Chief Commissioner of Victoria Police Trading AS Victoria Police

[2025] FWCA 1135

[2025] FWCA 1135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Chief Commissioner of Victoria Police Trading AS Victoria Police

(AG2025/651)

VICTORIA POLICE (POLICE OFFICERS, PROTECTIVE SERVICES OFFICERS, POLICE RESERVISTS AND POLICE RECRUITS) ENTERPRISE AGREEMENT 2025

State and Territory government administration
COMMISSIONER CONNOLLY	MELBOURNE, 4 APRIL 2025

Application for approval of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2025.

Approval

1. An application has been made for approval of an enterprise agreement known as the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Chief Commissioner of Victoria Police Trading as Victoria Police (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 19 March 2025.

1. The notification time for the Agreement under s.173(2) was 14 June 2023 and the Agreement was made on 28 February 2025.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 27 March 2025, the Employer was invited to address aspects of the Agreement.

1. There are three National Employment Standards (NES) issues that require comment:

·  Maximum Weekly/Fortnightly Hours – Clause 25.1 provides that the ordinary hours of work for full-time employees other than recruits will be 80 hours per fortnight (40 hours per week). This is inconsistent with s.62(1) of the Act which provides that an employer must not request or require an employee to work more than 38 ordinary hours of work in a week unless the additional hours are reasonable. However, it should be noted that 0.0463 of each hour accrues towards time off. The Agreement asserts that an employee's average hours of work over a 12-month period are 76 hours per fortnight.

·  Personal/carer’s leave – Clause 113 provides that personal/carer’s leave for recruits accrues at a rate of 5.85 hours for each completed 4-week period during the training period. The Agreement further goes on to state that upon the completion of the training period, employees will receive 228 hours of leave and applies for two years. It should be noted that clause 7.1 defines the training period as “Initial training period and a further training period and any work placements up to 31 weeks or such other period as agreed between the PFA and Victoria Police.” Recruits appear to receive less personal/carer’s leave than under the NES. Furthermore, the Agreement states that all other employees receive 228 hours every 2-year period of continuous service and a further 114 hours for each year upon completion of 2 years of continued service. The totality of these hours is less than what is afforded under the NES. This is inconsistent with s.96(1) and s.96(2) of the Act where personal/carer’s leave accrues progressively.

·  Compassionate leave – stillbirth consideration – The entitlement to compassionate leave provided by Clause 120 does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s.105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s.105(1)(c) of the Act.

1. Clause 3.3 of the Agreement acts as an effective NES precedence clause, in that it states that “Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.”. As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the NES.

1. The Police Federation of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 May 2028.

Variation

1. An additional application has also been made under s.218A of the Act to vary the Agreement in order to correct a number of obvious errors.

1. The Agreement provided to employees during the access period contained an error. The error was an incorrect reference contained in Schedule C, where next to the “Uniform Allowance” heading it stated “until May 2025”. The Employer has confirmed that this reference to “until May 2025” was an error and has been removed from the Agreement. The published version of this Agreement contains this correction.

1. The Police Federation of Australia has also identified additional errors in the Agreement lodged with the Commission. The Commission’s approval has been sought to rectify the following minor errors on page 109:

·  deleting the heading “One Member Station Allowance” and insert in lieu “Mobile Police Station”.

·  Replacing the references to clause 80.1(a) and 80.1(b) with 92.1(a) and 92.1(b).

1. The bargaining representatives have been made aware of these changes, and they do not oppose the variations being made.

1. Having reviewed the list of errors, it is apparent in my view that such errors would fall within the scope of s. 218A(1). Accordingly, the Agreement is varied as such.

1. The variations will operate from the date on which the Agreement commences operation.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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