The Police Federation of Australia v Victoria Police/Chief Commissioner of Police
[2024] FWC 1631
•21 JUNE 2024
| [2024] FWC 1631 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
The Police Federation of Australia
v
Victoria Police/Chief Commissioner of Police
(C2023/6445)
| COMMISSIONER WILSON | MELBOURNE, 21 JUNE 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]. Flexible working arrangement; whether application rejected on reasonable business grounds.
This decision concerns the most recent attempt by Leading Senior Constable Beaumont to reach agreement with Victoria Police over a flexible working arrangement which addresses his personal circumstances. The matter was the subject of multiple attempts by him to reach an agreement in 2022 and 2023. In October 2023 he brought his most recent concerns over the subject to the Fair Work Commission when his union the Police Association Victoria (the Police Association) lodged an application on his behalf. Conciliation on the subject did not lead to agreement and so the Police Association’s application was programmed for arbitration before me.
The application before the Commission was made pursuant to s.739 of the Fair Work Act alleging a failure on the part of the Respondent, Victoria Police, to correctly apply the flexible work arrangement provisions of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (the Agreement).[1]
This decision determines the Police Association’ application.
A hearing for receipt of all relevant submissions and evidence took place on 29 February 2024 with further final submissions provided by each party over the course of the following weeks.
Mr Stratos Pavlis from the Police Association appeared for the applicant and Mr Matt Garozzo of Counsel instructed by Clayton Utz appeared for Victoria Police, having been given permission to do so pursuant to the provisions of s.596 (2) of the FW Act.
Witness evidence was received on behalf of the Police Association from LSC Beaumont, LSC McMannis and Sergeant Marwood. Witness statements on behalf of the Police Association were received by me from LSC Beesley, LSC Llewellyn, LSC McGuire, LSC Jenkins, LSC Dyer, Senior Constable Kirton, SC Carroll, SC Hams, SC Dousha and LSC Charlton. Witness evidence was received on behalf of Victoria Police from Detective Inspector Dollard and Commander Stafford.
The focus of consideration in this matter is on whether Victoria Police, having refused LSC Beaumont’s Flexible Work Arrangement (FWA) application, had reasonable business grounds for doing so. I find that it did, for the reasons set out below. I also recommend that LSC Beaumont’s application be resolved on the basis of a previous proposal made to him by Victoria Police.
QUESTION FOR DETERMINATION
As agreed by the parties the question for determination in this matter is;
Q: Did the Employer have reasonable business grounds pursuant to requirements of Clause 14.9 of the Agreement for refusing the FWA application of LSC Beaumont?
BACKGROUND
LSC Beaumont has worked as a Crime Scene Officer since October 2004 and is presently working at the Narre Warren Crime Scene Services unit.[2]
At the heart of LSC Beaumont’s desire to establish a flexible work arrangement are two personal factors; firstly that he is older than 55 years of age and secondly that he has elderly parents for whom he regularly provides care.
LSC Beaumont’s attempts to establish a flexible working arrangement suitable to his circumstances have been the subject of two proceedings in the Fair Work Commission. The first of these applications led to agreement between the parties for the introduction of a six-month flexible work arrangement trial. The trial was to be performed on the basis of 8 x 10 hour shifts per fortnight. At the time at least two other police officers also working at Narre Warren crime scene services had access to flexible work arrangements.[3]
LSC Beaumont’s FWA trial commenced on 12 February 2023 and on 2 March 2023 LSC Beaumont says that he was asked to sign a workplace agreement that modified the flexible work arrangement. Shortly after, on 8 March 2023, a dispute arose about the duties LSC Beaumont had been directed to perform. On 14 June 2023, the then operative FWA was cancelled.[4]
About a month later on 12 July 2023, LSC Beaumont submitted a new FWA request which is the subject of these proceedings. The FWA application itself is expressed by LSC Beaumont in the following terms;
“I seek the FWA to perform 8 x 10-hour shifts per fortnight. This would give me an additional 2 RD's per fortnight that I would use to participate in the care of my elderly parents. I would perform any shifts on any day to fit in with rostering requirements as long as all shifts were 10-hour shifts”[5]
LSC Beaumont provided significant background to his renewed request, including the ages and health conditions of his parents. LSC Beaumont puts forward that when he assists his parents it is often for four hours at a time. He also puts forward that his siblings have their own families and commitments and are not able to stretch themselves further to provide the care and attention now required to assist their parents. He also has responsibility for maintaining his own home. LSC Beaumont’s request also states the following about the flexibility configuration he puts forward;
“The extra Rest days granted by 10-hour shifts will allow me to better their care and my own welfare. I don't want to rely on having to take unplanned leave as it has unfair impact on my work colleagues and I don't want to unwittingly use personal leave that I may need in the future (recent total hip and nasal operations). The 10-hour shifts are required mostly for my parents as per above, however in terms of my own welfare, they will allow me some time as enjoyed by other members to refresh themselves on their Rest Days.
By making myself available to work any shift including weekends I believe I am making myself as flexible as I can to assist the rostering process.”[6]
LSC Beaumont’s FWA request also notes the following about his first request;
“On 12th of February 2023 I commenced a FWA trial for 6 months performing 8 x 10-hour shifts per fortnight. This was working very effectively and productively for myself and the office and acts as a successful precedent for this request. I acknowledge management had concerns regarding the additional two hours of my shift came to nothing as when working with someone performing an 8-hour shift From the commencement of my FWA trial I was required to document the work I was performing in my additional two hours. I completed the report which clearly indicated that there were consistently more than sufficient residual duties within the Crime Scene Services office.
On 14th of June, I was informed my FWA had been cancelled. I am now seeking a new FWA. I believe workplace landscape is more conducive now to accommodate my personal requirements. Since my initial application (12 months ago) there are more resources available.
