Police Federation of Australia v Victoria Police/Chief Commissioner of Police

[2013] FWC 4543

[2013] FWC 4543

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Application to deal with a dispute

Police Federation of Australia
v
Victoria Police/Chief Commissioner of Police
(C2012/5113)

State and Territory government administration
DEPUTY PRESIDENT SMITH	MELBOURNE, 10 JULY 2013

Alleged dispute concerning change to an employee’s rank or duties; youth resource officer.

[1] This is an application by the Police Federation of Australia (PFA) in relation to a dispute which is said to arise under Clause 23.1 of the Victoria Police Force Enterprise Agreement 2011 [AE889678] (the Agreement).

[2] This clause states:

“23. Temporary Placement

23.1 Other than for discipline or performance reasons, all employees other than Officers may be directed by the Superintendent to perform temporary duties within the Division for a period of less than 6 months. Temporary duties must not result in a change to the employee’s duties or rank, unless agreed.”

[3] The background to the dispute is that Victoria Police in the Southern Metro Region has decided to expand the way in which Youth Resource Officers (YRO’s) carry out their duties. A new initiative, referred to as the Youth Engagement Car, will run one week out of every fortnight on Friday, Saturday and Sunday evenings. The proposed functions and duties are to:

• Conduct patrols at locations known to be frequented by youths



• Skate parks, shopping centres, foreshore locations and licensed premises



• Attend all YCT (Youth Causing Trouble) jobs



• Back up/attend noisy parties believed to involve youth



• Support units in regards to their dealing with youth



• Assist units processing youth offenders, particularly with advice and training specific to youth referrals and diversions. 1

[4] Some history of the development of the role is appropriate.

[5] In 1989 Victoria Police established a Police Schools Involvement Program (PSIP). This program was delivered in primary and secondary schools and sought to give “students insight into the role of police and the legal system, to assist schools in educating students on safe and responsible citizenship and assisting young people to develop personal safety and harm minimisation skills.” 2 This work was done by School Resource Officers (SRO’s).

[6] In 2004 Victoria Police re-examined the delivery of policing services to young people with particular reference to the PSIP and the role of SRO’s. Following this review in 2005, the then Chief Commissioner Nixon established a Youth Resource Officer (YRO) role.

[7] It was the evidence of Acting Commander K. Casey that the YRO model provided the following advantages:

• Provides a structure that supports corporate, operational and local delivery of policing outcomes for youth;



• Provides a reporting framework for capturing policing outcomes;



• Complimentary to “The Way Ahead” in terms of partnership, community, intelligent and confident policing;



• Compliments the LPP framework and input and involvement to Local Safety Committees and local policing initiatives via District Inspector;



• Compliments Youth Policy Statement and Youth Strategy;



• Includes and engages other operational police to increase capacity to deal with police/youth issues;



• Allows engagement of key stakeholders from the local community;



• Allows partnerships with schools to continue in a modified format;



• Encourages working in partnership with other proactive police resources;



• Allows flexibility to develop youth strategies tailored to local problems and the local environment. 3

[8] It was the evidence of Acting Commander Casey that on January 2006 the YRO model was implemented and it was intended that there would be a dedicated cohort of police with specialist youth skills and knowledge.

[9] The evidence of the witnesses for the PFA echoed much of the role and duties described by Acting Commander Casey.

[10] However, there is a stark difference in the understanding about the implementation of the roles which has been brought into sharp focus by the proposal for the Youth Engagement Car Programme. This programme would require YRO’s to attend environments where youth and youth offending was a problem. It was envisaged that the Youth Engagement Car would not be the first responder but would follow and provide specialist youth support and advice to other operational employees. It is clear that there would be occasions where YRO’s would engage with youth at various locations.

[11] The significant difference between the parties is that the PFA takes the view that YRO’s don’t need to be operational. Essentially, Victoria Police takes the view that:

• The Agreement provides that all members of Victoria Police (except for medical reasons) should be Operational Safety and Tactics Training (OSTT) qualified.



• YRO’s are sworn Officers and receive the benefits and entitlements of operational sworn officers.



• The position description of YRO’s refer to them being OTST qualified. 4



• The expansion of the role does not constitute a change in duties as they are comprehended in the qualifications needed.

[12] Evidence from the YRO’s invites me to come to the conclusion that they are more strategic than operational. The position of Inspector B. Sharp is clearly articulated in his evidence—“YRO’s are not social workers nor are they professional counsellors. They are operationally trained police employees who have a youth focus”. 5

[13] The proposal would be an expansion to the existing role of YRO’s where they have been more involved in educational based duties rather than being placed in a position which may require accompanying other Officers on operational duties. The proposed expansion to the role would comprehend the possibility of an operational role, although Victoria Police state that this is not the prime objective. Submissions were made about the staffing structure necessary for operational roles and the role of the YRO’s would be seen as additional to this.

[14] Of great importance is that for a YRO to undertake the expansion of the role, it would require the holding of an Operational Tactics Safety Training (OTST) qualification. Some YRO’s are not OTST qualified. Further, YRO’s do not see their role as operational and believe that if they are required to attend the areas identified, circumstances may demand that they become operational. Indeed, it was said in evidence that a police officer could not stand to one side if circumstances meant that a colleague needed assistance. It follows that to undertake the work which was asked of them meant, by necessity, that they would need to be prepared to be operational and accordingly all be OTST qualified.

