The Police Federation of Australia (Victoria Police Branch) v Victoria Police/Chief Commissioner of Police

[2017] FWC 340

[2017] FWC 340

FAIR WORK COMMISSION

DECISION

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

The Police Federation of Australia (Victoria Police Branch)
v
Victoria Police/Chief Commissioner of Police
(C2015/6446)

COMMISSIONER WILSON MELBOURNE, 19 JANUARY 2017

Application for the Commission to deal with a dispute - Water Police - whether service delivery requirements are being met because of variable roster arrangements.

[1] This decision concerns an application by the Police Federation of Australia for the Fair Work Commission to deal with a dispute pursuant to the provisions of s.739 of the Fair Work Act 2009 (the Act), with the dispute relating to the rostering arrangements for police officers employed within Victoria Police’s Water Police Squad. The question in dispute relates to whether the provisions of the applicable enterprise agreement that would enable Victoria Police to change a “variable roster” arrangement, being one that provides for a rostering arrangement in excess of the standard eight-hour shifts, have been enlivened.

[2] Water Police have been working shifts in excess of 8 hours since around 2000, with 10-hour shifts being introduced around 2002. The relevant enterprise agreement provision allows for the “variable roster” arrangement to be ended either through mutual agreement (there is none); a change to the station profile (meaning the hours that the station operates); or, relevant to this matter, if “service delivery requirements are not being met as a result of the variable shift roster”.

[3] The Police Federation submit that the question for determination by the Commission in these proceedings is whether it is demonstrable that service delivery requirements are not being met and that it is demonstrated that those requirements are not being met as a result of the variable roster as it operates within the Water Police Squad.

[4] The standard roster arrangement presently operating within the Water Police Squad is 8 shifts per fortnight of 10 hours duration. The dispute between the parties concerns whether the current roster arrangements for the Water Police Squad can be changed to a standardised arrangement of 10 shifts per fortnight of 8 hours duration. Because the current arrangement is a departure from the standard Victoria Police eight-hour shift arrangement 1 the enterprise agreement refers to it as being a “variable roster”.

[5] In particular, the dispute before the Commission involves a question of whether a provision of the applicable enterprise agreement enables the variable roster to be terminated by Victoria Police even though it is not agreed with the affected employees.

[6] The dispute originally arose as an alleged dispute under the Victoria Police Force Enterprise Agreement 2011 2 (the 2011 Agreement) and was the subject of an application to the Fair Work Commission in late 2015 with conciliation between the parties then being unsuccessfully conducted between December 2015 and June 2016. By the time the conciliation was apparently unsuccessful and an application had been made by the Police Federation for the dispute to be arbitrated by the Commission, the 2011 Agreement had been replaced by the Victoria Police (Police Officers (Excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 20153 (the 2015 Agreement), which commenced on 28 March 2016. The parties agree that the relevant terms of the two enterprise agreements are the same and that the alleged dispute is capable of being advanced to the Commission for determination under the 2015 Agreement.

[7] Clause 34 of the 2015 Agreement provides for variable shifts in the following way;

“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.”

[8] For the purposes of convenience, and consistent with the arguments put by each party to the Commission in the hearing, the question to be determined in the course of this decision is the following;

Q: 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?

LEGISLATION

[9] The Police Federation of Australia’s application to the Commission is made pursuant to s.739 of the Act which provides jurisdiction to deal with disputes in certain circumstances set out within that section and s.738, namely where a “term” of a modern award, an agreement or a contract or Public Service Determination allows for that to occur. Arbitration of a dispute may only be where the parties have agreed for that to occur, in accordance with the term. The Commission’s powers to deal with a dispute under the section are constrained in the ways set out in the section, and most particularly in the way set out in sub-section (5), such that the Commission may not make a decision that is inconsistent with the Act or a Fair Work Instrument applicable to the parties.

[10] Sections 738 and 739 provide;

738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

PRINCIPLES FOR DETERMINATION OF THE DISPUTE

[11] 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 and the resultant arbitrator’s award not being binding of its own force but instead its effect depending on the law which operates with respect to it. 4 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”.5

[12] In considering whether the dispute settlement procedure in an enterprise agreement “requires or allows” the Commission to deal with the dispute, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 6 However in doing so the scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed.7 In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute.8 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.9 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.10

[13] While the character of a dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute, 11 in some cases the relief sought may cast light on the true nature of the dispute.12

[14] Having found jurisdiction to deal with the dispute, the nature of the relief that may be granted will depend on the limitation in s.739(5) of the Act 13 and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.14

[15] As a private arbitrator, the Commission is authorised to make decisions as to the legal rights and liabilities of parties to whom the enterprise agreement applies, 15 which involves deciding “all questions both of law and of fact”16 that arise in the dispute, subject to any limitation on power in the dispute settlement clause, together with the requirement not to make a decision that is inconsistent with the Act, or a fair work instrument that applies to the parties.

