C2003/5555, Transcript of Proceedings [2003] AIRCTrans 4330 (30 September 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 10567
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2003/5555

THE POLICE ASSOCIATION

and

CHIEF COMMISSIONER OF POLICE

Application under section 170LW of the Act
for settlement of dispute re alleged proposal
to spill all superintendent positions

MELBOURNE

12 NOON, FRIDAY, 12 SEPTEMBER 2003

Continued from 9.9.03 before Commissioner Gay

PN133

MR M. BROMBERG: I appear for the Police Association, and also for Mr Mullett, who is the Secretary of the Police Association, and I seek to do so as counsel.

PN134

MR R. DALTON: I seek leave to appear for the Chief Commissioner of Police.

PN135

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted to each of you. I know that this matter has been before Commissioner Gay during the earlier part of the week. It has now been assigned to me. I might indicate that, other than knowing it has something to do with a spill and fill of positions of superintendent, I know nothing more about it. So, Mr Bromberg, it is your notification.

PN136

MR BROMBERG: Thank you, your Honour. Your Honour, can I open by saying that it has been announced as of about 8 September that the Chief Commissioner intends to embark upon a process of transferring all persons who hold the rank of superintendent. Now, that process I will come to in more detail but it is a process which, in essence, requires all superintendents to express interest and three preferences are required.

PN137

THE SENIOR DEPUTY PRESIDENT: Express interest in what, Mr Bromberg?

PN138

MR BROMBERG: In either continuing in their own position.

PN139

THE SENIOR DEPUTY PRESIDENT: This is a geographic position we are talking about, is it, or a substantive position?

PN140

MR BROMBERG: It is a substantive position. It may have geographical characteristics.

PN141

THE SENIOR DEPUTY PRESIDENT: Yes, sorry, I interrupted you. That was the first option. And continuing on the position.

PN142

MR BROMBERG: So they can either express a preference to continue in their substantive position or a preference to be transferred to any other position held by a superintendent anywhere in the State.

PN143

THE SENIOR DEPUTY PRESIDENT: Yes.

PN144

MR BROMBERG: And what the process envisages, your Honour, is that - - -

PN145

THE SENIOR DEPUTY PRESIDENT: Sorry, I thought you said there were three alternatives.

PN146

MR BROMBERG: You can insert three preferences so that you can order your preferences - - -

PN147

THE SENIOR DEPUTY PRESIDENT: I see. Yes, I am with you.

PN148

MR BROMBERG: Yes. Now, the process envisages that once expressions of interest are received, there will be a selection process, as it were, where presentations will be made by each of the superintendents in support of their applications for their preferred position. A selection panel is to be constituted which is to embark upon what is called a matching process but, leaving aside the title, it appears to be a process of selecting the most suitable person for each of the superintendent positions. I think there are about 60 positions - 75 I am told.

PN149

THE SENIOR DEPUTY PRESIDENT: There are currently 75 superintendent positions?

PN150

MR BROMBERG: Yes, there - - -

PN151

THE SENIOR DEPUTY PRESIDENT: And there will remain 75 superintendent positions; is that true?

PN152

MR BROMBERG: There is no intent to change the number of positions. I think the total number is 75. I will have that checked. 15 of those positions are currently vacant in the sense that they are not filled by any person, but they exist as positions.

PN153

THE SENIOR DEPUTY PRESIDENT: Yes.

PN154

MR BROMBERG: So if those numbers are right, the process envisages that the 60 superintendents who currently hold positions indicate preference for and seek to be appointed to one or other of the 75 positions available.

PN155

THE SENIOR DEPUTY PRESIDENT: Yes.

PN156

MR BROMBERG: After the selection process, it is envisaged that members be notified of the decision as to who should take what position, and thereafter the supervisors will be placed into the positions allocated.

PN157

THE SENIOR DEPUTY PRESIDENT: Is it envisaged that there would be any appeal mechanism?

PN158

MR BROMBERG: It is not clear from the material that is being sent out, although I have seen reference - I think this was said in meetings with the union, that there would be an appeal to the Chief Commissioner. But there is no appeal to any appeal board as there is under the Act, and as is required by both the Act and the regulations which I will come to.

PN159

THE SENIOR DEPUTY PRESIDENT: Yes.

PN160

MR BROMBERG: Now, the reason for the urgency of this proceeding and today's application is that the process that I have briefly described is under way. A package calling for expressions of interest was sent out on or about 8 September, and the closing date for expressions of interest is 17 September. Now, that is next Wednesday, I think. What the union seeks on behalf of the relevant members is set out in a letter that your Honour may have been provided with some time this morning. If it hasn't got to - - -

PN161

THE SENIOR DEPUTY PRESIDENT: No, I don't think - I have been sitting all morning - - -

PN162

MR BROMBERG: I see.

PN163

THE SENIOR DEPUTY PRESIDENT: So if I was provided with it, I haven't got it.

PN164

MR BROMBERG: Can we provide you a copy of both the letter that went to the Registrar and also the letter that went to our learned friends, or at least to their client.

PN165

THE SENIOR DEPUTY PRESIDENT: You have handed me two letters. Are they in identical terms other than the addressee?

PN166

MR BROMBERG: No, your Honour, they are not.

PN167

THE SENIOR DEPUTY PRESIDENT: No. Well, which one should I look at first?

PN168

MR BROMBERG: Could you look at the letter to the Registrar, please.

PN169

THE SENIOR DEPUTY PRESIDENT: Yes.

PN170

MR BROMBERG: You will see that we begin by setting out who we act for and the fact that the proceedings are listed today, and the purpose of the correspondence is to advise of the application, findings and orders sought by our client in the proceeding. Now, pursuant to section 99 a notification of industrial dispute has been filed with the Commission and, in relation to the alleged industrial dispute, our client seeks a finding of decision in terms of - to identify the parties to the dispute and the matters in dispute as follows, and then we set out the finding that is sought. We then say that:

PN171

Pursuant to section 170LW a final order is sought in the terms of the order...

PN172

which is there set out, and your Honour can see that. What the order essentially seeks to do is to prohibit any further step being taken in the process. In part settlement of the dispute what is also sought is a final exceptional matters order in similar terms - and I think the only difference is the date that the order can remain in force must necessarily be limited to two years. And then we set out what I have already set out to your Honour, and that is that the process is under way, that expressions of interest are required no later than the 17th, and notifications of transfers is intended to be made in mid-October 2002[sic].

PN173

Now, we seek that, pending the hearing and determination of the final orders that are sought and in order to ensure the effective exercise of the Commission's jurisdiction, that interim orders be made; and the interim orders are set out in the document and I think your Honour has read those.

PN174

THE SENIOR DEPUTY PRESIDENT: Is that essentially the same as the final orders bar the period of operation?

PN175

MR BROMBERG: They are.

PN176

THE SENIOR DEPUTY PRESIDENT: Yes.

PN177

MR BROMBERG: And essentially they seek a prohibition on any further step being taken in the process. Very quickly, in the letter that we wrote to the Chief Commissioner, we attached the letter that had gone to the Commission. We referred to the fact that a number of attempts had been made to obtain the Chief Commissioner's consent to a deferral of a process so that there could be, firstly, further discussions and/or secondly, so that the Commission could deal with the dispute. We invited consideration of further agreement and sought an undertaking by 12 today that the Chief Commissioner postpone the process.

PN178

Now, we have received no response to that letter and I take it that there is no consent. Yes, my learned friend advises that there is no consent. In the circumstances, we are in the position of requiring urgent relief and we seek to proceed with our application for an interim order, which your Honour will see is couched in alternative terms. We say that you can make an interim order and we will come to that in a moment but we will say in exercise of the power under section 170LW you can do so. If necessary, and in the alternative, we say you also have the power to make an interim exceptional matters order and the capacity to do so, and we will take you in due course to some authority about that.

PN179

We do seek to rely on a statement of Mr Mullett and can I hand up a copy of the witness statement of Paul Redmond Mullett. Now, I don't want your Honour to be - - -

PN180

THE SENIOR DEPUTY PRESIDENT: Intimidated by the bulk?

PN181

MR BROMBERG: Intimidated by the volume of the material. It is largely the Act, the regulations, the certified agreement. There are some other documents included. Whilst there may be some matters of contention, we were careful to try and limit the statement to the factual matters for your Honour to understand the context. Now, my learned friend hasn't had an opportunity to see the statement.

PN182

THE SENIOR DEPUTY PRESIDENT: Nor have I.

PN183

MR BROMBERG: No.

PN184

THE SENIOR DEPUTY PRESIDENT: Would it be appropriate if I leave the Bench for, say, 10 minutes, while we both do that?

PN185

MR BROMBERG: I would be grateful, thank you, sir.

PN186

THE SENIOR DEPUTY PRESIDENT: Yes. Well, that is what I will do.

SHORT ADJOURNMENT [12.15pm]

RESUMED [12.30pm]

PN187

THE SENIOR DEPUTY PRESIDENT: I have read the statement of Mr Mullett. I have not looked at the attachments, Mr Bromberg.

PN188

MR BROMBERG: Thank you, your Honour. Might I perhaps just - I will take you to the Act, the regulations and the other regulatory instruments in some detail but perhaps I should draw attention to one aspect of the other exhibits and that is, if you turn to exhibit PRM14, you will see what I am instructed is a draft of the form of letter that was intended to be sent to all superintendents advising them of the transfer process. Now, I just need to make a point of clarification. There is or should be on your file, your Honour, an exhibit B1.

PN189

THE SENIOR DEPUTY PRESIDENT: Yes, there is. A bundle of documents, it is identified as. Yes.

PN190

MR BROMBERG: Yes. As I understand it, B1 - unfortunately, when B1 was handed up there was no full copy provided to my clients but as I understand it, B1 is a copy of the actual letter that went out to each of the superintendents.

PN191

THE SENIOR DEPUTY PRESIDENT: It is a generic letter.

PN192

MR BROMBERG: Yes.

PN193

THE SENIOR DEPUTY PRESIDENT: It doesn't have anybody's name on it but yes, it seems to be similar to PRM14. It is dated.

PN194

MR BROMBERG: It is similar, other than it seems on the second page there is reference to the process being implemented pursuant to 8(1) of the Police Regulation Act. It doesn't seem to be otherwise relevantly different. My learned friend tells me that B1 did go out to all of the superintendents. It does contain what my learned friend tells me is an error in it. If you go to attachment 2 - - -

PN195

THE SENIOR DEPUTY PRESIDENT: Attachment 2 to B1?

PN196

MR BROMBERG: To B1. I think you should find a document headed Nomination for Preferences for Superintendent Matching Process.

PN197

THE SENIOR DEPUTY PRESIDENT: Yes.

PN198

MR BROMBERG: You will see about at point 7 or 8 of the page it is said that, "Expressions of interest are to be received by close of business on Friday, 12 September", that is today. That is apparently an error. It is inconsistent with what is in attachment 6, where there is a timeline set out which says that expressions of interest close on 17 September. Attachment 6 is headed Superintendent Matching Process, Process Outline.

PN199

THE SENIOR DEPUTY PRESIDENT: Yes.

PN200

MR BROMBERG: And although we haven't seen the document, my learned friend advises that all superintendents have been sent communication to indicate that 12 September is, in fact, an error and that the closing date is the 17th.

PN201

THE SENIOR DEPUTY PRESIDENT: Yes. Well, that takes a bit of pressure off me, I daresay, a little bit.

PN202

MR BROMBERG: Yes, a little bit, not a great deal, your Honour, but our friends in choosing to not postpone in any way at all have put us all under some pressure. I don't criticise them for that. They are within their rights. But it means that the application necessarily needs to be dealt with quickly if it is to be given an opportunity to address the mischief that it seeks to address. Can I begin and say something about the LW application. I don't think I need to tell the Commission about its source of power, nor do I need at this stage to go to the dispute resolution clause in the certified agreement, although I will go to it in due course.

PN203

THE SENIOR DEPUTY PRESIDENT: Well, you will need to satisfy me it is a dispute about the application of the agreement, won't you?

PN204

MR BROMBERG: Yes. The dispute is fundamentally this, the agreement, if I can go to that, and it is exhibited as PRM to Mr Mullett's statement, at 1.4.3.1 says that:

PN205

In addition to the terms of the agreement, the following policies are agreed between the parties and form part of this agreement.

PN206

And you will see there a reference to the Transfer and Promotion Policy. That policy is also an exhibit and I will come to - it is PRM5. It forms part of the agreement. There is also a reference to the Establishment, Control and Occupancy Management Policy, which also forms part of the agreement and is also exhibited, PRM6. There is reference in the agreement at clause 4.7 to what is called a Commissioned Officer Review and that is a process in the agreement for reaching further agreement between the parties, the result of which becomes an agreement which is then part of this agreement, and you will see that at 4.7.5.

PN207

At PRM7 you will find a document headed Enterprise Bargaining 2000 Commissioned Officers Review, and that is the agreement which was made in consequence of the review and we say forms part of the certified agreement. If you turn to that, at clause 3 you will see a heading Transfers and Promotions, and there are provisions that deal with transfer and promotions. I don't go to the detail; I just go to the sources of regulation at the moment.

PN208

Now, it is our position that the transfer and promotion policy which forms part of the certified agreement, and clause 3 of the heads of agreement that I have just been to, which also deals with transfers and promotions, it is our submission that they, together with the Establishment, Control and Occupancy Management Policy, relevantly regulate the process for transfer, including in relation to superintendents. There is a dispute between the parties as to the application at least of those policies and the further agreement.

PN209

It is our position that those policies apply and would prohibit the process in the sense that the process that is now being embarked upon is at odds with and contrary to the agreed processes. It seems that the position of the Chief Commissioner is that either the sources of regulation that we pointed to have no application or have no relevant application. So we say there is a dispute as to the application of those sources of regulation all sourced in the certified agreement and by reason of the dispute resolution clause which the Commissioner will find in clause 8 on page 67 of the certified agreement.

[12.40pm]

PN210

THE SENIOR DEPUTY PRESIDENT: Clause 8, yes, I have that.

PN211

MR BROMBERG: You will see what is probably familiar to your Honour and that is a settlement disputes procedure with a number of steps leading to 8.3.1.3:

PN212

Matters not resolved shall be referred to a person nominated by the President of the Australian Industrial Relations Commission or another person agreed to by the parties.

PN213

And then:

PN214

If the matter is not resolved by the person appointed under 8.3.1.3 the parties agree to be bound by the determination of the person nominated in 8.3.1.3 subject to any appeal available.

PN215

THE SENIOR DEPUTY PRESIDENT: Yes, I am not aware that I have been appointed by the President of the Commission to deal with this matter - perhaps indirectly.

PN216

MR BROMBERG: I think indirectly because the President would ultimately control the listing of all matters.

PN217

THE SENIOR DEPUTY PRESIDENT: Yes.

PN218

MR BROMBERG: And if the President has delegated, as sometimes Courts and Tribunals do, the listing functions to others, we would nevertheless argue that in dealing with a matter your Honour has been nominated by the President.

PN219

THE SENIOR DEPUTY PRESIDENT: Yes.

PN220

MR BROMBERG: Now, as to earlier attempts to resolve the dispute Mr Mullett's material indicates that those had been tried and had not proved fruitful. So we say there is a section 170LW application of that kind validly before the Commission and which the Commission is asked to - and the Commission is asked to resolve the dispute which arises thereby. In addition, we seek under the notification of the alleged industrial dispute, to have the Commission exercise its exceptional matters order power and that application - and I suppose what I am doing now, your Honour, is really going to the way that we will ultimately put our final case, that is, our case for final relief.

PN221

That application is really put in the alternative in this sense. We say that the various transfer information policies and regulations that we just pointed you to cover the situation at hand and regulate what can or can't be done. And if the Commission orders - makes the orders that are sought the Commission will, in essence, be requiring the application of those provisions to the circumstances at hand. But we say if the circumstances at hand are not within the scope of the policies on promotion and transfer, in other words, if it is said that - if it is said by the Chief Commissioner that they are embarking on a different process not one that is encompassed within the policies, then we would say to the Commission that what is being done here is free of regulation, then it ought to be regulated in part settlement of the dispute which we say exists.

PN222

So that if a process of essentially spilling all positions is not a process contemplated by the regulations that we rely upon, then it seems to be a process which is unregulated and ought to be regulated as a matter of fairness and equity and as a matter of the proper part settlement of the dispute. And in that respect we would seek ultimately an exceptional matters orders. Now, we have sought an exceptional matters order in a form which would prohibit the process going ahead at all. Of course the Commission may agree with that or else it may agree with a remedy of a different kind.

PN223

It may, for instance, put in place a process which regulates the form of transfer that is here sought to be engaged in by the Chief Commissioner. For instance, it may - the Commission may ultimately be of the view that the current process is unfair by reason of short timelines or by reason of other matters and may put in place another process. But, in essence, those matters are put to the Commission in order to identify the nature of the final relief that is sought so that your Honour will be better able to come to a view on the interim order as to whether a number of elements are satisfied.

