1 Fair Work Act 2009 s.739 - Application to deal with a dispute Graham Michael Clarke v AKD Victoria Pty Ltd (C2025/12825) COMMISSIONER CONNOLLY MELBOURNE, 18 MAY 2026 Alleged dispute about any matters arising under the enterprise agreement – jurisdictional issue – whether the arbitral powers of the Commission have been enlivened – redundancy – arbitral powers not enlivened – application dismissed. What this dispute is about [1] This is a dispute about whether Mr Graham Michael Clarke (the Applicant) can have the Commission determine a dispute about the redundancy entitlements he was paid when the Yarram Sawmill was closed at the end of 2025 and its employees were made redundant. [2] AKD Victoria Pty Ltd (the Respondent or AKD) purchased the Yarram Sawmill from Carter Holt Harvey in March 2018. As part of its purchase agreement the Respondent accepted the transition of employees from Carter Holt Harvey to be engaged on their existing terms and conditions of employment with continuity of employment. These employees included both operators engaged under the Yarram Collective Enterprise Agreement and salaried employees engaged under individual contracts of employment. [3] Mr Clarke commenced employment at the Yarram Sawmill in late 1995. During his employment, ownership of the Sawmill has changed several times without impacting the continuity of his employment. On 14th October 2015, Mr Clarke signed an individual contract of employment and was appointed as the Environmental, Health, Safety and Risk Coordinator (EHSR Coordinator) on site. In around March 2018, Mr Clarke was in one of the cohorts of workers who transitioned to become an employee of the Respondent. As part of this transition, Mr Clake was advised that the terms and conditions of his employment would not change and that the continuity of his employment was recognised by AKD. Since this time, Mr Clarke has continued to be employed as the EHSR Coordinator. He has received the benefits of being a salaried employee since this time, including an annual salary process and bonus payments where applicable. On the 17th of October 2025, AKD acknowledged and celebrated his 30 years of continuous service. [4] On the 18th of November 2025, Mr Clarke attended a meeting at the Sawmill where the Respondent announced its operations at the site would be ceasing immediately. Mr Clarke was [2026] FWC 1791 DECISION [2026] FWC 1791 2 provided with an employee information pack during this meeting, indicating a consultation process would shortly commence and that if no alternatives could be identified his employment would come to an end on the 28th of November 2025. On the same day, he received a formal letter advising his position was redundant, setting out the details of the payment he was entitled to because of this decision. [5] The terms of this letter advised Mr Clarke that his redundancy entitlements would be paid in accordance with the contract of employment he had signed on the 14th of October 2015 as an employee of Carter Holt Harvey (CHH). The redundancy entitlements the Respondent advised Mr Clarke he would be receiving were less than the 60 weeks he would have been entitled to as an employee under the collective agreement and did not include payment of unused sick leave entitlements. [6] Mr Clarke is in dispute with the Respondent because he believes the redundancy entitlements he has been paid are incorrect. Mr Clarke’s position is that he should have received his redundancy entitlements in accordance with the provisions of the Collective Agreement because he is covered by it. He says that he raised his dispute with the Respondent prior to the ending of his employment in accordance with the requirements of the Agreement. On the 20th of November 2025, the Respondent advised him that the Respondent’s redundancy obligations to salary employees were provided by the National Employment Standards (NES). And that the Respondent had calculated Mr Clarke’s redundancy entitlements in accordance with the contract of employment he had signed with CHH in 2015 that the Respondent had committed to be bound by. [7] Mr Clarke does not accept these payments to be correct and has made this known to the Respondent. On the 28th of November 2025, Mr Clarke’s final pay was processed, and he ceased to be an employee from this time. The redundancy payments he received in this pay were consistent with those the Respondent believed he was entitled to be paid under his contract of employment. [8] Mr Clarke filed his dispute with the Commission on the 17th of December 2025 after repeated attempts to resolve the dispute failed. He seeks a determination from the Commission that he was covered by the terms of the AKD Yarram Collective Enterprise Agreement 2023 (the Agreement) and an order that he be paid the correct redundancy entitlements owing to him under the terms of the agreement. Mr Clarke’s position is he is an employee who was covered by the terms of the agreement who has complied with the requirements of this agreement for the Commission to determine a dispute about its terms. [9] Mr Clarke claims that his employment was covered by the Agreement, which commenced on 12 October 2023 and remains in operation until 30th June 2027. It is in effect a replacement agreement and includes similar clauses with respect to coverage, redundancy entitlements and the settlement of disputes to that of the predecessor Agreements Mr Clarke has been employed under, including before 2015, when he signed an individual employment contract with CHH. [10] Under the terms of