Fair Work Act 2009

s.739 - Dispute resolution

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

• [1] This is an edited version of my decision given on transcript on 20 October 2025.

• [2] Oliver Welch was employed by Telstra Limited as a Sales Product Owner Principal. He claims that his role was misclassified at a Band 2 level under the Telstra Limited Enterprise Agreement 2024-2027 and that it should have been classified as a Band 1 position. He has requested that Telstra regrade his role, effectively retrospectively, and to provide him with the necessary and consequential back payments.

• [3] On 1 September 2025 Mr Welch filed an application under section 739 of the Fair Work Act 2009 seeking the Commission's assistance in the matter. He relies on the dispute resolution provision contained in clause 27 of the Enterprise Agreement.

• [4] Telstra denies that there is any basis for Mr Welch to seek to have his role reclassified or to claim any back payment. More particularly for present purposes, however, Telstra has raised a number of objections to the application on jurisdictional grounds. The matter was listed for hearing today to hear those jurisdictional objections.

• [5] Telstra relies, essentially, on three grounds. First, the dispute resolution provision at clause 27 of the Enterprise Agreement applies only to employees of Telstra. Mr Welch's employment came an end on 11 June 2025 and, as a result, he was unable to rely on clause 27 to invoke the Commission's jurisdiction under section 739.

• [6] Second, clause 27.2 of the Enterprise Agreement refers to "disputes about things covered in this agreement or about the NES". However, Band 1 employees are not covered by the Enterprise Agreement and there is no mechanism in the Enterprise Agreement for employees to seek higher payments outside the bandings in the Enterprise Agreement, to seek promotion to Band 1 or to seek the regrading of roles above Band 2. As a result, the matters the subject of the application are not "things covered in this Agreement".

• [7] Third, Mr Welch did not follow the dispute resolution process set out in clause 27.

• [8] Telstra relied on a statement by Adam Oliver who is employed by Telstra as the Executive, Mid-Market Panels. Mr Oliver was Mr Welch's "two up manager". In his statement Mr Oliver gave this evidence:

(1) In February 2023 a new role was advertised internally as Band 1, SFSAPOP-Sales-Product Owner/Principal. Mr Welch applied for that position. However, at some stage the role was regraded from a Band 1 to a Band 2 role.

(2) Mr Welch raised concerns about that regrading with his manager, James Ormesher, and with Mr Oliver, on 14 February 2023. Mr Oliver stated that in his conversation with Mr Welch, Mr Welch requested that the role be regraded to Band 1. However, Mr Oliver told him that the decision had been made. He stated, "I said that regrading of roles is something that could be done annually and he was welcome to raise the issue in the future, but there were no guarantees. I told him that while an employee is entitled to seek a review, the result is not always the outcome the employee was looking for. Mr Welch told me that [he] was disappointed."

(3) On 14 March 2023 Mr Welch was sent a letter of offer for the role of Sales Product Owner, dated 14 March 2023, which Mr Welch subsequently accepted_._

(4) On 14 August 2023 Mr Welch sent an email to Group Executive, Oliver Camplin‑Warner, about the banding of his role. The banding was not changed.

(5) Mr Welch sent a further email to Mr Camplin‑Warner on 8 February 2024 regarding the banding of his role but, again, the banding was not changed.

(6) On 7 June 2024 Mr Welch sent an email to Group Executive, John Ieraci, about the banding of his role but, again, the banding was not changed.

(7) In April 2025 a restructure was announced in Mr Welch's part of the business, the result of which was that his role became redundant. His employment ended on 11 June 2025.

• [9] Mr Welch provided a statement setting out his recollection of events. He disputed Mr Oliver's version of events in several respects. Mr Welch stated that he had been first made aware of the regrading of the role after he had been verbally informed that he had been successful in obtaining it. He claimed that he then challenged Mr Ormesher about the regrading and subsequently pressed Mr Oliver for a justification for the regrading of the role. He stated that Mr Oliver told him that it was a "known error" which would be corrected in the "June cycle".

• [10] Mr Welch stated that he asked Mr Oliver to escalate the matter, which Mr Oliver refused to do. Mr Welch stated that his repeated efforts to have Mr Camplin‑Warner and, subsequently, Mr Ieraci, intercede reflect that his dispute with Telstra was ongoing.

