The Police Federation of Australia (Victoria Police Branch) v Victoria Police/Chief Commissioner of Police
[2017] FWCFB 2543
•10 MAY 2017
| [2017] FWCFB 2543 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—appeal of a decisions
v
Victoria Police/Chief Commissioner of Police
(C2017/698)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 10 MAY 2017 |
Appeal against decision [2017] FWC 340 of Commissioner Wilson in matter number C2015/6446 – proposed termination of ‘variable roster’ under clause 34.8(b) of the Victoria Police (Police Officers (Excluding Commanders), Protective Services officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 – meaning of ‘service delivery requirements’ – permission to appeal refused.
1. Background
[1] The matter before us is an appeal by the Police Federation of Australia (Victoria Police Branch) (the Police Federation) from a decision by Commissioner Wilson (the Decision) 1 which determined a dispute arising under the Victoria Police (Police Officers (Excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 (the 2015 Agreement). The dispute in question concerned the rostering arrangements for police officers employed with Victoria Police’s Water Police Squad, in particular, the proposed termination of the current variable shift roster arrangement (the roster arrangement). The determination of that dispute turned on the proper construction of the 2015 Agreement. It is common ground that the Commission had power to determine the dispute, by arbitration, pursuant to s. 739 of the Fair Work Act 2009 (Cth) (the FW Act) and clause 10 of the 2015 Agreement.
[2] We propose to say something about the relevant provisions of the 2015 Agreement and the Decision, before turning to the appeal.
[3] The 2015 Agreement prescribes a standard roster of 80 ordinary hours per fortnight worked as 8 hour shifts over 10 days (see clauses 25 and 30 of the 2015 Agreement). Clause 34 of the 2015 Agreement provides a mechanism by which the employer and the employees at a work location may agree to a roster pattern involving shifts longer than 8 ordinary hours. Such a shift pattern is referred to as ‘variable shift rostering’.
[4] The Water Police Squad operates under a variable roster model. The Water Police Squad roster agreement is based around personnel primarily working 10 hour shifts and 8 hour shifts under specific circumstances such as night shifts. A regular fortnight would see a member rostered for 8 x 10 hour shifts and 6 rest days. The roster agreement applies to all personnel in the squad and has been in operation since at least 2008. 2
[5] Victoria Police seek to terminate the Water Police Squad variable rostered agreement, pursuant to clause 34.8(b) of the 2015 Agreement. Clause 34 of the 2015 Agreement states:
‘34. Variable Shift Rostering
34.1 This clause does not apply to Recruits, Reservists, Protective Services Officers or Officers.
34.2 The employer and the employees at a work location may agree to a roster pattern involving shifts longer than 8 ordinary hours.
34.3 A variable roster may include a mix of shifts.
34.4 Alterations to the roster pattern of a work area may be developed by the employer
in consultation with the affected employees taking into account: service delivery
requirements, provisions of flexibility to both the employer and employees, the ability
for employees to manage work/life balance and OH&S issues.
34.5 Such a roster pattern may only be introduced if more than 60% of employees
working the roster and the employer genuinely agree.
34.6 The maximum duration of ordinary hours under this clause will be 10 hours.
34.7 Where agreement cannot be reached between the employer and the affected
employees, or a variable roster is terminated, an 8 hour shift pattern will be worked.
34.8 A variable roster may be terminated in any of the following circumstances:
(a) there is mutual agreement between the employer and the affected
employees; or
(b) service delivery requirements are not being met as a result of the variable
shift roster; or
(c) there is a change in station profile, eg: 16 hour station to a 24 hour station.
34.9 Where the employer seeks to terminate a variable roster under sub-clause 34.8(b), it must state what service delivery requirements are not being met, and provide reasons of how any service delivery failures are attributable to the flexible roster.”
[6] As is clear from the terms of clause 34, a variable roster may be terminated in circumstances where:
‘(b) service delivery requirements are not being met as a result of the variable shift roster;’
[7] In the present matter, the employer seeks to terminate a variable roster under clause 34.8(b). In such circumstances clause 34.9 provides that the employer ‘must state what service delivery requirements are not being met, and provide reasons of how any service delivery failures are attributable to the flexible roster.’
