(C2020/6810) [2021] FWC 1101

1 Fair Work Act 2009 (C2020/6810) DEPUTY PRESIDENT COLMAN MELBOURNE, 1 MARCH 2021 Application under dispute resolution procedure in an enterprise agreement – jurisdictional objection upheld – application dismissed [1] This decision concerns an application made by the Police Federation of Australia (PFA) under s 739 of the Fair Work Act 2009 (Act) and the dispute resolution procedure in clause 10 of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (2019 Agreement). The dispute concerns four officers whose positions are considered by Victoria Police to be subject to ‘maximum time in position’ (MTIP) and whom Victoria Police proposes to transfer out of those positions. The PFA contends that the application of MTIP to those officers and the proposed transfer of the officers out of the positions is inconsistent with the 2019 Agreement. It seeks a determination from the Commission that Victoria Police must cease all action to transfer the officers and acknowledge that MTIP will not be applied to their positions. [2] Victoria Police objects to the application on two jurisdictional grounds. First, it contends that the Commission does not have power to deal with the application because although it is purported to be brought under the 2019 Agreement, the dispute in fact and substance relates to matters arising under an earlier enterprise agreement, the Victoria Police (Police Officers (Excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 (2015 Agreement), which applied when the four officers were placed in their current positions. [3] Secondly, Victoria Police contends that in any event, clause 10 of the 2019 Agreement does not confer power on the Commission to resolve the present dispute, because it falls within two exclusions to the application of the dispute resolution procedure that are specified in clause 10.2: it relates to a ‘matter contained in clause 11’ of the 2019 Agreement; and the members concerned have ‘a statutory right of review’ under the Victoria Police Act 2013 (Vic) (VP Act). [4] The background to the dispute may be summarised as follows. In 2015, the Victorian Government announced that Victoria Police would establish a specialist unit called the Sex Offender Specialist Response Unit, or ‘SOSRU’. The unit has since been renamed the [2021] FWC 1011 [Note: An appeal pursuant to s.604 (C2021/1534) was lodged against this decision - refer to Full Bench decision dated 16 July 2021 [[2021] FWCFB 4161] for the result of the appeal.] DECISION s.739—Dispute resolution The Police Federation of Australia (Victoria Police Branch) v Victoria Police -- 1 of 11 -- [2021] FWC 1011 2 Supervision Order Specialist Response Unit but remains known by the same acronym. SOSRU was established with some urgency. Positions in the unit were not advertised and no selection process occurred. Instead, police officers were transferred into SOSRU pursuant to Regulation 11 of the Victoria Police Regulations 2013 (Vic) (Regulations), which is enabled by section 33 of the VP Act. [5] On 15 November 2015, Detective Senior Constable Paterson and Detective Senior Constable Goddard were transferred to SOSRU. On 1 December 2015, Detective Senior Constable Vincent was transferred to the unit. And on 9 May 2017, Detective Senior Constable Ross was transferred to SOSRU. These are the four members of the PFA whose circumstances are the subject of the present dispute (affected members). [6] At the time the affected members were transferred to SOSRU, the 2015 Agreement was in operation and relevantly provided: “19.7 A maximum time in position period must be specified in the advertisement and may be set: (a) in exceptional circumstances where the duties are highly sensitive, involve high risk to security or safety, or are difficult to fill; or (b) where the position requires contemporary operational experience, knowledge or expertise; or (c) where the work is such that extended periods of time in that position could adversely impact on the individual or the organisation. 19.8 Maximum time in position requirements will be specified on the relevant position description and can only apply after approval by the head of the Human Resource Department. 19.9 On reaching the maximum time in position, the owner will be required to vacate the position and will be unattached and declared surplus in accordance with clause 23. Where an employee has not been required to vacate their position 6 months after reaching their maximum time in position, they will not be required to vacate the position at a later date on the grounds of their having reached maximum time in position.” [7] The affected members contend that they were not told that their positions in SOSRU were subject to MTIP until 5 April 2018, and that when they were told, they objected. On 4 May 2018, the PFA wrote to Victoria Police on behalf of the affected members, stating that the positions were not validly subject to MTIP, because clause 19.7 of the 2015 Agreement required that any MTIP ‘must be specified in the advertisement’ for the position, and that as there had been no advertisement for the positions, this requirement had not been met. The PFA asked that the MTIP for the positions be revoked. On 9 June 2018, Victoria Police replied to the PFA, stating that investigator positions such as those in the SOSRU had been subject to MTIP requirements since 2002, and that the affected members were transferred to SOSRU