Police Federation of Australia v Victoria Police/Chief Commissioner of Police
[2022] FWC 1554
•8 DECEMBER 2022
| [2022] FWC 1554 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Police Federation of Australia
v
Victoria Police/Chief Commissioner of Police
(C2021/8036)
| COMMISSIONER MIRABELLA | MELBOURNE, 8 DECEMBER 2022 |
Alleged dispute about matter arising under an enterprise agreement – jurisdiction – alleged dispute about what constitutes a term of the enterprise agreement – eligibility for progression.
On 26 November 2021, the Police Federation of Australia (the Victoria Police Branch) (PFA) filed an application under s.739 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission (the Commission) to deal with a dispute pursuant to clause 10 of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019[1] (the Agreement) on behalf of its members and Victoria Police/Chief Commissioner of Police (Victoria Police) employees, Senior Constable Hannah Merritt, Senior Constable Benjamin Schalk and Sergeant David Sordello (the three employees).
Clause 10 of the Agreement is broadly expressed, empowering the Commission to deal with disputes between the parties in relation to matters arising under the Agreement and the National Employment Standards (NES), with the exception of a number of matters contained in clause 11, disputes regarding which are to be heard by the Police Registration and Services Board (PRSB).
The PFA made its application raising a dispute pursuant to clause 21 and 64. The dispute relates to whether the three employees were entitled to progress to higher increment levels under the Agreement earlier than they did.
Victoria Police gave notice to the Commission, by reason of its status as a model litigant, that the Commission may not have jurisdiction to deal with the disputes in relation to Senior Constable Merritt and Senior Constable Schalk.
The dispute has been the subject of two conferences and a hearing before me where both parties made short oral submissions regarding the issue of the Commission’s jurisdiction. The parties have filed and served outlines of submissions and witness statements pursuant to my directions, to which I have had regard in determining the questions before me.
The PFA argues that the only requirements for eligibility for progression from Constable to Senior Constable are contained in clause 64.5 of the Agreement, whereas Victoria Police argues that clause 64.1 contains an additional eligibility requirement. The PFA further submits that Victoria Police must recognise the types of prior service outlined in clause 21, which includes prior service in other law enforcement agencies in Australia, for the purposes of eligibility for progression from Constable to Senior Constable pursuant to clause 64.5. Victoria Police submits that there is no dispute regarding whether such prior service is contemplated by clause 64.5. The PFA also argues that where an employee has completed less than 12 months of prior service before leaving their employment with Victoria Police, and the employee is later re-employed by Victoria Police, that prior service is counted when determining whether the employee can proceed to the next progression point. Victoria Police argues that an employee is only entitled to proceed to the next progression point if they are paid at the previous progression point for the entirety of a 12-month period, meaning that prior service at a progression point of less than 12 months will not be counted where the employee leaves their employment before the end of the 12-month period.
The questions for the Commission to determine are as follows:
Question 1: Should progression from Constable to Senior Constable be on the basis of clause 64.1 or 64.5?
Question 2: Does the word “service” in clause 64.5 include service recognised under clause 21?
Question 3: Does a part period of service recognised pursuant to clause 21.2 contribute to the period of 12 months specified in clause 64.11?
Interpretation principles (general)
The settled and uncontroversial principles for the interpretation of enterprise agreements were distilled in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Limited[2] (Berri) and are as follows:
“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
This is a non-exhaustive statement of the principles to be adopted and I have applied this approach in determining this dispute.
Does the Commission have jurisdiction to deal with this dispute?
The FW Act applies to employment matters between Victoria Police and Victorian Police Officers to the extent that the Fair Work (Commonwealth Powers) Act 2009 (Vic) (Referral Act) permits. That is, as per s.51(xxxvii) of the Commonwealth Constitution, the Victorian Government ceded most but not all of its power to make laws in relation to employment law to the Australian Government, beginning with the passage of the Commonwealth Powers (Industrial Relations) Act 1996 (Vic).
There is no dispute that the Agreement is made under the FW Act and applies to Victorian Police Officers. The Commission’s jurisdiction to deal with disputes arising from the Agreement has been explicitly provided for in the Referral Act.
The FW Act extends the limited definition of a national system employee and a national system employer so that Officers of Victoria Police as “law enforcement officer[s]” are employees and Victoria Police, through the Chief Commissioner of Police (Chief Commissioner), is a “national system employer” under the FW Act.[3]
The stated purpose of the Referral Act includes “to refer certain matters relating to workplace relations to the Commonwealth Parliament for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth…”.[4]
Section 3 defines “referred subject matter”, with s.3(a)(ii) specifically providing for the referral of:
“(ii) terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise-level agreements)”
Section 4 of the Referral Act allows for referral to the Commonwealth subject to the exclusions set out in sections 5 and 5A. Relevant to this matter, s.5(2)(b) says:
“5 Matters excluded from a reference
…
(b) matters pertaining to probation, promotion, transfer from place to place or position to position, physical or mental fitness, uniform, equipment, discipline or termination of employment of law enforcement officers except—
(i) matters pertaining to the payment of allowances and reimbursement of expenses and pertaining to notice of termination of employment and payment in lieu of notice of termination of employment; and
(ii) to the extent that Divisions 1 and 2 of Part 6-4 of the Commonwealth Fair Work Act, as originally enacted, deal with the matters.”
