Police Association of NSW v Commissioner of Police, NSW Police Force

Case •

[2025] NSWIC 2

•

03 March 2025

No judgment structure available for this case.

Industrial Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Police Association of NSW v Commissioner of Police, NSW Police Force [2025] NSWIC 2
Hearing dates: 15 October 2024
Date of orders: 3 March 2025
Decision date: 03 March 2025
Before: Chin J, Vice President
Decision:

The Court declares that by operation of clause 64.9 of the Crown Employees (Police Officers – 2021) Award, police officers who are confirmed on a date after the first anniversary of the date of their first appointment as a police officer of the rank of constable in the position of Probationary Constable (Level 1) (their “original attestation date”) are entitled to progress to the salary and grade of Constable (Level 3) on the next anniversary of their original attestation date following confirmation as a constable.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Interpretation – Rights of police officers to incremental progression through hierarchy of ranks, grades and salaries – where applicant union seeks a declaration that, where confirmation of the appointment of a probationary constable is delayed beyond 12 months, those officers are entitled to progress to the higher rank and salary increment on the next anniversary of the date of their appointment as probationary constables – where awards to be given practical operation consistent with the objective meaning of its language – where awards should be reasonably capable of being understood by the participants in the industries to which they apply – where past industrial practices cannot be substituted for the terms of the award − applicant entitled to declaratory relief

Legislation Cited:

Industrial Relations Act 1996 (NSW) ss 10, 130, 154, 379, 380

Police Act 1990 (NSW) s 12, 80, 85

Police Regulation 2015 (NSW) cl 5, 7, 13

Cases Cited:

Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10

Australian Communication Exchange Ltd v Deputy Federal Commissioner of Taxation (2003) 77 ALJR 1806; [2003] HCA 55

Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/as Yarra Trams [2021] FCA 1377

Bryce v Apperley (1998) 82 IR 448

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813

City of Wanneroo v Holmes (1989) 30 IR 362; [1989] FCA 553

George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498

James Cook University v Ridd (2020) 278 FCR 566; [2020] FCAFC 123

King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173

Kingmill Australia Pty Ltd (t/a Thrifty Car Rental) v Federated Clerks’ Union of Australia (2001) 106 IR 217; [2001] NSWIRComm 141

Kucks v CSR Ltd (1996) 66 IR 182; [1996] IRCA 166

New South Wales Nurses and Midwives’ Association v New South Wales [2024] NSWSC 636

New South Wales v Stockwell [2017] NSWCA 30

Perisher Blue Pty Ltd v Australian Workers Union (1999) 91 IR 274

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 87 NSWLR 41; [2014] NSWIRComm 23

Shop Distributive and Allied Employees' Association v Woolworths Ltd (2006) 151 FCR 513; [2006] FCA 616

State of New South Wales v Briggs (2016) 95 NSWLR 467

State of New South Wales v Stockwell [2017] NSWCA 30

Target Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association (2023) 324 IR 304; [2023] FCAFC 66

Tasmanian Water and Sewerage Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2025] FCA 39

Transport Workers' Union (NSW Branch) v Walker Civil Engineering (1999) 91 IR 153

Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449; [2014] FCAFC 148

WorkPac Pty Ltd v Skene (2018) 264 FCR 536; [2018] FCAFC 131

Texts Cited:

Nil

Category:Principal judgment
Parties: Police Association of NSW (Applicant)
Commissioner of Police, NSW Police Force (Respondent)
Representation:

Counsel:
P Lowson (Applicant)
M Watts (Respondent)

Solicitors:
Police Association of NSW (Applicant)
Kingston Reid (Respondent)
File Number(s): 2024/280375
Publication restriction: Nil

JUDGMENT

Introduction

  1. This matter concerns the rights of persons who are first appointed on probation as a police officer of the rank of constable (“Probationary Constable”) to progress through the scale of rank, grade and salary increments under the Crown Employees (Police Officers – 2021) Award (“the Award”) after a delay in the confirmation of their appointment to that rank.

  2. The initial appointment of a constable on probation is commonly referred to as an “attestation”. The period for which newly appointed or “attested” constables are on probation is ordinarily 12 months. At the end of the 12-month probationary period, successful Probationary Constables are confirmed in the rank of constable and thereupon progress to the next salary increment under the Award – from “Probationary Constable (Level 1)” to “Constable Level 2”. The anniversary date of their attestation and confirmation will ordinarily be the same date. After their confirmation, this anniversary date serves as the date on which they progress annually through each of the subsequent salary increments, starting with “Constable Level 3”.

  3. The issue in dispute arises in circumstances where, for whatever reason, the confirmation of the appointment of a Probationary Constable is delayed after a period of 12 months from their attestation. The applicant, the Police Association of NSW, contends that such a Probationary Constable progresses to the “Constable Level 3” salary increment on the next anniversary of their original attestation date. The respondent, the Commissioner of Police (“the Commissioner”), contends that the constable progresses annually through each of the subsequent salary increments at a later time, that is, on the date of their actual, delayed confirmation.

  4. The resolution of this controversy turns on the construction of cl 64.9 of the Award. This clause provides:

64.9 Effect of Any Deferral of Incremental Progression

64.9.1 The period of deferral of an increment will be determined by the period of time taken to achieve the appropriate competency and/or performance standards in accordance with the provisions of this clause.

64.9.2 Where an increment is deferred:

(a)   within the first 3 years of employment as a Non-Commissioned Officer, the original increment date is to be retained for future increments;

(b)   after the first 3 years of employment as a Non-Commissioned Officer, all future incremental dates are to be varied by the period of deferment.

  1. The parties differ as to whether Probationary Constables are entitled to progress to the next incremental level in the manner contemplated for junior police officers by cl 64.9.2(a), or whether, by reason of their probationary status, these constables are sui generis or unique among police officers and do not have this entitlement. The determinative issue boils down to whether a Probationary Constable is “a Non-Commissioned Officer” engaged “within the first 3 years of employment” for the purposes of cl 64.9.2(a). If so, as the Police Association contends, in circumstances where a Probationary Constable’s confirmation of appointment and incremental progression to Constable Level 2 is delayed or “deferred”, the Award provides that their subsequent progression to “Constable Level 3” and higher is to take place on the anniversary of their attestation date or “original increment date”.

  2. On the other side, the Commissioner contends that cl 64.9 has no application to Probationary Constables. Although the Commissioner accepts that Probationary Constables fall within the Award definition of “Non-Commissioned Officer”, she contends that a delay in the confirmation of their appointment to the rank of constable at the grade of Constable Level 2 is separate and distinct from the concept of a “deferral of incremental progression” to which cl 64.9 is directed. Instead, the Commissioner contends that cl 64.9.2(a) is confined to the deferral of an increment only for Non-Commissioned Officers within the first three years after their confirmed appointment.

