DISPUTE RE UNION MEMBER'S EMPLOYMENT STATUS WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2018 WAIRC 00329 CORAM :PUBLIC SERVICE ARBITRATOR Commissioner T Emmanuel HEARD : Tuesday, 20 March 2018, Wednesday, 21 March 2018, Tuesday, 10 April 2018 and Monday, 23 April 2018 DELIVERED : Wednesday, 30 May 2018 FILE NO. : PSACR 16 OF 2017 BETWEEN : Australian Medical Association (WA) Incorporated Applicant AND East Metropolitan Health Service Respondent CatchWords : Mode of employment – Ongoing or maximum term employment - Interaction between industrial agreement and contract of employment – Effect of s 114 on the contract of employment – Whether employment was on a series of maximum or fixed term contracts – Appointed by operation of law Legislation : Industrial Relations Act 1979 (WA) s 41(4), s 83, s 114, s 114(1) Result : Declaration and order issued Representation: Applicant : Ms J Auerbach (as agent) Respondent : Mr D Anderson (of counsel) and Ms J Vincent (of counsel) Cases referred to in reasons: Ansett Transport Industries (Operations) Proprietary Limited v Wardley (1980) 142 CLR 237 Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 Barnett v Territory Office Insurance [2011] FCA 968; (2011) 196 FCR 116 Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 Carr v Blade Repairs Australia Pty Ltd (No 2) [2010] FCA 688; 197 IR 307 Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; 149 CLR 337 Commonwealth Bank of Australia v Barker [2014] HCA 32, (2014) 253 CLR 169 Dadey v Edith Cowan University (1996) 70 IR 295 Quickenden v Commissioner, Australian Industrial Relations Commission (2001) 109 FCR 243 Re Mahmoud v Ispahani [1921] 2 KB 716 Shop, Distributive and Allied Employees’ Association v Karellas Investments Pty Ltd (No 2) [2007] FCA 1425, (2007) 166 IR 51 The Chief Executive Officer Department of Agriculture and Food v John Martin Wall [2011] WAIRC 00263; [2011] 91 WAIG 443 The St Cecilia’s College School Board v Carmelina Grigson [2006] WAIRC 05293; (2006) 86 WAIG 3146 === REASONS FOR DECISION === Dr Sieunarine has been employed by East Metropolitan Health Service (EMHS) and its predecessors as a vascular surgeon at Royal Perth Hospital since January 1997. In 2016 Dr Sieunarine was told his contract of employment was due to expire on 20 January 2017 and no further contract would be offered. EMHS later told Dr Sieunarine his contract would end on 17 November 2017. This is a dispute about whether Dr Sieunarine is a permanent employee, in the sense of his employment being ongoing, or whether he was employed on a series of four consecutive five-year maximum term contracts, the last of which EMHS says expired on 17 November 2017. The parties were unable to resolve the matter through conciliation and it was referred for hearing and determination. The Australian Medical Association (AMA) says Dr Sieunarine was appointed in 1997 and 2000 as a permanent employee and there is no basis on which to find that Dr Sieunarine was offered, and accepted, a contract for a maximum term ending in November 2017. The AMA asks that I declare that Dr Sieunarine is a permanent employee and order EMHS to do all things necessary so that Dr Sieunarine’s employment records reflect his status as a permanent employee. EMHS relies on the appointment clauses in the various industrial agreements that have applied since 1997. They broadly provide that all appointments will be on five-year maximum term contracts unless the parties reach a written agreement to the contrary. EMHS says it did not reach a written agreement to the contrary with Dr Sieunarine and, to the extent that I find Dr Sieunarine was appointed on a permanent basis at common law, I must find that the industrial agreements’ appointment clauses prevail over any term to the contrary at common law. It argues any purported appointment of Dr Sieunarine on a permanent basis is ‘null and void’ in accordance with s 114 of the Industrial Relations Act 1979 (WA) (IR Act). EMHS says as a matter of law Dr Sieunarine’s appointment in November 1997 was for a five-year maximum term contract and he has since been reappointed on a series of three consecutive five-year maximum term contracts. It asks that I declare that Dr Sieunarine’s contract of employment is a five-year maximum term contract, which expired on 17 November 2017. What must I decide? I must decide whether Dr Sieunarine was an ongoing or maximum term employee as at 6 July 2017, the date the matter was referred for hearing. To do that, I will need to answer the following questions: Was Dr Sieunarine employed on an ongoing or maximum term basis in November 1997? Did the parties enter into a new contract in November 2000? Was Dr Sieunarine employed on a series of five-year maximum term contracts? If Dr Sieunarine was employed on an ongoing basis, do the industrial agreements’ appointment clauses ‘override’ Dr Sieunarine’s ongoing employment contract? Language used At the hearing and in their written submissions, the parties used the following words interchangeably, intending them to have the same meaning and effect: ‘fixed term’ and ‘maximum term’; ‘permanent’, ‘ongoing’ and ‘indefinite’ employment; and ‘appointment’ and ‘engagement’. Although the industrial agreements refer to ‘fixed term’ appointments, the parties agree that what is actually contemplated in the industrial agreements are maximum term appointments, because either party can terminate employment by giving three months’ notice. In this matter, the relevant distinction is between employment that is for a maximum term and employment that is ongoing until one of the parties gives notice of termination. In these reasons, a reference to EMHS is also a reference to its predecessors where relevant. Industrial agreements The parties agree that the following industrial agreements applied to Dr Sieunarine at the relevant times: the Western Australian Government Health Industry Medical Officers and Medical Practitioners Agreement 1996 (1996 Industrial Agreement); the Metropolitan Health Service Board AMA Medical Practitioners Agreement 1999 (1999 Industrial Agreement); the Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2002 (2002 Industrial Agreement); the Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2004 (2004 Industrial Agreement); the Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2007 (2007 Industrial Agreement); the Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2011 (2011 Industrial Agreement); and the Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2013 (2013 Industrial Agreement). Circumstances leading up to the dispute By letter dated 18 November 1997, EMHS offered Dr Sieunarine an appointment as a full-time vascular surgeon with the Department of Vascular Surgery at Royal Perth Hospital (1997 Letter): Dear Mr. Sieunarine On behalf of the Board of Management, I am pleased to offer you an appointment as Vascular Surgeon (fulltime) in the Department of Vascular Surgery. Employment will be under the terms and conditions of the WA Government Health Industry Medical Officers & Medical Practitioners Agreement, 1996, a copy of which is enclosed. Alternatively you may wish to be employed under the WA Government Health Industry & AMA Medical Practitioners Collective Workplace Agreement, 1996 and information regarding this may be obtained from the Manager, Department of Human Resources. The annual salary range under the Medical Practitioners Agreement is Levels 15 to 22 and the amount paid will depend on the private practice option chosen, as follows: Arrangement A $107,123 - $129,878 Arrangement B $92,348 - $111,964 Arrangement C $85,699 - $103, 903 Arrangement D $73,878 - $89,572 The starting level will be Level 15 with an increment to Level 16 on 20th January, 1998. The date of commencement of employment in this position will be 17th November, 1997. The appointment will be subject to a probationary period of six months, and will embrace service as necessary at both the Wellington