ENTERPRISE ORDER PURSUANT TO S.42I

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2017 WAIRC 00822

DELIVERED : monday, 18 September 2017

FILE NO. : APPL 73 OF 2016

First Applicant

Civil Service Association of Western Australia Incorporated

Second Applicant

AND

Commissioner of Police

Respondent

CatchWords : Application for enterprise order - Relevant principles to be applied - Parties proposed enterprise orders contain agreed provisions - Agreed provisions are industrial matters and fair and reasonable in all the circumstances - Certain provisions remain in dispute - Consideration given to submissions and evidence of the parties and the fairness and reasonableness of disputed proposed provisions

Legislation : Industrial Relations Act 1979

  Police Act 1892

Result : Enterprise order to be made

Representation:

First Applicant : Mr M Ritter SC, of counsel, and with him Mr D Stojanoski of counsel

Second Applicant : Ms A Wallish

Respondent : Mr H Dixon SC, of counsel, and with him Mr R Bathurst of counsel

Solicitors:

First Applicant : Slater & Gordon

Respondent : State Solicitor’s Office

Cases referred to in reasons:

Re Harrison; Ex Parte Hames [2015] WASC 247

Western Australian Police Union of Workers v Minister for Police (1982) 62 WAIG 1401

Cases also cited:

2017 State Wage Order (2017) 97 WAIG 693

CMFEU v Hamberger [2011] FCA 719

Fireman and Deckhands (Port Jackson and Manly Steamship Company Limited) Award [1959] AT 353

Hanssen v Construction, Forestry, Mining and Energy Union (Western Australian Branch) (2004) 84 WAIG 694

Hospital Employees Conditions of Employment (State) Award [1976] AR 275

Iron and Steel Works Employees (Australian Iron & Steel Pty Limited – Port Kembla) Award and Another Award [1965] AR 449

R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322

Sealanes (1985) Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia and Ors (2004) 84 WAIG 3158

Shift Worker Case [1972] AR 633

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority (2011) 91 WAIG 694

The Executive Director Department of Education, The Liquor, Hospitality and Miscellaneous Union (WA Branch); The Executive Director Labour Relations Division Department of Commerce; The Liquor, Hospitality and Miscellaneous Union (WA Branch) (2010) 90 WAIG 615

The Minister for Health in his Incorporated Capacity under s 7 of the Hospitals and Health Services Act 1927 (WA) as the Hospitals Formerly Comprised in the Metropolitan Health Service Board, The Peel Health Services Board, an WA Country Health Service v Health Services Union of Western Australia (Union of Workers) (2015) 95 WAIG 52;  [2015] WAIRC 00332

Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265

Western Australian Police Union of Workers v The Civil Service Association of Western Australia Inc (2011) 91 WAIG 1851

Western Australian Police Union of Workers v The Minister for Police (1982) 62 WAIG 1401

Zhang v Canterbury City Council (2001) 51 NSWLR 589

Reasons for Decision

1         The necessary preliminary matters having been dealt with, the applicants filed a Notice of Application for an enterprise order to be made pursuant to section 42I Industrial Relations Act 1979 on 6 December 2016 attaching a copy of the enterprise order they sought.

2         The respondent filed a copy of the enterprise order he sought on 19 December 2016.

3         Under cover of letter from the respondent’s solicitors dated 8 June 2017, a draft enterprise order was provided to me which contained clauses agreed by the parties with the clauses remaining in dispute being marked for my attention.

4         Events at, and subsequent to, the hearing of the matter further defined the matters about which there was, and was not, dispute between the parties.

5         The following are the matters remaining in dispute and about which evidence was led and submissions made. Although there were two applicants I have not generally distinguished between them in my reasons as the second applicant simply adopted the evidence led and submissions made by the first applicant. 

Hours of Duty – Vote and Veto

6         The applicants seek a subclause, proposed clause 11(6), which would provide that any change to shift arrangements otherwise prescribed by the relevant clause may only occur if at least 66% of the employees affected by the proposed change agree to it, and the respondent, the Western Australian Police Union of Workers and the “Employee Relations Division” endorse the change.

7         The respondent opposes the proposed subclause.

Hours of Duty – Missed Meal Break Payments

8         The applicants propose that there be no restriction upon the number of times within any given pay period that an employee can claim and be paid for a missed meal break (provided there is no more than one claim per shift).

9         The respondent proposes that the number of claims per pay period paid be limited to five, with any additional claims requiring the respondent’s approval before payment is made.

Overtime

10      The applicants propose a paragraph, proposed clause 13(3)(a), which provides that the entitlement to payment for working overtime commences once an employee has worked more than 15 minutes outside the employee’s normal working hours.

11      The respondent proposes that overtime only be payable once an employee has worked more than 30 minutes outside the employee’s normal working hours.

12      The applicants also propose a paragraph, proposed clause 13(3)(c), which would have the effect that the calculations applied to payment for overtime worked would be done on a weekly basis.