PN224

And we think we have to convince your Honour of two things, essentially, and that is that - adopting perhaps the terminology more familiar to a Court but which seems to now be adopted here as well - we do need to convince you that there is a serious issue to be tried here and also about the balance of convenience which favours the grant of the interim order. Now, for the purpose of the interim order and for no other purpose at the moment, we do seek to rely upon the statement of Mr Mullett and we do tender that.

PN225

My learned friend has said to me that he is not in a position to cross-examine about it but I think, on the basis that the statement is for the purpose of an interim order and no further purpose - I didn't hear him object to the reception of the statement and I do seek to tender it. I wonder, sir, whether it is necessary for Mr Mullett to formally get into the witness box and swear to its truthfulness or whether it will be sufficient simply to receive it.

PN226

THE SENIOR DEPUTY PRESIDENT: Well, let me hear from Mr Dalton.

PN227

MR BROMBERG: Yes.

PN228

THE SENIOR DEPUTY PRESIDENT: I have taken what you have said so far to be by way of opening.

PN229

MR BROMBERG: Yes.

PN230

THE SENIOR DEPUTY PRESIDENT: And before we proceed to any evidence perhaps I ought to let Mr Dalton at least open in a brief manner. Mr Dalton?

PN231

MR DALTON: Your Honour, given that the application today is one that in effect seeks interim relief and the manner in which it has been brought on fairly quickly, I am not in a position to deal with cross-examination of Mr Mullett. That is obviously a matter that could be dealt with should this matter be determined in a final sense later on. In terms of dealing with the present application for interim relief before you I am content to work on the basis that it simply be marked for identification and the Commission can, in the manner in which it often does, take submissions from the bar table in relation to various matters.

PN232

Most of the matters that are put in Mr Mullett's statement are not contentious, however, just casting my eye down briefly there are some matters, I think, certainly in relation to paragraph 13 and beyond that we would dispute at a later stage. But I think that the Commission would be able to proceed simply on the basis of marking that document and hearing from both parties as to the background and whether an interim order should be granted in the circumstances.

PN233

THE SENIOR DEPUTY PRESIDENT: Yes, yes, thank you, I will proceed on that basis, Mr Bromberg. I will mark Mr Mullett's witness statement and its attachments for identification. Does that cause you any difficulty?

PN234

MR BROMBERG: Well, as long as it is understood that - - -

PN235

THE SENIOR DEPUTY PRESIDENT: I can act on the basis of it.

PN236

MR BROMBERG: - - - you can act on the basis of it.

PN237

THE SENIOR DEPUTY PRESIDENT: Yes.

PN238

MR BROMBERG: We seek to rely on it.

PN239

THE SENIOR DEPUTY PRESIDENT: Yes.

PN240

MR BROMBERG: Yes.

PN241

THE SENIOR DEPUTY PRESIDENT: Yes, I don't think Mr Dalton is saying anything different for the purposes of the application for interim relief.

MFI #1 WITNESS STATEMENT OF PAUL REDMOND MULLETT WITH ATTACHMENTS PRM1 THROUGH TO AND INCLUDING PRM16

PN242

MR DALTON: Thank you, your Honour.

PN243

THE SENIOR DEPUTY PRESIDENT: And Mr Bromberg, would this be an appropriate time to take a luncheon break?

PN244

MR BROMBERG: It would, your Honour. I was wondering whether my friend was in fact going to give us an opening because it may assist, even if it is only brief, so that we can understand what is in contention and what is not.

PN245

THE SENIOR DEPUTY PRESIDENT: I gave him the opportunity - - -

PN246

MR BROMBERG: Yes.

PN247

THE SENIOR DEPUTY PRESIDENT: - - - and I assume that is all he wanted to say by way of opening. Is that right, Mr Dalton?

PN248

MR DALTON: I am content simply to respond to the application for interim orders once Mr Bromberg has done that. Perhaps one thing that I would say that Mr Bromberg, perhaps, could consider over lunch is it would be our position that the dispute needs to be characterised properly and at the moment it would be my submission that it has not been. Simply saying there is a dispute over the application of some policies, in my submission, is not enough. There is a reason for that, your Honour, the dispute could be over, for example, the extent to which the Chief Commissioner has consulted with the Police Association, for example, or it could be a dispute over specific things that the Chief Commissioner is proposing to do and it appears that it may well be the latter.

PN249

If it is what exactly is the dispute. If it is a dispute over transfer, or potential of transfers, then we have a number of things to say about that as to why the Commission is not in a position to deal with that. So we would appreciate further clarification as to what Mr Bromberg actually says is the dispute here. For example, the Police Association, last week, or the week before, raised some concerns about advertising. Their understanding of the process was that the Chief Commissioner was not proposing to advertise the positions.

PN250

Now, on my instructions, the positions are being advertised. Each superintendent is being provided with a full list of all of the available positions and are given an opportunity to identify their preferences for that. So, for example, if the dispute is to include that, it would be my submission, to the extent there has been a demand for advertising the positions, that that has been acceded to, there is not a dispute over that.

PN251

THE SENIOR DEPUTY PRESIDENT: I think Mr Bromberg paints a much broader picture, does he not. He says the certified agreement, with all those other agreements incorporated into it, means one thing and it means that the Chief Commissioner can't do what she is doing, or not in the way she is doing it, and if the Chief Commissioner says that she can there is a dispute over the application of the agreement. I think he puts it as simply and as broadly as that, Mr Dalton, as I understood it.

PN252

MR DALTON: Yes, but at the moment I am not clear on what exactly they are saying - - -

PN253

THE SENIOR DEPUTY PRESIDENT: No, well, that is what I assume that he will be taking me to.

PN254

MR DALTON: - - - that the Chief can't do.

PN255

THE SENIOR DEPUTY PRESIDENT: Yes, well, that is - Mr Bromberg has foreshadowed that he will be taking me to the various provisions of the certified agreement and its sub agreements, if I can refer to them that way, to show why it is that on the Association's reading of those documents what is being sought to be done can't be done.

PN256

MR DALTON: Yes.

PN257

THE SENIOR DEPUTY PRESIDENT: I think - - -

PN258

MR DALTON: Well, on that basis, then I am content simply to respond to the application for interim relief and Mr Bromberg may have something to say in reply.

PN259

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I take it, you oppose it?

PN260

MR DALTON: Yes, it is opposed, yes.

PN261

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, well, we will adjourn until 2.15.

LUNCHEON ADJOURNMENT [12.55pm]

RESUMED [2.16pm]

PN262

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Bromberg?

PN263

MR BROMBERG: If your Honour pleases, what I would like to do is take your Honour in some detail to the impugn process, to the content of it so that you can identify both its character and content and then take your Honour to the Act, the police regulations, the certified agreements and the other regulatory documents to show how the impugn process is entirely out of step which what would otherwise be required. The - if I can take you then to exhibit B which is the letter that went out to superintendents which sets out the nature and content of the impugn process.

PN264

THE SENIOR DEPUTY PRESIDENT: That is B1, is it?

PN265

MR DALTON: B1, yes. It begins by referring - there is a letter there from the Commissioner and it begins by referring to her e-mail of 23 August 2003. You will find that at PRM8.

PN266

THE SENIOR DEPUTY PRESIDENT: Do you want me to look at that now?

PN267

MR BROMBERG: Perhaps only briefly where you will see in the middle of that e-mail - - -

PN268

THE SENIOR DEPUTY PRESIDENT: Yes.

PN269

MR BROMBERG: - - - this paragraph and I quote:

PN270

And finally the Corporate Management Group has decided that we need to address the number of superintendent vacancies around the state and how we can best use the talent and knowledge of our senior officers.

PN271

It goes on to say:

PN272

We have more positions available than people at the rank of superintendent to encourage opportunity and new ideas and personal and organisational development when considering how best to examine opportunities for everyone at that rank.

PN273

Two things perhaps are pertinent in commenting upon that paragraph. The first thing is that the process seems to impart - at least, want to address some vacancies and secondly, it wants to address the position of everyone and is not limited to simply the filling of vacancies but seeks to take an opportunity to examine everybody's position and you will see that that is exactly what occurs.

PN274

THE SENIOR DEPUTY PRESIDENT: And do you say that that is not something is allowed, do you?

PN275

MR BROMBERG: Yes. Now - - -

PN276

THE SENIOR DEPUTY PRESIDENT: Can you just excuse me for a moment. Sorry, yes, go on.

PN277

MR BROMBERG: If I can then go back to the exhibit B1, the Chief Commissioner says in the first paragraph, she is writing to provide information about what she calls a forthcoming matching of superintendents and positions. She refers to the five year strategic plan and then she goes on to say:

PN278

Managers with significant spans of responsibility, many years of experience on which to draw, I consider the offices of superintendent rank as critical to achieving the changes and results that Victoria Police has communicated to Government and to the community. We therefore need to ensure we have people in positions where they will best be able to contribute to ...(reads)... pool of superintendents and the needs of Victoria Police.

PN279

And then she emphasises a number of features. Over the page she asserts to be doing what she is doing within the power given by section 8(1) of the Police Regulation Act and she also says the process is consistent with all the agreements that are currently in place. She says something about discussions with the Police Association and then there follows a detail of the process over the page. And I think we need to go into it in some detail, your Honour, I am sorry about that but I think it is necessary.

PN280

THE SENIOR DEPUTY PRESIDENT: Yes.

PN281

MR BROMBERG: You will see under the heading, "Process" it is said:

PN282

In summary the steps are set out below.

PN283

And it refers to attachment 1 and that is a list of all superintendents' positions available for nominating preferences:

PN284

Position descriptions are available by the HRD internet site.

PN285

Now, if you go to attachment 1 you will see there identified, I think, 75 positions. You will note, your Honour, that in relation to 15 of them they are listed as vacant - you will see in the third column. The others presumably are not vacant, and indeed, we say they are not vacant. And as I understand what my friend intends to say about this, it is intended to be suggested by, or on behalf of the Chief Commissioner, that the sending out of this list constitutes advertising of positions. And you will see that advertising of positions is dealt with rather differently when I get to the regulations in question.

PN286

Now, then attachment 2 is a form that is said - for the superintendent to indicate their preferred position and any considerations to support those preferences. And if you go to attachment 2 you will see that it seeks the name of the superintendent, the location and then it seeks three preferences. I note, your Honour, that there is a requirement to circle whether - in relation to each preference there is a requirement to circle whether that position is current, that is, the currently held position, a vacant position or a changed position, in other words, a non-vacant position which the applicant seeks to move into.

PN287

And then over the page in attachment 3 there are notes to assist. Now, you will see at the top, it says:

PN288

The following notes will be used by the presentation panel to assist it in the allocation of superintendents.

PN289

So this, if you like, is the selection criteria, and it is quite detailed, but in a sense very general. I won't go through it, but one thing you might note, your Honour, is that is it not specific to any particular position. It seeks the demonstration of what might be called generic skills required of all positions, which rather tends to undermine the notion that what is here being done is a matching process of putting the best person in the best position because - - -

[2.23pm]

PN290

THE SENIOR DEPUTY PRESIDENT: Sorry, just say that again?

PN291

MR BROMBERG: It rather serves to undermine the notion that the process here is about matching the best person to the appropriate position, because the selection criteria seems to be general and not position specific. Now, you will then see an attachment 4. There is information given about presentations, and I will come back to that when I come back to the earlier document, but - - -

PN292

THE SENIOR DEPUTY PRESIDENT: Yes. These are presentations by the superintendents - - -

PN293

MR BROMBERG: Yes.

PN294

THE SENIOR DEPUTY PRESIDENT: - - - to support their preferences.

PN295

MR BROMBERG: Yes.

PN296

THE SENIOR DEPUTY PRESIDENT: Yes.

PN297

MR BROMBERG: Yes, and they don't seem to be interviews. They seem to be presentations, which is a matter that also is at odds with what is required under the regulations. When I say "regulations" I think by that, your Honour, I am really meaning the Act, the regulations and the transfer policy and other provisions in the certified agreement.

PN298

THE SENIOR DEPUTY PRESIDENT: Well, the instruments then.

PN299

MR BROMBERG: The instruments would be better, yes.

PN300

THE SENIOR DEPUTY PRESIDENT: Yes.

PN301

MR BROMBERG: And then, attachment 6 is a project outline which I will come back to that. But if I go back to the page, I think it is the third page in, headed "Process", you will see that what is asked of the superintendent is that they complete the preference form, and also attach to it a written presentation about the way in which they will implement the - what is called "the way ahead" in our preferred position. And then there are indications given as to what that vision statement should deal with, in fairly general terms, and I don't go to those in detail. Then paragraph numbered 3 on the next page tells us that the process intends to utilise a presentation panel. Would you excuse me just a moment?

PN302

I am sorry. Thank you, your Honour. You will see the presentation panel is there identified. It is made up of persons, all of whom are male, which has a consequence because when we get to the selection process you will see that both genders must be represented. It includes an external person, which, when we get to the selection panel in the instruments you will see there is no place for an external person, and there are other differences which I will come to. Now, there is then intended, at paragraph 4, that there be a presentation to the panel of about 20 minutes.

PN303

It is not necessarily clear whether that intends to include an interview, but it certainly doesn't talk in terms of an interview, and when we get to the selection, the proper selection process which we say should be used, it is mandatory that there be an interview. Then it says in paragraph 5:

PN304

If your first preference is for your current position your expression of interest will be given to your manager for comment. If your first preference is for another position your vision for that position will be provided to the relevant manager for comment, using the same criteria to be used by the panel.

PN305

Well, the input of that sort is fine to the proper process that we will take you to. Then, paragraph 6, matching process:

PN306

The panel will recommend a match to a position that best meets organisational needs and makes use of and further develops your skills, talents and experience. The panels recommendation will be based on your preferences, written and oral presentations, and the views of the relevant manager.

PN307

Now, when we come to the instruments you will see that that is totally foreign to the approach taken:

PN308

Once you have been notified of the result if you are unhappy with the position you have been given you will have the opportunity to meet with the Chief Commissioner to discuss it.

PN309

Now, I am not sure whether that is intended as some form of right of appeal, but it is certainly not an appeal of a kind that is contemplated by the instruments, where a formal and rigorous appeal process is put in place. And then, paragraph 7 deals, we would say in a most unsatisfactory way with persons who are away, who are going to be included somehow after the process has largely occurred. I am not sure what is intended here by the follow-up process, but one would have thought if you were away and you missed the match, the matching process, you miss your slot. Now, if you can then go to attachment 6, we get some idea there of the timeline for the process.

PN310

You will see that by 8 September the expressions of interest packages, which is Exhibit B1, are to be sent, and they have been. By 17 September expressions of interest close, and by that time the superintendent is required not only to have put in the expression of interest form, but also the written presentation. Now, then there is a week assigned for presentations to the panel. That is to take place between 22 and 26 September, and then on 29 September to 10 October there is the matching process, and you will see in the note on the right-hand side of the box there that it said:

PN311

All substantive superintendents matched to superintendent positions based on preferences, written and oral presentations, and views of relevant manager.

PN312

Now, the outline here has been somewhat shortened relative to the draft which is PRM14, and we don't know why but it may be pertinent for your Honour to see that in the draft, in attachment 6 to PRM14, which was the draft of this document that we are looking at, notifications of placements are said to occur mid-October. It is a rather longer chart.

PN313

THE SENIOR DEPUTY PRESIDENT: Yes.

PN314

MR BROMBERG: And then there is said to be a process of advertisement of consequential vacancies. I am not sure what that is, or I am not sure what they meant by "consequential", but perhaps our friend might in due course explain, and then placement day is said to be 7 November. Now, I think it is clear that so far as the participation of superintendents is concerned, the late - the closing date is 17 September, and the matching process is envisaged to take place by 10 October. Now, unlike the draft we don't know when the notification of placements will be, and our learned friend again may help, but we proceed on the basis that it is intended that as soon as the - shortly after the matching process is finalised there will be notification.

PN315

Now, that is all not very far away, and the timeframe is important on the question of balance of convenience, and I will come to that later. But can I summarise the nature of this process, and say about it that what it clearly intends is that there be a process for filling of both vacant and non-vacant positions, 15 vacant and the others not. The process contemplates that there be applications made and expressions given as to the preference of superintendents for particular positions.

PN316

[2.35pm]

PN317

The process then contemplates a selection process between competing candidates and lastly a selection based on defined criteria. It is a process which seeks the voluntary participation of superintendents in a merit selection process. And what we say is that there are very detailed and comprehensive regulations in place in the instruments that deal with that kind of process, that is, a process which seeks voluntary applications for merit selection. Now, I want to go to those instruments and the starting point, your Honour, I think is the Act and I will work my way through the Act and then to the Police regulations and then on to the certified agreements and the transfer and promotion policy which needs to be read in the context of the Act.

