s.739 - Dispute resolution

The Police Federation of Australia (Victoria Police Branch) Trading AS The Police Association of Victoria

Application to deal with a dispute under an enterprise agreement

• [1] This is a dispute about whether the Police Association of Victoria (Applicant) can have the Commission determine a dispute about the ongoing application of a Detective Expression of Interest (DEOI) process and the operation of subclause 17.7 of the Victoria Police (Police Officers, Protective Services Offices, Police Reservists and Police Recruits) Enterprise Agreement 2019 (2019 Enterprise Agreement).

• [2] The DEIO process commenced on 29 March 2023. On 23 September 2024, Victoria Police (Respondent) terminated the DEOI.

• [3] On 9 October 2024, the Police Association made an application to the Commission pursuant to clause 10 of the Enterprise Agreement - Dispute Resolution, seeking the assistance of the Commission in conciliating the dispute. And in the event conciliation was unsuccessful, a determination from the Commission that the DEOI process was an agreed process under an industrial instrument applying to Police Officers, accompanied by an order the Respondent reinstate the DEOI process within 28 days.

• [4] At an initial conciliation conference, the Respondent identified it had objections to the Commission exercising its arbitral powers under the Agreement to determine the dispute. The first objection was that the Commission could not exercise its powers of arbitration for a dispute under the terms of the 2019 Agreement because it was not a "dispute about a matter arising under the Agreement of the National Employment Standards." Being rather, a dispute about an agreement made as part of the parties' Best Practice Employment Commitments (BPEC).[1]

• [5] A second objection was that by virtue of section 5(2)(b)(ii) of the Fair Work (Commonwealth Powers) Act 2009 (Vic) (Referral Act), the dispute is beyond the Commission's jurisdiction. This is so because the DEOI process is concerned with transferring police officers to new positions. A dispute about the DEOI process is therefore a dispute about "a matter pertaining to... the transfer from... position to position.... of law enforcement officers". Their position is that disputes of this kind are excluded from the powers of the Commission by the Referral Act and cannot be arbitrated.[2]

• [6] In submissions, the Respondent accepted that a dispute about whether the operation or expansion of the DEOI process constitutes 'agreement' for the purposes of clause 17.7 of the Agreement, could be a 'matter' within the arbitral powers of the Commission, but for the exclusions provided by the Referral Act. Consequently, the Respondent's first objection to the extent the dispute is about clause 17.7 falls away.

• [7] The Respondent presses its second objection which is considered below.

• [8] For the reasons set out below I am satisfied that while the Applicant may choose to bring this application before the Commission to be dealt with, the Commission has no power to arbitrate the dispute.

• [9] Much of the relevant background in this matter is no longer contested or in dispute between the parties. While the parties do not agree on the nature of the agreement reached to enter into a trial DEOI process[3], it is not in dispute that a trial was entered into and has ceased.

• [10] It is uncontroversial that the parties have entered into an enterprise agreement made under the Fair Work Act (FW Act). Consistent with the requirements of the FW Act, the parties agreement includes a dispute settlement clause. The dispute settlement clause provides a power of the Commission to arbitrate disputes about matters arising under the Agreement or the NES.

• [11] Clause 17 of the Agreement records the agreement of the parties in relation to the Filling of Positions by Expression of Interest - EOI. Subclause 17.7 provides "Where the employer and the PFA agree, the EOI process may be expanded to include other ranks and/or positions."

• [12] It is accepted the Referral Act expressly limits the powers given over to the Commonwealth to exercise jurisdiction over, by the Parliament of Victoria.

• [13] By virtue of the Referral Act, it is accepted that the Commonwealth does not have the power to exercise statutory force over decisions pertaining to the transfer or promotion of employees of the Respondent.

• [14] Because of the above, the Respondent argues there is no power for the Commission to arbitrate the dispute. The Applicant accepts the Commission does not have a statutory power to arbitrate the dispute as an agreement made under the FW Act. Their position is that the Commission has a power of 'private arbitration' given to it by the parties by the express terms of the agreement they have entered into.[4]

• [15] What is in dispute in this matter is whether the Commission has the power to arbitrate a dispute about the operation of a DEOI process within the Victoria Police Service when it is a matter excluded from the terms of the enterprise agreement made between the parties under the FW Act.