Considering the minimal impact during the trial and the additional resources, if I was to perform 8 x 10-hour shifts with two additional RD's I consider it would have little to no effect on the productivity of the Crime Scene Services and its client workgroups as there is now more personnel and thus better flexibility.”[7]
After making his second application, LSC Beaumont met with a number of senior officers, including Detective Inspector Natalie Dollard who, on 3 August 2023, offered LSC Beaumont a “blended roster” proposal which he declined. The blended proposal would have had LSC Beaumont working 4 x 10 hour shifts and 5 x 8 hour shifts each fortnight. LSC Beaumont said the following on his rejection of the blended roster proposal;
“After my experience of being intimidated and dragged back to work the watch house, regardless of having CSS work to do, I do not wish to accept this offer.”[8]
The reference to being “dragged back to work the watch house” is that;
“Across March 2023 LSC Beaumont was directed by Senior Sergeant Brett Shenton to suspend work on core CSS investigation to work in the Watch House without regard to the Workplace Agreement’s clause prioritising core Crime Scene Services work for the residual hours ... LSC Beaumont sought confirmation he was expected to bypass the CSS work he was originally expected to perform and was told in a stern manner to accept the direction.”[9]
Inspector Dollard’s evidence notes the enterprise agreement background basis upon which the application turns to be assessed by Victoria Police. She accepts that FWA requests may only be rejected by Victoria Police on the basis of reasonable business grounds, while also noting that, in the event a FWA is approved, it may then be reviewed if operational requirements require such to be done or the applicant’s circumstances change.[10]
Further Inspector Dollard notes that the Victoria Police Manual provides guidance for receiving and determining FWA applications[11] and that she was directed by her superior, Superintendent Johanna Stafford to consider and assess LSC Beaumont’s application on its merits, while noting that Superintendent Stafford is the delegate for the purposes of making the ultimate decision about the application.[12]
Inspector Dollard communicated to LSC Beaumont on 1 August 2023 that his FWA application had been refused, without particularly providing reasons for doing so. The formal reasons for doing so were provided to LSC Beaumont’s representative, the Police Association on 15 September 2023 by Victoria Police’s Human Resources Command. That correspondence set out 11 reasons for refusing the application as follows;
“Further to discussions held with LSC Beaumont and local management on 1 August 2023 and 3 August 2023 and an email correspondence with Inspector Natalie Dollard dated 1 August 2023, LSC Beaumont's application for a Flexible Working Arrangement (FWA) has been considered in accordance with clause 14 of the Victoria Police Enterprise Agreement 2019 and section 65 of the Fair Work Act 2009.
It is noted that LSC Beaumont sought to perform 8 x 10 hour shifts per fortnight in his role as a Crime Scene Officer at Narre Warren Crime Scene Services (CSS), due to his caring circumstances and being over 55 years of age.
Upon consideration by the authorised delegate, Superintendent Division 3 Southern Metro Region (SMR), I can advise that LSC Beaumont's request for a FWA has not been supported for the following reasonable business grounds:
i.Narre Warren CSS works in conjunction with Cardinia CSS and operates with a minimum staffing profile of 10 O/R's per day however, increases depending upon other divisional commitments including but not limited to; vehicle processing crew, supervision requirements and night shift staffing commitment (regional roster and supervision driver duties);
ii.Narre Warren CSS regularly delivers a 16-hour CSS response and provides a 24-hour response on average of 12 weeks per year;
iii.The proposed arrangement for 8 x 10-hour shifts per fortnight impacts current service delivery by a loss of two (2) operational shifts per fortnight, and impacts Narre Warren's ability to roster to a CSS response in accordance with their service commitment to the community. This is in addition to the OH&S requirement to provide members '2-up' in all shifts including CSS duties;
iv.The loss of up to two (2) operational shifts per fortnight across the Narre Warren CSS reduces operational capacity, negatively impacting the service delivery response to the community;
v.Review of crime data indicates an upward trend of crime categories within Casey and Cardinia PSAs regularly attended by CSS (inclusive of all burglaries, theft from motor vehicle and recovered stolen serials);
vi.Casey and Cardinia PSAs over the preceding five (5) years have an average of approx. 6075 reported incidents per year. 2022/23 YTD data reflected a 34% increase in applicable crime categories to the previous year;
vii.Recovery of stolen vehicles within the applicable Crime Response Zones (CRZ) has also increased from 704 in 2021/22 to 1261 in 2022/23. The examination of recovered stolen serials is a key component to solving and clearance rates of serious and violent crime investigations. These types of crimes are those that cause the community greatest harm;
viii.Narre Warren CSS currently has an established strength of 17 FTE and two (2) PT employees (O/R), however capacity has been reduced by two (2) absences due to long-term leave and one (1) member upgraded (ongoing), in addition to multiple shift requests each roster. Cardinia CSS currently has an established strength of six [6] FTE [O/R), however capacity has been reduced by one (1) long-term leave absence plus two (2) members working reduced hours under FWA agreements;
ix.Narre Warren CSS and Cardinia CSS have five (5) members with purchased leave approved for the 2023/24 period [total 10 weeks);
x.Service delivery impacts of a member working 8 x 10-hour shifts means that discretionary rostering of Narre Warren CSS and the broader Division is negatively impacted in the ability to roster for training, correspondence and other operational requirements; and
xi.An increase in operational shifts gained by not approving the request will assist in Narre Warren CSS meeting its rostering and service delivery requirements.
Whilst LSC Beaumont's request cannot be accommodated, his application has been given due consideration and management acknowledge his current personal circumstances with the view to finding a mutually agreeable form of workplace flexibility. In aide of this, the below options were previously provided for LSC Beaumont's consideration and is still available to him should he wish to accept:
·Blended rostering of 4 x 10-hour shifts and 5 x 8-hour shifts (9 day fortnight) to reduce impact on service delivery and capacity at Narre Warren Crime Scene Services; and
·Set shifts during the week to provide certainty and allow medical appointments and/or other caring responsibilities to be scheduled in advance
In addition to the above, in the event should LSC Beaumont wish to undertake part-time employment on a temporary or ongoing basis, management are open to considering his application. Moreover, LSC Beaumont's management welcome the opportunity to discuss further arrangements to support LSC Beaumont in line with operational requirements of Narre Warren CSS and Southern Metro Region Division 3.
