C2005/4503, Transcript of Proceedings [2005] AIRCTrans 2646 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13624-1

DEPUTY PRESIDENT HAMILTON

C2005/4503

THE POLICE ASSOCIATION
AND
CHIEF COMMISSIONER OF POLICE
s.99 - Notification of an industrial dispute
(C2005/4503)

MELBOURNE

10.22AM, TUESDAY, 06 DECEMBER 2005

PN1

MR C KENNEDY: I appear on behalf of the Police Association.

PN2

MR G PATTERSON: I appear on behalf on the Chief Commissioner of Police.

PN3

THE DEPUTY PRESIDENT: Directions have been issued in this matter and written submissions have been received, first of all the submission from the Police Association which I'll mark.

EXHIBIT #POLICE ASSOCIATION1 WRITTEN SUBMISSIONS

PN4

THE DEPUTY PRESIDENT: Then a submission from Victoria Police.

EXHIBIT #VICTORIA POLICE1 WRITTEN SUBMISSIONS

PN5

THE DEPUTY PRESIDENT: There's no evidence in this matter, is there?

PN6

MR KENNEDY: No witness evidence.

PN7

MR PATTERSON: No, your Honour.

PN8

THE DEPUTY PRESIDENT: All the facts are agreed. I suppose how we should deal with this is, we'll hear from the applicant and the respondent, then the applicant in reply. Perhaps I could start by asking a few questions, Mr Kennedy.

PN9

MR KENNEDY: Certainly, your Honour.

PN10

THE DEPUTY PRESIDENT: Sorry, a hearing, not conference. First of all, you're seeking a new federal award in the terms in what is it, attachment 5, is it?

PN11

MR KENNEDY: Attachment 5, your Honour, yes.

PN12

THE DEPUTY PRESIDENT: Paragraph 9 delineates the application of that award essentially or what it does.

PN13

MR KENNEDY: Yes, 9 and 10, your Honour.

PN14

THE DEPUTY PRESIDENT: Essentially it's that the wages of an employee, if I could use a colloquial phrase, topped up to the pay the employee would have received if he or she hadn't been suspended without pay pursuant to section 79(2) of the PRA which seems to be the Police Regulation Act 1958. Is that right?

PN15

MR KENNEDY: That's correct, your Honour

PN16

THE DEPUTY PRESIDENT: I don't seem to have the Police Regulation Act 1958 and I'll probably need to look at that, I think, if that's all right. Correct me if I'm wrong.

PN17

MR KENNEDY: I can lend your Honour a copy for the purposes of today.

PN18

THE DEPUTY PRESIDENT: Thank you. Section 79(2).

PN19

MR KENNEDY: 79(2) is reproduced as attachment 1 in our submission but if your Honour wants to familiarise himself with the general concept of the Act - - -

PN20

THE DEPUTY PRESIDENT: I need to look at it in the context of the Act to be safe. I don't like looking at provisions in isolation from the Act. First of all, the power of the Commission to make such an award, it seems to rest on two things, first of all the special Victorian provisions and secondly, section 89A. If you take me through quickly so I understand the special Victorian provisions that you're relying on that say, give me that power.

PN21

MR KENNEDY: Pursuant to the Commonwealth Powers of Industrial Relations Act 1996, Victoria referred to the Commission - - -

PN22

THE DEPUTY PRESIDENT: That's the state Act?

PN23

MR KENNEDY: That's the state Act, your Honour. Victoria referred to the Commission the power to prevent and settle the matter of conciliation and arbitration for the prevention and settlement of industrial disputes within the limits of the state.

PN24

THE DEPUTY PRESIDENT: I've got that state Act in front of me. Which provision are you referring to?

PN25

MR KENNEDY: Section 4(2). The effect of that was Victoria referring it to the Commonwealth, expanding, if you like, the conciliation and arbitration power that exists under the Australian Constitution. Then that was given effect to what
is - - -

PN26

THE DEPUTY PRESIDENT: Right, so that's the referral.

PN27

MR KENNEDY: - - - Part XV of the Workplace Relations Act

PN28

THE DEPUTY PRESIDENT: Which starts where, what section?

PN29

MR KENNEDY: Section 488. Then at section 493, additional effects of the Act industrial disputes, it expands the scope of the definition of industrial dispute to include disputes within the limits of Victoria.

PN30

THE DEPUTY PRESIDENT: That's the only provision of Part XV I need to look at, is it, section 493?

PN31

MR KENNEDY: Yes.

PN32

THE DEPUTY PRESIDENT: We then go to section 89A - before we leave 493, this is the first federal award made for Victorian Police?

PN33

MR KENNEDY: Yes, it is.

PN34

THE DEPUTY PRESIDENT: Is there anything else I need to be aware of?

PN35

MR KENNEDY: The only issues that relate which we do cover in our written submissions is the provisions within the Commonwealth Powers Act that narrow the scope of the referral to preclude certain matters that relate to law enforcement officers. Some matters are not referred.

PN36

THE DEPUTY PRESIDENT: Such as, sort of higher levels and redundancy and that sort of thing?

PN37

MR KENNEDY: Yes, in part, so the things that are colloquially known as the re AEU matters about the implied constitutional limitations, but it does go further in terms of what are called law enforcement officers in the Commonwealth Powers Act.

PN38

THE DEPUTY PRESIDENT: That's in the Commonwealth Powers Act; what section?

PN39

MR KENNEDY: Section 5(1)(a) and (b), your Honour.

PN40

THE DEPUTY PRESIDENT: Re AEU matters, yes.

PN41

MR KENNEDY: Then 5(1)(b) goes on and deals with specific matters relating further to police probation, promotion, transfer from place to place or position to position, physical, mental fitness, uniform, equipment, discipline or termination of employment of law enforcement officers.

PN42

THE DEPUTY PRESIDENT: So it's (a) and (b).

PN43

MR KENNEDY: Yes.

PN44

THE DEPUTY PRESIDENT: None of those arise in this case, do they?

PN45

MR KENNEDY: It's our submission that they don't arise. We addressed it in part in our written submissions, your Honour, dealing with the question about whether it is. It is a matter about discipline and it's our submission that it's not about discipline.

PN46

THE DEPUTY PRESIDENT: Is there an industrial dispute in existence or aren't I required to find such?

PN47

MR KENNEDY: There is a dispute in existence.

PN48

THE DEPUTY PRESIDENT: Which arises from what?

PN49

MR KENNEDY: Which arises from a demand made by the Police Association on the 4th for payment for these members.

PN50

THE DEPUTY PRESIDENT: That's the demand contained in the notification of dispute in c2005/4503, is it?

PN51

MR KENNEDY: Yes, your Honour.

PN52

THE DEPUTY PRESIDENT: Are you asking me first of all to find an industrial dispute exists pursuant to section 101 of the Act or not? I think I need to do that, don't I?

