I represented. On my last day, a deep hurt surfaced & I didn't handle myself in a manner that reflected positively on me. For my disrespectful manner, I'm extremely sorry Anthony & wish I could take back everything that came out of my mouth.

• [25] On 3 July 2024, at 11.49pm, the Applicant sent a further email to Mr Boys as follows:

As Principal, you have all the power to do as you wish but please tell me what exactly has pissed you off, so that l can explain. It is 2 days before the end of term 2 and I have not been given any relief work. Why are you so pissed off with me?

• [26] On 25 July 2024, the Applicant received an email from Mr Blake Summat, Supervisor: People & Culture Services of the Respondent, that advised as follows:

Our records indicate you hold a casual employment record with Sydney Catholic Schools (SCS) but you have not undertaken casual work with SCS recently. If you are looking for casual roles, it is important that your employee profile with SCS remains active, so that we can assist you in finding roles that suit your individual circumstances.

Maintaining an active employee record is simple and can be done by keeping in contact with our Principals, our Talent Acquisition team and importantly, by engaging in casual work on a regular basis.

If you are interested in exploring casual work opportunities with SCS, please respond to this email with an updated resume, your availability and schools/suburbs you are interested to work in, and a member of our Talent Acquisition team will be in touch. Please note your casual record may be deactivated due to inactivity at the end of Term 3, 2024.

• [27] On 2 September 2024 at 10.06am, the Applicant emailed Mr Boys as follows:

I hope this email finds you in good health and high spirits.

I'm reaching out to you again, to kindly request an opportunity to meet with you at your earliest convenience to discuss the unresolved matter & the potential of doing casual relief work at MCCNS. Please let me know a time and date that would be convenient for you and I will gladly adjust my schedule accordingly to meet with you. I would be happy to meet over coffee or lunch wherever convenient for you. I will respect your decision but please allow me to apologise in person.

Thank you for considering my request. I look forward to resolving this matter and the possibility of contributing to the educational journey of MCCNS with you and making a positive impact on the lives of its students.

Please do not hesitate to contact me via email at vdrivilas@gmail.com or by phone at 0488302402. Thank you for your time and consideration.

• [28] On 5 September 2024, at 2.03pm, the Applicant sent an email to Mr Boys as follows:

I care enough to use this SCS platform to write what I would have preferred to say in private to you.

The matter remaining unresolved between us would not have caused you grief (wrong word used), it would had caused you to despise me enough to ignore me. I really don't blame you for ignoring me.

You didnt do anything wrong and you know that to be the truth. I know that to be the truth too.

I take full responsibility for my pathetic projections of my dysfunctional thoughts onto you. For this, I'm deeply sorry for making you feel like you weren't doing your job properly. You were doing your job best you could.

I ruined our working relationship because of my inability to accept what I wasn't prepared to accept at the lime. I was Ill.

Hope you can find it in your heart to please forgive me for hurting you.

• [29] On 13 September 2024, at 3.37pm, the Applicant emailed the Respondent to seek casual relief work. The email stated:

I am writing to let you know that after a year of caring for my elderly parents, I would like to come back to MCCNS to do casual relief work. I have my casual employment number with Sydney Catholic Schools, a current WWCC and have completed all the PHRIS mandatory learning.

I am available 5 days a week and wanting to start as soon as possible.

Thank you for considering my request. I look forward to hearing from you.

• [30] The Applicant decided to contact another school within the Respondent's system of schools, and emailed the Principal of Trinity Catholic College, on 16 September 2024.

• [31] On 18 September 2024, the Applicant sent a text message to Mr Boys to ask if she could attend a graduation assembly noting that she had taught the graduating students. Mr Boys subsequently emailed her to say that she could attend the graduation mass only.

• [32] On 30 September 2024, the Applicant received an email that stated it was "...regarding important information on your casual employment with Sydney Catholic Schools". The email attached a letter (the Show Cause Letter) from Mr Leahy to the Applicant. The Show Cause Letter provided as follows:

I write to you in relation to your casual status with Sydney Catholic Schools (SCS).

It has come to my attention that your communication with Principal, Mr Anthony Boys whilst seeking casual employment at Marist Catholic College, North Sydney (the College) is not consistent with behaviour expected of employees of SCS. In particular, the frequency and content of your communications with Mr Boys are of concern.

