Police Federation of Australia v Chief Commissioner of Victoria Police T/A Victoria Police
[2025] FWC 208
•22 JANUARY 2025
| [2025] FWC 208 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.240 - Application to deal with a bargaining dispute
Police Federation of Australia & Ors
v
Chief Commissioner of Victoria Police T/A Victoria Police
(B2025/8)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 22 JANUARY 2025 |
Alleged dispute concerning previous FWC decision and no agreed matters between parties
On 6 January 2025, the Police Federation of Australia (PFA) made an application to have the Fair Work Commission (Commission) deal with an ongoing bargaining dispute. The dispute arises out of enterprise negotiations between the Chief Commissioner of Victoria Police T/A Victoria Police (Victoria Police) and the Police Federation of Australia (Victorian Branch) for a proposed enterprise agreement (Proposed Agreement) to replace the Victoria Police (Police Officers, Protective Service Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (the 2019 Agreement).
The factual background to the bargaining of the Proposed Agreement has been summarised in the decision of Commissioner Allison in the Chief Commissioner of Victoria Police T/A Victoria Police v Police Federation of Australia & Ors[1], I do not intend to repeat it in full in this Recommendation. However, for context in June 2024 after a year of negotiations, Victoria Police and the PFA reached an “in-principle” agreement including an agreement on wages, allowances and a significant roster change. On 26 July 2024, the “in-principle” agreement (Rejected Agreement) was voted down by members of the police force which led to the PFA making a protected action ballot order (PABO) application. Shortly after, Victoria Police lodged an application pursuant to s.240 for this Commission to deal with a bargaining dispute. A conference was held for the PABO on 6 September 2024 and for the s.240 dispute on 24 September 2024 however parties were unable to reach an agreement. On 30 September 2024, Victoria Police then lodged an application for an intractable bargaining declaration.
The application for an intractable bargaining declaration was heard on 18 November 2024. In her decision on the 3 January 2024 the Commissioner dismissed the application determining not to grant the declaration and expressed the following view:
[134] While I am of the view it is not rationally improbable that the parties will reach agreement, I also recognise that bargaining in the short term will continue to be challenging. The Commission can assist the parties with this. A further s.240 conference out of the shadow of an impending intractable bargaining application-may well benefit the parties. I encourage the parties to lodge a fresh s.240 application. The Commission will look to accommodate the parties as soon as they are ready.[2]
Subsequent to the Commissioners decision, on the 6 January 2025 the PFA made the current application (the Application) pursuant to s.240 of the Fair Work Act 2009 (Cth) (the Act). In the Application the PFA noted that there were “currently no agreed matters between the parties”.
On 7 January 2025, the PFA, Individual Bargaining Representatives (IBRs) and Victoria Police were directed to confer and file joint submissions outlining the matters that remained in dispute. The parties complied with the directions and filed joint submissions on 14 January 2025 submitting that there were “no agreed matters” because the majority of claims remained unresolved.
The Application was listed for a full day conference before this Commission which took place on Thursday, 16 January 2025. During the conference I sought submissions and the views of each of the IBRs, the PFA and Victoria Police and I make the following observations. The circumstances leading up to the lodging of the Application have had a significant effect on the bargaining relationship and there was a low level of trust between the parties. Consequently, during the first conference a significant amount of time was invested in obtaining an agreed undertaking as to how the parties would conduct themselves in the bargaining process moving forward to ensure the Commission could be satisfied that the parties were committed to a fair and transparent process with the intention of reaching an agreed outcome.
The IBRs, Victoria Police and the PFA agreed to an undertaking in which they committed to comply with the process proposed by this Commission. After what can only be described as lengthy and robust negotiations the parties were able to productively resolve a significant number of matters narrowing the scope of those matters that remained in dispute. The scope of the remaining matters identified as being in dispute were recorded in a joint Position Paper 18 January 2025 that the parties agreed accurately reflected the outcomes of the first conference and are summarised below:
A. Introduction of a Divisional Mobility model- Victoria Police tabled its claim for a Theme-based Position Framework to support an adaptive and agile workforce. The PFA strongly rejected this claim and informed the Commission that to obtain support from its members for the Proposed Agreement they would need Victoria Police to withdraw the claim.
