Fair Work Commission|2025-09-11

Mrs Vaishaliben Patel v St John Of God Health Care Inc [2025] FWC 2688 (11 September 2025)

[2025] FWC 2688 [Note: An appeal pursuant to s.604 (C2025/9658) was lodged against this decision.]

s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement - jurisdictional issue - whether the arbitral powers of the Commission have been enlivened - application filed after applicant resigned - arbitral powers not enlivened - application dismissed.

[1] This is a dispute about whether the Mrs Vaishaliben Patel **(**the Applicant) can have the Commission determine a dispute about her long service leave and the methodology used to calculate her long service leave entitlements when she resigned from her employment with St John Of God Health Care Inc **(**the Respondent) on 30 September 2024.

[2] Mrs Patel's employment was covered by the St John of God Health Care (Victorian Hospitals) Health and Allied Services Enterprise Agreement 2021 (the Agreement).

[3] Under the terms of the Agreement, the entitlements of employees to long service leave are set out in the Long Service Leave clause at 40 of the Agreement.

[4] It is not in dispute that Mrs Patel has worked for the Respondent for over 10 years. Nor is it in dispute that Mrs Patel resigned from her employment on 30th September 2024.

[5] Up until 15 June 2024, Mrs Patel worked up to 60 hours a fortnight for the Respondent. On 12 June 2024, she requested to reduce her contracted hours to 21 hours a fortnight. From 15 June 2024, she worked 21 hours a fortnight up until the end of her employment.

[6] When Mrs Patel reached her 10 years' service, she enquired what her long service leave entitlements were. She was told as of 12th July 2024, she had 17.499 weeks of long service leave, that based on her contracted 30 hours a week equated to 524.98 pro-rata hours.

[7] In her final pay, Mrs Patel was paid at total of 125.9 hours in long service leave entitlements. She believes she should have been paid at least the 524.98 hours she was told she was entitled to in July.

[8] Subclause 40(g)(i)(1) of the Agreement sets out the agreement of the parties on the definitions for the purposes of long service leave entitlements under the Agreement. Relevantly, these provisions provide:

"(1) "Pay" means remuneration for a Caregiver's normal weekly hours of work calculated at the Caregiver's ordinary time rate of pay provided in Appendix A - Wages hereof at the time the leave is taken or (if the Caregiver dies before the completion of leave so taken) as at the time of their death; and shall include the amount of any increase to the Caregiver's ordinary time rate of pay which occurred during the period of leave as from the date such increase operates provided that where accommodation is made available to a Caregiver during their period of leave and where a deduction is made for the rental, such amount shall be deducted from the pay for the period of leave."

[9] The Respondent's position is that Mrs Patel has been paid her long service leave entitlements on the ending of her employment consistent with the terms of the Agreement. That the Agreement provides for the calculation of entitlements, at the time the leave is taken. And that Mrs Patel's pro-rata entitlements have been calculated based on the 21 contracted fortnightly hours she was working at the time her employment ended.

[10] Mrs Patel disputes this and seeks a determination of the Commission in her favour.

[11] The Respondent maintains its interpretation that the Agreement is correct and has been consistently applied. Furthermore, submitting that the FWC has no power to determine Mrs Patel's dispute because the requirements of the Agreement for the arbitral powers of the Commission to be enlivened have not been met.

[12] The Agreement also set outs the requirements for the parties to bring a matter to the FWC for arbitration in clause 11. Dispute Resolution Procedure.

[13] The Respondent's position is that Mrs Patel has not complied with the dispute resolution procedure for the Commission to have the power to arbitrate the dispute. Mrs Patel asserts otherwise.

[14] To determine this question, on 28th February 2025, I issued directions for the filing of evidence and submissions from the parities.

[15] The Respondent presses its objections. They submit the Commission does not have power to arbitrate the dispute on grounds 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].

[16] For the reasons set out below, I am satisfied this is the case and the Commission does not have jurisdiction to consider Mrs Patel's application.

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

[18] It is accepted that up until 15th July 2024, Mrs Patel was contracted to work 60 hours a fortnight. And that from the 15th of July 2024, she reduced her fortnightly contracted hours to 21, or 10.5 hours per week.

