Former employees do not have access to the dispute resolution clause in an enterprise agreement

Recently, the Fair Work Commission (the Commission) found that employees whose employment had been terminated could not subsequently enliven the dispute resolution clause under the relevant enterprise agreement. 

Background

Several former employees requested the Commission to arbitrate a dispute between them and their former employer, Patrick Projects Pty Ltd (Patrick Projects) pursuant to the Patrick Projects Pty Ltd AMC Cargo Handling Agreement 2012-2105 (the Agreement) on the alleged failure of Patrick Projects to provide the employees with training. 

Five of the employees had been terminated for redundancy reasons on 20 March 2014.  They made an application to the Commission over a month later requesting it to deal with a dispute between them and Patrick Projects under the Agreement's dispute settlement provision.   

Findings

The Commission found it had no jurisdiction to hear the dispute lodged by the redundant employees as their employment had come to an end prior to the dispute lodgement.  In particular:

• the dispute settlement clause in the Agreement which referred to "employee" did not extend to persons who were former employees at the time they lodged the dispute notification; and
• the Commission only has "power to deal with disputes involving employees in the ordinary sense - not ex-employees."  

The Commission also found the employees had not taken the necessary steps under the Agreement's dispute resolution clause prior to lodging the dispute with it.

In the circumstances, the Commission had no power to hear the dispute notification.  

Conclusion

When dispute settlement clauses within an enterprise agreement do not extend to former employees, once dismissed, employees cannot initiate the dispute settlement clause. Further, the decision reinforces the need for strict compliance with the steps set out in the dispute settlement provision, prior to the matter being referred to it, otherwise it has no jurisdiction to hear the dispute.

If you would like more information about the case or the matter generally, please contact National Workplace Lawyers on +61 2 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.