s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - applicant resigned prior to lodgement of application - applicant seeks review of enterprise agreement - no jurisdiction - application dismissed under s.587

• [1] On 27 January 2025, Ms Cindy Radcliffe applied to the Fair Work Commission under s.739 of the Fair Work Act 2009 for the Commission to deal with a dispute with her previous employer, Gladstone Community Linking Agency (GCLA).

• [2] The dispute related to what Ms Radcliffe believed to be the unfairness of a range of conditions contained within the Gladstone Community Linking Agreement 2021 (the Agreement).

• [3] This decision concerns whether or not the Commission has the jurisdiction to further consider Ms Radcliffe's application, on the grounds that she is no longer an employee covered by the Agreement. For reasons outlined below I have found that it does not, and subsequently, that Ms Radcliffe's application is dismissed.

• [4] I issued directions for GCLA to file a response to the application which was subsequently filed on 12 February 2025. GCLA objected to the application progressing on the basis that Ms Radcliffe was not an employee as she had resigned in September 2024.

• [5] On the same day, my Chambers sought a response from Ms Radcliffe regarding whether she initiated the dispute process in accordance with the Agreement prior to resigning.

• [6] On 13 February 2025, Ms Radcliffe responded confirming she commenced the dispute process whilst still employed, stating:

"I began the dispute process whilst still employed by GCLA as I had contacted them discussing my concerns and starting (sic) that I was not happy with their response. I had then contacted the fair work ombudsman who then instructed me to contact the commission. Due to the issue of unfair pay and conditions it would be wrong to continue to remain employed by GCLA whilst this process played out. GCLA continues to work under an EBA that is unfair to casual support staff working for them and as such I believe the case should still be heard"

• [7] On 14 February 2025, GCLA provided a further response, in which they sought that the application to be dismissed on the following grounds:

• The issues raised by Ms Radcliffe were addressed with her in various correspondence.
• The majority of the issues raised were complaints in respect of the application of terms and conditions of the governing registered industrial instrument, being the Agreement.
• The fact of the legitimacy of the Agreement's terms and conditions was pointed out to Ms Radcliffe. Despite that, she states in correspondence to the Commission that "GCLA continues to work under an EBA that is unfair to casual support staff working for them".
• While she was an employee, the Agreement's dispute provisions were complied with in respect of the parties trying to resolve the matter through discussion involving the relevant supervisor and subsequently more senior levels of management. However, while in the employ of GCLA, Ms Radcliffe took no steps to refer the dispute to the Commission.
• Ms Radcliffe resigned her position from GCLA on 15 September 2024, some 6 months before filing this application.
• GCLA believes that it acted in an appropriate manner in dealing with the complaints while the Applicant was an employee.
• GCLA is of the understanding that in view of the above, in resigning her casual employment with GCLA last year, Ms Radcliffe cannot proceed with her application.

• [8] On 17 February 2025, Ms Radcliffe responded stating that GCLA "hires a lot of new casual support workers and they often resign within months", and subsequently "requesting a review of the terms in GCLA's EBA as it provides less than the minimum requirements set by the FWC." Ms Radcliffe further noted "I understand that GCLA's EBA is technically legal however I believe Fair Work should review the terms in the EBA as I believe due to the wording of the EBA loopholes have been created which provide GCLA with the ability to provide less than the minimum set out by the Fair Work Commission with note to the minimum standards outlined in the SCHADS. It has not been disputed that the EBA is unfair by GCLA but simply that it is legal."

• [9] On 21 February 2025, my Associate sent the following email to parties:

Reference is made to the above matter and previous email below and attached.

It is noted the Enterprise Agreement was assessed at the time of approval as compliant with legislative requirements, including that employees would be better off overall under the agreement, taking into consideration all conditions and wage increases.

On the material provide (sic), it appears that Ms Radcliffe's grievance was dealt with at the time, save for her overall objection to the Agreement in general, which, as the Respondent explained in the response dated 14 February 2025, they were not able to address due to the Agreement being an approved Fair Work Commission instrument.

On that basis, the Commissioner's preliminary view is that the Commission does not have jurisdiction to deal with Ms Radcliffe's application. Bearing in mind a dispute application can only be lodged to deal with a dispute if:

• the Applicant is an employee;
• a modern award, enterprise agreement, public sector determination, contract of employment or other written agreement applies to the Applicant;
• it contains a dispute settlement procedure;
• that dispute settlement procedure requires or allows the Commission to deal with a dispute;
• the Applicant has followed all internal dispute resolution procedures or other dispute resolution procedures that they are required to follow before lodging a dispute with the Commission; and
• the Applicant would like the Commission to deal with the dispute in accordance with the dispute settlement procedure.

The matter cannot proceed unless it is clear that the Fair Work Commission has jurisdiction to deal with the dispute. Therefore, if the Applicant wishes to press a different view to the preliminary view provided above, the matter will be listed for conference to determine directions for the filing of submission and evidence on the jurisdictional question.

