Bowers v Victoria Police

[2011] FWA 6960

[2011] FWA 6960

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.472 - Application for an order relating to certain partial work bans

Mr Richard Bowers
v
Victoria Police
(B2011/255 & B2011/3508)

COMMISSIONER ROE MELBOURNE, 12 OCTOBER 2011

Application for order relating to certain partial work bans.

[1] This matter arises from two applications for orders relating to certain partial work bans, pursuant to s.472 of the Fair Work Act 2009 (the Act), filed in Fair Work Australia on 23 and 29 September 2011 by Richard Bowers (the Applicant) in relation to protected industrial action being organised by employees of Victoria Police (the Respondent).

[2] The matter was heard on 10 October 2011 and the decision reserved. Sergeant Richard Bowers is a bargaining representative for a group of Police Prosecutors engaged in bargaining for a new collective agreement for Victoria Police. The Police Federation of Australia - Victoria Police Branch are also bargaining representatives engaged in bargaining for a new collective agreement for Victoria Police. In the proceedings Sergeant Bowers represented the relevant employees and Ms Liz Cheligoy represented Victoria Police together with Superintendent Shane Cole. In response to a query from Sergeant Bowers my associate advised Sergeant Bowers on 28 September 2011 that “the listing is for a final hearing which means you will need to bring all relevant witnesses and other evidence.”

Legislation

[3] Sections 471, 472 and 19 of the Act relevantly state:

“Section 471 - Payments relating to partial work bans

Employer gives notice of reduction in payments

(1) If:

(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b) the industrial action is a partial work ban; and

(c) the employer gives to the employee a written notice stating that, because of the ban, the employee's payments will be reduced by a proportion specified in the notice;

then the employee's payments are reduced in accordance with subsection (2) in relation to the period (the industrial action period) referred to in subsection (5).

(2) The employee's payments in relation to the industrial action period are reduced:

(a) by the proportion specified in the notice; or

(b) if FWA has ordered a different proportion under section 472--by the proportion specified in the order;

and the modern award, enterprise agreement or contract of employment that applies to the employee's employment has effect accordingly.

(3) The regulations may prescribe how the proportion referred to in paragraph (2)(a) is to be worked out.

Employer gives notice of non-payment

(4) If:

(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b) the industrial action is a partial work ban; and

(c) the employer gives to the employee a written notice stating that, because of the ban:

(i) the employee will not be entitled to any payments; and

(ii) the employer refuses to accept the performance of any work by the employee until the employee is prepared to perform all of his or her normal duties;

then the employee is not entitled to any payments in relation to the period (the industrial action period ) referred to in subsection (5).

(4A) If:

(a) an employer has given an employee a notice under paragraph (4)(c); and

(b) the employee fails or refuses to attend for work, or fails or refuses to perform any work at all if he or she attends for work, during the industrial action period;

then:

(c) the failure or refusal is employee claim action , even if it does not satisfy subsections 409(2) and 413(4), if the related industrial action referred to in paragraph (4)(a) is employee claim action; or

(d) the failure or refusal is employee response action , even if it does not satisfy subsection 413(4), if the related industrial action referred to in paragraph (4)(a) is employee response action.

The industrial action period

(5) The industrial action period is the period:

(a) starting at the later of:

(i) the start of the first day on which the employee implemented the partial work ban; or

(ii) the start of the next day, after the day on which the notice was given, on which the employee performs work; and

(b) ending at the end of the day on which the ban ceases.

Form and content of notice

(6) The regulations may prescribe requirements relating to one or both of the following:

(a) the form of a notice given under paragraph (1)(c) or (4)(c);

(b) the content of such a notice.

Manner of giving notice

(7) Without limiting paragraph (1)(c) or (4)(c), the employer is taken to have given a notice in accordance with that paragraph to the employee if the employer:

(a) has taken all reasonable steps to ensure that the employee, and the employee's bargaining representative (if any), receives the notice; and

(b) has complied with any requirements, relating to the giving of the notice, prescribed by the regulations.

Employer does not give notice

(8) If:

(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b) the industrial action is a partial work ban; and

(c) the employer does not give the employee a notice in accordance with paragraph (1)(c) or (4)(c);

then the employee's payments for the day are not to be reduced because of the ban.

Section 472 - Orders by FWA relating to certain partial work bans

(1) FWA may make an order varying the proportion by which an employee's payments are reduced.

