100422076

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES THE WESTERN AUSTRALIAN POLICE UNION OF WORKERS

CLAIMANT

 -v-

 BARRY MATTHEWS, COMMISSIONER OF POLICE, WESTERN AUSTRALIAN POLICE SERVICE, OFFICE OF THE COMMISSIONER

RESPONDENT

CORAM MAGISTRATE WG TARR IM

DATE  THURSDAY, 1 APRIL 2004

FILE NO M 67 OF 2003

CITATION NO. 2004 WAIRC 11042

_______________________________________________________________________________ 

Representation

Claimant  Ms M Ridley (of Counsel)

Respondent Mr D Matthews (of Counsel) instructed by The Crown Solicitor for the State of Western Australia

_______________________________________________________________________________

Reasons for Decision

1         On 16 April 2003 the Claimant, the Western Australian Police Union of Workers (“the union”) filed a claim in this Court against the Respondent, Barry Matthews, Commissioner of Police pursuant to the provisions of the Industrial Relations Act 1979 (“the Act”) seeking to enforce compliance with an order of the Western Australian Industrial Relations Commission constituted by the Public Service Arbitrator.

2         The claim was made pursuant to the provisions of section 83 of the Act which provides for the enforcement of such orders.

3         Section 83(4) provides that if a contravention or failure to comply is proved, the Court may by order:

(i)   issue a caution; or

(ii)  impose such penalty as the industrial magistrate’s court thinks just but not exceeding $2 000 in the case of an employer, organisation or association and $500 in any other case;

4         Section 83(5) allows the Industrial Magistrate’s Court, in addition to imposing a penalty, to make an order against a person for the purpose of preventing any further contravention or failure to comply with an order.  Such order may be made subject to any terms and conditions the Court thinks appropriate.

5         The order which the Claimant seeks to enforce is an order made by the Public Service Arbitrator (Commissioner PE Scott) on 8 April 2002 (“the order”).  That order, omitting the heading, is set out hereunder:

Order

HAVING heard Mr P Kelly and with him Ms M Fransen on behalf of the applicant and Ms C Allman and with her Mr L Clissa on behalf of the respondent, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders that:

1. The respondent shall forthwith provide Aboriginal aides (Aboriginal Police Liaison Officers) with training in the use of and authority to use, firearms in the same manner and in the same circumstances as applied immediately prior to 1 March 2002.

2. Order 1 shall remain in operation until the range of issues associated with the refocusing of the role of Aboriginal aides is dealt with.  Such issues include: the uniform required to be worn by Aboriginal aides; the directions to officers in charge as to the appropriate deployment of Aboriginal aides; information and/or training for Aboriginal aides aimed at assisting in refocusing their role; assistance given to Aboriginal aides in considering the opportunity for applying to become sworn officers; the special circumstances applying to Aboriginal aides posted to remote Aboriginal communities.

        (see 82 WAIG 610)

6         While there is some dispute between the parties regarding the interpretation of paragraph 1 of the order it is my view that the Public Service Arbitrator required the Respondent to reinstate the situation that applied to Aboriginal Police Liaison Officers (“APLOs”) before the direction of Acting Assistant Commissioner Metropolitan Region DJ Parkinson that “APLOs are not to carry police issue firearms” issued.

7         Paragraph 1 of the order is qualified by paragraph 2 which provides that the order (paragraph 1) “shall remain in operation until the range of issues associated with the refocusing of the role of Aboriginal aides is dealt with.”

8         Paragraph 2 then goes on to define some of those issues in this way:

“Such issues include:

• the uniform required to be worn by Aboriginal aides;
• the directions to officers in charge as to the appropriate deployment of Aboriginal aides;
• information and/or training for Aboriginal aides aimed at assisting in refocusing their role;
• assistance given to Aboriginal aides in considering the opportunity for applying to become sworn officers;
• the special circumstances applying to Aboriginal aides posted to remote Aboriginal communities.”