[16] Interpretation of an enterprise agreement requires construction of the words of the instrument, with the Full Bench in AMIEU v Golden Cockerel Pty Ltd 17 (Golden Cockerel), setting out the principles for such task. In that matter, and after an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way;

“[41] From the foregoing, the following principles may be distilled:

1. The AI Act 18 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.”

CONSIDERATION

[17] Clause 10.2 of the 2015 Agreement permits disputes to be raised under that agreement “about any matter arising under this Agreement or the National Employment Standards”, with the wider terms of clause 10 providing a procedure to identify and resolve such disputes. Part of the procedure allows unresolved disputes to be referred to the Fair Work Commission, first for conciliation and then, if unresolved, for arbitration (clauses 10.5 and 10.6). Given that the dispute connects directly with the meaning of the pre-condition specified within clause 34.8 for the termination of a variable roster, I am satisfied that the 2015 Agreement’s Dispute Resolution clause requires or allows the Commission to deal with this dispute.

[18] Evidence in this matter was received from Leading Senior Constable Brett Neil on behalf of the Police Federation, and Inspector Mark Arneil and Senior Sergeant Mark O’Rourke on behalf of Victoria Police. The Commission also received and has taken into account the written and oral submissions of each party.

[19] The Water Police Squad operates primarily from its premises in Williamstown in Melbourne’s west, although it does have operations at other locations, including Paynesville in East Gippsland and Benalla in north-east Victoria. In many respects the work undertaken by the Water Police Squad is indistinguishable from that undertaken by police officers in other units; they patrol their areas of responsibility, interact with the community about proper behaviour, as well as ensuring that basic safety obligations are followed and they investigate alleged criminal behaviour. However, the key difference for the Water Police Squad is their State-wide responsibility for all waterways, as well as the fact that much of their work is performed on water and not land.

[20] The unit has responsibility for the policing of all waterways, ports and sea waters in Victoria. The Water Police Squad at Williamstown presently has a gazetted strength of two senior sergeants, eight sergeants and 50 senior constable’s who undertake their work 24 hours a day, seven days per week. 19 It operates a fleet of 35 vessels ranging from small, aluminium vessels to inflatable rescue boats as well as large patrol vessels up to 17 m in length.20 Depending upon the size of the vessel concerned the person operating it may require different and higher-level qualifications including, in some instances, a Master level qualification.

[21] LSC Brett Neil, who has worked within the Water Police Squad since 1998, provided a non-exhaustive list of duties undertaken by the Water Police Squad (the WPS) as follows;

“21. WPS duties are wide and varied. A non-exhaustive list of duties undertaken by the WPS which I believe accurately reflects its role appears below:

• Marine law enforcement under varying State and Commonwealth legislation all navigable waters in the state of Victoria.



• Patrols on waterways within both the metropolitan area and the rural environment



• Marine search and rescue for the state of Victoria and offshore.



• Swift water rescue response (including floods).



• Community education (lectures, displays etc.).



• Counter-terrorism response in the marine environment.



• Structure scanning (UST), including the search for submerged bodies, sunken vessels, aircraft, evidence discarded into waterways and for planned operations and security.



• Body recovery.



• Providing operational support to other Police.



• The search for missing persons, involving waterways.



• Undertake regular training relevant to the marine environment (required and desired).



• Vessel maintenance.



• Rescue Co-ordination Centre duties. (Office-based)” 21

[22] LSC Neil’s evidence developed several themes, including the necessity for a Water Police officer to undertake specialist training; the need for officers to spend a considerable amount of time “on the water” in undertaking their activities; the fact that patrol work required relatively standardised and somewhat lengthy procedures at the beginning and end of each patrol associated with ensuring the maintenance of the vessel as well as placing it into or out of the water if that was required. His evidence also highlighted the fact that, all things considered, the work of a Water Police officer required significant effort including the need for large amounts of travel, often from residences some distance from Williamstown. Mr Neil also highlighted that the police officers he represented believed that the roster changes proposed by Victoria Police may well be detrimental to their interests and that they may choose to resolve that detriment by seeking transfers out of the Water Police Squad.

