Federal Court of Australia

Police Federation of Australia (Victoria Police Branch) v Chief Commissioner of Police (Victoria) [2025] FCA 865

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

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

REASONS FOR JUDGMENT

MCELWAINE J:

The issue

1    The issue that divides the parties is the construction and effect of two clauses in Enterprise Bargaining Agreements dated 2015 and 2019 concerned with overtime payments to certain members of the Victoria Police Service. The Agreements in issue are the Victoria Police (Police Officers (excluding Commanders), Protective Service Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 (2015 EBA) and the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (2019 EBA).

2    There is no material difference between the clauses in issue and for that reason I confine my analysis to the 2019 EBA, or simply the Agreement.

3    The Agreement was approved by the Fair Work Commission pursuant to s 185 of the Fair Work Act 2009 (Cth) (FWA), to operate from 1 April 2020, with a nominal expiry date of 30 November 2023. It is divided into 20 Parts plus Schedules and an Appendix. Part 6 is concerned with overtime. The applicant is a party to the Agreement and represents the industrial interests of police officers in Victoria. It seeks declaratory relief as to the meaning of clause 39 of the Agreement which provides:

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 established by Part 5 and is a continuous period of half an hour or more.

39.2 “Overtime” for Recruits means any time worked which is in excess of 76 hours in a fortnight.

39.3 For the purposes of this clause “work” includes travelling from and returning to an employee’s station in connection with specific work but does not include:

a.    meal breaks, except as provided for in clause 74; and

b.    that part of any period spent away from the employee’s station during which no specific work is performed; and

c.    any time spent commuting to and from the station to which they are attached; and

d.    any time spent in travelling to another state or territory of the Commonwealth to take up interchange work or travelling overseas on special work, or work performed overseas or interstate other than situations where an employee is deployed as part of a Victoria police response to an emergency or to a special event interstate or overseas.

(Emphasis in original).

4    Clause 25 provides that the ordinary hours of work for full-time employees, other than recruits, will be 80 hours per fortnight.

5    The applicant provides context to the dispute in the Amended Concise Statement as follows. Its members who were police officers to whom the 2015 EBA applied and to whom the 2019 EBA applies were required and permitted to “kit up” before the start of a shift and “kit down” at conclusion of a shift. In some cases the time taken did exceed one half hour, in which case overtime was payable. In other cases the time taken did not exceed one half hour, although over the course of a fortnight if each individual time period is added together, and then added to the ordinary hours worked, the effect was that a member worked more than 80 hours in a fortnight. Members in the latter category have not been paid for overtime worked. The respondent does not admit these facts. I am not tasked in this proceeding to determine the scope or quantum of any overtime claim. The justiciable controversy that the parties identify in their pleadings and which finds crisp expression in the Statement of Agreed Facts (received pursuant to s 191 of the Evidence Act 1995 (Cth)) is:

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….

6    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.

7    The declaratory relief the applicant seeks in the Amended Originating Application pursuant to the 2019 EBA is framed as:

1.    A declaration that, on its proper construction, cl 39.1 of the [2019 EBA] 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 EBA] 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.

8    Identical declaratory relief is sought in respect of clause 39 of the 2015 EBA.

9    The respondent in opposing the applicant’s claims helpfully summarises his construction contention in the Concise Statement in Response:

On a proper construction of clause 39.1 of the Agreements, overtime is payable where an eligible employee:

a.    performs work;

b.    which is required and permitted by the employer;

c.    which is:

i.    additional to the employee’s ordinary hours of work established by Part 5; or

ii.    outside the span of hours established by Part 5; and such work is for a continuous period of half an hour or more.

10    Commendably the parties have crisply framed the issue for determination consistently with the overarching purpose at ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth).

Submissions

11     The applicant frames the alternative constructions by reference to the labels Fortnight Overtime and Shift Overtime. It does so recognising that clause 39.1 provides for two types of overtime. On its construction, Fortnight Overtime is work “additional to the employee’s ordinary hours of work”, relevantly 80 hours per fortnight which is the first limb of clause 39. Shift Overtime, the second limb, is work “outside the span of hours as established by Part 5”, which is concerned with hours of work rostered in accordance with clauses 28 – 38. Within that group of clauses there is a provision for the arrangement of ordinary hours of work for Constables, Senior Constables, Sergeants and Senior Sergeants at clause 30 which provides:

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.

12    The applicant accepts that the half hour threshold applies to Shift Overtime and “the kernel of the dispute is the interaction of the half hour threshold with the provision for Fortnight Overtime.” The primary construction that it submits is correct has the effect of rearranging clause 39 (the terminology used in submissions is “breaks up”) as follows:

“Overtime” for employees other than Recruits means any time worked which is required and permitted by the employer which is [:]

[a] additional to that employee’s ordinary hours of work [Fortnight Overtime] [;] or

[b] outside the span of hours is established by Part 5 [Shift Overtime] and is a continuous period of half an hour or more.

13    Read in that way the submission identifies two ways that an employee may earn overtime. First, by the uncontroversial pathway where, for example, an employee is rostered an eight-hour shift from 9 am to 5 pm but instead works until 5:45 pm. The employee is entitled to payment for 45 minutes Shift Overtime.

14    Second, proceeding on the applicant’s controversial Fortnight Overtime construction, 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. He or she has worked Fortnight Overtime to which the half hour threshold does not apply.

15    The applicant’s alternative construction accepts that the half hour threshold applies to Shift Overtime and Fortnight Overtime. The applicant then rearranges the clause as follows:

“Overtime” for employees other than Recruits means any time worked which is required and permitted by the employer which is [:]

[a] additional to that employee’s ordinary hours of work [Fortnight Overtime], [;] or

[b] outside the span of hours established by Part 5 [Shift Overtime] [,]

and is a continuous period of half an hour or more.

