Police Federation of Australia v Victoria Police/Chief Commissioner of Police
[2015] FWC 924
•2 JULY 2015
| [2015] FWC 924 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Application to deal with a dispute
Police Federation of Australia
v
Victoria Police/Chief Commissioner of Police
(C2014/1198)
DEPUTY PRESIDENT SMITH | MELBOURNE, 2 JULY 2015 |
Alleged dispute concerning civilian clothing allowance.
Introduction
[1] This is an application by the Police Federation of Australia (PFA) to deal with a dispute in accordance with the dispute resolution procedure contained in the Victoria Police Force Enterprise Agreement 2011 [[2011] FWAA 8194] (the Agreement). This application is made pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act).
[2] The Agreement provides a procedure for the resolution of disputes about matters arising under the Agreement by conciliation and arbitration. 1 Unfortunately conciliation failed and the matter in dispute requires arbitration.
The issue in dispute
[3] The application concerns a dispute relating to the operation of Clause 88 of the Agreement. Clause 88 provides:
88. Civilian Clothing Allowance
88.1. An employee (excluding Recruits and Protective Services Officers) required to work in civilian clothes shall be paid an annual allowance as specified in Schedule C.
88.2. An employee who is required by the employer to have and maintain a uniform and is directed from time to time to work in civilian clothes will be paid a daily allowance as specified in Schedule C for each day of such work.
88.3. The allowances in this clause have been calculated by reference to the different costs incurred in purchasing civilian clothing.
88.4. An employee is not able to be in receipt of an annual uniform clothing allowance and an annual civilian clothing allowance at the same time.
[4] The dispute is whether or not Tactical Intelligence Officers (TIO’s) in investigation units are required to wear uniforms or civilian clothes in the performance of their duties.
[5] The document upon which Victoria Police relies is the Victorian Police Intelligence Doctrine (VPID) 2 which was last updated in December 2014. It is not inappropriate therefore that reference can be made to the position duties detailed in a position description of a TIO with an effective date of 15 December 2014.3 Indeed, the two seem to be interdependent. The position duties are described as follows:
“1. In accordance with Region/Division/PSA plans perform a range of general operational policing duties including, preventative and reactive foot and mobile patrols, apprehending, charging and giving evidence against persons believed to have committed offences, taking reports and statements from victims and witnesses to crime/incidents, reception and watchhouse duties.
2. Provide a prompt support service to calls from the community.
3. Provide assistance during search, seize an arrest activities, including surveillance and covert operations for intelligence purposes.
4. Engage in the collection, evaluation, collation, analysis and controlled dissemination of intelligence relative to Victoria Police operational objectives to serve the needs of the intelligence process as per the Victorian Police Intelligence Doctrine.
5. Access and utilise a variety of computer systems and applications in order to collect, maintain, prepare and disseminate intelligence and information relating to significant traffic, crime and public order issues and/or targeted and recidivist criminals.
6. Maintain a comprehensive knowledge of developments, legislation and initiatives relevant to intelligence analysis and systems aimed at identifying customer needs and improving operational service deliverables to PSA, Divisional, Departmental and Corporate management.
7. Utilising sophisticated intelligence tools, prepare and present timely and comprehensive intelligence products to operational members, investigators, Divisional managers and Command on significant traffic, crime and public order issues and/or targeted and recidivist criminals, repeat victims and high risk community locations.
8. Ensure the development of harmonious and shared working relationships within the division and other areas of Victoria Police and external agencies in relation to intelligence analysis and the sharing of information pertaining to significant traffic, crime and public order issues and/or targeted and recidivist criminals.
9. Perform duties as required under the Emergency Management Act.”
[7] However, Victoria Police argues:
● That a proper construction of Clause 88 is that “required to work” relates to any requirement of the employer from time to time and cannot be read as an inherent requirement of any particular job. This view, it is submitted, is supported by s.62 of the Victoria Police Act 2013 (Vic); and
● In any event, given the provisions of the Fair Work (Commonwealth Powers) Act 2009 (Vic) there is no jurisdiction for the Fair Work Commission to determine when a police officer can or cannot wear a uniform.
Background
[8] On 6 March 2014, Emmet Dunne, Assistant Commissioner, Eastern Division, issued a Regional instruction requiring TIO’s to be in uniform, 4 except where local arrangements had been made. This led to the notification of a dispute. Arising from this notification a recommendation was issued on 19 January 2015:
[1] I am satisfied that the Direction of Assistant Commissioner Dunne constituted a Direction requiring work to be done in a manner inconsistent with the usual practice for those officers who presented for duty in plain clothes. In the ordinary circumstances, clause 11.8 would apply. I’m not persuaded that the word “work” should be narrowly read. The usual practice contained in clause 11.8 has no bearing on the merit or otherwise of the proper application of clause 88 of the agreement.
