[2019] FWC 127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Police Federation of Australia
v
Victoria Police/Chief Commissioner of Police
(C2016/4411)

COMMISSIONER WILSON

MELBOURNE, 13 FEBRUARY 2019

Alleged dispute about any matters arising under an enterprise agreement and the NES;[s186(6)]. Whether insufficient consultation over proposal to introduce afternoon shifts. Whether OHS consultation provisions met. Whether introduction of shifts would be unjust or unreasonable.

INTRODUCTION

[1] This decision concerns an application by the Police Federation of Australia (PFA), pursuant to s.739 of the Fair Work Act 2009 (the Act) alleging a dispute arising under an enterprise agreement. The matter in dispute relates to proposed changes to rostering arrangements of Crime Investigation Units (CIUs) in the Eastern Region Divisions so as, to include an afternoon shift on a divisional basis, which is presently covered by provision of an afternoon on-call roster. The overall dispute is referred to in this decision as the Afternoon Shift Proposal.

[2] This decision considers the Victoria Police’s proposal against six provisions of the Victoria Police (Police Officers (excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 1 (the 2015 Agreement) namely those referring to organisational change, consultation, hours of operation and rosters and occupational health and safety and whether such provisions would prevent Victoria Police from implementing its proposal.

[3] The application was lodged in the Commission on 7 July 2016 and after being the subject of numerous protracted conciliation conferences before me was listed for hearing commencing 16 July 2018. The matter was heard on 16 July 2018 to 18 July 2018 and 17 October to 18 October 2018, with final written submissions in reply being received from the Applicant on 7 December 2018.

[4] Victoria Police concede, 2 and I concur, that the Commission has jurisdiction to deal with the dispute.

BACKGROUND

EVIDENCE

[5] Evidence in these proceedings was provided on behalf of the PFA by nine operational employees of the Victoria Police, Detective Senior Sergeant William Watkins, Detective Senior Sergeant Trevor Vondrasek, Detective Senior Sergeant Gordon Hynd, Officer in Charge at Baw Baw Criminal Investigation Unit, Detective Sergeant Marcus Boyd, Officer in Charge at Cobram Criminal Investigation Unit, Detective Sergeant Denis Smith, Detective Senior Constable Robert Kovacs Crime Intelligence Analyst, Detective Senior Sergeant Rod Stewart, Detective Sergeant Brendon Murphy, and Leading Senior Constable Mark Armstrong of Ballarat.

[6] Evidence on behalf of Victoria Police was provided by Detective Inspector Joy Arbuthnot, Inspector Pauline Williams, Superintendent Elizabeth Murphy, Superintendent Chris Gilbert and Detective Inspector Dean Thomas.

APPEARANCES

[7] Mr Nerio Baldini, Industrial Officer appeared on behalf of the PFA while Ms Deborah Siemensma of Counsel, instructed by Clayton Utz, appeared for Victoria Police. Permission for Victoria Police to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Fair Work Act 2009 (Cth) (the Act), with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).

WHAT IS THE DISPUTE ABOUT?

[8] In summary, Victorian Police’s proposal seeks to implement an afternoon shift for CIUs in Divisions 3, 4 and 5 of the Eastern Region which cover the areas of Shepparton, Benalla, Alexandra, Seymour, Morwell, Warragul and Wonthaggi.

[9] At present CIUs in the affected divisions work an eight hour day shift, generally between the hours of 8:00 AM and 4:00 PM followed by an “Availability Shift” of 16 hours within their designated service area, on a seven day a week rotating roster. An Availability Shift is one in which a police officer holds themselves ready for a return to work after their usual shift, and in return receives a standardised payment. 3 During the 16 hours detectives are on Availability, they must ensure that they are contactable and ready for duty should they be called out.

[10] Under the Afternoon Shift Proposal CIUs will continue to work their day shift within their designated service area however, they will then be required to work an eight hour afternoon shift between the hours of either 2:00 PM and 10:00 PM or 3:00PM to 11:00PM covering their larger Division. Under the proposal detectives will still be required to perform eight hours on Availability within their designated service areas between the completion of the afternoon shift and the commencement of the day shift on the following day however, Victoria Police contend that given that the afternoon shift will be performed by detectives throughout the Division as opposed to a detective’s designated service area they will only be required to perform the afternoon shift approximately one to two times per month. 4

[11] Discussions between the PFA and Victoria Police regarding the proposal commenced in or around December 2012, after which an extended period of communication ensued between the parties regarding the Victoria Police’s rationale for implementing the proposal weighed against the PFA’s concerns.

[12] Victoria Police submit that the rationale for the proposal is to enhance service delivery, improve services and identify service gaps in these Divisions, 5 bringing forward evidence that approximately 50% of serious crimes occur outside of day shift hours. Serious crimes must be responded to be Victoria Police and require the involvement of CIU detectives.6 As such the introduction of an afternoon shift roster will help improve service delivery to the public. Furthermore, Victoria Police submit that at present there is a cultural reluctance for uniformed officers to contact CIU detectives when they are on Availability which results in less contact being made with CIUs when they are on Availability which hinders the assistance they can provide to uniformed officers during this time.7 It is the Victoria Police’s belief that by having CIU detectives rostered on an afternoon shift that this will improve Victoria Police’s reaction times and ability to provide services to the public outside of the day shift hours.

[13] Victoria Police further argue that the proposal will allow detectives to attend crime scenes, interview witnesses, interrogate offenders and provide advice and specialist assistance to front line members. It is submitted that CIU detectives will have improved responsiveness during afternoon shifts given they will be able to listen to the police radio and contact general duty police officers more readily to ensure crime scenes are preserved, strategies and plans are put in place and attendance at crime scenes can occur immediately rather than after contact from a uniformed officer occurs. 8

[14] The PFA oppose the Victoria Police’s rationale submitting broadly that the workloads of CIU detectives will increase, causing fatigue and other occupational health and safety concerns whilst decreasing overall efficiency and service delivery.

QUESTIONS FOR DETERMINATION

[15] The final question for determination in this decision is:

“Does the operation of any of the following clauses of the Victoria Police (Police Officers (Excluding Commanders), Protective Service Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015, prevent Victoria Police from implementing a mandatory divisional afternoon shift roster in each of Divisions 3, 4 and 5 of Eastern Region:

Clause 8.2(b);

Clause 8.2(c);

Clause 25.2;

Clause 30;

Clause 161; or

Clause 162?” 9

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE

[16] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it. 10 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.11

[17] The Commission is required to examine whether an enterprise agreement’s dispute settlement procedure “requires or allows” the Commission to deal with the dispute. In order to do so, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 12 The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”13

[18] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. 14 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.15 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.16 The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.17 However, the relief sought may cast light on the true nature of the dispute in some cases.18

[19] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5) 19 and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.20

INTERPRETATION OF ENTERPRISE AGREEMENTS

[20] Interpretation of an enterprise agreement requires construction of the words of the instrument, with the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 21 (Berri) setting out the principles for such a task. In that matter, and after an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised 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.” 22

[21] The application of these principles, and especially to those in which ambiguity may be considered was further considered by the Full Bench in United Firefighters Union of Australia v Emergency Services Telecommunications Authority:

“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.” 23

POTENTIAL COMMISSION INTERVENTION IN DECISION MAKING

[22] It is accepted there may be an intervention in managerial decisions where the decision may have unjust and unreasonable outcomes, with the High Court deciding in response to the proposition that some matters were to be decided within the doctrine of managerial prerogative that such was not always the case, and that “many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee”. 24

[23] In considering whether intervention may occur, the test to be applied by the Commission has surrounded formulations of whether the decision has unjust or unreasonable effects on the employees concerned. For example, it has been found variously that a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee may be both unjust and unreasonable, 25 and that to require employees to move onto afternoon shift against their wishes may be “completely unreasonable and grossly unfair”.26 Workloads have been found to be “unfairly excessive and otherwise unreasonable”. 27

RELEVANT AGREEMENT PROVISIONS

[24] There are five clauses in the 2015 Agreement which have relevance to the determination of this dispute:

• The provisions of clause 8.2 dealing with the organisation change mechanisms within the Agreement;

• The hours of work provisions at clause 25;

• The provisions for dealing with arrangement of ordinary hours of work for Constables, Senior Constables, Sergeants and Senior Sergeants in clause 30;

• The occupation health and safety provisions of clause 161; and

• The consultation provisions at clause 162 setting out the mechanisms for change.

[25] The various relevant provisions of the 2015 Agreement are set out below:

“8. Organisational Change

…

8.2 Where the employer proposes to introduce a change to the regular roster or ordinary hours which impacts on the understanding of and reliance on regular and systematic hours of work of employees, the employer will:

(a) Provide information to the affected employees and the PFA about the change;

(b) Invite the affected employees and the PFA to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and

…

25. Ordinary Hours of Work for Full time employees other than Recruits

25.1 The ordinary hours of work for full time employees other than Recruits will be 80 hours per fortnight with 0.0463 of each hour of work performed granted as accrued time off, so that the employee’s average hours of work over a 12 month period are 76 hours per fortnight (exclusive of an unpaid meal break).

25.2 Other than for Officers, the employer will determine the times of commencement, and the days on which the ordinary hours of work are to be worked by a full time employee.

…

30. Arrangement of Ordinary Hours of Work for Constables, Senior Constables, Sergeants and Senior Sergeants

30.1 The ordinary hours of work for Employees will be eight hours per day worked continuously.

30.2 The employer may require an employee to work the employee’s ordinary hours of work according to a roster of shifts which may span across a range of unsociable and/or intrusive hours.

…

161. Occupational Health and Safety Objectives

161.1 The employer acknowledges and supports the rights of employees to work in an environment, which is, so far as is reasonably practicable, safe and without risks to health consistent with the Occupational Health and Safety Act 2004. The parties are committed to consultation and resolution of Occupational Health and Safety (OH&S) issues.

161.2 The employer recognises the PFA as a legitimate representative of employees for OH&S matters and undertakes to comply with relevant occupational health and safety legislation.

161.3 This Agreement commits Victoria Police and the PFA to improving health and safety. This will be accomplished through the ongoing development, in consultation with employees and their Health and Safety Representatives, of management systems and procedures designed, as far as is reasonably practicable to:

(a) identify, assess and control workplace hazards;

(b) reduce the incidence, severity and cost of occupational injury and illness; and

161.4 OH&S statutory requirements, as well as codes of practice, guidelines made by the Victoria WorkCover Authority and Australian standards are minimum standards and will be improved upon where practicable.

