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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application for relief in respect of termination of employment
David John Ogilvie
Warlukurlangu Artists Aboriginal Association Incorporated
DEPUTY PRESIDENT HAMPTON
ADELAIDE, 28 AUGUST 2002
Alleged unfair termination - Jurisdiction - Fixed term contract - Applicant not excluded.
 This matter arises in the context of an application pursuant to s 170CE(1) of the Workplace Relations Act 1996 (the Act) by Mr David John Ogilvie (the applicant). The respondent is the Warlukurlangu Artists Aboriginal Association Incorporated. The respondent has moved for the dismissal of the application for want of jurisdiction in accordance with s 170CEA of the Act. The basis of that action being an allegation that the applicant was engaged on a fixed term employment contract and is thereby excluded by virtue of s 170CC(1)(a) and regulation 30B(1)(a).
 The s 170CEA application was heard by me in Alice Springs on 19 August 2002 and an extempore decision given at that time. In so doing I indicated that I would subsequently issue written reasons for decision which I now do.
The basis of the s 170CEA application as argued by the respondent
 The respondent, who by leave was represented by Mr Nugent of counsel, argued that the basis of the applicant's employment was linked to ATSIC funding which was provided on an annual basis. The respondent, being an Aboriginal artists group based in the relatively isolated Yuendumu community, was said to be entirely dependant upon such funding and this had led the employer to engage the applicant on a fixed term contract basis of 12 months, renewable at its expiry.
 The written contract was said to have been entered into in July 2000 (exhibit R1) and subject to renewal and an agreed variation in mid 2001. As there was no further written contract between the parties, it was argued by the respondent that terms of the original contract, including its reference to "a set contract period, renewable after 12 months" continued to apply and characterised the contract as one for a fixed term. In addition, it was argued that the contract did not permit its termination for grounds other than those amounting to repudiation and as such it was a fixed term contract within the meaning of the Act and relevant regulations.
 Mr Nugent pointed out that the respondent was almost entirely dependent upon its paid employees (particularly the applicant who was its Manager) to develop and maintain appropriate employment records and it was therefore at some disadvantage in demonstrating its case.
The position as argued by the applicant
 The applicant, who was by leave represented by Mr Green of counsel, argued that the employment contract was not for a fixed term. The contract made no reference to the ATSIC funding and its actual term was so uncertain as to mean that it should not be considered to have been a contract for a fixed term. In that context, it was argued that the contract was signed in July 2000, however it followed a letter of offer dated 18 May 2000 and that was to be taken to be the commencement date of the contract. Further, neither document made reference to any link to ATSIC funding, nor established with any certainty, the alleged term of the contract.
 The applicant asserted that the contract was reviewed by the committee of management in May 2001 and that it continued beyond that time without any "further" fixed period being established. In addition, the applicant argued that he was dismissed on 12 July 2002, which was beyond any alleged 12 month extension. Further it was suggested that the approach of the committee at that time, which included E-mail exchanges with the committee of management (exhibit A1), was not consistent with the existence of a genuine fixed term contract.
 The applicant argued that in any event, the existence within the contract of the capacity to terminate the contract by notice or pay in lieu thereof, meant that it could not be described as being a fixed term contract for present purposes.
 Section 170CC of the Act provides relevantly as follows:
"(1) The regulations may exclude from the operation of specified provisions of this Division specified classes of employees included in any of the following classes:
(a) employees engaged under a contract of employment for a specified period of time or a specified task."
 Pursuant to s 170CC, regulation 30B(1)(a) provides that an excluded employee includes:
"(a) an employee engaged under a contract for a specified period of time".
 Neither party sought to lead sworn evidence in this matter and the respondent did not seek to challenge the applicant's assertions regarding the process adopted at the time that the contract was "reviewed" in May 2001. Accordingly, I am left to draw such inferences as reasonably arising from the limited facts before me, having regard to the commonsense of the situation.
 There is an onus upon the respondent to demonstrate the evidentiary basis of its jurisdictional objection or at least to substantiate its contentions in that regard (Egan v Botanic Gardens Management Services Pty Ltd Ross VP, Watson SDP and Holmes C, Print S4512, 28 March 2000). Whilst I acknowledge the difficulties faced by the respondent given the nature and location of the organisation, I must determine the jurisdictional objection based on material that is properly before me.
