Federal Court of Australia

Police Federation of Australia (Victoria Police Branch) v Chief Commissioner of Police (Victoria) [2026] FCAFC 47

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN AND SHARIFF JJ:

1.    INTRODUCTION

1    The central issue in this appeal concerns the proper construction of two enterprise agreements relating to the payment of overtime to full-time employees engaged as police officers in the police force of Victoria (Victoria Police).

2    The two enterprise agreements are the Victoria Police (Police Officers (excluding Commanders), Protective Service Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 (2015 EA) and the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (2019 EA). As there is no material difference between these two EAs, it is the 2019 EA which is the subject of consideration in these reasons (unless otherwise stated).

3    Clause 39.1 of the 2019 EA is the critical clause in dispute. It provides as follows:

39.1     "Overtime" for employees other than Recruits means any time worked which is required and permitted by the employer which is additional to that employee's ordinary hours of work or outside the span of hours as established by Part 5 and is a continuous period of half an hour or more.

(Original emphasis retained and emphasis added.)

4    The appellant (the Federation) contended that this clause gives rise to two “pathways” by which relevant employees become entitled to payments for working overtime. The first being when an employee works outside the ordinary hours of work of a rostered shift of eight hours (the Federation described this as Shift Overtime). The second being when an employee works in excess of his or her ordinary hours of work in a fortnight of 80 hours (the Federation described this as Fortnight Overtime). The Federation accepted on appeal (though it had not done so in the proceedings below) that in respect of either pathway, employees must work a “continuous period of half an hour or more” (the Half Hour Threshold) to be entitled to payments of overtime for time worked.

5    The dispute was said to have arisen between the parties in relation to a particular factual context relating to overtime work performed by relevant employees. The Federation sought to identify the terms and scope of that dispute in its Amended Concise Statement at [14]. Specifically, the Federation claimed that relevant employees were required or permitted by Victoria Police to “kit up” before the commencement of their shifts and then “kit down” after the conclusion of their shifts. It was common ground between the parties that if such work was performed for a continuous period of 30 minutes (ie the Half Hour Threshold) or more (either before or after a shift, or both), the employees would be entitled to the payment of overtime so worked. The dispute between the parties related to what was to occur if the period was less than 30 minutes on either side of a shift, or both.

6    To put it by way of an illustrative question: what is the entitlement to payment if a relevant employee spends 20 minutes “kitting up” before a shift and a further 20 minutes “kitting down” after a shift? Such work performed on either side of a shift would not amount to a continuous period of 30 minutes and would not meet the Half Hour Threshold, but it would amount to a total period of 40 minutes on that day. The Federation’s case was that in this scenario, the additional 40 minutes of time worked are to be added to the employee’s total hours worked in the fortnight, which, on a usual roster with all other things being equal, would result in the employee having worked 80 hours and 40 minutes in the fortnight. The Federation contended that this additional period of 40 minutes worked by the relevant employee amounted to “Fortnight Overtime”. Its contention was that, although the hours worked on the particular day did not amount to a continuous period of 30 minutes, the effect of having worked those hours was that towards the very end of the fortnight, the relevant employee will have worked past 80 hours, and at that time would be working an additional 40 minutes in a continuous period and thus meet the Half Hour Threshold. It was said that this period was the additional period of overtime worked by the relevant employee in a continuous period.

7    The primary judge rejected the Federation’s case, finding it to be inconsistent with the text and purpose of the 2019 EA: Police Federation of Australia (Victoria Police Branch) v Chief Commissioner of Police (Victoria) [2025] FCA 865 (Primary Judgment or PJ). We agree with that conclusion but for slightly different reasons to those given by the primary judge. It follows that the appeal should be dismissed. Before turning to address our reasons for reaching this conclusion, it is necessary to deal with the question of jurisdiction.

2.    JURISDICTION

8    It is the “very first duty of any Court” to be satisfied as to the existence of jurisdiction to determine the case before it: Hazeldell Ltd v The Commonwealth [1924] HCA 36; 34 CLR 442 at 446 (Isaacs ACJ). That also applies in an appeal; there must be a “matter” before the Full Court: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512 at [30] (Kiefel CJ, Gordon and Steward JJ).

9    It is “trite” that “federal jurisdiction” arising from the subject matter in ss 75 and 76 of the Constitution is limited to deciding a “matter”: AZC20 at [30]. Relevantly, a “matter” has two elements: (a) the “subject matter itself as defined by reference to the heads of jurisdiction” mentioned in ss 75 and 76 of the Constitution, and (b) “the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy”: Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; 276 CLR 519 at [26] (Kiefel CJ, Keane and Gordon JJ).

10    As to the first element, the “subject matter” of the controversy between the parties here is clearly within the jurisdiction of the Court in that it relates to the proper construction of enterprise agreements made under the Fair Work Act 2009 (Cth) (FW Act). It follows that there is a matter “arising under” a law made by the Commonwealth Parliament within the meaning of s 76(ii) of the Constitution. If there was any doubt, such jurisdiction is also conferred on this Court by s 562 of the FW Act.

11    The second element requires more explanation. The requirement that there be a “justiciable controversy” is central to the second element of a “matter”. There can be no “matter” unless there is “some immediate right, duty or liability to be established by the determination of the Court”: Hobart International Airport at [29] citing Re The Judiciary Act 1903-1920; Re The Navigation Act 1912-1920 [1921] HCA 20; 29 CLR 257 at 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ).

12    It is a “necessary condition of federal jurisdiction” that the “matter in which the jurisdiction of the court is invoked is ‘capable of judicial determination’ or ‘justiciable’”: CGU Insurance Ltd v Blakeley [2016] HCA 2; 259 CLR 339 at [26] (French CJ, Kiefel, Bell and Keane JJ). The concept of justiciability “does not embrace a purely advisory opinion”: CGU at [26]. The justiciable controversy must be “identifiable independently of the proceedings which are brought for its determination”: Fencott v Muller [1983] HCA 12; 152 CLR 570 at 603 (Mason, Murphy, Brennan and Deane JJ).

13    The justiciable controversy must be real and immediate. As Hayne J explained in Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 at [242]:

At the heart of the constitutional conception of "matter" is a controversy about rights, duties or liabilities which will, by the application of judicial power, be quelled. The "controversy" must be real and immediate. That is why it was held, in In re Judiciary and Navigation Acts, that "matter" means more than legal proceeding and that "there can be no matter within the meaning of [s76] unless there is some immediate right, duty or liability to be established by the determination of the Court". Hypothetical questions give rise to no matter. Further, it has long been recognised that an important aspect of federal judicial power is that, by its exercise, a controversy between parties about some immediate right, duty or liability is quelled. As the majority in Fencott v Muller said:

“The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion.”

14    We are satisfied that there is a matter before the Full Court, the determination of which may affect an “immediate right, duty or liability” of the parties.

15    It is necessary to explain why.

16    An enterprise agreement made under the FW Act not only creates entitlements in favour of the employees covered by it and to whom it “applies”, but it also creates obligations on the relevant employer to whom it “applies”. Section 52(1) of the FW Act provides that an enterprise agreement “applies” to an employee, employer or employee organisation if:

(a)     the agreement is in operation; and

(b)     the agreement covers the employee, employer or organisation; and

(c)     no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.

17    Subject to certain exceptions, s 53(1) of the FW Act provides that an enterprise agreement “covers” an employee or employer if “the agreement is expressed to cover (however described) the employee or the employer”. The exceptions include the circumstance where an enterprise agreement has ceased to operate and therefore no longer covers the employee, employer or, in particular cases, the employee organisation (s 53(5) of the FW Act).

18    The significance of an enterprise agreement applying to a person is set out in s 51 of the FW Act, which provides that:

The significance of an enterprise agreement applying to a person

(1)     An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.

(2)     An enterprise agreement does not give a person an entitlement unless the agreement applies to the person.

19    Section 50 of the FW Act provides that a person must not contravene an enterprise agreement.

20    The effect of these provisions is that an employer is bound to comply with an enterprise agreement that applies to that employer. It follows that a failure to pay an employee an amount due under an enterprise agreement amounts to a breach of that agreement and a contravention of the FW Act. The compliance required by an employer is not to be viewed as a post hoc obligation to rectify an underpayment; it is a positive obligation to comply. In this way, it can be seen that the resolution of a dispute about the proper construction of an enterprise agreement, is likely to (or will) have an immediate impact on the rights, duties and obligations of both the employer and employees covered by that enterprise agreement.

21    The position is not changed merely because an enterprise agreement has come to an end or has been replaced by a subsequent agreement. The obligation to have complied with such an agreement remains.

22    However, that is not to say that declaratory relief in the form sought by a moving party will be granted, especially where it is formulated in a way that does not address itself to the immediate legal consequences of the determination made by the Court. Nor is it to say that every dispute about the construction of an enterprise agreement will raise a justiciable controversy. Much will depend on the specific case before the Court.

23    In Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245, Bromberg J stated at [57] (in obiter) that a genuine dispute as to the meaning and effect of a term of an enterprise agreement is one “which may properly be said to arise under the FW Act”: see also Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033 at [19] (Bromberg J); Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3) [2019] FCA 37; 284 IR 97 at [56]-[57] (Rangiah J).

24    However, the mere fact that there is a matter arising under the FW Act does not of itself establish that there is a justiciable controversy before the Court.

25    The decision in Health Services Union v Catering Industries (NSW) Pty Ltd [2023] FCAFC 82; 412 ALR 18 (Katzmann, Snaden and Raper JJ) is a more direct case where a question of construction as to the coverage of an industrial award was found to give rise to a justiciable controversy within the jurisdiction of the Court. The question that arose was whether the relevant employer was an “employer in the aged care industry” within the meaning of the applicable industrial award. The effect of that finding was said to have an impact on which award covered the relevant workers for the purpose of applying the “better-off overall test” (BOOT) under Part 2-4 of the FW Act. The bargaining for an enterprise agreement had given rise to a dispute about which award applied for the purpose of the BOOT. Although the Full Court dismissed the appeal, it was satisfied that there was a justiciable controversy. The Full Court reasoned as follows at [37]-[39]:

The relief that the HSU sought in the present matter was declaratory relief pursuant to s 21 of the Federal Court Act 1976 (Cth). In Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; 169 ALR 616; [2000] HCA 11, Gaudron J (at [52]) said:

…a declaration cannot be made if it “will produce no foreseeable consequences for the parties.” That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution. And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth.

See also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582; 106 ALR 11 at 22 (Mason CJ, Dawson, Toohey and Gaudron JJ) (Ainsworth).