162. Consultation

62.1 OH&S consultative mechanisms will be established to address OH&S issues. Such mechanisms will be:

(a) in accordance with the Occupational Health and Safety Act 2004 (Victoria);

(b) established in consultation with employees and their Health and Safety Representatives; and

(c) consistent with the employer’s agreed dispute resolution procedures and the rights and functions of Health and Safety representatives.

162.2 Where an OH&S committee is established at least half the members of the committee shall be Health and Safety Representatives who are elected by the employees.”

CONSIDERATION

OPERATIONAL CONTEXT – REGIONS AND DIVISIONS

[26] Victoria Police is organised for operational purposes into four geographical regions: North West Metro, Southern Metro, Western Region and Eastern Region. 28 Each region is then subdivided into several divisions. Eastern Region covers a mix of metropolitan, regional and rural areas,29 and comprises five divisions including two within the metropolitan Melbourne area. Further:

“Each division in the Eastern Region is separated into a number of geographical areas, called "police service areas", that detectives and uniformed officers operate within. Generally they comprise areas defined by local government area boundaries. Within each police service area, there are a number of police stations. The number of stations generally depends on crime levels.” 30

[27] Detectives in the Eastern Region’s divisions are clustered into CIUs with there sometimes being only a few detectives engaged at each CIU:

“Each CIU in the rural divisions of Eastern Region is generally run by a Detective Sergeant, who is the supervisor in the unit. In Division 3 at Shepparton CIU and Division 5 at Latrobe CIU there is a Detective Senior Sergeant in charge supported by Sergeants and other staff. There is also a Detective Senior Sergeant, known as a "Crime Advisor", designated in each division who is responsible for crime strategy and in those Divisions (4 & 6) that don't have a Detective Senior Sergeant in charge and for those CIU that are led by a Detective Sergeant, the Crime Advisor assumes the managerial role. Underneath them in the supervision chain sit the Detective Constables and Detective Senior Constables.” 31

WHAT VICTORIA POLICE SEEKS TO DO

[28] Victoria Police’s proposal is to introduce a rostered afternoon shift for CIUs in Eastern Region, Divisions 3, 4 and 5 with the relevant shift then having divisional responsibility, instead of being confined only to the CIU’s police service area. Since some of the Divisions are geographically quite large, some employees working have concerns about what this might entail. Detectives working in the affected Divisions will have their working arrangements changed from predominantly day shift arrangements with additional working hours under the Availability system to a new requirement of being rostered for both day and afternoon shifts. A further key distinction between the existing and proposed future arrangements is that under the existing arrangements when a detective works a day shift, on weekends or is called upon to work after-hours they would not normally be called out to service an area outside their CIU’s police service area however, under the proposal they will be required to work the afternoon shift throughout their entire Division, being a larger area geographically.

[29] Victoria Police argues that the introduction of an afternoon shift roster will improve service delivery to the community and outlines its proposals as follows:

“1.4 Victoria Police proposes to introduce a rostered afternoon shift for Criminal Investigation Units (CIUs) in Divisions 3, 4 and 5 of the Eastern Region, to be covered on a divisional basis (Proposal). That is to say, rather than each CIU providing afternoon shift coverage to its own service area, detective(s) will be rostered to work an afternoon shift, covering the division.

1.5 The purpose of the Proposal is to provide minimum CIU service coverage between the hours of 2pm to 10pm (or 3pm to 11pm depending upon the CIU), 7 days a week in the relevant divisions.

1.6 With limited exceptions, CIU detectives in divisions 3, 4 and 5 currently work a day shift, being generally from 8am to 4pm, and are then on “availability” (Availability) for the next 16 hours.3 However, crime does not only occur during day shift hours. It occurs 24 hours a day, 7 days a week. Approximately 50% of serious crimes, which require the involvement of CIU detectives (otherwise known as CIU primacy incidents), occur outside of day shift hours. Victoria Police must provide services in response to this demand.”

(references omitted)

[30] Victoria Police couches its proposals as an improvement to community service without a corresponding increase in the amount of work to be undertaken by detectives. Its submissions to the Commission set out the motivators for that change, in the following manner:

“1.7 The introduction of an afternoon shift roster enables improved service delivery to the public. That is to say it enables detectives to respond to crime that is reported and to conduct investigative work such as attending crime scenes, interviewing witnesses, putting in place strategic plans, as well as providing specialist advice and instruction to general duties police officers at the time incidents occur.5 As uniform officers are rostered on a 24/7 basis, only rostering detectives on day shift accounts for merely one third of the opportunity for detectives to perform the key role of providing guidance to uniform officers in the course of their work.

1.8 There are a number of reasons why it is preferable to have a detective actually rostered on-duty rather than merely contactable on Availability during periods in which crimes occur. These reasons include:

(a) The fact that there is a cultural reluctance to disturb CIU detectives when they are on Availability, which means that detectives may not be contacted when they should be. Rostering detectives makes it significantly more likely that detectives will be contacted in relation to, and actually attend, incidents when they are required;

(b) It enables improved CIU responsiveness during the hours of afternoon shift. When detectives are rostered on-duty they can listen to the police radio and contact general duty police officers to ensure crime scenes are preserved, strategies and plans are put in place and/or can attend crime scenes immediately rather than wait to be contacted by a uniform officer at home. Moreover, whilst on-duty they will be already “kitted up”, often at the station with a police radio and ready to respond, rather than having to respond from home, often being woken up and/or needing to drive to the nearest police station to pick up operational gear;

(c) Detectives will work fewer hours outside of day shift hours compared with than under the current arrangement. That is to say, detectives will not be working for 24 hours (namely 8 hours on duty and 16 hours on Availability) but will instead be on-duty for 8 hours and then move to Availability for 8 hours;

(d) It gives certainty as to the times detectives are required to work, which allows better organisation of their personal affairs (work life balance) on the home front. Currently there is no certainty working day shift then being on Availability for the next 16 hours – not knowing if the telephone call will come through to their home advising of work to be done;

(e) There are welfare benefits from rostering the afternoon shift. Detectives can “switch off” rather than having to check their phones, remain alert and restrict their activities and movements for 16 hours on Availability.

(f) Under the Proposal detectives will come in for duty with their workload beneficially impacted by the fact that another detective has been rostered on the afternoon before to respond to matters that have arisen after day shift, or carry on with matters that have arisen during day shift. That way detectives are not commencing duty at 8am and being “dumped” with every matter that has arisen the previous day after the conclusion of day shift.” 32

(references omitted)

[31] Broadly speaking,Victoria Police puts forth with respect to the proposal that:

• There are benefits to the organisation and the community;

• There is enhanced flexibility within the proposal;

• The rostering of an afternoon shift will “provide more certainty as to when detectives will be working so as to enable them to organise their affairs on the home front”; 33

• The arrangements will benefit employees; 34

• It has complied with its enterprise agreement obligations, including the obligations to consult and address occupational health and safety matters.

• Victoria Police also argue that the PFA’s health and safety concerns and especially those about fatigue overlook some of the risk factors already in existence; 35

• consultation has been both lengthy and exhaustive; 36

• Accepted principles of management prerogative have not been infringed and permit the proposal to proceed. 37

WHY THIS IS OPPOSED BY THE PFA?

[32] In this matter, the PFA objects to the proposal by Victoria Police to change how detectives in CIUs respond to after-hours work in three of Eastern Region Divisions, namely Divisions 3, 4 and 5 for reason that it will increase detectives workloads, create occupational health and safety risks through increased fatigue and will decrease services provided to the public.

[33] With respect to detectives workloads,under normal work practices PFA submit that a CIU will generally have during any shift two members tasked to perform “Crime Response” duties with the remainder of detectives assigned to investigative duties. Detectives on a Crime Response shift are required to be available to respond to crime and therefore are unable to schedule investigative tasks during this time which would prevent them from responding to crimes. Crime Response tasks usually require either one or two detectives during any one call out which PFA submits accounts for approximately 10% of a detective’s work. 38

[34] While at larger CIUs the PFA submits there are sufficient numbers of detectives employed to provide Crime Response for three shifts per day seven days per week, in smaller CIUs such as in Divisions 3, 4 and 5 which are the subject of Victoria Police’s current proposal there are not enough detectives to cover three shifts per day. Therefore one detective will be assigned to perform Crime Response duties on the day shift with the afternoon and night shifts to be covered by placing a detective on Availability so that there is always at least one detective available to respond to crime. As such, Divisions with lower personnel numbers under the proposal will require detectives not currently rostered for Crime Response shifts such as Sergeants to start performing these duties resulting in increased workloads.

[35] Moreover, PFA submits that detectives will be required to cover larger distances than is currently required on Availability, resulting in an increase in fatigue of detectives. Presently, detectives are only required to cover their own service areas whilst on Availability; however under the proposal they will be responsible for Divisions spanning up to 200 kms in distance. PFA submits that this will increase detectives response times to call outs, potentially requiring detectives to work longer hours in order to attend call outs at locations further in distance, increase detectives’ fatigue and provide an inefficient use of resources. 39

[36] The PFA submit that past attempts to introduce the system both within Eastern Region and in comparable country Divisions in Western Region found that the proposal was not feasible. PFA submit that the crime that CIU detectives are investigating has not changed in nature or type to necessitate the change being sought by Victoria Police. That if anything, the crime is steadily increasing in line with population growth. The fact that the CIUs are already stretched and fully occupied exacerbates the effect of the Victoria Police’s proposal, making the decision unfair and lacking in consultation. 40

[37] The PFA and its members provided evidence objecting to Victoria Police’s proposal on numerous grounds. The written submission provided by the PFA prior to the taking of evidence disclose an objection to the proposal on the following bases:

• There has been insufficient consultation with the PFA and its members by Victoria Police; 41

• Consultation with the union and employees has been insufficient and ineffective and in all the circumstances a breach of the obligations within the 2015 Agreement; 42

• The proposals from Victoria Police are impracticable; 43

• Potentially as a further dimension of impracticability the proposals place an unreasonable demand on employees with them carrying the financial and physical consequences of the employers decision; 44

• The proposal will result in employees working longer hours for no additional remuneration. Although the number of investigation tasks required of detectives will not alter, employees will need to drive longer distances to attend the same number of investigations and follow-up inquiries as presently performed, and will be required to provide additional information to other employees to whom they hand over work to. For this, employees will receive no additional compensation; 45

• There will be insufficient staff to introduce the proposal since Victoria Police is not planning to provide additional resources to ensure the success of the proposal; 46

• It is an “amorphous proposal”, with Victoria Police declining the set out ground rules and contingencies but relying upon employees to “make it happen”; 47

• The proposal will potentially reduce Victoria Police’s standing and professional reputation within the community, with it being perceived that the response provided by police officers from another location is not as timely or of the same quality as the current level of service; 48

• The proposal is inconsistent with Victoria Police’s occupational health and safety obligations and, in particular, will diminish employees’ health and safety. 49

• There have been breaches of the 2015 Agreement’s obligations in relation to Occupational Health & Safety resulting from Victoria Police’s failure to consult with health and safety representatives or to properly assess and control the risks stemming from the proposal and especially that of fatigue, stemming from the significantly greater driving requirements on employees. 50

[38] Much of the evidence given in the proceedings served to illustrate these matters, with the contentions that the proposal would increase detectives’ workload, diminish service standards and would not achieve Victoria Police’s objectives. The PFA’s evidence also endeavoured to show that mooted support mechanisms would not work and that there was not an aversion to shift work generally, just to the proposed form.

