C2004/6996, Transcript of Proceedings [2005] AIRCTrans 2231 (26 October 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13163-1

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER LARKIN

C2004/6996

APPEAL BY THE POLICE ASSOCIATION
s.45 Appeal to Full Bench
(C2004/6996)

MELBOURNE

10.01AM, THURSDAY, 13 OCTOBER 2005

PN1

MR N BALDINI: I appear for The Police Association.

PN2

MR G PATTERSON: I appear on behalf of the Chief Commissioner of Police, with me MS J CARLIN.

PN3

MR PATTERSON: My apologies to the Commissioner, your Honour.

PN4

JUSTICE GIUDICE: Mr Patterson, you want to raise something, do you?

PN5

MR PATTERSON: I wish to raise something that was identified this morning in review of the submissions that were going to be put today. I have notified my colleague, Mr Baldini, this morning by telephone about the incident and I wish to just raise the issue in relation to the dispute over the application of the agreement. Your Honour, the matter before the Commission relates to the use of the Victoria Police Force Certified Agreement 2001 provisions by both the appellant and the respondent in the matter.

PN6

The question relates to a dispute that was lodged originally by a Senior Constable Farley about a meal claim when he was required in the course of his employment to travel away from his station overnight. This occurred in September 2001. So the dispute occurred prior to the certification of the current Victoria Police Certified Agreement 2001 which occurred on 20 December 2001, some three months earlier. Your Honour, this would mean that both the appellant and the respondent to the matter have relied on probably the wrong provisions, both before Senior Deputy President Kaufman and before this Bench.

PN7

As a result of that, your Honour, and in some ways I'm in the hands of the Commission because I'm on unfamiliar grounds in some of these areas, but it would seem that the nature of the dispute before the Commission therefore is not one over the dispute of the application of the agreement, rather it might be in relation to an interpretation of a previous agreement as there may not be a live dispute in the matter.

PN8

JUSTICE GIUDICE: Mr Patterson, the particular matter concerning Senior Constable Farley was on 18 and 20 September 2001, is that right?

PN9

MR PATTERSON: That's correct, your Honour.

PN10

JUSTICE GIUDICE: And this agreement was certified when?

PN11

MR PATTERSON: On 20 December 2001.

PN12

JUSTICE GIUDICE: 20 December. Doesn't the material disclose that one way or another there's a dispute about how the agreement operates when there's a period of duty away from home overnight and overtime is worked as well?

PN13

MR PATTERSON: That is correct, your Honour. There is a dispute between the parties. The question then goes back to is there a live dispute.

PN14

JUSTICE GIUDICE: As to Senior Constable Farley?

PN15

MR PATTERSON: As to Senior Constable Farley, and whether there is an interpretation of the actual current agreement. Now, if I may also just draw your attention to a couple of other points, your Honour.

PN16

JUSTICE GIUDICE: Yes.

PN17

MR PATTERSON: Your Honour, I'll need to refer back to his Honour, Senior Deputy President Kaufman's decision.

PN18

JUSTICE GIUDICE: Just before you do, could I just ask, the preceding agreement, was that in the same terms?

PN19

MR PATTERSON: Yes. Your Honour, that would therefore take it back to the 1998 agreement and all the way back to the 1992 Victoria Police Force Award. The provisions of that award did not change until the current 2001 agreement. Now, I do acknowledge that the 2001 Agreement are on similar terms and very close, but the wording is different and certainly the paragraphing and numbering of the clauses is completely different.

PN20

JUSTICE GIUDICE: So just to get that right. The 2001 Agreement in relation to the allowances is in similar terms to the Award or the - to the Award?

PN21

MR PATTERSON: Yes, to the 1992 Award, correct, your Honour.

PN22

JUSTICE GIUDICE: Yes, I see.

PN23

MR PATTERSON: And they would be the provisions that would be relied upon in Senior Constable Farley's case.

PN24

JUSTICE GIUDICE: Yes, I see. I'm sorry, I interrupted you.

PN25

MR PATTERSON: That's quite all right, your Honour. So, your Honour, I just wanted to therefore draw your attention to his Honour's decision.

PN26

JUSTICE GIUDICE: Yes.

PN27

MR PATTERSON: Particularly at point 7, and if I may read that decision, your Honour:

PN28

I am satisfied that the Commission has jurisdiction as to the dispute, as the dispute is such that it is about a matter arising under the Agreement and it is over the application of the Agreement ...(reads)... should properly be applied in the given circumstances.

PN29

He based his decision, your Honour, under the current certified agreement, the 2001 Agreement, and it would appear that that may have been a mistake, and certainly the parties at that time had not taken that issue up with Senior Deputy President Kaufman. So there's now a real issue of whether it is a dispute over the actual application of the current agreement. What therefore, your Honour, I'd need to draw your attention to is the current agreement and how that operates and if I may draw your attention to the current agreement under clause 1.4 and 1.4.2.

PN30

SENIOR DEPUTY PRESIDENT WATSON: Sorry, the agreement in the - - -

PN31

MR PATTERSON: The current certified agreement, 2001.

PN32

SENIOR DEPUTY PRESIDENT WATSON: Is that in the material that's in the appeal - - -

PN33

MR PATTERSON: It's not in the material, I apologise. I wasn't aware of that.

PN34

JUSTICE GIUDICE: It may be VP1, is it?

PN35

MR PATTERSON: Quite possibly.

PN36

JUSTICE GIUDICE: That's only an extract.

PN37

MR BALDINI: I have spare copies of the entire agreement if that's of assistance to the Commission.

PN38

JUSTICE GIUDICE: How much of it do we need, Mr Patterson?

PN39

MR PATTERSON: Your Honour, I only need to draw your attention to one specific section on one page.

PN40

SENIOR DEPUTY PRESIDENT WATSON: Which is which provision?

PN41

MR PATTERSON: It's 1.4 which is consolidation clause interpretation in the current agreement.

PN42

SENIOR DEPUTY PRESIDENT WATSON: Very well, we have that.

PN43

JUSTICE GIUDICE: We could benefit from one copy, Mr Baldini. If you could furnish us with one copy. Thanks very much. Clause 1.4, is it?

PN44

MR PATTERSON: Yes, your Honour, so 1.4 is the consolidation clause of previous agreements which incorporates the Victoria Police Force Award 1992 right through to what was contained in the current agreement of 2001 and specifically in relation to 1.4.2 where it identifies what clauses have been rewritten and there's a dispute at a later date as to the intent or the meaning of these clauses, the parties will have regard to the documents in decisions arising from them. Your Honour, as I indicated, I am in the position at the moment to raise these issues with the Commission to the point where I'm sort of in the Commission's hands of whether this is actually a dispute over the application in the agreement, or whether it's an actual interpretation of the agreement.

PN45

If it's the latter it would be our position that the Commission does not have the power to deal with the matter. Now, I'm arguing this that this has come to light this morning and certainly this hasn't been relied on by either party until now. But it may be a significant jurisdictional issue.

PN46

JUSTICE GIUDICE: Well, just to assist my understanding of it, is it correct that if Senior Constable Farley's problem had been raised in the way you submit it should have been raised, it would have been - as to the operation of the terms in the 1992 award governing allowances?

PN47

MR PATTERSON: Yes, it would have been - - -

PN48

JUSTICE GIUDICE: That would have been the argument, as it were?

PN49

MR PATTERSON: Yes. It would have been in the correct method, yes, your Honour. So if the matter is to proceed today, if there's no jurisdictional issue here and the matter does proceed today, we would have to refer back to that previous 1992 award for all of the provisions that we refer to today rather than the current certified agreement.

PN50

COMMISSIONER LARKIN: What of the 1998 certified agreement?

PN51

MR PATTERSON: I'm sorry?

PN52

COMMISSIONER LARKIN: The 1998 certified agreement, that was the previous one?

PN53

MR PATTERSON: That was the previous agreement.

PN54

COMMISSIONER LARKIN: And those terms were completely different to
the - - -

PN55

MR PATTERSON: Those terms picked up the previous agreements and picked up the 1992 award and they carried right through until 2001 to the new agreement.

PN56

COMMISSIONER LARKIN: And they changed in 2001?

PN57

MR PATTERSON: They changed in 2001 and, as I indicated, they are very similar provisions, but they are different.

PN58

SENIOR DEPUTY PRESIDENT WATSON: But they probably were in an agreement operating at the time Senior Constable Farley made his trip.

PN59

MR PATTERSON: Yes, your Honour.

PN60

JUSTICE GIUDICE: I'm a bit confused about that. The allowances were in the 1992 award but they were picked up by reference in some way, were they, in the 1998 agreement?

PN61

MR PATTERSON: Your Honour, the 1998 agreement did not change the provisions of the 1992 award.