Victoria Police submit that by virtue of the exclusions in s.5(2)(b) of the Referral Act, specifically the reference to “promotion” (that is, that the movement between progression points of law enforcement officers is a “promotion”), the Commission lacks jurisdiction. Victoria Police submit that in this matter the Commission cannot arbitrate on the disputes in relation to Senior Constable Merritt and Senior Constable Schalk because these matters fall outside the Commission’s jurisdiction. Victoria Police has also submitted that as the matter related to a dispute regarding promotion, Senior Constable Merritt and Senior Constable Schalk had a statutory right to seek review of the decision under s.146(1)(d) of the Victoria Police Act 2013 (Vic) (VP Act). Noting the expiration of time within which to apply for a review, Victoria Police did not press this submission.
The submission of Victoria Police is that the two disputes relating to Senior Constables Merritt and Schalk are matters pertaining to promotion as contemplated by s.5(2)(b) of the Referral Act and contends that:
It is difficult to characterise the upward movement between ranks as something other than a promotion. The Macquarie Dictionary relevantly defines “Promotion” as: “1. Advancement in rank or position.”
The VP Act recognises as separate ranks those between Constable and Senior Constable and that the Chief Commissioner is given express power to promote Officers between those ranks.
In support of its submissions, Victoria Police relied on the decision of Deputy President Bell in The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police/Chief Commissioner of Police.[5] That decision considered the application of certain exclusions in s.5(2)(b) of the Referral Act. In issue in that matter was whether clauses 119.13 and 119.17 of the Agreement, which provide for the process for assessing fitness for duty officers, were matters “pertaining to” the “physical or mental fitness” of law enforcement officers or “pertaining to” their “termination of employment” as per s.5(2)(b) and, accordingly, were matters excluded from referral to the Australian Government. Deputy President Bell found that these matters were excluded matters and outside the Commission’s jurisdiction.[6]
To the extent that case involved the determination of the meaning of “physical or mental fitness” or “termination of employment”, it is distinguishable from this matter as the issue to be determined is the meaning and the context of “promotion”.
Victoria Police rely on Deputy President Bell’s interpretation of whether a particular matter was one “pertaining to” an excluded matter. Deputy President Bell adopted the well-established meaning of the phrase “pertaining to”[7] when he said that it means “belonging to” or “within the sphere of”.
Victoria Police submit that the issue in dispute regarding Senior Constable Merritt and Senior Constable Schalk and their movement between progression points are matters “pertaining to” promotion of law enforcement officers and, therefore, excluded from the Commission’s jurisdiction.
The PFA submits that one of the main functions of the Agreement is to set wages for Police Officers and that this is done through clauses 60 and 64 and the salary schedule.[8] Further, it submits that the Agreement should not be so narrowly read as contended by Victoria Police because the Referral Act permits the Commission to set wages and working conditions, including wage increments that apply to Victoria Police and that it is clearly intended to be incorporated into the Agreement negotiated between the PFA and Victoria Police.
“referred subject matters means any of the following—
(a) terms and conditions of employment including any of the following—
(i) minimum terms and conditions of employment (including employment standards and minimum wages);
(ii) terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise-level agreements);
(iii) bargaining in relation to terms and conditions of employment;
(iv) the effect of transfer of business on terms and conditions of employment”
The PFA submit that the “promotion” of Victoria Police Officers is provided for by s.31(1) of the VP Act and that the operation of clauses 64.1 and 64.5 have nothing to do with any act of the Chief Commissioner; that is, the promotion of a member by the Chief Commissioner is not listed as a consideration or a condition for movement from progression point 4 to 5.[9]
The PFA further submits that the promotion under the VP Act and salary progression under the Agreement are separate and distinct and that the incremental structure of progression from one point to another operates similarly to other incremental structures and provides for the annual progress from one increment to the next, with the exception of clause 64.5 that incorporates additional preconditions to allow for progression from Constable to Senior Constable.
The PFA’s submissions provide the contextual history against which “in situ promotion” developed. They submit that as a result of an inquiry conducted in 1993-1994 into the bottlenecks in filling Senior Constable vacancies, a recommendation was made regarding automatic progression from the rank of Constable to Senior Constable on the passing of a test and dispensing with the need to relocate in order to rise to the rank of Senior Constable, and this removed the cause of promotion bottleneck.
The PFA submits that:
· This recommendation was accepted by the Chief Commissioner and an in situ promotion system was introduced with amendments made to relevant legislation to give this effect.
· The in situ promotion system is a creation of Victoria Police, enshrined in legislation and incorporated in policies since 1996, and has been merely followed and reflected in all enterprise agreements between the PFA and Victoria Police since 1998.
· As the promotion of Victoria Police Officers is provided for in s.31 of the VP Act, that it exists separately to and prior from the Agreement which does not modify the statutory promotion system and, further, that “promotion” as used in clause 64.5 refers to progression under the classification system in the Agreement.