  3. For the reasons that follow, I agree with the Police Association’s construction of cl 64.9 and reject the Commissioner’s construction.

Procedural background and relief sought

  1. On 22 April 2024, the applicant notified an industrial dispute under s 130 of Industrial Relations Act 1996 (NSW) (“the Act”) concerning the incremental salary progression entitlements of four police officers whose confirmation as Probationary Constables had been delayed, together with a related application for recovery of remuneration under sections 379 and 380 of the Act. This dispute and underpayment claim was the subject of attempted conciliation involving six compulsory conferences before the Commission over the period from 30 April to 4 July 2024. This process has been exhausted, with the Commission issuing a certificate of attempted conciliation on 5 July 2024.

  2. Neither party has sought to vary the terms of the Award in the context of their industrial dispute. Instead, after the re-establishment of the Industrial Court of NSW on 1 July 2024, the Police Association filed an application on 30 July 2024 seeking declaratory relief from this Court under s 154 of the Act. The prior dispute and underpayment proceedings before the Commission was stayed pending the outcome of this application for declaratory relief.

  3. By its application filed on 30 July 2024, the Police Association seeks a declaration of right in the following terms:

“Police officers who are confirmed on a date after the first anniversary of their original attestation date are entitled to progress to the salary at Constable (Level 3) on the next anniversary of their original attestation date following confirmation as a Constable.”

  1. The declaratory relief sought by the Police Association, which the Commissioner opposes, is intended to resolve the underlying industrial dispute about how the Award provisions dealing with incremental salary progression should apply to Probationary Constables.

  2. Accordingly, this Court must construe the relevant terms of the Award − in particular cl 64.9.2(a) − in accordance with well-established principles.

Principles of award interpretation

  1. The interpretation of an award begins with a consideration of the natural and ordinary meaning of the words used, with the aim of discerning their objective meaning. [1]

    1. Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 at [2]; Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449; [2014] FCAFC 148 at [22]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536; [2018] FCAFC 131 at [197]; City of Wanneroo v Holmes (1989) 30 IR 362; [1989] FCA 553 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813 at [53]; Bryce v Apperley (1998) 82 IR 448 at 452; Transport Workers' Union (NSW Branch) v Walker Civil Engineering (1999) 91 IR 153 at 166 and Kingmill Australia Pty Ltd (t/a Thrifty Car Rental) v Federated Clerks’ Union of Australia (2001) 106 IR 217; [2001] NSWIRComm 141 at [63].

  2. Awards are practical and beneficial instruments. They are “to be construed as ‘practical’ instruments that will apply to the working conditions known to employers and employees”. [2] They should be given a broad or generous construction, being careful to avoid a too literal adherence to the strict technical meaning of words or a narrow or overly pedantic construction, and endeavouring to give it a meaning consistent with the award’s purpose and the general intention of the parties to be gathered from the whole award and its context. [3]

    2. Tasmanian Water and Sewerage Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2025] FCA 39 at [25], citing WorkPac Pty Ltd v Skene (2018) 264 FCR 536; [2018] FCAFC 131; at 580 [197] and James Cook University v Ridd (2020) 278 FCR 566; [2020] FCAFC 123; at 580–581 [65]. See also: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 at [96] citing Kucks v CSR Ltd (1996) 66 IR 182; [1996] IRCA 166 at 184.

    3. City of Wanneroo v Holmes (1989) 30 IR 362; [1989] FCA 553 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813 at [53]; Kingmill Australia Pty Ltd (t/a Thrifty Car Rental) v Federated Clerks’ Union of Australia (2001) 106 IR 217; [2001] NSWIRComm 141 at [67]-[69] and George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504.

  3. The relevant context includes the whole of the text of the award, the award’s industrial context and purpose as well as the legislative background in which it was made and intended to operate within. [4] Relevant context can include a consideration of the history and subject matter of the award, as well as the circumstances in which it was made. The statutory context in which awards are made includes the requirement on the Industrial Relations Commission of New South Wales in s 10 of the Act to set “fair and reasonable conditions of employment for employees.”[5]

    4. Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 at [13]; State of New South Wales v Stockwell [2017] NSWCA 30 at [68]; Perisher Blue Pty Ltd v Australian Workers Union (1999) 91 IR 274 at 283 and George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504.

    5. New South Wales Nurses and Midwives’ Association v New South Wales [2024] NSWSC 636 at [15].

  4. The subjective intention of the parties to the award are not relevant. Instead, “the process of construction must direct attention to the words that are actually used. Expressed intention is to be gathered from the text of the instrument in light of context and purpose. There are limits on the extent to which the resolution of questions of construction may be driven by reference to history and context”. [6]

    6. New South Wales Nurses and Midwives’ Association v New South Wales [2024] NSWSC 636 at [15] citing: King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122], [128]-[130] and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 87 NSWLR 41; [2014] NSWIRComm 23 at [115], [127]-[128].

  5. Although context is significant, the construction of an award must ultimately be consistent with the objective meaning of its language. [7] As stated by Wheelahan J in King v Melbourne Vicentre Swimming Club Inc:[8] “[t]he inquiry is directed to the proper construction of what the instrument says, and not what it was meant to say”; and “[t]here is much to be said for the notion that instruments such as awards should be reasonably capable of being understood and implemented by the participants in the industries to which they apply by reference to the language employed in the instrument itself, without having to investigate and ascertain the pedigree of the instrument in order to identify some latent meaning to be discerned by an analysis of the mental states or purposes of others”.

    7. Australian Communication Exchange Ltd v Deputy Federal Commissioner of Taxation (2003) 77 ALJR 1806; [2003] HCA 55 at [8]; New South Wales v Stockwell [2017] NSWCA 30 at [71]; New South Wales Nurses and Midwives’ Association v New South Wales [2024] NSWSC 636 at [15] and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813 at [57].

    8. [2020] FCA 1173 at [122], [128].

  6. Accordingly, great care must be taken in relying on past industrial practices as the basis of a “common understanding” as an aid to construction. Past practices cannot be substituted for the terms of the instrument. They are no more than part of the context in which the text of the instrument is to be construed. [9] For this approach to be taken, “there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning”. [10]

    9. Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/as Yarra Trams [2021] FCA 1377 at [63], cited with approval in Target Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association (2023) 324 IR 304; [2023] FCAFC 66 at [72].

    10. Shop Distributive and Allied Employees' Association v Woolworths Ltd (2006) 151 FCR 513; [2006] FCA 616 at [31] cited with approval in Target Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association (2023) 324 IR 304; [2023] FCAFC 66 at [70] (see also at [71]-[78] and the authorities cited therein).

