Employment contracts; fixed term and outer limits

“The legal differences between and the implications of the distinction between fixed term employment contracts and “outer limits” employment contracts are a reasonably controversial issue in employment law. Here are some observations about the subject and the differences between those and an ordinary contract of employment (with, say, 4 weeks’ notice of termination) are discussed in this passage from a recent Fair Work Commission unfair dismissal case.


Section 386(2)(a)

[315] I am not satisfied that Ms Murphy’s semester 1, 2020 contract was for a specified period of time; rather, it was an outer-limits contract. The contract contained the following condition:

“Notice of 4 weeks (fixed-term replacement employees on parental leave), 5 weeks (all other professional employees) or 4 months (academic employees) will be provided by USQ to terminate employment.”

[316] Clearly, if the Respondent wished to finish the contract early, it could seek to do so in reliance on the above term. Where the contract commenced on 19 January 2020, the Respondent could have, for example, terminated on 1 February 2020 and paid to Ms Murphy four months’ notice. If it had sought to finish Ms Murphy up earlier than 19 June 2020, but less than four months from 19 June 2020, it would have been required to have paid to Ms Murphy the balance of the contract term.

[317] I determine that Ms Murphy’s semester 1, 2020 contract was an outer-limit contract, providing the Respondent with an unqualified right to terminate within the term. The contract was therefore not a contract of employment for a specified period, and the exclusion in s.386(2)(a) does not apply.

Consideration of s.386(1)(a)

[318] I am bound to give proper consideration of the majority decision in Navitas. I will do so by breaking up each of the elements in [75] of the majority decision, applying the facts in Ms Murphy’s circumstances:

(1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.

[319] The employment relationship existed between Ms Murphy and the Respondent from January 2017. Ms Murphy was issued with two contracts in 2017 covering semesters 1 and 2; the contracts were back-to-back. Following that there was then a gap between 1 December 2017 and 22 January 2018. Ms Murphy was released, and on her evidence, not required. She continued in her other employment during this time.

[320] Ms Murphy was not formally offered a new contract until 19 January 2018, just days before the employment on 22 January 2018 commenced. The offer was made by Ms Jane Farmer, Executive Director (Human Resources). If that offer had not been made, presumably, Ms Murphy’s employment relationship with the Respondent would have ended on 1 December 2017 when her second contract expired.

[321] The employment relationship between Ms Murphy and the Respondent has been dependent upon a number of various issues including;

(a) Ms Murphy’s willingness to work for the Respondent having regard to her other employment, family responsibilities and happiness in the role;

(b) Ms Murphy’s FTE availability;

(c) the Respondent’s staffing needs having regard to Ms Murphy’s FTE availability; and

(d) whether Ms Murphy was required outside of semesters.

[322] I consider the employment relationship was one of equal power relationship; Ms Murphy made herself available as it suited her, and the Respondent offered a number of contracts as it suited it.

[323] I consider, however, the Respondent was very clear to Ms Murphy each time it offered to her a contract that the contract was not renewable. Stronger terms were in place particularly in the last contract, stating that there is no expectation of continuity of employment unless stated otherwise, in writing by the Executive Director, Human Resources. That is, nobody within the Respondent had any authority to offer continuation of the employment but that person. Ms Murphy’s evidence is that she did not read that condition within the contract.

(2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

[324] Considering the employment relationship that existed between Ms Murphy and the Respondent, and particularly in light of the express terms stated to Ms Murphy within each contract issued to her, in my view, Ms Murphy indeed knew that the employment relationship ended each time a contract expired. Ms Murphy’s actions in her email of 17 April 2020 made it clear that she no longer wished to work full-time beyond the contract which bound her. She was home-schooling her child at the height of the COVID-19 lockdown restrictions. Home-schooling had been indicated to be in place for five weeks at that time. Nobody knew as of 17 April 2020 how much longer that might extend. Ms Murphy informed the Respondent unequivocally that she was unable to continue working full time in semester 2 for the Respondent. She was, in my view, drawing a line in the sand and announcing her intentions, as she was entitled to do.

[325] Where in her evidence she has stated that she was intending to negotiate with Professor Neville to work 0.5 FTE or less, she did not state so in writing. Her email could have said so, but it didn’t. Ms Murphy’s evidence was particularly confusing when I questioned her on her home-schooling activity in term 2, 2020. Ms Murphy sent her son to school from week 6, term 2, which is within semester 1, 2020. Ms Murphy’s notification to Professor Neville was for semester 2, 2020, which is from July 2020.

