s.739 - Dispute resolution

Chief Commissioner of Police T/A Victoria Police

Application to deal with a dispute arising under an enterprise agreement.

• [1] Following an increase in café and storage cage burglaries in the Brunswick vicinity between July to August 2018, Victoria Police instigated Operation Impactor in the Moreland police service area. The operation was initially led by the Moreland Criminal Intelligence Unit (CIU) in Northwest Metro Division 4. The purpose of the operation was to attend and actively patrol identified hot spot locations, and to identify and target known persons of interest who were actively offending within the area.

• [2] Operation Impactor was resourced by detectives employed by Victoria Police, as well as uniform officers working night shift, when the majority of crime was being committed. Because of its success, in November 2018 the operation was expanded to Moonee Valley and Hume, being the other police service areas within Northwest Metro Division 4. Between 2018 and 2022, Operation Impactor further expanded to Northwest Metro Division 5 (which covers police service areas Banyule-Nillumbik, Darebin and Whittlesea). Each night, two detectives and four uniformed members from Division 4 and Division 5 would be rostered to Operation Impactor.[1]

• [3] The dispute before the Commission concerns overtime performed by detectives while performing work in connection with Operation Impactor. In summary, pursuant to clause 45.1 of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019[2] (Agreement), detectives receive payment of a commuted overtime allowance (COT/COT allowance). The COT allowance is paid in lieu of payment for specific overtime worked. The issue between the parties is whether the overtime performed by detectives on Operation Impactor was covered by the COT allowance, or whether detectives were entitled to receive a separate payment for overtime worked.

• [4] The pre-requisites to the Commission's involvement having been followed, I am satisfied that the Commission is empowered to resolve the dispute in accordance with clause 10 of the Agreement and s 739 of the Act. The parties agreed that the Commission should determine the following questions in resolution of the application:

Question 1: Did work on Operation Impactor result in members in receipt of Commuted Overtime Allowance performing work that is not in the normal flow of work of a detective?

Question 2: Are members who receive the Commuted Overtime Allowance eligible to be paid overtime for any overtime hours worked as a result of Operation Impactor?

• [5] The dispute concerns clause 45 of the Agreement, Commuted Overtime Allowance. It relevantly provides as follows:

45.1 An employee not above the rank of Senior Sergeant employed as a Detective or performing similar duties or determined by the employer as having a similar pattern of work as Detectives, must be paid a commuted overtime allowance in lieu of any payment for overtime worked, or any recall to work in accordance with Schedule B.

45.10 Commuted overtime is intended to cover instances of overtime worked in the normal flow of work for Detectives or employees with similar patterns of work.

45.11 Commuted overtime is not intended to cover overtime for planned organisational exercises such as counter terrorism planning or emergency management exercises. Where the employer requires planned work of this nature, this should be rostered as ordinary hours; otherwise, payment for any additional hours must be made in accordance with clause 42.

• [6] Clause 40 deals with Eligibility for overtime. It relevantly provides:

(a) an employee in receipt of a commuted overtime allowance except for overtime in circumstances where they are required to participate in planned organisational exercises such as counter terrorism planning or emergency management exercises;...

• [7] Clause 42 deals with Payment for Overtime. It relevantly provides:

42.1 Where overtime is payable, it will be paid at the following rates:

(a) Monday to Friday

(i) Payment will be made at overtime/recall rate 1.5 for the first three hours and overtime/recall rate 2.0 thereafter.

(b) Weekends and Public Holidays

(ii) Payment will be made at overtime/recall rate 2.0.

• [8] The Federation's case is that overtime performed by detectives on Operation Impactor "should be paid through the provisions of both 45.10 and 45.11."[3] The Federation's primary contention is that the work performed by detectives on Operation Impactor was not in the normal flow of work for Detectives pursuant to clause 45.10 of the Agreement. It therefore says that detectives are entitled to overtime payments under clause 42.1 for overtime hours worked in connection with the operation.

• [9] The Federation contends that clause 45.10 has an unambiguous meaning; all work that is in the normal flow of work for a detective is covered by the provisions of clause 45 and it "must follow" that all work not in the normal flow of work for Detectives is not covered by the provisions of clause 45.[4] It submits that "by clear implication, work not in the normal flow of work for a detective is not covered by COT."[5]

• [10] The Federation submits that the term normal flow of work must be given its plain meaning; normal means what happens normally, regularly, usually or naturally, and anything abnormal means that clause 45.10 cannot apply. As to flow of work, the Federation submits that this means the flow, sequence or stream of work. The Federation says that because clause 45.10 provides that COT is intended to cover work within the normal flow of work, the only possible meaning is that any work outside the normal flow of work - that is, anything that occurs outside of the normal way in which work is conducted by a detective - is not covered by the payment of the COT allowance. The Federation further says that Operation Impactor was not within the regular, usual and natural stream of work of a detective.[6]