[2] However, an argument was raised very lightly in relation to the jurisdiction of the Commission having regard to s.62(1)(b) of the Victorian Police Act 2013. I propose to make the following recommendation:
(1) The TIOs who have worn plain clothing to work in Eastern Region, Division 2 be permitted to wear plain clothes until the dispute about clause 88 is determined.
(2) That Victoria Police not take any action to prejudice those employees who continue to wear plain clothes.
(3) That Victoria Police not pay the allowance but keep a record so that if the dispute is resolved in favour of the PFA, the allowance can be paid retrospectively.
[9] The recommendation was accepted.
The evidence
[10] Evidence led by the PFA was given by:
● Leading Senior Constable Victoria Wilshire;
● Leading Senior Constable Sven Eagles;
● Leading Senior Constable Anita Dunshea;
● Leading Senior Constable Grant Keighley;
● Leading Senior Constable Michael Weinman; and
● Mr Alan Manhire (A Retired Senior Sergeant).
[11] The essence of the evidence of the PFA witnesses was that there are circumstances where TIO’s should work in civilian clothes when they are performing their duties particularly where a uniformed appearance would not be compatible with intelligence gathering. It was put by the witnesses that the duties they are required to perform would be adversely affected by wearing uniforms. Examples were given which are better not described in this decision. Of particular concern to the TIO’s is that when they are part of a team which normally wears civilian clothes, their teams engagement would be compromised if they were required to wear a uniform. The PFA took its witnesses through each of the duties they performed and the need to “blend in” or to be less threatening by not wearing a uniform.
[12] It is argued that the views of the employees are supported by the VPID and the description of the work which TIO’s are required to undertake.
[13] Evidence was led to the effect that unless TIO’s integrated with the team, including the non-uniform environment, they would become detached from the team over time. Witnesses put forward diary notes to illustrate the time when they were required to wear civilian clothes. In particular, circumstances where unscheduled tasks were performed.
[14] It is clear that the TIO’s attached to a non-uniformed environment believe that it is important not to stand apart from that environment. It must also be said that the evidence not only covered the direct work requirements, as the TIO’s perceived them, but equally importantly, the feeling of self-worth and status which attended the wearing of civilian clothes. The TIO’s who gave evidence conveyed the impression that the Direction by the force conveyed to them a desire on the part of Victoria Police to diminish their role. This impression created by the evidence led to this question to Inspector S Cooper—a witness for Victoria Police:
THE DEPUTY PRESIDENT: Could I put a proposition to you provocatively? Are the TIOs nothing more than clerical staff who digest and report on inputs?---They’re more than that. So what—they’re given specific skill sets. So clerical work is a part of exactly what they do, but they actually go out to high risk community locations as well in uniform, you know, and they go out and they talk to people and that builds up that picture. So it’s not just sitting behind a computer all the time. It is talking to people at high risk community locations and things like that to understand the true extent of what’s going on. So if I have a large increase in relation to crime, let’s say a shopping centre, and I’ve got information reports and crime reports coming in to me to tell me a story about it, the job of the TIO is not only to digest that and put it into the format of an information report but also to visit them. So that’s what we use our members for. So we will give them tasks. I’ll give them tasks to go out to a location, look at it and tell me are there any other environmental factors going out there, and they’ll be supplemented by people like crime prevention officers who are in uniform, youth resources officers who are in uniform whose job is to go there together and talk about it and look at it as a collective rather than an individual to really identify what’s causing the crime out there to try to prevent it from further occurring or even to look at environments which are coming out in the future and saying, “What can we do as a collective to try to prevent that from becoming another crime hotspot.”
THE DEPUTY PRESIDENT: Putting to one side the detail of the work that they do, the impression that is sought to be given to me by your staff is that the TIOs have an emotional investment in being with the detectives and as such being a resource for those detectives in the most flexible way so that they are not seen as apart or different, and that’s why they think that being in plain clothes makes them a part of a collegiate group, if I can put it that way?---Definitely, yes. That was the way that we operated pre VPID. So it’s always been that way in the past. I remember 20 years ago being at a DTU and they were part of the team and, you know, you gave them the mundane jobs or the clerical jobs that they would do. The VPID has brought about professionalism in the industry around intelligence, because for years and years we’d respond to crime and we kept responding to crime and, you know, one of the fundamental things about being a police officer is to prevent crime and prevent serious injury. So it’s about getting into that prevention sphere by professionalising this intelligence process, and the VPID has done that and it’s brought about specific training regimes for them to professionalise them so that they understand why they need to change the way that they have been in the past to get in front of it and direct the response of the unit. So rather than being—assisting the detectives to do A, B, C and D, we now have intelligence support officers who are public servant people who do that clerical role for them now. We’re trying to—we’re getting and we have done, we’ve had a large amount of success around moving the TIOs to be what the VPID wants them to be, and that’s to look at the intelligence and identify what we need to do and how best to respond to it.