Increase to work or workload

[39] DSS Watkins gave evidence in examination-in-chief that the proposal would vary the number of jobs to be undertaken, but not for the better:

“(Mr Baldini) So, what will the effect on service delivery be with this proposal?---I - it's my view that this will diminish service delivery.

Sir, in terms of the capacity of your unit are your current shifts fully taken over with your current - taken up, sorry, with your current workload?---Most definitely. We - well, the amount of work that is borne upon the modern day detective is ever increasing. I was thinking about this last night and it's not unlike a spoked wheel. You've got all of these spokes coming in, which is the jobs and the duties that is expected of a detective, into the hub and the detective himself being the hub, that the spokes of the wheel are ever increasing and the hub, I don't know if it has the capacity to keep dealing with this sort of workload.

So in terms of your capacity to absorb extra work?---We don't achieve the true best service delivery now because of we need to prioritise work and do what is the most important and is the most detrimental, and to increase the workload and increase the area of responsibility will inevitably have a further negative effect on the ability to provide best service delivery practice.

…

Under this new proposal, will that vary the number of jobs that members are required to do? Their workload?---Yes, so, I think it goes hand-in-glove that if they've got a bigger increase – sorry, a bigger area, an increase in area to respond to, that goes without saying that there's going to be a larger area of reported crime, and therefore their response to that will increase their workload.” 51

[40] DSS Hynd argues in response to the Victoria Police’s proposition that work may even-out between regions on an afternoon shift, that the proposal would result in greater impost of more difficult work for his CIU (Baw Baw). DSS Hynd puts forth that Victoria Police’s logic fails to take account of the various workloads between the CIUs. For example, while Latrobe will undertake work at Baw Baw CIU when on duty and vice versa, the statistics currently demonstrate that 70% of crime which is dealt with by detectives occurs in Latrobe, as such the new proposal will result in Baw Baw CUI picking up additional crime from Latrobe with no additional compensation or resources. 52 DSS Hynd further explained that after an arrest is made, the “member will retain carriage of that investigation, albeit that it wasn't an original investigation, as in it's not going to get handed over once offenders have been charged. What that means is that there may well be follow up to do on that investigation over the ensuing days which will take that detective away from Baw Baw.”53 He also argued it wold be improbable that all detective work could simply be switched from day to afternoon shift. For example, there would be practical difficulties in taking witness statements after working hours on an afternoon shift. While DSS Hynd noted that there is no official cut off time for detectives dealing with witnesses, that “witnesses are people who we want to cooperate with us. They don't want to be disturbed after about 8 pm at night”, there is also “the likelihood of witnesses who say: "I don't want to be bothered at night, can I meet you in the morning" or "Can I come and see you before work," or, you know, it's horses for courses.”54

[41] DSS Hynd argued that the assumed staffing numbers used by Inspector Williams for her conclusions about the impact of the Afternoon Shift Proposal 55 did not take account of what he saw as the actual availability of detectives in his Division. For more than half a year his unit has had three, not four detectives available, as a result the ability to respond to service demand may fall over without a lot of impact. DSS Hynd elaborated on this explaining that:

“…with four detectives, each with nine weeks leave a year, that's 27 weeks leave, so for more than half the year we're actually talking about three detectives, not four. Now, all manner of things can impact on that very quickly - courts, unplanned leave, training. So, I can go from 100 per cent staff to 50 and 25 per cent staff in a very short period of time and that's when we fall over. We fall over with a lot of impact, whereas a bigger office can sustain those impacts because they've got at least a bit more wriggle room as far as staff numbers go.” 56

[42] DS Boyd, the Officer in Charge at the Cobram CIU strongly disagrees that there would not be an increase to the amount of work or the individual workload required of detectives, arguing it would be five and half hours to drive one way to the extremity of his Division to attend a job which otherwise could have been attended by a detective at a closer CIU. 57 Having a detective tied up for up to 11 hours for travel alone would result in a decrease in available detectives at his CIU as well as potentially a decrease in resources and equipment which the detective requires to attend the job in the wider Division. This means there are fewer detectives and resources to respond to the local call outs at the CIU which affects the workloads of those remaining detectives. Presently, DS Boyd explained that he has three detectives available including himself, not four as put forth by Victoria Police given he does not have a replacement for one of his detectives who is on secondment at Wangarratta Divisional Tasking Unit. Moreover, given DS Boyd is in charge of the CIU he really only has two detectives on roster. The CIU is then required to cater for absences of detectives required at trial; on leave; on secondment or any other manner of dynamic situations which take them away from the CIU. Suddenly, the proposal resembles a detective looking for a handball with no one running past to receive the pass, which affects the CIU’s ability to undertake work in crucial areas such as the monitoring of registered sex offenders.58 Cobram is responsible for monitoring 33 registered sex offenders, and the proposal would likely have a negative effect not only on that work but also on their overall service delivery, since detectives will be spread thinner.59

[43] It was also argued that the need to attend to work, at short notice, a long way from a detective’s home base will add considerably to the work needed to be undertaken. This comes about because of having to travel long distances to get to the new work, which is inefficient in itself, as well as meaning that the work in a detective’s home region will continue to pile up and not be done.

[44] The proposed new arrangements would lead to a detective potentially being called out anywhere within their Division. In some cases that might mean travel of several hundred kilometres. Detective Sergeant Boyd from Eastern Division ED4 spoke in examination-in-chief of having to travel from his base in Cobram, to Tom Groggin, in remote north eastern Victoria:

(Mr Baldini) “How long would it take you to drive to the furthest corner of your division?---I've done an analysis, through Google Maps, of where the worst case scenario could be, and you're talking of going from Cobram CIU area to the extreme east of Towong Council area, you're looking at somewhere about five and a half hours to go to Tom Groggin Station. So it's unfair. It's not right, it's extremely tough terrain and it's - I'm just scratching my head wondering why we're in this position.

That's each way, is it?---No, that's one way.” 60

[45] Victoria Police do not accept this characterisation is illustrative of what detectives may be expected to may be called upon to do, since:

“…in cross-examination he conceded that this was the most extreme hypothetical he could think of and he did not dispute that there had only been one job in Tom Groggin in at least 2 years, which was a planned operation. It was uncontested that more crime occurs in more populous areas and, accordingly, it is less likely that crime will occur in a remote, less populated area.” 61 (references omitted)

[46] DSS Watkins argued that, because of the additional time for travel, it was foreseeable that victim cooperation would be lost when dealing with armed robberies at petrol stations if a detective has to come from a long way away. The rational being firstly that requiring frontline officers to maintain a guard on a property while a detective travels a large distance to attend the scene will likely reduce police coerciveness at crime scenes. For example, Senior Sergeants only have the power to impose a lock down on a private premise, not uniformed officers, as such should an owner refuse to allow the uniformed officer to continue to lock down a premise then the crime scene may become contaminated through public access which risks the integrity of the investigation. 62 Moreover, rapport will be lost where there is a change from the detective who originally attended the scene and built up a level of trust with witnesses at the time of the incident to the subsequent detective(s) who undertake the follow up work.63

Potential service standard reductions

[47] DSS Watkins argued service delivery will diminish as a direct result of the proposal. 64 The additional time taken to travel to crime scenes such as unexplained deaths, could affect a witnesses recollection of events, increase the risk of contamination of the scene, reduce the likelihood of the detective having local knowledge which can speed up resolution of the crime, all of which diminish service delivery.65

[48] DSS Vondrasek argued that afternoon shifts will not ensure that detectives are able to respond in more timely way than they do that already. Putting forth that increase in distances covered and times taken to travel will impact on service delivery as well as the numbers, frequency and method of handovers to other detectives. 66 While handovers to another detective may be in person they also may be by email or phone which can decrease the effectiveness and efficiency of the information being conveyed.67

[49] The detectives involved in managing registered sex offenders are particularly pessimistic about the proposed changes, seeing that the most likely result would be that their sex offender management work will either get swamped by the need to attend to the afternoon shift and not be able to be performed at all, or that sex offender management work will need to become a low priority. DSS Hynd argued that insufficient resources are already being applied to the management of registered sex offenders, with that problem not being isolated to his CIU at Baw Baw. He contended that if there are more shifts to be worked, then some things would need to drop off, which becomes a problem with one person doing all the sex offender work. 68. DS Smith, at Latrobe CIU gave evidence that it will not be feasible to deal with sex offenders in the course of an afternoon shift, with the work that will be done not being at the same level of professionalism as now. Presently a detective may program a “surprise visit”, but that work might be stopped if a detective thought they might be called out to work outside of their police service area. To furnish the roster they will have to close down the RSO any other proactive work, this is because they will need two detectives to cover a day shift and five or six to cover weekend shifts; in totality this means tumbleweeds will emerge.69

[50] Detectives believe, no doubt justifiably, that relatives of suicides expect there will be a very early attendance of relevant officers, in order to allow the body to be removed from where it was found. DS Murphy from Western Division 5, at the Campaspe CIU argued that relatives of a deceased expect prompt attendance at the scene and then would expect the body to be moved or to be released as soon as possible; however, family’s expectations about suicides may be different to those surrounding a homicide. 70

[51] Part of Victoria Police’s rationale for introducing afternoon shifts is its perception that detectives at home on “Availability” sometimes reacted badly to uniformed police calling them – and interrupting their evening or sleep. Coupled with that perception is the argument that the current perceptions hinder good policing and that better responsiveness will emerge with the presence of afternoon shifts.

