INTERPRETATION OF THE WESTERN AUSTRALIA POLICE FORCE INDUSTRIAL AGREEMENT 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00070

DELIVERED : WEDNESday, 14 February 2024

FILE NO. : P 1 OF 2023

Applicant

AND

Commissioner of Police, Western Australia Police Force

Respondent

CatchWords : Industrial Law (WA) – s 46 – Interpretation of industrial agreement – Western Australian Police Force Industrial Agreement 2022 – Overtime – Meaning of ‘all time worked’ – Whether time spent travelling to international destination is ‘time worked’ – Police Force Regulations 1979 – ‘Time worked’ is time on duty – Whether instruction means officer is on duty is question of fact – No declaration made – Application dismissed

Legislation : Industrial Relations Act 1979 (WA)

Interpretation Act 1984 (WA)

Police Act 1892 (WA)

Police Force Regulations 1979 (WA) 

Result : Application dismissed

Representation:

Applicant : Mr S Farrell as agent

Respondent : Ms E Negus of counsel

Case(s) referred to in reasons:

Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435

Construction, Forestry, Maritime, Mining and Energy Union v Peabody Energy Australia PCI Mine Management Pty Ltd [2019] FWC 4641

Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd [2017] FWCFB 269; (2017) 262 IR 122

Harrod v Stabilised Pavements of Australia Pty Ltd [2023] FWC 1027

Re Harrison; Ex parte Hames [2015] WASC 247

Rohan v S&DH Enterprises [2022] WAIRC 00196

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) WAIG 366

The Hospital Employees’ Industrial Union of Workers WA v Lee Downs Nursing Home (1977) 57 WAIG 455

Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 113 IR 265

Western Australian Police Union of Workers v The Honourable Minister for Police (1981) 61 WAIG 1906

WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536

Reasons for Decision

1         Western Australian Police Union of Workers and the Commissioner of Police, Western Australia Police Force (Police Commissioner) are in dispute about whether the Union’s member, Sergeant Andrew Dueman, is entitled to overtime pay for certain times when he was on a flight from Perth to London and back, for work.

2         Under subclause 13.2(b) of the Western Australian Police Force Industrial Agreement 2022, overtime must be paid at the rate of time and one-half for the first three hours and double time thereafter.

3         Overtime is defined in subclause 13.2(a) of the Agreement:

13.2

(a) Overtime for localities or stations other than those determined by the Employer in clause 13.8 shall mean:

(i) all time worked in excess of 40 hours in a week on Operational Duties as defined in clause 6 – Definitions of this Agreement on weekly leave days;

(aa) In the case of Officers in Charge of positions detailed in Schedule H – OIC Salary Positions and receiving an OIC salary prescribed in clause 10 – Salaries, who shall have no fixed daily hours of duty.

(ii) all time worked in excess of 40 hours in a week or eight hours on any day in any other case for a full time Employee, except for those working ordinary hours of nine or 10 per shift or 80 hours over a fortnight as rostered and those working the arrangements provided in clause 13.2(c), Recruits in Training except as provided for at clause 17.18 – Additional Allowances, and Officers in Charge of positions in Schedule H – OIC Salary Positions who receive an OIC salary as prescribed in clause 10 – Salaries of this Agreement; and

(iii) all time worked in excess of 40 hours in a week or eight, nine or 10 hours on a day depending on the rostered shift in the case of a Part Time Employee except for the arrangements provided in clause 13.2(c).

4         What does subclause 13.2(a) mean when it refers to ‘all time worked’?

5         The Union says ‘all time worked’ has a broad meaning, that is, any time when an officer is performing duties required of them by WA Police. On this interpretation, it says travelling on flights and time spent at airports due to a requirement of WA Police must be ‘time worked’.

6         The Police Commissioner says the meaning of ‘all time worked’ is narrower, being confined to hours of duty as that concept is used in the Police Force Regulations 1979 (WA). On his interpretation, not every instance of flying or travelling to a location will be ‘time worked’, although on the facts of a particular case, it might be time worked. For example, if the officer is on duty to accompany a prisoner or dignitary, then the officer is working and the time is time worked.

7         The Union invoked s 46 of the Industrial Relations Act 1979 (WA) to resolve the question of the meaning of ‘all time worked’. Section 46 empowers the Western Australian Industrial Relations Commission (WAIRC) to declare the true interpretation of an award or industrial agreement that is in force, and where the declaration requires it, to vary any provision in the award or industrial agreement to remedy any defect or give fuller effect to the provision.

8         I am required to determine what is the correct meaning of ‘time worked’ in subclause 13.2(a) of the Agreement. Then I must decide whether to exercise my discretion to make a declaration as to that true meaning, which will then be binding on all courts and all persons with respect to the declaration’s subject matter, as stipulated by s 46.

Facts giving rise to the application

9         The Industrial Relations Commission Regulations 2005 (WA) require an application under s 46 to attach a statement of the facts giving rise to the application: regulation 52(1)(b). The relevant uncontentious facts are:

(a) The Union and the Police Commissioner are parties to the Agreement.

(b) The Agreement was registered under the Act and is currently in force.

(c) Sergeant Dueman is a member of the Union and is a serving, sworn police officer covered by the Agreement.

