Fair Work Act 2009

s.739 - Dispute resolution

Village National (OICS Catering Pty Ltd) Trading AS Village National

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)] - jurisdictional issue - whether dispute procedure enlivened during employment- application dismissed

• [1] On 10 March 2025, Mr James Pearce (Pearce / the Applicant) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute. The Respondent was named as Village National (OICS Catering Pty Ltd) Trading AS Village National (Village National / the Respondent). The Applicant filed an amended application on 17 March 2025.

• [2] The Applicant was employed by the Respondent from 7 August 2016 until 25 September 2023 as a Camp Cook and from January 2017 at the Mereenie site, Northern Territory. During this time, he also carried out the responsibilities of the site's designated Site Emergency Response Team (SERT) First Aider. The dispute raised related to the Applicant seeking to be paid the relevant allowance for undertaking the role of SERT First Aider and "regarding misclassification and underpayment."

• [3] The relevant Modern Award is the Hospitality Industry (General) Award 2020 (the Award). The Respondent objected to the application as it said the dispute procedure in the Award has not been enlivened and complied with, and therefore the Commission does not have jurisdiction to hear the substance of the dispute.

• [4] A conference was held before me on 31 March 2025, and the matter was not resolved. Directions were issued for the filing of evidence and submissions, and the jurisdictional matter was listed for hearing before me on 24 April 2025.

• [5] At the hearing, the Applicant represented himself and the Respondent was granted leave to be represented by Mr Joshua Schultz of Dentons Australia under section 596(2)(a) of the Act.

• [6] The Applicant relied on the witness statements of himself dated 7 April 2025,[1] and Ms Karen Morgan, Camp Manager dated 3 April 2025.[2] Ms Morgan was not required for cross examination. The Applicant also relied on his Outline of Submissions filed on 25 March 2025, and his Outline of Submissions in Reply filed on 22 April 2025 and closing oral submissions.

• [7] The Respondent relied on the witness statements of Ms Elizabeth Kaye, General Manager - People & Compliance dated 21 March 2025,[3] and 14 April 2025,[4] and Mr Jason Steele, Manager - Operational Projects.[5] The Respondent also relied on its Outline of Submissions filed on 14 April 2025, and its closing oral submissions.

• [8] During the conference, parties agreed that the first question was one of jurisdiction and submissions were to answer the question of "whether the dispute settlement procedure had been triggered prior to 25 September 2023 (the Applicant's dismissal) and therefore whether the Commission has jurisdiction to determine the dispute."

• [9] The Award sets out the dispute settlement procedure at clause 40, as follows:

40.1 Clause 40 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES .

40.2 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.

40.3 If the dispute is not resolved through discussion as mentioned in clause 40.2, 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.

40.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 40.2 and 40.3, a party to the dispute may refer it to the Fair Work Commission.

40.5 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.

40.6 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.

40.7 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 40 .

40.8 While procedures are being followed under clause 40 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.

40.9 Clause 40.8 is subject to any applicable work health and safety legislation.

• [10] The Applicant submitted that he had raised concerns about his duties and pay multiple times during his employment.

• [11] The timeline of events in this matter appear to be:

• In April 2020 the Applicant had discussions with his manager (Mr Craig Alchin) about his concerns.

• On 28 May 2021, the Applicant submitted a leave application while off shift and followed up repeatedly via email on 2 June, 16 June, and 17 June 2021. Payroll confirmed they had received the Applicant's form but failed to process it in time for the pay cycle. This resulted in the Applicant not being paid his leave on the expected date.

• On 14 July 2021, the Applicant emailed OICS Payroll about a missing payslip and pay discrepancy, further evidencing unresolved pay concerns.

• On 23 November 2021, the Applicant questioned Mr Matthew Clayfield about a time sheet change. He submitted this demonstrated ongoing efforts to clarify his entitlements.

• In March 2023, in the days prior to the CPR incident, the Applicant spoke onsite to Mr Jason Steele, stating that his OFA duties far exceeded typical first aid responsibilities, directly raising the underpayment issue tied to his role.

• On 6 May 2023, the Applicant emailed HR, specifically Ms Kaye, inquiring about a pay rise following government-mandated increases. The Applicant submitted this demonstrated his proactive engagement with pay issues. Ms Kaye's response was "The rates will be reviewed ... in due course." The Applicant submitted that this was dismissive and failed to address his concerns and directly contradicts Ms Kaye's witness statement, where she claims, the Applicant did not raise pay issues until April 2024.

