[2025] FWC 3546

Fair Work Act 2009

s.739 - Application to deal with a dispute

Australian Salaried Medical Officers Federation and Australian Medical Association (Victoria) Ltd

The Royal Children's Hospital Melbourne T/A RCH

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - application for dismissal alleging no reasonable prospect of success - application denied

[1] On 26 June 2025, the Australian Salaried Medical Officers Federation (ASMOF) and the Australian Medical Association (Victoria) Ltd (AMA) (together, the Applicants) filed an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (the Act) asking the Fair Work Commission to deal with a dispute, said to be about the Medical Specialists (Victorian Public Health Sector) AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026 (the Agreement). The Application concerns the Royal Children's Hospital Melbourne (the Respondent).

[2] As is explained further below, the Respondent has made an application that the Application be dismissed pursuant to s 587(1)(c) of the Act on the basis it says the Application has no reasonable prospect of success. It pressed for this application to be dealt with at this stage of the proceedings. What follows are the reasons for my decision not to grant the s 587(1)(c) application.

[3] The substantive Application was initially listed for conference on 21 July 2025, but a request was made by consent that it be adjourned. I was told the Respondent was seeking the opinion of Counsel in relation to an aspect of the dispute (this was confirmed by the Respondent in correspondence sent to chambers on 17 July 2025). I was told that the period of the adjournment sought was six weeks, after which time I would be either asked to list the matter for mention, or it would be discontinued.

[4] Not having heard anything from the parties by 1 September 2025, I asked for an update and was told by the Respondent it had engaged Counsel, and work would commence on its brief at the earliest opportunity. I was also told by the Respondent that its relevant officer was on leave between 19 and 26 September 2025. The matter was listed for a conference to take place on 29 September 2025.

[5] The matter was not resolved at conference. I indicated I would list the matter for further conference but also issued directions in relation to the arbitration of the matter. On 20 October 2025, the Applicants filed a Submission, and what was described as an "Applicants Statement of Evidence" indicating evidence would be led from Dr Tim Cain, an employee of the Respondent, outlining the evidence Dr Cain would give. This Statement referred to a number of attachments which for some reason were not attached to the Statement as filed. The matter was not resolved at a further conference conducted on 30 October 2025.

• [6] I am told that on 7 November 2025, the Respondent wrote to the Applicants and said, among other things, that its dispute notification was seriously misconceived and does not disclose a dispute arising under the Agreement. It was suggested that the Statement filed by Dr Cain did not identify any present or actionable dispute between the parties, and that it was unsatisfactory. The Applicants were invited to withdraw the Application and said that if it did not do so, the Respondent intended to make an application pursuant to s 587 of the Act that it be dismissed[1].
• [7] On 10 November 2025, the Respondent filed a document entitled "RCH Submissions In Opposition to Dispute Notified by AMA/ASMOF Application to Dismiss s 587 of the FW Act". The submission asserted that the Applicants' Form F10 Application "fails to identify with any precision the nature of the dispute between the parties", and this was "fatal to the invocation of jurisdiction". It also asserted that the material filed by the Respondents on 20 October 2025 was "unfocussed, underdone, and did not identify with any precision the factual substratum of the dispute, the present denial of right, entitlement or benefit and how the jurisdiction of the Commission is invoked". It said that the Respondent was "entirely in the dark as to the case it must meet in the impending arbitration". It asserted that there is no active or actual dispute between the parties. It said that the application should be dismissed pursuant to s 587 of the Act[2].

[8] On 12 November 2025, the Respondent wrote to my chambers advising that it "now makes formal application for the Form F10 dispute notification to be dismissed pursuant to s 587 of the FW Act", and that this application be listed for further directions, at which time it would ask that its application be heard as soon as possible.

[9] On 17 November 2025, the Applicant filed a Submission "in reply" and two Statutory Declarations made by Dr Cain - one said to be a "further witness statement" from Dr Cain and the other, a Statutory Declaration capturing the previously filed unsworn Statement made by Dr Cain.

• [10] The Applicants' submission in reply says it should be clear to the Commission that "the Respondent is putting all of its eggs in one basket in that the Respondent is totally relying on its s 587 application"[3]. The suggestion being made by the Applicants is that the Respondent's submission does not address the matters sought to be raised by the Applicants in their purported dispute and simply focusses on the proposition that the application should be dismissed because it has no reasonable prospect of success. It submitted further that the Commission should accept that the Respondent's submissions are the totality of the Respondent's material filed and served in accordance with the Commission's directions. The submission focusses on these procedural points and outlines the basis upon which the Applicants oppose the application that the matter be dismissed.