under Regulation 11, such that no advertisement for the positions was required. Victoria Police considered that clause 19.7 did not require positions to be advertised, but -- 2 of 11 -- [2021] FWC 1011 3 instead mandated that, if a position was advertised, MTIP must then be specified in the advertisement. [8] There followed further correspondence between the parties about this matter. On 13 June 2019, the PFA lodged a dispute on behalf of the affected members under s 739 of the Act and the dispute resolution procedure in the 2015 Agreement (C2019/3639). The PFA contended that the affected members were not subject to MTIP and could not be transferred out of their SOSRU positions. The Commission convened a conference, but the application did not proceed to arbitration and the file was closed. [9] It is common ground that the 2015 Agreement ceased to operate on 1 April 2020, when the 2019 Agreement came into operation. The new agreement made certain changes to the arrangements relating to MTIP. Clause 19.7 of the 2019 Agreement now expressly addresses what will occur if a position is not advertised. It reads: “19.7 Maximum time in position period can only apply if it is specified in the advertisement. If a position is not advertised, maximum time in position can only apply if the employee transferred into the position is advised of the maximum time in position requirement and acknowledges it in writing prior to the transfer. 19.8 Maximum time in position may be set: (a) in exceptional circumstances where the duties are highly sensitive, involve high risk to security or safety, or are difficult to fill; or (b) where the position requires contemporary operational experience, knowledge or expertise; or (c) where the work is such that extended periods of time in that position could adversely impact on the individual or the organisation. 19.9 Maximum time in position requirements will be specified on the relevant position description and can only apply after approval by the head of the Human Resource Department. 19.10 Other than as provided for in clause 19.12 on reaching time in position, the owner will be required to vacate the position and will be unattached and declared surplus in accordance with clause 23. Where an employee has not been required to vacate their position 6 months after reaching their maximum time in position, they will not be required to vacate the position at a later date on the grounds of their having reached maximum time in position.” (Emphasis added) [10] On 4 September 2020, the PFA lodged its current application under s 739 of the Act and the dispute resolution procedure in clause 10 of the 2019 Agreement. Clause 10 is set out below, and of particular relevance is clause 10.2: “10. Dispute Resolution 10.1 For the purpose of this clause, party includes the PFA. -- 3 of 11 -- [2021] FWC 1011 4 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. 10.3 A party may choose to be represented at any stage by a representative, including a union representative or employer's organisation. 10.4 If the matter is not settled or if it is inappropriate for the dispute to be discussed at the workplace level, the employee(s) or their representative can request that the dispute be discussed with another employer-appointed representative for the purposes of this procedure. 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 dispute by arbitration. However, nothing in this clause prevents the parties from applying to the Fair Work Commission for, and the Fair Work Commission granting, interim relief, before the steps set out in this clause are exhausted. 10.7 The parties to the dispute and their representatives must act in good faith in relation to the dispute. 10.8 While a dispute is being resolved, work must continue according to usual practice, provided that this does not apply to an employee who has a reasonable concern about an imminent risk to the employee's health or safety and has advised the employer of this concern. The employer may direct an employee to perform different work or work at a different location, on full pay, if it is reasonable to do so to protect the safety, health or welfare of employees. 10.9 Any determination/decision including any interim determination/decision of the Fair Work Commission is binding upon the parties to the dispute and the parties agree to be bound by that determination/decision. 10.10 Any determination/decision including any interim determination/decision will be implemented. 10.11 An appeal lies to a Full Bench of the Fair Work Commission, with the permission of the Full Bench, against a determination/decision of a single member of the Fair Work Commission made pursuant to this clause. A dispute is not resolved until any appeal has been determined.” [11] Clause 10.2 does not explicitly state that the disputes procedure will apply only to disputes of the kind referred to in that subclause, but this is plainly the intention. The parties agreed that clause 10.2 sets the scope of the procedure. The subsequent references to ‘dispute’ in the clause logically refer back to clause 10.2. In particular, clause 10.6 provides that if the -- 4 of 11 -- [2021] FWC 1011 5 ‘dispute’ is not resolved by conciliation, a party may request the Commission to deal with the dispute by arbitration. ‘Dispute’ means a dispute referred to in clause 10.2. [12] In its application under s 739 of the Act, the PFA set out at question 2.1 of the