• [11] The Federation accepts that when it commenced in Northwest Metro Division 4, Operation Impactor was a detective-led operation and the duties fell within the normal flow of work of a detective.[7] However, it contends that at an unspecified time, perhaps upon the expansion of Operation Impactor into Northwest Metro Division 5, the work became an exercise in general patrolling and became "uniform work" in nature.[8] The Federation submits that "while there may be some incidental comparison,"[9] Operation Impactor did not require detectives to use their detective skills as they were tasked to perform proactive and untargeted patrolling and were not able to investigate.[10]

• [12] In support of its position, the Federation led evidence from five detectives: Detective Acting Sergeant Michelle Campbell, Detective Senior Constable Dimitar Gacevski, Detective Senior Constable Susanne Lehman, Sergeant Matthew Wilson-Hawe and Detective Acting Sergeant Robert Wren.[11] Each of the detectives performed duties on Operation Impactor. In summary, the detectives' evidence was that the work they performed on Operation Impactor was not in the normal flow of work of detectives.[12] This includes the following duties they performed in connection with the operation:

• (a) patrolling known hot spots;[13]
• (b) responding to 000 calls;[14]
• (c) processing offenders;[15]
• (d) conducting bail compliance checks;[16]
• (e) scene attendance;[17]
• (f) checking and pulling over vehicles;[18]
• (g) submission of infringements and penalty notices;[19]
• (h) preparing information reports;[20]
• (i) making field contacts;[21] and
• (j) preparing returns about events occurring on Operation Impactor.[22]

• [13] In broad terms, the detectives' evidence was that the majority of their duties are covered by the Accountability and Resource Model,[23] although there was some acceptance that the Model does not set out what a detective's duties are.[24]

• [14] The Federation's alternative position is that clause 45.11 applies, in the sense that Operation Impactor constituted a planned organisational exercise which was not compensated by the COT allowance.

• [15] Victoria Police contends that as a matter of construction, clause 45.10 simply states the intention for which the COT allowance is provided and does not disturb the rule in clause 40.1(a) that payment for overtime is not available to an employee in receipt of a COT allowance. Further, Victoria Police says that clause 45.11 is not engaged because Operation Impactor was not a planned organisational exercise.

• [16] Victoria Police submits that should its construction of clause 45.10 be erroneous, the duties performed by detectives on Operation Impactor did constitute normal detective work in any event. Victoria Police called evidence from Assistant Commissioner Michael Frewen, Commander Timothy Tully and Inspector Timothy Cron,[25] who gave evidence about matters including the role of a detective and the duties set out in the relevant position description applicable to detectives at the relevant time;[26] the investigative skills applied by detectives on Operation Impactor having regard to their skills and experience, to the crimes as they were being committed, which are duties falling within the role and position description of a detective;[27] the requirement of detectives, as operational members of Victoria Police, to perform the more generalised operational duties identified by the Federation as attributable only to uniform members;[28] the absence of any detective duties and responsibilities in the Accountability and Resource Model relied upon by the Federation's witnesses;[29] and the view that there is nothing inconsistent between the duties performed on Operation Impactor by the detectives who gave evidence, and the role of a detective.[30]

• [17] The principles of enterprise agreement interpretation were summarised by the Full Federal Court in James Cook University v Ridd:[31]

• (a) The starting point is the ordinary meaning of the words, read as a whole and in context.[32]

• (b) 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.'[33] The interpretation 'turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.'[34]

• (c) Context is not confined to the words of the instrument surrounding the expression to be construed.[35] It may extend to '...the entire document of which it is a part, or to other documents with which there is an association.'[36]

• (d) Context may include '...ideas that gave rise to an expression in a document from which it has been taken.'[37]

• (e) 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...'[38]

• (f) A generous construction is preferred over a strictly literal approach,[39] 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.'[40]

• (g) 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.[41]

• [18] The Federation also relies upon the oft-cited principles affirmed by the Full Bench in AMWU v Berri Pty Ltd,[42] which I adopt but do not recite here.

What is the proper construction of clause 45.10?

• [19] As a matter of principle, the language in the Agreement is to be read as a whole and in context.[43] Part 6 Overtime of the Agreement contains seven clauses. Clause 39 Definitions, clause 40 Eligibility, clause 41 Requirement to work reasonable overtime, clause 42 Payment for overtime, clause 43 Excess overtime rule, clause 44 Overtime for attendance at court, and clause 45 Commuted overtime payment. These provisions are not extracted in full in this decision but are relevant contextual indicators as to the way in which overtime operates under the Agreement.