 The concept of a fixed term employment contract has been considered by the Commission in a number of authorities including by the Full Bench in Grycan v Table Tennis Australia Incorporated (Giudice J, Boulton J and Cribb C, Print R7452 23 July 1999), Trigar v La Trobe University (Giudice J, Acton SDP and Gay C, Print T2860 1 November 2000), and Pacific Rim Employment Pty Ltd v Lloyd and Clarke (Giudice J, Kaufman SDP and O'Connor C PR912882, 4 January 2002). Without overlooking the detail of those authorities, the following broad principles of potential application to this matter appear to arise:
¬ A specified period of time is a period of employment that has certainty as to its commencement and time of completion.
¬ A contract, which provides that after a specified period of time it may be reviewed and extended by consent, may still be a contract for a fixed period.
¬ Where a contract provides for termination during its life on grounds that are analogous to the common law right to terminate an agreement for misconduct or other breach, such may still be a contract for a fixed period.
¬ Where a contract provides a broad or unconditional right of termination during its term, the period of the contract is indeterminate and thus not for a specific period of time.
¬ The terms of the contract are to be objectively construed and in the absence of ambiguity their plain meaning is to be applied unless such would result in absurdity or clear injustice.
¬ A series of fixed term contracts may give rise to an understanding that the employment is in fact ongoing and not genuinely fixed term in nature.
¬ The whole of the contract is to be taken into account and provisions that are inconsistent with an intention to provide a fixed term (such as references of long service or entitlements beyond the stated period) may create ambiguity and need to be taken into account.
 In this case, it is agreed that at least for present purposes, the terms of the employment contract are those specified in the document admitted as exhibit R1. The following extracts appear to be most relevant to the issues before the Commission:
The title of the position is Manager.
The status of the position is full time.
The term of the position is for a set contract period, renewable after 12 months.
A full committee meeting must be held and approve the renewal of this contract and make any changes that may be deemed necessary subsequent to periodic staff reviews."
The employee will be expected to perform at a high level of efficiency in order to complete the directed duties.
The executive committee reserve the right to terminate the employment if the members feel the employee is not performing his/her duties satisfactorily."
The probationary appointment is effective from the date stated in the letter of offer.
A review of this agreement is due 12 months after the appointment of the employee.
Appointments may be terminated by 4 weeks notice in writing and such notice may be given by either party, or by payment or forfeiture of 4 weeks pay in lieu of notice as the case may be.
The employer reserves the right of summary dismissal in the case of misconduct, or if the employee is in breach of the terms of employment.
On termination of employment the employee shall deliver to the employer or its authorised representative, all records, accounts or other documents and property of the employer, and shall give to the employer all information as to its affairs which the employee possesses."
Variations to this agreement shall be in writing and by negotiated approval of both parties."
"Renewal of contract
This agreement shall be governed by, and in accordance, with the law for the time being in force in the Northern Territory."
 I note also that the contract provided an annual salary and made reference to annual and sick leave being available "each year" and included recognition of long service leave. None of these elements are particularly conclusive in terms of the intent of this contract but must be taken into account.
 In my view, there is considerable uncertainty as to the relevant status of the employment contract particularly by the time that the applicant was terminated. Even if the contract was originally intended to provide for a defined 12 month period, there is no material to support any suggestion that it was in fact extended for a further defined period. It is also probable that if any such "annual" renewal took place in May 2001, it had expired by the time that the applicant was dismissed. There are some contrary indications of intent within the written contract however the term of the contract is not unambiguously defined. To the extent that the conduct of the parties is relevant to the characterisation of this contract, it also appears that such was not consistent with the contract being treated as one of fixed duration that required specific renewal at a given time.
 In any event, I consider that the meaning of the provisions of the contract under the heading of "Tenure", when read as part of the contract as a whole, clearly reserve a broad right to the parties to terminate the contract during it term. This right operates by the giving of notice (or pay or forfeiture in lieu thereof) and may be utilised on any basis. This is in addition to the right to terminate based on a breach of the contract or misconduct that would be analogous to the common law rights. In my view, this broad right of termination means that the contract was in reality of indeterminate duration and not for a specified period.
Conclusions as to jurisdiction
 I am not persuaded that the contract under which the applicant was employed should be characterised as being one for a specified period. The applicant is not therefore excluded by virtue of s 170CC and regulation 30B(1)(a). In the absence of any other jurisdictional barrier, and none have been suggested, I find that the Commission has jurisdiction to hear and determine the s 170CE application.
 As the matter has not been subject to conciliation pursuant to s 170CF of the Act, the file will need to be assigned for such to now be undertaken.
BY THE COMMISSION:
G Green of counsel for the applicant with D Ogilvie (the applicant via video link).
J Nugent of counsel for the respondent.
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