PN318

Can I take you to the Police Regulation Act, which I think is the first exhibit to Mr Mullett's statement. The Act, of course, appoints a Chief Commissioner and the like and I don't need to go to the mechanics, but perhaps I could go straight to section 8 which is on page 9 of your exhibit. It is headed "Appointments to and Promotions and Transfers within the Force". I should say for clarification, in relation to superintendents we are dealing with what are called sworn employees and we are, of course, dealing with officers.

PN319

THE SENIOR DEPUTY PRESIDENT: Well, there is a distinction between sworn employees and officers.

PN320

MR BROMBERG: There is a distinction between sworn and unsworn. The unsworn tend to be the administrative staff. Constables of police and any rank above that are sworn.

PN321

THE SENIOR DEPUTY PRESIDENT: Are sworn, yes.

PN322

MR BROMBERG: But I think above the senior sergeant level - - -

PN323

THE SENIOR DEPUTY PRESIDENT: They become officers.

PN324

MR BROMBERG: - - - they become officers. So inspector and beyond is an officer.

PN325

THE SENIOR DEPUTY PRESIDENT: Yes.

PN326

MR BROMBERG: You will see in 8(1), this is said:

PN327

The Chief Commissioner may in accordance with the regulations appoint, promote and transfer - - -

PN328

THE SENIOR DEPUTY PRESIDENT: I suppose you emphasise the words "in accordance with the regulations", do you?

PN329

MR BROMBERG: We absolutely do. You will see that the word "transfer" is defined, and I might just point it out, it appears in 8AB, right at the end just before 8A. On page 11 of your document you will see transfer is defined to mean the transfer of a member of the force from one position in the force to another at the same rank. Just immediately above 8A.

PN330

THE SENIOR DEPUTY PRESIDENT: Yes, I have got it.

PN331

MR BROMBERG: So going back to 8(1):

PN332

The Chief Commissioner may in accordance with the regulations appoint, promote and transfer so many commanders, chief superintendents, superintendents, chief inspectors and inspectors, and so many senior sergeants, sergeants, senior constable and constables as the Governor in Council thinks necessary.

PN333

Now, the Governor in Council's assent appears on ordinary reading of this to be required for appointment, promotion and transfer. We don't know the position in relation to that assent.

PN334

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN335

MR BROMBERG: We don't know whether assent has been given.

PN336

THE SENIOR DEPUTY PRESIDENT: Well, there has been no transfer yet. That wouldn't be necessary, would it, on my reading of that until there is a proposed transfer of a person or persons? That is when the assent would come in, wouldn't it?

PN337

MR BROMBERG: I think technically that is probably right, your Honour. Now, the grounds upon which a promotion or transfer can be made in accordance with section 8 are set out in section 8A and B, the bottom of your page 10.

PN338

THE SENIOR DEPUTY PRESIDENT: Yes.

PN339

MR BROMBERG: You will see that provides that in a promotion or transfer under section 8 and in an appeal under section 8AA regard should be had to the efficiency of the candidate and regard shall not be had to their relative seniority unless in relation only to the rank of senior sergeant, sergeant or senior constable they are considered to be equally efficient. The word "efficiency" is then defined in subsection (2).

PN340

THE SENIOR DEPUTY PRESIDENT: Yes, I see that.

PN341

MR BROMBERG: It means the aptitude and special qualifications necessary for discharge of the duties of the position in question together with merit, diligence, good conduct, quality of service, mental capacity, physical fitness. And then (b), potential development, executability and leadership and management skills, etcetera. This is important because this is a criteria, the primary criteria I suppose, under which a decision to appoint, promote or transfer must be made by reference to. And one thing that you might have noted, your Honour, is that this criteria does not appear anywhere in the process that I have taken you to.

PN342

It does appear in the transfer and promotion policy which we say should apply but it doesn't appear to be something that the selection panel in the impugn process is required to consider.

PN343

THE SENIOR DEPUTY PRESIDENT: Would not the selection panel be required to have regard to the Act or would not the Chief Commissioner by delegation to the selection panel not be required to have regard to section 8A(d) of the Act?

PN344

MR BROMBERG: We say certainly the commissioner and/or her delegate, but the process doesn't expressly invite that consideration.

PN345

THE SENIOR DEPUTY PRESIDENT: All right. I don't know what Mr Dalton's case is but unless the process excludes it would it not be expected that the Act and its regulations would be adhered to as long as it is within the process that is envisaged?

PN346

MR BROMBERG: Yes, I think that has to be the expectation because it is a requirement at law. But there is a requirement to consider a very detailed criteria of a different kind.

PN347

THE SENIOR DEPUTY PRESIDENT: Yes, well, perhaps I should let you develop your own.

PN348

MR BROMBERG: Yes. And there is an issue we think as to whether the criteria being required of the panel is entirely consistent with the criteria required in the Act. And unlike the transfer policy which requires that efficiency be the touchstone, the impugn process doesn't, or at least doesn't expressly. Now, in 8AA you will see that there is - appeal against non-selection for promotion is dealt with.

[2.44pm]

PN349

THE SENIOR DEPUTY PRESIDENT: What page do I find it?

PN350

MR BROMBERG: 8AA, page 10.

PN351

THE SENIOR DEPUTY PRESIDENT: Yes, I have got that.

PN352

MR BROMBERG:

PN353

Subject to the regulations a member of the force who considers that he or she has a better claim to promotion or transfer under section 8 than the member selected for promotion may appeal to the appeals board.

PN354

Paragraph 2 - clause 2, I am sorry:

PN355

No appeal may be had in relation to the rank of superintendent...

PN356

which is here relevant.

PN357

THE SENIOR DEPUTY PRESIDENT: So that is clause?

PN358

MR BROMBERG: 8AA(2).

PN359

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, thank you.

PN360

MR BROMBERG: So that there is no appeal given by the Act, but you will see that there is an appeal given by the certified agreement, or the document incorporated into it, and if I can then, just to follow through the appeals process, if you go to section 91F - I am sorry, a little bit earlier, to part 5, which begins at section 87, it establishes a Police Appeals Board, it sets out its - on page 72 of your document, your Honour.

PN361

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN362

MR BROMBERG: It sets out functions. I don't know that I need to go. There are about 30 or 40 sections of the Act that deal with this. I think your Honour might be well familiar with the nature of appeals boards in the public service.

PN363

THE SENIOR DEPUTY PRESIDENT: I am not actually, Mr Bromberg, I am happy to say.

PN364

MR BROMBERG: Well, I will quickly run through some of the provisions. There is a - - -

PN365

THE SENIOR DEPUTY PRESIDENT: I have a very superficial knowledge of it.

PN366

MR BROMBERG: Yes. Well, I the same, your Honour, but I don't think that anything in here took me by surprise. There is a board established, the functions are set out in section 88, it is to hear appeals. Membership of the appeals board is dealt with. There are matters dealt with about the constitution of the appeals board. Then, at section 91F, page 76, it deals with the nature of the - it gives a number of additional bases beyond what we saw in 8AA, dealing with non-selection for promotion or transfer.

PN367

It gives a number of additional bases for an application for a review, for instance, for a termination, and it does include a compulsory transfer. 91G, the nature of the powers of the board on appeal. It can affirm, set aside, a decision below. Then 91J in division 3:

PN368

Natural justice must consider the public interest and the interest of the applicant.

PN369

That is 91K, and then there are sections with deal with appearances and representation, summonses, and the like.

PN370

THE SENIOR DEPUTY PRESIDENT: Yes. We don't have to worry about that now, do we?

PN371

MR BROMBERG: No. Now, I would like to draw your attention, before we leave the Act, to section 82 which is the first section in division 4 headed "Fitness for duty".

PN372

THE SENIOR DEPUTY PRESIDENT: What page is that on?

PN373

MR BROMBERG: I am just finding it in your copy. I am sorry that in the time available we haven't been able to give you - it is on page 55.

PN374

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN375

MR BROMBERG: You will see that there is here a power for the Chief Commissioner to deal with a person who is incapable of performing his or her duties, or inefficient in performing his or her duties, and there is a specific process:

PN376

Notice of an inquiry must be given to the member concerned.

PN377

Section 83. Then there is a specific and comprehensive procedures at an inquiry, in section 84. It is bound by the rules of natural justice, for instance, in 3D. And section 85 deals with what might be done if an employee is considered inefficient, and that includes transfer of the member to other duties, through to dismissal. Now, I raise that, your Honour, because we say the Act does provide a code for dealing with persons who are inefficiently performing their duties, including for their removal for such non-performance. I raise that in the context of what is contained in paragraph 16 of Mr Mullett's statement, where on 29 August Mr Mullett alleged in a meeting with a number of representatives of the Chief Commissioner, including Mr Roy, that this process was really about under-performers.

PN378

THE SENIOR DEPUTY PRESIDENT: And he says that nobody denied his comments, his suggestion. Yes.

PN379

MR BROMBERG: Yes. Now, that is a matter that we will want to pursue on the final application, your Honour, and if indeed this process has ulterior motives, in circumstances where the Act codifies the manner in which under-performance or inefficiency is to be dealt with, then at the end of the day the Commission may well be satisfied that the process is contrary to the Act, and in terms of - - -

PN380

THE SENIOR DEPUTY PRESIDENT: Pursuant to the Police Regulation Act.

PN381

MR BROMBERG: Yes, and in terms of disposing of the applications before it, that might be a weighty consideration. Now, I want to then move to the regulations, and in doing so I remind your Honour of the observation that you yourself made in section - when we went to section 8(1), that the Commission - the Chief Commissioner's power - - -

PN382

THE SENIOR DEPUTY PRESIDENT: Yes.

PN383

MR BROMBERG: - - - is subject to being exercised in accordance with the regulations.

PN384

THE SENIOR DEPUTY PRESIDENT: Yes. Where do I find regulations, Mr Bromberg?

PN385

MR BROMBERG: Exhibit 2 to Mr Mullett.

PN386

THE SENIOR DEPUTY PRESIDENT: Yes.

[2.52pm]

PN387

MR BROMBERG: Now, you should have before you the Police Regulations 2003.

PN388

THE SENIOR DEPUTY PRESIDENT: Yes.

PN389

MR BROMBERG: They have been recently amended. The relevant section dealing with transfers and promotions is in part IV beginning at section 21. It is at the bottom of page 4 of your copy and goes over to page 5.

PN390

THE SENIOR DEPUTY PRESIDENT: Yes.

PN391

MR BROMBERG: Now, subclause (1) says:

PN392

A member of the Force is liable to immediate transfer to any part of the State.

PN393

Well, it is recognised that it is - employment is capable of being required to be performed in any location in the State; there is not a difficulty with that. Clause 2 then deals with how a position is filled, and it says this:

PN394

If a position is or is expected to become vacant -

PN395

and we emphasise the word "vacant" -

PN396

the Chief Commissioner may fill the position by way of transfer of a member or (b) advertise the position and promote or transfer an applicant to the position.

PN397

and we don't need to worry about (c). There is there a capacity to deal with the filling of a position you will see in two ways: firstly, by a direct transfer without advertising, selection and appointment; or, secondly, by way of advertising and a merit selection process which we will come to. And regulation 23 requires advertising of a vacant position in the Police Gazette, unless the position is going to be dealt with by way of 21(2)(a), that is a direct transfer. 23(2) deals with what an advertisement must contain:

PN398

Must identify the position, summarise the duties -

PN399

etcetera -

PN400

state the requirements of the holder of the position to reside in any particular premises.

PN401

None of that has been done here, of course. There has been no advertisement in the Gazette. The advertisement, if the list of available positions is an advertisement and it doesn't appear to meet the requirements of subclause (2). Then clause 24:

PN402

The Chief Commissioner must cause the name of the member selected for promotion or transfer to be published in the Police Gazette.

PN403

That seems clearly intended to allow for the appeal process to take place. And the appeal process is also dealt with by the regulations in part V which is on - in part V on page 6, and there are quite - there are further rigorous requirements in relation to the procedures of an appeal board. For instance, the Commissioner - if you look at clause 30:

PN404

The Chief Commissioner is required to lodge a copy of any relevant personnel selection documentation and a written statement of the grounds on which the selection for promotion or transfer was made.

PN405

The person who was promoted or transferred must lodge within a particular time a written statement. The appeal board must provide a statement of the grounds on which selection for promotion or transfer was made. So there is quite a rigorous process for testing the decision, including a requirement that the reasons for the decision be provided in writing. Clause 31 deals with appearances in an appeal. And I don't think I need to trouble you any further in relation to the regulations.

PN406

I want to then move to the transfer and promotion policy which you will find as attachment 5 to Mr Mullet's statement. Now, I have already indicated that the certified agreement picks up this document and incorporates it into the certified agreement. So what we are looking at now is a part of a certified agreement, in essence, which we say is not being applied in relation to the selection process which we seek to impugn. If I can take you to the third page of the document, at 2.1.1 it is made clear that the policy relates to sworn employees only. In the second paragraph there it says:

PN407

This policy provides for the filling of vacancies on transfer or promotion for sworn employees, not including reservists ...(reads)... will be made on the basis of superior efficiency.

PN408

Then you will see a little further down, the second last paragraph in this section:

PN409

Application files will be collated and managed at the district department level and selection panels convened for all advertised positions ...(reads)... may endorse and subsequently approve a selection recommendation.

PN410

Then over the page you will see efficiency is defined, and what is picked up is the definition that I took you to in the Act. Force redeployment group is defined; that is a group established to manage the redeployment process involving all employees who have been declared surplus or unattached. That is the group that looks after unattached officers. Key selection criteria is defined. Promotion is defined. You will see there that there is reference to the notion that you own a position whilst you hold it. Selection panel is defined, and perhaps we - I draw your attention also to the definition of "transfer" which appears consonant with the Act. Then over the page, 2.1.4(a), general provisions:

PN411

To be eligible for transfer or promotion to an advertised vacancy, an employee must be available...

PN412

etcetera. Now, the whole process from the regulations through to this policy is contingent on a vacancy. That is absolutely clear. I wanted to draw your attention to paragraph (h), eligibility criteria for transfer or promotion to officer positions.

PN413

THE SENIOR DEPUTY PRESIDENT: Sorry, where are you taking me, to (h).

PN414

MR BROMBERG: (h) on the next page. It is still in 2.1.4.

PN415

THE SENIOR DEPUTY PRESIDENT: Yes.

PN416

MR BROMBERG: (h):

PN417

In addition to the general provisions, senior sergeants and officers are eligible to apply for any advertised vacancies up to the rank of commander...

PN418

when they have met certain conditions. Now, the reason that I draw your attention to that is that both the regulations and this policy envisage that where there is a vacant position, a person can be transferred or promoted into it so that an inspector, for instance, who is at a lower rank than a superintendent, can apply for a vacant superintendent 's position. Now, that is at odds with the process here being utilised because the process here being utilised is available only to superintendents.

PN419

Nobody other than superintendents have been invited to apply. Then at 2.1.5, action prior to advertising vacancies, and a number of things need to be done even before the advertising. Paragraph (a):

PN420

When the position becomes vacant the district commander and department head will examine the position description and confirm the description and decide whether the position is to be filled.

PN421

Paragraph (c) over the page. This is quite important:

PN422

Prior to the advertisement, the district commander and department head must ascertain if a surplus unattached sworn employees available at that rank by consulting with the Force re-deployment group.

PN423

And then the next paragraph:

PN424

If suitable the surplus unattached sworn employee will be assigned transfer to the position.

PN425

So as long as there is a suitable unattached employee available that person must be given the job, and that aspect forms no part of the impugn process here. Then 2.1.6 deals with the advertisement of positions:

PN426

Provided there are no suitable surplus unattached sworn employees available senior constables or constable positions, other than general duties positions, or positions at the rank of sergeant or above, will be advertised in the Victoria Police Gazette.

PN427

That was required by the regulations. Over the page, paragraph (c). I just draw attention on the same them I have been harping upon somewhat, you will see in the last line it said:

PN428

The position may not be filled until the position is vacant.

PN429

Another indication that the whole process relies upon the existence of a vacancy for the position that is being - that is the subject of the process. At 2.1.7. I won't go to the detail, but there are quite comprehensive requirements about the nature of applications, and how they are to be made, and who they are to go to, and by when, and what happens if they are late, and there is a requirement in (b) for an application to give the phone numbers of two referees. There are requirements in relation to the statement to be submitted, addressing the key selection criteria.

PN430

I had in mind (e) when I mentioned late applications before. (f) restricts the manner in which applications may be withdrawn, and then 2.1.8 deals with the composition of and arrangements for selection panels:

PN431

Selection panels must be convened for all advertised positions. A selection panel must assess the relative efficiency and suitability of applicants for transfer or promotion to a position against the key selection criteria and qualifications contained in the position description.

PN432

It is quite different, your Honour, to what is required in the impugn process. Interviews:

PN433

At the discretion of the district commander, the department head, interviews may be conducted for any advertised position, but must be conducted for all positions at sergeant and higher ranks.

