Police Federation of Australia v Chief Commissioner of Police T/A Victoria Police
[2024] FWC 1286
•28 MAY 2024
| [2024] FWC 1286 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Police Federation of Australia
v
Chief Commissioner of Police T/A Victoria Police
(C2023/5109)
| COMMISSIONER WILSON | MELBOURNE, 28 MAY 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]. Purchased leave; whether applications rejected on reasonable business grounds.
INTRODUCTION
Through an application made to the Fair Work Commission (the Commission) on 25 August 2023, the Police Federation of Australia (Victoria Police Branch), trading as the Police Association of Victoria (the Police Association or TPAV) alleges a dispute with Victoria Police about its rejection of five purchased leave applications. The application is made pursuant to s.739 of the Fair Work Act 2009 (the FW Act) with the dispute being in connection with the terms of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (the Agreement).[1]
After conciliation by me did not resolve the dispute, the matter was programmed for hearing. As part of the Directions given to the parties, the Police Association was directed to set out the question it sought to be determined by the Commission and responded by proposing a particular formulation.[2] Victoria Police proposed slight alterations to the question proposed by the Police Association[3] which I consider should be adopted along with deidentification of the five purchased leave applicants. The final question for determination is in this form:
Q: Does Victoria Police have reasonable business grounds pursuant to clause 129.2 of the Agreement for rejecting the applications by Officer 4, Officer 2, Officer 1, Officer 3, and Officer 5 to take purchased leave on any of the weeks requested?
The changes proposed by Victoria Police to the original Police Association draft are to use the word “rejecting” instead of “refusing”; to use the plural “applications” instead of “application”; and to name the five applicants.
I agree that the Question for Determination should be as set out above as amended by Victoria Police and me. For the reasons set out below I find that the question should be answered “yes”.
The matter was the subject of a hearing by me between 29 and 31 January 2024. The Police Association was represented at the hearing by Mr Stephen Gome, Senior Industrial Officer. Victoria Police was represented by Ms Franceska Leoncio, of Counsel, instructed by Clayton Utz, solicitors. Victoria Police was granted permission to be represented by lawyers pursuant to s.596(2)(a) of the FW Act after I was satisfied that such representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. I was further satisfied it was appropriate in all the circumstances to exercise my discretion and permit representation of the Respondent by a lawyer.[4]
Each of the five officers who are the subject of this application gave evidence to the Commission. Given some of the matters needing discussion in this decision I do not name these people. For convenience I refer to each of the five police officers as the Purchased Leave Applicants and their applications to Victoria Police as the Purchased Leave Applications.
Six senior Victoria Police officers gave evidence about the decisions to reject the Purchased Leave Applications: Commander Karen Nyholm, Commander Eastern Region; Superintendent Joy Arbuthnot, Divisional Area Commander – Eastern Division 4; Inspector Paul Henry, Local Area Commander – Wodonga Police Service Area; Acting Inspector Joel Hughes, Investigation and Response, Eastern Division 4; Inspector Bradley Sprague, until September 2023 an Inspector in Eastern Division 4; and Inspector Ashley Mason, Local Area Commander – Wangaratta Police Service Area.
RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE
The application is made pursuant to s.739 of the FW Act which applies if a term referred to in s.738 requires or authorises the Commission to deal with a dispute. Section 738 sets out when Division 6 – 2 (within which are the two mentioned sections) applies. In particular, the Division applies if an enterprise agreement includes a term that provides a procedure for dealing with disputes. Section 739(3) provides that in dealing with a dispute the Commission must not exercise any powers limited by the term and s.739(4) permits the Commission to arbitrate if “the parties have agreed that the FWC may arbitrate”. Section 739(5) provides that the Commission must not make a decision that is inconsistent with the FW Act or a fair work instrument, such as an enterprise agreement, that applies to the parties.
Broadly stated, clause 10 (Dispute Resolution) of the Agreement provides that disputes may be raised “about any matter arising under this Agreement or the National Employment Standards (including s 65 of the FW Act)” (clause 10.1), with the exception of disputes within the jurisdiction of the Police Registration and Services Board. Clause 10 provides a stepped resolution process with the ultimate right for a party to “request that the Fair Work Commission deal with dispute by arbitration” (clause 10.6).
I am satisfied that the application now before me is a dispute within the meaning of clause 10 and that it may be arbitrated.
In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it.[5] It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.[6]
The Full Bench in Health Services Union v DPG Services Pty Ltd recently summarised the correct approach to the construction of enterprise agreements:
“[13] The principles of interpretation of enterprise agreements are well established.[7] The task of construing an industrial instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include other provisions of the industrial instrument, read as a whole, and the disputed provision’s place and arrangement in the instrument. The statutory framework under which the industrial instrument is made, or in which it operates may also provide relevant context, as might an antecedent instrument or instruments from which a particular provision has been derived. Regard may be had to relevant context and surrounding circumstances to determine whether there is any ambiguity in a provision of an industrial instrument. The language of an industrial instrument is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. Context is not itself an end, and a consideration of the language contained in the text of the relevant parts of the instrument remains the starting point and the end point in the task of construction. Nevertheless, a purposive approach to interpretation, not a narrow or pedantic approach, is appropriate.”[8]
THE PURCHASED LEAVE APPLICATIONS
Five police officers are the subject of this dispute. Each is employed within Eastern Division 4, and each have made applications for purchased leave and had them refused. The officers are:
Officer 1 who is stationed at Wodonga Police Station;
Officer 2 who is stationed at Mount Beauty Police Station;
Officer 3 who is stationed at Nathalia Police Station;
Officer 4 who was attached to the Wodonga Highway Patrol;
Officer 5 who is also attached to the Wodonga Highway Patrol.
Context about Eastern Division 4
Superintendent Arbuthnot who has responsibility for Eastern Division 4 explained the following matters of context for Eastern Division 4:
Victoria Police comprises four operational regions across the state, each operational Division has a command structure or hierarchy encompassing a Divisional Commander (Superintendent), Local Area Commanders (LACs) (Inspectors) and middle managers (Senior Sergeants), supervisors (Sergeants) and members at the operational level (Constables, First Constables, Senior Constables, and Leading Senior Constables).[9]
Eastern Division 4 is one of six operation divisions and two support/specialist Divisions. Eastern Division 4 services the northeast part of the State of Victoria.[10]
Further:
“8. ED4 is structured into four portfolios, including two geographic PSAs (being Wangaratta PSA and Wodonga PSA - General Duty response) and two specialist portfolios known as Investigation Response (I&R) and Tasking and Coordination (T&C). The I&R group incorporates Criminal Investigation Units, the Sexual Offence and Child Abuse Investigation Team (SOCIT), Family Violence Investigation Units (FVIU) and Crime Scene Services. The T&C group incorporates Highway Patrol (HWP) Units, Intelligence Units, Proactive Policing Units and the Divisional planning Office. Many staff within these portfolios hold specific qualifications in order to perform their role. Up until 10 December 2023, the I&R/T&C portfolios were combined but are now separated due to an additional Inspector position being created for ED4. Accordingly, there are four portfolios within the ED4 geographic area, each led by an Inspector. Wodonga PSA has just under 100 staff in its allocation; Wangaratta has just over 130 staff; I&R has a staff allocation of 59 staff and T&C has a staff allocation of 39 staff.
9. ED4 is geographically the second largest Division in Eastern Region. It covers 26,807 square kilometers and has a population of 140,409. The geographical area traverses the Murray River east along the New South Wales border from Barmah National Park in the west to Kosciusko National Park in the east and Alpine National Park in the south. It incorporates six Local Government Areas (LGA) of Wangaratta, Alpine, Moira, Wodonga, Indigo and Towong.
10. The ED4 area includes major regional centres, National and State Parks, High Country areas, historic towns, multiple rivers and lakes, various winery regions and large areas of public space. All of which attract year-round tourism in pursuit of various forms of outdoor and indoor recreational activities creating demand on police services. Population of the smaller towns in remote locations swell considerably during those times.
11. ED4 is accessible by multiple forms of both private and public transport. The Hume Freeway and railway system run centrally through ED4 making it attractive to visitors from interstate and other locations throughout Victoria. The Hume Freeway and other highways are major routes between States supporting a high volume of passenger, recreational, heavy vehicle, agricultural and commercial road users.
12. ED4 has one of the smallest human resource allocations in Eastern Region (having a total of 327 sworn members as at June 2023), but it continues to be one of Victoria Police's most capacity-challenged areas. The broader Eastern Region has approximately 3,300 staff members”.[11]
By way of further context about the subdivision’s structure, the following summarises the organisational units within Eastern Division 4, (noting that “PSA” is an abbreviation for Police Services Area):
“35. ED4 is structured into four portfolios: two geographical PSAs (Wodonga PSA and Wangaratta PSA) and two specialist portfolios known as Investigation Response (I&R) and Tasking and Coordination (T&C). Up until 10 December 2023, the I&R/T&C portfolios were combined into a single portfolio, but are now separated due to an additional Inspector position being created for ED4.
36. The Wodonga PSA comprises the 24-hour Police Station in Wodonga and a series of 16-hour police stations at various locations including Corryong.
37. The Wangaratta PSA incorporates the LGA of Wangaratta, the Moira cluster and the Alpine cluster. Within the Wangaratta LGA there is a 24-hour Police Station in Wangaratta and three single member Police Stations. In the Moira cluster, there are four 16-hour Police Stations, including Nathalia and Numurkah, and two single member Stations. In the Alpine cluster, there are three 16-hour Police Stations, including Mount Beauty, and one single member Police Station. There are also seasonal Police Stations at Falls Creek and Mount Hotham which are only open during the snow season.
38. The T&C portfolio includes three highway patrols (HWP): Wodonga HWP, Cobram Highway Patrol and Wangaratta HWP.
39. The I&R portfolio includes specialist responders, including the Sexual Offences and Child Abuse Units (SOCIT) and Family Violence Investigation Units (FVIU).”[12] (footnotes omitted)
VICTORIA POLICE’S DECISION MAKING
The decision makers
The most senior officer to give evidence in the proceedings before me was Commander Karen Nyholm who is the Commander Eastern Region.[13]
Commander Karen Nyholm and a number of other senior officers were involved in the decisions to reject the five applications (noting that several other applicants who are not the subject of this dispute also had their applications determined by Commander Nyholm and her senior management team). So far as is relevant to these proceedings these other senior officers were involved in decision making about determining the Purchased Leave Applications:
Superintendent Joy Arbuthnot, Divisional Area Commander – Eastern Division 4;
Inspector Paul Henry, Local Area Commander – Wodonga Police Service Area;
Acting Inspector Joel Hughes, Investigation and Response, Eastern Division 4;
Inspector Bradley Sprague, until September 2023 an Inspector in Eastern Division 4;
Inspector Ashley Mason, Local Area Commander – Wangaratta Police Service Area.
Enterprise Agreement provisions
Clause 129 of the Agreement provides for purchased leave applications in the following manner:
“129. Purchased Leave
129.1 Employees may apply to purchase between 1 and 4 weeks leave per year in addition to that provided in clause 124.
129.2 Applications for purchased leave may only be rejected on reasonable business grounds as described in clause 14.”
The Agreement provides that employees, other than Recruits, are “entitled to 9 weeks (342 hours) leave comprised of 7 weeks (266 hours) recreation leave plus 10 days (76 hours) accrued time off per year” with the expectation of employees working a regular 40-hour week comprising regularly rostered shift work and public holidays (clause 124.1). Of further note are the provisions of clause 127.1 (Requirement to Take Leave) within Part 15 (Recreation Leave) which requires leave to be taken in most circumstances:
“127.1 Employees must exhaust their entitlement to recreation leave by 30 June in the financial year of which it has accrued, unless carrying the leave over into the next financial year has been approved in advance by the employer.”
Clause 127 includes further provisions dealing with leave management issues; however those provisions are not relevant to this decision.
Aside from being the subject of clause 129 of the Agreement, purchased leave is also dealt with in the Victorian Police Manual, which is not incorporated within the Agreement. The Manual requires that purchased leave applications must be applied in advance for the forthcoming financial year with the applications to be submitted between 1 April and 31 May,[14] however in 2023 Eastern Division 4 departed from the requirements of the Manual, requiring applications to be lodged within a shorter period, of 24 to 30 April 2023.[15]
Evidence about rejection of the Purchased Leave Applications
The following matters are relevant for the purposes of context to the Eastern Division 4 hierarchy’s decision making about each of the Purchased Leave Applications.