13      The respondent proposes that the calculations applied to payment for overtime worked be done on a daily basis.

14      The difference between the two positions on this second issue is that under the applicants’ proposed clause the point at which the payment of overtime at double time, rather than at time and a half, is more likely to be reached under the applicants’ proposed clause than the respondent’s proposed clause.

15      The applicants propose that clause 13, whatever form it ultimately takes, ought not include the term “duly authorised officer.” The effect of this, as I understand it, would be that only the “employer” can direct that overtime be worked (and not a “duly authorised officer”) and in relation to certain agreements for the clearing of accumulated time off in lieu of payment for overtime, these would have to be between an employee and the “employer” and not between an employee and a “duly authorised officer.”

16      The respondent proposes that clause 13, whatever form it ultimately takes, include references to “duly authorised officer” in three places with the effect that a “duly authorised officer” may direct that overtime be performed and enter into the agreements referred to above in relation to the taking of accumulated time off in lieu of payment for overtime.

Shift Rate Allowance

17      The applicants propose a subclause, clause 18(1), which provides that employees get the same shift allowance payment rates as sworn police officers.

18      The respondent proposes a subclause that provides the employees with particularised amounts for the life of the enterprise order, which amounts are lower than those to which sworn police officers are entitled.

Frontline Allowance

19      The applicants propose a clause, clause 30, which would provide that certain employees, protective service officers, be paid an allowance of 10% of their rate of ordinary pay.

20      The respondent opposes the clause and proposes no alternative clause.

Annual Leave

21      The applicants propose a subparagraph, clause 32(1)(a)(ii), which would give employees working a “rotating roster”, defined by proposed clause 32(1)(d), 280 hours of annual leave.

22      The respondent proposes a clause which gives all employees, including those working a rotating roster, 240 hours of annual leave.

The Arguments of the Parties in Relation to Each Issue

Hours of Duty – Vote and Veto

23      The applicants say that what they seek for employees would align the conditions of employees with the sworn police officers alongside whom they work. The applicants say it is unfair for these two occupational groups to have different conditions in this regard, and especially so given that the employees perform duties which sworn police officers previously did and that, when sworn police officers did those duties, they enjoyed the conditions in relation to rostering the employees now seek.

24      The respondent opposes the proposed subclause.

25      The applicants say, quoting Senior Counsel for the first applicant, that the proposed subclause:

“…has a potential to minimise disputes at the workplace and - for two reasons.  One, because it democratises the process.  And secondly, that there is less of a difference between what the Police Officers can do in relation to rosters and Police Auxiliary Officers working alongside them.”

(ts 59)

26      The respondent says that the employees have operated under a rostering system which does not have the features the applicants seek for six or more years without, on the evidence, “any difficulty” (ts 189).

27      The respondent says that flexibility in rostering is important to him, that the applicants’ proposed subclause restricts that flexibility and that the evidence does not support “the type of restrictions which are put forward on the practices that have been demonstrated to operate without any difficulty or any unfairness” (ts 189).

28      To the extent that the applicants seek an alignment with conditions regulating sworn police officers, I sought information on the history of the relevant conditions for sworn police officers and was informed by the parties, and I think I can summarise the positions of all neutrally, that the relevant conditions were given in exchange for the respondent securing the agreement of the Western Australian Police Union of Workers to the potential for greater flexibility in the rostering of sworn police officers.

Hours of Duty – Missed Meal Break Payments

29      The applicants say their proposed subclause “…simply involves an alignment with police officer conditions working in the same spheres or work and in some instances the same station and it is fair to align in those circumstances” (ts 59).

30      Later the applicants expanded their argument in support of the clause beyond parity to say that as a matter of inherent fairness there should not be, within the enterprise order, a discretion residing in someone to refuse a missed meal break payment if the meal break has been missed (ts 339).

31      The respondent says that the current arrangements have been in place for some time and that there is no evidence of problems with their operation. The respondent says the evidence is that if employees “miss their meal breaks, they are entitled to put in a claim and when the claim is put in”, at least as far as the evidence goes, they are not refused (ts 195).

Overtime

32      The applicants rely on “consistency and parity with sworn officers” and the minimisation or avoidance of dispute in the workplace arising out of the lack thereof (ts 59 – 60).

33      The applicants expanded their argument in support of the clause beyond parity to say that it is inherently unfair for the enterprise order to operate, as the respondent seeks, in such a way that “you can work for 29 minutes [extra] every day of your shift and get nothing” (ts 338).

34      The respondent says that there is no evidence of employees having to regularly work beyond their normal hours, that where there is an entitlement to overtime under current arrangements it is paid without difficulty and that the nature of the work done by sworn police officers is such that there are good reasons why they should have a differently formulated overtime entitlement to the employees (ts 194 – 195).

35      In relation to the term “duly authorised officer”, the applicants say that overtime will still need to be authorised if the term does not appear, so there is no risk to the respondent, but that it is desirable that overtime does not have to be authorised by a “duly authorised officer.”