9         The order was the result of a dispute between the parties being referred for hearing and determination by the Public Service Arbitrator where the union claimed that:

1. on 1 and 4 March 2002 the members of (the union) appointed by the Commissioner of Police under s.38 A of the Police Act 1892 as Aboriginal Aides (“APLOs”) were directed not to carry police issue firearms and that firearm training would cease; and

2. the direction constitutes a major safety issue for APLOs.

as set out in the Public Service Arbitrator’s Reasons for Decision (82 WAIG 605)

10     The union sought an order that the APLOs be provided with the same firearm training and authority to use firearms as mainstream police officers, that is, to maintain the status quo.

11     It was the view of the Respondent, who opposed the order sought:

“that whether or not APLOs carry firearms is a matter to be determined by the Commissioner of Police based on operational requirements and that the operational requirements of APLOs do not require them to carry firearms.”

12     Commissioner Scott, in her reasons, considered the evidence given before her and the history of Aboriginal Aides in the Western Australia Police Service in addition to their role, duties and employment.

13     She acknowledged her appreciation that:

“ … the APLOs would prefer the security of having a police uniform and the ability to carry a firearm, they are not police officers in the general sense and it is within the power of the Commissioner of Police to refocus and redirect their work on the same basis as he has that power in respect to any other officer.  In accordance with the legislation, APLOs are constables, but that status is subject to certain restrictions.  If it is the desire of the Commissioner of Police to utilise particular officers and other resources in a particular way for a purpose which is clearly desirable then the Commissioner of Police ought be able to do so provided that any change is managed in such a way as to ensure that the safety of the affected personnel is not jeopardised and provided that fairness is afforded them.”

     (at page 609 – paragraph 24)

14     She went on to acknowledge that it was:

“ … within the power of the Commissioner of Police to redirect the work of APLOs to ensure that they are not simply used to top up resources in operational work.  The legislation allows the Commissioner of Police the discretion to utilise APLOs as aides to the police service in a liaison officer role, not as second class police officers.”

     (at page 609 – paragraph 25)

15     It appears from the Commissioner’s reasons that one of her main concerns was the way the APLOs were directed not to carry police issue firearms and generally the handling of the change.  In her reasons she said:

“Furthermore, and of real significance, is that the handing of this change in a significant aspect of APLO’s status and security has been far from ideal.  Out of the blue, instruction has been issued that they are not to carry firearms.  Only after the matter was the subject of protest by the APLOs and after a conference before the Arbitrator, were there discussions where the situation was explained and clarified and they were given further instructions as to how to conduct themselves.  It is not surprising in these circumstances that the APLOs have found themselves frustrated and concerned for their safety.  They should never have been placed in a situation where instructions were received in this way without an opportunity for refocusing their role and then, if necessary, given appropriate retraining or assistance.  Further, to simply remove their firearms whilst leaving them in a position where they are identifiable for all intents and purposes as general police officers is most unhelpful.  I note, however, that APLOs still have access to batons and handcuffs, but clearly these do not meet the same purpose as a firearm.”

     (at page 609 – paragraph 23)

16     It was in that context that the Commissioner restored the status quo “to enable (the respondent) to deal with all matters associated with the role and work of APLOs in a properly managed and fair manner”.

17     It was clearly the Commissioner’s intention that the order (paragraph 1) would continue until “the range of issues” were dealt with.

18     The Respondent gave evidence in relation to this claim to the effect that his response to the order, after considering “what the order actually meant” was to comply and he “sent out a direction that we effectively had to continue to provide the training and the firearms to those officers that had already had them”.

19     He went on to explain what was put in place and done to comply with paragraph 2 of the order and the refocusing of the role of APLOs generally.

20     It was the Respondent’s view that the order only applied to those APLOs who had been serving prior to 1 March 2002 and, therefore, APLO graduates since then were considered to be exempt from the order as they had not been exposed to general policing as the others had.  It was the Respondent’s view that they were trained as liaison officers and did not need refocusing.

21     The union argued that the order applied to all APLOs and I believe there is merit in that argument based on the literal wording of paragraph 1.  The order does not discriminate between APLOs and it is the provision “training in the use of and authority to use firearms” that sets out what was required to be provided in the same manner and in the same circumstances as applied immediately prior to 1 March 2002.  This view is supported by Commissioner Scott if she has been correctly quoted in the letter of Lee Clissa dated 23 July 2002 (exhibit C) where it is stated:

“Specifically, Commissioner Scott advised that because the issue of those Aboriginal Police Liaison Officers (APLOs) in training at the time was not specifically raised during the hearing, the order issued in matter PSACR 4 of 2002 did not differentiate between those APLOs who were in training at the time and other existing APLOs.”

