100421091

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES NICOLE MORAG HILL

CLAIMANT

 -v-

 MINISTER FOR POLICE & BARRY MATTHEWS, COMMISSIONER OF POLICE, WESTERN AUSTRALIAN POLICE SERVICE.

RESPONDENTS

CORAM MAGISTRATE RH BURTON IM

DATE  THURSDAY, 22 JANUARY 2004

FILE NO/S M 46 OF 2003, M 47 OF 2003, M 88 OF 2003, M 89 OF 2003

CITATION NO. 2004 WAIRC 10588

_______________________________________________________________________________ 

Representation

Claimant  Mr P Momber (of Counsel)

Respondents  Mr R Bathhurst (of Counsel)

_______________________________________________________________________________

Reasons for Decision

1         This matter concerns claims for the payment of an on-call allowance and for the imposition of a penalty for breaches of the relevant industrial agreements as a result of the failure to pay such allowance.  The Claimant also makes a claim for interest to be paid on any sum found to have been underpaid.  I am informed that the claim for payment of the on-call allowance was lodged by the Claimant with her superior officer in the first instance on 2 April 2002.

2         The relevant industrial agreements are:

• Western Australia Police Service Enterprise Agreement for Police Act Employees 1996 No AG 274 of 1996.
• Western Australia Police Service Enterprise Agreement for Police Act Employees 1998 No AG 129 of 1998.
• Western Australia Police Service Enterprise Agreement for Police Act Employees 2001 No PSAAG 8 of 2001

3         For completeness, I set out the detail of the claims in date order:

• M 46 of 2003 covers the period from 22 June 1998 to 18 March 1999 comprising 38 weeks or 17 pay periods.  This claim alleges 17 breaches of the relevant agreement leading to an underpayment of $17,847.05.
• M 88 of 2003 covers the period from 19 March 1999 to 3 December 2000 comprising 90 weeks or 45 pay periods.  This claim alleges 45 breaches of the relevant agreement leading to an underpayment of $38,341.69.
• M 89 of 2003 covers the period from 4 December 2000 to 18 September 2001 comprising 42 weeks or 21 pay periods.  This claim alleges 21 breaches of the relevant agreement leading to an underpayment of $18,106.96.
• M 47 of 2003 covers the period from 19 September 2001 to 13 October 2002 comprising 56 weeks or 28 pay periods.  This claim alleges 28 breaches of the relevant agreement leading to an underpayment of $27,330.41.

4         Her claims therefore allege 111 breaches of the relevant industrial agreements and seek the payment of $101,626.11 for the period from 22 June 1998 to 13 October 2002 together with interest thereon..

5         The Claimant was a Senior Sergeant of police with 20 years service experience. She was the Property Receivable and Exhibits Storage Officer in what is referred to as the PRESS section of the Western Australia Police Service.  She was the senior officer in charge of that section and was assisted by five public servants.  She was the key holder to both the facilities to be mentioned below and was the only sworn officer in the section.

6         Her position description included a requirement to work day shift and a clause which required her to perform “other duties as directed”.  She worked at one of the two sites mentioned below during the day.  Her immediate superior was a Superintendent.

7         She re-organised the property section following on the recommendations of a report given prior to her arrival at the section to make the section more organised and accountable.  All types of property that came into police custody were stored in the facilities, including 260 seized motor vehicles.  The total value of property stored was about $8,000,000.00.

8         When she first started there was one storage facility at Maylands and later a second facility was established at Midland.  In reality the facilities were vast storage sheds inside perimeter fences patrolled by civilian security guards.

9         As part of her duties she was required to attend to any after hours incident that occurred at either of these facilities.  On commencing as the officer in charge she gave her contact telephone number to the police communications centre.  She was initially told she would not be paid overtime.