the Agreement, the clauses relevant to the present matter are provided for by clause 4 – coverage; clause 14 - dispute settlement procedure; and clauses 28 [2026] FWC 1791 3 and 29 that set out the redundancy entitlements of employees covered by the terms of the agreement. [11] Noting these redundancy entitlements were less than those provided for by the terms of the Collective Agreement, Mr Clarke enquired how the Respondent had calculated his entitlements. On the 19th of November, he messaged the Respondent’s General Manager, Human Resources, Mr Clark Rodger asking how his entitlements had been calculated and which AKD redundancy policy had been used to make these calculations. [12] The following day, Mr Rodger advised Mr Clarke that the Respondent did not have a specific redundancy policy in addition to its obligations under the National Employment Standards (NES). Mr Rodger further advised that in this instance the Respondent had determined it would be honouring the contracts and redundancy policies it had accepted as part of the acquisition and transition of employees from CHH. Mr Rodger’s correspondence confirmed Mr Clarke’s entitlement had been calculated using the CHH redundancy policy. [13] On the 24th of November, Mr Clarke engaged lawyers and obtained legal advice about his concerns that he was not going to be paid the full redundancy entitlements he believed he was entitled to. On 26th of November, Mr Clarke’s lawyers wrote to the Respondent’s CEO and management representatives indicating as follows:1 “…our client disputes the calculation of 44 weeks’ redundancy pay. Our client asserts entitlement to the maximum redundancy pay of 60 weeks, based on a continuous service period of 27 years and in line with item 1.3(b) above. Furthermore, our client is entitled to payment for any available and unused sick leave in accordance with clause 28.9 of the Agreement.” [14] On the 27th of November, Mr Clarke received a letter from the Respondent confirming he was being made redundant and that this employment would end the following day. This letter confirmed the redundancy pay Mr Clarke would be receiving was in line with the requirements of the CHH redundancy policy. [15] On November 28th, solicitors for the Respondent confirmed to Mr Clarke’s solicitors that his redundancy entitlements were being paid in line with CHH redundancy policy because it was the Respondent’s position that Mr Clarke was not covered by the Collective Agreement. Mr Clarke’s solicitors responded to this letter that same day and indicated Mr Clarke was covered by the Collective Agreement and entitled to be paid his redundancy entitlements in accordance with its terms. The basis of this position was because ‘Clause 4 – Parties Bound’ of the Collective Agreement provided it was intended to cover and be binding “upon all employees employed at the Site”. [16] On the afternoon of November 28th, Mr Clarke received his final payslip indicating he had been paid his redundancy entitlements in line with the CHH redundancy policy as advised. At 4.14pm that afternoon, his solicitors again made it clear to the Respondent’s solicitors that he disputed this payment was correct, seeking an urgent response. [17] Mr Clarke’s employment with the Respondent ended at close of business Friday, 28th of November. After this time, he ceased to be an employee of the Respondent. [2026] FWC 1791 4 [18] On December 1st, the Respondent’s solicitors again wrote to Mr Clarke’s representatives confirming their position he had been paid the redundancy entitlements he was entitled to at the ending of this employment in accordance with CHH’s redundancy policy. With respect to clause 4 of the Agreement, the Respondent made clear its position was because the terms of clause 4 provided the Collective Agreement only applied to ‘employees who would otherwise be covered by the Timber Industry Award 2020’. Adding that as Mr Clarke’s employment was not covered by the terms of this Award, he was not an employee whose work was covered by the Collective Agreement and was, therefore, not entitled to the benefit of its terms. [19] A without prejudice discussion followed this correspondence between Mr Clarke’s representatives and those of the Respondent that failed to resolve Mr Clarkes dispute. On the 17th of December he filed his application with the Commission. [20] It is not in dispute that Mr Clarke was a long serving employee of the Respondent. Nor is it in dispute that his employment ended on the 28th of November 2025. [21] The Respondent’s position is that the Commission does not have the power to arbitrate this dispute on several grounds. These include, firstly that Mr Clarke is not an employee covered by the terms of the Agreement. Secondly, in the event Mr Clarke were found to be an employee covered by the Agreement, it no longer applies to him because he is no longer an employee of the Respondent and he did not raise a dispute prior to ending his employment. And finally, that Mr Clarke did not comply with the requirements of the dispute procedure to enliven the arbitral powers of the Commission. [22] Mr Clarke’s position is that he is covered by the terms of the Agreement and that he has complied with all relevant requirements of the Agreement such that the arbitral powers of the Commission are enlivened. [23] The Agreement set outs the requirements for the parties to bring a matter to the FWC for arbitration in clause 14.1 - Dispute Resolution Procedure. [24] To determine whether the requirements of this procedure have been met such that