Appeal against a decision of the Industrial Magistrate in matter no. M 137 of 2016 given on 2 August 2018

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2019 WAIRC 00201

DELIVERED : FRIday, 26 APRIL 2019

FILE NO. : FBA 9 OF 2018

Appellant

AND

Commissioner of Police, Western Australia Police

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Magistrates Court

Coram : Industrial Magistrate D Scaddan

Citation : 2018 WAIRC 00679

File No : M 137/2016

Catchwords : Industrial Law (WA) - Whether the learned Magistrate erred in law in dismissing the appellant's claim that the respondent contravened clause 17(12) of the Western Australia Police Industrial Agreement - Whether the appellant is entitled to be paid the Forensic Qualifications Allowance after transfer of position - Principles applied - The learned Magistrate did not err in interpreting clause 17(12) - Respondent has overarching discretion as to whether or not to pay Forensic Qualifications Allowance - appeal dismissed.

Legislation : Industrial Relations Act 1979 (WA)

  Interpretation Act 1984 (WA)

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr A Crocker of counsel

Respondent : Mr J Carroll of counsel

Solicitors:

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Fedec v Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595

Seamen’s Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444

Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357

Vincent v Department of Finance [2016] WAIRC 00035; (2016) 96 WAIG 132

Case(s) also cited:

Anderson v Roger Seller & Myhill Pty Ltd (2007) 87 WAIG 289

City of Wanneroo v Australian Municipal, Administrative, Clerical Services Union [2006] FCA 813

Director General, Department of Education v United Voice WA [2013] WASCA 287

Fedec v Minister for Corrective Services (2017) 87 WAIG 1595

Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182

Pearce v Mr Christopher Dawson, Commissioner of Police, Western Australia Police [2018] WAIRC 679

R v Harrison; Ex Parte Hames [2015] WASC 247

Reasons for Decision

KENNER SC:

Brief background

1         The Western Australian Police Force has a large Forensics Division responsible for forensics. Its structure is quite complex. There are three broad subdivisions within the Forensics Division: Forensics Field Operations (FFO); Analysis and Regional Coordination; and Technology and Crime Services. Within these subdivisions, are various separate units responsible for discrete specialist and more general forensic work. There are presently twelve business units within the division. The FFO is responsible for major crime scene investigation. There are three major disciplines in forensics: Fingerprint Identification; Crime Scene Investigation; and Firearms Investigation. The latter two disciplines are in the FFO. The main position in these areas is that of Forensics Investigations Officer (FIO). Separately within each metropolitan policing district, there are District Forensic Investigation Officers (DFIO).

2         The DFIO positions in the main, respond to the investigation of volume crime offences. They are not part of the Forensics Division. The forensic response with the Police Force to crime is ranked according to four categories. These are Category A-major crime (fatal); Category B-major crime (non-fatal); Category C-serious crime (forensics response is coordinated by FFO) and Category D-volume crime (DFIO officers only). There is also what is known as “surge capacity”, where, because of the demands on the FFO at any given time, DFIO officers are called upon to assist in crime scene investigation in relation to more serious crimes.

3         The appellant, Senior Constable Pearce, commenced his policing career in 1990 as a general duties officer. He continued in general policing in various posts until March 2005 when Senior Constable Pearce was appointed as a FIO. He was initially based in the Central Metropolitan District Forensic Information Office. Later, in October 2006, Senior Constable Pearce moved to the FFO. As at March 2018, Senior Constable Pearce had 13 years’ experience as a forensics officer. In terms of formal qualifications, Senior Constable Pearce has a Diploma of Public Safety (Policing) awarded in 2003, a Diploma of Public Safety (Forensic Investigation) (Crime Scene) awarded in 2012 and a Bachelor of Science (Forensic Investigation-Crime Scene Investigation) conferred in August 2012.

A new industrial agreement is made

4         In December 2006, an industrial agreement, known as the Western Australian Police Industrial Agreement 2006 was registered by the Commission. This Agreement contained cl 17(12), which said officers working in the forensics field, subject to satisfying specified criteria, could be paid, with the respondent’s approval, an allowance of 10% of their base salary. The clause has been replicated in subsequent agreements, with the 2014 Agreement being in force at the material times.  It is convenient to set out this clause now as it will be referred to later in these reasons. Clause 17(12) was in the following terms:

(12) Forensic Qualifications Allowance

(a) Subject to the Employer's approval, an employee who has:

(i) successfully completed a qualification at Diploma level or above which is a mandatory requirement for the employees position; and

(ii) prepared or delivered expert evidence used by the courts; and

(iii) four years continuous experience in the forensic field;

will receive payment of 10% of the base salary rate of the employee's substantive rank.

(b) An employee must be working in the field in which the Employer has assessed them to be eligible for the Forensic Qualifications Allowance to receive payment of the allowance.

(c) Sole discretion regarding determination and assessment for eligibility of Forensic Qualifications Allowance remains with the Employer

5         Clause 17 of the Agreement makes provision for other allowances to be paid too. These will also be referred to later.

The allowance is paid

6         Senior Constable Pearce applied for and was paid the Forensic Qualifications Allowance (FQA) effective from August 2010. It was considered at that time by the respondent, that Senior Constable Pearce was working in a position (that being a FIO with position description PD1005) that mandated the possession of the requisite qualification and that the other specified criteria were also met.

Senior Constable Pearce is transferred

7         In March 2015, because of the respondent’s tenure policy, which limits the amount of time an officer can remain in one working area, Senior Constable Pearce was required to move. He relocated to a DFIO position at Constable rank, in the Crime Forensic Investigation Office (CFIO) in April 2015. This position, (with position description PD1400) was considered by the Commissioner of Police to not attract the payment of the FQA. As a result, the Commissioner of Police ceased paying it to Senior Constable Pearce from April 2015. Senior Constable Pearce was dissatisfied with this. After an unsuccessful internal grievance process, Senior Constable Pearce commenced a claim in the Industrial Magistrates Court under s 83 of the Act, seeking orders for the resumption of payment of the FQA and the recovery of outstanding prior amounts.

Industrial Magistrates Court proceedings

8         Proceedings before the court alleged that the Commissioner of Police had contravened or failed to comply with cl 17(12) of the Agreement. Senior Constable Pearce maintained that the Commissioner of Police had contravened cl 17(12) because the two positions occupied by him up to April 2015, (PD1005) and thereafter, (PD1400), were substantially the same in terms of the work performed and importantly for present purposes, contained mandatory qualification requirements which Senior Constable Pearce maintained were almost identical. Senior Constable Pearce also referred to and relied upon the “Guidelines of Acceptable Practice” an internal document of the respondent, first made in 2014 and revised in March 2015, containing guidance in applying cl 17(12) of the Agreement. He maintained these Guidelines gave him an entitlement to continue to receive the allowance on his transfer from the FFO to the CFIO.

