Police Federation of Australia v Victoria Police/Chief Commissioner of Police
[2014] FWC 685
•7 FEBRUARY 2014
[2014] FWC 685 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Police Federation of Australia
v
Victoria Police/Chief Commissioner of Police
(C2013/4366)
COMMISSIONER BISSETT | MELBOURNE, 7 FEBRUARY 2014 |
Alleged dispute concerning clauses 16.10 and 22.3(e) of the Agreement (AG2011/12253).
[1] The Police Federation of Australia – Victoria Police Branch (PFA) had made an application to the Fair Work Commission (the Commission) to deal with a dispute pursuant to the Victoria Police Force Enterprise Agreement 2011 (the Agreement). The dispute relates to the eligibility of its member Senior Sergeant Fielding to receive a civilian clothing allowance and commuted overtime (COT) allowance for a 12 month period as part of salary maintenance under sub-clause 22.3(e) of the Agreement.
[2] The determination of this matter requires a consideration of whether Senior Sergeant Fielding was entitled to those allowances on a permanent or temporary basis.
Jurisdiction
[3] Subclause 22.3(e) of the Agreement states
(e) Surplus as a result of Organisational Change
Where an employee is declared surplus in accordance with sub-clause 16.9 or sub-clause 16.10 and is placed in a position which is the same or higher in remuneration the employee will be entitled to the salary, terms and conditions of the new position. Where the placement is to a position with a lower remuneration rate, the employee’s salary and allowances (of a permanent nature) will be maintained for a maximum period of 12 months from the date of placement at which time the employee’s remuneration level will revert to the lower remuneration of the new position.
[4] Senior Sergeant Fielding, prior to his redeployment, was in receipt of both the civilian clothing allowance and COT allowance. The dispute is whether he was in receipt of these on a permanent basis or not.
[5] The COT allowance is payable in accordance with clause 44 of the Agreement. The civilian clothing allowance is payable in accordance with clause 88 of the Agreement.
[6] I am satisfied that the matter is dispute is a matter arising under the Agreement.
[7] I am further satisfied that the PFA and the Victoria Police have sought to resolve the dispute using the dispute settling procedure of the Agreement and that this has not been successful.
[8] I am therefore satisfied that the Commission has jurisdiction to deal with the matter in dispute in accordance with the dispute settling procedures of the Agreement.
Background
[9] Senior Sergeant Fielding was the OIC Knox Sexual Offences and Child Abuse Unit (Knox SOCAU). He had worked at Knox SOCAU and its predecessor unit from about 1986.
[10] On 19 July 2009 the Victoria Police announced an organisational change to the operation of the Sexual Offences and Child Abuse Units (SOCAU). The duties to be performed by the members in SOCAU were to be expanded to include investigations of sex-themed crimes in addition to the work already carried out by the SOCAU. The restructured units were to be known as Sexual Offences and Child Abuse Investigation Teams (SOCIT).
[11] On 29 September 2009 a document was sent by email to all SOCAU employees by the Victoria Police.1 The document provided general information with respect to the ‘SOCIT transition’. The document provides, as is relevant to Knox 2 and this application, that:
● All units in each phase will be provided with 13 months to undertake the development required to undertake the Capability Assessment process to be matched against the new [SOCIT] position descriptions 3 (transition);
● Phase four sites, including Knox SOCAU, would commence the transition in January 2011;
● The transition process would involve the enrolment in and completion of required training including the Filed Investigators Course (FIC);
● Capability Assessment Process for Phase four sites would occur in January 2012;
● A member found to require further development through the Capability Assessment Process would not be attached to a new position description but given 6 months to further develop their skills;
● A member found to be still unsuitable through the Capability Assessment Process will be subject to redeployment in accordance with the mobility process (set out on page 16 of the document);
● Once the member has successfully completed the specified criteria they are to be matched to a position at the relevant SOCIT;
● Members who chose not to transition (or, by reference, are found unsuitable through the Capability Assessment Process) have two options:
- Option 1 involves discussion with the Divisional Leadership Group who will discuss with the member suitable positions in the region and attempt to facilitate placement;
- Option 2 (if option 1 is not viable) provides that a member will be eligible for redeployment in accordance with Section 11.1 of the Mobility Policy. In accordance with the policy Force Redeployment Group will scan for an employee’s preference from the declared date. If a suitable position is not able to be identified a position for which the employee holds the requisite skills, experience and qualifications will be identified. If a suitable position is identified a first formal offer of redeployment will be offered to the member. If this is rejected a second position will be identified which the member must accept.