[8] The central issue at first instance, and on appeal, is whether the prerequisites for the termination of the Water Police Squad variable roster agreement under clause 34.8(b) (and clause 34.9) have been met. At first instance the Commissioner framed the relevant question in the following terms:
‘Is it the case that Victoria Police’s service delivery requirements for the Water Police Squad are not being met as a result of the squad’s variable roster, thereby enlivening the provisions of subclause 34.8 of the 2015 Agreement?’
[9] In the Decision the Commissioner referred to the principles set out in Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 3(Golden Cockerel) (at [46]) and reached the following conclusion as to the proper construction of clause 34 and the resolution of the dispute:
‘[47]The disputed provision is within Part 5 of the 2015 Agreement entitled “Hours of Work and Rostering” with the Part dealing with subject matters such as ordinary hours of work, accrued time off, part-time arrangements, the posting of rosters, changes of shift, the provision of rest days and meal breaks. The Part also provides for the “arrangement of ordinary hours”, which in respect of constables, senior constable sergeants and senior sergeants provides for ordinary hours of work to be worked over a pattern of 8 hours per day worked continuously (clause 30).
[48]Within clause 34 itself the 2015 Agreement provides the capacity for agreement to be reached between Victoria Police “and the employees at a work location” for implementation of “a roster pattern involving shifts longer than 8 ordinary hours” (clause 34.2). The introduction of such a roster pattern can only be “if more than 60% of employees working the roster” genuinely agree, in which case the maximum duration of the variable roster is 10 hours (clauses 34.5 and 34.6).
[49]Categorically, in the absence of agreement between the affected employees and Victoria Police, a variable roster may not be implemented, with clause 34.7 providing;
“34.7 Where agreement cannot be reached between the employer and the affected employees, or a variable roster is terminated, an 8 hour shift pattern will be worked.”
[50]There is no provision elsewhere within clause 34 for a shift pattern of longer than 8 hours duration to be imposed on employees.
[51]Within clause 34, the phrases “service delivery requirements” or “service delivery” are used in three places other than clause 34.8 (noting that the full clause is reproduced earlier within this decision). In particular;
● There is an obligation within clause 34.4 that discussions for alterations to roster patterns are to take into account;
“… service delivery requirements, provisions of flexibility to both the employer and employees, the ability for employees to manage work/life balance and OH&S issues.” (underlining added)
● The phrases are used within clause 34.9 which obliges Victoria Police to state certain things about a proposal to terminate a variable roster;
“34.9 Where the employer seeks to terminate a variable roster under sub-clause
34.8(b), it must state what service delivery requirements are not being met, and provide reasons of how any service delivery failures are attributable to the flexible roster.”
[52]Other than within clause 34, the terminology “service delivery requirements” or “service delivery” is only used in three other places within the 2015 Agreement;
● As evidence of the parties’ commitment to productivity measures, each have acknowledged the beneficial purpose of efficient service delivery with the following provision within clause 12.1, which is part of Clause 12 – Productivity Measures;
“12.1 The employer and the PFA recognise that it is an organisational objective to increase the efficiency of police services provided to the community. To support this objective, the employer and the PFA acknowledge the importance of an Agreement that facilitates effective and efficient service delivery, and provides an appropriate remuneration package for employees.”
● The provision within Clause 121 – Requirement to Take Leave, enabling Victoria Police to develop a leave roster to ensure that recreation leave is not carried over from one financial year to the next with the agreement providing in clause 121.1 to 121.2 that;
“The leave roster will take into consideration the service delivery requirements of Victoria Police and the individual circumstances of the employee.”
● In clause 158, which deals with the provision of time and facilities to Police Federation representatives, an obligation that time used to discuss employment issues does not affect service delivery with clause 158.1(c) providing that PFA representatives will be;
“(c) granted reasonable time in the course of their duties to discuss employment issues with members in their area of representation or Officers of the PFA. Representatives are to ensure that these discussions do not hinder or obstruct members in the performance of their work and that service delivery is not affected.”
