Navigating Intractable Bargaining: Key Takeaways from the FWC’s Victoria Police Decision

| April 1, 2025

A recent decision by the Fair Work Commission (Commission) in the case of Chief Commissioner of Victoria Police T/A Victoria Police v Police Federation of Australia & Ors (B2024/1282) [2025] FWC 1 (Victoria Police Case), has shed light on how intractable bargaining applications are assessed and what this means for employers engaged in enterprise negotiations. The case, involving Victoria Police and the Police Federation of Australia (PFA), provides a clear framework on when and how the Commission may intervene in bargaining disputes. Below, we outline the decision’s findings and discuss the practical implications for employers. 

Background of the Dispute

Victoria Police and the PFA had been negotiating a new enterprise agreement covering nearly 18,000 police members. After extensive discussions, including a phase where an in‐principle agreement (featuring proposals such as a 9-day fortnight roster and wage increases) was reached, the proposed deal was rejected by a significant majority of employees in a ballot. In the aftermath, while protected industrial action commenced, Victoria Police applied for an intractable bargaining declaration under the Fair Work Act 2009 (the Act). This declaration, if granted, would have transferred the bargaining process to the Commission for arbitration and removed the possibility for further protected industrial action. 

Legal Framework and Key Findings

The decision provides important guidance on the statutory requirements and evaluative criteria used by the Commission when considering intractable bargaining applications:

1. Statutory Requirements 

Under sections 234 and 235 of the Act, a valid application must satisfy three (3) key elements: 

• Participation in Dispute Resolution: The applicant must show that the Commission’s processes (such as a s.240 dispute conference) have been utilised. In this case, all parties participated in a full-day s.240 conference, satisfying this requirement. 

• No Reasonable Prospect of Agreement: The Commission must be satisfied that, without intervention, it is rationally improbable that the parties will reach a negotiated agreement. 

• Reasonableness in All Circumstances: The decision must account for the views of all bargaining representatives and the overall context of the dispute. 

2. Evaluating the Prospects of Agreement 

A central issue was whether there was truly “no reasonable prospect” of an agreement. Despite: 

• Prolonged negotiations over 16 months and 117 meetings, 
• An in‐principle agreement that was ultimately voted down, and 
• The escalation of protected industrial action. 

The Commission found that these factors did not conclusively rule out the possibility of future agreement. In particular, the following points were crucial: 

• Historical Bargaining Success: Despite challenging circumstances, the parties had previously reached agreements in similarly complex negotiations. 

• Impact of the No Vote: Although the ballot produced a 57% “No” majority, the relatively close margin (57% to 43%) and the diversity of employee views indicated that the rejection did not definitively signal that all prospects for agreement were exhausted. 

• Flexibility in Claims: The Commission noted that while certain proposals (such as the controversial 9×9 roster) had been heavily contested, subsequent revisions by the PFA suggested that there might be room for further negotiation. 

• Role of Protected Industrial Action: While industrial action can be a legitimate bargaining tool, its limited impact especially when measures are in place to safeguard essential services did not automatically render bargaining intractable. 

3. Discretionary Nature of Intractable Bargaining Declarations 

The decision reinforces that an intractable bargaining declaration is not a foregone conclusion once negotiations stall. Even when one party argues that positions are irreconcilable, the Commission must weigh: 

• The actual evidence of bargaining progress, 
• The willingness of the parties to negotiate further, and 
• Broader contextual factors such as fiscal constraints and public sector policies. 

Ultimately, the Commission exercised its discretion and dismissed the application, finding that there remained a reasonable prospect for agreement. 

What Employers Need to Know

For employers, this decision offers several important takeaways: 

Engage Fully in Dispute Resolution: Participation in structured processes (such as s.240 conferences) is critical. Even if negotiations are difficult, active engagement can help avoid premature declarations of intractability. 

Understand the Benchmarks: The “no reasonable prospect” standard is not absolute. Employers should document their negotiation efforts and the evolution of proposals to demonstrate continued willingness to reach an agreement. 

Recognize the Role of Industrial Action: Protected industrial action is a recognised part of collective bargaining. Its occurrence does not necessarily tip the balance toward intractability, especially when safeguards ensure that essential services continue uninterrupted. 

Be Mindful of Context: Factors such as financial constraints, adherence to public sector wages policy, and historical bargaining outcomes will be taken into account. Employers should be prepared to explain how these factors affect their bargaining position. 

Flexibility and Compromise: A willingness to revisit and revise positions even after setbacks such as a No vote can signal to the Commission that an agreement remains within reach. 

Final Thoughts

The decision is instructive for employers navigating complex enterprise bargaining situations. While lengthy and contentious negotiations may strain relationships, the threshold for declaring bargaining intractable remains high. Employers should continue to engage in dispute resolution processes, maintain comprehensive records of their negotiation efforts, and remain open to further dialogue. By understanding the statutory framework and the Commission’s evaluative approach, employers can better position themselves to manage bargaining challenges effectively.

At IRiQ Law, we specialise in supporting employers through enterprise agreement negotiations, ensuring every term is compliant, strategic, and fit-for-purpose. Contact us for expert legal advice tailored to your business.