(d) In February and March 2023, Sergeant Dueman travelled to the United Kingdom for work, to showcase the benefits of living in and working as a police officer in Western Australia to police officers and their families in the United Kingdom.

(e) Sergeant Dueman flew from Perth to London on 23 February 2023 and returned to Perth on 9 March 2023. Each flight was a direct, non‑stop flight of about 18 hours.

(f) At the time of Sergeant Dueman’s travel, he was covered by the Western Australia Police Force Industrial Agreement 2021 (2021 Agreement).

(g) Sergeant Dueman and other officers who were on the UK trip were rostered to work ordinary hours while in transit and in the UK, and were paid ordinary time for those ordinary rostered hours.

Principles in s 46 applications

10      Section 46 of the Act empowers the WAIRC to declare the true interpretation of an industrial agreement on the application of any employer, organisation or association that is bound by it, while it is in force.

11      When s 46 is invoked, the WAIRC must ascertain whether the agreement is ambiguous, and if it is, resolve the ambiguity, in other words, construe the agreement. Her Honour Acting President Smith (as she then was) summarised the nature and purpose of s 46 in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) WAIG 366 at [100]:

From the authorities referred to above and the express provisions of s 46 and s 83 of the Act, the following principles emerge in respect of an award as defined in s 46(5):

(a) The power to interpret the true meaning of an award, pursuant to the power conferred by s 46, is to enable a determination of whether ambiguity arises and to resolve it, if it does.

(b) If a provision in question is capable in the ordinary sense of not having an ambiguous meaning, then consideration of the expressed or supposed intention of the provision does not fall to be considered under s 46.

(c) If a provision is found to be ambiguous, the Commission acting pursuant to s 46 can embark upon a fact‑finding exercise to determine the surrounding circumstances that existed when the award or industrial agreement was made. These surrounding circumstances can include ascertaining the object of the provision by:

(i) inquiring into the history of the award;

(ii) any established custom, practice or usage which led to the making of the award and any relevant established custom, usage and practice since the award was made.

(d) If ambiguity is found and after ascertaining the true meaning of the award and declaring its effect it is found the words in the provision in question are defective, in that the words do not put into effect or reflect that meaning or it is found that the words used require amendment to give fuller effect to the true meaning, the Commission is authorised to exercise arbitral power to amend the provision.

(e) The power to interpret an award or industrial agreement pursuant to s 46 of the Act is, except for the power to amend a provision in s 46(1)(b), merely declaratory and any declaration made cannot be made as an order to enforce a right.

(f) The determination of whether a particular employee has an entitlement pursuant to the provisions of an award is an enforcement matter in relation to which the Industrial Magistrate has exclusive jurisdiction to determine, pursuant to the power conferred by s 83 of the Act.

12      The principles that apply to construction of industrial instruments are well settled. The exercise involves objectively ascertaining the intention of the parties embodied in the words used in the instrument: Re Harrison; Ex parte Hames [2015] WASC 247 per Beech J at [50]. Where the particular kind of instrument being construed is an industrial agreement:

The starting point … is the ordinary meaning of the words, read as a whole and in context. The interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a ‘practical bent of mind’ and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.

WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] (citations omitted).

The application

13      The Union’s application defined the ‘Issues in Dispute’ as:

1. Do the overtime provisions contained in clause 13 of the 2022 Agreement apply when employees are travelling internationally on flights that are longer than eight hours in duration?

2. Is time spent at airports and flying internationally time worked?

14      The Police Commissioner’s counsel, Ms Emily Negus, correctly pointed out that the way the Union had articulated the issue was inaccurate and unhelpful because it did not connect the activities mentioned – travelling on flights and at airports – with work. On the face of it, it seeks an answer which would result in personal travel by an officer on annual leave to be overtime. While this is obviously not what the Union intended, it shows the tendency for the Union’s case to avoid tackling precisely what it is about the travel that makes it time worked.

15      Further, as articulated, the issue is not obviously one of construction of the Agreement, as opposed to the application of the words of the Agreement to particular facts.

16      The construction issue is simply: what is the meaning of ‘all time worked’ in subclause 13.2 of the Agreement.

17      The outcome sought by the Union was:

A declaration that time in excess of their rostered shift spent by police officers at airports and flying to overseas destinations is Overtime as contemplated by clause 13 of the 2022 Agreement.

18      The Union’s advocate, Mr Stephen Farrell, properly conceded that the declaration sought in the application was not one that flowed from the resolution of the construction issue that is before me. The Union, however, suggested that I should nevertheless make a declaration as to the meaning of ‘time worked’ for the purpose of clause 13 ‘Overtime’.

Is there ambiguity?

19      The fact that parties disagree about what is the correct interpretation of a provision does not necessarily mean that it is ambiguous. Equally, the fact that parties agree on a particular interpretation does not necessarily mean the provision is unambiguous. Still, it is useful in this case to tease out precisely where the parties differ in their contended for constructions, if they do really differ, to glean whether there is ambiguity.