16    Proceeding in that way, the applicant submits that, first, and consistently with the preferred construction, an employee who works 45 minutes more on one eight-hour shift is entitled to Shift Overtime. Second, working from the example above, the employee accumulates total time worked of 84 hours and 10 minutes over the course of an 80 hour fortnight and therefore has worked in excess of 80 hours over continuous periods of half an hour or more. To understand how that is put, I set out the example from the written submission:

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.

17    The applicant submits that its construction is consistent with the text of the 2019 EBA read as a whole, adopting a purposive approach, read in context and having regard to the background history evidenced by previous industrial determinations, awards and agreements dating as far back as November 1946.

18    Delving further into the last point, the applicant relies on a detailed historical analysis of overtime in the Victoria Police force commencing with the Police Regulation Act 1946 (Vic) and Determinations made by the Police Classification Board, and later the Police Service Board, commencing with Determination 1 of 13 November 1946. The analysis proceeds across Determinations 7 (16 March 1949), 19 (26 June 1949), 25 (5 May 1950), 41 (1 December 1952), 47 (23 December 1953), 59 (23 July 1956), 85 (30 August 1960), 107 (15 November 1963), 124 (18 April 1966), 160 (23 February 1970), 179 (14 December 1971) and 184 (29 February 1972). In some cases, the reasons for Determinations are also referenced. Next, and staying with the State regulatory environment, the applicant refers to the Victoria Police Award (No 1 of 1992) (1992 Award), the Victoria Police Enterprise Bargaining Agreement 1995 and the Victoria Police Collective Employment Agreement 1996.

19     From 17 December 1996, in consequence of the Commonwealth Powers (Industrial Relations) Act 1996 (Vic), for Victoria Police members below the rank of Assistant Commissioner the terms and conditions of employment became the responsibility of the Australian Industrial Relations Commission. No federal award has applied. Commencing in June 1998 the certified agreements and enterprise agreements relied on are the Victoria Police Force (Police Officers, Protective Services Officers, Police Reservists & Police Recruits) Certified Agreement 1998, the Victoria Police Certified Agreement 2001, the Victoria Police Workplace Agreement 2007, the Victoria Police Force Enterprise Agreement 2011, the Victoria Police Force (Commanders) Enterprise Agreement 2011 and then ultimately the 2015 EBA and the 2019 EBA.

20    The applicant submits that generally, though not uniformly, in the early equivalents distinction was drawn between what it now labels as Shift Overtime and Fortnight Overtime, where the latter was not subject to a minimum threshold. As an example, the earliest instrument which referenced undertaking work in excess of 80 hours in a fortnight is Determination 7 issued on 16 March 1948. A claim for payment for overtime was rejected, the reason being continuance of the practice of allowing time off in lieu. In giving reasons, the Police Classification Board stated:

The Board has refused the claims for any overtime payments for work performed in excess of 8 hours daily, or in excess of 40 hours in each week. Therefore it has prescribed that the present practice of “time off” in lieu of “overtime” will continue.

21    To that end, clause 1 of the Determination, in prescribing hours of duty and overtime at sub-clause (i), provided:

When a member of the police force is so required to perform his duties for any period in excess of eighty (80) hours in any working fortnight or when the Chief Commissioner of police is satisfied that circumstances require a member of the police force to perform actual duties for any period in excess of eighty (80) hours in any working fortnight such member of the police force (as the case may be) shall be allowed time off in lieu thereof as soon thereafter as is practicable.

22    There was no minimum qualifying threshold. That drafting, more or less, was replicated in various further determinations until Determination 107 made by the Police Service Board on 15 November 1963. It introduced at clause 43 payment for overtime, in excess of 8 hours in a day or 80 hours in a fortnight, but at clause 51 limited the entitlement “in respect of any duty of less than two consecutive hours or in excess of eight hours”.

23    The drafting style was altered in Determination 124, published on 18 April 1966. Clause 42(1) relevantly provided:

For the purposes of this Sub- Division “overtime duty” means and includes:

a.    any duty performed in excess of eight hours on any day, other than a rest day;

b.    any duty performed on a rest day;

but in either case does not include any duty performed unless it was for a continuous period of not less than one half-hour.

24    The applicant submits that this clause was confined to the equivalent of Shift Overtime, in that the equivalent of Fortnight Overtime was separately addressed at clause 55, which repealed clause 90 of Determination 107 and substituted as clause 90(1) the following:

90(1) When a member, other than a member referred to in sub-paragraph (2) hereof, is so required to perform his duties for any period in excess of eighty hours in any working fortnight, or when the Chief Commissioner is satisfied that circumstances required such a member to perform actual duties for any period in excess of eighty hours in any working fortnight, such member shall be allowed time off in lieu thereof as soon thereafter as is practicable.

(2) Sub-paragraph (1) of this paragraph shall not apply to a member to whom any of the provisions of Sub-Division IX of Division 111 apply.

25    The meaning of the qualification is controversial, to which I return later in these reasons.

26    The applicant’s submissions continue that the equivalent distinction between Shift Overtime and Fortnight Overtime was maintained in subsequent Determinations until 29 February 1972 when, in Determination 184, the primary entitlement was to receive paid overtime with the right to elect to be given time off in lieu. The equivalent of Shift Overtime was subject to a half-hour threshold, but the equivalent of Fortnight Overtime was not, where the entitlement was time off in lieu.