It is sufficient that the “foreseeable consequences” that declaratory relief might visit have “real practical importance” to the party that seeks it: Edwards v Santos Ltd (2011) 242 CLR 421; 275 ALR 489; [2011] HCA 8 at [37]–[38] (Heydon J, with whom French CJ, Gummow, Crennan, Kiefel and Bell JJ, and Hayne J relevantly agreed).

Here, such consequences abound and it is to be accepted — indeed, it is not controversial — that the relief for which the HSU moved pertained to (and, if granted, would have resolved in its favour) a justiciable controversy that has arisen between the parties. The identity of the modern award against which a proposed enterprise agreement, once made, might be compared under s 193 of the FW Act is a matter that has an obvious bearing upon bargaining that precedes its making. Resolution of the question that has arisen will afford the parties a measure of certainty that the terms for which they are bargaining are terms of which the FWC might ultimately approve. It may also assist them in assessing the relative bargaining value of what is offered or conceded.

26    As the Full Court there reasoned, the determination of the issue of coverage of the relevant award would have a practical impact in the tangible process of enterprise bargaining.

27    In the present case, the proceedings were commenced on 10 December 2024 by way of an Originating Application and Concise Statement, which were later amended in March 2025. The Amended Originating Application seeks declaratory relief in relation to cl 39.1 of the 2019 EA as follows:

1.     A declaration that, on its proper construction, cl 39.1 of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (2019 Agreement) has the effect that:

(a)     where a person to whom it applies works more than that person’s ordinary hours of work for a roster period (e.g., for a full-time employee, 80 hours in a fortnight), all time worked beyond ordinary hours of work (e.g., 80 hours) is “overtime” within the meaning of cl 39.1;

(b)     time worked before and after shifts, whether that time is more or less than 30 minutes standing alone, counts toward an assessment of whether the person has worked more than her or his ordinary hours of work.

2.     Alternatively to [1], a declaration that, on its proper construction, cl 39.1 of the 2019 Agreement has the effect that:

(a)     where a person to whom it applies works more than that person’s ordinary hours of work for a roster period by a continuous period of half an hour or more (e.g., for a full-time employee, 80.5 hours in a fortnight), all time worked beyond ordinary hours of work (e.g., 80 hours) is “overtime” within the meaning of cl 39.1;

(b)     time worked before and after shifts, whether that time is more or less than 30 minutes standing alone, counts toward an assessment of whether the person has worked more than her or his ordinary hours of work.

(Original emphasis.)

28    Similar relief was sought in relation to the 2015 EA.

29    No other relief was sought and, as we explain below, the Federation expressly stated that it was not seeking any orders for compensation in respect of employees in the action that it brought before the Court.

30    The form of the declarations sought by the Federation are problematic. If the Federation had been successful in its claims, we would have declined to make declarations in the form sought by the Federation as they do not (cast in the way they are) direct themselves to the obligation of the relevant employer to make payments of overtime in the particular factual circumstance that was presented to the Court. The declarations formulated by the Federation did little more than seek a determination as to the proper construction of the applicable clauses.

31    However, the question of whether there is a “justiciable controversy” before the Court is not to be determined merely or solely by reference to the prayers for relief sought by the Federation. The question is broader and requires an examination of the controversy put before the Court to ascertain whether what was being sought was merely theoretical and hypothetical, with no factual context and no practical effect that would ensue from the Court’s determination. If all that was put before the Court was the Amended Originating Application, we would not have been satisfied that there was a justiciable controversy before the Court. But there was more that was advanced by the parties.

32    The Amended Concise Statement articulated the legal controversy between the parties in the particular factual context within which the dispute between the parties had arisen. It is to be accepted that the function served by concise statements is distinct from that of traditional pleadings: Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; 287 FCR 388 at [140]–[154] (McKerracher and Colvin JJ). However, whether a pleading sufficiently raises the factual and legal matters for determination is a matter of substance and not form, style, phrasing or structure: see eg Oztech Pty Ltd v Public Trustee of Queensland [2019] FCAFC 102; 269 FCR 349 at [28]–[30] (Middleton, Perram and Anastassiou JJ). The “sole objective of a pleading is to clearly identify matters in dispute and difference by and between the parties to the dispute”: Oztech at [29].

33    Relevantly, in the present case, Part A.3 of the Amended Concise Statement set out the “[c]ontext of the constructional dispute” as follows:

13.    As stated in Part B, the only relief the Federation seeks in this proceeding is declaratory relief as to the construction of the 2015 Agreement and the 2019 Agreement. The matters in this Part A.3 are a recitation of the Federation’s claims which give rise to the controversy as to construction. The Federation does not seek, in this proceeding, resolution of the claims set out in this Part A.3; they are set out only to provide context.

14.    The Federation claims as follows:

(a)     During the Relevant Period, members of the Federation who are police officers to whom the 2015 Agreement applied, and to whom the 2019 Agreement applied and/or applies, were required and permitted to “kit up” before the start of shifts, and “kit down” at the end of shifts;

(b)     In at least some cases, the time spent by such a member “kitting up” or “kitting down” before or after a particular rostered shift met the Half Hour Threshold. In such cases, Shift Overtime was payable[;]

(c)     In other cases, the time spent by such a member “kitting up” before a shift or “kitting down” after a shift did not, standing alone, meet the Half Hour Threshold. However, over the course of a fortnight, all of that “kitting up” and “kitting down” time taken together, when added to ordinary hours, had the effect that the member’s total fortnightly hours:

(i)     exceeded 80, such that all time worked thereafter attracted Fortnight Overtime (on the Primary Construction); or

(ii)     exceeded 80 by a continuous period of half an hour or more, such that all time worked after 80 cumulative hours attracted Fortnight Overtime (on the Alternative Construction);

(d)     members falling into the category described in [14(c)] above have neither been paid for the overtime worked under cl 42 of the 2015 Agreement and cl 42 of the 2019 Agreement, nor have they taken time off in lieu of payment for overtime under cl 55 of the 2015 Agreement or cl 53 of the 2019 Agreement.

(Emphasis added.)

34    What these paragraphs make clear (together with other parts of the Amended Concise Statement (to which we refer below)) is that the Federation was not making a claim for underpayment in respect of particular employees in the proceedings that it had commenced. However, it was nevertheless making assertions as to the particular factual matters that crystallised the constructional dispute between the parties. It did not follow from the fact that the Federation was not seeking compensation for particular employees that there was not before the Court assertions of fact and law, the determination of which would affect the legal rights of the parties.

35    The specific factual matters that the Federation had advanced were the circumstances in which the relevant employees were required and permitted to “kit up” before the start of shifts, and “kit down” at the end of shifts and, specifically, the circumstances in which such work performed did not meet the “Half Hour Threshold” (being a continuous period of at least 30 minutes).

36    It is further relevant that by his Concise Statement in Response, the respondent (the Commissioner) joined issue on the relevant questions of construction without disputing the factual basis within which the dispute had arisen. In relation to the factual assertions made by the Federation as to “kitting up” and “kitting down”, the Concise Statement in Response stated:

20.     …the Applicant provides, in Part A.3 of the Concise Statement, what it refers to as “context” for the constructional dispute between the parties. It states that it does not seek resolution of the claims set out in that part, and that they are only provided for context. Needless to say, therefore, that the Respondent does not admit the matters set out in that part for the purposes of this proceeding.

21.     However, the nub of the Applicant’s claim, as stated in paragraph [14] of the Concise Statement, is a matter which bears directly on the proper construction of clause 39.1, and necessarily forms part of the constructional exercise…

…

23.     …contrary to paragraph [14(c)(ii)] of the Concise Statement, on the proper construction of clause 39.1 referred to in paragraphs [16] and [17] above, if time spent by an employee performing work before or after his or her rostered shift does not run for a continuous period of half an hour or more, clause 39.1 is not invoked. On the plain words of clause 39.1, it is only a continuous period of such additional time worked which will, after a continuous period of half an hour, constitute overtime.

(Emphasis added.)

37    It is apparent that the Commissioner understood that the Federation was not advancing claims for underpayment in respect of particular employees and therefore did not make any admissions to that extent. However, the Commissioner accepted that the matters pleaded by the Federation in the Amended Concise Statement at [14] were directly relevant to the proper construction of cl 39.1.

38    Thus, the Commissioner was accepting that there were occasions on which relevant employees were required and permitted to “kit up” before the start of shifts, and “kit down” at the end of shifts which did not meet the “Half Hour Threshold”. And, the Commissioner was accepting that in these instances, the relevant employees had not been paid for that overtime. The determination of that dispute in the context of the agreed factual context would clearly have an immediate impact on the legal rights, duties and obligations of the parties. Most specifically, the determination of that dispute in favour of the Federation would determine whether the Commissioner was obliged to make such payments and, therefore, be liable for doing so under Commonwealth law. That is so notwithstanding that the 2015 EA and the 2019 EA had been replaced. Although the declarations sought by the Federation were not formulated in this way, that is clearly the effect of the controversy that was being put before the Court.

39    That there was a live dispute between the parties as to questions of compliance was not in issue. Part A4 of the Amended Concise Statement set out the facts relevant to the crystallisation of the dispute between the parties, as follows:

A.4     The existence of a dispute

15.     On 25 November 2024, the Federation’s representatives, Maurice Blackburn, wrote to the CCP in which letter it:

(a)     asserted that the proper construction of cl 39.1 of the 2015 Agreement and cl 39.1 of the 2019 Agreement was the Primary Construction, alternatively the Alternative Construction;

(b)     asserted that, if the CCP accepted either construction, it would follow that Police Officers to whom the 2015 Agreement applied, and to whom the 2019 Agreement applies, and who fell into the category described in [14(c)] above, have been underpaid in that they have not been paid for Fortnight Overtime connected with “kitting up” and “kitting down”;

(c)     requested that the CCP confirm, by return correspondence, whether he accepted either the Primary Construction or the Alternative Construction;

(d)     asserted that, if the CCP did so accept, the preferable course would then be for the Federation and the CCP to put in place a mechanism for quantifying claims for overtime arising out of the Federation’s claims.

16.     On 6 December 2024, the CCP, via his legal representatives, Clayton Utz, responded to the Federation in which letter he denied the correctness of both the Primary Construction and the Alternative Construction. He advanced instead a construction which the Federation understands as either:

(a)     denying the existence of Fortnight Overtime entirely — which position the Federation would reject because (inter alia) of its inconsistency with the plain words of the relevant clauses, especially in light of their history; or

(b)     having the effect that the only time worked before or after a shift which counts toward Fortnight Overtime is time that, standing alone, meets the Half Hour Threshold (i.e., in assessing whether a member has worked more than (say) 80 hours in a fortnight, all periods before or after a shift which do not, standing alone, meet the Half Hour Threshold are to be ignored) — which position the Federation would reject because (inter alia) that would give the provision for Fortnight Overtime no additional work beyond that which is already done by Shift Overtime, and because of its inconsistency with industrial history.