[12] In November 2012, following an extended transition period, Senior Sergeant Fielding was advised that he was deemed ‘not competent to perform the role of Detective Senior Sergeant at Knox SOCIT.’ 4 Why such a decision was reached and the process by which it was reached is not relevant to the matter before me.
[13] Senior Sergeant Fielding had been in receipt of a civilian clothing allowance since 2002.
[14] Senior Sergeant Fielding commenced receipt of the COT allowance in July 2011, apparently backdated to February 2011 when the SOCIT transition for Knox commenced.
[15] There are two matters to determine with respect to this application:
(i) Whether Senior Sergeant Fielding was declared surplus as a result of organisational change and, if so, the date of his ‘placement’ for the purposes of sub-clause 22.3(e) of the Agreement; and
(ii) Whether Senior Sergeant Fielding was in receipt of the COT allowance or the civilian clothing allowance on a permanent basis such that they should be taken into account for salary maintenance purposes in accordance with sub-clause 22.3(e) of the Agreement.
Civilian clothing allowance
[16] Prior to the announcement of the state wide SOCIT transition Senior Sergeant Fielding was in receipt of the civilian clothing allowance. Senior Sergeant Fielding had been in receipt of this allowance since 2002.
[17] Clause 88 of the Agreement provides:
88. Civilian Clothing Allowance
88.1 An employee...required to work in civilian clothes shall be paid an annual allowance as specified in Schedule C.
88.2 An employee who is required to have and maintain a uniform and is directed from time to time to work in civilian clothes will be paid a daily allowance as specified in Schedule C for each day of such work.
...
88.4 An employee is not able to be in receipt of an annual uniform clothing allowance and an annual civilian clothing allowance at the same time.
[18] In his position of OIC Knox SOCAU Senior Sergeant Fielding was required to wear civilian clothing. The allowance had been paid to him for approximately 11 years. This is accepted by Victoria Police. Had his circumstances not changed he would still be receiving the allowance.
[19] There is no evidence that Senior Sergeant Fielding received a uniform allowance (that would have mitigated his claim that the civilian clothing allowance was permanent in nature). Further, there is no evidence that Senior Sergeant Fielding received of the civilian clothing allowance because he was ‘directed from time to time to work in civilian clothes’.
[20] It is difficult to see how it could be maintained that an allowance which had been paid for 11 years and would have continued to be paid but for the change could be determined as anything but a permanent allowance.
COT allowance
[21] During the Knox SOCIT transition period Senior Sergeant Fielding became eligible for and received the COT allowance. The allowance was back paid to 30 January 2011. Senior Sergeant Fielding was not eligible for, and does not claim he was eligible for, the allowance prior to SOCIT transition.
[22] Clause 44 of the Agreement provides:
44. Commuted Overtime Allowance
44.1 An employee not above the rank of Senior Sergeant employed as a Detective or performing similar duties or determined by the employer as having a similar pattern of work as Detectives, must be paid a commuted overtime allowance in lieu of any payment of overtime worked, or any recall to work in accordance with Schedule B.
[23] It is apparent from the wording of the clause that an employee does not need to be employed as a detective to receive the COT allowance. An employee performing ‘similar duties’ or having ‘a similar pattern of work as a Detective’ is entitled to the allowance. To this extent the entitlement to the allowance is enlivened by either classification or by duties performed.
