Amendments to the Fair Work Act 2009 (Cth) (FW Act) limiting the use of fixed term and maximum term contracts prohibit employers from providing employees with successive term contracts, unless an exception applies.
The FW Act provides that if an employer enters into a prohibited term contract, then provisions which provide for the termination of the contract on the end date will be of no effect. This means that there will be an ongoing employment contract.
In Ong v Victorian Energy Safety Commission & Anor [2025] FWC 847, the Fair Work Commission (FWC) was required to determine a jurisdictional objection to a general protections dismissal application. The employer submitted that the employee’s employment ended on the end date of the last maximum term contract as a result of an effluxion of time, and as such, the employee was not dismissed.
The employee was employed for the employer under maximum term contracts as follows:
- from 5 April 2023 to 6 March 2024 in the position of People Services Business Partner (title later changed to HR Business Partner);
- from 29 February 2024 to 30 June 2024 in the position of HR Business Partner; and
- from 1 July 2024 to 31 December 2024 in the position of Senior HR Partner.
The employee argued that the employer breached section 333E of the FW Act as she was employed under successive contracts where:
- there was substantial continuity in the employment relationship; and
- she was performing the same, or substantially similar work under each of the contracts – the employee submitted that the positions were of both mid-level and that the position descriptions and purpose were similar, with any differences being “on paper” only.
The employee submitted that by the operation of section 333G of the FW Act, her employment contract was ongoing and that the employer terminated her employment.
The employer denied that there was a breach of the FW Act.
The employer’s submissions that there was no substantial continuity in the employment relationship across the employment contracts was not accepted by the FWC. The FWC noted that there was no break in service between the contracts and the contracts were sequential.
As to whether the employee performed the same or similar work under the contracts, the employer provided evidence of the difference in the purpose, duties and seniority between the HR Business Partner and Senior HR Partner. This included that:
- HR Business Partner role was a HR coordination and processing role.
The role required the completion of tasks in accordance with guidelines and procedures, was performed under direct supervision and had no strategic responsibilities or direct reports. The role was also described to be a processing and coordination role, with the duties more administrative in nature.
- The Senior HR Business role was a managerial role.
This role was to provide strategic HR advice, lead projects and was required to deal with complex employment matters. This role also had management responsibility of two direct reports.
In addition, the employer also provided evidence that the two roles had difference classifications under the applicable enterprise agreements and that the two roles had been in the organisational structure since 2019.
After reviewing the similarities and differences between the two positions, the FWC found that the evidence showed that the work performed under the last contract was a more senior role with leadership and management responsibilities.
Having made this finding, the FWC was not satisfied that the work performed by the employee in the last contract as a Senior HR Business Partner was the same or substantially the same work as the HR Business Partner in the first two contracts. Accordingly, the FWC was not satisfied the employer breached s333E of the FW Act.
The FWC upheld the employer’s jurisdictional objection, finding that the employee was not dismissed and that the employee was employed under a contract for a specified period of time which ended on the end date of the contract.
Lessons for employers
Employers are reminded about the limitations on the use of fixed and maximum term contracts.
The FW Act also prohibits an employer from doing any of the following to avoid the limitations:
- terminating an employee’s employment for a period;
- delaying re-engaging an employee for a period;
- not re-engaging an employee and instead engaging another person to perform the same, or substantially similar, work as the employee had performed;
- changing the nature of the work or tasks the employee is required to perform; and
- otherwise altering an employment relationship.
As demonstrated in this case, if an employee has been employed under consecutive term contracts, the employer must be able to have sufficient evidence to satisfy that the roles are different and that the work is not the same or substantially the same in order not to contravene the consecutive term contract limitation.
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