20      The Union says that ‘time worked’ is performing whatever duties the Police Commissioner requires be done. It says, therefore, that time spent travelling on a flight to a destination where work is done is time spent working. It acknowledges that to arrive at the conclusion that time spent on a flight is time spent working, requires proof of factual matters. In particular, proof that the Police Commissioner required the relevant activity to be done. During the hearing, Mr Farrell accepted that I could not make a declaration merely that time spent on an international flight was time worked for the purpose of clause 13 of the Agreement. However, the Union sought:

…a declaration that time worked means time spent performing duties ‑ whichever duties the respondent directs police officers to perform… [ts 19]

21      Mr Farrell explained that in order to establish Sergeant Dueman’s entitlement to overtime, the Union would lead evidence in separate enforcement proceedings about:

…the direction issued to Sergeant Dueman about the requirements that were placed [on him].

And for example, the fact that the respondent chose the flights. The fact that the respondent paid for the flights...There are other matters…that would lead to the conclusion that the respondent directed Sergeant Dueman to be on that flight… [ts 19]

22      The Police Commissioner says that time worked is equivalent to being on duty, or carrying out active duty. The Police Commissioner acknowledges that its construction does not exclude the possibility that an officer’s time travelling on an international flight may be time worked, depending on the facts of the particular case.

23      Both parties articulate their contended for construction using the concept of ‘duty’. This is an example of the fraught nature of attempts to give meaning to words which can be done only by reference to other words, which in turn are capable of bearing different meanings.

24      As I understand it, when the Union refers to a police officer carrying out a duty they are required to carry out, they are using ‘duty’ to mean anything an officer is bound or obliged to do because they are a police officer and therefore required to follow lawful directions at all times.

25      For the Police Commissioner, the concept of being ‘on duty’ is best understood by reference to its opposite ‑ ‘off duty’ ‑ which is a defined period of time when an officer is not obliged to actively carry out policing, that is, activities to preserve peace and order and to prevent the commission of offences.

26      Both parties’ contended for constructions are open on the face of subclause 13.2(a) of the Agreement. I am satisfied that the Agreement is ambiguous as to the activities that are caught by the term ‘all time worked’ in subclause 13.2(a), and ‘work’ in clause 13 generally for the purposes of the entitlement to payment for overtime.

The Union’s Submissions

27      In its written submissions the Union did not point to any particular text of the Agreement, or contextual matters, in support of its contended for construction. The Union’s case mainly relies on commentary from three decided cases which have considered the meaning of ‘time worked’ and similar phrases. The cases it relies on are:

(a) Harrod v Stabilised Pavements of Australia Pty Ltd [2023] FWC 1027

(b) Rohan v S&DH Enterprises [2022] WAIRC 00196

(c) Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd [2017] FWCFB 269; (2017) 262 IR 122

Harrod v Stabilised Pavements of Australia Pty Ltd

28      Commissioner McKinnon dealt with a dispute about whether Mr Harrod had an entitlement under the Stabilised Pavements of Australia (Western Australia) Enterprise Agreement 2021 to be paid for time spent travelling between job sites and accommodation while living away from home.

29      The Commissioner observed at [2] that the dispute was not one about the interpretation of the enterprise agreement, but its application. The Commissioner described the enterprise agreement as using ‘common industrial language about employees being ‘required to work’ or ‘directed to work’ and providing for daily ordinary hours to be ‘8 hours worked’: [24].

30      At [25] the Commissioner referred to the enterprise agreement’s provisions concerning payment for travel. The enterprise agreement contained a clause which provided for payment at ordinary hourly rates for travel time in three express circumstances: mobilisation, demobilisation and rest and recreation.

31      Then at [26], the Commissioner noted:

Except as described above, there is no provision in the Agreement for the payment of travel time between accommodation and job sites. Travel time will, accordingly, only be payable if it can be characterised as time spent working or standing by, waiting to perform work. This begs the question of when work starts and finishes each day, which is ultimately a question of fact.

32      The Commissioner considered the evidence and concluded employees are working from the time of a pre‑start meeting. Time spent travelling from accommodation to the pre‑start meeting did not count as time worked. But time spent travelling from the pre‑start meeting to the job site did. The Commissioner found that the time travelling from the pre‑start meeting to the work site is time during which employees are waiting to perform actual duties: [29].

33      The decision does not deal with construction, but involves an orthodox process of consideration of the facts in applying commonly understood concepts of work.

34      The Union referred specifically to the Commissioner’s reference at [22] to the common law position that employees are entitled to payment for any time their employer requires them to work or to stand and wait. This was relevant to the matter before the Commissioner because the Commissioner was considering the time spent between a pre-start meeting, and getting to a job site. The reference recalls the following passage of Dixon J in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 466:

Some difficulty has been felt in saying what is the service which carries wages. The wages are incident to the subsisting relationship of master and servant. A master who sends his servant upon a holiday upon full pay can be sued for wages under the contract, although not on a common count for work and labour done. They also serve who only stand and wait...