[53]The construction favoured by the Police Federation in this matter, to the effect that the phrase “service delivery requirements” requires interpretation as “required levels of service” which in turn it is to be interpreted as an “obligation” is not consistent with the text of the agreement viewed as a whole or the disputed provision’s place and arrangement within the 2015 Agreement.
[54]The ways in which the terms “service delivery requirements” or “service delivery” are employed elsewhere within the agreement are not synonymous with those things being “obligations”. Instead the consistent employment of the term “service delivery requirements” is in the context of something lesser than obligated expectations.
[55]It is consistent with the 2015 Agreement as a whole, as well as in the text of clause 34 in particular, for the phrase “service delivery requirements” to be viewed as the “service delivery needs” or “service delivery expectations”.
[56]I accept the proposition put forward by the Police Federation that there is a need to consider the causation of service delivery requirements not being met and in particular to link that to some feature of the variable shift roster.
[57]In the context of this particular dispute though, the evidence of Victoria Police not only allows for causation to be established, but also provides an answer to the failure to meet service delivery requirements.
[58]Within the context of the construction I have referred to above, that is of the clause meaning that “service delivery needs” or “service delivery expectations” are demonstrated to not be met, the evidence is clearly that in the face of rising community and organisational expectations and static resourcing that the Water Police Squad is not meeting what is required, needed or expected of it. When Inspector Arneil posits that the current shift arrangements provide a less than optimal deployment of his staff and that changed rostering arrangements will provide a better deployment of staff across the State’s waterways, he has in mind that “[i]t allows us to get to more waterways more often with those additional shifts - and do other things, not just more waterways more often but maintain our training disciplines and currency.”
[59]Adoption of the construction argued for by the Police Federation would lead to an artificial bar on the termination of variable rostering arrangements which is not evident either within the language of the agreement as a whole or within clause 34.
[60]I am satisfied on the evidence before me that Victoria Police has complied with the requirement within clause 34.9 to state what service delivery requirements are not being met and that it has provided reasons of how any service delivery failures are attributable to the Water Police flexible roster.
[61]Accordingly, the plain meaning of the disputed provision is as I have described; that is in circumstances in which there is not mutual agreement for termination with the employees concerned (clause 34.8 (a)) or where there has been a change in station profile (clause 34.8 (c)) the arrangement may be terminated when there has been a demonstration that the Victoria Police service delivery requirements needs or expectations are not being met and that there is a connection, objectively seen, between the failure to meet those requirements and the characteristics of the variable shift roster.’
[10] We now turn to the appeal.
2. The Appeal
[11] An appeal of a decision is not as of right and permission to appeal must first be obtained. 4 Subsection 604(2) requires the FWC to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5
[12] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 6
[13] It is common ground that, at least in part, the Decision relates to the proper construction of a provision of the 2015 Agreement and accordingly, the issue for us to determine is whether the interpretation adopted by the Commissioner was correct. 7
[14] However, it is also common ground that the Commissioner’s task in the present matter extended beyond interpreting the 2015 Agreement. The determination of the dispute before the Commission required the Commissioner to identify the relevant ‘service delivery requirements’, assess whether they were being met and whether the variable roster was the reason they were not being met. The resolution of these issues required the Commissioner to be satisfied of a particular state of affairs – to form a particular opinion by reference to the facts and circumstances of the case. Accordingly, the appellate review of that part of the Commissioner’s decision is confined to the principles in House v King. 8
[15] The principles relevant to the task of construing an enterprise agreement were recently summarised in Golden Cockerel 9 as follows:
‘1. The Acts Interpretation Act does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.’
[16] The Notice of Appeal identifies four grounds for the appeal:
‘1. Errors of Law
(a) misinterpreting the disputed clause of the Enterprise Agreement as a result of a process that included:
(i) failing to consider the meaning of the key word in dispute- "requirements";
(ii) conflating the meanings of discrete terms within the Agreement- the abstract and generic notion of "service delivery" as opposed to a distinct category of particularised requirements "service delivery requirements"; and
(iii) coining new phrases- "service delivery expectations" and "service delivery needs"- as purported synonyms for the contentious phrase service delivery requirements" without reference to the meaning of the words from which the new phrases are fashioned- "expectations" and "needs"- as they appear within the context of the Agreement .