Furthermore it is important to note that, LSC Beaumont was previously provided the opportunity perform 8 x 10 hour shifts with a condition to perform residual duties at the direction of management, to which he did not comply. As a result, the agreement was ended earlier than intended, and he was returned to a 10 x 8 hour shifts rostering. Following this opportunity, in addition to the reasonable business grounds described above, the workload and workforce composition is now such that the loss of two (2) shifts per fortnight is not sustainable or achievable.
LSC Beaumont's management await notification on his preferred alternative workplace flexibility option as detailed above …” [13]
CONSIDERATION
The Agreement’s Clause 10 (Dispute Resolution) sets out a procedure for determination of disputes which include situations in which “a dispute arises about any matter arising under this agreement” (Clause 10.1). The clause provides that, if local discussions do not resolve the dispute, a party may apply to the Commission to have the dispute dealt with in the first instance by conciliation and if that fails, by arbitration (clauses 10.5 and 10.6). A determination or decision is binding upon the parties to the dispute subject to an appeal to the Full Bench on permission (clauses 10.9 and 10.11).
I am satisfied that the dispute now before the Commission is validly raised within the context of Clause 10 and that the Commission’s powers to arbitrate the matter are enlivened.
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.[14] 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”.[15]
The Full Bench in Health Services Union v DPG Services Pty Ltd recently summarised the correct approach to the construction of enterprise agreements:
“[13] The principles of interpretation of enterprise agreements are well established.[16] The task of construing an industrial instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include other provisions of the industrial instrument, read as a whole, and the disputed provision’s place and arrangement in the instrument. The statutory framework under which the industrial instrument is made, or in which it operates may also provide relevant context, as might an antecedent instrument or instruments from which a particular provision has been derived. Regard may be had to relevant context and surrounding circumstances to determine whether there is any ambiguity in a provision of an industrial instrument. The language of an industrial instrument is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. Context is not itself an end, and a consideration of the language contained in the text of the relevant parts of the instrument remains the starting point and the end point in the task of construction. Nevertheless, a purposive approach to interpretation, not a narrow or pedantic approach, is appropriate.”[17]
Clause 14 of the Agreement provides;
14. Right to Request flexible Working Arrangements
14.1 All positions in Victoria Police may be worked flexibly.
14.2 An employee who:
(a) is the parent of, or has responsibility for, the care of a child who is of school age or under; or
(b) is a carer within the meaning of the Carer Recognition Act 2010; or
(c) has a disability; or
(d) is 55 years of age or older; or
(e) is personally experiencing family or domestic violence; or
(f) is providing personal care, support and assistance to a member of their immediate family or member of their household because they are experiencing family or domestic violence;
may request a change in working arrangements (including a change to work location) relating to those circumstances.
14.3 To avoid doubt, and without limiting sub-clause 14.2, an employee who:
(a) is a parent, or has responsibility for the care, of a child; and
(b)is returning to work after taking leave in relation to the birth or adoption of the child;
may request to work part-time to assist the employee to care for the child.
14.4 The employee is not entitled to make such a request, unless the employee has completed at least 12 months of continuous service with the employer, immediately before making the request.
14.5 Such a request must be made by the employee in writing and must set out the details of the change sought and the reasons for the change.
14.6 The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.
14.7 Before responding to a request, the employer must discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee's circumstances having regard to:
(a) the needs of the employee arising from the circumstances;
(b)the consequences for the employee if changes in working arrangements are not made;
(c) any alternative flexibility arrangements that may meet the circumstances of the employee that require flexibility; and
(d) any reasonable grounds for refusing the request.
14.8 If the employer and the employee reached an agreement under sub-clause 14.7 on a change in working arrangements that differs from that initially requested by the employee, the - employer must provide the employee with a written response to their request setting out the agreed change(s) in working arrangements.
14.9 The employer may refuse a request only on reasonable business grounds.
14.10 Without limiting what are reasonable business grounds for the purposes of sub-clause 14.9, reasonable business grounds include the following:
(a) that the new working arrangements requested by the employee would be too costly for the employer;
(b)that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee; -
(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee; -
(d)that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity; -
(e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
14.11If the operational requirements or the employee's circumstances change, the flexible working arrangements may be reviewed.
Notably clause 14.9 provides a singular point of refusal; namely that there are reasonable business grounds to do so, with clause 14.10 setting out an inclusive list of considerations that Victoria Police may take account of informing its views.
Superintendent Stafford was the person who ultimately determined LSC Beaumont’s application.[18] Her evidence is that she became aware of the 2023 application shortly after it was made. Following discussions with Inspector Dollard she advised the latter to discuss the option of a blended roster proposal with LSC Beaumont and she is aware there was a meeting between the two on or around 1 August 2023.[19] LSC Beaumont confirms there was such a meeting with him being told the application was refused, but there needed to be a further meeting on 3 August 2023. It was in this later meeting that LSC Beaumont says he was offered a blended roster arrangement.[20] Inspector Dollard recollects a meeting on 1 August 2023 in which she both demurred against the application as made and proposed a blended roster;
“35. During the meeting, I said to LSC Beaumont that the loss of two rostered days per fortnight would be significant for the Narre Warren and Cardinia CSS, having regard to the current operational workload being managed by the offices and service delivery requirements of the offices (which I discuss further below). This determination was made in consultation with Superintendent Stafford as delegate who ultimately directed the decision.
36. I said to LSC Beaumont, as an alternative, he could consider a blended roster proposal of working 4 x 10 hour shifts and 5 x 8 hour shifts in a fortnight. I said I considered that this alternative flexibility arrangement may be of benefit both to LSC Beaumont, having regard to the personal circumstances detailed in his Application and further in our meeting, and also from a rostering perspective as we would not lose two whole shifts a fortnight. I also said to LSC Beaumont that, as part of a blended roster proposal arrangement, we could offer him a set day or shift type to accommodate when he might be required to attend appointments with his parents.
37. In my view, LSC Beaumont appeared receptive of the offer of the alternative blended roster proposal during the meeting. I said to LSC Beaumont that he could give further consideration to the proposal and that we would arrange a meeting in a couple of days to discuss further. I also said to LSC Beaumont that, having regard to the requirement to provide a response to his request within 21 days (by 2 August 2023), I would send him an email advising him formally in writing that the FWA in the form set out in his Application was not approved, however that we would be scheduling a further catch-up to talk about the blended roster proposal with a view to agree to an FWA that would meet his personal circumstances and the operational needs of his work unit.