9         On behalf of the respondent, it was contended before the court that Senior Constable Pearce, being in a DFIO position (PD1400), was not required to hold, as a mandatory qualification, the Diploma level qualification or above, specified by cl 17(12)(a)(i) of the Agreement. Moreover, Senior Constable Pearce was not, in that position, working in a “field” assessed by the Commissioner of Police, in accordance with his sole discretion, as attracting the payment of an FQA. The Commissioner of Police further maintained that the only entitlement conferred on an employee by cl 17(12), was for the Commissioner of Police to properly consider a request for payment of the allowance and in doing so, to act reasonably. Additionally, the Commissioner of Police contended that the court had no jurisdiction under s 83 of the Act to order the resumption of payment of an FQA or its back payment. The court’s jurisdiction is limited to a determination as to whether the Commissioner of Police has met his obligations under cl 17(12). 

10      The learned Industrial Magistrate generally found favour with the respondent’s arguments. Her Honour concluded that cl 17(12) of the Agreement did not confer a right to the payment of the FQA but rather, a right to have the Commissioner of Police properly and reasonably consider an officer’s claim for payment of the allowance. Regardless of whether an officer met the criteria in cl 17(12)(a), the learned Industrial Magistrate concluded that an overarching discretion resided with the Commissioner of Police as to whether to decide to pay an allowance. Furthermore, the court concluded that on its proper construction, s 83 of the Act did not authorise an order to require the Commissioner of Police to pay Senior Constable Pearce as claimed. Her Honour held that the court’s powers are limited to those specified in s 83(4), which enables a caution or a penalty to be imposed. The court may not substitute its view for that of the respondent, but rather, may only consider whether the Commissioner of Police has done what cl 17(12) of the Agreement requires him to do. Furthermore, the learned Industrial Magistrate concluded that s 83(5), which empowers the court to make orders for an injunction, to prevent further contraventions, was not applicable to the present circumstances.

11      In any event, on the facts, her Honour was not persuaded, on all the evidence, that Senior Constable Pearce had demonstrated that his position had a mandatory qualification requirement at the material time or that he worked in a field assessed by the Commissioner of Police as being eligible for payment of an FQA. Even applying the respondent’s Guidelines, the learned Industrial Magistrate concluded that Senior Constable Pearce was not entitled to receive an allowance. The court was not persuaded that the Commissioner of Police had failed to properly exercise his discretion, in the sense that he had failed to act reasonably. The application was dismissed.

Appeal to the Full Bench

12      Senior Constable Pearce now appeals to the Full Bench. There is one ground of appeal, the particulars of which (as amended at the commencement of the hearing) are in the following terms:

GROUND OF APPEAL

The learned Magistrate erred in law in dismissing the appellant’s claim.

PARTICULARS

(a)   On and from 20 April 2015, the respondent has contravened Clause 17(12) of the Western Australia Police Industrial Agreement 2009 by not paying the Forensic Qualification Allowance to the appellant upon his transfer as a Forensic Investigation Officer in the Forensic Field Operations, to a District Forensic Investigation Officer in the Crime Forensic Investigations Office.

(b)   It was an error to determine the issue of whether a position has a mandatory qualification by ignoring the PD and looking to an internal document, namely, the 'Approved List'.

Reasons [84], [85] and [89].

Submissions [9], [10] and [23] - [33].

(c)   It was an error to conclude that the Commissioner of Police had an overarching discretion whether or not to grant the FQA.

Reasons [36] - [47].

Submissions [12] - [16].

(d)   It was an error to conclude that the Guidelines of Acceptable Practice did not ensure Mr Pearce remained eligible for the FQA.

Reasons [106] - [110].

Submissions [17] - [22] and [34] - [37].

REMEDIES SOUGHT

Mr Pearce seeks the following-

1. The appeal be upheld;

2. The decision to be varied such that, subject to point 1:

a. The Respondent to forthwith resume payment of the Forensic Qualifications Allowance to Mr Pearce;

b. The Respondent to provide payment to Mr Pearce in respect of all outstanding Forensic Qualifications Allowance payments for the period from 20 April 2015 to date;

c. The Respondent to provide payment of interest to Mr Pearce on the outstanding sum of payments referred to at subparagraph (b) above; and

d. The Respondent to pay a penalty in respect of each breach of clause 17(12).

Issues arising on the appeal

13      In addition to the amended particulars, two additional matters are raised by the Commissioner of Police in his written submissions on the appeal. They are that from April 2015, as a DFIO, Senior Sergeant Pearce did not work in “the field” assessed as eligible to receive the FQA. Secondly, advanced effectively as a notice of contention, if the Full Bench considers that the learned Industrial Magistrate erred in concluding that cl 17(12) conferred an overriding discretion on the Commissioner of Police, then cl 17(12)(a)(ii), in relation to the preparation or delivery of expert evidence, whilst not dealt with by the court, was not met in this case. Thus, the issues arising are:

(a)     Subject to par (e), what is the proper construction of cl 17(12) of the Agreement?

(b)    For the purposes of cl 17(12)(a)(i) how is the “mandatory requirement” to be determined?

(c)     What effect do the “Guidelines of Acceptable Practice” have on the determination of a claim for an FQA?

(d)    Did Senior Sergeant Pearce work in the relevant “field” as approved by the Commissioner of Police?

(e)     Despite the criteria specified in cl 17(12)(a) of the Agreement being met, does the Commissioner of Police have an overarching discretion to pay or not pay the FQA?

Consideration

Relevant principles of interpretation

14      These are not in dispute. Recently, the Full Bench in Fedec v Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595 observed at pars 21-23:

21 The approach that is to be applied when interpreting an industrial agreement is well established. This is:

(a) Industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.

(b) The task of construction of an industrial agreement is to be approached in a way that allows for a generous construction: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362.

(c) Industrial agreements are made for industries in light of the customs and working conditions of each industry and must not be interpreted in a vacuum divorced from industrial realities: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498; City of Wanneroo v Holmes (378 - 379) (French J).

22 The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement. In Re Harrison; Ex parte Hames [2015] WASC 247, Beech J said [50] - [51]:

The general principles relevant to the proper construction of instruments are well-known. In summary:

(1) the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;

(2) it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;

(3) the objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;

(4) the apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;

(5) an instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ; and

(6) an instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation (Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35] (French CJ, Hayne, Crennan & Kiefel JJ); Kidd v The State of Western Australia [2014] WASC 99 [122]; Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 [106] - [112]; Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28 [55] (Martin CJ, Pullin & Murphy JJA agreeing)).

These general principles apply in the construction of an industrial agreement (Director General, Department of Education v United Voice WA [2013] WASCA 287 [18] - [20] (Pullin J, Le Miere J agreeing), [83] (Buss J)). The industrial character and purpose of an industrial agreement is part of the context in which it is to be construed (Amcor Ltd v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 222 CLR 241 [2] (Gleeson CJ and McHugh J); Director General v United Voice [81]; see also Amcor v CFMEU 66 (Kirby J), 129 - 130 (Callinan J)).

23 To these principles, the following observations made by Pullin J in Director General, Department of Education v United Voice WA [2013] WASCA 287; (2013) 94 WAIG 1 [18] - [19] should be added:

The Agreement has to be construed to determine what the intention of the parties was at the time the Agreement was entered into. This has to be determined by ascertaining what a reasonable person would have understood the words of the Agreement to mean taking into account the text, the surrounding circumstances known to the parties and the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40]; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 [22].