[23] The roster pattern presently worked by Water Police has evolved over a number of years and has passed through several iterations of enterprise agreement. LSC Neil recalls that when he arrived at the Water Police in 1998 it was then assessing a proposal that the standard eight-hour roster be replaced by one of 12-hour shifts but that that assessment was not concluded until the year 2000 when the Water Police commenced its first variable roster arrangement. His recollection is that the first roster introduced allowed for 12-hour shifts, comprised of two day shifts commencing at 7 AM; two night shifts commencing at 7 PM followed by four rest days. He recollects that this roster “was introduced because it was found that the standard 8 hour shift length was inefficient for WPS duties”. 22 A second variable roster made up of 10-hour shifts was introduced following consultations in 2002 and a third arrangement was negotiated in 2007. The third rostering arrangement, based upon 10-hour shifts, still prevails. The exception to the 10-hour shifts is a night shift and external training shifts which are of eight hours duration.23

[24] The Police Federation argue that the threshold set by the 2015 Agreement for the unilateral termination of variable rosters is high;

“16. The current Agreement stipulates a standard roster for confirmed Police members as being 80 ordinary hours per fortnight worked as 8 hour shifts over 10 days.

17. The current Agreement also provides a means by which the employer and employees of a particular work unit can agree to a roster where ordinary hours can be worked in shifts of longer than 8 hours. A roster of this kind is known as a variable shift roster.

18. Introducing a variable roster has two main effects:

1) For the employer - the ability to roster shifts of longer than 8 hours duration without paying overtime rates.

2) For the employees – the ability to work 80 ordinary hours per fortnight in fewer than 10 days.

19. A variable shift roster can only be introduced (or re-made) by genuine agreement between the employer and at least 60% of the workers working the roster.

20. A roster agreement so made binds the parties, creates enforceable legal rights and continues to apply until it is terminated in accordance with sub clause 34.8.

21. Roster agreements may be terminated either by mutual agreement or, in the limited circumstances described in sub clause 34.8 (b) and (c), at the initiative of the employer.

22. In our submission, the threshold required to establish grounds for unilateral termination of a roster agreement is high given its context within the Agreement as a whole.

We draw the Commission’s particular attention to the following parts of the Agreement:

a) The commitment by the employer to providing flexible work options to assist employees in achieving an appropriate balance between organisational requirements and personal lives, 4

b) The specific consultation obligations relating to proposed roster changes,

c) The good faith obligations imposed on the parties to a dispute, and

d) The exclusively consensual means by which roster agreements can be created.” 24 (references omitted)

[25] The Applicant also submits that the reference within clause 34.8 (b) to termination of the variable roster for reason of service delivery requirements not being met is to be construed as there being a demonstration that a “required level of service” not only is not being met, but also that the requirements amount to an obligation. It argues that clause 34.8 (b) has a plain meaning based upon the phrase “required levels of service” and submits the following about that contention;

““Required levels of service”

30. The crucial element in the phrase “required levels of service” - or more generally, the concept of “service delivery requirements” - is the meaning of the word “required” as it appears in context.

31. The Macquarie Dictionary provides the following definitions for “requirement”:

1. that which is required; a thing demanded or obligatory: a knowledge of Spanish is among the requirements.
2. the act or an instance of requiring.
3. a need: to meet the requirements of daily life.

32. The Shorter Oxford English Dictionary provides the following definitions for “requirement”:

Something called for or demanded, a condition which must be complied with.
[To satisfy the college entrance requirements]

A thing required or needed, a want, a need (frequently in plural). Also the action or instance of needing or wanting something.
[Our food requirements reduced to one small pill]

33. In relation to subclause 34.8(b), it is our submission that the first definition - “a thing demanded or obligatory” and “a condition which must be complied with” respectively – is the one which applies.

34. Accordingly, we submit that phrase “required level of service” denotes more than mere aspiration or exhortation – it denotes obligation.

35. We view the “base level service delivery model” referred to in Victoria Police’s “Statement of Objective” as being the concrete expression of this obligation.

36. We understand the “base level service delivery model” to be a particularised and objective set of measurements against which the operational performance of the WPS as a whole can be, and is in fact, assessed by Command.

37. We note that despite the protracted duration of this dispute, Victoria Police is yet to provide any explanation of what the WPS “base level service delivery model” is, or how it applies across the three domains which the Statement of Objective asserts demand equal resourcing in specialist units - operational services, training and administration/maintenance.

38. We respectfully submit that in the absence of any explanation of what the WPS base level service delivery model is, and how it operates, it is impossible for Victoria Police to demonstrate compliance with subclause 34.9 - the first of the four preconditions to the exercise of subclause 34.8(b) referred to in paragraph [12] above.

“As a result of the variable shift roster”

39. The phrase “as a result of the variable shift roster” is concerned with the question of causation.

40. “Result” is variously defined as “that which results; the outcome, consequence, or effect” and “the effect, consequence, issue or outcome of some action, process or design”.

41. In effect, subclause 34.8(b) requires the employer to demonstrate that the operation of the variable roster has caused any failure to meet service delivery requirements.” 25 (references omitted)

[26] Victoria Police’s case about its proposed roster changes is that an eight-hour shift arrangement would allow the Water Police Squad to more efficiently and effectively provide policing services to the Victorian community in relation to the State’s waterways.