PN434

There is no requirement for interviews under this process, as we can see it. Composition of selection panels:

PN435

Composition of the selection panel is to be determined by the relevant Deputy Commissioner.

PN436

In the next paragraph you will see it must include at least one member of the same gender. It has to have a convenor:

PN437

...which must be an employee having line management responsibility for and at least two rank classifications senior to the vacant position. Must have a second member, an employee nominated by the convenor, at least one ranked classification senior to the position, and where practicable, the immediately line supervisor of the position. It must have an independent member, an employee independent of the district department and nominated by the convenor at least one rank classification senior to the position, and it must have an additional member in the case of a specialist or technical position.

PN438

Now they are very specific requirements, none of which feature in the impugn process. Equal employment opportunity compliance is dealt with in small (d), and then 2.1.9, again very comprehensively deals with the matter of assessments, short-listing, referees, preparation for interview, conduct of the interview, and then (e), importantly, determining selected applicants. Those are the matters that need to be addressed, and you will see over the page that it is said:

PN439

In determining the most suitable applicant panel members must compare the relative efficiency of applicants. Seniority is not a factor in considering the efficiency of applicants.

PN440

And again, there is a reference specifically to what the regulations require - I am sorry, to what the Act requires. Now, thereafter there is dealt with the process of selection. It is actually the delegate that selects. You will see that at 2.1.10, and the delegate is required to review the selection panel's final report, and be satisfied the selection has been made in accordance with the provisions of this policy. The delegate can endorse/reject the panel's recommendation, and there are consequences should a rejection occur, and then there is some more said about appeals, in 2.1.11.

PN441

Now, the time hasn't allowed us to go through the policy perhaps as comprehensively as we might need to when the matter goes to final hearing, but, your Honour, you will see immediately that we are dealing with a very comprehensive, highly prescriptive policy which is almost entirely at odds with the manner in which the impugn process is intended to take place.

PN442

We say about this policy that it provides the manner in which - it provides in essence a code for dealing with a transfer by way of application or expression of interest, and competitive selection on the basis of merit. This is the merit selection policy. It can't be avoided by the Chief Commissioner coming up with a different merit selection policy.

PN443

[3.11pm]

PN444

It can't be avoided simply because the Chief Commissioner decides she won't advertise in the Gazette a vacancy. It is the way in which if there is a vacancy, and again we emphasise there must be a vacancy for the relevant position, it is the way in which the certified agreement requires that the merit selection process be undertaken and that is not what is happening. There is clearly an arguable case that the appropriate selection criteria required by the certified agreement is not being adhered to and we would say that the resolution of the dispute about the application of the policy would require that this process be prohibited.

PN445

Now, I also need to touch upon the contents of the heads of agreement, PRM7, which has been incorporated into the certified agreement in the manner I indicated earlier. If you go to PRM7, and I draw your attention to clause 3, headed "Transfers and Promotions". You will see there that at 3.1 it says:

PN446

All officers will be appointed at the Office of Chief Commissioner and may be placed at any work location in any department in accordance with the transfer and promotion policy and establishment control occupancy management policy.

PN447

I don't think we need to go to the latter policy at the moment, your Honour, but it is clear that it has to be done in accordance with the transfer and promotion policy. And then 3.2:

PN448

Victoria Police commits to advertising and filling a commissioned officer position when one becomes vacant or a new position is created.

PN449

There is a specific commitment to advertise a vacancy and deal with it in the way that the regulations envisage an advertising process and in the way that the transfer and promotion policy envisages the advertising and filling of a position. Now, that is just simply not being done, in our respectful submission. There are 15 vacant positions, they haven't been advertised and they are not being dealt with in accordance with the transfer and promotion policy. They have to be advertised and they have to be dealt with in accordance with the policy.

PN450

And you will see specifically in relation to superintendents, 3.3 does provide a right of appeal against non-selection to the rank of superintendent and commissioner on the basis of superior efficiency. You will recall the Act excluded the right of appeal. There is by reason of the certified agreement a right of appeal given. Now, it might be that that is done by way of a private arbitration, I suppose, in a way that the Commission has the power to do so but there is now a right of appeal. There is no right of appeal for the superintendent in the impugn process other than go and have a discussion with the Chief Commissioner.

PN451

Now, the difference between the appeal process and the process of discussion with the Chief Commissioner are manifest and I don't think I need to trouble you with the disparity. Now, in our respectful submission all of the material before you indicates a very strong serious issue to be tried, both on the case that the Chief Commissioner is not applying the certified agreement and, secondly, on the basis that as a matter of fairness and equity ultimately the Commission ought to address the situation if it is not able to address it through the dispute resolution process by way of an exceptional matters order.

PN452

Now, there are some pre-conditions for the Commission exercising a power to make an exceptional matters order. They are dealt with in 89A(7) and also section 120A. We say each of the pre-conditions the Commission can be satisfied at least to the serious issue level about. There has been a genuine attempt to reach agreement. There is no prospect of agreement being reached. It is appropriate to settle the exceptional matter by arbitration - I am reading from 89A(7). The issues involved are exceptional issues and a harsh or unjust outcome would apply if the industrial dispute were not to include the exceptional matter.

PN453

Now, the jurisprudence of the Commission we would say has not imposed a high hurdle in relation to any of those elements and this does apply to a single business in the way that section 120A requires. And we would need to satisfy you also of the public interest and we say that there is a serious issue that we would say satisfied the Commission. On the question of the Commission's capacity to make interim orders, including interim exceptional matter orders, I want to go to two decisions because I want to deal, very quickly if I can, with the Commission's power and then come back to balance of convenience.

PN454

I want to rely on two decisions if I may. The first is a decision of Senior Deputy President Watson in the Maritime Union of Australia and ASP Ship Management Pty Ltd. It is PR920954. It is a recent decision or a reasonably recent decision. Well, it is a year ago. I was in it and it seemed like yesterday, your Honour, but time does pass. Can I take you to paragraph 23 where his Honour discusses the relevant principles under the heading Approach to the Making of Interim Order.

[3.20pm]

PN455

THE SENIOR DEPUTY PRESIDENT: Yes.

PN456

MR BROMBERG: And he sets out there the submission of the union - or the unions that an order can be made pursuant to the Commission's power under section 111 of the Act within section 111(1)(b) and that the unions in this case sought the exercise of the power of the Commission to make an interim order to ensure the effective exercise of final relief sought. It was said to be a process analogous to that that might entice the jurisdiction of the Federal Court. There is reference made to Patricks in the High Court. You might be familiar with that, but the High Court in Patricks says very clearly that the Federal Court has jurisdiction to make interlocutory orders to prevent frustration of its process in the present proceedings.

PN457

THE SENIOR DEPUTY PRESIDENT: Yes.

PN458

MR BROMBERG: And clearly the Commission has that power. We in that case took his Honour to Media Entertainment and Arts Alliance which I think you have some familiarity with.

PN459

THE SENIOR DEPUTY PRESIDENT: That was one of the cases that I was in.

PN460

MR BROMBERG: Yes.

PN461

THE SENIOR DEPUTY PRESIDENT: Yes.

PN462

MR BROMBERG: Paragraph 26 - here the High Court was dealing with the Commission and it - the paragraph which is here set out is talking about the power under 111(1)(t).

PN463

THE SENIOR DEPUTY PRESIDENT: Yes, the High Court said the Commission could make orders beyond interim orders that might even travel beyond - - -

PN464

MR BROMBERG: Jurisdiction.

PN465

THE SENIOR DEPUTY PRESIDENT: - - - the scope of final orders.

PN466

MR BROMBERG: Yes. Well, it is wrong to say beyond jurisdiction, but beyond what made be made finally.

PN467

THE SENIOR DEPUTY PRESIDENT: Yes.

PN468

MR BROMBERG: In the exercise of preserving the Commission's jurisdiction to make the final order, and you will see the relevant sentence is in the middle of the first paragraph, about six or seven lines down. Do you see the reference to interim award? And the High Court says:

PN469

An interim provision of that kind may well be necessarily expedient for the speedy and just hearing of termination of dispute, particularly if as was suggested in this case there is a possibility that conditions will be altered so as to render the Commission's decision irrelevant, or so as to defeat its jurisdiction, and that is so even if the provision operates in a wider area than that to be regulated by the final award, for it may be necessary or desirable to consider all aspects of existing employment practices and arrangements before determining the provision that should be made with respect to the matters in dispute.

PN470

And at paragraph 29 his Honour says having regard to those authorities he is satisfied the Commission is able to make interim orders.

PN471

THE SENIOR DEPUTY PRESIDENT: Yes. What was Hoyts trying to do in that case, can you remind me?

PN472

MR BROMBERG: Ms Gooley, who I think knows something about it - - -

PN473

THE SENIOR DEPUTY PRESIDENT: Yes, she certainly does.

PN474

MR BROMBERG: - - - says that her recollection is that Hoyts were trying to remove - no. Move, I am sorry. Move projectionists, employees who were employed as projectionists. That is right. From Hoyts Corporation to the subsidiary - - -

PN475

THE SENIOR DEPUTY PRESIDENT: Delarene and Rampton Pty - yes.

PN476

MR BROMBERG: Delarene. That is it. I know your Honour spent a lot of time on that matter. But the principles are clear. I should draw your Honour's attention to what Deputy President Watson says at paragraph 31, where he wonders whether the power extends - whether the power to make an interim order is subject to section 89A. He doesn't decide it, and in the end he says, well, if it is I can make an interim exceptional matters order.

PN477

THE SENIOR DEPUTY PRESIDENT: Yes.

PN478

MR BROMBERG: And he goes on to do that. Can I say with respect to his Honour that section 89A does not in any way, in our respectful submission, prohibit the Commission's power to ensure that its jurisdiction is not defeated. In the same way as the High Court in the passage that we have just been to says that an interim award to ensure that the Commission's jurisdiction is not defeated may travel beyond the scope of a final award, or what might be made as a final award. So too is the case in relation to 89A. It may not be - - -

PN479

THE SENIOR DEPUTY PRESIDENT: Yes. How do you say the Commission's jurisdiction would be defeated if there is no order made? No interim order made?

PN480

MR BROMBERG: The process will take place - - -

PN481

THE SENIOR DEPUTY PRESIDENT: Yes.

PN482

MR BROMBERG: - - - before the Commission can hear and determine the application for relief. So that by the time that - and I am assuming, your Honour, that there will be some time needed to prepare the case, some time needed to make available for the hearing of the case. I am assuming that none of that will be able to be done at least before next Wednesday, and probably not some time into the future, even if it was expedited. I am assuming that one would need a number of weeks. By that stage, if the process barrels on in the way that it is intended to, it will have been all but completed, and the - - -

PN483

THE SENIOR DEPUTY PRESIDENT: But until there has actually been a transfer, well, apart from the hard work that a lot of people put in, nothing has happened that would defeat the Commission's jurisdiction, would it, Mr Bromberg? The Commission could step in at any time prior to a superintendent being transferred to stop that occurring. I understand your balance of convenience argument.

PN484

MR BROMBERG: Yes.

PN485

THE SENIOR DEPUTY PRESIDENT: But we are talking about defeating the Commission's jurisdiction. Assuming the Commission can't reverse the transfer, which I don't know about. But assume that. The Commission could make an order at any time prior to the transfer taking effect that it should not take effect, could it not?

PN486

MR BROMBERG: Yes, it could do that. But whether it could do that before the transfer takes effect is a matter of timing, and that likely depends on the Commission and the parties.

PN487

THE SENIOR DEPUTY PRESIDENT: Yes. Well, this certainly can't occur before October, according to the timelines. Yes.

PN488

MR BROMBERG: It looks like about mid-October.

PN489

THE SENIOR DEPUTY PRESIDENT: Yes.

PN490

MR BROMBERG: But what we seek to do is to avoid not only the transfer - - -

PN491

THE SENIOR DEPUTY PRESIDENT: You want to avoid the process leading up to it.

PN492

MR BROMBERG: We want to avoid the process.

PN493

THE SENIOR DEPUTY PRESIDENT: Yes.

PN494

MR BROMBERG: For good reasons that I will come to when I deal with balance of convenience.

PN495

THE SENIOR DEPUTY PRESIDENT: Yes.

PN496

MR BROMBERG: So it is some answer, I accept, your Honour, to be able to say, well, if we move reasonably quickly at least we can stop the transfer itself. But what the application seeks to do and what the final orders seek to do is stop any further step, because any further step is going to involve prejudice to the superintendents in a way that I will come to when I deal with balance.

PN497

THE SENIOR DEPUTY PRESIDENT: Yes. Yes.

PN498

MR BROMBERG: So just to complete the reference I want to make to the MUA decision, can I just draw your attention to paragraph 33 of the decision, through to paragraph 36. His Honour determines that he has got the jurisdiction to make an interim order. He does so. He does so by reference to - he in fact makes an interim exceptional matters order, and insofar as that it necessary here - we don't think it is, but insofar as it is, then each of the elements that are required to be satisfied by 89A(7) and section 120A, are in this case satisfied, really for the same reasons that his Honour averts to. An interim order in any event can be made in the context of section 170LW, and that was found to be the case by Vice President Lawler.

PN499

THE SENIOR DEPUTY PRESIDENT: In the Telstra case.

PN500

MR BROMBERG: Yes, in the Telstra case. I note that it is under appeal.

PN501

THE SENIOR DEPUTY PRESIDENT: Yes, it is.

PN502

MR BROMBERG: I am not sure where it is at, but I think the decision still stands.

PN503

THE SENIOR DEPUTY PRESIDENT: The decision still stands. I am not sure whether the appeal has been heard or about to be heard.

PN504

MR BROMBERG: Yes. I am not sure either, I must confess. This is Print PR933892. Can I quickly draw your attention to two or three aspects? At paragraph 13 his Honour comes to his conclusion as to what application of the agreement means, and he says:

PN505

Whatever else the expression disputes over the application of the agreement include they certainly include disputes over whether the agreement applies in particular circumstances, and disputes over how the agreement applies in particular circumstances.

PN506

That is this case. Unquestionably, in our respectful submission. His Honour at paragraph 57, last line, says that he has got power in a 170LW process to make orders under section 111. Then at paragraph 71 he makes clear that he has got the power to make interim orders under 111(1)(b) and he goes on to deal with the nature of interim orders and he says that the approach to be utilised should be similar to that adopted by court in the making of interlocutory orders. He concludes at the bottom of paragraph 81 by reaffirming that he comes to the view that he has got power to make an order in the nature of an interlocutory injunction pursuant to 111(1) of the Act. At paragraph 87 in the middle of that paragraph he says specifically that:

PN507

...that power can be exercised to preserve the subject matter of the dispute until the Commission has the opportunity to determine whether or not the agreement applies to all of the employees.

PN508

It is just below halfway down that paragraph 87.

PN509

THE SENIOR DEPUTY PRESIDENT: Yes, but that was an order made to prevent the termination of the employment of several employees, was it not?

PN510

MR BROMBERG: Yes.

PN511

THE SENIOR DEPUTY PRESIDENT: There is no suggestion of that here.

PN512

MR BROMBERG: No. Can I just briefly deal with what he says at paragraph 88. He does suggest, your Honour - and there is a story behind this - that it might be appropriate, if you are seeking an interim order, to give an undertaking as to damages. It was a submission he made as counsel in the MUA case, your Honour, which Deputy President Watson did not accept.

PN513

THE SENIOR DEPUTY PRESIDENT: Something to which his Honour the Vice President is obviously still attracted.

PN514

MR BROMBERG: Yes, and whilst I was able to resist him on that occasion, I suppose I have more difficulty now. Can I say about that that, with respect to his Honour, it is quite wrong as a matter of principle and before any such order is made it really ought to be the subject of some detailed consideration by the Commission because it overturns many decades of practice. It is the first suggestion of that sort I know of in the jurisprudence of the Commission in relation to interim orders. We don't have the time to do that now and it really does require some careful consideration.

PN515

Can I tell you this, your Honour, that if your Honour - we say firstly your Honour ought not be attracted to the notion but if your Honour were attracted to the notion, I do have the instructions to give the undertaking. If the undertaking is necessary to be given, it can be given but I would urge your Honour to receive the undertaking on the basis that a fulsome argument about its necessity would be allowed for at a later time because, with respect, it does seem to us to be a matter of some great importance which ought not be dealt with in the shortness of time available here. But, fundamentally, we would say there is no requirement and it ought not be a feature of any order that the Commission makes.

PN516

THE SENIOR DEPUTY PRESIDENT: Did his Honour require an undertaking in the Telstra case?

PN517

MR BROMBERG: Well, I don't think that this was subject to argument because he is only asked to determine whether he has got jurisdiction to make an interim order.

PN518

THE SENIOR DEPUTY PRESIDENT: Yes. Then he subsequently made an interim order, did he not?