Surrounding circumstances may only be taken into account if the ordinary meaning of the words used by the parties is ambiguous or susceptible of more than one meaning: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 352; McCourt v Cranston [2012] WASCA 60 [23].

15      I adopt and apply those principles for the purposes of the disposition of the present appeal.

Construction of cl 17(12) of the Agreement

16      It appeared common ground that the proper construction of cl 17(12) of the Agreement turned on the issue as to whether the clause conferred a right to receive the payment of the FQA if the conditions in the clause are met or, alternatively, whether it only provides an ability as a matter of procedure, for an employee’s claim to be assessed by the Commissioner of Police and a determination made as an exercise of the Commissioner of Police’s discretion. 

17      Senior Constable Pearce submitted that the three criteria specified in cl 17(12)(a) and the criteria specified in cl 17(12)(b) were foundational. All four of these criteria must be met. Leaving aside the issue of how the “mandatory requirement” issue is to be satisfied, which will be dealt with below, Senior Constable Pearce submitted that it is a matter for the Commissioner of Police to determine whether a qualification should be a mandatory requirement in relation to a position. The sole discretion rests with the Commissioner of Police in this respect. Furthermore, sole discretion also rests with the Commissioner of Police in relation to sub pars (ii) and (iii), as to satisfaction of the expert evidence criteria and whether the employee has had the necessary continuous experience. As to these two criteria, Senior Constable Pearce contended that they are criteria which are peculiar to an individual employee and once met, they are met for all time. 

18      As to the “Sole discretion” of the Commissioner of Police in cl 17(12)(c), Senior Sergeant Pearce contended that this is limited to the assessment and determination of whether an employee seeking the payment of the FQA, has met the four essential criteria just referred to. It is in that sense, and in that sense only, that the “Sole discretion” is to be exercised. Once having made that assessment, Senior Constable Pearce submitted that assessment is not able to be challenged. On the larger issue of the scope of cl 17(12)(c), Senior Constable Pearce contended that it does not provide a broad or overarching discretion for the Commissioner of Police to refuse a claim for payment of the FQA, in circumstances where the officer concerned has satisfied the four eligibility criteria referred to above. It was noted that the introductory part to cl 17(12)(a) makes no express reference to par (c) and neither are the words “will receive payment of …” at the end of the par, qualified in any way by referring to the discretion in par (c) either. 

19      The Commissioner of Police took a quite different view. He submitted that firstly, the nature of cl 17(12) of the Agreement, is a clause of a very different kind to other allowance provisions contained in cl 17 generally. Attention was drawn to cls 17(1) to 17(5), cls 17(8) to 17(11), and cls 17(13) to 17(16), which refer to the payment of allowances of various kinds. It was submitted by the Commissioner of Police that in clear contrast to the language used in cl 17(12), the language used in these subclauses is that of entitlement. Words such as “shall” and “will”, indicate a mandatory entitlement to the payment of the respective allowance, subject to the conditions of the provision being met. This is to be contrasted with the language of cl 17(12), which contains the introductory words to cl 17(12)(a) “Subject to the employer’s approval …” and the overarching discretionary provision in cl 17(12)(c).

20      The Commissioner of Police therefore contended that in accordance with the ordinary and natural meaning of the text in cl 17(12), the reference to “will receive” in cl 17(12)(a) is qualified by the introductory words of the subpar and par (c).  It was contended that regardless of whether the criteria in cl 17(12)(a) are met, the Commissioner of Police has an overarching discretion to decide whether an employee should be paid the FQA. The Commissioner of Police contended that if this were not so, then the words used would have to be effectively disregarded and would have been left with no work to do. This would be completely at odds with the ordinary textual reading of the clause.

21      It was on this basis that the Commissioner of Police submitted that the learned Industrial Magistrate made no error in her interpretation of cl 17(12) of the Agreement.

22      Clause 17(12) is in that part of the Agreement dealing with allowances generally.  It is headed “Additional Allowances”.  The clause covers a variety of allowances that are specific to policing. The allowances specified in cl 17(1) to cl 17(13), excluding cl 17(12), cover a range of different subject matter. Many of them provide for the payment of an allowance for being a member of a specific policing unit or engaging in a specific activity. For example, these include investigators attached to the Internal Affairs Unit and members of the Tactical Response Group in cls 17(14) and (15), and officers engaged in covert police operations in cl 17(17).  A common feature of the allowances prescribed by cl 17, except cl 17(12), is that attachment to the specific unit or the engagement in the specific activity as prescribed, without more, entitled the officer to payment of the relevant allowance. Without exception, the language used in the other subclauses of cl 17 of the Agreement in relation to the various allowances specified, was that of entitlement. As identified by the Commissioner of Police in his submissions, the subclauses variously refer to an employee that “shall” or “will” be entitled to the various allowances.

23      This contrasts with the language of cl 17(12), as set out above.  It is immediately apparent that the parties to the Agreement drafted cl 17(12) in quite different terms to the other allowance provisions contained in cl 17 generally. The contrast with those subclauses preceding and succeeding cl 17(12), in terms of the language used, is stark.  Firstly, the clause commences with the words “Subject to the employer’s approval …”. One is therefore immediately put on notice that what follows is qualified in an important way. There follows further in cls 17(12)(a)(i) to (iii), necessary preconditions, as essential criteria, to be met before consideration can be given by the employer to the payment of the FQA.  The use of the word “and” in (i) to (iii), makes it clear that these criteria are cumulative.

24      By cl 17(12)(b), is a further mandatory requirement for the employee to be working in “the field” as assessed by the employer, to be paid the FQA. Whilst it is not entirely clear, I tend to the view that “the field” referred to in par (b), is not the same reference to “the forensic field” as used in par (a)(iii). Consistent with the fact that pars (a)(i) to (iii) are criteria particular to the individual employee, and “the field” in par (b) is determined by the employer and may change, the “forensic field” in par (a)(iii) is in my view, to be regarded as experience in the general area of forensics in the Police Force, as a recognised area of policing activity. This may include the area relative to the qualification held by the officer.

25      On its ordinary and natural meaning, par (c) seems to deal with two issues.  First, is the issue of “assessment for eligibility of the FQA”. The second deals with a “determination”. There are to be read conjunctively. I consider these words, in context, should be understood to mean the process of considering and deciding an employee’s eligibility to receive the FQA.  Again, reading cl 17(12) in context, I consider this means and refers to the “employer’s approval” as set out in par (a).  In their ordinary and natural meaning, “Sole” means “2. without companions; alone, solitary … 3. being or consisting of, one person only … 4. With no other person or persons …”. Further, “discretion” relevantly means “… 3. Liberty or power of deciding or of acting according to one’s own judgement; uncontrolled power of disposal … in law, the power to decide …”: Shorter Oxford English Dictionary.