PN53

MR KENNEDY: I suspect you do need to do that. It was one that I hadn't turned my mind to. I'm not sure the Commission has made that many - - -

PN54

THE DEPUTY PRESIDENT: I make no criticism. I'm just trying to work through an extremely complex legislative environment.

PN55

MR KENNEDY: I'm not sure that the Commission has actually made an intra-state dispute, if I can use that expression, for Victorian workers, other than the common rule provisions that are dealt with elsewhere.

PN56

THE DEPUTY PRESIDENT: I suspect I have to make - - -

PN57

MR KENNEDY: I presume, your Honour, that you are required to make a finding of industrial dispute under 101.

PN58

THE DEPUTY PRESIDENT: That being the case, what are the matters in dispute and who are the parties, the matters set out under section 101 of the Act?

PN59

MR KENNEDY: The matters in dispute would be the matters covered by attachment 5 of our submission.

PN60

THE DEPUTY PRESIDENT: That's the draft award plus the log in one.

PN61

MR KENNEDY: Yes.

PN62

THE DEPUTY PRESIDENT: The parties to the dispute?

PN63

MR KENNEDY: Parties to the dispute.

PN64

THE DEPUTY PRESIDENT: I have section 101 in front of me. I have to determine the parties and the matters. The matters are, the award in attachment 5 to Police Association 1 - - -

PN65

MR KENNEDY: The employer party would be the Chief Commissioner of Police or the state of Victoria.

PN66

THE DEPUTY PRESIDENT: The state of Victoria?

PN67

MR KENNEDY: The state of Victoria.

PN68

THE DEPUTY PRESIDENT: And the applicant is?

PN69

MR KENNEDY: The applicant is Paul Redmond Mullett acting as an agent on behalf of members of the Police Association.

PN70

THE DEPUTY PRESIDENT: Just let me think about that for a second. The original notice of alleged dispute was lodged by Paul Mullett, the secretary of the Police Association. The Police Association is a registered organisation, correct? Yes?

PN71

MR KENNEDY: It's not a registered organisation.

PN72

THE DEPUTY PRESIDENT: He's an agent acting and authorised to act on behalf of how many thousand members of the Police Association?

PN73

MR KENNEDY: 11,000.

PN74

THE DEPUTY PRESIDENT: Perhaps if you could provide me with a draft finding of dispute that I can use. I don't want to be a pedant but I can assure you that if I don't do this, someone else might well. I think that's probably the way to go and then we'll give leave to Mr Patterson to respond to it, if he wishes to, and then you can respond to that.

PN75

MR KENNEDY: Yes, your Honour.

PN76

THE DEPUTY PRESIDENT: You can provide that say within a week and then Mr Patterson has a week to look at it, say what he wishes to say about it and then you can respond. That's that issue. I'm really loath to ask this but I suppose I have to, does Conrad alter anything? See, if I don't ask these questions, someone else will.

PN77

MR KENNEDY: Well, Conrad turned on a question about termination of employment and whether the provisions pre-96 were enlivened for a police officer. Subsequent to 1996, police officers - - -

PN78

THE DEPUTY PRESIDENT: Are police officers employees?

PN79

MR KENNEDY: The view of the High Court of Australia in Perpetual Trustees is that at common law police officers are not employees.

PN80

THE DEPUTY PRESIDENT: That's what Conrad said too, wasn't it? Correct me if I'm wrong.

PN81

MR KENNEDY: That's right.

PN82

THE DEPUTY PRESIDENT: Can I make an award with respect to people who are not employees?

PN83

MR KENNEDY: You can. Law enforcement officers are specifically referred by Victoria to the Commonwealth under the Commonwealth Powers Act. Law enforcement officers include members of the force.

PN84

THE DEPUTY PRESIDENT: In other words, we're not confined by section 51(xxxv) of the Constitution because it's the referral power of the Constitution.

PN85

MR KENNEDY: That's right.

PN86

THE DEPUTY PRESIDENT: Remind me which that is.

PN87

MR KENNEDY: I couldn't remind you, your Honour.

PN88

THE DEPUTY PRESIDENT: No, but I think that's the way round it, isn't it?

PN89

MR KENNEDY: It is.

PN90

THE DEPUTY PRESIDENT: I think that's the answer to section 51(xxxv). So even if it was an issue with section 51(xxxv) and I'm not sure that there is actually, nevertheless - well, there may be, but nevertheless it doesn't matter because we're relying on referral powers.

PN91

MR KENNEDY: That's right. 51(xxxv) is expanded pursuant to a referral to include - so, none - - -

PN92

THE DEPUTY PRESIDENT: No, I don't think that's correct. I think what happens is that the federal parliament has the capacity to accept a referral of power from the states under a special section in the Australian Constitution, which escapes me, but perhaps you would like to tell me when you're providing me with a draft notification of dispute. You can tell which power that is and say anything you want to say about it. I'm sure it's all right but I have to be thorough, otherwise we'll run into all sorts of trouble. You will provide me with that as well?

PN93

MR KENNEDY: I will.

PN94

THE DEPUTY PRESIDENT: That's that. Now we come - - -

PN95

MR KENNEDY: It's 51(xxxvii) your Honour.

PN96

THE DEPUTY PRESIDENT: What does that say?

PN97

MR KENNEDY: I'm taking the reference and I'll have to check it, your Honour, but in the Commonwealth Powers Act it specifically makes mention:

PN98

A matter referred to the parliament of the Commonwealth by a subsection of this section is so referred subject to the Commonwealth of Australia Constitution Act and pursuant to section 51(xxxvii).

PN99

I think we can take it that that's the correct section, but I'll take you on notice.

PN100

THE DEPUTY PRESIDENT: All right. Just give me a short note to that effect and it will be dealt with under the same procedure as the finding of dispute. Have there been federal awards found in respect to police officers in other states? There must be.

PN101

MR KENNEDY: Not in respect to state police.

PN102

THE DEPUTY PRESIDENT: Federal police then?

PN103

MR KENNEDY: Federal police over an existing award.

PN104

THE DEPUTY PRESIDENT: They have, well, that would be under the territories power, I suppose.

PN105

MR KENNEDY: Under the Commonwealth employees power which is a separate power to the territories power.

PN106

THE DEPUTY PRESIDENT: So they must be employees.

PN107

MR KENNEDY: The Commonwealth powers extend to those engaged by the Commonwealth, the only thing that extends to those, but without having a copy of the Constitution in front of me, I don't think I can go into the debate. That's a discussion for another day, I think. I'll have to speak to the status of the Australian Federal Police, your Honour.

PN108

THE DEPUTY PRESIDENT: I prefer not to deal with that one. I think we have enough difficulties today without adding to our difficulties. We've got to section 89A, scope of industrial disputes which (1) provides:

PN109

An industrial dispute is taken to include only matters covered by these sections.

PN110

The industrial dispute that presumably I'm going to find pursuant to section 101 - I think you're relying on wages, aren't you?