the arbitral powers it gives to the Commission have been enlivened, I issued directions on February 9th, 2026, for the filing of evidence and submissions from the parities. [25] Both the Applicant and the Respondent provided written submissions and supporting material in accordance with my direction. On receipt of this material, I invited the parties to express their view on whether they were content to have the matter determined on the material provided or sought the Commission conduct a hearing. Neither party requested a hearing and, accordingly, I have proceeded to determine this matter on the material provided. [26] For the reasons set out below, I am satisfied the Commission does not have jurisdiction to consider Mr Clarke’s application and it must be dismissed. Submissions for the Respondent [2026] FWC 1791 5 [27] The Respondent’s position is firstly, that the Applicant was not covered by the Collective Agreement. In support of this position, the Respondent identifies Mr Clarke entered an individual contract of employment from the 14th of October 2015. The Respondent’s evidence is that from this time, Mr Clarke ceased to be an employed covered by the various collective agreements that were in operation on the site. They present evidence of Mr Clarke clearly accepting these individual terms and conditions of employment and receiving the benefit of salary review and bonus arrangements consistent with them. They argue it was these employment arrangements that transferred from CHH with Mr Clarke to the Respondent in 2018. Included amongst these provisions was a commitment to abide by the CHH redundancy policy, which the Respondent submits it has done. [28] The Respondent further argues the work Mr Clarke was engaged to perform is not work covered by the Collective Agreement and that he could not be covered by it. The basis of these submissions is that there was no classification under the agreement that provided for Mr Clarke’s work as the EHSR Coordinator. Mr Clarke’s work did not fall within a part, or a substantial part of any of the classifications of the Timber Industry Award that was fully incorporated into the terms of the Collective Agreement. Finally, that Mr Clarke was not eligible to be covered by the terms of the Timber Industry Award because he held none of the qualifications required for this to be the case. [29] Regarding the scope and operation of the Agreement, the Respondent argues any ambiguity with respect to clause 4.1 is addressed when the agreement is read as a whole and clause 4.1(a), (b) and (c) read conjunctively considering the incorporation and application of the Award and its classification structure. Pointedly, the Respondent identifies the Agreement does not purport to apply beyond the scope of the classification structure found in the Award and that it does not include any management or administrative roles. [30] Secondly, the Respondent argues that if Mr Clarke was covered the Collective Agreement, he is no longer covered by the Agreement because he is no longer an employee of the Respondent. [31] Thirdly, they argue Mr Clarke has failed to comply with the requirements of the dispute procedure for the Commission’s arbitral power to determine his dispute to be enlivened while he remained an employee. In particular, the Respondent identifies that Mr Clarke failed to have discussions with anyone prior to ending of his employment. [32] In this regard, the Respondent’s position is Clause 14 of the Agreement required any employee wishing to notify a dispute to take certain steps to progress the dispute. It is the Respondent’s position that Mr Clarke, and his representatives, took none of them. They argue Mr Clarke did not engage in any discussions, request or seek to initiate any discussions about his redundancy entitlements as required by 14.2(a). Further, that the subsequent correspondence from Mr Clarke and his representatives also failed to make any attempt to request further discussions prior to the matter being referred to the Commission after his employment ended. [33] Finally, they submit the Commission does not have power to arbitrate the dispute on grounds the prerequisite requirements have not been met, consistent with the Full Bench [2026] FWC 1791 6 decisions of the Commission in Simplot2, CFMEU v Falcon Mining3 and AWU v MC Labour Services4. Submissions for the Applicant [34] Mr Clarke does not accept he has failed to comply with the requirements to the dispute procedure and asserts, properly characterised, the Commission is seized of power to arbitrate his dispute. He maintains that he is covered by the terms of the collective agreement because it applies to “all employees” as specified by terms of the clause 4.1(a). He rejects the contention that he is only bound by the terms of the employment contract he entered into with CHH and that this agreement excludes him from being covered by the collective agreement. [35] Mr Clarke presents evidence that from the 19th of November he sought details of his terms of employment relevant to his redundancy entitlements. On the 20th of November, the Respondent confirmed its position that Mr Clarke’s redundancy entitlements would be paid in accordance with the terms of the CHH policy. Mr Clarke did not believe this to be correct. He says the dispute he seeks to be arbitrated by the Commission materialised at this time. [36] Thereafter, Mr Clarke engaged lawyers to represent him. He submits these representatives made it clear to the Respondent that there was a dispute about his redundancy entitlements