This includes emails dated; Saturday 1 June 2024 at 11.56am, Tuesday 4 June 2024 at 5.30pm, Tuesday 4 June 2024 at 7.59pm, Wednesday 5 June 2024 at 09.16am, Wednesday 5 June 2024 at 1.35pm, Wednesday 5 June 2024 at 5.10pm, Wednesday 12 June 2024 at 11.25pm, Wednesday 3 July 2024 at 11.49pm, Monday 2 September 2024 at 10.06am, Thursday 5 September 2024 at 2.03pm, as well as a text message sent to Mr Boys' phone number. A copy of these can be found in Annexure A.

As outlined in the Code of Professional Conduct (the Code):

• not disparage, harass, bully or discriminate against colleagues, students, parents or community members not bring the reputation of Sydney Catholic Schools into disrepute

• use all forms of communication, including social media, responsibly and appropriately and in line with the Ethical Behaviour outlined in section 4 above maintain confidentiality and privacy where required.

I consider that both the frequency and content of your communications do not align with the behaviour expected of an SCS staff member as outlined in the Code.

In light of the above, your Employee Identification Number, SCS email account and access to SCS' ICT systems will be deactivated effective from Monday, 14 October 2024 and you will no longer be eligible to be engaged for work in a SCS school.

If you consider that your casual profile with SCS should not be deactivated, you are invited to write to SCS at directorpc@syd.catholic.edu.au to explain (show cause) your reasons for this. You must do this by Monday, 14 October 2024.

• [33] On 3 October 2024, the Applicant received a further email from Mr Summat which referred to his previous email correspondence of 25 July 2024, and provided:

Following our previous communication on Thursday, 25 July 2024, we noticed that you haven't worked a casual day with Sydney Catholic Schools (SCS) recently. As a result, your casual employment record will be deactivated due to inactivity, effective Friday, 11 September 2024. This will officially end your casual employment with SCS.

Please be assured, if you are currently employed in a full-time or part-time capacity with an active casual record, the closure of your casual record will not affect your ongoing employment or system access.

If you'd like to re-register as a casual employee with SCS, you can email P&C Services at pcservices@syd.catholic.edu.au. Our Talent team will review applications and collaborate with our Principals to match applicants with suitable roles and opportunities. You are also welcome to reach out directly to our schools for casual work opportunities.

Once a Principal expresses interest in engaging a casual teacher, your application will be prioritised for fast-tracked onboarding and re-registration. For non-teaching staff, applications for casual work are reviewed upon request by our Principals. Please note that if you're unavailable or if we cannot find a suitable opportunity, we may not be able to move forward with your application.

We sincerely thank you for your contribution to Catholic Education and wish you all the best in your future endeavors.

• [34] On 4 October 2024, the Applicant's recently engaged legal representatives, WilliamsonBarwick, wrote to the Respondent to request confirmation that the Respondent would not take any action in respect of the Applicant's casual profile prior to 14 October 2024 and until such time that the Respondent had considered the Applicant's response to the Show Cause Letter.

• [35] On 5 October 2024, the Applicant received an email from the Respondent's People and Culture Services team showing a list of employment opportunities within the Respondent's system of schools.

• [36] On 8 October 2024, the Respondent responded to WilliamsonBarwick's email of 4 October 2024, as follows:

The emails from 25 July 2024 and 3 October 2024 are automated emails which are sent to all employees with an inactive casual profile within our system after a period of inactivity. Apologies for the confusion this has caused.

I confirm that Ms Drivilas' casual record will not be deactivated prior to 14 October 2024 and until her response has been received and considered.

• [37] On 11 October 2024, through Williamson Barwick, the Applicant provided a detailed response to the Show Cause Letter (the Show Cause Response), that addressed in one part the reasons why the Applicant's casual profile with the Respondent should not be deactivated, and sought confirmation that the Applicant could accept casual work with the Respondent.

• [38] On 18 October 2024, the Executive Assistant to Mr Leahy, Cindy Dekker, responded to the Show Cause Response in part as follows:

At section 42 (a) of the Response you state that Ms Drivilas exercised a workplace right by making a complaint to Mr Anthony Boys in relation to her employment on 26 June 2023. SCS does not have a record of a complaint made by Ms Drivilas to Mr Boys. So that we can properly consider the Response, and because SCS takes complaints seriously, please provide us with details of the complaint made by Ms Drivilas by Friday 25 October 2024 including:

• Whether the complaint was made verbally or in writing. If verbally, what was said to Mr Boys? If in writing, please provide a copy of the complaint, and
• Particulars of any specific incident/s complained about, including what is alleged to have been done or said, when it is alleged to have occurred, who was involved and who may have witnessed the incidents.