(2) FWA may make the order only if a person has applied for it under subsection (4).

(3) In considering making such an order, FWA must take into account:

(a) whether the proportion specified in the notice given under paragraph 471(1)(c) was reasonable having regard to the nature and extent of the partial work ban to which the notice relates; and

(b) fairness between the parties taking into consideration all the circumstances of the case.

(4) An employee, or the employee's bargaining representative, may apply to FWA for an order under subsection (2) if a notice has been given under paragraph 471(1)(c) stating that the employee's payments will be reduced.

Section 19 - Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;

(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c) action by an employee if:

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Note: In this section, employee and employer have their ordinary meanings (see section 11).”

[4] Regulation 3.21 of the Fair Work Regulations 2009 also has application:

“Payments relating to partial work bans -- working out proportion of reduction of employee's payments

For subsection 471 (3) of the Act, the proportion mentioned in paragraph 471 (2) (a) of the Act is worked out for an employee or a class of employees by carrying out the following steps.

Step 1

Identify the work that an employee or a class of employees is failing or refusing to perform, or is proposing to fail or refuse to perform.

Step 2

Estimate the usual time that the employee or the class of employees would spend performing the work during a day.

Step 3

Work out the time estimated in Step 2 as a percentage of an employee's usual hours of work for a day.

The solution is the proportion by which the employee's payment will be reduced for a day.

The circumstances

[5] On 19 September 2011 the results of a Protected Action Ballot were declared by the Australian Electoral Commission pursuant to orders issued by Fair Work Australia on 26 August 2011 in B2011/193. The Ballot authorised a number of forms of action two of which are relevant to the present proceedings:

“Question 8

Prosecutors will stop court and office duties for periods of up to half an hour and gather outside their local court to discuss industrial action as well as activities relating to prosecutions. The timing and duration of these gatherings will be specified in notices to the employer in accordance with the Fair Work Act 2009.”

Question 11

As authorised officers under the Court Security Act, Prosecutors will refuse to be scanned, or have any property in their possession scanned, by other authorised officers or any other person upon entry to a court. Prosecutors will not enter any court premises unless granted admission to those premises without a requirement for the aforementioned scanning.” 1

[6] On 19 and 23 September 2011 Sergeant Richard Bowers issued notices under Section 414 of the Act giving notice that protected industrial action was to take place. 2

[7] On 21 and 27 September 2011 Victoria Police issued notices pursuant to Section 471 of the Act advising Sergeant Bowers, as the bargaining representative for the Victoria Police Prosecutors who had voted in the protected industrial action ballot, that payments would be deducted from the wages of employees who had given notice that they would participate in certain forms of industrial action. 3

[8] The industrial action which was notified on 19 September 2011 and which was the subject of the notice of deduction on 21 September 2011 did not proceed. There is no useful purpose to be served by proceeding with the Application under Section 472, for Fair Work Australia to vary the proportion by which payments are reduced in respect to the notice of 21 September 2011 since no deductions can or will be made. The relevant industrial action which was notified on 23 September 2011 did proceed and the application to vary the proportion by which the payments are reduced under Section 472 must be considered. Section 472(4) provides that a bargaining representative may apply for an order if a notice has been given under paragraph 471(1)(c). I am satisfied that the notice of Victoria Police of 27 September 2011 is such a notice 4 and that Sergeant Bowers is a bargaining representative who can make an Application to vary the proportion by which an employee’s payments are reduced.

[9] There were approximately 27 forms of industrial action for which notice has been issued by the Applicant and which have not been the subject of any notice of deduction of wages. There are two forms of industrial action advised which were the subject of the notice of deduction of wages as follows:

“28. On Thursday 29th September, 2011, at 9.30am, Prosecutors will stop office and court duties and gather at the front of their local court for a period of 10 minutes to discuss activities relating to prosecutions.

