s.739 - Dispute resolution

Australian Trade College North Brisbane, Christine Zechowski and Jason Allen

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - applicant seeks to resolve dispute under enterprise agreement - applicant not covered by agreement - no jurisdiction - application dismissed under s.587.

• [1] On 7 October 2025, Mr Darrin Ruprecht (the Applicant) applied to the Fair Work Commission under s.739 of the Fair Work Act 2009 for the Commission to deal with a dispute with his employer's host and related entity, Australian Trade College North Brisbane (the Respondent). Mr Rupecht is employed by MRAEL Ltd.

• [2] The dispute was brought under the Australian Trade College - North Brisbane Staff Enterprise Agreement 2019 which was superseded by the Australian Trade College - North Brisbane Staff Enterprise Agreement 2025 (the Agreements). The Applicant alleges the Respondent failed to comply with several clauses of the Agreement in changing the work he was responsible for.

• [3] This decision concerns whether or not the Commission has the jurisdiction to further consider Mr Rupecht's application, on the grounds that he is not an employee covered by the Agreement. For reasons outlined below I have found that it does not, and subsequently, that Mr Rupecht's application is dismissed.

• [4] I issued directions for the Respondent to file a response to the application which was subsequently filed on 23 October 2025. The Respondent objected to the application on the basis that Industry Liaison Officers, including the Applicant, are employed by MRAEL Ltd and not the Respondent, and as such the Applicant is not covered by the Agreements.

• [5] The parties were invited to confirm what industrial instrument applied. The Applicant contacted Chambers on 25 and 27 October 2025 with further material relating to merits but did not provide information regarding the relevant instrument for consideration. The Respondent provided that the Agreements' coverage clauses do not cover Industrial Liaison Officers and do not cover employees of MRAEL Ltd.

• [6] The Applicant was provided a further opportunity to respond. On 27 October 2025, my Associate sent the following email to parties:

The Commission previously sought your views regarding whether the ATCNB Agreement 2025 applies to your employment. The employer has since provided their position, contending that the agreement does not extend to cover you.

The Commissioner's preliminary view is that the ATCNB Agreement 2025 does not appear to apply to your employment. If that is the case, the dispute cannot proceed, as the Fair Work Commission does not have jurisdiction to deal disputes more generally. The Commission may only deal with a with dispute that arises under a modern award or an enterprise agreement that applies to the employee, and only to the extent allowed by the disputes provision of the relevant dispute provision.

Should you wish to provide a contrary view or make any further submissions on this issue, please do so by close of business, Tuesday, 28 October 2025."

• [7] On 4 November 2025, the Applicant provided their employment contract, which confirmed that they were employed by MRAEL Ltd.

• [8] Section 593 provides that the Commission is not required to hold a hearing except as provided by the Act. I consider the parties were provided ample opportunity to provide any submissions relating to the dispute at hand, including with respect to my preliminary view that the Commission did not have jurisdiction to determine this matter, and that I may move to dismiss the application per Section 587. As such, this matter has been determined on the papers.

• [9] Mr Rupecht's submissions in large part focus on his allegations that the Agreement had not been complied with. The only material relating to coverage that Mr Rupecht provided, the employment contract, leads to the conclusion that Mr Rupecht was not covered.

Does the Commission have jurisdiction to deal with the dispute?

• [10] The Agreements have largely similar coverage clauses, and the 2025 Agreement's clause 1.2 provides:

"This Agreement shall apply to the Australian Trade College North Brisbane (the College and/or the Employer) Ltd ACN 117 167 307/ABN 54 117 167 307 and its employees for whom classifications and wage rates are included in this Agreement and to the Independent Education Union of Australia, Queensland and Northern Territory Branch, signatory to this Agreement."

• [11] The Applicant was not employed by the Respondent, and was not covered by the Agreement.

• [12] Section 587 of the Act provides as follows:s

(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

(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:

• [13] In this case, the Respondent has sought that the application be dismissed. I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party's application, which has been made in order to seek some relief from a beneficial statutory provision.[2] I have therefore had regard to all of the facts and circumstances of this matter when considering the Respondent's request.

• [14] Mr Rupecht is not an employee of the Respondent, and I have found that he is not covered by the Agreement. Consequently, the Commission does not have jurisdiction to deal with Mr Rupecht's dispute. As such, I find his application has no reasonable prospect of success.

• [15] Noting that section 587(1)(c) provides that the Commission may dismiss an application that has no reasonable prospects of success, I am persuaded that I should exercise my discretion under section 587(3) and dismiss Mr Rupecht's application.

• [16] An order to that effect will issue with this decision.

[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

Printed by authority of the Commonwealth Government Printer