While the detailed Response is being considered, SCS will not deactivate Ms Drivilas' casual record but she is not eligible to accept casual work from our schools. This direction will not predetermine the outcome of this matter.

• [39] On 12 November 2024, the Applicant received an email from Mr Leahy titled "Notice of Representational Rights: commencement of bargaining" to her work email address. The email contained a hyperlink to the Notice of Employee Representational Rights in relation to the commencement of bargaining for the proposed NSW and ACT Systemic Schools Enterprise Agreement.

• [40] On 13 November 2024, through WilliamsonBarwick, the Applicant requested that the Respondent provide a substantive update on the show cause process as follows:

We note that it has been over one (1) month since Ms Drivilas provided her response to Sydney Catholic Schools' ("SCS") show cause letter dated 30 September 2024 and 2.5 weeks since Ms Drivilas provided her response to SCS' request for further particulars regarding her complaint on 26 June 2023 to Mr Boys. With respect to both requests made by SCS to Ms Drivilas, Ms Drivilas has complied with SCS' timeframes to provide a response.

Despite it being over (1) month since Ms Drivilas provided her show cause response to

SCS' delay in finalising this matter is impacting Ms Drivilas' ability to obtain casual employment during term 4 at an SCS school.

Please provide a substantive update in relation to this matter, as soon as possible, and

• [41] On 16 November 2024, the Applicant received a further email from the People and Culture Services team showing a list of employment opportunities within the Respondent's system of schools.

• [42] On 18 November 2024, Mr Leahy of the Respondent provided a response to the Show Cause Letter and Show Cause Response. It provided, in part, as follows:

I refer to your letter dated 11 October 2024 (Response), sent in response to my letter to Ms Drivilas dated 30 September 2024 (Show Cause Letter).

As set out in the Show Cause Letter, Sydney Catholic Schools (SCS) is proposing to deactivate Ms Drivilas' casual record because of her written communications with Mr Anthony Boys between June and September 2024.

Thank you for the detailed information provided in your letter. The Response provided on behalf of Ms Drivilas has been carefully considered and further enquiries undertaken. I thank her for her patience.

I have carefully considered the Response and have determined that her casual record will be deactivated. Regrettably, SCS does not intend to reactivate her casual record in the future should she apply again for registration to teach or work with SCS.

• [43] The Applicant did not agree with several of the Respondent's assertions in its letter of 18 November 2024, and on 22 November 2024, through WilliamsonBarwick, the Applicant responded to factual assertions made by the Respondent in the 18 November 2024 letter. That correspondence included the following:

You have advised that Sydney Catholic Schools' ("SCS") has determined to deactivate Ms Drivilas' casual record and that SCS does not intend to reactivate her casual record in the future should Ms Drivilas apply for registration to teach or work with SCS. This outcome has been deeply distressing for Ms Drivilas especially given the dedication she gave to Marist Catholic College North Sydney ("MCCNS") across 23 years of service and in particular, Ms Drivilas' support of the College's Vision and Values.

Ms Drivilas has instructed us to respond to SCS' factual assertions in the 18 November 2024 letter, to set the record straight, and to request that SCS reconsiders the abovementioned determination for the reasons outlined in this correspondence.

Given that Ms Drivilas has now candidly provided SCS with the background information regarding why she sent the seven emails and text message to Mr Boys seeking to meet with him after receiving of his 5 June 2024 email, Ms Drivilas requests that SCS reconsider its determination to deactivate her casual record.

If SCS is willing to reconsider its position, Ms Drivilas is open to undertaking refresher Code of Conduct training. She hopes that SCS will revert from its position regarding deactivation, which will enable her to take steps to seek meaningful casual work at Marist College Eastwood under Ms Silvana Rossetti, Principal, or at any other SCS school.

• [44] On 5 December 2024, the Respondent responded to the 22 November 2024 letter. It stated, in part:

We appreciate the time taken by Ms Vicky Drivilas to present the additional detailed information to Sydney Catholic Schools (SCS). The Response provided on behalf of Ms Drivilas is detailed and it provides additional information we have had to consider.