The position of Probationary Constable

  1. Before considering the relevant terms of the Award, it is necessary to understand the nature of the position of Probationary Constable.

  2. The position of Probationary Constable can be distinguished from that of a Student or Student Police Officer. A candidate to join the NSW Police Force commences a program of study in the Associate Degree in Policing Practice conducted by Charles Sturt University, together with the NSW Police Force Academy. Confirmation of an officer’s appointment in the rank of constable depends on the officer completing this Associate Degree. However, a candidate undertakes the first two of five components of the degree course other than in the capacity of Probationary Constable. This initial part of the course involves undertaking a one-week online course focusing on the theory of policing as a “Student”, and then commencing temporary fixed-term employment with the NSW Police Force in an administrative position known as “Student Police Officer” to undertake a 16-week residential course at the Police Academy in Goulburn.

  3. Student Police Officers “attest” and commence as Probationary Constables when they successfully complete the Police Academy course in Goulburn. Probationary Constables are then posted to an operational Police Area Command or Police District where they complete the remaining components of their Associate Degree while also performing the duties of a police officer under the supervision of senior officers.

  4. The engagement of police officers in NSW is governed by the Police Act 1990 (NSW) and the Police Regulation 2015. Subsections 80(2) and 80(4) of the Police Act provide that when a person is first appointed as a police officer of the rank of constable, they are to be so appointed on probation, and are subsequently promoted within the rank of constable in accordance with the Police Regulation. These officers are referred to as Probationary Constables.

  5. The Police Regulation stipulates that when first appointed as a police officer of the rank of constable, a person is to be appointed on probation for a period of one year or “for such longer or shorter period (being not less than 6 months) as the Commissioner may direct”: reg 13(1). The Commissioner may direct that the period of probation be less than six months, or may waive the period of probation completely, if the person has previously served as a police officer in the NSW Police Force or in any other police service or police force: reg 13(2).

  6. The probation period ends when the officer’s appointment in the rank of constable is “confirmed”. Regulation 14 provides that this confirmation is subject to the officer successfully completing initial basic training, completing the period of probation, obtained a satisfactory fitness report, and otherwise satisfying the other requirements of Div 2 to Pt 2 of the Police Regulation.

  7. The standard or usual probationary period for police officers is 12 months. Only a small proportion of Probationary Officers are not confirmed at the end of that period. This is illustrated by the fact that, according to the evidence of Assistant Commissioner Greentree relied upon by the Commissioner in these proceedings, only several out of about two to three hundred Probationary Constables who attested in the previous 12 months have not been confirmed at the end of their initial 12-month probationary period, including some who resigned or were dismissed from the Police Force without having been confirmed.

  1. The status of constables who are appointed on probation means that, during their probationary period, the Commissioner of Police may dismiss them from the NSW Police Force at any time and without giving any reason: s 80(3) Police Act. Despite this, and in contrast to Students and Student Police Officers, Probationary Constables nevertheless occupy the rank and grade of constable identified in s 12(1)(f) of the Police Act and reg 5(1) of the Police Regulation. The attestation of a Probationary Constable involves them taking the oath or making the affirmation of office as a police officer in accordance with s 13 of the Police Act and reg 7 of the Police Regulation. This oath or affirmation is required before a person is able to exercise any of the functions of a police officer. Probationary Constables proceed to exercise those functions under supervision while they complete their Associate Degree. As such, it is uncontroversial that, upon their initial appointment as a police officer of the rank of constable, a Probationary Constable whose appointment to that rank is yet to be confirmed nevertheless becomes a member of the NSW Police Force within the meaning of s 5 of the Police Act.

Incremental progression through ranks, grades and salary levels under the Award

  1. The parties agreed that a competency based incremental progression clause has appeared in industrial awards covering police officers in New South Wales since the Crown Employees (Police Officers – 2001) Award (cl 18); and has existed in industrial instruments in some form before this award.

  2. The evidence of Mr Richardson, an Industrial Officer employed by the Police Association, established that the progenitor of cl 64.9 in the Award is a provision (cl 18.8) that was initially included in an enterprise agreement between the Police Association and the Commissioner of Police registered on 2 December 1994 known as the Police Service of New South Wales Non-Commissioned Police Officers’ Enterprise Agreement (“the 1994 Police Officers’ Enterprise Agreement”). This clause was itself based on a provision in similar terms contained in the NSW Public Service “Personnel Handbook” in December 1994, which set out conditions of employment for public sector workers generally. I will return to the original clause in the 1994 Police Officers’ Enterprise Agreement later.

  3. The present controversy centres on the meaning of cl 64.9 of the Award (the text of which is reproduced in [4] above) as informed by the context of the other components of cl 64 and the text of the Award generally, with particular attention directed to the Award provisions relating to the incremental progression of police officers through the various ranks, grades and salary levels regulated by the Award.

  4. The Award applies to all persons appointed to be a police officer and member of the NSW Police Force under the Police Act, both commissioned (of or above the rank of Inspector) and non-commissioned (under the rank of Inspector): cll 3.1, 95.1. This includes Probationary Constables both for the reasons outlined in the preceding section and because Probationary Constables are explicitly acknowledged in cl 3.1 of the Award. As a police officer under the rank of Inspector, Probationary Constables clearly fall within the Award definition of “Non-Commissioned Officer”: cl 3.2.

  5. Clause 37.1 provides that, subject to the Police Act and Police Regulation and to the Award provisions regulating competency based incremental progression, Non-Commissioned Officers (other than Detectives and Police Prosecutors) “will, according to the rank held and incremental level achieved, be paid a base salary of not less than the amounts prescribed in Table 1 – Non-Commissioned Officers’ (Other than Detectives and Police Prosecutors) Salaries of PART B, Monetary Rates”.

  6. As referred to in cl 37.1, the Award provides for competency based pathways for Non-Commissioned (and Commissioned) police officers to gain promotion and progress through the hierarchy of various ranks and grades and commensurate salary levels, which forms the context in which cl 64.9 of the Award operates.

  7. Clause 64.1 relevantly provides that “incremental progression for Non-Commissioned Officers will be based on”:

64.1.1 a minimum period of twelve (12) months service on each incremental level or step as defined in Table 1 – Non-Commissioned Officers’ (Other than Detectives and Police Prosecutors) Salaries, Table 2 – Detectives’ Salaries or Table 3 – Police Prosecutors Salaries all of PART B, Monetary Rates; and

64.1.2 compliance with the competency requirements specified in this clause.