• [20] Having regard to the language of Part 6 of the Agreement:

• (1) A detective must be paid a COT allowance in lieu of any payment for overtime worked or any recall to work (clause 45.1). This paid as either COT 1 or COT 2 under Schedule B.[44]

(2) The entitlement to payment for overtime is subject to an eligibility rule, relevantly prescribed by clause 40.1(a). It provides that payment for overtime is not available to an employee in receipt of a COT allowance except in circumstances where an employee is required to participate in planned organisational exercises such as counter terrorism planning or emergency management exercises. That is, there is an exception to the rule, in clause 40.1(a), that payment for overtime is not available to an employee in receipt of a COT allowance.

(3) As to this exception, clause 45.11 is relevant. It provides that commuted overtime is not intended to cover overtime for planned organisational exercises such as counter terrorism planning or emergency management exercises. Where Victoria Police requires planned work of this nature, it should be rostered as ordinary hours, otherwise, payment for any additional hours must be made in accordance with clause 42. Clause 42 sets out the prescribed overtime rates where overtime is payable. Outside the exception for planned organisational exercises, clause 40.1(a) provides no other exceptions to the rule that payment for overtime is not available to an employee in receipt of a COT allowance.

(4) While not expressed as an additional exception to the rule in clause 40.1(a), clauses 45.13 and 45.14 provide for occasions where an employee in receipt of a COT allowance may also be entitled to an excessive hours penalty payment. This is not an overtime payment pursuant to clause 42. Rather, it is a supplementary payment made in addition to the COT allowance, in recognition that an employee in receipt of COT 1 or COT 2 (and not in receipt of a disturbance allowance) has worked an excessive amount of overtime. Any direction or requirement for an employee in receipt of COT 1 or COT 2 to work overtime should have regard to the provisions of clause 41 concerning reasonable overtime (clause 45.9).

• (5) Clause 45.10 is the focus of the Federation's primary argument. It provides that commuted overtime is intended to cover instances of overtime worked in the normal flow of work for Detectives or employees with similar patterns of work. Unlike the clause that precedes it, or the clause that follows it, clause 45.10 does not cross-refer to any other provision of the Agreement. The Federation's position is that by clear implication, work that is not in the normal flow of work for Detectives is not covered by the COT allowance and accordingly, overtime is payable pursuant to clause 42.[45] However, I do not consider that the text of the Agreement supports the Federation's construction for three reasons:

(a) The Federation's argument is based on an implication. This is because the text of clause 45.10 does not, of itself, provide an entitlement to overtime and it strains the language of the clause to contend otherwise.

(b) Relatedly, the Federation's construction contradicts other elements of Part 6 Overtime, most relevantly the unambiguous statement at clause 40.1(a) that payment for overtime is not available to an employee in receipt of a COT allowance (subject to the exception dealt with in clause 45.11 concerning planned organisational exercises).

(c) As to this exception, I consider it to be of significance that the second sentence of clause 45.11 cross refers to clause 42 and the overtime penalties in the Agreement. This demonstrates that where mandatory entitlements are imposed upon Victoria Police to make overtime payments pursuant to clause 42, the language of the Agreement makes this clear. A further example of the Agreement using mandatory language where detectives are entitled to an additional payment (not overtime) over and above the COT allowance is evident in clauses 45.13 and 45.14. These provisions provide that an excessive hours penalty will be paid where an employee works certain hours and is in receipt of a COT allowance but not in receipt of a disturbance allowance. The language of clause 45.10 contains no such mandatory language.

• [21] For these reasons, the ordinary meaning of disputed clause 45.10, when read in its context within Part 6 Overtime of the Agreement, favours the construction advanced by Victoria Police. It is therefore strictly unnecessary to reflect on the history of clause 45.10 at length. However, I set out the evolution of clause 45.10 below as it is also relevant to the Federation's alternative argument concerning clause 45.11. While the Federation contends that the history of clause 45.10 supports its construction, as is demonstrated by the analysis that follows, this is not borne out.

• [22] The parties agree that the concept of applying a lump sum overtime allowance to detectives, in lieu of payment for specific instances of overtime, derives from a decision of the (now defunct) Police Classification Board. The Police Classification Board recognised that due to the nature of the duty to be performed by detectives, and the fact that often it was performed away from supervision and at the member's initiative, standard overtime provisions could not be adopted. Accordingly, it was determined that members appointed to the Criminal Investigation Branch and engaged in the investigation of crime, not above the rank of Sergeant, were to be given an annual allowance for overtime for duty done on a rest day.[46]

• [23] The decision formed the entitlement to a COT allowance, which appeared in the Victoria Police Force Certified Agreement 2001[47] (2001 Agreement) at clause 3.11.1 titled Commuted Overtime Allowance:

A member not above the rank of Senior Sergeant employed as a Detective or performing similar duties or determined by the Employer as having a similar pattern of work as Detectives must be paid a Commuted Overtime Allowance in lieu of any payment for overtime worked or any recall to work, in accordance with Schedule A.