[24] Victoria Police submits that the payment of COT to Knox SOCAU members was discussed at a number of Knox transition meetings. The issue was finally resolved at the meeting of 12 July 2011. Victoria Police submits that COT was paid on a temporary basis in accordance with the minutes of the 12 July meeting. The minutes state that ‘Members now understand the requirements – can only be given when performing the role.’ 5 That is, transitioning members were paid COT only while they were performing detective duties or working a similar pattern of work.
[25] The minutes of the Knox SOCIT transition meetings, 6 in relation to the COT allowance, indicate the following discussion:
February 2011: | It was to be established when COT allowance was to apply; |
March 2011: | The COT allowance was only attached to those members attached to detective positions. Superintendent Forti was to give consideration on the timing of the allowance for all SOCIT members; |
April 2011: | The matter was carried over to next meeting; |
May 2011: | Reports were to be submitted and it was suggested a date be set for the start of the allowance ‘for those employees that are staying on’; |
July 2011: | ‘Issue sorted out, and commuted overtime starts as of this Thursday. Members now understand the requirements – it can only be given when performing the role.’ |
[26] Despite the submissions of the PFA I do not accept that the absence of the word ‘temporary’ in the minutes of the Knox SOCIT transition meeting of July 2011 means the allowance was permanent. By the same logic that the word ‘permanent’ does not appear would suggest that the allowance was not permanent.
[27] The PFA seek to rely on the negotiations between the PFA and Victoria Police on the SOCIT transition arrangements to support its contention that the COT allowance was permanent in nature.
[28] Correspondence from Ms Tania Farha, Senior Manager, SOCIT Project to the PFA on 9 September 2009 states:
The SOCIT Project Team agrees that commuted overtime allowance should be paid to all members at the transitioning sites once the unit has agreed to take responsibility for the investigation of all sexual offences and child abuse cases. 7
[emphasis added]
[29] This letter indicates that the payment of the COT allowance was dependent on the employees concerned performing ‘similar duties’ to the work of detectives. It does not support a contention that the allowance was permanent.
[30] Victoria Police rely on the evidence of Detective Senior Sergeant Nairn that members received COT allowance when performing investigative duties or working a pattern of work similar to a detective. He says the allowance would not be paid unless both the unit and the individuals could show they were undertaking the investigative work. The extent of evidence required for this purpose varied between the various divisional commanders. 8 If a member was successful in transition they were then transferred to a SOCIT investigative position and, at that point, the COT allowance became permanent.9 Detective Senior Sergeant Nairn says that the payment of the COT allowance was not permanent:
[I]t was only while they were performing those duties, and it was also dependent on whether or not they were successful with the transition, because if they weren’t successful with the transition they were going to be redeployed to somewhere else within the organisation that, unless they were a detective to begin with, almost certainly wouldn’t involve an investigative role. 10
[31] Detective Senior Sergeant Nairn evidence is also that, while he was not present at the July 2011 Knox SOCIT transition meeting, he had made it clear in the meetings he had attended that the COT allowance was payable for the period that employees were involved in investigative duties during the transition period. 11
[32] Victoria Police say that weight can be given to this evidence as Detective Senior Sergeant Nairn was involved in the transition process. The PFA say I should not give weight to this evidence as he was not present at the negotiations between the parties as to transition arrangements in 2009, he was never the manager of the SOCIT co-ordination unit, he was not present at the Knox SOCIT transition meeting in July 2011, he had no role in determining when the allowance would be paid and his evidence was contradicted by Mr Nerio Baldini.
