AEU (SA Branch) v Chief Executive, Department of the Premier and Cabinet

"CLAUSE 6.4 CRITERIA BASED INCREMENT APPLICABLE TO SSOs, ECWs AND AEWs[1]

6.4.1 A new criteria based increment will apply above the current top increment at each SSO-1 and SSO-2; ECW-1 and ECW-2; and AEW-1 and AEW-2 operative from the commencement of the 2013 school year (ffpp on or after 24 January 2013 - rates in Schedule 1.4 (AEW), Schedule 1.5 (ECW) and Schedule 1.6 (SSO)) as follows:

(a) An employee classified at level 1 or level 2 SSO, ECW or AEW is eligible to apply for progression to the new criteria-based increment subject to the following:

(i) the employee has attained the relevant qualifications as required by DECD;

(ii) the employee has completed 12 months at the current top step of the relevant level; and

(iii) is not currently subject of unsatisfactory performance management processes.

(b) The operative date for a successful application will be the first full pay period on or after the date of lodgement of the application except where an applicant provides evidence that he or she met the criteria before the commencement of the 2013 school year, in which case, the operative date will be first full pay period on or after 24 January 2013.

(c) If an eligible employee's application is not successful then the employee may lodge a grievance with the Chief Executive (or their delegate) in the first instance OR the employee may lodge a grievance in accordance with the existing procedures for preventing and settling disputes at clause 3.1.

6.4.2 DECD will make available a list of recognised qualifications and will consult with the AEU and PSA about applicable qualifications as varied from time to time to meet operational or program needs. DECD will establish an on-line application process for employee applications."

1. The subject matter of the dispute notification was identified as a lack of genuine consultation regarding cl 6.4.2 of the Agreement.[2] That position changed during the course of the dispute before the Commission and the subject matter of the conference that was ultimately referred for determination was:

"Is it industrially fair and appropriate, in all of the circumstances, for the employer to require SSO and ECW step 2 employees, pursuant to clause 6.4.1(a)(i) of the agreement, to possess:

1. a certificate IV qualification; or
2. a certificate III qualification; or

1. The AEU contends that the qualification for progression required by DECD has denied SSO's and ECW's[4] a fair opportunity to progress to the top increment and that the required qualification is disproportionate to the increase in salary.
2. The matters canvassed at first instance and on appeal concerned the correct characterisation of the subject matter referred for determination; the nature of the jurisdiction exercised by the Commission under the dispute settling procedure of the Agreement; whether the provisions of the Act, and the dispute settling powers of the Commission in particular, presented a barrier to the determination of the dispute; and whether the AEU was making a claim in breach of the No Extra Claims Commitment in cl 1.8 of the Agreement.

1. The Commissioner's consideration and findings commence at para 53 of the decision. The first matter he considered was the application of s 82(2)(b) of the Act[5] and whether the exercise of DECD's discretion to determine the relevant qualifications was a condition of employment that is the subject matter of the Agreement.
2. At [55] - [57] the Commissioner addressed the AEU's argument that the decision in Port Pirie[6] was authority for the proposition that a matter not specifically dealt with in an enterprise agreement, in this case the qualifications for progression, does not attract the operation of s 82(2)(b)(i) of the Act. The Commissioner rejected this argument on the basis that in Port Pirie the Commission was dealing with a classification issue in circumstances where the classification structure was contained wholly within the relevant award.
3. At [58] - [66] the Commissioner examined the terms of cl 6.4 of the Agreement and identified the particular provisions that were in contention. He found that DECD's actions had been entirely consistent with the clause: at [68]. The Commissioner also found that the intention of the parties at the time the Agreement was negotiated was that the relevant qualifications would be determined by DECD at a later date, after consultation with the AEU and PSA: at [70].
4. The Commissioner concluded that s 82(2)(b(i) of the Act prevented the Commission from determining the dispute, as the subject matter of the referral is a condition of employment that is a subject matter of the Agreement. In reaching this view he noted that cl 6.4 of the Agreement set out the process to be followed by DECD in determining the relevant qualification, including consulting with the AEU and the PSA and publishing a list of the qualifications. The Commissioner held that these characteristics of cl 6.4 meant that the qualifications determined by DECS were not "just the mention of an issue" as per the decision in Southcorp,[7] but that the reference to the relevant qualifications "traverses well past this point": at [71] - [74].
5. At [79] of the decision, the Commissioner addressed the AEU's argument that the matter could be determined under s 82(3) of the Act on the basis that the dispute concerned the application of the Agreement. He concluded that s 82(3) must be read in context and subject to the restriction in s 82(2)(b)(i) of the Act. The Commissioner held that this subsection did not provide an alternative avenue for the AEU to have the subject matter of the referral determined.
6. The Commissioner then went further and held that, even if he was wrong in this conclusion, he would not interfere with the exercise of DECD's discretion to determine the qualifications on the basis that it had met its obligations under cl 6.4 of the Agreement: at [80].
7. The Commissioner then addressed the AEU's argument that the constraints of s 82(2)(b)(i) of the Act did not apply because the Commission was exercising a power of private arbitration in accordance with the dispute settling provision agreed between the parties, rather than a statutory power of arbitration. He rejected this argument on the basis that there was no evidence of agreement by the respondent that the matter in dispute would be dealt with other than in accordance with the Commission's jurisdiction under the Act. It appears that the Commissioner accepted the respondent's argument that if the Commission was exercising a power of private arbitration the parties would have dealt with the terms of, and limitations upon, the exercise of any such power: at [82].
8. DECD's objection that the Commissioner lacked jurisdiction to deal with the matter was upheld: at [83].