17.     The Federation, having considered the CCP’s position, denies its correctness and maintains that either the Primary Construction or the Alternative Construction is correct. In the circumstances, there is a controversy between the Federation and the CCP as to the proper construction of cl 39.1 of the 2015 Agreement and cl 39.1 of the 2019 Agreement, the resolution of which will produce foreseeable consequences for the parties in terms of resolving the balance of the Federation’s claims outlined in Part A.3 above. Accordingly, this Court has jurisdiction to grant declaratory relief.

(Original emphasis.)

40    The Amended Concise Statement concluded with the following paragraphs:

Part B Relief sought by the Applicant, and its legal grounds

18.     In the circumstances outlined above, the Federation seeks a declaration that the proper construction of cl 39.1 of the 2015 Agreement and of the 2019 Agreement is the Primary Construction. Alternatively, it seeks a declaration that the proper construction of cl 39.1 of the 2015 Agreement and of the 2019 Agreement is the Alternative Construction.

Part C Harm suffered by the Applicant including a range of loss or damage

19.     There is a meaningful prospect that resolution of the constructional dispute raised by this proceeding will lead to the out-of-court resolution of the Federation’s claims. If not, the Federation would bring a further proceeding seeking resolution of outstanding issues which might include the quantification of loss or damage sustained by individual police officers who worked, but were not paid for, either Shift Overtime or Fortnight Overtime. Those issues are not, however, raised by this proceeding. No findings as to loss or damage are sought or needed at this time.

41    These paragraphs reinforced that the Federation was not seeking any orders for compensation on behalf of any employees.

42    Met with these allegations, the Commissioner denied the construction advanced by the Federation.

43    Thus, by reference to the matters on which the parties were joined and not joined, it is apparent that the Commissioner was not ultimately disputing the veracity of the factual context within which the dispute between the parties had arisen. Nor was he disputing that the relevant employees were not paid overtime in the circumstances asserted by the Federation. The Commissioner did not consider there was any obligation to do so. That gave rise to a necessary acceptance by the parties that the determination of the Court would bear directly on the legal obligation of the Commissioner to have paid overtime in the circumstances asserted.

44    True it is that the parties did not adduce any evidence of any single affected employee, or more generally as to the practices relating to the relevant work, including as to rosters, notifications of overtime, timesheets, and the like. Nor were such facts agreed for the purpose of the Statement of Agreed Facts filed on 12 March 2025 and relied on by the parties under s 191 of the Evidence Act 1995 (Cth) (the Statement of Agreed Facts). Relevantly, at [32] of that document, the parties agreed that:

There is a dispute between the parties as to the proper construction of cl 39.1 of the 2015 Agreement and cl 39.1 of the 2019 Agreement, resolution of which by this Court will produce foreseeable consequences for the parties in terms of resolving the Applicant’s claims described in Part A.3 of its Concise Statement dated 10 December 2024.

45    It is also true that in its submissions before the primary judge and on appeal, the Federation posited various hypothetical scenarios in which employees may be required or permitted to work overtime, and how that may play out in practice. We regarded these as no more than illustrative examples to sheet home the Federation’s contentions as to the proper construction of the relevant clauses. Some were helpful and others begged more questions than could be answered on the limited factual material before the Court. However, the raising of such hypothetical scenarios does not mean that the controversy before the Court was merely hypothetical. Rather, as we have pointed out, the parties agreed that they were in dispute as to whether the Commissioner was obliged to make payments of overtime to employees who performed “kitting up” or “kitting down” work on one or both sides of a shift where such work did not meet the Half Hour Threshold. That controversy was not hypothetical.

46    It is to be readily accepted that the Court’s determination would not immediately have the effect of entitling an employee to receive a payment in compensation for loss and damage arising from unpaid overtime. However, that is not the only way to conceive of the immediate legal consequences of a determination made by the Court. As we have pointed out, the legal consequences extend to whether the Commissioner was obliged to have made payments to the relevant employees.

47    It is for these reasons that we are satisfied as to the jurisdiction of the Court to determine a justiciable matter.

48    We nevertheless consider it necessary to observe that the parties here took a somewhat careless attitude to the question of jurisdiction. It would have been more appropriate for the parties to bring forth a single claim for underpayment, together with a more fulsome factual account of the working of overtime by particular employees by reference to their specific rosters and timesheets. As the rival reasons here disclose, the jurisdiction of the Court should not be assumed, or taken for granted.

3.    THE RELEVANT CLAUSES AND THE COMPETING ARGUMENTS

49    It is plain from the text of cl 39.1 of the 2019 EA that payment for overtime depends on whether the time worked by a relevant employee is “required and permitted by the employer” and is “additional to that employee’s ordinary hours of work or outside the span of hours as established by Part 5 and is a continuous period of half an hour or more” (original emphasis).

50    The competing arguments in the appeal had as their central focus the meaning of the words “ordinary hours of work” and “span of hours” as established by Part 5 of the 2019 EA. There are several clauses that bear upon the meaning of these words to which we now turn.

51    As a starting point, the 2019 EA defines a “Full Time Employee” as meaning:

…an employee whose ordinary hours of work are an average of 80 per fortnight with 0.0463 of each hour of work performed granted as Accrued Time Off, so that the employee's average hours of work over a 12 month period are 76 hours per fortnight.

(Original emphasis retained in italics and emphasis added in bold.)

52    It will be apparent from this clause that the words “ordinary hours of work” are connected with working 80 hours per fortnight.

53    The subject of ordinary hours of work is specifically dealt with in Part 5 of the 2019 EA, which is entitled “Hours of Work and Rostering”. Within the structure of Part 5, cll 25 to 27 appear in a section entitled “Ordinary Hours of Work” and cll 28 to 38 appear in a section entitled “Arrangement of Ordinary Hours of Work”. The Federation relied upon this delineated structure as giving precedence to cl 25 in defining the meaning of the words “ordinary hours of work” as opposed to cl 30, as addressed further below.

54    Clause 25 provides as follows:

25.     Ordinary Hours of Work for Full time employees other than Recruits

25.1     During the life of this Agreement the provisions of this part and clauses 70 and 71 are subject to the operation of Appendix A.

25.2    The ordinary hours of work for full time employees other than Recruits will be 80 hours per fortnight with 0.0463 of each hour of work performed granted as accrued time off, so that the employee's average hours of work over a 12 month period are 76 hours per fortnight (exclusive of an unpaid meal break).

25.3    Other than for Officers, the employer will determine the times of commencement, and the days on which the ordinary hours of work are to be worked by a full time employee.

(Original emphasis retained in italics and bold, and emphasis added in underline.)

55    It will be seen here that “ordinary hours of work” are expressly stated to be 80 hours per fortnight. The Federation contended that cl 25.2 was definitional in that it specified the “ordinary hours of work” for full-time employees other than “Recruits”.

56    Clause 26 addresses the ordinary hours of work for the cohort of employees referred to as Recruits. Clause 27 deals with “Accrued Time Off” and is not presently relevant.

57    The next set of clauses appear in the section entitled “Arrangement of Ordinary Hours of Work”. Each of clauses 28 to 32 address the arrangements for the working of ordinary hours for different cohorts of employees, including Commanders and Superintendents (cl 28), Inspectors (cl 29), Constables, Senior Constables, Sergeants and Senior Sergeants (cl 30), Reservists (cl 31), and Protective Services Officers (cl 32). What this structure demonstrates is that there are different cohorts of employees with different arrangements that apply to them in respect of the working of ordinary hours.

58    Clause 30 was the focus of the parties’ submissions. It provides that:

30.     Arrangement of Ordinary Hours of Work for Constables, Senior Constables, Sergeants and Senior Sergeants

30.1     Subject to the provisions of Appendix A, the ordinary hours of work for employees will be eight hours per day worked continuously.

30.2     The employer may require an employee to work the employee's ordinary hours of work according to a roster of shifts which may span across a range of unsociable and/or intrusive hours.

(Original emphasis retained in bold and emphasis added in underline.)

59    It will be immediately apparent that cl 30.1 specifies that the “ordinary hours of work for employees” will be “eight hours per day”. The Federation contended that unlike cl 25.1, the effect of this clause was not to specify the “ordinary hours of work” but the rostered span of hours for the relevant employees. It will be necessary to return to the merits of that contention.

60    Clause 31 is also relevant. It was relied upon by the Commissioner as a point of contradistinction. It provides as follows:

31.     Arrangement of Ordinary Hours of Work for Reservists

31.1     The ordinary hours for Reservists will be eight hours per day worked continuously between 7am to 7pm Monday to Friday.

(Emphasis added.)

61    The Commissioner contended that, although the word “span” was not used in cl 31, it had that effect because it specified the span within which the cohort of employees described as “Reservists” are to work their ordinary hours, being between 7 am to 7 pm.

62    The balance of Part 5 deals with matters relating to rostering and breaks including “Variable Shift Rostering” (cl 34), “Posting of Rosters” (cl 35), “Change of Shift” (cl 36), “Rest Days” (cl 37) and “Meal Break and Meal at Post” (cl 38). Clause 37.7, relating to the payment of overtime for work on rest days, has some relevance. It provides as follows:

37.7     If an alternative rest day cannot be re-allocated in the same fortnight the employee (excluding an employee in receipt of a commuted overtime allowance or one-person station allowance), will be paid overtime or may elect to take time off in lieu as follows:

(a)     Monday to Friday

(i)     For each hour of overtime worked, an employee must be paid at overtime/recall rate 1.5 for the first eight hours on the rostered rest day and overtime/recall rate 2.0 thereafter.

(b)     Weekends and Public Holidays

(i)     For each hour of overtime worked, an employee must be paid at overtime/recall rate 2.0.

(c)    Time off in Lieu

(i)     An employee may elect to take time off in lieu of whole or any part of payment for overtime worked at the time or times mutually agreed.

(ii)     Overtime taken as time in lieu during ordinary hours shall be taken at the rate of one hour for each hour of overtime worked.

(iii)     The employer must provide payment at the overtime rate in this clause for any overtime worked where such time has not been taken in lieu within two months of its accrual. If payment is made in accordance with this clause, the employee is not also entitled to the time off in lieu, provided that an employee may take payment for part of a period and time in lieu for the balance of the period.