26      Furthermore, the concluding words in par (c) contain reference to “remains with the employer”.  In context, “remain”, in the sense used means “2. To be left over and above what has already been done or dealt with in some way …” Shorter Oxford English Dictionary. Taken together, I consider that the text of par (c), means that after all else has been done as required by cl 17(12) and an employee meets the criteria in par (a)(i) to (iii) and works in a field approved by the employer under par (b), the authority to consider and decide an employee’s request to be paid the FQA rests with the employer and no other person. Read as a whole, and in accordance with the ordinary meaning of the words used in the text, for these reasons, I cannot accept the contention of the appellant that par (c) is limited only to the ascertainment of the criterion in par (a)(i) to (iii), such that if the criteria are met, an employee is entitled to be paid, without more, a FQA and that the Commissioner of Police does not have an overarching discretion to grant or refuse a request for payment. To so conclude would be to read down par (c), also read with the introductory words to par (a), to such an extent to render it almost otiose. In my view, the breadth of the words used by the draftsperson in par (c), as I have endeavoured to explain above, is an indication that the parties to the Agreement must, objectively considered, be taken to have intended to confer the ultimate decision-making prerogative to approve the payment of the FQA, on the Commissioner of Police.

27      This approach to the interpretation of cl 17(12) is consistent with the language used in the text. It involves no absurdity or repugnancy with the rest of cl 17 of the Agreement. On the contrary, when comparing the language used, it is entirely consistent with it. Accordingly, the conclusions reached by the learned Industrial Magistrate at pars 36 to 47 of her reasons (AB 70-71), were correct. However, this does not mean that the Commissioner of Police’s discretion is unfettered. In cases where a person is given a discretion in relation to a subject matter, the discretion is to be exercised reasonably and not arbitrarily or capriciously: Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357 per Allsop P (Beazley JA agreeing) at pars 5 and 6.

28      I turn now to the particulars of the ground of appeal, except for par (c) which has been canvassed above. 

How is “a mandatory requirement” to be determined?

29      This is ultimately a question of fact. The learned Industrial Magistrate considered the oral and documentary evidence in relation to both positions held by Senior Constable Pearce, by a comparison of PD1005 and the duties of the FIO position, compared with the DFIO position subject to PD1400. Her Honour accepted that at least prior to November 2017, when both position descriptions were amended, that both had very similar if not the same provisions for the essential work- related requirement of the achievement of the diploma or higher qualification within four years (par 8; AB 76). However, despite this, the learned Industrial Magistrate was also of the view that other aspects of the two positions were different. Also, her Honour noted that from 2014, on the evidence of Senior Sergeant Wells, and Ms Mashiah, a Workforce Consultant within Personnel Services Division of the Commissioner of Police, positions within the Forensics Division were under review.  

30      Ms Mashiah gave evidence at first instance in relation to the compilation and use of the “Approved List”. This was a list, which the evidence established was created in 2014, that was maintained by human resources staff of the Commissioner of Police.  It contained a list of positions that the Commissioner of Police considered were eligible to attract payment of the FQA (pars 28-34 affidavit; AB 535-546). Ms Mashiah’s evidence was that positions on the Approved List are positions that have been determined to have the mandatory qualification requirement, to be eligible to receive the FQA (par 33 affidavit; AB 536).  

31      Senior Sergeant Wells explained the rationale for the FQA as he saw it (AB 578).  He said the FQA was paid to officers as an incentive for them to obtain the Diploma qualification, in the position specifying the qualification as a mandatory requirement. He outlined some differences in the positions of FIO in PD 1005 and the DFIO in PD 1400. Senior Sergeant Wells referred to those officers occupying PD1005 as being required to interpret and analyse forensic evidence and may be required to deliver this as expert evidence in court. Senior Sergeant Wells also said that officers in the Crime Scene Investigation field of the FFO, comprise six specialist teams, each with a Sergeant and five constables. The holders of the constable positions are in position PD1005. There are also specialist sub disciplines, that provide additional support. They also are all in position PD 1005 for those at constable rank (affidavit pars 17-30; AB 575-577).

32      The learned Industrial Magistrate concluded that the position descriptions form no part of cl 17(12) and that there is no reference to any position in the clause. There are material differences in the two positions in PD 1005 and PD 1400. Her Honour concluded that, consistent with her approach to the interpretation of cl 17(12), that it was for the Commissioner of Police to decide the eligibility for the payment of the FQA. At pars 86-90 of her reasons, her Honour concluded as follows:

86 Mr Pearce submits that, in relation to subclause 12(a)(i), greater weight should be given to the essential work-related requirement of PD 1400 and little if any relevance can be attributed to the list of approved positions with a mandatory qualification requirement.

87 I am unable to accept that submission.  While the PD 1005 and PD 1400 have in their respective PD documents the same or at least very similar essential work-related requirement of commitment to forensic division training and achieving the Diploma of Public Safety within four years, it is apparent from the other content, roles and responsibilities of the positions are different.

88 Further, the evidence demonstrates that in 2014 the positions were under review, information which was conveyed to Mr Pearce in August 2014.

89 The PDs do no more than inform an employee of the roles and responsibilities of a position and indicate criteria of suitability for the position.  In relation to cl 17(12) of the Agreement, the PD forms no part of the clause and no reference is made to any position as eligible for the FQA.  In that sense, as stated in cl 17(12), it is a matter for the Commissioner to determine eligibility for payment of the FQA.

90 However, when regard is had to the PDs for PD 1005 and PD 1400 and the evidence, it is apparent there are differences between the two roles, both in form and in substance:

 the role of the work unit and investigation and forensic response between PD 1005 and PD 1400 contained in the PDs is different;

 Ms Freegard states her primary role as a DFIO is responding to volume crime scenes and undertaking an investigation33.  She provides assistance to FFO with major crime attendances if they are unavailable or on an ad hoc basis34.  The differences between FIO and DFIO includes FFO attends primarily to major crime and DFIO attends to volume crime.  The major difference depends on the seriousness of the crime35;

 Mr Markham states major crime is classified as homicide and sex offences.  By way of example, serious crime is classified as attempted murder, wounding offences, armed robberies, large drug investigations and aggravated burglaries.  By way of example, volume crime is classified as frequent offences including assaults, stealing, car theft, burglaries and robberies36.  DFIO role is primarily to provide forensic response to volume crime scenes37.  On a weekly basis, approximately, FFO operations manager will call upon him to assist with category B and C incidents and on rare occasions Category A incidents38.  He is aware that Mr Pearce’s role is working with Category B and C incidents39.  In respect of this last assertion I will comment further in relation to the spreadsheet compiled by Mr Pearce; Senior Sergeant Wells states officers occupying PD 1005 are mandated to investigate Category A, B, C and D crimes as required (that is, all levels of crime including volume crime)40.  Surge capacity happens infrequently and officers are tasked to undertake basic roles and not higher level roles41.  Officers occupying PD 1400 investigate principally Category C and D crimes;

 the spreadsheet compiled by Mr Pearce shows work undertaken from May 2014 to May 201642.  From May 2014 to May 2015 Mr Pearce completed Category A crimes (homicide) while he was employed as a FIO in FFO.  After his transfer to DFIO on 20 April 2015, save for May 2015, he has not completed any Category A crimes.  Further, he has not completed any Category B crimes since December 2014 (contrary to Mr Markham’s evidence that Mr Pearce’s role is working with Category B and C incidents)43.  According to Mr Pearce’s spreadsheet he mainly completes one type of Category C crime, being manufacturing a prohibited drug, and Category D crimes, which for Category D crimes has been reasonably consistent from May 2014 to May 2016.  This is consistent with Senior Sergeant Wells’ evidence in respect of the role of the DFIOs with PD 1400.