in correspondence on the 26th of November. His position is that this correspondence, the subsequent emails exchanged between his lawyers and lawyers for the Respondent, and their telephone conversation on the 1st of December constituted the discussions between the parties required for the purposes of clause 14.2. He submits this position is consistent with decision of the Federal Court in Maersk Crewing Australia Pty Ltd v Construction, Forestry, Mining, Maritime, and Energy Union (No 2) (Maersk)5 that such clauses are to be interpreted “practically and with an eye to common sense”. As the dispute between the parties could still not be resolved his position is that having complied with the requirements of the Collective Agreement, he was entitled to make this application for this dispute to be arbitrated. Relevant Principles What are the Commission’s powers to deal with disputes? [37] Section 595 of the Act provides for the Commission’s powers to deal with disputes only if it is expressly authorised to do so 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). An enterprise Agreement must contain a term about settling disputes to be approved by the Commission in accordance with s.186(6) of the Act. The Commission must not exercise any powers limited by the term. The Commission may only arbitrate the dispute if the parties have agreed that the Commission may arbitrate the dispute. [38] In CFMMEU v Falcon Mining Pty Ltd, the Full Bench said:6 “…it is s 739(4) which gives effect to an Agreement by parties for the arbitration of a dispute by the Commission pursuant to a dispute resolution term of a type described in [2026] FWC 1791 7 s 738, and it is s 739(3) which limits the powers of the Commission to deal with the dispute by reference to any such limitations contained in the relevant dispute resolution term. Therefore, the scope of the authority of the Commission to engage in arbitration of disputes pursuant to a dispute resolution term is ultimately a question of statutory construction although, in a particular case, the application of the statutory provisions will be affected by the terms of the relevant dispute resolution procedure.” [39] In Simplot, the Full Bench made clear that the Commission has no jurisdiction to deal with a dispute under a dispute’s procedure in an enterprise agreement that has ceased to operate. [40] As Commissioner Lim recently identified in Schoof v Hitachi,7 referring to the Full Bench decision in Falcon Mining and Simplot: “What is clear from the above authorities is that for the Commission’s power to arbitrate a dispute to be enlivened, the parties must have reached Agreement in accordance with the dispute resolution term before the relevant Agreement ceases to operate and apply to the parties.” [41] In the present case, what these authorities stand for is that for the Commission to be able to arbitrate Mr Clarke’s dispute about his redundancy entitlements I must be satisfied that he was covered by the Agreement and raised his dispute while still covered by its terms. [42] I must also be satisfied that he has done so in accordance with the requirements of the agreement reached between the parties in the dispute procedure. As the Full Bench made clear in AWU v MC Labour Services, there is no general discretion for the Commission to exercise the arbitral powers given to it by the parties in an enterprise agreement. The pre-requisite conditions of the agreement for the Commission to exercise its powers of arbitration must be met.8 Principles in Application [43] In the present case, these principles can be distilled into the following questions for determination: 1. Was Mr Clarke an employee covered by the terms of the AKD Yarram Collective Agreement 2023 within the meaning of s.52 of the FW Act prior to his termination? 2. Can the Commission consider an application about an agreement that no longer applies to Mr Clarke because his employment ceased? 3. Whether Mr Clarke has complied with the requirements of the dispute procedure while he was still covered by the agreement and had rights under its terms? [44] I will consider each of these questions in turn. Consideration [2026] FWC 1791 8 Question 1: Was Mr Clarke an employee covered by the terms of the AKD Yarram Collective Agreement 2023 within the meaning of s.52 of the FW Act prior to his termination? [45] Clause 4 of the Agreement sets out who is intended to be covered by the Agreement as follows: “4. Parties Bound 4.1 This agreement is negotiated between and is intended to cover and be binding upon: (a) AKD Victoria (the employer), the (Company), in respect of all employees and all new employees employed at the Site; (b) The Construction, Forestry, Maritime, Mining and Energy Union Manufacturing Division – CFMMEU MD (the union), its officers and members employed by AKD Victoria; and (c) All employees at the Site from time to time who would otherwise be covered by the Timber Industry Award 2020.” [46] The essence of Mr Clarke’s submissions is that as an employee of AKD he is covered by the terms of the Agreement because it applies to “all employees” without exclusion. He adds the work he performed for the Respondent required him to have a working knowledge of all the process involving the work and functioning of the mill. That his work was equivalent to, if not above, that provided for within the terms of the Award. That the Respondent failed to clarify which Award his work was covered by, if not the Timber Industry Award. Adding that there are no terms in the Agreement limiting coverage