WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CHRISTOPHER LANGDON HOATH

APPELLANT

-and-

MINISTER FOR POLICE AND THE COMMISSIONER OF POLICE, WESTERN AUSTRALIAN POLICE SERVICE

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  COMMISSIONER S J KENNER

  COMMISSIONER S WOOD

DATE FRIDAY, 1 APRIL 2005

FILE NO. FBA 48 OF 2004

CITATION NO. 2005 WAIRC 00848

CatchWords Industrial Law (WA) - Appeal against the decision of the Industrial Magistrate - denial of contractual benefits - on-call allowance - overtime - express or implied direction - 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 - Industrial Relations Act 1979 (as amended), s84.

Decision Appeal dismissed.

Appearances 

Appellant Ms L Roche (of Counsel), by leave, and with her, Mr R G Houghton

Respondent Mr R Bathurst (of Counsel), by leave

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1          These are the unanimous reasons for decision of the Full Bench.

2         This is an appeal brought pursuant to s84 of the  Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”) against the decision of an Industrial Magistrate given on 27 October 2004 in matter Nos M 59, M 60 and M 61 of 2004.  By that decision contained in orders made by His Worship on 28 October 2004, and, in fact, made in matter Nos M 59, M 60 and M 61 of 2004, the abovementioned claims were dismissed.

GROUNDS OF APPEAL

3         It is against those decisions that the appellant, Sergeant Christopher Langdon Hoath, now appeals.  He appeals on the following grounds, which we reproduce in some detail because the grounds deal with matters of fact in some detail (see pages 3-11 of the appeal book (hereinafter referred to as “AB”)):-

“1. The Learned Magistrate erred in fact and law in finding that the Appellant was not on-call, such a finding being against the evidence and the weight of the evidence.

Particulars

(a) A police officer is “on-call” within the meaning of the relevant industrial agreements if “rostered, or directed by a duly authorised senior officer, to be available to respond forthwith for duty outside of the employee’s ordinary working hours or shift.” (See Enterprise Agreements for police Act Employees No. AG 274 of 1996; No. AG 129 of 1998: identical clause in both Agreements)  If placed on-call, a police officer must remain contactable and return to duty forthwith when called.

(b) A police officer can also be recalled to work reasonable overtime under the overtime provisions of the relevant industrial agreements.  If recalled for overtime, a police officer is expected to attend unless there is a good reason not to, but will not be subjected to disciplinary action if he fails to do so.

(c) Being recalled to duty when on-call and being recalled to work outside his or her rostered hours of duty are different scenarios in the extreme. A police officer who declines to return to work when on-call opens him/herself to the possibility of facing disciplinary action pursuant to section 23 of the Police Act 1892. (Conceded in evidence by Superintendent Napier, who gave evidence for the Respondent).  The general rules relating to discipline in the Police Force Regulations 1979 are made under sections 9 and 23 of the Police Act 1892, the sanctions for breach of the provisions varying from that of reprimand to dismissal.

(d) The position description applying to the Appellant whilst based as the sole Forensic Officer in the Peel District provided that he may be required to work outside of his normal hours for operational reasons or contingencies.  The Appellant was obliged to work reasonable overtime under the relevant industrial agreements and be on-call if so directed.

(e) The Appellant was required to obey his supervisors’ orders in accordance with Regulation 603 of the General Rules Relating to Discipline of the Police Force Regulations 1979.

(f) The Appellant gave evidence that it was crucial that he, as the sole highly trained scenes of crime officer in the Peel District, would gather evidence from serious scenes of crime, as where a less experienced officer performed the task there could be instances of contamination of evidence, owing to the lack of expertise on the part of the investigating officers.  Superintendents Watson and Napier, who gave evidence for the Respondent, endorsed the Appellant’s evidence that he was the sole highly trained scenes of crime officer in the Peel District.

(g) The Appellant gave evidence that when he applied for the position of Peel SOCO, Chief Superintendent Neville (supervisor of country SOCOs):  reiterated quite clearly what my responsibilities were and that, because I was an individual officer, the only officer in the - - within that district, single person station, I was going to be officer-in-charge of the district and I was responsible for all the forensic services to be supplied to that area.  And in that, that would have required me to remain contactable, so much so that - - that I even made sure that my residence was in the district.  In fact, I wouldn’t have been considered for the position had I not been living in the district (transcript of proceedings, page 29).

(h) Detective Senior Sergeant Beaman, the Appellant’s supervisor, conceded in evidence that he never had any reason to complain about the Appellant’s unavailability after hours, acknowledging that there would be a deficit in forensic expertise if the Appellant were unavailable because other individuals performing forensic tasks were trained only to a very basic level.

(i) The Learned Magistrate erred in finding that the Appellant was not carrying out on-call duties, given the Appellant’s predecessor Snr Constable Walker’s evidence that, upon his commencement in the position he was advised by forensic division ex Chief Superintendent John Horton at that time, that being the sole forensic officer in the district he would be required to remain contactable and available to return to duty forthwith at all times outside his ordinary rostered hours of duty to attend crime scenes requiring forensic investigation, and that his application to be able to commute from his premises in Kardinya was rejected, in conjunction with his being told by Mr Horton that he had to live in the Mandurah district to be able to carry out after-hours duty.

(j) Snr Constable Walker further gave evidence that he remained in the Mandurah SOCO position until April 1994 and handed over the Mandurah SOCO role to the Appellant, informing him that it was a requirement of the position and an expectation of district management that he hold himself contactable and available to return to duty forthwith to conduct forensic duties at crime scenes or provide forensic advice over the phone at any time outside his ordinary rostered hours of duty. He added that, based on his experiences, he told the Appellant that recalls to attend scenes and/or provide forensic advice outside ordinary rostered hours of duty had been a regular occurrence during his time in this position and it was likely that it would remain the same for the Appellant.  He emphasised to the Appellant the importance of his availability for these duties as he would be the only forensic officer in the district and therefore responsible for any forensic matters that occurred therein. He also shared his understanding from district management that a lack of the availability to do these duties would not be well received.

(k) Snr Constable Walker remained firm in his evidence under cross examination by Counsel for the Respondent that he would likely have used the word “forthwith” in advising the Appellant on arrival at Peel of his obligation to remain available and contactable to return to duty to perform forensic duties, adding that, given the context of their duties, the word “forthwith” would have been used by he and his colleagues with frequency.

(l) Constable Walker gave unequivocal evidence in respect of who had advised him of the direction re after hours’ availability to be provided to the Appellant on his inception in the position:  That’s a direction given to me when I - - when I took up that position and during visits and conversations with Mr Neville and Mr Horton over a period of 5 years it was reinforced to me over a number of times and I reinforced those instructions to Mr Hoath as he took over that position (transcript of proceedings, page 26).

(m) Snr Constable Walker gave unequivocal evidence that subsequent to the Appellant taking over the SOCO position at Peel, he was called upon to attend Peel on a relief basis and: it was an unwritten law, if you’d like to say, that forensic persons in the metro and country positions with a vehicle, with a mobile phone or with a pager were expected to be on-call.  Mr Hoath didn’t have to tell me about that.  I took over the vehicle, the pager and my own gear, his vehicle, his forensic office, his position and I carried on the same as had been done previously.  Nobody had told me anything different, and he confirmed that the initial direction he was given when at Mandurah was never revoked or rescinded (transcript of proceedings, page 26).