10     The storage facilities were pretty inadequate.

11     If the security alarm went off at either premise (sometimes it was a false alarm) the police communications section rang the Claimant and she had to go in to the facility in civilian clothes, unarmed and alone, to see what the situation was and reset the alarm.  At the site a security guard let her in through the perimeter fence and then left her to do her checking.  The alarms often went off at night, sometimes twice a night and after she had gone to bed.  She had to travel between 40 to 68 kilometres from her home to attend the sites, initially in her own car.  Sometimes she instructed the communications section to contact the nearest police station to do a perimeter check.  Such checks did not involve access to the two buildings concerned.

12     She was expressly directed to attend to the alarm calls on 10 February 1999 although she had done so from the time she commenced her work in the section.  Later, after discussion with her superiors, she was supplied with a vehicle and a mobile telephone.  She stated that she was supplied with a vehicle because she was on call and to that end applied from time to time as required, for the renewal of the supply of the vehicle.

13     She said that she was working when she was standing and waiting for a call in relation to the alarms.

14     Later both the vehicle and the mobile telephone were taken from her.

15     She stated that when she went on leave she arranged for someone else to be on call. 

16     She stated that she was the only person appointed to do the job.

17     It is now admitted that the persons who from time to time directed her to do the job were authorised to do so.

18     She said that she raised the question of being on call repeatedly with her superiors.  At one stage she was told she was not on call.

19     She made the claim to be paid as she had performed the work.  Particularly as someone later told her that her situation was an on-call situation.

20     To be eligible for an on-call allowance according to clause 16 of the 1996 agreement, (the other relevant agreements are the same as the 1996 agreement), the employee must be rostered or directed by a duly authorised senior officer to be available to respond forthwith for duty outside the employee’s ordinary working hours or shift and must remain contactable by telephone or paging for all of such time, unless working in response to a call or with the consent of his or her superior officer.

21     It is appropriate in this claim to note that the police service has a command structure and a system of devolution of authority that requires obedience to commands issued by superior officers. There may even be penalties attached to disobedience.

22     I believe she told each officer in charge of her position and at least once told of threats to her and her family.

23     I note, just so that the matter is not overlooked, that there is some dispute as to the calculations made in the claim.  I was assured by Counsel for the Claimant that the correct amount could be easily calculated by the paymaster subsequent upon the application of my decision should I find in favour of the Claimant.

24     One Superintendent told her that she was not entitled to an on-call allowance.

25     She was at one stage authorised to be on intermittent duties, a situation where she could adjust her hours over a period but she said that her job involved more work than that.  That situation continued until she finished up with the job.  Up until April 2002 she attended the facilities 145 times.

26     She received calls when on leave even after arranging for someone to relieve her.  She said that she was always available.  On some occasions she tried to arrange for another officer to back her up.

27     She claimed her superiors found her situation too difficult to deal with and she alleges that she was fobbed off.  She made claims for overtime that were paid and those periods have not been included in the claims before me nor has any claim been made for when she was recalled from leave.

28     On 1 May 2002 she had a conversation with Superintendent Bowers, one of her previous superiors, and he told her that he had expected her to do the work and that he had never authorised an on-call allowance.  This was a long time after he had left the position.

29     She said her delay in applying for the allowance had been caused by her being told she was not entitled to it and a conversation late in her time at the section with another who said she was entitled to the allowance.

30     On 6 May 2002 Acting Superintendent Gordon told her to put in a claim for an on-call allowance.

31     The Claimant kept very comprehensive diaries of her movements.

32     Inspector Brown asked her at one stage whether her claim was negotiable.  She was left a copy of some documents that related to her claim that stated there would be other claims and there was no time limit on claims such as this.  The documents included the statement by Brown:

“Sergeant Hill is a very capable and ambitious officer, however, by making this claim she runs the risk of being considered a poor and neglectful manager which could call into question her managerial competence”.

33     I come to the conclusion that that was an outrageous thing to say.

34     I find that the Claimant was told to do the work of dealing with the alarms.  She was told on 27 August 2002 by Inspector Post that she was no longer required to attend the alarms.  She could get a vehicle tasked from the communications section.  She claimed the situation remained the same as before.  This was two weeks before she left the section.