29. On Thursday 29th of September 2011, at 9.40am Prosecutors returning to and attempting to enter court will refuse to allow themselves, or any property in their possession, to be scanned by other officers authorised under the Court Security Act, or by any other person. If any person refuses to grant a prosecutor entry to a court without a requirement to be scanned, the prosecutor will wait outside the court until such entry is granted. Prosecutors will maintain their refusal to be scanned for 20 minutes from 9.40am, at which time, if a person still insists upon scanning the prosecutors, they will allow themselves and their property to be scanned and enter the court to attend to their duties.” 5

[10] I will refer to the first action as the “meeting action” and the second action as the “ban on scanning.” The notice issued by Victoria Police advised that they estimated that “the usual time that Victoria Police considers that you would spend during the day performing work that is subject to the industrial action” would be 10 minutes in the case of the meeting action and 20 minutes in the case of the ban on scanning. 6 The notice issued by Victoria Police advised that the 10 minutes involved in the meeting action constituted 2.083% of the day and that $6.95 would be deducted for each day of this action. The notice issued by Victoria Police advised that the 10 minutes involved in the ban on scanning constituted 4.17% of the day and that $13.90 would be deducted for each day of this action. The notice also specified that the notice would apply from the start of the first day of the partial work ban which was 9am on Thursday 29 September 2011 and would end on the day on which the partial work ban will cease which was 5pm on Thursday 29 September 2011.7

[11] The Application sought to reduce the proportion to be deducted, and the consequential amounts, to 0% or zero.

[12] Victoria Police advised Fair Work Australia that they have decided that they will not make deductions from any Prosecutor who was not rostered to work on the relevant day or who was rostered to work at a country court where scanning of Prosecutors is not required. Victoria Police will give Prosecutors the opportunity to provide evidence as to why the deduction should not apply to them as an individual if they say they did not take part in the relevant action.

The submissions in respect to the meeting action

[13] The Applicant argued that the meeting action does not constitute a failure to engage in ordinary prosecutions activities. He argued that discussion amongst prosecutors concerning cases and research was a normal part of the job and that the effect of the action was to transfer this activity from the court room or office to the front of the local court. He argued that it was commonplace for the starting time of courts to vary at the whim of the relevant magistrate and that when the meeting action occurred the court was advised and “catered for a start which was later than the usual scheduled time.” He submitted that there was no disruption caused at all and every case was still dealt with during the court sitting day.

[14] Victoria Police had notice of these submissions as they were clearly set out in the Application. Victoria Police did not bring any evidence to challenge the essential facts asserted by the Applicant. I did not regard it is as essential in the circumstances for Sergeant Bowers to present this as sworn evidence. However, Victoria Police rejected the submission that this “does not constitute a failure to engage in ordinary prosecutions activities.” Victoria Police argued that that they had correctly assessed that on the basis of the notified action it was reasonable to assume that ten minutes of normal duties would be lost as a result of the actions.

[15] I am satisfied that the meeting action does constitute industrial action as defined by Sections 19(1)(a) and (b) “the result of which is a restriction or limitation on, or a delay in, the performance of the work.” The submission of Sergeant Bowers accepts that cases started later than the scheduled time in some cases, as a result of the action. There were duties that Victoria Police desired the Prosecutors to perform and which they could normally expect them to perform that were not performed during that ten minutes.

[16] The Applicant does not contest the mathematical calculation by Victoria Police. That is if the time of the meeting ban is regarded for the purpose of Step 1 in Regulation 3.21 as “the work that an employee or a class of employees is failing or refusing to perform, or is proposing to fail or refuse to perform” then the outcomes from Step 2 and Step 3 in Regulation 3.21 are correctly set out in the Victoria Police notice as summarised in Paragraph 10 above.

[17] The Applicant does say that because prosecutions work was being performed and because the meeting action did not lead to disruption this means that the nature and extent of the ban does not warrant the deduction notified by Victoria Police. The Applicant submitted that one Prosecutor did a summary case conference with a solicitor during the ten minute meeting time and that overall there was little difference to normal activity. The Applicant also argues that the deduction is not reasonable from a fairness point of view given the failure of Victoria Police to notify deductions in respect to partial work bans in respect to industrial action being taken by the majority of police for whom the Police Federation of Australia - Victoria Police Branch is the bargaining agent. These are argued to be relevant considerations under Section 472(3).

The submissions in respect to the ban on scanning

[18] The Applicant argued that the ban on scanning does not constitute a refusal by Prosecutors to carry out their duties. The Applicant argues that Prosecutors are authorised officers under the Court Security Act 1980 and that as such they have powers to conduct searches of persons entering and leaving courts and that they do in fact carry out such security functions and as such they have an implied right of entry to courts without the requirement to be searched or scanned. The Applicant argues that submitting to scanning is not a specified duty of the Prosecutors under the Victorian Police Manual, the Prosecutions Division Standing Instructions, any Chief Commissioner’s Instruction, the Victoria Police Workplace Agreement 2007 or the position description for Prosecutors. The Applicant argues that the requirement only applies to unarmed police and that it is not consistently applied and that it is a requirement imposed by the Court not by Victoria Police.