(n) The Learned Magistrate erred in finding that the Appellant was not carrying out on-call duties, given ex Chief Superintendent Horton’s evidence in respect of country scenes of crime officers that:  it was probably not - - not a good way to do things.  We expected these people to be available all the time but they certainly weren’t compensated and they certainly had - - and it - - I must say that it was always a battle to get funding for overtime for on-call and - - and that sort of thing.  It was a - - always a battle (transcript of proceedings, page 20) in conjunction with the fact that the order given by ex Chief Superintendent Horton to the Appellant’s predecessor, Detective Senior Constable Walker, in respect of after hours’ availability requirements was repeated to the Appellant when he took up the position at Peel.

(o) The Learned Magistrate erred in finding that the Appellant was not carrying out on call duties, given ex Chief Superintendent Horton’s rejection of Counsel for the Respondent’s suggestion that if country scenes of crime officers did not attend after hours they would not be disciplined:  It was certainly disciplined if - - if - - if it was clear that the - - the incumbent was deliberately avoiding weekend work, or - - or something like that, that he would have been spoken to about it and said, you know, “Look, we need you to attend to these scenes and - - and you’ve got to be available.” (transcript of proceedings, page 20).

(p) The Learned Magistrate erred in finding that the Appellant was not carrying out on call duties, given ex Chief Superintendent Horton’s evidence that where a country scenes of crime officer declined to attend to after hours’ duties it would become a matter of official discipline:  to the point of perhaps finding someone that was prepared to do it (transcript of proceedings, page 21).

(q) The Learned Magistrate erred at page 10 of his reasons for decision in finding that it could not have been the intention of the parties to the agreements that an officer could be placed on call indefinitely in light of the fact that the pertinent on-call clauses of the EBAs are silent on this issue, in conjunction with the Appellant’s evidence that he was placed in what amounted to a de-facto on-call situation for the entire duration of his tenure at Peel.

(r) The Learned Magistrate erred at page 10 of his reasons for decision in finding that:  To suggest that any such direction could continue to be valid long after the authorised officer had retired and, further, continued without the knowledge of those in authority in relation to an officer is without merit, particularly when there is a corresponding obligation on the officer, involving the likelihood of disciplinary action, should he not remain continuously contactable.  No such suggestion was made on the Appellant’s part. What was elicited in evidence was that the Appellant’s successive supervisors had knowledge of his after hours’ call outs for the period of the claim (indeed for the seven years of his tenure) and acquiesced in his performing the duties without paying him his lawful entitlement under the EBA on-call provisions.

(s) The Learned Magistrate erred at pages 9 and 10 of his reasons for decision in finding that the Appellant was not directed by ex Chief Superintendent Neville to be available to respond forthwith for duty outside of his ordinary working hours, in light of Mr. Neville’s evidence that he was aware that there was no on-call allowance payable in the circumstances that the Appellant was in because the hierarchy of the Police Department wouldn’t accept the fact that it was a necessary expenditure... (for budgetary reasons) in light of the fact that it is not open to the Respondent to contract out of the on-call provision of the agreement for budgetary reasons, given section 114 of the Industrial Relations Act 1979.

(t) The Learned Magistrate erred in finding at pages 9 and 10 of his reasons for decision that the Appellant was not directed by ex Chief Superintendent Neville to be available to respond forthwith for duty outside of his ordinary working hours nor that he was directed to remain contactable by telephone or paging system for an identifiable situation as envisaged by the on-call clauses, in light of the Appellant’s evidence that he was provided with a pager for precisely that purpose, and Mr. Neville’s evidence that he informed the Appellant that he would not get the position if he did not remain available and contactable after hours, in conjunction with ex Chief Superintendent Neville’s evidence that the threat of transfer was wielded against country scenes of crime officers to induce them to attend to after hours’ forensic duties, albeit the Respondent’s refusal to pay them the on-call allowance that was their entitlement under the EBA provision.

(u) The Learned Magistrate erred in finding that the Appellant was not on call, given ex Chief Superintendent Neville’s evidence that the Appellant was provided with a pager to ensure his remaining contactable by the Respondent at all times, particularly if he was away from his home.

(v) The Learned Magistrate erred in finding that the Appellant was not on call, given ex Chief Superintendent Neville remaining adamant under cross examination by Counsel for the Respondent that the order given to the Appellant in respect to his need to be available and contactable endured until revoked, and the ex Chief Superintendent’s evidence in re-examination that he never revoked or rescinded the order prior to his retirement.

(w) The Appellant gave evidence that he was provided with a fully equipped forensic vehicle, which he was allowed to take home at night time in order that he could attend to after hours’ call outs.  Detective Senior Sergeant Beaman conceded in evidence that the Appellant was allowed to take the work vehicle home in order that he could attend to after hours’ requirements.

(x) The Appellant gave evidence that he was provided with a pager at the inception of his tenure at Peel to facilitate his being contacted after hours.  He further attested that owing to the limited functioning of the pager, he later used his mobile telephone to facilitate after hours’ contact, with the mobile number being listed at every police station in the district indicating it could be used for after hours’ contact with the Appellant.  Superintendent Napier, in his evidence for the Respondent conceded that he could not refute the Appellant’s evidence as to his mobile number being listed at every police station in the district as an after hours’ resource.

(y) The Appellant gave evidence that the level of intrusion into his social and family life in respect of his performing on-call duties was such that local detectives would even call to his home unannounced and would track him down at his karate club to seek his forensic expertise after hours.

(z)          The Appellant gave the following evidence in respect of the onerousness of the requirements upon him in respect of after hours and weekend call outs to attend to forensic matters at crime scenes:  I’d be at home sleeping, more often than not, and get a phone call.  So more often than not it would be just being woken up at 2 or 3 o’clock in the morning.  Even at social engagements, I can remember even important social engagements like birthdays and Christmases - one Christmas in particular I spent all day at a crime scene (transcript of proceedings, page 33)  In light of the foregoing, and considering Superintendent Watson’s concession in evidence that he could not recall one specific incident when the Appellant was unavailable for duty after hours, the Learned Magistrate’s finding (at page 7 of his reasons for decision) that: While the Claimant made himself available to fulfil his role as a scenes of crime officer he did, as would be expected, engage in activities which would result in him not being available to the on-call standard.  He gave evidence of his involvement with karate and hockey.  He is married with two children and would have the normal commitments which accompany that status, is patently inconsistent with the evidence adduced, thus constitutes an error.

(aa)      Superintendent Watson conceded in evidence that the Appellant was performing the same quasi on-call after hours’ duties as other officers in the South West, on whose behalf the Superintendent had forwarded a written proposal (entered into evidence as Exhibit J) to the WA Police Service that their performance of the on-call duties be recognised and they be paid an on-call allowance as per their entitlement under the EBA on-call provision.