[19] It is also accepted that prior to reducing her contracted hours Mrs Patel made enquiries using the Respondent's internal payroll ticket system about her long service leave entitlements, seeking confirmation of how many hours of long service entitlements she had accumulated at that time. On 12th July 2024, the Respondent confirmed Mrs Patel had accumulated 17.499 weeks in long service leave entitlements which equated to 524.98 hrs pro rata, based on her contracted hours at the time of 30 hours a week.[3]

[20] On 1st of October 2024, Mrs Patel confirmed her resignation from the Respondent effective 30th September in an email to the CEO, Mr Stephen Roberts. In her email, Mrs Patel sought confirmation and payment of her outstanding entitlements.[4]

[21] Mrs Patel received her final payslip setting out the acquittal of her outstanding entitlements on 10th October 2024. Her final pay recorded the payment of 124 hours in long service leave, not 524 as she had expected.

[22] On 14th October 2024, Mrs Patel wrote to Mr Roberts raising a dispute about the incorrect payment of her long service leave entitlements. Over the next few weeks, the parties exchanged correspondence in relation of Mrs Patel's dispute. On 30th of October, the Respondent confirmed its interpretation and application of the Agreement as correct. Subsequent correspondence followed in which Mrs Patel consistently made clear she did not agree or accept the Respondent's application of the Agreement. Ultimately, on 14th January 2025, Mrs Patel filed her application with the Commission for determination.

[23] In addition to being in dispute about the correct interpretation of the Agreement, the parties do not agree the enquires Mrs Patel made prior to ending her employment amount to her raising a dispute consistent with the requirements of the Agreement.

[24] The Respondent further submits that as of 30th September 2024, when Mrs Patel resigned, the Agreement no longer applied to her, and she was no longer a Caregiver entitled to bring a dispute to the Commission for determination under the Agreement.

[25] The questions to be determined in this matter are twofold. Firstly, whether Mrs Patel has satisfied the requirements of the dispute procedure in the Agreement prior to ending her employment with the Respondent. And secondly, whether Mrs Patel can access the arbitral powers of the Commission under an Agreement that no longer applies to her.

[26] I consider each of these question below on the evidence and submissions of the parties in this case.

[27] The Respondent submits that the powers of the Commission to arbitrate this dispute have not been enlivened because firstly, the preliminary steps required by the Agreement between the parties have not been followed. And secondly, that once Mrs Patel resigned, she was no longer covered by the Agreement and not entitled to bring a dispute to the Commission under its terms.

[28] The Respondent submits the dispute resolution procedure in the Agreement has a stepped process of escalation. Their position is that for the arbitral powers in the Agreement to be enlivened Mrs Patel must first have attempted to resolve the matter with her relevant supervisor. And second, in the event these discussions were unsuccessful, attempted to have discussions to resolve the dispute with more senior levels of management as appropriate.

[29] The Respondent presents Ms Cheryl Green was Mrs Patel's relevant supervisor from around October 2023. Ms Green provided sworn evidence to the Commission.

[30] Ms Green's evidence sets out the Respondent's understanding of Mrs Patel's resignation, effective 30th September 2024. That Ms Green was aware Mrs Patel raised an internal payroll ticket about her accrued long service leave hours at the end of June 2024 and that the Respondent's payroll team clarified Mrs Patel's entitlements as 524 hours on a pro-rata basis, effective 12 July 2024.

[31] Ms Green's evidence is that Mrs Patel's payroll enquiry made no mention of a dispute or grievance being raised. Her understanding that Mrs Patel was raising a query about her long service leave entitlements using the Respondent internal ticket system in the usual way.

[32] Ms Green accepts that as a matter of process she was notified of Mrs Patel's payroll queries through the ticket system by default or by being carbon copied into communications between Mrs Patel and the Respondent's payroll representatives.

[33] Ms Green's evidence is that after receiving the reply of 12 July, there was no further correspondence between Mrs Patel and the payroll team, herself or anyone else from the Respondent about her long service leave entitlements, hours or a dispute or grievance about these matters.[5]

[34] Ms Green accepts she was included in an email Mrs Patel sent to payroll seeking to know her long service leave entitlements in hours on the 12th of July and that payroll included her into their response answering this query.[6]

[35] Her evidence is that other than this, at no time did Mrs Patel raise this issue with her or make any attempt to have a discussion with her or raise any other dispute with her as her direct supervisor about her long service leave, weekly hours, or anything else to do with her long service leave.[7]

[36] Further, that she was not aware of Mrs Patel raising a dispute or having a discussion with any other supervisors of the Respondent before October 2023. And that no other time did Mrs Patel raise any enquiries, issues or discissions regarding her long service leave entitlements with anyone else at the Respondent before ending her employment.[8]

[37] On this basis, the Respondent submits Mrs Patel's application must be dismissed because:

Mrs Patel has not followed the steps required by the dispute resolution procedure in the Agreement to enliven the arbitral powers of the Commission.