PN111

MR KENNEDY: Yes, your Honour.

PN112

THE DEPUTY PRESIDENT: And stand-down, is it?

PN113

MR KENNEDY: Yes.

PN114

THE DEPUTY PRESIDENT: Those are the two?

PN115

MR KENNEDY: They would be the two that go directly and if necessary are incidental to the question of wages and/or stand-down, your Honour.

PN116

THE DEPUTY PRESIDENT: Just let me get this straight. Wages is section 89A(2)(c) rates of pay generally. Okay.

PN117

MR KENNEDY: Then stand-down is 89A(2)(o).

PN118

THE DEPUTY PRESIDENT: I've got the award simplification decision in front of me. What does that say about rates of pay generally that I need to know about?

PN119

MR KENNEDY: It doesn't deal directly with this question about suspension, however, in the materials that we've provided to you, we have provided a decision in respect to Victorian psychiatric employees.

PN120

THE DEPUTY PRESIDENT: At page 64 of the simplification decision P7500 gives examples of rates of pay which include:

PN121

Payments for when work not performed.

PN122

That might be this present matter, mightn't it?

PN123

MR KENNEDY: What was that section?

PN124

THE DEPUTY PRESIDENT: It's page 64, there's a table of allowable matters/incidental and necessary table, see principle 9 and it says:

PN125

The table refers to provisions in the current and proposed Hospitality Award which they have decided are allowable or incidental when necessary.

PN126

One of the examples, the second dot point from the bottom is:

PN127

Payments for when work not performed.

PN128

I can't recall what that refers to in the Hospitality Award but payment for periods when someone is suspended from duty, to top their wages up might well be that. I'm not sure. Go on. Sorry, I interrupted you.

PN129

MR KENNEDY: In the materials that we have provided there's a decision of Commissioner Holmes in the Victorian Psychiatric Award. That decision doesn't deal specifically with the question about the suspension provisions but the Psychiatric Award contains a suspension provision not in dissimilar terms to what we're proposing, your Honour.

PN130

THE DEPUTY PRESIDENT: Understood. That's in tab what?

PN131

MR KENNEDY: That's not tabbed, your Honour. The authorities are at the back of our submission. It's the second of the authorities at the back.

PN132

THE DEPUTY PRESIDENT: The award is there too, isn't it?

PN133

MR KENNEDY: Yes.

PN134

THE DEPUTY PRESIDENT: I think I saw it. Right. Which clause is it, if you would?

PN135

MR KENNEDY: It's 11(10), clause 11 - - -

PN136

THE DEPUTY PRESIDENT: Subsection (10). I have it. Termination of the inquiry? It says:

PN137

If the person conducting the inquiry finds a charge has not been proved, any suspension against the staff member relating to the charges expires -

PN138

And then there's top-up. I see, so it's very similar to the award.

PN139

MR KENNEDY: Yes.

PN140

THE DEPUTY PRESIDENT: In fact you may have taken it from that.

PN141

MR KENNEDY: As I say, Commissioner Holmes in his decision doesn't address it - - -

PN142

THE DEPUTY PRESIDENT: Specifically.

PN143

MR KENNEDY: - - - specifically, but that is the outcome of the award simplification exercise in the psychiatric employees case.

PN144

THE DEPUTY PRESIDENT: Are there any Full Bench decisions on the point?

PN145

MR KENNEDY: I was unable to locate any.

PN146

THE DEPUTY PRESIDENT: Fair enough.

PN147

MR KENNEDY: In fact there are very few decisions outside the context of termination that deal with this question of suspension without pay.

PN148

THE DEPUTY PRESIDENT: There are a lot of Full Bench stand-down decisions which I recall. I think some of them may deal with wages. I'm trying to recall but nevertheless, standing down without pay is very similar to suspension without pay, pursuant to the old provisions of the Conciliation and Arbitration Act, if you recall, which provided a procedure for determining stand-down clauses. I'll certainly look at those decisions. Sorry, go on. Have you finished the section 89A?

PN149

MR KENNEDY: Yes, your Honour.

PN150

THE DEPUTY PRESIDENT: I'll just look at the award and see if there's any other questions I have about the draft you've got that I've missed. I'm curious as to how the award can bind an association that's not registered in clause 5. I think probably it might be referable to the individual employees in the manner you're going to suggest in your finding of dispute, mightn't it?

PN151

MR KENNEDY: I think, in practical effect, your Honour, that would be correct. Whilst there's no bar for the Commission finding a non-registered organisation a party to a dispute - - -

PN152

THE DEPUTY PRESIDENT: It's got no effect, it doesn't bind its members in any way.

PN153

MR KENNEDY: Yes, that's right.

PN154

THE DEPUTY PRESIDENT: To bind its members you've got to refer to the members themselves.

PN155

MR KENNEDY: Yes.

PN156

THE DEPUTY PRESIDENT: Clearly, there's no point in listing them all in an award.

PN157

MR KENNEDY: No.

PN158

THE DEPUTY PRESIDENT: But you could.

PN159

MR KENNEDY: We've taken that on notice to draft a finding of dispute. The effect would be that it would have to be binding on persons employed within the force.

PN160

THE DEPUTY PRESIDENT: There's precedent for industrial disputes binding individual employees. It's well established. It doesn't happen often but it's usually individual employers, of course. For the sake of convenience you might say Paul Mullett as agent for the employees listed in attachment A, which is kept on the registry file or some such thing. I'm not sure how you do it but I don't want to make a federal award, assuming I do, which is nine inches deep of a telephone book of names.

PN161

MR KENNEDY: I will turn my mind to that in drafting the dispute notice, whether it's possible to not name them but persons employed at a certain date so describe them as a class of employees, alternatively to rely on the articles of incorporation for the association that empower the secretary to enter into industrial agreements, instruments, et cetera, on behalf of members and they're deemed to have authorised him by joining the association.

PN162

THE DEPUTY PRESIDENT: There were federal awards made without a union party during the pilots dispute, so that's a precedent of a Full Bench authority for such a thing being done. The dispute resolution clause meets all the freedom of association requirements I'm supposed to abide by, does it?

PN163

MR KENNEDY: Yes, and that is that it provides that they may request a Police Association representative to be present so it doesn't mandate it and similarly, that would escape the provisions of work choices, your Honour, where if it mandated a union representative then it would be a prescribed content.

PN164

THE DEPUTY PRESIDENT: It's said against you that it's not a dispute over the application of the agreement, rather it's a dispute over which of two Acts takes precedent.

PN165

MR KENNEDY: The question about whether it's a dispute over the application of the agreement is irrelevant, your Honour. The matter is notified as a section 99 dispute.

PN166

THE DEPUTY PRESIDENT: We're here dealing with an industrial dispute.