• [16] The question to be determined is whether the Commission has a power to arbitrate a dispute about a matter that has been agreed between the parties that does not fall within the terms of their agreement to make an enterprise agreement under the FW Act.

• [17] For this dispute to proceed to be considered on its merits, I must be satisfied the arbitral powers of the Commission exist.

• [18] Both the Police Association and Victoria Police have filed material with the Commission consistent with my directions on 18 December 2024.

• [19] A hearing on the jurisdictional dispute convened on 11 March 2025. At the hearing, the Police Association was represented by Mr Steve Gome. The Respondent was represented by Mr Matt Garozzo, who was granted leave to appear for the purpose of this jurisdictional hearing. The Applicant reserved its position to object to leave being granted in the event of any future proceedings.

• [20] It is the principle position of the Respondent that there is no power for the Commission to arbitrate a dispute beyond the terms of the 2019 Enterprise Agreement because the powers of the Commission are only derived from the FW Act.

• [21] It being accepted that there is a dispute about a matter within the subject matter of those excluded from the Commonwealth's powers (being a matter about the transfer of law enforcement officers) by the Referral Act, the Respondent's position is that the Commission's arbitral power cannot be enlivened.[5]

• [22] In support of this position, the Respondent cites the Full Bench decision of this Commission in Parks Victoria for the proposition that_: "a stream cannot rise higher than its source."_[6]

• [23] Furthermore given the Applicant's concession that Clause 17 of the 2019 Agreement is "incapable of being given statutory force" [7], the High Court decision in the Private Arbitration Case stands for the proposition that: "to the extent an enterprise agreement exceeds the limits of the Constitution or the FW Act, it cannot operate as an enterprise agreement to that extent, but may do so pursuant to the general law."[8]

• [24] The 2019 Agreement is an enterprise agreement approved by the Commission under s.186 of the FW Act. As required by s 186(6) it includes, at clause 10, a term that provides a procedure for the Commission to deal with a dispute about any matters arising under the agreement or the National Employment Standards.

• [25] The Commission's power to assist in the resolution of disputes under an enterprise agreement is derived from s. 595 of the FW Act, which provides the Commission "may deal with a dispute only if it is expressly authorised to do so under or in accordance with another provision of this Act."

• [26] The Respondent identifies that section 738(b) of the FW Act applies if "an enterprise agreement includes a term that provides a procedure for dealing with disputes..." Section 739(4) provides that the Commission may arbitrate a dispute under an enterprise agreement, if in accordance with that term of the enterprise agreement, the parties have agreed that it may do so. Section 739(5) provides that in arbitrating a dispute under an enterprise agreement, the Commission must not make a decision that is inconsistent with the FW Act or an enterprise agreement that applies to the parties.[9]

• [27] In summary, the Respondent's position is that the Commission has jurisdiction to "deal with", or arbitrate, a dispute under an enterprise agreement when it has been authorised to do so by a term of the enterprise agreement reached between the parties. And that the Commission does not have some extraneous power to arbitrate disputes about agreements made under the general law.

• [28] On this basis, they submit the application should be dismissed.

• [29] The Applicant accepts that this is a dispute about a matter pertaining to a matter excluded from the powers of the Commonwealth by the Referral Act, being a matter pertaining to the transfer of detectives. They also accept the effect of this exclusion places a constitutional limitation on the Commission giving statutory effect to these excluded terms of the enterprise agreement reached between the parties under any auspices.[10]

• [30] Despite this, the Applicant argues that the Commission has a power to determine this dispute about an excluded subject matter because the parties have agreed for this to be the case in the terms of the agreement reached between them. Specifically, in Clause 3 - Application Clause, the parties have agreed for the Commission to exercise private arbitral powers to determine disputes over terms dealing with subject matter outside the powers of the Commonwealth.[11]