PN62

SENIOR DEPUTY PRESIDENT WATSON: How did it deal with the issue? Did it incorporate by reference the award or reproduce the award provisions?

PN63

MR PATTERSON: Yes, your Honour. I do have a copy of the 1998 certified agreement. If you could bear with me just one moment.

PN64

SENIOR DEPUTY PRESIDENT WATSON: Yes, certainly.

PN65

MR PATTERSON: The agreement indicates at 3.5 of the 1998 agreement:

PN66

Notwithstanding that upon the certification of this agreement the Victoria Police Force Award 1 of 1992, the Victoria Police Force Enterprise Bargaining Agreement 1995, ...(reads)... where provisions of this instrument is hereby agreed -

PN67

So it was done by reference, and then continues on. We're happy to provide you with that. So it was a reference that picked up all the previous agreements and award.

PN68

SENIOR DEPUTY PRESIDENT WATSON: So it was done by silence, in effect, because it didn't specifically deal with allowances in the award?

PN69

MR PATTERSON: Correct. It only over-rode those previous agreements of the award that were in this agreement, in the 1998 agreement.

PN70

JUSTICE GIUDICE: So you end up back at the 1992 award, yes.

PN71

MR PATTERSON: For the relevant provisions, that's correct, your Honour.

PN72

JUSTICE GIUDICE: Yes, all right. Just before we call on Mr Baldini on this issue, I suppose the question is, is there any dispute between the parties as to the operation of these provisions in the 2001 agreement? Or are you agreed how they operated in the circumstances? So to put it another way, if Senior Constable Farley's issues had arisen after the certification of the agreement, would there be any doubt as between the parties as to how they operate?

PN73

MR PATTERSON: Yes, your Honour, there would be.

PN74

JUSTICE GIUDICE: There would have been?

PN75

MR PATTERSON: Yes, and that is essentially the dispute that's before you today, that it's the employer's position, the Chief Commissioner's position, that he would not be entitled to what he is claiming.

PN76

JUSTICE GIUDICE: Yes. All right, thank you very much.

PN77

MR PATTERSON: Thank you, your Honour.

PN78

JUSTICE GIUDICE: Mr Baldini, I'm not sure how you wish to proceed, but the issue has been raised as a preliminary issue and I suppose if you've had a chance to consider it, it might be desirable to hear your submissions about that issue first.

PN79

MR BALDINI: Certainly, yes. We don't agree with those submissions that have just been put. Certainly it's true that Senior Constable Farley's dispute occurred whilst the '92 award was in force and prior to the 2001 agreement being ratified by the Commission. However, that wasn't the end of it and I think the parties would have gone to the lengths that they have in raising the issues had it simply been about two or three meal allowances. Unfortunately whilst that dispute was the genesis of a problem, the problem has continued and we have been in discussions with the Force arising from this issue and we have mentioned a number of other cases which we're aware of, or we believe the Force is aware of, even other cases where we say that members of the Force would have an entitlement and the Force declines to pay them because of the way in which they're applying the 2001 agreement.

PN80

So in our submission this is very much about the application of the 2001 agreement and the decision that arises from the proceedings today will have application to members who are in the position where they have both the overtime meal and the travelling away meal entitlement accruing in a manner similar to Senior Constable Farley. Technically the resolution of this issue won't affect Senior Constable Farley and it would require a further application under the '98 agreement to have application to him.

PN81

COMMISSIONER LARKIN: Or the 1992 award, because my understanding is that the 1998 agreement is silent.

PN82

MR BALDINI: My understanding is that we would invoke a dispute settling procedure under the 1998 agreement because the '98 agreement incorporates all previous awards.

PN83

COMMISSIONER LARKIN: I see. So it brings in the allowance provisions from the 1992 award.

PN84

MR BALDINI: Yes, Commissioner.

PN85

COMMISSIONER LARKIN: Has the 1998 agreement been set aside?

PN86

MR BALDINI: I don't believe it has. One can check.

PN87

COMMISSIONER LARKIN: No.

PN88

MR BALDINI: If it had been, it would be by the operation of the 2001 agreement.

PN89

SENIOR DEPUTY PRESIDENT WATSON: So you're saying whilst the circumstances of Mr Farley didn't arise under the agreement, there are comparable other circumstances which would have required or would require consideration of an application under the 2001 agreement?

PN90

MR BALDINI: Yes, and the principle that's at the centre of these proceedings, I very much look at the principle that we've been in discussions with the Force with.

PN91

SENIOR DEPUTY PRESIDENT WATSON: And the agreement operates till when, December of 2004?

PN92

MR BALDINI: Yes, but the parties have agreed that it will continue in operation until a period in 2006. I can expand on the mechanisms of that if you wish, but that's essentially a summary of the structure of the 2001 agreement.

PN93

SENIOR DEPUTY PRESIDENT WATSON: Yes, leave it at that at the moment.

PN94

MR BALDINI: Yes, but I was made aware of Mr Patterson's view just before leaving so I wasn't able to prepare much, but I was able to quickly take a file from a Senior Constable Greg Deane, whose claim arose in March 2003 and is very much of the same principles that are before the Commission today would arise and we've discussed a number of cases with the Force, both prior to proceedings before Senior Deputy President Kaufman and in our discussions afterwards where we sought to resolve the issue without needing the Commission's assistance by way of appeal, and again, we weren't - - -

PN95

JUSTICE GIUDICE: As I understand it, it's agreed by Mr Patterson that there's a disagreement about how the provisions would operate in a case like Senior Constable Farley's. The argument, I think, being put is that because there's no concrete case, as it were, before us and there wasn't before Senior Deputy President Kaufman, it wasn't a dispute over the application of the agreement as such, but was dispute as to the interpretation of the agreement which, I think, is suggested is a different kind of thing.

PN96

MR BALDINI: We wouldn't agree with that interpretation. We are seeking that the Police Force apply the agreement as it ought to be applied in our view. They've declined. We are very clearly in dispute over the application of the agreement and the Force is not applying the provisions as we say they ought and there are a number of concrete cases and had the Force, in proceedings, said that they wished to consider those concrete cases, then that could have been done and still could be done, but to draw the distinction at this stage is - I hesitate to use the term artificial, perhaps that's too strong - but it doesn't really hold any real application in terms of the way of the terms of the agreement.

PN97

The agreement has a settlement of dispute procedure. That settlement of disputes procedure allows matters to be resolved. The matter hasn't been resolved and unfortunately we find ourselves here.

PN98

JUSTICE GIUDICE: Yes, thanks, Mr Baldini. Mr Patterson, do you agree with what Mr Baldini has said, that there have been other cases of a similar kind under the 2001 agreement?

PN99

MR PATTERSON: No, your Honour, I do not.

PN100

JUSTICE GIUDICE: You don't.

PN101

MR PATTERSON: Mr Baldini mentioned a case just then, and I'm not aware of that case whatsoever and as far as I'm aware, as it currently stands, we have no live case associated with the case that's related to Senior Constable Farley and if I may, that is exactly what Senior Deputy President Kaufman found in his decision at 209 he says, "Accordingly there's n evidence before me as to whether a claim similar to Mr Farley's has been made or rejected in the past." Now, that is quite clearly our position as well. We have no other claim apart from this, that we can recall, and both parties were unable to provide that evidence to Senior Deputy Kaufman.

PN102

Now, at this stage I could not provide you with evidence that a similar claim has been made. Now, if Mr Baldini is going to provide evidence now, again, it would be new evidence. I have not considered it and it's not before this Commission at this very moment. It certainly was not in the material that was supplied by the parties.

PN103

JUSTICE GIUDICE: Well, given that and just before I come back to you, Mr Baldini, what in your submission is the consequence of the issues you're raising? What should we do? See, currently you've got a decision of the Senior Deputy President which upholds your construction of the agreement.

PN104

MR PATTERSON: That's correct, your Honour. We're quite happy with that agreement, by the way, by that decision, there's no doubt about that.

PN105

JUSTICE GIUDICE: But you seem to be suggesting that it was made on a false jurisdictional basis.

PN106

MR PATTERSON: I would have to admit that that is correct and so therefore if there is, or if this Commission decides that there is a jurisdictional problem here, they can either - sorry, my apologies. It would be my position that you'd either say that you would have to not hear the matter because of that jurisdictional problem, or alternatively send it back to either Senior Deputy President Kaufman to re-hear or to another Commissioner to re-hear, or another member of the Commission to re-hear because it was not heard in the correct instance in the first place.

PN107

SENIOR DEPUTY PRESIDENT WATSON: Why would we not - if you're correct, and simply find that there was no jurisdiction, Senior Deputy President Kaufman was in error, through no fault of his own, if the parties presented the matter on the basis he determined, his decision is of no effect. That would then leave the consequence, presumably if Mr Baldini is right, they would then at some future stage lodge another application with another member or the same member making a decision in relation to that circumstance.

