s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement - jurisdictional objection - whether the Applicant followed the dispute resolution procedure - dispute resolution procedure not followed - powers of the Commission to arbitrate the dispute not enlivened - application dismissed.

• [1] This is a dispute about whether Mr Odgers **(**the Applicant) can have the Commission determine a dispute about the methodology used to calculate the redundancy entitlements he was paid when he was made redundant by Qenos Pty Ltd (Qenos or the Respondent) on 15 November 2024.

• [2] Mr Odgers' employment was covered by the Qenos Altona (Olefins) and UWU Enterprise Agreement 2022 (the Agreement).

• [3] Under the terms of the Agreement the entitlements of employees being made redundant are set out in clause 7.11.2 - Retrenchment Benefit as follows:

A service component of: For service of 1-5 years 3.0 per year

• [4] Mr Odgers' position is that the proper interpretation of the redundancy clause is that entitlements accrue each year of service, subject to their total years of service. The Respondent disagrees. Its position is that the proper interpretation of the clause is that payment is staggered in components relative to years of an employee's service. Further, this is how the Agreement has been correctly applied in both this, and previous instances of redundancies.

• [5] The Agreement also sets out the requirements for the parties to bring a matter to the FWC for arbitration in clause 2.3 - Comprehensive Dispute Prevention Procedure, relevantly as follows:

"2.3 Comprehensive Dispute Settlement Procedure

2.3.3(a). Any grievance or dispute, which arises, will, where possible, be settled by discussion on the job between the employee and the Team Leader. The Team Leader will investigate and report back to the employee within an agreed time.

2.3.3(b). If the matter is not resolved at this level, the matter will be further discussed with the employee, Employee Representative or Union Representative and the Team Leader.

2.3.3(c). If the matter is not resolved at this level, the matter will be further discussed between the affected employee, the Employee Representative or Union Representative, the Team Leader and the Process Team Leader.

2.3.3(d). If the matter is still not satisfactorily resolved, the matter will be discussed between the affected employee, the Employee Representative, Union Representative, the Process Team Leader, the Operations Manager and the Human Resources Manager Operations.

2.3.3(e). In the event of the matter remaining unresolved, either party may refer the matter to the Fair Work Commission for conciliation and if necessary arbitration. The decision of the Fair Work Commission shall be final subject only to any right of appeal and shall be accepted by all parties."

• [6] In addition to its objection about the interpretation of the redundancy clause, the Respondent also object on grounds that Mr Odgers has not complied with the dispute settlement procedure for the Commission to have the power to arbitrate the dispute. Mr Odgers asserts otherwise.

• [7] To determine this question, I issued directions for the filing of evidence and submissions from the parities.

• [8] The Respondent presses its objections. They submit the Commission does not have power to arbitrate the dispute on grounds that the prerequisite requirements have not been met, consistent with the Full Bench decisions of the Commission in CFMEU v Falcon Mining[1] and AWU v MC Labour Services[2].

• [9] For the reasons set out below, I am satisfied this is the case and the Commission does not have jurisdiction to consider Mr Odgers' application.

• [10] Much of the relevant background in this matter is no longer contested or in dispute between the parties.

• [11] Mr Odgers commenced employment with Qenos on 15 June 2011 as a Trainee Chemical Plant Technician. His most recent role was that of Chemical Plant Coordinator at the Qenos Olefins plant based in Altona, reporting directly to Mr Damian Ladd (Shift Team Leader_)_.

• [12] On 17 April 2024, the Respondent entered voluntary administration. Prior to this, Qenos operated in the Australian chemical industry, manufacturing and supplying ethylene, polyethylene and speciality polymers. On entering administration, it was anticipated that Qenos's operated facilities, including Altona where Mr Odgers worked, would be shut down and all employees engaged at these sites would be made redundant.

• [13] On 23 May 2024, at a meeting Qenos' creditors resolved to enter a Deed of Company Arrangement with LAOP LendCo Pty Ltd. Terms of the Deed provided funding to cover all known employee entitlements in full. On 13 June 2024, Mr Damien Pasfield, a Partner of McGrath Nicol, along with 4 colleagues, were appointed Deed Administrators.