1. The Notice of appeal filed by the AEU set out the following grounds of appeal:
   1. The learned Commissioner erred in finding at [83] that the Commission lacked jurisdiction to deal with the matter.
   2. The learned Commissioner erred in finding at [82] that in the absence of any agreement from the employer about this being a private arbitration...this is not a private arbitration...

3.1. taking into account an irrelevant consideration, namely the employer's position at the time of the hearing about whether there was a private arbitration jurisdiction; and

3.2. failing to take into account a relevant consideration, being the terms of the dispute procedure the AEU submitted was the source of the private arbitration jurisdiction; and

3.3. failing to take into account a relevant consideration, being the characteristics of a private arbitration at law.

1. The learned Commissioner erred at [67] and [68] and [72] and [73] by having regard to an irrelevant consideration, namely whether or not the employer complied with the relevant enterprise agreement.
2. The learned Commissioner erred at [71] and [72] and [73] and [74] in finding that the subject matter for referral is a condition of employment that is a subject matter of the agreement and as such the Commission cannot make a determination in settlement of the dispute.
3. The learned Commissioner erred at [79] in finding that there was no jurisdiction to determine the matter having regard to section 82(3) of the Fair Work Act 1994.
4. The learned Commissioner erred at [80] in finding that even if s 82(3) did give the AEU another path to proceed to have this matter determined, it would not be appropriate for the commission to interfere in this matter as the agreement did not constrain what the employer could deem to be appropriate qualifications.

1. The Act establishes the Commission "... as an industrial authority with the jurisdiction conferred by this Act to regulate industrial matters and to prevent and settle industrial disputes."[8] The specific areas of jurisdiction of the Commission are found in s 26 of the Act and include the jurisdiction to approve enterprise agreements and to resolve industrial disputes. Section 4 of the Act contains the definition of terms and defines "Industrial dispute" as an actual threatened, impending or probable dispute about an industrial matter. "Industrial matter" has an extensive definition which will not be set out here, but we are satisfied that the dispute notified by the AEU concerned an industrial matter and was therefore properly within the Commission's jurisdiction.
2. The dispute settling jurisdiction of the Commission appears in Division 3 of Part 3 of Chapter 5 of the Act. The process for dealing with a notification of dispute involves a progression through the stages of voluntary conference, compulsory conference and referral to the Commission for determination,[9] as necessitated in any given case.
3. In exercising its dispute settling power under the Act the Commission must have regard to the procedures contemplated by the parties for preventing and settling disputes and the extent to which there has been compliance, or otherwise, with the procedure.[10]
4. Where the subject matter of the dispute is referred for determination and the parties are bound by an enterprise agreement, an order of the Commission must not affect the terms of the agreement.[11]
5. Part 2 of Chapter 3 of the Act concerns the regulation of industrial matters by enterprise agreements. One of the objects of this Part is "to provide a framework for fair and effective negotiation and bargaining between employers and employees with a view to the making of such agreements ..."[12]
6. The restriction on the nature of any order made by the Commission, under s 202(3)(b) of the Act when exercising its general dispute settling jurisdiction is consistent with limitations on the Commission's jurisdiction to settle disputes under enterprise agreements. Section 82 of the Act provides:

