s.739 - Application to deal with a dispute

Melbourne Archdiocese Catholic Schools Ltd Trading AS MACS

Alleged dispute about any matters arising under the enterprise agreement and the NES; application for an Order to Produce Documents; application denied

• [1] On 10 April 2025 Mr Pargeter made an application pursuant to s 739 of the Fair Work Act 2009 (the Act) seeking that the Commission deal with a dispute, said to arise in connection with the Catholic Education Multi-Enterprise Agreement 2022: Diocese of Ballarat; Diocese of Sandhurst; Archdiocese of Melbourne and Lavalla Catholic College, Traralgon (the agreement).

• [2] The dispute involves the Melbourne Archdiocese Catholic Schools Ltd T/A MACS (MACS).

• [3] While it is not in dispute that clause 22 of the agreement contains a dispute resolution procedure which includes a means by which the Commission may arbitrate a dispute about the application or interpretation of the agreement, or the NES, MACS objects to the application on the basis it says the Commission does not have power under s 739 to deal with the matter (jurisdictional objection).

• [4] While reserving its rights in respect of the jurisdictional objection, MACS has voluntarily participated in conciliation conferences I have conducted for the purposes of attempting to assist the parties to resolve the dispute. It has not been possible to resolve the dispute.

• [5] I have made directions to facilitate the determination of the jurisdictional objection. These have involved directions that the parties are to file Outlines of Argument and evidentiary material relating to the objection. I will conduct a hearing in relation to the jurisdictional objection in due course.

• [6] On 19 May 2025, MACS filed submissions about its jurisdictional objection. In short form, the jurisdictional objection is based on the following propositions:

• a. That the "jurisdictional pre-conditions" in clause 22 of the agreement have not been satisfied[1] including because Ms Pargeter did not, in his discussions with his employer prior to referring the matter to the Commission did not characterise the matter as a "dispute"[2].

• b. That is inappropriate to have multiple proceedings simultaneously dealing with the same subject matters[3].

• c. That the Commission does not have the power to order any relief which would be of any utility to Mr Pargeter, including because he is no longer an employee of the Respondent[4].

• [7] On 16 April 2025, Mr Pargeter made an application pursuant to s 590 of the Act seeking an Order that MACS produce documents. MACS objects to the application.

• [8] The parties have filed written submissions in relation to the application for an Order to produce documents.

• [9] Upon consideration of those submissions, I am not prepared to make the Order sought by the Applicant for the production of the documents he seeks, at this time.

• [10] Taking into account the Applicant's written submissions made in support of his application for an Order to produce documents, it is evident that the documents sought relate to his substantive dispute, not the jurisdiction questions that have arisen. As I have determined that I will deal with these jurisdictional questions as preliminary matters, the documents sought are not relevant to the proceeding at this time.

• [11] On this basis, I decline to grant the Order sought by Mr Pargeter for production of documents.

• [12] Obviously, this decision does not preclude Mr Pargeter making a further application for an Order that documents be produced at a future point in this proceeding.

[1] Respondent's Outline of Arguments in Relation to Jurisdictional Objection, 19 May 2025 [29] - [39]

[3] Ibid [41]; Note Mr Pargeter has also filed an application seeking relief in respect of unfair dismissal: U2025/5563

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