  1. Of some significance (to which I will return later) cl 64.2 imposes responsibility directly on individual Non-Commissioned Officers “to ensure they are familiar with the contents of this clause and to make all reasonable efforts to comply with the requirements contained within clause 64 of this Award”. There is no suggestion that Probationary Constables are relieved from this responsibility.

  2. Table 1 referred to in cll 37.1 and 64.1.1 sets out each “Rank/Incremental Level” through which Non-Commissioned Officers may progress. The first such “Rank/Incremental Level” is “Probationary Constable (Level 1)”. The second “Rank/Incremental Level” is “Constable Level 2”, thereafter progressing up to “Constable Level 5”, then ascending through various grades within the ranks of “Senior Constable”, “Leading Senior Constable”, “Sergeant” and “Senior Sergeant”.

  3. The competency requirements referred to in cl 64.1.2 are set out in cl 64.5. The first competency requirement is identified as follows:

64.5.1 Constable’s Education Program

For confirmation as a constable of police, Non-Commissioned Officers must successfully complete the Constable’s Education Program and/or meet any other requirements or attain any other qualifications necessary for confirmation as determined by the Commissioner from time to time.

I infer that the education program referred to in cl 64.5.1 must include all the components of the Associate Degree in Policing Practice referred to above.

  1. Sub-clauses 64.5.2 to 64.5.5 stipulate various other competency requirements which are either:

  1. assessed on an annual basis such as Defensive Tactics (Including Firearms) and CPR/First Aid Training (cl 64.5.2(a)), a Mandatory Continuing Police Education (MCPE) program (cl 64.5.3), and a computer-based objective test of policing knowledge (cl 65.5.4); or

  2. contingent on some demonstrated failure or incident such as a remedial program of improving physical fitness in the event that an officer’s physical fitness was a contributing factor to a particular incident (cl 64.5.2(b)), a driver development program in the event that an officer loses their status to drive NSW Police vehicles (cl 64.5.2(c)), a remedial program on using the Computerised Operational Policing (COPS) System where an officer demonstrates a deficiency in the use of this system (cl 64.5.2(d)), and the requirements of a performance management scheme that is imposed on officers who fail to perform to an agreed level (cl 64.5.5).

  1. Of particular significance on the Commissioner’s case is the fact that references to “deferred” increments or a “deferral” of an officer’s incremental progression appear in the context of the competency requirements outlined in cll 64.5.2 to 64.5.5, but those terms are not used in cl 64.5.1 which deals specifically with the confirmation of Probationary Constables.

  2. Clause 64.6 provides:

64.6   Effect on Incremental Progression Where Multiple Competencies Not Satisfied

Should any Non-Commissioned Officer fail to satisfy more than one competency required for incremental progression then the period of loss of incremental progression will be concurrent not cumulative. That is, the competency taking the longest period to satisfy, of any competencies will be the period of deferral of incremental progression.

  1. Clause 64.7 provides:

6.47   Increments Falling Due During a Period of Initial Remedial Training

In the event of a Non-Commissioned Officer’s increment falling due during a period of initial remedial training or participation in a performance management scheme, it will not be deferred. However, if such training is not satisfied, progression to the next increment will be deferred by the period of time taken after such training or participation until such time as the Non-Commissioned Officer has reached the required competency standard.

  1. Clause 64.8 stipulates the requirements for an officer to progress through the various ranks and grades as follows:

64.8.1   Progression to Constable Level 2 (Confirmation)

Progression to Constable Level 2 increment will be contingent upon:

(a) Achievement of 12 months service as a Probationary Constable or any other period as the Commissioner may direct in accordance with clause 13 of the Police Regulation, 2015.

(b)   Successful completion of the Constable’s Education Program and/or the attainment of any other qualifications or requirements as determined by the Commissioner from time to time.

(c)   Confirmation as a constable.

64.8.2   Progression to Constable Levels 3, 4 and 5:

Progression to Constable Levels 3, 4, and 5 will be contingent upon:

(a)   12 months service on each previous increment.

(b)   Maintenance of the Base Generic Competencies during the training year prior to the increment falling due. Should the Base Generic Competencies not be satisfied, incremental progression will be deferred in accordance with the provisions of this clause.

64.8.3   Progression Beyond Constable Level 5 (Promotion to Senior Constable)

Progression beyond Constable Level 5 and for promotion to Senior Constable will be contingent upon:

(a)   Successful completion of the Constable’s Education Program (or equivalent qualification);

(b)   Maintenance of the Base Generic Competencies in accordance with the provisions of this clause.

(c)   Passing the Objective Test of Policing Knowledge in accordance with the provisions of this clause.

(d) Meeting the requirements for promotion to Senior Constable as prescribed by Regulations 16 and 17 or 18 of the Police Regulation 2015.

64.8.4   Progression to each subsequent incremental level (including progression within the Sergeant and Senior Sergeant ranks) progression within the ranks of Senior Constable, Sergeant and Senior Sergeant will be contingent upon:

(a)   12 months service on each previous increment (both level and step).

(b)   Maintenance of the Base Generic Competencies in accordance with the provisions of this clause.

(c)   Completion of the Mandatory Continuing Police Education (MCPE) requirements in accordance with the provisions of this clause.

(d)   Passing the Objective Test of Policing Knowledge in accordance with the provisions of this clause (for progression to each level only).

(e)   Satisfactory performance under the appropriate Performance Management Scheme.

  1. Recognition of the potentially variable period of probation in cl 64.8.1(a) and its bearing upon the operation of cl 64.1, which in part provides rather incongruously for a minimum period of twelve (12) months service on each incremental level, is also a matter of some significance to which I will return later.

  2. Clause 64.10 exempts Non-Commissioned Officers who are medically excused from demonstrating a particular competency from having “normal incremental progression deferred”; and refers to deferral of incremental progression “in accordance with the provisions of this clause” only if the officer remains unable to meet the competency requirements after appropriate remedial training after they return to full duty. A similar provision applies to officers who fail to meet requirements after remedial training provided after long term absences on secondment, full time leave without pay, special leave without pay, extended sick leave and Workers Compensation/Hurt on Duty absences: cl 64.12.

  3. Clause 64.13 deals with the incremental progression of Non-Commissioned Officers who return to duty after a period of suspension, relevantly as follows:

64.13   Effect of suspension

…

64.13.4 Where a Non-Commissioned Officer ceases to be suspended and continues as a Police Officer, the officer has six months in which to comply with the requirements of this clause to achieve increment progression for which the officer would have been eligible if not suspended. Where the requirements are met, the officer will be paid increment entitlements effective from the officer's incremental date, or, dates and the officer will be eligible for the next increment on the officer's next increment date.