PN167

MR KENNEDY: Yes. The submission that it's about the clash of two statutory provisions we would also say is not relevant. The Police Regulation Act is actually silent on the question about what happens when a member is acquitted. The parliament of Victoria clearly haven't turned their mind to that question and as such the jurisdiction is clear for the Commission to make an award in the terms that we've sought. It is at its heart a dispute over what is the appropriate payment to be made to a member who has been suspended but is subsequently acquitted.

PN168

THE DEPUTY PRESIDENT: Yes, and there's no issue that that doesn't pertain to employment, is there? I mean, they are suspended from employment so I can't see it can be anything but connected pertaining to the employment relationship.

PN169

MR KENNEDY: Yes.

PN170

THE DEPUTY PRESIDENT: I'm sure we'll return to that issue when we come to Mr Patterson. Is there anything else you want to say about jurisdiction and so on that I've missed?

PN171

MR KENNEDY: No. I think we've covered all the jurisdictional questions.

PN172

THE DEPUTY PRESIDENT: Then we come to, I suppose, merit. First of all the wage fixing principles, it's a first award, is it?

PN173

MR KENNEDY: It is a first award.

PN174

THE DEPUTY PRESIDENT: Sorry, Mr Patterson.

PN175

MR PATTERSON: My apologies to Mr Kennedy. Your Honour, do you require myself just to address some of the jurisdictional points now or in submissions?

PN176

THE DEPUTY PRESIDENT: It might be useful to do it all in one go, if that's all right.

PN177

MR PATTERSON: That's fine. I'm in your hands, of course, your Honour.

PN178

THE DEPUTY PRESIDENT: I think that would be the most useful way to do it so we'll hear in total from Mr Kennedy, hear in total from you and then have a full reply, if that's all right.

PN179

MR PATTERSON: Yes, your Honour. Thank you.

PN180

THE DEPUTY PRESIDENT: Thanks. We go to the first award principle, do we?

PN181

MR KENNEDY: Yes.

PN182

THE DEPUTY PRESIDENT: It first of all states that it must be consistent with the Commission's obligations under Part VI of the Act. Part VI includes 89A as well as the objects of the award.

PN183

MR KENNEDY: Yes.

PN184

THE DEPUTY PRESIDENT: You're relying on section 88A, 88B and so on, are you?

PN185

MR KENNEDY: Yes.

PN186

THE DEPUTY PRESIDENT:

PN187

Act as a safety net of fair minimum wages and conditions of employment.

PN188

88A(b).

PN189

MR KENNEDY: Yes.

PN190

THE DEPUTY PRESIDENT: Secondly:

PN191

To determine the content of a first award the Commission ..... with regard to A, relevant minimum wage rates and other awards.

PN192

How do I deal with that in this case?

PN193

MR KENNEDY: It is unusual in that - - -

PN194

THE DEPUTY PRESIDENT: It's vis-ā-vis the metals fitter as I recall.

PN195

MR KENNEDY: Since we're not asking the Commission to fix a wage rate
per se, the specific items listed under the principles don't have relevance to the case before your Honour. If we're an applicant seeking an entire award with respect to wage fixing principles, we're in the context of fixing wage rates rather than dealing with every ancillary item that might exist, the Commission, needless to say, is focused on the question of how do we fix the wage rates in an application for a first award? It also deals with the question about allowances quite specifically elsewhere in the principles but in the first award principles it's really looking at wage rates when it enumerates the items to be considered. Nevertheless, the historical test that the Commission has applied is that prima facie the rates and conditions that would apply are those that exist in the employment or industry at the time the parties seek to have the first award made.

PN196

THE DEPUTY PRESIDENT: We now have a system in which wages and relativities are set vis-ā-vis the metals fitter rate and you're not doing that in this case.

PN197

MR KENNEDY: That's right. I'm not asking you to fix a wage rate.

PN198

THE DEPUTY PRESIDENT: Is it like accident make-up pay or something of that sort?

PN199

MR KENNEDY: It is akin to accident make-up pay without being that provision.

PN200

THE DEPUTY PRESIDENT: That's an allowable, is it, accident make-up pay?

PN201

MR KENNEDY: Accident make-up pay is an allowable matter. Off the top of my head I can't tell you the decisions but it has been dealt with by the Commission and determined to be an allowable matter.

PN202

THE DEPUTY PRESIDENT: Secondly:

PN203

(b) the need for any alterations to wage relativities between awards be based on skill, responsibility -

PN204

et cetera. Again you say that's not relevant?

PN205

MR KENNEDY: That's right, your Honour.

PN206

THE DEPUTY PRESIDENT:

PN207

(c) exception 89A.

PN208

We've dealt with that, haven't we?

PN209

MR KENNEDY: Yes.

PN210

THE DEPUTY PRESIDENT:

PN211

(d) the award simplification criteria in section 143 of the Act.

PN212

You're restricting the efficiency of the industry?

PN213

MR KENNEDY: No, your Honour.

PN214

THE DEPUTY PRESIDENT: You're not?

PN215

MR KENNEDY: No.

PN216

THE DEPUTY PRESIDENT: Are you including:

PN217

Matters of detail or process more appropriately dealt with by agreement

PN218

And so on. Section 143(1)B(1). Just go through it all if you could. Section 143(1)B(1):

PN219

Matters of detail or process more appropriately dealt with by agreement in the workplace; secondly, you must not prescribe work practices or procedures that restrict or hinder the efficient performance of work or restrict or hinder productivity.

PN220

MR KENNEDY: Firstly we would say that our primary submission is, it's not a matter of detail or process, your Honour, but it deals quite specifically with an entitlement to wages. Whether it's more appropriately dealt with by agreement at the workplace or enterprise level, again, we're unusual in that there's a single employer and a single workplace in effect. It could not be characterised as restricting or hindering the efficient performance of work or restricting or hindering productivity.

PN221

THE DEPUTY PRESIDENT: All right. Section 143(1)C, facilitative provisions. I can't see any of that is relevant.

PN222

MR KENNEDY: Neither can I, your Honour. It would be open to the parties at a subsequent date to enter into a certified agreement which would cover the enterprise.

PN223

THE DEPUTY PRESIDENT: That's the first awards principle. Why is it justified? You say it's custom and practice, do you?

PN224

MR KENNEDY: We do say that it's custom and practice and that doesn't appear to be an issue in dispute between the force and ourselves as a general principle. Without putting words in Mr Patterson's mouth, in their submission they accept the custom and practice, endorse the authorities we've signed. It's on page 2 of Mr Patterson's - - -

PN225

THE DEPUTY PRESIDENT: They've got it under 3 - - -

PN226

MR KENNEDY: Yes.

PN227

THE DEPUTY PRESIDENT: They then go on to say that:

PN228

The dispute before the Commission is not covered by such custom and practice as the circumstances of the four members have not been considered by the parties.

PN229

I see. The custom and practice related to where they apply for approval to engage in outside employment.