"82 - Commission's jurisdiction to act in disputes under an enterprise agreement

(b) the Commission's powers to settle industrial disputes between the employer and the employees bound by the agreement.

(a) before the Commission intervenes in an industrial dispute between an employer and employees bound by an enterprise agreement, the Commission should ensure that the procedures laid down in the agreement for settling industrial disputes have been followed and have failed to resolve the dispute; and

(b) a determination made by the Commission in settlement of such a dispute -

(i) must not be made in relation to a condition of employment that is a subject matter of the agreement (unless the determination is to correct an ambiguity or uncertainty in the agreement); and

(3) The Commission may, in acting under this section, settle a dispute over the application of an enterprise agreement."

1. Section 84 of the Act concerns the Commission's power to vary or rescind an enterprise agreement. While there was no application before the Commission to vary the Agreement, this section reinforces the intention of the statute that the terms of the agreement reached between the parties are to form a stable and enduring arrangement. The power to vary an enterprise agreement is limited to three circumstances: to give effect to an agreement reached between the parties; to correct an ambiguity or uncertainty; or to give effect to an undertaking on the basis of which the agreement was approved.[13]

1. Where the jurisdiction conferred on the Commission is invoked, the Commission has a duty to exercise such jurisdiction. In this case the Commissioner determined that an objection to the exercise of jurisdiction should be upheld given the constraints imposed by s 82 of the Act. The question on an appeal against that determination is simply whether the Commissioner erred in his interpretation as to the scope of the jurisdiction to resolve industrial disputes conferred on the Commission by the Act.

1. It is convenient to deal firstly with the AEU's argument that the agreement between the parties, as reflected in the dispute settling clause, is that the Commission will exercise a power of private arbitration to resolve disputes. This argument is advanced as an alternative source of the Commission's power, in addition to its statutory dispute settling jurisdiction.
2. The dispute settling procedure agreed by the parties is found at cl 3.1 of the Agreement.[14] It provides for an extensive process of discussion between the parties, escalating through different stages and levels of seniority. Clause 3.1.4 identifies the scope of the matters that can be dealt with in accordance with the dispute settling procedure, namely:

"Any grievances, industrial disputes, or matters (including matters the subject of this Enterprise Agreement) likely to create an industrial dispute arising under this Enterprise Agreement ..."

1. If the dispute still remains unresolved after the process of discussion between the parties has been exhausted, cl 3.1.13 provides that:

"When a dispute is not resolved in accordance with this procedure, the matter may be referred to the IRCSA by any party to both the dispute and to this Enterprise Agreement, for conciliation and if not resolved, for arbitration."

1. The AEU argues that the parties must have intended that the Commission would exercise a power of private arbitration, because the referral of disputes that are the subject matter of the Agreement to the Commission under cl 3.1.13 is beyond the statutory jurisdiction of the Commission.
2. It is also submitted that, had the parties contemplated that the Commission would only exercise its statutory dispute settling role, there would be no need for the dispute settling provision in the Agreement to refer disputes for conciliation and arbitration.
3. We address this argument in the context of the development of dispute settling provisions in awards and later, in enterprise agreements. The purpose of these provisions is to ensure that the parties enter into discussions concerning any matter in dispute or likely to give rise to a dispute before any industrial action is embarked upon and to encourage the parties to take control of their disputes and attempt to resolve them before seeking the intervention of the Commission.
4. This is reflected in the provisions of the Act that requires enterprise agreements include a dispute settling provision (s 77) and that compliance with dispute settling procedures is a matter that the Commission is required to take into account in undertaking its dispute settling role (s 82(2)(a) and s 199). Seen in this context, the referral of the dispute to the Commission reflects the agreement between the parties as to when the Commission can become involved. The referral of matters in dispute for "conciliation and if not resolved arbitration" reflects the statutory powers that can be exercised by the Commission, and for reasons that follow, does not mean that the parties are conferring a power of private arbitration on the Commission.
5. In Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission[15] (Gordonstone) the High Court considered the exercise of a power of private arbitration by the Australian Industrial Relations Commission (AIRC). It did so in the context of a dispute settling provision in an agreement certified under the Industrial Relations Act 1988 (Cth) (the IR Act). One of the effects of this decision was to confirm the validity of s 170MH of the IR Act[16] which provided as follows:

"Procedures in an agreement for preventing and settling disputes between employers and employees covered by the agreement may, if the [AIRC] so approves, empower the [AIRC] to do either or both of the following:

(a) to settle disputes over the application of the agreement;

(b) to appoint a board of reference .... for the purpose of settling such disputes."

1. The dispute settling clause agreed between the parties was in the following terms:

(a) In the event of a dispute where resolution cannot be achieved without the assistance of the [AIRC], the parties will exchange positions prior to any hearing taking place.

(b) The parties to this Agreement agree to abide by any decision determined by the [AIRC] which relates to a dispute at Gordonstone Mine.

(c) Where it is agreed by the parties to resolve the matter with a mediator of the [AIRC], both parties agree to abide by the recommendation of the chairman."[17]

1. The AEU argues that s 170MH(a) of IR Act is analogous to s 82(3) of the Act, both concerning the settlement of disputes over the application of an agreement. We will return to a consideration of s 82(3) later in the decision, but note that s 82 is dealing with the exercise of the Commission's statutory dispute settling jurisdiction.
2. The High Court in Gordonstone determined that s 170MH authorised the AIRC to exercise a power of private arbitration under dispute settling procedures agreed between the parties. In reaching this view the High Court considered other relevant provisions of the statute, which it is unnecessary to canvass here. It was held that the constitutional limitations that apply to the AIRC exercising its award powers[18] did not apply under the dispute settling procedure and the High Court stated that:

"To the extent that s 170MH of the IR Act operates in conjunction with an agreed dispute resolution procedure to authorise the [AIRC] to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the [AIRC] to exercise a power of private arbitration. And procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation to prevent that situation from developing into an industrial dispute are clearly procedures for maintaining that agreement. Parliament may legislate to authorise the [AIRC] to participate in procedures of that kind ..."[19]

1. The Act contains a comprehensive code for dealing with industrial disputes, including disputes between parties to an enterprise agreement. There is nothing in the Act which states or implies that the Commission is exercising a power of private arbitration when dealing with disputes under a dispute settling procedure in an enterprise agreement.
2. The dispute settling provision under consideration in Gordonstone contained an explicit provision that the parties agree to abide by any decision of the AIRC and to abide by any recommendation of a mediator agreed by the parties. Accordingly there is limited discussion about this feature of the dispute settling procedure in the High Court's consideration, but it is axiomatic that the agreement of the parties to abide by the outcome of a private arbitration is required to give force and effect to any determination or recommendation so made. No such provision exists in the dispute settling clause in the Agreement.
3. In Christian Brothers College v Independent Education Union (SA) (CBC)[20] the Industrial Relations Court of South Australia (the Court) considered the interpretation of certain provisions of the South Australian Catholic Schools Enterprise Agreement 2004 (the 2004 Agreement). In issue between the parties was the approach to Curriculum Extension Activities (CEA) which formed part of the broader issue of teacher workload.
4. The relevant context was that the parties were unable to agree on the performance of CEA when the 2004 Agreement was struck. The parties "retreated to the status quo as it was before negotiations commenced" subject to the provisions in cl 2.7 of a Memorandum of Understanding appended to the 2004 Agreement. This clause enabled, among other things, teachers to pursue issues, including new claims with respect to CEA[21].
5. Clause 2.7 is a lengthy clause that it is unnecessary to reproduce in its entirety, but the following paragraphs are relevant for the purposes of this decision:

2.7.13 The parties agree that where reasonable negotiations have failed to resolve the issue(s) in dispute, they will submit the matter to the Industrial Relations Commission for a determination.