Ms Radcliffe is asked to please advise if they wish to press or withdraw their application. Please advise by 5:00pm Monday, 24 February 2025."

• [10] On 25 February 2025, after receiving no further correspondence from Ms Radcliffe, my Associate sent the following email:

Reference is made to the above matter and the previous email below.

Chambers notes it has not received a response from you regarding the jurisdictional issue (as outlined in the previous email below).

Please advise by 5:00pm today whether you wish to withdraw or press your application."

• [11] On 27 February 2025, after receiving no further correspondence from Ms Radcliffe, my Associate sent the following email:

Reference is made to above matter and the previous emails to you below.

Chambers has not received any response from you. The Commissioner may move to dismiss your application for reason of want of prosecution under s.587 of the Fair Work Act 2009, noting there appears to be no jurisdiction for the Commission to deal with your matter.

If the Parties wish to write further on the above matter, they may do so by close of business Friday, 28 February 2025. If the Applicant wishes to discontinue the matter in light of the above, please inform Chambers and the matter will be closed.

You may wish to seek legal advice, the following link may be of assistance:

• [12] On 3 March 2025, after receiving no further response from Ms Radcliffe, my Associate attempted to call her by telephone, however the call went unanswered, and a voice mail was left referring to the contents of the previous emails from my Chambers and that I may move to dismissing the application.

• [13] On the same day, my Associate sent the following email to Ms Radcliffe:

Following on from the below correspondence, I attempted to call your nominated mobile phone number this morning.

Please could you respond to this email or call me back on the number that I attempted to call you on as soon as possible and by no later than 4:00PM, Today, 3 March 2025."

• [14] Later that same day, Ms Radcliffe called my Chambers and spoke to my Associate. Ms Radcliffe expressed that she thought the Agreement was unfair. My Associate informed Ms Radcliffe that if she did not provide submissions in response to the previous emails from my Chambers, her application may be dismissed. My Associate asked Ms Radcliffe if she wanted to withdraw her application but she did not respond and said she needed to go.

• [15] Later that same day, Ms Radcliffe sent the following email to my Chambers:

"I was unsure how to respond to the previous emails. I do not have any legal knowledge and it sounded like I didn't have any chance getting my view heard.

I would like GCLA's enterprise bargaining agreement reviewed as I cannot see how it is legal and ethical for casual support staff to not be paid for the time and fuel it costs to drive from one clients (sic) home to the next. There is no other way for this type of work to be performed without the driving between clients. Staff cannot be at one clients (sic) and then the next without driving so there is no way it should be considered the staff members "spare time" or "break"!

If it is then up to the staff member if they choose to refuse to accept unpaid "breaks" in their day then then would only see one client per day with the shift lasting as little as one hour! If staff chose to do that GCLA would have to hire hundreds of staff to meet clients (sic) needs.

In the SCHADS award staff are not forced to "break" at a time they are not taking a break. GCLA's EBA provides worse working arrangements than the agreed terms outlined by fair work Australia. Please review if GCLA's EBA is actually unethical due to a loophole with wording around "breaks". Fair work states these breaks need to literally be breaks and they cannot possibly be considered this when the staff member must be getting themselves from one location to another in a specified amount of time. This is not a break!"

• [16] On 11 March 2025, my Associate sent the following email to parties:

Reference is made to the above matter and the Applicant's previous email below.

As the Applicant has not articulated that the Commission has jurisdiction to deal with this matter, the Commissioner is minded to dismiss this application under s.587 of the Act.

If the Parties wish to write further on the above matter, they may do so by close of business 12, March 2025. If the Applicant wishes to discontinue the matter in light of the above, please inform Chambers and the matter will be closed."

• [17] On 12 March 2025, Ms Radcliffe replied to the above email with the following:

"I have provided evidence that casual support workers working under GCLA's EBA have less favourable pay/working standards than the National Employment Standards. As noted by Fair work Commission... "An enterprise bargaining agreement (EBA), while intended to improve upon minimum standards, cannot create terms that are less favourable to employees than the minimum entitlements set out in the National Employment Standards (NES) or applicable award". Fair work commission told me that in order for this to be rectified Fair work Commission would need to review the EBA. This is what I am requesting here. If this is the incorrect avenue please let me know what I need to do? If the review has already taken place can you please explain to me how it is fair that travel from one clients (sic) home to the next is considered a "break". As outlined by fair work a "break" must mean the literal meaning of the word break however it would be impossible to arrive at subsequent clients (sic) homes if the break was taken as an actual break unless staff are taking the break at the original clients (sic) home then driving to the next clients (sic) home when the shift time started for the next client. Please let me know if you are unable to understand what I mean?"

• [18] Later that same day, my Associate sent the following email to Ms Radcliffe:

Reference is made to the above matter and your previous email below.