· The movement from one classification to another is by the promotion system wholly regulated by the Chief Commissioner:
“Agreement provides that movement from one classification to a higher (or lower) classification is a reflection and a consequence of a promotion (or reversion in rank) granted by the Chief Commissioner.
…
The advancement to another classification is solely a consequence of the independent decision of the Chief Commissioner which is not regulated by the Agreement. The Agreement does no work in the operation of that promotion system, it simply follows the decision of the Chief Commissioner with a consequential movement through the classification system.[10]
…
The Agreement does not regulate the movement between ranks… These are solely governed by the operation of the Victoria Police Act and the discretion of the Chief Commissioner.[11]
…
Promotion does not belong to the Agreement nor is it within the sphere of influence of the Agreement. The Chief Commissioner issues policy relating to in situ promotion and is not constrained by the Agreement. The Agreement follows but does not lead the Chief Commissioner’s policy.”[12]
The PFA distinguishes this matter from the related matter before Deputy President Bell on the basis that the Agreement does not require the Chief Commissioner to do anything in relation to the current dispute other than pay a Victoria Police Officer at the correct increment, as opposed to the provisions considered by Deputy President Bell that imposed requirements on the Chief Commissioner to do certain things.
I am persuaded by the submissions of the PFA that the in situ promotion does not fall within the excluded matters as per s.5(2)(b) of the Referral Act. Both the context and the purpose of the in situ promotion support this construction. More than 25 years ago, the Chief Commissioner decided to adopt a system of in situ promotion and his decision is effectively reflected in this Agreement, as it has been in predecessor enterprise agreements from 1998. The Chief Commissioner has retained authority regarding promotion as contemplated by the exclusion in the Referral Act. The Agreement merely follows the Chief Commissioner’s decision to give effect to it.
So, although the “in situ promotion” can result in an upward movement between ranks, because the purpose of the “promotion” in clause 64.5 is to give effect to the Chief Commissioner’s decision, the use of the word “promotion” is merely used to reflect that decision and accordingly is not a matter “pertaining to”; that is, “belonging to” or “within the sphere of” the Agreement. Although the Agreement incorporates the process for promotion and lists the relevant associated classifications, this is a result of Victoria Police’s decision to create a system of in situ promotion. Had Victoria Police not decided to create a system of split promotion, then it is difficult to conceive that the rules and structure facilitating that decision would have been incorporated in enterprise agreements for over 20 years. Accordingly, I am of the view that the Commission has jurisdiction to arbitrate the questions disputed in this matter.
The Agreement
The Agreement applies to the Chief Commissioner in respect of classes of employees, including Police Officers, Police Recruits, Protective Services Officers and Police Reservists. It covers rates of pay over three years; from 1 January 2020 until 1 July 2023.
Part 11 of the Agreement is titled and deals with “Salary and Related Matters”. This dispute concerns the meaning of a number of subclauses in clause 64, which deals with “Movement through Progression Points”. The relevant clauses are as follows:
“64.1 All Constables will be entitled to salary progression on the anniversary of their appointment subject to meeting the eligibility requirements contained in this clause.
…
64.5 All Constables will be eligible for in situ promotion to Senior Constable subject to completion of the required components of the Victoria Police Education Program, four years’ service and satisfactory performance. For the purpose of this sub-clause, service includes any period an employee is absent from work on paid leave or statutory unpaid leave.
…
64.11 An employee who has received salary payment at their current progression point for a period of 12 months will progress to the next progression point provided they are not subject to any management of underperformance process. However, where the employee is not subject to a management of underperformance process, and 12 months has elapsed since their last progression, they may progress despite having not received 12 months of salary payment at their current progression.”
Part 4 deals with “Placement and Movement of Employees”. Clause 21 of Part 4 deals with “Re-appointees and Appointment of Employees with Prior Policing Experience”. Clause 21 is as follows:
“21.1 For the purposes of this clause rank includes a rank within Victoria Police and any equivalent rank from another law enforcement agency in Australia, the United Kingdom and New Zealand. Appointment includes reappointment.
21.2 An employee who previously held the rank of Sergeant or above who is appointed at the rank they previously held will be appointed at an increment that reflects their service at their previous rank.
21.3 An employee who is appointed at the rank of Sergeant or above and that rank is higher than the rank they previously held will be appointed at the first increment of the rank they are appointed to.
21.4 An employee who previously held a rank below Sergeant who is appointed to a rank below Sergeant will be paid at an increment that reflects their prior years of service.
21.5 An employee who previously held a rank of Sergeant or above and who is appointed at a rank below Sergeant will be paid at an increment that reflects their cumulative service at all ranks.”
The dispute resolution procedure is at clause 10 of the Agreement and is as follows:
“10. Dispute Resolution
10.1 For the purpose of this clause, party includes the PFA.
10.2 With the exception of a matter contained in clause 11 or where a statutory right of review exists under the VP Act, if a dispute arises about any matter arising under this Agreement or the National Employment Standards (including s 65 of the FW Act) the parties to the dispute will attempt to resolve the dispute at the workplace level if appropriate.
10.3 A party may choose to be represented at any stage by a representative, including a union representative or employer’s organisation.
