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

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512

Police Federation of Australia (Victoria Police Branch) v Chief Commissioner... [2026] FCAFC 47 | Case summary | Zoe

[32]

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.
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.
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.
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.

[33]

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).
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).
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.
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).
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).
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]:

[42]

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

[51]

Similar relief was sought in relation to the 2015 EA.
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.
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.
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.
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].
Relevantly, in the present case, Part A.3 of the Amended Concise Statement set out the "[c]ontext of the constructional dispute" as follows:

[54]

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.
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).
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:
1. ...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.
2. 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...

[57]

A.4 The existence of a dispute

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.

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.

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.)

[62]

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

[96]

It is necessary to examine why the primary judge ultimately rejected the Federation's contentions.
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.
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".
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].
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.
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]:

[105]

... 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.)

[110]

The principles applicable to the construction of an enterprise agreement were not in dispute.
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).
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.
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".
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.
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.
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".
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.
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".
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).
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.
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:

[112]

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.
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.
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.
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.
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.
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.
It follows that we would dismiss the appeal.

[133]

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".
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.
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] HCA 20; (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".
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]).
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]).
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.
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.

[136]

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.
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]).
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.
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.
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.
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.
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.

[138]

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.)

[140]

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.
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.
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.
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.
1. DISPOSITION
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.
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.

Police Federation of Australia (Victoria Police Branch) v Chief Commissioner of Police

At a glance

Court

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Before

Source

Judgment (141 paragraphs)

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Legislation Cited (7)

Cases Cited (8)