B. Introduce mandatory Correspondence Shifts at 24-hour police stations- The PFA submit that general duties members at busy 24-hour police stations do not get sufficient time to complete correspondence. The Rejected Agreement contained provision for one correspondence day per month. The PFA held a strong view that this was a critical issue for its members. The PFA held the position that they would not withdraw the claim however were amenable to negotiating on how the claim could be achieved.
C. Clothing Equalisation (clauses 94, 95 and 174)- The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) have advised Victoria Police that over the life of the Proposed Agreement, there is a need to equalise the clothing allowance for all genders. VEOHRC state that the current arrangement is inherently discriminatory. Victoria Police proposed the current annual civilian clothing and current annual uniform allowance provisions be converted to a daily allowance. Whilst Victoria Police and the PFA were in agreement on the principle, there was disagreement about how to achieve the reform without costs significantly exceeding the costs of the current arrangements and the PFA strongly opposed the allowances being converted to a daily rate submitting it was likely to disadvantage its female members.
D. Special Operations Group Disturbance Allowance- The PFA strongly advocated for a specialist allowance for the Special Operations Group (SOG) maintaining its justification for SOG being provided with the Disturbance Allowance entitlement due to the significant frequency of roster changes.
E. Operational Readiness and General Duties Allowance- The PFA maintained that members are currently performing unpaid work when undertaking any activities including kitting up, de-kitting and participating in handovers, outside of their rostered shifts. Victoria Police submitted that a 1966 Police Service Board determination provided new terms and conditions for police, which included the requirement for overtime duty to be a continuous period of 30 minutes or more. The recasting of the overtime provision included that the incidence of overtime worked has always been a factor taken into account in fixing salaries, in granting compensatory allowances and in determining the amount of annual leave. Victoria Police submit in fixing and increasing salaries, compensatory allowances and annual leave, the obligation to work, and the incidence of overtime has already been taken into account.
F. Parental Leave- It was proposed that parental leave provisions were consistent with changes to the national employment standards and/or captured by the Victoria Public Service (VPS) parity clause and should be included in the Replacement Agreement. Whilst the parties agreed with the principle that Victoria Police members on Primary Caregiver Parental leave or Additional Paid Secondary Caregiver Parental leave should not be financially disadvantaged, further negotiations were required so that the intent of the VPS parity provision was carried into the Replacement Agreement in a manner that reflects the uniqueness of the Victoria Police sworn working practices.
G. Wages- The Parties acknowledge that Victoria Police is bound by the Victorian Public sector wages Policy (Wages Policy), which places restrictions and obligations on Victoria Police when negotiating a wages outcome. The Wages Policy has three pillars. The parties were in agreement that Pillar 1 and 3 were most relevant to the wages negotiations. Further, Victoria Police is also subject to the Enterprise Bargaining Framework which sets out the approval requirements a government agency must meet before commencing and whilst bargaining. The parties acknowledged the framework however were not in agreement on the proposed wages outcome.
H. Backpay- The PFA maintained its claim for backpay for its members submitting the length of the bargaining process had an adverse effect on the members. The parties acknowledged that the general principle in Government Wages Policy is that back pay is not provided. However, Victoria Police acknowledged the “patience in bargaining” required the appropriate recognition.
At the conclusion of the first conference the parties requested a further conference be conducted at the Commissions earliest convenience. The second full day conference was conducted on Sunday, 19 January 2025. At the commencement of proceedings, the parties were reminded of the undertaking they had given to a fair and transparent process. The matters in dispute were addressed in an order proposed by this Commission. The negotiations were extensive with the PFA and Victoria Police exhausting options for resolution on those matters with the benefit of the IBRs providing operational insights. Consequently, at the conclusion of the conference the parties had again narrowed the scope of matters in dispute and the joint Position Paper was updated to reflect the agreed outcomes of the conference. For reasons that will become apparent it is important to note that the parties conferred and agreed the joint Position Paper accurately reflected the outcomes of the second conference.