(Original emphasis.)

63    This clause had significance to the primary judge’s reasons for rejecting the Federation’s claims. We will return to its significance later in these reasons.

64    The next relevant provisions are contained in Part 6, which is entitled “Overtime”. Clause 39.1 is the most relevant clause, which we have set out above at [3]. Clause 41 is also relevant. It provides as follows:

41.     Requirement to Work Reasonable Overtime

41.1    An employee shall, when directed, be required to work reasonable overtime. Whether the overtime is "reasonable" is determined having regard to:

(a)    any risk to the employee's health and safety that might reasonably be expected to arise if the employee worked the additional hours; and

(b)    the employee's personal circumstances (including family responsibilities); and

(c)    the operational requirements of the workplace, in relation to which the employee is required or requested to work the additional hours; and

(d)    any notice given by the employer of the requirement or request that the employee work the additional hours; and

(e)    any notice given by the employee of the employee's intention to refuse to work the additional hours; and

(f)    whether any of the additional hours are on a public holiday; and

(g)    the employee's hours of work over the 4 weeks ending immediately before the employee is required or requested to work the additional hours; and

(h)    the undesirability of working overtime following a 10-hour shift.

65    Clause 41 has to be viewed in the context of ss 62 and 63 of the FW Act, which form part of the National Employment Standards. These sections provide as follows:

62    Maximum weekly hours

Maximum weekly hours of work

(1)     An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:

(a)     for a full-time employee—38 hours; or

(b)     for an employee who is not a full-time employee—the lesser of:

(i)     38 hours; and

(ii)     the employee’s ordinary hours of work in a week.

Employee may refuse to work unreasonable additional hours

(2)     The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.

Determining whether additional hours are reasonable

(3)     In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:

(a)     any risk to employee health and safety from working the additional hours;

(b)     the employee’s personal circumstances, including family responsibilities;

(c)     the needs of the workplace or enterprise in which the employee is employed;

(d)     whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;

(e)     any notice given by the employer of any request or requirement to work the additional hours;

(f)     any notice given by the employee of his or her intention to refuse to work the additional hours;

(g)     the usual patterns of work in the industry, or the part of an industry, in which the employee works;

(h)     the nature of the employee’s role, and the employee’s level of responsibility;

(i)     whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;

(j)     any other relevant matter.

Authorised leave or absence treated as hours worked

(4)     For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:

(a)     by the employee’s employer; or

(b)     by or under a term or condition of the employee’s employment; or

(c)     by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.

63     Modern awards and enterprise agreements may provide for averaging of hours of work

(1)     A modern award or enterprise agreement may include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed:

(a)     for a full-time employee—38 hours; or

(b)     for an employee who is not a full-time employee—the lesser of:

(i)     38 hours; and

(ii)     the employee's ordinary hours of work in a week.

(2)     The terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).

Note:     Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).

(Emphasis added.)

66    What is relevant about ss 62 and 63 of the FW Act, is that, although they specify the maximum weekly hours for full-time employees as being 38 hours per week, they expressly contemplate that an employee may be required to work reasonable additional hours. The question of what is reasonable depends on the circumstances, including whether the employee is to “receive overtime rates” for working the additional hours.

67    The balance of Part 6 of the 2019 EA addresses other matters relating to the working of overtime (including the rates payable for such work). And, the other clauses of the 2019 EA are not presently relevant.

4.    THE PRIMARY JUDGMENT

68    It is necessary to examine why the primary judge ultimately rejected the Federation’s contentions.

69    In the proceedings below, the Federation had advanced a primary argument as to construction and an alternative one. Its primary argument was that the “Half Hour Threshold” did not apply to Fortnight Overtime and only applied to Shift Overtime. This primary construction was rejected by the primary judge and is not challenged on appeal. As a result, it is unnecessary to address it further.

70    The central issue on the appeal related to the primary judge’s rejection of the Federation’s alternative construction, which turned on the meaning of the words “ordinary hours of work” and “span of hours”.

71    The primary judge observed that Victoria Police is a “continuous operation” which is required to be staffed by officers for “the whole of each day in each year: PJ [66]. His Honour further observed that the nature of these operations meant that the “employer determines the days and times of commencement according to a roster, but must allow for four rest days in each fortnight, unless an employee requests a roster pattern that precludes the ability of the employer to provide for the rest days”: PJ [66]. The primary judge reasoned that this also meant that an employee may be required to work “unsociable or intrusive hours”: PJ [67].

72    Having regard to this context, and by reference to the examination of the relevant clauses of the 2019 EA, the primary judge considered that there was an interrelationship between “ordinary hours of work” being worked over eight hours per day and 80 hours per fortnight: PJ [67]. His Honour observed that the arrangement was such that an employee would work eight hours per shift over 10 shifts, resulting in the employee working 80 hours per fortnight but with an entitlement to rest days.

73    Turning to the meaning of the words “span of hours established by Part 5”, the primary judge noted that only references to “span” was in clauses 30.2 (a roster of shifts that may span across a range of unsociable or intrusive hours) and 32.5 (which expresses the same requirement for “Protective Services Officers”). His Honour ultimately considered that the words “span of hours” meant the span specified in a roster “as determined from time to time”. His Honour reasoned as follows at PJ [68]:

Despite the reference in clause 39.1 to a “span of hours established by Part 5”, the only references to “span” therein are clauses 30.2 (a roster of shifts that may span across a range of unsociable or intrusive hours) and 32.5 which expresses the same requirement for Protective Services Officers. However, if the search broadens, beyond identification of correspondence of nouns, Part 5 is the mechanism that permits the employer to determine the hours, days and times when an employee is required to perform his or her ordinary hours of work in each fortnight period according to the roster of shifts conformably with the obligation (save where an employee requests a non-conforming roster) to allow four rest days in each fortnight. Once that is understood, the arrangement and structure of the provisions suggests that what is meant by the span of hours in clause 39.1 is the roster as determined from time to time. To that extent, I reject the respondent’s submission that this is a reference only to the fixed days and times for Reservists at clause 31.1, though it certainly includes it.

(Emphasis added.)

74    The primary judge accepted the Federation’s contention that cl 39.1 gave rise to two pathways for the payment of overtime. However, his Honour otherwise rejected the Federation’s contentions for the reasons set out at PJ [97]-[99], as follows:

Turning to the text of the clause 39 of the 2019 EBA, where the construction task begins and ends, overtime applies in either of two circumstances. The first is the concept of time worked “additional to” the ordinary hours of work of an employee. That is eight hours worked as rostered on any day in a fortnight “worked continuously” (clause 30.1) or 80 hours per fortnight (clause 25.2). Viewed in this way the clause allows for two pathways. One, is by working more than eight hours on any rostered shift day. That pathway is straightforward and harmoniously links the requirement of eight ordinary hours worked continuously at clause 30.1, with the overtime qualification at clause 39.1 of hours worked in addition to ordinary hours but only if a continuous period of half an hour or more. On this basis it matters not that the employee may work less than his or her 80 hours per fortnight, which is not relevant to the overtime entitlement.

The other pathway commences with recognition that the employer must in setting the fortnightly roster allow for a minimum of four rest days: clause 37.1. That obligation may be displaced where the employee requests a roster pattern “that precludes the ability” of the employer to comply with clause 37.1 (clause 37.2), or where an alternative rest day cannot be re-allocated in the same fortnight (clause 37.7). In either case, the employee, even if he or she accrues no other overtime in a fortnight, will then work hours additional to his or her ordinary hours and accrue the entitlement to be paid overtime or may elect to take time off in lieu.

The second circumstance is when time is worked outside the span of hours established by Part 5, which I have determined is to be construed as a reference the arrangement of when ordinary hours will be worked in each fortnight by rostering shifts framed by a continuous period of eight hours per day, 80 hours per fortnight with four rest days.

(Emphasis added.)

75    As is apparent from the above, his Honour considered “ordinary hours of work” to be either eight hours worked on a rostered day or 80 hours per fortnight. However, his Honour considered that the first pathway (relating to “ordinary hours of work”) was applicable only where an employee works more than eight hours on a rostered day and that the second pathway (relating to “span of hours”) was limited to where an employee was required to work on a rest day during a fortnight.

76    In rejecting the Federation’s “Fortnight Overtime” or “second method” contention, his Honour had regard to the “worked example” that the Federation had advanced. That example was set out at PJ [14] as follows:

…assuming an 80 hour fortnight an employee may work 15 minutes before and 10 minutes after each of 10 eight-hour shifts working from 8:45 am to 5:10 pm. The employee works an additional 25 minutes per shift, or 4 hours and 10 minutes over the course of the 80 hour fortnight.

77    The Federation had submitted to the primary judge that Fortnight Overtime would arise in this worked example as follows (at PJ [16] (extracting a part of the Federation’s written submissions)):

At the end of Monday, the Officer has worked 8 hrs 25 mins; Tuesday, 16 hrs 50 mins; Wednesday, 25 hrs 15 mins; Thursday, 33 hrs 40 mins; Friday, 42 hrs 05 mins; next Monday, 50 hrs 30 mins; Tuesday, 58 hrs 55 mins; Wednesday, 67 hrs 20 mins; Thursday, 75 hrs 45 mins; on the second Friday, the Officer has worked an 80 hour fortnight after 4 hours and 15 minutes of that day (i.e. at 1300). Between 1300 and finishing at 1710, she works a continuous period of Fortnight Overtime, of 4 hours and 10 minutes, which is a continuous period exceeding 30 minutes.

78    In relation to these arguments (which his Honour also described as the “aggregation method”), the primary judge reasoned as follows at [102], [107]-[112]:

… The worked example distorts the text. It proceeds on the assumption that an entitlement to overtime accrues incrementally on separate days, by working more than eight hours on a rostered shift (but not so long as to satisfy the half hour qualification) which separate periods are aggregated over a fortnight to exceed 80 ordinary hours per fortnight. The aggregation method bypasses the express qualifying criteria to derive the overtime benefit. This avoidance mechanism cannot be reconciled with the plain textual meaning of clause 39.1 which admits of no ambiguity. The arguments said to support the necessary reconstruction of the clause are not supported by context, any identified purpose or the significant reliance the applicant places on the history of how overtime has been structured in the industrial instruments of this century.

…

The applicant’s alternative textual construction faces larger hurdles. It commences by accepting that the qualification applies to each limb of clause 39.1. The argument repeats, as the first example in support, an employee on a rostered shift who works 45 minutes more than his or her eight hour rostered shift. Uncontroversially, that is overtime.