Street and Shenton Park campuses. Confirmation of appointment will take place at the end of the probationary period, subject to satisfactory service. The appointment can be terminated by three months’ notice on either side. All appointees to the Hospital staff are expected to abide by the Standing Orders of the Board of Management. Copies of these are available in Clinical Services or the department. Further, in addition to normal clinical duties, all appointees to the Clinical Staff are required to undertake teaching duties to both graduates and undergraduates and to make a commitment to ongoing education and quality assurance. The WA Government provides indemnity for consultants for that portion of time and for those services rendered to public patients only who are treated in the course of their employment by Royal Perth Hospital unless they have elected to be employed under Arrangement A of the rights of private practice in which case the indemnity covers both public and private patients. The indemnity does not cover doctors who provide services as employees of an incorporated medical practice. Medical fitness is also a necessary condition of employment. For this purpose, a medical certificate (form attached) as to the state of your general health is required at an early date. When taking up this appointment, it will be necessary for you to attend at the office of the Director of Clinical Services for completion of documentation. At that time you will be required to produce evidence of current registration with the Medical Board of Western Australia. You will need a Medicare provider number for Royal Perth Hospital and details of this should also be provided at that time. Please accept my personal congratulations on this offer of appointment. I would appreciate early advice of your acceptance. Yours sincerely, J. V. BURNS Acting Chief Executive Officer On its face, the 1997 Letter relevantly provides: a start date; no maximum term; a probationary period; either party may terminate the appointment by giving three months’ notice of termination; and employment will be under the terms and conditions of the relevant industrial agreement. Dr Sieunarine’s evidence is that he accepted EMHS’ offer of employment and started to work on that basis. On 25 November 1997, an administrative assistant completed a ‘change advice form’ for Dr Sieunarine. That document shows a change of status, effective from 17 November 1997, namely ‘new status: permanent’. The parties disagree about whether Dr Sieunarine was offered a new contract (and therefore a new appointment) for four sessions per week or whether his existing contract was merely varied as a result of a letter dated 13 November 2000 (2000 Letter) which states: Dear Mr Sieunarine I am pleased to offer you an appointment as Consultant (4 sessions per week) in the Department of Vascular Surgery. Employment will be under the terms and conditions of the Metropolitan Health Service Board – AMA Senior Medical Practitioners Collective Agreement 1999. A Workplace Agreement is also available. The annual salary range under the Agreement is between Levels 15 to 23, i.e. $219.98 - $277.94 per session. 7% non-contributory superannuation, and a loading for private rooms is also payable. The starting level will be Level 18 ($246.92 per session) with an annual increment to Level 19 in January 2001. The date of commencement of employment in this position will be by arrangement with the Director of Clinical Services and you should contact him as soon as possible to arrange this. The appointment will be subject to a probationary period of six months, and will embrace service as necessary at both the Wellington Street and Shenton Park campuses. Confirmation of appointment will take place at the end of the probationary period, subject to satisfactory service. The appointment can be terminated by three months’ notice on either side. All appointees are expected to abide by the Hospital’s Standing Orders. Copies of these are available in Clinical Services or the department. Further, in addition to normal clinical duties, all appointees to the Clinical Staff are required to undertake teaching duties to both graduates and undergraduates and to make a commitment to ongoing education and quality assurance. The WA Government provides indemnity for consultants for that portion of time and for those services rendered to public patients only who are treated in the course of their employment by Royal Perth Hospital unless they are fulltime, and have elected to be employed under Arrangement A of the rights of private practice in which case the indemnity covers both public and private patients. The indemnity does not cover doctors who provide services as employees of an incorporated medical practice. Medical fitness is also a necessary condition of employment. For this purpose, a medical certificate (form attached) as to the state of your general health is required at an early date. As you are probably aware, those who have worked in a hospital outside Western Australia during the twelve months prior to appointment are required to produce evidence of negative methicillin-resistant staphylococcus aureus (MRSA) swabs. Swabs must be taken at Royal Perth Hospital at least three days prior to starting work. To comply with the Hospital’s Tuberculosis Policy, a mantoux test may be required. In addition, you will be subject to a criminal record check as detailed in the information provided to you when you applied for the position. Please note that previous criminal conviction or pending charges will not necessarily preclude employment. When taking up this appointment, it will be necessary for you to attend at the office of the Director of Clinical Services for completion of documentation. At that time you will be required to produce evidence of current registration with the Medical Board of Western Australia. You will need a Medicare provider number for Royal Perth Hospital and details of this should also be provided at that time. Please accept my personal congratulations on this offer of appointment. I would appreciate early advice of your acceptance. Yours sincerely Dr Gareth J Goodier Chief Executive Like the 1997 Letter, on its face the 2000 Letter relevantly provides: a start date; no maximum term; a probationary period; either party may terminate the appointment by giving three months’ notice of termination; and employment will be under the terms and conditions of the relevant industrial agreement. In the statement of agreed facts, the parties refer to the 2000 Letter as ‘offer[ing] an appointment’ and ‘the contract offer’, however at the hearing EMHS submitted that the 2000 Letter constituted a mere variation. Dr Sieunarine has continued to work at Royal Perth Hospital since his appointment in 1997. Since then, he and EMHS have agreed to a number of contract variations, dated: 1 February 2001; 31 August 2001; 9 February 2005; 10 September 2009; and 14 October 2009. Those five contract variations were agreed and confirmed in writing. Three of the confirmation letters include words to the effect that other than the particular variation, ‘your contract remains unchanged’ and the other two confirmation letters say ‘the terms and conditions of your contract remain as set out in the [2000 Letter].’ A letter on Dr Sieunarine’s personnel file dated 20 March 2003 provides: In accordance with the terms of the Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2002, and earlier agreements, your five year contract of employment at Royal Perth Hospital was due for renewal on 17/11/2002. I write to advise that the hospital will be renewing your contract for a further five years, from 19/11/2002 to 17/11/2007. The terms and conditions set out in your original letter of appointment, and any subsequent contract variations remain unchanged. Dr Sieunarine gave evidence that he does not remember receiving this letter and no other reappointment letters were sent to him. Evidence The gist of Dr Sieunarine’s evidence was that in 1997 he applied for the position of full-time vascular surgeon. He was one of two applicants interviewed by a panel. Dr Sieunarine was offered and accepted the position. He received a letter of appointment from the CEO. Dr Sieunarine’s evidence was that he had no discussion with anyone about the possibility of his appointment being for a maximum term or that there may be a need to reapply or go through a process to extend his appointment beyond five years. After six months Dr Sieunarine received verbal and written confirmation that he had successfully completed his six-month probation period. Dr Sieunarine said he negotiated the creation of a new vascular surgeon position on a sessional basis because of the resources available to the vascular surgery department. Dr Sieunarine applied for that position, went through a process and was appointed to the position in November 2000, when he received the 2000 Letter. Dr Sieunarine said this was a new appointment and the sessions from his 1997 appointment were absorbed ‘back into the system’. Again, at no time was there any mention of his appointment being for a maximum term. In 2001 Dr Sieunarine was appointed Head of Department for three years. He was reappointed Head of Department in 2004 for another three years plus a short extension to 2007. Dr Sieunarine gave evidence that his 2000 contract was varied several times in relation to the number of sessions he worked. Those variations were agreed and confirmed in writing, with no reference to any maximum term of his contract. He also said he had sporadic performance appraisals during the course of his employment, and there was never any discussion about maximum terms or his contract coming up for renewal. Dr Sieunarine gave evidence that the first time EMHS raised with him that he was on a five-year contract was when he received a letter dated 22 February 2016. It said ‘I refer to your contract of appointment which specified that your contract ceases on 20 January 2017. A decision will be made in the coming months as to whether a further offer of employment will be made to you and you will be advised accordingly.’ Prior to that letter, at no time since 1997 had Dr Sieunarine ever had a discussion about being employed, or received anything in writing from EMHS to the effect that he was employed, on a maximum term contract. He always understood that he had been appointed on an ongoing basis. After receiving the 22 February 2016 letter, Dr Sieunarine contacted the AMA for advice. I find Dr Sieunarine to be a reliable witness. His evidence was not materially disturbed in cross-examination. I accept Dr Sieunarine’s evidence. EMHS summoned Dr Beresford to give evidence at the hearing. Dr Beresford was the Director of Clinical Services at Royal Perth Hospital at the time Dr Sieunarine was appointed. However, EMHS asked that the summons be set aside because it became apparent to EMHS shortly before the hearing that Dr Beresford, who is in his 80s, has no recollection of the circumstances surrounding Dr Sieunarine’s appointment and his memory is such that he cannot assist. I do not draw any Jones v Dunkel inference in relation to Dr Beresford. The AMA tendered various documents that EMHS objects to on the grounds of relevance and hearsay. On their face, generally those documents appear to suggest that Dr Sieunarine was not, in fact, reappointed on a series of maximum term contracts. I agree with EMHS that most of those documents have very limited probative value. In any event, I do not understand EMHS’ case to be that Dr Sieunarine was, in fact, appointed on a series of maximum term contracts. I understand EMHS’ case to be that by operation of law, Dr Sieunarine was appointed on a series of maximum term contracts. Was Dr Sieunarine employed on an ongoing or maximum term basis in November 1997? Refuting EMHS’ argument that the 1997 Letter is ‘merely [a recitation] of the terms contained in the applicable industrial instrument’, the AMA says the 1997 Letter was intended by Dr Sieunarine and EMHS to evidence their contractual relations, and is necessary because: it is not possible for all terms and conditions in the industrial agreements to apply indiscriminately and simultaneously to Dr Sieunarine’s employment given that some of their terms apply to the exclusion of others (for example, part-time and full-time employment); and plainly the appointment letters contained terms about matters that are not prescribed in the relevant industrial agreement, and that are of a contractual nature (for example, that ‘Medical fitness is…a necessary condition of employment’ and ‘when taking up this appointment, it will be necessary for you to attend at the office…for completion of documentation’). The AMA says this is consistent with the well-established principle that awards and industrial agreements operate to lay down minimum conditions of employment. It is not necessary for a contract of employment to provide for matters already covered by industrial instruments, because there is no need to convert those rights and obligations to contractual rights and obligations: Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at (424). The AMA says the 1997 Letter amounts to a written contract of employment between Dr Sieunarine and EMHS. It stipulates a number of significant terms and conditions, including probationary period, start date, starting level, payment options available, insurance, medical fitness, documents required and notice of termination of the contract. It is silent on any end date, which is consistent with an ongoing appointment. The AMA says the Arbitrator should focus on the words used in the 1997 Letter to ascertain ‘what a reasonable person would understand by the language in which the parties have expressed their agreement.’ If there is obvious ambiguity, the Arbitrator may look at what the parties have said or done before making the contract, and have regard to the factual matrix. The AMA also argues that while the employment contract should be construed practically, any ambiguities in a written contract prepared by an employer should be resolved in favour of the employee: Carr v Blade Repairs Australia Pty Ltd (No 2) [2010] FCA 688; 197 IR 307 at [32], [45]. The AMA says the three-month notice provision in the 1997 Letter must be read in the context of the letter as a whole. This means reading the three-month notice provision with the two paragraphs before it which deal with start date and confirmation of the appointment after successful completion of the probationary period. Read in the context of the letter as a whole, the AMA says the only reasonable meaning that can be attributed to ‘[t]he appointment can be terminated by three months’ notice on either side’ is that it ‘represents the express term dealing with the way by which the appointment may be brought to an end.’ The AMA says there is otherwise no need to incorporate a contractual term in relation to notice of termination because the parties already have an express agreement about notice of termination. There is also no need to imply any term in the way contended by EMHS at [50]. It says ‘[t]he terms of the contract are clear, sufficient, unambiguous, and well understood in the industrial arena. Any reasonable person considering the contract would understand it to be continuing until such time as either party gives the prescribed notice.’ The AMA argues the only reasonable finding open to the Arbitrator is that the 1997 Letter evidences the parties’ agreement for the employment to be an ongoing basis terminable by giving three months’ notice. The AMA says prior to the 1996 Industrial Agreement, consultants were regularly employed on a permanent basis. EMHS and Dr Sieunarine never discussed that Dr Sieunarine’s appointment would be temporary. If EMHS intended to appoint Dr Sieunarine on a temporary basis, it should have discussed that with him and the contract should have reflected such an agreement between the parties. Though the AMA says there is no ambiguity, it says if I find ambiguity exists, I can look to the factual matrix. It says this is evidenced through a number of documents which were on Dr Sieunarine’s personnel file and are accordingly admissible as business records that are ‘mutually known or notorious objective facts’: Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; 149 CLR 337 at (352). The AMA says the factual matrix comprises: the common knowledge of how senior practitioners were to be engaged after having fully qualified as specialists of a particular craft group; the way Dr Sieunarine’s earlier locum appointments were ‘fully documented with a fixed duration’ and did not replicate any notice provisions from the relevant industrial agreement; reference in an internal memorandum dated 5 May 1997 from Dr Khangure to Dr Beresford on Dr Sieunarine’s personnel file to ‘[m]y understanding is that Mr Sieunarine will almost certainly end up as a permanent appointment after his tenure as a locum has been completed’; the administrative form that confirmed Dr Sieunarine’s appointment as a locum was ‘temporary’; and the ‘change advice form’ in [15] confirming Dr Sieunarine’s status changed to ‘permanent’. The AMA says Dr Sieunarine understood at the time of his appointment that his appointment would be ongoing unless he engaged in serious misconduct or posed a serious risk to patients. The AMA submits that EMHS’ conduct after Dr Sieunarine’s appointment in November 1997 indicates that EMHS treated Dr Sieunarine as though he were a permanent employee. For example: after Dr Sieunarine completed his probationary period, his appointment was confirmed with no mention or discussion of his appointment being temporary; Dr Sieunarine had regular performance appraisals and received annual increments without discussions about his employment being temporary or the need for his contract to be renewed beyond a maximum term; in support of Dr Sieunarine’s application for a home loan, Royal Perth Hospital provided a letter confirming Dr Sieunarine’s employment without reference to any end date for his appointment; in an email dated 28 January 2009, EMHS’ Senior Administrative Assistant (Medical) sent an email request to grant Dr Sieunarine clinical privileges at Sir Charles Gardiner Hospital. Her email states ‘I confirm that Mr Sieunarine’s substantive appointment at RPH is permanent’; and Dr Sieunarine continued to work for and be paid by EMHS without any subsequent discussions or agreements about contract renewals, even though a number of discussions were had and agreements were reached about contract variations (see [19]), all of which were documented appropriately. At the hearing, EMHS submitted that the contract needs a term in relation to duration and the law will imply one where the parties have not agreed one, whereas in its supplementary submissions EMHS says instead that mode of employment is not an essential element of a contract of employment. EMHS says a term that specifies a mode of employment is ‘an entirely different species’ to a term dealing with circumstances in which employment can be terminated, for example by the giving of notice. It argues the 1997 Letter deals with notice only and there is no express term in relation to mode. To be an express term, the parties needed to have turned their minds to the mode of Dr Sieunarine’s employment and have reached an agreement. EMHS says the only finding available to the Arbitrator is that the parties simply did not turn their minds to mode, because there is no evidence that: the parties reached any written agreement as to mode (in that Dr Sieunarine was not expressly engaged on, for example, a ‘permanent’ or ‘maximum term’ basis); or the parties reached a verbal agreement as to mode. Dr Sieunarine’s evidence was clear – the parties did not discuss an end date or whether Dr Sieunarine was engaged on a permanent or maximum term basis. EMHS says mere omission or silence without more is insufficient to establish that Dr Sieunarine was employed on an ongoing or maximum term basis. Dr Sieunarine’s subjective intentions or expectations are not relevant, nor are the other documents that the AMA says bear upon the contractual relationship between the parties. In the event that the Arbitrator finds that termination and mode are synonymous, EMHS says the term in the 1997 Letter that provides for three months’ notice does not have contractual effect. EMHS says that term is not a contractual term and the 1997 Letter is not a contractual document, in that it was not mutually intended by the parties to have legal effect, because: the 1997 Letter is incomplete and references the 1996 Industrial Agreement, which would govern the terms and conditions of Dr Sieunarine’s employment; the 1997 Letter provides some of the important terms that would later govern the relationship between the employee, including annual salary, a six-month probation period and a three-month notice period. Apart from the salary, these mirror the terms in the 1996 Industrial Agreement; and it follows that where EMHS breaches one of these terms, the only remedy available to Dr Sieunarine is a claim for breach of the 1996 Industrial Agreement with the Industrial Magistrate’s Court. The terms by themselves have no contractual effect whatsoever. Consequently, EMHS says there is no express contractual term as to mode. Further, EMHS argues the industrial agreements (including the appointment clauses) applied to Dr Sieunarine by virtue of s 41(4) of the IR Act. Those industrial agreements require five-year maximum term appointments. Therefore by automatic operation of the appointment clauses in the industrial agreements, Dr Sieunarine was employed pursuant to a series of four five-year contracts of employment. If the Arbitrator finds that the parties did not expressly agree about the mode of Dr Sieunarine’s employment, EMHS says the industrial agreements applied by force of the IR Act and by stipulating the mode of employment, left no room for the implication of a term of permanency either by fact or law. EMHS argues the onus is on the AMA to establish that a term of permanency could be implied by law or fact into the contract of employment. It cites the observations of French CJ, Bell and Keane JJ in Commonwealth Bank of Australia v Barker [2014] HCA 32, (2014) 253 CLR 169 saying that: ¶1 An implication in law may have evolved from repeated implications in fact… that the ‘more general considerations’ informing implications in law are not so remote from those considerations which support implications in fact as to be at large. They fall within the limiting criterion of ‘necessity’… The requirement that a term implied in fact be necessary ‘to give business ¶2 efficacy’ to the contract in which it is implied can be regarded as a specific application of the criterion of necessity. [28] It says a term implied by law or fact may be excluded by: an express term that evidences a clear intention to the contrary; or a statutory provision or provision of an industrial agreement. EMHS says the search is for ‘an expression of contrary intent’, however described. Whether the appointment clauses exclude the implication of a term of permanency depends on whether such a term was ‘necessary’ (by law) or ‘necessary to give business efficacy to the contract’ (by fact). The question to be asked is whether the subject matter dealt with by the industrial instrument and the proposed implied term is the same (Subject Matter Question). If it is, then the industrial agreement covers the field and there is no gap to be filled or no room for the proposed term to be implied. If the subject matter is not the same, there may be room for implication of the proposed term, if it is necessary by law or fact. EMHS says the Subject Matter Question is the only one to be asked. However, if the Arbitrator finds that