and the fact his work may not be within a specific classification does not mean he is not covered by the Agreement because he was an ‘employee’. [47] The Respondent accepts there is an element of ambiguity in the wording of clause 4.1(a) in appearing to be all encompassing. Their position is this clause needs to be read conjunctively with clause 4.1(b) and (c), together with all other terms of the Agreement, particularly the incorporation of the Timber Industry Award and its classification structure, along with the absence of any management or administrative roles in the agreement. They argue any ambiguity is resolved on this basis, by reference to the incorporation of the Award and the scope of the Agreement and its classifications in its entirety. Their further position is that in accepting the role of EHSR coordinator, Mr Clarke ceased being a wages employee covered by the Agreement and became a salaried employee of CHH who transferred on this basis to AKD. [48] I have considered these competing submissions. Mr Clarke does not contest that he became a salaried employee of CHH effective from October 2015. Nor does he contest that he continued to perform the work of the EHSR coordinator consistent with the terms of his individual contract of employment while working for AKD. His position is that he ceased being an employee of CHH in 2018 when AKD took over the mill. Thereafter, he became an employee of AKD and because AKD is not a party of the CHH contract it cannot now seek to rely on its terms to exclude him from the coverage of the AKD Agreement. He adds that the [2026] FWC 1791 9 CHH Redundancy policy is dated in 2015 but has not been reviewed or updated since this time while AKD has adopted successive collective agreements to cover it employees. Further, that AKD has made changes to the terms of his employment since 2018 that have been consistent with terms of the collective agreement covering all its other employees. [49] Mr Clarke does not advance his contention the Respondent has taken steps to make changes to his contract of employment since its acquisition of CHH in 2018. He accepts that AKD recognised the continuity of his service when it transitioned him from CHH. Further, that he has continued to perform the work of the site EHSR coordinator since this time. The Respondent’s evidence is that at the time Mr Clarke signed his contract of employment the coverage of the CHH collective agreement was the same as that of the 2023 Agreement. Their further evidence is since this time Mr Clarke has accepted he had transitioned to a salaried employee. They argue that it was as a salaried employee, covered by an individual contract of employment that Mr Clarke transitioned to be an employee AKD. I accept this evidence and prefer it to Mr Clarke’s. The fact Mr Clarke’s continuity of employment continued through the transition from CHH to AKD supports this conclusion. [50] The Respondent argues the terms of Mr Clarke’s employment included a commitment to apply the CHH redundancy policy in the event Mr Clarke’s position became redundant. Their position is that they have complied with this commitment. Mr Clarke’s argument is that, notwithstanding the recognition of his continuous service, because AKD was not a party to the CHH contract they cannot rely on its terms to exclude him from coverage of the collective agreement. [51] The gravamen of this submission is that Mr Clarke’s terms and conditions of employment under his individual contract did not transition with him from CHH to ADK. That in effect he only commenced his employment with AKD in 2018. If this were to be the case, it would have significant implications for the redundancy payment Mr Clarke has already received. Following these submissions, it would mean that at time of termination his period of service would have totalled between 7 and 8 years. Under the terms of clause 28.11 of the AKD collective agreement this would entitle him to receive a redundancy payment of 24 weeks. Mr Clarke has already received payment greater than this amount. [52] To be clear, I do not accept a contention that the terms and conditions of Mr Clarke’s individual contract of employment did not transition with him from CHH to AKD, including its obligations to pay him redundancy payment in line with the CHH redundancy policy. I find the evidence does not support this to be the case. [53] Just because I have found Mr Clarke to be a salaried employee it does not necessarily mean he is not covered by the terms of the AKD Collective Agreement. This is because on one view the Agreement, as he identifies, seems to indicate it applies to “all employees”. [54] To correctly determine whether Mr Clarke’s interpretation of the Agreement is correct what is required of the Commission is an interpretation of its terms. The principles of Agreement interpretation were helpfully set out by the Full Bench in the matter of AMWU v Berri.9 These principles are well established, as identified by Deputy President Clancy in Clarke v Broadspectrum10 and recently set out by the Full Bench in Fire Rescue Victoria v Rainer Kiessling as follows11: [2026] FWC 1791 10 “The principles applicable to construing an enterprise agreement may be briefly stated. The task of construing such an instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include other provisions of the instrument, read as a whole, and the disputed provision’s place and arrangement in the instrument. The statutory framework under which the instrument is made, or in which it operates may also provide