35     She was directed at one point not to attend the sites alone because of safety considerations.  She later lost her police vehicle and reverted to using her own vehicle when she received calls.  This was because of a change in policy relating to the supply of police cars.  Superintendent Coops said that he would look at whether she could be supplied with a vehicle.

36     At one stage she was using her mobile telephone to arrange back up attendance vehicles.

37     In cross-examination she stated that she was the officer in charge of the section from 22 June 1998 to 13 October 2002.  As officer in charge she knew there was no budget for overtime or an on-call allowance.  In fact it was a ridiculously small budget.

38     She admitted that if she was asked to do overtime she was obliged to do reasonable periods unless she had a good reason.

39     She knew that to be on call she had to be available immediately.

40     On 10 February 1999 she was specifically told by her Superintendent to do the work of dealing with the alarms when the police communications contacted her.

41     It is proper to note that when overtime was paid it came from the Superintendent’s general budget. The Superintendent looked after other police responsibilities.

42     On 23 February 1999 she was authorised to use a car supplied by the service.

43     She did not claim overtime for all occasions.

44     She was called in when she was on sick leave.

45     There was no one else to do the work.

46     There was no reference to being on call in any of the wages documents.

47     The car had a fuel card supplied and was serviced by the police service.

48     The vehicle supply system was pretty haphazard.

49     She did not receive the required two call outs in a two-month period as required by the 1996 agreement.

50     She was the one who decided whether to actually attend the sites after being called by police communications.  Sometimes she would merely instruct that a perimeter check to be made by officers from the nearest police station.  Sometimes she would enter the call out in the police occurrence book.  Sometimes an unsworn officer would reset the alarms.  Sometimes she did not attend immediately.  She was never disciplined for not attending immediately, nor was she told she may be disciplined.

51     She was the sole key holder and had to attend on some occasions in that capacity.

52     Sometimes no record was made of an alarm going off.

53     From 14 March 2002 her mobile telephone was secured at the police offices so if she was not at home she was not contactable.

54     During the relevant period she left the Perth area a couple of times and on some occasions arranged for a replacement officer to be available.

55     She said that she never went out much, never drank (or only very rarely) and conceded that she was not told she could not drink.

56     On 29 May 2002 Superintendent Coops stated that he did not support her claim for an on-call allowance.

57     Having heard the Claimant give evidence I find that she was a very dedicated officer who had been given a very big task to bring up to date a very large area of police business that was important and had been neglected in the past.  I find that from time to time her work could be regarded as dangerous because of the nature of the persons whose property was involved.

58     That summarises the Claimant’s case.

59     Counsel for the Respondents gave a brief opening address during which he submitted that being on overtime was different to being on call.  I agree with that proposition.  In the latter case a person who is on call must be capable, ready and able to go back on duty forthwith.  In the case of overtime, that could be refused for good reason, which was given a fairly liberal interpretation.

60     Sometimes the Claimant did not respond forthwith and had the option to get a simple perimeter check.

61     She was never told she was on call.  She took it on herself as a conscientious officer.  She was paid overtime.

62     If she was on call she could not have done much more.

63     The Respondent called three witnesses and a statement from a fourth was tendered as an exhibit.

64     David Eacott told the Court that he was the Acting Manager of the Workplace Relations Branch of the Western Australia Police Service.  He stated that officers must do reasonable overtime but could decline if not reasonably available and someone else would be called.

65     If on call an officer must be available for immediate recall and must be contactable at all times except, no doubt, when he or she is already attending to a call.  An officer may be disciplined if not available.

66     In cross-examination he stated that he could not remember any officer being disciplined for not being available for on-call duties.

67     An officer may be able to do his or her duty without leaving his or her residence.  The Claimant could be on duty when she rings and gets local police to do a perimeter check.

68     Robert Brown stated he was the Operations Manager of the relevant section called PRESS from December 1999 to July 2002.  He said that the Claimant did not have to go to the two sites when the alarms went off.  He allowed the previous arrangement that had been put in place prior to his arrival to continue after he took up his new position.  The Claimant attended the sites on a record of duty overtime basis if asked.  It was not unusual to have to supply home contact details to the police communications branch.  If she was not available to attend then another police officer would do so.  I do not believe that to be the case.