In the circumstances, SCS has resolved to uphold the decision to deactivate Ms Drivilas' casual record. This is a very regrettable situation. Ms Drivilas may apply to reactivate her casual record two years from the date of this letter. Should she wish to do so, we would ask that she fully disclose this correspondence in her application, along with the details of any work she may perform in the interim, so that her circumstances may be reconsidered at that time.

I understand that this is not the outcome that was being sought, and wish Ms Drivilas well for the future.

• [45] The Applicant filed the Application with the Commission on 23 December 2024. The Respondent raised jurisdictional objections, arguing that the Applicant was not dismissed within the meaning of section 386 of the Act because she was not an employee at the relevant time and that the Application was made out of time. The Respondent contended that the dismissal, if any, occurred on 18 November 2024, and the Application was filed 14 days late.

Applicants Submissions on the No Dismissal Objection

• [46] The Applicant alleges that the Respondent took adverse action against her within the meaning of s.342 of the Act, contrary to the protections outlined in s.340 of the Act by terminating her employment on and from 5 December 2024.

• [47] While the Respondent asserts that the Applicant was not dismissed within the meaning of s.386 of the Act because, at the relevant time, she was not an employee of the Respondent, and merely had an activated casual employment record ('CER') from around 21 November 2023 thereby only entitling her to join a 'pool' of persons who were eligible to be offered employment at schools within the Respondent's diocese the Applicant submits that the work of teachers within Sydney Catholic Schools is regulated by the NSW and ACT Catholic Systemic Schools Enterprise Agreement 2023 (the Agreement). Clause 11.1 of the Agreement relevantly provides:

11.1 A Teacher will be employed as a full-time or part-time Teacher (including as a temporary full-time or part-time Teacher) or as a casual Teacher.

• [48] The Applicant submitted that there is no concept in the Agreement of any form of potential or pre-employee in a pool, as relied upon by the Respondent.

• [49] While it is clear that from 21 November 2023 until 5 December 2024, while the Applicant sought casual work with schools within the diocese, including her former school, she was not offered and did not perform any work or receive any payment those facts were not determinative of the matter and there are other factors that can point to the existence of an employment relationship.[1]

• [50] The Applicant submitted that the objective facts indicate that there was agreement between the parties to change what had been her permanent employment status with the Respondent to one of a casual status, and that impliedly, this change would replace her resignation.

Alternatively, the events disclose an agreement to enter a new employment contract between the parties, where the Applicant would be a casual rather than a full-time and permanent employee.

(a) The provision of a work email, particularly her former work email;

(b) The provision of a CER on 21 November 2023;

(c) The provision of an Employee identification number on 21 November 2023, particularly her former Employee identification number.

(d) The provision of work circulars to her, on 30 November and 14 December 2023;

(e) The provision of the 22 December 2023 email addressed to 'Dear Colleagues';

(f) The Respondent providing an employment reference check for the purpose of obtaining a rental property on 9 January 2024;

(g) The provision of automatically generated emails on 8 October 2024; including emails on 25 July 2024 and 3 October 2024 regarding her CER;

(h) The provision of the notice of representational rights from the Respondent ahead of enterprise bargaining on 12 November 2024, which was directed only to employees;

(i) The provision of a Show Cause notice, which is part of a disciplinary process that applies only to employees;

(j) The assessment of her conduct judged by reference to behaviour expected of 'employees of the SGS' and/or 'an SGS staff member as outlined in the Code' as it was in the Show Cause Letter; and

(k) The application of the Code of Conduct to her, which applies only to SCS staff, as defined.

• [51] The Applicant submitted the above factors disclosed that the Applicant was a casual employee of the Respondent and was regarded as such by the Respondent up until her general protections application was made on 23 December 2024, and that employment was terminated by the Respondent when it deactivated her CER.

• [52] The Applicant noted that in Argentier,[2] Deputy President Roberts DP held:

In Kelly v Melba Support Services Australia Ltd TIA Melba Support Services (2021) FWCFB 4845 a Full Bench of the Commission pointed out that the question of whether an employment relationship exists at any point in time is a question of fact. The determination of that question may be made more difficult in the case of casual employment. Irving has observed in relation to casual employees:

Ascertaining when the employment relationship of a casual worker commences can be perplexing. In some senses both zero hours casual and those engaged under an umbrella contract are in employment relationships. But does the employment commence once placed on the books, or only when an employee accepts an offer to work a particular shift, or only when work is performed? There is no single correct answer in all contexts.