10.4 If the matter is not settled or if it is inappropriate for the dispute to be discussed at the workplace level, the employee(s) or their representative can request that the dispute be discussed with another employer-appointed representative for the purposes of this procedure.
10.5 If the dispute is not settled, the Employee(s) or their representative may apply to the Fair Work Commission to have the dispute dealt with by conciliation.
10.6 If the matter cannot be resolved by conciliation under sub-clause 10.5, either party may request that the Fair Work Commission deal with dispute by arbitration. However, nothing in this clause prevents the parties from applying to the Fair Work Commission for, and the Fair Work Commission granting, interim relief, before the steps set out in this clause are exhausted.
10.7 The parties to the dispute and their representatives must act in good faith in relation to the dispute.
10.8 While a dispute is being resolved, work must continue according to usual practice, provided that this does not apply to an employee who has a reasonable concern about an imminent risk to the employee’s health or safety and has advised the employer of this concern. The employer may direct an employee to perform different work or work at a different location, on full pay, if it is reasonable to do so to protect the safety, health or welfare of employees.
10.9 Any determination/decision including any interim determination/decision of the Fair Work Commission is binding upon the parties to the dispute and the parties agree to be bound by that determination/decision.
10.10 Any determination/decision including any interim determination/decision will be implemented.
10.11 An appeal lies to a Full Bench of the Fair Work Commission, with the permission of the Full Bench, against a determination/decision of a single member of the Fair Work Commission made pursuant to this clause. A dispute is not resolved until any appeal has been determined.”
Agreed facts
Senior Constable Merritt joined Victoria Police on 6 July 2020. She had previously served for 3 years and 11.5 months with the Western Australia Police Force. Victoria Police have taken steps to pay Senior Constable Merritt at increment 4 from 6 July 2020. Senior Constable Merritt progressed to increment 5 on 18 December 2021.
Senior Constable Schalk began employment with Victoria Police on 2 December 2019. He had previously been employed by South Australia Police for 3 years and 10 months. Victoria Police have taken steps to pay Senior Constable Schalk at increment 4 from the date of his commencement on 2 December 2019. Senior Constable Schalk progressed to Senior Constable increment 5 on 6 May 2021.
Sergeant Sordello was employed with Victoria Police for a period of 3 years and 11.5 months until his resignation on 27 September 2013. At the time of his resignation, he was in receipt of Sergeant increment 4 and had been in receipt of this increment level for 11.5 months. He rejoined Victoria Police on 14 December 2020 and was placed on increment 4. He progressed to increment 5 on 14 December 2021.
PFA’s submissions
The PFA submits that:
The enterprise agreement provisions with which Berri is concerned are clear and unambiguous. However, should the Commission find ambiguity in this matter, principle 10 in Berri requires me to look to the broader scheme encompassed in clause 21 of the Agreement.
The scheme outlined in clause 21 is a codification of a broader agreement between the parties that prior service should be recognised.
Clause 21 in the Victoria Police (Police Officers (excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 (2015 Agreement), which also concerned re-appointees, was the subject of a decision by the PRSB (PRSB decision). In the PRSB decision, the PRSB rejected Victoria Police’s approach and found that clause 21 is about recognition of years of service, rather than being about any assessment of capability or work value.
This approach of a fair and reasonable outcome is part of the surrounding circumstances that are pertinent to principle 10 of Berri.
The PRSB decision was considered by the parties in the negotiation for the Agreement, which led to clause 21 being revised by the parties to explicitly require that previous service be recognised in the consideration of the rank of a re-appointee.
The parties did not consider in the Agreement negotiations the period of time that a re-appointee would have to spend at their appointed increment prior to moving to the next increment and that Victoria Police has subsequently made up its own approach and that this approach is inconsistent with the principles outlined in the PRSB decision.
The scheme of recognition of prior service does not allow Victoria Police a discretion to simply ignore part of prior service.
When considering any ambiguity, I should consider the purpose of the scheme for recognition of prior service.
Question 1
The PFA submits that:
· The Agreement sets out the scheme of classification and incremental payments applicable to Police Officers. Clause 60.1 and Schedule A of the Agreement set out the classification structure for Police Officers. Whilst Victoria Police refers to ranks, the structure outlined in the Agreement is a classification structure and is the sole determinant of salaries payable to Police Officers covered by the Agreement.
· Clause 64.5 sets out the criteria that a Constable must satisfy in order to be eligible to progress to the first Senior Constable increment, which is increment 5. This criteria is as follows:
oCompletion of the required elements of the Victoria Police Education Program, being the Diploma of Public Safety and passing the Senior Constable’s examination;
oFour years’ service; and
oSatisfactory performance.
· Clause 64.1 does not regulate or impact the progression of a Constable to Senior Constable. The PFA submits that the plain words of that clause apply only to Constables and incremental advancement within that classification. It submits that clause 64.1 has no work to do in the progression from the classification of Constable to the classification of Senior Constable.
· I should apply principle 7 outlined in Berri to the questions being raised. The PFA submits that the meaning of clauses 64.1 and 64.5 are plain and unambiguous. It submits that clause 64.1 refers to salary progression within the classification of Constable and 64.5 refers to progression from the classification of Constable to that of Senior Constable.