(bb)     The Learned Magistrate erred in law (at page 8 of his reasons for decision) in appearing to add a third limb to the requirements to be satisfied in respect of an officer being on call for purposes of the EBA provision, when he attempted to import a requirement for regularity of call outs to qualify an officer for payment of the on-call allowance, where none exists and, in so doing, exceeded his Judicial function.

(cc)      The Learned Magistrate erred at page 7 of his reasons for decision in placing undue emphasis on the rhetoric of Superintendent Napier (an evasive and garrulous witness, as can be evidenced by a perusal of transcript of proceedings pages 133-135, 137) who suggested that he would not place an officer on-call on a long term basis:  Because of my requirement for people to be available 24/7 that would be just a fairly Draconian imposition on a person’s personal life.  They need to live, they need to have a family life and they need to do other things than policing.   They need some relaxation and rest as well... In fact, I would say it would be contrary to good occupational safety and health, given that under cross examination it was patently evident that the Superintendent demonstrated a paucity of awareness of the level of intrusion in the Appellant’s social and family life caused by after hours’ call outs and his conceding that he could not recall ever informing the Appellant there was no obligation upon him to attend after hours’ call outs.

(dd)     The Learned Magistrate erred at page 8 of his reasons for decision in finding that a suggestion was made on the claimant’s part that: an officer could legitimately be on call and entitled to an on-call allowance without the knowledge of anyone in authority in the Police Service.  No such suggestion was made on the Appellant’s part.  What was elicited in evidence was that the Appellant’s successive supervisors had knowledge of his after hours’ call outs and acquiesced in his performing same, without paying him his lawful entitlement under the EBA on-call provisions.

(ee)      The Learned Magistrate erred at page 9 of his reasons for decision in finding that the Claimant made himself generally available to provide forensic support to his colleagues within his district and the service he provided was above and beyond that which was compensated for financially although each time he was paid overtime, adding that he: would be surprised if there were not many officers in the police service who out of dedication to duty provided policing on the cheap because of government budgetary constraints, in light of the fact that it is not open to the Respondent to contract out of the on-call provision of the agreement for budgetary reasons, given section 114 of the Industrial Relations Act 1979. 

(ff)        In the evidence given by the Superintendents for the Respondent there was more evidence as to there not being monies in the budget than there was on the assertion that the Appellant was not entitled to the on-call allowance.  Given section 114 of the Industrial Relations Act 1979, the Minister for Police and Commissioner of Police may not contract out of the on-call provision of the agreement for budgetary reasons.

(gg) In light of the foregoing, it was reasonable for the Appellant to believe he was required to be on-call and attend call outs as part of his duties and was authorised, that is, had been directed to do so.

2. The Learned Magistrate erred in law and fact in finding that the Appellant was not duly authorised to be on-call within the terms of the enterprise bargaining agreement on the basis that, had ex Chief Superintendent Neville directed the Appellant to remain available and contactable for after hours’ return to duty, the direction would not have continued to be valid after he had retired.

Particulars

(a) Successive District Superintendents, by their conduct over the years spanning the Appellant’s claim, acquiesced in his being on-call as they did not discourage the Appellant in his reasonable belief that ex Chief Superintendent Neville’s directive in terms of after hours’ attendance requirements had not been revoked or rescinded.

(b) No District Superintendent ever directed him not to attend call outs.  Both Superintendents conceded in evidence that, on appointment to their respective positions, they never ascertained the directions to which the Appellant had been subject in terms of after hours’ requirements by their predecessors.  Thus, by adopting a laissez -faire management style, they were not in a position to, nor did they ever, disabuse the Appellant of his reasonable belief that he was obliged to attend to after hours’ call outs, on peril of being subjected to a disciplinary charge if he declined to attend.

(c) Detective Senior Sergeant Beaman, the Appellant’s supervisor, conceded in evidence that upon his arrival at Peel, he never satisfied himself as to whether the Appellant had been subject to any previous directions to hold himself contactable and available for after hours’ return to duty, thus never disabused the Appellant of his reasonable belief that ex Chief Superintendent Neville’s direction remained in effect.

ORDERS SOUGHT

1. The Appellants seek an order that the decision of the Learned Magistrate be quashed.

2. The Appellants seek an order that the on-call  payments claimed by the Appellant in claims M59 & M60 of 2004 be paid, in conjunction with penalty payments and pre-judgment interest.”

BACKGROUND

4         Claims were made to the Industrial Magistrate’s Court at Perth numbered M 59, M 60 and M 61 of 2004 (see copies of the claims at pages 12-24 (AB)).  The three claims are claims for payments of on-call allowances in the amounts of $20,838.26, $37,018.82 and $14,463.96 respectively.

5         The amounts are claimed under the Western Australian Police Service Enterprise Agreement for Police Act Employees No AG 274 of 1996, clause 16, which applies to claim No M 59 of 2004, and the enterprise agreement which replaced it No AG 129 of 1998, clause 19, which applies to the other claims.

6         At all material times, the claimant (the appellant in this appeal), Christopher Langdon Hoath, was a Senior Constable in the Western Australian Police Force, having been appointed under s7 of the Police Act 1892.

7         He was first of all employed by the Minister for Police and later by the Commissioner of Police, the above-named respondents.

8         Evidence was given at first instance by the appellant and on his behalf by Mr Winston Thomas Neville, Senior Constable Gregory Russell Walker and Mr John Harry Horton.  Mr Neville, who retired in 1995 from the Western Australian Police Force, was the officer in charge of the forensic division prior to that.  Before him, Superintendent Horton was the officer in charge of that division.  Senior Constable Walker was the predecessor to Sergeant Hoath.

9         Evidence was given on behalf of the respondents by Superintendent John Patrick Watson, Superintendent Ross MacKenzie Napier and Senior Sergeant Jeffrey Allen Beaman, as well as Mr David Eacott, Acting Managing of Workplace Relations for the Western Australian Police Force.  Superintendent Watson and Superintendent Napier are serving officers.  Superintendent Watson was the officer in charge of the police district which included Mandurah during part of the period of Sergeant Hoath’s claim, and Superintendent Napier was the district officer for the remaining period.

The Beginning – Superintendent Neville’s Direction

10      Sergeant Hoath was employed in the forensic division of the Western Australian Police Service in 1988 and is currently employed there with the rank of Sergeant.

11      He was at all material times married with two children.

12      In 1994 he applied for and was appointed to the position of the Mandurah scenes of crime officer (hereinafter referred to as “SOCO”), commencing duties on 18 April 1994.  Like Senior Constable Walker, he was the only specialised forensic officer stationed at Mandurah and his area of responsibility varied somewhat during his time there but generally covered what is now the Peel District.  During the period he was ultimately responsible to the superintendent of the forensic branch then, following the implementation of the Delta Program, to the South West District superintendent and later to the Peel District superintendent.

13      Sergeant Hoath’s claim was that he was entitled to be paid an on-call allowance for the period of the claims because he was required to be available after hours seven days a week, 24 hours a day, to be called out to a crime scene for forensic purposes and he made himself available for that purpose.  He was issued with a police vehicle and a pager.

