Fair Work Act 2009

s.739 - Application to deal with a dispute

The Florey Institute Of Neuroscience And Mental Health Trading AS The Florey

The Florey Institute Of Neuroscience And Mental Health Trading AS The Florey

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - jurisdiction of the Commission under dispute settlement procedures - whether an employee can continue to progress a dispute under dispute settlement process after employment has ceased - whether an employee can progress a dispute in circumstances where the dispute was raised by the union

• [1] On 17 March 2025, Ms Susan Cox and Ms Soniya Survase applied for the Fair Work Commission to deal with a dispute under s 739 and in accordance with clause 43 of the Florey Union Enterprise Agreement 2024. The respondent in both matters is The Florey Institute of Neuroscience and Mental Health trading as The Florey.

• [2] The dispute is about whether Ms Cox and Ms Survase were fixed term or continuing employees within the meaning of Clause 8 of the Agreement. The applicants say that they were continuing employees, so that when their employments ended on 31 December 2024, it was by way of redundancy, and they were therefore entitled to redundancy payments under clauses 50 and 51 of the Agreement. The Florey says that the applicants were fixed term employees and that their employments ended "by reason of the effluxion of time."

• [3] I conducted conferences in this matter on 24 March and 10 April 2025 but was unable to assist the parties to resolve the dispute. The applicants asked the for matter to be arbitrated.

• [4] This decision is only about whether the Commission may arbitrate the matter in accordance with clause 43 of the Agreement. It is not in dispute between the parties that the application that was filed with the Commission on 17 March 2025 was after the employment of both applicants had ended on 31 December 2024.

• [5] I am satisfied that the Commission does have jurisdiction to deal with this dispute in accordance with s 739 and the Dispute Settling Procedure at clause 43. My reasons follow.

• [6] The Agreement is the Florey Union Enterprise Agreement 2024. It was approved on 24 June 2024 and began to operate on 1 July 2024. Its nominal expiry date is 31 December 2025.

• [7] The Agreement contains a coverage clause in Clause 3, which provides

3.1 This Agreement has been negotiated between the Florey and the NTEU.

(b) All Employees of the Florey who are classified and paid in accordance with the

The Agreement contains a dispute settlement procedure in Clause 43, which provides:

43.1 This clause will be followed to resolve a dispute regarding any matter arising under this Agreement or in relation to the National Employment Standards or whether the Florey has any reasonable business grounds under sub-section 65(5) or 76(4) of the Act.

43.2 An Employee who is a party to a dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute or in the case of an NTEU member the NTEU is entitled to represent that Employee.

43.3 Other than as set out in clause 43.4, in the first instance the parties to the dispute will attempt to resolve the matter within ten (10) working days at the workplace by discussions between the Employee or Employees concerned and the relevant Supervisor. If such discussions do not resolve the dispute, then the parties to the dispute must try to resolve it in a timely manner at the workplace through discussion between the Employee or Employees concerned and more senior levels of management, including the Head of People and Culture.

43.4 If the dispute is initiated by the NTEU then they will first discuss the matter at the workplace with the Head of People and Culture and another representative of the Florey and attempt to reach an agreed resolution within ten (10) working days.

43.5 If the discussions at the workplace referred to in clauses 43.3 or 43.4 do not resolve the dispute, the dispute may be referred by the party initiating the dispute to the Fair Work Commission, or to an agreed independent third party, for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration. If arbitration is necessary the Fair Work Commission or the independent third party may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.

43.6 It is a term of this Agreement that while the dispute settlement procedure is being conducted work shall continue normally unless there is a reasonable concern about an imminent risk to health or safety.

43.7 Any dispute referred to the Fair Work Commission under this clause 43 should be dealt with by a member agreed by the parties at the time or, in default of agreement, a member nominated by the Fair Work Commission.

43.8 The decision of the Fair Work Commission will bind the parties, subject to either party exercising a right of appeal against the decision to a full bench.

• [8] Ms Cox and Ms Survase were employed by the Florey. Ms Cox says that she first commenced employment on 14 January 2010; Ms Survase says that she first commenced employment on 20 November 2017.