● Inspector Stephen Cooper—tasking and Co-ordination Eastern Region;
● Senior Sergeant Darren Kenos—overseeing the Proactive and DIU members within Eastern Region Division 2.
● Inspector Peter Clarke—in charge of the Centre for Intelligence Practice.
[16] The evidence of Victoria Police witnesses went to the limited amount of time spent by TIO’s in the field in the past and even less so today when the focus was on the analysis of material from available information sources. Inspector Clarke, has not only performed the role, but has also completed academic studies in the area as well. He has studied Intelligence in the United Kingdom, Canada and New Zealand. He expressed the view that whilst he performed his role in plain clothes, it could have easily been performed in uniform. Inspector Clarke drew attention to an alteration of the practice of TIO’s arising from the decision of the Supreme Court of Victoria in Slaveski v State of Victoria and others [No 8519 of 2006] where the Court dealt with the scope of evidence gathering in the context of particular search warrants.
[17] Inspector Cooper’s evidence went to the fact that TIO’s are attached to Divisional Intelligence Units (DIUs) and can be assigned to work in Criminal Investigation Units (CIU), Sexual Offences and Child Abuse Investigation Teams (SOCIT), Divisional Tasking Units, Family Violence Units and Highway Patrols. It was the evidence of Inspector Cooper that:
● search warrants undertaken by the SOCIT have involved plain clothes members as well as uniformed members,
● attendance of uniformed members will not compromise the execution of a warrant,
● there will be no difference in the role of the TIO as most of the work is performed in the office,
● there is no covert work performed by TIO’s,
● sex offender work is supported by uniformed members.
[18] It was the evidence of Inspector Cooper that, in most instances, TIO’s did not need to wear civilian clothing and where that was required, the allowance would be paid on a daily basis.
Consideration of the issues
[19] There are essentially three matters at play here. The first is managerial prerogative. The second is the work which Victoria Police seeks to be performed by TIO’s. These matters come within the purview of the Agreement and will be the subject of the accepted approach to construction. 5 The third is the power of the Commission to determine who does or does not wear a uniform.
[20] I turn to the first issue.
[21] It is important to establish early the context of the traditional tests regarding managerial prerogative. It is settled that this Commission, and its predecessors, did not and does not intervene in the prerogative of management to run and organise a business in the way in which it considers the most efficient manner.
[22] This prerogative is subject to it not being exercised in a manner which could be regarded as harsh, unjust or unreasonable [see Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales (XPT Case) [(1984) 295 CAR 188]].
[23] In distinguishing between arguments in relation to jurisdiction and merit, the High Court in Re: Cram: Ex parte N.S.W. Colliery Proprietors’ Association Ltd and Others, made it clear that whilst there was jurisdiction to deal with matters long regarded as managerial prerogative, great care should be taken in the exercise of that discretion. It stated:
Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted. [(1987) 163 CLR 117 at 136-137]
[24] It can be seen that there is a considerable body of precedent which directs a member of the Commission to the factors relevant in determining matters which can be broadly described as managerial prerogative. The general proposition is that the employer has the right to manage the business subject to that prerogative not being exercised unjustly or unreasonably.
[25] Commissioner Bull drew attention to a decision of a Commission in Court Session of the Western Australian Industrial Relations Commission:
Managerial prerogative is not a sword which can be wielded in wanton disregard of the industrial consequences nor is it a shield to hide behind. An employer has a responsibility to manage fairly. Almost every initiative that an employer may take can be clothed in the ubiquity of managerial prerogative. To espouse this principle does not relieve the employer of the obligation to justify the effect where a change is instituted to some long standing custom or practice. Managerial prerogative is not a short cut to arbitration without consultation on the assumption that the union will carry the onus of proving that the long standing arrangement should continue. 6
[26] In this matter Victoria Police put forward the proposition that the VPID is a new way of working for the TIO’s and that past practices do not inform the new model.