27    Moving to federal regulation, on 23 June 1998, the first instrument was the Certified Agreement 1998. Unsurprisingly, the drafting style was significantly altered. Clause 13 dealt with shifts, days off and overtime. Clause 13.3.4 required that rosters be constructed to provide a minimum of four rest days per fortnight averaged over the roster cycle. Clauses 13.3.6 and 13.3.7 provided:

13.3.6 Overtime shall be paid for hours worked in excess of rostered ordinary hours of the day.

13.3.7 Overtime shall be paid for periods worked in excess of the total ordinary hours of duty in the roster cycle.

28    No minimum threshold applied. That changed when the Certified Agreement 2001 commenced on 20 December 2001. By clause 3.1.2 the ordinary hours of work for a full-time member were determined at 80 per fortnight. Clause 3.2.2.1 provided that the ordinary hours of a full-time member “will be worked continuously eight hours per day”. Clause 3.2.2.4 required four rest days to be allowed each fortnight, and where practicable one was to be a Sunday. Clause 3.6 dealt with overtime, defined as:

“Overtime” means any time worked which is additional to the member’s ordinary hours of work as established by clause 3.1 or 3.3 or outside the arrangement of hours established by clause 3.2 of this Agreement and which is expressly authorised or directed by an officer.

29    Clause 3.2.1 provided that “the times of commencement and cessation and the days on which ordinary hours of work are to be worked by a member, shall be determined by the employer”. Then clause 3.6.1.2 applied a threshold to all overtime:

Overtime does not include restrictive work, the provisions for which are set out in clause 3.15 or any work unless it was for a continuous period of half an hour or more.

30    The applicant describes this as the “regrettable step of collapsing the definition” into a single clause. That was repeated in the Workplace Agreement 2007 at clause 6.1.1. The applicant submits that this alteration in drafting style is the source of the contested ambiguity in the 2019 EBA.

31    The applicant makes the following points from the extensive essay of all of the historic material. Since 1946 there has been an entitlement to time off in lieu for the equivalent of Fortnight Overtime, without a minimum threshold. From 1953, the equivalent of Shift Overtime was introduced with diminishing thresholds of qualification. The equivalent of Fortnight Overtime was separately determined as conferring a right to time off in lieu, without a minimum threshold qualification. Despite multiple Determinations and one State Award, that position prevailed until the Certified Agreement 2001, which collapsed the drafting into a single clause and created the ambiguity whether each type of overtime is subject to a minimum threshold. That alteration is to be considered against the fact that for approximately 55 years between 1946 and 2001, no minimum threshold applied to the equivalent of Fortnight Overtime. Members of the police service who worked in excess of the minimum weekly or fortnightly hours were entitled to time off in lieu. Thus, the endpoint of the applicant’s historical excursion is put in this way:

Given that, for nearly all of the history of provision for overtime in industrial instruments affecting officers, there has been no threshold of any kind for Fortnight Overtime, the better construction is that the half-hour threshold applies only to Shift Overtime, and not to Fortnight Overtime. That is the primary construction.

Nothing in the industrial history supports the Commissioner’s construction, which writes Fortnight Overtime out of the agreement: an officer could never qualify for Fortnight Overtime unless he or she had already qualified for Shift Overtime. Fortnight overtime would achieve nothing. That is irreconcilable with the history from 1946 to the present of distinguishing between Shift and Fortnight Overtime as two separate entitlements, and with orthodox principles of construction which require that every clause have work to do.

32    In contrast the respondent submits, or at least primarily did so in his written case, there are only two methods whereby an employee qualifies to receive overtime. One is to work more than eight hours in a day, which is the ordinary hours of work: clause 30.1. The other is to work on a rest day, which follows from the fact that the fortnightly roster requires the employer to provide four rest days, when read with clause 25.2 which provides that the ordinary hours of work for full-time employees other than recruits is 80 per fortnight. Put another way 10 shifts of 8 hours each fortnight produces the ordinary fortnight hours.

33    Hence the textual meaning of clause 39 is clear: an employee is only entitled to be paid overtime “where the period of work was in addition to his or her ordinary hours of work and for a continuous period of half an hour or more”. On the applicant’s alternative construction case, the central difficulty is that it combines the employee’s ordinary hours of work with time worked in addition to those hours for the purpose of calculating the half hour threshold, which is inconsistent with the plain textual meaning of clause 39, the relevant history and the purpose of the provision.

34    In written submissions, the respondent criticised the applicant’s arguments as traversing the large field of historic industrial determinations, awards and agreements as not assisting the construction issue and in doing so emphasised the distinction between the statutory effect of an enterprise agreement, and with it the potential liability for civil penalties pursuant to the FWA Act. However, in oral submissions, I was taken extensively to this material by Mr O’Grady KC counsel for the respondent. The point of doing so was to emphasise that Shift Overtime and Fortnight Overtime are each artificial constructs. The submissions were put without objection from Ms Burke KC, the applicant’s counsel. However, in her oral reply Ms Burke did object and fairly raised the issue of prejudice. She did not apply for an adjournment and was content to address new arguments in supplementary written submissions. I granted leave to do so, as well as further leave to the respondent by rejoinder. The submissions have been received and considered.

35    Returning to the respondent’s newly discovered taste for history, the submission proceeded that reference to prior determinations and awards reveals that historically overtime could only accrue if an employee worked more than 80 hours in a fortnight by either working more than 8 hours in a day or by working on a rest day, and in each case a minimum threshold applied. There was no scope for the accrual of any equivalent to Fortnight Overtime as a discrete entitlement. The correct approach is to recognise the consistent relationship between eight ordinary working hours on each day and four rest days per fortnight to derive the 80 hour ordinary hours fortnight.

36    The respondent submits that the pattern it identifies was relatively consistent from Determination 7 published on 16 March 1948. It is unnecessary to refer to each of the instruments to which I was taken in oral submissions by way of illustration. One or two examples are sufficient.

37    Determination 107 published on 18 November 1963, at clause 43 relevantly provided:

In the event only that a member, not above the rank of Station Officer and not being a Detective, performs duty in excess of eight hours on any day or in excess of 80 hours in any working fortnight (as the case may be) and has not been given time off in lieu as provided in paragraph 90 hereof, within a period of three months directly next ensuing after such duty was performed, subject to the provisions of this Sub- Division, he shall be paid an overtime allowance for such duty at the appropriate hourly rate as hereinafter fixed…

38    Clause 51 provided that no allowance “shall be paid in respect of any duty of less than two consecutive hours or in excess of eight hours”. The respondent submits that, accordingly, each method of deriving an entitlement to be paid overtime was subject to a minimum threshold. Another example is clause 42 of Determination 124, which is set out at [23] of these reasons and which the respondent submits clearly limited all overtime entitlements by a minimum threshold.