• [14] Over the next few months, the Administrators provided all employees, including Mr Odgers, and their representatives a series of updates on the administration process, planning for the shutdown of the Botany and Altona sites, and progress towards the calculation and determination of employee entitlements. Part of this process included a series of discussions with the UWU ensuring compliance with the Agreement as work progressed towards permanently shutting down and making safe both the Botany and Altona sites.

• [15] On 29 May 2024, the Respondent issued employees, including Mr Odgers, an Employee Entitlement Schedule (ESS) setting out the proposed calculation of their redundancy entitlements in the event of retrenchment, effective 17 April 2024. All employees and their representatives were invited to provide feedback to the ESS, their estimated payments and the methodology used to make their redundancy entitlements. Several reminders to provide feedback and further employee updates followed.

• [16] In June 2024, the Respondent received correspondence from the UWU that it sought to discuss and progress the concerns and issues on behalf of its members at the Altona facility on a collective basis. To this end, the UWU identified a number of "collective issues" it sought to have addressed.[3]

1. Payment in lieu notice with regards to weeks of service calculation for the purpose of redundancy. And how this will be applied.
2. The effect on redundancy calculations as numbers in the workforce are reduced over the plant closure make safe period.
3. The application of the Long Service Leave policy on members over five years but less than seven.
4. The recrediting of past Annual Leave and personal carers leave (or payment to former employees) - this is more applicable to the UWU (Olefins) and AWU (Resins).
5. The non-payment of entitlements in a timely fashion for members who resign. This discussion needs to include what measures will be in place for future resignation and redundancies going forward.

• [18] Meetings between the Respondent, National UWU representatives and UWU Altona Site delegates followed. Following the resolution of these collective issues, an updated ESS document was prepared for all employees, including Mr Odgers, based on a theoretical termination date of 16 July 2024.

• [19] Mr Odgers was provided with an updated ESS document setting out the theoretical estimate of his redundancy entitlements, effective 16 July 2024, on 1 August 2024. This material invited him to raise any questions or concerns he may have with the Deed Administrators.

• [20] On 1 November 2024, Mr Odgers was notified his employment with Qenos would end by redundancy effective on 15 November 2024. On 11 November 2024, the Respondent provided Mr Odgers with details of the final calculation of his redundancy payments that he would receive on termination.

• [21] On the same day, Mr Odgers sent an email to Ms Jodie Shaw (Human Resources Manager) as follows:[4]

"I am writing to request a meeting to discuss the calculation of the retrenchment benefit under clause 7.11 of the Qenos Altona (Olefins) and UWU Enterprise Agreement 2022. My interpretation of this clause is that, for employees with more than 10 years of service, the benefit should be calculated at a rate of 5.0 weeks per year for the entire duration of their completed service.

On 7 November 2024, I spoke with the payroll department, who explained that the calculation is applied on a per-year basis. This interpretation differs from my understanding, and I would like to address this discrepancy by invoking clause 2.3.3 to seek a resolution before considering escalation to the Fair Work Commission."

• [22] Mr Odgers sent a similar email later that day to Ms Laura Cafari, an Assistant Manager of the Administrators.[5] He was subsequently informed the calculation of his payment was made in accordance with the terms of the Agreement and Qenos' historical practice of calculating redundancy entitlements onsite.

• [23] On the next two days Mr Odgers sent further emails to Ms Cafari seeking clarification of the Respondent's position and a response by 12 November 2024. The next day he provided further details of his concerns and calculation methodology taking issue with the failure to count his entitlements as 5 weeks for each year of service.[6]

• [24] Mr Odgers was terminated on 15 November 2024 by redundancy. He was paid his entitlements in line with Respondent's interpretation of the redundancy clause provided to him on 7 November 2024.

• [25] On 21 November 2024, Ms Cafari sent Mr Odgers an email confirming the Respondent had considered the calculation information he had provided. This email confirmed the Respondent's position that it believed its application of the Agreement was correct, and that no adjustments would be made to his redundancy pay.[7]

• [26] Mr Odgers disputes this outcome and seeks the Commission arbitrate his dispute and make a determination on the interpretation of the redundancy clause.

• [27] The Respondent submits the Commission has no jurisdiction to arbitrate the dispute.

• [28] The Respondent submits that the powers of the Commission to arbitrate this dispute have not been enlivened because the preliminary steps in the Agreement between the parties required have not been followed.

• [29] In support of this position, they identify the dispute resolution procedure in the Agreement has a five-step process. That steps 1-4 must be followed consecutively before the FWC has the power to determine the dispute at step 5.