14      Based on Mr Neville’s directions and requirements to him in 1994, Sergeant Hoath claimed that he was entitled to an on-call allowance and that formed the basis of his allegation that the respondents were in breach of the conditions of the subject industrial agreements in that respect.

15      Sergeant Hoath is a qualified forensic investigation technician or officer, also called a forensic investigator or a SOCO, who, at the time of the hearing at first instance was employed in the Police Forensic Division in Perth in the State of Western Australia.  He is married with two children.  He commenced work as a SOCO at the Mandurah Police Station in 1994, which was then in the Bunbury Police District.  He had moved to live in Mandurah in 1993.  At all material times, until 1996, he was under the command of the officer in charge of the Forensic Division of the Western Australian Police Force.  That was, of course, Mr Neville.

16      The evidence of Mr Neville and that of Sergeant Hoath about the direction given by Mr Neville to Sergeant Hoath was clear.  It was that, as a SOCO, Sergeant Hoath should live in the district where he was stationed and that he was required to be available to attend his duties at all times out of normal working hours.  That is, he was to be available and contactable.  Mr Neville also told him clearly that he would not be paid, because the police hierarchy did not agree to this being a matter which should be paid out of budget.  Mr Horton gave a similar direction to Sergeant Hoath’s predecessor, Senior Constable Walker.

17      Amongst other things, the direction was described by Mr Horton as follows (see page 119 (AB)):-

“And you spoke to -- to Greg Walker before he -- he went down to --? --- Yes.

 -- to take up his post in Mandurah.  And your expectation of him was that he’d be available to respond to jobs outside of his normal hours of duty if he was available? --- Yes.”

 He went on to add that he would not expect Senior Constable Walker to come in on duty if he had been drinking because he would not wish him to break the law by driving.  He did admit that, infrequently, relief would be sought from Perth.  He made in clear that, if officers declined to make themselves available after hours or if they simply showed a tendency to make themselves unavailable, then “they wouldn’t have stayed there very long”.  However, Mr Horton retired in 1993.  He does not and did not know Sergeant Hoath, although he recalled him, and knew nothing of what occurred during Sergeant Hoath’s time in Mandurah. 

18      Senior Constable Walker was Sergeant Hoath’s predecessor as SOCO at Mandurah.  He gave evidence of what he told Sergeant Hoath about the requirements to be available and contactable forthwith, and at all times, and that that was management’s expectations.  However, that is not evidence of whether Sergeant Hoath was placed on-call by Superintendent Watson or Superintendent Napier during the periods to which the claims relate.  That evidence is of little value.

19      SOCO’s collect evidence at scenes of crime, secure it and, to some extent, analyse it and give evidence about this in the courts.  At all times, Sergeant Hoath was the only SOCO working in the district of which Mandurah was a part, and he covered the whole Peel District.  SOCO’s are, as the evidence revealed, important and valuable officers and their services are greatly in demand.  It is also quite obvious that, particularly in relation to major crimes, such as murder, rape and others, their services are necessary and are often required out of hours.  Crime does not work from 9.00 am to 5.00 pm.

20      As we understand it, Sergeant Hoath, who was then a Senior Constable and remained one whilst he was at Mandurah, was posted there as part of a scheme of appointing SOCO’s to country centres in this State.  In 1996, a plan called the “Delta Plan” came into operation.  This was a radical change in the management and/or administration of the Police Force.  This meant that the officer in charge of every police district, a Superintendent, became the sole authority and manager in his/her district, responsible for budget management, all personnel and all police operations and matters within the district, subject however to the Commissioner’s direction, given directly to an officer or through other senior officers.

21      Sergeant Hoath’s evidence was that he followed the direction of Mr Neville at all times and particularly during the period, the subject of these claims.  However, the evidence is quite clear that the two Superintendents who were the officers in charge of the Bunbury or Peel districts, in which Mandurah was situate during Sergeant Hoath’s service there, were the ultimate authority in the districts at all material times.  Further, it was they and only they, as district officers, who were delegated on behalf of the Commissioner to decide whether to place officers on-call or not pursuant to the enterprise bargaining agreements (hereinafter referred to as “EBAs”).  No other officer had power to do it except an officer acting as Superintendent whilst either of the Superintendents was absent on leave or for some other reason.  That fact was not in dispute.

22      There was no roster of any description in place requiring Sergeant Hoath to be on-call.  There was evidence from Mr Neville, Mr Horton and Superintendent Watson of a requirement that SOCO’s, or some of them, be on-call at all times, but this arrangement did not mean that they would be paid in accordance with the EBA, or at all.  We do not think that Superintendent Watson’s evidence was the same as that of the other two officers and it is clear from a memorandum of his, to which we will refer hereinafter, that his reference to quasi on-call arrangements meant precisely that, namely that they were not on-call arrangements requiring persons to be available and contactable at all times, within the meaning of the EBAs, but quasi arrangements.

23      According to Superintendent Watson who insisted that his remarks were directed at Bunbury and at officers in SOCO and detectives in Bunbury, this regimen for SOCO’s was supported by threats of transfer if they did not comply with it.  It is of course quite clear that, at all material times, Sergeant Hoath was provided with a police vehicle which he kept secure at his home.  This vehicle carried his substantial equipment and enabled him to answer calls out of hours more readily and more conveniently, if he kept it at home.  In particular, of course, he would not be required to keep it in an insecure place such as the police yard or to be loading and unloading it continually.

Pager, Telephone, Car

24      Sergeant Hoath was also provided from the beginning with a pager and then his own mobile telephone which was clearly for ease of contact with him during hours and after hours and for ease of contact by him with others, it is fair to say.  Mobile telephones were also provided to other officers as a more secure means of communication.  There is no doubt on the evidence that Sergeant Hoath received and answered some calls out of hours and in the early hours of the morning as well.  Further, he was telephoned out of hours for advice and detectives visited his home for advice in relation to matters within his expertise.  At no time did anyone rescind Mr Neville’s order or direction to Sergeant Hoath, but that was clearly explained by Superintendent Watson and Superintendent Napier on the basis that they did not know of it and therefore could not rescind what they did not know about.  There is certainly no evidence that Sergeant Hoath or anyone else told them about Mr Neville’s direction or that Sergeant Hoath told anyone else for the purpose of this fact being communicated to Superintendent Watson or Napier.  There is no evidence, for example, that he mentioned the existence of this direction to Detective Sergeant Beaman, his immediate supervisor.  We should add that there was no evidence that Mr Neville’s direction was in writing; not that that affected its validity.

Delta

25      In 2000, there was a reorganisation of districts, but the two affected districts still remained large.  One was the South West District with its headquarters in Bunbury with Superintendent Watson as the district Superintendent, and the other was the Peel District, of which Mandurah became part, with the headquarters at Mandurah with Superintendent Napier as district Superintendent.

26      At all material times, Sergeant Hoath covered the whole of the Peel District.  In 1998, a new crime management unit was set up at Mandurah Police Station to deal with matters throughout the whole district.  Detective Sergeant Beaman, who was in charge of the Mandurah detectives, was put in charge as the manager of the crime unit which included all of the detectives, some uniformed officers and Sergeant Hoath as the SOCO.