64.13.5 Where an officer does not achieve incremental progression in accordance with subclause 64.13.4, the officer will remain at the officer's then level until they achieve the requirements for incremental progression. On achieving the requirements for incremental progression the officer will move to the next level and the date of that change will become the officer's new incremental date for all future progression. An officer progressing in accordance with this subclause will not be entitled to any incremental back pay.

  1. Most of the remaining components of cl 64 impose additional competency requirements on specific ranks above Probationary Constables, namely, Leading Senior Constables (cl 64.16), Sergeants/Senior Sergeants (cl 64.17), Detectives (cl 64.18) and Police Prosecutors (cl 64.19).

  2. Finally, it is relevant to note that cl 64.9 stands in contrast to the provision dealing with the deferral of incremental progression for more senior “Commissioned Officers” at or above the rank of Inspector. Clause 73.6.2 provides that where an increment is deferred for these senior officers “all future incremental dates are to be varied by the period of deferment” without exception for any such officers based on length of service.

The ordinary meaning of the words used in cl 64.9 in the context of the Award

  1. The starting point is to consider the natural and ordinary meaning of the words used in cl 64.9 and, as counsel for the Commissioner, Mr Watts, frankly conceded, the “hardest part” of the Commissioner’s argument is the reference to “within 3 years of employment as a Non-Commissioned Officer” in cl 64.9.2(a). On its face, this provision extends to Probationary Constables who are unambiguously included within the definition of “Non-Commissioned Officer” for the purposes of the Award. As such, this clause appears to provide that where progression to the “Constable Level 2” increment on the salary scale in Table 1 of Part B is deferred “within the first 3 years of employment” as a Probationary Constable, the original increment date is to be retained for the constable’s future increments instead of being varied by the period of deferment. Thus, the plain language of cl 64.9.2(a) is consistent with the construction advanced by the Police Association.

The Commissioner’s argument

  1. The Commissioner nevertheless contends that when viewed in the context of the statutory framework and cl 64 as a whole, cl 64.9.2(a) should be read as applying only to the deferral of increments within the first three years of the confirmed appointment of a Non-Commissioned Officer. In other words, the Commissioner contends that this provision applies only during the first three years from the point at which a Probationary Constable advances to and attains the incremental level constituted by the grade of Constable Level 2.

  2. The Commissioner’s construction rests on the proposition that cl 64.9.2(a) is enlivened only “where an increment is deferred” as contemplated in cl 64.9.1, and any delay in the transition from Probationary Constable (Level 1) to Constable Level 2 under the Award does not amount to a deferral of an increment within the meaning of cl 64. Instead, on the Commissioner’s case, this amounts to a delay in the confirmation of their appointment as a constable for the purposes of the Police Act and Police Regulation.

  3. The Commissioner essentially relies on two principal contentions or limbs to support this proposition, which Mr Watts carefully distilled and developed in his closing submissions. Firstly, the Commissioner submits that the position of Probationary Constable (Level 1) on the salary scale in Table 1 of Part B does not constitute an incremental level or incremental step for the purposes of “incremental progression” within the meaning of cl 64. Although the Commissioner accepts that cl 64.1 applies to Probationary Constables (because it refers to Non-Commissioned Officers), she submits that they nevertheless do not occupy an incremental level or step within the meaning of cl 64.1.1. The reason given for this is that incremental progression contemplated in cl 64.1.1 requires a minimum of 12 months service on each increment level, whereas the Police Regulation stipulates that the period of probation on the first level may be shorter or longer or may be waived altogether. The Commissioner accepts that Probationary Constables commence “incremental progression” under cl 64 upon their confirmation and progression to the grade of Constable Level 2, but argues that − at any stage before their confirmation − Probationary Constables are not on an incremental level and are not “incrementally progressing” along the salary scale for the purposes of the Award.

  4. Secondly, the concept of a “deferral of an increment” or a “deferral of incremental progression” in cl 64.9 does not apply to Probationary Constables because those terms are used in the Award exclusively in connection with confirmed police officers in cll 64.5.2 to 64.5.5 and 64.8.2(b), are not otherwise associated with Probationary Constables in any other Award provisions. The reference in cl 64.9.1 to the period of deferral of an increment reflecting the time taken to achieve “the appropriate competency and/or performance standards in accordance with the provisions of this clause” is a reference to the annual competency standards set out in cl 64.5.2 to 64.5.5 and 64.8.2(b) which do not apply to Probationary Constables and in which the term “deferral” (and its derivatives) is expressly used in connection with incremental progression. In contrast, the Commissioner submits that the competency standards for Probationary Constables referred to in cll 64.5.1 and 64.8.1 accords with the relevant statutory framework for the probationary period and do not speak of increments or incremental progression being “deferred”.

Is Probationary Constable (Level 1) an incremental step?

  1. A fundamental difficulty with the first limb of the Commissioner’s construction is that the Award plainly treats the progression of Probationary Constables to the grade of Constable Level 2 as being functionally synonymous or coextensive with the confirmation of their appointments in accordance with the relevant statutory scheme. Clause 64.8 stipulates “requirements for progression through the various ranks and grades”. Sub-clause 64.8.1 provides for the first such progression from Probationary Constable “to Constable Level 2 (Confirmation)” which is expressly contingent upon their “confirmation as a constable” and achievement of 12 months service on probation or any probationary period as the Commissioner may direct under cl 13 of the Police Regulation.

  2. The complementary coexistence between incremental salary progression under the Award and the statutory requirements for promotion of police officers is further exemplified in the context of promotion to Senior Constable in cl 64.8.3(d).

  3. The concept of incremental progression under the Award clearly encompasses progress through each of the incremental levels or steps set out in Table 1 of the Award. The rank and grade of “Probationary Constable (Level 1)” is identified as the first “Rank/Incremental Level” identified in Table 1. Accordingly, incremental progress under the Award begins with the rank and grade of Probationary Constable. It does not start at Constable Level 2. There is no reason to exclude the rank of Probationary Constable from constituting one of the incremental steps or levels. Excluding Probationary Constables from a place on the incremental scale does too much violence to the plain terms of the Award.

  1. The reference to a “minimum period of (12) months service on each incremental level or step as defined in Table 1” in cl 64.1.1 must be read together with the requirement in cl 64.1.2 to comply with “the competency requirements specified in this clause” which include the competency requirements for the confirmation of Probationary Constables stipulated in cll 64.5.1 and 64.8.1. These competency requirements recognise that, although the probationary period usually involves 12 months service, this may vary as directed by the Commissioner. This is recognised explicitly in cl 64.8.1(a). To make sense of the Award’s provisions dealing with incremental progression which clearly begins with the first incremental step of appointment as a Probationary Constable (Level 1), the reference to a “minimum period of (12) months service” in cl 64.1.1 must be read as qualified by the possibility of a different period for Probationary Constables, which is explicitly recognised in cl 64.8.1(a).