[33] The evidence of Mr Baldini, Industrial Officer for the PFA, was that his discussions with Victoria Police meant:
that as members took on the additional duties related to the SOCIT investigation, that they would be eligible for the commuted overtime allowance. There was some discussion around whether that was the transition date and we argued quite strongly that it was related to their duties, and in fact a number of members, or a number of the SOCIT sites received the commuted overtime allowance prior to their transitioning because they were doing the duties, and so the term permanent simply never came into it. They went from SOCAU to SOCIT and that was the end of the story. 12
[34] Further, he said that whilst the PFA was never told it would be a permanent allowance it was never told it would be a temporary allowance. 13
[35] In addition Mr Baldini said that:
[the permanent nature of the allowance was] not just an assumption from the Police Association. The tenor of the discussions was that it would be the allowance that would be applied to the members. So it wasn’t something that we simply assumed and got wrong, this was discussed quite extensively and on quite a few different occasions. Because as I said, in the initial discussions we were concerned that the force was not going to pay the commuted overtime allowance under the new SOCIT model. 14
[36] It appears to me there is no conflict between the evidence of Mr Baldini and Detective Senior Sergeant Nairn. Mr Baldini’s evidence indicates that there was agreement that, under SOCIT, employees would receive the COT allowance on a permanent basis. But Senior Sergeant Fielding was never in SOCIT. He was never transferred to a SOCIT PD. The matter in dispute here is not what was to occur for SOCIT on an ongoing basis but whether the allowance was considered permanent for all employees undergoing SOCIT transition.
[37] Senior Sergeant Fielding received the COT allowance for the period he was in SOCIT transition. He would have continued to receive the allowance had he successfully completed transition and been transferred to a SOCIT PD although he says there was never any mention of the COT allowance being temporary in nature.
[38] Ongoing payment of the COT allowance is clearly dependent on successful transition. In late 2012 Senior Sergeant Fielding was not matched to a position in SOCIT. He was no longer transitioning once he was deemed not to have successfully completed the capability assessment process. It is difficult to see how he could have continued to receive the COT allowance.
[39] The nature of the SOCIT transition was such that payment of the COT allowance during the transition period was based on the employees performing similar duties to that of detectives. On this basis the allowance was paid. Once Senior Sergeant Fielding ceased transition and was not in a SOCIT position he was no longer performing ‘similar duties’ such that the allowance was payable.
[40] The PFA also relies on what was shown on Senior Sergeant Fielding’s payslip 15 as to the permanency of the allowance. The payslips, in my view, are not conclusive in determining if the allowances were permanent in nature. The older payslip tendered in evidence by the PFA16 does not assist me in this task. All information that might identify the date the payslip was produced (and hence allow conclusions to be made about the pay system that generated the slip) has been redacted such as to make the payslip, including in comparison with more recent payslip, of little probative value. Whilst I accept Mr Baldini is a long standing employee of the PFA and may have spent many hours in consultation and negotiation with members and with Victoria Police about allowances it does not make him an expert on the coding used on payslips by Victoria Police.
[41] Victoria Police sought to introduce, in its reply submissions, an email from Mr Grant O’Rourke, Manager HR Systems in which he sought to detail the process by which those involved in the devolved payroll system may ‘customise’ coding to minimise re-work etc. The PFA objected to the admission of this material. I have therefore not relied on it. I would comment however that an employee has the right to have his or her payslip properly reflect the pay and allowances being made for the pay period. How else can an employee know if he or she is being paid correctly? I acknowledge the desire of those in payroll to minimise re-work by ‘short-cutting’ through coding of allowances. This, however, cannot be to the disadvantage of employees. To this extent Victoria Police are reminded of its obligations in respect to the Fair Work Regulations 2009, in particular R3.46 in conjunction with R3.31-3.34.
[42] Ultimately it is the work that is being performed by Senior Sergeant Fielding, the position he is attached to and directions given to him by Victoria Police that determine the allowances paid to him and the permanent nature or otherwise.
The decisions in Briggs and Dando
[43] The PFA submit the nature of the allowances at issue in these proceedings has been dealt with in the context of defining ‘full pay’ for accident make up pay purposes in the decision in Briggs17 and Dando.18
[44] The PFA submits that in Briggs Holmes C formulated four tests to provide guidance as to the determination of what constitutes full pay. The definition of full pay, it submits, assists in determining which allowances should be considered permanent.
[45] The PFA says that the application of the tests in Briggs demonstrates that both the COT and Civilian Clothing Allowance are allowances of a permanent nature.
[46] Victoria Police submits that each of these decisions relates to what constitutes make-up pay and is not relevant to the matter to be decided here.