• [30] The Respondent's evidence is support by the witness statement and sworn evidence of Mr Damien Pasfield, Deed Administrator. Mr Pasfield's evidence sets out the chronology of the interactions between the parties, including Mr Odgers, in the lead up to his termination on 15 November 2024.

• [31] His evidence is that Mr Odgers has not followed the disputes procedure as required. That he did not follow the first steps and have a discussion with his Team Leader, Mr Damien Ladd, to try and resolve the dispute as required by step 1.

• [32] That Mr Odgers is not the Team Leader, but that his Team Leader is Damien Ladd.

• [33] That Mr Odgers did not discuss the matter at any meeting with the UWU as required. Nor did the UWU attend or participate in any meeting with Mr Odgers and the Respondent's representatives as required. In fact, the Respondent submits at no time did the UWU raise any concern with the methodology used to calculate redundancy payments on behalf of Mr Odgers or any other member, noting the UWU is not a party to this dispute application.

• [34] On this basis, the Respondent submits Mr Odgers application must be dismissed.

• [35] Mr Odgers provided written submissions and provided sworn oral evidence in proceedings. His evidence was supported by witness statements provided by Mr Damien Ladd (Shift Team Leader) and Mr Stuart Martin (UWU delegate). Mr Martin provided sworn evidence in proceedings. Mr Ladd was not available to provide his evidence to the Commission and I have had regard to this fact in my consideration of the statement provided on his behalf.

• [36] While initially submitting that he was the Team Leader, in the hearing Mr Odgers acknowledged this was incorrect. In evidence, he accepted that Mr Ladd was his team leader and that he first informally spoke to Mr Ladd about his concerns about redundancy calculations on 8 November 2024.

• [37] This being the case, Mr Odgers accepted in evidence that he had not met the requirements of the first step of the dispute resolution procedure.[8]

• [38] With regards to step 2 of the procedure, Mr Odgers' submissions are that as a member of the UWU his concerns were already in discussion as part of the collective representations being made by the UWU on behalf of its members. That he was advised by, and understood, the Union was raising the concerns on behalf of all its members. In addition, he submits on 8 November 2024 he discussed his concerns with his UWU delegate, Mr Stuart Martin, who advised him to discuss the matter directly with the Human Resources Manager, Ms Jodie Shaw.

• [39] With regards to step 3 of the procedure, Mr Odgers submits he raised his concerns with his shift team leader and process team leader Damien Ladd. That Mr Ladd advised him to talk to his UWU delegate about his concerns. Further, that he spoke to his union delegate Mr Martin, who advised him to raise the issue directly with HR, which he did on 11 and 12 November 2024. When HR failed to respond he emailed the Administrators' representative, Ms Cafari, as set out above on 13 November 2024.

• [40] In relation to step 4, Mr Odgers submits he made multiple attempts to follow up this dispute, but it was not until 21 November 2024 that the Respondent confirmed it did not agree with his interpretation of the redundancy calculation.

• [41] In oral evidence, Mr Odgers indicated it was not until 11 November 2024 that the was provided with the actual calculation of his redundancy entitlements. That following receipt of a letter from the Respondent on 1 November 2024, confirming his redundancy would take effect on 15 November 2024 he tried to confirm his entitlements and their calculation method. That this included raising his concerns with Mr Ladd and speaking to the payroll department on 7 November 2024. Payroll confirmed the Respondent would be applying the calculation methodology it had applied in the estimates already provided to all employees.

• [42] Receiving this confirmation, the next day Mr Odgers says he informally spoke to Mr Ladd in the control room and asked him if he knew "...how any of the calculations where made".[9] Mr Ladd told him he didn't, and that he should talk to the UWU about it.

• [43] His argument is that this evidence should be considered by the Commission as satisfying step 1 of the dispute settlement procedure in that he raised his concern with his shift team leader and was referred by his leader to the UWU, in the form of Mr Martin. Mr Martin told him to raise his concern directly with HR which he did. He then raised his concerns with the administrators and when he did not get a response, eventually made his application to the Commission.