  2. It is instructive to note that the incremental progression clause introduced in the predecessor Award made in 2001 (cl 18) also provided for incremental progression based on a minimum of 12 months service on each level of the salary scale. However, at that time, it did so in the context of a provision stipulating that progression to Constable Level 2 was contingent on achieving 12 months service as a Probationary Constable without recognising the possibility of any variation in that probationary period: see cl 18(xii) of the 2001 award. In the next iteration of the Award made in 2003, cl 52 was inserted which referred to the variability of the probationary period for the first time (cl 52(viii)(a)(1)) while retaining the general requirement for incremental progression to be based on a minimum of 12 months service (cl 52(i)(a)). It is not suggested that the resulting infelicity in drafting − reproduced in the Award as observed in [42] above and relied on by the Commissioner as set out in [50] above − heralded a substantial change in 2003 to remove Probationary Constable (Level 1) as an incremental level or step for the purposes of incremental progression, as it had been in cl 18 of the 2001 award.

  3. This conclusion is reinforced by the terms of the progenitor of cl 64.9 in the 1994 Police Officers’ Enterprise Agreement. Clause 18.8.2(a) of this agreement retained the original increment date where the deferral occurred “within the first 3 years of employment as an officer”, in circumstances where “officer” was defined to include “all persons employed by the Police Service of New South Wales as a Non-Commissioned Police Officer, including Probationary Constables, but excluding Student Police Officers, who as at the date of registration of this Agreement were employed as such” (emphasis added).

  4. Thus the genesis of the benefit afforded to junior police officers by cl 64.9.2(a) of the Award expressly took up the distinction (addressed in [20]-[21] above) between Student Police Officers, who were excluded from the benefit, and all non-commissioned police officers, including Probationary Constables, who were included. Absent any suggestion of a substantial amendment to the relevant award in 2003 (or at any other point since 1994) to exclude Probationary Constable (Level 1) as an incremental level, there is no reason to think that Probationary Constables have not continue to be so included in the Award.

  5. In addition to the plain terms of the Award referred to above, the Commissioner’s contention that Probationary Constables may be “incrementally progressing” to the level of Constable Level 2 without themselves occupying any incremental level recognised in the Award cannot be accepted. This submission is conceptually and linguistically untenable. If a Probationary Constable does not occupy any step on the Award’s incremental scale, then their passage to Constable Level 2 is more naturally characterised as their commencement in the position on the first rung of the scale from which they may, thereafter, incrementally progress. It is inapt to characterise the transition from Probationary Constable to Constable Level 2 as itself an instance of incremental progression, unless this progression is from one incremental level to another. The Commissioner’s distinction between incremental level and incremental progression is illusory.

Does the concept of a “deferral of an increment” apply to Probationary Constables?

  1. Consistent with this analysis, the second limb of the Commissioner’s construction also yields to scrutiny. I am not persuaded that the concept of a “deferral of an increment” in cl 64.9 is used exclusively in connection with confirmed police officers. For the reasons given above, I do not accept that the Award treats the concepts of incremental progression to Constable Level 2 and the confirmation of an officer’s appointment as a constable as being mutually exclusive. Under the Award, the first incremental progression and confirmation of an appointment as constable are, in fact, substantially coextensive. This is because the Award explicitly renders the former contingent upon the latter (cl 64.8.1(c)). This means that the language of “deferral”, when used in connection with the first incremental progression from Probationary Constable to Constable Level 2, is apt to encompass any delay in the confirmation of the constable’s appointment. This is evident in two aspects of the Award.

  2. Firstly, even if cll 64.5.2 to 64.5.5 and 64.8.2(b) operate only with respect to confirmed officers, the nomenclature of “deferral” of incremental progression is nevertheless used in connection with Probationary Constables in other contexts. For example, cl 64.7 provides for an increment to be “deferred” by the time taken to satisfy a period of “remedial training” such that “the Non-Commissioned Officer has reached the required competency standard”. Mr Watts accepted that Probationary Constables may undergo remedial training but disavowed the application of this provision to Probationary Constables and contended that the reference to “Non-Commissioned Officer” in cl 64.7 must be read down to exclude them, contrary to the express definition of that term in the Award. He did so essentially in reliance on the contention that the reference to “deferral of an increment” in cl 64.7 is not apt to apply to Probationary Constables for the reasons advanced under the first limb of the Commissioner’s construction. Following my rejection of the Commissioner’s argument in this regard, and taking into account the concession that Probationary Constables may be required to undertake remedial training, I am not satisfied that cl 64.7 does not utilise the language of “deferral of an increment” in connection with Probationary Constables.

  3. Similarly, the terms “deferral” and “deferred” are used in connection with the incremental progression of Non-Commissioned Officers at large, including Probationary Constables, who are medically excused from demonstrating certain competencies (cl 64.10) or who are absent for long periods in circumstances including extended sick leave (cl 64.12).

  4. Secondly, even if I am wrong about the application of cll 64.7, 64.10 and 64.12, when read as a whole, the Award discloses no intention to divorce the substance of the concept of “deferred increments” from officers who are classified as Probationary Constables. On the contrary, cl 39 provides for Non-Commissioned Officers (including Probationary Constables) transitioning to the position of Police Prosecutor; and cl 39.3 provides that certain Non-Commissioned Officers, including Probationary Constables, will be entitled to their next increment 12 months from the date of their transition to the Police Prosecutors’ salary scale whereas all other officers who are appointed as a Police Prosecutor retain their existing increment date. This provision effectively “defers” or delays the transitioning Probationary Constable’s “increment date” by 12 months from the date of transition, in a manner equivalent or comparable to the deferral of increment dates for other Non-Commissioned Officers within the same salary scale by operation of cl 64.9.2(b).

  5. Although Mr Watts properly conceded that this characterisation of cl 39.3 might be correct “in substance” he contended that, instead, decisive weight should be given to the use of the term “deferral” or its derivatives to distinguish cl 64.9 from cl 39.3 (and cl 38.3). However, I prefer to give weight to the substance of the operation of provisions such as cl 39.3, consistent with the need to give the beneficial provisions of the Award a broad or generous construction, and being careful to avoid a narrow or overly pedantic construction of the notion “deferred” increments.

  6. Similarly, without using the nomenclature of “deferral”, the effect of cl 64.13.5 is to defer the increment date for Non-Commissioned Officers at large, including Probationary Constables, who fail to achieve relevant competency requirements within six months after a period of suspension. The NSW Police Force’s “Probationary Constable Progression Policy” (at [10.2.2]) makes it clear that these officers may be suspended because of a complaint.