• [31] On this basis, the Applicant submits it is seeking for the Commission to exercise the authority expressly conferred on it by the agreement entered into by the parties, not the FW Act, and that consistent with the decision of the High Court in the Private Arbitration Case the Commission should determine the dispute.[12]

• [32] In further support of this position, the Applicant refers to the Victorian Government's Public Sector IR policies issued in June 2016 in response to the Full Court decision of the Federal Court in UFU v Country Fire Authority.[13] In particular, at Part 1 where the "Key Principles" include "Honouring all terms collectively bargained for within formal agreements and not using technical constitutional arguments to avoid these agreed obligations." And Part 4 where the "Governments Current Approach to Excluded Matters" are articulated in the following terms:[14]

"The Government is committed to honouring all terms collectively bargained for within existing formal agreements. Departments and agencies should not seek to use legal constructs to avoid these obligations. If there are matters in existing enterprise agreements which are arguably excluded matters departments and agencies should not rely upon the Referral Act or the Re: AEU principles[15] to avoid obligations under any such provisions....."

• [33] The Applicant argues these provisions make clear the Victorian Government has approved the inclusion of excluded matters within the terms of the collectively bargained agreement reached between the parties. And that it has instructed to Respondent to honour all terms collectively bargaining for and not use technical constitutional arguments to avoid obligations concerning excluded matters.

• [34] On this basis, they argue the Commission has been given the power to arbitrate this dispute about the DEOI process by the Agreement of the parties.

• [35] Considering all the submissions of the parties and the evidence in this matter, it is clear the question before me is whether the Commission can and has been empowered by the parties to the 2019 Agreement between them to arbitrate a dispute about an excluded matter.

• [36] To answer this question, the following needs to be established. Firstly, what is the nature of the agreement between the parties. Secondly, what are the powers of the Commission to deal with disputes. Finally, is the Commission empowered to arbitrate this dispute. I will consider each in turn.

What is the nature of the agreement between the parties?

• [37] Clause 10 - Dispute Resolution of the 2019 Agreement relevantly provides as follows:

10.2 With the exception of a matter contained in clause 11 or where a statutory right of review exists under the VP Act, if a dispute arises about any matter arising under this Agreement or the National Employment Standards (including s 65 of the FW Act) the parties to the dispute will attempt to resolve the dispute at the workplace level if appropriate.

10.5 If the dispute is not settled, the Employee(s) or their representative may apply to the Fair Work Commission to have the dispute dealt with by conciliation.

10.6 If the matter cannot be resolved by conciliation under sub-clause 10.5, either party may request that the Fair Work Commission deal with (the) dispute by arbitration....

• [38] Applying the principles Agreement interpretation established by the Full Bench in AMWU v Berri[16] it is clear from these words that the Commission has been empowered to arbitrate disputes between the parties about any matters arising under the Agreement or the NES that cannot be settled by conciliation subject to the requirements of clause 10.

• [39] This much is not in dispute by the parties, and I accept it to be the case. Nor is it in dispute that the preliminary requirements of clause 10 which empowers the Commission to arbitrate the dispute have been satisfied. Having conducted a failed conciliation with the parties on receipt of the Applicant's F10 Application, I am satisfied this is so.

• [40] In submissions the Respondent accepts that the Commission would be empowered to arbitrate the dispute but for the operation of the Referral Act exclusions.

• [41] It is uncontroversial that the Referral Act brings Victoria Police and its officers within the scope of the FW Act by extending the definition of national system employer and national system employee in the State of Victoria. Section 30C(1)(b) of the FW Act, within Division 2A of Part 1-3, provides that a national system employee in a referring State includes "a law enforcement office of the State to whom subsection 30E(1) applies." Section 30D(1)(b) provides that a national system employer includes a holder of an office to whom subsection 30E(2) applies. Section 30E then provides the definitions of ordinary meaning of employee and employer in the FW Act to apply as an act of referral. Section 30H then provides that Division 2A of Part 1-3 only applies under the FW Act to the extent that the State's referral law provides for it.[17]

• [42] Section 5(2)(b) of the Referral Act expressly provides those "matters pertaining to probation, promotion, transfer from place to place or position to position, physical or mental fitness, uniform, equipment, discipline, or termination of employment of law enforcement officers" are not referred to Commonwealth.