• [9] On 25 November 2025, the Florey sent letters to Ms Cox and Ms Survase. The letters were materially the same and said:

As you are aware, your maximum term employment with the Florey Institute of Neuroscience and Mental Health (Florey) is due for expiry on 31 December 2024. We are giving you notice that your employment will end on 31 December 2024 by reason of the effluxion of time and will not be renewed on the basis of funding.

• [10] On 12 and 13 December 2024, the National Tertiary Education Industry Union (NTEU) wrote to the Florey to raise a dispute. Relevantly, both letters began, "The NTEU writes on behalf of our member" and then named each of Ms Cox and Ms Survase respectively.

• [11] On 31 December 2024, Ms Cox's and Ms Survase's employment ended.

• [12] On 24 January 2025, the Florey replied to the NTEU's letters of 12 and 13 December 2024.

• [13] On 17 March 2025, each of the applicants' filed Form F10 applications for the Commission to deal with the dispute.

• [14] The applicants submit that the words of the enterprise agreement should be given their ordinary meaning, interpreted broadly and not divorced from industrial realities.[1]

• [15] The applicants submit that they had raised their disputes, with the assistance of the NTEU, on 12 and 13 December 2024 and - as the matter was not resolved - they could refer the dispute to the Commission in accordance with Clause 43.5 of the Agreement. The applicants submit "the party initiating the dispute" in Clause 43.5 means either the applicants personally or the NTEU in contradistinction to the other party, being the employer. That is, that there is no distinction between the employee, the union or the representative of the employee or whoever wrote the letter of dispute. The applicants submit that in construing the meaning of "the party initiating the dispute", it is irrelevant whether it is the employee, or the union on its own behalf or in a representative capacity. The applicants say that there are 2 parties to a dispute, and what Clause 43.5 allows is that whichever party raised the dispute may then bring the dispute to the Commission if it has not been resolved.

• [16] The applicants further submit that the practical outcome if I were to find that there was no jurisdiction in this matter, would be that the NTEU could then simply file the dispute and the process would recommence. The applicants submit that this would defeat the Act's object of achieving an efficient and just dispute settling procedure.

The Florey submits that the NTEU initiated the dispute in accordance with Clause 43.4 and it was therefore only the NTEU, being the party who initiated the dispute, who could refer the dispute to the Commission for resolution in accordance with Clause 43.5. The Florey says that whether the NTEU initiated the dispute on behalf of itself, or in a representative capacity, it is only the NTEU that may refer the dispute to the Commission.

• [17] The Florey also submits that, in order for the applicants themselves to refer the dispute to the Commission, they must have followed the procedure in Clause 43.3. That clause requires that the employee discuss the dispute with the relevant supervisor, then discuss with more senior levels of management, including the Head of People and Culture, before being able to refer the dispute to the Commission under Clause 43.5. The applicants do not rely on Clause 43.3, and there is nothing before me that demonstrates that Ms Cox or Ms Survase had discussions with "the relevant supervisor".

• [18] The Florey submits that the applicants' interpretation would leave the words "party initiating the dispute" to have no work to do because of the way the clause is structured, bifurcating the gateway to arbitration through either the employee initiating the dispute under 43.3 and being required to follow that process, or the NTEU initiating the dispute under 43.4 and being able to skip the step of discussing the dispute with the relevant supervisor.

• [19] There is no dispute among the parties that the Commission may arbitrate the matter if properly referred. The issue is whether the dispute has been referred to the Commission in accordance with the terms of the dispute resolution procedure.

• [20] The applicants filed emails between Ms Cox and Ms Survase and Mr Stewart Denmead, Senior People and Culture Business Partner. The NTEU's letters of 12 and 13 December were also addressed to Mr Denmead. The applicants say that in filing the emails, they do not rely upon the emails as commencing disputes under clause 43.2 and they were filed in response to a question I asked during the hearing.