[11] The Applicants also advised that Dr Cain was not available to give evidence at the hearing listed for 25 November 2025 because he was travelling in Antarctica and if he was required from cross examination, sought that the hearing be adjourned.

[12] I conducted a mention in relation to the matter on 24 November 2025. Prior to the mention, on 21 November 2025, the Respondent filed a Submission "in response to ASMOF reply material", advising, among other things, that Dr Cain was required for cross examination and again urging the application be dismissed.

[13] At mention, both parties agreed that the Respondent's application made pursuant to s 587(1)(c) of the Act should be heard by the Commission the following day, during time previously set aside for the arbitration of the substantive Application. I asked parties whether they wished to file further material in relation to the s 587(1)(c) application, and neither said they did.

[14] A hearing was conducted on 25 November 2025. Mr Ryan appeared for the Applicants. Mr Harrington of Counsel appeared for the Respondent - the Respondent has been granted permission to be represented by a lawyer in this matter pursuant to s 596 of the Act because I consider it will allow for the more efficient conduct of the proceeding, taking into account a level of complexity associated with it.

• [15] There is some intricacy associated with the putative dispute itself, as far as I understand it at this stage of the proceeding. In a very summary sense, it can be described as follows. Clause 7 of the Agreement is titled "Saving of Local Agreements" and states that the making of the Agreement is "predicated on the expectation and understanding that pre-existing terms and conditions of employment that apply prior to the 2013 Specialists Agreement will not be set aside as a result of the implementation of this Agreement". It provides that the Agreement "does not disturb the continued application of employment entitlements in operation immediately prior to the commencement of the 2013 Specialists Agreement". In about 2009 a document was created called "Conditions of Employment for Medical Imaging Specialists at RCH 2008 - 2013" (the 2009 Agreement). This document is said to have established an "entitlement" that Medical Imaging Specialists should be paid a "supplementary payment". The Applicants claim this supplementary payment should be paid in respect to annual leave payments and payments made on termination of employment. Thus, the Applicants say that the entitlements said to have been created via clause 7 of the agreement apply to Medical Imaging Specialists covered by the agreement, and that the application of those entitlements works in such a way that they should be applied to annual leave and termination payments. The Respondent disagrees. There may even be a disagreement as to whether employees who commenced employment after the 2009 Agreement was made have the entitlement at all[4].
• [16] A dispute relating to similar subject matter was dealt with by the Commission in 2022 and is the subject of a decision published by Johns C (as he then was) in Australian Salaried Medical Officers Federation v The Royal Children's Hospital T/A The Royal Children's Hospital[5] (the Mayne case). In that decision, the Commissioner said of the apparent dispute before him:

a) the payment of the supplement payment is by way of a Local Agreement,

b) the Local Agreement is preserved in accordance with Clause 7 of the AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2018 - 2021 (Agreement); and consequently,

• c) the supplement payment, paid to Medical Imaging Specialists for the sessions that they work, must also be included in any payment of accrued annual or long service leave paid out on termination."[6]

[17] I directed the Applicants to, among other things, file and serve a Statement setting out its formulation of the questions it is seeking be determined by the Commission by way of arbitration. I also directed the Respondent to file and serve a Statement indicating whether it agrees or disagrees with the Applicant's formulation of those questions, and if there is disagreement, its alternative formulation of those questions. As I will note further below, while the Applicant has proposed questions for arbitration, the Respondents have not provided a response to those questions, as they have instead decided to seek the application be dismissed pursuant to s 587(1)(c) of the Act and not be arbitrated by the Commission.

• [18] The questions posed by the Applicants are as follows[7]:

"1. Is the local agreement made between RCH and RCH Medical Imaging Specialist (MIS) on 29 June 2009 and known as the "Conditions of Employment for Medical Imaging Specialists at RCH 2008-2013" a saved local agreement for the purposes of clause 7 of the Medical Specialists (Victorian Public Health Sector) (AMA VICTORIA/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026 (the 2022Agreement)?

2. If Q1 is answered in the affirmative, then does the saved local agreement made between RCH and MIS on 29 June 2009 and known as the "Conditions of Employment for Medical Imaging Specialists at RCH 2008-2013" apply to and cover all Specialists employed by RCH at any time 17 December 2013 and who are engaged in medical imaging?

3. If Q1 is answered in the affirmative, are all MIS employed by RCH at any time since 17 December 2013 (the commencement date of the 2013 Agreement) entitled to the supplementary payment provided by clause 3.c. of the local agreement known as the "Conditions of Employment for Medical Imaging Specialists at RCH 2008-2013" as part of their remuneration when taking periods of leave and when being paid for accrued leave entitlements on termination?

