s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement - jurisdictional objection - whether the arbitral powers of the Commission have been enlivened - whether dispute procedure complied with - dispute procedure not followed - arbitral powers not enlivened - application dismissed.

[1] This is a dispute about whether Ms Gayle Lewis **(**the Applicant) can have the Commission determine a dispute about their classification level under the terms of the Enterprise Agreement that covers them. Specifically, the question I am required to determine is whether the Applicant has followed the requirements of the dispute resolution procedure contained within the Agreement such that the arbitral powers of the Commission have been enlivened.

[2] The Applicant's employment was covered by the Bunnings Retail Enterprise Agreement 2023 (the Agreement). It is not in dispute that the Applicant is currently an employee covered by the Agreement, having commencing working for Bunnings over 10 years ago.

[3] Under the terms of the Agreement, the classifications and remuneration of employees are set out at Appendix 1: Classifications. The Applicant is classified at Grade 2 - Team Member.

[4] The Applicant performs a large part of their work in the Bunnings Nursery and enjoys this work. Since commencing their employment, they have successfully completed two university units in Gardening Science at the University of Tasmania. They have conducted regular gardening workshops for Bunnings customers and, based on their experience and qualifications, consider themselves to be a horticulturist. The Applicant's role also involves a significant amount of work ordering stock and associated inventory management. On this basis, the Applicant believes that they have been misclassified and underpaid. Their position is that they should be classified as a Specialist under the Agreement and be paid as such.

[5] The Respondent's position is its interpretation of the Agreement is correct and that the Applicant has been classified and paid in accordance with the terms of the Agreement. They argue further that the FWC has no power to determine this dispute because the requirements of the Agreement for the arbitral powers of the Commission to be enlivened have not been met.

[6] The Agreement sets out the requirements for the parties to bring a matter to the FWC for arbitration in Appendix 6. Dispute Resolution Procedure. Relevantly the dispute procedure provides as follows:

"(a) This Appendix sets out the procedures to be followed if a dispute arises about a matter under this Agreement or in relation to the NES.

(b) In the first instance Bunnings and the Team Member will attempt to resolve the matter at the workplace by discussions between the Team Member concerned and the relevant Coordinator.

(c) If such discussions do not resolve the dispute or if the dispute concerns the Coordinator, the Team Member must refer the matter to the Complex or Area Manager, or the regional Human Resources Manager or their nominee.

(d) If the matter remains unresolved having followed the steps in clause (c), it must be referred to Bunnings' Employee Relations Manager (or their nominee).

(e) If the dispute is unable to be resolved through the steps in clauses (b) through (d), a party to the dispute may refer it to the FWC.

(f) If the dispute remains unresolved, the FWC may use any method of dispute resolution that it is permitted by the Act to use (including mediation and/or conciliation and/or arbitration) and that it considers appropriate for resolving the dispute."

[7] The Respondent's position is that the Applicant has not complied with the dispute resolution procedure for the Commission to have the power to arbitrate the dispute. The Applicant maintains otherwise.

[8] To determine this jurisdictional question, on 9th December 2025, I issued directions for the filing of evidence and submissions from the parities.

• [9] 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].

[10] For the reasons set out below, I am satisfied that the Commission does not have jurisdiction to consider this application and it must be dismissed.

[11] Much of the relevant background in this matter is not contested.

[12] It is accepted that the Applicant has worked for the Respondent as a Level 2 Team Member for some time. The Applicant submits they have previously raised concerns about being required to perform stock ordering and inventory tasks and only been paid as a Team Member. Their submissions are that when they first commenced working at Bunnings Echuca, they were asked to do ordering by the complex manger. In response, the Applicant states they asked if this work was normally done by a level 3. They submit the complex manager's response was to ask them to confirm if they didn't want to work in the nursery anymore. As the Applicant liked working in the nursery they accepted being paid at the Level 2 rate and undertook the ordering work as requested.