[27] Victoria Police summarise their key service delivery requirements for the Water Police Squad as follows;

“38. WPS provides specialist support by managing all marine search and rescue incidents, and law enforcement of the marine environment. It also has overarching responsibility for port security operations and marine counter-terrorism capabilities.

39. Over the past few years it has become clear that the most significant risk to the community in the marine environment comes from recreational boating activity rather than terrorist events. This has resulted in a significant increase in focus upon daily operational performance, accountability and efficiency.

40. It is critical for Victoria Police to work and share responsibility with other key stakeholders; in particular Maritime Safety Victoria (MSV) to achieve positive marine safety outcomes and to minimise the risk of adverse marine events. Over the past few years it has become clear that the most significant risk to the community in the marine environment comes from recreational boating activity rather than terrorist events. WPS has no choice but to adapt its operating model to minimise these substantial community risks. This has resulted in a significant increase in focus upon daily operational performance, accountability and efficiency.

41. There has been an enormous increase in the number of registered vessels in Victorian waterways. There are almost 190,000 registered vessels and more than 380,000 licensed masters in Victoria. In addition, there are approximately 300,000 passive craft such as canoes, kayaks and off-the-beach yachts. There has also been a significant increase in the sale of paddle craft, and of particular concern, there has been a related increase in serious marine incidents.

42. WPS and MSV have identified key issues requiring intervention, for example, wearing lifejackets, paddle craft, safe boats that are fit for the purpose, collisions, cold water immersion, coastal and offshore waterways. This involves significant enforcement activities on land and water, with a zero tolerance approach to offences. There is a proven link between enforcement activity and a reduction in serious marine incidents.” 26

[28] While Victoria Police do not concede they have a responsibility to discharge an onus under clause 38.4(b) before the variable rosters may be changed, it put forward that its service delivery requirements for the Water Police Squad were not being met for reason of the following matters;

“45. As is clear from the statements of Victoria Police’s witnesses, the current agreement restricts effective operational rostering because of the requirement for all shifts to be of 10 hours duration with the exception of night shifts and external training activities which are rostered as 8 hour shifts. This equates to an average of 168 shifts per member each year, providing an average of 10,080 shifts annually from a workforce of 60 members. This number of shifts is further reduced by up to 530 shifts annually for other factors such as vacancies, unplanned leave, suspensions and assignments.

46. The base level service delivery model for operational services needs a minimum of an additional 2,500 – 3,000 shifts annually. This model encompasses required patrol activity to the State’s waterways, targeted operations, and improved investigative capacity in line with changes to the Crimes Act 1956 that now exposes negligent or reckless vessel operators to Crimes Act offences.

47. The proposed 8 hour roster for WPS is based on using current resources more effectively by increasing the frequency of shifts as opposed to the duration of shifts. An 8 hour roster model will have an immediate impact on water safety outcomes by increasing the number of shifts available to be rostered by up to 2,520 annually. It will allow the WPS to deliver more patrols to more waterways, more frequently without increasing the burden on sworn employees.” 27

[29] In his evidence Inspector Arneil, on behalf of Victoria Police, gave the following context for the squad and its law enforcement responsibilities;

“9. The Water Police Squad sits in the Specialist Response Division of Victoria Police and is one of five units in that Division. The other units include the Dog Squad, Air Wing, Mounted Branch and Search and Rescue. The Specialist Response Division is part of Transit and Public Safety Command.

10. The Water Police Squad’s mission is to provide specialist support for the State of Victoria, primarily through the roles of coordinating all marine search and rescue incidents and law enforcement of the marine environment. The Squad has additional responsibilities in the water environment that include aspects of port security operations and marine counter terrorist capabilities.

11. Marine search and rescue incidents include those involving recreational vessels, yachts, fishing vessels and commercial vessels. These incidents often involve overdue vessels, flare sightings, broken down boats, missing divers, injured crew members and distress calls. The Water Police Squad receives over 700 calls a year for assistance to incidents of this nature. Many marine incidents involve circumstances that warrant investigation or oversight by attending water police personnel to determine causation or fault.