2. Errors of Fact
(b) making incorrect findings on the limited facts in evidence including:
(i) finding that the operation of the variable roster had caused a failure to meet service delivery requirements.
3. Errors in exercising the powers of the Commission
(c) failing to properly consider matters which the Commission is required to take into account when performing its functions so as to ensure fairness between the parties and soundness in its decision-making.
This failure is evidenced by a series of omissions on the part of the Commission including:
(i) failing to properly consider the extent to which the Commission and the other party to the proceeding were reliant upon the employer to lead all relevant material into evidence;
(ii) failing to rule on the question of whether an adverse inference should be drawn against the employer for failing to call evidence on a fact in issue that it might reasonably have been expected to call.;
(iii) failing to examine the phrase "service delivery failures" in sub clause 34.9 of the Agreement;
(iv) failing to consider the evidence in its totality and failing to draw necessary inferences from evidentiary gaps; and
(v) failing to state in its decision:
● The measure against which it assessed Water Police Squad service delivery requirements.
● The evidentiary basis for the findings that Water Police Squad service delivery requirements were not being met and that any such failures were caused by the variable roster.
4. House v King errors
(d) miscarrying in its exercise of a discretion by:
(i) failing to inform itself of relevant evidence which could be gleaned from the 12- month Running Sheet Activity Review tendered as an attachment to the witness statement of Inspector Arneil; and
(ii) failing to draw a Jones v Dunkel inference in relation to the unexplained failure of the employer to call evidence on a fact in issue that the party might reasonably have been expected to call. Xiu Zhen Huang v Rheem Australia Pty ltd PR954993’
[17] Grounds 3 and 4 are not pressed. 10
Ground 1: The proper construction of clause 34.8(b) of the 2015 Agreement
[18] The Appellant’s central contention is that the Commissioner erred by misconstruing the expression ‘service delivery requirements’ in clause 34.8(b) of the 2015 Agreement. At first instance (and on appeal), the Appellant advanced an argument that this expression ‘denotes more than mere aspiration or exhortation – it denotes obligation’. 11
[19] The Commissioner rejected the construction advanced by the Appellant as not being consistent with the text of Agreement viewed as a whole or the disputed terms’ place and arrangement in the Agreement (see the Decision at [47]-[59], set out at [9] above). The Commissioner interpreted the phrase ‘service delivery requirements’ as not being limited to an obligation; it being a phrase of wider import, which extends to ‘service delivery needs’ or ‘service delivery expectations’. 12
[20] The Appellant notes that in the Decision the Commissioner considered the use of the expression ‘service delivery requirements’ elsewhere in the 2015 Agreement, but submits that such an analysis:
‘…does little to advance understanding of the clause, and the phrase ‘service delivery’ is relatively uncontroversial. It is only where the qualifier ‘requirements’ is added to the phrase that the controversy is created.’
[21] The Appellant contends that the Commissioner erred by not focussing on the word ‘requirements’ within the expression ‘service delivery requirements’ and by not considering the use of that word elsewhere in the 2015 Agreement. The Appellant notes that the word ‘requirement’ is used on 66 separate occasions throughout the 2015 Agreement and submits that ‘more often than not’ it is used in a mandatory sense. 13
[22] The Appellant drew particular attention to clause 60.6 of the 2015 Agreement, in which the words ‘expectations’ and ‘requirements’ are both used within the same provision. It was contended that clause 60.6 makes it clear that the two words mean different things. Clause 60.6 provides as follows:
‘The annual allowance within Schedule B will be paid on a pro rata basis where the requirement to be contactable is either introduced or removed as an expectation of the Inspector’s role.’