22     That letter generally supports the view that the parties at that time were still involved in an industrial dispute.

23     As I understand the evidence it was shortly before Assistant Commissioner Standing’s letter dated 27 February 2003 that the Respondent concluded that the range of issues associated with the refocusing of the role of APLOs had been dealt with.

24     Mr Standing’s letter to Regional Commanders advised them of the Respondent’s view and, while not in as many words, indicated that the order of Commissioner Scott had been complied with and the Respondent’s direction, that as a general rule APLOs should not carry police issue firearms unless a Regional Commander had specifically approved an APLO receiving training and access to firearms, was effective.

25     The Respondent conceded by his memo to Regional Commanders dated 10 April 2003 (exhibit G) that he was aware of incidents where APLOs were, at times, being used on duties outside of their role.  The first two paragraphs of that memo set out his concerns and expectations as follows:

“On 7th April, 2003 the Police Strategic Executive discussed concerns raised over the deployment and use of our Aboriginal Police Liaison Officers (APLOs) performing the important role for which they have been employed.  That role is essentially one of promoting trust and understanding between Police and Aboriginal and Torres Strait Islander Communities and encouraging proactive interventions aimed at crime prevention and/or reduction.

Despite the provision of additional information and training to APLOs aimed specifically at refocusing their role, I continue to hear of and see exceptions to what has been agreed corporately.  The use of APLOs as defacto Constables in mainstream policing activities is clearly contrary to what has been agreed, and on face value could be viewed as evidence of a supervisory deficiency among some of our Station Officers in Charge.  In that light, I ask that each of you take whatever steps are necessary to ensure that APLOs in your respective areas of command are performing their agreed role.”

26     He went on to give Officers in Charge the following warning:

“If I continue to hear of APLOs being used inappropriately, I will look seriously at replacing an OIC who is unwilling to carry out policy and/or the APLO to other stations where they can undertake their correct role.”

27     It is argued by the union that because there were incidents where APLOs were employed outside of their role, and in circumstances where their duties were more appropriately performed by a sworn officer, that the Respondent has not fulfilled his obligation under the order and should, therefore, still be complying with paragraph 1 of the order.

28     Following the order of Commissioner Scott the Respondent issued the following broadcast by e-mail to sworn and unsworn members of the Police Service:

The decision in February this year to reinforce the role of Aboriginal Police Liaison Officers in the Police Service and approve a number of new initiatives to enhance their capacity to integrate into the strategic direction of the agency resulted in a direction that prevented them from wearing police issue firearms.  The Western Australia Police Union contested this decision in the Industrial Relations Commission who, on April 5, delivered a decision that effectively agreed the Commissioner of Police may deploy APLO' in accordance with organisational needs.  However, the decision to remove firearms from them prior to implementing a number of change management strategies was not appropriate.  The IRC Commissioner subsequently ordered the Commissioner of Police to reverse the decision to disarm APLO's made on the 1st of March until such time as the corresponding issues were addressed.  It is acknowledged that APLO's have been used in front line tasking duties mainly related to disputes amongst aboriginal people, but nonetheless in contravention of my instructions.

In compliance with the direction of the IRC, the previous instructions related to the total prohibition of.APLO's wearing firearms are rescinded and will remain so until a number of management issues are addressed.  On Wednesday 24 April, the first school of APLO graduates from the Joondalup Police Academy will be issued with new uniform epaulets and name badges identifying them as Aboriginal Police Liaison Officers and then progressively the new uniform attachments will be issued to their current serving counterparts.  A program facilitating the transition from liaison to mainstream policing has been approved and marketed to all serving APLO's and any of them may take advantage of this commendable strategy.