PN519

MR BROMBERG: My instructor thinks he did.

PN520

THE SENIOR DEPUTY PRESIDENT: I think he did but I am not sure.

PN521

MR BROMBERG: Yes. I don't recollect.

PN522

THE SENIOR DEPUTY PRESIDENT: Well, that can be researched.

PN523

MR BROMBERG: I don't recollect and I don't know whether if he did he required an undertaking but he certainly envisages - - -

PN524

THE SENIOR DEPUTY PRESIDENT: Floated it.

PN525

MR BROMBERG: Yes. Can I then turn to balance of convenience. The first thing we say is that the maintenance of the status quo is a primary consideration on the question of interim relief. Your Honour will know that that is the case in terms of interlocutory injunctions granted by courts. It is perhaps more so the case given the provisions of the certified agreement here in question and if you go to the dispute resolution clause, which is clause 8 - - -

PN526

THE SENIOR DEPUTY PRESIDENT: Of the certified agreement?

PN527

MR BROMBERG: Of the certified agreement, 8.3.1.5. It says that:

PN528

Until the matter is determined, work shall continue normally in accordance with the custom and practice existing before the dispute whilst discussions take place.

PN529

So it is clear that what was intended was that there be no change until the dispute is resolved. In our respectful submission, although my learned friend might say, well, that is only referring to work, with respect, the spirit of the provision and its content needs to be addressed in a balanced way and it must have been intended that all parties hold their hand whilst the process for resolving the dispute is undertaken. And we say that that is a primary consideration for your Honour in this case.

PN530

Now, if the applicant is ultimately vindicated and the Commission orders that the process should not have been implemented, in the absence of the interim relief sought, the superintendents in question will suffer, in our respectful submission, irremediable prejudice. Those opposed to the transfer - and Mr Mullett tells us that insofar as the union has been able to identify views there is a substantial body of supervisors opposed - those opposed will be forced to participate in the process, at least by no later than next Wednesday, if they don't participate, they substantially increase the risk of losing their position or being transferred to a position that they don't want to be in.

PN531

In other words, if they sit back and wait for the Commission to decide that we are right, if the Commission ultimately - if the Commission ultimately doesn't do that, then those persons will have lost an opportunity and, in essence, face an invidious choice. They are, in essence, being forced to participate in a process that they are opposed to. They are also, in practical terms, forced to participate because a failure to participate is likely to be perceived as obstructionist, as an indication of non-committal to the program of the Chief Commissioner, and it is unlikely that in relation to the sort of people we are dealing with at the level of seniority involved that they are going to do anything other than participate despite their wishes.

PN532

THE SENIOR DEPUTY PRESIDENT: What detriment do they suffer if they participate?

PN533

MR BROMBERG: Well, quite substantial. Firstly, your Honour, there is the prejudice of being forced to participate in a process that they shouldn't have to participate in.

PN534

THE SENIOR DEPUTY PRESIDENT: Well, that is a - - -

PN535

MR BROMBERG: It is a loss of a right. If they have a right not to participate, they are being forced and their right is compromised. Now, your Honour might say, well, that might be so, but does it have substance? Well, yes, it does. It does in a number of respects. The mere indication of a preference has the capacity to irremediably prejudice the position of a superintendent because it is highly likely that that will impair the superintendent's relations with others, including their colleagues. Your Honour, what they are being asked to do - - -

[3.39pm]

PN536

THE SENIOR DEPUTY PRESIDENT: These are all matters that are addressed in Mr Mullet's statement, are they?

PN537

MR BROMBERG: Yes. Yes, to some degree they are essentially.

PN538

THE SENIOR DEPUTY PRESIDENT: Yes.

PN539

MR BROMBERG: What they are being asked to do is to express an interest in the positions held by their colleagues, by others. They are being asked to say: I want to move to the job over here which is held by my colleague over here; or I want to move over there to a job over there which is held by that person. They are being asked to express potentially three preferences to undermine the existing incumbent office holder and indicate a desire to take their position.

PN540

Now, that, your Honour, in the context of a workforce that perhaps more uniquely than any relies on trust and teamwork and harmony is a recipe for disharmony, disadvantage and a breakdown in relations in circumstances where, at the end of the day, the Commission might come to the view that none of this should ever have been embarked upon. Now, additionally, the superintendent that indicates a preference for a position other than their own position expresses a desire to leave; expresses what might be thought to be a lack of commitment to their current co-workers and their current direct team.

PN541

That is not something that the Commission will ever be able to fix, if the Commission ultimately finds that the applicants are right. And they are matters of importance, your Honour, and they are matters that go not to the transfer itself but to the participation in the process which we say is flawed and ought to be stopped for reason that it will prejudice the persons concerned. Additionally, the fact of their participation may be used against them on the merits of this application. It might be ultimately said to you: well, everybody has applied, your Honour, they all want to be in it. Now, when you deal with the merits of the applicant's application, you should take into account that they are all - they have all consented, they are all there.

PN542

The fact of participation may also serve to put in place a pre-condition that currently does not exist, and can I remind your Honour - and this is a fairly important point - regulation 21(2) allows for a position to be filled where there is a vacancy or an expected vacancy. That is a pre-condition we say to the exercise of the power. It is a - - -

PN543

THE SENIOR DEPUTY PRESIDENT: Sorry, that was regulation 22?

PN544

MR BROMBERG: 21(2).

PN545

THE SENIOR DEPUTY PRESIDENT: Yes.

PN546

MR BROMBERG: Now, by indicating a preference to move and give up their position, and by the circumstances being required to do so, that might create an expectant vacancy in circumstances where one doesn't exist now.

PN547

THE SENIOR DEPUTY PRESIDENT: I suspect the Commissioner would argue that there are 75 expected vacancies because she has created them.

PN548

MR BROMBERG: Well, that is the problem.

PN549

THE SENIOR DEPUTY PRESIDENT: Or intending to create them.

PN550

MR BROMBERG: The problem is, your Honour, that there is no power to remove a person other than for incapacity, inefficiency or when you have a vacant position to transfer them into. You can't just, in our respectful submission, create vacancies when there are none. That is not the way the scheme works.

PN551

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I understand your argument.

PN552

MR BROMBERG: Yes. Now, additionally the process itself involves substantial time, effort and work on behalf of superintendents, mostly in their own time. Now, I think your Honour recognised that. It may be a weighty consideration, it may not be, but it is a consideration which, together with the others, we say, has some bite. The matching process itself is going to create difficulty because it might be that transfers don't occur till later but once decisions have been made as to who should go into which position, what will be created is winners and losers. Some will win and be identified as winners; and some will lose, even before they are transferred, and this is likely to happen some time - I think the dates are anywhere - any time after 22 September - I am sorry, 29 September the matching process begins.

PN553

So from 29 September the attributes of each of the superintendents are going to be considered, and winners and losers are going to be announced. And there is inevitably going to be harm done to the reputation of some or other of the superintendents involved. There will be losers; they will be known to have lost. And in circumstances where ultimately the Commission might say: well, the process is flawed, there will be no transfers, the Commission will never be able to remove the irreparable harm that will be caused to any particular superintendent by the announcement that they are not regarded as fit for the job which they hold.

PN554

And, of course, once the winners and losers are announced, people will start making relocation decisions where they expect to go to a position that requires relocation. That might involve making decisions about house movements, schools, the jobs of spouses, etcetera. And those decisions will be made not from the date of transfer, but they will be made earlier from the time at which an announcement is made. Now, of course, once relocations occur there will be the actual prejudice involved with the relocation; and Mr Mullet deals with that as well.

PN555

On the other hand, what is the prejudice to the Police Force, we ask. There are 15 vacant positions and they should be filled. They can be filled in the ordinary way. Nobody seeks to stand in the way of those positions being advertised and filled.

PN556

THE SENIOR DEPUTY PRESIDENT: Why haven't they been filled to date?

PN557

MR BROMBERG: We don't know. And the agreement that accompanies now the certified agreement requires them to be filled. In any event, the fact that they haven't been filled - and in the absence of some reason as to why they have taken so long to be filled, I think some of them up to three years, denies the capacity of my learned friend to say there is an urgent need to fill them by way of this process or any other process.

PN558

THE SENIOR DEPUTY PRESIDENT: Well, this process might fill some of the vacant positions but it would then result in other positions becoming vacant.

PN559

MR BROMBERG: It would, it would.

PN560

THE SENIOR DEPUTY PRESIDENT: It is not a - tell me if I understand it correctly, this process will not add 15 people to positions?

PN561

MR BROMBERG: No, it doesn't look like it. So that there will still be 15 vacant positions and all we are doing is swapping chairs. So it is not the filling of the vacant positions that seems to be the object which I think is telling of what the process is about, your Honour. Now, there is no suggestion that the Force is disadvantaged by the way in which the work is being performed. The people that are in these jobs are being selected presumably in accordance with a selection process of the kind that your Honour has seen and, in fact, given what is later said in the material that Mr Mullet puts before you, the Chief Commissioner is quick to denounce any suggestion that there are poor performance and that this is a process for dealing with poor performance.

PN562

I took you to the meeting in which there was no denial but there was a subsequent denial, as Mr Mullet subsequently tells you. So I don't perceive that my learned friend is going to here say that this process is urgent because there is a need to deal with poor performance. Presumably he, and consistent with his client's position, will say: well, everybody is performing their duty okay. So we say in answer to that, well, where is the fire? Why is there a need to have this process underway in the - with the haste and the short timetable that is intended? Why can't the process be put to one side for three, four, five weeks in order to allow the Commission to deal with the application and come to a final view and allow the process to be conducted in an orderly way with the benefit of the Commission's view as to the rights and wrongs of the particular contentions being agitated by both parties?

PN563

I am sorry for taking as long as I have, your Honour, but those are the submissions.

PN564

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Bromberg.

PN565

[3.51pm]

PN566

MR DALTON: Thanks, your Honour. It is the submission of the Chief Commissioner that insofar as you are being asked to make an interim order you shouldn't do so and the reasons for that are that you don't have the power to do it and even if you do have the power it is the submission of the respondent that the argument that is put in a substantive sense is bound to fail for jurisdictional and merit reasons, so that the arguable case then is non-existent. Secondly, in relation to balance of convenience, that that is not strong, at least at this stage.

PN567

Your Honour, in relation to the submission that you don't have power to exercise interim relief, I need to take you to the certified agreement and the disputes settlement procedure because as you know, your Honour, that is the only source of your power under 170LW.

PN568

THE SENIOR DEPUTY PRESIDENT: Yes.

PN569

MR DALTON: I note it is also asked under the exceptional matter order provisions, and I will address that separately. If we could deal firstly with the LW basis for power. Your Honour, I don't think that I need to take you to all the cases that make it clear that you have to first of all characterise the dispute and then work out - provided the dispute is one that falls within the scope of the settlement procedure and 170LW, ascertain what powers you have. Now, leaving to one side for the moment the question of characterisation of the dispute, we will just deal directly with what in fact the parties have agreed for the Commission to do and you will find that at 8.3.1.3 firstly.

PN570

THE SENIOR DEPUTY PRESIDENT: Yes.

PN571

MR DALTON: Your will see it says:

PN572

If the matter is not resolved it shall be referred to a person nominated by the President of the Australian Industrial Relations Commission or another person agreed to by the parties.

PN573

Now, the reference to referred is unclear as to exactly what it is asking the Commission to do but when read with the next provision in 8.3.1.4 it becomes clear:

PN574

If the matter is not resolved by the person the parties agree to be bound by the determination of the person.

PN575

I would have this to say about the clause, your Honour. The reference to referred I think, consistent with the decision of the Full Bench in ABC Journalists, probably means more than just simply leaving an application with the Registry to sit there and gather dust and - - -

PN576

THE SENIOR DEPUTY PRESIDENT: Well, it is a referral to a person.

PN577

MR DALTON: Yes.

PN578

THE SENIOR DEPUTY PRESIDENT: Do you take any issue with the submission of Mr Bromberg that at least inferentially I have been nominated by the President.

PN579

MR DALTON: That is not - - -

PN580

THE SENIOR DEPUTY PRESIDENT: That is not the point that you were - - -

PN581

MR DALTON: I am instructed we are not taking issue with that, no.

PN582

THE SENIOR DEPUTY PRESIDENT: No, very well.

PN583

MR DALTON: So the question is - - -

PN584

THE SENIOR DEPUTY PRESIDENT: It is obviously not sitting in the Registry, it is sitting with me. What do I do with it?

PN585

MR DALTON: Well, I think that the ABC Journalists' case - - -

PN586

THE SENIOR DEPUTY PRESIDENT: What is the reference to that, please?

PN587

MR DALTON: I have got a folder of cases, your Honour. It might an opportune moment to give you one of them.

PN588

THE SENIOR DEPUTY PRESIDENT: Is that the decision of Commissioner Smith, is it?

PN589

MR DALTON: No, it is a Full Bench decision.

PN590

THE SENIOR DEPUTY PRESIDENT: Which tab is that behind?

PN591

MR DALTON: You will see that at tab 5, your Honour. It is appeal against Commissioner Smith, your Honour.

PN592

THE SENIOR DEPUTY PRESIDENT: Yes.

PN593

MR DALTON: Now this case involves the predecessor provision which in all material respect is identical to the present 170LW of the Workplace Relations Act. And the dispute settlement procedure in the agreement in question said that the matter should be referred to your Honour and - - -

PN594

THE SENIOR DEPUTY PRESIDENT: Is that set out in the decision?

PN595

MR DALTON: I think it is. Yes, you will see that at page 3, about two-thirds of the way down, "Clause 8.9 provides as follows" and it is in bold capitals, if the matter remains unresolved it said the matter may be referred to the AIRC by the party. Now, at page 6 of the decision, the second last paragraph, the Full Bench notes that the drafting of the clause is to that extent unnecessarily inadequate and unclear. And the next paragraph the Commission says:

PN596

Rather the task of the Commission is to ascertain as a matter of interpretation whether in the absence of the specific reference to the powers of the third party to whom the matter is referred that third party has any and if so what power.

PN597

On page 7 the Full Bench then, in the top three paragraphs, concludes, well, it has got to mean more than just leaving it with the Commission to sit in the Registry and they are satisfied that it must involve conciliation but that it fall short of arbitration. Now, the reason I refer to that case, your Honour, is when you look at 8.3.1.3 and 8.3.1.4 of the dispute settlement clause in question here, if you read them together, it says it will be referred to a person nominated by the President of the Commission or another person agreed to by the parties and then it says if the matter is not resolved by the person.

PN598

So I think that means that once referred that that person is to try to resolve it but if it can't be resolved then 8.3.1.4 is critical here, this is what the parties have actually agreed to, to have agreed to accept the determination of the Commission.

PN599

THE SENIOR DEPUTY PRESIDENT: And what is that, Mr Dalton?

PN600

MR DALTON: Well, in my submission, it is agreeing to accept a final determination. It is the determination.

PN601

THE SENIOR DEPUTY PRESIDENT: Well, how do I make a final determination?

PN602

MR DALTON: Well, you make a final determination the way that you see fit consistent with the - - -

PN603

THE SENIOR DEPUTY PRESIDENT: All right, by exercising arbitral powers possibly.

PN604

MR DALTON: Yes, by determining. That is right, yes.

PN605

THE SENIOR DEPUTY PRESIDENT: Or by tossing a coin.

PN606

MR DALTON: By private arbitration consistent with the law of the land which would give the opportunity for the parties to be heard and you would be setting it down for hearing and you would be determining it. The question here is whether you have got the power to make an interim order pending the determination.

PN607

THE SENIOR DEPUTY PRESIDENT: I see. You are not contending that I have no power to make a final determination.

PN608

MR DALTON: No, there is no argument between the parties.

PN609

THE SENIOR DEPUTY PRESIDENT: I may have misunderstood your submission.

PN610

MR DALTON: The parties have, I think, submitted disputes to the Commission under this clause previously and had the Commission determine disputes and consistent with 8.3.1.4 they have agreed to be bound by the determination.

PN611

THE SENIOR DEPUTY PRESIDENT: So you are at odds with Vice President Lawler's decision in the Telstra case then, are you?

PN612

MR DALTON: Well, I am not - perhaps it would be opportune to deal with that case now. I have a few things to say about this decision, your Honour, and I should point out at the outset that we don't necessarily say that Vice President Lawler got it wrong on this question because the disputes settlement procedure in the Telstra agreement is different to the one that is in this agreement. At page - - -

PN613

THE SENIOR DEPUTY PRESIDENT: That is why I asked you whether your submission is at odds with his Honour's decision.

PN614

MR DALTON: In some respects it is, your Honour, but it is important to note the differences between the clauses as well, and perhaps if I take you through it. It is tab 6.

PN615

THE SENIOR DEPUTY PRESIDENT: I will work off the one that Mr Bromberg has given me.

PN616

MR DALTON: All right.

PN617

THE SENIOR DEPUTY PRESIDENT: There are paragraph numbers, so which paragraph?