69     The section looks after sensitive material.  If local officers attended then they would only check the perimeter of the premises not the buildings.

70     He said there was no need for someone to attend if the alarm went off as it could be reset next day.  I don’t believe that to be proper in view of the contents of the facilities.

71     The vehicle was made available to the Claimant for commuting reasons.

72     He said that the Claimant had never discussed the on-call allowance with him.  She never complained to him about attending the sites or the interference that was caused to her family life.

73     He said he never placed her on call but she was recallable for overtime duties.

74     In cross-examination he said he had at least weekly meetings with the Claimant but could not recall her mentioning her concerns.

75     He said she did a very good job.

76     I believe the claimant did tell Brown of her concerns about being called out.

77     He said he would have done something if she had said she was concerned for her safety.

78     He said he had been to the Maylands facility but not the Midland site.

79     In relation to Brown’s memo about her future in the police force if she pursued her claim, which was left on her desk, and which was mentioned in the Claimant’s evidence earlier referred to herein, I find that whether her claim was either justified or unjustified the comment quoted above was aimed at having her drop the same.

80     I find that Hill had a justifiable need for a vehicle and that it was proper that she was able to respond in person to the alarms.

81     John Duncan Longdon stated that he was the Acting Superintendent in charge of the Claimant’s section prior to 28 August 2000.

82     He said that the Claimant could have a vehicle if she came within the guidelines.  There was some mention of the fact that she was given a vehicle to take her children to school.  I do not believe she was given a vehicle to take her children to school despite that comment from this witness.  He said she could get overtime that was paid for out of his general budget.

83     He never discussed an on-call allowance and she was never in receipt of one.  He let her continue to use the vehicle.

84     She could attend at the sites relating to the alarm at her discretion.

85     The statement of Superintendent Robert Coops was tendered under section 79C of the Evidence Act 1906 as he was ill and could not be called.  Mr. Momber, for the Claimant, took issue with what the witness said, principally about Superintendent Bowers who was the Claimant’s first real supervisor, and the discussions about on-call allowances.  His statement is to the effect that he did nothing that would suggest to the Claimant that she was on call.

86     I think it is appropriate to summarise the address of both Counsel.

Respondent’s submissions

87     In relation to some of the periods the Commissioner of Police is the employer and for others it is the Minister for Police.  I am informed that nothing turns on that and I agree.

88     The question is; have the Respondents breached the on-call provisions by failing to pay Sergeant Hill an on-call allowance?

89     The standard of proof is that of the balance of probabilities.

90     I do not decide this case on the basis of sympathy for a very dedicated officer.

91     Was she directed to be “on-call”?

92     The meaning of being on call was set out above, so have the conditions relating to overtime.  Being on call and working overtime are very similar, except that there is a conditioned right of refusal in the case of overtime.

93     When the Claimant was discussing the alarm going off with Superintendent Bowers and what was to happen he answered “You’ve got to do it”.  Did that statement put her on call or entitle her to overtime rates?  She was never told she was on call nor was she ever authorised to receive payment for on-call duties.  There was no budget for any on-call payments.  I note there was none for overtime either.

94     The Claimant never claimed on-call rates.  I find she was told early on in her work that she could not make a claim.  There was no question of disciplining her for not being available.  The Respondents’ witness said he had never heard of such disciplinary proceedings.

95     The Claimant did claim some overtime.

96     The Respondents conceded that a duty could be performed at home.

97     The Claimant was able to say, when telephoned, that she would go back to bed and sort the situation out in the morning or she could ring and get a perimeter check carried out. That is not responding to duty.

98     She did not have to attend every time. There was no absolute restriction on her movements and personal life when she was off duty.

99     She kept herself ready at fairly large personal inconvenience.  She was not always contactable.  She did not always carry her mobile telephone.  Providing her with a car did not give her “on-call” status as the policy guidelines were not followed.

