Rucker v State of Queensland (Queensland Police Service)

[2014] QIRC 154

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Rucker v State of Queensland (Queensland Police
Service) [2014] QIRC 154
PARTIES:	Rucker, Laurence Ray
(Applicant)
v
State of Queensland (Queensland Police Service)
(Respondent)
CASE NO:	D/2012/278
PROCEEDING:	Notification of industrial dispute
DELIVERED ON:	2 October 2014
HEARING DATES:	13 May 2013
9 August 2013
MEMBER:	Deputy President Bloomfield
ORDER:	The remedies sought by Senior Sergeant Rucker
be refused.
CATCHWORDS:	INDUSTRIAL LAW - DISPUTES - dispute notification - conciliation conference unsuccessful - matter referred to arbitration - grievance against the content of (alleged) new policies - alleged failure by employer to preserve the status quo - remedies sought by Applicant during arbitration much wider than original dispute notification - grievance lodged on basis of different interpretation of policy - policy was not changed - policy is quite clear - grievance without merit - no justification for the Commission to order that the policy be altered - claimed remedies refused.
CASES:	Industrial Relations Act 1999, s 230
APPEARANCES:	Mr L. Rucker, the Applicant, in person. Mr J. Merrell of Counsel, directly instructed by State of Queensland (Queensland Police Service), the
Respondent, together with Mr C. Hurren.

Decision (as corrected)

[1] Following an unsuccessful conciliation conference before another member of the Queensland Industrial Relations Commission (the Commission), a dispute lodged by Senior Sergeant (Snr Sgt) Laurence Rucker involving the Queensland Police Service (QPS) was referred to the Commission as presently constituted for arbitration pursuant to section 230(3) of the Industrial Relations Act 1999 (the Act).

[2]      Although the original dispute notification concerned QPS's alleged failure to preserve

the status quo, in accordance with the Police Service Award – State 2012, after Snr Sgt

Rucker lodged a grievance against the content of (alleged) new policies introduced by the Assistant Commissioner for the Metropolitan North Region (MNR) of QPS, the remedies sought by Snr Sgt Rucker when the matter came to arbitration were much wider. In addition to seeking a reversion to the status quo in existence before the lodgement of his grievance, Snr Sgt Rucker also sought a finding that two police officers who were removed from planned wide load escort duty in April 2011 should be paid for such duty. Further, he requested the Commission to act to alter the relevant MNR policy so that police officers in that Region, and elsewhere, could directly apply to a central location within QPS for the opportunity to escort wide loads in any Region on special overtime duties (specials).

[3]      The dispute had its origins in April 2011 when Snr Sgt Rucker, as the Officer in Charge

– District Traffic Branch, Brisbane West District (BWD), responded to an offer of wide

load escort duties from another Region by nominating two officers from BWD to undertake those duties. This nomination was overruled by a more senior officer in MNR because it was in contravention of the Region's policy concerning the handling of such requests. On the basis he had a different interpretation of the then policy (MNR Policy Circular 10/2010), Snr Sgt Rucker lodged a grievance with QPS on 27 April 2011 and requested a return to the status quo which would, in his opinion, have allowed the two nominated officers to undertake the planned wide load escort duties.

[4]      Relevantly, the applicable wide load escort procedure was designed to regulate the working of specials so as to ensure equitable distribution of such overtime amongst interested police officers as well as to assist the management of officer fatigue. The procedure had undergone several variations in recent years, the main aspects of which are detailed below.

MNR Policy Circular 4/2009 (issued 23 February 2009)

[5]      This policy provided that where a request for certain special duties, such as a wide load escort duty, was received by a police officer in MNR, the Adjudication and Permits Section (TAPS) of MNR was to be advised by the officer in charge of the officer receiving the request and TAPS would become the owning station for that request. After the terms of the wide load escort were negotiated with the applicant and approved it was to be handed to the District Officer to allocate to a staff member whose task it was to source officers, in an equitable manner, to perform the special duty. The policy also provided that officers who received an offer from outside MNR of overtime duties other than wide load escort could directly respond to that request, subject to the approval of their officer in charge.

MNR Policy Circular 10/2010 (issued 27 September 2010)

[6]     Although largely replicating the above policy, the 2010 version contained some differences designed to recognise the creation of a central wide load permit processing unit. Relevantly, for present purposes, it included the following provisions:

"POLICY

It is acknowledged that administrative arrangements currently exist at regions/districts/stations for the management of planned overtime. This policy is to supplement those arrangements.