Within the next two months all serving APLO's will receive an update on the new nationally accredited training course currently being undertaken by all new recruits and this again will reinforce the vital role they play in our community.  In the meantime my orders relating to the role of Aboriginal Police Liaison Officers is to be adhered to unless urgent issues dictate otherwise.  The directions prohibiting the wearing of firearms by APLO's is rescinded, however that is not an open invitation to draw firearms without compliance with existing COPS Manual directions

29     There is no dispute that changes to the APLOs uniform have occurred although the ochre epaulets initially issued were unacceptable and replaced with a blue epaulet lighter than the black worn by sworn officers.  They have been issued with identification badges which indicate that the wearer is an APLO.  It is apparent from the evidence that there are still some concerns about the effect of those changes and no doubt there is, as the Respondent said in evidence, “a mixed range of views particularly amongst the APLOs regarding the extent that they have had an affinity with the uniform and obviously the service”.

30     He went on to say:

“I'm very conscious of course uniforms are symbolic and they have very strong meanings.  I think it would be fair to say that the majority of the liaison officers were concerned about moving into plain clothes.  They identified very strongly with the uniform and were concerned that if there were changes to the uniform that they would not be too great.  So we had to meet the compromise as to how do we make the changes there to recognise that we wanted them to be distinguishable but not to the extent of taking away that pride that they had in the uniform.”

     (Transcript pages 179 and 180)

31     While there is some conflicting evidence between the parties there seems to me that there is little doubt that it was the Respondent’s intention to refocus the role of APLOs and that intention was disseminated through the chain of command well before the order of Commissioner Scott.

32     In the Respondent’s letter dated 15 October 2001 to all District Superintendents he made it clear that the practice of utilising APLOs in operational police duties was to cease and he quoted Order AD 1.2.3.

33     Order AD 1.2.3 stated that:

“Aboriginal Police Liaison Officers shall not be utilised independently for general operations or be assigned general tasking duties that do not relate to the Aboriginal and Torres Strait Islander communities unless exceptional circumstances exist.”

34     It then lists the principal responsibilities of APLOs.

35     Order AD 1.2.3 was also included in a comprehensive document titled Aboriginal Police Liaison Officer Transitional Proposal dated December 2001.  That proposal was, as I understand, sent to all APLOs by Inspector Gibson with a covering letter dated 3 April 2002.

36     It appears to me that there was a concerted effort by the Respondent and his senior officers before and after Commissioner Scott’s order to bring about the changes in the use of APLOs within the Police Service that the Respondent required.  In May, June and October 2002 the Aboriginal Affairs Directorate of the Police Service conducted APLO conferences.  The Respondent attended and took part in each of those conferences.

37     It is also apparent that when the union commenced these proceedings its officers must have been aware of that concerted effort.

38     I have no doubt that those APLOs who were pursuing the issues before Commissioner Scott and the enforcement of the order were well aware of the Respondent’s orders and directions and the role he expected of them.  It is also my view that those orders and directions must have been known to every officer, sergeant and police constable in the Police Service.

39     It became clear to me during the hearing of this matter that there were some APLOs who were resistant to the changes in their role and duties.  They want to continue to perform general police duties and carry firearms.

40     It was also clear from the evidence that there may still be occasions where some Officers in Charge allow APLOs to be placed in a situation where their duties could include those of a sworn officer.

41     I expressed the view when this matter first came before me that it appeared to me that there could still be industrial issues between the parties concerning the employment of APLOs and that the order of Commissioner Scott was made as an interim order.  An order made pending the outcome of further action.  I was made aware that there was a dispute in relation to the intention of Commissioner Scott in paragraph 1 of her order.  It was my view, notwithstanding the appearance of the parties before and the order made by Senior Commissioner Beech and the further approach to Commissioner Scott, that the parties should have returned to the Public Service Arbitrator for clarification of the order as provided for in section 46 of the Act.

42     My view was that there remained an industrial dispute which I believed would not be resolved necessarily by an enforcement action but required further consideration by the Public Service Arbitrator.

43     The Claimant chose to continue with this enforcement action.

44     I have stated that Commissioner Scott’s order could not have been a final order but was to be in place until the issues contained in paragraph 2 had been dealt with.  Whether or not those issues have been dealt with can not be agreed between the parties and I have been asked to make a definitive finding either way.

45     It could not have been the intention of the Commissioner that the order continue indefinitely or until it could be shown that every APLO in every police station throughout the State of Western Australia was strictly performing their role and duties as required.  Her main concern when she made the order was that the Respondent’s instruction that APLOs not carry firearms was “out of the blue”.