[47] I have considered carefully the reasoning in Briggs. In that case Holmes C was required to determine what constituted make-up pay in circumstances where certain allowances were being paid at the time the employee injured himself. In the case of the COT allowance there appeared to be no dispute between Victoria Police and the Police Association (as it then was) over its inclusion for the purpose of make-up pay during a period of workers’ compensation.
[48] The primary matter in dispute in Briggs was whether the civilian clothing allowance should be included in make-up pay where it was paid during periods of sick and annual leave, where he was required to wear civilian clothing because he was a detective and had been receiving the allowance for some 11 years.
[49] Dando, a decision of the Industrial Relations Commission Victoria, went to the question of whether an employee, injured at work and entitled to receive workers’ compensation at ‘full pay’, could be transferred to a position involving a reduction in remuneration for disciplinary reasons. The Deputy President determined that ‘it was neither fair nor proper’ to give consideration to a reduction in Dando’s pay until the outcome of his appeal (with respect to disciplinary matters) was known or he returned to work from workcover leave.
[50] Neither of these decisions stands for the proposition that civilian clothing allowance and COT allowances are permanent allowances for the purpose of sub-clause 22.3(e) of the Agreement. Each decision deals with the entitlement to maintain full pay and not suffer a reduction in pay whilst on workers’ compensation leave.
[51] Neither Briggs nor Dando are of assistance in resolving the matter in dispute before me.
Conclusion as to the ‘permanent’ nature of the allowances
[52] For all of the reasons given above I find that Senior Sergeant Fielding was in receipt, on a permanent basis, of the civilian clothing allowance. He was not in receipt of the COT allowance on a permanent basis.
[53] The civilian clothing allowance is therefore an allowance for the purpose of sub-clause 22.3(e) of the Agreement with respect to Senior Sergeant Fielding.
The placement
[54] I am satisfied that Senior Sergeant Fielding was declared surplus as a result of organisational change within Victoria Police. That organisational change was a restructure which changed focus of SOCAU with its ultimate transition to SOCIT. As a result of this Senior Sergeant Fielding’s position in SOCAU ceased to exist at the conclusion of the Knox SOCIT transition. Senior Sergeant Fielding was not matched to apposition in SOCIT. I do not understand this to be in contest.
[55] The PFA submit that the Mobility Policy, VPM 306-1 dated October 2007 (the 2007 Mobility Policy), applies to Senior Sergeant Fielding by virtue of the advice to SOCAU employees of 29 September 2009. 19 A copy of the 2007 Mobility Policy20 has been filed by the PFA.
[56] Victoria Police says that the Agreement overrides any policy that is inconsistent with it. The 2007 Mobility Policy relied on by the PFA is not relevant to the resolution of the dispute. In any event Victoria Police says that the 2007 Mobility Policy has been removed from the Victoria Police Manual and is currently under review and that the PFA is aware of this as they are engaged in discussions on its replacement at the present time.
[57] The PFA submits that the 2007 Mobility Policy was not under review in December 2012 and that, whilst it may have been removed from the Victoria Police intranet it has not been replaced and remains current policy.
[58] Policies of the Victorian Police have not been incorporated into the Agreement. It is well established that, in such circumstances, policies remain subordinate to the Agreement such that, to the extent of any inconsistency, the Agreement will prevail.
[59] The relationship between the 2007 Mobility Policy and Agreement can be contrasted to the situation in Australian Municipal, Administrative, Clerical and Services Union v
RailCorp and Transport for NSW 21where the staff reduction policy was incorporated into the relevant agreement by direct reference.
[60] I do not accept the submission of Victoria Police that, because the policy is under review, it has no application in this case. The policy exists. There is nothing to indicate it has been withdrawn such that it has no application whatsoever. The policy in conjunction with the Agreement, as each existed at the time Senior Sergeant Fielding was declared surplus and, as they interact by law, apply to Senior Sergeant Fielding.
[61] I note that the review of the policy was occurring through 2012 and into 2013. 22 There is no indication from Victoria Police that this policy review has been completed or that there is an inconsistency such that I should not rely on the 2007 Mobility Policy in conjunction with the Agreement to determine this matter.