[23] We are not persuaded that the Commissioner erred in the manner suggested by the Appellant. The word ‘requirement’ used outside the phrase ‘service delivery requirements’ is used in different contexts and may have a different meaning depending on the context – a point acknowledged by the Appellant’s representative when he submitted that ‘more often than not’ it was used in a mandatory sense. Implicit in the submission made is a concession that the word ‘requirement’ is not always used in a mandatory sense. The Commissioner’s task was to consider the expression ‘service delivery requirements’, not the word ‘requirement’ in isolation, and to consider the expression in context, which he did.
[24] Nor does clause 60.6 of the 2015 Agreement assist the Appellant. Contrary to the Appellant’s submission, 14 clause 60.6 appears to conflate the two concepts whereby a requirement to be contactable may simply be an expectation of the Inspector’s role. But even if we are wrong about that, some principles of statutory construction have less force in the context of construing an enterprise agreement and a ‘narrow pedantic approach’ divorced from industrial realities is to be avoided.15 For example, in Shop, Distributive and Allied Employees’ Association v Woolworths Limited,16Gray ACJ held that the presumption that a word used in one provision of a statute has the same meaning when it is used in another provision of the same statute, applied with less force in the context of an enterprise agreement:
‘Typically, such agreements are the product of hard negotiation, in which wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are commonly transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings.’ 17
[25] The Appellant submits that the Commissioner ‘creates synonyms for requirements in an effort to clarify [his] decision’. 18 In the grounds of appeal the Appellant contends that the Commissioner ‘coined new phrases’ – namely service delivery expectations and service delivery needs – ‘as purported synonyms for the contentious phrase service delivery requirements’. This aspect of the Appellant’s argument is directed at paragraphs [53] to [55] (particularly [55] of the Decision), which states:
‘[53] The construction favoured by the Police Federation in this matter, to the effect that the phrase “service delivery requirements” requires interpretation as “required levels of service” which in turn it is to be interpreted as an “obligation” is not consistent with the text of the agreement viewed as a whole or the disputed provision’s place and arrangement within the 2015 Agreement.
[54] The ways in which the terms “service delivery requirements” or “service delivery” are employed elsewhere within the agreement are not synonymous with those things being “obligations”. Instead the consistent employment of the term “service delivery requirements” is in the context of something lesser than obligated expectations.
[55] It is consistent with the 2015 Agreement as a whole, as well as in the text of clause 34 in particular, for the phrase “service delivery requirements” to be viewed as the “service delivery needs” or “service delivery expectations”.’
[26] We are not persuaded that the Appellant’s contention has merit. In seeking to define the meaning of a word or phrase it is often of assistance to use different words in order to describe the meaning. In our view that is all that the Commissioner was doing on this occasion. Indeed, as the Respondent points out, the Appellant ‘commits the same sin’ of which it complains by using the word ‘obligation’ as a synonym for ‘requirements’.
[27] The Appellant also submits that the antecedent industrial instruments are relevant to the task of construing clause 34.8(b). We now turn to the relevant industrial history.
[28] ‘Alternative Hours of Work’ (as variable rosters were then known) first appeared in the Victoria Police Force Certified Agreement 2001 and clause 3.3.3 of that agreement provided that either party could terminate such a roster. The termination provisions were modified in the Victoria Police Workplace Agreement 2007 (at clause 5.2.1(a)(iv)(l)) and included as a basis for termination that the ‘variable roster is failing to meet service delivery requirements’. These provisions were again modified in the Victoria Police Force Enterprise Agreement 2011, with the addition of the underlined words: ‘service delivery requirements not being met as a result of the variable shift’. This expression is replicated at clause 34.8(b) of the 2015 Agreement, which also added clause 34.9.
[29] In relation to this industrial history, the Appellant submits (at [26]):
‘There has…been a history of amending this provision to narrow the ability to terminate the roster for reasons which are not caused by the roster…this process of strengthening has occurred to prevent issues that are not germane to the roster being used as a contrivance to terminate the roster.’
[30] The Appellant particularly relies on the introduction of clause 34.9 in the 2015 Agreement and submits that the reference to ‘service delivery failures’ in that subclause supports its contention that the ‘service delivery requirements’ referred to in clause 34.8(b) are mandatory in character. We disagree. It seems to us that it can be said that there is a ‘failure’ to meet a service delivery requirement whether one regards such ‘requirements’ as mandatory or as an expectation or need. The relevant industrial history of clause 34 does not assist in elucidating the meaning of ‘service delivery requirements’ in clause 34.8(b).