It is acknowledged you are aggrieved regarding the Gladstone Community Linking Agreement 2021 (the Agreement). However, the fairness or unfairness of the Agreement is not able to be assessed where the Commission does not have jurisdiction. A Fair Work Commission Member cannot consider the fairness of the Agreement, and such issues are generally addressed during bargaining for the next enterprise agreement, noting the Agreement's nominal expiry date is 9 May 2025. Please note that as you are no longer an employee, you are not covered by the Agreement and would likely not be privy to such bargaining conversations.

With respect to your allegations surrounding outstanding allowances, these are matters that can dealt (sic) with via the Fair Work Ombudsmen, further information can be accessed here: Allowances - Fair Work Ombudsman

Given the above explanation, please confirm if you wish to withdraw your current application as the Fair Work Commission does not have jurisdiction. Alternatively, the Commissioner will move to dismissing your application.

Please advise by 4:00pm, Thursday 13 March 2025."

• [19] To date, Ms Radcliffe has not provided any response to the above.

• [20] Section 593 provides that the Commission is not required to hold a hearing except as provided by the Act. I consider the parties were provided ample opportunity to provide any submissions relating to the dispute at hand, including with respect to my preliminary view that the Commission did not have jurisdiction to determine this matter, and that I may move to dismiss the application per Section 587. As such, this matter has been determined on the papers.

• [21] Ms Radcliffe's submissions focus in large part on her belief that the current agreement is unfair and as such, she has not provided substantive submissions addressing the jurisdictional question posed. It is also of note that to date, she has failed to respond to the Commission's request that she confirm, by close of business 13 March 2025, whether she wished to discontinue her application and has failed to prosecute her case any further.

Does the Commission have jurisdiction to deal with the dispute?

• [22] Whilst I acknowledge Ms Radcliffe's firmly held views about the fairness or otherwise of the Agreement, the fact remains that the Agreement is an approved instrument of the Commission, and as such has been assessed, at the time of lodgement, to have met the requirements for approval including that employees are better off overall. Whilst Ms Radcliffe did raise her concerns about the Agreement during her employment, I do not consider they were concerns of a kind that could have been resolved through the dispute's provision of the Agreement.

• [23] The Agreement's dispute provisions give the parties a mechanism for dealing with disputes that relate to the operation, and application of the terms of the Agreement. This is quite distinct to complaints or concerns about the fairness of certain provisions of the Agreement that go to the question of whether or not the Agreement should have been approved in the first instance.

• [24] Further, I have been provided no evidence or submissions to suggest that whilst Ms Radcliffe was an employee, the Agreement's dispute provisions were not complied with, noting GLCA's submissions that the parties attempted to resolve the matter through discussion involving the relevant supervisor and subsequently more senior levels of management, and that Ms Radcliffe was at all times advised that her concerns with the Agreement were not matters that could be resolved whilst the Agreement remained in force. I accept GCLA's contention that it acted in an appropriate manner in dealing with the complaints raised by Ms Radcliffe whilst she was an employee.

• [25] As noted, many of the concerns raised were not capable of being addressed as they related to the fairness or otherwise of provisions that were being lawfully applied under an approved agreement. As noted, had she remained in GCLA's employment, Ms Radcliffe would have been well within her rights to have raised these concerns during subsequent negotiations for a replacement agreement. Consequently, I consider the dispute was, to the extent it reasonably could be, resolved.

• [26] Ms Radcliffe resigned her position from GCLA on 15 September 2024, some 4 months before lodging this application. Again, whilst it is clear that her views about the Agreement may have been a factor in her decision to resign, the fact remains that she did and as such is no longer covered by the Agreement.

• [27] It is well established that where an applicant is no longer an employee and consequently not covered by an industrial instrument, such as an enterprise agreement as found in this case, there is no jurisdiction for the Commission to deal with the dispute relating to the said Agreement.[1] Consequently, I find that the Commission does not have jurisdiction to deal with Ms Radcliffe's dispute.

• [28] Section 587 of the Act provides as follows:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [29] In this case, GCLA has sought that the application be dismissed. I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[2] Such a decision results in the extinguishment of a party's application, which has been made in order to seek some relief from a beneficial statutory provision.[3] I have therefore had regard to all of the facts and circumstances of this matter when considering GCLA's request.

• [30] Ms Radcliffe is no longer an employee of GCLA, and I have found that the dispute raised during her employment was resolved prior to her resignation. Consequently, the Commission does not have jurisdiction to deal with Ms Radcliffe's dispute. As such, I find her application has no reasonable prospect of success.

• [31] Noting that section 587(1)(c) provides that the Commission may dismiss an application that has no reasonable prospects of success, I am persuaded that I should exercise my discretion under section 587(3) and dismiss Ms Radcliffe's application.

• [32] An order to that effect will issue with this decision.

[1] Jonathan Dugald Mitchell v University of Tasmania [2022] FWC 1115.

[2] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[3] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

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