Respondent's Submission on No Dismissal Objection

• [53] The Respondent submitted that to be dismissed under s.386(1)(a) of the Act, a person's 'employment' with his or her employer has to be terminated and terminated on the employer's initiative. For employment to be terminated it must have commenced in the first place, and it follows, must be in existence at the time it is said to have been terminated. Whether an employment relationship exists is a question of fact.

• [54] The Respondent submitted the central issue for the Commission to determine is whether a contract of employment was formed between the Applicant and the Respondent. There are four elements necessary to form a valid contract, namely: offer and acceptance, consideration, an intention to create legal relations and sufficient certainty of terms.

• [55] The Respondent's submission was that there was no casual employment contract formed between it and the Applicant and as such there was no employment relationship at the relevant time.

• [56] The Respondent submitted it only took certain isolated preliminary steps in preparation of the possibility of the Applicant being engaged as a casual employee. The Respondent never proceeded to engage the Applicant as a casual employee and an employment contract was never entered into. Among other things, there was never an intention to create legal relations, consideration or certainty of terms. As such, an employment relationship between the Respondent and Applicant was never formed.

• [57] In support of the submission that the activation of the CER was merely a preliminary step, the Respondent submitted there are a range of checks that a potential employer is required by law to undertake before an individual can be engaged as a teacher of children, including a valid working with children check (WWCC) and an active accreditation with the NSW Education Standards Authority. In her reply statement, however, the Applicant's unchallenged evidence was that she held a current WWCC, and an active accreditation with the NSW Education Standards Authority.

• [58] The Respondent submitted the activation of the Applicant's casual profile or CER is a preliminary step. It facilitates the possibility of the Applicant being engaged as a casual employee. The Applicant's submission that there was a change in her employment status from permanent to casual and that replaced her resignation seeks to fundamentally mischaracterise the factual and legal position. The Applicant's previous employment relationship with the Respondent was severed and came to an end by at least 6 August 2023. In those circumstances there cannot be a "change" in employment status from permanent to casual. Rather, the employment relationship would need to be initiated again by way of the formation of a new employment contract.

Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association_, may apply to the FWC for the FWC to deal with the dispute._

• [60] In order for the Commission to be able to deal with the dispute under s.368 of the Act it must determine that the Applicant has been dismissed within the meaning of s.365.[3] The Commission must conclude that the relevant dismissal has actually occurred as a matter of jurisdictional fact. It is not sufficient that the applicant merely alleges that they were dismissed. If there is a contest as to whether the alleged dismissal the subject of the application has occurred, this is an antecedent question which has to be determined before the powers to deal with the dispute conferred by s.368 can be exercised.

• [61] Section 386 of the Act sets out the circumstances in which an employee can be said to have been 'dismissed' for the purposes of s.365. That section provides:

(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_._

• [62] In order to be dismissed under s.386(1)(a), a person's 'employment' has to be terminated and terminated on the employer's initiative. For employment to be terminated it has to have commenced in the first place.

• [63] Employment contracts and employment relationships are related but distinct concepts. In Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (Personnel Contracting),[4] the High Court observed:[5]

In Commonwealth Bank of Australia v Barker, French CJ, Bell and Keane JJ said:

"The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment."

An employment relationship will not always be defined exclusively by a contract between the parties. Historically, the employment relationship was recognised and regulated by the law before the law of contract came to govern the relationship. An employment relationship, though principally based in contract, may be affected by statutory provisions and by awards made under statutes.

• [64] Another relevant factor in this matter is that the legal relationship between the Applicant and Respondent commenced on or about 21 November 2023 and ended on either 18 November or 5 December 2024. The legal test for determining whether a person was an employee was significantly altered on 26 August 2024.[6] The Act was amended on 26 August 2024 to essentially override High Court decisions that established by the majority of the High Court in Personnel Contracting and ZG Operations Australia Pty Ltd v Jamsek.[7] This was achieved by inserting a new s.15AA into the Act, as follows:

Determining the ordinary meanings of employee and employer

(1) For the purposes of this Act_, whether an individual is an_ employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.

(2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:

(a) the totality of the relationship between the individual and the person must be considered; and

(b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.

Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

• [65] The effect of s.15AA is to mandate consideration of the real substance, practical reality, and true nature of the relevant relationship, including by reference to how the contract was performed in practice, when determining if the person was an employee.