In late February 2023 Superintendent Arbuthnot requested Local Area Commanders to circulate a purchased leave expression of interest form to officers engaged within Eastern Division 4 in order to ascertain overall interest in such leave.[16] Consistent with the direction then given to Eastern Division 4 employees each of the Purchased Leave Applicants expressed interest in the leave and/or applied for it as follows:[17]
Officer 1 submitted an expression of interest for leave on 3 March 2023 and then applied for the leave on 26 April 2023. Her initial expression of interest was for a period of 4 weeks of purchased leave however was later amended to be for a period of 3 weeks. Her application was finally refused on 8 July 2023 by Inspector Henry. The reasonable business grounds relied upon by Victoria Police were provided to Officer 1 on 11 July 2023 by Inspector Henry.
Officer 2 also expressed interest on 3 March 2023, and applied for the leave on 25 May 2023. His application was originally for a period of 4 weeks of purchased leave over two periods; March 2024 and May 2024 however the March dates were later rescinded. The application was refused on 14 July 2023 by Acting Inspector Hughes. The reasonable business grounds relied upon by Victoria Police were provided to Officer 2 on 17 August 2023 through the Police Association.
Officer 3 made her leave application on 12 May 2023. Her application was for a period of 3 weeks of purchased leave. The application was refused on 14 July 2023 by Acting Inspector Hughes. The reasonable business grounds relied upon by Victoria Police were provided to Officer 3 in mid-August 2023 through the Police Association.
Officer 4 made his leave application on 5 April 2023. Inspector Sprague initially rejected the application on 19 April 2023 on the basis the selected dates could not be accommodated however Officer 5 later adjusted his proposed leave dates to accommodate Officer 4’s preferred leave dates. While the application was initially approved on 25 April 2023 by email from Acting Senior Seargent Savage and Inspector Sprague the application was finally refused on 18 July 2023 also by Inspector Sprague. The reasonable business grounds relied upon by Victoria Police were provided to Officer 4 on 17 August 2023 through the Police Association.
Officer 5 initially submitted an expression of interest for leave on 3 March 2023 and then formally applied for the leave on 24 April 2023. While the application was provisionally approved on 25 April 2023 by Inspector Sprague and formalised on 29 May 2023 the application was finally refused on 18 July 2023 also by Inspector Sprague. The reasonable business grounds relied upon by Victoria Police were provided to Officer 5 on 17 August 2023 through the Police Association.
The applications by Officer 4 and Officer 5 were initially approved by Inspector Sprague on 25 April 2023 and confirmed by him on 29 May 2023, following the approval of the first level approved on 24 May 2023.[18] That decision though was directed by Acting Superintendent Mason to be “reviewed” on 19 June 2023 in the case of Officer 4 and 21 June 2023 in the case of Officer 5. Each was later informed on 18 July 2023 by Inspector Sprague that their applications had not been approved by the Eastern Division 4 Purchased Leave Panel.[19]
On 23 February 2023, the Eastern District Regional Leadership Team met and amongst other matters discussed its resourcing difficulties about which Commander Nyholm says she “said words to the effect that I couldn't see how the Region could be approving any purchased leave when it has such significant capacity issues, and I raised the comment that Divisional Superintendents would need to consider how they could justify approving any purchased leave given the capacity issues we are facing”.[20]
Superintendent Arbuthnot recalls the discussion, and that purchased leave was seen as discretionary in comparison with other types of leave “[w]e discussed that we were in a resource poor environment. We spoke about the fact that annual leave is non-discretionary, and in essence we needed to look really carefully at our purchased leave applications on the basis of our capacity”.[21]
Across Eastern Division 4 the application process led to applications by 10.84 FTE employees who applied for 32 weeks of purchased leave amounting to 160 shifts.[22] Across the Eastern Region there had been applications from 298.08 FTE employees equating to the loss of 4,036 shifts.[23]
After the applications were made, from 1 June 2023 Inspector Henry led a panel discussion with others to consider the purchased leave applications. Inspector Henry is within the Wodonga PSA and the panel included a representative from the Wangaratta PSA. Inspector Henry’s evidence is that the panel discussed the personal circumstances of each of the applicants and the two PSA’s. Inspector Henry notes that his involvement with the panel included him having “an awareness of the service delivery pressures within ED4 and those specifically faced by the Wodonga PSA, including the need to provide resources to support the Wodonga Highway Patrol (HWP) throughout the 2023-2024 financial year, as well as providing support to other units within the I&R/T&C portfolio and Corryong Police Station”.[24]
On 7 June 2023, Commander Nyholm chaired a meeting with the Eastern Division 4 Divisional Leadership Team which included discussion about the Division’s high rates of mental health related WorkCover claims and unplanned leave absences. Also on this day, Commander Nyholm emailed Assistant Commissioner Langdon outlining matters she wished to raise with him including purchased leave.
The subject of purchased leave applications was discussed between Commander Nyholm and Assistant Commissioner Langdon on 9 June 2023 when the former flagged her concerns about approved purchased leave:
“I was disappointed by the data from the previous year because it indicated that we had given up 1,113 weeks, amounting to a total of 5,565 shifts in the previous year. Based on this data I understood that this equated to the equivalent of 46 police members working full time for a year. Whilst there was a reduction in purchased leave approvals this year as compared with last year, I was concerned that the Region could not support purchased leave at these levels given our significant resourcing constraints. I was also conscious of the substantial efforts being made to increase staff across the Region to support the members and ensure service delivery to the community.”[25]
On 10 June and 12 June 2023, Superintendent Arbuthnot and Acting Superintendent Mason had separate discussions with Inspector Henry about the purchased leave applications. The discussions reinforced that purchased leave would not be approved given the resourcing pressures in Eastern Division 4 unless there were very compelling circumstances.
On 12 June 2023, there was a Regional Leadership Team meeting chaired by Commander Nyholm. Commander Nyholm's discussion in the meeting was to the effect that purchased leave should not be approved as the Region/Divisions could not meet baseline service requirements.
Assistant Commissioner Langdon who did not give evidence in these proceedings was plainly alarmed by the report with him communicating his concerns in a strongly worded email to the divisional superintendents on 13 June 2024:
“Hi all,
Karen has been keeping me up to date with discussions around approvals for purchased leave within the Region.
Accepting that we have not established a process within RLT for approvals I know that we have continually discussed this issue and that the likelihood of approving such applications would require significant scrutiny by you given our challenges with capacity.
If the below data is correct if (sic) indicates that we have approved Regionally some 298.08 members for purchased leave, totally approximately 4,036 shifts for the year. I simply do not understand how we could sustain this and would like to know how you are going to manage your workforces with these absenteeism’s. My ability to support holiday policing and (sic) is unlikely if you have not taken into account your capacity, seasonal demands and need to service the community in an efficient way. The only way to manage this would be do (sic) deny members recreational leave over these periods which I also find unacceptable given some of our business decision making.
I have already asked ED6 to contact HR to work through the mechanisms of cancelling their approvals and then to apply a risk assessment approach going forward. I request that you all undertake similar work as this is simply not sustainable for the Region and I am concerned as to how we have gotten here.
Again, if this data is incorrect please provide any updated information to support this fact.
Regards,
Tony”.[26]
Acting Superintendent Mason forwarded the email from Assistant Commissioner Langdon to Inspectors Henry and Sprague. Inspector Henry was in the process of reviewing pending applications when he received the email. He misinterpreted the email to mean that purchased leave applications would not be approved in the 2024 financial year.[27] Following receipt of the Langdon email, Inspector Henry emailed Officer 1 (and other members) advising purchased leave applications in the 2024 financial year would not be approved. This email from Inspector Henry was later rescinded on 17 June 2023 following a request from Assistant Commissioner Langdon.[28]
Assistant Commissioner Langdon also forwarded advice to Inspector Mason from Luke Rose within Victoria Police’s Human Resources Command. Assistant Commissioner Langdon instructed the Divisional Superintendents to review their purchased leave approvals and requested that Inspector Mason circulate Eastern Division 4’s methodology around business needs and capacity. The following day on 14 June 2023, Inspector Mason emailed Assistant Commissioner Langdon and the Eastern Region Superintendents setting out the overall process applied by Eastern Division 4. Inspector Mason advised 11 applications already approved in Eastern Division 4 would be reviewed further in accordance with Assistant Commissioner Langdon’s directions. Inspector Mason was concerned that applications had not been approved in accordance with process outlined by Superintendent Arbuthnot.
In mid-June 2023, Inspector Mason participated in a Regional Leadership Team meeting convened by Assistant Commissioner Langdon to discuss purchased leave applications and approvals across the Eastern Region. Assistant Commissioner Langdon confirmed that applications with 3 to 4 weeks of purchased leave approved would be reviewed. Following the meeting Inspector Mason emailed Inspectors Sprague and Henry advising of concerns raised by Assistant Commissioner Langdon. Inspector Mason requested Inspector Sprague review applications that had already been approved.
There was a further Regional Leadership Team meeting held on 16 June 2023, also involving Inspector Mason and chaired by Assistant Commissioner Langdon. The same day, Assistant Commissioner Langdon sent correspondence to the Police Association and all affected members in the Eastern Region who had been approved for 3 to 4 weeks of purchased leave.
There was a meeting scheduled to discuss purchased leave applications in Eastern Division 4 on 19 June 2023: Inspector Mason, Inspector Henry and Acting Inspector Hughes attended. Inspector Sprague was not at the meeting. Acting Superintendent Mason directed Inspector Henry and Acting Inspector Hughes to engage with each of the members who had lodged purchased leave applications.
On 21 June 2023, Inspector Mason (in his capacity as an Acting Superintendent) directed Inspector Sprague to review each purchased leave application in Investigation and Response (I&R) and Tasking and Co-ordination (T&C).
On 22 June 2023, Rachael Morris of the Police Association emailed Superintendent Arbuthnot regarding the review, with a copy also sent to Assistant Commissioner Langdon. Assistant Commissioner Langdon requested Inspector Mason liaise with Ms Morris regarding the review process. Inspector Mason responded the same day confirming the review was being conducted in accordance with the Agreement.
On 4 July 2023, Inspector Henry sent an email to Superintendent Arbuthnot copying Inspector Sprague and Acting Inspector Hughes providing an update on his engagement with the members from the Wodonga PSA who applied for purchased leave. He did not identify any applicants with personal circumstances which were exceptionally compelling.
On 5 July 2023, Acting Inspector Hughes sent an email regarding the status of applications in the Wangaratta PSA.
On 6 July 2023, Superintendent Arbuthnot sent an email noting the responses provided by Inspector Henry and Acting Inspector Hughes and requested Inspector Sprague’s advice regarding the Investigation and Response (I&R) and Tasking and Co-ordination (T&C) purchased leave applications. In response Inspector Sprague emailed providing a status update.
On 7 July 2023, Superintendent Arbuthnot provided further feedback regarding Inspector Sprague’s recommendations in respect of the Investigation and Response (I&R) and Tasking and Co-ordination (T&C) purchased leave applications and raised a number of concerns. Superintendent Arbuthnot advised Inspector Sprague that Assistant Commissioner Langdon stated he agreed that the 3 applications that Inspector Sprague had initially recommended be approved could not be supported.
On 11 July 2023, Inspector Sprague sent an email to Superintendent Arbuthnot confirming that he had concluded his consultation with all members of Investigation and Response (I&R) and Tasking and Co-ordination (T&C) regarding their applications for purchased leave and that he had prepared correspondence confirming the rescinding of leave.
On 14 July 2023, the Police Association sent correspondence to Victoria Police regarding the non-approval of purchased leave applications in Eastern Division 4.
On 17 July 2023, Superintendent Arbuthnot sought feedback from Eastern Division 4 Local Area Commander’s regrading business grounds relied upon in rejecting the applications.