· I need look no further and should look no further than the plain meaning of the wording of clauses 64.1 and 64.5 in accordance with principle 9 of Berri.
· If it is necessary to look at the conduct of the parties, the practice of Victoria Police has consistently been to literally apply the tests in clause 64.5 of the Agreement and its predecessors.
· The test of four years’ service is four years from the date that the employee is sworn in as a Constable and that this includes employees who are delayed in their progression through the Constable increments. The PFA points to the evidence of Senior Constable Jacqui Woods who said that she had her incremental progression through the classification of Constable delayed but that she did progress to Senior Constable on the fourth anniversary of being sworn in as Constable, despite not having spent a year at increment 4.
Question 2
The PFA submits that:
· Clause 21.1 of the Agreement includes any rank within another law enforcement agency in Australia and that this provision clearly applies to both Senior Constables Merritt and Schalk.
· That clause 21.4 provides that an employee who previously held a rank below Sergeant and is appointed to a rank below Sergeant will be paid at an increment that reflects their prior years of service and that this clause applies to Senior Constables Merritt and Schalk as they both only had experience as Constables in their previous police force and were appointed as Constables.
· Once Senior Constables Merritt and Schalk had completed their four years of service, they were no longer being paid at an increment that reflected their prior years of service and the provisions in clause 21.4 were not being applied.
· Victoria Police is denying a portion of the prior service of Senior Constables Merritt and Schalk and it has not provided any explanation or justification for this position.
· It is clear from the statements provided by Senior Constables Schalk and Merritt that they were advised that their prior service would be recognised. No qualifications or caveats were placed on those undertakings and at no point prior to their eventual progression to the classification of Senior Constable, or since, has either been told that their previous service would not be recognised.
· The wording of clause 21.4 refers to an entitlement to be paid at an increment that “reflects their prior years of service”. It contends that it would be inconsistent with the scheme established by clause 21.4 to do anything other than recognise all of the prior service of Senior Constables Merritt and Schalk.
The PFA notes that Senior Constable Merritt received her progression to increment 5 after a total of 5 years and 5 months and Senior Constable Schalk after a total of 5 years and 4 months. The PFA says that an employee starting with Victoria Police would receive their progression to increment 5 after four years. It contends, therefore, that the stated aim of the clause, recognition of prior service, has not been consistently or fully applied.
The PFA submits that there is no basis to discount any of the prior service of Senior Constables Merritt and Schalk and that they should have been advanced to increment 5 once the conditions outlined in clause 64.5 were met; that is, when they completed four years’ service in both their previous police forces and Victoria Police, and they passed the Senior Constable’s examination, as long as they were of satisfactory service.
The PFA notes that Senior Constable Merritt passed the Senior Constable examination on 20 January 2021 and Senior Constable Schalk did so on 26 August 2020. The PFA contends that this is when they should have progressed to increment 5 in accordance with clause 64.5.
Question 3
The PFA submits that:
· The issue of whether the 12 months is to be a single period or a period totalling 12 months is rendered moot by the second sentence in clause 64.11, which is as follows:
“However, where the employee is not subject to a management of underperformance process, and 12 months has elapsed since their last progression, they may progress despite having not received 12 months of salary payment at their current progression.”
· There is no other possible meaning to the words of clause 64.11 if the two parts of the provision are to be read together and that, on the basis of principle 9 of Berri, Sergeant Sordello should receive his incremental progression after completing a total of 12 months.
· It is too narrow an interpretation to read the reference to “a period” in clause 64.11 as “one period”. It says I should apply principle 6 outlined in Berri to resolve this issue and says its submission is bolstered by the reference to “a period of paid leave” in clause 64.12. It submits that if an employee had a period of paid personal leave of two months, followed by a paid period of two months of long service leave, followed by a paid period of recreation leave of two months, Victoria Police is unlikely to conclude that they would be unable to defer progression because the condition of “a period” had not been fulfilled.
· Clause 21.2 requires appointment of employees at the rank of Sergeant or above to an increment that “reflects their service”. The PFA submits that Victoria Police’s decision in relation to Sergeant Sordello has not reflected his service because his 11.5 month’s service at increment 4 has been disregarded.
· The PRSB considered Sergeant Sordello’s experience after leaving Victoria Police significant enough to entitle him to return at the rank of Inspector, even though he resigned at the rank of Sergeant, and the PFA submits that this shows he did not need to spend additional time at increment 4 because of lack of experience due to the period he was not employed by Victoria Police.
· The Agreement must take precedence over what Victoria Police wishes to do. The PFA submits that the reply that Sergeant Sordello received from Victoria Police was not a consideration of the merits of his circumstances. The PFA cautions against any emphasis on the parties’ post-agreement conduct, pointing to principle 13 of Berri.
The PFA contends that both an interpretation of the Agreement and an examination of the scheme of recognition of prior service leads to the same conclusion; Sergeant Sordello should have his 11.5 months’ service at increment 4 recognised and should have progressed to increment 5 after completing a total of 12 months at increment 4 rather than 23.5 months as the PFA submits has been applied by Victoria Police.