The second example is tortuous. The maths to arrive at an employee having worked 84 hours and 10 minutes is correct and results in accruing an overtime entitlement at 1 pm on the second Friday of the roster period, to which overtime is then payable until the employee concludes work at 5.10 that day- in total 4 hours and 10 minutes. There are several reasons to reject this construction, not limited to the surprising outcome of the example.

Fundamentally, it ignores the requirement that overtime must be “additional to” ordinary hours of work. The example proceeds by aggregating ordinary and additional hours to derive an entitlement over the course of a fortnight. Any time worked beyond 80 hours becomes overtime, including ordinary rostered hours. That is discordant with the text of the clause.

It makes meaningless the continuous period qualification. Additional hours are not worked over a continuous period where separated by rostered days and ordinary rostered hours. The dictionary meaning of continuous is unbroken; uninterrupted in time; without cessation (Macquarie Dictionary, 3rd ed). The legal meaning accords with the dictionary meaning as a matter of plain language, unlike some cases where the meanings are not congruent: South Western Sydney Local Health District v Gould [2018] NSWCA 69; (2018) 97 NSWLR 513 at [78]-[83], Leeming JA. The applicant’s accumulated pathway to secure the entitlement is punctuated by interruption.

It fails to confront the threshold purpose of the half hour qualification, which is clear from the context and text of the provisions. It matters not that additional hours are worked on the same day, in one or separate periods, on multiple days, before a rostered shift commences or after it concludes: the common thread is that in order to become entitled to overtime, the time worked must be in addition to the ordinary hours (or span of work) and must be a continuous identifiable period of a half hour or more. The purpose is to limit minor incidental overtime claims.

If the purpose of the provision were to confer an overtime entitlement by permitting an employee to aggregate disparate hours worked over the course of a fortnight, then radically different drafting would have been employed to achieve it. Context, purpose and history provides no basis to ignore the clear meaning of the text[.]

(Emphasis added.)

79    As will be apparent from these reasons, the primary judge considered that the Fortnight Overtime contention involved a reading of cl 39.1 which was inconsistent with its text and purpose as it involved aggregating additional hours over separate days, which his Honour considered was inconsistent with the requirement that overtime be payable in respect of a “continuous” period.

5.    THE APPEAL

80    By its Notice of Appeal, the Federation contends that the primary judge erred in:

(a)    treating work on a “rest day” as an exhaustive proxy for work that is additional to an employee’s ordinary hours of 80 hours in a fortnight, absent any textual, contextual, or purposive reason for reading the entitlement down in that way (at PJ [99]–[100]);

(b)    conflating the two pathways to entitlement that his Honour had correctly identified, by only counting rostered shift time toward the identified entitlement for exceeding fortnightly hours, and by so doing eliminating the utility of the entitlement for exceeding fortnightly hours (at PJ [109]);

(c)    treating as “surprising” an outcome whereby an employee who has worked (for example) 84 hours and 10 minutes in a fortnight, where that employee has an entitlement to overtime for exceeding 80 hours in a fortnight, should be entitled to be paid for that overtime (at PJ [104], [108]);

(d)    regarding as consistent with the purpose of the half-hour stipulation — being to “limit minor incidental overtime claims” (at PJ [111]) — that that example worker should have a nil entitlement to overtime despite having, on the above example, worked an extra half-day over a fortnight.

81    Whilst we accept that the primary judge erred in the first respect alleged above and in other respects (which we address below), we are otherwise satisfied as to the correctness of the primary judge’s conclusion and satisfied that the appeal should be dismissed.

82    At the hearing of the appeal, the Commissioner was granted leave to file a Notice of Contention. By that Notice of Contention, the Commissioner contended that the primary judge erred at PJ [68] in concluding that, properly construed, the words “the span of hours” in clause 39.1 of the 2015 EA and the 2019 EA meant “an officer’s daily rostered hours, rather than the span of hours in which ordinary hours could be rostered”. The Federation accepted that the point raised by the Commissioner was one that was raised in the proceedings below, but opposed the grant of leave to file the Notice of Contention as it was six months out of time.

83    During the hearing of the appeal, we granted leave to the Commissioner to file and rely upon the Notice of Contention. We did so because, whilst we accepted that no good reason had been provided for the belated filing of the Notice of Contention, we were satisfied that leave should be granted in circumstances where (a) the point was raised in the proceedings below, (b) the point related purely to a constructional issue and was a concomitant aspect of the central issue as to the proper construction of cl 39.1 to which the correctness standard applies, (c) the point had been addressed in the Commissioner’s written submissions on appeal, and (d) the Federation was in a position to respond to the point, including by way of written supplementary submissions which we granted leave to file.

6.    CONSIDERATION

84    The principles applicable to the construction of an enterprise agreement were not in dispute.

85    The task involved in construing an enterprise agreement is to engage in an interpretive process to give meaning to the relevant words, consistent with their context, including the context of the agreement read as a whole and its purpose: James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566 at [65] (Griffiths and S C Derrington JJ) citing City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362 at 378 (French J); City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [53] (French J); WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ). It has been accepted that the relevant context may include “... ideas that gave rise to an expression in a document from which it has been taken”: Short v FW Hercus Pty Ltd [1993] FCA 72; 40 FCR 511 at 518 (Burchett J).

86    The text of cl 39.1 makes plain that there are two “pathways” or circumstances in which employees are entitled to a payment for time worked in the nature of overtime: first, where the employee is required or permitted to perform work additional to “ordinary hours of work” and, second, where such work is performed “outside the span of hours”. In both circumstances, an entitlement to a payment for overtime only arises where the “time worked” is a “continuous period of half an hour or more.” The primary judge made findings to this effect at PJ [97]-[99] and [101]-[102], which we consider to be plainly correct.

87    The real question upon which the outcome of the appeal turns is the meaning of the words “ordinary hours of work” and “span of hours”.

88    Both cll 25.2 and 30.1 refer to the expression “ordinary hours of work”. Clause 25.2 provides that the “ordinary hours of work” for full-time employees “will be” 80 hours per fortnight, whereas cl 30.1 provides that “ordinary hours of work” for employees “will be” eight hours per day worked continuously. Other clauses also identify “ordinary hours of work” in a similar way for different cohorts of employees (as set out above). Although these clauses refer to different concepts (one, the “ordinary hours of work” per day and, the other, the “ordinary hours of work” per fortnight), they use the same expression (“ordinary hours of work”) to refer to those concepts. The primary judge observed at PJ [67] that there was an “interrelationship” between these two concepts. We agree but would go further. In our view, the fact that the same expression (“ordinary hours of work”) has been used in relation to the two concepts provides a strong textual indication that they are two different ways of expressing the singular idea of an employee’s “ordinary hours of work” in that those hours are eight hours per day and 80 hours per fortnight. There is a symbiotic relationship between the two because the latter is a function of employees working 10 shifts of eight hours’ duration each fortnight on a regular roster.

89    We do not accept the Federation’s contention that any significance is to be placed on the fact that cl 25.2 appears in a section entitled “Ordinary Hours of Work for Full time employees other than Recruits” (emphasis added) and cl 31.1 appears in a section entitled “Arrangement of Ordinary Hours of Work for Reservists” (emphasis added). Putting to one side the labels in the titles to the respective sections, the content of cll 25.2 and 30.1 are materially indistinguishable in a substantive sense, other than that one refers to hours per day and the other hours per fortnight.

90    The Federation’s submissions went further. The Federation argued that cl 25.1 provided for a definition of ordinary hours of work whereas cl 30.1 provided for the employee’s rostered span of hours. In so doing, the Federation relied upon the primary judge’s reasons at PJ [68] that “what is meant by the span of hours in clause 39.1 is the roster as determined from time to time”.

91    It is not clear precisely what his Honour meant by his statement that the “span of hours in clause 39.1 is the roster as determined from time to time”. The “span of hours” in a “roster as determined from time to time” can include the nomination of hours on a given day, the days of the week on which the employee is to work, or the total number of hours to be worked in that roster. His Honour acknowledged this in PJ [68], where his Honour reasoned that “Part 5 is the mechanism that permits the employer to determine the hours, days and times when an employee is required to perform his or her ordinary hours of work in each fortnight period according to the roster of shifts”. His Honour did not say whether the “span of hours” were the rostered hours per day or over a fortnight. Nor did his Honour say that the expression meant the “rostered span of hours on a day” as contended for by the Federation. Those words do not appear in cl 30.1. Although cl 30.2 provides that the employer may require an employee to work ordinary hours of work according to a “roster of shifts” which may “span” across a range of unsociable or intrusive hours, in our view the reference to the span here is to the span of rostered shifts across unsociable and/or intrusive hours.

92    Further, on the construction that the Federation advances, and the primary judge appears to have seemingly accepted, the words “span of hours” are in effect to be read as meaning “eight hours per day”. This is inconsistent with the express words of cl 30.1 which refers to those being a relevant employee’s “ordinary hours of work”.

93    The Commissioner contended (including by way of its Notice of Contention) that the words “span of hours” meant “the span of hours in which ordinary hours could be rostered”. It submitted that this conclusion was consistent with the ordinary meaning of the phrase “span of hours”, which is also sometimes referred to as a “spread of hours”. To this end, the Commissioner relied upon the Macquarie Dictionary definition of the expression “span of hours” as being “noun a formula prescribing a period in each day during which an employee’s hours of work are to be performed, and outside which no work is to be performed except at overtime rates” (original emphasis).

94    Both the Federation and the Commissioner relied upon predecessor enterprise agreements to shed light on the meaning of the words “span of hours”. The difficulty with these contentions is that the clauses are not the same and are expressed differently, and contain subtle variations. We were not assisted by the historical arrangements in resolving the dispute about the meaning of words in the 2015 EA and the 2019 EA.

95    We consider that the words “span of hours” are intended to be a reference to where, in respect of particular cohorts of employees, the 2019 EA expressly specifies a span of hours within which an employee may be required to work. This coheres with the ordinary meaning of the word “span”, which ordinarily means the spread of hours in a given day. Clause 31 is the only example of such a clause. It provides that, the “ordinary hours for Reservists will be eight hours per day worked continuously between 7am to 7pm Monday to Friday”. When read together with cl 25.2, the position in relation to Reservists is that:

(a)    the ordinary hours of work for full-time Reservists are 80 hours per fortnight;

(b)    the ordinary hours of work for full-time Reservists are also eight hours per day; and

(c)    Victoria Police may only require Reservists to work between 7 am to 7 pm Monday to Friday.