[52] DSS Vondrasek is aware that detectives do not like getting called and they may express displeasure if it is for a trifling matter; but does not agree that there is a cultural reluctance on the part of the uniformed members to contact detectives on Availability. 71 DSS Stewart, from Western Division 5, at Bendigo, accepts that some uniformed police have a cultural reluctance to contact detectives. This would be “a small minority; a minuscule minority”, with it being a long time ago that detectives expressed unhappiness in being contacted.72 DS Murphy, from Western Division 5, at the Campaspe CIU, agreed that sometimes uniformed police will call detectives couching it as a “courtesy call”. He personally has expressed unhappiness when this occurs, noting that uniformed officers sometimes lack the skills to make a judgement in the field about whether to call a detective on Availability after hours. DSS Boyd at the Cobram CIU does not believe there is a cultural reluctance by uniformed officers to contact detectives after hours on Availability, and is offended about the proposition that there is a cultural effect to not contacting detectives after hours; or that sometimes people are hesitant to call detectives. DSS Boyd is very conscious of the uniformed/CI relationship; he knows where he came from. While detectives should not be unhappy when a more junior police officer disturbs their Availability time, there sometimes has been discussion.73

[53] A great deal evidence of was given on this subject and the product of the evidence was no higher than to reinforce that Victoria Police holds the perception that some detectives can be hostile when disturbed; and that that the problem can be corrected with afternoon shifts, and that the PFA and detectives neither hold the perception nor the belief that it could be improved with afternoon shifts.

Support mechanisms will not work

[54] The PFA witnesses also do not have any confidence that their concerns would be addressed if they experienced problems after the roster change had been introduced. Detectives distrust the mechanisms within Victoria Police which deal with workload crises etc. They concede that they can escalate a concern to an Inspector but the impression of their evidence is that they have no faith that such escalation would bring about a positive result.

[55] Witnesses disbelieve Victoria Police’s data and claims both about available staff numbers as well as forthcoming additions to the staffing complement. For example DS Hynd said the suggestion that a complaint about workload could be resolved by going to HR was “a nonsense”. 74 Numerous witnesses argued that staffing assumptions and work estimations75 made by Victoria Police’s DI Williams were inaccurate or were understated.76 DSS Vondrasek noted that while the analysis favours the proposal, the figures are without leave deducted. The proposition that an extra afternoon shift will be worked an average of once every two months, together with the proposition that this is not a great burden is not accepted; with the proposition being that DI Williams did not adjust the figures to account for leave of detectives.77

[56] In some cases, the response to matters assessed in the risk assessment creates its own inefficiencies. DSS Watkins considered that driving a detective home for reason of fatigue takes another detective or uniformed officer away from service delivery; two members are required to do that. Since marked cars are not suitable for covert activities the proposition that detective could use marked cars when unmarked ones are not available is fraught with danger. 78

Shiftwork already performed

[57] Superintendent Murphy, for Victoria Police, argued that many of the PFA objections were inconsistent with the fact that afternoon shifts are already worked in some areas, and that “CIUs often roster afternoon shifts where it suits them to do so. For example, CIUs in ED3 have rostered 200+ afternoon shifts a year because it suits them to do so”. 79 DSS Watkins conceded there were afternoon shifts presently in place, but took offence at the suggestion that this was done in a way to suit employees.80

[58] DSS Vondrasek stated that while Latrobe CIU has not rostered weekend afternoon shifts, that is not a product of the detectives’ preference for a work/life balance – instead it has to do with what goes on during the week. 81 Whether there is an expectation of an afternoon shift is presently left up to those managing the particular CIU. In ED 5, there is flexibility for the Sergeant to say that they will not have one in Division 5.82 Echuca also provides an afternoon shift when resources allow; some weeks there may be three or four, others only two.83 DS Boyd, working at Cobram in ED 3, while agreeing there were not many afternoon shifts, did not agree there were almost none or that those that were worked were ad hoc; saying instead that staff were not afraid to work afternoon shifts, with them being rostered when the operational need arose,84 arguing that Victoria Police’s proposal might take flexibility away:

“And if there were an operational need and you worked out there was a pattern whereby there was a lot of crime in the afternoon, you could change the roster and have a lot of rostered afternoon shifts, if you wish?---Absolutely, we've always been flexible, and this takes our flexibility away.” 85

[59] Detectives in Baw Baw on average work two afternoon shifts per week, with Mr Hynd working one of those on a Wednesday. 86

[60] DS Murphy, presently working in the Western Region, Division 5, agreed that on Mondays to Fridays in his Division, there is an expectation of an afternoon shift unless there is some contingency such as unplanned absences or some other difficulty, but there is flexibility from the Inspector about whether it happens or not. 87 While an afternoon shift operates, a trial of a night shift following an earlier Commission decision, determined that there is not a service demand in Western Region Division 5 for a night shift.88

[61] In relation to the current “Availability” system and the effects that would be brought with an afternoon shift, it was said by DSS Hynd from Baw Baw CIU that at the moment detectives are not called out on every shift, but with an afternoon shift, the frequency has to be greater. DS Boyd from Cobram argued that an advantage with the Availability system is that the manager may be more flexible with detectives working in office hours. 89 An effect of having an afternoon shift locked into is that if a detective is on an afternoon shift then they are not available for general work that may arise. Further, uniformed members are not always available to help with search warrants etc. DS Boyd considered that the introduction of afternoon shifts will lessen his effectiveness and compromise the overall job. Knowing that some available staff are on afternoon shift, day work will be impacted – for example the execution of warrants will be delayed.90

Remuneration

[62] The PFA also argued that the afternoon shift proposal would result in employees working longer hours for no additional remuneration resulting in manifest injustice and unreasonableness. 91 Such came about since employees were already in receipt of the commuted overtime allowance, established to recognise the need for regular after hours work, and that detectives will work greater aggregate hours under the afternoon shift proposal than currently and that little or no time will be worked that attracts an excessive hours payments and that such is unfair since there will be no new payments in addition to those presently being paid.

[63] Victoria Police’s response on the subject of there being additional hours to be worked without additional remuneration was to the effect that the commuted overtime payment would continue to be paid to detectives, as would excessive hours payments. 92

VICTORIA POLICE’S RESPONSE

[64] Victoria Police reject the PFA’s claims and submit that the proposal will not have adverse effects on occupational health and safety nor employee’s work/life balance, with it being argued that there will be a reduction in the hours that CIUs work outside of day shift hours. Currently CIUs are rostered for the entire 16 hours between the finish of their day shift and the commencement of their day shift on the following day. It is argued that under the proposal detectives will only be rostered for an average of between 1.25 and 2.1 eight hours afternoon shifts per month. 93 Although detectives will continue to work their eight hour day shift, five days per week, they will then only be required to be on Availability for a further eight hours per day, resulting in a reduction of overall hours.

[65] It is said that such a changes will provide for greater certainty for detectives in their hours given there will be a decreased requirement to remain ‘available’ outside of their rostered hours allowing them to ‘switch off’ when not rostered to work as opposed to requiring them to remain alert and checking their phone. Additionally, detectives will have reduced workloads when commencing shifts as those working the immediately preceding shift as they will have had greater opportunity to complete outstanding tasks than if they had been on Availability during that time. 94

THE MAJOR CONTENTIONS

[66] Broadly speaking, and after considering the full range of evidence provided to the Commission, the matters requiring determination in this decision cover these topics:

• Whether there has been sufficient consultation about the proposal, which may be a contravention of Clause 8.2 (Organisational Change);

• Whether potential safety risks of service delivery, workload and resourcing have been sufficiently controlled, or have been the subject of sufficient consultation for OHS purposes, which may be contraventions of either Clauses 161 (Occupational Health and Safety) and 162 (Consultation); and

• Whether matters of service delivery, workload, resourcing or remuneration would lead to a finding that the impact of the Afternoon Shift Proposal is such that the Commission would intervene in the rostering directions given by Victoria Police under Clauses 25 (Ordinary Hours of Work for Full time employees other than Recruits), Clause 30 (Arrangement of Ordinary Hours of Work for Constables, Senior Constables, Sergeants and Senior Sergeants), because it was satisfied the rosters established by the police force had an effect that was, or was likely to be, unjust or unreasonable.

Consultation about the Afternoon Shift Proposal

[67] Clause 8 of the 2015 Agreement, Organisational Change, provides a number of relevant requirements. Clause 8.1 requires that after a decision to introduce major change of a defined nature has been made that Victoria Police must advise affected employees and the PFA as soon as practicable after the decision has been made with the requirement extending to information about the intended benefits as well as to provide an opportunity for the submission of alternative proposals. Clause 8.2, in contention in this matter, requires Victoria Police when there is a proposal to introduce a change to the regular roster or ordinary hours of work to provide information, invite and consider the views of employees and the PFA. When changes are proposed in accordance with either clauses 8.1 or 8.2, the following clauses are also operative:

“8.5 Where change is to be introduced in accordance with sub-clause 8.1 or 8.2, the employer and the PFA commit to effective consultation, in regards to the change, to enable:

(a) resolution of issues affecting the employer and its employees;

(b) encourage a problem solving approach focusing on long term gains for both the employer and employees;

(d) recognition of the role of the PFA in the implementation of change within Victoria Police.

8.6 Notwithstanding this clause, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees or their representative.”

[68] Employees giving evidence were sharply critical of what they believe was inadequate consultation about the proposal, or inadequate responses given by management to their concerns. DSS Watkins, from Shepparton CIU, considered he had received no detailed response to his comments. DSS Vondrasek, at Latrobe CIU believed the consultation was directive. DSS Hynd, from Baw Baw CIU gave evidence that there had been some but not meaningful consultation, and that officers were told “you can't win this. All you can do is delay it.” 95

[69] DS Boyd, who is the Officer in Charge at Cobram CIU relayed that despite being the OIC he was never sat down as an OIC and asked his thoughts. Instead he was told get on with it and get it done. When he raised his concerns with A/Inspector Coglin, he was told “bad luck, make it work”. 96 DSS Watkins recalled being told that "This is what we require and we need to make it work together".97

[70] In response to the proposition that the changed shift arrangement proposal was actually a situation with “a lot of consultation, just no agreement”, DSS Vondrasek answered ‘A lot of the sort of consultation to me was directive, like, "We're going to do this", you know.’ 98

[71] Commonly the PFA witnesses believed that they had received insufficient information about the proposal for it to be considered consultation. For example, it was said there had been inadequate material circulated for an informed decision, with insufficient detail in the form of Standard Operating Procedures. It was put to DSS Vondrasek, from Eastern Division 5, that his inspector, DI Dean Thomas, held the view that “Regional and divisional leadership has consulted with Division 5 members extensively on the roster change proposal”. DSS Vondrasek’s response was that he does not agree with the premise; they were given limited details and were never provided sufficient information. 99

[72] The PFA argues that clause 8.2 has been contravened by Victoria Police in several respects:

• It is said that the police service provided misleading information, contrary to its obligations in clause 8.2 (a), with that misleading information rendering invalid the steps Victoria Police may have taken under clauses 8.2 (b) and (c) to ascertain or consider the views of employees and the PFA; or

• Alternatively, it is argued that Victoria Police failed to either properly ascertain or consider the views of employees as required under clauses 8.2 (b and (c).