• [24] Clause 3.6.2 of the 2001 Agreement was titled Rate of Payment for Overtime and it relevantly provided that overtime was not payable to a member in receipt of a commuted overtime allowance (see clause 3.6.2.1.b). The 2001 Agreement did not contain provisions dealing with the concept of the normal flow of work, nor did it refer to planned organisational exercises. Detectives were simply paid a COT allowance and were not entitled to overtime payments.

• [25] The Federation submits that the words that are now found in clause 45.10 (normal flow of work) and clause 45.11 (planned organisational exercise) were the outcome of a dispute that had been raised under the 2001 Agreement concerning Operation Mercury. Operation Mercury was a planned counter-terrorism exercise in which detectives were allegedly directed by Victoria Police to perform 12-hour shifts and told the COT allowance would cover the overtime worked, which the Federation contested.

• [26] The dispute regarding Operation Mercury was resolved. Subsequently, the Victoria Police Workplace Agreement 2007 (2007 Agreement) included a commuted overtime allowance provision at clause 6.9.1 in substantially similar terms to the 2001 Agreement, which was supplemented with the following provision relating to the payment of an excessive hours penalty:

(a) An Employee not above the rank of Senior Sergeant employed as a Detective or performing similar duties or determined by the Employer as having a similar pattern of work as Detectives, must be paid a commuted overtime allowance in lieu of any payment for overtime worked, or any recall to work, in accordance with Schedule Bl.

(b) Any direction/requirement for an Employee, in receipt of a commuted overtime allowance as prescribed in clause (a), to work overtime should have regard to the provisions of clause 6.3.

(ii) Commuted overtime is intended to cover instances of overtime worked in the normal flow of work for Detectives or Employees with Victoria Police Workplace Agreement 2007 similar patterns of work. The Employer and Employees will wherever possible ensure that appropriate work practices are in place to reduce the possibility of Employees working excessive hours. Where excessive hours are worked the Employer will ensure that Employees are provided with appropriate rest breaks without detriment.

• [27] The clause proceeded to provide for the payment of an excessive hours allowance under which employees - despite being in receipt of a commuted overtime allowance - would be entitled to a loading of 50% where they were required and approved to work excessive overtime in a given day.

• [28] I interpolate here to note that clause 6.9.1 above - introduced into the 2007 Agreement following resolution of the dispute over Operation Mercury - is the first time that the disputed phrase normal flow of work that now appears as clause 45.10 of the Agreement was included in a predecessor instrument. It is to be noted that the phrase did not appear in the shorthand matter in which it now appears at clause 45.10 of the Agreement. Rather, it was part of a more detailed provision dealing with the payment of an excessive hours allowance. I say more about the import of this at [34] below.

• [29] Clause 6.2.1 of the 2007 Agreement provided what is now clause 40.1(a) of the Agreement, under the title Eligibility:

For the purpose of this clause overtime is not available to:

6.2.1 an Employee in receipt of a commuted overtime allowance except for overtime in circumstances where they are required to participate in planned organisational exercises such as counter terrorism planning or emergency management exercises;...

• [30] The Victoria Police Force Enterprise Agreement 2011[48] (2011 Agreement) dealt with the Commuted Overtime Allowance at clause 44. Clauses 44.1 and 44.2 were in substantially similar terms to clause 6.9.1(a) and (b) of the 2007 Agreement. Clause 44.3 provided what is now clause 45.10:

44.3 Commuted overtime is intended to cover instances of overtime worked in the normal flow of work for Detectives or employees with similar patterns of work.

• [31] Clause 44.4 included a new clause dealing with what is now at clause 45.11 of the Agreement:

44.4. Commuted overtime is not intended to cover overtime for planned organisational exercises such as counter terrorism planning or emergency management exercises. Where the employer requires planned work of this nature, this should be rostered as ordinary hours; otherwise, payment for any additional hours must be made in accordance with clause 40.

• [32] Clauses 44.5 to 44.8 dealt with payment of the excessive hours allowance, which had been renamed excessive hours penalty.