• On 2 September 2023, Ms Kaye's evidence was that the Applicant enquired about whether he would be entitled to his long service leave in an email and was advised it would be reviewed as part of his termination.

• On 25 September 2023, the Applicant's employment ended.

• On 28 September 2023, the Applicant was subsequently advised via email that he did not meet the circumstances requiring payment of long service leave, and which then led to a subsequent investigation from the Office of the Commissioner for Public Employment (NT).

• [12] Ms Kaye's evidence was that apart from the enquiry about long service leave, the Applicant's first enquiry about any other employment entitlement was in an email on 22 April 2024 where the Applicant states he had spoken to the Fair Work Ombudsman and requested details about his pay slip and first aid allowance.

• [13] Ms Kaye submitted that she had reviewed OICS' records and confirm there is no record where the Applicant raised a complaint or enquiry (let alone a dispute) about an employment matter other than long service leave until after the end of his employment.

• [14] The Applicant outlined his compliance with clause 40 as follows:

"Clause 40.1 - Dispute About a Matter: The dispute concerns underpayment and misclassification under Clause 21.2(e) of the Award and Section 90(2) of the Fair Work Act. I was misclassified as a Camp Cook while performing advanced SERT First Aider duties including CPR, RFDS coordination, trauma response, pain management, and emergency oversight. These responsibilities exceeded the scope of a Level 3 Cook but were never properly assessed or recognised. The dispute also includes underpayment of First Aid and Remote Allowances (including on paid leave), incorrect base rates applied to annual leave, and payslip transparency breaches under Regulation 3.46. These matters were raised with supervisors and HR during employment, and are supported by internal emails, payroll adjustments, site documents (Mereenie ERP, COVID-19 Plan), and a formal HR escalation. A recent OICS job ad requiring only basic First Aid confirms the disconnect between my duties and my classification. While the OCPE operates under a different jurisdiction, its findings in a separate matter confirm that my classification, duties, and entitlements were consistent with government employment standards contradicting the Respondents position in this case. This supports the credibility and substance of the dispute I raised during employment.

Clause 40.2 - Relevant Supervisor: I raised concerns with Operations Manager Craig Alchin (April 2020) and Jason Steele (March 2023). Steeles own witness statement confirms our discussion, and Camp Manager Karen Morgan was also present.

Clause 40.3 - Senior Management: I formally escalated the matter to HR via a 5 June 2023 email to Elizabeth Kaye requesting a classification and pay review.

Clause 40.4 - All Appropriate Steps: I took all reasonable steps available, including written and verbal engagement with supervisors, HR, and senior site management, despite no face-to-face HR access, a reprisal culture (Clause 16.2), minimal site visits, and unresolved psychological strain following a fatal CPR incident. As confirmed in Qantas v ALAEA [2020] FCA 951, informal exchanges can satisfy dispute steps, particularly in remote and high-risk work environments."

• [15] The Respondent's argument was twofold. It submitted firstly that the Commission does not have jurisdiction to deal with the 'dispute' under s.739 of the Act and clause 40 of the Award on the basis that the Applicant was not employed by the Respondent at the time of lodgement of the application. Secondly, or in the alternative, that the Applicant had not satisfied clause 40.4 in raising a dispute with respect to the matters subject of the 'dispute' during the Applicant's employment.

Lodgement of application not during employment

• [16] The Applicant submitted that the application was lodged well within the six-year limitation period under the Act for underpayment and entitlement claims, which in this case date back to 2016.

• [17] The Respondent submitted that its primary position is that the Commission does not have jurisdiction to deal with the dispute in circumstances where the application to the Commission was made some 17 months after the cessation of employment.

• [18] The Respondent referred to the case of King v Patrick Projects Pty Ltd[6] (King) where a Full Bench found the Commission lacked jurisdiction because the Applicant had not raised any dispute during their employment.

• [19] The Respondent also referred to the Full Bench decision of Mitchell v University of Tasmania[7] (Mitchell) summarised the principles arising in those cases in the following way (at [29] and [30], citations omitted):

"[29] We now turn to grounds 1 and 2 of the appeal. As the University properly acknowledged, insofar as the Commissioner determined that there was a lack of jurisdiction by reason of the fact that the Agreement ceased to apply to Mr Mitchell from the date that his employment terminated, his decision was contrary to a long line of Commission authority both pre- and post-dating the enactment of the FW Act. The decisions which were made under the Workplace Relations Act 1996, namely Jajoo, Telstra and Deakin University, determined that there was no basis to read a limitation into s 170LW of that Act preventing the Commission from arbitrating a dispute which had arisen at a time when there was there was an employment relationship between the disputants solely because the employment relationship had terminated after the Commission was seized of the dispute. That approach continued to be applied under the FW Act in the Full Bench decisions in Kentz, Broadspectrum and Goonyella on the basis that, where an application under s 739 of the FW Act for the Commission to deal with a dispute has been made at a time when an employment relationship between the relevant employer and employees remains on foot, the powers of the Commission to deal with the dispute under s 739 are engaged at that time and are not subsequently vitiated because the employment relationship later comes to an end."