[27] Very often there is a different view about work and how it should be performed. Subject to those traditional tests, differing views are normally resolved in favour of the person responsible for managing the business. Whilst the views of people performing a role are very important in the decision making process and sound business practice will consider and respect those views, nonetheless it is the employer which makes the decision. In this matter an issue for consideration is whether or not, having regard to the position descriptions and the VDIP, the Direction of Assistant Commissioner Dunne was unjust or unreasonable.
[28] Clause 88 is clear in its terms: “An employee (excluding Recruits and Protective Services Officers) required to work in civilian clothes shall be paid an annual allowance as specified in Schedule C.” This must be read as not exercising that right to require in an unjust or unreasonable way. As such, the distinction which is sought to be drawn by the PFA may well be a distinction without a difference (the underlining is mine).
[29] There is little doubt about the stated intention of Eastern Division of Victoria Police. So much is clear from the instruction given by Assistant Commissioner Dunne. The Direction states:
All Tactical Intelligence Officers within Eastern Region are required to wear full uniform whilst undertaking their duties.
Tactical Intelligence Officers within Eastern Region are not eligible to receive the plain clothes allowance. Plain clothes allowance can only be claimed where local temporary arrangements for wearing of the plain clothes are established, for particular work units, or for operational or events, where there is a specific business need. Such instances must be included in the Form 502 or ePDR. 7
[30] This matter has one further complicating factor and that is that various practices apply across the State; however in no other region are TIO’s required to wear a uniform in similar units. I do not consider Eastern Region as being the employer. I will look at this matter in the context of Victoria Police as a whole. Inconsistent treatment may also give rise to unreasonableness.
[31] In considering whether or not the Direction given by Assistant Commissioner Dunne was unjust or unreasonable, the next consideration is whether or not the requirements of the position description and the VPID demand the wearing of plain clothes.
[32] It is the evidence of the witnesses for the PFA that the wearing of plain clothes is a requirement of the position. Many of these views were not challenged. I do not pass judgement of the effectiveness or otherwise of what Victoria Police want from these roles. It would not be appropriate to do so. The one exception is covert operations. Inspector Cooper states that TIO’s do not engage in covert operations, but the position description identifies covert operations as a role that can be required of a TIO. It would of course be silly to contemplate a person engaged in covert operations being in uniform so I discount this from my consideration of the general proposition that TIO’s need to be in civilian clothes as there is some difference of view as to how the position description is to be read.
[33] There is clearly a difference in view about the effectiveness of the work performed by TIO’s when in uniform or civilian clothes, but that is a matter which must be weighed by those who will take the responsibility for the decision and how they want the work performed in the future. In particular, weight must be given to the views of Inspector Clarke who has extensive experience in this area.
[34] It may well be that the cost of providing the civilian clothes allowance has been an ingredient in the decision to issue the Direction in Eastern Region. However, of more concern is that the decision is selective and only applies to Eastern Region. Victoria Police has not acted consistently in the other Divisions. True it is that Victoria Police has foreshadowed such actions but any action during the proceedings would not have been prudent. The piecemeal approach to matters of principle under the agreement is unreasonable. I have also discerned a change in what is expected of TIO’s in relation to their duties and work practices. So much can be concluded from the evidence of Inspector Clarke. Historical practices of TIO’s have been challenged in this case. It is to those historical practices that much of the evidence from PFA witnesses went.
[35] Given the piecemeal approach to this matter of principle by Victoria Police, I find that its action in pursuing a new policy in one Region alone is unreasonable. It cannot be said that the actions of one Region constitutes a requirement by the employer in such a matter of general principle. If there is a new approach to the role for TIO’s this should be considered by the industrial parties across Victoria Police. Employees should not be expected to implement the terms of the Agreement in different ways depending upon the Region in which they are employed.
[36] I find that the actions of Victoria Police in one Region, on a matter of general principle, do not constitute a requirement by the employer under the Agreement. The Agreement applies generally and the argument by Victoria Police in this matter is generic in nature. The employer—Victoria Police—has not sought to implement the change in a consistent manner preferring instead, it might be said, to test the idea in one Region. It follows that until Victoria Police implement its policy decision consistently in all regions it would be unreasonable to selectively remove the civilian clothing allowance from a subset of TIO’s where there is no identifiable or separate reason for doing so.
[37] In making such a finding, I also make it clear that the constraints or method by which this work is performed is a matter for Victoria Police. It matters little, in one sense that employees differ on how they see the efficient and productive way of carrying out TIO duties. In the result it is Victoria Police which must allocate resources and determine work practices for the reasons already adumbrated. However, change should be accompanied with an alteration to the position descriptions and some of the concepts contained in the VPID to make clear the intention of Victoria Police.