39    A further instrument which the respondent submits contained no ambiguity, is the 1992 Award. Subdivision VI dealt with overtime and penalty rates. It did not apply to a member above the rank of Senior Sergeant or Detective. Clause 38(1) relevantly provided:

(1)    For the purposes of this Sub-division “overtime-time” means and includes:

a.    Any duty performed in excess of eight hours on any day other than a rest day or on a day of recreational leave, but including any duty performed in excess of eight hours on any day during a period when the member has been recalled from rest day or from recreational leave…; or

b.    any duty performed on a rest day or on a day of recreational leave in respect of which she has not been recalled to duty…

but in either case does not include any duty performed unless it was for a continuous period of not less than half an hour.

40    This provision is to be read with clause 88 which required the Chief Commissioner to grant to each member four days off duty in every working fortnight as rest days. Although clause 95 made provision for time off in lieu, where a member was required to perform duties for any period in excess of 80 hours in any working fortnight (without any minimum qualification), it did not apply “to a member to whom subdivision VI, of Division III apply”. That is, including members within clause 38.

41    Nor was there any ambiguity in the Certified Agreement 2001, which applied a minimum threshold for all overtime of a continuous period of half an hour or more pursuant to clause 3.6.1.2. In each of the subsequent federal instruments (Workplace Agreement 2007 and the Enterprise Agreement 2011) all overtime entitlements were expressed subject to the continuous half hour threshold: clause 6.1.1 (2007); and clause 37.2 (2011).

42    Accordingly, the respondent submits that when one examines the history of the predecessor instruments, notably from the “fundamental change” made in 1966 by Determination 124, there is consistency in that overtime is qualified by a minimum threshold objectively operating “as an important constraint on the capacity for hours worked to give rise to an overtime entitlement”. The applicant’s construct of Fortnight Overtime cannot be reconciled with the historical fact that there were only two pathways to earning an entitlement to overtime: working more than eight hours in any day; or working on a rest day. Acceptance of the arguments advanced by the applicant denudes the continuous threshold requirement because “it would mean that work performed by officers within the threshold in a given shift would nonetheless be compensated at the end of the fortnight in any event”.

43    The applicant’s supplementary reply to these submissions commences with the correct observation that the respondent, contrary to what appeared to be his position, now denies that there has ever been a Fortnight Overtime entitlement in the historical instruments. The applicant submits that proposition is plainly wrong because, when the material is considered it is clear that “exceeding fortnightly hours has not been treated as the equivalent of exceeding shift hours or working on a rest day; references to fortnightly hours are references to fortnightly hours, not roundabout references to shift hours or rest days.”

44    The applicant highlights clauses in several of the instruments. To understand this submission, it is not necessary to address each of them. Determination 7 (1948) is structured in three parts: (1) duties must be performed during a shift of eight hours on each day of the week; (2) four days off duty must be granted in every working fortnight; and (3) the overtime requirement was nonetheless expressed in terms of performing duties for any period in excess of 80 hours in any working fortnight, with the entitlement to time off in lieu. If the intention had been to confer an entitlement for working on a rest day, or in excess of eight hours in a day, the Board would have said just that.

45    In Determination 47 (1953), monetary entitlements were provided at clauses 2 and 3 for: (1) performing duty in excess of eight hours on any day; (2) performing duties in excess of 80 hours in any working fortnight; and separately (3) for performing duty on a rest day, for which the entitlement was time off in lieu and if not conferred within a period of three months, an additional allowance.

46    The pattern of separate provision for shift hours, rest days and fortnight hours was continued up to 1963 in Determinations 59, 85 and 107. Even when the structure of the provisions and the drafting was significantly altered from 1966 to 2001, there was always provision for “a freestanding and threshold overtime entitlement for exceeding 80 hours in a fortnight”, with no carve out so as to exclude non-rostered periods of 29 minutes or less. Overall, it should be concluded that the policy of the provisions “clearly denied the Commissioner of the ability to require members to work up to an extra day a fortnight without compensation”.

Consideration

47    The construction principles are well understood. In James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566 at [65], Griffiths and S C Derrington JJ observed:

The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:

i.    The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).

ii.    A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] IR 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).

iii.    Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “... the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).

iv.    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 51; 40 FCR 511, 518).

v.    Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).

vi.    A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).

vii.    Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).

48    As recently observed by Lee J, the construction task does not “jar with the general way in which one approaches the task of construing a contract” where “[t]he starting point is the ordinary meaning of the words read as a whole, understood in the light of the instrument’s context and purpose”: Tasmanian Water and Sewerage Corporation Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2025] FCA 39 at [26].

49    Something more needs to be said about the utility of referencing the historical antecedents as aids to the construction of the modern provisions in issue. Although much time was spent examining the history, few direct submissions were made about its usefulness. In James Cook University, proposition (v) directs attention to Short v F W Hercus Pty Ltd [1993] FCA 72; (1993) 40 FCR 511 at 518, in the judgment of Burchett J in the Full Court (with whom Drummond J agreed). That case concerned the interpretation of a redundancy clause in an award, upon an appeal from a decision of the Industrial Court of South Australia, which the primary judge upheld. His Honour considered “the wider context of the award provision as the product of a series of decisions which might reveal plainly its general purpose and policy” (520), commencing with earlier decisions of the Supreme Court of South Australia as to what was meant “in industrial circles” by redundancy. The analysis extended to the Termination, Change and Redundancy Case (1984) 8 IR 34, where all the material clarified any ambiguity in the drafting of the provision in issue (522).