• [66] There is no doubt that the Applicant resigned from her full-time employment effective 6 August 2023. The Applicant's last day of work was 30 June 2023, and her employment officially ended on 6 August 2023 following a period of leave. On or about 7 August 2023, the Applicant lost access to her work email address. While on or about 21 November 2023, the Applicant decided she was ready to investigate returning to work with the Respondent, that was clearly in a casual capacity.

• [67] The Applicant does not claim continuous service as provided by the Act,[8] but rather submits that there was a "conversion" of her resignation into full-time or casual employment due to:

(i) The email of 21 November 2023, which states 'we have reactivated your casual employment record with Sydney Catholic Schools and you may now be engaged in casual work. Your employee ID number is [Redacted];

(ii) The Applicant having never been a casual employee beforehand, so the only reactivation could be in relation to her previous full-time record of employment; and

(iii) The particular employee ID number provided to the Applicant as being the same one the Applicant had prior to 6 August 2023, indicative of the continuation or re-establishment of an employment relationship between the parties.

• [68] I do not consider that the above factors relied upon by the Applicant support a "reactivation" of the Applicant's previous full-time employment in any form, and they could not retrospectively create the existence of an employment relationship that had ceased to exist. Those factors do, however, together with other factors, establish the existence of a casual employment relationship between the Applicant and the Respondent.

• [69] It was not in dispute that the Applicant had not completed any casual work with the Respondent and consequently had not received any salary. The performance of work and payment of salary would generally be relevant considerations in any determination as to the existence of an employment relationship. The absence of either could suggest that there was no such relationship.

• [70] In The Contract of Employment 2nd Ed. Irving observed:[9]

Ascertaining when the employment relationship of a casual worker commences can be perplexing. In some senses both a zero hours casual and those engaged under an umbrella contract are in employment relationships. But does the employment commence once placed on the books, or only when an employee accepts an offer to work a particular shift, or only when work is performed? There is no single correct answer in all contexts. Careful scrutiny of the terms of the contract, statute or industrial instrument regulating the engagement will reveal whether it is the formation of the contract, or the relationship, or the commencement of the performance of work that gives rise to the benefit or status in dispute. For example, a person engaged as a daily hire employee, whose employment ends at the conclusion of one shift and starts at the beginning of the next, may be an employee for the purposes of the FW Act during the lacuna because he or she is 'usually an employee' under s 13 of that Act.

• [71] The Applicant was engaged under a "zero hours" style of engagement where, while the parties agree that if the worker is engaged, he or she will be paid $X for the engagement, the agreement does not involve a promise to provide or perform work. However, all of the surrounding circumstances should be taken into account.

• [72] The terms of the Agreement in particular point to the existence of an employment relationship. As outlined above, the Applicant relied on Clause 11.1 of the Agreement, that provided:

11.1 A Teacher will be employed as a full-time or part-time Teacher (including as a temporary full-time or part-time Teacher) or as a casual Teacher.

• [73] I note further that the Agreement provides in Clause 4 Definitions, the following:

'Casual Teacher' means a Teacher engaged as a Casual Employee. A casual Teacher will not normally be employed for a period greater than 4 school term weeks for each engagement.

• [74] Consistent with the above identified Agreement terms, the requirements for WWCC and an active accreditation with the NSW Education Standards Authority, the Respondent provided on their website that all teachers must be registered to work before being engaged at any Sydney Catholic School.

• [75] By her email of 16 November 2023, the Applicant sought casual employment, and that offer was accepted by the Respondent when it activated, though it mistakenly wrote "reactivated", the Applicant's casual employment record/CER on 21 November 2023. The Respondent also reinstated the Applicant's former employee ID number and work email address.

• [76] Also on 21 November 2023, the Respondent reactivated the Applicant's casual employment record, reinstating her employee ID number and work email address. The emails confirming her reactivation read:

I am happy to confirm that we have reactivated your casual employment record with Sydney Catholic Schools and you may now be engaged in casual work. Your employee ID number is [redacted].

Case Description: To go from Permanent teaching into Casual teaching asap

This is to confirm that we have approved your re-registration.