2.7.14 Where the parties jointly seek that the Industrial Relations Commission make a determination of the matter, the parties will accept that determination as final and binding.

2.7.15 This provision in no way limits the capacity of the Industrial Relations Commission to exercise its jurisdiction in relation to any dispute which may occur about matters pertaining to Curriculum Extension Activities."

1. In considering these provisions the Court held that clauses 2.7.13 and 2.7.14 appeared to overlap and that the effect of these clauses was that the parties had agreed to seek a private arbitration of unresolved issues. Such a process would bypass the formalities of conciliation and arbitration under the Act and any jurisdictional issues. The Court considered that this process appeared to be analogous to that recognised by the High Court in Gordonstone.
2. In relation to cl 2.7.15, the Court held that it was not clear what matters this clause was intended to address, but that it was directed to the Commission's statutory dispute settling powers. Accordingly it could not confer on the Commission a jurisdiction which it does not possess and the limitations in s 82(2) of the Act would apply.
3. After considering the decision of the Court, Deputy President Hampton, to whom the CEA dispute had been referred, identified relevant considerations for the Commission exercising a power of private arbitration concluded that:

"... Having considered that context, the terms of the Enterprise Agreement and the positions of the parties in this matter, I consider that three implications of the Enterprise Agreement provisions as applied by the Court clearly arise. Firstly, that the jurisdiction and scope of the private arbitration is set by the terms of the Enterprise Agreement itself. This is not an exercise falling within the Commission's normal jurisdiction. Secondly, that the private arbitrator must have the function to enquire into and be satisfied that the prerequisites for the private arbitration exist. Thirdly, that in nominating the Commission to be the private arbitrator, the parties must be taken to have appointed the Commission with the necessary powers to conduct the private arbitration - including the procedural powers provided in the Act to the extent that such are necessary to conduct the role, and provided that its determination is within the parameters as set by the Enterprise Agreement provisions themselves." [22]

1. The factual circumstances in CBC provide no comfort for the AEU in its argument that cl 3 of the Agreement confers on the Commission the power of private arbitration. In the present matter there was no disagreement about the qualifications when the Agreement was concluded; no process, however described, in relation to the Commission dealing with the qualification issue at a later stage; and no agreement of the parties to abide by any decision of the Commission.
2. The Commissioner was correct to conclude that there was no evidence of a common intention of the parties that the Commission would conduct a private arbitration. This ground of appeal is dismissed.