[19] The Applicant also argued that the time taken to refuse to be scanned is a matter of seconds and is certainly a shorter time than the time taken to perform the scanning. However, I note that the action notified does not just include a refusal to be scanned but also includes:

“the prosecutor will wait outside the court until such entry is granted. Prosecutors will maintain their refusal to be scanned for 20 minutes from 9.40am, at which time, if a person still insists upon scanning the prosecutors, they will allow themselves and their property to be scanned and enter the court to attend to their duties.”

In response to my questions both the Applicant and the Respondent agreed that the result of the ban on scanning as notified is that the Prosecutors will not perform their duties for 20 minutes. The Applicant also agreed that this was in fact what had happened.

[20] I am satisfied that the ban on scanning does constitute industrial action as defined by Sections 19(1)(a) and (b) “the result of which is a restriction or limitation on, or a delay in, the performance of the work.” The submission of Sergeant Bowers accepts that cases started later than the scheduled time in some cases as a result of the action. The duties that Victoria Police desired the Prosecutors to perform and which they could normally expect them to perform were not performed during that twenty minutes.

[21] The Applicant does not contest the mathematical calculation by Victoria Police. That is if the time of the ban on scanning is regarded for the purpose of Step 1 in Regulation 3.21 as “the work that an employee or a class of employees is failing or refusing to perform, or is proposing to fail or refuse to perform” then the outcomes from Step 2 and Step 3 in Regulation 3.21 are correctly set out in the Victoria Police notice as summarised in Paragraph 10 above.

[22] The Applicant does say that because any disruption was not as a result of the actions of the Prosecutors but was as a result of the unreasonable action of the court in refusing entry without scanning and because the ban on scanning did not lead to significant disruption this means that the nature and extent of the ban does not warrant the deduction notified by Victoria Police. The Applicant also argues that the deduction is not reasonable from a fairness point of view given the failure of Victoria Police to notify deductions in respect to partial work bans in respect to industrial action being taken by the majority of police for whom the Police Federation of Australia - Victoria Police Branch is the bargaining agent. These are argued to be relevant considerations under Section 472(3).

General submissions of Victoria Police

[23] Victoria Police argued that it was not essential for me to determine whether or not the action constituted industrial action and that to do so may be to exercise a judicial function. Victoria Police referred to paragraphs 1873 and 1878 of the Explanatory Memorandum in support of the argument that if a deduction occurs in respect of action which does not constitute industrial action then the appropriate remedy is action in the courts. Without disputing that action in the courts is a course of action open to parties in these circumstances, I do not accept the submission that a Section 472 Application is not able to be determined in this case and that I should not consider the question as to whether or not the actions constitute industrial action. The Tribunal is required when dealing with a range of applications concerning industrial action, for example, under Sections 418 and 437, to consider the nature of the action proposed or taken. If action taken is not industrial action then it would be a relevant factor in determining a Section 472 Application. In this case I have no doubt that the actions do constitute industrial action within the meaning of Section 19 of the Act and that they are protected industrial actions which were the subject of the protected action ballot and the appropriate notice under Section 414 of the Act.

Consideration

[24] I have had regard to two decisions of the Tribunal which I regard as relevant in the circumstances of this case: a decision by Commissioner Deegan in Transport Workers Union v Department of Territory and Municipal Services (ACTION) 8 and a decision by Commissioner Simpson in The Australian Institute of Marine and Power Engineers v Port of Brisbane Pty Ltd.9

[25] I agree with the following approach of Commissioner Deegan at paragraphs 35-37 which was also supported by Commissioner Simpson:

“Clearly, s.472 of the Act gives a wide discretion to FWA to deal with disputes concerning the amount of reduction an employer proposes to make and the section does not require, or allow, FWA to determine such a dispute merely by applying the “formula” set out in Regulation 3.21.

It is apparent from the terms of the Explanatory Memorandum that sections 470 and 471 were introduced to allow employers to make a judgment about the effect of a partial work ban and decide how to respond to the ban, that is whether to refuse to pay the employee at all for the period of the ban, refuse to accept the performance of any work by the employee or pay the employee proportionally for the work performed. Under the previous legislation the employer had no discretion in this regard and was required by the legislation to deduct at least four hours’ pay from any employee implementing protected action, no matter how minimal the effect of that action. According to the Explanatory Memorandum the new provisions might “assist in resolving disputes more efficiently and may prevent the escalation of some disputes”.

