Fair Work Act 2009

s.739 - Dispute resolution

Application to deal with a dispute - jurisdictional objection - application dismissed.

• [1] This application arises from a dispute about whether Ms Goodenough's (Applicant) prior employment with The University of Newcastle Research Associates (TUNRA) and the Garvan Institute of Medical Research (Garvan) should be recognised as service by her current employer, that being the Commonwealth of Australia as represented by the Department of Health and Aged Care (Respondent), for the purposes of long service leave.

• [2] Specifically, the dispute relates to clause 376 of the Department of Health and Aged Care Enterprise Agreement 2024-2027 (Agreement) which provides:

"An employee is eligible for long service leave in accordance with the Long Service Leave (Commonwealth Employees) Act 1976"

• [3] This application, made pursuant to s.739 of the Fair Work Act 2009, seeks:

"a A determination that TUNRA and Garvan are State Authorities under the Long Service Leave (Commonwealth Employees) Act 1976 (the LSL Act) and are to be recognised as such for the purposes of LSL;

1. A determination that the Respondent denied the Applicant access to LSL inconsistently and therefore breached the Agreement;

1. A direction that the Respondent promptly approves and processes the period of additional long service leave that Applicant has been deemed eligible for; and

1. A determination that declares the Respondent did not comply with section 327A of the Fair Work Act 2009."

• [4] The Respondent raised a jurisdictional objection to the application and contended that the Commission lacks jurisdiction to hear the dispute on the basis that the subject matter does not arise under either the Agreement or the National Employment Standards (NES). The Respondent further contends that clause 376 of the Agreement is a non-operative clause that creates no legal entitlements under which a dispute can be raised, but is rather a 'sign post'.

• [5] Additionally, the Respondent contends that in any event, the relief sought by the Applicant is not a form of relief that the Commission could award, even if she were successful with her arguments.

• [6] I note that the Applicant sought to extend the dispute to include other forms of leave and superannuation in her submissions filed prior to the hearing. However, this decision only deals with the dispute which was notified to the Commission in her application (of which no reference was made to superannuation or other forms of leave), and which was the subject of conciliation prior to the hearing.

• [7] The Applicant also objected to the Respondent being granted permission to be represented. I granted permission for the Respondent to be represented because I considered that its lawyers would assist with the efficient conduct of the matter, having regard to complexity of the jurisdictional objection.

• [8] For the reasons that follow, I find that there is no jurisdiction for the Commission to deal with this application and accordingly it is dismissed.

Does the Commission have jurisdiction to exercise arbitration powers and determine this dispute?

• [9] There is no dispute that the Agreement applies to the Applicant and that the dispute resolution procedure (DRP) is set out in clauses 533 to 545 of the Agreement.

• [10] The DRP allows for disputes to be raised only in relation to matters arising under the Agreement and/or the NES. There is no suggestion by the Applicant that the NES is relevant in this matter.

• [11] In the extensive submissions provided by both parties, reference was made to the principles that apply to the interpretation of enterprise agreements which are well-established and not repeated here.

• [12] The Applicant contends that the Commission does have jurisdiction to determine the dispute. She submitted that the ordinary meaning of the words 'in accordance with' in the text of clause 376 provides active incorporation of the LSL Act into the Agreement. She submitted that the meaning of the words 'eligible for' is to allow employees who meet the eligibility scheme of the LSL Act to access their entitlements. Further, these words invoke a meaning of binding obligation on the Respondent requiring active compliance and not merely referencing to an external source of legislation or a passive sign post.

• [13] She also submitted that Courts are cautious to treat obligatory language as non-binding unless it is clearly expressed as such. In this regard, the Applicant argued that the Respondent had not prefaced clauses 376-377 with any clear wording which would support their submission that clause 376 is a mere sign post.

• [14] In support of her interpretation, the Applicant also pointed to clause 377 which she said was only enlivened once the Respondent fulfilled its obligation to determine that an employee was eligible for LSL and that employee had made a request to utilise their LSL entitlement.

