Western Australian Industrial Relations Commission

Clause of industrial agreement must be read as a whole

The Full Bench has unanimously dismissed an appeal against a decision of the Public Service Arbitrator that found that a vascular surgeon employed by East Metropolitan Health Service was an ongoing employee, despite the industrial agreement providing that appointments will be for a maximum term.

The appellant argued that the duration of the respondent's employment is successive 5-year terms as found in the industrial agreements. Both parties accepted that the terms of the industrial agreements are paramount and prevail over terms of an employment contract, unless there is a superior term to the contrary. The appellant argued that there was no superior term in the respondent's contract of employment that would overrule the industrial agreements.

Smith AP noted that the rules of construction require that the words of a contract must be understood in their context and that rules must be read as a whole. Smith AP found that the appellant's construction of cl20(1)(a) of the 1999 industrial agreement only had regard to some words and not the whole clause. When read correctly the clause applies to 5-year contracts and allows for an exception which is met by the respondent's contract of employment.

The hallmark of a fixed term contact is that it expires on a specified day and there is no right or entitlement of ongoing employment. Smith AP determined that the 1997 contract and 2000 terms did not contain an express term by which the contract of employment expires without either party giving notice and was therefore at common law a contract of employment of ongoing duration.

It was common ground that after 2000, the respondent did not apply for reappointment to any position, nor was reappointment considered by the appellant until February 2016. On the facts of the case,

Kenner SC determined that after 2005 the parties dealt with one another on the basis that the respondent was employed on an ongoing basis.

Matthews C concurred and found that it was impossible to draw any inference other than that upon expiry of the contract of employment in 2005, the respondent continued to be employed on a contract of indefinite duration.

The decision can be read here.

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