WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2024 WAIRC 00070 CORAM : PUBLIC SERVICE ARBITRATOR SENIOR COMMISSIONER R COSENTINO HEARD : TUESDAY, 16 JANUARY 2024 DELIVERED : WEDNESDAY, 14 FEBRUARY 2024 FILE NO. : P 1 OF 2023 BETWEEN : WESTERN AUSTRALIAN POLICE UNION OF WORKERS Applicant AND COMMISSIONER OF POLICE, WESTERN AUSTRALIA POLICE FORCE Respondent CatchWords : Industrial Law (WA) – s 46 – Interpretation of industrial agreement – Western Australian Police Force Industrial Agreement 2022 – Overtime – Meaning of ‘all time worked’ – Whether time spent travelling to international destination is ‘time worked’ – Police Force Regulations 1979 – ‘Time worked’ is time on duty – Whether instruction means officer is on duty is question of fact – No declaration made – Application dismissed Legislation : Industrial Relations Act 1979 (WA) Interpretation Act 1984 (WA) Police Act 1892 (WA) Police Force Regulations 1979 (WA) Result : Application dismissed Representation: Applicant : Mr S Farrell as agent Respondent : Ms E Negus of counsel Case(s) referred to in reasons: Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 Construction, Forestry, Maritime, Mining and Energy Union v Peabody Energy Australia PCI Mine Management Pty Ltd [2019] FWC 4641 Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd [2017] FWCFB 269; (2017) 262 IR 122 Harrod v Stabilised Pavements of Australia Pty Ltd [2023] FWC 1027 Re Harrison; Ex parte Hames [2015] WASC 247 Rohan v S&DH Enterprises [2022] WAIRC 00196 The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) WAIG 366 The Hospital Employees’ Industrial Union of Workers WA v Lee Downs Nursing Home (1977) 57 WAIG 455 Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 113 IR 265 Western Australian Police Union of Workers v The Honourable Minister for Police (1981) 61 WAIG 1906 WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 Reasons for Decision 1 Western Australian Police Union of Workers and the Commissioner of Police, Western Australia Police Force (Police Commissioner) are in dispute about whether the Union’s member, Sergeant Andrew Dueman, is entitled to overtime pay for certain times when he was on a flight from Perth to London and back, for work. 2 Under subclause 13.2(b) of the Western Australian Police Force Industrial Agreement 2022, overtime must be paid at the rate of time and one-half for the first three hours and double time thereafter. 3 Overtime is defined in subclause 13.2(a) of the Agreement: 13.2 (a) Overtime for localities or stations other than those determined by the Employer in clause 13.8 shall mean: (i) all time worked in excess of 40 hours in a week on Operational Duties as defined in clause 6 – Definitions of this Agreement on weekly leave days; 254 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 104 W.A.I.G. (aa) In the case of Officers in Charge of positions detailed in Schedule H – OIC Salary Positions and receiving an OIC salary prescribed in clause 10 – Salaries, who shall have no fixed daily hours of duty. (ii) all time worked in excess of 40 hours in a week or eight hours on any day in any other case for a full time Employee, except for those working ordinary hours of nine or 10 per shift or 80 hours over a fortnight as rostered and those working the arrangements provided in clause 13.2(c), Recruits in Training except as provided for at clause 17.18 – Additional Allowances, and Officers in Charge of positions in Schedule H – OIC Salary Positions who receive an OIC salary as prescribed in clause 10 – Salaries of this Agreement; and (iii) all time worked in excess of 40 hours in a week or eight, nine or 10 hours on a day depending on the rostered shift in the case of a Part Time Employee except for the arrangements provided in clause 13.2(c). 4 What does subclause 13.2(a) mean when it refers to ‘all time worked’? 5 The Union says ‘all time worked’ has a broad meaning, that is, any time when an officer is performing duties required of them by WA Police. On this interpretation, it says travelling on flights and time spent at airports due to a requirement of WA Police must be ‘time worked’. 6 The Police Commissioner says the meaning of ‘all time worked’ is narrower, being confined to hours of duty as that concept is used in the Police Force Regulations 1979 (WA). On his interpretation, not every instance of flying or travelling to a location will be ‘time worked’, although on the facts of a particular case, it might be time worked. For example, if the officer is on duty to accompany a prisoner or dignitary, then the officer is working and the time is time worked. 7 The Union invoked s 46 of the Industrial Relations Act 1979 (WA) to resolve the question of the meaning of ‘all time worked’. Section 46 empowers the