• [20] The Applicant submitted that his case could be distinguished from King, and instead he referred to the case of ING Administration Pty Ltd v Jajoo[8] (Jajoo) which affirms that the Commission retains jurisdiction over post-employment disputes concerning accrued entitlements, provided the issue was raised during the employment period.

• [21] The Applicant referred to Jajoo, affirmed in Mitchell, where the Full Bench confirmed that the Commission retains jurisdiction under s.739 of the Act where a dispute arose during employment and the employer had actual or constructive knowledge even if the application is made post-employment. Further, the Applicant alleged that the Respondent misinterprets Mitchell as requiring a dispute application to be lodged during employment. In fact, in his view, Mitchell (at [29]) reaffirms the principle in Jajoo that jurisdiction exists where a dispute arose and was known to the employer during employment, regardless of when the application is made.

• [22] In response to the Respondent's reliance on Broadspectrum (at [56]) and Goonyella, the Applicant submitted that these cases confirm that the key threshold is whether the dispute was live and known during the employment period not the filing date. The Applicant was of the views that the standard is clearly satisfied in his case. In contrast, the Applicant submitted that he had raised his concerns during employment with multiple levels of management, including Mr Craig Alchin (2020), Mr Steele (2023), and Ms Kaye (2023).

• [23] The Respondent in response to Jajoo stated that the case involved a scenario where the employee lodged in the Commission after cessation of employment. However, it can be distinguished for the following reasons:

(2) the majority so found based on the particular wording of the enterprise agreement and based on the fact that the enterprise agreement was negotiated between the employer and employees covered (as opposed to a modern award applying by operation of law);

(3) the reasoning from the dissenting decision of Senior Deputy President Acton has been what has been applied in subsequent cases (see Mitchell).

• [24] However, in Jajoo, it was concluded that there is capacity for the Commission's jurisdiction to be enlivened in a dispute involving a former employee if there is compliance with the applicable dispute resolution procedure during the employment. This principle has been subsequently adopted in a line of cases in the Commission.

• [25] In the Respondent's submission, that divergence does not need to be determined in the present matter as the first time the Applicant raised any of the matters subject of the current application was post-employment. While those cases largely deal with enterprise agreements, the same principles apply to the construction of dispute resolution clauses that are contained within modern awards as found in Howard v Auscor Pty Ltd[9] (Howard).

• [26] The Respondent continued that the case of Howard is strikingly similar to the present. In that case, the Applicant (there was in dispute of whether the Applicant was an employee or an independent contractor), 'resigned' on 17 January 2022 and initiated proceedings in the Industrial Magistrates Court of WA. Following the dismissal of those proceedings, on 19 December 2022 the Applicant lodged a Form F10 with the Commission. Ultimately, the Commission concluded that it did not have jurisdiction, saying (at [54]-[56]):

"[54] The [Form F10] Notice is dated 19 December 2022, nearly 11 months after Ms Howard worked for Auscor. Having considered the evidence provided, I find that Ms Howard raised her dispute pursuant to clause 43 of the Award at a time when she was no longer working for Auscor. This is notwithstanding Ms Howard having asked Mr Scott McCoy about an entitlement to long service leave as detailed at paragraph [49]. In my view, asking whether there is an entitlement to long service leave does not constitute raising a dispute under a dispute resolution procedure in clause 43 of the Award.

[55] Even if one is to assume Ms Howard was employed when she says she was - that is on and before 17 January 2022 (which Auscor has denied), by the time Ms Howard raised the dispute under clause 43 of the Award (noting that Ms Howard's case is that she raised the dispute on 19 December 2022), Ms Howard would simply have been a former employee, no longer covered by the Award and therefore without the benefit of the Award. At that time, she could neither raise a dispute under the Award nor file an application in the Commission to have a dispute under the Award dealt with.

[56] Given that no dispute arose during Ms Howard's 'employment', the application cannot proceed for want of jurisdiction."

