• [8] On 20 June 2025, my Chambers received an email from Dong & Partners which set out the directions that the parties proposed. These included that, following the parties filing and serving the material on which they wished to rely on the jurisdictional question, the matter would be determined on the papers. I made those directions and have proceeded accordingly.

• [9] Part 6-1 Division 3 of the Fair Work Act is titled "Preventing multiple actions". Subdivision B is titled "Applications and complaints relating to dismissal". It relevantly contains the following provisions:

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; or

(iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.

732 Applications and complaints under other laws

(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; or

(2) An application or complaint under another law is an application or complaint made under:

(a) a law of the Commonwealth (other than this Act); or

• [10] The effect of those provisions, by reference to relevant authorities, was accurately summarised in Marubeni Australia's submissions. For convenience, I reproduce those submissions:

"6. Those provisions go to the validity of an application before the Commission, and the Commission's jurisdiction to deal with it (Bosco Alex v Costco Wholesale Australia [2014] FWC 1904 (Costco) at [11]; Dr Amir Reza Zokaei Fard v Royal Melbourne Institute of Technology (RMIT University) [2023] FWC 10 at [7]). They erect a prohibition on an application being made under section 365 if another application has been made so that section 725 is enlivened, statute barring such an application (Peter Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660 at [30]; Karren Hazledine v Kirk Wakerley & Ben Giddings [2017] FWCFB 500 at [14]). The provisions are intended to have a wide application (Birch v Wesco Electronics (1966) Pty Ltd [2022] [sic - [2012]] FMCA 5 (Birch) at [87]).

7. That prohibition is temporal due to the words in section 725 - 'must not make'. That prohibition on making an application under section 365 operates at the time that the application is purported to be made to Commission [sic] (see Piefke v Workpac Pty Ltd [2021] FCCA 1166 at [12](a); Birch at [41]-[61]).

8. The provision applies to a person who, at the time of making the application to the Commission, 'has been dismissed'. That is the temporal precondition that enlivens section 725... If, at that time, there is any other application on foot in relation to the dismissal which enlivens section 725, then it is barred and no valid application is made.

9. Accordingly, the subsequent withdrawal of an application under another law relating to a dismissal, does not cure the invalidity of an application purported to have been made to the Commission under section 365. That simply removes the bar to making such an application after the withdrawal (Costco at [12], [15]).

10. The jurisdiction of the Commission to deal with an application, by conducting a conference under section 368(1) of the FW Act is conditional on an valid application being made under section 365."

• [11] Marubeni Australia's challenge to the Commission's jurisdiction to deal with the GP Application must be resolved before the Commission can exercise any of the powers the Fair Work Act confers on it.[1]

• [12] For present purposes, the relevant factual context can be briefly stated.

• [13] Marubeni Australia employed Ms Ye as a Sales Coordinator. In mid-2024, it informed her that the part of the business in which she was employed was to be transferred to an associated entity, Rangers Valley Cattle Station Pty Ltd. In August 2024, Ms Ye was offered employment with Rangers Valley.

• [14] In a letter to Ms Ye dated 27 August 2024, Marubeni Australia stated in part:

"Ongoing, you have been offered a position within the Rangers Valley team allowing you to continue your employment with the Marubeni Group when this transition is complete. This position is substantially similar in all important respects to your current position, although there are some minor differences. In broad terms, the hours of work, location of the work (Sydney CBD and work from home), work tasks and aggregate remuneration are the same, although with some small changes, for example in the way remuneration is structured.

Please note that in a change of employer within the Marubeni Group into a substantially similar position, Marubeni does not consider this change represents a redundancy for you. Rather it is a transfer of employment between associated entities with ongoing service. Not taking up this position and there being no other position in MAL for which you can be considered, will mean you effectively resign from Marubeni."

• [15] In its response to the GP Application, Marubeni Australia conceded that it was in error in stating that Ms Ye would "effectively resign" if she did not accept the offer of employment with Rangers Valley. It sent a further letter to Ms Ye on 28 August 2024 (incorrectly dated 23 August 2024). In that letter, Marubeni Australia stated that if Ms Ye did not accept employment with Rangers Valley, her employment with Marubeni Australia "may be terminated due to redundancy". The letter confirmed the company's position that in those circumstances, Ms Ye would not receive any redundancy payment.

• [16] Ms Ye did not accept the offer of employment with Rangers Valley. In a letter dated 2 December 2024, Marubeni Australia informed Ms Ye that it would continue to engage her on work related to the transfer of business until the end of March 2025. In the meantime, it would continue to explore opportunities for her to remain employed with Marubeni Australia or related businesses beyond that date.