[31] The Appellant also contends that the Commissioner ‘failed to draw a nexus between any service delivery requirement not being met and this failure being attributable to the roster as required by clause 34.9’. 19
[32] We are not persuaded that there is any substance to the point advanced. The Commissioner clearly deals with the requirements of clause 34.9 at [56], [57] and [60] of the Decision, as set out below:
‘[56] I accept the proposition put forward by the Police Federation that there is a need to consider the causation of service delivery requirements not being met and in particular to link that to some feature of the variable shift roster.
[57] In the context of this particular dispute though, the evidence of Victoria Police not only allows for causation to be established, but also provides an answer to the failure to meet service delivery requirements…
[60] I am satisfied on the evidence before me that Victoria Police has complied with the requirement within clause 34.9 to state what service delivery requirements are not being met and that it has provided reasons of how any service delivery failures are attributable to the Water Police flexible roster.’ 20
[33] The Appellant also points to the consequences which may flow if the Commissioner’s interpretation of clause 34.8(b) is permitted to stand (at [28]–[29]):
‘The diluted interpretation of the Commission at first instance in paragraph 58, that the phrase ‘service delivery requirements’ is interchangeable with ‘service delivery needs’ or ‘service delivery expectations’, renders the sub- clause susceptible to ‘rising community and organisational expectations’ and ‘static resourcing’ creating a situation where the roster becomes the cause for the failure to meet ‘service delivery requirements’ when in reality it is the rising community or organisational expectations and/or the static resourcing which is responsible for the ‘service delivery requirements’ not being met.
The proposition of Paragraph 58 of the decision at first instance would allow for the Respondent to:
a. Reduce numbers at the Unit and then claim that service delivery could be improved by terminating the roster as a justification for termination
b. Increase the “expectations” on the unit without increasing resources, then claim that service delivery could be improved by terminating the roster as a justification for termination.’ 21
[34] We accept the submission advanced by the Respondent in respect of this contention, namely, that such hypothetical examples are irrelevant to and do not advance the grounds of appeal, and nor do they reflect the evidence that was before the Commissioner. During the course of oral argument, the Appellant accepted that there was no evidence led in the proceedings at first instance in support of the hypothetical scenarios advanced and subsequently advised that they did not seek to lead fresh evidence in the appeal. 22 The following observation by Madgwick J in Kucks v CSR is also apposite:23
‘[T]he task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award.’
[35] For completeness we note that the Appellant submits that the phrase ‘service delivery requirements’ is commonly used in policing and refers to ‘the base level of service any given unit provides’. 24 Further, the Appellant submits that the phrase ‘service delivery requirements’ also appears in clause 121 of the 2015 Agreement, relating to the requirement to take leave, and that Victoria Police ‘imposes limitations on police officers taking leave in many areas at various times of the year’.25 During the course of oral argument, the Appellant’s representative conceded that there was no evidence in the proceedings at first instance to support these two propositions.26 Accordingly, we have not had regard to this aspect of the Appellant’s submission.
[36] In determining the meaning of clause 34.8(b) the Commissioner considered the Agreement as a whole, the phrase ‘service delivery requirements’ used elsewhere in the Agreement, the text of clause 34 and use of the phrase within that clause (see Decision at [47]-[59]). The Commissioner’s reasoning process does not disclose error and, further, the interpretation adopted by the Commissioner was correct.
Ground 2: Error of fact in finding that the operation of the variable roster had caused service delivery requirements not to be met
[37] The Appellant submits that no definitive description of the service delivery requirements of the Water Police Squad was provided to the Commissioner, and that:
‘In the absence of a definitive set of service delivery requirements, the submissions of the Appellant is that it is not open to find that the unstated requirements have not been met, let alone that any purported failure is attributable to the flexible roster.’