Mrs Patel's dispute application seeks a determination from the Commission of the meaning of normal weekly hours for the purposes of long service leave and at no time has Mrs Patel raised a dispute or grievance with the Respondent about this subject matter prior to filing her application with the Commission.

When Mrs Patel articulated her dispute about the calculation of her normal weekly hours for the purposes of her long service leave entitlements with the Respondent and the Commission, she was no longer a Caregiver covered by the Agreement with an entitlement to bring a dispute to the Commission for determination.

[38] Mrs Patel provided written submissions and provided sworn oral evidence in proceedings. Her evidence was supported by her husband (Mr Manishbhai Patel) in proceedings, who made oral submissions on her behalf.

[39] Mrs Patel submits in early June 2024 she sought to make enquiries about her long service leave entitlements, raising ticket CES189693 though the Respondent's internal payroll system.

[40] Her position is that this was the usual practice for Caregivers to raise concerns and disputes with their managers and supervisors. And further, that she was aware and intended for her supervisor Ms Green to be notified of her concerns as a matter of process by the internal ticket she raised. Mrs Patel's evidence is that each time she used the Respondent's ticket system to log her concern with payroll she was required to nominate Ms Green as her supervisor before it could be submitted.[9]

[41] Mrs Patel's evidence is she raised ticket no CES189693, in compliance with the Agreement's stepped requirements for the resolution of disputes as a grievance about her long service leave entitlements.

[42] On 27th June, Mrs Patel was advised she had some 17 weeks in long service leave. The following day, Mrs Patel reiterated her request seeking to understand her entitlements in accumulated hours.

[43] On 1st of July, she was again advised by payroll she had accrued some 17 weeks in long service leave and her long service leave would be given in contracted hours. Further accepting that this advice informed her "...if you drop you (sic) hours, your Long Service leave will be processed in, as per the new contracted hours".[10]

[44] Mrs Patel responded to this advice in the following terms:[11]

Your reply for my email is still not what information I am seeking for.

You have again provided very general information; and not particular for my case.

All employees in Australia accumulate their long service leave on pro rata basic (sic). If we work on weekends, we entitle for more long service leave hours than just standard hours. Information you have provided below is very general.

Your reply interprets that if an employee goes on casual basic (sic) after 10 years of working, and has 0 (Zero) contracted hours; then they are eligible for 0 (Zero) hours/week for 17 weeks. Means no long service leave at all.

Can I request you to calculate my accumulated long service leave hours on pro rata basic? (sic) I have to know my exact hours to plan my long service leave."

[45] After returning for a period of leave on 12th July, Mrs Patel received a reply to her request in the following terms from payroll:[12]

The balance accumulated in payroll leave system has all the hours you have worked including weekend. Therefore, the given balance includes the pro rata details.

As per the HEA EBA, your Long Service Leave will be paid paid (sic) in contracted hours.

If you reduced your contracted hours. Then your leave will be paid out as per the new contracted hours.

If you become a Casual caregiver, as per HEA EBA, your long Service leave will be processed in highest average of hours per week."

[46] Later the same day, Mrs Patel responded to the payroll team directly emailing the Respondent's Senior Payroll Officer, Ozzy Isiramen, making it clear that her request was to know how many hours of long service leave she had, reiterating:[13]

Can I request again that how many HOURS of long service leave have I accumulated to date? You must calculate hours for my individual case. Please do not provide general information that I am entitled to 17 weeks, I already know that.

I hope that I will be given the information that I have requested."

[47] Mrs Patel included both the payroll team and her supervisor Ms Green in this email. Her position is that was an escalation of her dispute about her long service leave entitlements in compliance with the requirements of the Agreement.

[48] Later the same day, Mr Isiramen responded to Mrs Patel's request advising her long service leave at that time was as follows:[14]

"...as of today the 12.07.2024 17.499weeks and your contracted hours is 30= 524.98 prorate."