Statutory dispute settling powers of the Commission

1. The objects in s 3(f) of the Act and in s 73(b) of Part 2 of Chapter 3 are directed to the facilitation of enterprise bargaining agreements through fair and effective negotiation and bargaining between employers and employees. There is no suggestion in the present case that the bargaining that led to the Agreement was in any way compromised in a manner inconsistent with these objects.
2. Our consideration commences with the principle that parties should be held to the bargain that they have freely and genuinely entered into. There may be situations where unforseen supervening events undermine the very basis on which the bargain was struck, but even in these cases the right to redress will depend on the terms of the bargain and the statutory context.
3. The scope of the prohibition on the determinations that the Commission can make in s 82(2)(b)(i) of the Act is broader than "a condition of employment" that is the subject matter of the enterprise agreement and extends to a determination by the Commission "in relation to a condition of employment" that is the subject matter of the agreement.
4. The opening paragraph of cl 6.4 of the Agreement concerns the establishment of a new criteria based increment for SSO's, ECW's and AEW's. The establishment of the new increment is confirmed in the relevant wage schedules to the Agreement. An employee is eligible to apply to progress to the new increment if the three criteria for progression in cl 6.4.1(a) are met, including that "... the employee has attained the relevant qualifications as required by DECD". Clause 6.4.1(b) concerns the operative date for a successful application and cl 6.4.1(c) concerns the processes available to an employee in the event of an unsuccessful application. Clause 6.4.2 obliges DECD to make a list of the "recognised qualifications" available; to consult with the AEU and PSA about the "applicable qualifications"; and to establish an on-line application process for employees.
5. The AEU relied upon Southcorp in support of its submission that the provision in cl 6.4.1(a) of the Agreement was not an "express and enforceable provision" which would attract the constraints of s 82(2)(b) of the Act. We consider that Southcorp is of limited assistance to the AEU. In that case, the subject matter of the referral to the Commission at first instance concerned the introduction of what was referred to in the decision as the "DO2 test", which was to be undertaken by certain employees at the Barossa Winery after receiving appropriate training. The employees were opposed to undertaking the DO2 test. Contrary to the decision at first instance, the Full Commission determined that the introduction of the DO2 test was a condition of employment that was the subject matter of the Southcorp Wines Pty Limited Barossa Wineries Enterprise Agreement - 2003 (the Barossa Agreement), even though the DO2 test was not explicitly mentioned within the Barossa Agreement (at [70], [56]).
6. As we understand this decision, the Full Commission reached this view because the terms of the Barossa Agreement provided a process whereby the introduction of new productivity and efficiency measures would occur by agreement through the joint working party and that such agreement was absent. Further, the Full Commission found that training was the subject of an appendix to the Barossa Agreement and the requirement that the relevant employees undertake training to enable them to undertake the DO2 test also concerned a condition of employment in the Barossa Agreement (at [65], [68]).
7. The Full Commission did however conclude that there was an ambiguity or uncertainty in the application of the relevant provisions, including the reach of the provisions. The Full Commission proceeded to determine the matter, finding that the orders made by the Commission at first instance were appropriate in all of the circumstances (at [80], [81]).
8. In the present case the condition of employment that is the subject matter of the Agreement is the eligibility requirements for employees to progress to the new top increment. The various procedural matters in cl 6.4 are in relation to this condition of employment. The condition of employment is enforceable in that a failure by DECD to progress an employee who satisfies the requirements in paras 6.4.1(a)(i), (ii) and (iii) could be the subject of an order by the Court.
9. The eligibility requirement in cl 6.4.1(a)(i) that "the employee must have attained the relevant qualifications as required by DECD", is hardly the "mere mention of an issue" in the sense contemplated in Southcorp, where the Full Commission stated:

"62 The expression 'condition of employment' is not defined in the Act however it appears (as 'conditions of employment') in a number of provisions including in the definition of industrial matter (s 4) and the Enterprise Agreement approval requirements of s 79. In our view, the expression must mean, at least in the present context, an express term within the Agreement directly concerning the relevant employment relationships and which is capable of being enforced. In our view, the mere mention of an issue within an Agreement, where such is not dealt with by way of an express and enforceable provision, would not attract the constraints of s 82(2)(b) of the Act. Such an approach is consistent with the evident purpose of s 82(2) of the Act as we have found it to be, and sits comfortably with the use of that expression within the other provisions of the Act pertaining to Enterprise Agreements."

1. We interpose that we concur with the above approach subject a broader view being required when taking into account that s 82(2)(b)(i) is a prohibition on the Commission making a determination "in relation to" a condition of employment in an enterprise agreement. Nonetheless the passage above does not stand for the proposition that each and every sentence within a condition of employment provision must of itself be in express terms capable of enforcement.
2. In the present case the eligibility requirements are an express and enforceable provision of the Agreement. The fact that DECD had not established the relevant qualifications at the time the Agreement was entered into does not render the provision unenforceable: the parties understood and agreed that DECD would determine the required qualifications at a later date.
3. We also consider that the decision in Port Pirie, supra, and the decision in DECS and DFEEST Arbitrated Award[23] are of little assistance. The facts in Port Pirie can be distinguished from the present matter because the Commission there was dealing with a matter which was not the subject of the agreement, either expressly or by implication. Accordingly the limitation in s 82(2)(b)(i) of the Act did not apply (at [32]).
4. The DECS and DFEEST Arbitrated Award decision was conducted in a different statutory context and involved the Commission undertaking its Award making jurisdiction under s 90 of the Act to establish the rights and obligations that should bind the parties. The case was conducted in the context of unsuccessful bargaining where there was no reasonable prospect that the parties would reach an agreement.[24]
5. Section 82(2)(b)(ii) requires that any determination of the Commission must be consistent with the agreement. By its very nature, a determination by the Commission in relation to the appropriate qualification for progression is inconsistent with the term of the agreement which grants DECD the right to determine the required qualification.
6. We conclude that the subject matter of the referral was in relation to a condition of employment that is the subject matter of the Agreement. This ground of appeal is dismissed.