[38] It is now appropriate to turn to consider the jurisdictional objection raised by Victoria Police. In short it argues that the Fair Work (Commonwealth Powers) Act 2009 (the Referral Act) withheld from referral certain matters which included matters pertaining to the uniforms of members of Victoria Police.
[39] Section 4(1) the Referral Act details the matters referred to the Parliament of the Commonwealth from the Parliament of Victoria for the purposes of the Fair Work Act 2009 (Cth) (the FW Act). Section 5 of the Referral Act outlines those matters which are excluded from referral. Section 5(2) states:
(2) In addition to the matters set out in subsection (1), a matter referred by section 4(1) does not include—
(a) matters pertaining to the number, identity or appointment (including terms and conditions of appointment, to the extent provided for in paragraph (b)) of law enforcement officers;
(b) matters pertaining to probation, promotion, transfer from place to place or position to position, physical or mental fitness, uniform, equipment, discipline or termination of employment of law enforcement officers except—
(i) matters pertaining to the payment of allowances and reimbursement of expenses and pertaining to notice of termination of employment and payment in lieu of notice of termination of employment; and
(ii) to the extent that Divisions 1 and 2 of Part 6-4 of the Commonwealth Fair Work Act, as originally enacted, deal with the matters.
[40] Section 3 of the Referral Act defines “law enforcement officer” as a police reservist, police recruit, protective services officer or special constable within the meaning of the Victoria Police Act 2013 (Vic) (the Police Act).
[41] Part 4 Division 5 of the Police Act concerns the Chief Commissioner’s instructions and determinations. The Chief Commissioner may make instructions with regard to, amongst other things, the specification of things including uniforms. 8 Section 61 of the Police Act states that:
61 Personnel to comply with the Chief Commissioner’s instructions
All members of Victoria Police personnel must comply with the Chief Commissioner’s instructions.
[42] Section 62(1) of the Police Act states that:
(1) The Chief Commissioner may from time to time determine—
(a) the type or design of uniforms or other equipment to be worn or carried by police officers, police recruits or protective services officers; and
(b) the conditions under which uniforms are to be worn or other equipment is to be carried; and
(c) standards of grooming and acceptable clothing accessories for police officers, police recruits or protective services officers, which may—
(i) differ based on sex, gender identity, physical features or religious belief or activity; and
(ii) provide for exceptions based on genuine medical, cultural or religious grounds.
[43] Because of approach to the arguments raised by the PFA it did not fully address the issue of power to direct that uniforms be worn by sworn officers of Victoria Police. However Victoria Police did raise this issue as a jurisdictional matter.
[44] Victoria Police also raised this jurisdictional point as an aid to the construction of clause 88.1 of the Agreement. It argued that given that clause 5(2)(b) of the Referral Act operated to exclude from the referral that part of the State legislative power over matters pertaining to the uniform of members of the Force, the Commission cannot make an order which purports to require the wearing of a uniform. It also argues that given this, there can be no argument that the Agreement in some way prevails over any State legislative prescription.
[45] There is considerable force in the argument put forward by Victoria Police. When it is also considered that what cannot be done directly cannot be done indirectly 9 it is clear that any order (however framed) which would have the effect of seeking to override any Chief Commissioners instructions in this area would be beyond jurisdiction.
[46] I add that this finding does not disturb the earlier finding that the current piecemeal approach adopted by Victoria Police is unreasonable and should not lead to the removal of the allowance at this stage. The allowance should now be paid to those who had it suspended until such time as the requirement of the employer is consistently applied.
DEPUTY PRESIDENT
Appearances:
N. Baldini for the Police Federation of Australia.
J. Baker for Victoria Police.
Hearing details:
2015.
Melbourne:
January, 6;
February, 4;
May, 1, 11 and 12.
Final written submissions:
Police Federation of Australia, 4 June 2015.
Victoria Police, 25 June 2015.
Police Federation of Australia, 1 July 2015.
1 Clause 11.
2 Exhibit PFA2.
3 Exhibit PFA12, GK1.
4 Exhibit VicPol1.
5 See The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [(2014) FWCFB 7447].
6 The Federated Engine Drivers' and Firemen's Union of Workers of Western Australia v Robe River Iron Associates [CR 676 of 1986]
7 Exhibit VicPol1.
8 Fair Work Act 2009 (Cth), s 61(2)(a).
9 [2012] FWAFB 7551.
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