12. The Water Police Squad’s law enforcement responsibilities are similar to that of the police and Road Safety. An enforcement strategy is applied to shape vessel operator behaviour in pursuit of improved marine safety outcomes. This responsibility extends to the investigation of marine incidents that have contributed to injuries or deaths.” 28

[30] Inspector Arneil approached his evidence from the perspective of a senior manager having to balance the demands of his organisation with the resources made available to him for that purpose. In particular he put forward that there was a necessity, because of the growing need for water policing services, for the Water Police Squad to find ways to be more effective in delivery of its mission with the available resources. That fundamental proposition was cogently put by him the course of cross-examination in the following way;

“So would you agree as a broad statement that you can't provide - Victoria Police can't provide and I guess - no, let's make it specialised. The Water Police Squad can't provide - doesn't have enough resources to satisfy all of the stakeholders to the level at which they would be satisfied? Demand outstrips supply?---Yes, that's correct. It's a balancing act. This can be likened to trying to keep six pots on the boil on a two burner stove. We're making compromise and decisions relating to compromise every day and trying to apply those resources where there is the greatest risk and the greatest harm, and to do that I'm honing in on some inefficiencies within my current roster model to allow me to deploy what resources I do have more effectively.” 29

[31] LSC Neil’s evidence refers to the process by which Victoria Police has sought to change the existing rostering arrangements. Those efforts included consultation as well as the undertaking of an unsuccessful ballot on the subject as well as is conciliation before the Fair Work Commission. A product of the Commission’s conciliation was correspondence to the Police Federation from Victoria Police which, after recording that a second ballot conducted on 22 February 2016 was unsuccessful, sets out in some detail Victoria Police’s case for the termination of the prevailing variable rostering arrangements. Assistant Commissioner Chris O’Neill APM was the author of the correspondence who put forward the following broad case for change;

“In accordance with clause 32.7(b) of the Agreement, the reasons service delivery requirements are not being met with the current variable shift roster are related to the current frequency of shifts.

If compared to working a roster pattern of all 8 hour shifts, the current variable shift roster results in a reduced number of shifts (up to 2500 shifts less per year) that are available to roster in accordance with operational service delivery.

The benefit that is sought for the WPS is a gain in service delivery on the basis of frequency of shifts as opposed to duration of shifts. If, for example there is a one hour preparation, and one hour wash up liability for each patrol shift, then 8 out of the 10 hours are available to be spent on patrol i.e. a 10 hour roster translates to 4 x 8 = 32 hours patrol time per 40 hours worked (duration).

On an 8 hour roster this translates to 5 x 6 hours patrol time = 30 hours patrol time per 40 hours worked. This is two hours less patrol time, however this model represents a 20% increase in number of patrols (5 days versus 4); thereby increasing the frequency of shifts. A rostering model providing higher frequency of shifts allows the WPS to deliver more services, more often.” 30

[32] Assistant Commissioner O’Neill, who did not give evidence in these proceedings, referred in his letter to the effect on service delivery of the current frequency of shifts flowing from the current variable rostering arrangements, putting forward nine broad categories of effect as follows;

“ Failure to achieve base level patrol activity (one vessel on Port Phillip Bay around the clock - i.e. 3 shifts per day). …”;

“ Inadequate patrol activity at State waterways. As an example, the Port of Geelong is one of Victoria's five regulated ports. Commercial ships access the port via a defined narrow channel. … In 2015 the WPS had the ability to task patrols to Geelong on only 32 days during which a total of 62 shipping movements were recorded. There were 721 shipping movements in the Port of Geelong in 2015 meaning 91% of shipping movements were not patrolled by WPS.”;

“ Inability to meet changes to the operating environment such as: increased participation levels in recreational boating (particularly in Kayaks) may have contributed to boating related fatalities being almost double the five year average for the past two years (many of these are kayakers). …”;

“ Inability to meet the demand of legislative change …”;

“ Inadequate rostering of additional patrol shifts during times of elevated demand; in particular weekends and known problems (i.e. Jet Ski hoons, patrols of Hastings, Geelong and Portland ports etc. )”;

“ Inability to fully support service delivery innovations (e. g. establishment of the Marine Investigation Unit).”;

“ Difficulty in both progressing personnel through the required levels of vessel operation competency due to lack of available shifts in addition to those required for base patrol activity …”;

“ Difficulty in achieving desired levels of stakeholder engagement and capability development. …”;

“ Difficulty in supporting professional development opportunities.”.

[33] Many of the themes which are referred to within the Assistant Commissioner O’Neill’s correspondence were then developed by Inspector Arneil both in his dealings with members of the Water Police Squad, the Police Federation as well as is in his evidence. In particular his evidence sought to make the point that shorter shifts would allow more shifts to be undertaken by the Water Police Squad in the course of the year, albeit with the same number of employees. In summary, while shorter shifts may mean less time on the water by the squad it had the benefit of ensuring that there were more days in the course of the year that the squad could be present in the waterways it policed, even though that means marginally less time in the water, 31 giving this analysis in examination-in-chief;