Under the provisions of the Division, the employer has the discretion to decide that a task that an employee proposes to ban is not so critical that it is preferable that the employee perform no work at all and receive no payment. In such a circumstance the employer can determine what proportion of the employee’s wage should be paid for the performance of the work not banned and notify the employee of the proposed reduction in payment. The employee can then determine whether to accept that proportion of payment which will be made or take some other form of protected action, such as performing no work at all. It is also open to an employee, if it is considered that the proportion by which the payment has been reduced is too high, to make an application such as the present one under s.472 of the Act and have FWA determine the amount by which the payment should be reduced.”

[26] Commissioner Deegan at paragraph 33 said that:

“If all that were to be considered, as was argued by the TWU, was whether the employer had properly estimated the time involved in physically performing the banned task, the matters to be taken into account by FWA would have little relevance, particularly the “nature” of the ban and “fairness between the parties” in light of “all the circumstances of the case”.”

[27] I also agree with the position stated by Commissioner Simpson that the assessment that Fair Work Australia makes of the nature and extent of the action is not a retrospective day by day or hour by hour assessment of what the result of the industrial action has been. Section 472(3)(a) requires Fair Work Australia to take into account whether the proportion specified “was reasonable.” That is the assessment must essentially be made based upon the action specified in the notice taking into account the surrounding circumstances. 10

[28] The assessment of fairness on the other hand requires an assessment which can include what actually happened as a result of the industrial action together with a range of other factors. 11

[29] Having considered the evidence and the submissions I am satisfied that the meeting action and the ban on scanning are partial work bans. They are not industrial action covered by Section 470(1) for which wages must be deducted for the time of the action. The actions are not bans on overtime nor are they stoppages of work. They are not actions covered by Section 470(3)(a) because the prosecutors are attending for work and they are not actions covered by Section 470(3)(b) because the prosecutors are not performing specified work and they are not actions covered by Section 470(3)(c) since the action is taking place within rostered hours of duty and ordinary time and also because it does not involve a stoppage of work.

[30] In respect to the ban on scanning I am satisfied that the time occupied by the work that the Prosecutors have advised that they are refusing or failing to perform is 20 minutes. Both parties accepted this in their submissions. The Prosecutors advised that they are not intending to engage in their normal duties during this 20 minutes, if as Victoria Police might reasonably expect, the courts insist on their normal practice of scanning the Prosecutors. Furthermore, the industrial action was intended to delay and disrupt the normal operation of the courts. Both parties accepted that some hearings had been rescheduled as a result although Sergeant Bowers submitted that the courts were able to make the necessary adjustments so that cases were still completed on the same day. There is no evidence that the Prosecutors intended to perform or performed productive work during the period.

[31] I am therefore satisfied that in respect to the ban on scanning the proportion mentioned in Section 417(2)(a) of the Act has been correctly calculated in accordance with Regulation 3.21 of the Fair Work Regulations. I am also satisfied that having regard to the “nature and extent of the partial work ban to which the notice relates” that the deduction advised in the notice was reasonable.Sergeant Bowers submits that the action of the courts in requiring the Prosecutors to be scanned is unreasonable, irrational and unlawful. I do not consider that this is a matter which I should determine. It is not in dispute that the scanning is the manner in which the work is customarily performed and the refusal to carry out work in this manner is industrial action and a partial ban. Victoria Police have no option but to carry out their work in a manner as determined by the courts until or unless the practice is changed. Section 472 of the Fair Work Act is not the instrument for achievement of such change. Although I accept the submission of Sergeant Bowers that the requirement to submit to scanning is not in the various work instructions and procedures to which he referred I am satisfied that this does not prevent the employer from requiring this to be done as part of the work of a police prosecutor. It is accepted that it is a part of the way in which the work has traditionally been performed in recent years.

[32] I am also satisfied that after considering all of the circumstances of the case fairness between the parties does not require me to disturb this conclusion in respect to the ban on scanning. The intention of the legislation is clearly that a proportionate deduction for industrial action in the form of partial bans is appropriate not mandatory but is an option available to the employer. In the circumstances of this case there is nothing particularly unfair to either party in the deduction being made which is proportionate to the time when normal duties are proposed not to be performed. The only issue of fairness raised which I consider deserves consideration is the fact, admitted by both parties, that the majority of Victoria Police engaged in industrial action during the current bargaining dispute have not been subject to Section 471 notices of deduction from wages as a result of that action. Sergeant Bowers suggests that Victoria Police are not treating the Prosecutors who are represented by Sergeant Bowers as the bargaining representative in the same manner as they are treating the majority of police who are represented by the union.