Victoria Police’s submissions
Victoria Police does not contest the validity of the principles elicited in Berri regarding the proper interpretation of enterprise agreements. However, it submits that many of these principles are not engaged in these proceedings.
Victoria Police contends that the PRSB decision is not relevant to the present dispute.
Victoria Police submits that:
· The start and end point in the construction of any legal text, including enterprise agreements, is to construe the ordinary meaning of the words of the relevant clause, as a whole and in context.
· The Commission should not accept the PFA’s submission that an assessment of what is fair and reasonable is a relevant consideration in the interpretation of the relevant clauses of the Agreement. Victoria Police submits that the task of the Commission regarding the application of clauses of an enterprise agreement is to properly construe its terms and not to seek to rewrite the agreement to achieve what might be regarded as a fair or just outcome between the parties.
Victoria Police submits that the answers to the questions for arbitration are as follows:
Question 1: 64.1
Question 2: The Commission should decline to answer this question
Question 3: No
Question 1
Victoria Police contends that progression from Constable to Senior Constable is on the basis of clause 64.1.
Victoria Police submits that:
· The “progression points” for the purposes of “salary progression” in clause 64.1 is a reference to the ascending numbers in the third column from the left of the table in Schedule A on page 109 of the Agreement which sets out the classification and salary structure for Police Officers. Victoria Police submits that clause 64.1 on its face does apply to the salary progression points numbering 1 through to 16, from Constable, to First Constable, to Senior Constable, to Leading Senior Constable.
· The salary classification structure in Schedule A treats the ranks of Constable, First Constable, Senior Constable and Leading Senior Constable as being part of a group (defined as “Level 1”) to which there are 16 salary progression points. Victoria Police contends that clause 64.1 applies to progression from one point to another.
· The submission that clause 64.1 applies to progression point 1 to 16 is supported by clause 64.14 which provides that “access to progression points 13 to 16 for Senior Constables” will be based on certain criteria, because progression points 13 to 16 in the classification structure apply to the rank of Leading Senior Constable. Victoria Police submits that there is therefore, within clause 64 itself, context which tells against a construction that progression is only within a rank, as opposed to within the group of ranks referred to in the classification structure.
· The wording of clause 64.5 makes clear that a Constable becomes merely “eligible” for in situ promotion to Senior Constable upon establishing certain qualifications, rather than entitling a Constable to the promotion. Victoria Police contends that this eligibility is best seen as a “requirement” of clause 64, to which clause 64.1 refers, and upon attainment of which, on the anniversary of an Officer’s appointment, they will be entitled to progression to Senior Constable.
Question 2
Victoria Police submits that the Commission should decline to answer this question.
Victoria Police submits that:
· The question in dispute is what the effect of satisfying the eligibility requirement to have a minimum period of service is and that this question is asked by Question 1.
· It does not dispute that prior service which has been recognised by it would count as service for the purposes of eligibility for in situ promotion to Senior Constable under clause 64.5. It notes that the prior service of Senior Constables Merritt and Schalk has been recognised for the purposes of that clause, in the sense that it has been treated as satisfying the eligibility requirement in that clause for the purposes of progression. It says it does not claim, for example, that an Officer reappointed as a Constable pursuant to clause 21 starts from zero years of service, such that they require an additional four years to become eligible for progression to Senior Constable for the purposes of clause 64.5 because their prior service is recognised.
Question 3
Victoria Police opposes the PFA’s argument that because Sergeant Sordello had three years and 11 months of prior service at the rank of Sergeant, he is entitled to be taken as having been at the Sergeant 4 progression point for 11 months at the time of his re-appointment for the purposes of clause 64.11.
Victoria Police submits that:
· Clause 64.11 does not concern periods of service, but rather periods in which a person has been at a particular progression point and that clause 21 is not relevant to the kind of joint construction that it says is attempted by the PFA.
· The purpose of the second sentence of clause 64.11 is to provide that if the period of 12 months passes, the Officer may nonetheless progress even though they may not have been in receipt of salary for the entirety of the period. Victoria Police does concede that the second sentence of clause 64.11 is ambiguous.
· The equivalent clause in the predecessor to the Agreement, clause 65.12 of the 2015 Agreement, supports this interpretation of clause 64.11 and provided as follows:
“An employee must have received salary payment at their current progression point for a period of 12 months to be eligible for progression to the next progression point. However, where the employer believes that the employee has demonstrated suitability to progress, and 12 months has elapsed since their last progression, they may progress despite having not received 12 months of salary payment at their current progression.”
· The wording in clause 65.12 of the 2015 Agreement is clearer in showing that the purpose of the second sentence is to provide a discretion in Victoria Police to progress a suitable Officer to the next point, even if they have not received salary payment for the whole of the 12 months.
· The PFA’s interpretation of clause 64.11 would strain the meaning of the second sentence in the clause beyond reason by arguing that because Sergeant Sordello’s last progression was in 2013, during his previous appointment with Victoria Police, he is entitled to progress to the next point as if he has been eligible to do so since that time, despite not having actually held the progression point for close to a decade between appointments.