• [21] The Florey objects to the acceptance of the further material, submitting that the applicants did not seek to file further evidence during the hearing nor make a proper application to file the material. Further the Florey says that the applicants have not established how the evidence is relevant or why they were not included in materials filed in accordance with directions. Last, the Florey says that it is prejudiced as it is unable to file responsive materials.

• [22] Ultimately, the emails do not advance nor support an alternative argument to what was put in written and oral submissions, and so I do not admit them for the purposes of determining the jurisdictional question. Nothing prevents the applicants from filing the emails as part of the determination of the substantive matter.

• [23] Section 595 of the Act provides for the Commission's power to deal with disputes only if it is expressly authorised to do so or 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).

• [24] Section 51 of the Act provides that an enterprise agreement can only impose obligations or give entitlements when it applies to a person. Section 52 of the Act provides that an agreement applies if it is in operation, covers the employee, employer or organisation and no other provision of the Act provides or has the effect that the agreement does not apply to the employee, employer or organisation. Section 53 of the Act provides that an agreement covers an employee or employer if the agreement is expressed to cover the employee or the employer.

• [25] 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.

• [26] 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,[2] irrespective of whether the employee's employment ends,[3] or the enterprise agreement ceases to operate because it is replaced or terminated.[4]

• [27] In Mitchell v University of Tasmania,[5] the Full Bench stated that it would be contrary to a "long line of Commission authority" to determine that the Commission lacks jurisdiction by reason of the fact that an agreement ceases to apply to an employee from the date that the employment terminated. The Full Bench also referred to earlier Full Bench decisions in Kentz,[6] Broadspectrum[7] and Goonyella[8] ,

"where an application under s 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."

• [28] In the matter of CFMEU v Thiess Pty Ltd,[9] Deputy President Asbury (as she then was) found that if a matter was put into dispute so as to enliven the relevant dispute resolution clause, then the applicant could

"subsequently make an application to the Commission ... notwithstanding that his employment ended before he made that application."

• [29] The Florey also directed me to Deputy President Asbury's comments in CFMMEU v BIS Industries Ltd.[10] In that decision, while the Deputy President found that "the dispute settlement procedure under the 2013 Agreement was engaged before [the affected union member's] employment ended," she ultimately found at [139] that "the Commission has no jurisdiction to deal with a dispute in relation to the application of clause 16.4 of the inoperative 2013 Agreement," relying upon the decision in Simplot.[11]
• [30] The reasoning in Simplot was questioned in Faclon Mining.[12] The principle that arises from Falcon Mining is that

"the Commission's authority to determine a dispute under an enterprise agreement is determined by the Act and the terms of the relevant agreement."[13]

• [31] So, in considering whether the Commission has power to arbitrate when an application is made, I must consider whether the conditions precedent contained in the dispute settlement procedure have been met.

Principles for interpreting dispute settlement procedures in enterprise agreements

• [32] The principles of interpretation of enterprise agreements are well settled. Recently in HSU v Mercy Hospitals Victoria Ltd,[14] the Full Bench reiterated a distillation of the principles from an earlier Full Bench[15] of the Full Court of the Federal Court in James Cook University v Ridd.[16] The principles have also been comprehensively set out by the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) (188V) v Berri Limited[17] and by the Full Court of the Federal Court in Workpac Pty Ltd v Skene.[18] There is no controversy about the principles that apply to the construction of enterprise agreements, and I do not repeat them extensively here.

• [33] The starting point for interpretation is the ordinary meaning of the words, read as a whole and in context. Account should also be taken of the purpose of the provisions. Relevantly, a narrow or pedantic approach to interpretation should be avoided.

• [34] In relation to the principles for interpreting dispute settlement procedures, the Federal Court has said:[19]

"The terms of a procedure for resolving disputes should not themselves be construed in a manner that turns them into an instrument for generating disputes as to whether the procedure itself has been followed. Such provisions must be construed having regard to their evident purpose as providing a mechanism by which to encourage discussion and resolution. They should be interpreted 'practically and with an eye to common sense' having regard to the context in which they will be applied so that they can be implemented 'in a clear way on a day-to-day basis at work sites."