PN108

MR PATTERSON: Yes, your Honour, that would be exactly the case. They would have to re-agitate this with a new claim. But our position is, as it currently stands, there is no live dispute in this matter under the current agreement.

PN109

COMMISSIONER LARKIN: So that involves setting aside his Honour's decision?

PN110

MR PATTERSON: Yes, Commissioner, that would be correct.

PN111

COMMISSIONER LARKIN: I don't know if there was an order or anything done in proceedings, or whether it was just the decision.

PN112

MR PATTERSON: Yes. I think that would be correct, and I did indicate some of this is new ground to myself, so I don't have all the answers to this at the moment. I only found this out an hour ago before I came here, and admittedly I definitely was not going to rely on it because in our written submissions we have relied on the current provisions of the certificate agreement in our submissions.

PN113

JUSTICE GIUDICE: Yes, very well.

PN114

MR PATTERSON: Thank you, your Honour.

PN115

JUSTICE GIUDICE: Mr Baldini, I think you wanted to say something else?

PN116

MR BALDINI: Yes, I did. Firstly, I don't accept Mr Patterson's assertions from the bar table that the case of Mr Deane has not been raised with him and it's my clear recollection that Mr Deane's case was raised with the Force and in the context of discussions under this issue.

PN117

COMMISSIONER LARKIN: Do we have evidence of that, Mr Baldini?

PN118

MR BALDINI: As I alluded to before, it was only minutes before I was due to leave to come to the Commission that I became aware of Mr Patterson's view and I was unable to source the notes. This issue, although it has been discussed in previous proceedings before the Commission, that two previous Commissioners had sought to conciliate this issue, and in both of those cases and I can't recall whether the issue was raised before Senior Deputy President Kaufman or not, but it was agreed that the ongoing dispute is about the 2001 agreement, and that that was the most efficient way of dealing with it because if we had a dispute about he application of Senior Constable Farley then that would be on an onset of words so that it would be - that it was better to actually deal with the provisions in the 2001 agreement so that the parties may have a method of moving forward - - -

PN119

JUSTICE GIUDICE: Do you say that was an agreed position?

PN120

MR BALDINI: Well, we agreed at the bar table.

PN121

JUSTICE GIUDICE: You say that was an agreed position?

PN122

MR BALDINI: Yes, between the parties at the bar table whilst running these cases, and again I haven't had time to attempt to source any corroboration of that, but that's my clear recollection. But if I could just further address the issue of, if he Commission were to find that Senior Deputy President Kaufman's decision is flawed, and I presume it would have to be set aside, but again I think that's something which can be - you may wish to hear further submissions on if that's the path the Commission chooses to go down, but clearly that would give rise to two further applications. One, under the 1998 agreement for Senior Constable Farley in these specific circumstances, and as I've indicated, we have a number of other live disputes, and indeed, the matter would simply be listed again and the Commission would hear it again and it would simply be further proceedings before the Commission.

PN123

JUSTICE GIUDICE: Mr Baldini, we're very inclined to adjourn this matter into a conference so that we can have some discussion about this. Not about the merits of the interpretation, but about these issues. Do you have any objection to that course?

PN124

MR BALDINI: No objection.

PN125

JUSTICE GIUDICE: What about you, Mr Patterson?

PN126

MR PATTERSON: No objection, your Honour. I'm happy to do it in conference, yes.

PN127

JUSTICE GIUDICE: All right. Well, we shall adjourn. We'll go off the transcript.

<SHORT ADJOURNMENT [10.32AM]
<RESUMED [11.16AM]

PN128

JUSTICE GIUDICE: Yes, Mr Baldini?

PN129

MR BALDINI: Yes, thank you for the opportunity to discuss a way forward. Unfortunately we were unable to reach any agreement. It is the Association's opinion that there is clearly a dispute about the application of the agreement, or, in our view, the non-application of certain provisions of that agreement and we were unable to reach any middle ground in that matter. It is, I think, understand by the Force that were there submissions to be adopted, that would simply result in further proceedings before the Commission and we were unable to reach any agreement on whether that was the desirable course or not.

PN130

JUSTICE GIUDICE: Yes. Do you have anything else to submit at this stage, Mr Patterson?

PN131

MR PATTERSON: Your Honour, save to say that if the proposition that I put this morning is correct, we would have to accept that the decision of Senior Deputy President Kaufman would have to be set aside purely on the fact that he has based his decision in the current application of the agreement where that is not so, and so we would have to accept that, that that decision be set aside. In respect to proceeding on the matter, it would be our view that new applications with actual live cases would have to be presented to the Commission and therefore it would have to be a new dispute. I don't see any other way around that at this moment from a legal point of view, and that's our position, your Honour. If your Honour pleases.

PN132

JUSTICE GIUDICE: Yes. Gentlemen, we've also had a chance to consider the position and what we intend to do is this. The directions in this matter require the parties to file their full submissions and the matter, I think, was listed effectively for any additional oral submissions and we have received quite extensive submissions from both parties. We don't intend to rule on the issue that's been raised this morning straight away because we want to give it some further consideration, but we think it's the most practical course to hear those additional oral submissions now and then to adjourn to consider all the matters. So, Mr Baldini, we'll look to you first to supplement in any way the full submissions you've already filed.

PN133

MR BALDINI: Thank you. One other matter that the parties were also directed to provide copies of the relevant authorities. I have those. I must apologise, that I have them only in Lever Arch files, we've run out of the smaller folders.

PN134

JUSTICE GIUDICE: That's fine, thank you, Mr Baldini.

PN135

MR BALDINI: If I could briefly take the Commission through the contents of the folder that I've just handed up.

PN136

JUSTICE GIUDICE: Yes.

PN137

MR BALDINI: The first section is the relevant clauses from the 2001 agreement. There is the consolidating clause, the overtime meal allowance, travelling allowances, attendance at court rate of payment clauses, and the second tab are the provisions of the 1992 agreement as it's a provision of the 2001 agreement, that the parties will have regard to antecedent documents and decisions arising from them, clause 1.4.2. Then the decision of Deputy President Ives and the National Union of Workers v Grain Corp Operations Limited, the City of Wanneroo v Montmorency Homes, the decision of the Printing and Kindred Industries Union, is another, v Davies Brothers, a decision of Grey J, and finally a decision of SDP Kaufman, PR918716, and it goes to the issue of estoppel which was raised in the written submissions.

PN138

In the respondent's submissions it is central to the written submissions that they claim that they have never paid double meal claims for the same meal. This does not reflect the reality of what has occurred in the past. The applicant has submitted in evidence numerous examples of the Force paying each meal allowance as the entitlement provides. The respondent, however, has not given any examples of their not paying each entitlement where the application accepts this refusal. In the material provided there are a number of cases where the Force had initially declined to make a payment and after the intervention of the Association, that decision was reversed and this is reproduced at attachments A, B and C to our written submissions.

PN139

Attachment A demonstrates that the respondent is paid overtime, lunch and a court lunch on the same day. Attachment B demonstrates that the respondent is paid a travelling away and overtime lunch on the same day. This occurred in May 2000. Attachment C demonstrates that the respondent is paid what is known as an unforseen duty meal, and an overtime meal on the same day. Given that the respondent has had ample opportunity to provide evidence to support their contention, it has failed to do so. We would submit that the Commission should properly draw an inference that there is no such material.

PN140

Therefore we would submit that the evidence is both not disputed and not contradictory in any way of the evidence. This is entirely in the one direction. The respondent's submission in the section that the respondent had in 2.2 attempted to create a distinction between the middle and the end of the working day and we say that distinction is flawed for a number of reasons. Firstly, it's contrary to the evidence as we just outlined. Secondly, it lacks precision. The examples given may result in a long time or a short time between entitlements. The case of attachment A, the accrued meal, they're opposite of conservative and the number of police concerned started at 7 am. He would have accrued a meal at approximately 1 pm. He then approved an overtime entitlement at 5 pm. Only four hours later.

PN141

Another member starting at 6 am, and many members do start at 6 am, would accrue an overtime entitlement at 4 pm. That's a gap of only three hours between the accrual of meals. Similarly a member appearing in court after a night shift would accrue an overtime meal at 9 am. Indeed, the court meal is nominally accrued somewhere between 12 and 2. So this attempt to draw the distinction that the Force is basing the case on, that is to say, two allowances for the same meal at the same time, simply doesn't reflect reality or the operation of the agreement.

PN142

In the case of attachment B, I should add, if the Commission would like me to go through those examples in a bit more detail, I am happy to do that.

PN143

JUSTICE GIUDICE: I don't think there is any need to, Mr Baldini.