4. If Q1 is answered in the affirmative, are all MIS employed by RCH at any time since 17 December 2013 entitled to the reimbursement payments provided by clause 7.b. and clause 10.a. of the local agreement known as the "Conditions of Employment for Medical Imaging Specialists at RCH 2008-2013"?

If the four above questions are answered in the affirmative then the Applicants would seek orders pursuant to the specific power granted to the FWC by clause 11.7(c) of the 2022 Agreement. However in order to enliven the jurisdiction of the Commission to make the specific order sought by the Applicants a fifth Question needs to be asked and answered.

5.Has the Respondent breached the terms of 2022Agreement by not providing the terms and conditions of employment provided by the "Conditions of Employment for Medical Imaging Specialists at RCH 2008-2013" as required by that agreement?"

[19] Clause 11 of the Agreement provides that after various prescribed attempts to resolve a "dispute" are taken at the workplace level it may be referred by either party to the Commission for conciliation and, if the matter remains unresolved, arbitration. The procedure relates to any dispute arising in relation to the Agreement or the NES or a "2018 Specialists or Doctors in Training Agreement". It may also relate to "matters purported to be saved due to the operation of the Savings provision". It further provides at clause 11.7(c) that:

"If the dispute resolution procedure results in a finding by the FWC that a breach of the Savings provision of this Agreement has occurred, the parties agree that the order of the FWC under this subclause 11.7 will be to restore all rights and entitlements affected by the breach to the state which would have prevailed if the breach had not occurred."

• [20] The putative dispute is referred to the Commission pursuant to s 739 of the Act which provides the Commission may arbitrate if in accordance with a term of an enterprise agreement, the parties have agreement the Commission may do so[8].

Principles associated with the power to dismiss an application if it has no reasonable prospect of success.

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [22] The test for dismissal of an application pursuant to s 587(1)(c) of the Act is not whether the application will succeed, but whether it has no reasonable prospect of doing so[9]. A conclusion that an application has no reasonable prospect of success should only be reached with "extreme caution", and in cases, "for example, where an application is manifestly untenable or is groundless or is so lacking in merit or substance as to not be reasonably arguable"[10]. The answer to the question as to whether an application has no reasonable prospect of success may differ depending on the time the question is asked[11]. In Alan Geoffrey Bond v Carbridge Pty Ltd T/A Carbridge (Carbridge) [12]. Easton DP summarised some of the principles in relation to the s 587(1)(c) power. The Deputy President's decision is often referred to by the Commission in matters of this kind because it is a useful summary of these principles taking into account the relevant authorities. The Deputy President's summary is as follows (citations omitted)[13]:

"(a) section 587 allows the Commission to dismiss an application on the Commission's own initiative or on application by a party (per s.587(3))

(b) the purpose of s.587(1)(c) is to enable the Commission to deal with matters that should not be litigated because there is no reasonable prospect of an outcome other than the dismissal of the application;

(c) section 587 is a provision that is available to use at the early stages of a proceeding before a full hearing is conducted;

(d) it could not have been the intention of the Parliament in introducing s.587 to require the Commission to engage in lengthy and elaborate hearings on an interlocutory basis for the purpose of determining whether or not a proceeding has reasonable prospects of success;

(e) as a general proposition it is inappropriate that the resources of the Commission and the parties are unnecessarily diverted towards protracted proceedings if an application has no reasonable prospects of success;

(f) the 'no reasonable prospects of success' test in s.587(1)(c) sets a lower bar than the common law test for obtaining summary judgement. It is not necessary to establish that an application is hopeless or bound to fail (per General Steel principles) in order to establish that an application has no reasonable prospects of success;

(g) the exercise of power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law; and

(h) an application has reasonable prospects of success if there are live facts in issue that could affect the outcome of the proceedings."

• [23] The Deputy President also said power is subject to the Commission acting judiciously and affording applicants procedural fairness, and[14]:

"(a) an applicant must be able to put his or her case to the decision-maker for consideration on all matters material to the making of the decision.

(b) where there are specific aspects of an applicant's application that the Commission considers may be important to the decision and may be open to doubt, the Commission must at least ask the applicant to expand upon those aspects of the application.

(c) when dealing with unrepresented parties it may be appropriate in certain circumstances for the Commission to direct the parties' attention to the relevant terms of the legislation and to invite submissions on the various statutory criteria

(d) the expression procedural fairness conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case."