It is also necessary to acknowledge that at times during the conference, negotiations were strenuous for both parties. I therefore commend the parties for their commitment to the resolution of the matters in dispute and the effectiveness of their negotiations during the conference held in their personal time. At the conclusion of the conference the parties requested that the Commission hold a further conference to assist the parties to resolve the matters that remained in dispute.
The parties returned to the Commission for a further conference on Monday, 20 January 2025. Again, the parties complied with the undertaking attempting to resolve the matters that remained in dispute. At the conclusion of the conference the parties had reached an agreement on the majority of the matters in dispute. The remaining issues to be resolved were the IBR’s claims and the PFA’s claim that members are currently performing unpaid work when undertaking any activities, including kitting up, de-kitting and participating in handovers outside of their rostered shifts. The PFA sought wages outcomes to resolve this matter. The final matter that remained in dispute was a quantum sought by the PFA to compensate its members for the period they have not been provided with a pay increase as the consequence of ongoing negotiations. Again, the joint Position Paper was updated to accurately reflect the outcomes of the conference. The parties again requested that the Commission continue to assist with the resolution of the those matters that remained unresolved.
A further full day conference was held on Tuesday, 21 January 2025. During the conference the IBRs claims were resolved by way of undertakings. The undertakings obtained by Mr Glinski, Mr Lazarus, Mr MacDonald, and Mr Browne committed the parties to a full assessment of the claims throughout the life of the Agreement. This is a significant outcome because those bargaining representatives recognised the opportunity to achieve innovative outcomes to resolve what could be described as a systemic issue within Victoria Police. Victoria Police also provided an undertaking to engage with the IBRs 12 months prior to the next round of negotiations so that the parties could assess the outcome of the projects undertaken prior to the commencement of negotiations.
Further, to assist with the resolution of the claims Victoria Police have agreed to amend Schedule B of the Replacement Agreement which outlines the Protective Services Officers (PSO) Capability allowance to separate the existing table, which covers all PSO ranks, into two separate tables for the PSO Capability allowance, to distinguish between PSO Sergeant, PSO Senior Sergeant and other PSO grades. The full details of the undertakings are recorded below in this Recommendation.
The parties again negotiated in good faith exhausting options for resolution of the outstanding issues. Proceedings concluded at around 7:30pm with the parties reaching an agreed position resolving the remaining issues in dispute. The Position Paper now titled Position Reached 21 January 2025 was updated and amended in joint conference to accurately reflect the parties agreement.
The Act provides that the Commission may make a recommendation or express an opinion arising out of an agreement negotiation dispute conference. At the conclusion of the conference on 21 January 2025, I informed the parties that the position reached would be published in a Recommendation issued by this Commission.
Recommendation
The parties have agreed to the issuing of the following Recommendation which details the agreed position reached and recorded in the “Victoria Police Enterprise Bargaining s.240 FWA Position Reached paper dated 21 January 2025” (Position Reached Paper 21 January 2025). The Commission therefore makes the following recommendations in respect of the matters in dispute:
1. Introduction of a Divisional Mobility Model – PFA objects to the claim and Victoria Police has agreed to withdraw this claim.
2. Introduce mandatory Correspondence Shifts at 24-hour police stations- The parties agree that:
a. From 1 September 2025, a minimum of 10 correspondence shifts will be rostered for full-time employees engaged in General Duties at a 24-hour Police Station.
b. Correspondence shifts should be rostered in a pattern of one every month.
c. The clause will be drafted in the same terms as that drafted in the Rejected Agreement.
The parties further agree that:
d. The Right to Disconnect provision remains as per the 2019 Agreement.
3. Clothing Equalisation (clauses 94, 95 and 174)- The parties agree to:
a. Equalise civilian clothing allowance for all genders moving the current male rate to the female rate as indexed over the life of the agreement.
b. The allowance rate will be indexed by the same amount and at the same time as the Pillar One general wage outcome.
4. Special Operations Group Disturbance Allowance – The parties agree to:
a. Provide the Tactical Operatives within the Special Operations Group, the annual Disturbance Allowance level 2 entitlement.
b. The Clause will be drafted in the same terms as that drafted in the Rejected Agreement.
