FWC dismisses $115,000 workplace dispute over skipped resolution steps

The Fair Work Commission (FWC) recently dealt with a dispute where a worker claimed she was underpaid more than $115,000 in entitlements. She wanted the Commission to order her employer to pay the alleged entitlements within 14 days and ensure proper payment moving forward, with retrospective effect from 1 September 2024.

The case turned on whether proper dispute resolution procedures were followed before approaching the FWC.

The outcome revealed important lessons about following enterprise agreement procedures before escalating workplace disputes.

Worker’s history and workplace dispute

The dispute arose at a Catholic Independent School in Moss Vale, New South Wales, where the worker was employed in the boarding house.

She filed her application under section 739 of the Fair Work Act 2009, seeking resolution under the NSW Catholic Independent Schools Support Staff Multi-Enterprise Agreement 2023 and its predecessor agreements from 2020 and 2017.

The Commissioner disclosed a potential conflict of interest due to his role on another Catholic Independent School board in the region. However, no objections were raised about his handling of the application.

The Commission noted that claims under the predecessor agreements were misplaced, as these had ended and no longer applied to the worker's employment. The dispute could only be considered under the current agreement.

Employee dispute resolution steps

The enterprise agreement's dispute resolution clause outlined specific requirements in clause 24.2: "Subject to the provisions of the Act, disputes in relation to matters under this Agreement and the NES shall be dealt with in the following manner."

The clause required reasonable attempts to resolve disputes at the workplace through discussions between employees and the principal or nominee.

On 12 August 2024, the worker's representative sent a demand letter, describing it as "a formal attempt to resolve the dispute in accordance with EA cl 24.2 Step 1." The letter gave a 14-day deadline, stating that if the settlement wasn't paid, they would seek FWC conciliation "without further notice."

The school was unaware that issues raised by the worker in March 2024 remained unresolved when they received this demand letter. The head of school responded on 23 August, explaining their position and offering to meet or provide a detailed written response.

Workplace resolution requirements

A key issue was identifying who qualified as "the principal" under clause 24. While the college director had signed the agreement as "Principal," the head of school was nominated as principal for regulatory purposes with the New South Wales Education Standards Authority.

The Commissioner found that even if the head of school wasn't technically the principal, she was authorised to handle enterprise agreement disputes on the school's behalf, acting either as principal or as the director's nominee.

The decision noted that while the worker's March 2024 emails constituted workplace attempts at resolution, subsequent communications through her representative didn't qualify as "at the workplace" efforts, as required by the agreement.

FWC: Resolve the dispute first

The Commission explained: "The result was to significantly limit the opportunity for consultation, cooperation or negotiation between the parties before applying to the Commission in a way that was inconsistent with the purpose of clause 24.2."

Addressing procedural arguments, the Commissioner noted: "If a dispute arises about whether the Commission has jurisdiction to deal with an application, the dispute must be resolved before the Commission can deal with the application itself."

The decision concluded that at application time, the agreement "did not require or allow the Commission to deal with the dispute for the purposes of s.595 and s.739 of the Act, because the steps contained in clause 24 had not been followed by [the worker]."

The case emphasised that following enterprise agreement procedures isn't optional, regardless of how strong an employee believes their claim to be. The FWC said that it can't consider disputes until workplace-level resolution attempts have been properly made.