[49] Mrs Patel did not take further action to dispute what Mr Isiramen advised her. Her evidence is that she understood what her entitlements were and was surprised when she received her final payslip on 10th October 2024 only included 124 hours long service leave.

[50] On receipt of her final pay slip, Mrs Patel made it clear to the Respondent, including its CEO Mr Stephen Brown, she was in dispute about the payment of her long service leave, ultimately making this application to the Commission.

[51] Mrs Patel does not dispute she resigned from her employment on 30th September 2024. Her position is that despite this resignation, she remains entitled to bring her dispute to the Commission under the terms of the Agreement because all her entitlements under the Agreement had not been paid or provided to her. She argues she has followed the steps of the dispute procedure following her resignation and is entitled to bring her application to the Commission to have it determined.

[52] Mrs Patel accepts Ms Green was her supervisor, and under examination she accepted that at no time did she raise a dispute or grievance about her long service leave or the calculation of long service leave entitlements directly with Ms Green while she was still employed by the Respondent.[15]

[53] Mrs Patel's position is that she started to ask questions about her long service leave in June because she had heard some employees were not getting all their long service leave entitlements. As she was thinking about reducing her hours and potentially resigning, she wanted to know her entitlements. She asked her questions because she wanted to know exactly what she was entitled to. When she was not given the answer she wanted, she persisted with her enquiries until she was told what she wanted to know on 12th of July.[16]

[54] When Mrs Patel's employment ended and she was not paid what she had understood her long service leave entitlements would be she again raised a dispute, this time directly and clearly with the Respondent's CEO.

[55] On this basis, Mrs Patel submits she has made every effort to comply with the requirements of the Agreement to dispute the amount of long service leave entitlements she has been paid and that the Commission has jurisdiction to determine her dispute.

What are the Commission's powers to deal with disputes

[56] 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.

[57] In CFMMEU v Falcon Mining Pty Ltd, the Full Bench said:[17]

"...it is s 739(4) which gives effect to an Agreement by 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 a 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."

[58] As Commissioner Lim recently identified in Schoof v Hitachi,[18] referring to the Full Bench decision in Falcon Mining and a related decision in Simplot[19]:

"What is clear from the above authorities is that for the Commission's power to arbitrate a dispute to be enlivened, the parties must have reached Agreement in accordance with the dispute resolution term before the relevant Agreement ceases to operate and apply to the parties."[20]

[59] For the Commission to have jurisdiction to arbitrate Mrs Patel's dispute I must be satisfied Mrs Patel has followed the steps required under the Agreement for this to be case prior to 30th September when the Agreement still applied to her. This is the first question I identified at [25] for determination in this matter. The second question is whether Mrs Patel can access the arbitral powers of the Commission under an Agreement that no longer applies to her.

[60] Applying the principles of the relevant authorities I have identified above, I consider each of these question below in turn.

Question 1: Has Mrs Patel complied with the requirements of the dispute clause of the Agreement while still employed by the Respondent?

[61] Having considered the evidence of Mrs Patel and Ms Green above, and I am not satisfied this is the case.

[62] The consistent evidence of both Mrs Patel and Ms Green is that prior to the cessation of her employment, Mrs Patel sought clarification of her long service leave entitlements. At no stage does this evidence establish Mrs Patel raised a dispute about these entitlements, their calculation methodology or what was meant by "pay" under the terms of the Agreement.

[63] Consistently, Mrs Patel "requests further information", answers to her "queries" and confirmation of her entitlements in "hours". At no stage does she use the word "dispute" or "grievance". Nor does she make any suggestion to the Respondent she is seeking anything more than an understanding of her entitlements in hours. The overwhelming evidence, as Mrs Patel explained, is that she wanted to know what her entitlements were.

[64] I accept Mrs Patel's explanation that she may have wanted this information because she had heard from co-workers that her entitlements may be reduced if she reduced her hours. At no time, however, did Mrs Patel express this concern or make any suggestion that could reasonably have led the Respondent to believe this was the case. Ms Green's evidence was she understood Mrs Patel was making a payroll enquiry. I accept this evidence.

[65] On the 12th of July Mrs Patel's enquiry was answered to her satisfaction.