PN144

MR BALDINI: Yes. Attachment B, we have a case of a travelling away lunch and then a claim for an overtime lunch meal. The travelling away lunch would be accrued according to the provisions of section 5.1.4.2, and would only be accrued had the Police member returned from the overnight trip after 2 pm. The overtime meal was accrued at 5 pm, an interval of just three hours. Again, the accrual of the unforseen duty meal in attachment C, and there are three examples in attachment C, depends on the time the member is called away from the station. In order to qualify for an unforseen duty meal, the member must be away at least five hours.

PN145

So that if a member is called away from their station three hours after commencing work, they won't accrue an unforseen duty meal until eight hours after starting, that is just two hours before accruing the overtime meal entitlement. If the member is called away five hours into their shift and is continuously absent, in fact they accrue the unforseen meal and the overtime meal entitlement simultaneously. The lack of precision, as has been pointed out in our written submissions, is demonstrated by the Force's inability to codify its own interpretation of the way it says the 2001 agreement should work.

PN146

The respondent uses - and I've taken three terms of the first couple of pages of the Force's submission - a double meal claim for the same meal. For a single meal break, allowances were made for different meals. But these terms don't reflect the terminology used in the agreement and more importantly don't reflect the concept central to the accrual meal allowance entitlements in the agreement. The agreement does not refer to the time that the meal was taken in determining when that entitlement is due. There is no reference back to when the food is actually consumed.

PN147

In each case the agreement accrues an entitlement according to the time worked and the working pattern. So by attempting to tie the payment of allowances into a notional time that the employer deems the employee to have eaten is significantly departing from the underlying basis on which the agreement is made and the underlying provisions of that agreement. There is no point at which a member of the Force has to demonstrate what time they ate. Just as a minor point, the respondent identified in their submissions the idea that they had raised the concept of one meal every six hours. This was first raised to the Association's knowledge in the letter to Senior Constable Farley that appears in attachment C.

PN148

Nowhere in the negotiations leading up to the agreement were discussions that had occurred prior to that letter had the Force mentioned this concept of a meal every six hours and we've addressed that point in our written submissions, that six hours refers to the overtime meal. It doesn't have broader application to every meal. In relation to the authorities, the Force cites a paragraph out of that case in referring to the overall context rather than simply the - I'll find the words - each meal should be interpreted within its context.

PN149

We say that doesn't help the Force in their case. The context is clearly set out in terms of the accrual of an entitlement, rather than them taking a meal as we said earlier. The intent of the parties was clearly an entitlement accrues on the occurrence of a trigger event. That is the context.

PN150

SENIOR DEPUTY PRESIDENT WATSON: Mr Baldini, haven't the parties simply adopted the award provision in 1992?

PN151

MR BALDINI: Yes.

PN152

SENIOR DEPUTY PRESIDENT WATSON: So wouldn't the intent of the authority which made the award, that was the basis of the provision, relevant in that context, under the Australian Timber Workers' authority in Angles? The parties haven't discretely considered the intent. They've applied the 1992 provision, in effect.

PN153

MR BALDINI: Well, we say that the 1992 agreement should be applied and indeed, has been applied.

PN154

SENIOR DEPUTY PRESIDENT WATSON: Sorry, 1992 award.

PN155

MR BALDINI: Sorry, '92 award has been applied in a manner that we're seeking. We would be in a very different position if we were attempting to ask the Commission to rule on a new interpretation and in our written submissions, the conduct of the parties leading up to the making of an agreement is of great assistance to the Commission in determining the way the parties understood that agreement to apply. There's no evidence that I've been able to adduce in my research from this case of the intent of the award making authority and, indeed, I understand that award was made by consent. So I'm not sure that that's actually of any assistance to the parties. We certainly disagree as to how the award, the '92 award would have been applied.

PN156

The Association says that it was consistently applied up until the case of Senior Constable Farley in the manner that we are seeking.

PN157

SENIOR DEPUTY PRESIDENT WATSON: The normal presumption as to the intent in respect to any reimbursement allowance would be that it is there to reimburse expenses incurred in the course of undertaking the word, would it not?

PN158

MR BALDINI: Yes, but that doesn't address the extent of the reimbursement and had that been the case, then we would say that the Force should be able to paint a very clear picture of their not paying both meal allowances during the currency of the '92 award and subsequently, so that we say that the conduct of the Force paints a very different picture, both in our understanding, which we say has changed.

PN159

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN160

MR BALDINI: This is not a usual industry. For instance, with Senior Constable Farley, he was engaged in covert surveillance and on two consecutive shifts he worked more than 20 hours on each shift in covert surveillance. It's very difficult work, it's very onerous work. Senior Constable Farley is not entitled to be paid overtime, as such, because he's in receipt of commuted overtime allowance based on 150 hours per year. He worked some 26 hours' overtime in those two shifts alone, and we would say he works under very difficult circumstances and the Force, or members of the Force would be working under very difficult circumstances.

PN161

Therefore some of the provisions of this agreement are different to the provisions of other awards and agreements and that's understood by the parties.

PN162

SENIOR DEPUTY PRESIDENT WATSON: It's not uncommon for these circumstances to arise, but you have pointed to three examples before Senior Deputy President Kaufman which you say were comparable and the Force disagreed with the comparability argument, and Senior Deputy President Kaufman made findings in relation to that and you foreshadowed earlier, there are a few other live issues. That's very few instances in circumstances where presumably this particular set of circumstances arises reasonably commonly, would that be the case?

PN163

MR BALDINI: I'm not sure that it would be reasonably common, but it would certainly arise more frequently than the examples we've got, but the material that we've got to give in evidence only arises out of the dispute.

PN164

SENIOR DEPUTY PRESIDENT WATSON: And what happens in other ones?

PN165

MR BALDINI: Well, it's been our very firm understanding up till now is that it's just a matter of course that the two allowances were paid and it's only been a recent departure from the Force in the last few years that it's been otherwise. The principle that we believe it was paid and has been paid - - -

PN166

SENIOR DEPUTY PRESIDENT WATSON: But there's no evidence beyond those three examples you - - -

PN167

MR BALDINI: No.

PN168

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well.

PN169

MR BALDINI: In the initial letter that Senior Constable Farley wrote, he said that the two allowances hadn't been paid, whereas they had been in the past and certainly there's been no evidence to the contrary from the Force.

PN170

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN171

MR BALDINI: The Force talks about the lack of an explicit provision allowing the two claims. It's our case that the absence of an explicit provision either allowing or preventing a claim are both meaningless - sorry. It's our submission that the absence of that specific provision allowing both meals doesn't mean that the interpretation must fail. In the absence of an explicit provision one way or the other, then the agreement must be read literally and read according to the words that it adduces.

PN172

JUSTICE GIUDICE: Mr Baldini, if you read the agreement literally it's not possible to say that both provisions aren't actually complied with, is it, if only one payment is made? Why doesn't the one payment satisfy both requirements?

PN173

MR BALDINI: We say that's not how the parties interpret - I'm sorry, yes. If I may have a moment?

PN174

JUSTICE GIUDICE: Yes.

PN175

MR BALDINI: That's certainly not the way that the agreement has been treated in the past.

PN176

JUSTICE GIUDICE: Yes.

PN177

MR BALDINI: The agreement refers to payment of an allowance of a specific amount and we would say that the - starting at 3.14.1, the overtime meal allowance, and then the shall be paid an overtime meal allowance where a members performs continuous work in the middle of two hours and that allowance is set out - the quantum of that allowance is set out in clause 5.1.8.3.

PN178

JUSTICE GIUDICE: But the overnight allowance, he gets more than that?

PN179

MR BALDINI: Yes, but again, the overnight allowance says that the member shall be paid a different amount so there is a requirement to pay an amount of money.

PN180

JUSTICE GIUDICE: But what's the basis on which h you say they should be cumulative allowances?

PN181

MR BALDINI: Well, practically, how can they be superimposed one on the other given that the accrual of those allowances can vary from being accruing at the same time in some instances or accruing half an hour apart, accruing an hour apart, three hours apart, six hours apart. It's very difficult to actually separate out the accrual of those times and to say you could say if they accrued at exactly the same time, then that may be one way of looking at it, but if they accrue at different times, whether those different times are close to each other or, indeed, a long way from each other, on what basis can you say that these are the same or different meal allowances?

PN182

JUSTICE GIUDICE: How many meals can you have, I suppose?

PN183

MR BALDINI: Well, it's not only how many meals you can have, but how much sustenance do you need. If you're lying in a ditch for twenty-two and a half hours watching somebody in a farm house, no doubt you're going to need quite a lot of sustenance. Police work can be very active work.

PN184

JUSTICE GIUDICE: Not when you're lying in a ditch. We know what you mean, anyway.

PN185

MR BALDINI: Yes. On other occasions police work can be very active work. Police have had to confront angry demonstrators and had to confront them for many hours. You will recall the demonstrations around the World Economic Forum. To simply say, well, if you stop work, you go to a pub, sit down and have a nice meal and then that's your eating done for that specific period of time, doesn't adequately reflect the nature of police work. Often police grab a meal when they can. They don't stop and go to the pub - or they do sometimes - but that tends not to be the way the work is performed.