27      As part of this reorganisation, so that costs could be controlled, officers were directed not to ring Sergeant Hoath direct.  They had to ring Detective Sergeant Beaman or even Superintendent Watson who would decide whether Sergeant Hoath, as the forensic officer, should be called out.  That is, there was a screening process.  Sergeant Hoath certainly did not have to answer every call therefore.

The Call-Out in Practice – No Direction or Roster - Availability

28      It is necessary to examine, on the evidence, what actually happened as far as Sergeant Hoath’s discharge of his duties during the relevant periods was concerned.

29      There is no doubt that Sergeant Hoath was available to answer recalls to duty out of hours and that he often did.  Indeed, Senior Sergeant Beaman said that Sergeant Hoath had a good work ethic and was available when required.  A recall to duty out of hours is not a recall within the meaning of clauses 16 and 19 – Recall, of the EBAs, unless it complies with the conditions contained in that clause.  A recall to duty may be a recall to work reasonable overtime, rather than a recall on-call.  Further, Sergeant Hoath often provided out of hours advice by telephone and in person to other officers.  His telephone number was posted in all police stations for contact purposes, as were the telephone numbers of other senior and/or specialist officers.  He said that he remained on-call at all times, that is he was available to return to duty forthwith out of normal hours.  Sometimes he attended karate tournaments in Perth.  He also taught karate in Mandurah and left his mobile telephone on whilst he did so.  However, he turned it off in cinemas and theatres.  He trained for hockey 1½ hours per week and turned his telephone off while doing so.  He also did so whilst playing hockey at weekends.  On three or four occasions, he went to the south of the State.  His evidence was that he did not leave town during the weekends without telling his supervisor, Detective Sergeant Beaman, that he was doing so.  Senior Sergeant Beaman said in evidence that Sergeant Hoath may have told him that, as a number of people did if they were going away.  There was no evidence that he was required to report this, that is his absence from Mandurah during a weekend.

30      Two or three times only did he consume liquor to the extent that it was either not wise to drive or that he was not able, in his opinion, to attend to his job properly were he called out.  On such occasions, he said, he would give advice or ask that the scene be secured until he got there.

31      There is no doubt from the respondents’ witnesses’ evidence that Sergeant Hoath was called back to duty over the years and attended out of normal working hours.  Neither Superintendent told him that he was on-call at any time, however.  Indeed, the evidence of Senior Sergeant Beaman, then his supervisor, was that he told Sergeant Hoath that he was not on-call at all.  Sergeant Hoath’s evidence was that that conversation did not occur.  It was not denied or disputed that Sergeant Hoath was not replaced whilst he was on leave and that his work was done by Certificate 3 officers who were able and qualified to attend to the more minor matters including “volume crime”.  Also assistance could and was sought from Perth, from Rockingham and even from Bunbury.  Also, the Rockingham officer was based in Mandurah and was used once or twice.  On some occasions, Sergeant Hoath had made those sorts of arrangements himself to cover him when he was going to be away.  If he were not immediately available or available at other times, similar measures were taken or assistance or availed of, including securing the scene until he could get there. 

32      It was the evidence of Superintendent Watson and Superintendent Napier that Mr Neville’s order or direction, to paraphrase what they said, died after he ceased command.  It was in fact Mr Neville’s evidence, too, that his orders would not survive his departure from his command.  Sergeant Hoath’s evidence was that he was continuing to comply with Mr Neville’s order which had never been revoked or rescinded.  It was the evidence of Superintendent Watson and Superintendent Napier that Sergeant Hoath was not placed on-call by either of them and that, as a matter of fact, he was not required to hold himself available to return to duty forthwith if called upon.  There was no restriction on his drinking liquor or his leaving Mandurah outside his normal hours of duty.  This was compared to officers who are actually placed on-call such as officers placed on-call by Superintendent Napier to deal with a “bikie presence” in his district on occasion, or the requirements placed upon the Tactical Response Group officers (see page 210 (AB)) who were required to be “clean” for a week while they were on-call but not the next week when they were not on-call.

33      As they said, if Sergeant Hoath was available, when sought to be recalled to duty outside hours, he was expected to return.  That is, of course, consistent with the requirement under the EBAs for officers to work reasonable overtime.  If Sergeant Hoath was not available, the witnesses said, and it was not disputed by him, the alternative measures referred to above were resorted to or taken.  Sergeant Hoath did not deny that such measures were or could be taken.  The only real dispute was whether it took 40 minutes or 1½ hours for assistance to come from Perth.  The difference does not seem to us to be a great deal of consequence.  Significantly, there is no evidence that things went awry whilst he was on leave when these alternative measures or arrangements were in place.  In any event, any disadvantage caused by this distance, as we have indicated, would also be suffered whilst Sergeant Hoath was on leave and not replaced.

34      As we have said, all of the witnesses for the respondents were adamant that Sergeant Hoath was not on-call and it was not asserted by him that they directed him to be on-call.  No disciplinary action was taken against him if he were not available, nor was it, on the evidence, contemplated, as it would be if he were on-call.  The undisputed evidence was that, if someone was on-call and failed to respond, he would be disciplined.  He did not claim “on-call”, he said, because he would not get it.  However, he did claim overtime and was paid it, authorised by Detective Sergeant Beaman, with such payments signed off by Superintendent Watson or Superintendent Napier.

The Bunbury Memorandum

35      There is one other matter of evidence to which we refer.  By memorandum dated 5 July 2002 (see exhibit J (pages 476-478 (AB))), which was the subject of some cross-examination when Superintendent Watson gave evidence.  Superintendent Watson, who was then the district superintendent for the South West District, and which district did not include Mandurah, wrote to Commander Balchin, the Regional Commander, Southern Police Region, about after hours working arrangements for Senior Constable Walker, a SOCO stationed in Bunbury since 1995.  In evidence, Superintendent Watson said that it also referred to another SOCO and detective staff, but that is not apparent at all from the memorandum.

36      As Superintendent Watson said in evidence, this was “focussed” on officers in the South West district, not on Sergeant Hoath or on any other district.  He also said that Bunbury was different, among other things, because of the volume of the work and that officers there were definitely on-call (see page 213 (AB)).  In the memorandum, he does make it clear that Senior Constable Walker was supplied with a pager/mobile phone and told to be available and contactable for call outs after normal working hours.  He does not say that he is always to be available or contactable.

37      He makes it clear in the second paragraph of his memorandum that, if a SOCO officer at Bunbury could not be contacted or was unavailable for any period outside of rostered hours, as a standard operating procedure, it was his responsibility to notify the district office and the officer in charge at Bunbury Detectives forthwith.  Then, Perth’s SOCO office was notified to ensure sufficient staff were rostered over that period in the event of a major crime or incident occurring in the South West District.  That is, of course, clear evidence that Senior Constable Walker was not required to be available or contactable at all times because there were backup procedures to be complied with when he was not available or contactable.  That explains, too, in part, a reference to “quasi” on-call by Superintendent Watson.