35      What is meant by standing and waiting was illustrated well in The Hospital Employees’ Industrial Union of Workers WA v Lee Downs Nursing Home (1977) 57 WAIG 455. In that case, Burt CJ said:

Once the expression "time worked" is understood the question can be seen to be one of fact. In my opinion time is "time worked" within the meaning of the award if it can be seen that the worker is during the time under consideration doing, whatever it is that he is doing, upon instructions express or implied given to him by his employer. What he is doing need not involve any physical activity. It may be that he is required to be in a certain place at and during a certain time so that he can act should a certain event happen and in such a case, as it seems to me, the time so spent is "time worked" whether the event initiating physical activity happens or does not happen. He also serves who only stands and waits. (emphasis added)

36      The matter before the Industrial Appeal Court involved a worker who was required to remain overnight at a nursing home. Her evidence was that she did certain activities until 9.00 pm and then slept for several hours, remaining available during that time to attend to residents’ needs, if required. His Honour concluded:

In my opinion, once [the Industrial Magistrate] held that the worker was on the premises pursuant to instructions received from the employer "to report any emergencies which arose relative to the inmates of the home" it follows that the whole of the time during which she was on the premises pursuant to those instructions was "time worked" within the meaning of the award. It may be that an emergency seldom arose and it may be that an emergency never arose but that, I think, would make no difference. The worker was not on call in the sense that she could be called upon by the employer to work. She was, I think, under a continual duty to act if called by a patient and she falls into the category of persons who serve while waiting. (emphasis added)

37      The facts giving rise to the present dispute are not analogous to ‘standing and waiting’. If not rostered on duty, and not otherwise directed to perform policing work on the flight, it cannot be said that an officer who is merely a passenger on a flight is doing what they are doing while also being ready to act, or under a continual duty to act, during that time. They are not ‘standing and waiting’ in the relevant sense. They are simply travelling to the place where they will be working.

Rohan v S&DH Enterprises

38      This denied contractual benefit claim involved a dispute between Mr Rohan and his employer as to the correct construction of a provision of Mr Rohan’s employment contract about when work commenced and finished.

39      I referred to several authorities which considered the meaning of ‘time worked’, ‘performing work’ and ‘on duty’ in industrial instruments and authorities which involved a factual enquiry as to whether particular activities were ‘work’. At [36]‑[38], I observed:

[36] Not all of the authorities relied upon strictly concern a search for the meaning of these terms. Several of the authorities turned, rather, on a factual enquiry as to whether the particular activities of the employee amounted to ‘time worked’ etc. For example, Walton; Frank v BHP Billiton Iron Ore Pty Ltd [2019] WAIRC 00089; (2019) 99 WAIG 299; Seo v Bindaree Food Group Pty Ltd [2021] FWCFB 2691 fall into this category. Nevertheless, the authorities do indicate common and consistent considerations which may assist in determining the meaning of these phrases:

(a) ‘time worked’ need not involve any physical activity: ‘He who stands and waits also serves’: The Hospital Employees Industrial Union of Workers, W.A. v The Proprietors, Lee‑Downs Nursing Home (1977) 57 WAIG 455;

(b) ‘work’ involves activities performed by the under the instruction of the employer: The Honourable The Minister for Police v Western Australian Police Force Union of Workers (1969) 48 WAIG 993; Lee‑Downs; and

(c) ‘work’ contemplates the performance of the employee’s duties under the employment contract: Master Builders’ Association of Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation [1981] FCA 49 at [365]‑[366].

[37] The following statement of Lee J in Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 113 IR 265 at [17] is frequently cited in relation to the meaning of ‘at work’:

It cannot be said that, in rendering a “sleep‑over shift”, an employee is “on call” within the meaning of cl 32. For the purpose of cl 32 an employee who is off duty but “on call” is free to conduct his, or her, private life subject to the employer being able to direct the employee to report for duty, and to the employee organizing his or her affairs to be able to respond to that direction if given. (See: Suffolk County Council v Secretary of State for the Environment [1984] ICR 882 (House of Lords)). An employee who attends at the place of employment pursuant to the employer’s direction to be at the employer’s premises for a period of time and be available to provide service at the premises as required by the employer, is not carrying on private activities but is providing service to the employer. Such an employee is at “work” for the purposes of the 1995 Award and is entitled to be remunerated according to the terms of the Award. (See: Hospital Employees’ Industrial Union of Workers, WA v Proprietors of Lee‑Downs Nursing Home (1977) 57 WAIG 455 per Burt CJ at 456).

[38] In Transport Workers’ Union of Australia v Jetstar Services Pty Ltd [2017] FWC 2535 at [46], Deputy President Sams considered Lee J’s statement required that an employee be ‘physically at work and performing work or other functions associated with work, at the employer’s direction’. The learned Deputy President considered this meaning of the words and their purpose to be what a reasonable lay observer would understand to be the meaning, referring to the Macquarie Dictionary definition, so that work would not include periods where no tasks are undertaken and nothing is made or done for the benefit of the employer.

40      The Union’s case is that ‘time worked’ has a wider meaning than any of the authorities referenced in these passages go. The Union focuses on one qualifier - the requirement for an instruction from the employer - but sidesteps the other elements identified as necessary for an activity to be work.

41      For instance, in Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 113 IR 265, the question was whether employees were working while undertaking sleepover shifts. When on a sleepover shift, employees were required to be present at a hostel and to be on call between certain hours. Unless called on, employees were free to sleep or pursue other activities. The Court held that employees in such circumstances were engaged in work, although they were not performing operational activities. This was because the sleepover shift involved:

(a) employees being directed to be at the employer’s premises for a period of time; and

(b) employees being available to provide service during that time.

