Fair Work Act 2009

s.739 - Application to deal with a dispute

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Alleged dispute about any matters arising under the enterprise agreement - jurisdictional issue - whether the arbitral powers of the Commission have been enlivened - application filed when agreement of the parties for the Commission to arbitrate the dispute no longer existed - arbitral powers not enlivened - application dismissed.

• [1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU or the Applicant) has lodged an application for the Fair Work Commission to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act).

• [2] This is a dispute about whether the Commission can determine a dispute about the ETU's members working for Zinfra Contracting Pty Ltd (Zinfra or the Respondent) being relocated from their depot in Keysborough.

• [3] The employees are covered by the Zinfra Contracting Pty Ltd (Projects & Infrastructure) - ETU Victorian Electricity Enterprise Agreement 2023 which came into effect from 6 June 2024 (the 2023 Agreement). Previously, they were covered by the _Zinfra Contracting Pty Ltd (Projects & Infrastructure) - ETU Victorian Electricity Enterprise Agreement 2020 (_the 2020 Agreement).

• [4] Under the terms of both agreements, members of the ETU are entitled to be consulted about changes to their designated work location, including their designated home depot. The terms of the agreements also provide employees an entitlement to payment of a relocation allowance, in the event of a depot relocation.

• [5] The parties are in dispute about the method applied to calculate the relocation allowance.

• [6] The ETU's position is the calculation should be based on the personal homes of the employees as they have been using their homes as their depot since the Respondent closed the Keysborough depot. The Respondent maintains its calculation of the allowance payments based on the relocation from a proposed Rowville Depot to Dandenong South Depot is correct.

• [7] The ETU seeks the Commission to arbitrate the dispute and issue orders for the recalculation and payment of the relocation allowances based on its members' personal homes being their home depot pursuant to clause 2.1- Consultation and Dispute Resolution of the 2020 Agreement.

• [8] The ETU's F10 application form was filed with the Commission on 10 September 2024. In this application, the ETU made reference to the dispute arising under the terms of the 2023 Agreement.

• [9] At an initial conciliation conference before me on 14 October 2024, the Respondent identified it had objections to the Commission exercising its arbitral powers under the Agreement to determine the dispute. The first objection was that the Commission could not exercise it powers of arbitration for a dispute under the terms of the 2023 Agreement when the dispute alleged related to matters arising under the terms of the 2020 Agreement. A second objection was that by virtue of sections 58 and 54 of the FW Act, the dispute was extinguished when the 2023 Agreement came into force on 6 June 2024.

• [10] On 18 October 2024, I issued directions for the filing of material for the jurisdictional objection to be determined.

• [11] The Respondent filed its material on 14 November 2024. The ETU filed its material on 13 December 2024, along with an amended F10 application form clarifying the dispute it was seeking to be arbitrated was about matters arising under the terms of the 2020 Agreement in accordance with clause 2.1 thereof.

• [12] The Respondent presses its objections. They submit the Commission does not have power to arbitrate the dispute on grounds that the application was filed with the Commission after the 2020 Agreement ceased to operate, consistent with the Full Bench decisions of the Commission in Simplot[1] and Falcon Mining[2]. Further, that consistent with these authorities the Commission's power to arbitrate the dispute could not have been enlivened in circumstances where the application was filed with the Commission after the 2020 Agreement was replaced.

• [13] For the reasons set out below, I am not satisfied the Commission has jurisdiction to deal with the ETU's dispute application.

• [14] Much of the relevant background in this matter is no longer contested or in dispute between the parties.

• [15] It is accepted that within the life of the 2020 Agreement the ETU raised a dispute about the relocation of its members from the Keysborough depot along with the payment and calculation methodology of the relocation allowance. The ETU and its members took steps consistent with the terms of the dispute resolution procedure to resolve the dispute. On 3 May 2024, the Responded made it clear the dispute could not be resolved when it communicated a final position, rejecting the ETU's interpretation of the agreement.

• [16] At this time, the ETU argue the jurisdiction of the Commission was enlivened consistent with the provisions of dispute procedure agreed between the parties and that the Commission is obligated to arbitrate the dispute now that an application has been made for it to do so. The Respondent disagrees.