• [77] The Applicant thereafter relied on instances of post-contractual conduct in circumstances where the terms of the contract were not reduced to writing to support the existence of an employment contract and relationship. The Full Court of the Federal Court of Australia in EFEX Group Pty Ltd v. Bennett[10] considered the inferences that might be drawn from post-contractual conduct in circumstances where the terms of the contract were not reduced to writing. The plurality in the case said:

In the absence of a written contract and no evidence of a particular conversation during which the contract was made, "evidence of the parties' conduct must necessarily be considered in order to draw inferences as to whether the meeting of minds necessary to create a contract has occurred and what obligations they have thereby undertaken": Personnel Contracting at [177] per Gordon J (Steward J agreeing), as summarised in Chiodo v Silk Contract Logistics [2023] FCA 1047 at [9]. 39 [67]

Put another way, in the absence of a written contract, the established principles of inferring a contract from the acts and conduct of parties (as well as in the absence of their words), come into play, and such conduct may be considered not only for the purpose of inferring whether a binding agreement had been reached at some point in time, but also for the purpose of identifying its necessary terms.

• [79] While some of the conduct relied on by the Applicant, such as group emails such as "Connect Newsletter: Christmas at the Cathedral is Coming + Family Event with Jason Evert", and "Connect Newsletter: Chaplains' advice for school leaves+ Don't miss Christmas at the Cathedral" was very general in nature, other conduct was more specifically indicative of the concluded casual agreement. In particular:

• (a) The provision on 12 November 2024, to the Applicant of a "Notice of Representational Rights: commencement of bargaining" (the NERR) to her work email address. The email contained a hyperlink to the Notice of Employee Representational Rights in relation to the commencement of bargaining for the proposed NSW and ACT Systemic Schools Enterprise Agreement. While the NERR was a preliminary step, it leads to a factual inquiry into the nature of the relationship between the putative usual employer and the putative usual employee.[11] The sending of an NERR to an employee is consistent with an employer assessing that the recipient is an employee.

(b) That the Applicant was dealt with pursuant to the Code of Conduct, whose scope was:

The Code applies to all SCS. In this policy staff means all SCS employees, members of religious orders engaged in schools, volunteers, trainees, interns, and committee members. This policy is also applicable to contractors and consultants.

• [80] It was common ground that the only group in that scope that could apply to the Applicant was as an SCS employee.

(c) The Show Cause Letter from Mr Leahy clearly described the Applicant as a staff member of the Respondent, referring variously to:

"... your casual status with Sydney Catholic Schools (SCS").

"...your communication... is not consistent with behaviour expected of employees of SCS."

"As outlined in the Code of Professional Conduct (the Code):

• not disparage, harass, bully or discriminate against colleagues, students, parents or community members not bring the reputation of Sydney Catholic Schools into disrepute

• use all forms of communication, including social media, responsibly and appropriately and in line with the Ethical Behaviour outlined in section 4 above maintain confidentiality and privacy where required.

I consider that both the frequency and content of your communications do not align with the behaviour expected of an SCS staff member as outlined in the Code."

• [81] At all material times from 21 November 2023, the Applicant was a casual employee of the Respondent.

• [82] The Respondent submitted that if the Applicant was found to be an employee, her employment ceased on 18 November 2024, when the Respondent provided a response to the Show Cause Letter and Show Cause Response.

• [83] The Applicant submitted that her employment ceased on 5 December 2024, upon receipt of a letter of that date.

• [84] It is well established that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[12] In Ayub v NSW Trains,[13] the Full Bench said:

"At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. [(1986) 60 ALJR 78] Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. [(1984) [1984] FCA 378; 5 FCR 447] The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd [(2010) 201 IR 64] as follows:

[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767- 768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential [2017] FWC 3396 3 Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99])."

• [85] The Letter of 18 November 2024 does not specify the time for the Applicant's termination to take effect. It provides "I have carefully considered the Response and have determined that her casual record will be deactivated", but does not provide a date for such deactivation, and as a result, cannot be regarded as a valid notice of termination. Accordingly, the dismissal date was 5 December 2024.

• [86] The Applicant filed the Application with the Commission on 23 December 2024. The Respondent raised jurisdictional objections, arguing that the Applicant was not dismissed within the meaning of section 386 of the Act because she was not an employee at the relevant time and that the Application was made out of time. The Respondent contended that the dismissal, if any, occurred on 18 November 2024, and the Application was filed 14 days late.

• [87] For completeness and proceeding on the assumption that I am wrong in my determination that the dismissal date was 5 December 2024 and not 18 November 2024, I will consider the parties submissions regarding whether time for filing the Application should be extended to 23 December 2023.

