ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.587, 739 Fair Work Act 2009 – application to deal with a dispute in accordance with a dispute settlement procedure (‘DSP’) in the Australia Maritime Officer’s Union Contract Propelled Dredging Enterprise Agreement 2011 (‘the Agreement’) – applicant sought determination that respondent pay applicant ‘all rightful entitlements’ in accordance with clause 18 of the Agreement – clause provided that employee on termination of a project would be paid 10% of their gross ordinary time salary for period of the project – applicant no longer employed by respondent – respondent made application pursuant to s.587 for order dismissing application as beyond Commission’s jurisdiction and not made in accordance with the Act – Commission held well established that former employee not prevented from pursing a dispute under DSP in an enterprise agreement provided issue was in dispute and progressed under DSP before employment ended and former employee not precluded from accessing a remedy for dispute – issues in dispute whether: the terms of DSP in clause 9 of the Agreement allowed applicant to progress dispute by referring it to the Commission under DSP – whether applicant engaged DSP in manner provided in Agreement so that Commission had jurisdiction to deal with application – Commission considered that non-payment of the severance payment in clause 18 of the Agreement was a matter that could be dealt with under DSP – Commission accepted that applicant asked questions about his entitlement to severance payment and directed those questions to a number of persons – did not accept that questions were sufficient to engage DSP – applicant sought confirmation about whether he would receive a redundancy payment if he was made redundant or resigned – applicant told he would receive redundancy payment if made redundant but not if resigned – applicant made no response to communication – applicant resigned seven months later – in intervening period applicant took no steps to escalate the matter under DSP so that it was engaged in way that would have entitled him to refer non-payment of severance amount to Commission – Commission held the fact that applicant made it clear in exit interview that resignation was because of removal of the severance payment did not constitute an escalation of the matter in accordance with DSP – applicant did not engage DSP prior to the cessation of employment – applicant cannot engage DSP under Agreement retrospectively after employment ended by simply establishing that he asked questions about a matter that would have been within the scope of DSP had he engaged it during employment – application by respondent granted – application dismissed. Korwa v Van Oord Australia P/L
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