33      As noted above, her Honour concluded that there is a distinction between the DFIO positions, with their emphasis on volume crime and officers requiring general rather than specific forensic knowledge and skills, and the FFO positions, with their emphasis on major crime and the exercise of more specialist skills and knowledge. These findings were clearly open on the evidence, in particular that of Officer Freegard (AB 552-560) and Sergeant Markham (AB563-569), both of whom gave evidence on behalf of Senior Sergeant Pearce. This evidence was also confirmed by Senior Sergeant Wells, the officer in charge of the FFO at the time of the hearing at first instance (AB 572-583).

34      Senior Constable Pearce submitted that the learned Industrial Magistrate was in error in rejecting his contention that greater weight should be accorded to the position descriptions and little, if any weight, should have been given to the “Approved List”. Senior Sergeant Pearce contended that the position descriptions should have been relied on by the court as the best evidence of whether a position met the mandatory qualification requirement for the purposes of cl 17(12)(a)(i). Furthermore, Senior Constable Pearce maintained that the learned Industrial Magistrate not only did not have regard to the position descriptions when she should have, but her Honour erroneously placed reliance on the Approved List, especially as the evidence demonstrated that the list itself was, even if any weight could be placed on it, inaccurate.

35      Whilst the parties at first instance were in dispute as to the competing merits of PD1005 and PD1400 in relation to the requirement for the successful completion of a qualification at Diploma level or above, on one view of the position descriptions, neither position description, at the material times, specified this. Position description 1005 (AB 369-372) in relation to “Specialist Essential Work Related Requirements”, refers to achieving “the Diploma of Public Safety (Forensic Investigation) within four years”. Prior to November 2017, the date when PD1400 was said to have been updated, it contained the same qualification provision (AB 373-377).

36      However, as raised by the Full Bench in the hearing of the appeal, cl 17(12)(a)(i) of the Agreement, as a matter of plain meaning, arguably requires the possession of a Diploma level or above qualification, which qualification is of itself, expressed as a mandatory requirement for the employee’s position. The subclause does not speak of progression towards such a qualification and at no material time, on the evidence, did either PD1005 or PD1400, contain a requirement to hold a Diploma level or above qualification, as a condition of appointment. This requirement, on the plain language of cl 17(12)(a)(i), appeared to only be satisfied in the updated position description for PD1005, registered in November 2017 (AB 257). This specified, as an essential requirement, the possession of a Diploma or higher qualification, as a condition of appointment to the position.

37      Notwithstanding this, as neither party raised this issue at first instance, it cannot be considered further by the Full Bench on this appeal.

38      It must be borne in mind that the Agreement did not come into effect until December 2006. This was well before the compilation of the so called “Approved List” or for that matter, the Guidelines. It must also be borne in mind that the proceedings at first instance were concerned with whether the Commissioner of Police had contravened or failed to comply with cl 17(12) of the Agreement and not whether there had been a contravention or failure to comply with the Approved List or the Guidelines.

39      The question that arises is how the criteria “mandatory requirement for the employee’s position” was to be established?  More specifically, as at the time of the making of the Agreement, and its successors with the same clause as cl 17(12), in this case in 2014, in applying the principles concerning the interpretation of industrial agreements, how would a reasonable person, in the position of the parties, objectively considered, be satisfied that this criterion was met?

40      The object of cl 17(12)(a)(i) is the employee’s “position”. The object of pars (a)(ii) and (iii) are attributes of the individual officer. A position description is a formal business record of the Commissioner of Police that sets out, at length, the relevant position in detail; its objective; reporting relationships; a statement of the values of the organisation; the role of the particular work unit and decision making responsibilities of the position; the accountabilities and tasks of the position; and importantly, for present purposes, the work related requirements of the position. This aspect covers both the essential (or mandatory) and desirable work-related requirements and other prerequisites. Many examples of position descriptions, including PD1005 and PD1400, were in evidence (AB 589-737).

41      It must be taken to be assumed, that the parties to the Agreement, the Police Union and the Commissioner of Police, at the time that it was made, would know that the Police Force is a large and complex organisation. It has a sophisticated employee relations function. It would also be reasonable to objectively conclude, that the parties to the Agreement would be aware of the nature and function of a position description in a large organisation. As an official record of the Commissioner of Police a position description serves the important purpose of recruitment, selection and the appointment of officers. It is more than a description of the tasks of a job for an employee. A position description also serves an important purpose in relation to performance management and discipline and the determination of any claim of sub-standard performance.

42      A person who sought appointment at the material time to the position of an FIO in the Forensics Division, from September 2010, as an external candidate for appointment, would be required to have their application for appointment considered relative to the requirements of the job, as set out in the position description, in this case PD1005. One of those requirements, as an essential requirement, was a commitment to achieving the Diploma qualification within four years. This same requirement applied to the position of a DFIO as at October 2011, in PD1400. If the question was to be asked of a person in the position of the parties to the Agreement at the time it was made, “what are the requirements of this particular job?”, I have no doubt that the answer would be, as a first step, to look at the position description. I do not consider that the first response of such a person would be to obtain the views from supervising officers in whatever division of the Police Force, relevant to the question posed, by way of a general forensic enquiry as to the requirements of the job.

43      Furthermore, a close examination of PD1005 and PD1400 is instructive in this respect. On the last page of PD1005 and PD1400, as at September 2010 and October 2011 respectively, is a section entitled “CERTIFICATION” there follows, immediately under the heading, the words:

We have carefully reviewed this Position Description and are satisfied that it "fully and accurately describes the Western Australia Police requirements of the position 

(My emphasis)

44      This declaration is then followed by the words “Certified By” and three signatories, one from the workplace relations branch; one from the head of the Forensic Division; and the final signatory being an Assistant Commissioner.  The Assistant Commissioner signatory has, to the left of their signature words in the following terms “Portfolio/Directorate Head (pre-requisite/specialist criteria noted and agreed)” (My emphasis).

45      In my view, this evidence is the best evidence of the requirements of a position.  It is expressly endorsed as such at a most senior level of the Police Force, including at the head of Division level, in this case Forensics. Whilst it may be the case that a particular position is under review from time to time, unless and until any such changes to the position are endorsed and certified in the manner set out in the certification section of the position description, they do not in my view, reflect and formally record the “requirements of the position” generally and specifically, for the purposes of cl 17(12)(a)(i) of the Agreement. In this case, Ms Mashiah confirmed that the changes proposed to PD1005 and PD1400, did not come into effect until November 2017 (AB 534).

46      There was considerable focus in the proceedings at first instance on the evidence of Senior Sergeant Wells and Ms Mashiah, at about the time of Senior Constable Pearce’s transfer from the FIO to the DFIO position in April 2015.  The evidence of Senior Sergeant Wells was that he was asked in 2014, to review each position description in the Forensics Division, in line with “The Australian and New Zealand Police Advisory Agency Education and Training Guidelines for Forensic Investigation 2014”. His then task was to ensure that all positions within the Division that required study towards a forensic qualification contained this (par 62-64 affidavit; AB 581). Senior Sergeant Wells reviewed PD1005 and the redrafted position description was formally adopted in 2017 (par 65 affidavit; AB 581).