96    The effect of this is that for the purposes of cl 39.1, Reservists will be entitled to payment for overtime for the period of time that is a continuous period of no less than 30 minutes which is worked beyond 8 hours in a day, 80 hours in a fortnight and, importantly, outside the hours of 7 am to 7 pm on Monday to Friday.

97    Viewed this way, it is clear that the words “span of hours” in cl 39.1 are intended to operate in respect of employees such as Reservists for whom there is a nominated span of hours of work.

98    We also consider that his Honour erred in reasoning in the Primary Judgment at [100] that Fortnight Overtime was limited to those instances where an employee works on a rest day. The entitlement of employees to receive payments for work performed on a rest day are dealt with in clause 37.7.

99    We consider that his Honour’s reasons were otherwise correct. It is clear that one purpose of cl 39.1 is to ensure that there will be no entitlement for minor overtime claims. That is reflected by the requirement that (a) the period be continuous, and (b) the period be for 30 minutes or more. The parties necessarily contemplated that there would be no payment unless the employees worked overtime for at least 30 continuous minutes. The Federation’s contention seeks to aggregate periods of less than 30 minutes and allocate them to the working of 80 hours as if that time was part of the employee’s “ordinary hours of work”. This purports to convert time that was “unpaid overtime” into “ordinary hours of work”, and it results in a period at the conclusion of the fortnightly roster period that the 2019 EA somehow treats simultaneously as “ordinary hours” (in that it is part of an employee’s eight rostered hours per day) and “overtime”. That is self-evidently anomalous.

100    The factual scenario that was accepted by the parties neatly illustrates the point. The period of time that a relevant employee spends “kitting up” before a shift is not part of that employee’s “ordinary hours of work”. It is time worked outside ordinary hours of work. Yet, the effect of the Federation’s contention is to count that time as if it was part of the employee’s “ordinary hours of work”. This construction is not congruent with either the text or purpose of cl 39.1.

101    The Federation contended that the effect of the primary judge’s conclusion was that an employee will end up working in excess of 80 hours without any additional compensation. That is so. The additional period may be relatively minor and at times it may amount to the performance of more substantial periods of time. However, that situation is entirely consistent with the text and purpose of the 2019 EA read as a whole. As we have already mentioned, the 2019 EA expressly contemplates that employees may be required or permitted to work additional hours without receiving any payment unless it is for a continuous period of 30 minutes or more. Further, cl 41 also makes it clear that employees may be required to work reasonable additional hours. The absence of compensation and the aggregation of additional hours worked by an employee may be relevant to an assessment of whether the additional hours worked are reasonable and/or whether a request by the employer to work those hours is a reasonable one. Where the hours are significant or become so over time, it may not be unreasonable for the employee to refuse to work the additional hours. Much will depend on the circumstances and these are not matters to be answered in the abstract.

102    It follows that we would dismiss the appeal.

Associate:

Dated:    14 April 2026

REASONS FOR JUDGMENT

KENNETT J:

1.    Introduction

103    This appeal concerns an issue of construction relating to payments for overtime under the Victoria Police (Police Officers (excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 (2015 Agreement) and the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (2019 Agreement), both of which were made under the Fair Work Act 2008 (Cth) (the FW Act). The key provisions of the two agreements were materially identical and in these reasons it will only be necessary to refer to the 2019 Agreement. Broadly, the dispute concerns whether overtime is payable to a category of Police officers for periods that they spent at work before and after their rostered shifts during the currency of the Agreements, where each of those periods considered individually did not meet a 30 minute threshold.

104    The appellant (the Federation) commenced proceedings against the respondent (the Commissioner) on 10 December 2024 by way of an originating application and concise statement. Both of these documents were amended in March 2025. Only declaratory relief was sought. In so far as they related to the 2019 Agreement, the proposed declarations were as follows.

1.    A declaration that, on its proper construction, cl 39.1 of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (2019 Agreement) has the effect that:

(a)    where a person to whom it applies works more than that person’s ordinary hours of work for a roster period (e.g., for a full-time employee, 80 hours in a fortnight), all time worked beyond ordinary hours of work (e.g., 80 hours) is “overtime” within the meaning of cl 39.1;

(b)    time worked before and after shifts, whether that time is more or less than 30 minutes standing alone, counts toward an assessment of whether the person has worked more than her or his ordinary hours of work.

2.    Alternatively to [1], a declaration that, on its proper construction, cl 39.1 of the 2019 Agreement has the effect that:

(a)    where a person to whom it applies works more than that person’s ordinary hours of work for a roster period by a continuous period of half an hour or more (e.g., for a full-time employee, 80.5 hours in a fortnight), all time worked beyond ordinary hours of work (e.g., 80 hours) is “overtime” within the meaning of cl 39.1;

(b)    time worked before and after shifts, whether that time is more or less than 30 minutes standing alone, counts toward an assessment of whether the person has worked more than her or his ordinary hours of work.

105    Substantially identical declarations were sought in relation to the 2015 Agreement.

106    To give an indication of the constructional issue that the Federation sought to raise, it is useful to set out cl 39.1 at this point (while noting that some aspects of the debate involved the contextual relevance of other provisions).

“Overtime” for employees other than Recruits means any time worked which is required and permitted by the employer which is additional to that employee’s ordinary hours of work or outside the span of hours as established by Part 5 and is a continuous period of half an hour or more.

107    The Federation relied on an Amended Concise Statement (the Concise Statement). The structure of the Concise Statement was as follows.

(a)    The initial paragraphs identified the parties and the persons who were bound by the 2019 and 2015 Agreements.

(b)    Part A was headed “The material facts giving rise to the claim”. Within Part A there were four sections.

(i)    A.1 (“Relevant clauses of the 2015 Agreement and 2019 Agreement and their history”) set out the relevant clauses of the 2019 and 2015 Agreements (cl 39.1 in each case) and then set out some propositions concerning the equivalent provisions in industrial instruments governing the parties and their predecessors since the 1960s.

(ii)    A.2 (“The proper construction of cl 39.1 of the 2015 Agreement and the 2019 Agreement”) set out the Federation’s primary and alternative cases as to how cl 39.1 should be construed (these being the constructions embodied, respectively, in proposed directions 1 and 2 as set out above).

(iii)    A.3 (“Context of the constructional dispute”) commenced as follows (at [13]):

As stated in Part B, the only relief the Federation seeks in this proceeding is declaratory relief as to the construction of the 2015 Agreement and the 2019 Agreement. The matters in this Part A.3 are a recitation of the Federation’s claims which give rise to the controversy as to construction. The Federation does not seek, in this proceeding, resolution of the claims set out in this Part A.3; they are set out only to provide context.

(Emphasis added.)

(iv)    At [14] the factual assertions by the Federation that were said to give rise to “the controversy” (but which, as [13] emphasised, the Federation was not proposing to prove in the proceedings) were outlined. Broadly, the claims were that some members of the Federation were required to “kit up” before beginning their shifts and to “kit down” at the end of their shifts; and that, where this process took less than 30 minutes, they were not paid overtime.

(v)    Part A.4 (“The existence of a dispute”) recorded how, in November and December 2024, the legal representatives of the Federation and the Commissioner had exchanged correspondence in which the Federation asserted, its primary and alternative constructions of cl 39.1 and the Commissioner rejected those constructions (at [15]-[16]). Paragraph [17] then said:

The Federation, having considered the CCP’s position, denies its correctness and maintains that either the Primary Construction or the Alternative Construction is correct. In the circumstances, there is a controversy between the Federation and the CCP as to the proper construction of cl 39.1 of the 2015 Agreement and cl 39.1 of the 2019 Agreement, the resolution of which will produce foreseeable consequences for the parties in terms of resolving the balance of the Federation’s claims outlined in Part A.3 above. Accordingly, this Court has jurisdiction to grant declaratory relief.

(c)    Part B, under the heading “Relief sought by the Applicant, and its legal grounds”, explained (at [18]) that, in the circumstances outlined above, the Federation sought a declaration that the proper construction of cl 39.1 was either its primary construction or its alternative construction.

(d)    Part C, headed “Harm suffered by the Applicant including a range of loss or damage”, was as follows (at [19]).

There is a meaningful prospect that resolution of the constructional dispute raised by this proceeding will lead to the out-of-court resolution of the Federation’s claims. If not, the Federation would bring a further proceeding seeking resolution of outstanding issues which might include the quantification of loss or damage sustained by individual police officers who worked, but were not paid for, either Shift Overtime or Fortnight Overtime. Those issues are not, however, raised by this proceeding. No findings as to loss or damage are sought or needed at this time.

108    The Commissioner filed a Concise Statement in Response (the Response). The Response:

(a)    took issue in some detail with the propositions in Part A.1 of the Concise Statement concerning the provisions of earlier industrial instruments (at [5]-[15]);

(b)    expounded the Commissioner’s preferred construction of cl 39.1 (which, in short, was to the effect that the 30 minute threshold in cl 39.1 applied to each individual instance of work performed in addition to “ordinary hours of work” or outside the relevant “span of hours”) and criticised the Federation’s primary and alternative constructions (at [16]-[23]);

(c)    did not expressly traverse the factual assertions at [14] of the Concise Statement concerning members being required to “kit up” and “kit down”, but described those assertions (at [21]) as “a matter which bears directly on the proper construction of clause 39.1, and necessarily forms part of the constructional exercise”;

(d)    contended (at [24]) that the Court should not make any of the declarations sought by the Federation; and

(e)    noting that the Federation had not alleged any actual loss or damage, said that the Commissioner should not be taken as making any admissions in that regard (at [25]).

109    One affidavit was filed by the Commissioner, but it was not part of the material that found its way into the Appeal Book for this appeal. No affidavits were filed by the Federation. The evidence before the primary judge also included a statement of agreed facts, relied on by the parties under s 191 of the Evidence Act 1995 (Cth) (the Statement of Agreed Facts).

110    The facts that were agreed in the Statement of Agreed Facts were, with one exception, matters of public record which were sought to be relied on by one party or the other as aids to the construction of cl 39.1. These consisted of the making of various industrial instruments (from 1946 to 2019) and the terms of those instruments. Such matters, strictly speaking, are legislative rather than adjudicative facts and do not require proof by admissible evidence (see eg Maloney v The Queen [2013] HCA 28; 252 CLR 168 at [351]-[354] (Gageler J)); however, no harm was done by including them in an agreed bundle of materials. The exception referred to earlier was [32] of the Statement of Agreed Facts, which was as follows.