• [17] What is in dispute in this matter is whether the powers of the Commission to arbitrate a dispute under the 2020 Agreement remain when the Agreement has ceased to operate.

• [18] It is accepted that this is not a dispute about the terms of the 2023 Agreement.

• [19] It is accepted that the ETU raised a dispute under the terms of the 2020 Agreement.

• [20] It is not accepted that the ETU have complied with the requirements of the dispute settlement procedure to enliven the arbitral powers of the Commission while the 2020 Agreement continued to apply.

• [21] For this dispute to proceed to arbitration, I must first be satisfied the arbitral powers of the Commission under the 2020 Agreement are enlivened.

• [22] Both the ETU and the Respondent filed their initial material with the Commission consistent with my directions. On review of the material filed, on 15 January 2025, my Chambers sought the views of the parties on if they were seeking to examine the evidence, or to be heard further in relation to the matters in dispute.

• [23] My correspondence also advised the parties that I considered the key questions to be determined are as follows:

Have the arbitral powers of the Commission under the 2020 Agreement been enlivened?

What is the meaning of the words "The FWC may conciliate the matter and if the matter remains unresolved, the arbitrate."

• [24] The parties were invited to indicate if they wished to be heard further and provide any further submissions, including on the key questions, by 24 January 2025. The Respondent indicated they were content to have the matter heard on the papers and relied on their initial submissions in relation to the first key question identified by the Commission. The Respondent's view was the second question was not necessary and that it had consistently maintained the Commission lacked jurisdiction to determine the dispute.

• [25] The ETU filed shortly after the deadline for submissions closed (24 minutes exactly), making additional submissions which I accepted in the circumstances. The ETU indicated they were content for the matter to be heard on the papers and provided supplementary submissions on the key questions identified by the Commission. The ETU's position pressed that the requirements of the dispute procedure in the 2020 Agreement had been met, that conciliation had been unsuccessful and that the Commission's powers to arbitrate the dispute had been enlivened.

• [26] On review of the ETU's supplementary submissions, the Respondent sought to be heard further. A hearing on the jurisdictional issue was conducted on Friday, 28 February 2025. At the hearing, the ETU was represented by Mr Kelvin Reidy. The Respondent was represented by Ms Luci Mumme, who was granted leave to appear.

• [27] It is the principal position of the Respondent that the powers of the Commission to arbitrate this dispute have not been enlivened while the 2020 Agreement was in operation. They submit there was not the requisite agreement of the parties to arbitrate the dispute as required by s.739(4) of the FW Act while the agreement remained in operation.

• [28] Supporting this position, the Respondent identifies the terms of the 2020 Agreement ceased to have effect when it was replaced on 6 June 2024 by the 2023 Agreement.[3] Further, that the terms of the 2023 Agreement did not preserve any dispute arising under the terms of the 2020 Agreement.[4]

• [29] In circumstances where the ETU filed its F10 dispute application with the Commission on 10 September 2024, after the 2020 agreement had been replaced, the Respondent submits the Commission lacks jurisdiction consistent with the Full Bench decision in Falcon Mining. An authority, they submit, for the proposition the Commission has jurisdiction to deal with a dispute under an enterprise agreement that has been replaced where application has been made under s.739(6) of the Act prior to its replacement.[5]

• [30] The Respondent accepts that jurisdiction of the Commission may be retained where an agreement has ceased to operate in instances where all the necessary steps of the enterprise agreement's terms have been satisfied to enable the matter to be referred to the Commission at the time the Agreement ceased to apply.[6] In this case, they submit the ETU has failed to provide evidence this was the case at the time the 2020 Agreement ceased such that the dispute remained unresolved, was "live" and capable of referral to the Commission for arbitration.[7]

• [31] Further, the Respondent submits that in the present circumstances, the Applicant had every opportunity to raise the dispute and bring it to the Commission while the 2020 Agreement was in operation. The fact that they failed to do so suggests the issues first raised by the Applicant about the depot relocation were in fact resolved. Or, in the alternative, that the Applicant is being duplicitous in seeking to enliven the dispute only now when the Agreement has ceased to apply. Finally, they submit the Applicant's substantive claim for payment and recalculation of the relocation allowance lacks merit.[8]

• [32] The ETU submits this dispute first arose in October 2021 under the terms of the 2020 Agreement when the ETU disputed the relocation of its members from Keysborough to a proposed depot in Rowville. Issues in dispute included the proposed relocation, a lack of consultation and agreement from employees, and the methodology used to calculate payment of the relocation allowance.