Conclusion on the ordinary meaning of the words in cl 64.9

  1. For these reasons, I find that the achievement of the appropriate competency for progression to the grade of Constable Level 2 in accordance with cl 64 is commensurate with being confirmed as a constable (cl 64.8.1(c)). Accordingly, the references to “deferral of an increment” in cl 64.9, properly construed, extend to the deferral of a Probationary Constable achieving the competency requirement for progression to Constable Level 2 by reason of a delay in their confirmation as a constable.

  2. I do not accept the foundational propositions on which the Commissioner’s construction of cl 64.9 is erected. The first rung on the incremental rank, grade and salary scale in the Award is appointment as a Probationary Constable (Level 1). Unlike Student Police Officers, Probationary Constables are members of the NSW Police Force who are covered by the Award salary scale.

  3. I accept the submission of counsel for the Police Association, Ms Lowson, that “attestation as a probationary police officer launches an officer into the salary scale, progress through which is, aptly enough, by incremental progression”.

Other textual issues

  1. The Commissioner also submits that the reference to the first “3 years of employment” in cl 64.9.2 is “problematic” because police officers are not “employees” as such (citing State of New South Wales v Briggs (2016) 95 NSWLR 467 at [50]-[51]). This contention, however, does not justify distinguishing Probationary Constables from other grades of constables to whom the clause applies. The Commissioner ultimately contended that “employment” in this context refers to the appointment of police officers or, more particularly, that cl 64.9.2 hinges on the first three years of the confirmed appointment of Non-Commissioned Officers.

  2. I accept that the term “employment” is used loosely in the Award to refer the statutory “appointment” of persons to the office of a police officer. However, persons are initially appointed as a police officer of the rank of constable, and are so appointed on probation: s 80 of the Police Act. The first “3 years of employment” in cl 64.9.2 is more likely to refer to the initial period of engagement of a police officer as a member of the NSW Police Force, which encompasses the period commencing from their initial appointment on probation and attestation.

  3. I reject the Commissioner’s contention that, even if cl 64.9.2 applied to Probationary Constables, the “original increment date” must be the date of their confirmation and advancement to the grade of Constable Level 2. The Award distinguishes between, on the one hand, an officer’s “original” or “existing increment date” or simply their “incremental date” and, on the other hand, their “new incremental date” or a date on which future incremental progression takes place that has been adjusted by reason of a delay in or deferral of their incremental progression or by some other event such as a transition to a different salary scale (see for example cll 38.3, 39.3, 64.13.4, 64.13.5 and 73.6.2). Where a Probationary Constable’s progression is deferred beyond 12 months, the Commissioner’s submission erroneously conflates the officer’s original or existing increment date (ie. the anniversary date of their appointment as a police officer) with the concept of a new incremental date referred to in cl 64.9.2(b) (ie. the original increment date as varied by the period of deferment).

  4. Mr Watts also raised the hypothetical scenario of an officer being appointed on a period of probation less than 12 months. He suggested that, on the Police Association’s construction, it is unclear whether the officer’s increment date remains the anniversary of their appointment notwithstanding the fact that they may be confirmed (and thus be entitled to progress to Constable Level 2 in accordance with cl 64.8.1) prior to that anniversary.

  5. There is some force to this apparent anomaly. If the appointment or attestation date is to remain the increment date, how is the next incremental progression to Constable Level 3 on the anniversary of the officer’s appointment to be reconciled with the requirement for a minimum 12 months’ service on the previous increment (cl 64.8.2(a))?

  6. The first observation is that the operation of cl 64.9 which is at issue in these proceedings is not engaged in this hypothetical circumstance. Clause 64.9 is engaged only when incremental progression is relevantly deferred. A notional Probationary Constable who progresses to Constable Level 2 upon confirmation on the expiration of a shorter than usual probationary period has not had their incremental progression deferred for the purposes of cl 64.9. The question at issue is the nature of the “original increment date” in the context of a deferral of incremental progression (ie. beyond the usual 12 month period of probation). Ms Lowson clarified that the relief sought in this proceeding is intended to be confined to this issue, and does not address the hypothetical scenario of a shorter probationary period.

  7. Furthermore, it is doubtful if the question of whether the increment date for such a notional Probationary Constable becomes the confirmation date or remains their date of appointment arises in practice. It is clear that the standard probationary period for newly appointed police officers with no prior experience and who must commence and complete the Associate Degree in Policing Practice is 12 months. However, Ms Lowson pointed out that the policy documents of the NSW Police Force tendered into evidence appear to have historically accepted that, for police officers from another jurisdiction who are appointed to the NSW Police Force on a shorter probationary period, or former NSW police officers who are “re-employed” on this basis, their “increment date will generally also reflect the anniversary of the attestation date” (at [12.1]). The current (July 2024) “Police Officer Professional Mobility Guidelines” at [9.1] and [11.1] also confirms that officers with prior experience may be engaged for a period of six months on probation (or longer) and on the footing that their “next increment date will be due 12 months after appointment” (and not their confirmation). As Ms Lowson submitted, the difficulty to which Mr Watts’ hypothetical scenario is directed is unlikely to arise under this policy because, upon their appointment on a shortened probationary period, their years of prior service as a police officer are converted to the incremental level in the Award that would have applied if their service was performed in the NSW Police Force. For example, if the officer had completed two years’ service in another jurisdiction, they would be appointed at the increment level of “Constable Year 3”. Their early confirmation of appointment (say) six months into their first year of engagement would not coincide with any incremental progression in the same way as a Probationary Constable progresses to Constable Level 2. Instead, the anniversary of their date of appointment is preserved as the increment date for their next progression to Constable Level 4.

  8. In any case, I do not consider that any ambiguity in the way the award treats the incremental progression of Probationary Constables who may be appointed on probation for periods of less than 12 months is sufficient to detract from the proper analysis of cl 64.9 in the context of the Award. I emphasise that the relief I propose to grant is confined to the operation of that clause in respect of deferred (not early) incremental progression.

The purpose of cl 64.9

  1. The purpose and effect of cl 64.9.2, as the Police Association submits, is to give some flexibility or leeway to the most junior officers in meeting the relevant competency requirements during their initial few years in the job, without penalising them for a delay in their incremental progression at this early stage of their careers. The Award does so by preserving their original increment date and ensuring their more timely progress to a higher salary rate despite such a delay. The fact that cl 73.6.2 of the Award withholds any such leeway from more senior Commissioned Officers is telling. The benefit is restricted to relatively junior and inexperienced officers. The evident purpose of cl 64.9.2 is served by extending this leeway to the most junior and least experienced officers on the Award salary scale, viz. Probationary Constables.