• [27] The Applicant submitted that the Respondent's reliance on Howard is misplaced. In Howard, the Applicant raised no dispute during employment. By contrast, the Applicant said his concerns were raised repeatedly with supervisors and HR during employment. Clause 40's reference to 'employee at the workplace' and that 'work must continue' relates to managing active disputes not to restricting jurisdiction to current employees. The Full Bench in Jajoo and Broadspectrum affirms that jurisdiction exists where a dispute arose and was known to the employer during employment, even if the application was made post-employment. The Applicant submitted that the threshold is met in his case.

• [28] The Applicant submitted that the delay in filing is not fatal to the jurisdiction of his application and reflects:

• A repressive workplace culture (Clause 16.2 of his contract),
• Lack of procedural access (no face-to-face HR contact; senior site visits only 1-2 times per year),
• Psychological harm following a traumatic CPR fatality,
• And continued post-employment deflection by the Respondent's representative, who failed to resolve the dispute despite my efforts to clarify my entitlements and instead adopted a pattern of dismiss, deflect, and delay mirroring the employers behaviour during my employment.

No compliance with the procedure during employment

• [29] For the purposes of s.739(1) of the Act, the Commission can only deal with a 'dispute' if the statutory condition precedents in clause 40 of the Award are satisfied.

• [30] In Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2)[10] (Qantas), Flick J construed dispute resolution procedure clauses albeit in particular industrial agreements and said the following with respect to the meaning of a 'dispute':

"62. Self-evidently, central to both cl 6 of the Qantas Agreement and cl 20 of the Jetstar Agreement is the necessity for there to be a "dispute". ... The essence of that meaning is that there is an occasion during which there is an exchange of "opposing views" or positions - the necessity for there to be an exchange of positions "for and against" a particular result. A dispute may involve a "heated" exchange or "argument" - but there is no necessity for a dispute to be heated or confrontational. Indeed, in an industrial context it would generally be preferable for there to be no escalation to the level of a "quarrel" or "altercation".

70. Notwithstanding a more generally expressed conclusion that the relevant clauses are to be construed with some degree of informality and flexibility, the submission advanced on behalf of Qantas and Jetstar that there needed to be some minimum content to these provisions is accepted. That minimum content, it is concluded, is that there needed to be an occasion on which those participating in the meetings had to know that there were opposing views being expressed and that those opposing views needed to be resolved.

• [31] The Applicant has identified 7 'matters' in the Form F10 in response to question 2.1 (steps taken to progress the dispute):

"1. Annual Leave Underpayment- Under Section 90(2) of the Fair Work Act 2009, annual leave must be paid at the full rate payable had the employee worked. My base rate was $30.67 per hour, but I was only paid $26.18 per hour for my accrued leave, resulting in an underpayment of $6,057.01 plus 17.5% leave loading ($1,059.98), total $7,116.99.

2. First Aid Allowance Underpayment- Under Clause 21.2(e) of the Hospitality Industry (General) Award 2020, I was entitled to a First Aid Allowance due to performing advanced First Responder duties, including administering medication, pain management, performing solo CPR for 20 minutes in a fatal emergency (acknowledged by the employer), ongoing medical observation of injured workers post-treatment and driving the site ambulance. These duties were explicitly assigned by my employer, as confirmed by internal emails, witness statements from senior management at Central Petroleum, and site documentation. Industry benchmarks (e.g BHP WA Iron Ore) confirm that First Responders receive $6.50-$10 per hour, yet I was only paid $2.49 per hour. These duties were not included in my employment contract, meaning they should have been treated as higher duties and separately compensated. My underpayment totals $74,450.10 (based on 14,860.30 hours worked)

3. Payslip Transparency Breach-Under Regulation 3.46 of the Fair Work Regulations 2009, employers must itemize all allowances separately on payslips. My payslips did not list the First Aid Allowance or Remote Work Allowance, preventing verification of my entitlements.

4. Misclassification & Base Rate Issues- Under Section 16(2) of the Fair Work Act 2009, all-hour allowances must be included in base pay where applicable. My base rate should have been $30.67 per hour, yet I was paid $26.18 per hour, impacting my leave entitlements and superannuation.

5. Employer's Failure to Provide Clear Pay Structure- The employer refused to provide a breakdown of the all-inclusive site rate despite multiple written requests. This lack of transparency has delayed proper calculation of entitlements and contributed to the dispute.

6. Employer's Incorrect Use of "All-Inclusive Rate- The employer asserts that all allowances were absorbed into my wage, but no Individual Flexibility Agreement (IFA) exists to justify this. The Better Off Overall Test (BOOT) fails if the First Aid Allowance was properly applied, meaning my total wage would have been below the minimum Award standards.