F10 document its description of what the dispute was about. The PFA recounted the essential background set out above, including details of the establishment of the SOSRU in August 2015, the transfer of the four members to that unit in 2015 and 2017 respectively, the advice provided by Victoria Police to the affected members in May 2018 that their positions were subject to MTIP, and the subsequent correspondence between the PFA and Victoria Police. The PFA also stated in its application that the 2019 Agreement had come into operation, that the negotiations for the new agreement had considered the ‘SOSRU matter’ and that the new agreement ‘reflects those discussions’. The relief sought by the PFA is that the Commission direct Victoria Police to ‘cease all actions to transfer the members out of their positions at SOSRU’, and to provide the members with an acknowledgement that ‘MTIP will not be applied to their position’. [13] The transfer of the affected members was scheduled to commence in November 2020. This has been deferred pending the outcome of these proceedings. The application was listed for a jurisdictional hearing before me on 25 February 2021. Contentions of the parties [14] The primary contention of Victoria Police was that although the PFA has purported to bring the dispute under the 2019 Agreement, the dispute was not ‘about a matter arising under this Agreement’, as required by clause 10.2, but was instead about a matter arising under the 2015 Agreement. Victoria Police contended that the affected members were transferred to SOSRU in 2015 and 2017, and that MTIP was applied to the positions from these times, when the 2015 Agreement was in operation. It said that the dispute was really about whether the attachment of MTIP to the positions accorded with the terms of the 2015 Agreement. [15] Victoria Police submitted that it was absurd for the PFA to suggest that clause 19.7 of the 2019 Agreement imposed obligations on it in relation to the setting of MTIP for the affected members, because the clause did not exist at the time when that occurred. Further, it submitted that there is no clause in the 2019 Agreement which concerns the application or effect of MTIP that was attached to positions before the 2019 Agreement was made, nor is there any provision that gives clause 19.7 retrospective effect. To the extent that the PFA might seek to have the Commission deal with the dispute under the dispute resolution procedure in the 2015 Agreement, Victoria Police submitted that such a course is foreclosed because, as the Full Bench determined in Simplot Australia Pty Ltd v AMWU [2020] FWCFB 5054, the Commission has no authority to deal with a dispute under an enterprise agreement that has ceased to operate. [16] Victoria Police contended that, even if the present dispute were considered to concern a matter arising under the 2019 Agreement, the Commission would still have no power to deal with it, because the dispute falls within both of the exclusions in clause 10.2. First, it said that the dispute is about ‘a matter contained in clause 11’. That clause sets out the disputes that are to be heard by the Police Registration and Services Board (PRSB), which include any dispute about the ‘directed placement of a surplus employee in accordance with clause 23’ (clause 11.1(d)). Victoria Police submitted that clause 19.10 of the 2019 Agreement will -- 5 of 11 -- [2021] FWC 1011 6 require the affected members to vacate their positions, and that they will be unattached and declared surplus in accordance with clause 23, leading to a directed placement: a dispute about this can be brought to the PRSB. [17] Secondly, Victoria Police submitted that the affected members have a statutory right of review under the VP Act, which, as clause 10.2 clearly states, precludes their use of the disputes procedure in the 2019 Agreement. Victoria Police said that the affected members were transferred into their positions under the transfer powers conferred on the Chief Commissioner of Police (CCP) under the VP Act and Regulations, and that they will be transferred out of those positions under the transfer power in section 33 of the VP Act and Regulation 11. It contended that section 146(1)(h) and (i) of the VP Act confers power on the PRSB to review any transfer decisions and determine whether the transfer is harsh, unjust or unreasonable (s 153 of the VP Act). Therefore the members have ‘a statutory right of review’ to dispute their transfer out of the SOSRU positions. For these reasons, Victoria Police contended that the Commission had no jurisdiction to determine the PFA’s application and that the application should be dismissed. [18] The PFA contended that the dispute is indeed one about a matter arising under the 2019 Agreement, as it concerns Victoria Police’s imposition of the MTIP as a ‘bar’ or ‘prohibition’ on the officers remaining in their positions, and that the bar or prohibition is being applied now. It submitted that this is contrary to the terms of clause 19.7 of the 2019 Agreement, because the clause sets preconditions for the application of MTIP, and these have not been met. [19] The PFA contended that the terms of clause 19.7 of the 2015 Agreement were altered in the course of bargaining for the 2019 Agreement to address the circumstances of the current dispute and the question of how MTIP could be imposed in cases where the positions in question were not advertised. The