[15] It is convenient at this stage to examine the terms of the Agreement.

[16] Clause 13 is headed Productivity Measures and provides:

“13.4 All employees will successfully complete and maintain and OTST qualification unless certified medically unfit to do so.

13.5 Where an employee who is certified medically unfit in accordance with sub clause 13.4 ceases to be so certified, the employee must successfully complete OTST at the earliest opportunity.

13.6 OTST may include an operational readiness assessment to determine the employee’s operational readiness capacity. Remedial training to meet operational readiness standards may involve operational development, unless agreed to by the employee, such deployment shall not exceed two shifts per OTST qualifying cycle.”

[17] The approach to construction of Agreements is well trodden in the jurisdiction. There should not be a narrow or pedantic approach [Knucks v CSR Limited [(1996) 66 IR 182]] and the context and setting is critical to a proper understanding of the meaning of the document as a whole [Short v FW Hercus Pty Ltd [(1993) 40 FCR 511 at 518]].

[18] A plain reading of the clause would lead to the conclusion that all employees will be OTST qualified unless certified medically unfit. This approach to the operation of the clause was challenged by Mr C. Kennedy, the Industrial Relations Manager of the PFA. It was the evidence of Mr Kennedy that Victoria Police wanted as many members of the force as possible to be OTST qualified in case of a state-wide emergency. Mr Kennedy’s evidence was that PFA was concerned about the issue of how a mandatory OTST qualification of all employees would affect the continued employment of members who could no longer qualify for OTST as well as some roles which do not require OTST Qualification. This concern led to a series of exchanges between the PFA and Victoria Police. The PFA was of the view that if there was no operational requirement for OTST, then the position description would not include OTST as a mandatory qualification. This was confirmed at a meeting on 3 July 2012. 6 Mr Kennedy was not challenged on this point.

[19] There appear to be two levels or argument. The first is whether or not there is a change and the second is and what was the mutual intent of the parties when making the agreement, particularly when it comes to employees being OTST qualified.

[20] I turn firstly to consider whether or not the introduction of the Youth Engagement Car constitutes an alteration to the duties of the YRO. Duties should not be narrowly defined. The starting point must be the position description. In this case the position description requires YRO’s to be OTST qualified. It is expected that these persons have an understanding of policing and can undertake policing duties. It is a long standing principle of wage fixation that employees can operate up to their level of skill whilst performing duties within a classification. This approach was highlighted in the work value principles which required a significant net addition to work requirements before a wage increase could be granted. In assessing work requirements the level of skill required for a classification was examined, not whether an individual had exercised any of those skills in the past performance of duties. Tasks may change but the duties required for the position did not. The same is true here. Since around 2006 there was a requirement for an OTST qualification, although it is apparent that Victoria Police has not universally accessed that requirement for YRO positions. In an “expectations” sense this is a case where it might be said the Victoria Police has “lost it” because it didn’t “use it”. This is a problem for change management but not a problem for the assessment of duties and responsibilities under a classification.

[21] I asked Sergeant W. Cowling if the work could be performed by unsworn persons. The reason for putting this question was to test the level of skill required. On one view, a strategic knowledge of youth issues co-ordinated in a non operational environment could be done (as Inspector Sharp put it) by social workers or professional counsellors. 7

[22] The evidence of Sergeant Cowling persuaded me that police listen to police, because of their shared experiences. This reinforces the fact that it is not inappropriate for Victoria Police to allocate tasks using all the skills expected of sworn police officers (unless medically unfit) to achieve the objective of dealing with disaffected youth. The final issue is whether or not the evidence of Mr Kennedy impacts upon this circumstance. I accept his evidence that there may be some classifications where the position description does not call for an OTST qualification and therefore the productivity measure does not apply. However this cannot be said of the YRO position which has contained such a requirement for a number of years.

[23] In conclusion, I find that there is nothing in clause 23.1 which inhibits the introduction of the Youth Engagement Car. In reaching this conclusion I am mindful of the submission that focus of the Youth Engagement Car is not as the first responder and is in addition to the normal operational establishment. It would be inconsistent with the evidence about the objective of this valuable programme for its focus to be diluted and simply absorbed into normal operational duties.

DEPUTY PRESIDENT

Appearances:

L. Miller for the Police Federation of Australia.

J. Baker with S. Trevaskis on behalf of Victoria Police.

Hearing details:

2013.

Melbourne:

March, 5 and 6.

 1   Exhibit PFA 1, Attachment 1—Email and attachment dated 20 June 2012, from Acting Inspector Matt Mulcahy to Youth Resource Officers in Southern Metro, Division 4

 2   Exhibit VicPol 2 at paragraph 3

 3   Ibid at paragraph 13

 4   Exhibit VicPol 2, Attachment 1, which was settled in 2005

 5   Exhibit VicPol 3 at paragraph 12

 6   Exhibit PFA 2, Attachment CK 4

 7 Witness Statement of Mr B. Sharp, para [12].

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<Price code C, AE889678  PR538749>