PN618

MR DALTON: I have got a Word document. I hope it is paginated in the same way.

PN619

THE SENIOR DEPUTY PRESIDENT: Well, if you refer me to the paragraph numbers we will be right.

PN620

MR DALTON: Yes. Paragraph 9 sets out in some detail the relevant clauses in the agreement. It goes on for a few pages. And the clause that I want to refer you to, your Honour, is 17.2, that is clause 17.2 of the agreement; it is quoted and it is at page 6 of my copy.

PN621

THE SENIOR DEPUTY PRESIDENT: Yes, and mine. That talks about conciliation and determination in respect of certain clauses.

PN622

MR DALTON: Yes. It says:

PN623

A dispute referred to the Commission will be referred for

PN624

(a) in the case of a dispute over the application of any of the following clauses, conciliation/determination...

PN625

and Vice President Lawler has highlighted the relevant clause that he concludes is in dispute here.

PN626

THE SENIOR DEPUTY PRESIDENT: Yes, definition of redundancy.

PN627

MR DALTON: All right. So it is a bland reference to conciliation/determination. It is differently worded to 8.3.1.4, where the parties specifically agreed to be bound by the determination.

PN628

THE SENIOR DEPUTY PRESIDENT: Well, isn't inherent in that that - and I think you have really said as much - that the Commission is empowered to determined?

PN629

MR DALTON: Yes, but I think the words are slightly different because - - -

PN630

THE SENIOR DEPUTY PRESIDENT: The words are different. What is the effect of the difference?

PN631

MR DALTON: Well, yes, if you refer a matter to the Commission for conciliation/determination, it is not as specific as the words in 8.3.1.4, where the parties are saying that if it is not resolved under 8.3.1.3 the parties agree to be bound by "the determination of the person." So it is saying that - - -

PN632

THE SENIOR DEPUTY PRESIDENT: What is supposed to happen under 8.3.1.3?

PN633

MR DALTON: Well, it is not entirely clear. That is why I referred you to the ABC Journalists case, which highlighted perhaps the inadequacy of the description of that.

PN634

THE SENIOR DEPUTY PRESIDENT: Well, the ABC Journalists case found that a mere reference was a reference to conciliation.

PN635

MR DALTON: Yes, that is right.

PN636

THE SENIOR DEPUTY PRESIDENT: So why is the proper reading of those two subclauses not that the matter shall be referred to the Commission for conciliation and, if not settled by conciliation, it will be determined by the relevant member and the parties accept the determination, subject to any appeal?

PN637

MR DALTON: Well, I agree with that, your Honour, but I say 8.3.1.4 is a little more specific than the one in the Telstra agreement because it is specifically saying the parties agree to be bound by the determination of the person. So it is using the definitive article, "the" determination.

PN638

THE SENIOR DEPUTY PRESIDENT: Yes, and what is the effect of that wording?

PN639

MR DALTON: In my submission, the effect of that is that it is far more difficult, in fact, in my submission, not possible to imply a term in this disputes settlement clause to the effect the parties agree that the Commission could make an interim order pending the determination, whereas - - -

PN640

THE SENIOR DEPUTY PRESIDENT: And did Vice President Lawler imply - - -

PN641

MR DALTON: Yes, he - - -

PN642

THE SENIOR DEPUTY PRESIDENT: - - - such a term or did he say that was a necessary consequence of the powers that the - - -

PN643

MR DALTON: Could I take you to the relevant parts of the decision.

PN644

THE SENIOR DEPUTY PRESIDENT: Well, let me finish - that the person making the determination has, because the relevant provisions of the Act apply?

PN645

MR DALTON: Yes, that is right. Section 111(1) powers are specified as powers available in relation to an industrial dispute and then section 111(2) says that they will be available in relation to other proceedings unless the context suggests otherwise. Now, Vice President Lawler says - - -

PN646

THE SENIOR DEPUTY PRESIDENT: At?

PN647

MR DALTON: At paragraph 63, I think, your Honour, page 21.

PN648

THE SENIOR DEPUTY PRESIDENT: Yes, I have that, thank you.

PN649

MR DALTON: His Honour says:

PN650

True it is there are several powers in section 111(1) which are meaningless or wholly inappropriate in the context of the arbitration of a dispute notified under a disputes settlement procedure in a certified agreement approved under 170LW or one of its predecessors.

PN651

He gives an example of some of those paragraphs, including 111(1), for example, the Commission refraining to deal with a matter, and then goes on and draws on some examples by reference to other sections in the Act and then asks the question:

PN652

Is there any reason why this should not be so in relation to a private empowering of a tribunal such as the Commission? In my opinion, the proper answer to that question is in the negative. The exercise or purported exercise of particular powers that are meaningless or wholly inappropriate in connection with the arbitration of a dispute under a disputes settlement approved under 170LW or one of its predecessors would necessarily involve error ...(reads)... unless the exercise of those powers was appropriate and adapted to the settlement of the dispute.

PN653

And this is the important part of the reasoning, your Honour, that I rely upon:

PN654

Obviously, if the language of the agreement, on its proper construction, excludes or circumscribes the exercise of particular powers in section 111(1) or the exercise of those powers in a particular fashion, then the jurisdiction of the Commission to exercise the powers is circumscribed accordingly.

PN655

THE SENIOR DEPUTY PRESIDENT: And you say that clause 8.3.1.3 and .4 - - -

PN656

MR DALTON: Properly construed, don't give room for an interim order.

PN657

THE SENIOR DEPUTY PRESIDENT: Yes. Now, how do you say that?

PN658

MR DALTON: Well, I say that because when you read them together, even taking "referred" to mean conciliation, 8.3.1.4 is clear on its terms. All the parties have agreed to do is to comply with, "the determination of the person." It doesn't say any determination; it says "the determination". Where does it say that the parties have agreed that they will comply with interim or interlocutory type orders that affect substantive rights, pending the determination? On a proper construction of these provisions in the certified agreement, your Honour, in my submission, section 111(1)(b) is excluded; that is, the parties haven't agreed for the Commission to exercise interlocutory type powers.

PN659

And I rely also on 8.3.1.5, because it shows that the parties have in fact turned their minds to what will happen pending the determination, and it says work shall continue normally.

[4.09pm]

PN660

THE SENIOR DEPUTY PRESIDENT: Well, that reliance is a double-edged sword, isn't it, Mr Dalton?

PN661

MR DALTON: Well, not in relation to interim orders by the Commission. There is an argument, obviously, over what is custom and practice. It is certainly my client's position that the custom and practice is for the Chief Commission of Police to transfer superintendents as and when she sees fit, anywhere within the State of Victoria. So there is an argument about that. But any question as to what ultimately is custom and practice here will only raise a question of breach of the certified agreement, if the Police Association is correct. What the parties have not said, and it is very important here because they have turned their minds to what happens pending the determination, the parties have not said the Commission can make provisional or interim orders to preserve status quo.

PN662

So, your Honour, we say that the case here is distinguishable from the one decided by VP Lawler, and it is also consistent with the reasoning set out in paragraph 63, particularly the last sentence. There are other aspects of that decision, your Honour, which we reserve our rights to argue. But for the purposes of this interim application I am content to restrict my submission in relation to that decision up to that point.

PN663

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, thank you.

PN664

MR DALTON: Your Honour, there is another perhaps more technical, but again perhaps even more fundamental problem with the notification that is before you. Do you have a copy of the notification?

PN665

THE SENIOR DEPUTY PRESIDENT: Yes, it is on the file.

PN666

MR DALTON: Yes. Your Honour, you will see that it is a notification made by the Police Association.

PN667

THE SENIOR DEPUTY PRESIDENT: It seems to be made by Paul Mullett, Secretary of the Police - but yes, that is the Police Association notifies it, yes.

PN668

MR DALTON: No, it - it is the Police Association that has notified this dispute.

PN669

THE SENIOR DEPUTY PRESIDENT: Yes.

PN670

MR DALTON: Now, the Police Association is not a party to the certified agreement. You will see that at the start of the agreement, PRM3.

PN671

THE SENIOR DEPUTY PRESIDENT: That is because it is an LK agreement. Yes.

PN672

MR DALTON: 1.2. Fundamental to this agreement was that the Chief Commissioner, as the employer nominated by the Governor in Council, and persons appointed, whether before or after certification of this agreement, under section 8. Apart from Commanders. It doesn't apply to Commanders.

PN673

THE SENIOR DEPUTY PRESIDENT: And you say that the Police Association can't notify a dispute under clause 8.3 because it is not a party.

PN674

MR DALTON: Correct.

PN675

THE SENIOR DEPUTY PRESIDENT: Doesn't clause 8.3 merely envisage the existence of a dispute between the employer and members covered by the agreement? There seems to be such a dispute.

PN676

MR DALTON: Well, I don't know about that. I mean, all we have got is - - -

PN677

THE SENIOR DEPUTY PRESIDENT: Mr Mullett's say so.

PN678

MR DALTON: That is right, and - - -

PN679

THE SENIOR DEPUTY PRESIDENT: Is he - is Mr Mullett an officer?

PN680

MR DALTON: He is a member, he is not a superintendent, significantly.

PN681

THE SENIOR DEPUTY PRESIDENT: Yes. He is a member, yes.

PN682

MR DALTON: We don't have any - - -

PN683

THE SENIOR DEPUTY PRESIDENT: Yes.

PN684

MR DALTON: - - - notification by any superintendents.

PN685

THE SENIOR DEPUTY PRESIDENT: Yes. But didn't Mr Mullett say that he has spoken with superintendents and they were aggrieved, at least some of them?

PN686

MR DALTON: Well, I am happy to go to the statement, bearing in mind, given the nature of this application it is difficult to deal with these matters in a complete way.

PN687

THE SENIOR DEPUTY PRESIDENT: Yes. Well, if I am interrupting you and stopping your flow you take it in the order you want it.

PN688

MR DALTON: No. No, you are not, your Honour. I am happy to refer to the bits that Mr Mullett mentions. Paragraph 35 he says:

PN689

We have not been able to meet with all superintendents.

PN690

And:

PN691

We have had discussions.

PN692

He doesn't say whether he has had any discussions. He says:

PN693

...with many superintendents and there is significant opposition to this proposal.

PN694

THE SENIOR DEPUTY PRESIDENT: You don't accept that?

PN695

MR DALTON: Well, I mean, it is just the form that it is in. It is - I mean, even for the purposes of an interlocutory matter, this should be given little weight, particularly in circumstances where you have got a notification filed by an unregistered organisation that doesn't have standing to bring a notification under 170LW in relation to this agreement, and it is made by an officer of the Police Association who is a senior sergeant. He is not even a superintendent. Surely you would at least put up a statement from a superintendent expressing some concerns about the process. All I have is instructions from my client that there is 20 people who have already booked a time to present their strategic plan.

PN696

THE SENIOR DEPUTY PRESIDENT: So to summarise your submission on this point is that I can't be satisfied that there is a dispute about the application of the agreement.

PN697

MR DALTON: No, you can't, and perhaps that point should have been put first, your Honour, because it deals with the - whether there is in fact a dispute, full stop, and then even accepting or assuming that there is, that the parties haven't in fact agreed that you can exercise interlocutory-type powers under the dispute settlement clause. So they are the jurisdictional arguments in relation to the interim orders.

PN698

THE SENIOR DEPUTY PRESIDENT: Yes.

PN699

MR DALTON: Now, your Honour - - -

PN700

THE SENIOR DEPUTY PRESIDENT: Well, do you intend to address me on the section 99 notification of dispute?

PN701

MR DALTON: Yes, I will.

PN702

THE SENIOR DEPUTY PRESIDENT: As a source of power.

PN703

MR DALTON: I will, and that argument kills two birds with one stone, in effect.

PN704

THE SENIOR DEPUTY PRESIDENT: Which argument?

PN705

MR DALTON: The argument in relation to why you don't have jurisdiction in relation to the EMO.

PN706

THE SENIOR DEPUTY PRESIDENT: In relation to the?

PN707

MR DALTON: To the exceptional matter order limb of - - -

PN708

THE SENIOR DEPUTY PRESIDENT: Yes.

PN709

MR DALTON: - - - making an interim order, because - - -

PN710

THE SENIOR DEPUTY PRESIDENT: I am not used to using that acronym, Mr Dalton.

PN711

MR DALTON: Sorry, your Honour. Perhaps I will start again.

PN712

THE SENIOR DEPUTY PRESIDENT: Yes, well - - -

PN713

MR DALTON: The argument as to why you have no power to make an interim order in relation to an exceptional matters matter order kills two birds with one stone, because the same argument is in fact a jurisdictional reason why we say that the substantive LW application must fail, and I will go through it now. It requires firstly, to take you to the Workplace Relations Act.

PN714

THE SENIOR DEPUTY PRESIDENT: Yes. What section?

PN715

MR DALTON: Section 89A(1). Perhaps the best place to start is section 89(a):

PN716

The functions of the Commissions are to prevent and settle industrial disputes.

PN717

THE SENIOR DEPUTY PRESIDENT: Yes.

PN718

MR DALTON: And then:

PN719

...so far as possible by conciliation, and then as a last resort and within the limits specified in this Act by arbitration.

PN720

THE SENIOR DEPUTY PRESIDENT: Yes.

PN721

MR DALTON: So I don't think it is going to be argued that you have to be satisfied that there is an industrial dispute in existence.

PN722

THE SENIOR DEPUTY PRESIDENT: Yes.

PN723

MR DALTON: Now, the definition of "industrial dispute", your Honour, is given an extended meaning in Victoria, as you know.

PN724

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN725

MR DALTON: And could we go to that? It is at section 493.

PN726

[4.19pm]

PN727

THE SENIOR DEPUTY PRESIDENT: Yes.

PN728

MR DALTON: The definition of industrial dispute, without affecting its operation apart from this section, this Act also has effect. The definition of industrial dispute in subsection (4)(i) were replaced by the following, and then it says:

PN729

Industrial dispute within the limits of Victoria -

PN730

and that is about matters pertaining to the relationship between employers and employees.

PN731

THE SENIOR DEPUTY PRESIDENT: Yes.

PN732

MR DALTON: Now, again, I don't think that it is disputed that the Chief Commissioner is not an employer within the general meaning of employer in the Act in section 4, nor are - and by the same token, officers or members of the Force are properly characterised as "officers of the Crown" and are not employees at common law; again for the purposes of the general provisions in section 4 of the Act.

PN733

THE SENIOR DEPUTY PRESIDENT: Sorry, I am not following.

PN734

MR DALTON: The relationship between the Chief Commissioner - - -

PN735

THE SENIOR DEPUTY PRESIDENT: And officers - - -

PN736

MR DALTON: - - - and officers is not one of employment for the purposes of the Workplace Relations Act, and the only means by which the Chief Commissioner has been able to enter into a certified agreement - and, in fact, the only means by which the Chief Commissioner can have a dispute with members of the Force - is through this section 493. When you look at 493, your Honour, you will see that at first blush all it looks like doing is removing the interstateness requirement.

PN737

THE SENIOR DEPUTY PRESIDENT: Yes.

PN738

MR DALTON: But if you go back to section 489, you will see that there are definitions of employee and employer for the purposes of this part.

PN739

THE SENIOR DEPUTY PRESIDENT: Yes.

PN740

MR DALTON: Yes. Your Honour, could I hand you a copy of the Commonwealth Powers (Industrial Relations) Act. I will just get - - -

PN741

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN742

MR DALTON: What I have given you actually is a bundle of legislation, at the back of which is the CP(IR) Act which is the abbreviation for the full name of the Act, being the Commonwealth Powers (Industrial Relations) Act 1996. Your Honour, you would probably be aware of this piece of legislation. It was the referral of industrial relations powers by the Kennett government to the Commonwealth.

PN743

THE SENIOR DEPUTY PRESIDENT: Yes, I am familiar with it, although not to the detail of it. Yes, what section do you want to take me to?

PN744

MR DALTON: Going back to section 489, do you see how it says: An employee and employer - - -

PN745

THE SENIOR DEPUTY PRESIDENT: Yes, section 3.

PN746

MR DALTON: We have got to go to section 3.

PN747

THE SENIOR DEPUTY PRESIDENT: Yes.

PN748

MR DALTON:

PN749

Employee includes a law enforcement officer.

PN750

THE SENIOR DEPUTY PRESIDENT: And a law enforcement officer means a member of the Police Force, yes.

PN751

MR DALTON: That is right. Okay, so that is how the members get in.

PN752

THE SENIOR DEPUTY PRESIDENT: Yes.

PN753

MR DALTON: And "employer" means the person nominated by the Governor in Council.

PN754

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, thank you.

PN755

MR DALTON: Now, the Governor in Council has nominated the Chief Commissioner of Police. And you will see that referred to in the 170LK agreement.

PN756

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN757

MR DALTON: All right, so - - -

PN758

THE SENIOR DEPUTY PRESIDENT: So the definition - so these people are employees by virtue of section 493 of the Workplace Relations Act.