• [15] The Applicant said that even if the Respondent was successful in its argument that clause 376 is not a matter arising under the Agreement, clause 377 would nonetheless be sufficient to bring the dispute within jurisdiction, because she had not been granted a minimum of 7 calendar days of long service leave from her prior service with TUNRA and Garvan.

• [16] The Respondent submitted that the term 'eligible' and 'in accordance with' are particularly relevant to discerning the effect of this clause. Giving these words their ordinary meaning, the Respondent submitted that the ordinary meaning of 'eligible' is "fit or proper to be chosen" and the ordinary meaning of 'in accordance with' is "in line with". In other words, an employee is fit for long service leave in line with the LSL Act. This language does not create a new obligation or entitlement for any employee separate to the LSL Act. It simply points to the source of an external entitlement (i.e. a signpost) that is relevant to an employee's employment. Further, the Respondent contended that it does not suggest the incorporation of the LSL Act into the Agreement. The language is not ambiguous and rather is clear and certain in this regard.

• [17] The Respondent pointed to the decision in Nina David-Milne v Commonwealth of Australia represented by the Department of Human Services[1] (Milne) in which the Commission considered materially identical language in a dispute related to maternity leave under the relevant enterprise agreement. The Commission in Milne found that there was no jurisdiction to deal with the dispute because the words used in the clause in question did not evince an intention to create an entitlement to maternity leave distinct from the Maternity Leave (Commonwealth Employees) Act 1973. The Commission concluded that the clause was a 'sign post' to the source of the maternity leave entitlement as opposed to the term of the relevant agreement.

• [18] The Applicant contended that Milne could not be relied on to oust the Commission's jurisdiction to determine this dispute and instead referenced other decisions of the Commission[2] which she submitted supported her interpretation.

• [19] The Applicant contended that the LSL Act was incorporated into the Agreement and this incorporation was not displaced by clause 6 of the Agreement. She submitted that the correct meaning of clause 6 is that the terms and conditions in Commonwealth legislation are not specifically listed in the Agreement and can be found in the relevant legislation.

• [20] The Applicant sought to distinguish this clause from clause 8 which provides that "policies and procedures are not incorporated into and do not form part of this Agreement". These she said, were clear words to exclude beneficial provisions from the Agreement, unlike the words of clause 6.

• [21] Having reviewed the decisions to which the Applicant referred, I consider that Milne is more applicable to the current application. I adopt the reasoning in Milne in the determination of this application.

• [22] Relevant also is that the Agreement at clause 6 provides that the terms and conditions of employment for those covered by it are what is set out in the Agreement, "other than terms and conditions applying under relevant Commonwealth laws".

• [23] I find that clause 376 does not give rise to an entitlement to long service leave. Rather, it is non-operative and does no more than point to the source of an entitlement to long service leave. Nor does this clause have the effect of incorporating the LSL Act into the Agreement. Long service leave is a statutory entitlement. It does not require incorporation into the Agreement to give effect to the LSL Act's provisions.

• [24] The matter in dispute, that being the recognition of prior service for the purposes of long service leave, is not a matter that arises under the Agreement. It is solely a matter that arises under the LSL Act. In other words, the source of the entitlement regarding recognition of prior service is the LSL Act and not the Agreement.

• [25] There is nothing in my view that is ambiguous about this clause, nor is it susceptible to more than one meaning, so no reference to extrinsic materials is required.

• [26] In my view, the LSL Act is one of the Commonwealth laws referenced in clause 6. This clause reinforces the view that clause 376 does not do more than point to the terms and conditions of employment that apply under 'relevant Commonwealth laws".

• [27] It follows that this dispute cannot be characterised as a dispute that arises under the Agreement (nor under the NES). Accordingly, there is no jurisdiction for the Commission to deal with the dispute. The application is therefore dismissed.

A Sherr of Sparke Helmore Lawyers for Department of Health and Aged Care.

[1] [2020] FWC 1426.

[2] CFMMEU v Compass Group (Australia) Pty Ltd [2023] FWC 130, and TWU v FedEx Express Australia Pty Ltd [2025] FWC 1293].

Printed by authority of the Commonwealth Government Printer