the Subject Matter Question is not the only question that must be asked, then if the subject matter is the same, a second question should be asked: are the clause in the industrial instrument and the proposed implied term inconsistent? EMHS says it is a question of construction whether the parties objectively intended the clauses in the industrial agreement to be comprehensive or exhaustive, such that the proposed implied term would be inconsistent with them. EMHS argues that the subject matter is the same because the appointment clauses and the proposed implied term of permanency both deal with duration of employment. There is no gap to be filled. A term of permanency is not necessary to make the contract effective. Further, EMHS says the appointment clauses in the industrial agreements and the proposed implied term of permanency are inconsistent. This is because the industrial agreements applied to Dr Sieunarine, the appointment clauses are obligatory in nature and require EMHS to engage Dr Sieunarine on a maximum term basis and they do not prescribe a minimum fixed term. The clauses are in absolute terms. EMHS adds for completeness that any argument for implied permanency by fact fails because, due to the appointment clauses in the industrial agreements, it could not be said that implication of a term of permanency would have been accepted by the contracting parties as a matter so obvious as to ‘go without saying’. Consideration I do not accept EMHS’ argument that the 1997 Letter was incomplete. Reference in a contract to an industrial agreement is common. It does not mean the 1997 Letter was incomplete. EMHS says in its further submissions that the essential elements to form a contract of employment are the identity of the parties, the position, commencement date and remuneration. The 1997 Letter has those elements. Further, as EMHS conceded, it is not necessary for an employment contract to expressly or impliedly deal with mode. I do not accept that the parties did not mutually intend the 1997 Letter to have legal effect. On the contrary, I think an employer and an employee would reasonably expect that a written offer of employment that sets out the matters outlined at [13], drafted in the way that this letter has been, that an employee accepts, would have legal effect. Neil I and Chin D, authors of the Modern Contract of Employment (2nd Ed, 2017), state: ‘[t]he fundamental question, whatever the circumstances of the parties, is whether in the situation in which they were, did their words and conduct objectively assessed, evince an intention that they intended to assume legally binding contractual obligations to each other?’ [3.71]. On its face and objectively evident from a plain reading, the 1997 Letter was intended, upon acceptance, to lead to a concluded contract. It was a written offer of employment and one Dr Sieunarine accepted. At the hearing EMHS said ‘so in essence we’re saying there’s a written contract or at least an agreement, evidenced in writing, in 1997’. The parties agree that the terms of the industrial agreement are not automatically incorporated into the contract. EMHS does not argue that the terms of the industrial agreement were incorporated into Dr Sieunarine’s contract of employment. An express term of Dr Sieunarine’s contract was that employment could be terminated by either of the parties giving three months’ notice. There is no evidence that the parties even contemplated, let alone discussed and agreed, that Dr Sieunarine’s employment would be for a maximum term. Reading the 1997 Letter as a whole, consistent with an orthodox approach to contractual interpretation, I find the parties have agreed to something quite other than a five-year maximum term contract. Mode of employment and notice of termination are not necessarily synonymous. However, objectively considering the circumstances of this matter, I find a reasonable person would have understood the parties to have agreed that the duration of the contract will be for as long as it takes for one of the parties to give three months’ notice of termination. In effect, they have agreed that the contract will be ongoing until notice is given. There is no ambiguity. There is no room to imply a term because there is no gap to be filled. I do not accept EMHS’ submission that an industrial instrument will always prevail over a contract of employment to the extent of inconsistency. In this case, it is the effect of s 114 of the IR Act that must be considered, which I deal with from [101] – [108]. The very notion of a maximum term contract does not fit with the facts of this case. By its nature, a maximum term contract comes to an end, not because one party terminates it, but in accordance with what the parties to the contract have agreed. Here, EMHS and Dr Sieunarine did not agree to the contract being for a maximum term. Consistent with the reasoning of Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Limited at (420), an industrial agreement creates statutory rights that can be enforced under s 83 of the IR Act, but the IR Act and industrial agreement do not create contractual rights. As Brennan CJ, Dawson and Toohey JJ (quoting from Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435, 465) state, ‘the fact that a statute prohibits the doing of an act under penalty does not show that the act cannot be done.’ That an employer appointed an employee on an ongoing basis, perhaps contrary to an industrial agreement, does not mean that employee was appointed on a five-year maximum term. I find Dr Sieunarine was employed in 1997 on an ongoing basis. Did the parties enter into a new contract in November 2000? The AMA says Dr Sieunarine entered into a new contract in November 2000, while EMHS says the contract was merely varied. This issue is significant for a number of reasons, including because, as EMHS acknowledged at the hearing, on its argument if there was a new contract in November 2000 then the latest maximum term contract began in November 2015 (rather than 2012) and ends in November 2020 (rather than 2017). Dr Sieunarine gave evidence that the 2000 Letter was the result of him having participated in a competitive selection process. The AMA tendered the advertisement for the role and Dr Sieunarine’s written application for it, both documents being relevant and admissible. Dr Sieunarine said: EXAMINATION BY MS AUERBACH … I went through the same process again, um, had a slight – or a committee meeting, application, had a discussion, they went out of the room and a day or two later I got told that I had the position. Okay. And did you accept this appointment?---Um, yes, I - I started working four sessions a week. Okay. And what happened to your 1997 appointment?---I - well, I presume they absorbed the sessions back into the system to use for other sessional knowledge - - - Did you continue to work under your 1997 terms?---No, I was working under this new appointment. Okay. And with this new appointment that you were given did you have any discussions whatsoever about a particular term of the appointment?---Ah, similarly to the 1997, there was no discussion at all. There was no mention of a five-year contract and I can tell you, these - the - I know they said that they have given this workplace agreement thing to read, ah, but these documents are quite large. I mean, I must confess I have never, ever read any of those documents in detail. Um, to - to read the content of those documents, ah - all I wanted to do was do the job, stay out of trouble, ah, make sure I didn't cause any, um, concerns that would cause me to get dismissed because that's the only - um, only method I thought I would actually leave the health system. Have you since - since this appointment, have you had - any other appointments ever been discussed with you?