[326] I accept that there were meetings and discussions which occurred throughout May 2020 in an effort to see if Ms Murphy’s availability and the Respondent’s needs aligned, but there was ultimately no success in those attempts. I accept that the Respondent made the decision that it would prefer to have Ms Joy cover Ms Gleeson’s absence in semester 2, 2020. Ms Joy was employed in early 2020 pursuant to a 12-month contract. The Respondent was fulfilling its responsibility to Ms Joy to provide appropriate work to her.

[327] In my considered view, the employment relationship between Ms Murphy and the Respondent did not extend beyond 19 June 2020 because of Ms Murphy announcement that she would not be able to work full-time in semester 2, 2020. I am satisfied that in Professor Neville’s mind, the employment relationship ended at the expiration of the last contract, and I support that conclusion.

(3) In Mahony v White the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer – that is, as a result of some decision or act on the part of the employer that brought about that outcome.

[328] If Ms Murphy’s reasoning is to be accepted, the employment relationship would continue for the second part of 2020 even if she were available to work only 0.3FTE or 0.4FTE or some other figure equal to or less than 0.5FTE. She would, effectively, decide how much time she could offer to the Respondent and the Respondent would be obliged to accept or negotiate with her as to how much time she could accommodate around her other obligations.

[329] With respect, it is not for Ms Murphy to determine how many hours of work the Respondent should provide to her if it does not suit the Respondent’s needs. The Respondent might have been able to consider Ms Murphy’s needs, and I am certain that it did give thorough consideration to Ms Murphy’s needs throughout May 2020, but ultimately, it determined that it would adopt an alternative course.

[330] I am not satisfied that the Respondent’s decision to adopt the alternative course – having an existing employee Ms Joy perform the work she is contracted to do and accept Ms Murphy’s announcement that she is unable to work full time in semester 2, 2020 – constitutes termination of the employment relationship at the initiative of the Respondent.

(4) Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer. Further, in those circumstances a decision by the employer not to offer any further contract of employment will not be relevant to the question of whether there was a termination of employment at the initiative of the employment. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date (Griffin/Fisher). However if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time (as, for example, in D’Lima), the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

[331] The Respondent’s communication within each of the contracts issued to Ms Murphy and accepted by her could not be any clearer; the contract of employment is not renewable. In later contracts, only one authorised person within the Respondent could make such an offer to her. Disappointingly for Ms Murphy, she did not read such provision.

(5) In some cases it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative:

(a) The time-limited contract itself may be vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The categories potentially relevant in an employment context include the following:

  • the employee entered into the contract as a result of misrepresentation or misleading conduct by the employer;
  • the employee entered into the contract as a result of a serious mistake about its contents or subject matter;
  • there has been unconscionable conduct associated with the making of the contract, which may relevantly include that the employer took advantage of a disability affecting the employee such as lack of education, lack of information, lack of independent advice or illiteracy;
  • the employment contract was entered into by the employee under duress or coercion (which might include the types of coercion prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of the employer;
  • the employee lacked the legal capacity to make the contract; or
  • the contract was a sham in the sense that it was not intended by the parties to give legal effect to its apparent terms or in the broader sense dealt with in Pt 3-1 Div 6 of the FW Act.

If any of the above applies there will be no legally effective time-limit on the employment (Fisher).

(b) The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission’s unfair dismissal jurisdiction 82). Whether the employment was constituted by successive short term contracts or the use of time-limited contracts was appropriate in the relevant field of employment may be some of the considerations relevant to an examination of the employer’s purpose for entering into such contracts (D’Lima/Fisher).

(c) The contract may have been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally, such that its ostensible time limit no longer applies (Fisher).

(d) The employment contract may not be limited to the terms of a written document and may, for example, be one of a series of standard-form contracts which operated for administrative convenience and did not represent the reality or the totality of the terms of the employment relationship (Fisher/D’Lima).

(e) During the term of the employment relationship the employer may have engaged in conduct or made representations (for example, representing to the employee that the employment will continue subject to conduct and performance notwithstanding a contractual time limit on the employment) which provide a proper legal foundation to prevent the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated (Fisher).

(f) The terms of the contract time-limiting the employment may be inconsistent with the terms of an award or enterprise agreement given effect by the FW Act which prohibit or regulate fixed-term employment, in which case the terms of the award or agreement will prevail over the contract (Fisher).

[332] I am not satisfied that Ms Murphy entered into the contract as a result of misrepresentation or misleading conduct by the Respondent. It was known that for a 12-month contract to be in place, the role would need to be advertised. It seems that there wasn’t sufficient time to do so, and in any event, it would have opened Ms Murphy up to a competitive process. On the Respondent’s evidence, Ms Murphy might have been exposed given her lack of particular qualifications.