"(a) the Commission must also be cautious in dismissing an application under s.587 based on the strengths or weaknesses of the originating document(s). It is regularly said that the Commission is not a court of pleading. Pleadings define the issues at trial, give notice to the other parties of the case they have to meet, affect the admissibility of evidence (meaning in their evidence parties cannot stray from their pleaded case) and so on. By contrast the Commission must exercise its powers in a manner that is "quick, informal and avoids unnecessary technicalities" (per s.577(1)(b)). Many applicants prepare their own originating documents without the assistance or advice of lawyers or other representatives. In this context originating documents, such as the Form F2 Application for Unfair Dismissal, must be considered with a keen eye (but not a blind eye) to the substance of the application rather than the form of the documentation; and

(b) section 587 should also be understood in conjunction with the cost provisions in s.611 and s.400A. These provisions read together indicate that Parliament intended to discourage the making of and the continuation of applications that are made vexatiously or without reasonable cause, or that have no reasonable prospect of success."

[25] The Respondent's submissions may be described in summary form as follows.

• [26] The Respondent submits that the Applicants' Form F10 at Part 2 fails to identify with any precision the nature of the dispute between the parties, and this it says is fatal to any invocation of jurisdiction[16]. Further, it submits that, having been provided with an opportunity to "clarify and identify with precision the dispute and why any jurisdiction was or could be invoked" by filing material in accordance with the Commission's Directions, the Applicants failed to do so because their material was "unfocussed, underdone and made no effort to identify with any precision" the factual substratum of the dispute, and the present denial of right, entitlement or benefit and how the jurisdiction of the Commission is invoked[17]. An associated complaint made by the Respondent is that it cannot understand and therefore cannot properly respond to the case put against it[18].
• [27] It also submits that the dispute as described is not anchored in any particular fact where, for example, an employee claims to have presently suffered a detriment[19]. In oral submissions, it described what is before the Commission as a "difference of opinion and a grievance" held by Dr Cain. It characterises the Application as one about an employee (Dr Cain), who "at best, fears a failure to pay something on termination of employment in the future"[20]. It submits there is no evidence Dr Cain has been underpaid in respect of any period of leave and can't give evidence about payments which should be paid to him on termination, because his employment has not been terminated. It says Dr Cain is not a person affected by any conduct of the Respondent as the employer, that the grievance is over the "potential and proper construction" of the Agreement; that what is sought is a desire to "reach an agreement on 'how to interpret' an allegedly saved agreement" and the dispute "to the extent that it is properly identified" is "purely hypothetical in nature"[21]. It says "Dr Cain anticipates a dispute at the point in time when he decides to end his employment. That is not now."[22] It also sought to argue that in his supplementary Statement, Dr Cain appears alters the character of the dispute, such that it is becoming one about whether the application of the 2009 Agreement to Medical Imaging Specialists, rather than a dispute about the Agreement itself (or the savings clause). The Respondent referred me to the decision of the Commission in Appeal by Susan McCallum; Community and Public Sector Union v Tenix Solutions Pty Ltd (formerly LMT Australia Pty Ltd) (McCallum)[23] in which a Full Bench found that a dispute characterised as one about the binding effect of an agreement with respect to the employees of the relevant employer was not a dispute about the application of the Agreement and thus not within the jurisdiction of the Commission[24]. The Respondent argues what Dr Cain has referred to in his Supplementary Statement amounts to a "search for a jurisdictional talisman" by the Applicants, as was referred to by Mason CJ in Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd[25] (cited in McCallum[26].
• [28] It further submits that "the Commission does not have jurisdiction to simply provide opinions about possible disputes and challenging questions of interpretation that might require adjudication in the future"[27]. Similarly, it submits that the dispute resolution procedure provided for in the Agreement is deliberately "confined" to "certain matters" and the Commission has "no power under the Act or through this clause in the Agreement to act in an advisory capacity, to answer a hypothetical question or resolve a theoretical dispute that is not properly notified and in existence between the parties"[28]. It submits that what the Applicants are asking the Commission to do is to provide declaratory relief and exercise judicial power, which it cannot do - referring in particular in this regard to the nature of the Orders sought by the Applicants. The Respondent submits this is the "very vice that proved fatal in the Mayne Case"[29].
• [29] It also submits that the application must be dismissed because the Commission cannot know the nature of the dispute and whether any issue properly requires adjudication, and in the absence of the proper identification of the dispute, the consequential invocation of jurisdiction and clear and precise question(s) to be answered, the application is vexatious (to the Respondents) and has no reasonable prospect of success[30].