38. At 11.05pm on 1 August 2023, I sent LSC Beaumont an email confirming that his FWA was not approved but that the proposal of a blended roster had been put for his consideration and that we would schedule a meeting for 3 August 2023 via Microsoft Teams to discuss further. ...”[21]
Inspector Dollard’s evidence about the meeting also addressed her reasoning for the ultimate refusal of LSC Beaumont’s request. Aside from matters of community service and service delivery, her evidence also dealt with what she regarded as lack of compliance by LSC Beaumont with the terms of an earlier flexible work arrangement trial and an unwillingness by him to accommodate alternative proposals put forward by Victoria Police.
Determination of the application now before me requires consideration within the context of the entitlements given by clause 14 of the Agreement.
The framework of the clause is to give entitlement to employees to make applications for flexible work arrangements if they meet certain threshold criteria and to then have the application considered and determined within 21 days, with the response stating whether the employer grants or refuses the request (Clause 14.6). Before responding to the request, Victoria Police must discuss the request with the applicant and “genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances: having regards to four listed matters (Clause 14.7). The application may only be refused on the basis of reasonable business grounds which are stated to include several listed matters. Even if approved, an arrangement made some later time may be withdrawn if “the operational requirements or the employee circumstances change” (Clause 14.11).
The history of the dispute to which each party refers provides context to the present application, however is not determinative of this application. If nothing else, the past events illustrate why the matter may not be agreed at this time. LSC Beaumont plainly distrusts the proposals that have been made to him, seeing Victoria Police as unhelpful and open to changing its mind for no good reason. At the same time Victoria Police plainly sees LSC Beaumont as inflexible and unwilling to give credence to its needs.
Neither of those things though cause findings to be made in relation to either party that are relevant to the determination of this dispute.
I turn now to the consider the elements of Clause 14 and ultimately Victoria Police’s refusal of LSC Beaumont’s application.
Clauses 14.1 – All positions may be worked flexibly
Clause 14.1 provides merely that all positions in Victoria Police may be worked flexibly. No findings are required in relation to that provision.
Clauses 14.2, 14.3 and 14.4 – Eligibility
Clauses 14.2 and 14.3 provide the eligibility criteria for an employee to make an application to request a flexible work arrangement. The evidence is clear that LSC Beaumont satisfies those criteria, being older than 55 years of age and providing care to his elderly parents. Clause 14.4 provides that there is no eligibility to make such an application unless an employee has completed at least 12 months of continuous service with Victoria Police immediately before making the request; again the evidence is clear that LSC Beaumont satisfies that criterion.
Clause 14.5 – Written request
Clause 14.5 requires that a flexible work arrangement request be made in writing setting out the details of the change sought and the reasons for the change. The flexible work arrangement application which is the subject of this decision was made by LSC Beaumont in writing on 12 July 2023. The request not only set out the details of the change in working arrangements that he sought (to be rostered for 8 shifts of 10 hours duration each fortnight) as well as his reasoning for making the application.[22]
Clause 14.6 – Written response
LSC Beaumont and the Police Association argue that by not providing the full reasons for refusal of the FWA request until 15 September 2023, Victoria Police did not comply with the requirement in the Victoria Police Manual, that a written response to a FWA request must contain reasonable business grounds. The same submission argues that the President’s Statement on Requests for flexible working arrangements and extending unpaid parental leave should have guided the Victoria Police response.[23] This submission though overlooks two matters: the Victoria Police Manual is not incorporated within the Agreement, and the application now before the Commission is an alleged dispute arising under an enterprise agreement and not one arising under the provisions of the Act, with which the President’s Statement was concerned.
The Agreement’s requirement in relation to decision making over FWA requests is simple: the “employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request”. There is no obligation within the term for a full statement of reasons to be provided at the same time as the grant or refusal of the request. This is different to the situation faced in The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police[24] (Emery), in which the legislation which ultimately governed the process of consideration of a FWA application included a requirement that “If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal”.[25] While it could be said to be best practice for full reasons to be provided at the same time as the decision is communicated – and for the avoidance of doubt I consider it be so – that desirability is not articulated in the Agreement.
Clause 14.6 obliges Victoria Police to provide a written response to a FWA request within 21 days of it being made, stating whether the request is granted or refused.
On 1 August 2023, which is within the prescribed 21 day time period, Inspector Dollard wrote to LSC Beaumont in the following terms not approving the application on the basis that further discussion was required, in particular about an alternative proposal she put forward for a blended roster arrangement;
“As discussed earlier today, and with consideration to timelines applicable to Flexible Working Applications, I am not approving your FWA on the basis that further discussion is required. We discussed the opportunity for you to work a blended roster model of 4 x 10 shifts and 5 x 8 shifts. This working pattern is offered with consideration to ensuring service delivery and capacity at Crime Scene Services. Should you be receptive to that proposal I will progress to the Superintendent for delegate approval. Whilst I am appreciative of your anytime availability, I do encourage you to keep in mind the ability to request a permanent shift (perhaps per fortnight), to which you have some certainty that appointments can be made for your parents on that particular day, and you are available to assist.”[26]
Inspector Dollard was informed on 2 August 2023 by LSC Beaumont’s line manager, Senior Sergeant King, that the blended roster arrangement proposal was not acceptable, who informed her of the following;
“I have spoken to Jeremy today and he has advised that his preference would be to pursue the application as submitted with the 8 X 10hr FWA with the availability to perform these duties on any given day in the fortnight.
As per the discussion with him yesterday he has advised that the duties to be performed during the residual two hours would be performed at CSS and in accordance with the CSS PD on which he obtained the position at CSS.
Jeremy would remain available to perform NS and twilights if his request is approved. He has requested that the FWA be considered in its current form and if not supported, a response sent to him re same.”[27]
Further to this, it is be noted that LSC Beaumont responded to Inspector Dollard on 3 August 2023, maintaining that he sought an 8 x 10 hour roster, to which Inspector Dollard responded on 11 August 2023 stating;
“As per my advice dated 01/08/2023 your FWA application (received 12/07/2023) is not approved.