• [43] The Respondent referred to the Full Court decision of the Federal Court in Dempster v Comrie[18] where the predecessor of the Referral Act was considered in effectively identical terms in a dispute concerning alleged contraventions of freedom of association in the Workplace Relations Act (Cth) involving Mr Dempster's transfer. In that case, the Full Court held the effect of the Referral Act is the excise of those actions (transfers, promotions, etc.) in relation to employees who are law enforcement officers from the powers of the Commonwealth.[19]

• [44] In their submission, the task of the Commission is simply one of determining if the relevant clauses are matters pertaining to excluded matters. If the Commission determines this is so, the Commission has no arbitral power, and the application must be dismissed.

• [45] The Applicant accepts the subject matter of the dispute is a subject matter included in those excluded from the powers of the Commonwealth by the Referral Act. In doing so they accept there is no basis for the Commission to exercise a statutory power under the FW Act to arbitrate this dispute about terms of the enterprise agreement registered under the FW Act.

• [46] This position is consistent with the above authorities, and is plainly correct.[20]

• [47] The Applicant's contention is that the parties have expressly agreed for the Commission to exercise a power of private arbitration about matters agreed between them that have been excluded from the jurisdiction of the Commonwealth by the Referral Act.

• [48] The above authorities do not stand for the proposition that the Commission cannot exercise a power of private arbitration over agreements between parties when it has been empowered by the parties to do so.

• [49] In Parks Victoria the Full Bench made clear the Commission has no jurisdiction to include excluded terms in the making of a workplace determination. Considering both Parks Victoria and Dempster v Comrie in Police Federation of Australia (Victoria Police Branch) v Victoria Police/Chief Commissioner of Police, Deputy President Bell similarly concluded the purpose of the Commission's task was to determine whether the subject matter of the relevant clause, properly characterised, pertains to an excluded subject matter.[21] The Police Association contend neither of these decisions engaged with the scope of the parties agreement, or the private arbitral powers of the Commission.[22]

• [50] It is accepted that it is within the functions of the Commission to exercise a power of private arbitration when it has been empowered to do so by the parties. The High Court made this clear in Construction Forestry, Mining and Energy Union v Australian Industrial Relations Commission considering the Constitutional validity of s170MH of the Industrial Relations Act 1988 (Cth) as follows:

[30] There is, however, significant difference between agreed and arbitrated dispute settlement procedures. As already indicated, the Commission cannot, by arbitrated award, require the parties to submit to binding procedures for the determination of legal rights and liabilities under an award because Chapter III of the Constitution commits power to make the determinations of that kind exclusively to the courts. However, different considerations apply if the parties have agreed to submit disputes as to their legal rights and liabilities for resolution by a particular person or body and to accept the decision of that person as binding on them.

[31] Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgement or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.

[32] To the extent that s 170MH of the IR Act operates in conjunction with an agreed

dispute resolution procedure to authorise the Commission to make decisions as to the

legal rights and liabilities of the parties to the agreement, it merely authorises the

Commission 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 Commission to participate in procedures of that kind. Accordingly, s170MH of the IR act is valid."[23]

• [51] The Full Bench of this Commission cited the above passage in Falcon Mining, confirm as follows at [62]:

"Therefore, to the extent that a dispute resolution procedure in an enterprise agreement confers, conditions or limits the Commission's power to arbitrate disputes, that conferral, condition or limitation is not effective by virtue of the operation of the agreement itself. An enterprise agreement is not a law and therefore cannot of its own force delimit the powers of the Commission. Rather (as submitted by the appellants) 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 s 738, and it is s 739(3) which limit 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.

• [52] It is clear from Falcon Mining that the Commission can be empowered to exercise a power of private arbitration when empowered to do so. I will return to these powers of the Commission and their implications for this case in the section below. Before this, the first step is to determine what the parties have agreed for the Commission to do.