7. Superannuation Shortfall (Pending ATO Review)- My underpaid wages and allowances directly impacted superannuation contributions, which will be analyzed with the ATO."

• [32] The Respondent submitted that with respect, matters 3 (pay slip transparency), 4 (misclassification and base rate issues), 5 (employer's failure to provide clear pay structure) and 6 (employer's incorrect use of "All-Inclusive Rate") are not matters under the Award or the National Employment Standards (NES) in the sense that they owe their existence to a particular provision within the Award or the NES.

• [33] The Respondent otherwise accepts that matters pertaining to annual leave (s.90 of the Act), first aid allowance (cl 21.2(e) of the Award) and superannuation (s.116B of the Act) are matters under the Award or the NES. With respect to the steps taken prior to the end of employment, it is not in dispute that the Applicant's employment with the Respondent ended on 25 September 2023. The Applicant has not identified any specific 'steps' in the Form F10.

• [34] The Applicant was of the view that the Respondent misapplies Qantas and submitted that it defines a dispute 'as an exchange of opposing views not requiring formal escalation.' The Applicant stated his concerns were raised and ignored. These exchanges clearly meet Qantas' threshold. The Applicant stated that he raised classification and pay concerns with Mr Craig Alchin, corroborated by Ms Karen Morgan. Mr Alchin's failure to act constitutes an opposing view under Qantas, satisfying Clause 40.2. The Applicant's evidence was that absence of formal escalation reflects the sites reprisal culture and limited HR access, not a failure on his part.

• [35] The Applicant continued that the Respondent's claim that matters 3-6 fall outside the Award or NES is incorrect. Issues relating to payslip transparency, misclassification, unclear pay structure, and the All-Inclusive Rate all stem from Award breaches, including Clause 21.2(e) (First Aid Allowance), s.90(2) (annual leave), and Regulation 3.46 (payslip transparency). These are not peripheral but central to the live dispute.

• [36] The Applicant contended that the Respondent's focus on the timing of the Applicant's formal application ignores the substance of the dispute, which clearly arose and persisted throughout his employment. The Applicant's efforts to raise concerns he submits, were met with dismissive or vague responses, including from HR and management, as evidenced in internal email correspondence.

• [37] The Applicant submitted that his dispute was live during employment, between 7 August 2016 to 25 September 2023, as evidenced by repeated communications with site managers, a formal email to HR, and consistent concerns about misclassification and First Aid responsibilities. He asserted that the Respondent had both actual and constructive knowledge of these concerns and failed to resolve them. He contended that his duties as the designated SERT First Aider extended well beyond a Camp Cook classification, yet no review or support was provided. Further he said the definitions adopted in the Response do not override Jajoo, which confirms jurisdiction where a dispute arose during employment and was known to the employer, even if lodged post-employment.

• [38] The Respondent's position is that even at its highest, Mr Pearce's enquiries were not a dispute in the sense identified by Flick J in Qantas. Further, and as found in Howard, simply asking whether there is an entitlement does not constitute raising a dispute under a modern award dispute resolution procedure. The Respondent submitted that there is no suggestion Mr Alchin or another person exchanged an opposing view.

• [39] Ms Kaye gave evidence that for as long as she has been in her role at VNG, it is common practice and well known that any question or query relating to employment including employment entitlements will be referred to her or the HR team which she manages. Ms Kay said aside from facilitating payroll, payroll would respond to employee queries relating to missing timesheets, payslips or payment queries and either Ms Kaye or her team would deal with questions around entitlements (if it was not clear cut) or other employment related matters.

• [40] The Applicant said in April 2020 he discussed with Craig Alchin, then Operations Manager, his extra workload during COVID working 7 weeks straight, including an unpaid onsite R&R Day mandated by the COVID response plan and fatigue policy. He said in the months following the lockdown, an email from Central Petroleum to Craig Alchin on 16 September 2020 requested an additional cook with OFA training for a shutdown, confirming the Respondents awareness of specialised roles. Ms Morgan said she was present for this conversation and the Applicant raised that his SERT responsibilities and workload were not reflected in his pay.

• [41] Ms Kaye said she has reviewed the OICS' books from April 2020 and could not identify and document which pertains to any query raised by the Applicant to Mr Alchin or anybody else in the payroll team.