PN186

Meals are grabbed and one thing I've noticed about police is that a lot of them are very big eaters. I spoke before of the difference between police and other industries and that's a reflection of the fact that a lot of food is consumed, whether at one time or whether taken three hours apart. I know a lot of fast food shops whose business would be significantly affected if the police changed their eating patterns. But the amounts paid here are paid at a particular rate and that's the nature of the allowance, that if the members are in receipt of an allowance, then they get that money to spend, and whilst it might not be advisable for them to spend it on hamburgers, that's for their own discretion.

PN187

Part of the issues is that the way the agreement and the award before it is set up is that they've been called a name, those meals have actually had names attached to them, which is reasonable. You have a breakfast meal, a lunch meal and a dinner meal and a night meal. But the breakfast meal can be anywhere between 601 and 1200. The lunch meal anywhere between 1201 to 6 pm. The dinner meal up to midnight. So it's misleading to focus solely on the name of the meal because the provision in the agreement doesn't actually make that name of the meal the trigger event for the payment of that meal or the accrual of the entitlement.

PN188

COMMISSIONER LARKIN: I don't think that's disputed, is it, by the respondent's submissions, Mr Baldini. I think that the point there made is it's not so much the name, it's the time. Mr Patterson will correct me if I'm wrong of my perusal of the submission.

PN189

MR BALDINI: It seems to me that they're having a bit both ways. What you say if entirely accurate. They in their submissions say well, if you have an overtime meal at 5.30 pm when you first accrue it, then that's taken to be a lunch meal because of the definitions and that's not necessarily - - -

PN190

COMMISSIONER LARKIN: Because of the time.

PN191

MR BALDINI: Yes. That's true, but then they want to say well, you can't have two dinner meals, which is a reference back to the name, so that that confusion or lack of clarity in the application of the provisions is, I suspect, what's leading to the confusion over their time, and the Force, in rejecting our claim, has said, well, you can't have two dinners at the same time, that's ridiculous, but that's not what the agreement provides. It's not what the agreement says.

PN192

JUSTICE GIUDICE: Mr Baldini, can I ask you what I'm sure is a very ignorant question. Are members of the Police Force all referred to as officers?

PN193

MR BALDINI: The normal terminology is member, member of the Force.

PN194

JUSTICE GIUDICE: Yes, thank you.

PN195

MR BALDINI: Officer in police parlance refers to somebody with rank of an Inspector or up.

PN196

JUSTICE GIUDICE: Yes. I've been watching too much television. In America I think they're all called officer, aren't they?

PN197

MR BALDINI: Yes, and some - I think in Victoria if you're pulled over and you refer to the Senior Constable as officer, that has to be a compliment.

PN198

JUSTICE GIUDICE: Yes.

PN199

MR BALDINI: The Force also pointed back to the original work provisions and made the point that the allowances that are the subject of these proceedings are all in the one division of the award, whereas under the agreement they occur in different divisions. We say that that's not of any consequence, it's not material to their argument. In fact, as we say, the fact that it was in the one division and they, in the past, paid each of them individually, would in fact strengthen our argument that they are to be paid separately, notwithstanding the fact that they have similar names. Now with the City of Wanneroo we have made submissions in relation to that and it's one of the grounds of appeal against the decision of Senior Deputy President Kaufman in that he too cited the words of the decision in the City of Wanneroo. That is, "It is the Commission's role to assign a meaning in accordance with the words rather than a decision as to what may or may not be considered to be appropriate." The Senior Deputy President accepted that this was so. But then he went on to make exactly the opposite finding.

PN200

SENIOR DEPUTY PRESIDENT WATSON: Are you saying he determined it on the basis of what was appropriate rather than interpreting the agreement?

PN201

MR BALDINI: Well, the very next paragraph of the Senior Deputy President's decision then says: "In my view Mr Farley's claim is a classic attempt of double dipping and should not be allowed unless it is clear from the words of the agreement that this is to occur." We say it is clear, quite clear from the words of the agreement that under certain circumstances one entitlement accrues, and under different circumstances an entirely different entitlement accrues and there is no provision in the agreement that says if you pay one, then you don't have to pay the other.

PN202

So it's our view that there can be no other clear meaning other than the one that we put in the submissions before the Senior Deputy President, and having agreed with that, the Senior Deputy President then turns around and says this is classic double dipping. We say that that's good grounds, or that that is, sorry, grounds for the Senior Deputy President's decision to be set aside because having acknowledged the principles set out in the authorities, he's failed to follow them.

PN203

JUSTICE GIUDICE: Well, wasn't the situation that he was faced with a disagreement as to whether 3.14 and 5.1.4 should both apply in circumstances where both were capable of application? But the issue was that two allowances payable are only one and he looked at that the terms of the agreement and said, well, in effect, he said it involved double dipping, something that's inherently unlikely that the parties intended that, and there's no indication in the words of the provisions that it was intended to permit double dipping. At the end of the day it's a pretty simple case, isn't it?

PN204

MR BALDINI: Well, we say that that case expressed in that manner doesn't accord with the actual words on which he has decided. If the Senior Deputy President wishes to reach the decision that those two meals should not be both paid, then the Senior Deputy President should, in his decision, goes back to the words and say, well, this is what this lot of words means. This is what this lot of words means and this is why those two clauses can preclude each other. He made no attempt to do that and he made no attempt to address the submissions that were put to him that each of those clauses is an entitlement and, on the accrual of that entitlement, ought to be paid.

PN205

SENIOR DEPUTY PRESIDENT WATSON: But he had a competing submission, that was your submission.

PN206

MR BALDINI: Yes.

PN207

SENIOR DEPUTY PRESIDENT WATSON: He had a competing submission. Hasn't he in effect concluded that there is an uncertainty which has led to the competing positions and there's nothing in the agreement which either directly precludes or authorises double payment and in those circumstances he's had to address what is the meaning in light of that uncertainty, your proposition as against the Force's proposition. I mean, your submission then was your premise is on the proposition that your interpretation is the correct one rather than a submission going to the approach of the Senior Deputy President as to his resolution of the uncertainty.

PN208

MR BALDINI: Well, what we say, Senior Deputy President, and we say now is that the conclusion that he has reached cannot be supported by the words. The words don't actually say what the Senior Deputy President wants to say. The words don't actually say that the two allowances must - or one must displace the other. That's not what the words say, and - - -

PN209

SENIOR DEPUTY PRESIDENT WATSON: There's an uncertainty as to that issue. He's gone to inherent improbability that the parties intended payment of the same - or reimbursement of the same expense twice and I would think logically the approach which would have been intended by the award, that one reimburses expenses, but reimburses them once.

PN210

MR BALDINI: We say there is no uncertainty, that the submissions before the Senior Deputy President and, indeed, the Senior Deputy President's decision wasn't able to point to that uncertainty and again, this is where we spoke of the lack of precision because clearly there are circumstances and the Force is quite happy to pay two dinners. Now, if - - -

PN211

COMMISSIONER LARKIN: But weren't they in different circumstances from my understanding of the submissions?

PN212

MR BALDINI: No. Attachment B, the circumstances are very, very similar. The time is a bit different, that is, the time that has elapsed between the accrual of one and the accrual of the other is slightly longer in attachment B than it was in the circumstances of Farley.

PN213

SENIOR DEPUTY PRESIDENT WATSON: They involve different allowances in two cases.

PN214

MR BALDINI: Certainly in attachment B, they are the same allowances, or they're two lunches as opposed to two dinners.

PN215

SENIOR DEPUTY PRESIDENT WATSON: No, different allowances in terms of the overnight's overtime. Two of the examples involved overtime and overnight allowances.

PN216

MR BALDINI: No, but attachment B certainly did.

PN217

SENIOR DEPUTY PRESIDENT WATSON: They've got a different time.

PN218

MR BALDINI: Yes, and it's the Force's submissions have been that those two allowances should be independently paid. They have some vague concept of at the same time which has got no precision and no previous application, they're not able to point to either, this is the way we've applied it in the past. They're not even able to point to, this is how we say it should be applied in the future, and the Force wasn't able to do that in submissions before Senior Deputy President Kaufman, nor was Senior Deputy President Kaufman able to point to that in his finding.

PN219

I'm sure the Force would not dispute that - in fact, they don't in attachment B, but where there's, say, three hours' difference, the paid both, but where is the point at which the two are so close that they no longer are paid? Where is the basis for saying there is a point at which the two should no longer be separately paid? There is no basis contemplated in the agreement. There was no basis contemplated in the practice of the Force prior to the dispute over Senior Constable Farley's circumstances and it's our understanding, and it's always been our understanding that there has been no distinction. The Force has always paid two separate allowances under two separate clauses where they independently accrue from each other.