• [33] Following initial discussions and an inspection of the Rowville depot, the Respondent agreed to pause the Rowville relocation and directed the Applicant's members to treat their homes as their home depot until an alternative depot could be confirmed. This interim measure resolved the immediate concerns, however, the ETU made clear the additional issues including the calculation of the relocation allowance remained in dispute.

• [34] These interim arrangements remained in place until 20 March 2024, when the Respondent advised employees that effective from 25 March 2024 they were required to work from a new Dandenong South Depot. On 22 March 2024, ETU members notified the Applicant the methodology used to calculate their relocation allowance was in dispute. Not having ever worked from the Rowville Depot, ETU members maintain the allowance needed to be calculated from the "home" depots they had been working from since October 2021.

• [35] On 25 March 2024, ETU representatives emailed the Respondent confirming the dispute. On 26 March 2024, the ETU shop steward advised the dispute applied to all employees. On 4 April 2024, the ETU Organiser spoke to the Respondent indicating the original 2021 dispute remained on foot. The matters in dispute were unable to be resolved despite several dispute settlement meetings during April 2024.

• [36] By 29 April 2024, the ETU maintains the agreed party-to-party dispute settlement discussions required by steps 1-3 of the dispute settlement procedure in the enterprise agreement were at an end. At this time, it was clear the dispute could not be resolved and either party was able to refer the dispute to the Commission for arbitration consistent with Step 4 of the agreed dispute settlement procedure. All that was required was the filing of an application to settle the dispute in accordance with Part 6-2 of the Act. This occurred on 10 September 2024.

• [37] On this basis, the ETU submits the Commission's jurisdiction to determine the dispute is enlivened by virtue of the agreement of the parties contained with clause 2.1 of the 2020 Agreement and the provisions of ss.595 and 739 of the FW Act.

• [38] The ETU rejects the Respondent's submission that the Commission lacks jurisdiction to arbitrate because the dispute was filed with the Commission after the 2020 Agreement ceased. That the Applicant's evidence provided in the form of a witness statement from ETU Organiser Mr Boyd clearly indicates the ETU complied with the terms of the 2020 Agreement while it was in operation. That by either 29 April 2024 or 3 May 2024, when the Respondent indicated its final position in relation to the dispute, the power of the Commission to arbitrate the dispute was enlivened by the agreement given to it by the parties in accordance with the dispute settlement procedure.

• [39] They submit this is consistent with the authority of the Full Bench in Falcon Mining that a dispute initiated under an agreed dispute settlement procedure in an enterprise agreement, when it is in operation, continues to bind the parties regardless of the agreement ceasing to be in operation.[9]

• [40] Further, they submit that Mr Boyd's evidence and the correspondence between the parties makes clear that the dispute remained "live" when the 2020 Agreement ceased to apply. Rejecting also the Respondent's suggestion that the substantive application is without merit or disingenuous because it was filed with the Commission after the 2020 Agreement ceased.

• [41] In proceedings, the Respondent made clear it did not contest the ETU's version of events provided by Mr Boyd of what occurred in the lead up to the cessation of the 2020 Agreement.[10] In doing so, the Respondent accepts the ETU raised a dispute about relocation and relocation allowances in accordance with the disputes procedure and the dispute was not resolved before the Agreement ceased.

• [42] The Respondent does not accept this means the Commission's power to arbitrate the dispute is enlivened. They maintain the Commission does not have power the arbitrate the dispute because the ETU filed its application after the 2020 Agreement ceased to apply. In essence, their position is that the power to arbitrate given to the Commission by the parties under the 2020 Agreement is extinguished when the Agreement is extinguished, unless otherwise provided for by the parties. They maintain this interpretation is in line with the authorities in both Simplot and Falcon Mining.