[33] In response to this submission Victoria Police pointed to the fact, again accepted by both parties, that no Section 471 notice has been issued in respect to the other 27 forms of industrial action notified by Sergeant Bowers. Victoria Police submit that the actions taken by the police who are represented by the union are comparable to those other 27 forms of industrial action. Victoria Police submit that the two forms of action for which notices have been issued are different in their character in that they directly disrupt the functioning of the courts and are likely to result in the non-performance of any of the ordinarily performed duties during the specified periods. Sergeant Bowers did not produce any evidence to contradict this submission. Sergeant Bowers did not offer any persuasive submission to contradict this submission in respect to the ban on scanning. In respect to the meeting action he submitted that productive duties were performed to some extent and I will deal with this matter when considering the meeting action.

[34] In respect to the meeting action I am satisfied that the time occupied by the work that the Prosecutors have advised that they are refusing or failing to perform is 10 minutes. Both parties accepted this in their submissions. The Prosecutors advised that they “will stop office and court duties” during this 10 minutes. Furthermore, I am satisfied that notwithstanding that the notice given by Sergeant Bowers said that the meeting was “to discuss activities relating to prosecutions” Victoria Police apprehended that the industrial action would lead to a delay in the time that Prosecutors were available to attend to matters in the courts. Having considered all of the submissions and the circumstances, I am satisfied that this was a reasonable apprehension and that the action was intended to delay and disrupt the normal operation of the courts. Both parties accepted that some hearings had been delayed or rescheduled as a result although Sergeant Bowers submitted that the courts were able to make the necessary adjustments so that cases were still completed on the same day.

[35] I accept that it is probable that some work related discussion and activity took place during the ten minute meeting and that the employer should have regard to the fact that in the notice Sergeant Bowers advised that the purpose of the meeting was to “discuss activities relating to prosecutions.” However, I am satisfied that this activity was not occurring at the normal time and place and it was not in the time and place desired by the employer. Furthermore, for the reasons discussed earlier I do not consider this to be the primary purpose of the activity and Victoria Police were right to make the assessment that this was not the primary purpose. Adopting the approach taken by Commissioner Deegan in the ACTION case, I have asked did the employer have reasonable expectation of the benefit of significant productive work during the period of the partial work ban and or was the productive work likely to be performed likely to offset the damage or disruption of the partial work ban and or was the proportion of wages deducted disproportionate to the damage or disruption likely to occur? If this had been the case then I would have grounds to consider that 100% deduction for the time of the meeting action was inappropriate. However, after considering all the circumstances I do not regard this to be the case.

[36] I am therefore satisfied that in respect to the meeting action the proportion mentioned in Section 417(2)(a) of the Act has been correctly calculated in accordance with Regulation 3.21 of the Fair Work Regulations. I am also satisfied that having regard to the “nature and extent of the partial work ban to which the notice relates” that the deduction advised in the notice was reasonable.

[37] I am also satisfied that after considering all of the circumstances of the case fairness between the parties does not require me to disturb this conclusion in respect to the meeting action. The reasons for this are similar to those in respect to the ban on scanning dealt with earlier.

[38] I therefore have decided that there is no basis pursuant to Section 472(3) of the Act to vary the proportion by which the wages of the Prosecutors are proposed to be reduced. The Application is dismissed.

COMMISSIONER

Appearances:

Mr Richard Bowers represented the group of Police Prosecutors he is a bargaining representative for.

Ms Liz Cheligoy represented Victoria Police together with Superintendent Shane Cole.

Hearing details:

2011
Melbourne
October 10

 1   Exhibit B1.

 2   Exhibit B2 and Exhibit B4.

 3   Exhibit B3 and Exhibit B5.

 4   Exhibit B5.

 5   Exhibit B4.

 6   Exhibit B5.

 7   Ibid.

 8 (2010) FWA 4558.

 9 (2011) FWA 4653.

 10 (2011) FWA 4653 at paras 50 and 67.

 11 (2011) FWA 4653 at paras 58 and 73.

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