[73] Victoria Police argues that the contention that it provided misleading information to employees and the PFA in contravention of its obligations under clause 8.2 (a) was not put during the hearing of this matter and did not feature until the the PFA’s final written submissions, arguing that the subject cannot now legitimately be the subject of consideration. It further argues that it has satisfied each of the requirements within clause 8.2 to consult. 100

[74] The PFA criticises the motives for the Afternoon Shift Proposal as being either unfounded or fallacious, by pushing Victoria Police’s claim that it would improve service delivery, 101 while downplaying, what the PFA submits is the police force’s actual motivator for the change being an expected reduction in expenditure, with Victoria Police accepting that this was one part of its examination of the proposal.102

[75] The purpose of clause 8.2 is to inform employees of proposed change that will affect them and sufficiently inform them about the context of a proposed change, as well as to provide information about a proposals form and substance, in order for employees or their representatives to provide their views, so they may be taken into account and potentially change the direction of some or all of the proposal. The proposition that misleading information given by an employer in supposed compliance with a consultation requirement, such as in clause 8(2)(a), may misdirect or control employees’ views is plainly obvious. Outrageous or untruthful contextual material may well skew or mask the responses by such a degree that the responses may not be relied upon for decision, let alone a hand-on-heart claim that effective consultation has taken place in conformity with an enterprise agreement.

[76] From what may be discerned from the evidence, the following steps were taken by Victoria Police to commence and develop the Afternoon Shift Proposal:

• In 2012, a service delivery review for Eastern Region was commenced with the purpose of the review being, to conduct an evidence based assessment of CIU service demand and delivery practices by identifying organisational risk posed by service gaps and provide alternative options for the provision of best practice investigative policing services in the Eastern Region. 103The review also looked at spending and whether the service, for which that money was being spent, was being delivered effectively and efficiently and in line with public need.104

• Data collection and consideration took place in order to determine what the service demands were for CIUs in the rural Divisions and how service delivery could be improved to better respond to those demands. 105

• In 2013, A roster change proposal was put to the Eastern Division divisional leadership groups. 106 The proposals provided to the leadership group included references to options for restructuring of hours so that there was an afternoon shift for CIUs in Divisions 3, 4 and 5. The identified options were;107

• ED 3– “PM - Div response x 1 member drawn on a pro rata basis from Divisional CIU”

• ED 4 – “PM - 7 days- Div response x 1 member drawn on a pro rata basis from Divisional CIU”

• ED 5 – “PM - Div response x 2 member drawn on a pro rata basis from Divisional CIU”

• In May 2013 another management group, the regional leadership group made a decision to formally engage in consultation with employees and the PFA, with a view to implement the proposal. 108

• In 2013, consultation in some form is said by Victoria Police to have taken place. 109

• In early 2014 employees were invited the members to put forward more flexible options that would suit them. 110

• In 2014 there were a series of “roadshow presentations” to CIUs in each of the affected Divisions. 111 Detective Inspector Arbuthnot’s evidence deals with the matters she recollects being raised in the presentations. The presentations were tailored to each of the Divisions, setting out information about what was referred to as the “service delivery review” and providing information about the review’s “rationale, methodology for the project, key findings and recommendations”. The presentations drew attention to the obligations of the then operative 2011 enterprise agreement and indicated “blueprint actions” being the intent to “[d]evelop a flexible resourcing model to ensure service delivery can be maintained in response to a range of operational demands”.112 Each of the presentations provided details about the proposed changes, covering proposals for each of the afternoon and night shift. The indicated proposals for afternoon shifts were as follows:

ED 3 – “• Afternoon Shifts - 7 days - Shepparton, Seymour, Alexandra and Benalla CIU will provide a unit as a one (1) up response unit for the Division. Shifts to be allocated pro rata over 12 months, as per the number of members in each unit. This duty will commence at 1500 hours.” 113

ED4 – “• Afternoon Shifts - 7 days

• Wangaratta, Cobram and Wodonga CIU will provide a unit as a one (1) up divisional response unit. Shifts to be allocated pro rata over 12 months, as per the number of members to each unit. This duty will commence at 1400 hours.” 114

ED 5 – “• Afternoon Shifts - 7 Days

• Latrobe, Baw Baw and Bass Coast CIU will provide a two (2) up divisional response unit. Shifts to be allocated pro rata over 12 months, as per the number of members in each unit. This duty will commence at 1500 hours.

• The 2 members may be rostered on duty at different offices in a response capacity.

• Where the 2 members are rostered from the same office they will operate as a patrol unit.” 115

• Aside from providing copies of the presentations themselves, Ms Arbuthnot recalls about these roadshow presentations that:

“There is a voluminous amount of material which has been generated in the course of consultation in the time since the first proposal in 2013. The major events relating to consultation in relation to the Current Proposal from my perspective are as follows:

(a) In January and February 2014, the Project Team took a roadshow to each of the divisions to in which we gave a Powerpoint presentation and discussed all of the issues relating to the change that was being proposed, including the methodology of the review, the findings of the review, the proposal for change and the rationale for that proposal. At each of the presentations, using the Powerpoint presentation I provided an overview of the consultation clause in the applicable enterprise agreement, explaining the purpose of consultation after a formal decision had been made to change the rosters, alternative proposals and the purpose of consultation. I said words to the effect of:

"This is your opportunity to identify any issues which you have and engage in consultation with us and local management to resolve those issues. If you have alternative proposals, you should present those alternative proposals which meet service delivery and community needs, please provide them to us within 28 days. This proposal is not set in stone, we are here to work with you."

This is reflected in the notes of the "Consultation" slide of each of the Powerpoint presentations. […]

(b) At these presentations, Inspector Williams and I recorded the issues raised by members in response to the proposal. We collated these issues into a document and circulated it by email, along with a copy of the presentation, on 27 February 2014 to the nominated contact for members in each division. In response to this email, Detective Sergeant Michael ENGEL from Division 3 forwarded the email on to other members of his division, saying "Below is the response from Inspector Arbuthnot. I haven't replied and certainly don't intend on replying based on the advice provided from the TPA. Please disseminate to your membership." This email came back to me when Detective Senior Constable Paul Shortis forwarded it on later that day, with an inquiry about draft rosters. […].

(c) At the roadshow presentations, I said to the members that the Project Team had prepared hypothetical rosters to demonstrate how the proposal would work in practice. In November 2015, when the project was recommenced I forwarded the hypothetical rosters for each division to the I&R managers for distribution to the CIU. […].

(d) On 1 June 2016, in response to requests by the PFA, Ms Brigitte Santucci of Victoria Police sent an email to the PFA, copying me in, attached to which was a document entitled "Service Delivery Review - Roster Options - Risk Assessment - 'Synopsis' - Eastern Region". […].

(e) On the 19 May 2016, I phoned into a meeting which was held at Knox Police Station. Among those present were Brigitte Santucci, Libby Murphy, Mark Langhorn, Nerio Baldini (PFA) and Allan Wroblewski (PFA). At this meeting, which had been scheduled for an hour, Mr Baldini expressed the issues he had with the Current Proposal for over an hour and a half until some of those present said that they had to leave and the meeting ended. The issues raised were the same raised by PFA previously and responded to in meetings held by myself at Seymour with Mr Baldini and in written response to Mr Baldini via Victoria Police's Workplace Relations Department.” 116

[77] Victoria Police argue that some of the contingencies for decision making under the proposal were explained to employees as part of the consultation as well as being the case that the proposal was the subject matter of adaptation as a consequence of consultation:

“45. In response to concerns raised by individual CIUs throughout the consultation process, the Project Team has been flexible in considering alternatives to achieve additional coverage. For example we have considered CIUs providing coverage for their own service areas as has been adopted in Division 6 (discussed in paragraph 10 above).

46. The Project Team has also considered CIUs providing coverage for an afternoon shift as a cluster. For example, in Eastern Region Division 3 (ED3), Shepparton is the busiest CIU. The surrounding ED3 stations of Benalla, Seymour and Alexandra provided feedback that they were not comfortable providing divisional coverage on the basis that an afternoon shift report was most likely to occur in Shepparton's service area, and would require them to drive long distances.

47. Accordingly, we recommended that Shepparton provide its own afternoon shift coverage, as it is resourced to do so, and that Benalla, Seymour and Alexandra provide coverage as a cluster, which they are already doing on the weekends during the day shift. This was not accepted by the PFA.

48. During the consultation process, when discussing the Proposal with the ED3, ED4 and ED5 members and PFA, I have clarified with those parties that the Project Team has made certain assumptions in terms of resourcing and that there is flexibility built into our modelling. For example, the staffing numbers reflected in the data for each CIU may not take into account current absences due to leave or illness.” 117

[78] For reasons which are not entirely clear there was a hiatus in the decision-making relating to the proposal for much of 2014 and 2015. The project was recommenced in November 2015, 118 with Assistant Commissioner Rick Nugent advising “all members of Eastern Region Divisions 3- 6”:

“Good Afternoon,

A Service Delivery Review project was established some time ago to review and conduct an indepth analysis of Criminal Investigation Unit resource deployment and service delivery practices across Eastern Region.

As part of the review an analysis of ER investigative rostering practices and service demand data was completed. This analysis informed the decision of the Regional Leadership Governance Committee (RLGC) to endorse roster reform proposals in the four rural divisions. The recommendations were communicated to affected members by their Divisional Leadership Group.

Consultation with affected staff members took place in 2014 as part of the project; however the project was postponed shortly thereafter whilst a Fairwork hearing took place. Following a decision of the Fairwork Tribunal the project will now recommence.

I am writing to ensure you are aware of the project recommencement and I encourage you all to participate in the consultation process as it moves forward.

Should you require more information, your Divisional Operation Support Inspector, who is the responsible person for implementation of the reforms, will be able to assist with any enquiries.