PN759

MR DALTON: When read with section 489 and section 3 of the CP(IR) Act.

PN760

THE SENIOR DEPUTY PRESIDENT: Yes.

PN761

MR DALTON: So before I go any further, we can say that it is only by section 493 and 489 when read with section 3 of the CP(IR) Act that the Chief Commissioner of Police can have an industrial dispute with members of the Force in Victoria.

PN762

THE SENIOR DEPUTY PRESIDENT: Yes.

PN763

MR DALTON: Now, you will see that section 490 of the Workplace Relations Act - - -

PN764

THE SENIOR DEPUTY PRESIDENT: Yes.

PN765

MR DALTON: A section of this division has effect only for so long and insofar as the CP(IR) Act of Victoria refers to the Parliament of the Commonwealth a matter or matters that result in the Parliament of the Commonwealth having sufficient legislative power for the section so to have effect. I have already taken your Honour through the only way that the main body of the Workplace Relations Act can be used here is by virtue of the reference.

PN766

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that.

PN767

MR DALTON: So there has to be a reference in the Act and, in my submission, it is patently clear not only isn't there a reference, there is an express non-reference of the matter in dispute here. You will see that at - - -

PN768

THE SENIOR DEPUTY PRESIDENT: Sorry, a reference in which Act of what?

PN769

MR DALTON: A reference of legislative power from Victoria to the Commonwealth.

PN770

THE SENIOR DEPUTY PRESIDENT: In which Act?

PN771

MR DALTON: In the CP(IR) Act.

PN772

THE SENIOR DEPUTY PRESIDENT: And where - - -

PN773

MR DALTON: So I have referred you to section 490 of the Workplace Relations Act which makes it clear that there has to be a reference underpinning it for it to operate.

PN774

THE SENIOR DEPUTY PRESIDENT: Yes, and what is the reference? Then we go to section 4 of the CP(IR) Act, do we?

PN775

MR DALTON: You do. Part II says reference of matters.

PN776

THE SENIOR DEPUTY PRESIDENT: Yes.

PN777

MR DALTON:

PN778

Reference: a matter referred to the Parliament of the Commonwealth by a subsection of this section is so referred...

PN779

etcetera, and then section 5 deals with matters excluded from a reference, and the - - -

PN780

THE SENIOR DEPUTY PRESIDENT: Sorry, section - - -

PN781

MR DALTON: Section 5.

PN782

THE SENIOR DEPUTY PRESIDENT: Is the matter of minimum terms and conditions for employees in the State - sorry, the matter of termination, is it?

PN783

MR DALTON: (b), your Honour.

PN784

THE SENIOR DEPUTY PRESIDENT: Five - - -

PN785

MR DALTON: 5(1)(b).

PN786

THE SENIOR DEPUTY PRESIDENT: I am sorry, I am in subsection (5) of section 4.

PN787

MR DALTON: Yes. So section 5 - - -

PN788

THE SENIOR DEPUTY PRESIDENT: Bear with me. Section 5(1) - - -

PN789

MR DALTON: Matters excluded from the reference - - -

PN790

THE SENIOR DEPUTY PRESIDENT: Yes.

PN791

MR DALTON: Subsection (1):

PN792

A matter referred by a subsection of section 4 does not include - - -

PN793

THE SENIOR DEPUTY PRESIDENT: Yes.

PN794

MR DALTON: And then paragraph (b), your Honour, if you could read that.

[4.27pm]

PN795

THE SENIOR DEPUTY PRESIDENT: Yes, matter of transfer of police officers is excluded from the reference.

PN796

MR DALTON: Yes. I emphasise the first three words, "matters pertaining to".

PN797

THE SENIOR DEPUTY PRESIDENT: Transfer of employment - - -

PN798

MR DALTON: And I emphasise the words "transfer from place to place or position to position", etcetera, etcetera "of law enforcement officers".

PN799

THE SENIOR DEPUTY PRESIDENT: Yes, I see.

PN800

MR DALTON: The submission is a simple one, your Honour, that is, this matter pertains to transfer. It is not referred. Because it is not referred the provisions of part XV of the Workplace Relations Act are not activated and because the provisions of part XV of the Workplace Relations Act are not activated there isn't an industrial dispute. If there isn't an industrial dispute the Commission doesn't have any power to make an exceptional matters order interim or otherwise.

PN801

THE SENIOR DEPUTY PRESIDENT: Yes.

PN802

MR DALTON: Your Honour, I mentioned that I was looking to kill two birds with one stone.

PN803

THE SENIOR DEPUTY PRESIDENT: Yes, what is the other bird?

PN804

MR DALTON: Because the matter is not referred part XV is not activated. Because part XV is not activated section 494 is not activated. Section 494 is the critical provision - - -

PN805

THE SENIOR DEPUTY PRESIDENT: Just a minute. Yes.

PN806

MR DALTON: That is the basis for the certification of the agreement. Section 490 says that the section only has effect for so long as it is supported by reference.

PN807

THE SENIOR DEPUTY PRESIDENT: And you say this is not supported by reference of power in relation to transfer of officers?

PN808

MR DALTON: That is right. And it is worth noting at PRM3, which is the certified agreement, that the parties specifically recognise this as an issue. 1.3 - - -

PN809

THE SENIOR DEPUTY PRESIDENT: Just a moment, let me turn to the certified agreement. Yes, what clause, Mr Dalton?

PN810

MR DALTON: 1.3, the first page, "Incidents of Agreement". Can you see 1.3.4?

PN811

THE SENIOR DEPUTY PRESIDENT: Yes.

PN812

MR DALTON: Where a provision of this agreement deals with a matter not covered by a reference, reference being defined in 1.3.3 above in the way that I have outlined. 1.3.4.1 says that provision will be deemed not to form and never to have formed part of this agreement.

PN813

THE SENIOR DEPUTY PRESIDENT: Yes.

PN814

MR DALTON: To the extent that the certified agreement deals with a matter that is not referred 1.3.4.1 makes it clear, I think consistent with the law, that it won't form part of the agreement.

PN815

THE SENIOR DEPUTY PRESIDENT: And you would say that that applies to all the subordinate agreements that Mr Bromberg submits form part of the certified agreement?

PN816

MR DALTON: Well, I think they do. They are incorporated.

PN817

THE SENIOR DEPUTY PRESIDENT: And to the extent that they deal with transfer, if they don't, to put it crudely.

PN818

MR DALTON: That is right.

PN819

THE SENIOR DEPUTY PRESIDENT: So Mr Bromberg needs to go to the Civil Courts under 1.3.4.2, does he?

PN820

MR DALTON: Well, he may, that is right. Your Honour, in my submission what I have already put - - -

PN821

THE SENIOR DEPUTY PRESIDENT: But that would be the effect of that, that it is not part of the law and it is not - - -

PN822

MR DALTON: Well, it is not part of the certified agreement - - -

PN823

THE SENIOR DEPUTY PRESIDENT: And it is excluded from section 89A, it is excluded from the certified agreement. There is a provision that says it is to stand as a legally binding agreement between the parties and it would be a civil agreement that falls outside the jurisdiction of this Commission.

PN824

MR DALTON: To the extent that that is permitted by law and consistent with the normal - - -

PN825

THE SENIOR DEPUTY PRESIDENT: Yes, well, forgetting about what Court might have jurisdiction, this Commission would not have jurisdiction in relation to an agreement that is caught by 1.3.4.2. A shrub doesn't show on the transcript.

PN826

MR DALTON: Correct, your Honour.

PN827

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN828

MR DALTON: So what I was about to say is what I have already put to you in my submission deals with two things. It makes it clear that you don't have the power to make an interim order and I think what I have already said makes it clear that the arguable case component of this application is at best very weak and in my submission would be fatal.

PN829

THE SENIOR DEPUTY PRESIDENT: You don't want to address me on the arguable case component other than saying it is very weak?

PN830

MR DALTON: It is very weak, what I have already put to you in my submission, so it is bound to fail. I think I said that right at the outset.

PN831

THE SENIOR DEPUTY PRESIDENT: Yes, but you haven't said why.

PN832

MR DALTON: Well, for the reasons that I have put in - - -

PN833

THE SENIOR DEPUTY PRESIDENT: I am sorry, yes.

PN834

MR DALTON: For the reasons that I have already gone through.

PN835

THE SENIOR DEPUTY PRESIDENT: Yes, I am sorry. I was turning my mind to balance of convenience when I used the wrong expression. I apologise.

PN836

MR DALTON: Yes, I will deal with that a bit later. What I want to do for completeness is also address you in relation to the Police Regulation Act because there is a fundamental disagreement between the parties, but as I have already said it is not one that the Commission can deal with. But I would also say that even - let us assume that the Commission can deal with this, that the construction that Mr Bromberg has put, in my submission, is not sustainable. Section 8(1) of the Act is clear and unambiguous. I think that is PRM1.

PN837

THE SENIOR DEPUTY PRESIDENT: Yes, I have that:

PN838

The Chief Commissioner may in accordance with the regulations appoint, promote and transfer -

PN839

and so on.

PN840

MR DALTON: There are only two qualifications. It has got to be consistent with the regulations and I think - - -

PN841

THE SENIOR DEPUTY PRESIDENT: Yes, and Mr Bromberg said as much.

PN842

MR DALTON: - - - at least at the time that the transfer promotion or appointment is announced that the Governor in Council has to approved.

PN843

THE SENIOR DEPUTY PRESIDENT: Yes.

PN844

MR DALTON: And I don't understand if there is any issue about the approval of the Governor in Council. So the only question can be whether it is consistent with the regulations. And the Police Association's submission here, your Honour, is that unless there is a vacancy, that is, that no-one is actually filling the position - - -

PN845

THE SENIOR DEPUTY PRESIDENT: Sorry, unless there is a vacancy no-one is filling the position?

PN846

MR DALTON: Yes. Unless there is a vacancy that you can't transfer and the Police Association interpret vacancy to mean a position that is a designated position that is not filled by a person either currently or it is expect ed that it won't be - that the present incumbent will be leaving.

PN847

THE SENIOR DEPUTY PRESIDENT: Yes, and you say as long there are 15 or even one unfilled position there is a vacancy and the Commissioner can move people around however she likes to fill that vacancy. Is that the thrust of - - -

PN848

MR DALTON: Your Honour, we put it higher than that. The Chief Commissioner is able to transfer anyone. A person who is an incumbent in a position is there at the disposal of the Chief Commissioner and can be moved into another position, vacant or otherwise, at the discretion of the Commission, provided that it is not inconsistent - - -

PN849

THE SENIOR DEPUTY PRESIDENT: With the regulations.

PN850

MR DALTON: - - - with the regulations.

PN851

THE SENIOR DEPUTY PRESIDENT: Okay. Now, you are going to take me to the regulations.

PN852

MR DALTON: Yes. The regulations, Transfers and Promotion, 21.1. Sorry, your Honour, perhaps before I do that I should also point out that it is very clear from the Police Regulation Act that an officer doesn't have a right of appeal or a right of review in relation to a transfer, and that is made clear by virtue of section 8AA(2).

PN853

THE SENIOR DEPUTY PRESIDENT: I think Mr Bromberg conceded that, then said it is under the certified agreement.

PN854

MR DALTON: Under the certified agreement, yes.

PN855

THE SENIOR DEPUTY PRESIDENT: Yes. I don't think there is any argument between you as to that.

PN856

MR DALTON: Yes. And there is no right of review of a decision to transfer, and you will see that at 91F(2). I don't think Mr Bromberg referred you to that subsection but he did refer you to section 91F(1), where there is a right to seek a review of a decision and that the review of a decision could include a decision to compulsorily transfer someone.

PN857

THE SENIOR DEPUTY PRESIDENT: Yes.

PN858

MR DALTON: You will see that at (d). So it makes it clear that the Chief can compulsorily transfer a person. And subsection (2), which is on the next page, your Honour - - -

PN859

THE SENIOR DEPUTY PRESIDENT: Subsection (1)(d) doesn't apply to the compulsory transfer of a superintendent.

PN860

MR DALTON: Correct. Going back to the regulations, part 4, Transfers and Promotions, regulation 21 subreg (1), it is in part 4, which deals with transfers and promotions.

PN861

THE SENIOR DEPUTY PRESIDENT:

PN862

A member of the Force is liable to immediate transfer to any part of the State.

PN863

MR DALTON: Correct. And subsection (2) says:

PN864

If a position is or is expected to become vacant -

PN865

then it says what the Chief Commissioner can do in the event that a position becomes vacant or is expected to become vacant. Now, where we differ, Mr Bromberg and I, is that Mr Bromberg reads that to be, in effect - - -

PN866

THE SENIOR DEPUTY PRESIDENT: A qualification under subregulation (1).

PN867

MR DALTON: Yes, and it should read that - perhaps (1) should read subject to subregulation (2), and subregulation (2) should read: No member of the Force can be transferred unless there is a vacant position into which the person is transferred.

PN868

THE SENIOR DEPUTY PRESIDENT: Yes, and you say subregulation (1) stands alone and says that a member of the Force can be transferred at the will of the Commission.

PN869

MR DALTON: Correct, and (2) just says that if there is a vacancy - - -

PN870

THE SENIOR DEPUTY PRESIDENT: It can be filled by transfer or other means, yes.

PN871

MR DALTON: These are the options for the Chief Commissioner.

PN872

THE SENIOR DEPUTY PRESIDENT: Yes. I understand the - - -

PN873

MR DALTON: And the whole policy regime deals with the event of a vacancy. Our submission is that the Chief Commissioner is doing what she has a right to do, which is to transfer superintendents within that rank, whether or not there is a vacancy. So what she is proposing to do is work out, of that management team, who fits best where. One would think that that is an unarguable prerogative of any CEO and I would say that in relation to the Chief Commissioner we have got a statute that makes that clear as well.

PN874

The Chief Commissioner, effectively the CEO of the organisation, can pick her management team. However, if there is a vacancy, there are some options available to her under the regulations and, if there is a vacancy, there are some policies that apply. But the Chief Commissioner does not accept that she is dealing with vacancies, at least at this stage. She is reviewing her management team. You have got the documents that set out the process. And then, based on panel recommendations, which draws on feedback from the relevant managers in the persons' preferred positions, be they their current positions or positions they desire, the presentation performance and the panel recommendations, the Chief Commissioner will make a decision who should be where.

PN875

She has also made the point that she doesn't expect that there will be a substantial number of - sorry, I think she says it even more strongly. She says a substantial number of people will remain in the position they are already in, but she has got - - -

PN876

THE SENIOR DEPUTY PRESIDENT: I have got - - -

PN877

MR DALTON: Yes, exhibit B1, the letter. You will see there are a number of dot points and that is one of the points that she makes to superintendents, that she expects that a substantial number of the people will remain in the position that they currently hold.

PN878

THE SENIOR DEPUTY PRESIDENT: Yes.

PN879

MR DALTON: But what she is saying is that if I think that you would better serve our strategic plan by moving from one region into another region or into another operational management role, then I may exercise my powers to transfer - - -

PN880

THE SENIOR DEPUTY PRESIDENT: You would say that consistent with the decision in the XPT case, she is exercising her management prerogative and the onus is on the applicants to show that that exercise of management prerogative causes them some injustice or unfairness. Is that the way you are putting the argument?

PN881

MR DALTON: I think that they are presented with an even greater difficulty because here we have got statutory powers, whereas a CEO or an another employer who is exercising managerial prerogative is not doing that under a statutory regime and is doing that through the exercise of an open, private sector context, where the principles in XPT would, I think, have more direct application.

PN882

So Mr Bromberg is correct in saying that there is a very detailed set of policies dealing with what you should do in the event of a vacancy but we reject Mr Bromberg's submission to the extent that he says that that all qualifies the power that is vested in the Chief Commissioner under section 8(1) of the Act. In my respectful submission, regulation 21(2) just simply cannot be read in the way that Mr Bromberg is asking you to read it. So, to conclude that point, your Honour, we say that there is nothing in the regulations that is inconsistent with a decision by the Chief Commissioner to transfer a superintendent out of a position into someone else's position and that person being transferred into another position and so on.

PN883

It just so happens that there are 15 vacancies and the Chief Commissioner intends to follow the process that applies to vacancies once decisions have been made as to where the superintendents best fit. There will still be 15 vacancies, but they may not be the vacancies in the positions that they currently exist in. But once this matching process has been completed, then the Chief Commissioner is going to advertise, because there is no more people within the rank to appoint, so I think she has to advertise, and it will be open for inspectors to apply for those jobs.

PN884

I should also point out, your Honour, and this is relevant to the substantive merits of the application, so it goes to seriously arguable case. The fact that there is to be no change of rank. An officer will have personal circumstances taken into account once a transfer has been decided upon, should such a request be made, and the Chief Commissioner has personally undertaken that she will personally hear from that aggrieved superintendent, and that is in fact consistent with the policy provision.