On 18 July 2023, Inspector Sprague emailed Superintendent Arbuthnot that he had concluded his review of applications in Investigation and Response (I&R) and Tasking and Co-ordination (T&C). Superintendent Arbuthnot also sent an email to Inspector Sprague and Inspector Henry requesting information to inform a response to be provided to the Police Association. On the same day, Inspector Sprague sent an email to Superintendent Arbuthnot setting out the reasonable business grounds relied upon and attaching an updated table providing context to Inspector Sprague’s assessment of the relevant work units.
On 17 August 2023, Victoria Police’s Workplace Relations Division sent correspondence to the Police Association providing its grounds for rejection of the Purchased Leave Applications of four of the applicants; Officer 5, Officer 4, Officer 2, and Officer 3. Inspector Henry emailed Officer 1 rejected her application setting out his grounds on 11 July 2023.
Rejection of the Purchased Leave Applications
The evidence about the five Purchased Leave Applications, the reasons they were made and how they were rejected includes the following.
Officer 1
Officer 1 is stationed at Wodonga Police Station. She works part-time (48hrs per fortnight) including days on the weekend. There can be 9 “other ranks” (police below the rank of sergeant) on leave at the same time at Wodonga Police Station.
On 3 March 2023, Officer 1 submitted to Senior Sergeant Martin an expression of interest for purchased leave; requesting a total of 4 weeks: [29]
1 week commencing on 11 February 2024;
3 weeks March-April 2024, during school holidays, starting on 31 March 2024.
Officer 1 requested the week in February to participate in the 2024 Country Week Tennis Competition which she can only do when it is held in Wodonga because caring responsibilities inhibit her from being able to travel to the other towns this competition is held. Her reason for the 3 weeks across March-April is in order to visit her elderly mother who lives 120km away in Corryong, and, consistent with practice in recent years, Officer 1 uses purchased leave over the school holidays to spend time with her children.[30]
Officer 1 subsequently applied for purchased leave on 26 April 2023. Senior Sergeant Martin emailed Officer 1 on 17 May 2023 supporting her request for the two weeks over the school holidays but advised she would need to consult the Divisional Planning Office in relation to the third week.[31]
As the week in February was not mentioned, Officer 1 followed up with Leading Senior Constable David Braines of the Divisional Planning Office who said the week in February can be accommodated. The third week for March-April was also discussed and Officer 1 accordingly resubmitted her purchased leave application as she was fine with the March-April leave being the two weeks approved by Senior Sergeant Martin in addition to the week in February.[32]
Officer 1 assumed the revised purchased leave application would be granted. However, on 13 June 2023, Inspector Henry spoke with her and told her the application had not been approved.[33] Officer 1 was confused about why she was told she could take the leave requested and then 4 weeks later being told she couldn’t have “any at all”.[34] She explained to Inspector Henry that Senior Sergeant Martin had approved her leave to which Inspector Henry said words to the effect that Senior Sergeant Martin couldn’t have or shouldn’t have.[35]
On the same day, an email was sent stating that purchased leave applications will not be approved,[36] with the reason being clause 14.10 of the Agreement “to support productivity to meet Baseline and Minimum Service Level Numbers and support investigations and road trauma reductions areas of ED4”.[37]
On 28 June 2023, Officer 1 met with Inspector Henry who explained to her that of the 9 or 11 applicants for purchased leave he had taken 5 to the Divisional Leadership Team that formed to discuss purchased leave and that hers was not one of the 5.[38]
Officer 1 says Inspector Henry told her he would authorise a long service leave application for the same dates as her purchased leave application if she chose to submit one, and if she submitted the application on the same day (28 June 2023) Inspector Henry said he will approve it straight away.[39]
An email sent on Saturday 8 July 2023 by Inspector Henry[40] stated the Purchased Leave Panel met on 4 July 2023 to discuss the applications, the combined impact the requests would have on the district and that Officer 1’s application was rejected.[41] Written confirmation of the rejection was given by Inspector Henry on 8 July 2023. No reasons of substance were provided to her.[42]
Officer 2
Officer 2 is stationed at Mount Beauty Police Station. He explains leave considerations take into account the leave required not only at Mount Beauty, but the one-person station at Dederang.[43]
A request was made for all members intending on applying for purchased leave for 2023-2024 to submit an expression of interest, which Officer 2 did on 3 March 2023 to Acting Inspector Paula Cutler. He did not receive a response.[44]
On 25 May 2023, Officer 2 applied for 4 weeks purchased leave comprising of 2 weeks from 10-23 March 2024 and another 2 weeks from 5-18 May 2024.[45] His reason for requesting leave is that he will use all his recreational leave towards his wedding and honeymoon in the 2023-2024 financial year and the purchased leave will allow him to take rest, manage fatigue and visit interstate family.[46] In addition, Officer 2 lives 120.8Km (minimum 1hr29min) away from the station and his fiancé works at Wangaratta Uni station. As they have done the previous year, Officer 2 and his fiancé both apply for purchased leave so they can spend time together.[47]
In his application, Officer 2 explains he considered the leave planner and chose dates other members are not on leave and would have minimal impact on the roster.[48]
On 14 June 2023, Officer 2 was forwarded an email[49] by his manager, Senior Sergeant Doug Incoll which originated from Inspector Paul Henry. Inspector Henry relied on clause 14.10 of the Agreement in advising all purchased leave applications will not be approved and explained the refusal is “to support productivity to meet Baseline and Minimum Service Level Numbers and support investigations and road trauma reductions areas of ED4.”[50] Inspector Henry noted he sought advice from the Workplace Relations Division, reviewed the serviceability to support all work units in Eastern Division 4 and meet Baseline Minimum Service Level, and sought confirmation that Eastern Division 4 will be unable to be supported from elsewhere in the region and broader organisation.
On 2 June 2023, Officer 2 had a discussion with Acting Inspector Joel Hughes and says he was advised that recreational leave applications would still be supported. Following this conversation Officer 2 requested his recreational leave be moved from 30 July 2023 to March 2024. This was approved.[51] Consequently, it is now only the 5-18 May 2024 dates that are subject to the application for purchased leave.
Inspector Hughes says that he met with Officer 2 on 22 June 2023. Without giving a firm commitment or undertaking about the purchased leave application being approved he mentioned consideration could be given if Officer 2 changed his recreational leave dates in order to address having too many weeks in a row without leave. Inspector Hughes recalls that he indicated to Officer 2 that his purchased leave application will be unlikely to be approved.[52] Inspector Hughes also asked Officer 2 if long service leave was a potential alternate option and he was told it was not.[53] Inspector Hughes notes about the prospect of long service leave that Officer 2 has not been employed for the minimum period of time to start accruing long service leave.[54]
On 14 July 2023, Officer 2 received an email from Acting Inspector Joel Hughes advising the Purchased Leave Panel had considered the application, the impact of the division’s combined leave requests, his personal circumstances and the application is not approved.[55] Officer 2 is aware his fiancé received the same email but for the last line which noted the negotiation to Officer 2’s recreation leave.[56]
Following this, on 25 July 2023, Officer 2 as well as the Police Association requested the business reasons relied upon. The Police Association were provided the reasons by email from Luke Rose which were forwarded to Officer 2 on 17 August 2023.
One of the reasons relied upon in rejecting his application is the resourcing difficulties caused by the increased demands during alpine season, whereby members are away from their normal duties in order to perform policing duties at Falls Creek.[57] However, Officer 2 disputes this as the dates requested (March and May) are outside the peak period. [58] Additional reasons relied upon there being no capacity to backfill positions because one member is already on long term WorkCover leave impacting the service delivery, the only other 24-hour station is 114km (1hr28min) away and backfill from outside the division is significantly costly and the division doesn’t believe spending these significant costs would meet public expectations.[59]
Officer 2 does not accept that him taking leave when no one else is will not require backfill from other stations, particularly as there is another 24-hour station at Wodonga which is 84.4km (1hr2 min) away.[60]
Considering the preexisting resourcing challenges faced by Eastern Division 4, another reason relied upon is the negative impact purchased leave would have on service delivery and that other members would need to perform more hours of availability which also impacts their wellbeing.[61] However, according to Officer 2, even when members are on leave the most availability a member is required to do in a fortnight is 30 hours.[62]
Without his purchased leave being approved, Officer 2 will only get one week of leave between January and September 2024. Cumulatively, the significant travel time, limited opportunity to spend time with his fiancé, and the fatigue he is experiencing are all negatively impacting his wellbeing.[63]
Inspector Hughes notes about the matter of fatigue that it is a separate issue to the purchased leave request as it should be something Officer 2’s direct line manager should manage. He also points out that Officer 2 was aware of the travel distance when he applied to transfer to Mount Beauty Police Station.[64]
Officer 2’s evidence included that the Mount Beauty station has an arrangement in which only two members may be on leave at the same time and is presently dealing with another member currently on long term workers’ compensation.[65] In response Inspector Hughes gave evidence that unlike bigger stations where there can be more movement, Mount Beauty Police Station cannot really have more than one person on leave at a time because it impacts serviceability to the community.[66] Mount Beauty is already short one member off on long-term WorkCover, one member away equals 20.44% loss to total full-time equivalent staff numbers[67], meaning the stations total number of staff is 3.89.[68] This is further complicated by the requirement members are to respond to incidents in pairs.[69] Not doing so is a safety risk and may amount to a breach of the Victoria Police Manual – Operational Duties and Responsibilities.[70]
Statistically Wodonga is one of the busiest stations in the division and therefore it is not possible for Wodonga Police to respond to routine jobs at Mount Beauty.[71] There was no capacity to backfill Officer 2’s position from the Alpine Stations. Furthermore, as the Alpine Stations are small, taking resources from other small stations negatively impacts these stations more in their ability to service the community as well as significant financial implications.[72] Including compensation per clause 92 of the Agreement.
Officer 3
Officer 3 is stationed at Nathalia Police Station. She applied for purchased leave on 12 May 2023 for 3 weeks from 25 May-19 June 2024. Her reasons for requesting leave include wanting to attend the Victorian Country Women's Association State Conference, which is held annually over 3 days in late May/early June. Officer 3 has used purchased leave to attend the conference in the past. She also wanted leave in order to travel to Melbourne for carrying out probate duties for her late mother’s estate. [73]
After submitting her application, she received two phone calls asking for more details about her reasons for the leave:
with Senior Sergeant Nathan Ractliffe in the last week of June 2023[74]; and
7 July 2023 with Acting Inspector Joel Hughes.[75]
Inspector Hughes’ evidence is that on 7 July 2023 he discussed with Officer 3 her purchased leave application and told her that “it was unlikely that her application for purchased leave would be supported and I recall she was quite upset. I offered to negotiate amendments to her approved recreation leave dates to assist her in attending to the reasons for the leave, however I recall that she did not wish to explore that as an option”. Following the meeting he considered “there were reasonable business grounds to reject [Officer 3's] application for purchased leave … and that she had not provided any further information about her personal circumstances which would warrant her application being approved”.[76]
On 14 July 2023, Officer 3 was advised by email that her application had been refused by Inspector Hughes.[77]
Officer 3 says the Nathalia Leave Roster for 2023-2024 shows there were no other members on leave for most of the time she has requested to take purchased leave.[78]
Inspector Hughes relates in his evidence a discussion with the Police Association on 25 July 2023 about a response in respect of Officer 3 and Officer 2. Ms Morris of the Police Association was “eager to get a response in relation to [Officer 2] and [Officer 3]. I recall that Ms Morris expected the response to come from me, however I advised that it was going to come from our HR Business Partner who was collating a response on behalf of all the relevant members. Later that day, Ms Morris sent an email to the Workplace Relations area, which I was copied to, requesting the reasonable business grounds relied upon in the rejection of [Officer 2] and [Officer 3's] purchased leave applications”. On 26 July 2023 he gave extensive reasons to the Eastern Region HR Business Partner as to why the applications of Officer 2 and Officer 3 should be rejected. The correspondence to the Police Association from Luke Rose relates these reasons to each. [79]
In mid-August 2023 the Police Association forwarded Officer 3 an email from Luke Rose setting out the reasons her application was refused.[80]
Inspector Hughes also notes that Officer 3 has around 27.5 weeks of accrued and untaken long service leave.[81] Further, there are Nathalia Police Station specific resourcing challenges, they are struggling to fill shifts and there is a vacancy.[82] He disagrees with Officer 3’s claim that management has been slow to advertise or promote to fill the vacancy, it “is not a matter of forgetting about vacancies, it is a matter of process”.[83] Promoting someone into the position requires the position to be advertised twice, and they do not have control over whether people apply for a vacancy.[84]
Inspector Hughes also disagrees with Officer 3’s comment that 2 ORs can be away at same time as the maximum allowed is one for the 2023-2024 financial year.[85]
Officer 4
Officer 4 is attached to the Wodonga Highway Patrol. His experience of applying for purchased leave in the year prior was that it was a “drawn-out process”. He was told by local management the 4 weeks of purchased leave he was applying for would only be granted if he entered into a Confidentiality Agreement, which he refused, and even though the Workplace Relations Department assured him it would be granted without having to sign a Confidentiality Agreement, the consequential long delays meant he had to cancel an international family holiday.[86] Likewise, for this year, Officer 4 has spent considerable time dealing with the application which has caused him considerable stress and anxiety.[87]
Notwithstanding, he applied for purchased leave via the HR Assist software program on 5 April 2023 pursuant to the Victorian Police Manual – Leave for the two sets of dates:[88]
3 weeks commencing 24 March 2024;
1 week commencing 25 May 2024.