50    In reasoning to the ultimate conclusion, his Honour extensively analysed the relevance of historical antecedents to context at 517-520, observing at 518:

The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.

51    Although that was an award case, the same principles apply to enterprise agreements: One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527 at [189], Bromberg, Katzmann and O’Callaghan JJ; Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2022] FCAFC 50; (2022) 291 FCR 531 at [27]-[28], Besanko J; Bromberg J agreeing; and Corporate Air Charter Pty Ltd v Australian Federation of Air Pilots [2025] FCAFC 45 at [8], Logan, Dowling and McDonald JJ. There is authority at the level of the Full Court that it is unnecessary to identify ambiguity before considering antecedent material: Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]-[18], Marshall, Tracey and Flick JJ. The parties did not submit otherwise.

52    However, as with statutes, historical antecedents cannot displace the meaning of the text of the Agreement and nor “is their examination an end in itself”: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39], French CJ, Hayne, Crennan, Bell and Gageler JJ. With respect to the applicant’s arguments, the intensive focus on the history of the provision of overtime for police officers stretching back to November 1946 at times distracted attention from the structure and text of the modern provisions of the Agreement which is the starting point (again by analogy with statutes): SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14], Kiefel CJ, Nettle and Gordon JJ.

53    I commence with the structure of the 2019 EBA, so far as relevant to hours of work, rostering, overtime and personal leave. Part 5, commencing at clause 25, is titled: Hours of Work and Rostering. Clause 25.2 provides for the ordinary hours of work as follows:

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).

54    Other than for employees holding the rank of Inspector or above, clause 25.3 provides that: “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”. That differs from the ordinary hours of work for Recruits which, by clause 26.1: “will be 76 hours per fortnight with a minimum of 4 rest days per fortnight”. The Police Service must be staffed 24 hours per day and seven days per week, which is expressly recognised at clause 12.3:

In recognition of the fact that Victoria Police operates 24 hours per day, seven days per week including public holidays and may roster accordingly, all employees will be granted leave in accordance with Part 15.

55    That fact is reflected in the arrangement of the ordinary hours of work for Constables, Senior Constables, Sergeants and Senior Sergeants at clause 30.1 (set out at [11] above), the effect of which is that the employer determines the roster, where ordinary hours are required to be worked at times most people would consider as uncivil.

56    That arrangement does not apply to Reservists, the ordinary hours of which are eight hours per day worked continuously between 7 am and 7 pm Monday to Friday: clause 31.1. The employer is required to publish a roster for each work area, 21 days prior to commencement of the roster: clause 35.1. If an employee’s rostered shift is changed without the employee having requested the change, 72 hours’ notice must be given, or if not the employee is entitled to be paid an additional amount of 25% of their base hourly rate of pay for the duration of the changed shift: clause 36.1.

57    Clause 37.1 deals with rest days and provides:

The employer must roster each employee a minimum of four rest days in a fortnight. In each financial year an employee is to be rostered two consecutive rest days on at least 15 locations including, where practicable, 10 weekends. This requirement is exclusive of any period an employee is on recreational leave. Where an employee is absent from work for part of the financial year other than on recreational leave the requirement shall be on a pro rata basis.

58    If an employee’s rest day is altered, an alternative rest day must be allocated within the same fortnight (clause 37.6) and if not the employee is entitled to be paid overtime or may elect to take time off in lieu as provided at clause 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.

59    An employee may request a roster pattern “that precludes the ability to provide” the rest days required, in which case the obligation to do so does not apply: clause 37.2.

60    Part 6 deals with overtime commencing with clause 39, set out at [3] of these reasons. An employee is obliged to work “reasonable overtime”, which is determined having regard to a specified list of considerations at clause 41.1. Overtime payments are calculated in accordance with clause 42 by reference to multipliers: 1.5 for the first three hours and 2 thereafter between Monday and Friday, on weekends and public holidays the multiplier is 2. There is an excess overtime “rule” at clause 43, the effect of which is that once the number of “continuous hours worked” exceed the employee’s rostered ordinary hours plus 3, each additional hour worked is to be paid at the overtime/recall rate until the employee has had eight hours free from work.

61    Part 7 deals with recalls to work, from clause 46. A recall to work is a direction by the employer to return to work “communicated to an employee after the employee has completed their ordinary hours of work”. The concept of a return to work includes: “a requirement to resume work or a requirement to respond to a call or transaction or series of calls or transactions that can reasonably be said to be continuous that exceed in total a half hour’s duration”: clause 46.1(b). An employee recalled to work from a rest day, unpaid parental leave or from leave without pay, is to be paid for the actual hours of work for the period of the recall, subject to a minimum of four hours whichever is the greater: clause 50.1. An overtime/recall rate applies.

62    One should not confuse general overtime in Part 6 with recall to work after an employee has completed his or her ordinary hours of work in Part 7. Where a recall direction is given an employee in fact works overtime, but that is where any similarity ends. The authority to give a recall direction rests with sub-Officers, Officers and Superintendents or above: clause 47. An Officer is a person with the rank of Inspector or above. The eligibility to receive a “recall payment” is constrained by clause 48.1. Recall payments are not available to an employee in receipt of a commuted overtime allowance (persons below the rank of Senior Sergeant employed as a Detective or performing the duties of a Detective), an employee in receipt of a one-person station allowance, a Recruit or an Officer. The further difference is that recall payments are not calculated or determined as overtime. Rather, by clause 50 an employee recalled to work from a rest day, unpaid parental leave or from leave without pay “will be paid for the actual hours of work for the period of recall or a minimum of four hours, whichever is greater.” The payment between Monday to Friday is made at the “overtime/recall rate 1.5 for the first eight hours and 2 thereafter and 2 for each hour worked on a weekend or public holiday. Accordingly, although Part 7 is within the overtime family, it is not the species the focus of this proceeding.

