Fair Work Act 2009

s.739 - Application to deal with a dispute

Melbourne Inner City Management Pty Ltd Trading AS MICM Real Estate

Alleged dispute about any matters arising under the modern award and the NES-dispute arose post-employment-jurisdictional objection-application dismissed

• [1] An application was made by Ms Chia-Chi Chang (the Applicant) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute arising under the Real Estate Industry Award 2020 (the Award). The Applicant asserts that Melbourne Inner City Management Pty Ltd Trading AS MICM Real Estate (the Respondent) owed her outstanding commissions.

• [2] The Respondent provided a response to the application and raised a jurisdictional application that the dispute was brought after the Applicant's employment with the Respondent had ceased. The Applicant's employment ceased on 10 June 2025, and the Applicant raised her dispute with the Commission until 17 July 2025.

• [3] The matter was listed for mention hearing on Wednesday, 23 July 2025. The Applicant attended the mention hearing as well as Ms Amy Maiolo, General Manager - People & Culture for the Respondent. Both parties were self-represented.

• [4] At the mention hearing the Applicant confirmed that she raised the dispute with the Respondent and subsequently with the Commission after her employment had ceased.

• [5] On this basis I expressed the provisional view that there is no jurisdiction for the application to proceed. I issued written directions providing the Applicant with a period of two weeks to file any further submissions as to why my provisional view should not be confirmed and the application dismissed.

• [6] The Applicant filed those submissions on 5 August 2025 in accordance with the directions.

• [7] The Applicant's submissions were as follows:

"I acknowledge your explanation that under the current interpretation of clause 28 of the Real Estate Industry Award 2020, the dispute settlement procedure is generally viewed as requiring steps to be taken between an employee and employer while the employment relationship is still active.

However, I respectfully submit that this interpretation should be reconsidered in light of the amendment to section 739(6) of the Fair Work Act 2009, effective from 4 October 2023, which now provides that:

"The FWC may deal with a dispute only on application by a party to the dispute."

This amendment removed the previous requirement that an applicant must be covered by the Award at the time of application. I submit that I am a party to the dispute, and that the dispute relates to commission entitlements under clause 16.4 of the Award, which expressly applies post-employment.

The logic of clause 16.4 is that employees may accrue entitlements that become payable after employment ends. However, if clause 28 is interpreted strictly as only allowing current employees to initiate the dispute resolution process, then clause 16.4 becomes unenforceable via the Award process for many employees, defeating its protective purpose. This creates a practical inconsistency within the Award itself.

I also respectfully note that employers could exploit this interpretation by terminating employees before commissions are finalized in order to prevent access to the dispute resolution procedure. This outcome would undermine the intent of both the Award and the Fair Work Act, which is to provide fair and accessible resolution pathways.

Furthermore, while I did raise the dispute after my dismissal, I did so promptly upon receiving revised commission figures and attempted to resolve the matter directly with the employer on multiple occasions - a genuine effort to follow the spirit of clause 28. These emails and deadlines were part of my attempt to settle the dispute before seeking assistance from the Commission."

• [8] Sections 738 and 739 provide the scope of Part 6-2, Division 2 of the Act, which deals with disputes before the Commission. The sections are extracted below:

a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

• [9] The Award does have provision in clause 16.4 for payments such as incentives or commissions that fall due post-employment. Relevant provisions of the Award are extracted below:

4.1 This industry award covers employers in Australia engaged in the real estate industry in respect to their employees engaged in classifications in clause 14 - Minimum rates to the exclusion of any other modern award

(a) Following cessation of employment, the employee is entitled to be credited with a portion of the commission, incentive payments or bonuses calculated in accordance with the terms of the written agreement made pursuant to clauses 16.1 or 16.7 of the award, but only in the following circumstances:

(i) where the employee's employment is terminated for reason of the employee's serious misconduct, there was a legally enforceable contract in place for the sale or lease of the property before the cessation date of the employee's employment; or

(ii) where the employee's employment terminates for any other reason, there was a legally enforceable contract in place for the sale or lease of the property prior to the expiration date of the exclusive agency period.