PN220

Now, in the authority of the PKIU & Amor v Davies Brothers Limited, I switch to in addition to our written submissions which make it clear that it again continues the theme that the interpretation of the agreement shouldn't affect the surrounding circumstances and the behaviour of the parties and negotiations are only admissible if they establish objective facts. We would also point to, in another paragraph in this decision, and that's at page 451.

PN221

JUSTICE GIUDICE: Sorry, which one is this, Mr Baldini?

PN222

MR BALDINI: This is the PKIU v Davies Brothers, the decision of Grey J. It's the green tab in the material.

PN223

JUSTICE GIUDICE: Yes, thanks.

PN224

MR BALDINI: The evidence which - and this is on page 451, reading from halfway down the page:

PN225

The evidence which Mr Cooper gave really amounted to no more than an explanation of what the respondent hoped to achieve by the SEM agreement. Such evidence of actual intention is inadmissible. ...(reads)... in the Saturday evening Mercury.

PN226

It's our submission that this decision is most analogous to the current set of circumstances, that is, that the employer in that case set out a particular set of works. They'd done so with their eyes open and then when the union sought to apply those works, as they are literally contained, then the employer said no, no, that's not what we meant. Grey J found quite clearly that the fact that's not what the employer meant is not material. It's inadmissible.

PN227

SENIOR DEPUTY PRESIDENT WATSON: You're advancing the proposition there's simply no uncertainty about the provision at all?

PN228

MR BALDINI: I'm sorry?

PN229

SENIOR DEPUTY PRESIDENT WATSON: Are you putting the proposition there was simply no uncertainty as to the provision at all and therefore Senior Deputy President Kaufman need to nothing more than refer to the words? The need to go to any other material, indeed, wouldn't be permitted to go to any other material?

PN230

MR BALDINI: No, I'm saying that he's not permitted to go to any other materials. If there is evidence of past practice and evidence of the - to use the words of Grey J, at the bottom of page 450 in that decision, Grey J refers back to Cordelia Constructions and in summary we say that Grey J found that if the language is ambiguous, then the Commission can look to the surrounding circumstances. If not ambiguous then the surrounding circumstances are not admissible.

PN231

SENIOR DEPUTY PRESIDENT WATSON: I understood you to be putting the proposition that there's simply no uncertainty as to the words.

PN232

MR BALDINI: Yes. We say that that's correct. If you look at the words, then there is no answer. The words are quite clear and we used the term in our submissions. If a particular event happens, then the agreement provides that the employer must do something. That is quite clear. But even if there was some uncertainty, we don't agree that there was, but even if there was, then the evidence of the surrounding circumstances are admissible and the evidence that's before the Commission of the surrounding of the Force's practice were that they paid both.

PN233

There is not one scrap of evidence and I made the point both in my submissions before Senior Deputy President Kaufman - - -

PN234

SENIOR DEPUTY PRESIDENT WATSON: Yes, I think you've put the submission, I understand that. I was simply seeking clarification but you went so far to suggest that there was no uncertainty, whatever, yes.

PN235

MR BALDINI: Yes, but even if there had been uncertainty, you must look at the surrounding circumstances.

PN236

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you, Mr Baldini. Now, the only authority that the Force raised was the RTA decision of Marks J which is of course exhibited, and I have included it in my submissions, but I would add some comment in response to the Force relying on Marks J. Now, this case, the case of Marks J is under a different Act and follows a fairly difficult chain of reasoning and, you know, I wish to make no submissions as to whether Marks J actually applied the provisions of the New South Wales Industrial Relations Act or to, but it was Marks Js finding that he was able to use section 126(1)(a) of the Act to make a decision based on the consideration in equity, and he sets out those equity arguments as he says in page 6 of the print of that decision, handed up. He's used that, and on the basis of that section of the Act, made a ruling as to how he thought the agreement ought to be applied, and it's submitted that that's not the position that's set out in the authorities and that the authorities apply that the words be interpreted as they are, not as the tribunal believes they should be.

PN237

Marks J found under the New South Wales Act he was able to actually insert his provision of equity or his understanding of the equity of the situation and that's the course he took, and in our submission that's not a course taken that's open on the basis of the authorities.

PN238

JUSTICE GIUDICE: Isn't the Commission obliged to apply the principles of equity to establish the substantial merits of the case?

PN239

MR BALDINI: Yes, but subject to the authorities in relation to the interpretation of the words of the awards and agreements.

PN240

JUSTICE GIUDICE: Yes. Although it is a slightly different exercise, isn't it, when the Commission is looking at certainly a dispute over the application of an agreement. It's not a judicial determination.

PN241

MR BALDINI: Yes.

PN242

JUSTICE GIUDICE: I think that's what the High Court tells us in the case about private arbitration.

PN243

MR BALDINI: Yes, but having said that it's not a course open to the member of the Commission hearing a dispute over the application of the agreement, to simply set aside the words of that agreement.

PN244

JUSTICE GIUDICE: Yes, I accept that.

PN245

MR BALDINI: The case that we have is very different to the case that would be running if we were seeking for an understanding of what ought to apply and it's very different to the case that we would be running if the Force had in the past not paid two meal allowances if the meals were close in a particular time, and indeed, the reason that this appeal is delayed, given that the appeal documents were lodged last year, was that the Force sought discussions as to a possible settlement of the matter and we were very happy to enter into those discussions and see if there was a way forward without recourse to the Commission, and unfortunately we were unable to do so.

PN246

The Force's submissions to the appeal again refer to the concept of four meals in 24 hours and it should be noted that we actually offered to the Force, if they wanted to write that in, any four meals within 24 hours and that's what was meant, that they would agree with that, and they declined that as well. The six hour, it simply doesn't exist. As the examples in the attachments, none of those has got a six hour gap. A six hour gap is simply between overtime payments. It's also useful to note the words of the antecedent award. If I take the Commission to that. Clause 63(1) sets out the definitions of the terms, breakfast, lunch, dinner and night meal, and that defines breakfast as any meal purchased between 0601 and 1200. It doesn't say a meal. It says any meal. We would say that that is clear contemplation of the fact that there may be more than one meal.

PN247

JUSTICE GIUDICE: But are you arguing for two breakfasts, are you?

PN248

MR BALDINI: Well, there are circumstances where the Force has quite happily paid two lunches, quite happily paid two dinners.

PN249

COMMISSIONER LARKIN: At different times, though, weren't they, in those cases?

PN250

MR BALDINI: Yes, but - - -

PN251

COMMISSIONER LARKIN: They weren't - yes, sorry, I interrupted you.

PN252

MR BALDINI: And the problem is that there is no definition of the same time.

PN253

COMMISSIONER LARKIN: No, but there's a span in the agreement, there's a span of hours. So it's not the name of what it is. It's the span and the name is there for the dollar value.

PN254

MR BALDINI: Yes, there's simply a definition - - -

PN255

COMMISSIONER LARKIN: Yes, to give you a dollar value.

PN256

MR BALDINI: Yes.

PN257

COMMISSIONER LARKIN: So on your scenario, someone could be paid for lunch at 12.30 and also paid for lunch at 2.30, because it comes within the span?

PN258

MR BALDINI: Yes. Yes, and the Force has no problems paying lunch that occurs at 5 till 4, but the construction of the agreement is such that those times, and the equivalent times, can be very close to each other and on very rare occasions be exactly the same time. Now, again, if the Force was simply saying, well, if it's exactly the same time, I'm not sure whether we would be here or not, but that's not been the Force's position. The Force's inability to define when they will and when they won't pay has been a major stumbling block in resolving this dispute because they haven't been able to say, well, these are the circumstances we will pay, and these are the circumstances where we won't.

PN259

If the Force had that position we would be able to consider that and hopefully negotiate a resolution. But the Force simply says, if we deem that the same meal, regardless of the fact that we won't define how we reached that decision, we're not going to pay. That presents difficulties in our advising our members and we would suggest great difficulties in actually applying the agreement and that's one of the reasons why this is very much a dispute about the application of the agreement.

PN260

SENIOR DEPUTY PRESIDENT WATSON: I think your problem with the reliance of 63 of the previous stuff in the reference to Linzenmeier, if you read that document in the way you suggest, it would appear to provide an entitlement for a member, provided they're on unforeseen duty or overtime et cetera, et cetera, to go out and purchase as many meals as they liked and be entitled to be reimbursed for each of them and provided those circumstances of being away from the station, overtime et cetera applied.

PN261

MR BALDINI: Yes, and in fact the attachments set out that's exactly what the Force does. It just gives one entitlement on the occurrence of each.

PN262

SENIOR DEPUTY PRESIDENT WATSON: Well, on what you're putting to us on any meal purchased in those circumstances and however many meals that is.

