The applicant Union’s member was a police officer who travelled to the UK in March 2021 as part of a recruitment drive, promoting living and working as a police officer in Western Australia.

The Union and the Police Commissioner were in dispute about whether the member was entitled to overtime pay for the hours outside his rostered ordinary hours, while he was on the long-haul flights to and from London, and while he was waiting at the respective airports.

The issue was what the relevant overtime clause in the applicable industrial agreement meant when it referred to “all time worked.”

The Union invoked s 46 of the Industrial Relations Act 1979 (WA) to resolve the question of the meaning of ‘all time worked’ in the Western Australian Police Force Industrial Agreement 2022. Section 46 empowers the Industrial Relations Commission to declare the true interpretation of an award or industrial agreement that is in force.

The Union argued that any time that an officer is doing an activity because they are instructed, directed or required by the Police Commissioner to do it, they are working. The Union said that if an officer travels on an 18-hour flight paid for, organised by and required by the Police Commissioner, time spent on the flight is time spent working.

The Police Commissioner argued that while time spent on a flight may in some circumstances be time spent working, it would only be time spent working if during that time the officer was on duty in the sense of either being rostered on duty or being directed outside of rostered hours to engage in policing activities.

Senior Commissioner Cosentino analysed the text of the industrial agreement to ascertain what was the objective intention of the parties when referring to “all time worked” in the overtime clause. The Senior Commissioner noted that other provisions of the Agreement contained themes that indicated rosters are the primary means of determining when an officer is on-duty, that being on-duty and working are interchangeable, that there is intended to be a clear line between when an officer is on duty and when an officer is off duty, and time spent travelling to and from work is not itself time worked.

The Senior Commissioner then considered what being on duty involved. In this regard, the Police Force Regulations provide strong indications of what is and is not consistent with being on duty. An officer must be able to devote themselves “exclusively and zealously” to the discharge of their duties when on duty, which indicates that being on duty that is generally inconsistent with the officer, at the same time, being able to engage in private activities, such as sleeping, enjoying entertainment or engaging in private correspondence.

The Decision can be read here.

In proceedings commenced by two unions to vary the Municipal Employees (Western Australia) Award 2021, the Western Australian Local Government Association is acting as agent for several employer parties.  The WALGA acts for those employers because it is registered as an industrial agent under the IR Act. The WALGA then additionally applied to be permitted to intervene in its own right, as the representative of the local government sector more broadly. It did so because the proceedings have potential ramifications for the local government sector, and because its local government employer members will be directly affected by the outcome in the proceedings.

The application to intervene was opposed by all of the represented parties, other than those the WALGA acts for.

The Senior Commissioner regarded the WALGA as having an indirect, but not a direct, interest in the proceedings. As a representative body, it did not have the direct interest that its members have, as it is not a registered employer organisation under the IR Act. However, having an indirect interest, meant that the Commission had a discretion to permit the WALGA to intervene, In exercising the discretion, the requirements of natural justice are the primary consideration.

The Senior Commissioner found that natural justice did not require that the WALGA be permitted to intervene, because the indirect interest it has could be advanced in other ways, namely by local governments themselves applying to intervene should they wish to do so.  The Senior Commissioner recognised that while efficiencies might be achieved by the WALGA intervening, this was not a significant factor in favour of permitting intervention. It would not, for instance, prevent individual local governments from also seeking to be separately represented.

On the other hand, the potential difficulties associated with permitting the WALGA to intervene were significant. The WALGA has a potential conflict between its interest, and those of the individual local governments it currently acts as agent for. If it ceases to act for those local governments, those local governments may then be disadvantaged by having to incur costs of alternative representation, or being unrepresented. The WALGA’s intervention would potentially also mean it is acting contrary to the Code of Conduct for industrial agents. These factors weighed against permission being given.

The Senior Commissioner dismissed the intervention application.

The Decision can be read here.