[13] This continued for approximately 2 years, until a new complex manager was appointed. When this happened, the Applicant says they again raised their concerns about only being paid at the Level 2 - Team Member (Expert) rate. They say the complex manager told them this was the correct classification.

[14] The Respondent does not present any evidence or submissions to contest these submissions by the Applicant. I infer from this that it is not in dispute the Applicant has previously raised concerns about their classification level with the Respondent's complex managers at Echuca.

[15] On the 8th of September, the Applicant raised a formal query about their concerns using the Respondent's internal internet portal - People Query. Their submissions are that this is the only way employees from the shop floor can communicate with Human Resources members of the Respondent. They say that once a query is raised it is allocated to a nominee of the Respondent's employment relationship manager for the staff member to engage with online and attempt to address their concerns. Their position is at no time is a staff member given direct access to the Respondent's Employee Relationship Manager.

[16] Supporting these submissions, the Applicant filed a series of records of their internal correspondence using the People Query Platform from 8th of September 2025. This evidence indicates that the Applicant initiated a query using this internal platform as follows:

I'm currently a team member expert ( previously a grade 2 A) with expertise in Green life, Irrigation, BBQ and Power Garden. I am currently work in the nursery at the Echuca store. As such I am required to order thousands of dollars of stock and manager inventory levels...

My question is, how does inventory management fit in to the job description for a team

While it does mention the role of special orders that role only orders an item for a customer and does not have all the other aspects of inventory management.

[17] The Applicant received a response on the platform from a member of the Respondent's team named Ms S. Rottura. The response advised that based on the information provided inventory management falls under the "specialist" classification.

[18] On receipt of this response, the Applicant replied to Ms Rottura asking if this was the case why they had been told the role was within the scope of an Expert Team Member's classification. Further, asking had they and all other team member experts ordering plants been underpaid. Ms Rottura's response was to offer to reach out to the Applicant's complex manager if the Applicant did not want to address the issue themselves.

[19] The Applicant informed Ms Rottura they had already mentioned it to their current and previous complex managers and been told they were correctly classified. The Applicant also indicated they thought this was more a "fair work matter" as it has been over 2 years since the issue had first been raised. Ms Rottura's response was as follows:

I understand you've raised the concern with both the current and previous Complex Managers, and I appreciate the steps you've taken to try and resolve the matter.

If you're comfortable with it, I'd be happy to reach out to your Complex Manager to gain a clearer understanding of their perspective, as the advice I've provided so far is based solely on the details outlined in your letter."

[20] The Applicant told Ms Rottura they were 'ok' with her raising the issue with the Complex Manager. When the Applicant did not hear a response, they wrote back to Ms Rottura advising that as it had been a while, they felt they needed to act in accordance with Appendix 6(e) of the dispute resolution clause. When the Applicant and Ms Rottura subsequently could not connect, they advised Ms Rottura having followed the preliminary steps in the dispute resolution clause they had no alternative but to move to step (e) and sought the Respondent's details for the purposes of their FWC application form.

[21] The Applicant lodged this application with the Commission on the 1st of November 2025. The Application seeks a determination by the Commission on whether the Applicant's tasks are covered by the EBA and what level they should be remunerated.

[22] On the 28th of November, the Respondent filed submissions in response to the Application indicating they believed the Applicant was correctly classified. Adding further that the Commission did not have jurisdiction to arbitrate the dispute because the Applicant had not followed the dispute procedure by referring their dispute to the Bunnings Employee Relations Manager before the FWC, as required by subclauses (d) and (e).

[23] The question to be determined in this matter is simply whether the Applicant has satisfied the requirements of the dispute procedure in the Agreement such that the arbitral powers given to the Commission in the Agreement are enlivened.

[25] The Respondent submits that the facts in this case are that the Applicant has asked a question using the Respondent's "People Query" platform about how inventory management fits within their job classification, rather than raising a dispute. The Applicant's query was handled by a member of the Respondent's People Advisory Team. The People Advisory Team is not the Bunnings Employee Relations Manager (or their nominee). This being the case, the Applicant has not complied with the requirements of the dispute procedure that require the dispute "must" be referred to the Bunnings Employee Relations Manager (or their nominee) before it can be referred to the FWC.