[38] During the course of the appeal hearing further material was requested from Victoria Police, specifically, a document setting out:
(i) the evidence in the proceedings at first instance relating to the service delivery requirements of the Water Police Squad;
(ii) the evidence in the proceedings at first instance that these service delivery requirements were not being met; and
(iii) the evidence in the proceedings at first instance that the failure to meet these service delivery requirements was a result of the variable roster.
[39] Victoria Police filed a document on 21 April 2017 in response to the Commission’s request. On 28 April 2017, the Appellant filed a response to the material filed by Victoria Police and on 1 May 2017 Victoria Police filed a short reply to the response filed by the Police Federation. We have considered all of this material and the references made in it to the evidence in the proceedings at first instance.
[40] As mentioned earlier, the issue for us is whether, in essence, the findings made by the Commissioner about the issues set out above ([40](i), (ii) and (iii)) were reasonably open.
[41] It is apparent that the service delivery requirements for the Water Police Squad are not set out in a single document. The absence of such a document added a level of complexity to the Commission’s task in resolving the dispute. We acknowledge that there is some force in the Appellant’s contention that the relevant service delivery requirements are not specified with any particularity and that:
‘…given the nature of policing services in general and that of specialist units in particular, the Victorian Government and community could reasonably expect Victoria Police’s service delivery requirements to be identifiable, objective and standardised measures that exist in documentary form.’ 27
[42] But it is important to bear in mind that the 2015 Agreement does not particularise how service delivery requirements are to be characterised. In particular, the 2015 Agreement does not provide that ‘service delivery requirements…be identifiable, objective and standardised measures that exist in documentary form’.
[43] Further, the evidence in the proceedings at first instance supports the proposition that service delivery requirements are not static and are not determined by a model or mathematical data, but by the demands placed on Victoria Police consequent on changes in:
- regulatory and operational requirements, including a 23 per cent increase in the number of registered recreational vessels since 2005-06 28 and an increased responsibility for ‘marine based harm’;29 and
- community and stakeholder expectations and needs, for example, criticism from the Geelong harbour master about a lack of patrol activity and the danger that presents to large commercial shipping using the port 30 and the need to engage with the Victorian volunteer rescue community.31
[44] In the context of the Water Police Squad, the evidence clearly supports a finding that the regulatory and operational demands have changed significantly over the past decade or so, with increases in the number of registered vessels and paddle craft, inquiries and legislative changes. 32
[45] Further, it was open to the Commissioner to make the finding required by clause 34.8(b) of the 2015 Agreement, that is, that ‘service delivery requirements are not being met as a result of the variable shift roster.’ In particular, the evidence supports a finding that in respect of at least 50 shifts in each of the calendar years 2015 and 2016, the Water Police Squad has been unable to achieve base level patrol activity (one vessel on Port Phillip Bay around the clock – 3 shifts per day). 33 The Appellant’s criticisms34 of the evidence in support of such a finding are unpersuasive and not supported by a fair review of the evidence as a whole.
[46] The evidence also supports a finding that the failure to meet service delivery requirements is a result of the variable shift roster. The evidence was that changing to 8 hour shifts would provide an additional 2,500 shifts and an enhanced capacity to meet service delivery requirements. The Appellant challenges the proposition that 2,500 additional shifts will become available and the assumptions which are said to underpin that estimate. In particular, it is contended that the estimate is flawed because it assumes that the Water Police Squad operates at its gazetted strength of 60 full-time members at all times and work on average 42 weeks per annum. However the contention advanced by the Appellant was put to Mr O’Rourke during cross examination, and rejected:
‘I put it to you that that figure, 2500, is based on full gazette strength and 43 weeks in the year, which is only subtracting the nine weeks of recreational leave. I put it to you that that 2500 can only be achieved by multiplying full strength and without factoring in all those other elements that you have just enumerated?---No. That's incorrect.’ 35
[47] In our view the challenged findings were reasonably open to the Commissioner on the evidence before him.
3. Conclusion
[48] We are not persuaded that the Appellant has established that it is in the public interest to grant permission to appeal. Nor are we persuaded that the Appellant has established an arguable case of error in relation to the decision subject to appeal or that there are any other considerations that warrant the grant of permission to appeal. The Commissioner’s interpretation of clause 34.8(b) of the 2015 Agreement was correct and the findings of fact made were reasonably open to him. Accordingly, permission to appeal is refused.