• [35] Clause 43 of the Agreement is the procedure for dealing with disputes. It is a standard dispute settlement procedure.

• [36] Clause 43.1 of the Agreement deals with the subject matter of disputes and requires that the dispute settling procedure "will be followed" in relation to certain matters. This dispute relates to whether the applicants are entitled to redundancy payments dependent upon what mode of employment they were engaged under. It is common ground that the dispute is regarding a matter that arises under the Agreement and the National Employment Standards.

• [37] Clauses 43.2 deals with representation of an employee and provides that the NTEU is entitled to represent its members.

• [38] Both clauses 43.3 and 43.4 require that there must first be workplace level discussions. By the words "other than as set out", it is clear that Clause 43.3 provides for the usual procedure for disputes, and Clause 43.4 provides for an exception to that usual procedure.

• [39] The usual procedure requires that the parties must first attempt to resolve the dispute by discussion between the employee or employees concerned and the relevant supervisor. It then provides that if those discussions do not resolve the dispute, there must be a discussion between the employee or employees concerned with more senior levels of management, including the Head of People and Culture. There is a timeliness requirement in Clause 43.3 (10 working days).

• [40] Clause 43.4 provides for an exception to the usual procedure, by allowing the NTEU to initiate a dispute and have discussions with the Head of People and Culture and another representative of the Florey. That is, Clause 43.4 allows for bypassing the initial step of discussions between the employee or employees concerned and a relevant supervisor. Clause 43.4 also has the same timeliness requirement (10 working days) as clause 43.3.

• [41] Clause 43.5 provides that the Commission may mediate or conciliate the dispute. It also provides that the Commission may arbitrate where the matter in dispute remains unresolved. It is common ground among the parties that the despite remains unresolved.

• [42] It is common ground that the dispute was commenced when the NTEU sent letters to the Florey on 12 and 13 December 2024 in relation to Ms Cox and Ms Survase respectively. There is no dispute that Ms Cox and Ms Survase are NTEU members and entitled to be represented by their union in dispute resolution under clause 43.2. It is clear on the face of the NTEU letters dated 12 and 13 December 2024, that the NTEU raised disputes on behalf of their members, as explicitly dealt with in Clause 43.2.

• [43] The applicants do not rely on having undertaken any processes under clause 43.3. They rely only on having met the conditions of the dispute settling procedure by complying with clause 43.4.

• [44] It is also not in dispute that the discussions were by correspondence only, and there is no controversy about this being an appropriate way of attempting to resolve the dispute.[20]

• [45] It is also common ground that discussions at the workplace did not resolve the dispute.

• [46] Clause 43.5 provides that where discussions at the workplace do not resolve the dispute, it may be referred by the party initiating the dispute to the Commission for resolution, initially by mediation and/or conciliation and if unresolved, arbitration.

• [47] The controversy in this matter is that Ms Cox and Ms Survase themselves (and not the NTEU) filed an application with the Commission. The Florey say that Clause 43.5 requires that the "party initiating the dispute" in these circumstances means the NTEU and so only the NTEU could have referred this dispute to the Commission for resolution. The applicants say that it was initiated on their behalf and so "there is no material difference between the applicants lodging the dispute and the NTEU lodging the dispute."

• [48] I am of the view that "party initiating the dispute" in clause 43.5 of the Agreement means the NTEU and the individual affected members whom they may be representing.

• [49] The principles for interpreting enterprise agreements generally require that narrow or pedantic approach to interpretation is avoided,[21] and for dispute resolution procedures particularly, a practical, common-sense and practical interpretation should be preferred. This militates against reading 'party initiating the dispute' in clause 43.5 in a restrictive way.

• [50] Having regard to the industrial context of dispute resolution, disputes can involve or affect an individual or multiple individuals. The parties negotiating the Agreement recognised that the NTEU may represent a member (in clause 43.2) and commence disputes (clause 43.4). The NTEU is also named as a party to the Agreement in the coverage clause. The dispute settling procedure in the Agreement allows for the NTEU to bypass the step of discussions with a relevant supervisor.