[333] Ms Murphy was, quite sensibly, a good fit for a six-month role. She had satisfactorily performed the role for around three years, was well regarded, and had a strong supporter in Ms Rigg. Ms Murphy enthusiastically entered into the contract and she was familiar with it.

[334] Ms Murphy would have known that contracts are offered and accepted. She had some time away from the Respondent in late 2017, and awaited her new contract in January 2018. She wasn’t asked about her availability until mid-January 2018. For all the Respondent knew, Ms Murphy might not have been available in mid-January 2018 to commence a few days later when that particular contract was issued. Ms Murphy’s evidence is that the discussions didn’t occur until then, which demonstrates a detachment from the Respondent which is necessary to give weight to.

[335] Regarding the semester 1, 2020 contract, while it appears that it was an administrative error to nominate the reason being backfill teaching for Ms Gleeson, this did not affect Ms Murphy’s decision to accept the role. There was no serious mistake about its contents or subject matter.

[336] Ms Murphy has no disability. There has not been any unconscionable conduct associated with the making of the contract.

[337] Ms Murphy was not under any duress or coercion to enter into the contract.

[338] Ms Murphy did not lack the legal capacity to make the contract.

[339] The contract was not a sham. Where Ms Rigg might have been advocating for two six-month contracts for Ms Murphy to cover the two semesters in 2020, on Ms Rigg’s evidence, in her discussions with Associate Professor Terry, it was a suggestion but not one that Associate Professor Terry committed the Respondent to. It seemed to make perfect sense for Ms Rigg, and I appreciate her loyalty and decisiveness in trying to ensure what she considers to be the best staff in the right positions, but it wasn’t what took effect. I am satisfied that Associate Professor Terry didn’t over-promise, nor did she reach beyond her delegated authority.

[340] Having satisfied myself that none of the above relevant considerations in Navitas apply, it cannot be said that there is no legally effective time-limit on the employment.

[341] I am not satisfied that the time-limited employment contract was illegal or contrary to public policy. It is not, for example a contract with a cleaner who must learn regularly whether their employment is permitted to continue by the issuing of rolling contracts. Having regard to the field of employment being academic teaching in a tertiary institution, I consider it appropriate for the Respondent to have entered into the time-limiting contract in the manner in which it did. It was suitable for the circumstances.

[342] In particular, it was suitable given the knowledge between the parties, and including Ms Rigg and Ms Murphy, that a tougher standard applied for contracts of 12 months’ duration. The contract issued to Ms Murphy meant that she did not need to be tested against the competition, nor was there any delay. Ms Murphy was earmarked for the role.

[343] I do not accept that the contract had been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally such that its ostensible time limit no longer applies. Much has been made of Ms Rigg’s discussions with both Professor Neville and Associate Professor Terry, and then her subsequent discussions with Ms Murphy. I understand that Ms Rigg was the conduit between the parties. Professor Neville’s role is far too large a role for her to have regular direct contact with staff. Ms Rigg was a person who wanted Ms Murphy in the role and advocated for her. For Ms Rigg, it was a seamless fit.

[344] I do consider though, and without any disrespect to Ms Rigg, she appears to have overstepped her levels of authority, at times. For example, at [98], it was unnecessary for Ms Rigg to provide information to Ms Murphy beyond her first contract, even if it is Ms Rigg’s evidence that Ms Murphy was in attendance at the meeting with Professor Duff. I consider it was beyond her authority to do so, especially when the Respondent is an organisation that requires flexibility, and Ms Rigg then made representations on behalf of Dr Rogers. Particularly so when Ms Murphy had just signed a formal contract stating it was not renewable. Further, at [105], Ms Rigg continued to make Ms Murphy promises, it seems, without authority to do so.

[345] It was not Ms Rigg’s place to suggest to Ms Murphy that where there was no time in late 2019 to advertise for a 12-month contract, she would be issued with two six-month contracts. It was an incorrect statement to make, particularly as the action of doing so skirts around the Respondent’s policy. I accept there have been occasions when the Respondent has sought to work around the policy, but Ms Rigg does not act for the Respondent on each and every issue or occasion, and it is for more senior decision makers to determine how a person is employed.

[346] Where Ms Rigg may have considered at around 20 May 2020 that Ms Murphy was pretty much guaranteed a further contract, and Ms Murphy’s name was attached to courses in the WAMS, it was ultimately Professor Neville’s decision to make as to the School’s staffing requirements. It would have been helpful for there to have been greater clarity and dialogue directly between Professor Neville and Ms Murphy beyond 17 April 2020 if Professor Neville was still considering Ms Murphy for a role in semester 2, 2020.