The application was rejected on 19 April 2023 by Inspector Sprague who also sent Officer 4 an email advising alternate dates that could be supported based on service delivery, and, if the dates suited, Officer 4 was to revise and resubmit his application.[89]
Officer 4 replied on the same day explaining the 3 weeks sought by him coincided with the only availability his family has to travel internationally and as such the alternate dates were unsuitable.[90] In response Inspector Sprague sought Senior Sargeant Savage’s assistance in working out a solution for Officer 4’s request.[91] Later that same day, Senior Sargeant Savage told Officer 4, in person, that Officer 4 would need to ask other people in his work unit if they were open to changing their leave dates to accommodate the purchased leave application. Officer 5 offered to move his leave dates around and Senior Sargeant Savage indicated this was workable, so directed Officer 4 to resubmit his application.[92]
The approved Leave Roster that was put up on 25 April 2023 included the discussed dates for Officer 4’s purchased leave.[93]
Accordingly, the resubmission of Officer 4’s purchased leave application via HR Assist on 9 May 2023[94] was progressed through the approval stages[95] with confirmation of the approval being issued on 29 May 2023.[96]
Later Officer 4 became aware his approved purchased leave was being reviewed via email on 16 June 2023 from Assistant Commissioner Tony Langdon.[97] He had a phone conversation with Inspector Sprague on 22 June 2023 in which they discussed his prior purchased leave application experience and he noted the consequences to him and his family should the review not be concluded urgently.[98] When he checked his payslip at the end of the 15 July 2023 pay period, he had 152 hours of purchased leave owing.[99]
On 18 July 2023, Officer 4 received an email, from Inspector Sprague, saying the panel had not approved his application, which he found unusual because his purchased leave had been approved and was operative.[100] Officer 4 replied to this email requesting the grounds relied upon to reject the application.[101] His payslip at the end of the 29 July 2023 pay period no longer had the purchased leave hours owing, however, it was still included in his Superable Salary.[102]
The “reasonable business grounds” relied upon in refusing the application were forwarded by the Police Association to Officer 4 on 17 August 2023.[103] The email outlines current absences, including “1 x O/R [other rank] on personal leave indication he plans to submit W/C” which Officer 4 takes to be in reference to him.[104] However Officer 4 does not “understand the reason that anyone would say that”.[105] Officer 4 does not believe the grounds are reasonable.
Officer 5
Officer 5 is stationed at Wodonga Highway Patrol.
Officer 5 has applied for 2 weeks purchased leave every year since 2011 and has not previously had issues with leave being granted until 2022.[106] For this reason he believes the initiative to request expressions of interest is a way to manage and plan as a result of “the 2022-23 Purchased Leave debacle where most purchased leave in ED4 was rejected without reason then later approved to those who questioned the decision.”[107]
Officer 5 submitted his expression of interest for taking 2 weeks purchased leave from 9-22 June 2024,[108] and he subsequently applied for these dates in March-April 2023.[109]
Officer 5 followed up on the status of his application, on 24 April 2023, with Acting Senior Sergeant Savage who informed Officer 5 the Inspectors were handling the purchased leave applications, so Officer 5 followed up with Inspector Sprague.[110]
On 25 April 2023, Inspector Sprague informed Officer 5 that Senior Sergeant Savage would soon share the approved leave roster.[111] Officer 5’s request was included on the approved roster upon its distribution, signifying its approval.[112] This was further confirmed by HR Assist on 29 May 2023.[113] However, by 30 August 2023, when Officer 5 started to compile this statement, he found HR Assist’s records (dates of applications, rejection, approval etc) missing and concludes the system “has been compromised”.[114]
On 11 July 2023, Officer 5 had a phone call with Inspector Sprague in which the former was told his purchased leave was being reviewed and that Inspector Sprague needed to understand Officer 5’s reasons for the leave. Officer 5 found this bizarre because it was already approved, and he pointed out the new financial year had started and the purchased leave money would already be coming out of his salary.[115] Inspector Sprague explained the review has come from “higher up” and Officer 5’s application was approved in ‘good faith’ in light of last year’s “purchased leave debacle”.[116] As such, in a genuine good faith attempt,[117] Officer 5 proceeded explaining he needed the break as after 38 years of service his wellbeing was suffering. In support of this assertion, Officer 5 brought up how he had cause to take WorkCover leave in 2020 due to post traumatic stress disorder (PTSD).[118] The second reason he wanted purchased leave is for travelling to Bali with his wife, family and friends to belatedly celebrate his 30th wedding anniversary.[119] Officer 5 was granted purchased leave in 2021, the year of his anniversary, to do this but unfortunately Covid restrictions meant he had to postpone this plan.[120]
On 19 July 2023, Inspector Sprague notified Officer 5 his application was not approved.[121]
On advice from the Police Association, Officer 5 requested Inspector Sprague for the business grounds. Officer 5 says he never got a response from Inspector Sprague. Instead, on 17 August 2023, the Police Association forwarded an email from Luke Rose relaying the business grounds.[122]
Officer 5’s reaction to the reasons is that they made his “blood boil”.[123]
Inspector Sprague’s joint consideration of Officer 4 and Officer 5’s applications
Inspector Sprague was responsible for consideration of the applications by Officer 4 and Officer 5. He noted in his evidence that when he was reviewing Officer 4’s application for purchased leave, Officer 4 had accrued around 7 months of long service leave.[124] Similarly, Officer 5 had accrued around 6 months.[125]
Inspector Sprague’s evidence about the applications from Officer 4 and Officer 5 includes that both applications were processed through the first level of approval in Victoria Police’s HR Assist system by Anthony Chamberlain, an Acting Sergeant at Wodonga Highway Patrol around 24 May 2023. Consistent with his prior assessment, on 29 May 2023, Inspector Sprague provided the second level of approval.[126]
As Acting Superintendent Mason stated in his statement, Inspector Sprague was later forwarded emails from Assistant Commissioner Langdon on 13 and 14 June 2023 expressing concern over the sustainability of leave approvals. Of note for Inspector Sprague is that Eastern Division 4 were told they do not need to review their approvals. However, Acting Superintendent Mason then told Inspector Sprague to review the applications in Wodonga Highway Patrol.[127] Inspector Mason followed this request up on 19 June 2023 instructing the Inspectors to engage with each member who lodged applications and personally communicate with them regarding the purchased leave assessment, determination process, and the outcome of their purchased leave applications.[128]
On 21 June 2023, Acting Superintendent Mason listed specific members Inspector Sprague was to engage with because the applications will be reviewed and factors the reviews will be considered upon is individual circumstances plus reasonable business grounds.[129] The next day on 22 June 2023, Inspector Sprague had a conversation with Officer 4 who expressed he was upset and that he was using his leave to self-manage his mental health. Officer 4 advised he did not want to use WorkCover because of the associated stigma. Based on the conversation Inspector Sprague understood that if Officer 4 was not afforded purchased leave, Officer 4 may resort to taking WorkCover.[130]
Updates on the status of reviewing applications were shared in further emails[131] between Inspector Henry, Acting Inspector Hughes, Superintendent Arbuthnot, and Inspector Sprague. Specifically, Inspector Sprague set out recommendations in respect of each application and whether a reduced period of leave could be accommodated or if leave should be rescinded, Inspector Sprague considered Officer 4’s application for 2 weeks could be approved.[132] In reply to Inspector Sprague’s recommendations, Superintendent Arbuthnot raised concerns regarding the impact of approvals, including on the resourcing, service delivery and capacity of Wodonga Highway Patrol.[133] Notwithstanding Inspector Sprague maintained his recommendation that Officer 4’s leave could be supported. However, he recognised that Superintendent Arbuthnot held the view that applications could not be supported from the Divisional and Regional perspective.[134]
As such, on 11 July 2023 Inspector Sprague emailed Officer 5 to arrange a phone call to discuss his application. He also talked to Officer 4, in which he confirmed Officer 4’s application was under review per Superintendent Arbuthnot’s direction and reiterated Divisional managements concerns on the negative impact.[135] Following this, on the same day, Inspector Sprague emailed Superintendent Arbuthnot advising consultations had concluded and prepared some correspondence confirming rescinding of leave.[136]
Responding to a request for information on 18 July 2023 Inspector Sprague emailed Superintendent Arbuthnot setting out the reasonable business grounds relied upon and additional information to contextualise Inspector Sprague’s assessment of the applications.[137]
Also, on 18 July 2023 Inspector Sprague separately emailed Officer 4 and Officer 5 advising that following Eastern Division 4’s review, their applications for purchased leave had not been approved.[138] Officer 5 requested the reasonable business grounds relied upon to refuse his application on 19 July 2023 and Officer 4 requested the same in relation to his application on 24 July 2023.[139]
On 17 August 2023, Inspector Sprague provided the Workplace Relations Division, who were coordinating a response to the Police Association and members, a summary of the reasonable business grounds relied upon in rejecting the applications.[140]
In conclusion, Inspector Sprague states: “when I conducted my initial review of Officer 5's and Officer 4's applications for purchased leave, I considered that these periods of leave could be accommodated from my perspective as the Inspector of the Investigation and Response (I&R) and Tasking and Co-ordination (T&C) and having regard to the members welfare and service delivery requirements of each of the work units, including the Wodonga Highway Patrol. My views in this respect have not changed however, in response to instructions to review approved purchased leave by Superintendent Arbuthnot the applications of Officer 5 and Officer 4 for purchased leave were reviewed and ultimately rescinded based on the business grounds communicated to both Officer 5 and Officer 4 by Victoria Police Senior Workplace Relations Lead, Mr Rose.”[141]
THE REJECTION DECISIONS AND GROUNDS RELIED UPON
As background to the Eastern Division 4 decision-making about these applications Victoria Police note that resourcing of the subdivision has been a problem particularly since it grappled with what it viewed as high levels of WorkCover and unplanned leave.[142] It submits that concerns were expressed by the Police Federation on the subject. This includes the Secretary of the Police Federation directly raising the subject with the Chief Commissioner of Police in May 2022.[143]
As summarised above several senior officers were involved in the decision-making process and gave evidence to the Commission. For the reasons set out below Assistant Commissioner Tony Langdon must be viewed as the ultimate decision maker, however he did not give evidence in these proceedings.
Commander Nyholm’s evidence
Commander Nyholm did not directly reject any of the purchased leave applications of the five officers involved in this application.