36      The applicants explain it this way at [54] and [55] of their Outline of Closing Submissions:

“…out of necessity, senior officers and representatives [other than “duly authorised officers”] may be required to direct police auxiliary officers to perform overtime in circumstances where formal delegation of authority in a written form has not occurred [and] in such cases, overtime must still be approved by the employer before it is paid, however, the removal of the reference to duly authorised officer provides greater flexibility to accommodate unknown or unanticipated situations.”

37      The applicants did not argue that “parity and consistency” with sworn police officers was a string to their argument’s bow but observed, at [56], that there is no reference to “duly authorised officer” in the industrial agreement provisions regulating overtime for sworn police officers.

38      The applicants made no submissions in relation to why the agreements in relation to the taking of accumulated time off in lieu should not be entered into by a “duly authorised officer.” Obviously the argument made on the ground of the “exigencies of the situation” does not apply to such agreements.

39      The respondent argues that the matters he proposes be authorised by the “duly authorised officer”, where he includes the term in his proposed clause, “should only be given or allowed by a person with the authority to do so” ([60] of respondent’s Outline of Opening Submissions) and that if it is to be the respondent himself who must give such approval this would be “entirely unworkable” ([59] of respondent’s Outline of Opening Submissions).

Shift Rate Allowances

40      The applicants rely on “consistency and parity” with sworn police officers “given the circumstances in which the nature of shift work for employees is identical to that experienced by sworn police officers” (ts 60, 339).

41      The applicants also rely on some evidence about staffing levels and workload at the Perth Watch House, and the extent to which these issues have affected adherence to written policies and procedures and caused stress and fatigue to employees. 

42      The respondent repeats its argument to the effect that the employees are a different occupational group to sworn police officers and that there is no basis for alignment established by argument or evidence.

43      The respondent argues the evidence about staffing levels and workload is irrelevant.

Frontline Allowance

44      The applicant says the allowance ought be paid to employees to “compensate for the additional skills, responsibilities, risks and hardship associated with the particular duties of [protective service officers]” (ts 60).

45      The respondent says that the position of protective service officer was classified having regard to the “skills, responsibilities, risks and hardship” associated with it and that absent an application for reclassification of the position, not made here, there can be no justification for an allowance to compensate for matters already acknowledged by the position’s classification (ts 195).

Annual Leave

46      The applicants say that those involved in particular types of shift work, with some of the employees being an example, are, across other industries, “not uncommonly” entitled to an “additional week of annual leave.” The applicants say that such an entitlement would enhance the working conditions of employees and “has the potential to increase industrial harmony and also decrease attrition rates” (ts 61).

47      Reliance was placed on the decision of Fielding C in Western Australian Police Union of Workers v Minister for Police (1982) 62 WAIG 1401 which refused an application for an increase in the annual leave entitlement of sworn police officers from six weeks to seven weeks. As I understand the argument, it was that insofar as Fielding C was unwilling to grant the application in that case because it would apply to all sworn police officers, including those who did not work on a rotating roster pattern, that problem does not arise here because the additional week of leave is only sought for employees who work a rotating roster pattern. (ts 337)

48      The applicants also say, at [42] of their Outline of Closing Submissions, that the employees on a rotating roster pattern work public holidays without payment of penalty rates and that, while six weeks of annual leave may compensate for that, “there is no additional consideration built into that leave entitlement for shift work, that is, having to work weekends and the reduction in leisure and family time that results from shift work.”

49      The applicants say six weeks of leave compensates the employees only for working public holidays at their ordinary rate of pay and not otherwise.

50      The applicants also rely on some evidence about staffing levels and workload at the Perth Watch House, and the extent to which these issues have affected adherence to written policies and procedures and caused stress and fatigue to employees. 

51      The respondent, while not taking issue with the contention that shift workers typically enjoy an “additional week of annual leave”, questions the base to which the additional week of leave is added. The respondent notes that employees under his proposal have an entitlement to six weeks of annual leave and the “additional week” sought by the applicants would be a seventh week of leave. The respondent says that the “community standard” for annual leave remains four weeks of leave with an additional, and fifth, week of leave where shift work is performed.

52      The respondent says that the requirement to work shifts, and public holidays at normal time, will be reflected in the employees having not just five, but six, weeks of annual leave and that there is no support, including in the decision of Fielding C, to be found anywhere for persons receiving six weeks of annual leave to receive a seventh week of annual leave because of shift work or working public holidays at normal time or for any other reason.

53      The respondent argues the evidence about staffing levels and workload is irrelevant.

Additional Arguments

54      The respondent pointed to the fact that many of the matters in relation to which the applicants and the respondent disagree have been the subject of provisions in an industrial agreement for some years and that the provisions he seeks be included in the enterprise order mirror those provisions.

55      The respondent placed reliance on a lack of evidence of complaints and disputation about the matters the subject of clauses sought by the applicants for inclusion in the enterprise order and said that the alternative clauses he says should be included “have been demonstrated to work effectively” (ts 306).