• [17] A disagreement arose between Ms Ye and Marubeni Australia regarding her entitlements on the foreshadowed termination of her employment. In short, she contended that she was entitled to receive payment in lieu of notice and redundancy pay. Marubeni Australia disputed that she had any such entitlements.

• [18] On 18 March 2025, Marubeni Australia informed Ms Ye that on the termination of her employment she would receive payment only of her accrued but untaken annual leave and long service leave.

• [19] On the same day, Ms Ye made the AD Complaint to Anti-Discrimination NSW. On 21 March 2025, she received an email from Anti-Discrimination NSW which referred to the AD Complaint as having been "lodged with the President of the Anti-Discrimination Board on 18 March 2025". It further stated:

1. To accept for investigation, under section 89B, a complaint of sex discrimination in employment against Marubeni Australia Ltd for events/conduct alleged to have occurred from 18 March 2024 to 18 March 2025.

2. To accept for investigation, under section 89B, a complaint of race discrimination in employment against Marubeni Australia Ltd for events/conduct alleged to have occurred from 18 March 2024 to 18 March 2025."

• [20] Ms Ye's employment with Marubeni Australia came to an end on 31 March 2025. The next day she filed the GP Application with the Commission.

Did section 732 of the Fair Work Act apply?

• [21] Marubeni Australia contended that at the time Ms Ye made the GP Application, section 732 of the Fair Work Act applied. It submitted that as a result that she was statutorily barred from making the GP Application.

• [22] The following matters are uncontroversial:

(1) The AD Complaint was brought under section 89B of the Anti-Discrimination Act.

(2) Consequently, it was a "complaint under another law" within the meaning of section 732(2) of the Fair Work Act.

• (3) The AD Complaint was "made, by or on behalf of" Ms Ye. This is reflected in the terms of the email from Anti-Discrimination NSW to Ms Ye of 21 March 2025.[2]

(4) As at the date Ms Ye sought to make the GP Application, she had not withdrawn the AD Complaint and it had not failed for want of jurisdiction.

• [23] The question which arises is whether the AD Complaint was "in relation to the dismissal", within the meaning of section 732(1)(a) of the Fair Work Act. The answer to that question is no, for the following reasons.

• [24] I accept Marubeni Australia's submissions that through the AD Complaint, Ms Ye sought to challenge aspects of her impending dismissal. In the AD Complaint, she made the following contentions:

"During the redundancy process in 2025, I was unfairly denied a redundancy package, which was granted to a Japanese employee in the same situation."

"Recent threats from the HR manager regarding my redundancy have further exacerbated my distress, causing serious anxiety and insomnia, as evidenced by my medical records."

• [25] Ms Ye annexed a number of documents to the AD Complaint. They included the letter from Marubeni Australia of 27 August 2024 referred to above, and an email exchange between herself and Christopher Dunwell, Marubeni Australia's Human Resources Manager, on 5 and 6 March 2025. That email exchange related to Ms Ye's claims that she was entitled to receive payment in lieu of notice and redundancy pay on her dismissal. The letter and the email exchange raise no issues beyond the impending termination of Ms Ye's employment.

• [26] But the fact remains that Ms Ye had not been dismissed at the time she made the AD Complaint. She was not dismissed until 31 March 2025. It is of no consequence that she knew by 18 March 2025 that her employment was to come to an end on that date.

• [27] This flows from the language of the relevant provisions of the Fair Work Act. Section 275 provides that a person "who has been dismissed" must not make a relevant application or complaint "in relation to the dismissal" (my emphasis). The use of the past tense and the definite article demonstrates that the section is predicated on the dismissal having taken effect. The reference to "the dismissal" in section 732(1)(a) must be read as being the same dismissal as that referred to in section 725.

• [28] To uphold Marubeni Australia's objection would require words to be read into section 275. That is, it would have to be read as saying something like: "A person who has been dismissed, or who has been given notice of dismissal, must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal, or threatened dismissal, if any other of those sections applies." Words would similarly have to be read into the succeeding provisions of the Fair Work Act.

• [29] For these reasons, I find that the AD Complaint was not "an application or complaint...in relation to the dismissal" within the meaning of section 732 of the Fair Work Act. That section did not apply at the time Ms Ye made the GP Application. Consequently, section 725 did not operate to prelude Ms Ye from making the GP Application.

• [30] I dismiss Marubeni Australia's objection to the GP Application.

• [31] The matter will be listed for conference under section 368(1) of the Fair Work Act.

[1] Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [67]

[2] See Tracey-Anne Kathleen Rising v Barto Gold Mining, Yuxin Holdings Pty Limited [2025] FWC 1405 at [24]- [25]

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