Commander Nyholm gave evidence that the significant capacity issues within Eastern Division 4 meant it struggled to achieve its Baseline and Minimum Service Level Numbers targets. While conceding there were a number of factors contributing to the significant capacity issues and the need to manage the associated risk arising from these issues the driving factors included increasing rates of parental leave, high levels of purchased leave being approved, and unplanned leave (including employees on periods of WorkCover, or personal leave due to illness or injury).[144]
The Division was also prone to the effects of annual resourcing peaks in which resources require being deployed from one area to another to accommodate increased temporary demands. The seasonal peaks included increased service delivery demands in popular holiday areas because the population swells corresponding to greater need for police to prevent road trauma, crime, and public order issues.[145]
Eastern Division 4’s resourcing and capacity problems has led to the development and implementation of a Health Safety and Wellbeing Restoration Plan[146] to “enhance the health, safety and wellbeing of employees of Division 4, restore the capacity of the Division, achieved by improving the health, safety and wellbeing of employees through a targeted support plan.”[147] Related to this was the distribution of a staff survey on 30 January 2023 where a significant amount of the responses received to this survey referred to the frequent usage of availability and availability being performed ‘one up’. These actions contributed to Commander Nyholm’s ongoing concerns about not further compromising capacity and the impact that depleted capacity has on member safety.[148]
Commander Nyholm also gave evidence that in her opinion the Police Association is alive to the capacity issues affecting Eastern Division 4 and uses the example of a motion which was passed at a meeting of police officers in May 2022 which proposed staging a walk-out at the Wodonga Station. The meeting and motion demonstrate the Police Association have been active in raising concerns on the under-resourcing of Eastern Division 4.[149] Further, the Commander considers her ability to move around/place new policing resources is limited by industrial relations factors as well as constraints in the Agreement.[150]
The February 2023 Eastern Region Regional Leadership Team discussed the significant capacity issues and what can and cannot be controlled from an operational perspective to ensure they are meeting the Baseline and Minimum Service Level Numbers requirements. During this meeting Commander Nyholm identified the risks that impact resourcing and made a comment that she could not see how the region could be approving any purchased leave when it has such significant capacity issues and that Divisional Superintendents needed to consider how they can justify approving any purchased leave given the capacity issues they are facing. She recollected Assistant Commissioner Langdon commenting that these factors needed to be front of mind and the Superintendents needed to be fully informed before making a decision on purchased leave.[151]
Commander Nyholm followed up this meeting with an email to the Regional Leadership Team listing the impacts to their workloads, included in this list was ‘Purchased Leave’ and how far they can stretch the resources in Investigation and Response (I&R) and Tasking and Co-ordination (T&C), considering the specialisation of these units and high absenteeism, and meet service delivery requirements.[152]
Commander Nyholm gave evidence that Inspectors brought up with her at a Divisional Leadership Team meeting on 7 June 2023 that they needed more resources as the Division was stretched for resources and police were getting fatigued from rostered availability.[153] In the meeting an Inspector commented that there had not been a consistent approach to purchased leave:
“I was concerned by the inspector's comments as it suggested there had not been a consistent approach to purchased leave across the Region and I took this to mean that potentially some of our Divisions had been approving purchased leave. Whilst there had not been a specific direction that it could not be approved, I had concluded that the applications would not be able to be approved as we had business grounds that indicated we could not approve the leave (without further impacting our compromised capacity).”[154]
The inconsistency in approaching applications for purchased leave became apparent to Commander Nyholm following discussions with Superintendents on 9 June 2023 and on 12 June 2023 Commander Nyholm asked all the Superintendents to indicate the status of approvals within their divisions. Although Commander Nyholm and the Assistant Commissioner did not direct the Superintendents to elevate the delegation for approving applications, “we expected that the superintendents would manage the process and ensure resourcing pressures and constraints were taken into consideration”.[155] On 9 June 2023, Commander Nyholm wrote to Assistant Commissioner Langdon about her concerns expressing the view that there was a lack of HR strategic planning and advice, as well as that the Victorian Police Manual made it a “lay down” that the leave would be approved.
Following this email Commander Nyholm reviewed vacancy data which showed the region’s capacity was problematic, at 88.9%:
“… we were already operating at a capacity of around 9 out of 10 positions being filled. This related purely to vacancy positions and was further reduced by the various leave to be taken. Then from there I could see that the number of purchased leave shifts that had been approved was around 4,036 shifts (807.33 weeks multiplied by 5, being the number of shifts per week). This was very concerning for me because of the resourcing challenges the Region was facing and that these shifts were not a guaranteed entitlement and could be rejected on reasonable business grounds. …”[156]
Commander Nyholm later said to Assistant Commissioner Langdon “we had just given away 4,036 shifts, which is effectively 33 police members for the year”.[157] This conversation was followed by the strongly worded email from the Assistant Commissioner to all Superintendents in the Eastern Region dated 13 June 2023 and set out above requesting they find ways to cancel, and reconsider purchased leave approvals.[158]
Commander Nyholm’s evidence continues that based on her discussions with Assistant Commissioner Langdon, she initially understood that Eastern Division 4 did not need to conduct a review of their approvals because they had lower purchased leave approvals which is indicative of Superintendent Arbuthnot having assessed service delivery requirements in considering approvals as the Superintendents were supposed to do.[159] However Assistant Commissioner Langdon instructed the Superintendent of Eastern Division 4 to advise the Superintendents of the other divisions on the process Eastern Division 4 followed.[160] He then confirmed the process for reviewing the applications in an email to the Superintendents on 15 June 2023.
On 16 June 2023, Assistant Commissioner Langdon emailed the Police Association and affected staff members in separate emails to advise that purchased leave applications of 3 to 4 weeks across the Eastern Region “will now be reviewed” in accordance with the Agreement, with the possibility that prior approvals may be “amended or rescinded”.[161]
On 22 June 2023, the Police Association raised concerns with Superintendent Arbuthnot and Assistant Commissioner Langdon regarding compliance with clause 129 of the Agreement as it had been advised Eastern Division 4 were rejecting all applications. The Police Association had raised this concern before with Assistant Commissioner Langdon when they were assured blanket rejections were not occurring.[162]
Accordingly, Assistant Commissioner Langdon directed Superintendent Mason (acting for Superintendent Arbuthnot) to ensure the reviews were compliant with clause 129. Acting Superintendent Mason was also directed to liaise with Ms Morris regarding the decision-making being in accordance with clause 129.[163] As such, Acting Superintendent Mason informed Ms Morris that the review process implemented by Eastern Division 4 was in compliance with clause 129, the Victoria Police Manual, and each application was being considered independently based on the applicants request and personal circumstances and the Divisional capacity and service delivery requirements. Acting Superintendent Mason also clarified that there was Inspector Henry’s 13 June 2023 email in which he said no applications would be approved was not in accordance with the Divisional process and endeavoured to reassure Ms Morris her members would be individually consulted and told the emails were in error and then have their applications dealt with in accordance with the Divisional process.[164]
Superintendent Arbuthnot’s evidence
Superintendent Arbuthnot did not directly reject any of the purchased leave applications of the five officers involved in this application.
Superintendent Arbuthnot gave comprehensive evidence about her division’s resourcing constraints starting with the proposition that the community expects the police to keep them safe and that decisions surrounding resourcing referenced back to that expectation. She considered that Eastern Division 4 is struggling to meet the Baseline and Minimum Service Level Numbers required on any shift; to resource Police Stations; and to support its specialist Investigation and Response (I&R) and Tasking and Co-ordination (T&C) units, and she therefore could not justify police taking purchased leave in the absence of compelling personal circumstances. It followed, in her view that because of those issues Victoria Police simply could not justify approving applications for purchased leave without extenuating personal circumstances.[165]
There are 327 sworn members in Eastern Division 4 compared with about 3,300 in the Eastern Region. Eastern Division 4 continues to be one of Victoria Police’s most capacity challenged divisions.[166] Resourcing responsibility ultimately sits with the Assistant Commissioner. While Superintendent Arbuthnot has the ability to seek resourcing support from a neighbouring Divisional Area Commander and the Assistant Commissioner and has done so on occasions the request may not be met with the provision of additional resources. When they are provided additional resources are the subject of an internal charge.[167]
The Baseline and Minimum Service Level Numbers operates in such a way as to stipulate a minimum full-time equivalent staff to be rostered at each station across each fortnight in order to ensure baseline service delivery, requiring rostering of:
“(a) One primary response patrol unit 24 hours, seven days of the week, performed by 2 members (otherwise referred to as "two up");
(b) Reception/watch house performed by two members;
(c) When rostering patrol supervisors, they are to include a driver; and
(d) When rostering a patrol manager, they are to include a driver.”[168]
While non-24-hour stations are not required to roster according to Baseline and Minimum Service Level Numbers staff must be rostered to meet projected service demand. Baseline and Minimum Service Level Numbers though deals only “with one threshold” and does not play a role in disrupting crime or preventing crime, which require further resources. Similarly, focussing on priorities such as road trauma requires additional resources. Assistance calls require a divisional van on the road, each shift with two staff, and two staff in the watchhouse of each 24-hour Station at Wangaratta and Wodonga; whereas Wodonga manages to roster two vans over the afternoon and evening period, at Wangaratta there is only one van for morning, afternoon and night shifts. Neighbourhood policing shifts which require a visible presence in high risk locations in order to deter and prevent crime are unable to be done at present by Eastern Division 4 owing to the lack of resources.[169]
Superintendent Arbuthnot further notes:
“44. The difference between the number of staff allocated to each Station in ED4 compared to BMSL requirements is minimal. Other factors such as Flexible Work Arrangements (FWA) (operating as 4 x 10-hour shifts), Variable Rosters (operating 4 x 10 hour shifts) and human resource availability also affect the Division's ability to provide service. Part time applications are included in the MSPs. FWAs, where a member changes from 5 x 8hr shifts to 4 x 10hr shifts per week (formally known as compressed working arrangements), were previously not included in the calculation of MSPs as provided by the MSP FAQ document. FWAs have recently been included in the calculation of MSPs, however on a minimal basis as an average of two shifts per Sergeant position per annum and less than one shift per annum for OR which is a much lower than the actual number of FWAs that are in place in ED4. These factors need to be considered when developing such arrangements. Currently there are 13 members in ED4 at "other ranks" (ORs) (OR's being all ranks below the rank of Sergeant) working a FWA (10 x 4 shifts), and 10 Sergeants working a FWA, which equates to a total of 567 lost shifts per roster or equivalent total lost FTE of 2.16.”[170]
She says there are significant resourcing pressures in the Wangaratta and Wodonga Highway Patrol’s and several police stations including Nathalia and Mount beauty:
“46. In any Division, there is an ebb and flow of capacity with resourcing 'spot fires' that require management at any given time. There are significant resourcing pressures in ED4 in the HWP Units at Wangaratta and Wodonga and at Police Stations at Corryong, Nathalia, Numurkah, Cobram, Bright and Mount Beauty. The availability of resources across the Division has not supported temporary backfilling of shifts in these areas to any great extent. For example, at the Wodonga HWP there has been a Sergeant absent for a lengthy period and several staff either absent due to illness, injury, discipline suspension or unavailable for response duty due to medical restriction. The Sergeant position has now been formally vacated and a new sergeant occupies the position. However, there are still a number of HWP OR staff unavailable due to illness, injury or restriction. At Wangaratta HWP there has also been a Sergeant absent for about two years. This position may become vacant in the early 2024. Other Sergeants from Wangaratta Uniform have been backfilling that role however this has impacted the BMSL on occasion at Wangaratta Police Station. There has also been a number of OR staff at Wangaratta HWP unavailable due to illness, injury, disciplinary suspension or unavailable for response duty due to medical restriction. There have been and continues to be critical staff shortages at Wodonga HWP at the OR level whilst capacity has improved at Wangaratta HWP at the OR level. A Senior Constable from within the Wodonga HWP has also been upgraded for periods of time which is not ideal as this can impact on resource availability for response shifts in a small, specialised team. For example, there are 9 response members and one Sergeant position designated for Wodonga HWP. Upgrading one response member means that they have to perform supervisory duties such as brief checking and other administrative duties and compliance and human resource management, so they have less availability to be on the road responding to road incidents and providing a visible presence. An email from Inspector Sprague dated 25 April 2023 details these issues, a copy of which is marked "JA-12" and is annexed to this statement. The unavailability of staff in work units such as HWP has been ongoing for approximately 2 years.”[171]
She also notes an inability to consistently provide adequate temporary support for extended periods to the Highway Patrol, Sexual Offence and Child Abuse Investigation Team (SOCIT) and Family Violence Investigation Units (FVIU).[172]
Superintendent Arbuthnot’s evidence extends to pressures faced in the Alpine and Moira Clusters. She puts forward about these clusters that:
“55. The Moira cluster (within which the Nathalia Police Station sits) has been facing a number of significant community safety issues for a number of years, in particular regarding family violence. These issues are exacerbated by Moira's geographical remoteness, the fact that the Stations comprising the Moira cluster do not have the resources for a 24-hour response, and there are limited specialist resources. The nature of offending and high-harm type responses evidence a need to shift to a 24-hour police response, however this is not possible with the current resourcing levels within ED4. One of the reasons that crime has increased in the Moira cluster is because offenders are aware that there is no 24-hour police presence, meaning that crimes and offending can be committed when it is known there are no police officers on active duty. We are also aware of organised crime groups operating within the Moira LGA and there are also many instances of cross-border offending due to the close vicinity of the NSW border. An overview of Moira crime priority themes and calls for assistance data (referred to as "CAD") between 2018 and current year to date for the Moira cluster is marked "JA-13" and annexed to this statement. Victoria Police uses CAD to assess it is meeting current service delivery requirements within a police service area and to undertake service forecasting, including to assess what the current community demand for police services is, and how unpredictable events and other police operations will impact service delivery requirements. As demonstrated from the Moira Crime Priority Themes and CAD Overview, the five-year picture of CAD tasks in Moira indicates a steady increase in the number of logged CAD calls in almost every response zone. Additionally, priority crimes such as family violence, assaults and sexual offending (non-rape) in the crimes against person category are increasing as are burglaries and vehicle crime.”[173]
In the course of noting the difficulties of assisting the cluster stations with additional staff Superintendent Arbuthnot recalls having lobbied for additional resources to specifically support the Moira cluster, which has a history of vacancies. The cluster experiences high staff turnover with its type of work and distance from major centres making it hard to attract. The Alpine cluster requires two seasonal police stations to be established each year at Falls Creek and Mount Hotham, with staff drawn from a Divisional pool.[174]
Attraction and retention of staff is slow and problematic. Despite running expression of interest processes which generate a short list instead of undertaking formal recruitment processes, with the intention of shortening the recruitment cycle, not much has been achieved. The waitlist generated from the expression of interest processes has been depleted.[175]
Superintendent Arbuthnot puts forward several “ED4 specific” factors which combine to be a higher Baseline and Minimum Service Level Numbers workload for response crews within the division. These included above-average crime rates; the need for greater planned responses for certain proactive strategies; greater response to rising rates of road trauma; work associated with large-scale tourism and responses to emergency events such as fires and floods.[176] In respect of emergency events Victoria Police expects the local areas and regions will stand alone for the first 72 hours after event whilst extra resources are obtained.[177]
Also impacting on resourcing is the problem caused by absenteeism driven by unplanned leave, such as Workers Compensation or personal leave.[178] Victoria Police also refer to the costs of filling temporary staffing problems as well as a proactive measure designed to improve staff availability:
“103. ED4 has been supported with additional surge resources to manage the Alpine Policing response and for a short period, support for the HWP. A number of requests have been made for additional support however resourcing pressures across the Region make this very difficult.