relevant context, as might an antecedent instrument or instruments from which a particular provision has been derived. Regard may be had to relevant context and surrounding circumstances to determine whether there is any ambiguity in a provision of the instrument. The language of the instrument is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the relevant parts of the instrument remains the starting point and the end point in the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.” [55] In the present matter, the Respondent’s position is that there is a degree of ambiguity in the construction of clause 4(a) if read in isolation. Their position is a correct reading of the clause is for it to be read conjunctively in line with the agreement as a whole, including the incorporated Award and its classifications. While Mr Clarke does not make detailed submissions on the correct interpretation of the Agreement, his position is that no ambiguity exists and the plain and ordinary meaning of the words “all employees” is clearly all inclusive. [56] Considering these submissions, it is my view that a degree of ambiguity exists in the construction of clause 4 when read in context, considering the evident purpose of the provisions or expressions as required. The ambiguity exists within the meaning intended by the words ‘all employees’ in clause 4.1(a), contrasting to “all employees at the site from time to time who would otherwise be covered by the Timber Industry Award 2020” in clause 4.1(c). This being the case, it is appropriate to consider evidence of the surrounding circumstances to aide in the interpretation. In this regard, the Respondent’s submissions are the surrounding circumstances include the history of the inclusion of the same words in clause 4 of the Agreement in all previous agreements applicable to employers and its employees at the Sawmill, the incorporation of the relevant Timber Industry Award and its classifications omitting any administrative, managerial or salaried employees. This evidence was not contested by Mr Clarke, including at the time he signed his employment contract in 2015. I am satisfied that the evidence before the Commission supports this to be the case. [57] Applying the principles of Agreement interpretation set out above, I consider this evidence supports a view that the correct interpretation of clause 4 of the Agreement, when read as a whole and in context, is that it means clause 4(a) binds the employer to the terms of the agreement with respect of all its employees, and any new employees as specified within the terms of the clause 4. Clause 4(b) provides that the union, its officers and members working for the Respondent are bound by the Agreement. And clause 4(c) specifies that the employees at the site covered by the agreement are those within the classifications of the Timber Industry Award 2020. [2026] FWC 1791 11 [58] Mr Clarke does not dispute that his role as EHSR coordinator is not specified within the classification of either the Agreement or the Award. He suggests his request for clarification on which Award he was covered by went unanswered and that his work required knowledge of all work and processes in the Sawmill. These submissions are taken no further. The Respondent submits that to fall within the classifications and be covered by the Timber Industry Award – General Timber Stream, an employee is required to have successfully completed the required induction and skills training for each classification, commencing from level 1. I have reviewed Schedule A – Classification Definitions – General Timber Stream, the definitions (Clause 2) and coverage clause (Clause 4) setting out the scope of the requirements to be covered by the Timber Industry Award and I am satisfied this is the case. [59] The Respondent’s position is that Mr Clarke has not completed any of the required competencies and cannot be covered by the Award or the Agreement. Mr Clarke does not contest he has not completed the competencies required to be covered by the Timber Industry Award. This being the case, I am satisfied Mr Clarke is not eligible to be covered by it and, therefore, he is not an employee covered by the terms of the Agreement. [60] Because of this conclusion, in line with authorities above, Mr Clarke’s application must be dismissed because he was not an employee covered by the enterprise agreement under which he seeks to bring this application. [61] If I am wrong about my interpretation of the scope of the AKD Yarram Collective Agreement, it remains my view that Commission does not have jurisdiction to determine Mr Clarke’s dispute. The reasons for this conclusion are set out below relevant to my consideration of the remaining jurisdictional questions I identified at [43] that need to be determined with respect to this application. Question 2: Can the Commission consider an application about an agreement that no longer applies to Mr Clarke because his employment ceased? [62] As the authorities identified above make clear, the answer to this question is no. In the present case, I am reinforced in this conclusion by the coverage term of the enterprise agreement that Mr Clarke seeks to bring his dispute under. As the Respondent identifies, this term makes clear the agreement only applies to people currently employed by the Respondent. [63] The facts in this case are that Mr Clarke ceased to be an employee of the Respondent on 18th November 2025. After this time, he ceased to have the benefit of being covered by the Agreement, or any successor