• [53] For the Applicant's case to advance, I must be satisfied the parties to the 2019 Agreement have sought to empower the Commission to arbitrate a dispute about excluded matters. The Applicant's position is this agreement can be found in the operation of Clause 10 - Dispute Resolution and Clause 3 - Application.

• [54] Clause 3 - Application Clause of the Agreement relevantly provides as follows:

3.1 The agreement is intended to have effect as an Enterprise Agreement under the FW Act only to the extent that the matters dealt within it are covered by the reference to the Parliament of the Commonwealth under the Fair Work (Commonwealth Powers) Act 2009 (FWCP Act) as amended or replaced from time to time.

3.2 Where a provision of this Agreement deals with a matter that is not covered by the reference under the FWCP Act;

(a) that provision will be deemed not to have formed part of this Agreement as

(b) that provision will in every other respect, to the extent permitted by law, stand as a legally binding agreement between the parties hereto; and

(c) apart from that provision, this Agreement will have full force and effect under, and to the extent permitted by, the FW Act.

• [55] The Applicant's position is that the application clause records that the 2019 Agreement reached between the parties is a binding agreement about matters that can be approved under the FW Act and, to the extent permitted by law, matters beyond the powers of the Commonwealth.

• [56] The Respondent's position is that the application makes clear that any term of the agreement reached by the parties that is not covered by reference under the FWCP Act is not a part of the enterprise agreement under the FW Act.

• [57] Considering the plain and ordinary meaning of the words in the Application Clause consistent with the established principles of Agreement interpretation, it is clear both things are true.

• [58] Clause 3.1 makes clear the agreement is intended to have effect as an Enterprise Agreement under the FW Act only with respect to referred matters as the Respondent maintains. I accept this to be the case.

• [59] Clause 3.2 records the Application of the agreement to non-referred matters. Clause 3.2(a) makes clear that non-referred matters are not part of the agreement under the FW Act.

• [60] Clause 3.2(b) concerns the status of the agreement with respect to the non-referred matters that are not part of their Agreement under the FW Act. Its effect is clearly to indicate the parties have reached a legally binding agreement on any non-referred matters in their agreement, to the extent permitted by law. This is the position of the Applicant, and I accept the plain and ordinary meaning of the words in clause 3.2(b) clearly record that the agreement of the parties is intended to apply to non-referred matters to the extent permitted by law.

• [61] Clause 3.2(c) confirms the agreement will have full force and effect on referred matters, to the extent permitted by law, under the FW Act.

• [62] It follows from the above analysis that I am satisfied the Applicant, and the Respondent are both correct on the meaning of Clause 3. The parties have agreed to an agreement inclusive of referred matters under the FW Act, including by virtue of clause 10, and agreement for the Commission to arbitrate disputes.

• [63] The parties have also agreed to an agreement on non-referred matters. The Applicant's position is this Agreement also includes the agreement in clause 10 for the Commission to arbitrate disputes about these non-referred matters as a term of their agreement.

• [64] The Respondent maintains, this cannot be the case. Their position is that the only power of the Commission to arbitrate disputes is derived from the FW Act. And that if the parties have reached a legally binding agreement on matters that do not fall within the enterprise agreement made under the FW Act there can no basis for its exercise of arbitral powers.

• [65] Determining this question requires a consideration of powers of the Commission to which I will now turn.

What are the Commission's Powers to Deal with Disputes?

• [66] 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. The provisions of s. 739 are set out below:

(1) The section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute."

• [67] I have set out the relevant terms of the dispute procedure in the 2019 Agreement above at [37].

• [68] There is no dispute between the parties about the plain meaning of the dispute clause, which provides a power of the Commission to arbitrate disputes about any matter arising under the Agreement provided the requirements of clause 10 have been met.

• [69] This being the case, the question becomes whether the powers of the Commission to arbitrate a dispute can extend to matters of dispute between parties that have been legally agreed but are not included in an enterprise agreement made under the FW Act.