PRESIDENT
Appearances:
Mr L. Oliver for Police Federation of Australia (Victoria Police Branch)
Ms D. Siemensma for Victoria Police/Chief Commissioner of Police
Hearing details
2017.
Melbourne
18 April.
Final written submissions
Victoria Police: 21 April 2017
The Police Federation of Australia: 28 April 2017
Victoria Police: 1 May 2017
1 [2017] FWC 340
2 Exhibit R2, witness statement of Inspector Mark Arneil at [8]. Also see Annexure BN1 to Exhibit A1 and Transcript 2 November 2016 at [422] – [471]
3 [2014] FWCFB 7447 at [41]
4 Section 604(1)
5 GlaxoSmithKline Australia Pty Ltd v Making[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; New South Wales Bar Association v Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663
6 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481. Also see the Explanatory Memorandum to what is now s.604, at paragraph 2328.
7 Australian, Administrative, Clerical and Services Union v Australian Tax Office (ATO)[2013] FWCFB 4752
8 (1936) 55 CLR 499; Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [21]
9 [2014] FWCFB 7447 at [41]
10 Transcript 18 April 2017 at [42]
11 See the Appellant’s written submissions at first instance, 16 September 2016 at [30]–[38], and on appeal, 31 March 2017 at [10]–[26]
12 Decision at [54], [55], [58], [59].
13 Transcript 18 April 2017 at [196] and [206]
14 Transcript 18 April 2017 at [217]-[222]
15 Kucks v CSR Limited (1996) 66 IR 182 at 184
16 [2006] FCA 616
17 Ibid at [26]
18 Appellant’s written submission, 31 March 2017 at [18]
19 Ibid at [27]
20 [2017] FWC 340 at [56]–[57] and [60]
21 Appellant’s written submission, 31 March 2017 at [28]–[29]
22 Transcript 18 April 2017 at [172]; see also Appellant’s submission, 21 April 2017.
23 Quoted with approval in Golden Cockerel at [20]-[21] as being applicable to the interpretation of enterprise agreements.
24 Appellant’s written submission, 31 March 2017 at [10]
25 Ibid at[16]
26 Transcript 18 April 2017 at [172]
27 Appellant’s Response to Further Material Provided by the Respondent, 28 April 2017 at [7]
28 Exhibit R3, witness statement of Senior Sergeant Mark O’Rouke at [9], see also Exhibit R2, witness statement of Inspector Mark Arneil at [13]-[15]
29 Transcript 2 November 2016 at [365]
30 Ibid at [373]-[374]
31 Exhibit R2, witness statement of Inspector Mark Arneil at [35]-[42] and Attachment 9 and 10
32 Exhibit at [4]; R2 at [24]; Ex R3 at [8]-[9]; Ex A1 at attachments BN-3, BN-4, BN-5; Transcript 2 November 2016 at [364]-[371]; Transcript 3 November 2016 at [796]. See also Transcript 2 November 2016 at [191]-[194]. There are more demands on the respondent: Transcript 3 November 2016 at [796] and Exhibit R3, witness statement of Senior Sergeant Mark O’Rourke at [9]
33 Exhibit A1, witness statement of Brett Neil at attachments BN-3 and BN-4; Transcript 2 November 2016 at [372]–[374] and [613]; Exhibit R2, witness statement of Inspector Mark Arneil at [31] and [36]-[38]
34 Appellant’s Response to Further Material Provided by the Respondent, 28 April 2017 at [9](b)
35 Transcript 3 November 2016 at [1077]; See also transcript at of 2 November 2016 at [206]-[209], [364]-[367], [379]-[386], [499]-[501], [534]-[539], [611]-[621], [626], [724]-[730], [737], [750], [752], [754]-[758], [765], [768]-[770], [792]-[798], [803], [854]-[855], [857]-[862], [993], [997]-[1003], [1077]-[1078], [1093]-[1102], [1127], [1136]
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