With consideration to your email advice dated 03/08/2023 a letter will be forwarded to you from SD3 HQ confirming the outcome I provided on 01/08/2023.
Please expect to receive this letter next week.”[28]
It follows I am satisfied from this communication that the obligation of Victoria Police within clause 14.6 was met.
Clause 14.7 – Genuinely try to reach agreement
Clause 14.7 of the Agreement requires that, before its response, Victoria Police must discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances. The clause plainly connects with what may be regarded as the object for the whole of Clause 14, that “[a]ll positions in Victoria Police may be worked flexibly” (Clause 14.1). The two terms together may be regarded as a formal enterprise agreement bias toward flexible working arrangements wherever they can be accommodated.
In requiring there be genuine endeavours to reach agreement over a flexible working arrangement request, Clause 14.7 requires that regard must be had to four criteria; the needs of the employee arising from the circumstances; the consequences for the employee if changes in working arrangements are not made; any alternative flexibility arrangements that may meet the circumstances of the employee that require flexibility; and any reasonable grounds for refusing the request.
While the clause provides a positive duty on the employer to “genuinely try to reach agreement” it does not cast such an obligation on the employee, however within the context of the clause as a whole, it would seem to me to be an unusual circumstance in which there was not also an obligation on the employee to similarly genuinely try to reach agreement with their employer. Inevitably both sides, and not just one, should lean in toward endeavours to reach agreement.
In these regards, the endeavours to genuinely try to reach agreement on a change in working arrangements that would accommodate LSC Beaumont’s circumstances are essentially within the discussion held on 1 August 2023.
With the FWA request having been made on 12 July 2023, Inspector Dollard received the request from his line managers and Senior Sergeant King on 13 July 2023. On 28 July 2023 she attempted contact with LSC Beaumont who was not available until 31 July 2023 owing to being absent for rest days.
The matters discussed in the meeting on 1 August 2023 are set out earlier in this decision. Inspector Dollard was concerned that the loss of two rostered days per fortnight would be significant for the Narre Warren and Cardinia Crime Scene Services having regard to current workloads but that she would consider an alternative, being a blended roster proposal working 4 x 10 hours shifts and 5 x 8 hour shifts in a fortnight. She advocated this to LSC Beaumont as potentially being both to his benefit as well as those of Victoria Police. Her proposal meant that the Narre Warren and Cardinia crime scene services would not lose two whole shifts a fortnight, which would be the case if LSC Beaumont’s proposal was adopted. She also said to LSC Beaumont “that, as part of a blended roster proposal arrangement, we could offer him a set day or shift type to accommodate when he might be required to attend appointments with his parents”.[29] The Police Association is critical of Inspector Dollard’s assessment that there would be a loss of two shifts in a fortnight, putting forward that there is no loss of time or increase in cost.[30]
A further meeting took place between Inspector Dollard and LSC Beaumont on 3 August 2023 although obviously that discussion took place in the light of the communication which had already been received to the effect that LSC Beaumont did not have an affinity to the blended roster proposal. Inspector Dollard gives evidence that LSC Beaumont confirmed in the meeting on 3 August 2023 that he was not “interested in the alternative roster proposal and was still seeking an FWA in the form of 8 x 10 hour shifts per fortnight”.[31] LSC Beaumont subsequently confirmed this in writing and on 11 August 2023, Inspector Dollard confirmed in writing her final rejection of the FWA request.[32]
With the discussions between the parties having come to an end, Inspector Dollard then provided briefing material for consideration by others within Victoria Police as to why LSC Beaumont’s FWA request could not be accommodated in the terms set out in his application. Inspector Dollard’s evidence is that she included within that briefing material information from two crime data sets available to her.[33] Inspector Dollard’s briefing material ultimately formed part of the final correspondence from Victoria Police on 15 September 2023 setting out the reasons for LSC Beaumont’s FWA request rejection.[34]
I am satisfied that in taking these steps Victoria Police complied with its obligation to genuinely try to reach agreement with LSC Beaumont over his FWA request.
Clause 14.8 – Alternative agreement
Clause 14.8 deals with the circumstance of an agreement being reached over an arrangement which differs from that initially requested by the employee, with the consequential requirement that if agreement on an alternative is reached Victoria Police must provide the employee with a written response, documenting the agreed change(s) in working arrangements. As no alternative agreement has been reached between LSC Beaumont and Victoria Police, no further consideration is required to be given to this clause.
Clause 14.9 and 14.10 – Refusal; reasonable business grounds
Clauses 14.9 and 14.10 deal with decisions to refuse a FWA request, which may only be on the basis of reasonable business grounds, with Clause 14.10 setting out what such grounds include. The clause sets out five considerations;
“(a) that the new working arrangements requested by the employee would be too costly for the employer;
(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
(d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
(e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.”
Victoria Police’s 15 September 2023 correspondence to the Police Association states the reasonable business grounds it relies on to reject LSC Beaumont’s request. These reasons appear to engage mainly with paragraphs (d) and (e) above.
Victoria Police’s contentions in these regards – that there would be a significant loss in efficiency or productivity and a significant negative impact on customer service – are relatively straightforward.
Inspector Dollard observes that she administers three crime scene services units in Southern Division Region 3, Narre Warren CSS Cardinia CSS and Dandenong CSS with the units staffed by police officers with specific qualifications. The nature of the CSS duties means absences cannot be filled by general duties police officers with there being a limited pool of crime scene officers such as LSC Beaumont who can perform the work.[35] She couples this observation with evidence that two datasets examined by her dealing with the theft of motor vehicles and crime trends in Southern District 3 led her to consider that “Narre Warren and Cardinia CSS could not afford the loss of two shifts per fortnight because it would negatively impact the policing service we are responsible to provide to the community and potentially cause greater harm due to delayed and inefficient processing of crime scenes and exhibits”.[36]
The datasets to which Inspector Dollard refers provide only annual and quarterly event statistics in the case of the first dataset and annual data in the case of the second. Neither is correlated with the number of resources available to Victoria Police to undertake the work. As a result, the material submitted by Inspector Dollard is at too high a level for me to draw from it the same conclusions that she does. That is not say that the same conclusion cannot be drawn, just merely that greater information would be required to confirm the conclusion invited by Victoria Police. Having said that, Inspector Dollard was not cross-examined to any great extent on these matters and I accept then that the conclusions she drew from the data were reasonably open to her.