[347] There appears to have been a surprising turn of events in late May 2020. Professor Neville’s evidence is that upon Ms Rigg going on extended leave, others indicated their willingness to teach within the School. This, of course, opened up greater choice for Professor Neville. This was, it seems, unexpected.

[348] It appears that throughout the years of engagement, where Ms Rigg has acted as messenger between the Head of School and Ms Murphy, Ms Rigg may have inadvertently over-promised to Ms Murphy. If she did, it was without the knowledge of Professor Neville or Associate Professor Terry when she was acting in the role. I consider it to have been inadvertent, and not malicious or for any improper purpose. Ms Rigg, understandably, was keen to have skilled people to place in the teaching role of the courses the School offered.

[349] I do not accept that having Ms Murphy’s name in various columns of the WAMS, suggesting she would be teaching particular courses in semester 2, 2020 constitutes an appropriate change to the employment relationship. Ms Murphy had given formal notification that she was not available full-time. If the Respondent had, even as of 20 May 2020 been considering placing Ms Murphy into teaching positions in semester 2, 2020 of a 0.5FTE or less, and Ms Murphy said, “No, I have communicated my unavailability”, simply, the Respondent would have been left with a dilemma. It could not have insisted that Ms Murphy uphold her promise that she would be available up to 0.5FTE. There was no obligation from either party. No party was required to do or say anything. Whatever was said beyond 17 April 2020 did not affect the fact that the contract would come to an end on 19 June 2020, and with it the employment relationship.

[350] Much was made of Ms Murphy’s additional 196.8 hours that needed to be recovered due to her being over-worked in earlier years. On the face of the calculations, it appears to me that Ms Murphy was afforded time off in her work allocation within semester 1, 2020. I do not agree that it was expressed by the Respondent to be carried over across two semesters. Ms Murphy regularly took half days off on Fridays. If she ended up working additional hours because of the necessary response to the COVID-19 pandemic, and can demonstrate so, that is a matter for a court’s consideration. I accept that the workload for semester 1, 2020 largely took into account the hours in the workload model, and the hours were not allocated across all of 2020.

[351] I do not consider that the contracts entered into by Ms Murphy were for administrative convenience. They were considered appointments, with due and proper regard for the circumstances. I am satisfied that the contracts entered into between Ms Murphy and the Respondent represented the reality of the terms of the employment relationship.

[352] Despite whatever occurred after Ms Murphy’s announcement on 17 April 2020, I am not satisfied that the Respondent engaged in conduct or made representations which provide a proper legal foundation to prevent the Respondent from relying upon the terms of the contract as a means by which the employment relationship has been terminated.

[353] While I am of the view that Ms Murphy assumed that the Respondent was going to employ her in semester 2, 2020, on account of Ms Gleeson’s absence, it was not a complete certainty. If Ms Gleeson had cancelled her study leave, she would be entitled to her substantive role. There was precedent for Ms Murphy to be displaced when the substantive employee resumed her role. If Ms Gleeson had decided, for her own reasons not to partake in study leave, there would be no semester 2, 2020 role for Ms Murphy to perform. Nothing was guaranteed.

[354] This is particularly evidenced at [139(d)] where Ms Murphy, understandably upset with the proposed work allocation said that she would not sign another contract under those circumstances. She knew, therefore, that there are dynamics at play, and she had the ability to undertake an action if something objectionable was put to her. She would not, it seems, offer her services to the Respondent in a manner that she considered the Respondent expected.

[355] Where Ms Murphy submitted that the Respondent was not free to withdraw from the employment that was assumed by Ms Murphy for semester 2, 2020, this is incorrect. If Ms Murphy made such an assumption, it was not on solid grounds. If she had truly thought that was the case, she would have been exposed to a 12-month contract and recruitment that goes with such.

[356] I do not accept that the Respondent knew that Ms Murphy was abstaining from taking other employment on account of her assumption or expectation that she was to be employed by the Respondent in semester 2, 2020. Professor Neville certainly did not know this, and if Associate Professor Terry did know of alternative employment, I’m certain she did not comprehend this at the time for it to be any purposeful act.

[357] I do not accept Ms Murphy’s argument that she acted on the basis of continued employment into semester 2, 2020. If she had done so, on her proposed scenario, she would have been required, pursuant to 34.4.1 of the Enterprise Agreement to give four months’ notice of termination of employment. She did not do so, instead informing Professor Neville that she was unable to work full-time in semester 2, 2020. If she considered that she was employed to work full-time in semester 2, 2020, she would have been repudiating her year-long agreement, or seeking the employer agree to changes. She did not seek for the employer to agree to changes to accommodate her personal circumstances.