100  I come to the conclusion that she satisfied the test laid down as to need in relation to the supply of a vehicle.

101  She did not get two callouts a month for the previous six months as was required by the rules.  The vehicle renewal applications do not mention her being on call.

102  Being on call and being on overtime look similar.

103  In any event there was no direction of any sort prior to 10 February 1999 and on 29 May 2002 she was directed that she was not on call. On 14 March 2002 she stopped taking her mobile telephone with her.

Claimant’s submissions

104  It is submitted by Counsel for the Claimant that the matter is simply a question of fact.

105  The Claimant was the key-holder.  Was she working when she carried out those duties?

106  On-call allowances were introduced as an effective method of paying officers for this sort of work.

107  Mr Momber referred to the second case in his list of authorities, a decision of the Western Australian Industrial Appeal Court, being The Honourable The Minister for Police v Western Australian Police Force Union of Workers (1969-70) 49 WAIG 993 and in particular the reasons of Nevile J.  His Honour said there must be an instruction to an employee by a superior, whom it was his or her duty to obey, that he or she must do certain things and not do others during a certain period.  If that was the case then he or she is on duty.  The Respondents in this case would argue that the Claimant was told not to do things on that test.

108  Burt J, as he then was, in the same case, puts it that if the employee was throughout a period subject to continual command to stay at home and abstain from doing certain things and be ready for work or more extensive work then that was time worked.  Once again the question was abstaining from doing certain things that the respondents do not admit.

109  Does she have to do things or make a decision?  This was answered in the 1969 case (supra) where the test was; are you required to respond or decide outside normal duties?

110  The third authority cited was Hon Minister for Police v Western Australian Police Union of Workers (1981) 61 WAIG 1365, a decision of the Full Bench of the Western Australian Industrial Relations Commission.  There the officer received instructions which she was bound to obey, to go back to work in accordance with a roster when called.  The situation in that case was said to have arisen out of the action or inaction of the employer.  She believed that if recalled to duty she must return, which she said was a result of what she was instructed to do or led to understand.

111  The fourth decision referred to was another decision of the Western Australian Industrial Appeal Court in The Hospital Employees’ Industrial Union of Workers, WA v The Proprietors, Lee-Downs Nursing Home (1977) 57 WAIG 455.  The claim in that matter involved sleeping overnight in a hospital.  The question raised there was if someone required the assistance of the person sleeping was she working normal hours of work. The Court said that she was.

112  The fifth case considered was Macpherson v Metropolitan Board of Water Supply and Sewerage (1922) 21 A.R. 53.  In that case the employee had to stay at home on Saturday afternoons and Sundays to respond to work related telephone calls.  It was decided that the employee was working during that time.

113  So, Mr. Momber submits, work includes standing by, even at home.  He further says that the on-call provisions were introduced to save paying overtime while merely waiting.

114  In the matter of Gill v Commissioner of Health (2003) 83 WAIG 532, a decision of this Industrial Magistrate’s Court, the Claimant, Doctor Gill, was the Director of Disease Control in the Health Department and was told to remain contactable outside of normal working hours and was required to be available and fit for duty. The Industrial Magistrate held that he was on call. The Respondents would say that the present Claimant was not so instructed.

115  It was submitted that the Claimant was working and her superiors knew that. I come to the conclusion that her superiors certainly knew of her situation.

116  Mr Momber then commented on some of the evidence.

117  The Claimant had to see the job done. She got a car and a telephone to do the job of dealing with and attending to after hours incidents.  She was to get no money according to Bowers but she had to do the job.  She did not delegate the duties she had to perform as she could not.