---No, and they have continued that appointment… Dr Sieunarine said he accepted the offer set out in the 2000 Letter. Notwithstanding that it was an agreed fact that ‘[b]y letter dated 13 November 2000, Dr Sieunarine was offered an appointment as a consultant vascular surgeon at RPH for four sessions per week’ and that the 2000 Letter was a ‘contract offer’, EMHS says the parties did not enter into a new contract in November 2000. Rather they agreed to vary the contract by changing the number of sessions Dr Sieunarine worked. EMHS suggests the 2000 Letter was created in error and the result of poor record keeping. Consideration I find Dr Sieunarine’s contract was not merely varied in November 2000. Rather, he was appointed at that time following a competitive selection process. This was quite unlike the number of variations which were confirmed in writing and note that in all other respects the contract remains unchanged. The 2000 Letter is a written offer of employment which Dr Sieunarine accepted. I find the parties entered into a new contract in November 2000 that is evidenced in writing. The 2000 Letter was essentially the same as the 1997 Letter and I apply the reasoning from [58] to [67] in relation to it. I find that when Dr Sieunarine accepted the new contract in November 2000, he was employed on an ongoing basis. Was Dr Sieunarine employed on a series of five-year maximum term contracts? Dr Sieunarine’s evidence is that he was never employed on a maximum term contract, let alone a series of five-year maximum term contracts. As set out from [31] to [42], the gist of the AMA’s argument is that Dr Sieunarine was not employed on a series of five-year maximum term contracts, in fact or at law. The AMA says if EMHS had intended for either the 1997 or 2000 appointment to be for a maximum term, EMHS should have confirmed either: the 2000 contract was in force only for the remainder of Dr Sieunarine’s original appointment from 1997 to 2002; or the 2000 contract was for a period of five years in accordance with the 1999 Industrial Agreement. It says the lack of any agreed end date is tantamount to written confirmation that the parties agreed to the appointment being ongoing. The AMA says there is no evidence of Dr Sieunarine being reappointed every five years. A contract offer cannot be accepted unless the employee has knowledge of it and appointments cannot occur without the parties in some way turning their minds to it. The AMA says the only evidence before the Public Service Arbitrator is that the 1997 appointment ended when it was replaced with the 2000 appointment. That Dr Sieunarine continued to work for EMHS from 2000 until 2017 without any discussions about contract renewal, in circumstances where the parties turned their minds to and documented several contract variations, head of department appointments and performance appraisals, and EMHS continued to pay Dr Sieunarine ‘is clear evidence of an ongoing open-ended employment relationship, which did not require the parties to turn their minds to the need for any subsequent appointments’. The AMA called Ms Longley to give evidence about EMHS’ payroll system. Ms Longley gave evidence that the letter ‘S’ under status on the system means ‘substantive’. It shows that an employee is permanent because he or she is given a start date but no end date which ‘can be termed as an open-ended contract’. Ms Longley said the letter ‘T’ under status means ‘temporary’, which shows an employee is employed on a fixed term. The system records put to Ms Longley in relation to Dr Sieunarine show status as ‘substantive’ before 1 January 2011 and ‘temporary’ from 1 January to 20 January 2017. However in cross-examination Ms Longley gave evidence that a permanent employee could be held against a substantive position or a temporary position. Equally, a fixed term employee could be held against a substantive position or a temporary position. Her evidence in cross-examination was that it is not possible to tell from the payroll system if an employee is employed on permanent or fixed term basis. EMHS did not lead any evidence about this issue or any other issue. Consideration Ms Longley’s evidence does not assist the AMA. It leads me to conclude that whether the payroll system’s status shows the letter ‘S’ or ‘T’ sheds little light on whether Dr Sieunarine was employed on a permanent or maximum term basis. That said, I have no difficulty finding on the evidence that, as a matter of fact, Dr Sieunarine was not employed on a series of five-year maximum term contracts. I accept Dr Sieunarine’s evidence and find that he was appointed in 1997 and again in 2000 on an ongoing basis. At no stage did the parties agree that Dr Sieunarine’s appointment would be for a maximum of five years. EMHS has not put any evidence before me that contradicts this finding. However, I must consider whether, as a matter of law, Dr Sieunarine was employed on a series of five-year maximum term contracts. If Dr Sieunarine was employed on an ongoing basis, do the industrial agreements’ appointment clauses ‘override’ Dr Sieunarine’s ongoing employment contract? The AMA says the industrial agreements that apply to Dr Sieunarine throughout the course of his employment do no more than ‘underpin’ the employment. While terms and conditions may be prescribed in awards or industrial agreements, they do not determine the contractual relationship between the parties. The provisions of the 1996 (and presumably 1999) Industrial Agreements are minimum conditions only. While an employer cannot contract below those conditions, they can agree to more favourable ones. The AMA argues ‘[a]s a general principle, an enterprise agreement will prevail over a contract unless the contract is more beneficial to the employee’: Shop, Distributive and Allied Employees’ Association v Karellas Investments Pty Ltd (No 2) [2007] FCA 1425, (2007) 166 IR 51 at [36]. The AMA says the appointment clauses ‘provide nothing more than a prima facie right to a five-year contract unless the parties agree to vary this term to a shorter or longer period. It is not synonymous with a prescriptive and non-negotiable term or condition that is automatically applied’. The AMA argues that, in any event, since Dr Sieunarine was not a ‘new’ appointment because he had been employed on various contracts since 1989, the clause in both the 1996 and 1999 Industrial Agreements does not apply to him. The AMA did not elaborate on why it says this. Its argument seems to be that appointment would only be ‘new’ if the employee had not been previously appointed. Section 114(1) of the IR Act provides: [114. Contracting out from awards etc. prohibited] (1) Subject to this Act, a person shall not be freed or discharged from any liability or penalty or from the obligation of any award, industrial agreement or order of the Commission by reason of any contract made or entered into by him or on his behalf, and every contract, in so far as it purports to annul or vary such award, industrial agreement or order of the Commission, shall, to that extent, be null and void without prejudice to the other provisions of the contract which shall be deemed to be severable from any provisions hereby annulled. The AMA says s 114 of the IR Act is not invoked by Dr Sieunarine’s contracts with EMHS because it only applies where there are ‘absolute obligations and which are sought to be varied or annulled by inconsistent contractual terms.’ The industrial agreements’ appointment clauses: [do] nothing more than stipulate that an employer shall, as a starting point, offer five-year appointments, but at the same time [leave] it open to the parties to agree in writing on a shorter or longer term. Accordingly, a contract which provides for a term longer than five years is not inconsistent with cl 3.2 of the 1996 Industrial Agreement, which provides that longer or shorter terms may be agreed upon. This allows the parties to agree on a contract term of indefinite duration, terminable only by three months’ notice. EMHS takes a different view. It says the appointment clauses prevail over any term(s) to the contrary at common law. It cites the following as authority for that proposition: Mansfield J in Barnett v Territory Office Insurance [2011] FCA 968; (2011) 196 FCR 116: If relevant statutory provisions or instruments such as an award or enterprise agreement sourced from a workplace law or the NES, are superimposed over that contract of employment, the agreed terms of the contract are either suppressed or unlawful to that extent. [24] Black CJ and French J’s observation in Quickenden v Commissioner, Australian Industrial Relations Commission (2001) 109 FCR 243 (Quickenden v O’Connor) that an enterprise agreement provides terms and conditions that: … could operate in addition to the rights and obligations under his contract and, where inconsistent, no doubt displace them. [69] Wilson J synthesising the prevalence of enterprise agreements (as creatures of statute) over 30 years earlier in Ansett Transport Industries (Operations) Proprietary Limited v Wardley (1980) 142 CLR 237: It will generally be a case of specific provisions which will, of course, have the effect of rendering inoperative any provisions of subordinate law, whether common law or statutory, touching that employment with which they are inconsistent. (287) Madgwick J in Dadey v Edith Cowan University (1996) 70 IR 295: The better view probably is that absent express contractual incorporation of its terms, the award has the effect of rendering inoperative certain terms of the contract as against the employee, but the terms of the award do not themselves become terms of the contract (Byrne v Australian Airlines Limited), nor, in my opinion, do the terms made inoperative cease to be terms of the contract. (297) EMHS says these settled principles have been applied authoritatively by the Commission and do not derogate from the proposition that a contract of employment may contain conditions which are superior to those contained in an award or industrial agreement. Importantly, EMHS argues an orthodox application of these settled principles lead to the conclusion that the appointment clauses operate to ‘displace’ or ‘suppress’ any term of permanency to the contrary that the AMA contends might arise at common law. Further, EMHS argues that s 114 of the IR Act renders ‘null and void’ any verbal or implied term of a common law contract of employment between Dr Sieunarine and EMHS to the effect that Dr Sieunarine was engaged on an ongoing basis. It cites Kenner C in The Chief Executive Officer Department of Agriculture and Food v John Martin Wall [2011] WAIRC 00263; [2011] 91 WAIG 443: 180. The effect of s 114(1) of the Act on the terms of a contract of employment that is at variance to and purports to vary or annul the terms of an award or industrial agreement, is to make the relevant provision of the contract concerned ‘null and void’. Consistent with the above analysis, the language of s 114(1) is clear and unambiguous and a strong statement of Parliamentary intention, as an expression of public policy. Furthermore, the existence of the penalty provisions in s 83 of the Act, where a contravention or failure to comply with an industrial instrument is established, lends support to invalidity as the intended effect: Re Mahmoud v Ispahani [1921] 2 KB 716. 181. It is reasonably apparent that the terms of s 114(1) of the Act when read with the terms of the Act as a whole, express a Parliamentary intention, as a matter of public policy, that obligations contained in awards and industrial agreements made by the Commission under the Act, are to be observed and mechanisms for enforcement of the same are prescribed. It is not open for a person, by purported contract, to avoid or to alter the rights and obligations so prescribed in an award or industrial agreement. EMHS says s 114 of the IR Act is enlivened because the appointment clauses impose an obligation on EMHS to offer Dr Sieunarine employment on a ‘five-year contract’ unless a written agreement to the contrary was reached with Dr Sieunarine. The contention that Dr Sieunarine was engaged by EMHS on an indefinite basis at common law ‘annuls’ or ‘varies’ the operation of the appointment clauses in the industrial agreements, which oblige EMHS to engage Dr Sieunarine on a maximum term basis for five years. In this matter, EMHS says the effect of s 114 is to render ‘null and void’ any clause in the common law contracts underpinning Dr Sieunarine’s appointments that Dr Sieunarine was employed by EMHS on an ongoing basis. This is because the appointment clauses operated at all relevant times to prevent an employer and employee entering into a contract of employment or a shorter or longer period than five years without first reaching a mutual agreement to elect in writing to vary the employee’s right to a five-year contract for a shorter or longer period. EMHS says the appointment clauses intend to protect the employer and employee’s interests in the absence of a mutually agreed election in writing to vary what is otherwise by default a maximum term appointment for a period of five years. However the obligation to obtain mutual agreement in writing to vary the employee’s statutory right to a five-year maximum term is an obligation only on the part of the employer, whether or not the employee stands to benefit from a longer or shorter period of employment. EMHS argues the existence of a contractual (or statutory) right to terminate the contract of employment by giving notice is not evidence of a mutually agreed election in writing to vary the statutory right to a five-year maximum term. EMHS concedes that a contractual right of termination allows the employment contract to function absent any agreed mode or specified duration of employment. However it says the reference to a right of termination in the 1997 Letter and 2000 Letter is not a contractual term. It is merely the author of the letter drawing attention to the termination right as it appears in the relevant industrial agreements. Consequently the right of termination is not contractual. EMHS says there is no evidence of a mutually agreed election to vary the employee’s statutory right to a five-year maximum term, so if any term were to be implied to vary that right, it would be void for illegality. Consideration Contrary to EMHS’ argument, an industrial agreement will not always prevail over a contract of employment to the extent of inconsistency. As Neil and Chin succinctly put it in The Modern Contract of Employment: What is the legal status of a contractual term that differs in content from a provision of a statute or award dealing with the same subject matter? Loose language is rife: for example, the authorities speak of awards rendering ‘inoperative’ [Ansett Transport Industries (Operations) Pty Ltd v Wardley at (287) – (288); and Dadey v Edith Cowan University] or ‘unlawful’ [Barnett v Territory Insurance Office at [24]], ‘displacing’ [Quickenden v O’Connor at [69]], ‘modifying’ [Quickenden v O’Connor] or ‘suppressing’ [Barnett v Territory Insurance Office] contractual provisions dealing with the same subject matter. And, more insidiously, authorities, texts and commentary frequently describe the relationship between awards and contracts by conclusory statements expressed in terms that suggest they are universally and inherently true. In fact, these statements merely state the relationship between some awards and contracts, having regard to the effect of the particular statutes that support those awards. The correct position is that there is no universally necessary or true answer to the question with which this paragraph began: the answer, in every case, depends on the express or imputed effect of the relevant statute. [5.76] Neil and Chin cite the same four authorities that EMHS relies on, set out at [90], but conclude the opposite of EMHS’ submission. I respectfully prefer the learned authors’ analysis. In this case, whether the industrial agreements’ appointment clauses ‘override’ Dr Sieunarine’s ongoing employment contract depends on the effect of s 114 of the IR Act. Section 114 of the IR Act is about whether a right given by statute can be foregone by contract. At its heart, the section is about preventing parties, in particular employees, from surrendering their statutory rights, which set a safety net of minimum conditions and entitlements of employment. In my view, the agreement reached between Dr Sieunarine and EMHS for an ongoing employment contract does not attempt to deny Dr Sieunarine an entitlement under the industrial agreement. It does not enliven s 114 of the IR Act. The 1996 Industrial Agreement that applied when Dr Sieunarine was appointed in 1997 provided at cl 3.2(1)(e): … all new appointments will be 5 year fixed term contracts for full time, modified full time, and sessional medical practitioners. Provided that the employer and employee may, by mutual agreement, elect in writing to vary the employee’s right to a five (5) year contract for a shorter or longer period. That is not an obligation of the kind contemplated by s 114. And even if it were, on the evidence I find that EMHS and Dr Sieunarine did, by mutual agreement, elect in writing to vary Dr Sieunarine’s right to a five-year contract for a shorter or longer period, by EMHS providing Dr Sieunarine with the offer of employment in the1997 Letter which he accepted. The 1999 Industrial Agreement that applied when Dr Sieunarine was appointed in 2000 provided at cl 20(1): ¶3 All new appointments shall be: on 5 year fixed term contracts (unless there is written agreement to the contrary between the employer and employee); or for specific purposes approved by the Medical Advisory Committee or other appropriate committee. On the evidence there was a written offer to the contrary, evidenced in writing, that Dr Sieunarine accepted. I’m not sure that amounts to a ‘written agreement to the contrary’. However, I do not consider that the clause refers to an obligation of the kind contemplated by s 114. I do not consider that either of the employment contracts Dr Sieunarine entered into in 1997 or 2000 purports to annul or vary the industrial agreements so as to free or discharge EMHS from an obligation, if it had one, to have appointed Dr Sieunarine on a maximum term contract. Dr Sieunarine’s ongoing contract of employment does not, in my view, amount to an attempt to contract out of the industrial agreements. Though the industrial agreement refers to a fixed term contract, in reality it provides for a maximum term contract with the ability for either party to terminate earlier by giving three months’ notice. In those circumstances, Dr Sieunarine’s ongoing contract provides ‘an additional benefit’ in the sense contemplated by Byrne v Australian Airlines Limited at (421), referring to Kilminster v Sun Newspapers Ltd [1931] HCA 37; (1931) 46 CLR 284. What EMHS did was offer Dr Sieunarine a more beneficial term of employment, being the possibility that the employment relationship could continue beyond the five years provided for in the industrial agreement. Dr Sieunarine accepted that more beneficial term when he accepted the contract. This is consistent with the reasoning of the Full Bench: ‘There is nothing to prevent a contract of employment being entered into which contains conditions which are superior to those contained in an award or industrial agreement. This commonly occurs with respect to the payment of wages.’: The St Cecilia’s College School Board v Carmelina Grigson [2006] WAIRC 05293; (2006) 86 WAIG 3146, 3156. Section 114 of the IR Act should not be interpreted to prevent parties from contracting on superior terms. If it did, parties would be prevented from agreeing to higher pay rates than those contained in an award or industrial agreement. An ongoing contract of employment is plainly superior to a maximum term contract, in circumstances where both contracts include a three-month notice period. EMHS conceded as much at the hearing. It would seem a very curious and undesirable result if s 114 prevented parties from striking their own superior bargain, such that an otherwise valid contract that is intended by the parties be ongoing comes to an end after five years, regardless of the parties’ wishes and in direct conflict with the bargain they struck. If I am wrong about this issue, and in 2000 Dr Sieunarine was appointed on a five-year maximum term contract for the reasons contended by EMHS, which I do not find, that maximum term contract came to an end in November 2005. At that time, the relevant industrial agreement was the 2004 Industrial Agreement. It provided: ¶4 All new appointments shall usually be on 5 year contracts (unless there is written agreement to the contrary between the Employer and practitioner). [Emphasis added] I do not consider that wording leads to the conclusion EMHS would have me reach. It is a general principle of statutory construction that all words must be given meaning and effect. This principle is more compelling where the word in question has been added by amendment: Pearce DC and Geddes RS Statutory Interpretation in Australia (8th Ed. 2014), 2.26. The addition of the word ‘usually’ does not mean Dr Sieunarine could only be employed on a five-year maximum term contract. Even on EMHS’ arguments, if Dr Sieunarine had a five-year maximum term contract that ended in November 2005, there was no requirement for him to be employed on a maximum term contract when he continued to work for EMHS past that point. It is clear from the facts that the parties did not agree to his employment in November 2005 being for a maximum term. The industrial agreement is not worded in such a way that the law operates to impose such a term. If Dr Sieunarine had a maximum term contract under the 1999 Industrial Agreement, it was replaced with an ongoing contract of employment when Dr Sieunarine continued to work past November 2005, one which would not have expired and led to any more ‘appointments’ under the industrial agreements. Is EMHS estopped or otherwise prevented from maintaining that Dr Sieunarine is a maximum term employee? In its outline of submissions under the heading ‘Unconscionable behaviour and estoppel’, the AMA suggests it would be unconscionable for EMHS to resile from its consistent representations that Dr Sieunarine was employed on a permanent basis. When pressed at the hearing about whether it asked the Arbitrator to consider an estoppel argument, which I indicated I did not consider had been put, I understood the AMA to abandon arguments about unconscionability and estoppel. Conclusion Just because an act ought to be done under an award or industrial agreement does not mean that it was done. Here EMHS asks me to declare that Dr Sieunarine was appointed on a series of maximum term contracts in circumstances where there is no evidence that occurred in fact and I do not consider that it occurred by operation of the law. Under the relevant industrial agreements, perhaps EMHS should have offered Dr Sieunarine a five-year maximum term contract in 1997 and 2000 when he was appointed. It did not. Instead it offered Dr Sieunarine an ongoing employment contract. He accepted that offer. EMHS appears not to have complied with the industrial agreements in this regard. But that does not mean that Dr Sieunarine must have been or was employed on a series of five-year maximum term contracts. He simply was not. Dr Sieunarine has been continuously employed by EHMS for over 20 years, first on an ongoing contract formed in 1997 and then on an ongoing contract formed in 2000. I find that at no time since 1997 has Dr Sieunarine been employed by EMHS on a maximum term contract. For these reasons, I will declare that Dr Sieunarine was an ongoing employee as at 6 July 2017 and order that EMHS withdraw its letters dated 1 March, 16 June and 14 November 2016 and ensure that Dr Sieunarine’s personnel records reflect his status of an ongoing employee.