47      In cross-examination, Senior Sergeant Wells was asked about advice he had given to Superintendent Robertson of the Forensic Division, concerning Senior Constable Pearce’s grievance in relation to the FQA. On 28 July 2015, in an email to Senior Constable Pearce, Superintendent Robertson informed him that as in attached emails, Senior Constable Pearce’s grievance would be taken no further (annexure MP15 to Senior Constable Pearce’s affidavit; AB 203-204).  Superintendent Robertson’s email attached an email from Senior Sergeant Wells to himself, which was by way of advice to Superintendent Robertson in relation to Senior Constable Pearce’s FQA claim. Senior Sergeant Wells referred to contact he had received from the employee relations branch, seeking information as to PD1400 and whether it had any mandatory requirement for forensics qualifications. Senior Sergeant Wells said he informed employee relations that “it was not a specialist position description and did not have any mandatory qualification requirement” (AB 204). In his oral testimony, when this was brought to his attention, Senior Sergeant Wells confirmed this was his then advice to Superintendent Robertson.

48      When PD1400 was put to him in cross-examination, which at the time did contain a mandatory qualification requirement, as at the time of his email advice to Superintendent Robertson in July 2015, Senior Sergeant Wells said that he had commenced a redraft of it based on the National Requirements. He said that he forwarded this to employee relations. Senior Sergeant Wells said that it was his belief that position PD1400 did not have a mandatory qualification requirement but accepted, when it was put to him, that at the time it was the same as PD1005 (74-78TFI). It was at the hearing at first instance, that Senior Sergeant Wells seems to have appreciated for the first time, that in fact, at the time he gave this advice, PD1005 and PD1400 were in the same terms in relation to the mandatory qualification requirement (82TFI).

49      The issue of a review of position descriptions was also the subject of evidence from Ms Mashiah. She referred to an email to Senior Constable Pearce in relation to the FQA of 5 August 2014.  Ms Mashiah said she informed Senior Constable Pearce of the review of position descriptions which was then underway, “which may have an impact on their eligibility for the forensics qualification allowance” (pars 23-24 affidavit; AB 448 and 535). Ms Mashiah referred to the fact that position descriptions are “signed off at executive level and any changes made to them are undertaken in conjunction with the relevant areas to ensure that position descriptions correctly reflect the requirements of the role” (AB448).  Ms Mashiah went on to say that although the review had yet to be finalised, it had been “ascertained that the positions of Forensic Investigation Officers (PD1005) and District Forensic Investigation Officer (RWA) (PD1419) require a mandatory forensic qualification. However, the District Forensic Investigation Officer (Metro) (PD1400) does not require a mandatory forensic qualification” (AB448).  Ms Mashiah’s evidence was that she obtained this information from another employee relations officer, Ms Southcott, who in turn had apparently obtained it from Senior Sergeant Wells (par 25 affidavit; AB535).

50      In my view, given the approach to the determination of the mandatory qualification requirement set out above, the evidence of both Senior Sergeant Wells and Ms Mashiah must be taken to be a genuinely held, but with a mistaken belief as to the facts. Whilst there may have been a review of the position descriptions in late 2014 and 2015, as a matter of objective fact, PD1400, as at April 2015, contained the same mandatory Diploma qualification requirement, for the purposes of cl 17(12)(a)(i) of the Agreement, as did PD1005 at the time. Both had the belief that they expressed at first instance, however, any change to PD1400, in terms of the certification process to which I have referred above, did not take place until November 2017. It was not until then that PD1005 and PD1400 were certified as being “an accurate statement of the duties, responsibilities and other requirements of the position” (AB260-263).  Ms Mashiah confirmed that PD1400 and PD1005 were updated and “registered” on 8 November 2017 (par 22 affidavit; AB534). 

51      The evidence at first instance as to the Approved List was principally from Ms Mashiah. She testified that following a review by employee relations in 2013, in relation to allowances, a document entitled “Approved Positions” was created on 2 May 2014. A second version of the list was created on 1 April 2015 (pars 28-34 affidavit; AB535-537). This list is compiled from information obtained from documents Ms Mashiah obtained and information from the Forensics Division, including Senior Sergeant Wells. As pointed out by Senior Constable Pearce, in his submissions, there have been at least four versions of the Approved List made between May 2014 and January 2018 (AB541, 507, 542 and 512).  Whilst PD1400 was on the Approved List as at 2 May 2014, it was no longer in the list as at 30 June 2014. The learned Industrial Magistrate noted this and concluded, that this was consistent with Senior Sergeant Wells’ evidence that he redrafted PD1400 and PD1005 and the mandatory qualification was not included in PD1400 (par 85 reasons; AB76).

52      The Approved List is a derivative document prepared by the Commissioner of Police’s employee relations staff for internal purposes. It is not a document referred to in cl 17(12) of the Agreement. It was created well after the making of the Agreement and by one party to it and as such, is not a document that be given weight in construing the meaning and effect of cl 17(12). The development and use of such a list also potentially offends against the general rule that the subsequent conduct of a party to an agreement may not be considered in its interpretation and application: Seamen’s Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444. As a result, in my view, it is not a document that can be relied on as to whether a position satisfied the terms of cl 17(12)(a)(i). This is so whether the content of the Approved List was accurate or not, as was asserted by Senior Constable Pearce in his submissions, and as was disputed by the Commissioner of Police in his. It is with respect, not relevant to whether cl 17(12)(a)(i) was satisfied. As with the Guidelines, the Approved List did not exist until 2014, despite cl 17(12) being in operation since December 2006. 

53      For these reasons, I am of the view that with respect, the learned Industrial Magistrate was in error in rejecting the contentions of Senior Constable Pearce that the position descriptions should be given significant weight and little relevance, if any, attached to the Approved List. The objectively verifiable evidence was that as at April 2015, PD1400 was certified by the Commissioner of Police as fully and accurately describing the requirements of the position into which Senior Constable Pearce was transferred. Therefore, as at the time of his transfer, and until November 2017, Senior Constable Pearce satisfied the criteria for eligibility, in cl 17(12)(a)(i) of the Agreement.

The Guidelines and the “eligible field” issue

54      Senior Constable Pearce argued at first instance that on his transfer from his FIO position to the DFIO position in April 2015, under the Guidelines he should have continued to receive the FQA. This was because, as the argument ran, under the heading “Continued Eligibility for Forensic Qualification Allowance” (AB 447) the first to third dot points provide as follows:

              Employees will continue to receive the FQA whilst they remain in the position they held at the time they were assessed eligible to receive the FQA.

              If transferred, promoted or acting into another position within WA Police, employees may no longer be eligible.

              Continuity of FQA, in these circumstances, will depend on whether the new position held is within an approved business area and it has a mandatory requirement for a relevant Forensic qualification which is detailed in the position description.

55      Senior Constable Pearce relied upon the third dot point in his submissions. Thus, according to Senior Constable Pearce, in his case on the transfer to the DFIO position, he contended that these requirements were met and that therefore, he should have continued to receive the FQA. For the Commissioner of Police, aside from the mandatory qualification issue, he argued at first instance that at the time of Senior Constable Pearce’s transfer to the DFIO position, whilst his DFIO position PD1400 fell within an “approved business area”, that being Crime Forensic Investigation Office, he did not occupy a position that specialised in one of the forensic fields as set out in the Guidelines (AB 445).

