Mr Ross Odgers v Qenos Pty Ltd - [2025] FWC 1242

[2025] FWC 1242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Mr Ross Odgers
v

Qenos Pty Ltd

(C2024/8396)

COMMISSIONER CONNOLLY

MELBOURNE, 2 MAY 2025

Alleged dispute about any matters arising under the enterprise agreement – jurisdictional objection – whether the Applicant followed the dispute resolution procedure – dispute resolution procedure not followed – powers of the Commission to arbitrate the dispute not enlivened – application dismissed.

What this dispute about

This is a dispute about whether Mr Odgers (the Applicant) can have the Commission determine a dispute about the methodology used to calculate the redundancy entitlements he was paid when he was made redundant by Qenos Pty Ltd (Qenos or the Respondent) on 15 November 2024.

Mr Odgers’ employment was covered by the Qenos Altona (Olefins) and UWU Enterprise Agreement 2022 (the Agreement).

Under the terms of the Agreement the entitlements of employees being made redundant are set out in clause 7.11.2 - Retrenchment Benefit as follows:
Weeks of Pay
Amount in lieu of notice plus base amount   17.3
           A service component of:      For service of 1-5 years  3.0 per year
  For service of 6-10 years                   4.0 per year
  For service in excess of 10 years       5.0 per year
  For service in excess of 20 years       6.0 per year

Mr Odgers’ position is that the proper interpretation of the redundancy clause is that entitlements accrue each year of service, subject to their total years of service. The Respondent disagrees. Its position is that the proper interpretation of the clause is that payment is staggered in components relative to years of an employee’s service. Further, this is how the Agreement has been correctly applied in both this, and previous instances of redundancies.

The Agreement also sets out the requirements for the parties to bring a matter to the FWC for arbitration in clause 2.3 – Comprehensive Dispute Prevention Procedure, relevantly as follows:
“2.3 Comprehensive Dispute Settlement Procedure
…
2.3.3(a). Any grievance or dispute, which arises, will, where possible, be settled by discussion on the job between the employee and the Team Leader. The Team Leader will investigate and report back to the employee within an agreed time.
2.3.3(b). If the matter is not resolved at this level, the matter will be further discussed with the employee, Employee Representative or Union Representative and the Team Leader.
2.3.3(c). If the matter is not resolved at this level, the matter will be further discussed between the affected employee, the Employee Representative or Union Representative, the Team Leader and the Process Team Leader.
2.3.3(d). If the matter is still not satisfactorily resolved, the matter will be discussed between the affected employee, the Employee Representative, Union Representative, the Process Team Leader, the Operations Manager and the Human Resources Manager Operations.
2.3.3(e). In the event of the matter remaining unresolved, either party may refer the matter to the Fair Work Commission for conciliation and if necessary arbitration. The decision of the Fair Work Commission…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 1242
Decision Date: 2 MAY 2025

CaseChat Overview and Summary

The case of Mr Ross Odgers v Qenos Pty Ltd was heard by Commissioner Connolly of the Fair Work Commission (FWC). The dispute arose when Mr Odgers contested the methodology used by Qenos Pty Ltd to calculate his redundancy entitlements following his redundancy on 15 November 2024. The Agreement under which Mr Odgers' employment was covered included a specific clause outlining the dispute resolution procedure that needed to be followed before the FWC could arbitrate the dispute. The central legal issue was whether Mr Odgers had complied with the dispute resolution procedure stipulated in the Agreement before approaching the FWC. The Respondent, Qenos, argued that Mr Odgers did not follow the required steps, and thus the FWC lacked jurisdiction to arbitrate the dispute.

The Court examined the dispute resolution procedure outlined in the Agreement and noted that it required a specific sequence of steps to be followed before the FWC could arbitrate. These steps involved discussions with various representatives, including the Team Leader, Employee Representative, Union Representative, Process Team Leader, Operations Manager, and Human Resources Manager Operations. The Respondent provided evidence that Mr Odgers had not completed these steps, particularly failing to discuss the matter with his Team Leader and other representatives as required. Mr Odgers conceded that he did not follow the procedure correctly but argued that he tried to follow the advice given by his union delegate and that his efforts should be considered in good faith. The Court concluded that the requirements of the dispute resolution procedure had not been met, and therefore, the FWC did not have the jurisdiction to arbitrate the dispute. Consequently, the application was dismissed.

The final orders of the Court were that the application by Mr Odgers to have the FWC arbitrate the dispute regarding the calculation of his redundancy entitlements was dismissed due to his failure to follow the dispute resolution procedure as required by the Agreement. The Court emphasized that while Mr Odgers had acted in good faith and attempted to raise his concerns, the statutory requirements of the dispute resolution procedure had not been satisfied.

Orders