The more compelling proposition put forward by Inspector Dollard though is in respect to the impact of a 10 hour shift for the undertaking of the work that has to be done.
Generally police officers work in pairs – or a “two-up” arrangement – and in many cases this is always so, for reasons of police and community safety. In his evidence LSC Beaumont and colleagues who provided evidence in support of his application argued there could be benefits, both from a situation in which shift rosters were aligned, so that two officers could work a 10 hour shift together, or when only LSC Beaumont worked a 10 hour shift and his “two-up” partner worked 8 hours. In the former situation the pair could undertake more tasks per day and in the latter LSC Beaumont would be no less productive as there would be 2 hours each day when administrative tasks could be undertaken.
Sergeant Marwood had at an earlier stage put forward in support of LSC Beaumont a mock roster which attempted to demonstrate that a FWA could be granted to LSC Beaumont without great difficulty;
“LSC BEAUMONT worked 8 shifts with the other 10-hour member. When these members worked together, the residual 2 hours per shift for both were able to be spent out of the office processing crime scenes and at tow yards with recovered vehicles. The opportunity was present for both members to work more corresponding shifts however these were not rostered.”[37]
Inspector Dollard’s evidence about these matters included the following given in cross examination by Mr Pavlis for the Police Association, covering matters not only relating to roster design, but the need to cover absences for several reasons including illness and training;
“MR PAVLIS: … With the flexible work arrangement, would illness occur whether there was a flexible working arrangement or not. You can't control people being sick?‑‑‑No, you cannot.
So could it be that people aren't able to fulfil the roster, fulfil the crime desk, as you say, because they're sick?‑‑‑That can happen.
So people wouldn't be able to get into a vehicle because they're unwell. Also on many of these occasions we note that there's a series of people on courses, and on some occasions four days in a row, and three days in a row, and on some occasions for members on a course on a particular roster. Would that impede the capacity to fill in a shift for subs for the crime desk, for example?‑‑‑In normal circumstances, if I have the full complement of personnel working, per the FTE and working the days as per my requirements, we would be able to sustain, you know, additional, you know, requirements, such as courses and the like.
You can sustain four people going on a course at the same time, and you're saying in your statement earlier that you have a heavy and ongoing workload?‑‑‑No, what I'm saying is that if I have a full complement of personnel working the pattern of days, of say 10 shifts a fortnight, then that can be, you know, generally sustained in a roster. Like, every roster is variable, of course, because we have different requirements, or you know, personnel on leave, or, you know, different things like that, so ‑ ‑ ‑
This is exactly what Sergeant Marwood said, was every roster's variable, and we have to juggle and balance and do your best, and that's why we came up with the mock roster, to say that these sorts of things in certain situations where it's challenging to provide 10‑hour shifts. With a little work, it can be done. Much is providing the people the opportunity to go on courses and such, would you agree?‑‑‑Sorry, can you just repeat that question.
You've said as Sergeant Marwood has said, that these things are variable?‑‑‑Yes.
And if you juggle around a bit you can get people to go on courses, you can get people to go here and there, and what have you, and people are sick, and you can juggle when those sorts of things happen. And if those things are capable to be juggled, and Sergeant Marwood has presented a mock roster where there's a situation where there are 20 10‑hour shifts in that mock roster, why can't you put a little extra juggling and get this one done?‑‑‑This one that you're referring to Leading Senior Constable ‑ ‑ ‑
The flexible work arrangement?‑‑‑Because it's a loss of shifts that I cannot sustain over that period of time. Like, I understand that each roster is certainly different, yes, but by having a member reduce their actual working days, places an impact on my ability to actually roster a member to those days, and perform those functions that are critical to our – to our work.
But in the roster, as I said earlier, I see in one particular instance Bainbridge, Stephanie and – apologies, Ham, on a course on the same day. The following day, again and again, with the exception of Ham. He was only on the one day that the others were on, and Corso entered a course. So there's a capacity to make – for flexibility, as you said, you can juggle them around?‑‑‑Those course – those courses, I would suggest, that they're mandatory courses that police would need to complete, you know, depending upon what they are, at whatever sort of – you know, at different intervals.
But they're lost shifts, though?‑‑‑Yes, but again whilst we might have the – whilst we might see some members on courses during the roster, that's normal practice that we see that, because we have to obviously – you know, like there's retraining that occurs, which is mandated to complete. So that's not unusual to see course training on any roster.
As I said, they still function as lost shifts?‑‑‑Sorry?
They still function as lost shifts?‑‑‑I wouldn't call that a lost shift.
Well, we're specifically referring to the unit's workload, you're losing a day, two days, three days. Some have only been in doing unit work?‑‑‑When it comes to Leading Senior Constable Beaumont's application, yes, that's a loss of – loss of shifts, which directly impacts my ability to – you know, to serve the community, to, you know – you know, make sure that I'm giving that service and we're dealing with the crime that we're seeing in our particular area. The courses – the courses are, you know, are balanced within any roster. So – and then personnel are mandated as well to complete courses. So that is something that when I look holistically at a roster, I have to actually factor in that I do have to have shifts available to put members to complete their courses, and other sort of mandatory requirements. I still need to balance that – that minimum service back on to the roster with the two trucks in the morning, two in the afternoon and the crime desks. So from that perspective, I'm still looking to achieve both.”[38]
The argument that two shifts in a fortnight will be lost from the arrangement sought by LSC Beaumont is superficial. Someone working 8 shifts a fortnight is obviously going to work fewer than someone working 10. On that matter the maths is compelling, but hardly profound. In particular, the argument overlooks the total hours the person works and the efficiency they bring to the arrangement and their overall productivity.