5. Operational Readiness Allowance- The parties agree to:
a. Introduce an Operational Readiness allowance of 1% of Schedule A payable to all eligible members. The Operational Readiness allowance is a compounding, all purpose, superannuable allowance.
b. The parties agree to introduce a General Duties allowance of 0.5% of Schedule A payable to all eligible members. The General Duties allowance is a compounding, all purpose, superannuable allowance.
c. For the avoidance of doubt, Schedule A contains the ordinary salary rates for the base pay for all members. The rates in the 2019 Agreement (adjusted by 1.75% from 1 December 2023) would be uplifted by 3% per annum in the Proposed Agreement becoming a new Schedule A. This will be the basis for which the Operational Readiness and General Duties allowance would be calculated
5.1 Due to the history of negotiations, to ensure clarity to members when considering the proposed agreed Position Reached, the parties determined that it was necessary to commit to the drafting of the agreed principles and a draft Clause outlining the eligibility and applicability during the conference held by this Commission. The agreed principles and draft Clause are now included in this Recommendation at attachment A.
5.2 The parties agree that in order to offset the significant cost of these Allowances, that clauses 120 and 121 of the 2019 Agreement are “sunsetted” at 31 December 2025. This means that these clauses would cease to operate after 11:59pm on 31 December 2025. This is the latest time for members to make an application under the provisions of these clauses.
6. Parental Leave - The parties agree to the principle that members going on paid Primary Caregiver Parental leave or Additional Paid Secondary Caregiver Parental leave should not be financially disadvantaged. The parties agree that:
a. Shift penalties will be calculated up to the previous 12 months prior to the member commencing restricted duties (if applicable). The rate the employee will be paid while on leave will be calculated on the basis of the shift penalty payments paid to the employee in the previous 12 months as a percentage of their salary.
7. Wages:It is necessary to acknowledge the beforementioned framework under which wage negotiations outcomes are governed. Due to the process undertaken by the parties before this Commission the parties were able to explore alternative outcomes to reach an agreement on a more favourable position. The parties agree to the below wages offer:
Pillar 1.
·3% per annum salary increase for all members (the allowance will be Superannuable, Compounding and All Purposes)
·0.5% fortnightly payment across the life of the Agreement for all members (the allowance will be Superannuable)
Pillar 3.
·1% Operational Readiness Allowance all members (Superannuable, Compounding, All Purposes)
·0.5% General Duties Allowance for general duties members at stations (the allowance will be Superannuable, compounding and all purposes)
·Pay rises will be commence from the authorised offer is made and then:
o1 June 2025
o1 June 2026, and
o1 June 2027.
oThe nominal expiry date of the Proposed Agreement is 31 May 2028.
Note: The parties agree in addition to the agreed outcomes in this Recommendation the above wages offer represents that all members will receive a 4.5% uplift to wages and General Duties members will receive a 5% uplift to wages.
8. Patience in Bargaining lump sum agreement: The parties agree to a once-off lump sum payment to be characterised as a Patience in Bargaining payment. The parties agree the Patience in Bargaining payment will:
a. be paid at the earliest opportunity following commencement of the Agreement
b. The Patience in Bargaining payment will be derived from Salary and Salary-Based Allowance increases including Pillar 1 wages Policy entitlements, the Operational Readiness Allowance and the General Duties Allowance, as if it were paid to members for the period between 1 June 2024 and the date that is the day before the government approved offer is made to the individual bargaining representatives and the PFA.
8.1 The offer in respect of the Patience in Bargaining payment is conditional on acceptance of the package by the Victoria Police workforce. Should this package not be accepted, any future offers will not contain this payment.
The IBRs, PFA and Victoria Police have undertaken to seek endorsement of this Recommendation which is the Commissions record of the agreed position reached by the parties in the Position Reached paper of 21 January 2025 and report the outcome back to the Commission by no later than 5:00pm, Thursday 23 January 2025. Should this Recommendation be endorsed the parties will take the necessary steps required to expediently resolve any drafting issues in the Proposed Agreement so it can proceed to a vote at the earliest time available to the parties whilst complying with the necessary legislative requirements.