• [11] In his oral evidence today, including under cross-examination, Mr Oliver disputed that he had a conversation with Mr Welch as Mr Welch had described.

• [12] Under section 595 of the Fair Work Act the Commission may deal with a dispute only if it is expressly authorised to do so, under or in accordance with another provision of the Act. The application is made under section 739 which, in effect, permits the Commission to deal with the dispute if a term referred to in section 738 requires or allows the Commission to do so.

• [13] Relevantly for present purposes, section 738(b) refers to an enterprise agreement including a term that provides a procedure for dealing with disputes. At the heart of the jurisdictional objection is whether the Commission's powers to deal with the dispute under section 739, purportedly relying on the dispute resolution provision in the Enterprise Agreement, properly invokes the Commission's jurisdiction.

• [14] Telstra drew my attention to the terms of the Enterprise Agreement. It noted, in particular, clause 4, which is titled "Who this agreement covers". It is enough for present purposes to note that clause 4.1(c) refers to "all employees of Telstra". Clause 4.2 provides:

"All of these people are the Parties to this Agreement, to the extent the Agreement applies to them." (Italics in original)

• [15] Telstra submitted that that definition of "Parties" was significant in the context of clause 27, given that clause 27.2 is in these terms:

"The Parties want to avoid disputes about things covered in this Agreement, or about the NES. But if disputes occur, this is how they must be resolved." (Italics in original)

• [16] In simple terms, Telstra contended that on the face of the Agreement it was limited to existing employees of the company. It submitted:

"Telstra contends that the clauses set out above in the Telstra EA make it clear that the Fair Work Commission does not have jurisdiction to deal with a dispute, in relation to people who are no longer covered by the Telstra EA. ... As the Applicant is no longer an employee of Telstra, did not raise a dispute under the Telstra EA while he was an employee and was not an employee at the time of his application in this matter, Telstra submits the Commission cannot deal with the dispute.

There is nothing in the language of clause 27, having regard to its context, that extends the application of the disputes resolution procedure to former employees."

• [17] To the extent that Telstra submits that the fact that Mr Welch is no longer employed of itself precludes the Commission from dealing with this matter, I do not agree. It is now well established, in my mind, that the fact that the relevant employment relationship has ended does not, of itself, preclude a dispute being referred to the Commission or the Commission from dealing with that dispute.

• [18] In Jonathan Mitchell v University of Tasmania [2022] FWCFB 165, the Full Bench observed, at [29]:

"...As the University properly acknowledged, insofar as the Commissioner determined that there was a lack of jurisdiction by reason of the fact that the Agreement ceased to apply to Mr Mitchell from the date that his employment terminated, his decision was contrary to a long line of Commission authority both pre- and post-dating the enactment of the FW Act. The decisions which were made under the Workplace Relations Act 1996, namely Jajoo, Telstra and Deakin University, determined that there was no basis to read a limitation into s 170LW of that Act preventing the Commission from arbitrating a dispute which had arisen at a time when there was an employment relationship between the disputants solely because the employment relationship had terminated after the Commission was seized of the dispute. That approach continued to be applied under the FW Act in the Full Bench decisions in Kentz, Broadspectrum and Goonyella on the basis that, where an application under section 739 of the FW Act for the Commission to deal with a dispute has been made at a time when an employment relationship between the relevant employer and employees remains on foot, the powers of the Commission to deal with the dispute under s 739 are engaged at that time and are not subsequently vitiated because the employment relationship later comes to an end."

• [19] The Full Bench went on to observe, at [30]:

"Here, as earlier stated, Mr Mitchell had clearly invoked the provisions of clause 15 while his employment remained on foot, and therefore had an entitlement to proceed to the Commission to have the dispute resolved."

• [20] Mitchell has recently been applied by the Commission in Susan Cox v The Florey Institute of Neuroscience and Mental Health, trading as The Florey [2025] FWC 1610 and in Nickolas Osborne v Qcity Transit Pty Ltd trading as CDC Canberra [2025] FWC 2039.