Is there an uncertainty or ambiguity in clause 6.4?

1. The prohibition on the Commission making a determination in relation to a condition of employment in an enterprise agreement in s 82(2)(b)(i) of the Act does not apply if the determination is to correct an ambiguity or uncertainty in the agreement. The AEU advanced two bases on which the dispute referred for determination concerned an ambiguity or uncertainty. The first basis concerned the uncertainty as to the relevant qualification that would be required. We do not accept that this is an uncertainty in the terms of the Agreement. The Agreement is clear that, at the point that it was entered into, the qualifications would be determined by DECD at a future stage.
2. The second alleged ambiguity/uncertainty concerned whether the discretion exercised by DECD in determining the required qualification for progression was absolute, as DECD contended, or subject to review, as the AEU contended.
3. In our view this diversion of views does not give rise to an ambiguity or uncertainty in the Agreement. Had it been intended that the discretion exercised by DECD in relation to the required qualification would be subject to review, such a provision would have been included in the Agreement. There are no other provisions of cl 6.4 or of the Agreement more generally that cast any doubt on the fact that DECD's discretion in this regard is unfettered. While this may lead to a result which is unfair is a possible consequence of the agreement that the AEU entered into. We reject the argument that the Commission can deal with the dispute under the exception in s 82(2)(b)(i) of the Act.

Does the question for determination concern the application of the enterprise agreement?

1. The AEU's position is that s 82(2)(b) does not constrain the operation of s 82(3) of the Act because these provisions are directed to different matters: the former prohibits the determination of new rights or obligations which are inconsistent with a condition of employment that is the subject matter of the Agreement, while the latter concerns the application of existing rights and obligations in particular circumstances.
2. The AEU argues that if s 82(3) was constrained by s 82(2)(b) in the manner advanced by the respondent, and accepted by the Commissioner, it would be redundant. This is said to be so because by definition, "the application of an enterprise agreement" must involve the application of the conditions of employment within it.
3. As a matter of proper statutory construction, s 82(3) cannot be read so as to extend the jurisdiction of the Commission beyond the limitation in s 82(2)(b)(i) of the Act.
4. A dispute over the application of an existing right or obligation under the Agreement[25] would involve the Commission making a determination in relation to a condition of employment, a matter expressly prohibited under s 82(2)(b)(i) of the Act.
5. There is a further issue in respect to the AEU's argument about the operation of s 82(3) of the Act and that is the meaning to be attributed to the phrase "the application of the agreement". In Gordonstone, it had not been determined whether the particular dispute concerned "the application of the agreement" and it was unnecessary for the High Court to consider the phrase in any detail. It is clear however that the High Court considered that it involved the Commission arbitrating matters which concerned the determination of existing legal rights and liabilities, which would be an impermissible exercise under the award powers of the AIRC.
6. The phrase was considered in more detail in CEPU v Telstra Corporation (Telstra), where it was held that "the application of the agreement" includes disputes over whether and how the agreement applies in particular circumstances.[26] That is, it concerned rulings in relation to existing rights and liabilities.
7. In the absence of a provision in the Act authorising the Commission to conduct a private arbitration, similar to s 170MH of the IR Act, or a provision of an enterprise agreement conferring the power of private arbitration on the Commission, "the application of an enterprise agreement" in s 82(3) of the Act cannot bear the same meaning as per Telstra as this would involve the exercise of a judicial function reserved to the Court.
8. The proper construction of s 82(3) of the Act has not been considered in any detail previously and in our view, the nature of the matter or matters addressed by the phrase "the application of an enterprise agreement" is not readily apparent. While it is unnecessary to reach a concluded view on this matter, the phrase "the application of an enterprise agreement" may be directed to the persons and parties to whom an enterprise agreement applies, rather than the application of the conditions of employment within an enterprise agreement. This is consistent with the difference in terminology adopted in s 82(2)(b) and s 82(3) of the Act. The jurisdiction exercised by the Commission under s 82(3) may involve, for example, the resolution of an ambiguity or uncertainty in the scope of an enterprise agreement or in the classification of employees who are bound by it.
9. The jurisdiction to resolve such a dispute would not be contrary to the terms of s82(2)(b)(i) which is, both in its prohibition and the exception to the prohibition, "in relation to a condition of employment".
10. We conclude that the Commissioner was correct in his view that the dispute could not be determined in accordance with s 82(3) of the Act.