42      Generally, travelling to the place of employment does not meet the ordinary meaning of ‘time worked’: Construction, Forestry, Maritime, Mining and Energy Union v Peabody Energy Australia PCI Mine Management Pty Ltd [2019] FWC 4641 at [119]. While an employee might be directed to travel to be at work, and is under a duty pursuant to the contract of employment to engage in travel in order to work, during the travel time they will generally be unavailable to provide service.

43      The Union also refers to my reasons at [70]‑[71]. In these passages, I refer to the observations of Deputy President Asbury in Peabody at [116] and Justice Kennedy in Western Australian Police Union of Workers v The Honourable Minister for Police (1981) 61 WAIG 1906 at 1910, concerning the exercise involved in finding, as a matter of fact, that work is being performed. As those passages do not concern construction, they do assist in the present matter.

Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd

44      Broadspectrum was an appeal against a decision finding that compulsory training attended by an employee in what would have otherwise been overtime hours was not ‘time worked’ for the purpose of the relevant industrial instrument. The Full Bench of the Fair Work Commission discussed the approach to construing the instrument at [97]‑[99] and then concluded at [100]‑[101]:

“An employee who attends at the place of employment pursuant to the employer's direction to be at the employer's premises for a period of time and be available to provide service at the premises as required by the employer, is not carrying on private activities but is providing service to the employer. Such an employee is at "work"...” 

45      The Full Bench’s reasons do not advance a particular meaning of ‘time worked’. The Full Bench found that training was working and it cited Warramunda Village Inc with approval.

46      Ultimately, none of the cases the Union relies on necessitate acceptance of the Union’s wide construction.

47      The Union did not adequately demonstrate that its contended for construction was commercially sensible, nor consistent with what a reasonable person would understand the words ‘time worked’ to mean. For example, on the Union’s construction, travelling to and from work on a daily basis could be ‘time worked’. So too could time spent away from work when directed to take leave.

The Police Commissioner’s Submissions

48      The Police Commissioner agrees with the Union’s submissions to the effect that in determining whether time is ‘time worked’ under an instrument, it is generally relevant whether an employee’s activities are undertaken under instructions by the employer. The Police Commissioner says the nature of the instructions given and the limitations and restrictions contained in the instructions are also relevant. However, these generally applicable considerations are subject to the terms of the Agreement itself.

49      The Police Commissioner says that ‘time worked’ in clause 13 of the Agreement means time when an officer is ‘on duty’ consistent with the meaning of ‘on duty’ under the Police Force Regulations.

50      The Police Commissioner advances four reasons, based on the text of the Agreement and its statutory context, for this construction:

(a) The Police Force Regulations are part of the statutory context known to the parties at the time the Agreement was made. The concept of being ‘on duty’ under the Police Force Regulations is well understood and reflected in particular in regulations 402 and 605. Being ‘on duty’ involves devoting oneself ‘exclusively and zealously to the discharge…[of] duties as a member’. An officer is prohibited from sleeping on duty, and, except with the consent of a superior officer, drinking alcohol while on duty. The Police Force Regulations indicate that being ‘on duty’ is generally inconsistent with being on a plane, especially if able to be engaged in private activities such as sleeping or watching movies during such time.

(b) The Standby Allowance provisions and the Seagoing Allowance provisions of the Agreement reflect a narrow construction of ‘time worked’ as both require an officer to be in a specific location and restrict an officer to some degree, but do not treat the officer as working when not actively performing duties.

(c) Being paid for time spent travelling is a commercially absurd outcome, particularly when comparing the remuneration an officer would be paid for such travel with what an officer is paid for the same time as a Standby or Seagoing allowance.

(d) The Agreement reflects the ordinary position that time spent travelling to and from work is not ‘time worked’. This is because where such travel time is to be remunerated, the Agreement specifically provides for those circumstances.

51      The Police Commissioner accepts that some time spent travelling, when an officer is not actively performing duties, may be ‘time worked’ for the purpose of the Agreement. For example, the Police Commissioner accepts that travelling to take a statement from a witness, and then returning to the station, is ‘time worked’. Similarly, time on a flight to accompany a prisoner in transit may be time worked. However, the Police Commissioner rejects the suggestion that all time spent travelling at the Police Commissioner’s request or direction is time worked.

52      Finally, the Police Commissioner says that the Union’s contended for construction is ambiguous in that it remains unclear on its construction what will constitute a ‘requirement’ and what activities are ‘duties’.

53      Accepting the Police Commissioner’s contended for construction does not resolve the dispute about whether Sergeant Dueman’s time spent flying and at airports was ‘time worked’. But it means that not all time flying and at airports is necessarily time spent working.

Consideration: The Agreement’s Text

54      The Union said that subclauses 13.1 and 13.2(a)(ii) are relevant to the construction of the words ‘all time worked’ but really all the Union was saying in this regard was that those are the clauses containing the words ‘time worked’ (ts 16). The Union did not articulate how the particular parts of the Agreement it relied upon supported the construction that it contended for, in favour of any other construction.

55      I consider the following features of the Agreement are indicative of the parties’ intention in relation to the meaning of ‘all time worked’.

56      Clause 2 says that the Agreement consolidates the relevant provisions of the Police Award 1965 and that it is intended that no provision of the Award applies in addition to the Agreement. In other words, the Agreement is intended to comprehensively deal with the terms and conditions of members of the Western Australian Police Force.

