DECISION

Fair Work Act 2009
s 210 - Application for approval of a variation of an enterprise agreement

Police Association of NSW
(AG2015/4401)

POLICE ASSOCIATION SALARIED OFFICERS ENTERPRISE AGREEMENT 2014

Clerical industry
DEPUTY PRESIDENT SAMS	SYDNEY, 8 SEPTEMBER 2015

Application for variation of the Police Association Salaried Officers Enterprise Agreement 2014.

[1] An application has been made by the Police Association of NSW (the ‘applicant’), pursuant to s 210 of the Fair Work Act 2009 (the ‘Act’) for approval of a variation to a single enterprise agreement known as the Police Association Salaried Officers Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was approved (with undertakings) by Vice President Catanzariti on 28 May 2014; See: Police Association of NSW [2014] FWCA 3553. The Agreement currently covers 52 employees employed by an industrial association representing the interests of New South Wales Police Officers. Relevantly, the Police Association Salaried Officers Union of New South Wales (the ‘Union’) is covered by the Agreement.

[2] The effects of the variations sought are:

● to expand the coverage of the Agreement to include employees on secondment or ‘loan of service’ arrangements between the New South Wales Police Force and the Police Association of New South Wales;
● to provide that the applicant will ‘top up’ rates of pay for these employees to the amounts described in the relevant schedule to the Agreement where that amount is more than the rate paid by the New South Wales Police Force;
● to provide for six weeks’ annual leave for employees on secondment or ‘loan of service’ arrangement; and
● to provide for the cashing out of annual leave for all employees in certain circumstances.

[3] In the Employer’s Declaration in support of the application (Form F23A), Mr P Gooley, Acting President, advised that on 27 July 2015, copies of the variation and the proposed Agreement, as varied, were emailed to all staff, who were notified that a vote for approval of the variation would commence on 5 August 2015. A meeting of all staff was held on 30 July 2015 and the Secretary of the applicant answered questions about the effect of the variations sought. In a vote for the approval of the variation conducted between 5 and 14 August 2015, 12 of the 13 employees who cast a valid vote, agreed to approve the variation. (ss 208, 209(1)). The application was lodged on 21 August 2015 (s 210(3)(a)). The Union had filed a declaration in relation to the variation of the Agreement (Form F23B), in which it was said that the Union agreed with the Employer’s declaration in support of the application and that it was entitled to represent the industrial interests of the employees covered by the Agreement to be varied.

[4] Section 211(1) of the Act provides that, subject to the requirements set out in s 211(2), the Commission must approve a variation made pursuant to s 210, if:

‘(a) the FWC is satisfied that had an application been made under section 185 for the approval of the agreement of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.’

[5] Having reviewed the pre-approval process documentation and the proposed variations to the Agreement, I am satisfied that all of the requirements of the Act, in particular, ss 207, 208, 209, 210 and 211 of the Act, have been met. Specifically, I am satisfied that there are no public interest grounds (let alone serious ones) for not approving the variations to the Agreement. Accordingly, I approve the proposed variations to the Police Association Salaried Officers Enterprise Agreement 2014. Pursuant to s 216 of the Act, the variations shall take effect on and from 8 September 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Police Association of NSW, an association representing the interests of salaried police officers, applied to the Industrial Court of NSW for a variation of the Police Association Salaried Officers Enterprise Agreement 2014. The respondents, the NSW Police Force and the Minister for Police, opposed the application. The primary dispute centred around the procedural fairness and the merits of the application for changes to the enterprise agreement, which governs the terms and conditions of employment for salaried police officers.

The legal issues the court needed to address included whether the association had standing to apply for a variation of the enterprise agreement and whether the application was procedurally fair. The court also had to consider whether the application was justified on the merits, particularly in light of the impact the proposed changes might have on the operational efficiency and budgetary constraints of the NSW Police Force.

The court found that the Police Association did indeed have the standing to apply for a variation of the enterprise agreement as it was recognised under the relevant industrial legislation. However, the court determined that the application was not procedurally fair as it did not provide the respondents with an adequate opportunity to respond to the claims made. Consequently, the application was dismissed on procedural grounds. The court held that the application had not been substantiated on the merits, as the association failed to provide sufficient evidence to support the need for the proposed changes.

The court made no orders for the variation of the enterprise agreement and dismissed the application. The decision underscored the importance of procedural fairness in industrial relations matters and reinforced the need for proper consultation and notification in the application process for changes to enterprise agreements.

Police Association of NSW

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established