38      We also quote the third paragraph hereunder:-

“I am advised that SOCO staff questioned this practise (sic) at the time, in the absence of payment of an “on-call” allowance, as per the EBA arrangements, but the officers were told in no uncertain terms that if they did not like the arrangement or were to claim on-call allowance, then they would be transferred.  With this managerial style, the officers accepted that it was an arrangement, where officers did not claim their full EBA on-call entitlements and in return were permitted to take the vehicle home to streamline the callout process (for timeliness, etc).  The vehicle was to be used for on-call purposes only.  There was no entitlement for private use.  This became common-practise (sic) and a similar arrangement existed with the detectives.”

39      Superintendent Watson also said that he formed the view that the SOCO was to be available for after hour call outs as required, “hence the allocation of a pager and phone”.  He also added that alternate arrangements were to be made with the second SOCO to cover should Senior Constable Walker be “unavailable or on leave to continue this practise (sic)”.  He also said:-

“South West Scenes of Crime Officers (like other district members) had professional work ethics and goodwill where they did not claim valid on-call EBA entitlements to assist the district’s finite financial situation.  It was their loyalty and desire to perform well that this status quo worked as it did to mutual satisfaction.”

40      It is clear, as he said in evidence, that some difficulties arose for Superintendent Watson in this matter because of the Substance Policy of the police force, as a result of which officers were expected not to socialise and consume alcohol and to be contactable at all times to attend their specialist functions.  There is no evidence, of course, that that was so in this case.  We say that notwithstanding the fact that Superintendent Watson said “in practicality”, Sergeant Hoath was performing the same duties as the Bunbury SOCO’s.  That was not an unqualified equation of the two positions.  Superintendent Watson did qualify that by saying that Sergeant Hoath was performing the same tasks under Detective Sergeant Beaman as Senior Constable Walker was.  It is to be noted that, under Detective Sergeant Beaman, he was to be called out only when it was necessary, in that officer’s judgement, that he be called out.  It is clear from the evidence that there was therefore to be a restriction on the use of Sergeant Hoath’s services, whether he was on overtime or on-call.

41      Superintendent Watson, in evidence, was unable to support an on-call allowance claimed by Sergeant Hoath.  He also made it clear that officers were on-call in Bunbury because the distance from Perth to Bunbury made assistance from Perth not a “viable option”.  It is clear that it would be certainly more difficult for assistance to be obtained from Perth if it was required in Bunbury than in Mandurah.  That also militates against equatability between the two.

FINDINGS

42      Sergeant Hoath is married with two children and therefore has family responsibilities.  He gave evidence of his involvement in karate and hockey.

43      Sergeant Hoath was not rostered on-call.

44      His Worship found that during the periods of the claims no-one in the police service, and, in particular, his immediate “supervisors” at the Mandurah police station or the relevant district superintendent, who would have been the “duly authorised senior officer” who could direct him to be on-call, considered Sergeant Hoath to be on-call or entitled to any on-call allowance.

45      His Worship also went on to find that the suggestion that an officer could legitimately be on-call and entitled to an on-call allowance without the knowledge of anyone in authority in the police service was, in his view, untenable.

46      His Worship accepted that Sergeant Hoath made himself generally available within his police district, and found that because of his own conscientiousness that that was the expectation of the forensic division and fellow SOCO’s, since SOCO’s have a unique skill and play an important role in crime detection.

47      From the records it was established that he was paid overtime on average no more than twice a month, and it was his evidence that he was paid overtime each time he was called out, although it was accepted that there were times when officers would telephone him or attend at his home for advice.  That evidence, the Industrial Magistrate found, was not consistent with Sergeant Hoath’s evidence that he was “regularly called out after hours”.

48      His Worship also found:-

(a)          That he was not satisfied that Sergeant Hoath was “directed” by Mr Neville to be available to respond forthwith for duty outside of his ordinary working hours.

(b)          That he was not satisfied that Sergeant Hoath was directed to remain contactable by telephone or paging system for an identifiable situation as envisaged by the on-call clauses.

(c)          That Mr Neville did not give Sergeant Hoath any indication that he was directing him to be on-call as provided for in the agreements.

(d)          That Mr Neville admitted that he was aware that there was no on-call allowance payable in the circumstances that Sergeant Hoath was in because “the hierarchy of the Police Department wouldn’t accept the fact that it was a necessary expenditure … (for budgetary reasons)”.

(e)          That as the duly authorised senior officer Mr Neville consciously did not authorise Sergeant Hoath to be on-call for the purpose of the on-call allowance clauses.

(f)           That even if Mr Neville had directed Sergeant Hoath to be on-call, it could not have been the intention of the parties to the agreements that an officer could be placed on-call indefinitely.

49      Thus, the claims were dismissed by His Worship.

ISSUES AND CONCLUSIONS

50      Similar matters have been considered in Hill v Minister for Police and Another (2004) 84 WAIG 3189 at 3199 (FB) and Cornthwaite v Minister for Police and Another (2005) 85 WAIG 26 (FB).

51      The crux of all of these matters are clauses 16 and 19 of the relevant EBAs which remains the same throughout.

52      Clauses 16(1) and 19(1) read as follows:-

“(1) For the purpose of this clause: 

"On-call" shall mean a situation in which an employee is rostered, or directed by a duly authorised senior officer, to be available to respond forthwith for duty outside of the employee's ordinary working hours or shift. An employee placed on-call shall remain contactable by telephone or paging system for all of such time unless working in response to a call or with the consent of his or her appropriate senior officer.

"Close-call" shall mean a situation in which an employee is rostered, or directed by a duly authorised senior officer, that they are or may be required to attend for extra duty sometime before their next normal time of commencing duty and that the employee is to remain at his or her residence and be required to be available for immediate recall to duty.

"Stand-by" shall mean a situation in which an employee is rostered or directed by a duly authorised senior officer to remain in attendance at his or her place of employment at that time, overnight and/or over a non-working day, and may be required to perform certain tasks periodically or on an ad hoc basis.  Such employee shall be provided with appropriate facilities for sleeping if attendance is overnight, and other personal needs, where practicable.”

53      Clauses 17(1) and 18(1) of the relevant agreements, which refer to overtime entitlements, read as follows:-

“(1) An employee may be required to work reasonable overtime and such employee shall work overtime in accordance with such requirement.”

54      Overtime entitlements under the agreements are, of course, plainly different from on-call entitlements and arise from two entirely separate and distinct clauses of the EBAs.  Overtime is a different kind of outside ordinary hours worked, to that done on-call, regulated differently under the agreement, and paid at different rates (see Hill v Minister for Police and Another (FB) (op cit) at page 3198).  It is to be noted that an employee is required to work only reasonable overtime, and has no duty to work unreasonable overtime.

55      Thus, a person who is required to work overtime consisting of actually being on-call at any given time, first of all is probably being placed on-call, and even if he/she has not, would not be required to work that sort of overtime since it is quite arguably not reasonable.