[26] In further support of this submission, the Respondent identifies that the Applicant bears the onus of raising the dispute as required by the terms of the dispute procedure should they consider it unresolved. Adding further, that the Respondent takes steps to make all employees aware of who they should contact if they have a concern or a grievance. That the Applicant was free to access the Human Resources Team, Employee Relations Manager (or their nominee), including by seeking their contact details from their line manager or members of People Advisory Team. And that in this case, the Applicant has made no attempt to contact or enquire who the Employee Relations Manager was. This being the case, the Respondent submits the application must be dismissed for want of jurisdiction.

[27] The Applicant's position is they believe they have done everything possible to comply with the requirements of the dispute procedure for the Commission to have jurisdiction to consider the dispute.

[28] Firstly, that the only means the Applicant had to contact the Respondent's Human Resources Team is through the People Query they used in the circumstances of this case. Secondly, that the dispute procedure does not specify who the Respondent's Employee Relations Manager is whom they are required to contact. The Applicant submits that they are not aware of any way to contact the Respondent's Employee Relations Manager. Adding further, they assumed it was, or would have been, Ms Rottura who they had been discussing their concerns with over several weeks. And that at no stage did Ms Rottura advise or inform them who it was they were required to refer the matter to when explicitly informed they were considering making this application to the Commission.

What are the Commission's powers to deal with disputes

[29] 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.

• [30] In CFMMEU v Falcon Mining Pty Ltd, the Full Bench said:[3]

"...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."

• [31] For the Commission to have jurisdiction to arbitrate this dispute, I must be satisfied the Applicant has followed the steps required under the Agreement for this to be case. As the Full Bench made clear in AWU v MC Labour Services,[4] there is no general discretion for the Commission to exercise the arbitral powers given to it by the parties in an enterprise agreement. The pre-requisite conditions of the agreement for the Commission to exercise its powers of arbitration must be met.[5]

[32] Having considered the material before me, and I am not satisfied this is the case.

[33] The consistent evidence of both parties is that at no stage did the Applicant refer the dispute to the Bunnings Employee Relations Manager as required. What is clear is that the Applicant raised a query about their pay and classification level under the terms of the EBA. They did so with 2 Complex Managers and subsequently with Ms Rottura using the People Query Platform. At no stage, however, is it clear that the Applicant was raising a dispute.

[34] Consistently, the Applicant 'asks' how does inventory management fit within the job description of a Team Member (Expert) under the EBA. At no stage does she use the word "dispute" or "grievance".

[35] The Applicant's own submissions are they "assumed" they would not have been able to contact the Employee Relations Manager. Adding that was it not right to "assume" Ms Rottura was the Bunnings Employee Relations Manger's nominee. The Applicant makes no further submissions regarding their efforts to contact the Employee Relations Manager. Nor do they make any submissions as to any enquires made, including of Ms Rottura, as to who was the person the EBA required the matter to be referred to prior to making an application to the Commission.

[36] However, unfortunately for the Applicant, the terms of the enterprise agreement do not provide a freedom for the Applicant to make assumptions. An unresolved dispute must be referred to the Respondent's Employees Relations Manager before it can be referred to the FWC.

[37] I am not satisfied this requirement has been met in the circumstances of this case. In reaching this conclusion, I have some sympathy with the Applicant's frustration about having limited options to contact the Respondent's Human Resources Team and not being advised by Ms Rottura of the requirements of the dispute procedure. Ultimately, however, the Applicant has not presented any further evidence or argument to take these submissions further.

[38] Despite this being the case, I consider there are obvious steps the Respondent should take to ensure its Team Members are properly informed of who it is they should be in contact for "queries" in contrast to those who should be contacted for matters that need to be elevated as "disputes".

[39] 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.

[40] Accordingly, for these reasons, the application is dismissed for a lack of jurisdiction.

[1] [2022] FWCFB 93.

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

[4] [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.

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