“… The impact that police, highly visible police, have in their vessels or in highway patrol vessels relates to how often they're seen by the public. We have the same impact on boating behaviour by patrolling on waterways, checking vessels and having the public and the boating community talk amongst themselves about the fact that "Oh, the Water Police were at X amount" or "X location on these days last week". What this means to me by being able to deploy to more locations more often is greater exposure across the State and greater contact with recreational boaters to help educate safe boating behaviour. So as an example if I'm able to put one additional patrol per week at a waterway, and we'll say Western Port Bay, the public will know that they saw the police on Western Port Bay on that particular day. They won't be able to tell you how long they were out there for but they will definitely be able to tell you that they were out there on that day, and this is the difference to me of being able to service areas and locations such as the Port of Geelong, additional resources to Western Port, additional patrols across the State's waterways that we're currently not getting to because I can't because of the restriction on my resources.” 32

[34] The Police Federation contested the wisdom of this approach largely because it would mean that the set up and cleaning time associated with preparing vessels for use was relatively standard and that the consequence of vessels being on the water for more days in the course of the year would be that every one of those days would have preparation time meaning that the overall time on the water would be reduced.

[35] The Police Federation took Inspector Arneil to a passage within his witness statement that dealt with the perceived benefits of additional days on the water, but which also alluded to the impact of preparation time;

“61. The primary benefit in patrol based service delivery is on the basis of frequency of shifts as opposed to duration of shifts. If, for example there is a one hour preparation, and one hour wash up liability for each patrol shift, then 8 out of the 10 hours are available to be spent on patrol i.e. a 10 hour roster translates to 4 x 8 = 32 hours patrol time per 40 hours worked (duration). On an 8 hour roster this translates to 5 x 6 hours patrol time = 30 hours patrol time per 40 hours worked. This is two hours less patrol time however this model represents a 20% increase in number of patrols (5 days vs. 4); thereby increasing the frequency. This assertion of frequency stands, regardless of any argument over the length of preparation time and its impact upon available patrol time.” 33

[36] The matter was dealt with in cross-examination by the Police Federation in the following exchange with Inspector Arneil;

“… So if we go back to paragraph 61 in your statement, we take your point on frequency. We know that five is more than four. We just want to hear it from you one more time that the amount of time on water is - it's reduced. Do you accept that as a logical consequence of having an additional day of preparing and washing down? However long that takes, you've got an additional day to do it. That's right, isn't it? --- Providing all of that information in there stands true then there is a slight reduction with on water time.

But regardless of what the figures are, if you had four days where you're preparing and washing down and then you had five days, that's a 25 per cent increase in the time that you spend preparing and washing down, isn't it? Four becomes five. That's a 25 per cent increase? --- Yes, that follows.

Yes? --- Yes.

Yes, and that 25 per cent increase in preparation and wash down comes out of a finite amount of total number of hours, doesn't it? --- Yes, it does.

Yes, it does. So it necessarily reduces the operation of the time on water? --- Marginally, but at the expense of frequency.

It necessarily reduces the time on water. Yes or no? --- Yes.” 34

[37] LSC Neil put forward a contrary view which included that each vessel required standard amounts of time for preparation and end-of-shift routines that would not change according to the length of time spent on the water;

“80. All vessels need to undergo pre operation checks before departure to ensure they are seaworthy, they comply, fire systems are ready, all safety equipment is up to date, and all systems are tested. This is not only good seamanship but it is also a requirement under the National System for Domestic Commercial Vessel Safety.

81. As well as the required checks the person in charge of the vessel is also required to ensure that the following drills are conducted on a regular basis: fire-fighting, collisions, abandon ship, flooding and man overboard.

82. The larger vessels can take between 1 – 1.5 hours to prepare and from 1.5- 2.5 hours to shutdown including refuelling i.e. a total of 2.5 – 4 hours.

83. The smaller vessels can take around 0.5 - 0.75 hours to prepare and from 1 – 1.5 hours to shutdown including refuelling i.e. a total of 1.5 – 2.25 hours.

84. The core function of the WPS is to patrol, so the idea of introducing a roster with 8 hour shifts that would reduce time spent on the water does not seem to a logical way to provide the best service delivery to the boating public and other stakeholders.” 35

[38] In a similar vein the Police Federation submissions and evidence questioned the effect of the Victoria Police changes on overall training in the course of the year. With 750 training shifts in the course of the year, each of 10 hours duration, the expectation was that the Water Police Squad would train its officers for about 7,500 hours each year. With a change to 8-hour shifts a relative inefficiency would be created since the achievement of 7500 hours training each year would require more shifts than at present. Inspector Arneil’s evidence on the subject acknowledged the point being made but did not concur with the overall proposition;

“I'm asking you when you put in your base level rostering and you say 750 training shifts, I'm asking you to tell me how many hours that 750 training shifts equates to? --- So, roughly that will be 7,500. That's drawn from historical data.

If they're 10 hour shifts it will be 7,500 won't it? --- Yes.

