Workers fight for redundancy payments while employer argues only union can pursue the matter after termination
The Fair Work Commission (FWC) recently dealt with a jurisdictional question about whether workers could continue pursuing workplace disputes through formal processes after their employment had already ended.
Two female workers who had been employed for several years found themselves in disagreement with their employer about the nature of their employment contracts and what they were entitled to when their jobs ended.
The workers believed they were continuing employees entitled to redundancy payments, whilst their employer maintained they were fixed-term employees whose contracts had simply expired.
When their union initiated dispute proceedings on their behalf in December 2024, the workers' employment ended before the matter could be resolved.
The workers then filed their own applications with the FWC in March 2025, leading to a challenge about whether they could pursue the dispute at all.
The employer argued that only the union could pursue the matter since it had initiated the dispute, whilst the workers contended they should be able to continue the process themselves.
The dispute involved two workers at a research institute. The first worker had been employed since January 2010, whilst the second worker started in November 2017.
Both received identical letters on 25 November 2024 stating: "your maximum term employment with [the institute] 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."
The disagreement centred on employment classification under the enterprise agreement. The workers argued they were continuing employees, meaning when their employment ended on 31 December 2024, it was by way of redundancy, entitling them to redundancy payments.
The employer maintained the workers were fixed-term employees whose employment simply ended through natural expiry when the agreed period concluded.
The union wrote to the employer on 12 and 13 December 2024 to raise disputes on behalf of both workers, with letters stating:
"The [union] writes on behalf of our member" followed by each worker's name. The employer replied on 24 January 2025, but the disputes remained unresolved. The workers filed their formal applications with the FWC on 17 March 2025, more than two months after their employment had ended.
The enterprise agreement contained a dispute resolution process with two different pathways for raising workplace issues.
Under the usual procedure, workers must first attempt resolution through discussions with their immediate supervisor within ten working days. If unsuccessful, they must then discuss the matter with senior management, including the head of people and culture.
However, the agreement provided an alternative pathway specifically for union-initiated disputes. This allowed the union to bypass the initial supervisor discussion and proceed directly to discussions with senior management.
The clause stated: "If the dispute is initiated by the [union] then they will first discuss the matter at the workplace with the Head of People and Culture and another representative of [the employer] and attempt to reach an agreed resolution within ten (10) working days."
The union used this alternative pathway, addressing their correspondence directly to the senior people and culture business partner.
The workers acknowledged they did not rely on having undertaken any processes under the usual worker-initiated procedure, instead relying solely on the union having met the conditions under the union-specific pathway.
The employer argued that since the union initiated the dispute, only the union could refer the matter to the FWC, creating separate pathways that couldn't be mixed.
The FWC addressed whether it retained jurisdiction when applications were filed after employment had ended. The commission confirmed that once jurisdiction is properly established through correct dispute initiation, it continues until the dispute is determined regardless of subsequent employment status changes.
This means employers cannot avoid dispute resolution simply by ending employment relationships during the process.
The decision referenced established precedent where the Full Bench stated it would be contrary to "a long line of Commission authority" to determine that jurisdiction was lost simply because an agreement ceased to apply after employment termination.
The Full Bench had previously ruled that where an application is made whilst an employment relationship remains active, "the powers of the Commission to deal with the dispute are engaged at that time and are not subsequently vitiated because the employment relationship later comes to an end."
The commission also referenced a deputy president's finding that if a matter was put into dispute to activate the relevant dispute resolution clause, then a worker could "subsequently make an application to the Commission ... notwithstanding that his employment ended before he made that application."
This principle ensures workers cannot be disadvantaged by timing issues or delays in dispute resolution processes that may occur after their employment ends.
The commission emphasised that dispute settlement procedures should be interpreted with practical common sense rather than strict technical compliance.
The decision noted that dispute procedures should not be interpreted in a way that turns them "into an instrument for generating disputes as to whether the procedure itself has been followed."
This approach prioritises resolving the actual workplace issue rather than creating additional procedural barriers.
The commission quoted established authority that 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.'"
The workers argued that "party initiating the dispute" should be understood as distinguishing between complainants and the employer, rather than creating artificial distinctions between workers and their representatives.
They submitted there was "no material difference between [the workers] lodging the dispute and the [union] lodging the dispute" and that requiring such distinctions would defeat the Act's objective of achieving efficient dispute resolution.
The commission ultimately ruled it had jurisdiction to hear the dispute, rejecting the employer's restrictive interpretation.
The member found: "I am of the view that 'party initiating the dispute' means the [union] and the individual affected members whom they may be representing."
This interpretation treats unions and their members as essentially the same party for dispute resolution purposes.
The decision emphasised that workers 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."
The commission concluded: "There is nothing in the language nor structure of the dispute settling clause that suggests that it should be read in this restrictive way."
The final ruling stated: "I am satisfied that the Commission has jurisdiction to deal with [the workers'] 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."
The matter will now proceed to substantive arbitration to determine whether the workers were entitled to redundancy payments.