If the Recommendation is endorsed, then the Commission will hold the file open to provide the Victoria Police members some assurance that the Commission will assist the parties with any matters that arise that would ultimately cause a delay in putting the agreement to a vote.
Should either party advise the Commission that the Recommendation has not been endorsed then the Commissions file will be closed, and the parties face the realistic risk of a long drawn out litigation process which in my view would ultimately result in an adverse effect on the bargaining power of the parties. Therefore, in all the circumstances, I encourage the members of the Victoria Police and Victorian Government to endorse the Agreed Position reached during the four conferences held by this Commission.
I commend the parties for their courage in engaging in a process conducted by this Commission which was largely unfamiliar to them. I also acknowledge that whilst the parties undertook robust negotiations, they were diligent in complying with the onerous requirements of the Commission during the bargaining process. The parties compliance has resulted in the Position Reached paper which provides a detailed record of the parties progress to reaching an agreed position that this Recommendation has formally recorded.
COMMISSIONER
[1] [2025] FWC 1.
[2] [2025] FWC 1, [134].
Printed by authority of the Commonwealth Government Printer
<PR783558>
Victoria Police Undertaking to Resolve the TSU Claim
Victoria Police provides the following undertaking to the IBRs representing TSU members, to address the claims they brought on their behalf.
This undertaking is given on the understanding that Fair Work Commissioner Harper-Greenwell has advised the TSU IBR representatives that their claims relating to the extension of the Disturbance Allowance – Level 2, to TSU members and other workplace reforms will not be incorporated into the Victoria Police EBA 2025.
Victoria Police undertakes as follows:
The Victoria Police Enterprise Bargaining Team (EBA Team) will engage with TSU IBRs in relation to prospective claims which may be made on behalf of the TSU Cohort, 12 months prior to the expiry of the 2025 Agreement, to ensure there is sufficient time to fully consider any claims which may be made.
No later than 3 months after certification of the 2025 EBA, Human Resources Command will engage with TSU IBRs to establish a joint project team comprised of TSU members, TSU Management and HRC members, which will:
oreview the operation and interplay of allowances and working conditions which apply to TSU members, as follows:
§the operation of and interplay between the recall to duty, the COT allowance and how these allowances applies to members on availability
§review management and work practices to identify opportunities to clarify terms and conditions, support improved productivity, work life balance and workplace safety.
oA report which outlines the outcomes of the project work is to be completed and made available to the EBA Team, TSU IBRs and the PFA 12 months prior to the expiry of the 2025 Agreement, so the project work outcomes can inform the development of the next EBA.
Luke Cornelius APM
Assistant Commissioner
Human Resources Command
21 January 2025
Victoria Police Undertaking to Resolve the PSO Claim
Victoria Police provides the following undertaking to Mr Michael Glinski, IBR representing PSO Senior Sergeants, to address the claims he brought on their behalf.
This undertaking is given on the understanding that Fair Work Commissioner Harper-Greenwell has advised Mr Glinski that his substantive claims relating to salary and allowances uplift will not be incorporated in to the Victoria Police EBA 2025.
Victoria Police undertakes as follows:
The Victoria Police Enterprise Bargaining Team will engage with Mr Glinski in relation to prospective claims which may be made on behalf of the PSO Senior Sergeant Cohort, 12 months prior to the expiry of the 2025 Agreement, to ensure there is sufficient time to fully consider any claims which may be made
The Replacement Agreement (EBA 2025) will amend the Schedule B table which outlines the Protective Services Officers Capability Allowance to separate the existing table, which covers all PSO ranks, into two separate tables for the PSO Capability Allowance, to distinguish between PSO Sergeant – PSO Senior Sergeant and other PSO grades. Accordingly there will be one table to cover the PSO Sergeant – PSO Senior Sergeant ranks, to be labelled “Protective Services Officers Sergeant and Senior Sergeant Capability Allowance” and a second table to cover the PSO-1 – PSO Senior 10 ranks, to be labelled “Protective Services Officers PSO-1 – PSO Senior 10 ranks Capability Allowance”.
Luke Cornelius APM
Assistant Commissioner
Human Resources Command
21 January 2025
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