Regards” 119

[79] On 10 March 2016 Inspector Mark Langhorn wrote to some of the affected employees, seemingly those in Eastern Region Division 5, about the service delivery review and advised them:

“I&R members,

Yesterday (9/3/16) 1 spoke with Nerio Baldini from the The Police Association in respect of the meeting you had with him around the CIU Service Delivery Review and roster reform. In line with the Enterprise Bargaining Agreement, I am happy to meet and discuss alternative rostering options that are in line with the preferred management model. By way of background, the overall preferred management model is to introduce an on-duty CIU response 24/7. Nerio indicated that there seemed to be a lack of information around the rationale for the reform. As the presentation to all CIU member was held back in 2014, I have again provided a copy of the presentation and rationale. The current discussions and consultation as part of this overall project is to introduce a morning and afternoon shift on-duty response across the division, seven days per week. The feedback I am receiving is that a number of you think this cannot work and cite issues such as trials, courses and travel times. Ultimately, as the I&R Inspector, 1 have the ability to place members on Availability if the minimum rostering requirements cannot be met for unforeseen reasons.

By way of transparency, l have provided several documents of data which support the reform and the move to a seven day a week morning and afternoon shift response.

The documents below contain data which clearly indicates EDS have sufficient numbers of detectives to cover these shifts, inclusive of court, courses, ostt and other unforeseen circumstances. There is a breakdown of sub-incident data (specific to CIU criteria) which indicates the demand on CIU members. The CAD Data clearly indicates increased demand on Friday, Saturday and Sunday afternoon shifts, including the breakdown of crime related CAD calls in those timeframes.

I have attached rostering principles and Investigative operating principles for your consideration also. I have reattached the management preferred model that EDS DLG agreed to two weeks ago.

In line with the Victoria Police Enterprise Agreement I am happy to receive alternative models in respect of the morning and afternoon shift response within the next 14 days. Any submissions can then be considered by EDS DLG and will be replied to. Failing further submissions within this time frame, a date will be set to implement the management preferred model in respect of an afternoon divisional response each day. I am also happy to meet with members as a collective or individually within this time to address any issues.” 120

[80] On 16 March 2016 Mr Baldini from the PFA sought further information from Ms Arbuthnot, with him putting forward more than a page of issues raised by his members which he considered yet to be addressed.

“Hi Libby,

I was talking to Joy Arbuthnot about the material relating to the proposal for ED3. She advised that you have carriage of the project and are the person to approach.

I have, on a number of occasions, requested several documents relating to the roster proposal including the document which identifies the service delivery gaps and the risk assessment that has been conducted in relation to the health and safety issues that the roster proposal raises. I understand that the members have also sought these documents.

In addition I am unaware of any answers to the issues raised by the members.

Service Delivery

● Investigators will be rostered in such small numbers that the ability to form an arrest/warrant crew will be unlikely. Uniform assistance will need to be sought. Assuming Uniform members are available this will take front line operatives away from their core tasks. They may not be available thereby preventing the formation of an arrest/warrant crew on an immediate basis. Shepparton is a highly active area and such occurrences are frequent. Members in the Southern Cluster will be spread even more thinly than is currently the case. This inability to provide immediate response due to lack of rostered members is in itself a reduction in service delivery.

● Shepparton members are working more crime shifts limiting their capacity to make appointments and to be out of the office pursuing lines of inquiry

[143] Save for the contentions to the effect that longer distances would have to be driven by detectives, opening themselves up to matters of fatigue, there is little firm evidence before the Commission on the PFA’s contention, couched as it is, that there would be “additional hours” or “longer working hours” worked by detectives. Instead the evidence about hours of work is mostly that there would be a time shift of the hours worked by detectives. The contentions regarding travelling longer distances also appear to be mainly from the perspective of there being a greater proportion of a shift spent travelling than at present, without necessarily being additional hours as such being worked. When evidence was given about the extremities of driving, such as that given by DS Boyd, regarding the possibility of having to travel from Cobram to Tom Groggin, one is left with the impression that this would rarely if ever occur, and if it did would probably be no more a regular occurrence than the very long distances which might be called upon to be travelled under present shift arrangements.

[144] In support of the PFA’s arguments on remuneration, the Commission is left, at best, with the general contentions that detectives will work greater aggregate hours under the afternoon shift proposal than currently and that little or no time will be worked that attracts an excessive hours payments and that such is unfair since there will be no new payments in addition to those presently being paid. The first proposition, that the proposal will result in more hours being worked in total, is not well established in the evidence, and neither is the second, that it will be more likely than not that total hours to be worked will be so high as to cause fatigue.

[145] In total the evidence resolves not so much as there being additional or longer working hours for detectives, merely different hours.

[146] The 2015 Agreement includes an allowance for regular additional hours worked by certain categories of employee, including detectives, referred to as the commuted overtime allowance. The allowance, established by Clause 46, presently an amount of $13,821 per year for sergeants and senior sergeants, 172 is “intended to cover instances of overtime worked in the normal flow of work for Detectives or employees with similar patterns of work”, with the allowance being payable “in lieu of any payment for overtime worked, or any recall to work”.173

[147] Separately, it is noted both that clause 69 provides for “Shift Allowances for Inspectors and below” and that the subject of its contents were not the subject of submissions from either party about its application. Amongst other things, the clause provides for these benefits “for each rostered ordinary hour”;

“(a) An unsociable hours allowance will be paid in accordance with Schedule D for each ordinary hour worked between 1800 hours and 0100 hours on Monday to Friday;

(b) An intrusive hours allowance will be paid in accordance with Schedule D for each ordinary hour worked between 0100 hours and 0700 hours on Monday to Friday;

(c) A weekend allowance will be paid at the rate of 39.36% of the employee’s ordinary rate for each ordinary hour worked between 0700 hours and 1800 hours on a weekend and Christmas Day, Boxing Day, New Year’s Day and Australia Day (or any substitute day);”

[148] The unsociable hours allowance is presently $5.76 per hour, and the intrusive hours allowance is $7.36 per hour. 174

[149] As a result, the proposition that the afternoon shift proposal is unjust and unreasonable because there will be inadequate remuneration for additional or longer hours of work is not made out.

Whether adverse inferences to be drawn

[150] PFA put forth that Victoria Police failed to address their concerns raised with respect to insufficient staffing levels and therefore under the rule in Browne v Dunn 175 the Commission should therefore find that the staffing levels were insufficient and that the proposal should not be implemented as implementation would result in unfair consequences to members.176

[151] Moreover, PFA submit that the failure of the part of Victoria Police and in particular that of Inspector Arbuthnot to produce any documents which were originally used by Victoria Police to set out the scope of the proposal should cause the Commission under the rule in Jones v Dunkel 177 to find adversely to Victoria Police. PFA seeks the Commission to find in favour of the view that such documents were not only unfavourable to Victoria Police but also demonstrated that Victoria’s Police reasoning for implementing the proposal was to reduce the costs of availability, as opposed to increasing service delivery as put forth by Victoria Police. It was argued this rendered the consultation undertaken by Victoria Police as being not genuine and inconsistent with clause 8 of the 2015 Agreement.178

[152] The “rules” in Browne v Dunn and Jones v Dunkel relate to rules of fairness and have application to an extent within the Commission, noting of course, that the Commission is not bound by the rules of evidence and procedure.

[153] Succinctly stated the “rule” in Jones v Dunkel has been summarised as “that an unexplained failure by a party to give evidence, to call a witness, or to tender documents or other evidence, may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the party’s case”. 179

[154] In relation to matters within the Commission’s jurisdiction, the Full Bench has articulated the proper approach to the rule therein on several occasions:

“[102] The rule in Jones v Dunkel has been aptly described as ‘a rule of common sense and fairness in relation to the fact finding process.’ 180 The rule was considered extensively in Tamayo v Alsco Linen Service Pty Ltd (Tamayo).181 In that matter the Full Bench made the following general observation about the rule in Jones v Dunkel:

‘1. The unexplained failure by a party to give evidence, to call witnesses, or to tender documents or some other evidence may in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the party's case.

The rule has no application if the failure is explained, for example, by the absence of the witness coupled with a reasonable explanation for not compelling attendance by subpoena, or by illness or some other availability. 182

The significance of the inference depends on the closeness of the relationship of the absent witness with the party who did not call the witness. Considerable significance may attach if the absent witness is either the party or a senior executive of a corporate party closely involved in the circumstances in question and present during the hearing of the case. 183

The rule provides that an inference may be drawn in certain circumstances not that such an inference must be drawn. 184

2. The rule permits an inference that the untendered evidence would not have helped the party who failed to tender it and entitles the Commission to more readily draw any inference fairly drawn from the other evidence. But the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in evidence, or to convert conjecture and suspicion into inference. 185

3. The rule only applies where a party is `required to explain or contradict' something and this depends on the issues thrown up by the evidence in a particular case. 186

4. The rule only applies to the failure to call a witness who is not a party to the proceedings if it would be natural for the party to call that witness, or the party might reasonably be expected to call the witness in question, or as Glass JA said in Payne v. Parker, `the missing witness would be expected to be called by one party rather than another'. His Honour said that this condition:

‘. . . is also described as existing where it will be natural for one party to produce the witness, or the witness would be expected to be available to one party rather than the other or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other. It has been observed that the higher the missing witness stands in the confidence of one party, the more reasons there will be for thinking that his knowledge is available to that party rather then to his adversary. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so. Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman; his safety officer; his accountant; his treating doctor.’

A party is not necessarily expected to call their own employees, though the more senior employee the more reason for concluding that the employee's knowledge is available to his or her employer rather than any other party. 187

5. The evidence of the missing witness must be such as would have elucidated the matter. In Payne v. Parker Glass JA said:

‘. . . according to Wigmore the . . . condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts, might have proved the contrary, would have had a close knowledge of the facts, or where it appears that he had knowledge. I would think it insufficient to meet the requirements of the principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.’ 188

[103] Section 591 of the Act provides that the Commission is not bound by the rules of evidence and procedure and, pursuant to s.590, the Commission ‘may inform itself in relation to any matter before it in such manner as it considers appropriate’. Further, s.577(a) provides that the Commission must perform its functions and exercise its powers in a manner that ‘is fair and just’. As the ‘rule’ in Jones v Dunkel is fundamentally concerned with issues of fairness the Commission will give consideration to its application in an appropriate case. We adopt the observations made in Tamayo.

[104] A breach of the rule in Jones v. Dunkel may lead to the drawing of an adverse inference. The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party's case: not an inference that the uncalled evidence would have been positively unfavourable to the party's case or positively favourable to the opposing party's case. 189 A breach of the rule in Jones v. Dunkel may also result in a more ready acceptance of the opposing party's evidence on the fact in question. However, a breach of the rule does not automatically prevent a finding being made that is favourable to the party who has failed to call relevant evidence on the question: other evidence may properly support the finding notwithstanding such failure.