PN230

MR KENNEDY: That's not correct, their characterisation. In the materials that we've provided to your Honour we provide a list of, I think at tab 6, members who have been suspended and ought to receive payment from the force going back to 1991. The issue about where a member has received payment, et cetera, was in essence codified in the exchange at appendix C of our submission dealing with procedures - - -

PN231

THE DEPUTY PRESIDENT: All of those people in attachment 6 received a top-up, did they?

PN232

MR KENNEDY: Yes.

PN233

THE DEPUTY PRESIDENT: That's agreed?

PN234

MR KENNEDY: Yes.

PN235

THE DEPUTY PRESIDENT: It's attachment 7, is it?

PN236

MR KENNEDY: Attachment 7 deals with the circumstances of the particular member and the question about the fourth undertaking, yes, the decision in relation to that member:

PN237

Payment of salary was to be made up to the balance of what he would have earned during the period of suspension without pay if he had not been so suspended less what he actually earned during that period.

PN238

The force has continued to apply that since that date.

PN239

THE DEPUTY PRESIDENT: That, you say, reflects the custom and practice?

PN240

MR KENNEDY: Yes.

PN241

THE DEPUTY PRESIDENT: Apart from custom and practice, what's the merit in the case? Why is it a good thing or consistent with the Act, industrially desirable?

PN242

MR KENNEDY: It's industrially desirable for the Commission to make an award in this instance in that this is not the first dispute that's been before the Commission dealing with the question about what are members' entitlements on suspension without pay. The matter of Grant that's at attachment 7 was similarly subject to a notification of dispute before the Commission in conference before the Commission before it was settled, your Honour, and it would seem that one of the objects that the Commission is to provide some form of lasting settlement to disputes and that the making of the award in the terms that the association sought is a step towards providing lasting settlement of a dispute and therefore is fulfilling the objects in the Act

PN243

THE DEPUTY PRESIDENT: Are you telling me that the custom and practice has then ceased and that's why we're here, or has been terminated by the police force?

PN244

MR KENNEDY: Or a twist on the custom and practice has been introduced by the force that deals with the particular circumstances of a group of members who were in receipt of a temporary pension under the Emergency Services Superannuation Act.

PN245

THE DEPUTY PRESIDENT: That's the added issue that we perhaps should deal with. The custom and practice relating to people charged with criminal or similar offences who are suspended and then acquitted or discharged or whatever, nolle prosequi, whatever - - -

PN246

MR KENNEDY: I couldn't think of the past tense to that phrase, your Honour.

PN247

THE DEPUTY PRESIDENT: - - - and they then receive top-up to the pay they would have received if they hadn't been suspended.

PN248

MR KENNEDY: Yes, that's right.

PN249

THE DEPUTY PRESIDENT: These particular employees are in a slightly different position, aren't they?

PN250

MR KENNEDY: It's our submission that they're not in any different position and that custom and practice should be followed and they should be paid the moneys that they would have earned but for their suspension.

PN251

THE DEPUTY PRESIDENT: They are suspended, are they?

PN252

MR KENNEDY: They were suspended, your Honour.

PN253

THE DEPUTY PRESIDENT: And they were acquitted or whatever?

PN254

MR KENNEDY: Yes.

PN255

THE DEPUTY PRESIDENT: Understood, but they are also, during the period of suspension, paid additional amounts pursuant to - - -

PN256

MR KENNEDY: The Emergency Services Superannuation Act.

PN257

THE DEPUTY PRESIDENT: The Emergency Services Superannuation Act, as you say in page 3 of your submission:

PN258

Provides for a member to be granted a temporary pension. A member on receipt of a temporary pension is to be treated as being on leave without pay on account of illness.

PN259

They receive a top-up to some level via this temporary pension. Is that right?

PN260

MR KENNEDY: That's right.

PN261

THE DEPUTY PRESIDENT: What was their actual pay from the police force?

PN262

MR KENNEDY: Pay from the force during the period is zero.

PN263

THE DEPUTY PRESIDENT: I see.

PN264

MR KENNEDY: Then the payment their receive from the superannuation fund would in general terms equate to approximately a maximum of 70 per cent of their superable salary during that period.

PN265

THE DEPUTY PRESIDENT: I've got section 2(g) of the Emergency Services Super Act somewhere? Where's that?

PN266

MR KENNEDY: I think it's attached to Mr Patterson's submission, is it, the relevant section? Yes.

PN267

THE DEPUTY PRESIDENT: It is? Marvellous.

PN268

MR KENNEDY: Yes, your Honour.

PN269

THE DEPUTY PRESIDENT: Let's have a look at that. I see, here it is. Yes. I'll just read it again, if I could. Which provision applies to them?

PN270

MR KENNEDY: 20G(2) is the bit that deals with how they would be treated in terms of their employment.

PN271

THE DEPUTY PRESIDENT: These employees applied for and received a temporary pension pursuant to section 20G?

PN272

MR KENNEDY: Yes.

PN273

THE DEPUTY PRESIDENT: Who gives them that, who determines that?

PN274

MR KENNEDY: The superannuation fund. At risk of lending you another Act, yes, it's a statutory body created to administer a superannuation scheme for police, fire-fighters, ambulance, paramedics and some other miscellaneous workers in the emergency services field. There's no relevant connection between that body and the employer Victoria Police.

PN275

THE DEPUTY PRESIDENT: They receive no pay from the police force during the period of suspension but they receive a temporary pension on account of their disability from the superannuation fund?

PN276

MR KENNEDY: Yes.

PN277

THE DEPUTY PRESIDENT: Which is less than their ordinary pay and you want their pay to be topped up from their temporary pension level to the usual pay.

PN278

MR KENNEDY: Yes, to the payment they would have received if they hadn't been suspended.

PN279

THE DEPUTY PRESIDENT: Clause 9 of your award does that, does it?

PN280

MR KENNEDY: I believe so.

PN281

THE DEPUTY PRESIDENT: Yes, I see. The effect of clause 9 is either to top up or to pay in full. If they hadn't been in receipt of the temporary pension they would receive full pay. Is that right?

PN282

MR KENNEDY: That's right.

PN283

THE DEPUTY PRESIDENT: Where does the no pay during the suspension provision come from? Where's that? A suspension terminates the obligation to pay temporarily, does it?

PN284

MR KENNEDY: Yes, under the Police Regulation Act 79(2).

PN285

THE SENIOR DEPUTY PRESIDENT: I see:

PN286

The Chief Commissioner may suspend a member from the force with or without pay.

PN287

In this case this is what the Chief Commissioner did. She suspended them without pay.

PN288

MR KENNEDY: Yes.

PN289

THE DEPUTY PRESIDENT: Understood. They then applied for a temporary pension on the grounds of stress, was it?

PN290

MR KENNEDY: They were for different reasons. Two of the members prior to being charged were in receipt of workers compensation payments.