• [21] In the Cox matter, Commissioner Tran observed, at [25] and [26]:

"At the time that the dispute application was filed with the Commission, the Agreement had ceased to apply to Ms Cox and Ms Survase as they were no longer employees, and therefore no longer covered by the agreement. However, the Florey does not dispute that the applicants can bring the application even though their employment has ended.

This is because if the Commission has jurisdiction to deal with a dispute under s 739 in accordance with a dispute settlement procedure in an enterprise agreement, that jurisdiction continues until the dispute is determined, irrespective of whether the employee's employment ends, or the enterprise agreement ceases to operate because it is replaced or terminated."

• [22] The question really comes down to whether the conditions precedent to the Commission exercising its jurisdiction under section 739 are met. In this regard three issues arise.

• [23] First, could Mr Welch invoke the dispute resolution procedure in clause 27 of the Enterprise Agreement in respect of the grading of his position? That is, was it relevantly a dispute within the meaning of clause 27.2?

• [24] Telstra submitted that the matters of which Mr Welch complains are not covered by the Enterprise Agreement. It argued that Band 1 employees are not covered by the Enterprise Agreement, which I note is an agreed fact. Indeed, Telstra submitted that they are specifically excluded by clause 4.1(ii) of the Enterprise Agreement. It submitted that there is no mechanism in the Enterprise Agreement for employees to seek higher payments outside of bandings covered in the Enterprise Agreement, to seek promotion to Band 1 or to seek the regrading of roles above Band 2.

• [25] In this regard, Mr Welch submitted that the substance of the claim, that is, a dispute over the correct classification and remuneration for work performed, is fundamentally a matter covered by the Enterprise Agreement's classification structure.

• [26] I have some doubts as to whether the dispute is properly a "thing covered in the Agreement", to adopt the language of clause 27.2. The effect of Telstra's submission is that the matter in contention is whether, indeed, Mr Welch ought to be covered by the Agreement at all. There is some force to Telstra's submission that seeking a grading that would take Mr Welch from outside the coverage of the Agreement is not properly to be regarded as a dispute within the meaning of the clause.

• [27] But even were I to find otherwise, that gives rise to the second issue. That is, did Mr Welch invoke the dispute resolution procedure in clause 27? There is significant doubt as to whether he did so. It is not in dispute that on or about 14 February 2023 Mr Welch had conversations with Mr Ormesher and Mr Oliver regarding the grading of his role. There is nothing before me to suggest that he did so in the context of invoking clause 27 of the Enterprise Agreement. Under cross-examination today, Mr Oliver stated that he understood it was a query about a role regrading.

• [28] That Mr Welch was unhappy with the grading of his role is apparent. I think that is a matter over which there is no contention. But the evidence falls short of demonstrating that on 14 February 2023 Mr Welch purported to invoke clause 27.

• [29] But, again, even if he did so, that gives rise to the third issue. That is, Mr Welch did not follow the dispute resolution procedure in clause 27.

• [30] Clause 27 anticipates a five step dispute resolution process. Step 1, which is in clause 27.4, is that the employee must talk to their manager about the issue in dispute as soon as they can and ask them to resolve it. The clause provides that the manager must try to resolve the dispute within five working days of the employee first asking for the dispute to be resolved.

• [31] Step 2, which is contained in clause 27.5, states that if step 1 does not resolve the dispute the employee is to ask their manager's manager, that is, their two-up manager, to resolve the dispute. The clause requires the two-up manager to try to resolve the dispute within five working days and that they may seek assistance from a more senior manager, if required.

• [32] Step 3, which is set out in clause 27.6, states that if the dispute still has not been resolved, the employee must ask the Executive - Employees Relations in People, Culture and Communications to resolve the dispute. Again, that person or their delegate must try to resolve the dispute within five working days.

• [33] Step 4, which is in clause 27.7, is that if the dispute still has not been resolved then the employee may refer the dispute to the Fair Work Commission for conciliation. And step 5, which is in clause 27.8, provides that if conciliation does not resolve the dispute the employee or Telstra may ask the Commission to arbitrate the dispute, in which case the Commission must do so.

• [34] In his submissions today, Mr Welch contended that in speaking to Mr Ormesher and Mr Oliver, on 14 February 2023, he had taken steps 1 and 2 in the dispute resolution procedure. In fairness, he may be regarded as having done so, even if not directly raising with either of those managers that he was purporting to invoke clause 27.