56      The applicants addressed reliance on such an argument in closing submissions (both oral and, in outline form, in writing) by saying that there is no onus upon an applicant for an enterprise order to establish that a term or condition has, in the past, operated in an unfair way for an alternative to be adjudged, by the Western Australian Industrial Relations Commission, as fair and reasonable.

57      The applicants argued that even if there is no evidence of particular problems relating to a term or condition that has been in operation, and there is evidence that it has been operating effectively, this cannot mean, as a matter of logic, that the term or condition cannot be improved upon. The applicants said that such terms and conditions may be improved upon if it is fair and reasonable that this occur.

58      The respondent also placed reliance on the fact that in 2013 the applicants, following an overwhelming majority vote in favour by their members, agreed to the terms and conditions for the employees that are more or less the same as those contained in the enterprise order he seeks be made.

59      The applicants said that the agreement was for three years, and no longer, and the fact of the agreement, and the size of the majority in support, have no relevance to what is, on the evidence and argument before me now, fair and reasonable to include in an enterprise order to operate into the future.

60      There was significant evidence and argument about the state of the economy of Western Australia, Public Sector Wages Policy Statements, the financial position and fiscal strategy of the State of Western Australia and the financial positon of WA Police.

61      Insofar as there was divergence between the parties about the significance of that evidence it may be boiled down as follows. The applicants said whether additional cost is incurred is largely up to the respondent, and how efficiently it manages the circumstances affected by the clauses they seek, and that, in any event, the cost of their claims (at the outside let’s say around $1 million) would be a drop in the ocean that is the WA Police expense budget, let alone when considered in terms of the State expense budget.

62      The respondent said that one million dollars is still one million dollars; that is, a lot of money. The respondent said in circumstances where the State has a large debt and has, by way of strategy to reduce that debt, targeted public sector expenditure that “every dollar counts” and it is not to the point that one million dollars may be, when placed against other amounts, relatively small.

63      The respondent also urged me to consider the possible financial impact of the clauses in any enterprise order I make “flowing on” to other occupational groups, within Government in particular.

64      The applicants said that the issue of “flow on” is essentially a furphy and points to a lack of evidence of it ever having actually occurred in the way the respondent alleges it might.

Evidence

65      At Schedule 1 to these reasons for decision may be found a list of witness statements admitted into evidence with an indication given where a witness gave evidence in person.

66      Evidence material to my decision will be referred to as necessary in the balance of these reasons for decision.

Consideration

67      I must make an enterprise order which provides for any matter that might otherwise be provided for in an industrial agreement (section 42I(1)(c) Industrial Relations Act 1979) and which is fair and reasonable in all of the circumstances (section 42I(1)(d) Industrial Relations Act 1979).

68      Following Re Harrison; Ex Parte Hames [2015] WASC 247, section 42I(1)(c) Industrial Relations Act 1979 means that I may only include in the enterprise order provisions with respect to an industrial matter or for the prevention or resolution of disputes, disagreements or questions relating to an industrial matter.

69      I cannot usefully expand on, explain or place any gloss upon the clear words of section 42I (1)(d) Industrial Relations Act 1979.

70      As with any exercise of my jurisdiction under the Industrial Relations Act 1979 I must apply section 26(1) Industrial Relations Act 1979 and here, given that I am making a “public sector decision”, as defined by section 26(2B) Industrial Relations Act 1979, I must take into consideration the matters referred to in section 26(2A) Industrial Relations Act 1979.

71      In relation to the matters mentioned above under the heading “Additional Arguments” I comment as follows for the time being, with more detailed reasoning being given as and when the need arises in the balance of my reasons.

72      It is neither here nor there that the applicants agreed to certain terms and conditions in the past nor that this agreement followed a vote in favour, of any margin, by their members.

73      Agreement to a provision for a period of time but no longer (putting to one side the possible operation of section 41(6) Industrial Relations Act 1979) says nothing instructive to me about the fairness or reasonableness of a provision which will operate beyond that period of time.

74      However, evidence about the operation of a provision over a period of time is relevant and may be instructive.

75      A lack of complaint or disputation about the operation of a provision cannot as a matter of logic lead to the conclusion that some or most or all persons affected are content with the operation of the provision nor can it lead to conclusions that the provision must be fair and reasonable or that it cannot, fairly and reasonably, be improved upon.

76      However, insofar as evidence of the operation of a provision over a period of time is relevant, a lack of evidence about complaints or disputation, while not having as a matter of logic the implications set out above, does have its place in assessing the operation of the provision. It does not prove in itself that the provision is operating fairly and reasonably nor does it prove that the provision cannot be improved upon but it is not entirely irrelevant in determining what might be fair and reasonable for the next period of time.

77      It is a “circumstance” I may take into account and give weight.

78      In relation to section 26(2A) Industrial Relations Act 1979 I say for the time being that I am of the view that the matters referred to therein only need to be considered if I am otherwise satisfied that a provision has merit. Also, and even if a provision has merit, I agree with the respondent that I need not place weight on the matters in section 26(2A) Industrial Relations Act 1979 if the cost associated with the provision is nominal only.

