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

[2014] FWC 5674

[2014] FWC 5674

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
(C2014/589)

State and Territory government administration
DEPUTY PRESIDENT SMITH	MELBOURNE, 21 AUGUST 2014

Alleged dispute concerning overtime payments; rate comprehends overtime.

Introduction and background

[1] The Police Federation of Australia (PFA) argues that Victoria Police is misapplying the Victoria Police Force Enterprise Agreement 2011 [AE889678] (the Agreement) with respect to clause 154—Fingerprint Bureau. Victoria Police reject that contention. Attempts were made to resolve the matter by conciliation but that failed and so, pursuant to s.739 of the Fair Work Act 2009 (the Act), the matter ultimately falls for determination.

[2] The controversy is this: the Agreement contains a number of levels to which a salary is attached. In Schedule A the rates of pay are set out in levels. Those levels are also related to a rank within Victoria Police. The structure travels from Recruit to Superintendent. However not all levels are necessarily occupied by persons who hold the rank attributed to the level. A problem has arisen where a Senior Sergeant acts in a level 5 position which is normally held by an Inspector. Level 5 in the Agreement equates to the rank of Inspector. Inspectors are not entitled to overtime under the Agreement and the PFA argue that when a Senior Sergeant acts up, that person should get overtime. Victoria Police submits that the rate for an Inspector comprehends overtime and if the Senior Sergeant is getting that rate, it too comprehends overtime and it would be to receive a double benefit if overtime was payable on top of the salary fixed for level 5.

[3] Three provisions in the Agreement require examination. Clauses 154; 60; and 38. Each are set out below:

154. Fingerprint Bureau

154.1.Employees appointed to the Fingerprints Bureau shall be paid the relevant salary prescribed for the following levels in accordance with Schedule A.

Manager	Level 5
Senior Fingerprint Expert	Level 4
Fingerprint Expert	Level 3
Fingerprint Technician	Level 2

154.2.For salary purposes only, the employee may be paid against a higher rank than that to which the employee has attained on promotion or transfer.

154.3.For the avoidance of doubt, an employee appointed to a supervisory role at the Fingerprint Bureau who is not an expert will be entitled to payment at their substantive rank until they reach expert level.

154.4.An employee who holds a police rank when transferred to the fingerprint Bureau shall continue to hold that rank, unless that employee applies for and gains on merit a position at a higher rank. This shall apply to employees currently working at the Fingerprint Bureau and any employee who may transfer to the Fingerprint Bureau in the future.

60. Commuted Penalty Allowance for Officers

60.1. The ordinary hourly rate of pay for an Officer includes a commuted penalty allowance, being an amount of 16.4% of the employee’s base rate of pay for liability for performance of work on weekends, public holidays and shift work as well as any work in excess of 8 hours or any recall to work. In addition to this allowance, where an Inspector is eligible for such payments the Inspector will be paid in accordance with clause 67, clause 68 and clause 69.

38. Eligibility

38.1. Payment for overtime is not available to:

(a) an employee in receipt of a commuted overtime allowance except for overtime in circumstances where they are required to participate in planned organisational exercises such as counter terrorism planning or emergency management exercises;

(b) an employee in receipt of a one-person station allowance, except for overtime in circumstances where they are required to work outside their response zone in relation to an incident that commenced outside their response zone, or they are required to participate in planned organisational exercises such as counter terrorism planning or emergency management exercises;

(c) An Officer, other than an Inspector required to work additional hours in circumstances where they are required to participate in planned organisational exercises such as counter terrorism planning or emergency management exercises.

[4] I shall firstly deal with the line of argument put forward by the PFA. The starting point is Clause 38 which relieves Victoria Police from paying overtime in particular circumstances. Of particular relevance is Clause 38.1(c) which exempts “Officers”. There is no controversy that an “Officer” is a person who holds the rank of Inspector or above. 1 I pause to note that it can be seen from Clause 60 that the rate of pay for an Officer includes a 16.4% loading as a commuted penalty allowance. PFA argue that given that a Senior Sergeant is not an Officer as defined, then overtime should be paid on the rate applicable to the level attributable to the Manager when the Senior Sergeant acts in the role. Normally the role is occupied by an Inspector.

[5] Victoria Police argue that if the level 5 rate is paid it comprehends overtime and it should not be added to the rate. As such, it argues that the Senior Sergeant gets the benefit of the higher salary and that should be the end of the matter.

[6] This problem arises in a number of places in the Agreement where a rate is set which aligns with a rank. Certain conditions apply to the rank.

Approach to Agreements

[7] It is now commonly stated that the Commission should not take a narrow or pedantic approach to the construction of Agreements 2 and that agreements have been drawn by people often with a practical approach. I propose to follow the dicta in several decisions.3

Conclusion

[8] In my view I would be led into error if I took a narrow and pedantic view about the operation of the Agreement. I cannot accept that the work value of level 5 varies according to the rank held rather than the work performed. I would be required to accept that view if I adopted the submission of the PFA. In essence it argues that if a Senior Sergeant occupies the position then the work value for the role is 16.4% higher than if an Inspector performs the same work. This can’t be right.

[9] The Agreement can only apply one of two ways: either the level 5 rate is reduced by 16.4% if the role is not occupied by an Officer or overtime is not paid to a person being paid at that rate. There is some suggestion of inconsistency between this and other areas. Should that be the case I trust it will be remedied quickly so that the same rules apply.

DEPUTY PRESIDENT

Appearances:

D. McGhee with L. Oliver for the Police Federation of Australia.

T. Boydle with C. Thompson on behalf of Victoria Police.

Hearing details:

2014.

Melbourne:

June, 25.

 1   See definition of Officer in the Agreement at Clause 8.

 2   Kucks v CSR Limited (1996) 66 IR 182 at 184.

 3   Cody v J.H. Nelson Pty Ltd (1947) 74 CLR 629 at 648; K&S Lake City Freighters Pty Ltd v. Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; and Tenix Defence Systems Pty Limited Certified Agreement 2001—2004; PR917548.

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