Fair Work Act 2009

s.66M - Application to deal with a dispute about changing from casual employment

Casual conversion dispute - employment ceased - parties reached binding settlement in other matter - section 587 - no reasonable prospects of success - application dismissed

• [1] On 29 April 2025, Ms Harrie Roberts applied under s 66M of the Fair Work Act 2009 (Cth) for the Commission to deal with a casual conversion dispute. The respondent in this matter is RWWA. On 26 May 2025, RWWA informed my Chambers that the parties were attending a conciliation conference on Thursday 29 May 2025 for Ms Roberts' application filed under s 365 of the Act for the Commission to deal with a general protections dismissal dispute.

• [2] The parties subsequently executed a deed of settlement, which was provided to my Chambers.

• [3] On 11 July 2025, my Chambers wrote to Ms Roberts asking her to confirm whether she wished to discontinue her matter. RWWA wrote to Chambers to confirm that the matter had settled and RWWA had performed its obligations under the deed. On Wednesday 6 August 2025, my Chambers wrote to Ms Roberts again to ask whether she wished to discontinue her application. On Tuesday 12 August 2025, Ms Roberts informed my Chambers that she did not wish to discontinue her application as it was a separate application that was not resolved with her general protections application.

• [4] On Wednesday 13 August 2025, my Chambers wrote to the parties with the following observations:
  • the deed signed by both parties had a full and final release clause;
  • there was no disagreement that RWWA had complied with its obligations under the deed;
  • Ms Roberts' application under s 365 against RWWA stated that her employment with RWWA ended on 11 March 2025, well before Ms Roberts made her application under s 66M of the Act on 29 April 2025; and
  • the Commission has previously found that it does not have jurisdiction to deal with a casual conversation dispute if there was no employment relationship at the time the application to the Commission is made.

• [5] The email also provided my preliminary view on Ms Roberts' application as follows:

'The Commissioner's preliminary view on Ms Roberts' application under s 66M of the Act is:

(a) The application should be dismissed under s 587(1)(c) of the Act. This is because the application does not have reasonable prospects of success for the following reasons:

1. Due to clause 3.4 of the Terms of Settlement, Ms Roberts has agreed to release all claims arising out of her employment with the Respondent.
2. The Commission does not have jurisdiction to deal with the s 66M application as it was made after the employment relationship ended.

(b) Either of the above grounds is enough by itself for Ms Roberts' application under s 66M to be dismissed under s 587(1)(c).'

• [6] The parties were given until 12pm AWST, Friday 15 August to express their views on my preliminary view. The parties were notified that if I did not hear from the parties, I would proceed to determine whether to dismiss Ms Roberts' application based on the material before me. RWWA emailed my Chambers in support of my preliminary view. As of the date of this decision, Ms Roberts has not submitted any response or made any further contact with the Commission.

• [7] Section 587(1)(c) of the Act relevantly provides that the Commission may dismiss an application if the application has no reasonable prospects of success. This may be done on the Commission's own initiative or on application.

• [8] The principles to be adopted in determining if a binding settlement has been reached can be found in Masters v Cameron[1] and affirmed in Subeg Singh v Sydney Trains.[2]

• [9] However, this matter does not concern a dispute over whether agreement has been reached a conciliation conference or through a series of exchanges. Both parties have exchanged signed counterparts of the deed of settlement. The parties have reached binding settlement.

• [10] The deed contains the following release clause:

'On the Respondent complying with clauses 3.1 and 3.3 above, the Applicant releases and forever discharges the Respondent, its directors, employees, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant's employment with the Respondent, including but not limited to the cessation of the employment.'

• [11] In Gorman,[3] Besanko J said at [31]:

An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.

• [12] That is; in reaching agreement to settle Ms Roberts' general protections claim (the accord and satisfaction), the settlement agreement has brought all claims arising out of Ms Roberts' employment with RWWA to an end.

• [13] I am satisfied that the deed means Ms Roberts' application under s 66M of th4e Act has no reasonable prospects of success.

• [14] The provisions of s 66M were analysed by Deputy President Anderson in Arachchi _v Adecco Industrial Pty Ltd.[4]_The Deputy President noted that the express terms of s 66M confer jurisdiction on the Commission with respect to 'disputes between an employer and employee about the operation of the Division'. The Commission's jurisdiction only exists where the dispute is referred under s 66M(4). The Deputy President found that the plain meaning of these provisions indicates that the Commission only has jurisdiction to deal with a dispute where there was an employment relationship on foot at the time the dispute was referred to the Commission.[5]

• [15] In this case, based on Ms Roberts' applications under s 66M and s 365, her employment with RWWA had come to an end well before she made her application to the Commission under s 66M.

• [16] I find that even if Ms Roberts' claim under s 66M had not been extinguished by the parties executing a deed of settlement with a full and final release, the Commission still would not have the jurisdiction to deal with her application.

• [17] I order that Ms Roberts' application filed under s 66M of the Act be dismissed.

[1] [1954] HCA 72; (1954) 91 CLR 353.

[2] [2017] FWCFB 4562.

[3] Australian Postal Corporation v Gorman [2011] FCA 975.

[4] [2025] FWC 72.

Printed by authority of the Commonwealth Government Printer