“Agreed” Matters

79      The parties have informed me of the provisions which none of them dispute ought be included by me in the enterprise order I make.

80      The parties accept that the provisions I include in the enterprise order are ultimately a matter for me and that I should only include them, even where there is “agreement” about them, if I am satisfied that they relate to industrial matters and are, in all of the circumstances, fair and reasonable.

81      I have read the “agreed” provisions against this background.

82      I am satisfied that each relates to an industrial matter.

83      In relation to whether they are fair and reasonable, where each party, with two of those parties being represented by Senior Counsel, and highly competent solicitorial teams, tell me that, so far as they are concerned, the provisions are, in all of the circumstances, fair and reasonable there would have to be something startling about a provision to cause me to ask the parties to remark upon it.

84      My scan of the “agreed” provisions prior to the hearing revealed no such provision and I did not, at the hearing, call for comment upon any of the agreed provisions. My more recent review of the provisions, and one undertaken with me having provisional views about what I may include in the enterprise order, reveals nothing calling for comment.

85      I am content to include the “agreed” provisions in the enterprise order as I find that they relate to industrial matters and because I find they are, in all of the circumstances, with one of those circumstances being the attitude of the parties to them, fair and reasonable.

86      I have considered the matters in section 26(2A) Industrial Relations Act 1979 in coming to this conclusion.

87      I note that there are only around 350 employees affected by the enterprise order I make and that the pay scale agreed upon is a compressed one, starting at around $50,000 and topping out below $90,000.

Hours of Duty – Vote and Veto

88      I am not persuaded that, in all of the circumstances, it would be fair and reasonable to include in the enterprise order the subclause the applicants seek.

89      The circumstances primarily relied upon, that sworn police officers alongside whom the employees work have this provision, is unpersuasive.

90      There is nothing inherently unfair or unreasonable about persons working alongside each other having different terms and conditions of employment where those persons belong to different occupational groups regulated by different industrial instruments.

91      As a start point it would be expected that different occupational groups would have different terms and conditions of employment resulting from different histories of classification, negotiation and arbitration.

92      The source of, and the reasons for, the differences will normally be explicable on the basis of those histories. That the occupational groups work alongside each other would not, in most cases, be a good place to start in characterising the differences, in term of fairness, reasonableness or otherwise, let alone a good place to finish in relation to such a task.

93      The system of industrial regulation that has developed and become entrenched in this State is far too complex and sophisticated to reduce matters of fairness and reasonableness to physical proximity at the workplace, even across similar shift patterns.

94      Sometimes “links” between occupational groups working alongside each other develop. It may become accepted that different occupational groups, to some extent because they work alongside each other, ought receive the same percentage pay increase for instance. Other strong links may be expressed or developed over time.

95      The uncoupling of such a link may, prima facie, be unfair and, in itself, lead to disputes and disagreement.

96      Such a factor may thereby become a highly relevant matter in negotiations and arbitrations.

97      But generally, absent such history, there is nothing of particular significance in terms of fairness or reasonableness in employees of one occupational group working in physical proximity to those of another occupational group, even across similar or the same shift patterns.

98      In my respectful view, a contention that the employees should have the same entitlement to a vote, and through the Western Australian Police Union of Workers the possibility of veto, in relation to their rosters because sworn police officers have such entitlements fails, without more, to take flight.

99      That it appears common that the respondent agreed that sworn police officers should have these entitlements in return for something given by sworn police officers and the Western Australian Police Union of Workers quickly shows up how unconvincing, without more, the contention is.

100   The difference, once the complex and sophisticated nature of our industrial relations system is understood, cannot be characterised, in itself, as unfair or unreasonable. It is just a difference.

101   The applicants attempt to take the argument beyond a parity argument by saying the employees perform duties that sworn police officers used to perform, that sworn police officers had the entitlements when they did those duties, and that as the employees do not have the entitlements, while doing those same duties, a diminution in entitlements has effectively occurred and that this is unfair and unreasonable.

102   This argument is more against the applicants’ contention than for it. It introduces the history, accepted by all parties, that there is, and was intended to be, differences between the position of a sworn police officer and the position of a police auxiliary officer.

103   That some duties previously performed by sworn police officers were able to be, uncontroversially, carved out to be performed by police auxiliary officers without affecting the core duties of sworn police officers points up the difference between the positions of police auxiliary officer and sworn police officer.

104   They are clearly different positions capable of clear delineation. It is rational, against that background, for the terms and conditions of each occupational group to be different. It would be a surprising result if they were not.

105   Sworn police officers have the entitlement to a vote and veto because they belong to an occupational group which achieved such entitlements. Police auxiliary officers do not belong to that occupational group. It is not to the point that the employees may perform the same duties previously performed by sworn police officers. The significant matter is that the positions of sworn police officers and police auxiliary officers are different positions.

106   However, just because I do not accept the applicants’ arguments does not mean that, as a matter of course, I should find that the alternative provisions proposed by the respondent are fair and reasonable.