With respect to planned overtime, the distribution of that overtime among officers is to be effected in an equitable manner, irrespective of the origin of the planned overtime.

If officers cannot be identified from within the region where the planned overtime is to commence then officers may be sought from outside that region.

When a request is received by a member for the performance of any planned overtime by police attached to the region, that request is to be referred in the first instance to the officer in charge or shift supervisor of the member receiving the request who will take the necessary action to ensure that the overtime is allocated in an equitable manner. A district officer or establishment manager may put in

place any additional arrangements to support the content of this paragraph.

(Sentence highlighted by Snr Sgt Rucker in attachment 2 to Exhibit A.)

Special Duty - road closure and wide load escort

Where a request for planned overtime requires an excess dimensional vehicle permit to be issued, the member or the officer in charge of the member receiving the request is to advise the applicant to contact the Central Permit Support Unit.

The Central Permit Support Unit will become the owning station. The Officer in
Charge, Central Permit Support Unit will:

1.       negotiate permit conditions with the applicant,

2.       determine a risk (escort) management plan for the movement of any excess dimensional vehicle (addressed later),

3.       ensure that the particulars, conditions and requirements of the permit (including any special service requirements) are promptly advised to the Metropolitan North or Metropolitan South Regional Adjudication and Permit Sections to source staff and resources to complete the planned overtime. The Region will be responsible for sourcing

officers and motor vehicles, in an equitable manner for the special

duty and ensuring that the officers are familiar with the conditions of
the permit,

4.       be responsible for invoicing the client. (my highlighting)

If, within a region, the planned overtime has not been allocated for the wide load special duty escort, the officer in charge of the regional adjudication and permit section is to advise the officer in charge of the Central Permit Support Unit who will make any further necessary arrangements to identify staff to perform the planned overtime.

Equitable distribution of special duties planned overtime - including interregional special duties

In the first instance, requests for officers and vehicles to undertake the planned

overtime will be directed by the Central Permit Support Unit to the region where

the excess dimensional escort is to commence. If the originating region cannot

provide sufficient staff numbers to accommodate the planned overtime, the region nearby the point where the escort is to commence may then be offered the overtime." (my highlighting)

[7]      On 29 April 2011, two days after Snr Sgt Rucker lodged his grievance, the Acting Assistant Commissioner MNR released a new policy document titled MNR Policy Circular 01/2011. [Note: It was the impending release of this Policy Circular, and a memo from the Assistant Commissioner MNR to his counterparts in other Regions about TAPS being responsible for allocating specials, which had prompted the senior officer mentioned in paragraph [3] to act on 21 April 2011 to overrule Snr Sgt Rucker's nomination of the two BWD officer's to undertake a special.] This policy document, while repeating much of what was contained in the immediately preceding circular, included additional provisions relating to MNR. Of particular note are the following differences:

  New paragraph after fourth paragraph:

"When a request is received by any member from any source, either within or outside of the Metropolitan North Region, for the performance of planned overtime by officer/s attached to the Metropolitan North Region and that request

relates to the movement of excess dimensional vehicles and/or loads, that request for staff is, in all instances, to be referred to the Traffic Adjudication and Permit

Section (TAPS) at the regional office. Based on the concept of equitable distribution, TAPS will determine the organisational unit(s) which will be offered the planned overtime. Officers within the Metropolitan North Region are not to

engage in planned overtime which relates to the movement of excess dimensional vehicles unless the provision of or request for labour for the overtime has been

made by TAPS." (my highlighting)

	Two new paragraphs to replace the second last paragraph:
"Where the movement of an excess dimensional vehicle commences in the Metropolitan North Region, TAPS is responsible for sourcing the labour for that escort, irrespective of the region where the officer is stationed. Preference will be given to staff within the Metropolitan North Region in the first instance. Once an equitable offer for planned overtime has been made within the Metropolitan North Region, outside regions and commands must be approached. This will include all organizational units attached to headquarters.
Where labour cannot be sourced the officer in charge TAPs will advise the Central Permit Unit. It may then follow that the movement of the excess dimensional vehicle may have to be postponed or cancelled."