PN263

MR BALDINI: No. I think the clauses then go on to say if the accrual event occurs, then you get this allowance and it is defined as that meal. But what it doesn't say is that if you get two separate allowances, then they're not both paid.

PN264

SENIOR DEPUTY PRESIDENT WATSON: Well, you get the allowance for breakfast purpose, for lunch purpose.

PN265

MR BALDINI: I'm sorry?

PN266

SENIOR DEPUTY PRESIDENT WATSON: You get the allowance for breakfast purpose, for lunch purpose, and you say that should be read as any meal purchased in those times.

PN267

MR BALDINI: Purchased in accordance with the accrual provided in the provisions.

PN268

SENIOR DEPUTY PRESIDENT WATSON: Yes. I'm not sure it's limited in that way.

PN269

JUSTICE GIUDICE: There's no requirement under the agreement as distinct from the award. There's no requirement there actually be a meal purchased, is there?

PN270

MR BALDINI: No, but the agreement does say - - -

PN271

SENIOR DEPUTY PRESIDENT WATSON: It's based on a reimbursement but it's in fact not - there's no requirement that there be a meal of a particular value purchased and so on, yes.

PN272

MR BALDINI: That's correct, yes, and when members work overtime they sometimes, but not often, will break for a meal break and purchase a meal with the allowance, but the Force has allowed the practice, and we say properly so, that if a person works and they finish their overtime much later than they would normally have gone home, then they still get their meal allowance even though they go straight home.

PN273

SENIOR DEPUTY PRESIDENT WATSON: Yes, I'm not being critical. I was just confirming my understanding of how the provision worked.

PN274

MR BALDINI: Yes.

PN275

SENIOR DEPUTY PRESIDENT WATSON: That's not unusual.

PN276

MR BALDINI: No, and in other industries. Indeed, the fact that the Force is talking about two meals occurring at the same time where they quite happily pay travelling away meal and they quite happily allow the member to work overtime and then go home, the fact that those two events independent of each other cause the Force no problems whatsoever, but when they both accrue, all of a sudden the Force is applying different rules.

PN277

Now, the Force, in this submission, talks about the Association being aware of any knock backs in the past and we say that's not helpful. We say there are not any knock backs or we're not aware of any knock backs, because there haven't been any, or there may have been some that were a misapplication of the Force's policy, but in any case, whenever the issue was taken up by the Association, the Force conceded. That's the only evidence that's before the Commission. There's no other evidence, certainly no evidence of any other practice up until Farley.

PN278

In relation to public interest, we say that the public interest shouldn't allow the decision to stand, so that the Senior Deputy President misapplied the facts in the case and we disagree with them, misapplied and misconstrued the submissions that were made to him, in particular the lack of precision of the Force's submissions that even if the Force's submissions were to be accepted in their entirety, they give no ability of the Commission or, indeed, any of the parties, to have a working rule and we say that lack of working rule means that the Force's case must be fundamentally flawed, because they say something shouldn't happen, but are unable to say exactly what it is that they say shouldn't happen.

PN279

I won't seek to further elaborate on our written submissions, so therefore we seek both leave to appeal and that the appeal be determined in accordance with our submissions. As I said before, working conditions of the Police aren't typical, with long hours and difficult situations and so some of the allowances in here are certainly in excess of what are in other industries, but it's understood that police - - -

PN280

SENIOR DEPUTY PRESIDENT WATSON: But you wouldn't take account of those sorts of disabilities in the reimbursement allowance. They would be taken account of by way of either work related allowances or the salary.

PN281

MR BALDINI: In a sense that's a similar argument. The fact that somebody may, in another industry, sit at a desk may affect the size of the entitlement. I don't know if it's pertinent to this case to discuss the size of the entitlements. But the point that I'm trying to make - - -

PN282

SENIOR DEPUTY PRESIDENT WATSON: But you're raising issues of the nature of police work and that's more properly dealt with in either work related allowances or salaries rather than a reimbursement allowance.

PN283

MR BALDINI: Yes, well, the point we're trying to make is that there is a certain amount of generosity, and we say proper generosity, in the way the Force has administered the allowances in the past. We say that that's entirely appropriate to the circumstances in which members of the Police Force find themselves. So we were given cause in negotiating the 2001 agreement to believe that the Force had a particular policy. We wrote the words or agreed to the words, we being the Association, agreed to those words on the clear understanding of what the Force does and what those words have meant in the past and what those words should mean in the future.

PN284

For the Force to turn around after the fact and claim that no, no, we've got it wrong all along, very much goes to the equity and I've included the decision of the Senior Deputy President in relation to estoppel, formal estoppel, and a number of decisions say that formal estoppel is not appropriate to procedures in the Commission. But fundamental fairness is, and what's fundamentally unfair about the way the Force has handled this, is that they've paid these allowances in a particular manner, they've allowed us to reach a set of words and that set of words, read literally, says exactly what that past practice has been.

PN285

For the Force to, after those negotiations are complete and the agreement is ratified, turn around and say no, that's not what we meant, that's not what we do, is fundamentally unfair, and fundamentally inequitable and fundamentally unreasonable in the circumstances. So we would say that formal estoppel is not appropriate, but certainly the concept of the parties proceeding on the basis of what they understand the current practice to be, writing words which reflect that current practice, then the parties, particular the Association, ought to be able to proceed on the basis with a degree of comfort that having that practice or words which literally preserve that practice, then it's unreasonable that the Force and the Commission in a decision interpreting that, will turn the matter on its head, and members lose the entitlement, or the allowances to which they have previously accrued - I apologise for my English there - they lose their allowances that they have previously enjoyed had the Force prior to the 2001 negotiations said, look, we know you've brought to us a number of occasions where - - -

PN286

JUSTICE GIUDICE: Mr Baldini, I think I should remind you that on an appeal there's a certain amount of latitude allowed to the decision maker and that what we're looking for is an error. There are issues of discretion that an Appeal Bench will never really venture far into unless there's some clear error claimed by the person whose decision is being appealed. I just think it worth mentioning that because even if you persuaded us on some of these more general issues of fairness, that we thought you were speaking good sense, it still wouldn't matter a great deal unless you could actually illustrate some error, some significant error, and I take it for the most part that's what your submissions have been directed to.

PN287

MR BALDINI: Yes.

PN288

JUSTICE GIUDICE: Yes.

PN289

MR BALDINI: And indeed, our written submissions are very much along those lines.

PN290

JUSTICE GIUDICE: Yes.

PN291

MR BALDINI: I'm certainly not wanting to take the Commission's time by restating the submissions that we've put in writing, we're certainly relying on the written submissions, but the point I'm making is that a provision of the Act in section 10(2)(c) has a very binding - sorry, if I may rephrase that. Is firmly binding on the Commission and for the Commission to make a decision that is contrary to the provisions of 110(2)(c), is in fact an error, and the Commission, in exercising its discretion in settling a dispute, can't exercise that discretion in a manner that contravenes section 110(2)(c).

PN292

JUSTICE GIUDICE: Yes.

PN293

MR BALDINI: It's our submission that to do so is an error and an error that fundamentally goes to the rights of the parties.

PN294

JUSTICE GIUDICE: Yes.

PN295

MR BALDINI: And we believe that that's not simple discretion, but an actual error in the failure to apply the Workplace Relations Act. Finally, if I may turn to the matters raised by Mr Patterson in the opening of those proceedings. I understand that the Commission will further consider its position in relation to this matter. What I'd seek to do is, for the Commission's information, is to tender an example that arises out of the Force's practice - - -

PN296

SENIOR DEPUTY PRESIDENT WATSON: Sorry, what is it that you are seeking to tender?

PN297

MR BALDINI: This is a circumstance in which a Senior Constable Greg Deane claimed an overnight stay and an overtime and was denied.

PN298

JUSTICE GIUDICE: Was that before the Senior Deputy President?

PN299

MR BALDINI: No.

PN300

JUSTICE GIUDICE: Could you show that to Mr Patterson and we'll hear his submission about whether or not we should accept that exhibit. Have you seen that before, Mr Patterson?

PN301

MR PATTERSON: Your Honour, I saw it earlier when I was putting those submissions in during the break only. So I would oppose that being submitted at this stage, depending on where the Commission wishes to take my preliminary point.

PN302

JUSTICE GIUDICE: Yes. So you wouldn't oppose it?

PN303

MR PATTERSON: I would oppose, yes.

PN304

JUSTICE GIUDICE: You would oppose, yes. Mr Baldini, apart from this matter, have you concluded your submissions?

PN305

MR BALDINI: Yes.

PN306

JUSTICE GIUDICE: Yes. Well, I think we understand why you would raise the objection, Mr Patterson, but is there anything else you want to say in relation to that?

PN307

MR PATTERSON: To that document, your Honour?

PN308

JUSTICE GIUDICE: Well, as to the objection?