107   The respondent says that the roster system in place under the Western Australia Police Auxiliary Officers Industrial Agreement 2013 has given the respondent adequate flexibility in relation to the rostering of employees and that flexibility is important to it, especially in circumstances where the flexibility in the rostering of sworn police officers is affected by the vote and veto entitlements they enjoy.

108   The respondent also says there is no evidence the system has produced any difficulties for the employees and that this is a good indicator of the fairness and reasonableness of the system provided for by the Western Australia Police Auxiliary Officers Industrial Agreement 2013.

109   The applicants say there is some evidence of difficulties because of this exchange between Senior Counsel and a witness for the respondent, Senior Sergeant Christina Janet Johnston, in cross-examination:

“And so the answer to my question a little earlier when you said, “Auxiliary Officers didn’t get a vote”, and you agreed with that, that’s correct, isn’t it? --- Well, unfortunately under the Industrial Agreement they don’t get to vote.

Yes? --- So      

You said, “Unfortunately”, didn’t you? --- Yes. 

Thank you.”

(ts 277)

110   This is not evidence of any difficulty associated with the employees not having a vote.

111   A combination of rejection of the applicants’ arguments in support of their proposed subclause and acceptance that the current provisions give the respondent the flexibility important to it, and which I accept is reasonable, and have not produced difficulties is, in my view, a solid basis to include in the enterprise order the same provisions as those that operated in relation to rostering under the Western Australia Police Auxiliary Officers Industrial Agreement 2013.

112   At [33] of their Outline of Closing Submissions the applicants state “the respondent’s proposed order also includes flexible rostering arrangements that effectively dispense with the need to have any standard rostering arrangements at all.”

113   This submission is expanded upon at [34] to [41].

114   Subject to any other parts of my decision which affect specific parts of the relevant clause I am proposing to effectively “roll over” clause 11 for the reasons given above. I do not understand the respondent to be seeking any changes to the rostering system bearing the characterisation stated at [33] of the Applicant’s Outline of Closing Submissions nor would I be inclined to make any such changes given that a key plank in the respondent’s argument was that the clause has been operating well.

Hours of Duty – Missed Meal Break Payments

115   As I understand the evidence and submissions, all claims for reimbursement for missed meal breaks are subject to approval before payment is made but, after five such claims in any one pay period, a higher level of approval is required before payment is made.

116   In that context the arguments of the parties deal with whether it is fair and reasonable that something different occur in relation to the sixth and following claims for reimbursement as when compared to the first to fifth claims.

117   The applicants say that there is no reason why the sixth claim should trigger a different approach.

118   The respondent says the present system is causing no difficulties.

119   The applicant’s argument based on “alignment” with sworn police officers carries little weight with me for the reasons I gave above under the previous heading.

120   I take as my start point that the evidence did not demonstrate that there was any difference between a first claim and a sixth claim. In my view, if a payment is to be made for a missed meal break, and each payment is triggered by that event, I would need a reason to treat the sixth claim as being different from the first claim.

121   No such reason has been offered.

122   I could speculate that if more than five meal breaks are missed in a pay period the respondent would like this to come to the attention of an appropriately senior officer for review and reaction. This can, however, be achieved by internal reporting arrangements.

123   The need to address whatever problem might be revealed by “excessive” missed meal payments can be dealt with in ways that do not require a different system for the approval for claims beyond the fifth claim.

124   It is fair and reasonable that all missed meal breaks in any given pay period be dealt with by way of the same system or process.

125   Whether the provision I order will cost the respondent anything is highly doubtful but, even if it does, the cost will be minimal and can be avoided by the respondent through effective management.

Overtime

126   The applicants’ argument based on “consistency and parity” with sworn police officers carries little weight with me for the reasons previously given.

127   I add, in relation to the argument under this heading, that the respondent put forward a positive argument against consistency and parity to the effect that sworn police officers have a more generously formulated entitlement to overtime because of the inherently unpredictable nature of their work. I find there is force in that argument.

128   The role of a police auxiliary officer is clearly one having a greater scope for routine than a sworn police officer. Both the respondent and the employees know with a great degree of certainty when a shift will start and finish and the evidence has not established that for this occupational group as a whole the prospect of having to work beyond the end of the shift is more than an insignificant one. 

129   That leaves the argument that it is simply unfair for the employees to be at risk of working an extra 29 minutes on every shift and get nothing.

130   I think in terms of fairness and reasonableness the characterisation of that risk is necessary, or at least appropriate.

131   This is an instance where I do not place store in the provisions for which the respondent contends having being agreed to previously by the Western Australian Police Union of Workers, following a vote of members, but I think it is appropriate to take into account how those provisions have been operating.

132   I hasten to add to my earlier comments on this issue that an employee group complying with the terms of an industrial agreement, without complaint, cannot later be “used against them.” An employee group may believe the terms of an agreement to be operating in an unfair way but, recognising that they agreed to them, may, maturely, suffer their effect until the opportunity arises for change to be agreed or arbitrated upon.