There is a dispute between the parties as to the proper construction of cl 39.1 of the 2015 Agreement and cl 39.1 of the 2019 Agreement, resolution of which by this Court will produce foreseeable consequences for the parties in terms of resolving the Applicant’s claims described in Part A.3 of its Concise Statement dated 10 December 2024.

2.    Consideration of the issue of jurisdiction by the primary judge

111    The primary judge correctly recognised that it was the duty of the Court to be satisfied of the existence of jurisdiction and it was not sufficient that the parties agreed on the issue. His Honour raised with senior counsel for the Federation his concern as to whether there existed a justiciable controversy. At [6] of his reasons, having set out [32] of the Statement of Agreed Facts (which is quoted above), his Honour said:

I am satisfied that there is a matter within federal jurisdiction on that basis. There is a live controversy arising under laws made by the Parliament which is not hypothetical and where the declaratory relief that is sought by the applicant will have real consequences for the parties: Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 276 CLR 519 at [32], Kiefel CJ, Keane and Gordon JJ; [73]-[74], Gageler and Gleeson JJ.

3.    Jurisdiction

112    The proposition that a court must satisfy itself of the existence of jurisdiction is fundamental and has been described as “[t]he very first duty of any Court, in approaching a cause before it” (Hazeldell Limited v The Commonwealth (1924) 34 CLR 442 at 446 (Isaacs ACJ); and see Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, Federation Press, 2020) at 37-40). It is well recognised that jurisdiction cannot be conferred by the agreement of the parties. The same is true in an appeal; not only as to the effective invocation of appellate jurisdiction, but also as to whether jurisdiction existed at first instance. Thus, if the parties to an appeal are proceeding on the basis that the court below had jurisdiction, it may be appropriate for the appellate court to raise and consider whether that understanding is correct (see eg AgriWealth Capital Limited v Australian Financial Complaints Authority [2023] FCAFC 118; 299 FCR 319 at [18] (Perry, Downes and Kennett JJ)). At the hearing of the appeal in this case, I expressed concern as to whether the primary judge had been correct to treat the proceeding before him as one that engaged the Court’s jurisdiction and asked senior counsel for each party whether they wanted to say anything further about it. Brief submissions were made by senior counsel for the Federation.

Federal jurisdiction, declaratory relief and the need for a justiciable controversy

113    Federal jurisdiction is conferred on the High Court by ss 75 and 76 of the Constitution, and is capable of being conferred on Federal and State courts under s 77, only in respect of specified categories of “matters”. In Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; 276 CLR 519 at [26] (Hobart Airport), Kiefel CJ, Keane and Gordon JJ usefully referred to the concept of a “matter” as having two elements: “the subject matter itself as defined by reference to the heads of jurisdiction” mentioned in ss 75 and 76 of the Constitution, and “the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy”.

114    The “subject matter” aspect of this formulation causes no difficulty in the present case. The 2015 Agreement and the 2019 Agreement were made pursuant to, and gain their legal force from, the FW Act; so that any sufficiently concrete controversy about the rights and obligations arising under them is a matter “arising under” that Act within the meaning of s 76(ii) of the Constitution (see, eg, Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3) [2019] FCA 37; 284 IR 97 at [56] (Rangiah J) (Swissport)). Jurisdiction in such matters is conferred on the Federal Court by s 562 of the FW Act.

115    More difficulty arises in respect of the “concrete or adequate adversarial nature of the dispute”. It has been established since Re Judiciary and Navigation Acts (1921) 29 CLR 257 that the constitutional concept of a “matter” does not extend to an application for an advisory opinion: there must be a real dispute about legal rights, grounded in facts, whose resolution has concrete consequences for the parties. Thus, the plurality in Hobart Airport referred at [29] (citing Re Judiciary and Navigation Acts) to the “established position” that “there can be no matter … unless there is some immediate right, duty or liability to be established by the determination of the Court”.

116    In Hobart Airport, as in the present case, the relief sought was declaratory. The issue was the effect of clauses in two leases that required the lessees to make payments to Councils in lieu of rates. Two Councils, who were the applicants at first instance, were not parties to the leases but had a clear interest in establishing the meaning and operation of the relevant clauses and sought declarations to vindicate their position. The plurality said at [30] that, in these circumstances, the question as to whether there was a justiciable controversy could be addressed by asking whether the Councils had standing to seek declaratory relief according to the ordinary principles applicable to such relief. This was so because, in federal jurisdiction, the presence of a party with standing is essential to the existence of a “matter” (at [31]-[32]). Approaching the issue in that way, their Honours held that the Councils had a “sufficient” and “real” interest because the clauses in question expressly required them to notify the lessees of amounts that would be equivalent to rates and obliged the lessees to make all reasonable endeavours to enter into agreements with the Councils and make the relevant payments (at [38]). The Councils also had a “real commercial interest” in the relief sought (at [39]).

117    The other majority Justices (Gageler and Gleeson JJ) also regarded the question of justiciability as coming down to whether the Councils had standing to seek declaratory relief (at [54]). Their Honours surveyed the case law concerning what amounts to a “sufficient interest” to afford standing in some detail, concluding that the “fiscal or governmental interest” of each Council in obtaining declarations binding on the parties to the leases was a sufficient interest to establish standing (at [76]).

118    Hobart Airport was clearly a different case from the present one. One important difference is that the declarations sought by the Councils (the text of which can be seen in the reasons of the Full Court that was the subject of appeal: Clarence City Council v Commonwealth [2020] FCAFC 134; 280 FCR 265 at [34]) did not merely state what was alleged to be the correct construction of the relevant clauses in the abstract; they identified things that the lessees were (allegedly) “obliged” to do and asserted that the relevant payments in particular financial years had not been correctly calculated. That is to say, the proposed declarations in Hobart Airport identified duties that were alleged to exist and failures to perform those duties that had allegedly occurred. The claim thus crystallised a controversy about the existence and content of those duties. Another difference is that, as can be seen from the summary in the reasons of the Full Court at [23]-[32], there was a factual substratum establishing the existence of a dispute as to the amounts actually payable and the basis for the Councils’ claims. A third difference is that the relevance of the controversy to the Council’s fiscal and governmental interests was very clear.

119    These features gave the controversy in Hobart Airport a concreteness which, with respect, the present case does not have. Here, no declaration is sought to the effect that particular Police officers have been paid less than their entitlements or that there has otherwise been a contravention of the 2015 Agreement or the 2019 Agreement (which, if it occurred, would also constitute a contravention of s 50 of the FW Act). Nor is there any attempt to prove facts which would establish such a contravention. The proposed declarations would state the “proper construction” of cl 39.1 in an abstract way, without reference to particular facts. The declarations are apparently sought as a launching pad for further proceedings in which such matters would be alleged or as a basis for negotiating some other outcome.

Authorities relied upon by the Federation

120    The assertion in the Concise Statement at [17] that a controversy existed was accompanied by a footnote referring to specific paragraphs of three single judge decisions and one decision of this Court. Senior counsel for the Federation referred the Court to these cases as a basis for the parties’ position that the controversy between them was a justiciable one. Senior counsel for the Commissioner did not seek to add anything. It is necessary to address these cases.

121    Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 (Energy Australia) was a decision of Bromberg J. The applicant in that case sought a declaration that (as encapsulated at [1]):

… on its proper construction, cl 5.3 of the EnergyAustralia Yallourn Enterprise Agreement 2013 (“the EA”) has the effect that a casual employee who works overtime “is to be paid per hour two thirty-sixths of the weekly rate prescribed for the classification of work performed (double time) exclusive of any casual loading”.

122    The unions in that case contended that no justiciable controversy existed as to the construction of the relevant clause because the point had been settled by an arbitration which bound the parties (at [6]). His Honour upheld that contention (at [106], [179]) and dismissed the proceeding as incompetent. The Federation here relies on [57], where his Honour explained why “[a] genuine dispute as to the meaning and effect of a term of an enterprise agreement that confers rights or imposes obligations is a matter which may properly be said to arise under the FW Act”. That can readily be accepted as correct; however, it depends on the existence of a “genuine dispute” and thus assumes what the parties here seek to prove. Bromberg J was merely pointing out at [57] that, if a “genuine” dispute existed (so as to constitute a “matter”), it would be one “arising under” the FW Act. The proposed declaration in Energy Australia seems to have been open to criticism on the same basis as the proposed declarations in the present case, but it was attacked for a different reason and the decision therefore does not shed light on the present issue.

123    The next passage referred to by the Federation was Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033 at [19] (Teys). In this paragraph, Bromberg J was making the same point as in Energy Australia at [57]: that, if a “genuine dispute” arose as to the “meaning and effect of a term of an enterprise agreement”, the resulting matter would be one arising under the FW Act. That is clear from the authorities to which his Honour referred (which were cases concerning the meaning of “arising under” rather than the nature of a justiciable controversy). The final relief sought in Teys (which was heard and decided urgently in the context of pending proceedings in the Fair Work Commission (FWC)) was a declaration that a particular document “does not form part of, or vary” a specified enterprise agreement (at [12]). Bromberg J adjourned the application and thus did not decide whether that declaration should be made; and there does not seem to have been any argument as to whether the application gave rise to a justiciable controversy. However, it may be observed that the proposed declaration was directed to establishing whether a particular act had a particular legal effect; and his Honour was satisfied that there was “a genuine dispute… between [the parties] as to whether [the employer had] breached its obligations” under the relevant enterprise agreement (at [20]).

124    The next passage relied on, Swissport at [56], cites Energy Australia at [57] and Teys at [19] for the proposition that “[t]he interpretation of a modern award or enterprise agreement that confers rights or imposes obligations is a matter that may properly be said to arise under the Act”. This paragraph does not advance matters.

125    It was in the subsequent paragraphs of Swissport that Rangiah J turned to the necessity for “some immediate right, duty or liability to be established” (at [57]). The applicant in that case sought declarations to the effect that the “split-shifts” it was utilising were not prohibited under the relevant Award (see at [3]). The respondent unions contended that this application did not give rise to a justiciable controversy, in part because the relevant Award did not apply and because there was no evidence of the applicant’s employees actually working the split-shifts (at [59]). His Honour rejected these arguments (at [71]-[73]), although declaratory relief was refused for other reasons. There was some evidence about the applicant’s use of split-shifts (at [66]-[69]); and, although the relevant Award was not directly applicable, its interpretation was “centrally relevant” to an application that was on foot in the FWC (at [71]). Swissport was therefore a case in which a party sought a declaration to establish the proper legal characterisation of its own conduct, having led some evidence of that conduct, and where the characterisation bore directly upon a process that would affect the parties’ rights.