63    Part 8 is concerned with time off in lieu of payment for overtime and recall to work duties. Clause 53 relevantly provides:

53.1 An employee may elect to take time off in lieu of the whole or any part of payment for overtime and recall worked at a time or times agreed with the employer.

53.2 Overtime and recall taken off in lieu shall be taken at ordinary time rates, that is, an hour for each hour of overtime and recall worked.

53.3 The employer must provide payment at the rate provided for the payment of overtime and recall in this Agreement for any overtime worked where such time has not been taken as time off in lieu within two months of the overtime being worked.

64    Some definitions relevant to these provisions should also be mentioned, as set out at clause 7. Fortnight is defined as: Means a working fortnight, a period of 14 consecutive days from Sunday to Saturday inclusive. A Full-time employee means:

[A]n 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 is 76 hours per fortnight.

65    Accrued Time Off is not separately defined but is substantively addressed at clause 27. It is 0.0463 of an hour for each rostered hour of work performed. This explains the reference to 0.0463 in the determination of the ordinary hours of work at clause 25.2, the effect of which is to average hours over 12 months to 76 per fortnight.

66    Victoria Police is a continuous operation for the whole of each day in each year where 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.

67    From these provisions it will be noticed the interrelationship between the ordinary hours of work for an employee (putting aside Inspectors, Commanders and Superintendents) of eight hours per day worked continuously and 80 ordinary hours per fortnight with a minimum of four rest days, which equates to 10 shifts of eight hours per fortnight. The employer determines the roster of the ordinary hours for each employee which may span across unsociable or intrusive hours. The employer may require an employee to work on a rest day, without engaging the recall direction procedure: clause 37.7.

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.

69    I next address history and context. Reference to the antecedent provisions in the Determinations, the 1992 Award and the certified and enterprise agreements in my view must proceed mindful of the very different times when some of those instruments were promulgated, the particular statutory powers which authorised their creation and the processes which led thereto. Perhaps more fundamentally, when the parties cannot agree on the meaning of the historical instruments, the risk is that this proceeding moves from a construction of the provisions in issue to a distracting construction of provisions that ceased to apply in some cases more than 60 years previously. The result is that no useful conclusions may be reached that assist in the present case. In part, that is the problem here where on the applicant’s submissions Determination 124 of April 1966 was simply a remodelling and improvement of the earlier settled scheme for overtime; not a “fundamental rupture”. For the respondent, nothing could be further from the case: it effected a fundamental change.

70     I explain why. When the Police Service Board gave reasons for recasting the time off in lieu provisions in Determination 124 it exercised arbitral power conferred by the Police Regulation Act 1958 (Vic), relevantly by s 69(2) to determine the conditions of service of members, including salaries and wages, allowances, hours of duty and overtime allowances.

71     The Board dealt with a claim (amongst others) “that members be given the right to elect to take either time off or payment in lieu of time off for overtime worked”. It received evidence and exhibits. It concluded from that evidence that the provisions of Determination 107 “have not worked as was intended” giving, as one of its reasons:

A commendable willingness by some members to work overtime without regard to their rights to time-off or payments. No doubt this is prompted in part by the realisation that the incidence of overtime work has always been a factor taken into account in fixing salaries, in granting some compensatory allowances and in determining the amount of annual leave.

72    The Board further reasoned that the provisions of Determination 107 exposed “ambiguities and difficulties in its provisions” and in consequence was not clear in intent. In redrafting the provisions, the Board noted that the “rights of members have generally been somewhat improved” and gave as the example “eliminating the provisions of paragraph 51”. That clause had limited the overtime entitlement for work in excess of eight hours in a day or 80 in a fortnight as not applying to any “duty less than two consecutive hours”.

73    The drafting proceeded as follows. Clause 41 excluded from the subdivision a member above the rank of Station Officer, Detective and members on recall from recreation leave.

74     The Board provided for a half hour threshold for work in excess of eight hours on any day or work performed on a rest day: clause 42. Clause 46(1) provided that when a member performs overtime duty he shall “if the exigencies of the service permit” be given time off in lieu as provided for at clause 47. Clause 46(2) provided that if a member is not given time off in lieu, “he shall be paid an allowance” calculated in accordance with a formula. Clause 47 provided for time off in lieu being equivalent to the overtime duty performed.

75    The Board also deleted clause 90 from Determination 107 and substituted a new time off in lieu entitlement which is set out at [24] above.

76     The Board explained the reason for substituting that clause. It rejected the members’ claim that they should have the right to elect to take time off or payment in lieu of time off because of the likely burden on public funds (it would not be known from week to week how many members would elect the payment), it would make planning for time off difficult and it was fair that the employer should know in advance what obligations are owed to each employee.

77    The applicant submits that Determination 124 did not fundamentally adjust the previous position in that the primary and default entitlement for overtime remained time off in lieu and the half hour minimum threshold only applied to shift over time in that clause 42 only referred to duty in excess of eight hours on any day or duty performed on a rest day. The applicant submits that construction is supported by clause 90 which made no reference to any threshold, unless the member was already entitled to Shift Overtime. Put more directly, it was an anti-double dipping measure. Thus, this informs the distinction the applicant draws as continuing in the 2019 EBA: Fortnight Overtime is not subject to a minimum threshold.

78    In contrast, the respondent submits that Determination 124 effected a fundamental alteration. The overtime entitlement for most members (that is other than for officers above the rank of Station Officer) was limited by clause 42 to duty performed in excess of eight hours on any day or duty performed on a rest day (each subject to the half hour threshold). That informs his submission that an entitlement to overtime may only be earned in those two ways.