• [44] In the hearing, Mr Odgers accepted that there was no evidence in the material before the Commission to indicate the calculation of retrenchment payments was part of the collective issues raised by the UWU with the Respondent. He also made the following concessions:[10]

• He did not formally raise a dispute under the Agreement in the informal conversations he had with Mr Ladd; (Step 1),
• He did not have a conversation with Mr Ladd and a representative, or a union representative; (Step 2),
• He did not have a discussion with a representative of his choosing, Mr Ladd and the process team leader, Mr Heath; (Step 3),
• He did not have a discussion with a representative, Mr Heath, the Operations Manager and the Human Resources Manager Operations; (Step 4), and
• The first time he referred to clause 2.3.3 was in his email to Ms Shaw on 11 November 2024.

• [45] Mr Odgers maintains he tried his best to follow the steps in the disputes procedure and the advice he was provided by the UWU delegate and management. That his capacity to act and engage with the Respondent and his representatives were made difficult by the uncertainty of the administration and shut down process, along with his night shift patterns. UWU delegate Stuart Martin gave sworn evidence in support of his position.

• [46] Mr Martin also indicated his advice to Mr Odgers to just talk to HR was based on his understanding of the custom and practice at the site that the preliminary steps of the dispute procedure can be skipped over when it was a dispute about the interpretation of the Agreement, as in Mr Odgers' case.

• [47] Under examination, Mr Martin accepted he did not have any discussions with Mr Odgers and the Respondent's representatives as required. He also accepts that the dispute settlement procedure was a comprehensive record of the agreement between the parties and for a step in the procedure to be skipped, Qenos would need to agree for this be the case.[11]

What are the Commission's powers to deal with disputes?

• [48] Section 595 of the Act provides for the Commission's powers to deal with disputes only if it is expressly authorised to do so in accordance with another provision of the Act. Section 739 provides for the Commission's power to deal with a dispute where an enterprise agreement includes a term that provides a procedure for dealing with disputes under section 738(b). An enterprise agreement must contain a term about settling disputes to be approved by the Commission in accordance with s.186(6) of the Act. The Commission must not exercise any powers limited by the term. The Commission may only arbitrate the dispute if the parties have agreed that the Commission may arbitrate the dispute.

• [49] In CFMMEU v Falcon Mining Pty Ltd the Full Bench said:[12]

"...it is s 739(4) which gives effect to an agreement by the parties for the arbitration of a dispute by the Commission pursuant to a dispute resolution term of a type described in s 738, and it is s 739(3) which limits the powers of the Commission to deal with the dispute by reference to any such limitations contained in the relevant dispute resolution term. Therefore, the scope of the authority of the Commission to engage in arbitration of disputes pursuant to a dispute resolution term is ultimately the question of statutory construction although, in a particular case, the application of the statutory provisions will be affected by the terms of the relevant dispute resolution procedure."

• [50] I have set out above the steps required for a dispute to be brought to the Commission for arbitration under the Agreement.

• [51] The evidence in this case, including that of both Mr Odgers and Mr Martin, is that the required steps of the Agreement for the Commission's arbitral powers to be enlivened have not been followed.

• [52] In reaching this conclusion, I have had regard to Mr Odgers' circumstances and the efforts he has made to raise his concerns and do his best to follow the procedure and assist the Commission in proceedings. I accept he tried his best in good faith to properly raise what he thought to be a legitimate concern.

• [53] There is no evidence, however, that the requirements of the dispute procedure have been met, or that the Respondent agreed to the preliminary steps not being followed.

• [54] Ultimately, therefore, while I appreciate the difficult circumstances Mr Odgers was confronted with, working night shift, facing the reality of being made redundant and dealing with Union, management and the Administrator's representatives, there is no power under which the Commissions has authority to consider his case.

• [55] As to the merits or otherwise of his claim, I have not considered them in detail. I note however, that the evidence of his UWU delegate is that the employer has applied the redundancy methodology and calculations consistent with his understanding of the terms of the Agreement and its previous application.

• [56] There is no discretion or power available for the merits of Mr Odgers' dispute to the considered by the Commission. Accordingly, this application must be dismissed.

[1] [2022] FWCFB 93.

[2] [2017] FWCFB 5032.

[3] Witness Statement of Damien Pasfield at DP-8, Court Book page 219.

[4] Applicant's Submissions, Court Book page 27.

[8] See Transcript of Proceedings on 5 March 2025 at [PN109]-[PN112].

[10] Transcript at [PN184]-[PN216].

[12] [2022] FWCFB 93 at [62].

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