126    Health Services Union v Catering Industries (NSW) Pty Ltd [2023] FCAFC 82; 412 ALR 18 (Katzmann, Snaden and Raper JJ) (Catering Industries) was an appeal from a judgment of Rares J (Health Services Union v Catering Industries (NSW) Pty Ltd [2022] FCA 754). The applicant union sought declarations that the respondent was an “employer in the aged care industry” within the meaning of a clause of the relevant Award (and therefore covered by the Award) and that certain of the respondent’s employees were covered by that Award (per Rares J at [1]). That application was rejected on the merits. No issue seems to have been raised before his Honour as to whether the claim for declaratory relief gave rise to a justiciable controversy.

127    The applicant union had brought its claim for the purpose of identifying which Award covered the relevant workers for the purpose of applying the “better-off overall test” (BOOT) in the context of a bargaining process (directed towards the making of an Enterprise Agreement) that the parties were undertaking under Part 2-4 of the FW Act. The process had stalled for want of agreement as to which Award was the applicable one for the purpose of the BOOT (Catering Industries at [1]-[5]). The Federation refers to [36]-[39] where, in the course of dismissing the appeal, the Full Court turned its attention to the issue of jurisdiction. The Court referred at [37] to a statement by Gaudron J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591 at [52], where her Honour said that a declaration could not be made (and the judicial power of the Commonwealth could not be engaged) if it “will produce no foreseeable consequences for the parties”. It was then observed (citing Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 at [37]-[38] (Edwards v Santos), which is discussed further below) that it was sufficient for the anticipated “foreseeable consequences” to be ones which would have “real practical importance” for the party seeking declaratory relief. At [39], the Court expressed satisfaction that the proposed relief in Catering Industries would meet that test and would, if granted, resolve a justiciable controversy between the parties. Identification of the correct Award for the purposes of the BOOT had obvious relevance to the bargaining process and would afford the parties a measure of certainty as to whether the terms upon which they were bargaining were terms which the FWC might ultimately approve.

128    Of the cases relied upon, Catering Industries comes closest to supporting a conclusion that the application for declaratory relief in the present case involved a justiciable controversy. However, there are important differences between the two cases. Catering Industries sought to resolve an issue that had a bearing on an identified statutory process in which the parties were engaged; the issue concerned the application of an Award to an identified group of employees working at a particular location; and the application was based on facts that were proved or agreed concerning the work performed by those employees. The present case does not have those features.

Edwards v Santos

129    Edwards v Santos arose out of negotiations for an indigenous land use agreement under the Native Title Act 1993 (Cth) (the NTA) between native title claimants (the claimants) and two companies which had been granted petroleum prospecting rights under Queensland legislation. A dispute arose in the negotiations (which were mandated under an earlier agreement) as to whether the grant of a petroleum lease to the companies would be a “pre-existing rights based act” under s 24IB of the NTA. The claimants applied to the Federal Court for a declaration that any such grant would not be a pre-existing rights based act because it would be void having regard to requirements of the State legislation. Their application was dismissed for want of jurisdiction by a single judge and leave to appeal to the Full Court was refused. No appeal lay to the High Court; however, the claimants sought and obtained certiorari to quash the decisions of the primary judge and the Full Court.

130    For present purposes the leading judgment is that of Heydon J. (To the extent that there were differences of opinion among the members of the Court, they related to whether there was power to make an order for costs of the proceedings in the Federal Court and to make orders in substitution for those that had been set aside.) For present purposes, also, it is not necessary to dwell on why the controversy sought to be determined by the proposed declarations was one “arising under” the NTA (see at [40]-[45]). The point of relevance is the basis on which it was concluded that the claimants had standing to seek that relief and there was therefore a justiciable controversy (at [37]-[39]). Those paragraphs are as follows.

The jurisdiction to grant a declaration “includes the power to declare that conduct which has not yet taken place will not be in breach of … a law.” The jurisdiction also includes the power to declare that conduct which has not yet taken place will be a nullity in law. The plaintiffs are claiming that the petroleum defendants had no right to apply to the Minister under s 40 of the Petroleum Act because the ATP had ceased to be valid. The plaintiffs are claiming that there is no power in the Minister to grant a “production licence”, ie lease, under s 40, and that any attempt to grant it can be restrained by injunction. These claims are not outside the Federal Court’s jurisdiction to grant declaratory and injunctive relief. The plaintiffs have a sufficient interest to make those claims, because success in those claims would advance their interests in the negotiations which the parties were contractually obliged to conduct. The plaintiffs have standing because they have an interest in the question whether the ATP is valid which is greater than that of other members of the public. The questions which the plaintiffs wished to agitate were not hypothetical. The first defendant’s letter of 4 November 2005 had sufficiently indicated the intention of the petroleum defendants to make an application to the Minister under s 40 of the Petroleum Act and it had predicted that success would be “automatic”. If so, the plaintiffs would be seriously disadvantaged because their negotiating position would be gravely weakened; if not, the plaintiffs would be correspondingly better off. If the plaintiffs obtained the first declaration sought, it would produce foreseeable consequences for the plaintiffs and the petroleum defendants by allowing them to continue the process of negotiating the new ILUA armed with knowledge of the correct legal position in relation to the ATP.

An example of how a person can have standing to obtain a declaration and how a court can have jurisdiction to grant a declaration is afforded by Aussie Airlines Pty Ltd v Australian Airlines Ltd [(1996) 68 FCR 406]. Head leases of airport facilities compelled the head lessee to grant a sublease to any “new entrant to the domestic aviation industry”. An applicant claiming to be a “new entrant” was held to have standing to obtain a declaration that it was a “new entrant” even though it was not found to have rights under the head leases enforceable against the head lessee. Lockhart J (Spender and Cooper JJ concurring) said that the question was not “hypothetical”, it was of “real practical importance” to the applicant, the applicant had a “real commercial interest” in the relief, the head lessee was “plainly a contradictor”, and there was “obviously a real controversy”. So here, whether or not the plaintiffs have rights enforceable against the petroleum defendants, the question whether the ATP is valid is not hypothetical, it is of real practical importance to the plaintiffs, they have a real commercial interest in the relief, the petroleum defendants (and Queensland) are plainly contradictors, and there is obviously a real controversy.

Hence the first declaration which the plaintiffs seek about the petroleum defendants' rights is one which a court of equity has jurisdiction to grant; the plaintiffs have standing to seek it; the question they raise is not hypothetical, but concrete and real; and the opinion they seek is not merely advisory.

(Footnotes omitted.)

131    Edwards v Santos demonstrates the broad reach of the declaration as a remedy. However, it does not contradict the observation in In re Judiciary and Navigation Acts at 267 that power cannot be conferred on the High Court to determine “abstract questions of law without the right or duty of any body or person being involved”. That passage was described in Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 303 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ) as involving two critical concepts: “an abstract question of law not involving the right or duty of any person”; and “the making of a declaration of law divorced or dissociated from any attempt to administer it”. While these statements are not directed at the issue of standing to seek declaratory relief, they indicate the nature of the barrier that is reached if an application for such relief is insufficiently grounded in facts or insufficiently connected to the actual rights and obligations of identified persons. As was later emphasised in Hobart Airport, the principles governing standing to seek declaratory relief do the work of ensuring that courts exercising federal jurisdiction are not called on to decide “abstract questions”.

132    With these considerations in view, it becomes apparent that Edwards v Santos does not determine the outcome of the present case. The declaration sought in that case was to the effect that specific future acts (which were in prospect) would be nullities and would therefore not have particular legal consequences. The nullity of those future acts had demonstrated relevance to a mandated negotiation process that was in train between the parties and would affect their interests.

Conclusion on jurisdiction

133    Assuming (as one should) that the claims concerning members being required to “kit up” and “kit down” at [14] of the Concise Statement were based on information obtained from one or more of those members, it would have been a relatively simple matter to obtain admissible evidence concerning the amounts of time over and above their rostered shifts that those members were required to spend on this activity. A case could then have been formulated seeking declarations of contraventions of s 50 of the FW Act, and potentially compensation and pecuniary penalties, in respect of particular members. If appropriate, the issue of construction of cl 39 could have been reserved for separate consideration by way of a case stated under r 38.01 of the Federal Court Rules 2011 (Cth) based on agreed facts or specific allegations of fact. If successful, the outcome of such a proceeding could form the basis for claims on behalf of other members or negotiations to compromise such claims. The point of making these observations is not to complain that the wrong approach was taken, but to indicate that jurisdictional limits on claims for declaratory relief are (at least generally) not inimical to the efficient and fair resolution of real disputes.

134    The case as presented before the primary judge and on appeal was, in contrast, ethereal. Submissions about the competing constructions of cl 39.1 ranged across a range of scenarios, all of which were hypothetical. The Federation declined to present any evidence as to adjudicative facts – including as to whether there actually are members whose interests are affected by the competing constructions of cl 39.1 – or to plead any such facts and undertake to prove them. Instead, it sought to obtain the opinion of the Court on a pure question of construction which, if favourable, could then be deployed in future proceedings or in some other way (suggesting that the factual foundation for what is said to be the parties’ dispute might never be put before a court). Meanwhile, the answer to the question of construction was not (as in, for example, Edwards v Santos or Catering Industries) shown to be a significant integer in any proceeding or other process in which the parties were involved. The Commissioner went along with this approach, presumably regarding it as convenient to obtain a binding opinion on the issue of construction; however, as noted above, that consensus cannot be determinative.

135    This was, to adopt the language of some of the cases referred to above, an attempt to obtain the determination of an “abstract question of law not involving the right or duty of any person” and a “declaration of law divorced or dissociated from any attempt to administer it”. There could be no sound determination of any party’s rights or duties in a proceeding where the construction of one clause of the 2019 Agreement was treated as the entire subject-matter, without any scope for having regard (except as part of the context in the construction exercise) to, for example, other rights that parties might have under that Agreement or the potential overriding effect of the National Employment Standards in Division 2 of Part 2-2 of the FW Act.

136    For these reasons, in my respectful opinion, the primary judge erred by failing to hold that the originating application did not engage the jurisdiction of the Court.

4.    Disposition

137    The result is that the final order that his Honour made was correct, albeit for reasons antecedent to consideration of the substantive issues of law. The appeal should therefore be dismissed.

138    Had my opinion on the jurisdictional issue prevailed, it would be inappropriate to express any concluded view on the construction of cl 39.1. Because I am in the minority on the question of jurisdiction, it is appropriate to record that I agree with the reasoning of Snaden and Shariff JJ on that issue.

Associate:

Dated:    14 April 2026