PFA said that the parties amended the wording of clause 19.7 to make clear what should occur in such a situation. [20] The PFA said that Victoria Police was wrong to contend that the 2019 Agreement could not have retrospective effect, and that clause 19.7 by its very nature has retrospective effect, in that, if the precondition has not been met, MTIP cannot later be enforced, and a member resisting transfer on this basis can rely on the ‘retrospective’ operation of the Agreement. [21] The PFA further submitted that the practical effect of Victoria Police’s interpretation of clause 19.7 was that the provision can do no work until three years after the commencement of operation of the 2019 Agreement, because the minimum MTIP is 3 years, and officers could not use clause 19.7 to resist transfer from a position subject to MTIP until 1 April 2023. It contended that an interpretation producing such an unreasonable result should be avoided. [22] The PFA contended that neither of the exclusions in clause 10.2 applied to the dispute. First, the PFA said that clause 19.7 is not one of the matters referred to in clause 11. Secondly, it submitted that, although s 33 of the VP Act confers on the CCP power to transfer members, this power is subject to the limitations placed on it by the 2019 Agreement. It said that clause 11 of the 2019 Agreement provides a dispute mechanism in respect of the exercise of some of the CCP’s transfer powers, but disputes concerning the others are to be dealt with under the general dispute resolution provision in clause 10 of the Agreement. The PFA -- 6 of 11 -- [2021] FWC 1011 7 contended that clauses 10 and 11 preclude a statutory right of review under the VP Act in respect of the present dispute. It also submitted that any right of review would relate to the transfer of the affected members out of their positions, not the application to them of MTIP, and that it was therefore not relevant for the purpose of the second exclusion in clause 10.2. Consideration [23] In order to determine whether the dispute is ‘about any matter arising under this Agreement’, so as to fall within the scope of clause 10.2, it is necessary to characterise the dispute. The PFA said that the dispute concerns the imposition of MTIP by Victoria Police, which is a ‘bar or prohibition’ on the officers remaining in their positions and that this bar is being imposed now. [24] In my view, this mischaracterises the dispute. It is not correct to say that Victoria Police is seeking to impose MTIP on the effected members. Rather, Victoria Police proposes to transfer the members out of the SOSRU because the maximum time in position that was previously imposed has elapsed. MTIP was attached to the positions on or before 5 April 2018, the date when the members were explicitly told that their positions would be subject to MTIP. The PFA’s own submissions recognised this. They contended that it was not open to Victoria Police to impose MTIP on the members’ positions in 2018, because clause 19.7 of the 2015 Agreement required MTIP to be notified in the position advertisement. Further, it will be recalled that in its letter to Victoria Police of 4 May 2018, the PFA asked that the MTIP that had been imposed on the affected members’ positions be revoked. Clearly, Victoria Police is not imposing MTIP now. What is to occur now is the consequence of the earlier attachment of MTIP to the positions concerned, namely the transfer of the affected members out of those positions. The issue that is fundamentally in contest is whether the affected members’ positions were properly made subject to MTIP in 2015 and 2017 (or earlier, according to Victoria Police), before the 2019 Agreement was made. [25] The PFA also contended that the dispute was about whether it was permissible under the 2019 Agreement for Victoria Police to give effect to the MTIP of the affected members’ positions. It argued, in effect, that clause 19.7 of the 2019 Agreement regulated not only the manner in which MTIP could be attached to positions under the 2019 Agreement, but also the manner in which MTIP requirements imposed under the previous agreement would now be treated under the present agreement. [26] During the hearing I noted that, generally speaking, arguments about the meaning of clause 19.7 would go to the merit of the PFA’s application rather than the Commission’s power to hear it, but that it was nevertheless relevant for the Commission to consider, in assessing the jurisdictional objection, whether an interpretative argument put by the PFA was plausible, because if it was not, there could be no genuine dispute about the matter. In my view, the argument that clause 19.7 of 2019 Agreement applies to MTIP arrangements made before the 2019 Agreement commenced to operate is untenable, for the following reasons. [27] The new clause 19.7 in the 2019 Agreement states that MTIP ‘can only apply if it is specified in the advertisement’, or if the employee ‘is advised of the maximum time in position requirement and acknowledges it in writing prior to the transfer’ (emphasis added). The use of the present tense clearly connotes that the new MTIP rules apply to the setting of MTIP for positions from the commencement of the 2019 Agreement. The PFA reads clause 19.7 as if it stated that MTIP can only apply ‘if it was specified in the advertisement’, or if the employee -- 7 of 11 -- [2021] FWC 1011 8 ‘was advised’ of the MTIP. But