· Clause 64.11 does allow for a progression to occur where an Officer has held a particular progression point for 12 months, even if the Officer was not paid for that entire period, and that it is clear that Sergeant Sordello does not satisfy that requirement.
· The first sentence of clause 64.11, which Victoria Police says confers an entitlement to progression, is contrasted with the second sentence in the use of the word “may”, which vests in Victoria Police a discretion to progress an employee to the next progression point.
The PFA’s submissions in reply
The PFA says that Victoria Police’s submission that the PRSB decision is not relevant to the proceedings involves a misrepresentation of the PFA’s submissions. The PFA submits that:
· It did not submit that the Commission should consider the fairness of the provision. Instead, it pointed to the PRSB decision as forming part of the surrounding circumstances that gave rise to the Agreement consistent with principle 10 of Berri.
· The PRSB decision was considered by the parties in bargaining for the Agreement and, therefore, I should consider in interpreting the Agreement that its findings form part of the parties’ understandings.
The PFA submits that the answers to the questions for arbitration are as follows:
Question 1: Clause 64.5
Question 2: Yes
Question 3: Yes
Question 1
The PFA submits that:
· The language of the Agreement which consistently refers to the classifications of “First Constable”, “Senior Constable” and “Leading Senior Constable” does not support Victoria Police’s submission that clause 64.1 covers all incremental progression up to increment 16. The PFA notes that the term “Senior Constable” occurs 73 times in the Agreement. It submits that clauses 30, 56, 59 and 174 specifically refer to Constables, Senior Constables, Sergeants and Senior Sergeants. It submits that where the Agreement needs to refer to all employees below the rank of Sergeant, the Agreement uses the term “below the rank of Sergeant”. It submits that the term occurs in the clause covering recognition of prior service at clauses 21.4 and 21.5 and that it also occurs in seven other places in the Agreement. The PFA submits that if Victoria Police’s submissions were correct, the Agreement would only use the term “Constable” as there is no other rank or designation below Sergeant apart from Constable, Senior Constable and Leading Senior Constable.
· The eligibility requirements for progression from increment 4 to increment 5 are set out in clause 64.5 and the eligibility requirements for progression from increment 12 to increment 13 are set out in clause 64.14. The PFA submits that the text of clause 64.1 requires the reader to refer to clause 64.5 to determine whether a Constable can progress from increment 4 to increment 5.
· Victoria Police’s submission referencing “eligibility” in clause 64.5 fails on their interpretation because clause 64.1 provides that Constables “will” be entitled to salary progression “subject to meeting the eligibility requirements contained in this Clause”.
· The PFA submits that the clause gives an entitlement to progress on meeting the eligibility requirements contained in the clause; namely, what is set out in clauses 64.5 and 64.14. The PFA submits that once eligible, a Constable is entitled to progress.
· Progression from Constable to Senior Constable in the context of the incremental structure can only be on the basis of clause 64.5 as the criteria for progression are contained in that clause. It submits that clause 64.1 itself refers to clause 64.5 for the purposes of determining progression.
Question 2
The PFA submits that:
· If there really was no dispute in relation to this question, Senior Constables Merritt and Schalk should have been advanced to increment 5 on the dates set out by the PFA.
· Victoria Police’s submissions concede that it is common ground that re-appointees do not start from zero years, but Victoria Police makes no submissions as to how that period should be calculated.
· Victoria Police does not provide any submissions explaining the partial recognition of prior service, which is the effect of Victoria Police’s payment to Senior Constables Merritt and Schalk.
Question 3
The PFA submits that:
· Victoria Police’s submissions do not consider that Sergeant Sordello has spent over 12 months (23.5 months) at progression point 4 and that it has been considerably longer than 12 months since he moved to progression point 4.
· Victoria Police’s submissions ignore the wording of clause 64.11 which uses the term “will progress”.
· There is no reason Sergeant Sordello should not be granted progression if he is performing satisfactorily. The PFA says there is no indication that Sergeant Sordello should have been subject to any performance management process, and that this means he was performing satisfactorily, and there should be no bar to his incremental advancement.
· The PRSB’s assessment of his suitability, in finding that his experience outside of Victoria Police qualified him to return as an Inspector, means that Victoria Police did not have any basis for not allowing him to progress.
· Victoria Police’s emphasis on the word “may” in clause 64.11 is misconstrued. The PFA notes that pursuant to clause 64.11, Victoria Police “may” advance an Officer where they have less than 12 months of salary payment at their current progression. The PFA submits that, however, Sergeant Sordello has had well over 12 months at his current progression point.
Consideration
The well-settled principles to be applied in the interpretation of enterprise agreements are set out in paragraph [8] above. The first step is to determine whether the disputed terms of the enterprise agreement have a plain meaning or are instead ambiguous and susceptible to more than one meaning. The language of the disputed terms is to be construed objectively, having regard to both context and purpose. A narrow and pedantic approach is to be avoided. Where there is ambiguity, evidence of surrounding circumstances can be admitted but only to establish objective background facts relevant to the meaning of the disputed terms.
Question 1: Should progression from Constable to Senior Constable be on the basis of clause 64.1 or 64.5?