[358] Relevant to the terms of the Enterprise Agreement, Professor Neville’s evidence is that when Ms Murphy’s contract in February 2019 was re-issued on account of Ms Gleeson’s early return, specific reasons were stated in the justification section of the request form. The box ticked was “Specific Task/Project”, and it was reasoned that although Ms Gleeson had returned early, and Ms Murphy had approximately one year to run on her contract, Ms Murphy’s services were needed to support the teaching of the midwifery program.

[359] The alternative would have been, of course, to finish Ms Murphy up early on Ms Gleeson’s return. This was decided not to be the best course of action, and Ms Murphy was provided the alternative contract. It appears that there is no contention that this was not lawful.

[360] On the evidence before the Commission, when the last contract was prepared, Associate Professor Terry received it in electronic form and approved it, even though it stated it was for a replacement employee (Ms Gleeson), and this was not strictly correct. Associate Professor Terry had not approved other forms in electronic format and didn’t see how it was presented. She stated that it was an administrative error.

[361] In any event, everybody wished for Ms Murphy to be appointed, including her biggest advocate, Ms Rigg. Nobody had any objection at the time that Ms Murphy was not being appointed to replace Ms Gleeson; rather, the needs of the School required Ms Murphy to teach certain courses. Professor Neville’s evidence at [32(c)] is that Ms Gleeson was focussed on academic work in semester 1, 2020, diverting her away from teaching responsibilities. Accordingly, Professor Neville does not consider it to have been an error as such and considers that it was appropriate to have Ms Murphy’s contract as a “replacement employee”.

[362] Whether Ms Murphy was a replacement employee pursuant to the Enterprise Agreement, or she was employed for a specific task or project is a relevant consideration.

[363] The relevant clause of the Enterprise Agreement is produced below:

“ Specific Task or Project

A specific task or project is a definable work activity with a start date and which is expected to be completed within an anticipated timeframe. Without limiting the generality of that circumstance, a specific task or project may include a period of employment provided for from identifiable funding external to the employer, not being funding that is part of an operating grant from government or funding comprised of payments of fees made by, or on behalf of, students.”

[364] I consider the terms, “without limiting the generality of that circumstance” to be a very broad allowance. If Professor Neville thought it appropriate and lawful to, in February 2019, appoint Ms Murphy on such a basis, and move the budgetary cost from the School’s salaries budget to the School’s casual contracts budget, and this is the effect of the last contract in semester 1, 2020, then I am comfortable with it being defined as a specific task or project with a definable work activity with a start date and expected to be completed within an anticipated timeframe. This is particularly so when regard is had for the Tasmanian Department of Health obligations. I accept Professor Neville’s evidence relevant to the potential fluctuations of students across semesters and the requirement to, where possible, employ permanent employees, but have some flexibility with fixed-term employees. I prefer this evidence over Ms Rigg’s evidence on account of Professor Neville having greater oversight of the School.

[365] If I am incorrect about this, it is a matter for consideration of a court as to whether there has been a breach of the Enterprise Agreement. Arguably, if it is demonstrated to have been a breach with the issuance of the semester 1, 2020 contract, it might also be in 2019 when Ms Murphy’s two-year contract was cut short, and ways and means were found to provide to her the work promised, but under a different head. If Ms Murphy was found to be a replacement employee on account of Ms Gleeson’s return (but diversion from teaching to academic work), there would be no breach of the Enterprise Agreement.

[366] Further, if I am incorrect about the appropriateness of a “replacement employee” description applying to Ms Murphy’s last contract, I am not satisfied that it would provide conversion under the Enterprise Agreement to continuing employment pursuant to clause 13.2:

“13.2 Continuing Employment

Continuing employment is employment entered into for an indefinite period subject to the termination, change and redundancy provisions of this Agreement.”

[367] I do not accept that Ms Murphy and the Respondent entered into employment for an indefinite period. Further, if it is the fall-back position, and they did, Ms Murphy gave notice of the termination of the employment by her email of 14 April 2020.


[368] In light of the above, I find that the employment relationship was terminated by reason of the agreement between the parties and there was no termination at the initiative of the employer. I also find that Ms Murphy’s last contract had an end date of 19 June 2020 and her employment ended when that outer-limit contract reached its end date.

[369] For these reasons Ms Murphy was not dismissed. Therefore, she is not protected from unfair dismissal. The Commission does not have jurisdiction to deal with her application and it follows that the application is dismissed. An Order to this effect will be issued in conjunction with this decision.”

Murphy v University of Southern Queensland (2021) FWC 1800 delivered 1 April 2021 per Hunt C