[30] At hearing, the Respondent also submitted that the Commission does not have jurisdiction to deal with the dispute because the Agreement provides, at clauses 11.4, that prior to referring a dispute to the Commission, it is necessary to for there to be an attempt to resolve the dispute at the workplace level. It submitted there is no evidence of a dispute having been "fed through the dispute resolution procedure", particularly insofar as the dispute has now been re-characterised through Dr Cain's supplementary Statement as one about the application or coverage of the 2009 Agreement - a matter it says has not been the subject of attempts at resolution at the workplace level.

• [31] It seems to me the Respondent has adopted a somewhat multifaceted approach to its submissions as to the proposition that the Application should be dismissed pursuant to s 587(1)(c) of the Act. The following passage from one of its written submissions is illustrative[31]:

"42. In determining this application under s.587 of the FW Act, the Commission can receive and consider the contents of the following documents:

a) the Form F10 including the Dispute Description;

43. Taking the contents of the above documents at their highest, the Commission cannot know the real and precise nature of any present dispute between Dr Cain and the RCH. RCH contends there is no such active or live dispute which exists between it and Dr Cain. That there might be a dispute in the future does not assist Dr Cain.

44. ASMOF has had the opportunity to conceive and then advance its best case given the material filed. That material falls well short of identifying the real dispute and assuring the Commission it has jurisdiction. The onus is not discharged.

45. If the Commission cannot characterise the dispute, it cannot satisfy itself it has jurisdiction to exercise any dispute resolution powers reposed in it by the parties via clause 11 of the 2022 Agreement".

[32] Within this passage the Respondent appears to be contending that (a) the Applicant's material is deficient, (b) there is no active or live dispute anyway, and (c) even if there was the Commission cannot be satisfied it has jurisdiction to deal with it. And as I have noted, at hearing, (d) a further jurisdictional submission concerning whether the Applicants have complied with the dispute resolution procedure was made.

[33] There is also a temporal aspect to the Respondent's application. While not addressed directly in its submissions, the Respondent is also in effect taking the position that the Application should be dismissed pursuant to s 587(1)(c) now, as opposed at some future time. There was nothing improper in its decision to adopt this position taking into account that the power to dismiss proceedings under this provision is designed to allow for the avoidance of the expenditure of costs and resources on protracted proceedings if an application has no reasonable prospect of success. However, in circumstances where the Commission must exercise "extreme caution" before dismissing an application pursuant to s 587(1)(c) it does mean the Respondent must persuade the Commission that a relatively high standard of satisfaction has been met, based on the material before the Commission at this particular point in time - perhaps before there has been an opportunity for the Commission to take steps to seek to better understand the matter that is before it - a scenario that was raised with Counsel for the Respondent at the hearing.

• [34] The Respondent submits that the time at which it has chosen to press its application is appropriate. Standing in favour of the Respondent in this regard is the fact that I had Directed parties to file and serve all of their materials in support of their respective positions in relation to the matter in order that it might be heard and determined on 25 November 2025. It may be against the Respondent however, that there was a request that the hearing be adjourned and, if the adjournment had been granted[32], likely an opportunity for the Commission to direct parties to file further material to assist it to determine the matter and to address any deficiencies in the material to date. It should perhaps be borne in mind that the Applicants were Directed to file and serve material in this matter, and did so (albeit, in the opinion of the Respondent, inadequately). The Respondent was also directed to file material regarding the substantive Application by way of response but to some extent did not do so, preferring instead to focus its argument largely on its contention the application has no reasonable prospect of success, and should be dismissed pursuant to s 587(1)(c) of the Act. The Applicants' reply material also fails provide the Commission with much assistance as to the substantive Application - and instead takes up the procedural cudgels in relation to the Respondent's s 587(1)(c) application. I have thus not had the benefit of hearing any interrogation which might be made in relation to the evidence sought to be tendered in this matter (albeit the Respondent has filed none) or oral submissions as to the substantive matter at hearing. In these circumstances, in must be observed that the Commission remains to some extent in the dark about the substance of the matter it is being asked to strike out on a final basis.
• [35] The Respondent's strategy has taken clearly some inspiration from the Mayne Case. In that matter, the Respondent pressed for the dismissal of the substantive application, pursuant to s 587(1)(c) of the Act, before material had been filed in relation to its merits[33] and its application was granted. However, I consider there are differences in the circumstances that were before the Commissioner in that matter, compared with those (as I understand them, at this stage) that are before me. In particular, the Mayne Case appears to have been based on to what seemed to be a straightforward factual allegation made in relation to a person (Dr Mayne) who are the time the dispute was brought, had ceased her employment with the Respondent. Unlike the situation before the Commission at this time, it seems the Commissioner was able to comprehend with confidence, at the time the application was dismissed, precisely what he was dealing with - namely - an alleged failure to pay the entitlement in dispute to a former employee. This was a problem for the Commissioner because, as Dr Mayne was a former employee, there was no dispute before him between the Respondent and any person currently employed by it[34]. The Commissioner was concerned, as I am urged to be by the Respondents, that what he was then left with was simply a hypothetical dispute as to future entitlements. The Commissioner did however comment as follows:

"The situation might be different if a Doctor had given notice of their resignation, and before their departure, was given a statement of intended payments that clearly indicated that the supplementary payment was missing from the proposed payments in respect of accrued annual leave or long service leave. But that is not what has occurred here."[35]

• [36] As I understand it, I am not dealing with a former employee. At hearing, I was taken to what appeared to be a clear communication made by or on behalf of the Respondent, that it does not consider itself obliged to pay the supplementary payment in the manner contended for by the Respondent[36]. As I will explain further below, on the state of the materials before me, I am not sure that the circumstances of this matter are as analogous to those before Johns C in the Mayne Case as the Respondent would have me accept.

• [37] The Applicants oppose the dismissal of the Application pursuant to s 587. They take issue with the submissions made by the Respondent, that it is asking the Commission in this matter to exercise judicial power or provide declaratory relief. Particular emphasis was placed on the fact that the Agreement specifically provides that the Commission may have referred to it disputes concerning the operation of the savings provisions, and clause 11.7(c) of the Agreement, which purports to allow the Commission, when exercising arbitral power, to make a finding as to a "breach of the Savings provision" of the Agreement, and to order to "restore all rights and entitlements affected by the breach to the state which would have prevailed if the breach had not occurred". It also takes issue with a proposition it attributes to the Respondent, that in order for a dispute to be brought to the Commission there must be evidence of a person covered by the Agreement to have "suffered". The Applicants appear to say that the relevant Doctors have made it clear they believe they have an entitlement, and the entitlement is not being recognised, and this is enough. In this regard, I was taken to some of the correspondence apparently between the parties in which the Respondent says "the local agreement entitles specialists to payment of the supplement for the sessions that are worked, it does not entitle payment during periods of leave or on accrued leave paid out upon termination"[37]. It also refutes the submission that it has, through Dr Cain's supplementary Statement, sought to re-characterise the dispute such that it is now one about agreement coverage, making the point that there is no question that the Agreement covers the relevant employees.

[38] I am not prepared to grant the Respondent's application that this matter be dismissed pursuant to s 587(1)(c) at this time, for several reasons.

• [39] First, I am not prepared to dismiss this application for want of a reasonable prospect of success at this stage, on the basis of what are said to be deficiencies in the material. In this regard, I note in particular Easton DP's comments in Carbridge, which were to some extent acknowledged by the Respondents, that the Commission should exercise caution dismissing an application based on the strengths or weaknesses of the parties' materials, having particular regard to the Commission's obligation to deal with matters in a way that avoids unnecessary technicalities[38]. Having said that, I consider the criticisms levelled by the Respondent as to the state of the Applicants' materials are, while I would not adopt the language it used, not without merit. As I will mention further below, it will be necessary before this matter is heard for the Applicant to file further material, giving it an opportunity to address some of those deficiencies (to which the Respondent will be afforded the opportunity to respond). If the Applicant fails to do this adequately through further written material, and in its oral case at hearing, I have no doubt the Respondent will submit the Application should be dismissed - whether pursuant to s 587, or on jurisdictional grounds, or because it simply has not been made out.

[40] Secondly, I am not prepared to dismiss this application because it is said not to raise an active or real live dispute and simply raises a hypothetical. I am required to exercise extreme caution in considering an application to dismiss pursuant to s 587(1)(c). The Respondent itself submits that the Applicants' materials are deficient, such that, among other things, they are "unfocussed and underdone". As I have said above, I accept to some extent the critique of those materials. However, I can glean from the materials several things that might when perhaps better articulated give rise to an active dispute. For example, it appears based on material before me (that is untested and unexplained), that various employees of the Respondent believe they are entitled to and perhaps currently receive a particular supplementary payment. It also appears that the Respondent may be of the view that at least some of those employees are not entitled to that payment and perhaps should not continue to receive it and may have told them so. It is asserted that somehow the entitlement to the payment arises by operation of a savings provision in the Agreement which are referred to expressly in its dispute resolution procedure. It seems to me the proposition that employees who believe they are entitled to, and might be currently receiving, a particular payment, but might have been told they are not legally entitled to it (and thus might not continue to receive it) is likely to be a live issue for those employees. I am also unconvinced, at this stage, that for an employee who may be thinking about taking their next holiday (a fairly constant aspiration for many people), not knowing what they will be paid while they take leave is also not, as the Respondent seems to put it, a live issue for them, and instead just a hypothetical.