PN309

MR PATTERSON: No, your Honour.

PN310

JUSTICE GIUDICE: No. Well, we're going to adjourn for a few moments. I would like when we return however to hear any submissions that either party would like to make about some exchanges in the transcript before the Senior Deputy President at paragraphs 85 to 91, paragraphs 106 to 112, and there is a further reference in paragraph 129. Those matters, those passages seem to be relevant to the preliminary issue raised as to whether or not there was a dispute over the application of the agreement, but we'll give you a chance to consider those. We will resume in about 10 minutes.

<SHORT ADJOURNMENT [12.33PM]
<RESUMED [12.47PM]

PN311

JUSTICE GIUDICE: Yes, Mr Baldini?

PN312

MR BALDINI: Just to quickly address the paragraphs you mentioned before the adjournment.

PN313

JUSTICE GIUDICE: Yes.

PN314

MR BALDINI: 85 to 91, the point that I was seeking to make there was that, whilst Mr Farley's circumstances occurred before the agreement was negotiated, had it come to the attention of the negotiators of the agreement so that they - when they negotiated the agreement they didn't do so in recognition or cognition of Senior Constable Farley's circumstances, and that's common ground. The Force, in their submissions, have agreed that that was the case. So that when we make our submissions as to agreeing to the 2001 agreement in reliance of past practice that that excludes what happened to Senior Constable Farley because the negotiators weren't aware of what was happening at the time. It has just been dealt with at the local level.

PN315

JUSTICE GIUDICE: Yes.

PN316

MR BALDINI: In terms of 106, paragraph 106, reading that, that's different to my memory of what I was trying to say and sometimes the words come out and they don't quite portray the point that you're trying to get at. It certainly says that all cases except for the one that brings us to the Commission, what I was attempting to describe was the - as I recall - was the practice of the Force prior to the 2001 agreement. Certainly it's common ground, I believe, between the parties that since that time there have been a number of occasions where the Force has declined to make payments in the course of what we say they should do in past practice.

PN317

In paragraph 129 - - -

PN318

JUSTICE GIUDICE: Paragraph 112, that was an instance where you say both allowances were paid, do you?

PN319

MR BALDINI: Yes, and that's confirmed by the letter signed by - - -

PN320

JUSTICE GIUDICE: Yes. What about the one in paragraph 129?

PN321

MR BALDINI: And again, that is a case where a member of the Force was initially denied the payment of both meals. We'd contacted the Force by email and the email confirmed in writing that our understanding was correct.

PN322

JUSTICE GIUDICE: Yes.

PN323

MR BALDINI: The Force has stopped paying all instances of two meals. They've simply stopped paying when the two instances of the meals are too close to each other, but again they negotiate would with us over what too close or at the same time means.

PN324

JUSTICE GIUDICE: Yes. Yes, Mr Patterson?

PN325

MR PATTERSON: Yes, your Honour. Your Honour, did you want me to address those points now or in the submissions?

PN326

JUSTICE GIUDICE: Well, I only wanted you at this stage to deal with those transcript references.

PN327

MR PATTERSON: Yes, your Honour.

PN328

JUSTICE GIUDICE: For example, the significance of the dates having been mentioned may have escaped you.

PN329

MR PATTERSON: Yes. I mean, I would have to concede that actually the dates were raised by Mr Baldini in transcript with Senior Deputy President Kaufman and I could not recall this morning, particularly, I could not recall that ever being raised, so my point that I raised as a preliminary point earlier that Senior Deputy President Kaufman may have aired it by mistake, not knowing that the claim was not within the certification date, possibly is not now correct. So that does not disrupt what I was originally raising. It's still, I would say, a procedural or jurisdictional problem for us at the moment.

PN330

JUSTICE GIUDICE: Yes, I understand.

PN331

MR PATTERSON: Yes. So that's in relation to the first point at 85, the paragraphs from 85. The other points that you highlighted, 106 to 112, we don't deny that there are two meal claims paid because we agree that there can be two meal claims paid and this comes to the guts of the case that was argued before Senior Deputy President Kaufman and what Mr Baldini has seemed to be continuing getting confused. They're not lunch meals. They're only lunch to set the rate. So they're not two lunches or two dinners. They're only referred to lunch or dinner to set the actual rate of the allowance. They're two separate meals.

PN332

JUSTICE GIUDICE: Yes.

PN333

MR PATTERSON: So we don't deny that we have paid two separate meals on those occasions, and we accept that. Where we say it is error is that we will not pay a meal where we are already giving a meal. Two meals at the same time. That's where the difference is.

PN334

JUSTICE GIUDICE: Yes, very well.

PN335

MR PATTERSON: If your Honour pleases.

PN336

JUSTICE GIUDICE: Mr Patterson, we don't need to hear from you in relation to your submissions, which we've read. We're now in a position to give our decision on this matter.

PN337

This is an appeal for which leave is required by the Police Association against a decision made by Senior Deputy President Kaufman on 24 November 2004. The decision purported to settle a dispute over the application of the Victoria Police Force Certified Agreement 2001 pursuant to clause 8.3 Settlement of Disputes of that agreement. The alleged dispute concerned the operation of clause 3.14 Overtime Meal Allowance, clause 5.1.8.83 which specifies the amount of the overtime meal allowance and clause 5.1.4, Accommodation and Meal Allowance when Required to Stay Overnight.

PN338

The nub of the alleged dispute was whether two allowances are payable in circumstances where an overtime meal allowance and an overnight stay meal allowance are capable of being attracted. In a nutshell the Senior Deputy President found that the award should not be applied so as to make the two allowances payable for the one occasion. The Police Association's appeal seeks to challenge that decision.

PN339

On the commencement of the appeal proceedings Mr Patterson, on behalf of the Chief Commissioner of Victoria Police, draw our attention to the fact that the proceedings before Senior Deputy President Kaufman were based on a particular case which concerned Senior Constable Farley. Those events occurred on 18 and 20 September 2001. This was prior to the certification of the agreement and the coming into operation of the agreement on 20 December 2001. It was submitted that the parties and the Senior Deputy President dealt with the matter under a common mistake that the agreement applied to Senior Constable Farley's case.

PN340

Mr Patterson ultimately submitted that for that reason there was no dispute over the application of the agreement before the Senior Deputy President and the decision should be quashed. This is a rather unusual turn of events since until that submission was made all parties had accepted there was a dispute over the application of the agreement. Furthermore, the Chief Commissioner had not sought to appeal the Senior Deputy President's decision.

PN341

Despite the fact that the circumstances giving rise to the claim made on Senior Constable Farley's behalf occurred before the agreement was certified, we're of the view there was nevertheless a dispute over the application of the agreement. The fact that Senior Constable Farley's case occurred before the agreement came into operation was raised before the Senior Deputy President by the representative of The Police Association and was not commented on or the subject of any submission by the representative of the Force in those proceedings.

PN342

There are two additional things. The first is the Senior Deputy President's finding which has not been challenged on the appeal that it is not uncommon for members to work overtime whilst on an overnight stay or to have a part day absence while attending court, and that's an extract from paragraph 8 of his decision. The second thing is that the parties are in dispute as to whether two allowances should be paid in circumstances where clauses 3.14 and 5.1.4 are both capable of application. When all these matters are taken together we've no doubt there was sufficient evidence before the Senior Deputy President of a dispute over the application of the agreement.

PN343

As to the appeal itself, it's only necessary that we refer to the Senior Deputy President's conclusion on the substance of the dispute. That is contained in the following passage from his decision, and it's in paragraph 33, that the Senior Deputy President said, and I quote:

PN344

I can discern nothing in the agreement that would require payment of a meal allowance twice for the same meal. The Overtime Meal Allowance clause is to ensure that employees who are working beyond their normal expected hours and into a period when it is reasonable for them to have a meal are not disadvantages by having to pay for it. ...(reads)... when they are away from home.

PN345

And continuing into paragraph 34, "There is no warrant to suggest the agreement recognised there be double dipping in respect of the same meal." I end the quotation there.

PN346

We are not satisfied there is any error in the Senior Deputy President's decision. It would be extremely unlikely that an agreement would provide that two allowances would be paid for the one meal. The Senior Deputy President was entitled to take the view that unless there was a specific indication in the terms of the agreement of an intention of that kind, he would assume there was no such intention. It is not necessary that we endorse the Senior Deputy President's approach, although we do so. It is sufficient to express our opinion the approach was open to the Senior Deputy President and did not involve any error, either of fact or law.

PN347

We're not of the opinion the matter is of such importance in the public interest that leave should be granted to appeal and we add, for completeness, that we don't think that there's any likelihood of injustice occurring if leave is not granted. For those reasons we decline to grant leave to appeal, and we shall now adjourn.

<ADJOURNED INDEFINITELY [1.00PM]