the clause does not say this. The ordinary grammatical meaning of the provision clearly connotes prospective, not retrospective operation. [28] The context of the clause is consistent with this interpretation. Clause 19.7 refers to when MTIP ‘can apply’, which connotes continuing effect or validity, however the conditions it introduces focus on the ways in which MTIP may be attached to positions. These occur at specific points in time: the time when a position is advertised, and the time prior to an employee’s transfer to a position. This suggests that the choice of tense - the grammatical form of a verb used to indicate the time of an action - was deliberate. I note that the verbs ‘specify’ and ‘advise’ appear as past participles, but this reflects the use of the present tense in a passive construction: ‘is specified’, ‘is advised’, employs the present tense in the passive voice. [29] Had the new MTIP rules in the 2019 Agreement been intended to apply to MTIP periods that were imposed before the 2019 Agreement commenced, clause 19.7 could have simply used the past tense, or explained that it was to have retrospective effect, for example by stating that any MTIP set previously is no longer valid unless the position was advertised or the employee was advised of the MTIP at the time. Moreover, had it been intended that clause 19.7 would invalidate past MTIP arrangements, one would expect the clause to have said so expressly. [30] The PFA submitted that the circumstances of the present dispute were considered by the parties in negotiations for the 2019 Agreement. Clearly the parties intended to introduce new MTIP rules and did so, but there is no basis to conclude that they intended the rules to apply to the past. The PFA contends that this was its intention. However, it is not the subjective intention of one party that is relevant to the interpretation of an agreement, but the objectively manifested, common intention of all parties. The PFA did not refer to any evidence of common intention that the new rules would apply retrospectively. I appreciate that the PFA might have sought to lead such evidence if the matter had proceeded beyond the jurisdictional hearing. But I consider that clause 19.7 has a very plain meaning, which is the meaning contended for by Victoria Police. Where the terms of an enterprise agreement have a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement (see AMWU v Berri Pty Ltd [2017] FWCFB 3005 at [114], point 9). [31] The PFA contended that a conclusion that clause 19.7 of the 2019 Agreement does not apply to MTIP imposed before the agreement commenced to operate would mean that clause 19.7 can do no work until 2023. This is wrong. Since the commencement of the 2019 Agreement, the clause has been hard at work. Victoria Police has not been able to set a valid MTIP unless it complies with the new MTIP rules. This is a benefit that all officers have enjoyed since the commencement of the 2019 Agreement. From that time, the new MTIP rules in clause 19.7 have meant that any officer who is transferred to a position knows that MTIP can only apply if the new requirements are met. It is simply not correct to say that clause 19.7 will do no work until the point in time when a member might wish to invoke the clause to resist a transfer out of an MTIP position. Furthermore, there is no reason to think that an officer will need to rely on the new rules to resist a transfer, because the rules speak for themselves. Where the new MTIP rules have not been followed, Victoria Police will presumably not later seek to transfer an officer out of the position concerned on the basis of MTIP, because to do so would be a clear breach of clause 19.7 of the 2019 Agreement and s 50 of the Act, which could lead to proceedings for injunctions and penalties in a court. The -- 8 of 11 -- [2021] FWC 1011 9 real work of the clause is to prescribe the new rules for setting MTIP, which operate prospectively. [32] The PFA said that the effect of Victoria Police’s argument was that the Commission has no jurisdiction to deal with disputes which have their origin in times before the commencement of the agreement. This is not the case. Whether disputes about or connected to past matters fall within the scope of a dispute resolution procedure will simply depend on the terms of the provision and the facts of the case. In addition, I would note that the disputes procedures of some enterprise agreements expressly allow for disputes about matters that arose under earlier agreements to be determined by the Commission. But that is not the case here. [33] The PFA submitted that clause 19.7 is intrinsically retrospective because on any view it prescribes a precondition for validity, and if the precondition is not met, the consequence will be invalidity, by reason of what has occurred in the past. I reject this argument. This is not retrospectivity. Retrospectivity is the application of a rule to a time before the rule existed. Clause 19.7 is not intrinsically retrospective. It sets conditions, and if they are not met, there are consequences. What the PFA seeks to argue is that the new rules about the application of MTIP in clause 19.7 apply retrospectively to the setting of MTIP in the past, before the 2019 Agreement was even made. A clause can provide for retrospective effect. But clause 19.7 simply does not do so. [34] As to the decision in Maersk, I note that in the passages referred