• [70] The Respondent's position is the answer to this question is simply no, consistent with the authority a 'stream cannot rise higher than its source'.[24] Or alternatively the proposition that as a creature of statute, to the extent the Commission has any power to arbitrate disputes, the source of that power must be located in the FW Act.[25]

• [71] In the present case, I am satisfied the source of the Commission's power to arbitrate this dispute can arise from the dispute clause agreed between the parties in the 2019 Agreement they have reached. As affirmed in Falcon Mining at [68]:

"The condition precedent for there to be authorisation to arbitrate under s 739(4) is that "in accordance with the term, the parties have agreed that the FWC may arbitrate...the dispute". The requirement for the agreement to arbitrate to be in "accordance with the term" would mean, for example, that if the relevant dispute resolution term provides that workplace discussion, and/or conciliation by the Commission, must occur before the Commission can arbitrate, the parties cannot agree to arbitration occurring before those steps have been taken. It would also mean that if the dispute resolution term provides that it applies only to disputes of a defined character, then the parties could only agree to arbitrate disputes of that character. However, subject to this qualification, s 739(4) on its ordinary meaning empowers the Commission to arbitrate the dispute once the requisite agreement exists."

• [72] I am also satisfied the Commission's arbitral powers can extend to other agreed matters between them, where they have agreed for the Commission to exercise powers of Private Arbitration.

• [73] The starting point to reaching this conclusion is s. 186 of the FW Act which provides the statutory requirement for when the FWC must approve an enterprise agreement - general requirements. Relevantly s. 186(6)(a) provides the Commission "must be satisfied that the agreement includes a term that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:"

• [74] Notably, s. 186 does not require a term allowing for the settlement of disputes to provide for arbitration. Conciliation, mediation or other non-binding provisions are sufficient.[26] Nor does it limit the functions of dispute settlement to the Commission. Other independent persons can be authorised to settle their disputes. It also does nothing to prevent the parties to the agreement to limit their agreement on how, and by whom, disputes between them may be independently settled to matters arising under the agreement or the NES. A dispute procedure can authorise the FWC or other independent person to determine disputes about any other industrial matters.[27]

• [75] As identified above, s. 738 of the FW Act 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). Notably, section 738(a) provides the same with respect to modern awards, and s. 738(c) applies where a contract of employment or written agreement includes such a term, to the extent the dispute is about any matters in relation to the NES or safety net contractual entitlements. Section 739 applies where the FWC is the person empowered to resolve the dispute. Section 740 applies if a person other than the FWC is authorised.

• [76] In Boral Resources (NSW) Pty Ltd v Transport Workers Union of Australia[ ][2010] FWCFB 2828 Ibid. the Full Bench in a matter concerning the exercise of private arbitral powers by the Commission's predecessor in a s.240 application considered the construction of s. 186(6) and scope of the Commission's powers to arbitrate disputes under s. 738. In that case, it was held the statutory power existed to the extent the matters existed were within the ambit of "permitted matters" under the Act as it was then.[29] Affirming this view, aptly to this matter, the Bench said:

"It is a matter of common experience that disputes can arise between an employer and employees bound by an enterprise agreement that manifestly pertain to the employment relationship but are about matters that are not dealt with, or otherwise regulated in the enterprise agreement, typically because the circumstances giving rise to the dispute were not contemplated at the time the agreement was made. The construction advanced by Boral would leave such disputes without any mechanism by which they could be addressed by denying parties to a proposed agreement the option of including a term in their agreement that allows Fair Work Australia to resolve such disputes by whatever means therein agreed."[30]

• [77] Applying these principles to the matter before me I am satisfied that the parties have conferred a power of private arbitration to the Commission that it has been empowered by the statute to exercise. This is of the ordinary terms in clause 3 and clause 10 of the Agreement reached between them.

• [78] Ultimately, the answer to this question is No.[31]

• [79] While I am satisfied that the terms of the agreement between the parties in this matter provide a right for the parties to bring disputes about non-referred matters to the Commission pursuant to clause 10 of the Agreement, this right cannot extend to an exercise of arbitral powers by the Commission.