104. There are approximately 800 vacancies and about 900 members absent from their workplaces state-wide. The availability of resources from other parts of the organisation is limited, ED4 has sought additional resources for the Summer Holiday period (December - March) and been approved 12 additional resources who were to be deployed from other parts of Eastern Region to assist ED4 to manage risks identified through predictive mapping. Due to the poor resourcing landscape, Eastern Region has initiated an Accrued Time Off (ATO) "Buy Back" scheme asking members to cash out leave and work in ED4 and ED6. As of this date, the full complement of resources has not been achieved. Without these resources it will be much harder to provide an adequate community safety service.
105. The cost to send three members from metropolitan Melbourne to ED3 and 4 (for the alpine policing period of June - September), per week in 2023 cost $594,000.00.” [179]
Inspector Henry’s evidence
Inspector Henry rejected the purchased leave application of Officer 1 in an email dated 8 July 2023.
Inspector Henry is the Local Area Commander of the Wodonga Police Service Area. In his role as Local Area Commander, and as direct line manager, Inspector Henry is responsible for reviewing, assessing, and determining a member's application for purchased leave.[180] For this, Inspector Henry proactively took steps to ensure he was well versed on the considerations and processes to observe. He developed his understanding of service delivery pressures and consulted Leading Senior Constable Daniel Braines who is experienced in purchased leave applications, planning and rostering units, and they discussed the applicants’ personal circumstances.[181]
Noting that because clause 129 does not provide a procedure for assessment of applications, the reasonableness of the process of consideration is not in issue in an assessment of “reasonable business grounds”.[322]
The respondent has the onus of establishing whether the stated reasons of rejection can be objectively regarded as “reasonable business grounds”.[323]
Had the applicant’s purchased leave application been granted it would have resulted in some loss of efficiency and productivity, however there is a necessity to point to some cost or adverse impact over and above the inevitable small adverse impacts.[324]
The resourcing of Eastern Division 4 had reached a tipping point where mitigation of the further loss of resources through the refusal of purchased leave applications was reasonable.[325]
The Police Association’s primary submissions about Goldsworthy put forward that Goldsworthy had little direct relevance to this application. After noting that its submission about the “business” to which regard should be had in these proceedings had been adopted by Commissioner Johns in his first instance decision in Fyfe[326] and Commissioner Perica in Goldsworthy, the Police Association submitted:
“• It is no simple task to assess the level at which the resourcing decisions most pertinent to any given dispute are made.
• Whatever evidence Commissioner Perica may have had before him, the evidence given in these proceedings shows that, the geography of ED4 and the constraints of industrial and employment obligations combine to severely restrict the movement of Divisional resources (police members). The effect of absences is localised as a result.
• We note the following decisions and processes of Victoria Police above and outside the Divisional level which have contributed to the resourcing challenges faced by all non-24-hour police stations and the Wodonga Highway Patrol (HWP) respectively:
• The decision by Victoria Police Executive Command when introducing a mandatory “two-up” in around 2015 not to increase staffing levels at non-24-hour police stations in order to maintain the existing service levels.
• The ongoing internal investigation of a member of the Wodonga HWP who has been suspended from duty for over 5 years.
• The delay of over two-and-a-half years in returning Officer 5 to operational duties caused by the employer’s Medical Advisory Unit.”[327] (footnotes omitted)
As a secondary submission directed to the evidence in these proceedings the Police Association submitted that there was no way of knowing in advance whether or not a planned absence is likely to cause significant adverse effects and that the effect of any particular planned absence is the same regardless of the reason. The Police Association also submitted:
“F. In accordance with “the ED4 methodology” – an approach first adopted in the previous financial year – local management actively encouraged applicants for purchased leave to instead take long service leave.
G. Three ED4 police officers whose applications for purchased leave in the current financial year were rejected were subsequently granted long service leave for some or all of the leave dates requested in their initial application.”
Further it was argued:
“Regarding the application of ED4 methodology in financial year 2023/24, the Commission will need to reconcile the assertion by Superintendent Arbuthnot under cross-examination that “[t]hat [inducing members to take long service leave in lieu of purchased leave] was something that we'd done the year before, yes. But on this occasion, we didn't.” with the evidence to at F and G in the preceding paragraph and indeed her own tendered statement.” (footnotes omitted)
The Police Association’s secondary submissions were made well after the evidence and submissions in chief in this matter had closed and are well beyond the scope of the opportunity given to both parties to provide submissions to the Commission on the import and application of Goldsworthy. Accordingly, I place no weight upon these aspects of the Police Association’s supplementary submissions, relying instead upon my reasoning set out above.
For its part Victoria Police argued that Goldsworthy was directly relevant to these proceedings noting that the decision referred to a police officer employed in Eastern Division 4 at the Wodonga Police Station at which Officer 1 is also employed. Noting that Sergeant Goldsworthy’s application also related to the 2024 financial year Victoria Police submitted it had applied the same or substantially similar process to his purchased leave application as in the applications that are the subject of this decision. In this regard Victoria Police argued:
“8. There is substantial overlap between the reasons for rejecting Sergeant Goldsworthy’s application and the reasons for rejecting the five members’ applications. This is particularly the case in respect of [Officer 1’s] application for which the reasons for rejection are near identical. The overlapping reasons are as follows:
8.1.1 current resourcing at Wodonga Police Station is not able to satisfy or meet the full expectations of community safety and customer service demand. This is due to the additional resource challenges of supporting Corryong Police Station and Investigations and Response Units working out of the Wodonga Police Complex and Corryong Police Station.
8.1.2 in particular, Wodonga Police Station will have to support Wodonga Highway Patrol for the projected 430 and 150 shifts respectively. This is due to WorkCover, modified duties and vacancies with difficult staff attraction.
8.1.3 Wodonga Police Service Area will have to support Investigations and Response Units based at Wodonga and Corryong Police Station from 17 July 2023.”[328] (footnotes omitted)
Victoria Police then invited the Commission using its broad powers under s.590 of the FW Act to have regard to the relevant critical findings made by Commissioner Perica in Goldsworthy. After putting forward that the Commission is presently constituted should also find that the “business” for the purposes of clause 129 is Eastern District 4, Victoria Police put forward that Commissioner Perica’s findings about resourcing were relevant to the matter presently before the Commission.
While accepting that Goldsworthy is of relevance to the disposition of the matter presently before me, having reviewed its contents and being of the view that my reasoning in this decision is not otherwise disharmonious with that adopted by Commissioner Perica there is not a need for me to address in detail the findings he made.
CONCLUSION
The Question for Determination is determined as follows:
Q: Does Victoria Police have reasonable business grounds pursuant to clause 129.2 of the Agreement for rejecting the applications by Officer 4, Officer 2, Officer 1, Officer 3, and Officer 5 to take purchased leave on any of the weeks requested?
A: Yes.
The dispute is determined accordingly.
COMMISSIONER
Appearances:
Mr S. Gome for the Applicant
Ms F. Leoncio Counsel for the Respondent
Hearing details:
2024.
Melbourne;
29-31 January.
Final written submissions:
28 March 2024 for the Applicant
28 March 2024 for the Respondent
ATTACHMENT 1
ATTACHMENT 2
[1] AE507544.
[2] Exhibit A13, Applicant’s Outline of Submissions, 17 November 2023, [62]; Digital Court Book (DCB) p.175.
[3] Exhibit R9, Respondent’s Amended Outline of Submissions, (original Outline of Submissions filed 18 December 2023), 31 January 2024, [8]; original submissions DCB p.319.
[4] ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].
[5] Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30] – [32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82, [25].
[6] Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCFB 2019, [52].
[7] See for example James Cook University v Ridd [2020] FCAFC 123, 298 IR 50 at [65] and the authorities referred to therein; WorkPac Pty Ltd v Skene [2018] FCAFC 131 264 FCR 536 at [197]; Australian Workers’ Union v Orica Australia Pty Ltd[2022] FWCFB 90 at [18] and the authorities referred to therein.
[8] Health Services Union v DPG Services Pty Ltd[2023] FWCFB 81.
[9] Exhibit R7, Witness Statement of Joy Arbuthnot, filed 18 December 2023, [5] – [6]; DCB, p.1164.
[10] Ibid, Attachment JA-1; DCB, p.1200.
[11] Ibid, [8] – [12]; DCB, p.1165.
[12] Exhibit R9, Respondent’s Amended Outline of Submissions, (original Outline of Submissions filed 18 December 2023), 31 January 2024; original submissions DCB, p.324.
[13] Exhibit R2, Witness Statement of Karen Nyholm, filed 18 December 2023, [1]; DCB, 1688.
[14] Exhibit A1, Witness Statement of Officer 1, filed 17 November 2023, Attachment JM-1; DCB p.189(A) – 189(HHHH).
[15] Ibid, [8] – [10]; DCB pg.186.
[16] Exhibit R6, Witness Statement of Bradley Sprague, filed 15 December 2023, [18]; DCB, p.501; Attachment BJS-2; DCB, p.597.
[17] Exhibit R9, Respondent’s Amended Outline of Submissions, (original Outline of Submissions filed 18 December 2023), 31 January 2024, [47]; original submissions DCB pp.326 – 327.
[18] Ibid, [51]; original submissions DCB, p.328.
[19] Ibid, [69]; original submissions DCB, p.332.