• [42] The Applicant said on 28 May 2021, he submitted a leave application while off shift and followed up repeatedly via email on 2 June, 16 June, and 17 June. Payroll confirmed they had received his form but failed to process it in time for the pay cycle. This resulted in him not being paid his leave on the expected date, causing stress and financial disruption.

• [43] Ms Kaye provided a copy of the email chain between the Applicant and Payroll in relation to this issue. Ms Kaye said ultimately payroll processed the payment on the relevant day, albeit in a separate payment.

• [44] The Applicant asserted that the Respondent's characterisation of the May/June 2021 leave issue as routine is inaccurate. His evidence was that follow-ups on 2 and 16 June 2021 demonstrate a live dispute under Qantas, where his entitlement was delayed until he intervened, an exchange of opposing views. This delay was not isolated but part of a broader pattern of payroll dysfunction and employer inaction, supporting his live dispute during employment.

• [45] The Applicant was referred to the email chain attached to Ms Kaye's statement. The Applicant accepted in his oral evidence that the issue was resolved at the time.

• [46] On 14 July 2021, the Applicant's evidence was that he emailed Payroll regarding a pay discrepancy. He said he also raised the concern verbally with Camp Manager Ms Karen Morgan. After reviewing the issue, Ms Morgan identified a 12-hour underpayment affecting both of them, and formally escalated it to Payroll on 29 July 2021. Payroll later corrected the error.

• [47] Ms Kaye explained in her evidence the background to this issue and provided contemporaneous documentation where it was identified Ms Morgan had put an incorrect date on her and the Applicants timesheets and the pay of the Applicant and Ms Morgan was corrected, and the issue was never raised again.

• [48] The Applicant submitted that his initial objection, escalation by a manager, and subsequent payroll correction constitutes a clear dispute under Qantas. The fact that Payroll only addressed the issue after intervention confirms it was not a routine adjustment but a dispute requiring active resolution. Without his intervention, he was of the view that the underpayment would likely have gone unresolved.

• [49] The Applicant was again referred to the email chain in relation to this issue during his oral evidence. He agreed he raised the issue promptly after it was identified, and he agreed he was paid the 12 hours that was missing. The Applicant said himself the problem was solved, and the issue was concluded.

• [50] The Applicant said on 23 November 2021 he questioned Matthew Clayfield about a time sheet change, demonstrating ongoing efforts to clarify his entitlements. Ms Kaye provided with her evidence an email chain between the Applicant and Mr Clayfield from 23 November to 25 November 2021 and said the Respondents records confirm the issue was never raised again. The Applicant agreed the issue reached a concluded but the issue highlights discrepancies in payroll.

• [51] The Applicant said in the days prior to the CPR incident, he spoke onsite to Jason Steele, Field Operations Manager (SA & NT), stating that his OFA duties far exceeded typical first aid responsibilities, directly raising the underpayment issue tied to his role. He said the Respondent's claim that his March 2023 conversation with Mr Jason Steele was not a dispute under Clause 40 is incorrect. He said this discussion was witnessed and later confirmed by Camp Manager Ms Morgan. Ms Morgan said she was present for this conversation where the Applicant raised with Mr Steele that his classification and pay didn't align with his role.

• [52] Ms Morgan said over the course of the employment of the Applicant and herself they had both discussed how their roles were not properly recognised, and the Applicant was vocal in saying he felt undervalued and incorrectly classified, however they both believed that raising these concerns formally could jeopardise their employment.

• [53] Ms Morgan said there was a shared concern among staff that formal complaints could result in removal from swing rosters or loss of re-employment and as a result, most workers including the Applicant and herself limited their complaints to discussions with Operations-level management.

• [54] Ms Kaye said she did not recall the issue of either the Applicants responsibilities and classification under the modern awards ever coming to her attention, whether raised by the Applicant or someone else including Mr Steele. Ms Kaye said she has reviewed the Respondents records and cannot identify any record of the Applicant or another person contacting HR or Payroll raising such an issue from this time.

• [55] Mr Steele said in his oral evidence that he did recall the conversation in March 2023 with the Applicant. He said he was in a Field Support role at the time, however from 16 to 27 March 2023 he was filling as an extra Chef at Mereenie camp in the Northern Territory. He said he was not the Applicants supervisor or line manager and he did not have any supervisory or line management duties. He said he recalled a conversation with the Applicant and Ms Morgan at the camp where they raised a query around whether they should be paid more for an allowance because of first aid duties. He said he responded by saying they should raise any issue dealing with pay with HR or Payroll. He said he did not recall the conversation progressed any further. He said he did not relay the Applicants query to HR o Payroll himself.