• [51] Industrial disputes can be of many kinds, and some may be dealt with best by discussion between the employee and their supervisor, but others may be dealt with greater efficacy by having initial discussions with senior levels of management and human resources. Examples of such a dispute may relate to the interpretation of an agreement clause or where a dispute is of a collective nature, so that requiring each individual employee affected to have individual discussions with a relevant supervisor would not be an effective way of resolving the dispute.

• [52] I am persuaded by the applicants' submissions that the "party initiating the dispute" should be understood as distinguishing between a complainant (whether an individual employee or the union) and the employer.
• [53] I am persuaded by the applicants' submissions that the "party initiating the dispute" should be understood as distinguishing between a complainant (whether an individual employee or the union) and the employer. I am also of the view that this is a common sense and practical construction of the term.

• [54] There is nothing in the language nor structure of the dispute settling clause that suggests that it should be read in this restrictive way. Further, the individual who is at the centre of the dispute should not be deprived of agency and ownership over an issue that affects them by disallowing them from referring the dispute to the Commission simply because they instructed a representative to raise it on their behalf and it remains unresolved.

• [55] I am satisfied that the Commission has jurisdiction to deal with Ms Cox's and Ms Survase's dispute in accordance with clause 43 of the Agreement. I will shortly list the matters for case management conference to program the matters for arbitration.

Mr R Ternes instructed by Mr Wolf Legal, with permission, on behalf of the Applicant

Mr D Ternovski instructed by Mills Oakley, with permission, on behalf of the Respondent

[1] Qube Logistics (Rail) Pty Ltd v Australia Rail, Tram and Bus Industry Union [2021] FCAFC 83, at [31]-[32]

[2] The Full Bench in CFMMEU V Falcon Mining Pty Ltd [2022] FWCFB 93 described the power to arbitrate at [72] as the "whole process of adjudication leading to the making of a final decision."

[3] See Mitchell v University of Tasmania [2022] FWCFB 165 at [31] and discussion in [29]

[4] In relation to the Commission's jurisdiction where an agreement has ceased to operate, the Full Bench in CFMMEU v Falcon Mining Pty Ltd [2022] FWCFB 93 said that the Commission's power to arbitrate a dispute under s 739 is conferred by the Act and not by an agreement (at [64]) and so,

"the agreement does not need to be currently in effect in order for the Commission to determine a dispute about the rights and obligations under that agreement relating to a time when it was in effect." (at [72])

[5] Mitchell v University of Tasmania [2022] FWCFB 165 at [29]

[6] Kentz (Australia) Pty Ltd v CEPU [2016] FWCFB 2019 at [65] - [66]

[7] CFMEU v Broadspectrum Australia Pty Ltd [2017] FWCFB 269 at [42]- [50], but note particularly

[8] CFMEU v North Goonyella Coal Mines Pty Ltd [2015] FWCFB 5619 at [43]

[9] Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd [2016] FWC 5089 at [57]

[10] Construction, Forestry, Maritime, Mining and Energy Union v BIS Industries Limited [2021] FWC 2352 at [123

[11] Simplot Australia Pty Ltd v AMWU [2020] FWCFB 5054 at [18]

[12] Construction, Forestry, Maritime, Mining and Energy Union & others v Falcon Mining Pty Ltd [2022] FWCFB 93, see [52] - [62]

[14] [2024] FWCFB 235 at [112]

[15] AMA v the Royal Women's Hospital [2022] FWCFB 7 at [29]

[16] [2020] FCAFC 123; (2020) 298 IR 50 at [65]

[17] [2017] FWCFB 3005 at [114]

[19] Maersk Crewing Australia Pty Ltd v Construction, Forestry, Mining, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694 at [86]

[20] See Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2) [2020] FCA 951 per Flick J at [66]; Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FWCFB 7163 at [29]

[21] AMA & ASMOF v Royal Women's Hospital [2022] FWCFB at [7]; HSU v DPG Services Pty Ltd [2023] FWCFB 81 at [13]; Kucks v CSR Ltd per Madgwick J (1996) 66 IR 182 at 184-185

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