[4.48pm]

PN885

Also, the Chief Commissioner has agreed to apply a policy decision that deals with country to city transfers, or vice versa, or where someone has transferred from a country town to another country town, notwithstanding that the Chief Commissioner doesn't believe that she has to apply these policies in this particular exercise. She has decided to do that, and she is giving a right of appeal to people affected in that way. That appeal can be lodged with the Police Appeals Board, notwithstanding the Police Appeals Board doesn't have any statutory basis to hear that appeal, the Chief Commission has undertaken that will comply with the appeal board determination, insofar as the appeal board believes that the Chief shouldn't have transferred someone with such significant geographic implications.

PN886

All superintendents have an opportunity to indicate a preference, three preferences, and that includes a preference to stay in the position they are currently in. We should also bear in mind that these superintendents are not factory workers or people who are at some sort of particular disadvantage. These are members of senior operational command, long-standing respected members of the Force, who have signed up their commitment to the strategic plan and the vision, and in return for that they got significant pay increases as part of the Commissioned Officers Review.

PN887

Could I deal with the Commissioned Officers Review, because that is a matter which, in my respectful submission, that Mr Bromberg has put too highly. I think that is PRM7.

PN888

THE SENIOR DEPUTY PRESIDENT: Yes.

PN889

MR DALTON: See at 1.1:

PN890

The agreement represents the finalisation of the current review of the commissioned officers as prescribed in clause 4.7 of the certified agreement.

PN891

Now, your Honour, if you go to the certified agreement at 4.7, it starts off by saying that there will be a working party established between the Police Association and the Chief Commissioner of Police, and that that working party will conduct a review of commissioned officer positions. Then 4.7.2 says what the working party will consider, and then 4.7.3 says that the parties will try to complete that review within 12 months of certification of the agreement. 4.7.4:

PN892

The review may change the wage rates and classification structure applying to officers under this agreement, subject to the endorsement of a valid majority of officers affected by the review.

PN893

Well, as I said earlier, your Honour, it did in fact result in increase in wage rates and changes to classification structure, and it was approved by a valid majority of employees. 4.7.5:

PN894

Where changes to wage rates or classification structure are endorsed by a majority of affected officers, those changes shall be given effect as part of this agreement.

PN895

Now, you may recall Mr Bromberg said that the commissioned officers heads of agreement is incorporated into the certified agreement. Well, in my submission, at its highest, all that is incorporated are the wage rates or classification structure as endorsed by the majority of affected officers, and that is made clear by 4.7.5. So nothing else is incorporated in the agreement. So even - let us assume for the moment that there is a dispute over the application of the heads of agreement, being the Commissioned Officers Agreement, PRM7.

PN896

It is certainly not one over the wage rates or the classification structure. It is a dispute over clause 3.3. Now again, in the context of arguable case, your Honour, could I take you to clause 3.3?

PN897

THE SENIOR DEPUTY PRESIDENT: Just a moment, Mr Dalton. Clause - - -

[4.55pm]

PN898

MR DALTON: Clause 3.

PN899

THE SENIOR DEPUTY PRESIDENT: Of?

PN900

MR DALTON: Of PRM7, being the heads of agreement that I am referring to.

PN901

THE SENIOR DEPUTY PRESIDENT: Yes.

PN902

MR DALTON: Page 2 of that document sets out some provisions in relation to transfers and promotions.

PN903

THE SENIOR DEPUTY PRESIDENT: Yes, and that is what Mr Bromberg relied on, yes.

PN904

MR DALTON: Yes, and again, in my respectful submission, Mr Bromberg has put this too highly. He says at 3.1 and 3.2 for the same reasons as he puts in relation to the interpretation of the PR Act and the regulations that, in effect, the Chief Commissioner's power to transfer someone is limited to circumstances where there is actually a vacancy. And we don't accept that that is the proper interpretation.

PN905

THE SENIOR DEPUTY PRESIDENT: And you say that this part of PRM7 has not been incorporated into the certified agreement?

PN906

MR DALTON: I certainly hasn't been incorporated. That is very clear from 4.7.5 of the certified agreement but, again, it doesn't mean what Mr Bromberg suggests it does, in my respectful submission. Also 3.3, Mr Bromberg says that this, in fact, is a commitment to give a right of appeal, which it is, but it is only a right of appeal in relation to non-selection to the rank of superintendent and commander. You will see that in - perhaps you can read the whole provision, your Honour, but I am emphasising the words "non-selection to the rank". All these people are in the rank.

PN907

THE SENIOR DEPUTY PRESIDENT: Yes.

PN908

MR DALTON: That would give a right of appeal for an inspector who applies for one of the 15 vacancies after this matching process is completed.

PN909

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN910

MR DALTON: So, your Honour, it is the Chief Commissioner's strong submission that you don't have power to make an interim order and, not only that, even assuming that you do have the power to do it, for the reasons that I have outlined the arguable case limb is fundamentally flawed and your Honour can be satisfied even at this stage that the prospects of success of this application are remote. And, in my submission, that is not going to be good enough to persuade your Honour to make an interim order in these circumstances.

PN911

Could I deal with a couple of other aspects. It is worth noting that there are several decisions that stand for the proposition that the Federal Court, or eligible court, doesn't have the power to grant interlocutory relief to prevent a breach of a certified agreement. And I think the decision of Burchett J in the Gordonstone case - I don't have a copy of that but that is the one that is most commonly referred to, the rationale being that the provisions dealing with enforcement of orders is a code and doesn't contemplate interlocutory orders based on arguable breaches of industrial instruments. But, in my respectful submission, that is exactly what you are being asked to do here, and that is another reason why you should exercise your discretion not to grant an interim order.

PN912

There are a number of balance of convenience points that I should also make, the first one being that any order would be premature in the circumstances. In my respectful submission, there is no real or substantive irredeemable or irremediable harm done to superintendents by getting them to put their preferred positions in, or to address the panel about their strategic plan.

PN913

I should also point out that the panel is made up of very senior members of Operational Command, an Assistant Director of Human Resources, a representative from IR Victoria and who is also a woman - Ms Lisa Cheligoy, and also a couple of other external people including another woman from KPMG. And that will be fed back to the Chief Commissioner. In my submission, there is time for the Commission to determine this matter before any harm is done to superintendents.

PN914

If the determination is that some or all of the process is flawed, then, with respect, the Chief Commissioner wears that risk. And if she has to devote resources to revisiting aspects of the process or throwing it all in the bin, then that is a risk she takes. But it is not something at this stage that should persuade the Commission that an interlocutory order should be made.

PN915

Your Honour, if you are minded in spite of all the points I have made to make one, in my submission, consistent with long standing authorities on this point and order shouldn't go any further than it needs to go. So where are these superintendents who are opposed to the process? As I said, we have already got 20 people who booked places for the presentations. And consistent with that, not only shouldn't you make one that goes further than required, you shouldn't make one earlier than is required.

[5.03pm]

PN916

Your Honour, the union in any event has taken matters into its own hands by sending a pamphlet off yesterday afternoon to superintendents, saying that their preliminary legal advice is that they shouldn't put in their expressions of interest. Now, the Chief will obviously be communicating to them, encouraging them to put in their expressions of interest, so that their preferences are taken into account. Your Honour, you will see from the process that final decisions on transfers are not going to be completed until at least 10 October, I think it is. So in my submission, there is time to determine this matter without having to put the process on hold.

PN917

THE SENIOR DEPUTY PRESIDENT: Does your client suffer any prejudice if the matter is put on hold for a few weeks?

PN918

MR DALTON: It is, to the extent that - well, no. In isolation, leaving aside the arguments I have put on the weak case that is put before you and all the jurisdictional problems, just putting that to one side and just looking strictly at whether there is any prejudice by a delay of a brief period of time, there is no a huge prejudice to the Chief Commissioner. I don't have any specific instructions. I don't think that the sky is going to fall in if those - - -

PN919

THE SENIOR DEPUTY PRESIDENT: Yes.

PN920

MR DALTON: If that process is put on hold, but of course, we rely very strongly on the points that we have made, that there has to be a basis for stopping it, moving ahead with the process.

PN921

THE SENIOR DEPUTY PRESIDENT: Yes. That is a different issue.

PN922

MR DALTON: But I am not able to identify any particular - - -

PN923

THE SENIOR DEPUTY PRESIDENT: Yes.

PN924

MR DALTON: - - - time by which this has to be done, other than the Chief Commissioner of course has a very strong and legitimate interest in having the right management team as soon as possible.

PN925

THE SENIOR DEPUTY PRESIDENT: Yes, I can understand that. Yes.

PN926

MR DALTON: Your Honour, those are the submissions in opposition to the application.

PN927

THE SENIOR DEPUTY PRESIDENT: Yes. Thanks, Mr Dalton. Mr Bromberg?

PN928

MR BROMBERG: Your Honour, there is one matter in particular that my learned friend has raised, and it goes to the competency of the Commission and its capacity to deal with this matter that needs to be answered, and needs to be answered in some detail.

PN929

THE SENIOR DEPUTY PRESIDENT: Well, this is your opportunity, Mr Bromberg.

PN930

MR BROMBERG: Yes. Well, I do note the time, and I do need at least a short moment to talk to my clients about it. What has fallen from my learned friend has ramifications, if he is correct, for both parties, and their certified agreement, and it may lead to a course that neither party wants to go down, and I am not sure whether that matter is a matter that needs some discussion. Now, your Honour - - -

PN931

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Bromberg, it is 6 minutes past 5.

PN932

MR BROMBERG: Yes.

PN933

THE SENIOR DEPUTY PRESIDENT: No action is intended to be taken until Wednesday.

PN934

MR BROMBERG: Yes.

PN935

THE SENIOR DEPUTY PRESIDENT: There is probably no necessity for me to sit unreasonably extended hours tonight. I could deal with your reply on Monday morning.

PN936

MR BROMBERG: I was going to suggest that, your Honour, but if your Honour was available Monday morning - - -

PN937

THE SENIOR DEPUTY PRESIDENT: I am.

PN938

MR BROMBERG: - - - to deal with it.

PN939

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Dalton, unless there is some reason why I need to conclude the hearing today I propose to adjourn to Monday morning, and I will be in a position to make a decision before the 17th.

PN940

MR DALTON: Your Honour, I will need to confer with my clients about it, because I am not available on Monday, unfortunately. I have a matter in Adelaide.

PN941

THE SENIOR DEPUTY PRESIDENT: Well, you are finished, and Mr Bromberg is going to reply.

PN942

MR DALTON: Yes, and I may - I mean, that is obviously a matter that I can mention to my clients as to - I am available on Tuesday, but obviously that is getting fairly close to the date.

PN943

THE SENIOR DEPUTY PRESIDENT: Yes, I think you ought to have Mr Bromberg's - of course you want to hear Mr Bromberg's reply. I was being a little tongue in cheek when I said you are finished. You have a real interest in hearing what he says in reply.

PN944

MR DALTON: Yes.

PN945

THE SENIOR DEPUTY PRESIDENT: Can you not rearrange your Adelaide matter?

PN946

MR DALTON: I can't, because it has been adjourned and it has been moved twice, but it may - - -

PN947

THE SENIOR DEPUTY PRESIDENT: Do you want a few minutes to work out the logistics?

PN948

MR DALTON: If I could just have, you know, a few minutes to confer and then - - -

PN949

THE SENIOR DEPUTY PRESIDENT: All right. I will stand the matter down until a quarter past five and see where we go.

SHORT ADJOURNMENT [5.09pm]

RESUMED [5.17pm]

PN950

THE SENIOR DEPUTY PRESIDENT: Yes, gentlemen? What is the position?

PN951

MR DALTON: Your Honour, I have conferred with my client. They tell me there is a matter on at 10 o'clock before Commissioner Gay. It is a part-heard matter. It may be that the Police Association is happy for that matter to be adjourned off. I think Commissioner Gay has been away and so is expecting that matter to be listed. I am unavailable on Monday, and it is our preference that obviously I be in a position to hear Mr Bromberg's reply.

PN952

THE SENIOR DEPUTY PRESIDENT: Yes.

PN953

MR DALTON: It is our preference that the matter be listed Tuesday morning.

PN954

THE SENIOR DEPUTY PRESIDENT: So you want to put pressure on me and take that off you?

PN955

MR DALTON: That is our preference. But - well, if your Honour is in a position to do that we would be grateful. Otherwise, well, we will just have to deal with it Monday, I think, but my instructions are not to extend the 17 September date.

PN956

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Bromberg?

PN957

MR BROMBERG: The difficulty with Tuesday seems to be this, your Honour, and that is that Wednesday is not the day from which expressions of interest are to be received. It is the last day upon which expressions can be received. Now, we would have thought that superintendents who are concerned about the impact of not expressing a decision would be minded to ensure that if they are going to express a decision they get their expression in some time earlier rather than later, and we are concerned that if we move to Tuesday, and your Honour will need to take some time to consider some perhaps weighty matters that are before you.

PN958

We are concerned that, at best, the making of the decision and the capacity to communicate that decision to the members will not be able to be done before Wednesday.

PN959

THE SENIOR DEPUTY PRESIDENT: Well, Mr Bromberg, are you able to reply to that?

PN960

MR BROMBERG: I am able to reply in part - - -

PN961

THE SENIOR DEPUTY PRESIDENT: No.

PN962

MR BROMBERG: - - - but there are matters which - well, I haven't gone to the further instructions that I want, necessarily because I thought we were going to be able to resolve this. But we don't see for our part why some pressure can't be taken off everybody by the extension of the expression of interest process by a day or two, in circumstances where my learned friend has said to you that there is no prejudice that he can point to in the delay of the process at all, and he put that in the context of the Commission hearing this thing to finality.

PN963

THE SENIOR DEPUTY PRESIDENT: Yes. But his instructions are not to, and - - -

PN964

MR BROMBERG: Well, in that circumstances - - -

PN965

THE SENIOR DEPUTY PRESIDENT: They are his current instructions.

PN966

MR BROMBERG: In that circumstance, we think that the Commission should take that into account, and in those circumstances should list the matter for Monday morning, especially given that my learned friend has made his submissions, and whilst he may well be interested in hearing my submissions he will be able to read it in due course, and his participation in the hearing is not likely to be further required, and I don't say that lightly. I understand that there may be matters that he may ask to be heard on subsequent to any reply made. That is not entirely unheard of. But there may need to be a process put in place for dealing with any such request.

PN967

But in circumstances - fundamentally, in circumstances where our learned friend's client does very directly ignore the convenience of both the parties and the Commission here, we think that if there is a detriment to hearing this on Monday morning, it is a detriment that should fall on my learned friend's clients. But the ball is in their court. If there is no prejudice why can't the expression of interest deadline be put out by two days?

PN968

THE SENIOR DEPUTY PRESIDENT: Well, to some extent the ball is in your court, Mr Bromberg. You have brought the application. You should be in a position to reply to it. These are matters that shouldn't have caught you by surprise, having regard to the terms of the certified agreement and the specific references to part 15 of the Act, and the way in which it operates.

PN969

MR BROMBERG: These are matters that were not raised in any way in whatever opening our learned friend gave. I would have thought that he would have made some reference to the jurisdictional points.

PN970

THE SENIOR DEPUTY PRESIDENT: Well, I don't know that that would have assisted you much.

PN971

MR BROMBERG: Well, it may or may not have.

PN972

THE SENIOR DEPUTY PRESIDENT: No.

PN973

MR BROMBERG: But there are some weighty issues, your Honour, including these. Even if my learned friend is right, there is the question of whether a private arbitration of the kind that the High Court spoke of in the private arbitration case, the CFMEU case, is available in any event.

PN974

THE SENIOR DEPUTY PRESIDENT: Yes.

PN975

MR BROMBERG: And those are matters that I think need some consideration.

PN976

THE SENIOR DEPUTY PRESIDENT: Mr Dalton, how long will the matter before Commissioner Gay take on Monday?

PN977

MR DALTON: I understand that there is about an hour's evidence left and then the submissions of the parties.

PN978

THE SENIOR DEPUTY PRESIDENT: Yes. I am inclined to list this matter for 2.15 on Monday. That should at least free up the parties from the other matter in which they are involved, and you will just need to make what arrangements you can to either be back by then from Adelaide, if possible, or to have somebody take your place. It is a reply that is being given. I will ensure that the transcript is obtained expeditiously of Monday's proceedings as, indeed, I have asked for it to be done in relation to today's proceedings. Tuesday is cutting it a bit too fine, I think. I am trying to balance the interests of both parties and my ability to give reasons. We will adjourn until 2.15 on Monday.

ADJOURNED UNTIL MONDAY, 15 SEPTEMBER 2003 [5.24pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #1 WITNESS STATEMENT OF PAUL REDMOND MULLETT WITH ATTACHMENTS PRM1 THROUGH TO AND INCLUDING PRM16 PN242