• [33] These provisions remained relevantly unaltered in the Victoria Police (Police Officers (Excluding Commanders), Protective Service Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015.[49]

• [34] Having regard to the history, I draw the following conclusions:

(1) The purpose of the COT allowance was to compensate detectives for overtime they worked having regard to the nature of their duties. The model proposed by the Police Classification Board sought to resolve the difficulties associated with the regulation of overtime by members engaged in the investigation of crime. These duties are often performed away from supervision and where standard overtime provisions cannot be adopted.

(2) I consider it significant that the construction advanced by the Federation in this application is at odds with this model. The approach urged by the Federation necessarily requires an assessment, on a case-by case, shift-by-shift basis, of the duties performed by a detective in order to determine whether they are "abnormal" or are performed "outside the normal way in which the work is conducted by a detective" (and are thereby worked outside a detective's normal flow of work). The history of the provision tells strongly against this being the correct construction.

(3) Following the resolution of the Operation Mercury dispute, the 2007 Agreement introduced the entitlement to an excessive hours penalty. This recognised that the COT allowance was not intended to cover excessive overtime hours worked by detectives. Where excessive overtime hours were worked, a detective would receive an excessive hours penalty payment despite being in receipt of the COT allowance.

• (4) Having regard to the entirety of clause 6.9.1(c)(ii) of the 2007 Agreement which first introduced the disputed phrase, I consider that the introductory statement that commuted overtime is intended to cover instances of overtime worked in the normal flow of work for Detectives establishes the intention of the COT allowance; that is, to cover instances of overtime worked in the normal flow, but not excessive overtime. What is now clause 45.10 of the Agreement was not ever intended, of itself, to provide an entitlement to a separate overtime payment. Nor was it ever about the specific duties that were being performed by the detectives, as the Federation contends in this application.[50] Rather, the disputed phrase was linked to the performance of hours of work_._

(5) What is now clause 45.11 regarding planned organisational exercises was introduced in the 2011 Agreement_._ It sits between the disputed phrase in clause 45.10 and the excessive hours penalty provisions of the Agreement. Both clause 45.11 and the relevant excessive hours penalty provisions establish the relevant occasions where additional payments will be made, despite the employee being in receipt of a COT allowance.

(6) The Federation contends that any connection between the disputed phrase and the excessive hours penalty was severed when, in the 2011 Agreement, the disputed phrase formed a clause of its own (see clause 44.3 of the 2011 Agreement). I do not accept this is so. There is no basis advanced for concluding that there was any substantial change in the meaning of the words in the disputed phrase by the restructuring of the clause in the manner described. I consider it more likely that the introduction of the planned organisational exercises provision in clause 45.11 led to an outcome by which there were two occasions whereby detectives may receive an additional payment for overtime worked despite being in receipt of a COT allowance; for planned organisational exercises and for excessive hours of work. Rather than clause 45.10 operate as an introductory provision only to the excessive hours penalty, I consider the structure of the Agreement was revised so that clause 45.10 now sits as an introductory provision for both circumstances.

Conclusion as to the proper construction of clause 45.10

(1) I am satisfied that clause 45.10 of the Agreement does not itself provide an entitlement to an overtime payment.

(2) I do not accept the Federation's contention that detectives who performed overtime in connection with Operation Impactor are eligible for an overtime payment under the Agreement by reason of clause 45.10.

(3) I do not accept that clause 45.10 requires an analysis to be conducted of whether the duties performed by detectives are in the normal flow of work for Detectives in order to determine whether or not such work is covered by the COT allowance and whether separate overtime payments are payable. It follows that the evidence given by the detective witnesses for the Federation does not call for analysis in the resolution of this application.

• [36] In response to the Federation's contentions:

• (1) Eligibility for an overtime payment under clause 42 of the Agreement is not to be determined by reference to whether work or "activities"[51] are "covered by clause 45."[52] A detective receives a COT allowance under clause 45 as a consequence of being employed as a detective. The entitlement to an overtime payment under clause 42 of the Agreement is determined by reference to the Eligibility provision and subject to the identified exception in clause 40.1(a).

• (2) The Federation contends that if, in reliance on clause 40.1(a), overtime penalties are not paid to detectives for overtime worked that is not in the normal course of duties, detectives must have been directed to work overtime "without any remuneration whatsoever."[53] I disagree. Detectives are compensated for overtime by the COT allowance. I consider at [37] below whether Operation Impactor was a planned organisational exercise, thereby giving rise to an entitlement to additional overtime payments under clause 42. Regardless, the contention that overtime worked on Operation Impactor was worked by detectives without remuneration is without substance.