79    The submission continues that “for the vast majority of officers and in the vast majority of circumstances Fortnight Overtime (in clause 90 (1)) had no application” because “the issue of an officer working more than 80 hours over his or her rostered fortnight was dealt with through the broadly equivalent notion of an officer working on one of the four rest days he or she was entitled to in a given fortnight”. The applicant’s submission that clause 90(2) did not exclude officers to whom Sub-Division IX applied is a distinction without a difference in that the only members excluded from the subdivision were Station Officers, Detectives and those on recall from recreation leave. It is the application of the provisions, or the potential application, rather than the fact of qualification that was the subject of the exclusion at clause 90(2).

80    It is not helpful in this proceeding to embark upon resolution of the construction difference of a Determination made by the Board 59 years ago, in particular what was meant by the redrafted version of clause 90(2) of Determination 107. What is relevant is that the parties cannot agree on what was provided for in that instrument which, it is now said, aids the construction of the overtime provisions in the 2019 EBA.

81    Moving into this century, the history is of more assistance in identifying a pattern between the arrangement of the hours of work (sometimes referred to as a span of hours) and the relationship with a minimum overtime threshold. It concerns how each was dealt with in three successive instruments: the 1992 Award, the Certified Agreement 1998, the Certified Agreement 2001, the Workplace Agreement 2007 and the Enterprise Agreement 2011.

82    The 1992 Award made no reference to a span of hours. Clause 38 defined overtime as:

For the purposes of this Sub-Division "overtime-time" means and includes:

a.    any duty performed in excess of eight hours on any day other than a rest day or on a day of recreational leave, but including any duty performed in excess of eight hours on any day during a period when the member has been recalled from rest day or from recreational leave pursuant to Sub-Division V of Division 111 hereof; or

b.    any duty performed on a rest day or on a day of recreational leave in respect of which he has not been recalled to duty pursuant to Sub-Division V of Division III hereof –

but in either case does not include any duty performed unless it was for a continuous period of not less than half an hour.

83    Clause 44 conferred a right to be paid for overtime duty or, subject to the exigencies of the service, time off in lieu. Clause 88 required that each member must receive four days off duty in every working fortnight, characterised as rest days.

84    The applicant submits that clause 38 in Sub-Division VI only applied to Shift Overtime, to which the half hour threshold applied, whereas Fortnight Overtime was separately addressed in Division IV at clause 95. This conferred, the submission continues, an entitlement to time off in lieu for hours worked in excess of 80 per fortnight and which was not subject to a minimum threshold. Clause 95 provided:

(1)    When a member, other than a member referred to in sub-paragraph (2) hereof, is so required to perform his duties for any period in excess of eighty hours in any working fortnight, or when the Chief Commissioner is satisfied that circumstances required such a member to perform actual duties or any period in excess of eighty hours in any working fortnight, such member shall be allowed time off in lieu thereof as soon thereafter as is practicable.

(2)    Sub-paragraph (1) of this paragraph shall not apply to a member to whom any of the provisions of Sub-Division VI, of Division III apply.

85    I do not accept that submission. The carve out at clause 95(2) picks up all members entitled to the overtime benefit crafted in accordance with Sub-Division VI, which did not apply to members above the rank of Senior Sergeant, Detectives or to members appointed to one-man stations (with some qualifications): clause 37. The 1992 Award was not ambiguous in the application of the half hour threshold to the overtime benefit and it did not create, or implicitly recognise, Shift Overtime and Fortnight Overtime as separate categories of entitlement.

86    Overtime entitlements were not relevantly addressed in the Bargaining Agreement 1995 or the Employment Agreement 1996. The 1992 Award continued to apply.

87    The Certified Agreement 1998 did not include a minimum threshold for overtime at clauses 13.3.6-13.3.9, but it was limited to employees on flexible rosters, which clause 13.1 defined as:

The concept of flexible rostering is that Employees will be able to work their standard working week in a manner that provides additional time off for the Employees whilst providing the Employer with the capacity to roster Employees to meet peak workload periods in the most cost-effective manner. Essential to the introduction of flexible rostering is the co-operative approach to be taken to the redesign and voluntary introduction of any flexible rosters.

88    For all other employees, the 1992 Award continued to apply which remained the position until 2001.

89    The Certified Agreement 2001 introduced a span of hours at clause 3.2.3.2 for full-time members of between 7 am and 7 pm Monday to Friday, but perplexingly only when on eight weeks leave (the conclusion that may be open is that this clause contains a mistake, and what was intended was a reference to a member entitled to eight weeks leave). When addressing overtime at clause 3.6.1, distinction was drawn between work “additional to the member’s ordinary hours” or “outside the arrangement of hours” at clause 3.2. Clause 3.2 permitted the employer to determine the days of work and the commencement and cessation times of a member with the requirement that full-time members must work continuous periods of eight hours per day with four rest days in each fortnight. Clause 3.6.1.2 unambiguously applied a continuous half hour threshold to all overtime providing:

Overtime does not include Restrictive Work, the provisions for which are set out in Clause 3.15 or any work unless it was for a continuous period of half an hour or more.

90    Clause 3.7 permitted a member to elect time off in lieu “for the whole or any part of payment for overtime worked”. The applicant accepts that the minimum threshold applied to Shift Overtime and Fortnight Overtime in this instrument.

91    The span of hours concept was broadened by the 2007 Agreement. Clause 5.1 provided for the ordinary hours of work of full-time employees of 80 hours per fortnight and clause 5.2.1 dealt with the arrangement of ordinary hours of work. The employer was entitled to determine a roster pursuant to which the ordinary hours were eight per day, all rostered hours were required to be worked continuously and the rostered hours were spread over 80 hours per fortnight with four rest days. For employees entitled to six weeks leave, the ordinary hours were to be rostered between 7 am and 7 pm, Monday to Friday. Clause 6.1.1 provided for overtime:

Overtime" for Full Time Employees other than Recruits means any time worked which is additional to that Employee's ordinary hours of work or outside the span of hours as established by clause 5.2.1, which is expressly directed by an Officer and is a continuous period of half an hour or more.