[105] The impact on the fact finding process of an unexplained failure by a party to call or tender apparently relevant evidence within that party's control is ultimately a matter in the discretion of the member hearing the case at first instance. That discretion is to be exercised in accordance with the dictates of commonsense and fairness. Absent an error of principle, a breach of the rule in Jones v Dunkel will only give rise to error on the part of a member at first instance if the member acted unreasonably in drawing or failing to draw the relevant inference resulting in factual findings that are manifestly unfair.

[106] The rule is breached by the unexplained failure of a party to call evidence on a fact in issue that the party might reasonably have been expected to call. It is most usually invoked in relation to the unexplained failure of a party to call a witness who is in that party's ‘camp’.” 190 (citations in original)

[155] At its centre, the rule in Browne v Dunn was described by the High Court as being “essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit”. 191 In the context of matters being dealt with in this Commission, the Full Bench has held that:

“[26] The rule in Browne v Dunn is not just a rule of evidence, but a dimension of procedural fairness. It requires that a party give appropriate notice to the other party and its witnesses of any imputation that it intends to make against them, whether as to their conduct relevant to the case, or to credit.” 192

[156] The matters about which the PFA contends adverse inferences should be made include these:

• Jones v Dunkel

• Draft operating principles conceded by Inspector Williams and Detective Inspector Arbuthnot to have been prepared which were not brought forward to the Commission; 193

• There was an absence of rebuttal evidence in relation to DSC Kovacs evidence that he had not been consulted as a health and safety representative; 194

• There was an absence of evidence from Victoria Police dealing with its obligations under the OHS Act; 195

• There had been a failure by Victoria Police to produce an originating scope document for the project that led to the afternoon shift proposal; with it argued that a finding should be made “that on the basis of the evidence before it, the purpose of the Proposal is to reduce the cost of availability”; 196

• There is no evidence that Victoria Police ever considered the views of the PFA arising out of such consultation in forming the decision which became the afternoon shift proposal; 197 and

• There had been no evidence from Victoria Police dealing with the concession made by Inspector Williams that expenditure had been one of the drivers of the afternoon shift proposal. 198

• Browne v Dunn

• There had been a challenge to the evidence given by PFA witnesses that “with current staffing levels, the day to day running of the CIUs would render the proposal unworkable” which should lead to a finding that “that staffing numbers are not sufficient to allow the proposal to be implemented”; 199

• Given that DSC Kovacs had not been called for cross examination, no part of his evidence should be disbelieved. 200

[157] Victoria Police’s response to these contentions include the following;

• Jones v Dunkel

• In relation to standard operating procedures, they were not provided to employees since the relevant police know how the management structures work, “[T]hey are just simply business as usual in Victoria Police, so I wouldn't have been telling them something that they didn't already know”. 201 Consequently it is argued “the draft document would not have assisted the Commission in its task and does not give rise to a Jones v Dunkel inference”.202

• On the matter of consultation with DSC Kovacs;

“… the alleged failure to consult with Kovacs does not give rise to a Jones v Dunkel point because, as noted above, a failure to consult with Kovacs would not contravene the Agreement and would not affect the quality of the decision to implement the Proposal. As to the substance of the occupational health and safety concerns referred to by Kovacs, Victoria Police led extensive evidence and its witnesses were cross-examined.115 The PFA submission, to the effect that Victoria Police did not contest that the Proposal is unsafe, is incorrect. The issue was directly contested.” 203

• In relation to the subject of documents which may show the scope the originating project it was argued that;

“the reference to “scope” was merely the scope of Inspector Arbuthnot’s own work – her own work product, comprising countless documents, over many years – it was not the scope of the Regional Leadership’s terms of reference. The circumstances do not give rise to a Jones v Dunkel inference. The documents are not material to any question before the Commission. They would not have assisted the Commission in its task. It also does not follow, as the PFA suggests, that the absence of such documents means that the purpose of the proposal was to reduce expenditure on Availability” 204

• Browne v Dunn

• On the subject of rosters and resourcing, Victoria Police argue they challenged the PFA contention that the Afternoon Shift Proposal is unworkable with current staffing as well as submitting the rule has no application to the present circumstances. 205

• The rule has no application to consideration of the evidence of DSC Kovacs since it was not necessary to cross-examine him in the context of the hearing which heard and debated evidence about the OHS concerns of affected detectives. 206

[158] Objectively, the evidence does not permit inferences to be drawn about any of the matters for which the PFA contends. There was ample provision of information from Victoria Police to the affected detectives and the PFA both before the commencement of these proceedings, after they had commenced, as well as in the course of the actual hearing.

[159] In relation to the Jones v Dunkel claims, pertaining to an unexplained failure that “may, not must” lead to an inference that the uncalled evidence would not have assisted the party’s case the absence of information or evidence on the subjects referred to does not lead to the view it was not produced since it would not assist Victoria Police; instead the prevailing view is that it was simply unnecessary to the matters requiring determination, owing either to it being irrelevant or already adequately dealt with through other evidence.

[160] The Browne v Dunn submissions, arguing there was an obligation “to give appropriate notice to the other party … of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit” also do not meaningfully coalesce after consideration of the evidence. The contentions made by Victoria Police were stated from the start by their chosen witnesses and maintained throughout the proceedings. There was no lack of notice to the PFA by Victoria Police of its case, and no matter of fairness arises to the PFA.

[161] As a result, no inferences are made against Victoria Police about the evidence it did not bring forward.

Whether the decision is unjust or unreasonable

[162] One of the difficulties in assessing the overall evidence in this matter – and in regard to the contentions that the proposal has an unjust or unreasonable effect – is the palpable distrust of the management perspective held by the employee witnesses. The distrust – anger even – has likely not been assisted by the tendency of Victoria Police to respond over-bureaucratically to employee concerns rather than through responses that would show the matter being raised by the detectives has been decisively acted upon, removing the subject matter as a potential problem. On the other hand, the unshakable opposition by the detectives raising the matters, coupled with a tendency to repeat their already well-known opposition, with the repeated request for information already provided, or for further information that even if provided would have doubtful persuasive properties, would surely have sapped the potential for Victoria Police’s managers to respond with help and warmth.

[163] The core facts about policing resources in the affected regions are simply not agreed.

[164] The PFA and its members distrust that Victoria Police will make sufficient employees available to manage the roster order building sufficient relief in order for leave to be taken off for other absences such as attendance at court to be accounted for. Similarly employees distrust that local accommodation will be sufficiently available as an answer to the potential for long return journeys from distant assignments, or that unmarked motor vehicles or “detective kits” will, in fact be available to detectives when needed and working on shift.

[165] Employees doubt when they approach senior managers with their actual concerns, together with a request that shiftwork be modified or set aside for a period that the senior managers will do anything about the problem.They speculate that, being frontline police officers, they will bear the brunt of community dissatisfaction arising from decisions forced on them by circumstance after the commencement of the Afternoon Shift Proposal. For example, detectives foreshadow greater distress and even complaints from families of suicides who may be required to wait much longer periods for the arrival of a detective who is coming from some distance away before a body may be released. They expect that service station proprietors or hold-up victims may complain because they may have to wait much longer for the arrival of a detective after a hold-up before they may resume their business.

[166] Detectives also foreshadow poorer policing outcomes as result of implementation of the Afternoon Shift Proposal. Those who manage registered sex offenders foresee that it will be far more difficult to monitor the activities of such people if the detective performing the monitoring is working an afternoon shift. Because of their changed hours and focus it will be difficult to pay a visit during the course of an afternoon shift – necessarily be available hours to perform such checks will be somewhat truncated when compared with the hours available on a day shift. Similarly detectives expecting to speak to potential witnesses believe that there will be a much shorter window of opportunity available to them than would otherwise be the case.

[167] These matters divide essentially into two categories; apprehensions the employees have about the availability of resources, as well as the expected diminution in the standard of service to the community.

[168] The police officers’ concerns about the expected diminution of service to the community and the likely level of complaint or anger on the part of citizens expecting police service may well be real, although the extent of the reality on the subject is presently an unknown. The police officers who gave evidence about their experience in the Western region did not especially establish the claim.

[169] There is not anything especially controversial in the proposition that a family of a suicide or the proprietor of a service station who have to wait longer for police service are likely to complain about that and no doubt with some level of emotion, justifiable distress or anger. Ordinary citizens are no doubt quite prepared to ensure public servants – including police – understand when their service expectations are not met. However, while the foreseeability of increased community complaint may be real, the evidence does not establish it to a point where it is unreasonable or becomes a danger for the police officers concerned. The likelihood of increased community concern complaint is, in any event, ultimately a responsibility of the Chief Commissioner of Police, if it stems from his active decisions or those of his senior managers, rather than of frontline detectives in rural and regional divisions. Bluntly put, if a change in community service standards leads to more complaints, and if that appears to be something the managers are prepared to wear, such does not automatically lead to a finding that the consequences for frontline staff are unjust or unreasonable.

[170] While the PFA and police officers’ acute level of distrust about the Availability of necessary resources, both human and physical, may speak volumes about the state of the employees’ relationship with Victoria Police, it does not decisively establish the key proposition the PFA put forward, namely that the lack of resources will be so severe as to give rise to a finding that implementation of the Afternoon Shift Proposal is untenable, for that reason that it would have unjust or unreasonable consequences upon the employees concerned.

[171] The evidence overall does not support a finding there are reasons to intervene to prevent the Afternoon Shift Proposal. Although the afternoon shifts will undoubtedly cause inconvenience and discomfort for the employees concerned, such likelihood is far away from the proposition that because the effect of the proposal would be unjust or unreasonable the proposed afternoon shifts are in contravention of clauses 25 and 30 of the 2015 Agreement.

CONCLUSION

[172] For the reasons set out above, I find that there has been consultation as required on the part of Victoria Police with the affected detectives and that there are not reasons for the Commission to intervene in the police force’s decision on the Afternoon Shift Proposal.

[173] The Commission’s answer to the question for determination is as follows:

Q: Does the operation of any of the following clauses of the Victoria Police (Police Officers (Excluding Commanders), Protective Service Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015, prevent Victoria Police from implementing a mandatory divisional afternoon shift roster in each of Divisions 3, 4 and 5 of Eastern Region:

Clause 8.2(b);

Clause 8.2(c);

Clause 25.2;

Clause 30;

Clause 161; or

Clause 162?

A: No.

[174] As a consequence, the PFA’s application is dismissed.

COMMISSIONER

Appearances:

Mr N. Baldini for the Applicant.