agreement, having ceased to be covered by its terms. This includes any right to access the provision of the dispute procedure and seek to access the arbitral powers given to the Commission by the terms of the Agreement. [64] Despite this conclusion, as Mr Clarke has identified, it is well established that there are circumstances where the Commission can have jurisdiction to hear a former employee’s dispute provided the employee raised their dispute such that the arbitral powers of the Commission were enlivened prior to the ending of the employment. My consideration of this exception in in the circumstances of this case is set out below. [2026] FWC 1791 12 Question 3: Whether Mr Clarke has complied with the requirements of the dispute procedure while he was still covered by the agreement and had rights under its terms? [65] The Respondent’s position is that the answer to this question is no. They submit that AKD and its managers have no record, recollection or evidence of Mr Clarke raising a dispute or having discussions with his relevant supervisors or management representatives as required by the terms of the Agreement while he was employed. [66] Mr Clarke’s position is that he asked for details about the redundancy policy and sought a copy of his employment contract on the 19th of November. He submits he then sought clarification from management how his proposed redundancy payments were calculated. He received a response from management on the 20th of November and submits because he disagreed with their calculations his dispute materialised at this time. [67] Acting on this disagreement he engaged lawyers, who on the 26th of November set out the basis of his position and made it clear he disputed their calculations. Thereafter, acting on his behalf his legal representatives engaged in correspondence and discussions with representatives of the Respondent satisfying the requirements of the enterprise agreement such that the arbitral powers of the Commission are enlivened. [68] Relevantly, the text messages Mr Clarke sent to Mr Clark Rodger on the 19th and 20th of November were as follows:12 19 November: “Morning. I was wondering if you can help? I was looking for a copy of my employment contract, I can’t find it in my personal files. Can you send me a copy…” “Thanks, can you ring me with what you want to discuss tomorrow. I should be around, I have a few things going on. Also, can you scan me a copy of the first letter handed out yesterday please…” 20 November: “Hi Clark, can you send me an up to date copy of the AKDs Redundancy Policy please. I have a few things I want to get my head around…” [69] Mr Clarke makes no submission that in discussions with Mr Rodger he made it clear he had a dispute about the calculation of his redundancy pay or sought to discuss and dispute the Respondent’s calculations. His evidence is that he sought legal advice and on the 26th of November his lawyers articulated his dispute to the Respondent’s management team, including its CEO. [70] The letter Mr Clarke’s lawyers sent to the Respondent set out the background to his employment and his issues with their calculation of his redundancy entitlements. It made clear as follows: [2026] FWC 1791 13 “2.3 Our client disputes the calculation of long service leave and sick leave… … 3.3 …our client disputes the calculation of 44 weeks’ redundancy pay.”13 [71] The letter concluded: “…we request that AKD recalculates the total redundancy payout breakdown, taking into account the matters outlined…and provide this information by no later than 10:00am on 28 November 2025.”14 [72] The Respondent confirmed Mr Clarke’s redundancy entitlements consistent with its position the next day. On the 28th of November, the Respondent’s lawyers confirmed the reason for this position to Mr Clarke’s representatives. Mr Clarke’s representatives responded reiterating his position, indicating a phone call would be welcome if the Respondent’s lawyers believed it “could be fruitful”. Mr Clarke was paid his redundancy entitlements in line with the Respondent’s position later the same day. Mr Clarke’s lawyers wrote to the Respondent’s lawyers at 4.14pm that afternoon informing them of this and Mr Clarke’s disagreement with the calculation, seeking an urgent response. [73] Mr Clarke’s employment ended on the 28th of November. Further correspondence and discussions between Mr Clarke’s representatives and those of the Respondent followed without resolution. [74] Mr Clarke submits by virtue of the above, in line with the decision in Maersk and a related decision of this Commission in UWU v One Tree Community Services Inc,15 he has complied with the requirements of the Agreement for the Commission to arbitrate his dispute. [75] I accept Maersk and One Tree both stand for the proposition that dispute resolution procedures ought not be read narrowly to limit practical and common-sense interpretations of what may be in dispute and how required discussion about matters in dispute take place. However, as the Full Bench made clear in AWU v MC Labour Services, there is no general discretion for the Commission to exercise the arbitral powers given to it by the parties in an enterprise agreement. The pre-requisite conditions of the agreement for the Commission to exercise its powers of arbitration must be met. [76] To determine these requirements is it necessary to consider the dispute resolution terms of the Agreement. These are provided for in Clause 14 relevantly, as follows: “14. Dispute Resolution Procedure 14.1 Union members are entitled to be represented