• (3) The Federation contends that reading clause 40.1(a) in this way gives rise to conflicts between other provisions and relies upon clause 40.1(b).[54] However, clause 40.1(b) does not deal with the payment of a COT allowance. Rather, it concerns a one-person station allowance. The occasions where employees in receipt of a one-person station allowance do not receive overtime payments does not call for consideration in this application. Regardless, I do not accept the Federation's contention that the construction of clause 40.1(a) in the manner prescribed by this decision would lead to loss of entitlements insofar as it concerns employees to whom clause 40.1(b) applies. Clause 40.1(b) appears to be read with clauses 184.5 and 184.6 in a manner consistent with the way clause 40.1(a) is read with clause 45.11.

• (4) The Federation contends that Victoria Police's construction means clause 45.10 is "left with no work to do."[55] However, this is not borne out from the history of the clause. Clause 45.10 sets out the intention for which the COT allowance is provided to detectives and provides a basis for explaining the two occasions in which additional payments will be made to detectives who work overtime, despite being in receipt of the COT allowance.

• (5) The Federation contends that the overtime performed by detectives in connection with Operation Impactor was not consistent with the reasons for the introduction of the COT allowance in 1948. This is because work on Operation Impactor was not away from supervision and was not at the initiative of the detective.[56] Further, it was envisaged that COT would be paid for the performance of detective duties and investigation of crime.[57] However, the Agreement is to be construed having regard to terms. The requirement under the Agreement to pay detectives a COT allowance does not arise by reference to matters such as whether a supervisor is present or having regard to the duties being performed at the time. Rather, the COT allowance under clause 45.1 is payable when an officer is employed as a detective.

• (6) To the extent that the Federation submits that Victoria Police has conceded that the duties performed in connection with Operation Impactor were temporary pursuant to clause 24.2 of the Agreement and therefore not part of a detective's normal duties,[58] I decline to take this matter further. The Federation's initial dispute pursuant to clause 24.2 of the Agreement was not pressed. At the hearing, the Federation submitted that the Commission need not deal with the clause 24.2 issue, as it was to be dealt with by the Police Review and Services Board.[59]

• (7) I acknowledge that during Operation Impactor, Victoria Police called for information from detectives based on a preliminary view that overtime was payable in addition to the COT allowance. Victoria Police explains that this position was based on internal advice, which was then revised. Whether Victoria Police held an initial view that detectives may be eligible for overtime payments in addition to the COT allowance is not determinative. The outcome of the dispute turns on the proper construction of the relevant terms of the Agreement. To this end, the Federation contends that an overly technical approach to interpretation should be avoided.[60] I agree. In this case, the construction of the ordinary text of Part 6 of the Agreement as to a detective's eligibility to an overtime payment is supported by the relevant context and history of the stated provisions.

Did the work performed by detectives on Operation Impactor fall into the exception in clause 45.11?

• [37] In the alternative, the Federation contends that Operation Impactor constituted a planned organisational exercise. Pursuant to clause 45.11 of the Agreement, the COT allowance does not cover overtime performed in connection with such exercises.

• [38] The Federation's position relies upon the dictionary definition of the term exercise as an activity carried out for a specific purpose.[61] It submits that Operation Impactor was an exercise, that was planned and conducted by Victoria Police for a specific purpose, thereby engaging clause 45.11.

• [39] Victoria Police submits that the Commission should reject this contention for three reasons. First, it says that the Federation did not advance its argument in respect of clause 45.11 until a question was raised by the Bench at the commencement of the hearing as to its applicability. Victoria Police submits that the failure of the Federation to rely upon this clause at any earlier time is telling. Second, Victoria Police submits that on the Federation's argument, very few operations it carries out would fall outside the phrase planned organisational exercise. The deployment of resources would, it contends, axiomatically involve some degree of planning. Further, any operation is capable of being described as organisational unless a sensible limitation is placed on the term. Third, as to the meaning of exercise, in the context of the performance of operational policing and detectives who primarily perform operational investigative duties, Victoria Police submits that the more apt meaning is something done or performed as a means of practice or training, to improve a specific skill or to acquire competence in a particular field.[62]

• [40] Clause 45.11 of the Agreement refers to planned organisational exercises such as counter terrorism planning or emergency management exercises. I accept the Federation's submission that the Agreement does not limit the examples provided to these alone, demonstrated by the use of the words such as. Despite this, in the context of an organisation such as Victoria Police, I consider that the meaning of the broad term planned organisational exercises was intended to be read with some form of limitation in order to be meaningful.