The relevant heading for both clauses 64.1 and 64.5 in the Agreement is as follows:
“64. Movement through Progression Points”
Under the Agreement, both clauses affect the progression of movement for Victoria Police Officers.
Clause 64.1 says, “[a]ll Constables will be entitled to salary progression on the anniversary of their appointment subject to meeting the eligibility requirements contained in this clause.”
A plain reading of clause 64.1 refers to the salary progression of “all” Constables generally and subject to the other “requirements” in the remainder of clause 64. Clause 64.5 details one example of such “requirements”.
Clause 64.5 refers to “in situ promotion” specifically enabling Constables to progress to Senior Constable subject to the preconditions set out in that clause. That is, it makes specific provision for the progression of a Constable which is at progression point 4 to a Senior Constable which is at progression point 5.
Whilst clause 64.1 raises the entitlement to salary progression on the anniversary of appointment, clause 64.5 provides the mechanism by which Constables become eligible for the type of promotion that is in situ promotion to progress from Constable to Senior Constable.
Accordingly, progression from Constable to Senior Constable should be on the basis of clause 64.5.
Question 2: Does the word “service” in clause 64.5 include service recognised under clause 21?
Clause 21 is headed “Re-appointees and Appointment of Employees with Prior Policing Experience”.
Specifically, and relevant to clause 64.5, clause 21.2 provides as follows:
“An employee who previously held the rank of Sergeant or above who is appointed at the rank they previously held will be appointed at an increment that reflects their service at their previous rank.”
The use of the word “will” does not indicate the exercise of a discretion in the way that an alternate word like “may” would suggest, but rather an obligation.
The ordinary meaning of the word “reflects” means to mirror; that is, to give back an image or likeness as if by a mirror.[13] The intention of this clause is, as the heading says, to recognise previous service. A plain reading of the words indicates that in the instance of a Sergeant or higher rank, that recognition of service is to mirror the previous service.
Read at its plainest meaning, clause 21 imposes an obligation when appointing a Victoria Police Officer of the identified ranks to appoint them to an increment that mirrors their previous rank of service.
For the reasons above, the answer to Question 2 is yes.
Question 3: Does a part period of service recognised pursuant to clause 21.2 contribute to the period of 12 months specified in clause 64.11?
This question goes to the dispute between the PFA and Victoria Police regarding the recognition of past service that is less than 12 months. That is, whether this part period contributes to the 12-month period referred to in clause 64.11.
Progression pursuant to clause 64.11 has two parts, with the first part establishing an entitlement to progression and the latter creating a discretion for progression. The clause begins by stating that an employee “will” progress to the next progression point if they have received a salary at their current point for 12 months and have not been subject to a management or underperformance review. A plain reading of this part of clause 64.11 makes the entitlement to progression clear.
The second part of clause 64.11 provides that where 12 months has lapsed since the employee’s last progression (and where they have not been subject to a management or underperformance review), they may progress despite not having received 12 months’ salary payment at their current progression point. Progress in this instance “may” occur and is therefore discretionary. The discretion is to allow progression to the next salary point even where an employee has not received salary payment at their current progression level for 12 months.
Clause 21.2 is concerned with ensuring that certain Officers who return to service in Victoria at the rank they previously held do so at the increment that reflects the service at the previous rank. The context of that provision in terms of where it appears in the Agreement is clear. Any period of service recognized for the purposes of clause 21.2 is relevant for the purposes of the increment within a rank at which re-appointment of Officers with relevant prior service is made. There is no indication that clause 21.2 provides any other function.
No clauses in the Agreement, including clause 21, calculate past service on a monthly basis. That is, for the purpose of clause 21, recognition of past service is effectively recognition of the years of service as reflected in the increment or the rank the Officer held prior to re-appointment or appointment or, in the case of a law enforcement officer, from an agency outside Victoria (including in the United Kingdom and New Zealand).
For these reasons any part period of service recognized in clause 21.2 does not contribute to the period of 12 months specified in clause 64.11.
Conclusion
On the basis of the foregoing, the questions for determination are answered in the following manner:
Question 1: 64.5
Question 2: Yes
Question 3: No
The dispute is determined accordingly.
COMMISSIONER
[1] AE507544.
[2] (2017) 268 IR 285 at 310, [2017] FWCFB 3005 at [114] (Berri), which modified the principles distilled in Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd (2014) 245 IR 394 at 414-415, [2014] FWCFB 7447 at [41].
[3] Fair Work Act 2009 (Cth) sections 30C-30E.
[4] Fair Work (Commonwealth Powers) Act 2009 (Vic) s.1(a).
[5] [2022] FWC 1862.
[6] Ibid, [104].
[7] Australian Maritime Officers Union v Sydney Ferries Corporation (2009) 190 IR 193 (Black CJ, Jessup and Buchanan JJ), citing R v Kelly; Ex parte Victoria (1950) 81 CLR 64.
[8] Applicant’s submissions filed 16 August 2022, paragraph 2.
[9] Ibid, paragraphs 6-8.
[10] Ibid, paragraph 31.
[11] Ibid, paragraph 32.
[12] Ibid, paragraph 35.
[13] Merriam-Webster.com dictionary (online at 6 December 2022), “reflect”.
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