Police Federation of AustraliavVictoria Police/Chief Commissioner of Police

[2014] FWC 7567

[2014] FWC 7567

FAIR WORK COMMISSION

EX TEMPORE INTERIM DECISION

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

Police Federation of Australia
v
Victoria Police/Chief Commissioner of Police
(C2013/4604)

State and Territory government administration
DEPUTY PRESIDENT SMITH	MELBOURNE, 27 OCTOBER 2014

24/7 rostering on crime response for Western Region CIU detectives.

[1] The following decision, now edited, was issued during proceedings conducted on 23 October 2014.

[2] This is an application by the Police Federation of Australia (PFA) which raises a dispute concerning the proper application of the Victorian Police Force Enterprise Agreement 2011 (the Agreement) [AE889678]. The matter is agitated by the PFA pursuant to clause 11—Dispute Resolution. The dispute arises from the desire by Victoria Police to introduce a night shift for the Criminal Investigation Unit (CIU) detectives who are employed in Divisions 1, 3 and 5. The PFA and its members oppose the introduction of such a shift and hold the view that the introduction of such a system of work is unworkable, unsafe and will lead to a significant reduction in the service provided by detectives. At the present time, after hours work requirements for these detectives is remunerated by the payment of an availability allowance in accordance with the Agreement.

[3] The matter has been before the Commission since June 2013. Significant attempts have been made in conciliation by both parties, but regrettably agreement has not been possible.

[4] The PFA argue that the proposal by Victoria Police has been developed in a manner which is inconsistent with the following clauses of the agreement:

● Clause 4—No Extra Claims;
● Clause 7—Anti Discrimination;
● Clause 9—Organisational Change;
● Clause 44—Committed Overtime Allowance; and
● Clause 149—Occupational Health and Safety.

[5] I have now had the benefit of some 65 witness statements from the PFA who are all opposed to the proposal by Victoria Police. I have also heard a considerable amount of evidence from Victoria Police.

[6] In considering the material put forward by the PFA, I have not sought to limit or interfere with its case. It was important that the detectives who will be the subject of this decision be given the opportunity to state their case as they see it, without regard to some of the technicalities of the case and any arguments about the jurisdiction of the Commission. They needed to be heard. As will become apparent, I am of the view that the proposal by Victoria Police needs to be tested.

[7] It has been the consistent evidence of the PFA witnesses that they are not opposed to a night shift as such, but that is not more beneficial than the current availability system. Further, they do not agree with the rationale put forward by Victoria Police for introducing a night shift roster. Further specific problems are also raised.

[8] This is, in many ways, a conflict between the view of command at Victoria Police and those persons who are asked to perform the duties. It needs to be said at this stage that the Commission does not put itself in the place of management of Victoria Police. The Commission does not take responsibility for the success or failure of managerial decisions. The Commission’s role is to arbitrate disputes arising about the proper application of the Agreement. The decision in Re: Cram and Others; Ex Parte NSW Colliery Proprietors’ Association Limited and Others 1 is apposite in the sense that it is the prerogative of management to run and organise the business subject to the exercise of that prerogative not being exercised harshly, unjustly or unreasonably. These dicta of course must be seen in the context of the current statutory regime of the Fair Work Act 2009 (the Act).

[9] The Commission does not now have wide ranging powers to settle disputes in the workplace, 2 but the decision in Cram does continue to provide a background against which it can exercise its jurisdiction in determining the proper application of an agreement. Where discretionary decisions arise, they must be exercised reasonably, see Pulle v Department of Parliamentary Services.3

[10] In May of this year I invited the parties to consider a trial so that the actual experience could replace anticipated experience. The parties did not agree at that time.

[11] I now find it necessary to make an Interim Decision consistent with clause 11.10 of the Agreement. Such an Interim Decision is taken against the background of the whole proceedings; the submissions and the evidence. All the witnesses from the PFA have been heard and all the evidence from Victoria Police has been put.

[12] Whilst this is an Interim Decision, nonetheless I am satisfied that certain conclusions can be reached which would permit the course that I am about to decide.

[13] I now turn to deal with the five areas of the agreement which are said to come into play and therefore militate against the introduction of the night shift.

1. No extra claims

[14] It is argued that the proposal would alter the normal flow of work, which is the basis upon which detectives commuted overtime allowances paid. It is therefore put that such a proposal is inconsistent with the operation of the Agreement. This argument cannot be sustained.

[15] The Agreement contains provisions dealing with shift work for police. The Agreement contains provisions in relation to hours of work and the payment to be made to Inspectors and below where shift work is worked.

[16] Where an agreement makes provision for a system of work and the employer seeks to act in a manner consistent with the provisions of the agreement it will not conflict with the no extra claims provision.

2. Anti-discrimination

[17] It is argued that the provisions relating to family responsibilities mean that many police officers would be impacted by the proposed change. This approach to the obligation for an employer to consider family responsibilities is too generalised.