• [43] The Respondent refers to the Full Bench decisions in Simplot and Falcon Mining as authorities for the principles relevantly distilled by Commissioner Lim in a recent decision in Schoof v Hitachi (Hitachi), that:

"What is clear from the above authorities is that for the Commission's power to arbitrate a dispute to be enlivened, the parties must have reached agreement in accordance with the dispute resolution term before the relevant agreement ceases to operate and apply to the parties."[11]

• [44] It is a matter of fact that the 2020 Agreement ceased to operate on 6 June 2024, when it was replaced by the 2023 Agreement. The Respondent acknowledges, as held in Falcon Mining, that where an application has already been made to the Commission prior to the agreement ceasing to apply the jurisdiction of the Commission survives. They maintain, where an application has not already been made, and an agreement is extinguished the Commission's power is also extinguished.

• [45] Further, they submit Falcon Mining and the requirements of s.739(6) of the FW Act make it clear that the Commission has no jurisdiction to deal with a dispute under an enterprise agreement unless there is an application by a party to the dispute as identified by the Full Bench in Falcon Mining:[12]

"Simply put, the Commission is seized of jurisdiction to arbitrate in respect of a dispute arising under a dispute resolution term described in s 738(b) once an application is made in accordance with s 739(6) and the requite agreement under s 739(4) exists, and it is thereafter entitled to exercise that jurisdiction to completion."

• [46] The Applicant maintains that where the powers of the Commission are enlivened under the terms of an enterprise agreement they continue to apply and endure even when the enterprise agreement itself ceases to operate. Their position is that this is the correct interpretation consistent with the Full Bench in Falcon Mining which overrides the Simplot guillotine.

What are the Commission's powers to deal with disputes?

• [47] Section 595 of the Act provides for the Commission's powers to deal with disputes only if it is expressly authorised to do so in accordance with another provision of the Act. Section 739 provides for the Commission's power to deal with a dispute where an enterprise agreement includes a term that provides a procedure for dealing with disputes under section 738(b). An enterprise agreement must contain a term about settling disputes to be approved by the Commission in accordance with s.186(6) of the Act. The Commission must not exercise any powers limited by the term. The Commission may only arbitrate the dispute if the parties have agreed that the Commission may arbitrate the dispute.

• [48] In Falcon Mining the Full Bench said:[13]

"...it is s 739(4) which gives effect to an agreement by the parties for the arbitration of a dispute by the Commission pursuant to dispute resolution term of a type described in s 738, and it is s 739(3) which limits the powers of the Commission to deal with the dispute by reference to any such limitations contained in the relevant dispute resolution term. Therefore, the scope of the authority of the Commission to engage in arbitration of disputes pursuant to a dispute resolution term is ultimately the question of statutory construction although, in a particular case, the application of the statutory provisions will be affected by the terms of the relevant dispute resolution procedure."

• [49] The 2020 Enterprise Agreement contains the dispute settling procedure at clause 2.1.[14]

• [50] The parties did not identify any dispute as to the plain meaning of the dispute clause.

• [51] The principles of Agreement interpretation are well established and have been helpfully set out by the Full Bench in AMWU v Berri (Berri), and I need not repeat them here.[15] The Full Court of the Federal Court in Workpac Pty Ltd v Skene (Skene)[16] has affirmed this approach. In Qantas Airways v ALEA (Qantas),[17] Flick J applied these principles to the dispute resolution clauses in the Qantas and Jetstar Agreements. Commissioner Lim helpfully distilled these principles in the recent decision Hitachi at [78], observing that:[18]

"(1) The requirements in a dispute procedure must be construed with a degree of flexibility consistent with the industrial context in which clauses are drafted.

(2) With regards to the meaning of "dispute" in both the Qantas and Jetstar Agreements, the essence of "dispute" is that there is an occasion during which there is an exchange of "opposing views" or positions. The necessity is that there is an exchange of positions "for" and "against" a particular result.

(3) The terms "meeting" and "discussion" should be construed with a degree of informality and flexibility. The requirement for a "meeting" or a "discussion" obviously does not require a formally convened meeting or a formal discussion. By way of example, a dispute may best be sought to be resolved informally and during a lunch-break at which the dispute is raised with a manager or supervisor.