57      Consistent with the intention that the Agreement be a comprehensive charter on the terms and conditions of employment, it has 61 clauses, 9 schedules and 113 pages of content. It is a lengthy document. It addresses officer entitlements and the Police Commissioner’s obligations in a thorough and comprehensive way. It includes allowances for periods of on call, close call and standby situations: clause 15. There are allowances for travel, camping and residing overnight on a vessel included amongst a total of around 28 types of allowances: clauses 17 to 27.

58      Part IV of the Agreement is headed ‘Hours of Work’. The first clause under that part is clause 11, headed ‘Hours of Duty’. This clause is particularly long. Because of its length, I will not set it out here, but it is included as a schedule to these reasons.

59      The Hours of Duty clause starts with a provision about how rosters are to be developed. The structure of the clause, the fact that roster provisions are at the top of the clause about hours of duty, shows an intention that hours of work be determined first and foremost by rostering, and that hours of work therefore be predictable. The primacy of rosters as the determinant of working hours, and in particular achieving the hours specified in subclause 11.2, is reinforced by the fact that subclauses 11.3 to 11.7 all concern rostering.

60      It is in the second subclause 11.2, that Hours of Duty are dealt with, the usual position being ‘Employees will work an average of 40 hours per week’.

61      The balance of clause 11 uses the terms ‘hours of duty’, hours ‘worked’, ‘duty’ and ‘work’ interchangeably: see subclauses 11.4, 11.5(b), 11.7(k), 11.9, 11.11, 11.12, 11.13, 11.14 and 11.17.

62      Subclause 11.8(b) expressly provides that meal breaks taken in accordance with subclause 11.8(a) shall be considered time worked. Subclause 11.8(c) says:

(c) Should circumstances arise whereby an Employee is prevented by continuous duty from taking a meal break as provided in clause 11.8(a), such Employee shall be reimbursed in accordance with the rate prescribed by Item F15 of Schedule F – Travelling/Transfer Allowances, provided that an Employee shall only be entitled to one claim per shift.

63      The subclause involves implicit assumptions:

(a) that when an officer is taking a meal break they are not on duty and not working in the usual sense;

(b) that duty and a break from duty are mutually exclusive; and

(c) that duty involves activities that preclude having a meal break.

64      These assumptions are also implicit in subclause 13.5(b) dealing with meal breaks when working overtime. It provides:

An Employee having a meal break in accordance with clause 13.5(a) may be required to remain under the direction of the Officer in Charge during such meal break and if so required the time shall be considered as time worked.

65      The default position is that the meal break is not time worked, and during a meal break there is no expectation that an officer will be ready to act on directions. These clauses displace the default position.

66      Clause 14 is headed ‘Officer Contact’. Amongst other things, it enables employees to utilise their work mobile phones for personal use, but also specifies that employees are not obliged to take work mobile phones home, nor to access work related information ‘whilst off duty’.

67      The Agreement contains special provisions for Dog Handlers ‘in recognition for the responsibilities of caring for a dog or dogs during off duty hours at their own premises’: subclause 11.17(b).

68      Clause 15 ‘On Call - Close Call - Standby Allowances’ provides:

15.1 For the purpose of this clause:

(a) ‘on call’ shall mean a situation in which an Employee is rostered, or directed by a duly authorised senior officer, to be available to respond forthwith for duty outside of the Employee's ordinary working hours or shift. An Employee placed on call shall remain contactable by telephone or paging system for all of such time unless working in response to a call or with the consent of their appropriate senior officer.

(b) ‘close call’ shall mean a situation in which an Employee is rostered, or directed by a duly authorised senior officer, that they are or may be required to attend for extra duty sometime before their next normal time of commencing duty and that the Employee is to remain at their residence and be required to be available for immediate recall to duty.

(c) ‘standby’ shall mean a situation in which an Employee is rostered or directed by a duly authorised senior officer to remain in attendance at their place of employment at that time, overnight and/or over a non‑working day, and may be required to perform certain tasks periodically or on an ad hoc basis. Such Employee shall be provided with appropriate facilities for sleeping if attendance is overnight, and other personal needs, where Practicable.

15.2 An Employee who is authorised by the Employer or a duly authorised senior officer to hold themselves available under any of the conditions contained in clause 15.1, shall be paid the appropriate allowance in accordance with the following scale:

69      An officer who is on standby is not treated, under the Agreement, as ‘working’. This is despite the fact that the officer is required to be at a specific, non‑residential location pursuant to an instruction, and therefore under a level of restriction.

70      An officer who is assigned to an Extended Patrol and who is required to reside on a vessel overnight is entitled to a seagoing allowance, currently $162.43 per night, under subclause 17.2. This allowance applies on the basis that:

17.13(c) …

(iv) Whilst on board the vessel, Employees are required to be available to work on a 24 hour round‑the‑clock basis.

71      And under subclause 17.13.(v):

When hours in excess of an average of nine hours per day are worked during an Extended Patrol and those excess hours are worked other than on normal patrol duties, overtime shall be paid, in accordance with clause 13.2(b) – Overtime of this Agreement or time off in lieu claimed, in accordance with clause 13.11 – Overtime for those excess hours worked, where authorised by the Officer in Charge.