56      This was explained in the evidence of Superintendent Hatch when referring to the Guidelines, as recording business areas that the Commissioner of Police has determined met the eligibility criteria to apply for an FQA (see affidavit par 33; AB 527 and 445). Superintendent Hatch went on to explain that in addition to being in the designated business area, a further criterion for eligibility for an FQA, was that the officer must also be in a position that specialised in one or more of the relevant forensic fields. These forensic fields on Superintendent Hatch’s evidence are Firearms Investigations; Crime Scene Investigations; Fingerprint Analysis; Blood Stain Pattern Analysis; or Technology Crime (par 34 affidavit; AB 527 and 445).

57      It was common ground that Senior Constable Pearce’s claim for the FQA was rejected by the Commissioner of Police on grounds including that he did not work in “the field” that the Commissioner of Police had assessed as an eligible field for the purposes of cl 17(12)(b) of the Agreement. This was was set out in Senior Constable Pearce’s evidence (pars 146-151 affidavit and annexures MP14-15; AB 111, 197-223).

58      As to this issue, the learned Industrial Magistrate concluded at pars 104 and 106-110 (AB 79) as follows:

104 The Commissioner determined that PD 1400 was not within a filed in which he assessed the role to be eligible for the FQA, notwithstanding the role is within the forensic area.

106              The FQA Guidelines44 updated in March 2015 outlines the process for applications for the FQA.  Four business areas are identified where if an applicant holds a position in one of five specialised forensic fields he or she is eligible to apply [my emphasis] for the FQA (the five areas being firearms investigations, crime scene investigation, fingerprint analysis, blood pattern analysis and technology crime)45.

107              One of the business areas is CFIO, but the five specialised forensic fields does not incorporate a DFIO position and Crime Scene Investigation is within FFO and the positions occupied are referrable to a FIO (PD 1005) (amongst others)46.

108              Mr Pearce says that he should continue to be eligible for the FQA because he has transferred to, or within, an approved business area and it is a mandatory requirement for PD 1400 to hold a forensic qualification in the PD47.

109              There are four reasons why Mr Pearce is not eligible for continuance of the FQA under the Guidelines:

1.              employees continue to receive the FQA while they remain in the position they held at the time they were assessed to be eligible, thereafter if transferred to another position they may no longer be eligible.  Mr Pearce was assessed as eligible for payment of the FQA while a FIO in FFO, but when he transferred to CFIO as a DFIO in April 2015 (PD 1400) he was no longer eligible to for payment of the FQA;

2.              the eligibility to apply for payment of the FQA is not limited to the employee’s approved business area but also includes positions that specialise in one or more identified forensic fields, as set out on page 179;

3.              for reasons already stated as at May 2014 and April 2015 PD 1400 did not have a mandatory forensic qualification requirement and Mr Pearce was aware of this in August 2014; and

4.              Mr Pearce submitted a grievance in which he detailed, amongst other things, why he considered he was eligible for the FQA.  The grievance was processed through the chain of command to the Commissioner, and he did not uphold the grievance48.

110              Therefore, Mr Pearce is not entitled to continuance of payment of the FQA under the FQA Guidelines and submitted a request for the payment of the FQA to continue, broadly speaking, on the basis that he merits continued payment in the DFIO position.  This request was denied.

59      For the purposes of this appeal, Senior Constable Pearce essentially maintained the same argument as was put at first instance. He submitted that the learned Industrial Magistrate was in error to conclude that the Guidelines did not confer an ongoing entitlement for him to receive the FQA. First, it was submitted that under point 3 of the Guidelines, as set out above, Senior Constable Pearce met both requirements i.e. the new position as a DFIO was in an “approved business area” that being Prime Forensic Investigation Office. Second, his new position, PD1400, at the time of his transfer, had the mandatory qualification requirement.  Thus, so the argument went, under the Guidelines, Senior Constable Pearce was entitled to continuity of payment of the FQA and the learned Industrial Magistrate was in error to conclude to the contrary.

60      There are two difficulties with these contentions. The proceedings at first instance, as noted at the outset of this discussion, were concerned with whether the Commissioner of Police had contravened or failed to comply with cl 17(12) of the Agreement and not whether the Commissioner of Police had failed to comply with the Guidelines. Nowhere in cl 17(12) is any reference made to the Guidelines or any other such derivative document. Whilst the Guidelines, not made until 2014 it seems, some nine years or so after the making of the first Agreement, may have been developed to assist the Commissioner of Police internally to apply cl 17(12) of the Agreement, they do not, in and of themselves, confer an entitlement to anything, in terms of the Agreement. Nor in my view, being created many years after the making of the initial Agreement between the Union and the Commissioner of Police, as the parties to the Agreement, could the Guidelines, made by one party only, inform or alter in any way, the proper interpretation and application of the Agreement, as an industrial instrument:  Seamen’s Union of Australia. 

61      It may be arguable that non-compliance with the Guidelines by the Commissioner of Police may give rise to an administrative law remedy, but it does not give rise to a remedy under s 83 of the Act. They were not incorporated into and formed part of cl 17(12). Nor was it any part of Senior Sergeant Pearce’s case at first instance that the Guidelines in some way represented a codification as to the manner of the exercise of the discretion that the Commissioner of Police had under cl 17(12). To this extent, with respect, the Guidelines and for that matter also the Approved List too, became somewhat of a distraction at first instance.

62      Thus, the question is not the satisfaction of the first and third points of the Guidelines as set out above, as was submitted by Senior Constable Pearce, but rather, with respect, whether the eligibility requirements in cl 17(12)(a) and (b) of the Agreement were, as a matter of fact, met. In any event, whilst Senior Sergeant Pearce in his evidence asserted that the work he was doing was in the field of “forensics” and did encompass crime scene investigation (affidavit par 88 onwards; AB 102-109; 39TFI), this was not the evidence as to the field assessed by the Commissioner of Police for the purposes of cl 17(12(b). 

63      The learned Industrial Magistrate found that it was not open for the court to order that the Commissioner of Police assess the DFIO position PD1400 as being one eligible for an FQA. As set out in pars 107 and 109 of her reasons above, her Honour found as a fact, that Senior Constable Pearce, although in position PD1400, worked in an approved business area, in reliance on the evidence of Superintendent Hatch and Senior Sergeant Wells.  However, he did not work in a position specialising in crime scene investigation, as being one of the fields determined by the Commissioner of Police as a matter of discretion, for the purposes of cl 17(12)(b) of the Agreement.

64      As dealt with in the evidence of Superintendent Hatch and Senior Sergeant Wells, the five specialist forensic fields identified do not include a DFIO position covered by PD1400. Crime Scene Investigation, as a specialist field, is within the FFO. Crime Scene Investigation, as a relevant field assessed by the Commissioner of Police for the purposes of cl 17(12)(b), comprises six teams of specialists. Those teams include positions as a FIO in position PD1005, along with others at a higher rank occupying other positions. None include a DFIO position under PD1400.