(4) There needs to be some minimum content to the steps in dispute resolution clauses. With regards to the Qantas and Jetstar Agreements, it was not necessary for those participating in the meeting or discussion to know that they were participating in a meeting which formed part of a dispute resolution procedure. What was required was an employee (or group of employees) raising an "opposing view" to their employer at a meeting (however flexibly that term is to be construed) at which it was known or could be reasonably inferred that each the "opposing" sides knew that there was a dispute in need of resolution."

• [52] I have considered the terms of clause 2.1 in the light of these authorities and applied the principles of Agreement interpretation to discern their plain and ordinary meaning. I note that at Step 4, the agreement of the parties is that:

"If the matter is still not resolved it will be referred to the Electrical and Communications Industry Disputes Board ("The Board") or the Fair Work Commission (FWC...The FWC may conciliate the matter and if the matter remains unresolved, then arbitrate."

• [53] Herein is a clear distinction in the use of the words "may" and "will". The use of the word "will" in the clause imposes a clear obligation on the parties to refer the matter to the Board or the FWC if not resolved.

• [54] Only then, once it has been referred, is the Commission empowered by the parties to either conciliate or arbitrate the dispute. The use of the word 'may' also makes clear the arbitral power of the Commission is not conditional on conciliation having occurred first.

• [55] On the above basis, I am satisfied the plain and ordinary meaning of the dispute clause is that it requires a dispute to be raised with the immediate manager first (Step 1); then, if not resolved at step 1, raised with the appropriate line manager, (Step 2); then, if not resolved at Step 2, raised jointly to a manager with industrial relations responsibility (Step 3); and then, if not resolved at step 3, referred to the Board or FWC for conciliation or arbitration (Step 4).

• [56] Once all these requirements are met, the requisite requirements of s.739(4) identified by the Full Bench in Falcon Mining is satisfied and agreement of the parties exists, the Commission's powers to arbitrate the dispute are enlivened.[19]

• [57] In Falcon Mining, the Full Bench provided guidance on two different approaches on the operation of s.739 at [66] in instances where the agreement is both in operation and no longer in operation as follows:

"[66] Subsection (1) of s 739 provides that the section applies if a term referred to in s 738 "requires or allows" the Commission to deal with a dispute. On one view (and presumably from the Simplot perspective), a term of an enterprise agreement can only require or allow something if it is in operation in accordance with s 54, since s 52(1)(a) provides that an agreement will only apply to an employee, employer or employer organisation if (relevantly), it is in operation, and s 51 provides that an agreement does not impose obligations on or give an entitlement to a person unless the agreement applies to the person. On this view, s 739 only applies in relation to a dispute resolution term in an enterprise agreement if the agreement is in operation. An alternative view would be that:

• as earlier discussed, s 738(b) does not require an agreement to be operative in order for Div 2 of Pt 6-2 to apply;

• the function of subsection (1) of s 739 is only to distinguish the application of the section, which is concerned with the Commission's power to deal with disputes, from that of s 740 which, by s 740(1), applies if the dispute resolution term requires or allows a person other than the FWC to deal with a dispute;

• s 51 is not relevant because s 739 is concerned with the power of the Commission to deal with disputes arising under dispute resolution terms, not with the obligations and entitlements of parties under the instruments in which such terms are contained; and

• • in respect of a term described in s 738(b), it will be sufficient that the dispute has arisen at a time when the term is in operation, and the right to have such a dispute resolved in accordance with the term remains operative and enforceable because it is a right which accrued during the operation of the agreement."[20]

"For the purpose of deciding this appeal, it is not necessary for reasons which will be explained to determine to finality which of these views in correct. We will proceed on the assumption that the former is correct, although we consider there is much to be said for the latter view."

• [59] The Full Bench also analysed how s.739[4] is to be interpreted, noting at [68]:

"The condition precedent for there to be authorisation to arbitrate under s 739(4) is that "in accordance with the term, the parties have agreed that the FWC may arbitrate ... the dispute". The requirement for the agreement to arbitrate to be in "accordance with the term" would mean, for example, that if the relevant dispute resolution term provides that workplace discussion, and/or conciliation by the Commission, must occur before the Commission can arbitrate, the parties cannot agree to arbitration occurring before those steps have been taken. It would also mean that if the dispute resolution term provides that it applies only to disputes of a defined character, then the parties could only agree to arbitrate disputes of that character. However, subject to this qualification, s 739(4) on its ordinary meaning empowers the Commission to arbitrate the dispute once the requisite agreement exists."[21]

• [60] I have considered the relevance of these authorities and applied them to the facts of the present matter.