[62] A further question arises as to whether the direction to Senior Sergeant Fielding on 22 November 2012 to report to Croydon Police Station constitutes a management directed assignment as contemplated by VPM Instruction 306-13. 23 That instruction relevantly states:
7.2 Directed assignment
● Divisional Managers or above may direct an employee to perform the duties of another position...if:
- it is in the best interests of the Victoria Police to do so
- the employee possesses the required skills and experience to perform the duties of the assigned position
- it is consistent with the service level standards prescribed for the Division/Region/Department.
● ...
● Employees retain their salary and allowances unless these are less than applicable to the position to which the employee is directed. In general terms, an employee should not be financially disadvantaged through a directed assignment.
[emphasis added]
[63] A resolution of this specific issue requires a consideration of Senior Sergeant Fielding’s status at various points in time:
22 November 2012 | Senior Sergeant Fielding is advised he was not successful in the SOCIT capability assessment process. The ‘Force Redeployment’ process is to commence. ‘Accordingly’ he is required to report to Croydon Police Station for duty at the completion of the leave he is on at the time. 24 |
9 January 2013 | Senior Sergeant Fielding receives a letter from John Brown, Manager HR Services, advising that because he has not completed the transition to SOCIT he was being ‘re-assigned to duties of a non-investigative nature through the Force redeployment process’. He is also advised that his eligibility for COT allowance and civilian clothing allowance ceased on 2 December 2013. 25 |
4 March 2013 | Senior Sergeant Fielding is declared surplus. 26 |
Senior Sergeant Fielding is transferred from his OIC Knox position (NPD0167 - a position he had held for many years) into a ‘holding position.’ | |
29 July 2013 | Senior Sergeant Fielding is transferred into a senior sergeant reliever position (NPD2013). |
[64] If it is the case – and it does not appear to be disputed – that Senior Sergeant Fielding was declared surplus on 4 March 2013 and was placed in a ‘holding position’ on this date then the ‘placement date’ for Senior Sergeant Fielding as established in sub-clause 22.3(e) cannot be earlier than 4 March 2013 (and may be later).
[65] I note that sub-clause 22.2 of the Agreement states:
22.2 Placement
(a) Placement of surplus employees will be in accordance with a process that takes into account the following:
(i) organisational requirements;
(ii) the employee’s knowledge, skills and experience;
(iii) the employee’s preference; and
(iv) the employee’s capacity to perform the duties and meet the inherent requirements of the vacant position.
(b) Employees will continue to be the responsibility of their region/department until a placement is found.
[66] The 2007 Mobility Policy defines a ‘holding position’ as a ‘designated position created to hold an employee who is unattached. Holding positions are not part of the establishment and have no prescribed duties.’ 27
[67] Given this provision of the 2007 Mobility Policy and the ‘placement’ process in the Agreement it would appear the Senior Sergeant Fielding was not placed until 29 July 2013 when he was placed in position NPD2013. Prior to this he was in a ‘holding’ position.
[68] Sub-clause 22.3(e) of the Agreement is clear – placement cannot occur until an employee is declared surplus. There is nothing in the Agreement or the 2007 Mobility Policy that suggests that the 12 month maintenance period commences when an employee is declared surplus. It is abundantly clear that it occurs at the time of ‘placement’.
[69] This leaves the question of what Senior Sergeant Fielding’s status was in the period 22 November 2012 - 28 March 2013.
[70] My consideration of both the 2007 Mobility Policy and the Agreement suggests that this is an area of little, if any, clarity. Whilst there is no evidence before me I am prepared to infer that Senior Sergeant Fielding was performing duties appropriate to his rank whilst he was at Croydon Police Station. There is no evidence that he was anywhere else but Croydon Police Station until his ‘placement’ on 29 July 2013.
[71] There being no other explanation put to me I must conclude that Senior Sergeant Fielding was on a directed assignment at Croydon Police Station in accordance with VPM Instruction 306-13 Assignment Process, in particular clause 7.2 of that Process. Whilst Victoria Police reject this position they offer no explanation as to how Senior Sergeant Fielding ended up at Croydon except that he expressed an interest in remaining in the region and this was sought to be accommodated.