• [88] The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are 'exceptional circumstances'. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[14] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[15]

• [89] The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [90] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) any action taken by the person to dispute the dismissal;

(c) prejudice to the employer (including prejudice caused by the delay);

(e) fairness as between the person and other persons in a similar position.

• [91] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

• [92] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd stated at [30]:[16]

"Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances."

• [93] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd noted at [39]:[17]

"The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each."

• [94] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.

• [95] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.

• [96] The Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.

• [97] The Applicant submitted the following with respect to the reason for the delay:

I delayed making the Application because, on 22 November 2024, I requested a reconsideration of the Respondent's decision of 18 November 2024, and I was partially successful because on 5 December 2024, the Respondent issued a new decision and changed its position from I could never apply to work the Respondent again to I could reapply in two (2) years.

• [98] The Respondent submitted that engaging in correspondence was not an acceptable reason for delay and noted that the Applicant failed to file the Application between 5 and 9 December 2024, after receiving the final response.

• [99] I consider that the Applicant has established an acceptable explanation for the delay. The 18 December 2024 correspondence was somewhat equivocal, and the Applicant's representative promptly sought reconsideration. That a partially different result was achieved points to the reasonableness of the Applicant's conduct.

• [100] Accordingly, this factor weighs in the Applicant's favour.

• [101] This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application.

• [102] In all the circumstances, I find that the Applicant took prompt action with the Respondent to dispute the dismissal after it occurred, if in fact it occurred on 18 November 2024. Not only was the action taken, but the Applicant was partially successful in relation to the possibility of reengagement at a later time.

• [103] Accordingly, this factor weighs in the Applicant's favour.

• [104] The Respondent submits, and I accept, that this is a neutral consideration.

• [105] This is a general protections claim. In order to maintain such a claim, the Applicant must show that a dismissal as defined by the Act occurred.

• [106] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd stated at [14]:[18]

"It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues."

• [107] In the matter of Kornicki v Telstra-Network Technology Group[19] a predecessor of the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."[20]

• [108] I adopt this reasoning of the Full Bench of the former Commission in relation to the consideration of merits. I consider that this is a neutral factor.

(e) Fairness as between the person and other persons in a similar situation

• [109] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. However, cases of this kind will generally turn on their own facts.

• [110] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [111] As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any significant weight were the acceptable reason for the delay and the action taken to dispute the dismissal. Those factors both weighed in the Applicant's favour. None of the factors weigh against such a conclusion.

• [112] Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant and the Respondent, if I had found the matter was filed 14 days out of time as submitted by the Respondent I would have been satisfied that there were exceptional circumstances for such late filing.

• [113] As there were exceptional circumstances, I would have considered there was a basis for me to exercise my discretion to allow an extension of time, and I would have granted an extension of time under s.366(2).

• [114] The timeframe for lodging the application would have been extended to 23 December 2024.

• [115] For the foregoing reasons, the Respondent's objections to the Application are dismissed.

• [116] The matter will be relisted for a conference pursuant to s.368 of the Act on a date to be fixed.

Mr A Searle of Counsel, on behalf of the Applicant.

Ms R Gall of Counsel, on behalf of the Respondent.

[1] Sonia Argentier v City Perfume Retail Pty Ltd [2023] FWC 1819 (Argentier) at [31] per Roberts DP

[2] [2023] FWC 1819, at [31].

[3] Coles Supply Chain Pty Ltd v. Milford [2020] FCAFC 152; (2020) 279 FCR 591 and see Lipa Pharmaceuticals v Jarouche [2023] FWCFB 101.

[4] [2022] HCA 1.

[5] At [40] and [41] per Kiefel CJ, Keane and Edelman JJ, footnotes omitted.

[6] The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 amends the definition of "employee" under the Act. The new definition in s.15AA will expressly require consideration of how the contract is performed in practice. That in broad terms overrules the current High Court precedent on the issue.

[7] (2022) 96 ALJR 144; [2022] HCA 2.

[9] The Contract of Employment 2nd Ed, at [4.2].

[10] [2024] FCAFC 35, at [7] and [59].

[11] National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98; and S.181 of the Act.

[12] Burns v Aboriginal Legal Service of Western Australia (Inc) (Print T3496) at [24].

[13] [2016] FWCFB 5500 at [17].

[14] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[16] [2014] FWC 479.

[17] [2018] FWCFB 901.

[18] Unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000, Print T2421.

[19] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

Printed by authority of the Commonwealth Government Printer