by their union at every stage of this process. Employees who are not union members may also choose to be represented and any reference to the Union in this process shall be treated as a reference to the employee’s representative, if any. Each party shall recognise the other’s representative for all purposes involved with the resolution of the dispute. [2026] FWC 1791 14 14.2 If a dispute arises about any matters arising under this agreement or; in relation to the NES (including subsections 65(5) or 76(4) of the Act) or; in relation to Occupational Health and Safety or; in relation to the application, but not the making or variation, of any policy or procedure pertaining to the employment relationship, the parties will attempt to resolve the dispute in a timely manner by discussions at the workplace in accordance with the following procedure: (a) Initially formal discussions will take place between the employee, or employees concerned, the Union delegate, and the relevant supervisor or management representative. (b) If the dispute is not resolved as a result of those discussions the matter shall be referred to the Union’s organiser and a more senior management representative for further discussion. (c) In the event that the dispute remains unresolved further discussions shall take place between an appropriate senior official of the union and management representative. 14.3 If the matter cannot be resolved by discussions in the workplace a party may refer the dispute to the Fair Work Commission for resolution by conciliation, or arbitration if necessary…” [77] To determine the plain and ordinary meaning of these words, what is required is an application of the principles of agreement interpretation that I have set out above such that I need not repeat them here.16 [78] Applying these principles in the present case, it is clear that prior to the arbitral powers of the FWC being enlivened at 14.3 the pre-requisite steps include a requirement at 14.2(a) that initial formal discussions will take place between the employee, or employees concerned, the Union delegate, and the relevant supervisor or management representative before either party may seek to proceed to arbitration. [79] In the present case, there is no evidence that Mr Clarke has engaged in any such initial formal discussions. The only evidence of any discussions that he engaged in are the text messages he sent to Mr Rodger seeking a copy of his employment contract and the CHH Redundancy policy. These messages make no reference to a dispute, request a discussion about his concerns or otherwise indicate Mr Clarke has met the requirements of 14.2(a). On this basis alone, I am satisfied Mr Clarke has not complied with the requirements of the dispute procedure to enliven the arbitral powers of the Commission. [80] In reaching this conclusion, I have considered Mr Clarke’s submissions that the requirements of the dispute’s procedures ought not be read narrowly. I accept these submissions about the requirements of 14.2(b) and 14.2(c) with reference to the correspondence engaged in between his lawyers and representatives of the Respondent. Had Mr Clarke taken the first step in his communication or discussions with Mr Rodger, or another relevant representative of the Respondent management team, I would have been satisfied the [2026] FWC 1791 15 requirements of the Agreement were satisfied. There is no evidence he has met this first requirement. [81] I do not accept a principle that the Commission apply a common sense and practical reading to dispute procedures extends such that all relevant steps of the procedure do not need to be followed for the arbitral powers to the Commission to be enlivened. As the authorities I have referred to above make clear, this is not the case. The Commission has no discretion to exercise with respect to its arbitral powers given to it by parties in enterprise agreements. [82] I am reinforced in this conclusion by Mr Clarke’s own evidence of the communications he engaged in with Mr Rodger set out above. I do not consider asking a question and having it answered, or seeking information or documents amounts to engaging in formal initial discussions about a dispute with a supervisor or management representative. [83] I appreciate Mr Clarke’s persistence in his endeavours to address what he believes to be an injustice. This is not enough for the clear requirements of the Agreement for the arbitral powers of the Commission to be enlivened. The evidence does not establish this was the case. [84] Accordingly, as a result of this and the other findings I have made above, this application is dismissed. COMMISSIONER Final written submissions: 16 March 2026 Printed by authority of the Commonwealth Government Printer <PR810109> 1 “Letter from Madgwicks to ADK 26.11.2026”, Applicant’s Materials p.98. 2 [2020] FWCFB 5054. 3 [2022] FWCFB 93. 4 [2017] FWCFB 5032. See also TWU v Toll Transport Pty Ltd [2025] FWC 298 following Transport Workers Union of Australia v Torrens Transit Services Pty Ltd [2013] FWC 7318. 5 [2020] FCA 1694 at [86], cited in Applicant’s Outline of Submissions dated 2 March 2026 at [31]. 6 [2022] FWCFB 93 at [62]. [2026] FWC 1791 16 7 [2024] FWC 233 at [69]. 8 [2017] FWCFB 5032 at [39]. 9 [2017] FWCFB 3005 at [114]. 10 [2018] FWC 3638. 11 [2024] FWCFB 19 at [17]. 12 “Texts to Clark Rodger on 19.11.2025 and 20.11.2025”, Applicant’s Materials p. 64 – 66. 13 “Letter from Madgwicks to ADK 26.11.2026”, Applicant’s Materials p.97 – 98. 14 Ibid. 15 [2019] FWC 4235 at [51]. 16 [2017] FWCFB 3005.