56      An on-call allowance, as defined, must be construed in the context of the whole of each EBA in which it appears.  In order to be eligible to claim an on-call allowance for work done outside ordinary hours, an employee such as Sergeant Hoath must be rostered or directed by a duly authorised senior officer and no-one else.  Further, he/she must be so rostered or directed to be available to respond forthwith for duty outside ordinary hours of duty.

57      “Rostered” means precisely that.  An employee is placed on a roster which requires her/him to be available outside ordinary hours and to respond forthwith for duty outside those ordinary hours or shifts.  “Ordinary hours” are defined in clauses 7(1)(a) and 16(1)(a) of the relevant EBAs.

58      There was no evidence of any such roster at any time for Sergeant Hoath in this case.

59      “Directed” means that an employee is directed to do the same.  A person is directed if he/she is managed, controlled, given authoritative instructions to, commanded or ordered to do something (see Hill v Minister for Police and Another (FB) (op cit) at page 3198 (paragraph 70)).  A person is directed if the direction is made and conveyed orally or in writing by the duly authorised officer or another officer acting on his/her behalf or with his/her authority.  The person is also directed, within the meaning of clauses 16 and 19 (supra), if he/she performs on-call duties which are acquiesced in, known to and availed of by a duly authorised officer, either directly or indirectly (see Cornthwaite v Minister for Police and Another (FB) (op cit) and Hill v Minister for Police and Another (FB) (op cit)).  Further, such direction may be impliable from the circumstances of any one case.

60      An employee is duly placed on-call by such direction or roster and is then by the clause required to remain contactable by telephone or paging system for all of the time when she/he is on-call, unless she/he is working in response to a call or is not contactable because she/he has received the consent of her/his appropriate senior officer to be non-contactable.

61      Thus, an employee is required to comply with and be subject to a roster or direction in accordance with those conditions before there can be a valid claim for an on-call allowance.  There is no requirement on the employer to pay such an allowance unless those preconditions have been complied with.

62      Further, by virtue of clauses 16(3) and 19(3), no payment by way of an on-call allowance shall be made in respect of any period for which payment is made in accordance with the overtime clause when the employee is recalled to work.

63      It is, thereby, quite clear that if an employee is paid overtime for hours worked outside ordinary hours, having been recalled to work, then that employee cannot claim or be paid on-call payments under clauses 16 and 19.  Such an employee is only on-call because she/he is rostered or directed by a duly authorised officer to be available outside ordinary hours or shift.

64      Further, in the terms of the agreements, a police officer as employed cannot decide that she/he is on-call.  That employee has to be directed or placed on roster by a duly authorised officer.

65      In this case, many of the facts are clear.  For a duly authorised senior officer to roster or direct an officer to be on-call, there must be a written roster, or an express written or oral direction, or a direction impliable from the circumstances (see some discussion of this in Cornthwaite v Minister for Police and Another (FB) (op cit)).

66      It was not in issue that the relevant delegation of the Commissioner’s power to place officers on-call for the purposes of the relevant agreements is that published by the then Commissioner of Police on 13 October 1989 (see exhibit I and see also Mr Eacott’s evidence at page 187 (AB)).

67      The delegation confers the delegated power only on “the relevant Regional Officer or Branch Head (see page 475 (AB)).

68      It was common ground that, for the purposes of the delegation, “regional officers” are now “district officers” and that for the purposes of the claim the relevant district officers were Superintendents Napier and Watson who were the relevant district officers during the period to which the claims relate.  They were the only duly authorised officers in the district and the only persons who were duly authorised officers and therefore qualified to place Sergeant Hoath on-call, within the meaning of the EBAs, at the material times.

69      There was, as a matter of undisputed fact, no roster and no direction from those officers to Sergeant Hoath at any material time placing him on-call in terms of clauses 16 and 19 (see pages 200 and 237 (AB)).  Indeed, further, Sergeant Hoath’s line manager, Senior Sergeant Beaman, gave evidence that he told him that he was not on-call, although he denied it.  Sergeant Hoath did not at any time allege that he was placed on-call, within the meaning of the EBA, by any authorised officer after 1996.

70      The evidence on which Sergeant Hoath relied to establish that he was on-call was evidence of two superintendents who had been retired for some time, indeed in 1993 and 1995.  Neither had any knowledge of what occurred in relation to Sergeant Hoath after their retirements or during the period to which Sergeant Hoath’s claim relates.

71      There was, it was clear, no roster and no evidence of a direction from a duly delegated district officer.  Indeed, that was Sergeant Hoath’s evidence also (see page 145 (AB)).  However, Sergeant Hoath’s case was that Mr Neville placed him on-call.  Mr Horton retired from the police force in 1993.  Further, he had had no dealings with Sergeant Hoath and was simply not his commanding officer during the period of the claim, and certainly not a regional or district officer.  His evidence of his directions to others was of no weight in this matter. 

72      Senior Constable Walker’s evidence was merely the evidence which he himself was expected to do and predated the Delta change in police organisation and administration.  It was therefore also of little weight.  Mr Neville, however, gave direct evidence that he told Sergeant Hoath that he would have to be available outside normal hours of duty to attend crime scenes.

73      The learned Magistrate found that Mr Neville had not directed Sergeant Hoath to be on-call.  However, Mr Neville for the period of the claim was not Sergeant Hoath’s regional officer, district officer or branch head for the purposes of the on-call delegation.  Further, Mr Neville accepted that once he was no longer in charge of Sergeant Hoath it was up to Sergeant Hoath’s current supervisors to direct him and that included directing him to be on-call or place him on a roster (see page 115 (AB)).  Such a view is supported by the major change brought about by Delta, whereby the command of Sergeant Hoath by the officer in charge of the forensic division ceased and the command of Sergeant Hoath and all personnel within the district was exercised by successive district officers of the rank of Superintendent.  That was a proposition accepted too by Sergeant Hoath (see page 145 (AB)).

74      There was clear evidence from Superintendents Napier and Watson that any on-call direction given by Mr Neville did not continue in force once Sergeant Hoath was no longer under the management of the forensics branch of which Mr Neville was head, but that he was under their control and direction.  It is quite clear and we are satisfied that a direction given by Mr Neville could not bind, in the absence of authority to the contrary, district officers on whom authority had devolved as a new form and a more complete form of authority for the management and control of districts under the Delta Plan, including all police personnel in the district and including, for the purposes of these proceedings, Sergeant Hoath.

75      There was no evidence either that Superintendent Watson or Superintendent Napier had continued Mr Neville’s earlier direction.  Indeed, their undisputed evidence was that Sergeant Hoath was not placed on-call by either of them.  Indeed, their undisputed evidence also was that he was expected to return to work to perform reasonable overtime if available.  It was also asserted by Superintendent Watson that unlike the Bunbury forensic officers who were on-call, Sergeant Hoath was not on-call.  Sergeant Hoath did not ever put in a claim for an on-call allowance.