But if it's eight hour shifts you're going to need more shifts aren't you to cover the same amount of hours? --- Yes, that's right.

Yes, so can we say then - can we express that in terms of hours? Can we say that the base level rostering is 7,500 hours of training? --- Yes, you can.

Thank you? --- But it's a complex argument.

It's not a complex argument. How many hours are you committing to? You've had a very complex discussion over 18 months and this is what you've come up with and you haven't told any of the operatives. I'm asking you now, tell me in terms of hours what have you come up with ? --- As a rough estimate upon analysis 7,500 but that doesn't allow for any difference between an eight hour shift that's been accumulated through an external training provider. I couldn't guarantee that if somebody's done a two week course on eight hours shifts, how that has been reflected; whether there's a base count of a 10 hour shift or a base count of an eight hour shift for those - that training activity.

Hours. So we're talking about hours and so can we agree then that if you have 7,500 hours and there are 10 hour shifts that you will need fewer 10 hour shifts than if you had eight hour shifts, to fulfil that requirement, that base level service requirement that you've defined? --- I'll answer this, I say I need 7,500 hours regardless of whether they're incorporated into 10 hour shifts or eight hour shifts.” 36

[39] Consideration of the evidence in totality demonstrates a desire on the part of Inspector Arneil to make the changes to the current rostering arrangements for reason of the “balancing act” referred to above. Of necessity he desires to make decisions about his resources so that they may be applied “where there is the greatest risk and the greatest harm”. 37

[40] The Police Federation’s case includes the proposition that that desire on the part of Inspector Arneil does not rise to the level of service delivery requirements not being met as a result of the variable roster, which ultimately is the test prescribed by clause 34.8 of the 2015 Agreement. Aside from the construction of the clause to be one of consideration of service delivery requirements as being an obligation, referred to above, the Police Federation points to failures by Victoria Police to sufficiently articulate to the Commission certain concepts included within the exchange of materials between the parties in preparations for these proceedings. Following one of the conciliations before the Commission, Victoria Police was invited to provide to the Police Federation a statement about its objectives for the proposed rostering changes. Within those objectives, which are attached to LSC Neil’s witness statement, Victoria Police refer to a “base level service delivery model”, the derivation of the existing model and the pressures it fails to address, as well as how the organisation believes change may be beneficial;

“In an attempt to meet these significant challenges and the increase in the demands for marine environment service, the WPS has developed a base level operating model that it would be able to meet with the resources it has available. Like most of Victoria Police's service delivery models, the base level model developed by WPS is based on compromise. Victoria Police acknowledges that there are occasions where there will be insufficient police to meet community demand but the base level model developed by WPS attempts to provide a satisfactory level of service throughout the Victorian marine environment with the resources it has available.

The base level service delivery model is currently governed by the WPS variable rostering agreement that dates back to 2004. The current agreement restricts effective operational rostering because of the requirement for all shifts to be of 10 hours duration with the exception of night shifts and external training activities which are rostered as 8 hour shifts. This equates to an average of 168 shifts per member each year, providing an average of 10,080 shifts annually from a workforce of 60 members. This number of shifts is further reduced by up to 530 shifts annually for other factors such as vacancies, unplanned leave, suspensions and assignments.

The impact of this shortfall is significant, and reduces the ability to adequately resource:

1. Operational services;
2. Training of sworn employees in key competencies; and
3. Administrative/maintenance activities.

These three areas are acknowledged in specialist units to occupy equal amounts of time in resourcing. They are also mutually dependant, and a shortfall in one has a negative impact on the others, and the ability of WPS to achieve the marine safety outcomes which it is required to achieve.

The base level service delivery model for operational services needs a minimum of an additional 2,500 - 3,000 shifts annually. This model encompasses required patrol activity to the State's waterways, targeted operations, and improved investigative capacity in line with changes to the Crimes Act 1956 that now exposes negligent or reckless vessel operators to Crimes Act offences. This brings the marine environment into alignment with Victoria's roadways.” 38

[41] The Police Federation submit that Victoria Police has failed to provide an explanation of what might be the “base level service delivery model” or how it operates across the three domains referred to in the extract above, namely operational services, training and administration/maintenance. It then submits;

“We respectfully submit that in the absence of any explanation of what the WPS base level service delivery model is, and how it operates, it is impossible for Victoria Police to demonstrate compliance with subclause 34.9 - the first of the four preconditions to the exercise of subclause 34.8(b)…” 39

[42] For reason of the submissions referred to above, the Police Federation advocate that the Commission should accept that when consideration of the construction of clause 34.8 (b) is made, the phrase “service delivery requirements are not being met as a result of the variable shift roster” should be read instead as the “required levels of service are not being met” with the word “required” in turn being construed as meaning “obligation”. 40