[66] For Mrs Patel to satisfy the requirements of the dispute procedure to access the arbitral powers given to the Commission under the Agreement she needed to attempt to have a discussion with Ms Green about her grievance or dispute. If that failed, was unsuccessful, or not possible, she was required to attempt a discussion with a more senior level of management as appropriate. I accept Mrs Patel asked a question about her entitlements, was not satisfied with the answer and continued her enquiries until she got the answer she wanted.

[67] Asking a question and having it answered, however, does not amount to raising or attempting to raise a dispute or grievance with her supervisor or more senior members of management. That Mrs Patel accepts she did nothing further to progress her inquiry, dispute or grievance after this time supports the conclusion I have reached above.

[68] I appreciate Mrs Patel's frustration at the delay in the Respondent providing a clear response. And her further frustration at the Respondent's confirmation that their interpretation and application of the Agreement did not accord with her understanding.

[69] This is not enough for the clear requirements of the Agreement for the arbitral powers of the Commission to be enlivened. The evidence does not establish this was the case.

[70] The answer to question 1 is in the negative.

Question Two: Can Mrs Patel access the arbitral powers of the Commission under an Agreement that no longer applies to her?

[71] I have set out above the relevant authorities on when the arbitral powers of the Commission are enlivened. It is clear from these authorities that for the arbitral powers of the Commission to the enlivened a person must continue to be covered by the Agreement from which the powers are derived or, have established their rights under the Agreement while still covered by its terms.

[72] In my consideration above, I have not been satisfied that Mrs Patel exercised her rights under the Agreement while covered by its terms such that her rights under the Agreement to bring a dispute to the Commission were established before she resigned.

[73] It is not in dispute Mrs Patel resigned and ended her employment on 30th September 2024.[21] From this date, as established by the authorities identified above, she was no longer covered by the terms of the Agreement and entitled to bring an application to the Commission for determination about a dispute under its terms.

[74] The answer to question 2 is also in the negative.

[75] In reaching this conclusion, I have considered that it is not a matter of real dispute between the parties that Mrs Patel articulately raised her concerns about not being paid what she thought she should have been paid in long service leave entitlements after she had resigned. Had she still been covered by the terms of the Agreement at this time, I am satisfied she would have clearly meet its requirements to have the Commission determine her dispute. However, this was not the case, and the Commission has no general power to consider her dispute.

[76] I have also considered the evidence that, as early as July 2024, the Respondent's payroll team made Mrs Patel aware if she reduced her contacted hours her long service leave entitlements could reduce as she would be paid these entitlements based on her contacted hours. This evidence does little to support the Applicant's position that the Respondent has deliberately misled or confused her.

[77] I accept Mrs Patel, and her husband, do not agree with the Respondent's interpretation of the Agreement and their calculation and payment of her long service leave entitlements. This does not mean there is a basis to bring their application to the Commission for determination. I have not been satisfied this is the case.

[78] I have also considered the Applicant's submissions that she believed her entitlements remained outstanding provides a basis for her to continue to have access to the terms of an Agreement she was no longer covered by. The Applicant has not identified any basis for this submission. On my consideration of the relevant authorities identified above on the powers and jurisdiction of the arbitral powers of the Commission, I am not satisfied any basis exits.

[79] For the reasons set out above, the application is dismissed.

[2] [2017] FWCFB 5032. See also TWU v Toll Transport Pty Ltd [2025] FWC 298 following Transport Workers Union of Australia v Torrens Transit Services Pty Ltd [2013] FWC 7318.

[3] Witness Statement of Vaishaliben Patel - 18 March 2025, Court Book p.13.

[4] Attachment 2.2, Witness Statement of Vaishaliben Patel - 18 March 2025, Court Book p.17.

[5] Witness Statement of Cheryl Green - 3 April 2025, Court Book p.121.

[6] Ibid, Annexure B, Court Book p.149, PN417-422.

[10] Attachment 2.29, Witness Statement of Mrs Vaishaliben Patel - 18 March 2025, Court Book p.13 and 94.

[11] Attachment 2.23, Ibid, Court Book p.74.

[12] Attachment 2.14, Ibid, Court Book p.53.

[13] Attachment 2.31, Ibid, Court Book p.98.

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Mrs Vaishaliben Patel v St John Of God Health Care Inc [2025] FWC 2688

At a glance

Court

Decision date

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Judgment (121 paragraphs)

Mrs Vaishaliben Patel v St John Of God Health Care Inc [2025] FWC 2688 (11 September 2025)

Parties

Legislation Cited (1)