118  Mr Bathurst responded by stating that in the sexual assault referral centre case cited by the Claimant, where the judgement of Curlewis J was quoted, Curlewis J was in the minority.  In saying this he referred to The Honourable Minister for Police v Western Australian Police Union of Workers (1981) 61 WAIG 1365.  He stated that the decision was taken on appeal to the Western Australian Industrial Appeal Court and the decision below was upheld. The report of that case is found at (1981) 61 WAIG 1906.  I have now checked upon the controversy relating to Curlewis J.  The case concerned was not the third case in the Claimant’s list of authorities, but the fifth, McPherson’s case (supra). The citation was (1922) 21 A.R. 53.  It was a case from the New South Wales Court of Industrial Arbitration.  It was a decision given by Curlewis J not a Full Bench.  It dealt with, as Mr Momber said, the water board worker who had to remain at home on Saturday afternoons and Sundays as mentioned above.  The decision was in favour of the employee.

119  Further I have now read the decision referred to as number 3 on the Claimant’s list of authorities and the subsequent appeal found at (1981) 61 WAIG 1365 and (1981) 61 WAIG 1906 respectively.  Both decisions were in favour of the employee.

120  Mr Bathurst submitted that the question is not whether the Claimant was working; the question is whether the agreement has been breached.  Was she on call and not paid?

121  As I have previously stated, the standard of proof is on the balance of probabilities.

122  I wish to mention the authority Crosby v Sandford (1980) 78 LGR 85.  That was an English case that went to the Court of Appeal. The decision was that a police dog handler was “on duty” during rest periods on days and holidays occupied in tending to his dog and that also applied to situations where he delegated that work to his wife.

123  The issue I have to decide is whether, when the Claimant picked up the telephone and it was police communications, she was at work on duty and whether that was also the case when she attended or directed a police car to do a perimeter check of the storage premises. I find that that was the case.

124  I find as a fact that sometimes it would not have been appropriate to merely send a vehicle to do a perimeter check.

125  Is making a decision a duty? I decide yes.

126  I find her superiors put her in a position where she had to attend to the emergency calls from VKI, the police service communications unit, when the security alarm went off at either of the storage facilities.  She was then obliged to go in to attend the premises and the buildings or arrange for the nearest police station to send a vehicle to carry out a perimeter check of the grounds that contained the storage buildings.  There was no one else, in a real sense, or even an unreal sense, to attend to those emergency calls. The applicant was expected to attend.

127  I find she answered those telephone calls and responded to them from the time she commenced as the officer in charge of the section.

128  I find that when she picked up the telephone and answered the calls and attended or arranged for someone to attend, she was working and that she was carrying out her duties.

129  I decide that the Claimant was given a direction to do the work by Superintendent Bowers.  He was an authorised senior officer and her immediate superior. That direction came when he told her, in relation to her response to the calls “You’ve got to do it”.  That direction was given on 10 February 1999.

130  I find that even after the police service car and mobile telephone were taken back from her she continued to respond to calls when she was at home, using her own car.

131  I find that the Respondents have breached the relevant agreements by not paying the Claimant an on-call allowance as required by those agreements.

132  I believe that the outcome of these claims is as simple as this; the Respondents, through their authorised senior officers, put the Claimant in the situation that she was on call but did most things to pretend or suggest that she was not in fact on call, a de-facto on-call.

133  I do not allow those parts of the claims which relate to pre-judgement interest for the reasons set out in the recent decision of the Full Bench of the Western Australian Industrial Relations Commission in Foy v Terraqua (2003) 83 WAIG 3319.  In that matter a decision of mine not to allow pre-judgment interest to be awarded was upheld and the Full Bench makes it clear that this Court has no power to order the payment of interest.

134  In relation to penalty, the maximum as provided under section 83(4) of the Industrial Relations Act 1979, is $2000.00.  I am prepared to hear submissions as to whether a penalty should be imposed, and if so, the quantum.

135  As to the issue of costs, I decide that there should be no order as neither the claim nor its defence was without merit.

136  I intend to issue an order for the payment of the on-call allowance to the Claimant in an amount to be confirmed by the parties following discussion and calculation by the paymaster as envisaged by Mr Momber during the proceedings.

137  Accordingly, to receive advice in that regard for the purposes of my order and to hear the parties in relation to any penalty, the matter is adjourned to a date to be fixed in consultation with the Clerk.

RH Burton

Industrial Magistrate