[8]      The release of this document caused Snr Sgt Rucker to lodge a second grievance in the course of which he objected to the inclusion of the three paragraphs immediately above and their substitution with the following provision:

"In the first instance (i.e. where the escort originates in the Metropolitan North Region), requests for officers and vehicles to undertake the planned overtime will be directed by the Central Permit Support Unit to the region where the excess dimensional escort is to commence. If the originating region cannot provide sufficient staff numbers to accommodate the planned overtime, the region nearby the point where the escort is to commence may then be offered the overtime."

[9]      In his second grievance, Snr Sgt Rucker complained that other Regions within QPS were not dealing with the issue of wide load specials in the same way as MNR and that, as a result, police officers in MNR were not being provided with the same opportunities to work specials as were officers in other Regions. As such, he sought that the new Policy Circular be overturned and that sections/stations within other Regions be permitted to email himself and other officers in charge within MNR when those other Regions were advising their staff of the opportunity to work wide load specials. In the alternative, he requested (as immediately above) that the Central Permit Support Unit be placed in charge of advertising all specials. As he put it, "(a)ll we are asking for is to be treated the same as everyone else."

[10]    Both of the grievances lodged by Snr Sgt Rucker are misconceived and arise as a result of his incorrect interpretation of MNR Policy Circular 10/2010 (the 2010 policy) - see for example his highlighting in the fourth paragraph - and MNR Policy Circular 01/2011 (the 2011 policy), respectively, and his personal view about how the principal of overtime equity should be applied.

[11]   Although it is not especially clear, the 2010 policy does set out a different regime for dealing with ordinary overtime compared to that associated with the management of wide load escort duties (specials). In the first instance, an officer in charge, such as Snr Sgt Rucker, may oversight the allocation of overtime, on an equitable basis, amongst staff under their control. In the second case, involving wide load escort duties, the consideration and approval of any permit is the responsibility of the Central Permit Support Unit after which the overtime opportunity is to be advised to the relevant Region. It is implicit in the policy that such advice is to be given to the Regional TAPS unit and not to individual officers or officers in charge.

[12]    In light of the contents of the 2010 policy, it was incumbent on any officer within MNR, including Snr Sgt Rucker, who received notification of a wide load special from another Region to pass that notification to TAPS and not to respond directly. This was because the policy required that overtime be offered in an equitable manner across the Region by TAPS and not be accepted by the first officer(s) who might sight any notification of the opportunity to work a special which might have been circulated by another Region.

[13]   Rather than alter the pre-existing policy, the 2011 policy merely clarified its operation so as to clearly reinforce that the TAPS unit within MNR was to take control of the task of filling the overtime opportunities associated with wide load escort duties. The objective behind such Regional control over the allocation of wide load escort specials appears to have been to better oversight the working of overtime in the Region as well as to ensure it was offered in an equitable manner.

[14]    Given the above, the claim by Snr Sgt Rucker that the status quo be restored cannot be granted.

[15]    The "status quo" as at 27 April 2011 was the 2010 policy which gave the responsibility for sourcing staff to undertake wide load escort duties to the TAPS unit of MNR so that the overtime involved could be offered in an equitable manner. It was not to the point that other Regions might have been advertising offers of specials in a different manner to MNR, it was up to police officers in MNR who might have received such notification to pass them on to TAPS for action. On my reading, Snr Sgt Rucker's claim for a reversion to the status quo was, in reality, a claim that he and other officers under his supervision be permitted to continue to breach the 2010 policy by directly accepting offers of wide load specials advertised by other Regions, rather than passing them on to TAPS.

[16]   It follows that the second remedy claimed by Snr Sgt Rucker cannot be granted. The two officers he directly nominated to undertake the wide load escort special in April 2011 were nominated in contravention of the then current 2010 policy, which was clarified (but not changed) per medium of the 2011 policy issued a few days later.

[17]    The different method adopted by QPS for allocating wide load specials compared to the process adopted to manage other overtime opportunities is also logical and understandable. Officers on wide load escort duties might need to be absent from MNR for 2 or 3 (or more) days at a time. Given the amount of overtime potentially involved, as well as the impact such overtime might have on the fatigue level of an individual officer or officers, it is understandable that the Assistant Commissioner MNR would want to monitor the amount of overtime being worked by each officer as well as to ensure that specials were being offered equitably.

[18]    In light of the policy intent behind both the 2010 and the 2011 policies, there is no basis upon which the Commission would be motivated to act to interfere with their terms. Snr Sgt Rucker's third claim, that the 2011 policy be altered, is also refused.

[19]    I determine and Order accordingly.