1. Section 84 of the Act dealing with a variation to an enterprise agreement reinforces the intent of the statute that the Commission will not interfere with the terms agreed by the parties within an enterprise agreement unless to correct an ambiguity or uncertainty, or in the case of a variation, to give effect to an agreement reached between the parties.
2. Section 155 of the Act provides that the Commission (and the Court) has a discretion to give any form of relief authorised by the Act, and is not limited to the relief sought by the parties. The relief granted must however be consistent with the provisions of the Act under which the granting of the relief is sought. Having regard to the nature of AEU's grievance, we are unable to conceive of any alternative relief that would be consistent with the Act.

1. To the extent that the Commissioner expressed a view or a conclusion in relation to DECD's compliance with cl 6.4 of the Agreement, he was entitled to do so as part of his consideration. DECD's compliance was not a matter that informed the Commissioner's key conclusions on jurisdiction.
2. As to the ground of appeal that contends that the Commissioner failed to take into account certain arguments of the AEU in reaching his conclusions, we agree that it would have been preferable if the Commissioner had articulated the arguments advanced by the AEU when setting out his conclusions. However his decision did not miscarry or reach an incorrect conclusion as a result.
3. Accordingly these grounds of appeal are dismissed.

1. Given our findings in relation to the jurisdictional issue it is unnecessary to consider whether the AEU's application was in breach of the No Extra Claims provision in the Agreement.

1. At its core, the AEU is seeking a determination from the Commission which would replace the qualifications determined by DECD in the exercise of a discretion which the parties agreed it would exercise under the terms of cl 6.4 of the Agreement.
2. The unusual framing of the question for determination reflects the jurisdictional issues confronting the AEU. If the Commission is being requested to do no more than express an opinion on what is right and fair in relation to the required qualifications, then this is not a determination within the meaning of s 4 of the Act.
3. The Commissioner was correct to conclude that the Commission does not have jurisdiction to make the determination sought by the AEU and the appeal is dismissed.

It is the practice of this Commission to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Commission's usual practice.

[1] School Services Officers (SSO's); Early Childhood Workers (ECW's); and Aboriginal Education Workers (AEW's).

[3] Amended Statement issued by Commissioner McMahon, 15 April 2014.

[4] The dispute in relation to AEW's was resolved prior to the referral of the matter for determination.

[6] Port Pirie Regional Council v Australian Services Union [2014] SAIRComm 3.

[7] Liquor Hospitality and Miscellaneous Union v Southcorp Wines Pty Ltd - Appeal [2004] SAIRComm 36.

[9] Sections 200, 201 and 202 of the Act.

[14] Section 77(1)(c) of the Act requires that an enterprise agreement must include a procedure for preventing and settling disputes.

[15] (2001) 203 CLR 645.

[16] This section continued to operate under the transitional provisions of the Workplace Relations Act 1996 (Cth) (the WRA) which was in force at the date the dispute was initially referred to the AIRC.

[18] That is, the requirement for an interstate dispute and the exclusive jurisdiction of the courts to exercise judicial power.

[20] [2004] SAIRC 92

[22] Independent Education Union (SA) v Christian Brothers College - Private Arbitration [2005] SAIRComm 15 at para 42.

[23] Conditions of Employment for DECS and DFEEST (TAFE) Employees Decision No 2 [2010] SAIRComm 7.

[24] Wages, Salaries, Classifications for DECS and DFEEST (TAFE) Employees Decision No 1 [2010] SAIRComm 3 at paras 1-3.

[25] Assuming it did not involve an ambiguity/uncertainty, which is an exception to the general limitation in s 82(2)(b)(i) in any event.

[26] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation, PR933892 per Lawler VP, 2 July 2003 at [13].