While dismissing that aspect of the argument, I infer from Inspector Dollard’s evidence and that of other witnesses set out above, that maximum efficiency or productivity will be drawn from CSS officers when their shift lengths are the same. Amongst other reasons, this is because the CSS workload is heavy and staffing is finely balanced most of the time, with only just sufficient staff to meet timeliness and other service delivery expectations. That situation is hardly unusual, either in Victoria Police or any large-scale front-line service delivery body. A fine balance of staffing will cope with ordinary or routine complications such as attendance of staff training courses or personal leave. The introduction though of a further complication, such as one member of a team working different shift lengths or shift configurations has the potential to creates a service delivery problem of some proportion.
In cross-examination by Mr Garozzo for Victoria Police, LSC McMannis who worked a 10 shift roster noted the benefits of the arrangement;
“When these members worked together, the residual two hours per shift for both were able to be spent out of the office processing crime scenes and at tow yards with recovered vehicles. The opportunity was present for both members to work more corresponding shifts; however, these were not rostered. And you're suggesting there, aren't you, that this was a missed opportunity, in fact?‑‑‑In the first fortnight I recognised that there were potential there - we're going back a while now, but I'm fairly confident to say that for the second fortnight and then from there on, we were trying to manipulate the roster to allow those opportunities to happen more frequently and therefore as that trial was developing, I think it was becoming more beneficial for the unit in relation to the 10‑hour shifts working together and also the working with the ‑ ‑ ‑”[39]
In response to this evidence, Inspector Dollard noted a potential problem associated with two officers routinely working together in her examination in chief by Mr Garozzo;
“Final question. Sergeant Marwood gave evidence that one way to utilize, or to have more effectively utilized Leading Senior Constable Beaumont's 10‑hour shifts during the trial period, and if I suppose a flexible work arrangement was to be approved now, should be the rostering with Leading Senior Constable McMannis at every opportunity, who works a 10‑hour shift as well. Do you have any evidence to give about that?‑‑‑What I would say to that is that the arrangements pertaining to Leading Senior Constable McMannis is that she is currently working 10‑hour shifts, but that is in dispute, ongoing at the moment, and you know, very much so relating to very – you know, much the same sorts of business grounds as to why I'm seeking to amend her pattern of rostering. But further to that I would actually say that, you know, I see this problematic matching the two together at all times, and that, you know, certainly cannot be done easily either, because of leave commitments, training commitments, course commitments, requests by the individual members, you know, and a lot of other different factors like that. I'd also probably say that it would definitely not be my preference to match two members working together all the time either, and that's sort of based more around ethical issues. Also the fact that as what has been highlighted, Leading Senior Constable Beaumont is a very experienced crime scene examiner, probably one of the most experienced in the work group, and I would actually like to share his skill and knowledge with the other crime scene examiners throughout the work unit. So it's not a plus for me to have, you know, two – the same two people working together all the time.”[40]
Inspector Dollard also put forward in response to LSC Beaumont’s view, that the last part of a longer 10 hour shift can be used to undertake administration tasks, that the greater consideration is that there would be less shifts on the roster fortnight, which in itself may reduce productivity;
“More broadly speaking, whilst I understand that he might be attending to various administration tasks and the like, the proposition still is the fact that I lose the additional two shifts on the roster for the fortnight, where I have, you know, duties and, you know, shifts to fill on those particular occasions. Those tasks that he may attend to during that two-hour block, I would actually say that that's work that should be done within the – the shift period, between himself and his partner that he's working with. And if I have the crime desk, you know, a member rostered actually on the crime desk as well, as I should, for the 16 hours per day, that's also a – a massive support to those members working out on the road. So a lot of this admin, or what might be referred to as additional admin that Leading Senior Constable Beaumont might come back in and do, that could actually be getting done in the background by the member who is working the crime desk shift. So you know, like I don't – from my perspective and, you know, from like in line with our requirements and – of – you know, like – like going back, as I talked to before, about serving the community and, you know, putting, you know, members out on the road to do the crime scene examination, and – and things like that. You know, it doesn't – it doesn't meet with our objectives, basically, to roster like that. It's actually less efficient and less productive.”[41]
The introduction of general 10 hour shifts obviously has the potential to change this dynamic; however such is not a feature of the current enterprise agreement.
It is not for the Commission to simply substitute its decision for those within Victoria Police who have to decide on FWA applications. Instead the Commission’s role is to enquire into whether Victoria Police’s decision-making is consistent with its obligations under the Agreement. In this regard the only consideration is whether the request was refused on reasonable business grounds, which include the factors listed in Clause 14.10.
The material before me does not show that the refusal of LSC Beaumont’s FWA request was for anything other than reasonable business grounds.
Clause 14.11 – Review of FWA
Clause 14.11 allows for the review of an approved flexible working arrangement either because Victoria Police’s operational requirements have changed, or because the employee’s circumstances have changed. This provision does not require consideration as no flexible working arrangement was agreed or implemented.
Taking all these matters together I am satisfied that Victoria Police refused LSC Beaumont’s application on reasonable business grounds and that it otherwise complied with the requirements of Clause 14.
Recommendation
Why precisely the trial FWA in 2023 fell apart is not within the province of this decision. However, both LSC Beaumont and Inspector Dollard (if she remains the line inspector) need to own the fact that it did fall apart, and that each side likely contributed to the situation not working, and that the failure of the trial FWA likely led directly to the application now before me.
They then need to do something about it: in LSC Beaumont’s case that means not attributing bad faith to any request made of him that he doesn’t like; and in Inspector Dollard’s case that means accepting that there may well be people below her and above LSC Beaumont who do not like the negotiated arrangement and would like to see it end.
Neither position frankly gives life to the commitments each made to the other when Clause 14 of the Agreement was negotiated, and the Agreement subsequently made and approved. Had the trial FWA succeeded, the resources of the Police Association and Victoria Police – and the Fair Work Commission – need not have been diverted to the running of this case.
Leadership is required to ensure further problems do not arise.
Each of the Police Association and Victoria Police need to show that leadership and assist in obtaining an outcome which moves from the current zero-sum state (the FWA request is refused) toward one that provides some benefit to LSC Beaumont.