PN291

THE DEPUTY PRESIDENT: I don't need to worry about that, do I?

PN292

MR KENNEDY: No.

PN293

THE DEPUTY PRESIDENT: I don't want to know about it.

PN294

MR KENNEDY: It's not an issue in dispute between the parties.

PN295

THE DEPUTY PRESIDENT: It's not relevant, is it?

PN296

MR KENNEDY: No, only to the extent that the force have paid the make-up pay for the period - like, the top-up pay, to use your expression, for the period that these members were in receipt of workers compensation weekly payments.

PN297

THE DEPUTY PRESIDENT: I see. They received top-up for that period and then workers compensation stopped. What was the top-up? Under what provision did they receive the top-up on workers compensation? Was it a discretionary decision of the Chief Commissioner?

PN298

MR KENNEDY: It was a payment, in essence, in accordance with past custom and practice.

PN299

THE DEPUTY PRESIDENT: It was an ex gratia payment, was it?

PN300

MR KENNEDY: It has to be because there's no statutory provision or award provision or agreement provision at the moment that says - - -

PN301

THE DEPUTY PRESIDENT: An ex gratia payment was made for those periods by the police force pursuant to custom and practice. Then workers compensation stopped and then they went on a temporary pension and now the effect of this award will give them top-up.

PN302

MR KENNEDY: Yes.

PN303

THE DEPUTY PRESIDENT: A complicated situation. Why should they receive top-up? What's the merit in that, out of interest? I'm not being critical.

PN304

MR KENNEDY: I would say, your Honour, that there are two issues there. Firstly, custom and practice is underpinned by a notion that a person who will subsequently be found innocent by the courts or the employer has found or the state has found no merit in continuing a prosecution, shouldn't have been punished for the period so therefore they get the payment that they would have received if they hadn't been suspended.

PN305

THE DEPUTY PRESIDENT: In a sense you're saying they're innocent people and there should be no loss of entitlements.

PN306

MR KENNEDY: That's right. We would say that that's the baseline underlying principle, if you like. The second question then goes - and we have provided at tab 10, your Honour, some materials that go to the granting of the temporary pension to one of these members, Mr Alexander.

PN307

THE DEPUTY PRESIDENT: How many people are there? Is it four?

PN308

MR KENNEDY: In this matter there are three.

PN309

THE DEPUTY PRESIDENT: Three: Mr Alexander - who are the others?

PN310

MR KENNEDY: A Campbell and a Saunders.

PN311

THE DEPUTY PRESIDENT: In attachment 10:

PN312

..... psychiatric examination ..... Mr Peter Alexander -

PN313

You say I should have regard to that, do you?

PN314

MR KENNEDY: Yes. I'm just trying to find the most relevant sections of it to save having to read the entire thing. In effect, at page 4 of the first medical report at schedule of questions, question 1 goes on:

PN315

The member will probably be fit for normal duties once his legal matters have been concluded.

PN316

That's replicated in the second report as well.

PN317

THE DEPUTY PRESIDENT: Does that mean Mr Alexander has returned to work?

PN318

MR KENNEDY: Mr Alexander has subsequently resigned from the force. The reason why I raise these is because the conclusion of the psychiatric examiners was that Mr Alexander was only unfit for work at that point solely because of the legal proceedings.

PN319

THE DEPUTY PRESIDENT: The legal proceedings had a severe effect on him.

PN320

MR KENNEDY: Yes. But for the legal proceedings and the suspension, he would have been fit and able to return to work within Victoria Police, your Honour.

PN321

THE DEPUTY PRESIDENT: I suppose I should ask this, even though it verges on perhaps irrelevant, but I'll ask it anyway, is this, that I suppose the suspicion might be in some observers or bystanders of these proceedings that people have got off on a technicality or whatever and that some sort of cloud must still exist on the heads of these police, notwithstanding acquittal or whatever.

PN322

MR KENNEDY: That's a decision for Victoria Police if they wish to pursue disciplinary charges against those members, your Honour. Necessarily this Commission and the public at large must take the position that a person acquitted in the courts has been acquitted in the courts. There is no stain on their character at that point, otherwise we would have trial by accusation.

PN323

THE DEPUTY PRESIDENT: Indeed.

PN324

MR KENNEDY: It was open for the force to proceed with discipline charges against these members if they had wished, but I would point out in respect to our submission at list of members, at tab 6, that also details the history about whether those members subsequently faced discipline charges or not and some did, your Honour, and the force still made payment.

PN325

THE DEPUTY PRESIDENT: Really? Where does it say that?

PN326

MR KENNEDY: At tab 6 there's a column headed Discipline Offence.

PN327

THE DEPUTY PRESIDENT: I see. Gallant, so after he was discharged, acquitted, he was then disciplined, found guilty of an offence.

PN328

MR KENNEDY: Yes, but the force did pay - - -

PN329

THE DEPUTY PRESIDENT: Top-up.

PN330

MR KENNEDY: - - - for the period of the suspension without pay.

PN331

THE DEPUTY PRESIDENT: I see. Yes, there's another:

PN332

Yes, disrepute Mr Hurter; Smith, yes, improper conduct -

PN333

Blah, blah, blah:

PN334

Tomlin, failure to comply, disgraceful conduct, disrepute -

PN335

Blah, blah, blah.

PN336

MR KENNEDY: Members who were dismissed from the force pursuant to disciplinary charges, they still received payment for the period that they were suspended without pay.

PN337

THE DEPUTY PRESIDENT: You say that the way to deal with any lingering doubts about their innocence is through the disciplinary procedures available to the Chief Commissioner or police force.

PN338

MR KENNEDY: Yes.

PN339

THE DEPUTY PRESIDENT: This award really is a general sort of top-up, isn't it, it's not just applying to the present rather unusual circumstances of the gap between the temporary and ordinary wages, it's every sort of suspension.

PN340

MR KENNEDY: Suspensions pursuant to 79(2) of the Police Regulation Act so members need to - - -

PN341

THE DEPUTY PRESIDENT: Does that in effect remove the power of the Chief Commissioner to suspend without pay? I suppose not.

PN342

MR KENNEDY: No, it doesn't because the members are suspended without pay. If they were to be convicted then there's no liability for payment during that period.

PN343

THE DEPUTY PRESIDENT: I see. It simply qualifies a suspension by adding that should they prove to be innocent or innocent in the eyes of the law, if I can use that phrase, then the suspension doesn't affect their wages.

PN344

MR KENNEDY: This award doesn't impinge upon the statutory powers of the Chief Commissioner at all.

PN345

THE DEPUTY PRESIDENT: So we're not improperly interfering with her functions and role pursuant to the Act.

PN346

MR KENNEDY: No.

PN347

THE DEPUTY PRESIDENT: What's this argument about the conflict between section 79 of the Police Regulation Act and section 20(g) of the Emergency Services Super Act and which takes precedence? What's that all about?