[20] Exhibit R2, Witness Statement of Karen Nyholm, filed 18 December 2023, [33]; DCB 1694.
[21] Exhibit R7, Witness Statement of Joy Arbuthnot, filed 18 December 2023, [121] – [122]; DCB pp.1191 – 1192.
[22] Exhibit R4, Witness Statement of Paul Henry, filed 15 December 2023, [24]; DCB, p.704.
[23] Exhibit R2, Witness Statement of Karen Nyholm, filed 18 December 2023, [52]; DCB p.1697; Annexure KN-18; DCB p.1931.
[24] Exhibit R4, Witness Statement of Paul Henry, filed 15 December 2023, [27]; DCB, p.704.
[25] Exhibit R2, Witness Statement of Karen Nyholm, filed 18 December 2023, [57]; DCB p.1698.
[26] Exhibit R2, Witness Statement of Karen Nyholm, filed 18 December 2023, Annexure KN-18; DCB p.1800.
[27] Exhibit R4, Witness Statement of Paul Henry, filed 15 December 2023, [37]; DCB, p.707
[28] Ibid, [41]; DCB, p.708.
[29] Exhibit A1, Witness Statement of Officer 1, filed 17 November 2023, [14]; DCB pg.186.
[30] Ibid, [15]; DCB pg.186.
[31] Ibid, [18]; DCB p.187.
[32] Ibid, [19] – [21]; DCB p.187.
[33] Ibid, [22] – [24]; DCB p.187.
[34] Ibid, [25]; DCB p.187.
[35] Ibid, [27]; DCB p.188.
[36] Ibid, [30]; DCB p.188.
[37] Ibid, [31]; DCB p.188; Attachment JM-5; DCB p.189(RRRR).
[38] Ibid, [33]; DCB p.188.
[39] Ibid, [35]; DCB p.188.
[40] Ibid, Attachment JM-6; DCB pp.189(SSSS) – 189(TTTT).
[41] Ibid, [36] – [38]; DCB p.188.
[42] Ibid, Attachment JM-7; [39]; DCB pp.188 – 189.
[43] Exhibit A3, Witness Statement of Officer 2, filed 17 November 2023, [3]; DCB, p.176.
[44] Ibid, [5]; DCB p.176.
[45] Ibid, Attachment TJ-1; DCB p.180A.
[46] Ibid, [6]; DCB p.177; Attachment TJ-1; DCB p.180A, item 2.
[47] Ibid, [19], [21], [22]; DCB p.180.
[48] Ibid, [6]; DCB p.177; Attachment TJ-1; DCB p.180A, item 2.
[49] Ibid, [7]; DCB p.177; Attachment TJ-2; DCB p.81.
[50] Ibid, [7]; DCB p.177; Attachment TJ-2; DCB p.181.
[51] Ibid, [9]; SCB p.178.
[52] Exhibit R5, Witness Statement of Joel Hughes, filed 15 December 2023, [45]; DCB p.1063; Attachment JH-12.
[53] Ibid, [46]; DCB p.1063.
[54] Ibid, [25]; DCB p.1059.
[55] Exhibit A3, Witness Statement of Officer 2, filed 17 November 2023, Attachment TJ-3; DCB p.182(B).
[56] Ibid, [11] – [12]; DCB p.178.
[57] Ibid, [14](c)(e)(f); DCB p.179.
[58] Ibid, [15]; DCB p.180.
[59] Ibid, [14]; DCB p.180.
[60] Ibid, [16]; DCB p.180.
[61] Ibid, [14]; DCB p.179.
[62] Ibid, [17]; DCB p.180.
[63] Ibid [18] – [21]; DCB p.180.
[64] Exhibit R5, Witness Statement of Joel Hughes, filed 15 December 2023, [44]; DCB p.1063.
[65] Exhibit A3, Witness Statement of Officer 2, filed 17 November 2023, [2] – [3]; DCB, p.176.
[66] Exhibit R5, Witness Statement of Joel Hughes, filed 15 December 2023, [66]; DCB p.1069.
[67] Ibid, [43]; DCB p.1063.
[68] Ibid, [43], [67]; DCB p.1063, 1069.
[69] Ibid, [67]; DCB p.1069.
[70] Ibid, [68]; DCB p.1069.
[71] Ibid, [65]; DCB p.1069.
[72] Ibid, [64]; DCB p.1069; see JH-23 for cost breakdown to deploy a member to Mount Beauty or Nathalia Stations.
[73] Exhibit A6, Witness Statement of Officer 3, filed 17 November 2023, [3]; DCB p183.
[74] Ibid, [4]; DCB p.183.
[75] Ibid, [5]; DCB p.183.
[76] Exhibit R5, Witness Statement of Joel Hughes, filed 15 December 2023, [51] – [52]; DCB, p.1064.
[77] Exhibit A6, Witness Statement of Officer 3, filed 17 November 2023, [6]; DCB p.183; see Attachment KR-1, DCB p184(A).
[78] Ibid, [7]; DCB p.184; see Attachment KR-2 (Nathalia Leave Roster); DCB p.184(B).
[79] Exhibit R5, Witness Statement of Joel Hughes, filed 15 December 2023, [56] – [58]; DCB, pp.1065 – 1066.
[80] Exhibit A6, Witness Statement of Officer 3, filed 17 November 2023, [8]; DCB p.184; see Attachment KR-3, p.184(C) –184(D).
[81] Exhibit R5, Witness Statement of Joel Hughes, filed 15 December 2023, [24]; DCB p.1059.
[82] Ibid, [40]; DCB p.1062.
[83] Ibid, [76]; DCB p.1070.
[84] Ibid.
[85] Ibid, [78]; DCB p.1071.
[86] Exhibit A7, Witness Statement of Officer 4, filed 17 November 2023, [25]; DCB p.193.
[87] Ibid, [34]; DCB p.194.
[88] Ibid, [3]; DCB p.190.
[89] Ibid, [4] – [6]; DCB pp.190 – 191; Attachment GA-2.
[90] Ibid, [7]; DCB p.191; Attachment GA-3; DCB pp.282 – 283.
[91] Ibid, [8]; DCB p.191; Attachment GA-4; DCB pp.284 – 85.
[92] Ibid, [9] – [12]; DCB p.191.
[93] See Attachment GA-5, Attachment GA-6, and Exhibit A7, Witness Statement of Officer 4, filed 17 November 2023, [13] – [16]; DCB p.191.
[94] See Attachment GA-7.
[95] See Attachment GA-8.
[96] Exhibit A7, Witness Statement of Officer 4, filed 17 November 2023, [17] – [19]; DCB p.192; Attachment GA-9.
[97] See Attachment GA-10.
[98] Exhibit A7, Witness Statement of Officer 4, filed 17 November 2023, [21] – [22], [26]; DCB p.192.
[99] See Attachment GA-11.
[100] Ibid, [28]; DCB p.193; see Attachment GA-12.
[101] Ibid, [29]; DCB p.193; see Attachment GA-13.
[102] Ibid, [30]; DCB p.193; see Attachment GA-14.
[103] Ibid, Attachment GA-15; DCB pp.300 – 302.
[104] Ibid.
[105] Exhibit A7, Witness Statement of Officer 4, filed 17 November 2023, [32]; DCB p.194.
[106] Exhibit A8, Witness Statement of Officer 5, filed 17 November 2023, [9]; DCB p.304.
[107] Ibid, [5]; DCB p.303.
[108] Ibid, [6]; DCB p.303.
[109] Ibid, [7]; DCB p.303.
[110] Ibid, [10] – [12]; DCB p.304; Attachment GT-2; DCB p.307(C) – 307(E).
[111] Exhibit A8, Witness Statement of Officer 5, filed 17 November 2023, [13]; DCB p.304; Attachment GT-2; DCB p.307(C) – 307(E).
[112] Ibid, [14]; DCB p.304.
[113] Ibid, [15]; DCB p.304.
[114] Ibid, [38] – [40]; DCB p.307.
[115] Ibid, [20]; DCB p.305.
[116] Ibid, [21]; DCB p.305.
[117] Ibid, [41]; DCB p.307.
[118] Ibid, [22]; DCB p.305.
[119] Ibid, [23]; DCB p.305.
[120] Ibid, [23]; DCB p.305; [43]; DCB p.307.
[121] Ibid, [24]; DCB p.305, see Attachment GT-4; DCB p.307(G).
[122] Ibid, [31]; DCB p.306; Attachment GT-6; DCB p.307(K) – 307(M).
[123] Ibid, [32]; DCB p.306; Attachment GT-6; DCB p.307(K) – 307(M).
[124] Exhibit R6, Witness Statement of Bradley Sprague, filed 15 December 2023, [16]; DCB p.501.
[125] Ibid, [17]; DCB p.501.
[126] Ibid, [31]; DCB p.503.
[127] Ibid, [33] – [34]; DCB p.504.
[128] Ibid, [35]; DCB p.504.
[129] Ibid, [36]; DCB p.505.
[130] Exhibit R6, Witness Statement of Bradley Sprague, filed 15 December 2023, [38]; DCB p.505; Attachment BJS-19 see file note of this conversation.
[131] See Attachments BJS-20, 21, 22.
[132] Exhibit R6, Witness Statement of Bradley Sprague, filed 15 December 2023, [40]; DCB pp.505 – 506.
[133] Ibid, [41]; DCB p.506.
[134] Ibid.
[135] Ibid, [42]; DCB p.506.
[136] Ibid, [43]; DCB p.506; Attachment BJS-24; DCB pp.670 – 677.
[137] Ibid, [44]; DCB p.506; Attachment BJS-25; DCB pp.678 – 683.
[138] Ibid, [45]; DCB pp.506 – 507.
[139] Ibid, [46] – [47]; DCB p.507.
[140] Ibid, [49]; DCB p.507; Attachment BJS-30.
[141] Exhibit R6, Witness Statement of Bradley Sprague, filed 15 December 2023, [52]; DBC p.508.
[142] Exhibit R2, Witness Statement of Karen Nyholm, filed 18 December 2023, [19]; DCB, p.1691.
[143] Ibid, Annexure KN-5; DCB, pp.1865 – 1866.
[144] Exhibit R2, Witness Statement of Karen Nyholm, filed 18 December 2023, [17], [19]; DCB p.1691.
[145] Ibid, [18]; DCB p.1691.
[146] Ibid, Attachment KN-3.
[147] Ibid, [20]; DCB p.1691.
[148] Ibid, [36] – [37]; DCB pp.1694 – 1695.
[149] Ibid, [22] – [25]; DCB p.1692.
[150] Ibid, [26]; DCB p.1692.
[151] Ibid, [33]; DCB p.1694.
[152] Ibid, [35]; DCB p.1694.
[153] Ibid, [39]; DCB p.1695.
[154] Ibid, [41]; DCB p.1695.
[155] Ibid, [44]; DCB p1696.
[156] Ibid, [49]; DCB p.1697.
[157] Ibid, [51]; DCB p.1697.
[158] Ibid, Attachment KN-18; DCB p.1931.
[159] Ibid, [54]; DCB p.1698.
[160] Ibid, [58]; DCB pp.1698 – 1699.
[161] Ibid, [62]; DCB p.1700; Attachment KN-24 and [63]; Attachment KN-25.
[162] Ibid, [64]; DCB pp.1701 – 103.
[163] Ibid, [64]; DCB pp.1701 – 103.
[164] Ibid, [64]; DCB pp.1701 – 103.
[165] Exhibit R7, Witness Statement of Joy Arbuthnot, filed 18 December 2023, [160] – [161]; DCB p.1198.
[166] Ibid, [12]; DCB p.1165.
[167] Ibid, [23]; DCB p.1167.
[168] Ibid, [33]; DCB p.1169.
[169] Ibid, [39] – [42]; DCB pp.1170 – 1171.
[170] Ibid, [44]; DCB p.1172.
[171] Ibid, [46]; DCB pp.1172 – 1173.
[172] Ibid, [48]; DCB p.1173.
[173] Ibid, [55]; DCB p.1176.
[174] Ibid, [57] – [59]; DCB p.1177.
[175] Ibid, [62] – [63]; DCB p.1178.
[176] Ibid, [68] – [85]; DCB pp.1180 – 1183.