[43] It also puts forward that is necessary to construe the phrase as including a matter of causation. That is it must be established that it is the variable shift roster which causes the service delivery requirements not to be met. The Police Federation says particularly “that the operation of the variable roster must be a predominant and direct cause of any failure to meet service delivery requirements, and that that service delivery failure cannot be remedied by an alternative course of action”. 41

[44] Victoria Police’s construction of the clause is simpler, putting forward that there are in essence merely two considerations;

“Victoria Police has met the requirements of clause 34, because it has shown that service delivery requirements are not being met because of the variable roster, and Victoria Police has stated how the failure to meet service delivery relates to variable roster. The applicant argues that there is a requirement to demonstrate that the proposed change would result in an improvement. There is no such additional requirement in clause 34. However, the notion of improvement is inferred into the requirements of clause 34. In other words, Victoria Police wants to terminate the variable roster because service delivery requirements are not being met, and to implement a new roster so that WPS can greatly improve its ability to meet base service delivery requirements. The evidence from both Victoria Police witnesses demonstrates that management anticipates that there will be a number of service delivery benefits from the implementation of a new eight hour roster.” 42

[45] Consideration of the disputed provision of the 2015 Agreement concerns the following phraseology, given that there is no mutual agreement between the parties to end the variable roster (clause 34.8 (a)) and that there is no evidence there has been a change in “station profile” (clause 34.8 (c);

“A variable roster may be terminated … [when] … service delivery requirements are not being met as a result of the variable shift roster”.

[46] In giving consideration to the interpretation of this provision I have had regard to the principles set by the Full Bench in Golden Cockerel. 43 That is, in construing the disputed provision;

• I have not had regard the provisions of the Act Interpretation Act 1901;



• I have had regard to all the evidence before me about the enterprise agreement and note that there is nothing within that evidence that causes me to form the view that an ambiguity exists within the provision;



• There is nothing on the face of the disputed provision that would cause me to find that it contains an ambiguity. Instead I find that it has a plain meaning;



• Having found that the provision has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the provision;



• I do not find that there is admissible evidence before me tending to establish objective background facts known to all parties on the subject matter of the provision;



• It is appropriate therefore that the resolution of the disputed provision turn on the language of the 2015 Agreement understood having regard to its context and purpose;



• The common intention of the parties with the disputed provision will be established having regard to the objective material before me, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

[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.” (underlining added)

[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.” (underlining added)

• 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.” (underlining added)

• 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.” (underlining added)

[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 Arniel 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.” 44

[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.

CONCLUSION

[62] For the reasons set out above I answer the question to be determined in this matter in the following way;

Q: 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?

A: Yes.

COMMISSIONER

Appearances:

Mr S Gome for the Police Federation of Australia.

Ms J Baker for Victoria Police/Chief Commissioner of Police.

Hearing details:

2016.

Melbourne:

2, 3, 14 November.

 1   AE418283 cl 30.

 2   AE889678.

 3   AE418283.

 4   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, at [25].

 5   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].

 6   CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

 7   SDA v Big W Discount Department Stores PR924554 at [23].

 8   AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [23].

 9   Ibid.

 10   MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.

 11   MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [21]-[22].

 12   United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].

 13   The Commission must not make a decision that is inconsistent with the Act, or a fair work instrument that applies to the parties.

 14   MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32].

 15   CFMEU v AIRC (2001) 203 CLR 645 at [32]; Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [19]-[24]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36].

 16   AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [36].

 17   [2014] FWCFB 7447.

 18   the Acts Interpretation Act 1901 (Cth).

 19   Exhibit R2, Witness Statement of Mark Arneil, [6].

 20   See Exhibit R2 [6]; Exhibit A1, Witness Statement of Brett Neil, [24].

 21 Exhibit A1 [21].

 22 Ibid [41].

 23   Ibid [38]–[47].

 24 Exhibit A3, Applicant’s Outline of Submissions, [16]-[22].

 25   Ibid [30]-[41].

 26 Exhibit R1, Respondent’s Outline of Submissions, [38]-[42].

 27   Ibid [45]-[47].

 28   Exhibit R2 [9]-[12].

 29   Transcript PN 501.

 30   Exhibit A1 Attachment BN – 4.

 31   Transcript PN 726.

 32   Ibid PN 383.

 33 Exhibit R2 [61].

 34   Transcript PN 734 – 739.

 35   Exhibit A1 [80]-[84].

 36   Transcript PN 514 – 520.

 37   Ibid PN 501.

 38   Exhibit A1 Attachment BN – 5.

 39 Exhibit A3 [38].

 40   Ibid [27]–[35].

 41   Ibid [39]–[42].

 42   Transcript PN 1341.

 43   [2014] FWCFB 7447 [41].

 44   Transcript PN 752.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR589457>