PN348

MR KENNEDY: That goes to the question about an argument from the employer in effect to say that because 20G(2) provides that they're to be treated as being on leave without pay they've received the temporary pension. There's no obligation on the employer to meet the top-up pay in that notionally there seems to be, to some extent, an argument by the employer that they haven't been suspended during that period, they've been on leave without pay pursuant to 20G or somehow a person can be on leave without pay pursuant to 20G and suspended without pay pursuant to 79(2) of the Police Regulation Act. It is our submission that those two clash.

PN349

They are different concepts, leave without pay and suspension without pay and therefore, the Commission needs to apply the ordinary rules of statutory interpretation to those provisions which, in our instance, we would say the specific provision dealing with suspension without pay in the Police Regulation Act must take precedence over a more general provision dealing with the superannuation entitlements of a broad class of emergency services workers.

PN350

THE DEPUTY PRESIDENT: In each case these individuals have been suspended without pay by the Chief Commissioner pursuant to section 79 of the Police Regulation Act. That has happened first, right?

PN351

MR KENNEDY: Yes.

PN352

THE DEPUTY PRESIDENT: Secondly, this superannuation body, whatever it is, has made a determination that they be given a temporary pension and section 20G provides that when that's done they're treated as being on leave without pay on account of illness.

PN353

MR KENNEDY: That's right. Logically, that decision cannot be seen as striking down a decision to have suspended them without pay because to do so would have reinstated their ordinary powers as a member of the police force. The purposes of the suspension without pay is, of course, to prevent them from exercising their office.

PN354

THE DEPUTY PRESIDENT: What could they do then? If they're on leave without pay they have certain powers and functions under the Police Regulation Act, do they?

PN355

MR KENNEDY: They continue to hold their office. They can continue to be able to act in their office.

PN356

THE DEPUTY PRESIDENT: What does that mean, they can arrest people?

PN357

MR KENNEDY: They have the common law powers, yes, of a constable of police.

PN358

THE DEPUTY PRESIDENT: They can wear a uniform and badge and hold themselves out as office holders and so on.

PN359

MR KENNEDY: They could hold themselves out as office holders, your Honour.

PN360

THE DEPUTY PRESIDENT: Even if they were in the courts being prosecuted for criminal offences.

PN361

MR KENNEDY: That's right.

PN362

THE DEPUTY PRESIDENT: Does the award prevent a person on leave without pay on account of illness receiving top-up?

PN363

MR KENNEDY: No, because what the draft award that we've provided, provides that a members would receive the payment as if they hadn't been suspended. It has consistently been our - - -

PN364

THE DEPUTY PRESIDENT: A bit of drafting to 9 would avoid the problem area, wouldn't it? You would say something along the lines of, where an employee has been suspended pursuant to section blah, blah, and that suspension hasn't been terminated by the Chief Commissioner of Police, notwithstanding any effect of the Emergency Services Act, or some such thing. I'm sure there's some way of - if there is an issue, which I just don't if there is one or not. I mean, these legal issues are extremely difficult, I'm sure a bit of quick footwork in clause 9 could solve.

PN365

MR KENNEDY: Yes. It could be drafted but then we would be left with, what if some other circumstances arise. That's the choice of us as the applicant to draft it in very general terms.

PN366

THE DEPUTY PRESIDENT: There are always situations that no one has foreseen.

PN367

MR KENNEDY: That's right.

PN368

THE DEPUTY PRESIDENT: You always ask yourself, why didn't they think of that?

PN369

MR KENNEDY: Yes. In line with your Honour's thoughts, members on leave without pay are entitled to retain their uniform, their police identification,
et cetera. Suspension without pay exists for a particular policy reason, that is, the person cannot exercise their powers, can't hold themselves out to be a member of the force, et cetera. We would again say that it can't have been the intention of parliament in making the provisions in the Emergency Services Superannuation Act to say well, if someone gets a temporary pension will magically restore them to office.

PN370

THE DEPUTY PRESIDENT: Would the Superannuation Board take account of things like the appropriateness of someone being restored to office and who are they anyway? Does this detract from the Chief Commissioner's - I don't know who this superannuation body is. Who are they?

PN371

MR KENNEDY: They're created pursuant to the Emergency Services Superannuation Act as a statutory body. There's a board that determines these matters in line with other superannuation funds. It's slightly different. It consists of three appointed by government and then three elected by the major constituent emergency services group, so there's one elected representative from employees employed under the Police Regulation Act: one, the Fire Brigade Act; one from the Ambulance - - -

PN372

THE DEPUTY PRESIDENT: The effect is that this body can in effect prevent the Chief Commissioner suspending people.

PN373

MR KENNEDY: No, because the members were suspended. I don't think there's any dispute about that they were suspended.

PN374

THE DEPUTY PRESIDENT: There are two ways of looking at it. One is the view you've just put, the other way is that if giving them a temporary suspension does reinstate them in effect - - -

PN375

MR KENNEDY: It doesn't reinstate them to the force, it only deals with the question about money. Some of that goes to what's fair in the circumstances where a person is too ill to work, your Honour. What would you pay them or what sustenance would you give them? In these circumstances the Emergency Services Board is a separate body. We would argue a member receiving those benefits is no different to a member actually obtaining employment and going to work or receiving a sickness benefit from the Commonwealth. Each will apply their own tests.

PN376

THE DEPUTY PRESIDENT: In any event, I'm not entirely sure it's a matter for me because if clause 9 was made into an award and the force didn't think they were suspended, you could take them to the Magistrates Court, have a different view of the operation of clause 9 if you want. Isn't that right?

PN377

MR KENNEDY: Potentially.

PN378

THE DEPUTY PRESIDENT: You can say I said that you're right or the others are right, it doesn't make any difference really. I suppose it makes a difference because I'm making clause 9 and perhaps the intention - anyway. I think you would just have an argument in the Magistrates Court.

PN379

MR KENNEDY: In the absence of an award having been made, or an agreement, I'm not sure the potential exists for an argument in front of the Magistrates Court.

PN380

THE DEPUTY PRESIDENT: No, but say clause 9 is made into an award, right?

PN381

MR KENNEDY: If clause 9 was made into an award, yes, and there was a subsequent dispute, the parties - - -

PN382

THE DEPUTY PRESIDENT: Then you continue to have a disagreement as to the effect of the Emergency Services Act in temporary pension, you just take it to the Magistrates Court and sort it out one way or another and a few ordinary appeals.

PN383

MR KENNEDY: Yes. The parties could seek it as an underpayment of wages.

PN384

THE DEPUTY PRESIDENT: Right. I'm just not sure I need to deal with it. I'm just wondering if I do need to deal with it at all because it seems - - -

PN385

MR KENNEDY: It is the issue at the heart of the dispute between the parties and both parties are here, notwithstanding the jurisdictional arguments put by my friend with a view that the Commission can settle the dispute between the parties.