to by the PFA, the Court concluded that certain requirements in the disputes procedure in the relevant enterprise agreement could be satisfied by steps that had been taken before the agreement came into operation; the clause did not require the parties to restart the process. However, the terms of that agreement, and the Court’s interpretation of them, are not relevant to the present matter. [35] Even if the present dispute had been one that related to a matter arising under the 2019 Agreement, I consider that it would have fallen within both of the exceptions in clause 10.2. First, in my view the dispute would have been one that was about ‘a matter contained in clause 11’. It will be recalled that this clause sets out the disputes that are to be heard by the PRSB, and that one of these matters is the ‘directed placement of a surplus employee in accordance with clause 23’ (clause 11.1(d)). Clause 19.10 provides that, on reaching time in position, the officer will be required to vacate the position, and that the officer will be declared surplus in accordance with clause 23. The subsequent ‘directed placement’ of the officers under clause 23 is a matter covered by clause 11 and is therefore excluded from the scope of the dispute resolution provision in clause 10.2. [36] The PFA submitted that clause 11 does not specifically refer to a dispute about MTIP, and that this is distinct from any dispute that might later arise about directed placements or transfers of the officers. In my view, this is an artificial distinction. The affected members are concerned about their transfer out of the SOSRU. Indeed, the PFA’s applications asks the Commission to direct Victoria Police not to transfer the officers. [37] Secondly, I consider that the dispute also falls within the second exclusion in clause 10.2. The affected members have a statutory right of review under the VP Act. Section 146(1) of the VP Act states that a police officer may apply to the PRSB for review of a decision of the CCP to make a directed transfer under s 35 of the VP Act (s 146(1)(h)), or ‘to otherwise compulsorily transfer the officer’ (s 146(1)(i)), which includes a transfer under s 33. There is -- 9 of 11 -- [2021] FWC 1011 10 nothing in the 2019 Agreement that suggests that the power of the CCP to transfer officers under s 33 of the VP Act, or the ability of affected officers to ask the PRSB to review a transfer decision, is curtailed. I note that clause 11 commences by stating that ‘(i)n addition to any rights of appeal addressed under the VP Act’, disputes in relation to the matters that follow will be referred to the PRSB by the CCP. Statutory rights of review in respect of matters not covered by clause 11 are expressly preserved. [38] I reject the PFA’s contention that any statutory right of review in respect of a decision to transfer the members out of their positions is not a right of review that is presently relevant for the purpose of the second exception in clause 10.2. Again, the PFA’s distinction between a dispute about the application of MTIP and the transfer that follows it is one without substance. The PRSB can review and determine whether the affected members’ transfer out of their positions following the end of the MTIP is harsh, unjust or unreasonable. This is a right of a review that goes to the essence of the members’ concern: they wish to stay in their current positions. In the context of the current dispute, this is clearly a relevant statutory right of review. It does not matter that the review is not stated to be specifically in relation to the application of MTIP. Because the members can available themselves of this statutory right of review, the exception in clause 10.2 of the dispute resolution applies. It was clearly the intention of the clause that a person who has a right of review in respect of a matter cannot bring a dispute about that matter under the dispute resolution procedure in clause 10 of the 2019 Agreement. [39] I have some sympathy for the affected members. They maintain that they did not know that their SOSRU positions would be subject to MTIP when they transferred to the new unit in 2015 and 2017. But the role of the Commission in the present matter is the role conferred on it by clause 10.2 in the 2019 Agreement. The clause does not allow the Commission to resolve any dispute brought before it. It is only disputes of the kind referred to in clause 10.2 that the Commission may determine. Moreover, the Commission must determine any such dispute in accordance with the terms of the Agreement (see s 739(5)), not simply by reference to its own views of what might be fair in all the circumstances. Conclusion [40] The dispute is not about a matter arising under the 2019 Agreement. Even if it had been such a dispute, it is one about a matter contained in clause 11, and the members concerned also have a relevant statutory right of review under the VP Act. For these reasons, the dispute is not one that falls within clause 10.2 of the 2019 Agreement and the Commission has no authority to arbitrate it. The jurisdictional objection is upheld, and the PFA’s application under s 739 of the Act is dismissed. DEPUTY PRESIDENT Appearances: N. Baldini for the Police Federation of Australia -- 10 of 11 -- [2021] FWC 1011 11 K. Kwas for Victoria Police Hearing details: 2021 Melbourne 25 February Printed by authority of the Commonwealth Government Printer <PR727388> -- 11 of 11 --