Ms D. Siemensma of Counsel, instructed by Clayton Utz, for the Respondent.

Hearing details:

2018.

Melbourne;

16-17 July; 17-18 October.

Final written submissions:

9 November 2018 for the Applicant.

20 November 2018 for the Respondent.

Printed by authority of the Commonwealth Government Printer

ATTACHMENT 1

1 AE418283.

2 Exhibit R11, Respondent Outline of Submissions, [2.4].

3 Ibid, Part 10.

4 Exhibit R11, [2.17].

5 Ibid, [1.7].

6 Ibid, [1.8].

7 Ibid, [1.8(a)].

8 Ibid, [1.8(b)].

9 Ibid, [1.9]; Transcript, PN 13 – 21.

10 Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30]–[32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [25].

11 Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCFB 2019 [52].

12 CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

13 SDA v Big W Discount Department Stores PR924554 at [23].

14 AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [23].

15 Ibid [47].

16 MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.

17 MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [21]-[22].

18 United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].

19 The Commission must not make a decision that is inconsistent with the FW Act, or a fair work instrument that applies to the parties.

20 MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32].

21 [2017] FWCFB 3005.

22 Ibid [114].

23 [2017] FWCFB 4537.

24 Re Cram; Ex Parte N.S.W. Colliery Proprietors' Federation Ltd [1987] HCA 28; (1987) 163 CLR 117 F.C. 87/030 Attachment 12

25 Airline Hostesses' Case (Print C6667; (1975) 172 CAR 637).

26 Inspector May v Reckitt Benckiser (Australia) Pty Ltd [2009] NSWIRComm 63.

27 AEU and Minister for Education, (Print L8274).

28 Exhibit R3, Witness Statement of Detective Joy Arbuthnot, [4].

29 Ibid, [4].

30 Ibid, [16].

31 Ibid, [18].

32 Exhibit R11.

33 Ibid, [2.18].

34 Ibid, [1.8].

35 Ibid, [2.14].

36 Ibid, [3].

37 Ibid, [2.5].

38 Form F10, PFA Originating application, Q4.3.

39 Exhibit A14, Applicant Outline of Submissions, [4].

40 Ibid, [3.7]

41 Ibid, [1.6].

42 Exhibit A16, Applicant Reply Submissions, [3.5].

43 Exhibit A14, [1.4].

44 Ibid, [3.7].

45 Exhibit A16, [3.1].

46 Ibid, [3.2].

47 Ibid, [3.3].

48 Ibid, [3.7].

49 Exhibit A14, [1.4].

50 Ibid, [3.4].

51 Transcript, PN 97-99; PN 185.

52 Transcript, PN 1776.

53 Ibid, PN 1775-1776.

54 Ibid, PN 1811.

55 Exhibit R1, Witness Statement of Inspector Pauline William, [38].

56 Transcript, PN 1776.

57 Ibid, PN 2107-2108.

58 Ibid, PN 2107-2122.

59 Ibid, PN 2122.

60 Transcript, PN 2108 – 2019.

61 Exhibit R12, Victoria Police Closing Submissions, [13].

62 Transcript, PN 152-154.

63 Ibid, PN 95-96.

64 Ibid, PN 167.

65 Ibid, PN 169-170.

66 Ibid, PN 1049; 1055.

67 Ibid, PN 1056.

68 Ibid, PN 1789; 1842-1850.

69 Ibid, PN 2996.

70 Ibid, PN 1744.

71 Ibid, PN 1702-1709.

72 Ibid, PN 1530-1531.

73 Ibid, PN 2125.

74 Ibid, PN 2044.

75 Exhibit R1, [38].

76 For example, Watkins, PN 785-787 and Vondrasek, PN 1071 and Boyd, PN 2113.

77 Transcript, PN 1071.

78 Ibid, PN 227-228.

79 R5, Witness Statement of Superintendent Elizabeth Murphy, [55].

80 Transcript, PN 238 – 240.

81 Ibid, PN 1193.

82 Ibid, PN 1492 – 1507.

83 Ibid, PN 1621 – 1627.

84 Ibid, PN 2341 – 2345.

85 Ibid, PN 2346.

86 Ibid, PN 1839; 1981; 2073.

87 Ibid, PN 1621 – 1622.

88 Ibid, PN 1597 – 1603.

89 Ibid, PN 2106.

90 Ibid, PN 2288 – 2319.

91 Exhibit A15, Applicant Closing Submissions, pp.2 – 3.

92 Exhibit R12, [23] – [25].

93 Exhibit R11, [2.17].

94 Ibid, [1.8 (c)-(e)].

95 Transcript, PN 1783.

96 Ibid, PN 2141.

97 Ibid, PN 898.

98 Ibid, PN 1288.

99 Ibid, PN 1088.

100 Exhibit R12, [76].

101 Exhibit, A14, [3.5.2].

102 Transcript, PN 280.

103 Exhibit R3, [34].

104 Exhibit R1, [15].

105 Exhibit R3, [37].

106 Ibid, [44].

107 Ibid, Attachment JA 6.

108 Ibid, [45], [49] – [50].

109 Exhibit R3, [79].

110 Ibid, [56].

111 Exhibit R1, [44].

112 Exhibit R3, Attachment JA-13, pg. 7.

113 Ibid, Attachment JA 11.

114 Ibid, Attachment JA 12.

115 Ibid, Attachment JA 13.

116 Ibid, [79].

117 Exhibit R1.

118 Exhibit R3, [79 (c)].

119 Ibid, Attachment JA17, pp. 56.

120 Ibid, Attachment JA17, pp. 58.

121 Ibid, [79(e)].

122 Ibid, Attachment JA 17.

123 Ibid, Attachment JA 17, pp. 70

124 Ibid, [79(d)]; Attachment JA 16.

125 Ibid, Attachment JA 17 pp. 85-86.

126 Ibid, [83].

127 Ibid, JA 17; Exhibit A14, pp.2.

128 Exhibit A14, pp. 2 – 3.

129 Ibid.

130 Ibid.

131 Transcript, PN 1088.

132 Ibid, PN 229.

133 Ibid, PN 1288.

134 Exhibit A14, [3.7]; Exhibit A15, [4.4].

135 Exhibit A15 [3.4], [4.5].

136 Exhibit A14, [3.7].

137 Exhibit A11, Witness Statement of Robert Kovacs, pp.1.

138 Ibid, pp.4.

139 Exhibit R11.

140 Transcript, PN1850; 3109.

141 Exhibit A14, pp. 9-10.

142 Exhibit A15, [3.4].

143 Exhibit R12.

144 [1998] HCA 28, (1998) 194 CLR 355, per McHugh, Gummow, Kirby and Hayne JJ, [69] – [71].

145 Exhibit A16, [53].

146 Exhibit R3, Attachment JA 16, cover email, 23 May 2016.

147 Ibid, Attachment JA 16.

148 Exhibit A11, pp.4.

149 Exhibit A12, Reply Witness Statement of Robert Kovacs, [5].

150 Exhibit R3, Attachment JA17 27 May 2016, pp.7.

151 Ibid, 2 June 2016, pp.1 – 2.

152 Ibid, pp 4.

153 Print C6667; (1975) 172 CAR 637).

154 Exhibit A14, [3.1].

155 (Print L8274).

156 Re Cram; Ex Parte N.S.W. Colliery Proprietors' Federation Ltd [1987] HCA 28; (1987) 163 CLR 117 F.C. 87/030 Attachment 12

157 (Print M2151).

158 Inspector May v Reckitt Benckiser (Australia) Pty Ltd [2009] NSWIRComm 63.

159 Exhibit R12, [4].

160 Ibid; with reference to CEPU v Essential Energy[2018] FWC 570 at [52]; and Police Federation of Australia v Victoria Police/Chief Commissioner of Police[2015] FWC 924 at [27].

161 2015 Agreement, cl 7.1.

162 Ibid, cl.25.2.

163 Ibid, cl.30.2.

164 Exhibit R1.

165 Exhibit A15, [3.2].

166 Exhibit R5, [11].

167 Exhibit R3.

168 Transcript, PN 300.

169 Exhibit R12, [38].

170 Exhibit A15, pp.2 – 3.

171 Exhibit R12.

172 2015 Agreement, Schedule B – Salary Related Allowances; allowance “COT 2”, payable to an “employee not above the rank of Senior Sergeant employed as a Detective” (cl. 46.2)

173 2015 Agreement, clauses 46.10 and 46.1.

174 Ibid, Schedule D – Shift Allowances.

175 (1893) 6 R 67.

176 Exhibit A16, [3.2].

177 (2008) NSWCA 35.

178 Exhibit A16, [3.3].

179 Re Woolworths Group Limited[2019] FWCA 7, [44].

180 Xiu Zhen Huang v Rheem Australia Pty Ltd Print 954993, 9 February 2005 per Lawler VP, Leary DP and Deegan C at [33].

181 Print P1859, 4 November 1997 per Ross VP, Drake DP and Cargill C.

182 Payne v. Parker (1976) 1 NSWLR 191 at 202 per Glass JA.

183 Dilosa v. Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582.

184 Café v. Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280 at 287.

185 Jones v. Dunkel,op. cit., at 308, WN (Pt 1) (NSW) 557 at 582; Whitehorn v. R (1983) 152 CLR 657 at 690 per Dawson J.

186 Jones v. Dunkel, op. cit.

187 Earle v. Castlemaine District Community Hospital (1974) VR 722 at 728 and 734.

188 Payne v. Parker (1976) 1 NSWLR 191 at 202.

189 Brandi v Mingot (1976) 12 ALR 551 at 559-560 per Gibbs ACJ, Stephen, Mason and Aickin JJ; R v Buckland [1977] 2 NSWLR 452 at 457.

190 Mr Richard Hyde v Serco Australia Pty Limited[2018] FWCFB 3989.

191 MWJ v The Queen [2005] HCA 74, [38].

192 City of Stirling v Mr Kevin Emery[2018] FWCFB 2279.

193 Exhibit A15, p.4; Exhibit A16, [37].

194 Exhibit A15, p.5.

195 Exhibit A15, p.5; Exhibit A16, [68].

196 Exhibit A15, p.7; Exhibit A16, [86].

197 Exhibit A16, [74].

198 Ibid, [83].

199 Exhibit A15, p.4.

200 Exhibit A15, pp.5; Exhibit A16, [61].

201 Transcript PN 516, (DI Arbuthot XXN)

202 Exhibit R12, [45].

203 Ibid, [71].

204 Ibid, [95].

205 Ibid, [36].

206 Ibid, [70].