[177] Ibid, [82]; DCB p.1182.
[178] Ibid, [102]; DCB p.1188.
[179] Ibid, [102] – [105]; DCB p.1188.
[180] Exhibit R4, Witness Statement of Paul Henry, filed 15 December 2023, [13]; DCB p.702.
[181] Ibid, [9] – [16], [24] – [27]; DCB pp.701 – 703, 704 – 705.
[182] Ibid, [27]; DCB p.704 – 705.
[183] Ibid.
[184] Ibid, [30]; DCB p.705.
[185] Ibid, [28]; DCB p.705.
[186] Ibid.
[187] Ibid.
[188] Ibid, [32]; DCB p.706.
[189] Ibid, [37]; DCB p.707.
[190] Ibid, [41]; DCB p.708.
[191] Ibid, [42]; DCB p.708.
[192] Ibid.
[193] Ibid.
[194] Ibid, [44]; DCB p.709.
[195] Ibid.
[196] Ibid, [48]; DCB p.710.
[197] Ibid, [61] – [63]; DCB pp.713 – 714.
[198] Ibid, [64] – [66]; DCB pp.714.
[199] Ibid, [67]; DCB p.715.
[200] Ibid, [59]; DCB p.713.
[201] Ibid, [54] – [56]; DCB p.711 – 712; see [57] – [58] for in-depth breakdown of the numbers.
[202] Ibid, [60]; DCB p.713.
[203] Ibid, [73]; DCB p.715.
[204] Exhibit R5, Witness Statement of Joel Hughes, filed 15 December 2023, see [9] for more information; DCB p.1056.
[205] Ibid, [37], [60]; DCB p.1061, 1068.
[206] Ibid, [61]; DCB p.1068.
[207] Ibid, [24]; DCB p. 1059.
[208] Ibid, [40]; DCB p.1062.
[209] Ibid, [76]; DCB p.1070.
[210] Ibid.
[211] Ibid, [78]; DCB p.1071.
[212] Ibid, [77]; DCB p.1070.
[213] Ibid, [74]; DCB p.1070.
[214] Ibid, [51]; DCB p.1064.
[215] Ibid, [52]; DCB p.1064.
[216] Ibid.
[217] Ibid, [25]; DCB p.1059.
[218] Ibid, [44]; DCB p.1063.
[219] Ibid, [45]; DCB p.1063; Attachment JH-12.
[220] Ibid, [46]; DCB p.1063.
[221] Ibid, [66]; DCB p.1069.
[222] Ibid, [43]; DCB p.1063.
[223] Ibid, [43], [67]; DCB p.1063, 1069.
[224] Ibid, [67]; DCB p.1069.
[225] Ibid, [68]; DCB p.1069.
[226] Ibid, [65]; DCB p.1069.
[227] Ibid, [64]; DCB p.1068; see Attachment JH-23 for cost breakdown to deploy a member to Mount Beauty or Nathalia Stations.
[228] Exhibit R5, Witness Statement of Joel Hughes, filed 15 December 2023, [55]; DCB p.1065.
[229] Ibid.
[230] Ibid, [56]; DCB p.1065
[231] Ibid, [28]; DCB p.1059.
[232] Exhibit R6, Witness Statement of Bradley Sprague, filed 15 December 2023, [16]; DCB p.501.
[233] Ibid, [17]; DCB p.501.
[234] Ibid, [18]; DCB p.501; Attachment BJS-2.
[235] Ibid, [19]; DCB p.501; Attachment BJS-3.
[236] Ibid, [20]; DCB p.501; Attachment BJS-4.
[237] Ibid, [25]; DCB p.502.
[238] Ibid, [22]; DCB p.501; Attachment BJS-5.
[239] Ibid, [23] – [24]; DCB p.502; Attachment BJS-6.
[240] Ibid, [26]; DCB p.502.
[241] Ibid, [27]; DCB p.502.
[242] Ibid 2023, [27]; DCB pp.502 – 503.
[243] Ibid, [31]; DCB p.503.
[244] Ibid, [33] – [34]; DCB p.504.
[245] Ibid, [35]; DCB p.504.
[246] Ibid, [36]; DCB p.505.
[247] Ibid, [38]; DCB p.505; Attachment BJS-19 see file note of this conversation.
[248] See Attachment BJS-20, 21, 22.
[249] Exhibit R6, Witness Statement of Bradley Sprague, filed 15 December 2023, [40]; DCB pp.505 – 506.
[250] Ibid, [41]; DCB p.506.
[251] Ibid, [41]; DCB p.506.
[252] Ibid, [42]; DCB p.506.
[253] Ibid, [43]; DCB p.506; Attachment BJS 24.
[254] Ibid, [44]; DCB p.506; Attachment BJS-25.
[255] Ibid [45]; DCB pp.506 – 507.
[256] Ibid, [46] – [47]; SCB p.507.
[257] Ibid, [49]; DCB p.507; Attachment BJS-30.
[258] Ibid, [52]; DCB p.508.
[259] Exhibit R3, Witness Statement of Ashley Mason, filed 15 December 2023, [10]; DCB p.344; Attachment AM-1; DCB pp.425 – 427
[260] Ibis, [13]; DCB p.355; Attachment AM-4; DCB pp.432 – 436.
[261] Ibid, [12]; DCB p.344; Attachment AM-3; DCB pp.430 – 431.
[262] Ibid, [11]; DCB p.344; Attachment AM-2; DCB pp.428 – 429.
[263] Ibid, [14]; DCB p.345; Attachment AM-5; DCB pp.437 – 439.
[264] Ibid, [15]; DCB p.345; Attachment AM-6; DCB pp.440 – 445.
[265] Ibid, [15]; DCB p.345.
[266] Ibid, [16]; DCB p.345; Attachment AM-7; DCB pp.446 – 451.
[267] Ibid, Attachment AM-8; DCB p.452.
[268] Ibid, [17]; DCB p.346.
[269] Ibid, [18]; DCB p.346; Attachment AM-9; DCB pp.456 – 457.
[270] Ibid, [19]; DCB p.346; Attachment AM-10; DCB pp.458 – 461.
[271] Ibid, [22]; DCB p.347; Attachment AM-12; DCB pp.464 – 467.
[272] Ibid, [23]; DCB p.347; Attachment AM-13; DCB pp.468 – 472.
[273] Ibid [24]; DCB p.347; Attachment AM-14; DCB pp.473 – 475.
[274] Ibid, [25]; DCB p.348; Attachment AM-15; DCB pp.476 – 477.
[275] Ibid, [26]; DCB p.348; Attachment AM-16; DCB pp.478 – 479.
[276] Ibid, [27]; DCB p.348; Attachment AM-17; DCB pp.480 – 481.
[277] Ibid, [28]; DCB pp.348-349; Attachment AM-18; DCB pp.482 – 485.
[278] Ibid, [29] – [31]; DCB p.349; Attachment AM-19; DCB pp.486 – 490, Attachment AM-20; DCB pp.491 – 492.
[279] Ibid, [32] – [33]; DCB pp.349 – 350; Attachment AM-21; DCB pp.493 – 497.
[280] Exhibit R4, Witness Statement of Paul Henry, filed 15 December 2023, Attachment PH-1; DCB p.782.
[281] Exhibit R9, Respondent’s Amended Outline of Submissions, (original Outline of Submissions filed 18 December 2023), 31 January 2024, [12]; original submissions DCB p.320.
[282] Australian Municipal, Administrative, Clerical and Services Union v Brimbank City Council[2013] FWC 5.
[283] The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police[2018] FWC 5695.
[284] Ambulance Victoria v Natasha Fyfe[2023] FWCFB 104.
[285] Exhibit A13, Applicant’s Outline of Submissions, 17 November 2023; DCB, p.171.
[286] Exhibit R9, Respondent’s Amended Outline of Submissions, (original Outline of Submissions filed 18 December 2023), 31 January 2024, [32]; original submissions DCB, p.324.
[287] Form F10, Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, filed 25 August 2023, Attachment 17; DCB, p.159.
[288] Ibid, Attachment 17; DCB, p.160.
[289] Exhibit R7, Witness Statement of Joy Arbuthnot, filed 18 December 2023, [105]; DCB, p.1189.
[290] Form F10, Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, filed 25 August 2023, Attachment 17; DCB, p.159.
[291] Transcript, PN 1779.
[292] Exhibit R7, Witness Statement of Joy Arbuthnot, filed 18 December 2023, [6]; DCB, p.1164.
[293] Ibid, [12]; DCB p.1165.
[294] Exhibit R9, Respondent’s Amended Outline of Submissions, (original Outline of Submissions filed 18 December 2023), 31 January 2024, [73] – [74]; original submissions DCB, p.335.
[295] Applicant’s Outline of Submissions in Reply, filed 19 January 2024, [53]; DCB p.316.
[296] Attachment JA–7 and JA–8; see also Exhibit R9, Respondent’s Amended Outline of Submissions, (original Outline of Submissions filed 18 December 2023), 31 January 2024, [75]; original submissions DCB, p.336.
[297] Exhibit R9, Respondent’s Amended Outline of Submissions, (original Outline of Submissions filed 18 December 2023), 31 January 2024, [75] – [76]; original submissions DCB p.336.
[298] Ibid, [79], [82]; DCB, pp.336 – 337.
[299] Exhibit R7, Witness Statement of Joy Arbuthnot, filed 18 December 2023, [93](a); DCB, p.1185.
[300] Ibid, [93](b), (f); DCB, pp.1185 –1186; Exhibit R4, Witness Statement of Paul Henry, filed 15 December 2023, [60]; DCB, p.713.
[301] Exhibit R7, Witness Statement of Joy Arbuthnot, filed 18 December 2023, [93](c), (d); DCB p.1185.
[302] Ibid, [94]; DCB p.1185.
[303] Exhibit R4, Witness Statement of Paul Henry, filed 15 December 2023, [67]; DCB p.715.
[304] Exhibit R5, Witness Statement of Joel Hughes, filed 15 December 2023, [24]; DCB, p.1059.
[305] Ibid, [66]; DCB p.1069.
[306] Ibid, [43]; DCB p.1063.
[307] Ibid, [43], [67]; DCB p.1063, 1069.
[308] Ibid, [67]; DCB p.1069.
[309] Ibid, [68]; DCB p.1069.
[310] Ibid, [65]; DCB p.1069.
[311] Exhibit R5, Witness Statement of Joel Hughes, filed 15 December 2023, [64]; DCB p.1068; see Attachment JH-23 for cost breakdown to deploy a member to Mount Beauty or Nathalia Stations.
[312] Exhibit R4, Witness Statement of Paul Henry, filed 15 December 2023, [61] – [63]; DCB pp.713 – 714.
[313] See Exhibit A3, Witness Statement of Officer 2, filed 17 November 2023, [10]; DCB p.178; Exhibit A6, Witness Statement of Officer 3, filed 17 November 2023, [4]; DCB p.183; Exhibit A7, Witness Statement of Officer 4, filed 17 November 2023, [22]; DCB p.192; Exhibit A8, Witness Statement of Officer 5, filed 17 November 2023, [22]; DCB p.305, Exhibit R4, Witness Statement of Paul Henry, filed 15 December 2023, [26]; DCB p.704.
[314] [2024] FWC 173.
[315] Ibid, [125].
[316] Ibid, [133].
[317] Ibid, [134], [139], [140], [150], [186].
[318] Ibid, [141], [153], [189].
[319] Ibid, [151].
[320] Ibid, [160].
[321] Ibid, [167], [168], [172], [173], [190].
[322] Ibid, [178], [179].
[323] Ibid, [196].
[324] Ibid, [198], [199]; with reference to Australian Municipal, Administrative, Clerical and Services Union v Brimbank City Council[2013] FWC 5, [15] – [16].
[325] Goldsworthy v Victoria Police [2024] FWC 173, [204].
[326] Natasha Fyfe v Ambulance Victoria[2023] FWC 49.
[327] Applicant’s Supplementary Submissions on the import and application of the Goldsworthy decision to the present proceeding, 28 March 2024, [8].
[328] Respondent’s Supplementary Submissions on the import and application of the Goldsworthy decision to the present proceeding, 28 March 2024.
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