92    Clause 8 dealt with time off in lieu:

8.1 An Employee may elect to take time off in lieu of the whole or any part of payment for overtime/recall worked at a time or times agreed with the Employer.

8.2 Overtime/recall taken as time off shall be taken at ordinary time rate, that is, an hour for each hour of overtime or recall worked.

8.3 The Employer must provide payment at the rate provided for the payment of overtime/recall in this Agreement for any overtime worked where such time has not been taken as time off in lieu within two months of the overtime being worked.

8.4 Where payment is made for overtime/recall in accordance with clause 8.3, an Employee is precluded from taking time in lieu in respect of the period for which. payment has been made, provided that an Employee may take payment for part of a period and time in lieu for the balance of the period.

93    The applicant submits that the framers of this instrument took “the regrettable step of collapsing the definition into a single clause” and it is the root cause of the present ambiguity. I do not agree. The established relationship between full-time hours of 80 per fortnight, worked in shifts of eight hours per day with four rest days was maintained. The reference to work outside of the span of hours at clause 6.1.1 unambiguously picks up the entirety of clause 5.2.1 which is concerned with the rostering system pursuant to which ordinary hours are eight per day, worked continuously on a roster of 80 hours per fortnight: clause 5.2.1(iii). It was also concerned with the ordinary hours of work for employees entitled to six or eight weeks leave (such employees would be rostered between 7 am and 7 pm Monday to Friday), the ordinary hours of work for recruits, accrued time off and rest days. The 2007 Agreement did not separately account for the applicant’s concept of Fortnight Overtime. In my view the 2007 Agreement did not create ambiguity in the way in which the minimum threshold was applied to all overtime entitlements.

94    Similarly, the 2011 Agreement at clause 24 specified the ordinary hours of work for full-time employees at 80 per fortnight, at clause 28 provided for eight continuous ordinary hours of work per day “according to a roster of shifts which may span across a range of unsociable and/or intrusive hours” and clause 35 required a minimum of four rest days in each fortnight. Clause 37 dealt with overtime for any time worked in addition to ordinary hours or “outside the span of hours that is established by Part 5 which is expressly directed by an officer and is a continuous period of half an hour or more.” Part 5 included clause 24.2: “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”.

95    The applicant makes the same ambiguity submission as for the 2007 agreement, and I reject it for the same reasons.

96    What is of assistance from review of the instruments that have applied in the present century is the continuation of the symmetry between full-time employment comprising eight hours per day, 80 hours per fortnight with four rest days and the scheduling of the days and hours of work at the discretion of the employer. An entitlement to overtime could only arise in two circumstances: working more than the ordinary hours of eight per day on any day or working more than 80 hours in any fortnight. An employee could work more than 80 hours in a fortnight if he or she was required or elected to work on a rest day. In either case, to derive the overtime benefit, the additional work was required to be performed over a continuous period of half an hour or more. There was no separate entitlement to time off in lieu for overtime worked over the course of a fortnight not subject to the continuous half-hour threshold requirement.

97    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.

98    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.

99    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.

100    The applicant’s Fortnight Overtime label overlooks that an employee is entitled to overtime if he or she works on a rest day. It is also unhelpful in that it distracts from the text of the agreement. The 2019 EBA does not employ that or similar terminology and the controlling mechanism is the ordinary hours of work of an employee: eight hours per day worked continuously according to a roster of shifts (clause 30) and 80 hours per fortnight (clause 25.2).

101    The applicant’s primary construction argument severs the continuous period of half an hour or more qualification from the overtime entitlement and examples two methods by which an employee becomes entitled to overtime. The first is uncontroversial and has been mentioned: an employee is rostered to commence at 9 am and to conclude at 5 pm, but in fact works until 5:45 pm. No issue as to satisfaction of the half hour threshold arises and the applicant’s argument avoids addressing the qualification.

102    The second method ignores the qualification by confining it to the applicant’s Shift Overtime category (a construct which assumes the correctness of the applicant’s arguments). 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.

103     The applicant characterises the rearrangement of clause 39.1, that is necessary to accommodate its construction argument, as no more than retention of the original text with the insertion of punctuation. That is not so. The effect of the rearrangement is to fundamentally alter the text. By analogy with statutory interpretation as explained by Gageler and Keane JJ in Taylor v The Owners of Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at [65]:

The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.

104    Further as correctly submitted by the respondent, the effect of aggregating time worked over the course of a fortnight is that as the employee nears the end of his or her fortnight roster, depending on how many minutes short of half an hour is continuously worked on each day, the employee accrues an entitlement to be paid overtime for a rostered day. That is a surprising outcome unsupported by the text of the agreement.

105    The applicant does not explain why, reading the clause as a whole, the conjunctive which introduces the qualification attaches only to the time worked in addition to the span of hours as established by Part 5 (Shift Overtime). This is a definition provision with two criteria as necessary preconditions to the benefit where each is syntactically linked to the same qualification. The applicant reconstructs the single sentence of clause 39 by adding punctuation so as to derive separate elements and by that method confines a qualification that is textually and naturally applicable to each method of overtime to the one that suits its case. It advances no convincing textual basis for proceeding in that way. In doing so it presses a construction which accepts that overtime must be work additional to an employee’s ordinary hours (or outside the span of hours for Reservists) untethered from the continuous period qualification without offering an explanation why Reservists are subject to the qualification, but no other employee is. The effect of that construction is practically to consign the qualification to redundancy by limiting it to a very small number of employees. Clause 39 is not ambiguous and there is no warrant in contextual, purpose or historical considerations to displace the textual meaning.

106    For these reasons I reject the applicant’s primary construction.

107     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.

108     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.

109    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.

110    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.

111    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.

112    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,

113    For these reasons, I reject the applicant’s alternative construction.

114    The applicant’s claims for declaratory relief fail and the Amended Originating Application will be dismissed.

Associate:

Dated:    31 July 2025