• [41] In my view, the term derives meaning from the context in which it appears in the Agreement, and relevantly, the surrounding words. Two examples are provided as illustrations of the general term planned organisational exercises. I consider the general term is to be understood by reference to the nature of those examples. This is apparent from the clause itself; it provides that where Victoria Police requires planned work of this nature, such work should be rostered as ordinary hours, otherwise paid in accordance with clause 42. The reference to planned work of this nature can best be understood as being in the nature of counter terrorism planning or emergency management exercises. This rationale is supported by the history of clause 45.11, which was motivated (in earlier iterations of the Agreement) by the dispute concerning Operation Mercury. Operation Mercury was a national counter terrorism test exercise (or, in the Federation's submission, a training exercise)[63] and did not involve any actual operational policing. The focus was to test police readiness, preparedness, response and recovery in the event of an emergency.[64]

• [42] Understood in this way, I consider that planned organisational exercises for the purposes of clause 45.11 of the Agreement is to be understood as involving test or training exercises in the nature of counter terrorism planning or emergency management, conducted at an organisational level during which operational duties are not performed.

• [43] I am satisfied that Operation Impactor was not a planned organisational exercise within the meaning of clause 45.11. It was neither a test or training exercise in which operational duties were not performed, nor in the nature of emergency management or counter terrorism planning. Rather, Operation Impactor was subject to an operational order that identified the mission, execution, tasks and instructions of the operation.[65] Accordingly, clause 45.11 is not applicable to the dispute.

• [44] The effect of this conclusion is that the exception to the rule in clause 40.1(a) of the Agreement does not apply. As such, members who receive the COT allowance are not eligible under the Agreement to be paid overtime for any overtime hours worked on Operation Impactor. It follows that the answer to Question 2 is 'no.'

• [45] In closing, the Federation reiterated that (a) its interpretation of the phrase normal flow of work formed the foundation of its application,[66] and (b) the Commission was asked to determine whether overtime was payable to the detectives for work performed on Operation Impactor.[67] To this end, the Federation's case was that the overtime should be paid through clauses 45.10 and 45.11 of the Agreement.[68] This case has not succeeded.

• [46] In light of the Agreement construction set out in this decision, the answer to Question 1 has no bearing upon whether the detectives were eligible for overtime payments while in receipt of a COT allowance. Furthermore, Question 1 has been approached by the Federation based on its view that the normal flow of work of a detective in clause 45.10 refers to the duties performed, when the history of the provision tells strongly against this construction.

• [47] It follows that, on a proper construction of clause 45.10 of the Agreement, Question 1 is not necessary to answer in the resolution of the application as framed before the Commission.

• [48] For completeness, in its closing submissions the Federation contends that it is "usual practice for Detectives performing work that is not Detective work to receive overtime payments if performing overtime."[69] While not conceding any usual practice, Victoria Police recognises that there may be occasions when detectives are paid for overtime performed in connection with matters outside the normal scope of their duties. These events have involved emergency or public order events such as:[70]

(a) the COVID-19 pandemic (all operations, inclusive of protests, border closures etc);

(b) certain protest activity; and

(c) protracted emergency response to bushfires and floods.

• [49] It does not appear to be in contest that work on these emergency or public order events constituted work outside the scope of duties of a detective.[71] As such, for these emergency or public order events, the Chief Commissioner has approved the payment of overtime to detectives in addition to the COT allowance. Alternatively, the payment of overtime has been the subject of a memorandum of understanding with the Federation.[72] These arrangements for undisputed non-detective work does not tell against my construction as to a detective's eligibility for overtime payments under the Agreement. As acknowledged by the Federation, there is no evidence before the Commission to demonstrate that the practice is broader than this.[73]

• [50] For the reasons given, the questions posed for determination are answered as follows:

Question 1: Did work on Operation Impactor result in members in receipt of Commuted Overtime Allowance performing work that is not in the normal flow of work of a detective?

Answer: On a proper construction of clause 45.10 of the Agreement, this question is not necessary to answer.

Question 2: Are members who receive the Commuted Overtime Allowance eligible to be paid overtime for any overtime hours worked as a result of Operation Impactor?

• [51] The dispute is determined accordingly.

N. Baldini and R. Azimi for the Police Federation of Australia.

M. Garozzo, of Counsel, instructed by Corrs Chambers Westgarth, for the respondent.

[1] Exhibit 1 (Digital Court Book (DCB)) 262-263 at [8]-[11], [14]-[17]; DCB 317 at [21]-[25]; DCB 341-342 at [8]-[14]

[2] [2020] FWCA 1578; AE507544; PR717762

[3] Federation closing submissions at [5]

[5] Federation closing submissions at [6]

[6] DCB 9 at [7]-[11]; DCB 219 at [10]-[11]

[7] Federation closing submissions at [65]

[8] Federation closing submissions at [65]; DCB 223 at [2]; DCB 230 at [9]; DCB 232 at [21]