65      Thus, whilst as the Commissioner of Police correctly observed in his submissions on the appeal, Senior Constable Pearce did not seek to disturb these factual findings made by the learned Industrial Magistrate, no doubt because of his reliance on the operation and effect of the Guidelines, such a finding was plainly open on the evidence. The learned Industrial Magistrate did not err in this respect.  Senior Constable Pearce was not working in a field as assessed by the Commissioner of Police for the purposes of cl 17(12)(b) of the Agreement, which was his prerogative and his alone. Thus, Senior Sergeant Pearce did not satisfy this eligibility criteria.

Notice of contention – expert evidence issue

66      In view of my conclusions as to the discretionary nature of cl 17(12) and the issue in relation to “the field”, it is unnecessary to consider the Commissioner of Police’s submissions in relation to the expert evidence question, not determined by the learned Industrial Magistrate at first instance.

Section 83 Act powers

67      Senior Constable Pearce at first instance and on this appeal, sought orders for the resumption of the payment of the FQA and for back payment of the FQA from 20 April 2015 to date. An issue raised by the Commissioner of Police at first instance was the jurisdiction and powers of the Industrial Magistrates Court to make the orders sought under s 83 of the Act. Her Honour’s conclusions in this respect have been set out at the outset of these reasons. Her Honour relied on an earlier decision of the court in Vincent v Department of Finance [2016] WAIRC 00035; (2016) 96 WAIG 132 in this respect.

68      No ground of appeal has been raised against the learned Industrial Magistrate’s conclusions in this regard, and no substantive argument has been put to the Full Bench on the scope of the court’s powers under s 83 of the Act. Accordingly, the conclusions of the learned Industrial Magistrate are not directly in issue and this matter will have to await another day.

Conclusion

69      In this case the learned Industrial Magistrate did not err in her interpretation of cl 17(12) of the Agreement, as conferring an overarching discretion on the Commissioner of Police in relation to the decision to grant the payment of the FQA. Whilst, contrary to the conclusion reached by the learned Industrial Magistrate, Senior Constable Pearce was occupying a position between April 2015 and November 2017 that had a mandatory qualification requirement, Senior Constable Pearce was not working in the field in which eligibility for the FQA had been assessed.

70      Accordingly, Senior Constable Pearce did not satisfy the criteria as specified in cl 17(12)(a) of the Agreement. As a result, it has not been demonstrated that the learned Industrial Magistrate erred in her conclusion that the Commissioner of Police did not act unreasonably in the exercise of his discretion. I would therefore dismiss the appeal.

MATTHEWS C:

71      I have read the reasons for decision of the learned Senior Commissioner and gratefully adopt those parts which set out the background and elucidate the issues in the appeal.

72      To my mind this appeal ultimately turns on whether the respondent, having given approval under clause 17(12)(a) of the Western Australian Police Industrial Agreement, may subsequently, without breaching the Agreement, withdraw that approval and, if so, how that may be done.

73      Given the opening words of clause 17(12)(a) of the Western Australian Police Industrial Agreement, it is inarguable that the respondent’s approval is required under clause 17(12)(a) before the Forensics Qualifications Allowance can be paid.

74      It is also clear, to my mind, that the respondent’s discretion whether to approve or not comes into play once the facts referred to at subparagraphs (i) to (iii) exist and not in relation to those matters.  That is, the discretion in clause 17(12) is not exercisable in relation to whether or not those facts exist. 

75      Those matters either exist as matters of fact or they do not.  The respondent will, of course, have a view on whether or not those matters exist as facts and will, presumably, only turn to consider the exercise of his discretion if he considers that they do but, ultimately, they are matters of fact, not matters decided by the exercise of his discretion.

76      If the matters in subparagraphs (i) to (iii) exist as matters of fact, then the respondent may approve payment of the “Forensic Qualifications Allowance”.  That is, it is at this point that the respondent’s discretion comes into play and not before.

77      The approval referred to in clause 17(12)(a) of the Western Australian Police Industrial Agreement is a positive act of approval by the respondent for the reasons set out at [22] and [23] of the learned Senior Commissioner’s reasons for decision.  That is, the respondent does not have to approve payment simply because the matters at subparagraphs (i) to (iii) exist.

78      Once approval is given the question is whether that approval may be withdrawn and, in particular, whether that approval may be withdrawn even if the matters referred to in subparagraphs (i) to (iii) continue to exist as facts.

79      In my view, it is clear that, as a matter of interpretation of clause 17(12) of the Western Australian Police Industrial Agreement, approval may be withdrawn in these circumstances.

80      I say this because clause 17(12)(c) of the Western Australian Police Industrial Agreement makes clear, as the learned Senior Commissioner decides at [26] of his reasons for decision, that something “remains” with the respondent.  Given the wording of clause 17(12)(c) what “remains” can only sensibly be the discretion in clause 17(12)(a) of the Western Australian Police Industrial Agreement. 

81      I add, without saying that the Interpretation Act 1984 applies to the construction of industrial agreements, that it seems to me that there is a great deal of sense in the concept captured by section 50(2)(c) of that Act applying to approvals under industrial agreements, if the language used permits, such that wherever an industrial agreement confers a power to approve a thing the industrial agreement shall be deemed to also provide a power to withdraw that approval. 

82      This was not, however, argued before the Full Bench and forms no part of my decision.

83      I hold that the respondent may withdraw his approval under clause 17(12)(a) of the Western Australian Police Industrial Agreement 2014, because, per clause 17(12)(c), that discretion “remains”. 

84      I hold also that the respondent may do so regardless of whether or not the facts in subparagraphs (i) to (iii) exist or not, given that the existence of those matters are not, and cannot be, matters within his discretion. 

85      To be clear, the respondent could decide not to approve payment of the Forensics Qualification Allowance even if those matters exist as facts.  If this discretion “remains” it must follow that the existence of those matters as facts is irrelevant to the question of a withholding or withdrawal of approval.

86      For this reason, I have found it unnecessary to consider whether the matters under clause 17(12)(a)(i) to (iii) existed as facts.

87      Accordingly, I hold that the learned Industrial Magistrate was correct in finding that the respondent had what was referred to in these proceedings as an “overarching discretion” which had the effect that his decision to cease payment of the Forensics Qualification Allowance was not in breach of clause 17(12) of the Western Australian Police Industrial Agreement 2014.

88      I do not understand the appellant to have ever argued there was implied into the industrial agreement a condition that exercises of discretion be reasonable and that the respondent exercised his discretion unreasonably.  Absent dedicated, and material, argument on whether any condition may be implied into an industrial agreement that matter will have to, in my opinion, await another day.

89      It is impossible to say what course this matter would have taken if it had been argued and established that such a term was implied but it is likely that the questions of whether the matters under clause 17(12)(a)(i) to (iii) existed as facts and whether the respondent could decide to withdraw his approval where this was the case would have been live matters for evidence and debate.

90      However, as I say, the matter was not prosecuted in that way.

91      I agree that the appeal should be dismissed. 

WALKINGTON C:

92      I have had the benefit of reading the draft reasons of Senior Commissioner Kenner. I agree with those reasons and have nothing to add.