46     She did acknowledge that while she appreciated “APLOs would prefer the security of having a police uniform and the ability to carry a firearm, they are not police officers in the general sense and it is within the power of the Commissioner of Police to refocus and redirect their work”.

47     In its Statement of Claim the Claimant alleges that the Respondent has not significantly changed the uniforms required to be worn by Aboriginal aides whereas, in fact, there have been changes and, as I have cited herein, those changes were an accepted compromise having taken into account that the APLOs did not want significant change.

48     I have mentioned that the Respondent’s intentions regarding the refocusing of the role of APLOs has been widely distributed and I believe would have been well known before the Commissioner’s order made on 8 April 2002 and has been reinforced since then.

49     While the Statement of Claim alleges that the Respondent has not “Ensured that directions issued to officers in charge of Aboriginal Aides as to the appropriate deployment of Aboriginal Aides are being complied with”, the order of Commissioner Scott does not mention compliance although it would be a nonsense if that was not the expectation.  The Respondent, however, has maintained his position in relation to the role and duties of APLOs and reinforced his direction in his broadcast e-mail dated 11 April 2002 notwithstanding his acceptance of the order of Commissioner Scott and the resulting rescinding of his direction in relation to the carrying of police firearms.  As I have found it is not credible to suggest that there could have been any member of the Police Service, sworn or unsworn, who was not aware of the Respondent’s directions and requirements in relation to the role, duties and general employment of APLOs.

50     It follows, therefore, in my view that the APLOs had been provided with information aimed at assisting in refocusing their role and the majority attended conferences which added to that information.  Those conferences provided information about the requirements of the transition process from APLO to mainstream policing.  The evidence before me is that some APLOs received minimal assistance to attend transitional classes to upgrade their skills to a standard which would have given them a chance of entering the mainstream policing course.  However, the assistance in this regard is not quantified in the order and, as I understand the evidence, APLOs were expected to compete for places in the course on the same basis as all applicants and received no special dispensation because of their experience as an APLO.  I can not conclude on the evidence that the Respondent did not comply with that requirement.

51     In relation to the union’s claim that the Respondent did not comply with the order in regards to those APLOs who graduated after 1 March 2002 it is argued by the Respondent that the order did not apply to them.  The Respondent and the union were at odds on that interpretation, as I have already mentioned, and although Commissioner Scott may have attempted to clarify what was meant by the order, I am not satisfied that the Respondent’s approach regarding those APLOs was wrong.  It was clearly contemplated by Commissioner Scott that it was unfair on those APLOs who had been employed in the past on operational duties and, who claimed not to have been refocussed, to be subject to the direction regarding the carrying of firearms.  It was not so with the new APLOs who had not carried firearms and whose training was specifically focussed on their role as APLOs and the duties the Respondent was expecting all existing APLOs, in time, to perform.  With the knowledge that it was his intention that APLOs would not be trained to carry and use firearms as soon as paragraph 2 of the order was substantially complied with and, the existing APLOs were as focussed as those who recently graduated, he could be forgiven for assuming that the order did not apply to them.

52     For the reasons I have given I find that the Respondent accepted the decision and order of the Public Service Arbitrator and did what he thought appropriate to comply with and satisfy the issues in paragraph 2 of the order during 2002.  I also find that there was resistance to the refocusing of the role by some APLOs and a desire by them to continue with police operational duties and to continue to carry firearms.  That resistance and their non-acceptance of their new role have made the Respondent’s task of refocusing the role of APLOs more difficult.

53     I maintain the view that if there are still any issues in relation to the employment of APLOs that they should be taken back to the Public Service Arbitrator if they can not be resolved.  However, I believe it would be in the interests of the APLOs if they were encouraged to accept that they are not sworn officers of the Police Service and have been employed to generally perform liaison duties where aboriginal or Torres Strait Islander members of the community are involved.  The Commissioner of Police, as head of the Police Service, has the authority to decide whether or not it is appropriate for APLOs to carry firearms and he has decided for many reasons that they should not be armed.

54     I am not satisfied that I have been convinced on the balance of probabilities that the Respondent has contravened or failed to comply with the order and the claim is, therefore, dismissed.

WG Tarr

Industrial Magistrate