• [56] Mr Steele said during his oral evidence he remembered the Applicant saying his first aid duties were more than his role. Mr Steele said he had not seen the arrangement on any other sites. Mr Steele repeated his evidence he did not raise it with anyone else and he pointed him to HR.

• [57] The Applicant contended that Mr Steele's response was referring him to HR without further action constitutes an opposing view in accordance with the Qantas decision. The Applicant noted the Respondent's attempt to minimise Mr Steele's authority by describing him as a fill-in Chef is contradicted by his promotion to Manager - Field Operations SA/NT on 27 March 2023, just days after the conversation. His broader responsibilities including training, auditing, and site-level compliance demonstrate that he was acting in a supervisory capacity. If he was paid in lieu of those days, that further affirms his operational role and obligation to escalate concerns.

• [58] On 4 June 2023 Ms Kaye sent an email to the Applicant indicating it appeared the Respondent would be successful in having its contract renewed with its client at Mereenie. The Applicant sent an email replying to Ms Kaye that simply read "Thanks for the email Liz. Are we getting a pay rise now the government has moved on australia wide pay increases?"

• [59] Applicant's evidence appeared to be that this email of 5 June 2023 represented an escalation of the CPR matter to senior management satisfying Clause 40.3 of the Award. He said this interaction formed part of an unresolved, live dispute during employment.

• [60] Ms Kaye said the 'CPR' incident' referred to occurred on 24 March 2023. Ms Kaye said the Applicants email of 5 June 2023 was some months after the CPR incident. The Applicant said the absence of a direct reference to the CPR incident in his email reflects his fear of reprisal and the known lack of procedural safety when dealing with HR. The Applicant said Ms Kaye's response-"The rates will be reviewed ... in due course" was dismissive and failed to address his concerns. The Applicant said this directly contradicts Ms Kaye's witness statement where she claims he did not raise pay issues until April 2024, highlighting her confusion or deliberate omission of key evidence.

• [61] The Respondent submitted that simply raising a query in the workplace does not constitute "all appropriate steps" for the Commission to have jurisdiction years after the event.

• [62] Ms Kaye gave evidence explaining the Respondents method of paying employees in catering services in remote locations a Site Daily Allowance. Ms Kaye said on 6 July 2023 she wrote to the Applicant and confirmed that his rate of pay would change from 10 July 2023 including an increase to the Site Daily Allowance. Ms Kaye said she did not recall the issue of the Applicants pay rate ever coming to her attention again.

• [63] The Respondent said that the Applicant's email query regarding the Annual Wage Review, on any objective reading, goes no higher than an employee enquiring about a pay increase following the announcement of the Commission's Annual Wage Review. An employee making such an enquiry is not raising a dispute in the sense identified by Flick J in Qantas. Further, as found in Howard, simply asking whether there is an entitlement does not constitute raising a dispute under a modern award dispute resolution procedure.

• [64] The Applicant says that "he regularly discussed" misclassification and underpayment with Ms Morgan. Ms Morgan has a different take - that their discussion was that their roles "were not properly recognised" and the Applicant saying to Ms Morgan that, "he felt undervalued and incorrectly classified". Two co-workers discussing similar views as colleagues about feeling undervalued in the workplace or perhaps confusion over their duties vis-à-vis their position title is not raising a dispute in the sense identified by Flick J in Qantas.

• [65] The Applicant submitted that the Respondent's claim that his discussions with Ms Morgan were not a dispute mischaracterises the evidence. Ms Morgan and the Applicant, both SERT First Aiders, discussed their misclassification, raised this with Mr Alchin and Mr Steele, triggering corrections, meeting the Qantas threshold. In the Applicant's view, the lack of escalation reflects a reprisal culture and HR inaccessibility, not inaction.

• [66] The Applicant agreed he received the correspondence from the Respondent dated 6 July 2023 concerning him receiving a pay rise. He agreed he did not raise any issue following receiving the letter.

• [67] On 29 August 2024 the Applicant resigned from his position in writing stating he had sincerely enjoyed his time working with the OICS team and was grateful for the opportunities and experiences he gained during his employment, wishing all staff the best in the future.

• [68] On 2 September 2023 whilst still employed the Applicant raised a long service leave entitlement with HR. he said rather than reviewing his duties, classification, or seven years of continuous service, the Respondent's HR Manager, Ms Kaye, instinctively questioned whether he had been on JobSeeker. Mr Pearce's last day of employment was 25 September 2023.