• [35] The difficulty, though, is that step 3 was not taken. It is not controversial that Mr Welch did not ask the Executive - Employee Relations in People, Culture and Communications to resolve the dispute within five working days of Mr Oliver of being unable to resolve the dispute as required by clause 27.6.

• [36] Mr Welch's explanation for this came down to three propositions. First, he had been given an assurance by Mr Oliver that the grading of his position as Band 2 was a known error and would be corrected in the June cycle. As I say, there was a factual controversy as to whether any such statement was made. Second, Mr Welch had been promoted to Acting Practice Lead for the AWS practice and that making or raising a formal dispute would be "professionally reckless". Third, he stated that there had been leadership instability which made identifying or referring the dispute to more senior management difficult.

• [37] Mr Welch submitted that Telstra made it impossible for him to follow the procedure in clause 27. I do not accept that submission. Even were I to accept that Mr Oliver had made the assurance to him regarding the resolution to the dispute, which I do not necessarily do, it does not assist Mr Welch. On his case, he started the dispute resolution process by speaking to Mr Ormesher and Mr Oliver. However, he decided to hit pause on it, as he explored an alternative avenue by which to resolve the dispute. That is, by escalating the matter - twice to Mr Camplin‑Warner and once to Mr Ieraci. That was his prerogative but therein lies the problem.

• [38] Clause 27 sets out the process that must be followed before a dispute can be referred to the Commission. I have referred to the steps set out in that clause. Each of them is time bound requiring, as one would expect, that disputes be raised and progressed promptly.

• [39] Significantly, clause 27.9(c) provides:

"You, your union/representative (if you have one) and the Company must follow each step and not skip any, regardless of the nature of the dispute." (Italics in original)

"You, your union/representative (if you have one) and the Company must also follow all of the time limits in this dispute resolution process. This is because it is in everyone's interests that disputes are resolved quickly."

• [41] In this regard Mr Welch submitted, in his written submissions:

"The '5-day time limit' argument is not a barrier to jurisdiction: Telstra cites the strict time limits of the EA. However, my continuous attempts to resolve the issue with Telstra's management and leadership show that Telstra was fully aware that the dispute was on foot. The protracted nature of the dispute is the result of Telstra's failure to provide a resolution, not a failure of compliance by the Applicant. To hold an employee to a strict time limit while the company ignores the substance of the dispute would be contrary to the fair and effective dispute resolution process the EA is intended to provide. The Commission is guided by its mandate to be 'fair and just', and to avoid, 'unnecessary technicalities', which gives it the discretion to hear a matter that has been unreasonably delayed or ended by an employer's actions."

• [42] To a similar effect, Mr Welch submitted today that Telstra's case, to paraphrase, was a matter of procedure over substance.

• [43] To my mind, Mr Welch has not properly grappled with the limitations imposed on the Commission. I confess that there is a temptation, now that the dispute is before me, to weigh in and attempt to resolve the matter between the parties. But the Act is clear as to when I can and when I must not do that.

• [44] Telstra's objection is not simply a matter of procedure over substance. It goes to the heart of the Commission's jurisdiction to deal with matters under section 739. The effect of Mr Welch's submissions is that any failure to follow the strict requirements of the Enterprise Agreement can be overcome by him having chosen to take an alternative dispute resolution path (whether or not he was induced to do so on the basis of representations or misrepresentations by Mr Oliver).

• [45] In this regard, I note the following observations of the Full Bench, in the matter of Simplot Australia Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union", known as the Australian Manufacturing and Workers' Union [2020] FWCFB 5054 at [37]:

"The Commission's authority to determine a dispute under an enterprise agreement is determined by the Act and the terms of the relevant agreement. The Commission only has the authority conferred on it by statute. It must do what it is required to do, and it can only do what it is allowed to do. It has no inherent jurisdiction. Invocations of policy and fairness cannot create jurisdiction where none exists."

• [46] For these reasons I find that the conditions precedent to the Commission exercising its jurisdiction under section 739 in respect of this dispute have not been met. It follows that the only order that I can make is that the application be dismissed. I make that order.

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