(b) For the purpose of clause 16.4, "exclusive agency period" means the period for which the employer has the exclusive right to sell or lease a property under the executed and valid agency agreement that was in effect at the time the employee's employment ceased. There is no entitlement under clause 16.4 where the property for sale or lease has been listed other than on an exclusive agency basis.

(c) Unless the written agreement made either under clauses 16.1 or 16.7 specifies otherwise, the portion of the commission, incentive payments or bonuses referred to in clause 16.4(a) must be the same as that with which the employee would have been entitled to be credited if their employment had continued.

(d) Any entitlement to commission, incentive payments or bonuses calculated under clause 16.4 only arises once the employer is paid commission by the client in respect of the sale or lease of the property to which the legally enforceable contract relates and the commission payment is cleared into the employer's bank account.

If there is a dispute between the employer and the employee as to whether all or any part of the commission is due to an employee pursuant to clauses 16.1 or 16.7, the matter will be dealt with in accordance with clause 28 - Dispute resolution.

28.1 Clause 28 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.

28.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.

28.3 If the dispute is not resolved through discussion as mentioned in clause 28.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.

28.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 28.2 and 28.3, a party to the dispute may refer it to the Fair Work Commission.

28.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.

28.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.

28.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 28.

28.8 While procedures are being followed under clause 28 in relation to a dispute:

(a) work must continue in accordance with this award and the Act; and

(b) an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.

28.9 Clause 28.8 is subject to any applicable work health and safety legislation.

• [10] The Applicant submits that changes made to s.739(6) of the Act effective from 4 October 2023 now allow the Commission to deal with such applications having removed the previous requirement that an applicant must be covered by the award at the time of the application. That proposition is incorrect. Section 739(6) has been part of the Act since it's commencement in 2009. In any event the terms of s.739(6) do not assist the Applicant.

• [11] The situation here is analogous to the situation dealt with by Deputy President Lake in Ting Xi v Ironfish[1] (Ironfish). In Ironfish, the Applicant also had a dispute with their employer about payment of commissions and the dispute arose after the cessation of employment. In his decision the Deputy President concluded as follows:

The Applicant asserted that clause 16.4 of the Award provides the Commission with the power to resolve the dispute. I find that if the dispute does not relate to the relationship between an employee and an employer then the dispute does not concern a matter that I have power to arbitrate under s 739.

I do not consider, simply because the right was not enforceable while the Applicant was an employee, that the Applicant should be able to make an application under s 739 post-employment.

In making this finding, I make note of s 595(1) of the Act, which states "the FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act." The Act does not provide me with express authority to deal with this dispute and therefore it must be dismissed for want of jurisdiction.

It seems unfortunate this pending entitlement cannot be addressed by the Commission, but this does not preclude the Applicant from pursuing her contractual right in the correct venue. While I am sympathetic to the inconvenience caused to the Applicant, the Commission "is not the proper forum in which to pursue such a claim."[2]

• [13] I largely agree with the Deputy President's decision and share his sentiment that it is unfortunate that the Applicant cannot pursue this matter in the Commission. This is particularly so when the entitlement under clause 16.4 can only logically arise after the cessation of employment. However, consistent with the reasoning in Ironfish, there is no jurisdiction for the Commission to deal with the matter.

• [14] While the Commission does have power to arbitrate a dispute between an employer and a former employee in certain circumstances[3], the jurisdiction is only enlivened if, consistent with clause 28.4 of the Award, all appropriate steps have been taken under clauses 28.2 and 28.3. As those steps have not been taken, a party to the dispute is not able to refer the matter to the Commission.

• [15] For these reasons the application must be dismissed for want of jurisdiction.

• [16] The application is dismissed. I order accordingly.

[1] Xi, Ting v Ironfish Brisbane T/A Ironfish Brisbane [2020] FWC 6176.

[2] Fairall v St George & Sutherland Community College Inc [2012] FWA 8847, [25].

[3] Jonathan Mitchell v University of Tasmania [2022] FWCFB 165.

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