72      The Agreement therefore does not treat the time spent on the vessel as ‘time worked’ unless the time also involves doing something more than merely being present on the vessel.

73      Clause 25 contains a Relieving Allowance. It entitles an officer to be ‘reimbursed reasonable expenses’ where they are ‘required to take up duty away from their usual Headquarters within the Commonwealth of Australia on relief duty or to perform special duty and resides temporarily away from the Employee’s usual place of residence’. Where the Officer is supplied accommodation and meals free of charge, they are entitled to an allowance set out in Schedule E of the Agreement.

74      Subclause 13.3 indicates that the Agreement treats travelling time as distinct from work time:

An Employee required to return to work outside their rostered hours of duty shall be paid the following minimum payments at overtime rates:

(a) On either weekly leave days, three hours plus one hour travelling time.

(b) During any other off duty period one hour plus one hour travelling time.

75      A similar distinction between travelling time and work time is made in subclauses 30.6 and 33.13 which provide that where an officer on annual leave or long service leave is required to ‘return to duty and attend court from matters arising during the course of the Employee’s duties or to perform other duties’ they are entitled to, amongst other things, receive payment ‘for the period required to return to work, including travelling time’. Had the parties intended that ‘time worked’ include travel time, there would be no need to refer separately to ‘travelling time’ in these subclauses.

76      There are four themes that emerge from the Agreement’s text I have referred to.

77      First, the comprehensive nature of the Agreement indicates that the parties intended to expressly set out what entitlements apply and when they apply. In particular, the parties have made provision for entitlements and conditions that apply:

(a) When an officer is required to travel to a location that is different to their headquarters for the purpose of arriving at a work location.

(b) When an officer is required to reside at a location away from their usual residence, or to relieve or take up duties other than at their headquarters within Australia;

(c) When an officer has responsibilities to care for dogs outside their hours of duty;

(d) When an officer is not performing operational duties but is restricted in their ability to carry out their usual personal activities such as when they are on a meal break, on call, on close call, on standby or residing on a vessel.

78      The Union argued that the fact the parties agreed an allowance for some matters, but not for time spent travelling generally, indicates that the parties intended that time spent travelling be treated as ‘time worked’ and not be ‘replaced’ with another form of entitlement. It did not elaborate as to why this should be viewed as the parties’ objective intention. The context I have referred to indicates otherwise.

79      Second, the comprehensive provisions about rostering show an intention that rosters be the primary means of defining when an officer is ‘on duty’ or ‘working’.

80      Third, the hours of work provisions and those like clause 14 ‘Officer Contact’ indicate that the parties intend there be a clear line between officer’s personal time and their time on duty.

81      Fourth, the Agreement reflects the ordinary position that time spent travelling to and from a work location is not itself ‘time worked’.

82      The Agreement must be construed as a whole and a construction that makes the various parts harmonious is to be preferred. This means that where a particular word, phrase or concept appears in the Agreement, it should be given a consistent meaning and application unless there is an apparent intention to the contrary. Accordingly, the text indicates that ‘work’ for the purposes of the phrase ‘all time worked’ in subclause 13.2 is the same as time spent ‘on‑ duty’.

83      This of course begs the question: what is meant by being on duty?

84      To determine the meaning of ‘on duty’ the Police Force Regulations are informative.

Statutory Context: Police Force Regulations 1979 (WA)

85      Both parties referred to the Police Force Regulations as relevant statutory context in which to construe the Agreement. The Police Force Regulations were in force and known to the parties at the time the Agreement was made. I accept that they are relevant context for the purpose of determining the meaning of ‘time worked’ and its equivalent, ‘on duty’.

86      Regulation 402(a) appears in Part IV of the Police Force Regulations headed ‘Duties’.

87      Regulation 401 says:

Member to obey directions

Every member shall carry out such functions, duties and responsibilities as the member is directed by or on behalf of the Commissioner.

88      Regulation 402 says:

Provisions relating to behaviour

Every member shall —

(a) when on duty, devote himself or herself exclusively and zealously to the discharge of his or her duties as a member; and (emphasis added)

(b) behave at all times with courtesy to the public and every member, and give prompt attention to all reasonable requirements of the public; and

(c) obey promptly all lawful instructions given by any member under whose control or supervision the member is placed and, where necessary, act on his or her own initiative; and

(d) promptly and correctly carry out all duties appertaining to his or her office, or any other duty the member is lawfully directed to perform; and

(e) in due course and at proper times comply with, and give effect to, all enactments, regulations, rules, orders and administrative instructions made or issued for his or her guidance in the performance of his or her duties.

89      The Police Commissioner also pointed to regulation 605 which includes the following mandates:

Performance generally

(1) A member shall —

…

(f) if, other than in the course of duty, the member is present at or involved in an incident occurring within the State that the police attend or investigate —

(i) as soon as practicable, declare his or her presence or involvement, status as a member and knowledge of the incident to the attending or investigating police; and

(ii) as soon as practicable, report his or her presence or involvement and knowledge of the incident to his or her own supervisor;

(g) if, other than in the course of duty, the member is present at or involved in an incident occurring outside the State that police of the relevant jurisdiction attend or investigate, as soon as practicable report his or her presence or involvement, and knowledge of the incident, to his or her supervisor;

…

(2) A member shall not —

(a) sleep while on duty; or

…

(e) if absent from duty on account of sickness or ill‑health —

(i) do any act that will, or is likely to, retard the member’s return to work; or

(ii) conduct himself or herself in a manner that is likely to cause a delay in returning to work.