  2. I am mindful of the need for the construction of the Award to be ultimately consistent with the objective meaning of its language; and of the value in the Award being reasonably capable of being understood and implemented by the participants in the policing industry in New South Wales by reference to the language employed in the instrument itself.

  3. The significance of this consideration is reinforced in circumstances where cl 64.2 of the Award imposes upon individual Non-Commissioned Officers an obligation to ensure they are familiar with the contents of cl 64. The Commissioner’s case effectively requires an individual Probationary Constable to understand that the benefit conferred by cl 64.9.2(a) on the least experienced “Non-Commissioned Officers” – which unambiguously and explicitly includes Probationary Constables − does not apply to them by reason of an arcane process of construction that alters the meaning of “Non-Commissioned Officer” in this context. For the reasons I have given, this result cannot be justified having regard to the objective meaning of language used in cl 64.9, the evident purpose of this provision, the terms of cl 64 generally and of the whole Award, and the relevant statutory scheme. Such a result diminishes the character of the Award as a practical instrument applying to working conditions known by employees as well as employers. [11]

    11. Cf. Tasmanian Water and Sewerage Corporation Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2025] FCA 39 at [25].

Past industrial practice

  1. The Commissioner calls in aid of her interpretation of the Award the past practice of the NSW Police Force in applying the incremental progression provisions of the Award to Probationary Constables. The Commissioner submits that there is a longstanding practice of using the date that a Probationary Constable is confirmed as their incremental progression date (where their confirmation has been delayed for whatever reason beyond the probationary period of 12 months); and that this practice reflects a common understanding between the parties covered by the Award as to the operation of cl 64.9 when it was made by consent in November 2021.

  2. In this regard, the Commissioner relies on the evidence of Assistant Commissioner Greentree, who has been a police officer since 1995 and has occupied his current role more recently as Assistant Commissioner in the human resources and industrial relations department of the NSW Police Force since March 2024.

  1. Although Assistant Commissioner Greentree has only assumed delegated responsibility for the appointment and progression of police officers on probation relatively recently, his understanding was that Probationary Constables have progressed incrementally according to the practice referred to in [80] above since at least 2001. I admitted this evidence over objection on the basis of the Commissioner’s concession that it does not establish that this practice applied to all police officers in New South Wales for the past 25 years, and that it is an expression of the witnesses’ own understanding informed by his own experience as a police officer who, I observe, for most of that period did not have human resources responsibility for Probationary Constables.

  2. Accordingly, whilst I accept that this has been the practice generally adopted by the NSW Police Force, the evidence does not establish clearly that the parties acted on an objective common understanding as to the meaning of cl 64.9 in making of the Award by consent in 2021. The second fact does not necessarily flow from the first. [12] I am unable to find that, in consenting to the making of the Award, the parties objectively can be taken to have agreed that cl 64.9 should have a commonly understood meaning and that this common understanding should form part of the context in which the text of the Award is to be construed. For the following three reasons, I find that Assistant Commissioner Greentree’s understanding of the past practice is insufficient to justify any particular construction of cl 64.9.

    12. Cf. Target Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association (2023) 324 IR 304; [2023] FCAFC 66 at [78]. See also [66]-[77].

  3. Firstly, there is no evidence before the Court as to any relevant communications between the parties to the making of the Award by consent in 2021, contemporaneous or otherwise, that might shed light on whether the parties’ representatives had knowledge of the general practice, or that this practice had been or was at that time being uniformly or invariably applied. There is no evidence of any consensus, agreement or admission among the parties’ representatives involved in the making of the Award about the non-application of cl 64.9 to Probationary Constables. Notwithstanding the subjective understanding of Assistant Commissioner Greentree who, in any event, does not appear to have had any involvement in the making of the Award, there is insufficient evidence to establish that the Commissioner’s interpretation or the Police Force’s general practice rose to the level of matters that would be “notorious” to those intended to be bound by the Award.

  4. Secondly, what evidence there is of an exchange of views between the parties as to the meaning of cl 64.9 or its predecessors comprises a request from the Police Association on 11 June 2009 for the attestation date to be retained as the increment date for one of its members, Mr Warchow, which had been extended by a delay in his confirmation because of an injury sustained during his probation. In this request, the Association relied on its construction of the former cl 56(ix) of the Crown Employees (Police Officers – 2008) Award which reflects its approach to cl 64.9 in these proceedings. NSW Police acceded to this request, at least in part owing to the nature of the injury sustained by Mr Warchow whilst on duty. However, the response did not in terms repudiate the Association’s reliance on the operation of the predecessor to cl 64.9, and there is no further evidence shedding light on the reasoning behind this concession. On one view, far from a common understanding, this exchange manifests a difference in views between the parties as to the operation of cl 56(ix). In any case, on the available evidence, I am unable to find that since this exchange in 2009, the parties thereafter developed a common understanding as to the meaning of cl 64.9 and acted upon it in making the consent award in 2021.

  5. Thirdly, to the extent that there is a general practice, it does not appear to be applied consistently across all Probationary Constables. The NSW Police Force’s own past and present policies dealing with former police officers or officers from another jurisdiction who are appointed on probation referred to in [75] above expressly provide that their “increment date” will generally reflect the anniversary of the date of attestation or appointment, and not necessarily their confirmation date. They do so precisely in circumstances where the attestation and confirmation dates may not coincide. This is consistent with the Police Association’s construction of cl 64.9.

Conclusion and orders

  1. For these reasons, I find that the Applicant is entitled to declaratory relief. I intend to make a declaration that accords in substance with the declaration sought by the Police Association.

  2. However, I agree with Mr Watts’ observation that the terms of the declaration sought by the Police Association should be expressly confined by reference to the operation of the relevant provisions of cl 64 of the Award. In particular, it should be clear that the declaration is restricted to the application of cl 64.9 in circumstances where the confirmation of a Probationary Constable is delayed and their incremental progression to Constable Level 2 is deferred beyond a period of 12 months.

  3. Accordingly, it should be declared that by operation of clause 64.9 of the Crown Employees (Police Officers – 2021) Award, police officers who are confirmed on a date after the first anniversary of the date of their first appointment as a police officer of the rank of constable in the position of Probationary Constable (Level 1) (their “original attestation date”) are entitled to progress to the salary of Constable (Level 3) on the next anniversary of their original attestation date following confirmation as a constable.

  4. In view of the agreement between the parties that each side should bear their own costs, I make no order as to costs.

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Endnotes

Amendments

03 March 2025 - Cross reference in paragraph 82 amended.

Decision last updated: 03 March 2025

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