• [80] I have set out above the rules governing the Commission's exercise of its statutory arbitral powers provided by s. 738(b). These rules apply with respect to any exercise of the Commission's arbitral powers given to it by parties to an enterprise agreement and are set out in s. 739.

• [81] Critically, in this case s.739(5) limits any arbitral decision of the Commission to matters that are consistent with the FW Act as follows:

"Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties."

• [82] It is not in dispute the clear function of the FWCP Act is the inclusion of the employment relationships between Victoria Police and its employees within the scope of the FW Act. It is equally, not in dispute that this inclusion does not extend to excluded matters.

• [83] The Applicant accepts this dispute is about a matter that has been excluded from the operation of the FW Act by the terms of the Referral Act.

• [84] The Oxford Dictionary defines inconsistent to mean "not staying the same throughout", "not compatible or in keeping with".

• [85] Plainly an arbitral decision of the Commission about a non-referred matter would not be consistent with FW Act as non-referred matters have been explicitly excluded from the operation of the Act. Or put another way, there is no power in the statute for the Commission to exercise a power of private arbitration over non-referred matters.

• [86] While I have found the Commission has jurisdiction to otherwise "deal with" this dispute, the Commission cannot make a decision about the substantive dispute between the parties.

[1] See Respondent's submission on jurisdiction, [1]-[5], Court Book page 89.

[2] See Respondent's outline of submissions on jurisdiction at [3], Court Book page 89.

[3] To the degree the type and nature of the "agreement" between the parties to trial the DEOI process is a question of fact, that parties agreed to reserve their positions on this question to the initial question of the arbitral powers of the Commission have been determined. See PN [104]-[107].

[4] See Applicant's outline of submission [46]-[47], Court Book page 11.

[5] See Respondent's submissions in reply [4]-[8], Court Book page 98 - 99.

[6] See Application by Parks Victoria [2013] FWCFB 950 cited in Respondent's submission on jurisdiction at [39], Court Book page 96.

[7] Respondents reply submissions on jurisdiction at [7] citing PFA submissions at [36], Court Book page 99.

[8] Ibid. See also - Construction Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2002) CLR 645.

[9] See Respondent's submission on jurisdiction [16]-[20], Court Book page 92.

[10] See Applicant's submission on jurisdiction at [35]-[38] Court Book page 95.

[12] Applicant's submission on jurisdiction at [42]-[47], Court Book page 10 - 11.

[13] United Firefighters Union of Australia v Country Fire Authority [2015] FCAFC.

[14] See Applicant's submission on jurisdiction [30]-[34], Court Book page 8 - 9.

[15] See Re Australian Education Union & Australian Nursing Federation; Ex Parte Victoria [1995] HCA 71.

[16] AMWU v Berri Pty Ltd FWCFB 3005.

[17] See Respondent's submission on jurisdiction at [24]-[30], Court Book page 93 - 94.

[18] [2000] FCA 253; (2000) 96 FCR 570.

[19] See Respondent's submission on jurisdiction [37], Court Book page 95.

[20] Parks Victoria [2013] FWCFB 950; Dempster v Comrie [2000] FCA 253; (2000) 96 FCR 570.

[21] See Respondent's submissions on jurisdiction at [43] citing DP Bell in Police Federation of Australia (Victoria Police Branch) v Victoria Police/Chief Commissioner of Police at [105], Court Book page 97_._

[22] Respectively DP Bell considered clauses concerned with medical discharge grounds and the Federal Court consider alleged contraventions of Commonwealth Freedom of Association provisions.

[23] As cited in Falcon Mining [2022] FWCFB 93 at [60].

[24] See DP Bell in Police Federation of Australia (Victoria Police Branch) v Victoria Police/Chief Commissioner of Police at [15] citing Parks Victoria.

[26] Woolworths Ltd trading as Produce v Recycling Distribution Centre [2010] FWAFB 1464; 192 IR 124.

[27] Boral Resources (NSW) Pty Ltd v Transport Workers Union of Australia [2010] FWAFB 8437; 202 IR 135.[ ]

[31] Noting this conclusion is consistent with the authorities cited in this decision, albeit for different reasons.

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