90      For the Union, it was said that the Police Act 1892 (WA) and the Police Force Regulations oblige officers to follow lawful orders, commands and directions whether or not they are on duty or off duty. A police officer continues to remain under their s 10 subscription after their shift ends. And they have certain duties when off duty.

91      All of this is true. But this says nothing as to why duties carried out while off duty, or not in the course of duty, should be regarded as time worked.

92      Regulation 402 makes a clear distinction between an officer’s obligations when on duty compared with when they are off duty. In particular, an officer is only obliged to devote themselves exclusively and zealously to discharging their duties ‘when on duty’.

93      The Police Commissioner points out that regulation 402(a) is indicative of what activities are involved in being ‘on duty’. In particular, being on duty must mean being engaged in active policing as only those activities can be performed ‘exclusively and zealously’.

94      The Police Commissioner says this is further illustrated by the prohibition in regulation 605 against sleeping whilst ‘on duty’. An officer cannot be on duty in the relevant sense when sleeping. The two activities are fundamentally inconsistent. It follows that if during a period of travel an officer is free to sleep, they cannot be on duty.

95      The Union attempted to downplay the significance of regulation 605 by saying that sleeping on duty might not result in a sanction if an officer has a reasonable excuse for doing so. That is beside the point, though. The question is what do the Police Force Regulations, which were known to the parties when the Agreement was made, tell us about what the parties objectively intended being ‘on duty’ to mean?

96      I agree with the Police Commissioner that the Police Force Regulations incorporate a concept of being on duty that is generally inconsistent with an officer at the same time, being able to engage in private activities, such as sleeping, enjoying entertainment, or engaging in private correspondence. The concept of being on duty is inconsistent with activities that preclude an officer from exclusively and zealously discharging their duties as a member of the Police Force. That is, duties that are to maintain peace and prevent offences against the peace. Further, the Police Force Regulations do not allow scope for an officer to be both off duty and on duty. It is one or the other.

97      An officer may be required to follow lawful directions given to them whilst they are off duty. If that direction is to return to duty, then the officer will be regarded as being on duty and their time on duty is ‘time worked’ for the purpose of clause 13. But if the lawful direction involves an activity that is something short of a return to duty, it will not be ‘time worked’ for the purpose of clause 13.

98      Whether a direction involves a return to duty, and whether an officer at any particular time is ‘on duty’ will turn on the facts.

Disposition

99      I agree with the Police Commissioner’s approach to construction of subclause 13.2(a). ‘Time worked’ under clause 13 is equivalent to time ‘on duty’. Being ‘on duty’ means being in a position to exclusively and zealously discharge an officer’s duties as a member of the Police Force. It is not enough that an officer’s activities are activities that they are directed or required by the Police Commissioner to do, to qualify as ‘time worked’.

100   The power vested in the WAIRC under s 46 is a discretionary one: Interpretation Act 1984 (WA), s 56(1). So the next question is whether I should make a declaration, and if so, in what terms.

101   It follows from my reasons that I would not make a declaration in the terms sought by the Union either in its application nor as sought during the course of the hearing. But the WAIRC is not restricted to the specific claim made: s 26(2).

102   Nevertheless, there are 3 things that incline me against making a declaration.

103   First, the dispute that is the reason the application was brought does not arise under the Agreement. At the time of Sergeant Dueman’s travel to and from the UK, the 2021 Agreement applied. Any declaration concerning the Agreement has no binding effect in relation to the 2021 Agreement for the purpose of resolution of Sergent Dueman’s claim for overtime.

104   I was told that the relevant overtime provisions of the 2021 Agreement and the Agreement the subject of these proceedings are the same. But it is not safe to assume that I would have arrived at the same conclusion about the 2021 Agreement as I have about the Agreement. I have not considered the 2021 Agreement’s provisions as a whole. My concern is that making a declaration in these proceedings could cause parties to be misled about the 2021 Agreement.

105   Second, the proceedings concern the meaning of the Agreement’s overtime provisions, which have broad application and implications. Yet the parties’ focus in submissions was a narrow factual scenario which might trigger the overtime provisions, namely, travel on a long‑haul flight. There was little argument about or consideration of the broader implications of any particular construction of the meaning of ‘time worked’. I therefore consider these proceedings are not an optimal vehicle for determining the true meaning of ‘time worked’ in subclause 13.2 of the Agreement for broader application to overtime entitlements.

106   Finally, while my interpretation resolves the ambiguity the parties had identified in the phrase ‘time worked’ it does not go very far in creating certainty as to which activities are and which activities are not ‘working’. It is the nature of the concept of ‘work’ and ‘duty’ that the line between what is and is not working time may often be blurred. Giving the line definition will invariably be a fact specific exercise.

107   In these circumstances, I decline to issue a declaration. I will dismiss the application.

Schedule

Extract of clause 11 of the Western Australian Police Force Industrial Agreement 2022