In my view it is not impossible for LSC Beaumont and Victoria Police to cooperatively discuss and agree a forward pathway in which he has a reduced number of shifts each fortnight with the same number of total hours. For him at least the maths is profound; the days he has off and the days on which he has fewer hours to work are important, both in respect of him being older than 55 years of age and the need for him to provide additional care to his elderly parents.
As set out above, in rejecting his FWA request Victoria Police made two alternative proposals to him;
“Whilst LSC Beaumont's request cannot be accommodated, his application has been given due consideration and management acknowledge his current personal circumstances with the view to finding a mutually agreeable form of workplace flexibility. In aide of this, the below options were previously provided for LSC Beaumont's consideration and is still available to him should he wish to accept:
· Blended rostering of 4 x 10-hour shifts and 5 x 8-hour shifts (9 day fortnight] to reduce impact on service delivery and capacity at Narre Warren Crime Scene Services; and
· Set shifts during the week to provide certainty and allow medical appointments and/or other caring responsibilities to be scheduled in advance
In addition to the above, in the event should LSC Beaumont wish to undertake part-time employment on a temporary or ongoing basis, management are open to considering his application. Moreover, LSC Beaumont's management welcome the opportunity to discuss further arrangements to support LSC Beaumont in line with operational requirements of Narre Warren CSS and Southern Metro Region Division 3.”[42]
While understanding why a change in employment status to part-time may be unattractive to LSC Beaumont, the possibility of working a nine day fortnight as set out in the correspondence to him is something that should be given earnest consideration by him. While a nine day fortnight is obviously not an eight day fortnight, it is an arrangement objectively more likely to meet at least some of his needs.
Because of this, I recommend to both Victoria Police and LSC Beaumont that an arrangement be entered into as soon as possible which has LSC Beaumont moving to a blended roster arrangement of 4 x 10-hour shifts and 5 x 8-hour shifts. If LSC Beaumont attempted to reject this recommendation as being insufficient for his needs, he should take account of the French proverb often attributed to Voltaire that “perfect is the enemy of the good”. More prosaically, a part way compromise is still better than nothing at all.
CONCLUSION
It follows from the above that the dispute is determined on the basis of the following;
Question for determination
Q: Did the Employer have reasonable business grounds pursuant to requirements of Clause 14.9 of the Agreement for refusing the FWA application of LSC Beaumont?
A: Yes.
Recommendation
The Commission recommends to LSC Beaumont and Victoria Police that each enter into a flexible working arrangement in which LSC Beaumont works in accordance with the blended roster arrangement of 4 x 10-hour shifts and 5 x 8-hour shifts each fortnight.
The parties are to consider my recommendation and to advise the Commission and each other in writing as to whether they accept its terms by no later than 4 PM FRIDAY 28 JUNE 2024.
COMMISSIONER
Appearances:
Mr S Pavlis, for The Police Association Victoria.
Mr M Garozzo, of Counsel, for Victoria Police.
Hearing details:
2024.
Melbourne.
29 February.
Final written submissions:
22 March 2024 – closing submissions of Respondent
28 March 2024 – closing submissions of Applicant
[1] AE507544.
[2] Exhibit A1, Witness Statement of Jeremy Beaumont, ; Digital Hearing Book, p.397.
[3] Ibid, pp.397 – 399.
[4] Ibid, pp.398 – 399.
[5] Application Form, Attachment 2, Digital Hearing Book, pp.211. – 212.
[6] Ibid.
[7] Ibid.
[8] Exhibit A1; DHB, p.400.
[9] Police Federation Outline of Submissions; Digital Hearing Book, p.67.
[10] Exhibit R2, Witness Statement of Natalie Dollard, [13]; Digital Hearing Book, p.593.
[11] Ibid, [14] – [20]; pp.593 – 594.
[12] Ibid, [35]; p.597.
[13] Exhibit R2, Attachment NJD – 12; DHB, pp.693 – 694.
[14] 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, [25].
[15] 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].
[16] See for example James Cook University v Ridd [2020] FCAFC 123, 298 IR 50 at [65] and the authorities referred to therein; WorkPac Pty Ltd v Skene [2018] FCAFC 131 264 FCR 536 at [197]; Australian Workers’ Union v Orica Australia Pty Ltd[2022] FWCFB 90 at [18] and the authorities referred to therein.
[17] Health Services Union v DPG Services Pty Ltd[2023] FWCFB 81.
[18] Exhibit R4, Witness Statement of Johanna Stafford, [6]; Digital Hearing Book, p.702.
[19] Exhibit R4, [21]; DHB, p.706.
[20] Exhibit A1; DHB, p.399.
[21] Exhibit R2; DHB, p.597.
[22] Application Form, Attachment 2, DHB, pp.211. – 212.
[23] President’s Statement, Requests for Flexible Working Arrangements and Extending Unpaid Parental Leave, President's statement-Requests for flexible working arrangements and extending unpaid parental leave (fwc.gov.au), 9 May 2023.
[24] The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police [2018] FWC 5695 and Victoria Police v The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria[2019] FWCFB 305.
[25] This provision was repealed with effect from 6 June 2023.
[26] Exhibit R2, Attachment NJD – 8; DHB, p.682.
[27] Exhibit R2, Attachment NJD – 9; DHB, p.685
[28] Exhibit R2, Attachment NJD – 8; DHB, pp.681 – 682.
[29] Exhibit R2, [36]; DHB, p.597.
[30] Outline of Police Federation Response Submissions, [4], [19]; Digital Hearing Book, p.411, 417.
[31] Exhibit R2, [40]; DHB, p.598.
[32] Exhibit R2, Attachment NJD – 8; DHB, p.681
[33] Exhibit R2, [43]; DHB, p.598.
[34] Ibid.
[35] Exhibit R2, [10] – [11]; DHB, pp.591 – 592.
[36] Ibid, [43]; p.598.
[37] Exhibit A4, Witness Statement of Sergeant Seamus Marwood,; Digital Hearing Book, p.254.
[38] Transcript, PN 589 – 601.
[39] Transcript, PN 361.
[40] Transcript, PN 544.
[41] Transcript, PN 528.
[42] Exhibit R2, Attachment NJD – 12; DHB, pp.693 – 694.
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