• [69] Ms Kaye said on 28 September 2023 the Applicant was advised that he did not meet the circumstances requiring payment of long service leave and this led to a subsequent investigation from the Office of the Commissioner for Public Employment (NT). Ms Kaye said apart from long service leave the Applicants first enquiry about any other employment entitlement was to her on 22 April 2024.

• [70] It was put to Ms Kaye that she said to the Applicant on 4 September that Job Keeper might affect his long service leave. Ms Kaye said the question he was asked was that as he had worked 7 years, was he entitled to be paid out pro rata long service leave. Ms Kaye said absences such as job keeper could affect the calculation but not the continuity.

• [71] It is notable that this application was filed some 17 months after the Applicant ceased to be employed by the Respondent.

• [72] As set out above Flick J observed in Qantas Airways v ALAEA that the meaning of "dispute" is that there is an occasion during which there is at least an exchange of "opposing views" or positions, and the necessity for there to be an exchange of positions "for and against" a particular result.

• [73] Further in the matter before him he observed that is that there needed to be an occasion on which those participating in the meetings had to know that there were opposing views being expressed and that those opposing views needed to be resolved.

• [74] The Applicant submitted that even if a formal grievance wasn't lodged with HR (due to fear of reprisal), the pattern of discussions, documented duties, and systemic issues establish that the dispute was live during his employment.

• [75] The Applicant asserts he raised concerns, and they were ignored, and this meets the threshold of being in dispute. The Applicant asserts that the absence of formal escalation reflects the sites reprisal culture and limited HR access, not a failure on his part.

• [76] I have concluded it is not necessary to determine whether an application under section 739 of the Act needed to file an application before the Applicants termination, as I have determined on the evidence no dispute under the dispute settlement procedure existed before the Applicants termination. There is no evidence to support a conclusion that the conversation in April 2020 was a matter in dispute, however even it was it was never escalated.

• [77] That matters in May, June, July and November of 2021 were all resolved on the Applicants own evidence.

• [78] I do not accept that the conversation between the Applicant and Mr Jason Steele in March 2023 was the raising of a dispute under Clause 40, or that that his email on 5 June 2023 to Ms Kaye requesting a pay review constituted an escalation of a dispute to Clause 40.3 of the dispute settling procedure in the Award.

• [79] The Applicants discussions with Ms Morgan and discussions with Mr Alchin and Mr Steele, even if they did constitute the raising of a dispute, were never escalated to clause 40.3. The discussions between the Applicant and the Respondent concerning his entitlement to pro-rata long service leave were not a matter the subject of a dispute between the parties before the end of his employment.

• [80] It seems the Applicant is particularly aggrieved by what he perceives as a failure of the Respondent to take appropriate steps to protect his safety in reference to psychological injury in the circumstances surrounding a tragic incident in March 2023, and that he was also not being remunerated for the responsibilities that had been placed on him in relation to the first responder role. He is aggrieved that his position was not reviewed by the Respondent after the incident. The Applicant also emphasised the isolation in the FIFO setting.

• [81] However, despite the Applicant being aggrieved about these matters, it is apparent from the evidence he did not take the steps to initiate a dispute under clause 40 of the Hospitality Industry (General) Award 2020 whilst still employed, and at no point was there a live dispute that would fall within the meaning of dispute as described in Qantas whilst he was still an employee. Even if I am wrong about that, it is apparent that, he never escalated a dispute through the dispute settlement procedure as required before filing an application in the Commission.

• [82] It is apparent that the substance of the dispute now pressed by the Applicant, in its true character, is a claim for the underpayment of wages and is capable of being pursued in a court of competent jurisdiction if the Applicant decides to take the matter to court. Even if I were to have found the application was within jurisdiction, as it is a dispute under an award the Commission's power to arbitrate the dispute would still be contingent on the Respondents consent. Given the nature of the dispute, in my opinion it is unlikely such consent would have been forthcoming. The Respondents defence to the underpayment claim relies on the use of a common law set off clause based on his contract of employment, an issue commonly dealt in court proceedings.

• [83] I have concluded based on the evidence that the Commission does not have jurisdiction to deal with the dispute under section 739 of the Act and clause 40 of the Hospitality Industry (General) Award 2020 because the Applicant did not raise a dispute with respect of the matters that are the subject of the dispute whilst employed by the Respondent. On that basis I have decided to dismiss the Application. An order will be issued separately and concurrently to that effect.

[6] [2015] FWCFB 6323.

[7] [2022] FWCFB 165.

[8] (2006) 158 IR 239.

[9] [2023] FWC 272.

[10] [2020] FCA 951.

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