• [61] It is not disputed that the ETU raised a dispute under the 2020 Agreement.

• [62] Consistent with authority in Falcon Mining that the power of the Commission is derived from the statute and the terms of the enterprise agreement entered by the parties, I consider the Commission will have authority to arbitrate this dispute, provided all relevant requirements of the dispute settlement procedure have been met while the agreement between the parties for it to do so remained.

• [63] The Respondent's position is that this is not the case. They accept Steps 1-3 were followed and further that by 3 May 2023 it was clear the dispute was still not resolved.

• [64] However, the remaining step of the dispute being referred to the Commission has not been met. That it was not until 10 September 2024 that the ETU referred a dispute to the FWC.

• [65] By this time the agreement between the parties for the Commission to arbitrate the dispute contained within Step 4 of the 2020 Agreement no longer existed.

• [66] On any reading of the facts of this case, it cannot be disputed that the ETU first referred this dispute to the FWC to enliven the arbitral power given to it by the parties in the 2020 Agreement after this agreement ceased to exist.

• [67] This undisputed fact is fatal to the ETU's application.

• [68] This conclusion is consistent with both the authorities in Simplot and Falcon Mining where in both cases the applications were made prior to the relevant agreements ceasing to have effect, but before the Commission commenced the exercise of its arbitral powers.

• [69] It is also consistent with numerous other single member decisions of the Commission.[22]

• [70] While the Applicant contends the dispute remained "live" prior to the 2020 Agreement expiring, it has not presented any convincing argument or authority to satisfy its contention that by virtue of just being "live" or "unresolved" the arbitral powers of the Commission were enlivened prior to 6 June 2024.

• [71] The terms of the dispute clause agreed between the parties in the 2020 Agreement make no such provision.

• [72] As set out above, at Step 4 what is required for the Commission's power to arbitrate the dispute to be enlivened is for it to be referred to the FWC. Plainly, this has not occurred in this case.

• [73] I accept, as the Applicant contends, that the powers of the Commission to arbitrate arise from the FW Act and the agreement between the parties. However, the facts of this case take this argument no further because the agreement for the FWC to arbitrate disputes arising under the 2020 Agreement that had not already been referred to the Commission expired on 6 June 2024.

• [74] Furthermore, the Applicant has made no submissions with respect to the requirements of s.739(6) of the Act which explicitly provides that the Commission "may deal with a dispute only on application by a party to the dispute". The Full Bench in Falcon Mining confirmed this position as stated in paragraph [45] above.

• [75] In the circumstances of this case, the ETU filed its application when the agreement of the parties for the Commission to arbitrate the dispute under the 2020 Agreement no longer existed. It follows that the Commission's arbitral power cannot be enlivened.

• [76] Accordingly, the application must be dismissed.

[1] [2020] FWCFB 5054.

[2] [2022] FWCFB 93.

[4] Respondent's outline of submissions at [13]-[14], Court Book page 48.

[5] [2022] FWCFB 93 at [70]- [71].

[6] Respondent's outline of submissions at [15]-[17], Court Book page 49.

[9] Applicant's submissions on jurisdiction at [22]-[26], Court Book pages 7 - 9.

[10] See Transcript of proceedings at [PN236]-[PN237].

[11] [2024] FWC 233 at [69].

[12] [2022] FWCFB 93 at [73].

[14] 2020 Agreement, Court Book pages 210 - 211.

[15] AMWU v Berri Pty Ltd [2017] FWCFB 3005.

[16] Workpac Pty Ltd v Skene [2018] FCAFC 131.

[17] [2020] FCA 951.

[18] [2024] FWC 233 at [78].

[22] See Lim C, Schoof v Hitachi Rail [2024] FWC 233 [77]; Wilson C, Pei-Hua Tsai v Calvary Health Care Tasmania [2025] FWC 172; Bell DP, Abraham Anfruns v Home@Scope Pty Ltd [2024] FWC 2094.

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