• [41] Thirdly, I am not prepared to dismiss the application for want of a reasonable prospect of success on jurisdictional grounds at this stage. When exercising private arbitral power, as I am required to do in this case, the Commission is confined by the terms of the Agreement, including in particular the scope of the dispute resolution clause, which should not be narrowly construed[39]. The Agreement before me envisages what appears to be the common parameters as to the subject matter of disputes which may be the subject of the dispute resolution procedure (a dispute arising in relation to the Agreement or the NES), but also, provisions which may be directed to precisely what it is the Applicants' are asking the Commission to do in this matter - clauses which appears to expressly bring disputes about the "savings provision" within the scope of the clause, and which purport to confer upon the Commission some form of power to deal with them. While both parties made some oral submission about clause 11.7(c) of the Agreement at hearing, I would be assisted by a more direct and detailed analysis of this clause and the extent of the jurisdiction of the Commission to determine the dispute. Without at least that having occurred, I am not satisfied at this time it is appropriate to assume what I am being asked to do is outside the confines of the exercise of private arbitral power.
• [42] While I accept the submissions made by the Respondent, that it is necessary for me to characterise the dispute in order to determine whether the Commission has jurisdiction to deal with it[40], taking a cautious approach to its s 587(1)(c) (as I am required to) I am not able at this stage to characterise the dispute such that I can be satisfied there is no jurisdiction to determine it.
• [43] Fourthly, I am not prepared to dismiss the application for want of a reasonable prospect of success at this stage based on the contention that the Applicants' have not satisfied the dispute resolution steps set out in clause 11.4 of the Agreement, which must precede the dispute being referred to the Commission pursuant to clause 11.4(d). It is well established that an application should not be dismissed for want of a reasonable prospect of success without the parties being provided with procedural fairness[41]. The Respondent first raised this objection at the hearing on 25 November 2025. It was not raised in its several written submissions. The Applicant had no notice of this area of objection before hearing and did not have (and still has not had) a chance to properly respond to it. Indeed, the Applicants may well have been given to understand there was no such objection to the Application given the Respondents' conduct in participating in conciliation in the matter and continuing to engage in the matter after Directions were issued for it to be programmed for arbitration. The Applicants must be afforded the opportunity to properly address this objection.
• [44] My views in this regard are informed by the timing of the application chosen by the Respondents that the Application be dismissed pursuant to s 587(1)(c). The power to dismiss - to effectively strike out an application at a particular point in a proceeding is a discretionary one[42]. While there is prejudice to a Respondent being required to continue to participate in a case that may be hopeless, there is prejudice to an Applicant in having its application struck out because its case is misunderstood - even through some fault of its own because of the quality of its materials. The weight of prejudice in this regard seems to me to fall, at this stage of the proceeding, towards the Applicants.
• [45] It might also be noted that the Commission is obliged to conduct itself efficiently, in a manner that "is quick, informal and avoids unnecessary technicalities"[43]. There will be inconvenience and inefficiency for the Commission if matters such as these are prematurely terminated, only to reignite as new proceedings soon afterwards, such that the process simply begins again. Sometimes that circumstance may be unavoidable and might not justify allowing the continuation of a proceeding that is obviously doomed to fail. But in this matter, for the reasons I have outlined, it seems to me more efficient that I take what assistance I can from the work already done by the parties on the matter, direct that further work be done, and determine the matter substantively.
• [46] As I have said, I agree to some extent with the critique levelled by the Respondent in relation to the Applicant's materials to date. I intend to make further Directions for the orderly conduct of this matter going forward such that it can be the subject of a hearing at which all of the matters the partes wish to raise - evidentiary; jurisdictional and substantive - can be ventilated and determined. The basis of those Directions is set out below[44].

[47] First, I intend to propose several questions to be determined at arbitration about which I will invite comment. This is to allow for the orderly conduct of the filing and service of written material so the matter can be heard. It is not an invitation for further agitation at this time about jurisdictional controversy. I have indicated I am not persuaded at this time the Commission necessarily lacks jurisdiction in this matter on the basis of the material before me. That does not mean the Respondent is not entitled to raise jurisdictional objections - just that it will be necessary for it to do so at the same time as the matter is dealt with substantively. The Respondents may well submit that the questions are not within the jurisdiction of the Commission to answer, while in the alternative making submissions in favour of the particular answer they contend for.