133   But when the employee group says, or it is said on their behalf, that a term which has operated in relation to them for some time is not fair and reasonable because of some risk inherent in the term, I consider I need evidence that allows me to assess the risk and decide whether it is one that needs to be addressed.

134   There is no evidence that there is a significant, or really any, risk that the employees might work for 29 minutes extra every day and “get nothing.” The evidence is, in fact, all the other way. That is, that such a risk has simply not materialised in any significant way across the occupational group while the term sought by the respondent has been in place.

135   The evidence is that the current provision has been “road tested” without producing unfair or unreasonable consequences.

136   I say the same in relation to the issue of whether calculations are done on a daily or weekly basis.

137   This again is an issue where I think it is appropriate to look for evidence of problems that have arisen with the provision advocated for by the respondent given that it has been in operation for some years.

138   I accept, as the applicants say, that just because there have been no complaints does not mean there have been no problems and just because there have been no problems does not mean the provisions cannot be improved upon.

139   However, even accepting those things, given the significance of the change contemplated by the applicants proposed clause I would expect some evidence which competed with the fair assertion, supported by some evidence, that the provisions proposed by the respondent have operated for some time without throwing up individual, let alone systemic, problems. There was no such evidence.

140   In relation to the issue of the term “duly authorised officer” appearing in clause 13, I note that a definition of the term is one of the “agreed” provisions and is in these terms:

“Duly Authorised Officer means an officer or officers appointed in writing by the Employer to have approval authority as provided in the WA Police Delegation Schedule or

other relevant document.”

141   There is no problem with the term as defined applying to approvals for the taking of accumulated time in lieu for the payment of overtime, or at least no problem put to me, and it seems fair and reasonable for the term to be ordered by me to operate in this context.

142   This leaves the matter, said by the applicants to be problematic, that in “unknown or unanticipated situations” it may be appropriate for an employee to work overtime, and the employee may do so, even though it is not possible, before the overtime is worked, for a “duly authorised officer” to approve it.

143   Although the applicants led no evidence of situations in the past which were, before they arose, “unknown or unanticipated” in such a way as to prevent the obtainment of approval before overtime was worked I am inclined to the view that such situations have become more likely now that protective service officers have joined the ranks of the employees.

144   I do not think I am entering the territory of unhelpful speculation to suggest that this is, as things stand, a relevant change in the circumstances I need to consider in making an enterprise order.

145   The nature of the work of protective service officers may lead to overtime needing to be worked when that situation was, at the time the decision needs to be made, previously “unknown and unanticipated.”

146   I do not understand that the applicants suggest that in each instance where overtime is to be worked the approval of the Commissioner of Police needs to be obtained. That would not be fair or reasonable in all of the circumstances. The applicants’ proposed clause, by its simple deletion of the term “duly authorised officer” from clause 13(1)(a), does not achieve its intended purpose.

147   Against the background of my reasons the parties should confer on a clause which has the effect that in an unknown or unauthorised situation a protective service officer may, uncontroversially, work overtime without the approval in advance otherwise necessary for the working of overtime. If the parties cannot agree on a proposed clause I stand ready to draft one for inclusion in the enterprise order.

Shift Rate Allowances

148   The main argument put up by the applicants in support of the proposed clause is “consistency and parity” with sworn police officers. I have already set out why I find that argument unpersuasive.

149   The evidence about staffing levels, workload, adherence to policies and procedures, and stress and fatigue at the Perth Watch House was enough to open up some debate in these proceedings but there was not enough evidence to distil all of the issues and adjudicate upon them. 

150   In any event, these are not the type of issues that would ordinarily be compensated for by a shift allowance, let alone lead to an across the board decision on the appropriate amount of allowances for all employees, including those who do not work at the Perth Watch House. The issues should be explored and, if necessary, dealt with in some other way.

151   Absent any other argument, and in light of the evidence that the term has operated for some years without causing difficulties, I find it difficult to identify something that would make continuation of the arrangements anything but fair and reasonable.

Frontline Allowance

152   The applicants point to what they say are the “additional” skills, responsibilities, risks and hardships associated with the duties of protective service officers. I have taken this as a reference to protective service officers having skills, responsibilities, risks and hardships additional to those of other police auxiliary officers.

153   The argument, in my view, fails to recognise that, or give adequate consideration to, the possibility that different skills, responsibilities, risks and hardships required by positions within occupational groups may be relevant to, and acknowledged by, the classification given to the positions.

154   That a position is classified at level X rather than level Y may be because of the skills, responsibilities, risks and hardships associated with the position.

155   The evidence is that for protective service officers the matters to which the applicants point as a reason for the allowance have already been taken into account in the classification of the position.

156   In these circumstances it would not be fair and reasonable to increase the remuneration of the position by compensating protective service officers for things for which they are already being paid.

Annual Leave

157   It is true, as the applicants argue, that shift workers are “not uncommonly” entitled to an “additional week of annual leave.” However, no evidence was led about that additional week taking a shiftworker up to seven weeks of annual leave.