[10] Federation closing submissions at [66]

[11] Detective Acting Sergeant Robert Wren and Detective Senior Constable Dimitar Gacevski were not required for cross examination

[12] DCB 223 at [2]; DCB 228 at [7]; DCB 230 at [9], [11]; DCB 232 at [24]-[26]; DCB 235 at [3]; DCB 238-239 at [14]

[13] DCB 37 at [9]; DCB 158 at [14]; DCB 159 at [19], [31]; DCB 171 at [20]; DCB 199 at [18b]; DCB 200 at [21]; DCB 223-224 at [3]; DCB 227 at [4]; DCB 232 at [21]

[14] DCB 199 at [18d]; DCB 200 at [21]

[15] DCB 37 at [9]; DCB 159 at [27], [32]; DCB 199 at [18e]

[16] DCB 151 at [16]; DCB 152 at [18]; DCB 159 at [33]; DCB 170 at [16]; DCB 171 at [20]; DCB 199 at [18a]; DCB 200 at [21]; DCB 228 at [7]

[17] DCB 152 at [21]; DCB 158 at [14]; DCB 159 at [21]; DCB 228 at [7]; DCB 232 at [21]

[18] DCB 37 at [9]; DCB 159 at [19]-[20], [31], [34]; DCB 160 at [35]; DCB 232 at [21]

[19] DCB 151-152 at [16]; DCB 170 at [16]

[20] DCB 199 at [18f]; DCB 227 at [4]

[21] DCB 151-152 at [16]; DCB 170 at [16]; DCB 199 at [18f]

[22] DCB 151-152 at [16]; DCB 170 at [16]; DCB 199 at [20]

[23] The specific details of the Accountability and Resource Model are covered by a confidentiality order (PR780570) but it is not in dispute that the Model is an inter-organisational policy providing for the areas of Victoria Police that will have investigative primacy for particular offences; see further DCB 37-38 at [10]; DCB 149-150 at [5]; DCB 167-168 at [5]; DCB 195 at [5]; DCB 303-304; DCB 72-92

[24] Transcript PN504; DCB 266 at [28]

[25] Each witness was required for cross examination

[26] DCB 265 at [23]; DCB 299-302; DCB 315 at [11]-[12]; DCB 323-326; DCB 342-343 at [15], [18]; DCB 365

[29] DCB 266 at [27]-[28]; DCB 316 at [16]-[18]; DCB 327-328; DCB 344 at [19]-[20]

[30] DCB 266-268 at [29]-[35]; DCB 318-321 at [31]-[38]; DCB 344-345 at [24]-[26]; DCB 346 at [28]

[31] [2020] FCAFC 123; 298 IR 50 at [65]

[32] City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362 at 378 (City of Wanneroo v Holmes); City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [53] (City of Wanneroo v AMACSU); WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197] (WorkPac v Skene)

[33] Kucks v CSR Limited [1996] 66 IR 182 at 184 (Kucks v CSR); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac v Skene at [197]

[34] Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [2]

[35] City of Wanneroo v AMACSU at [53]

[36] Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511 at 518 (Short v FW Hercus); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175 at 178

[39] Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-504; City of Wanneroo v AMACSU at [57]

[40] City of Wanneroo v Holmes at 380

[41] City of Wanneroo v Holmes at 378-379; WorkPac v Skene at [197]

[42] [2017] FWCFB 3005; 268 IR 285 at [114]

[43] See, City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [43] citing Australian Timber Workers Union v W. Angliss & Co Pty Ltd [1924] CthArbRp 33; (1924) 19 CAR 172

[44] Clauses 45.2 to 45.8 describe when an employee will be paid the amounts prescribed by COT 1 or COT 2

[45] Federation closing submissions at [6]

[47] AG812735; PR912716

[48] AE889678; PR569853

[49] AE418283; PR596044

[50] Federation closing submissions at [10]

[51] Federation closing submissions at [7]

[53] Federation closing submissions at [12]

[54] Federation closing submissions at [15]; DCB 221-222 at [19]-[21]

[56] Federation closing submissions at [16]

[57] Federation closing submissions in reply at [3]

[60] Federation closing submissions at [17]

[61] Federation's closing submissions at [22]

[62] Respondent's closing submissions at [35]

[65] DCB 271-272; DCB 355-356. See also DCB 46-50

[68] Federation closing submissions at [5]

[69] Federation closing submissions in reply at [6]; see also Federation closing submissions at [13]

[70] DCB 316 at [20]; DCB 346-347 at [31]

[71] DCB 153 at [25]; DCB 171 at [23]; DCB 316 at [20]; DCB 346 at [31]-[32]

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