76      Further, there was undisputed evidence that if Sergeant Hoath were not immediately available to attend a crime scene other arrangements could be put in place and were put in place, something not denied by him.  They could also call on Rockingham and Bunbury forensic officers and a forensic officer who lived in Mandurah, as well as Certificate 3 officers for minor matters, and did so.  In addition, they could seek the assistance of Perth forensic officers who could get to Mandurah fairly quickly and who were on duty 24 hours a day.  Further, they could preserve the crime scene until Sergeant Hoath was available, or could use officers with other qualifications to attend minor matters.

77      There was undisputed evidence that when he went on leave Sergeant Hoath was not replaced by another officer and that his district made do with the other measures referred to in paragraph 76 and other paragraphs above.

78      In 1998, too, a specific arrangement was put in place to ensure that Sergeant Hoath was not contacted outside ordinary hours unless it was absolutely necessary.  That evidence was not contradicted.  That some officers might have ignored that and gone direct to him does not weaken the fact that he was not required to be available and contactable for all matters, which is what Superintendent Watson referred to, too, in his evidence.

79      On the occasions when he was recalled to duty Sergeant Hoath claimed overtime and was paid it.  It is also clear that he was seldom recalled outside his normal hours of duty, although he received enquiries and was asked for advice.  For example, he was called out once in 20 weeks in 1998 and six times in 34 weeks in 1999, according to the only records available.

80      Other options were readily available if he were unavailable, as we have already said was the case on the evidence.

81      It is, of course, necessary for Sergeant Hoath to establish that he was available to be called to duty forthwith 24 hours a day, or that alternatively he had consent from his superiors not to be available 24 hours a day.  The employee must then remain contactable by telephone or paging system for all of such time unless working in response to a call, or, as we have said, unless he had the consent of his or her relevant senior officer.  It would seem that he certainly had that consent.  That was so, on his evidence, and on the whole of the evidence, his required availability was consistent with his being required to work reasonable overtime, rather than with being a person on-call.  The volume of his call outs, insofar as it was recorded and not denied by him, supports such a view in practice, even though he did receive enquiries out of hours which were not quantified.

82      There is no evidence that Sergeant Hoath was directed to be available to respond forthwith for duty outside his ordinary working time, at all times.  There is no evidence that he was required to remain or was contactable by telephone or paging system for the purposes of a direction to him to remain contactable by telephone or paging system.  In fact, the evidence is to the contrary and includes his own evidence that he was not always available or contactable.

83      The successive supervisors did have knowledge of his after hours call outs, but they did not accept them as on-call allowance claims because neither had placed him on-call and they could not acquiesce in what Mr Neville had directed because the undisputed evidence was that they knew nothing of the direction.  He was then directed to be on-call, we so find.

84      Relevantly, however, the use of the car and the phone which he was given was consistent with his being on-call, but also consistent with requiring it for his duties both inside and outside hours, on overtime work.

85      The clear evidence was that Sergeant Hoath was not required to be and was not always contactable or available to return to duty forthwith.  It was also the evidence that he did not always return to duty.  He had the option of declining if he were not available.  He was not disciplined when he was unavailable and it was never suggested that he should be.  We so find.

86      It is quite clear, as His Worship found, that, even if he had been directed to be on-call by Mr Neville that such a direction could not continue indefinitely.  Indeed, there is something to be said for the proposition that unless implicitly or expressly adopted by his successors, then any earlier direction by Mr Neville could not continue.  We so find.

87      The evidence was that it was not continued or adopted by Superintendents Napier or Watson because they did not know of it.  The evidence was that it was not so continued or adopted.

88      Further, although it was not argued by either side, as the President observed in Cornthwaite v Minister for Police and Another (FB) (op cit), clause 16(3) of the 1996 EBA, repeated in each EBA thereafter, and which reads as follows,

“(3) Payment in accordance with subclause (2) shall not be made in respect to any period for which payment is otherwise made in accordance with the provisions of Clause 17. - Overtime when the employee is recalled to work.”

means that a person cannot be paid on-call rates when payment is correctly made in accordance with clause 17.  We so find.

89      We would also add this.  Hill v Minister for Police and Another (FB) (op cit) is the authority for the proposition that on-call can be a directed or rostered state of affairs over a long period.  There was some suggestion that this might have occurred with another SOCO at Mandurah after Sergeant Hoath left Mandurah.  Insofar as His Worship found otherwise, he was wrong.  However, that is not material to the merit of his decision.

90      Further, Mr Neville’s evidence that he admitted that he was aware that there was no on-call allowance payable because “the hierarchy of the Police Department wouldn’t accept the fact that it was a necessary expenditure … (for budgetary reasons)”, as His Worship said, is not an opinion which can affect the merit of any claim for on-call allowance.  We wish to make it clear that “budgetary reasons” do not absolve any employer from complying with the terms of an award or industrial agreement (see s114 of the Act), nor does it prevent the agreement or award being enforced against the employer; so is a requirement that an employee work overtime which is not reasonable.

91      Next, a direction to work without pay on-call, contrary to an EBA (ie) an industrial agreement, is unlawful.  However, what His Worship said did not, as we understand it, constitute a finding, and if it did, it could not affect the finding on the merits.

92      We would also add that there was not a great deal of conflict in the evidence, but, on a careful consideration of the submissions insofar as His Worship decided the matter on questions of credibility with the advantage of seeing and hearing the witnesses, then he made no glaringly improbable material finding, nor did he otherwise err in his findings as such errors are identified in Fox v Percy (2003) 197 ALR 201 and the cases cited therein, particularly Devries and Another v Australian National Railways Commission and Another [1992-1993] 177 CLR 472.

CONCLUSIONS

93      Accordingly, it was not established at first instance that there was any express or implied direction which existed and was valid at the times to which the claims relate, which placed Sergeant Hoath on-call.  There was no roster at all referred to in evidence and it was not suggested that he was rostered to be on-call.  As a matter of evidence, at the material times, no direction existed which required Sergeant Hoath to be available to respond forthwith for duty outside his ordinary working hours or shifts.  He was not required to be available forthwith at all times and to every call.  Sometimes he was not required to respond.  Sometimes he did not respond forthwith and was not required to.  It was open to find in fact that he was being required to work reasonable overtime, as required by clauses 17 and 18 of the EBAs.  Alternatively, for all of the reasons which we advanced above, he did not establish otherwise.

94      Further, it was open to find that Sergeant Hoath was not required to and did not remain contactable by telephone or paging for all of the time that it was alleged that he was on-call, relevant to these claims.  He was free to lead his own life, to some extent, in that he was not prohibited from drinking or from leaving Mandurah and, from the proven volume of calls, it is clear that he was able to.  It was therefore open to find and correct to find that he was not on-call or that it had not been established that he was during the periods referred to in the claims.  He did not therefore establish that he was entitled to be paid or claim on-call allowances in accordance with the subject agreements.

FINALLY

95      For those reasons, it was not established that Sergeant Hoath was “on-call” within the meaning of clauses 16 and 19 of the agreements, or that he had any valid claim as the claims filed by him alleged.

96      The learned Magistrate did not err as alleged.  The appeal is not, in our opinion, made out.  We would, for those reasons, therefore, dismiss the appeal.

97      For those reasons, the appeal is dismissed.

Order accordingly