[48] It may also be that the Applicants seek orders arising from the answers to these questions. If the Applicants seek orders that they are to file draft orders using the appropriate form together with their further submissions mentioned below.

1. Are medical imaging specialists employed by the Royal Children's Hospital including those employed after 29 June 2009 entitled to the supplementary payment referred to in the 2009 Agreement, by operation of clause 7 of the Agreement?
2. Are medical imaging specialists who are entitled to the supplementary payment entitled, by operation of clause 7 of the Agreement to be paid the supplementary payment in respect to remuneration they are paid while on leave or on termination of employment?

[50] The Applicants will be directed to file and serve short submissions as to these questions by addressing whether they agree with these questions or suggesting amendment.

[51] The Respondents will be directed to file and serve short submissions as to these questions by addressing whether they agree with these questions or suggesting amendment (taking into account they may reserve their rights to argue any such questions are beyond the jurisdiction of the Commission to determine)

[52] The Applicants will be directed to file and serve further submissions. These submissions should at least address:

1. Precisely how the dispute is characterised.
2. The evidentiary basis upon which it is said the dispute exists (as it has been characterised).
3. The jurisdictional basis upon which it is said the Commission is entitled to deal with the dispute, including with regard to clause 11.7(c) of the Agreement and the contention that the dispute is purely hypothetical, and in relation to the contention that what is sought is merely declaratory relief or an impermissible exercise of judicial power. The contention that there is no jurisdiction to determine the dispute because efforts to resolve it at the workplace level, pursuant to clause 11.4 of the Agreement have not been made, should also be addressed.
4. If Orders are sought, the basis upon which the Commission has the power to make the Orders sought and a draft Order must be filed.

[53] The Respondents will be directed to file and serve submissions and any evidentiary material in reply.

[54] The matter will be listed for hearing on a date to be fixed.

• [55] The application made pursuant to s 587(1)(c) by the Respondents is dismissed. An Order[45] to that effect will issue. Directions will issue for the further conduct of this matter.

[1] Respondent's Submissions in Respondent to ASMOF Reply Material, 21 November 2025 (Respondent's Reply Submissions) [8]

[2] RCH Submissions in Opposition to Dispute Notified by AMA/ASMOF Application to Dismiss: s587 of the FW Act, 10 November 2025 (Respondent's 587 Submissions) [2], [5], [8]

[3] Applicant's Submissions in Reply, 17 November 2025 [8]

[4] Statutory Declaration of Dr Timothy Mark Cain, 17 November 2025, TC-1A

[5] [2023] FWC 639

[7] Applicant's Submission (Untitled), 20 October 2025 p.2

[8] Fair Work Act 2009 s 739(4)

[9] Elanor Australia Pty Ltd [2024] FWCFB 245 [29]

[10] Carole Greenan v David Vilensky and Others [2025] FWCFB 61 [53] citing Shaw v Australia & New Zealand Banking Group Ltd [2014] FWC 3408 [8] (Shaw)

[12] [2024] FWC 1302

[16] Respondent's 587 Submissions [2]

[18] Respondent's Reply Submissions [22(f)]

[19] Respondent's 587 Submissions [3]

[22] Respondent's Reply Submissions [23]

[23] [PR940630]

[25] [1989] HCA 10; (1989) 166 CLR 311 [319]

[27] Respondent's 587 Submissions [10(a)], [38]

[32] The request that the hearing be adjourned because of the unavailability of Dr Cain was not determined, because, by consent, the parties agreed to have the Respondent's s 587 Application dealt with first

[36] F10 Application, 23 June 2025, Attachment 7

[38] Fair Work Act 2009 s 577(1)(b)

[39] Davis v The University of Newcastle [2019] FWC 2282 [12]; cited in Freshfood Management Services Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturing Workers Union (AMWU)) [2023] FWCFB 97 [118]

[40] see for example Construction, Forestry, Mining and Energy Union v Mr Arthur Coal Pty Ltd [2016] FWC 2959 [6]

[42] Carole Greenan v David Vilensky & Others [2025] FWCFB 61 [37]

[43] Fair Work Act 2009 s 577(1)(b)

[44] Among other things, the parties might have regard to the format of submissions referred to at [47] and Attachment 1 of the Commission's Practice Note: Appeal Proceedings

[45] PR795328

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