158   I consider that a term that a shiftworker have seven weeks of annual leave to be a significant matter and I would have expected a party seeking it to present a case reflecting its significance.

159   The applicants have argued that such an entitlement would enhance the working conditions of the employees. This is undoubtedly true but is not in itself an argument that in any way addresses the fairness and reasonableness of the term in all of the circumstances.

160   The applicants also argue that such a term “has the potential to increase industrial harmony.” To this it might be said that speculation on the effect is hardly a good ground upon which to make such a significant change to working conditions and that “industrial harmony” may only be “increased” if that term is understood to mean “the happiness of the employees”, which is clearly too narrow a definition of “industrial harmony”, given all of the circumstances I am obliged to consider.

161   The applicants say the term also has the potential to “decrease attrition rates.” Again I do not find speculation of this kind, without more, persuasive and I am not convinced that “attrition rates” are a concern of mine in setting the terms and conditions which are fair and reasonable to those subject to them.

162   I have found the invocation of the decision of Fielding C in Western Australian Police Union of Workers v Minister for Police (1982) 62 WAIG 1401 unhelpful. The case had its own arguments and its reasons their own internal logic. To say that Fielding C may have granted an extra week of leave if the applicant in that case had confined the claim to those working a rotating roster pattern, and the possibility of that outcome should influence my decision making, is extremely tenuous.

163   No one can know what Fielding C would have done in that circumstance and, even if he had done what the applicants speculate he may have, he would have done so on the evidence and argument before him.

164   I intend to make my decision on the evidence and argument before me and, doing so, I am totally unconvinced that it would be fair and reasonable to give police auxiliary officers who work rotating rosters a seventh week of annual leave.

165   I consider it fair and reasonable that such employees have six weeks of annual leave. Four weeks of annual leave is the community standard and the extra two weeks of leave enjoyed by the police auxiliary officers compensates them fairly and reasonably for working rotating shifts and for working public holidays at their ordinary rate of pay.

166   For the sake of completeness, I repeat that the evidence about staffing levels, workload, adherence to policies and procedures, and stress and fatigue at the Perth Watch House was enough to open up some debate in these proceedings but there was not enough evidence to distil all the issues and adjudicate upon them. 

167   In any event, these are not the type of issues that would sound in an extra week of leave, let alone lead to an across the board decision on the appropriate amount of leave for all employees, including those who do not work at the Perth Watch House.

Section 26 Industrial Relations Act 1979

168   My decision is, in my view, consonant with section 26(1) Industrial Relations Act 1979.

169   I have had regard to the matters referred to in section 26(2A) Industrial Relations Act 1979 and the evidence led, and arguments made, in relation to those matters. As a result of my findings in relation to the substantial merits of claims set out above I do not find there is any basis upon which those matters ought affect my decision making.

Conclusion

170   I respectfully ask that the parties convey to my chambers their attitude to submitting a draft enterprise order reflecting all agreements between them (including those arrived at by way of correspondence provided after the hearing being the applicants “Post Arbitration Matters” document and the last paragraph of the respondent’s letter of 31 July 2017) and the above reasons for decision.

171   If there is a willingness on the part of the parties to undertake this process I will communicate further with the parties in terms of timing.

172   I would ask that the parties inform my Associate, by email by 4pm Friday, 22 September 2017 as to whether they are prepared to submit a draft enterprise order.

Schedule 1

First Applicant:

(1)          Witness statement of Dr Thorsten Stromback* filed 21 March 2017;

(2)          Witness statement of Travis Hagan filed 3 February 2017;

(3)          Witness statement of Michael Philip Chinn* filed 23 June 2017;

(4)          Witness statement of Judith Ann Thompson filed 23 June 2017;

(5)          Witness statement of Alexandra Louise Shanks filed 23 June 2017;

(6)          Witness statement of Francis Robert Whitford* filed 23 June 2017; and

(7)          Witness statement of Paul Craig Hunt* filed 23 June 2017 with use to be made of the attachments filed 3 February 2017 and supplementary witness statement of Paul Craig Hunt filed 27 June 2017.

Respondent:

(1)          Witness statement of Alex Wells filed 21 June 2017;

(2)          Witness statement of Christina Johnston* filed 21 June 2017;

(3)          Witness statement of Kristin Anne Uta Berger* filed 21 June 2017;

(4)          Witness statement of Lysle Cubbage filed 21 June 2017;

(5)          Witness statement of Craig Davis filed 21 June 2017;

(6)          Witness statement of Bradley John Williams filed 21 June 2017;

(7)          Witness statement of Anthony Kannis filed 21 June 2017;

(8)          Witness statement of Tony Clark* filed 21 June 2017 with use to be made of attachments filed 3 March 2017;

(9)          Witness statement of Richard Watson* filed 3 March 2017 and supplementary statement filed 13 June 2017;

(10)      Witness statement of John Domenico Candeloro* filed 3 March 2017 with revised costing June 2017; and

(11)      Witness statement of Lee Clissa filed 3 March 2017.

        Gave viva voce evidence