[72] This being the case I am satisfied that Senior Sergeant Fielding is entitled to ‘retain his salary and allowances’ for the period of that direction in accordance with clause 7.2 of the assignment process. At this stage Senior Sergeant Fielding was on directed assignment from his position as OIC Knox SOCAU. He was no longer in SOCIT transition and, for the reasons I have given above, was no longer eligible for the COT allowance. He was however eligible for the civilian clothing allowance.
Conclusion
[73] I therefore find that:
(i) Senior Sergeant Fielding was declared surplus in accordance with clause 22 of the Agreement as a result of organisational change (sub clause 22.3(e)).
(ii) Senior Sergeant Fielding ceased to be eligible for the COT allowance when he failed to successfully complete the capability assessment process and hence transition to SOCIT as advised to him on 22 November 2013. The advice dated 9 January 2013 that this allowance would cease on 2 December 2012 is therefore valid.
(iii) The civilian clothing allowance was a ‘permanent’ allowance for Senior Sergeant Fielding. In this respect the advice dated 9 January 2013 that this allowance would cease on 2 December 2012 is not valid.
(iv) Senior Sergeant Fielding was on a ‘directed assignment’ from 22 November 2012 until he was placed on 29 July 2013.
(v) In accordance with the provision of the VPM Instruction 306-13 Assignment Process Senior Sergeant Fielding should continue to receive the civilian clothing allowance until 29 July 2013.
(vi) Senior Sergeant Fielding was placed, in accordance with sub-clause 22.3(e) of the Agreement, on 29 July 2013.
(vii) In accordance with sub-clause 22.3(e) of the Agreement Senior Sergeant Fielding is entitled, whilst he remains in a position of lower remuneration, to have his salary and the civilian clothing allowance maintained for a period of 12 months from the date of placement.
[74] Whilst it was not subject to any submissions before me I would recommend that Victoria Police do not seek to recover the overpayment of the COT allowance for the period 2 December 2012, when it ceased, until 9 January 2013 when Senior Sergeant Fielding was advised his eligibility for the allowance had ceased. If it was to end on 2 December 2012 Senior Sergeant Fielding should have been advised at the time.
[75]
The PFA is directed, in consultation with Victoria Police, to draft orders within 14 days reflecting this decision.
COMMISSIONER
Appearances:
S. Knight and P. Mangan of the Police Federation of Australia for the Applicant.
J. Baker and C. Thompson of the Victoria Police for the Respondent.
Hearing details:
2013.
Melbourne;
December 4.
Final written submissions:
Applicant, 9 January 2014.
Respondent, 23 December 2013.
1 Exhibit PFA2.
2 Ibid page 13.
3 This period of time is generally referred to as the ‘SOCIT transition’.
4 Victoria Police submissions, 1 November 2013, Attachment 1.
5 Exhibit VP9.
6 Ibid.
7 Exhibit PFA1, attachment NRB-4.
8 Transcript PN564.
9 Transcript PN565.
10 Transcript PN565.
11 Transcript PN573.
12 Transcript PN80
13 Transcript PN81.
14 Transcript PN83.
15 Exhibit PFA4.
16 Exhibit PFA7.
17 The Police Association v Victoria Police T0992 (unreported, Holmes C, 25 September 2000) (Briggs).
18 The Police Association v Victoria Police Force re Sen Constable CE Dando IRCV Decision 93/0005 (unreported, Marsh DP, 17 February 1993) (Dando).
19 Exhibit PFA2.
20 Exhibit PFA6.
21 [2014] FWC 45 (unreported, Cargill C, 6 January 2014).
22 Exhibit VP11.
23 Exhibit PFA8.
24 Victoria Police submissions, 1 November 2013, Attachment 1.
25 PFA submissions, 30 August 2013, Attachment 2.
26 Victoria Police submissions, 23 December 2013, paragraph 33.
27 Exhibit PFA6, section 5.
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