[18] These matters can and should be examined on an individual basis where the substance of any request can be examined and appropriate action taken.

[19] There is no evidence before me which would allow me to take to make a finding that all regional detectives, at all times, and in all circumstances, would have their family responsibilities impacted upon in such a way as to being both inconsistent with the Agreement and/or the Act. In particular in a manner significantly different from the current roster systems.

3. Organisational change

[20] There has been significant discussion about the introduction of shift work in this area of employment of detectives. Detectives have made their views known in most instances. The proposition by the PFA is that Victoria Police was simply consulting upon the implementation of its decision rather than providing an opportunity for detectives to persuade Victoria police to a contrary conclusion.

[21] I do not propose at this stage to delve extensively into those arguments or review closely the terms of the relevant Clause, instead I propose the following course. The stage is now been reached in these proceedings where all the views of the members of the Police Federation of Australia and the views of the Police Federation itself are well-known to Victoria Police. This process itself has provided an opportunity for all objections (which had been considerable) to be ventilated.

[22] Therefore against this background I propose to direct Victoria Police, through the Western Region Governance Committee, to review its position in light of the views expressed by the detectives and either reaffirm its decision or upon reflection, propose change to the underlying matter, namely night shift work roster. To this end I will provide 14 working days in which this is to be done.

4. Commuted overtime allowance

[23] This matter appears to raise similar matters to the arguments in relation to the no-extra claims matter and I have nothing further to add.

5. Occupational health and safety

[24] Issues raised under the heading of occupational health and safety are basically divided into two areas: firstly, the attendant risks of driving at night (including long distances) and secondly, the additional workload that would be placed upon detectives where there may be reduced day shifts available in circumstances where a night shift is introduced.

[25] To begin, it is important to appreciate that detectives on an availability allowance are already called out to work at night. This occurs following a normal shift. The circumstances and the distance they drive vary with the individual. The obligations of Victoria Police to the occupational health and safety hazards and risks identified apply equally to work currently being done as it would in the proposal. I have heard many arguments from both Victoria Police and the PFA which seek to highlight some of these matters. In the result there is no overwhelming evidence that would move the Commission to intervene in circumstances where the employer holds the primary responsibility for ensuring the occupational health and safety of its employees.

[26] The second issue goes to workload. This is an uncertain area in which to reach conclusions from the submissions put and the evidence given. There is much conjecture about how anticipated work systems will impact workload. The evidence was largely based upon conjecture and views of those giving the evidence. Similarly there will be differences about the reasonableness of levels of workload and the resources that will be needed. Victoria Police argue that the new system of work and the arrangements made will redistribute workload to the extent that there should be no significant impact upon the detective’s current duties. This involves consideration of not only the system of work where a night shift is introduced but other measures sought to be implemented by Victoria Police which would balance workload between police members.

[27] I’m not unmindful of the fact that Victoria Police has a rank structure and as such directions given, will be obeyed. In short, detectives will perform the duties asked of them no doubt to the best of their abilities. It will be a matter for Victoria Police to balance workload against the dwindling economic resources and increasing demands. However, what should be resisted can be illustrated by the old story of the new army recruit who complained about the size of the uniform he was issued: the response was “what do you mean it doesn’t fit, you’ve got it on haven’t you?”

[28] Whilst I am not asserting this to be the case, the requirement to obey instructions should not be used to mask inappropriate workloads which can be reasonably assessed. Whilst this can be applied in many workplaces, it is nonetheless an important consideration in this occupational area.

[29] In the event that Victoria Police, upon reflection, does not alter its current position so that all parties will have an opportunity to demonstrate the matters for which they each contend, I will not interfere with Victoria Police implementing the trial it proposed as soon as practicable. There was no agreement as to a trial, although the parties were close to resolution. In those circumstances I would recommend that Victoria Police monitor the trial in the way in which was envisaged in the early stages of conciliation about this matter. I shall not participate.

[30] The new system of work under trial conditions determined by Victoria Police will begin as and when it is considered appropriate by Victoria Police. I will adjourn this matter until early May 2015.

DEPUTY PRESIDENT

Appearances:

N. Baldini for the Police Federation of Australia.

J. Baker and Superintendent Mahony on behalf of Victoria Police.

Hearing details:

2014.

Melbourne:

April, 14;

Geelong:

April, 22;

Bendigo:

April, 23;

Melbourne:

May, 1;

October, 6, 7, 8, 9, 10 and 23.

 1 163 CLR 117.

 2   The provisions in the Fair Work Act 2009 can be contrasted with the Conciliation and Arbitration Act 1904. In addition, the Decision of the High Court in the Private Arbitration Case CFMEU v AIRC (2001) 178 ALR 61 is now a feature of dispute settlement.

 3   [2011] FWA 7462.

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