PN386

THE DEPUTY PRESIDENT: If that's the case it's probably better then to make clause 9 clear as to what it does.

PN387

MR KENNEDY: We'll be guided by your Honour, your views in terms of subsequently settling a form of the order.

PN388

THE DEPUTY PRESIDENT: That's fine. I think we've covered everything that I can think of, unless I've missed something.

PN389

MR KENNEDY: No, I think your Honour has done a very thorough job.

PN390

THE DEPUTY PRESIDENT: I think we'll come to Mr Patterson. Mr Patterson, you've heard all of that.

PN391

MR PATTERSON: Yes, your Honour.

PN392

THE DEPUTY PRESIDENT: Perhaps we can go through them one-by-one if we could. First of all the special Victorian stuff, I take it that's agreed between you. I don't think you've got a problem with that, do you, the special Victorian legislation in the referral of power?

PN393

MR PATTERSON: No, I certainly don't dispute what Mr Kennedy has advised you but there are two additional matters I just draw your attention to. Mr Kennedy did refer you to section 493. I would also draw your attention to section 493(2) and I would assume that the Commission would read that anyway but I just wanted to reiterate the fact that it covers the issues of the laws of Victoria prevail over inconsistencies.

PN394

THE DEPUTY PRESIDENT: A law Victoria prescribed. Are there any prescribed? I don't think there are, are there? That would be the Occupational Health and Safety Act perhaps.

PN395

MR KENNEDY: If it pleases your Honour, the Police Regulation Act is a prescribed. It's the only prescribed Act under that section, your Honour.

PN396

THE DEPUTY PRESIDENT: I can't override the Police Regulation Act 1958.

PN397

MR KENNEDY: We're not asking you to, your Honour, that is the Police Regulation Act is silent on the question about what happens when a member is acquitted. We covered that ground almost at the outset of today.

PN398

THE DEPUTY PRESIDENT: There's a decision of the Chief Commissioner pursuant to section 79 that Mr Alexander be suspended without pay. Am I overriding such act?

PN399

MR KENNEDY: No, your Honour. Mr Alexander has been suspended without pay. There is no doubt about that at all.

PN400

THE DEPUTY PRESIDENT: There is no inconsistency between clause 9 and whatever the Chief Commissioner did. Does she do it by letter or - - -

PN401

MR KENNEDY: It doesn't restrict - sorry?

PN402

THE DEPUTY PRESIDENT: Does she do it by letter or - - -

PN403

MR KENNEDY: There's a formal notice of suspension.

PN404

THE DEPUTY PRESIDENT: Is that in the book somewhere?

PN405

MR KENNEDY: No, it's not materially - - -

PN406

THE DEPUTY PRESIDENT: I probably need to look at the text of it and see if it's inconsistent with clause 9. I don't know. I mean, do I?

PN407

MR KENNEDY: Prima facie, your Honour, I'm not sure that it's relevant. It is a notice that just says:

PN408

You will be suspended without pay. Any submissions you wish to make they should be made within 14 days.

PN409

THE DEPUTY PRESIDENT: Okay. Thanks very much.

PN410

MR KENNEDY: As I said this deals not with the suspension without pay, but the wash-up of an acquittal for a decision not to proceed. The relevant regulation is 132F of the Workplace Relations Regulations which prescribes the Police Regulation Act, its regulations, orders and instructions.

PN411

THE DEPUTY PRESIDENT: That's a federal regulation, is it?

PN412

MR KENNEDY: Yes.

PN413

THE DEPUTY PRESIDENT: Understood. Thanks very much. Sorry, Mr Patterson.

PN414

MR PATTERSON: Thank you, your Honour. I want to thank Mr Kennedy for that. However, the issue in question in relation to me raising that particular clause that Mr Kennedy has alluded to, is using Mr Alexander as the case and just for completeness, your Honour, Mr Alexander is in the court. I just let you know.

PN415

THE DEPUTY PRESIDENT: Thank you for that.

PN416

MR PATTERSON: Using Mr Alexander as the case, he was suspended without pay by the Chief Commissioner under the Police Regulations Act and now Mr Kennedy is actually asking this Commission to make an order that is essentially to pay Mr Alexander and the other members where that suspension has clearly been legally enforced by the Chief Commissioner. He is actually asking the Commission to do that. It is our position that that provision could very well bar the Commission from doing that and there needs to be the jurisdictional issue in relation to that raised.

PN417

THE DEPUTY PRESIDENT: That would apply if clause 9 was inconsistent with the notice issued by the Chief Commissioner pursuant to section 79 of the Police Regulation Act. Is it inconsistent if the ordinary tests for that are - I mean, can you comply with both? Is there a direct inconsistency? Is it possible to comply both with the notice and clause 9?

PN418

MR PATTERSON: Our position would be that there is inconsistency.

PN419

THE DEPUTY PRESIDENT: The police force can't comply with both the
notice - - -

PN420

MR PATTERSON: And the order. Our position is that you cannot make the order because of that provision because it would mean that you are making an order that is consistent with Victorian law.

PN421

THE DEPUTY PRESIDENT: It would be good to see the notice.

PN422

MR PATTERSON: Your Honour, I can certainly provide the Commission with a copy of the notice that was provided to Mr Alexander and the other three members. It will take a couple of days.

PN423

THE DEPUTY PRESIDENT: That's fine because if you're saying that I can't issue an order because it's inconsistent with the notice, I certainly would need to look at the notice.

PN424

MR PATTERSON: I'm not necessarily saying you can't issue an order because it's inconsistent with the notice, it's inconsistent with the Police Regulations Act and how that has been enacted by the Chief Commissioner. The notice specifically refers to the provision of the Act and the suspension, so in essence, the notice will say exactly that.

PN425

THE DEPUTY PRESIDENT: You see, it may depend on the form of the notice. The Chief Commissioner, for example, might issue a notice suspending without pay saying, Mr Alexander is suspended without pay, however, should he be acquitted and the Commission make an award, then this suspension doesn't apply. In that case there's no inconsistency, is there?

PN426

MR PATTERSON: Yes, your Honour, that sounds correct.

PN427

THE DEPUTY PRESIDENT: I doubt if she has done that, of course, it's a bit theoretical.

PN428

MR PATTERSON: I can assure you that any suspension notice that has been provided to the individual members, it has been strictly in accordance with the provisions of the Police Regulations Act.

PN429

THE DEPUTY PRESIDENT: Yes, and it would simply say, you're suspended without pay.

PN430

MR PATTERSON: Under that provision, correct. That's the first jurisdictional issue that I would raise. The next one I would raise, your Honour, is in relation to the Commonwealth Powers Industrial Relations Act that Mr Kennedy has provided to you.

PN431

THE DEPUTY PRESIDENT: I'll go to it.

PN432

MR PATTERSON: The area specifically that I'll relate to is section 5(1)(b) that Mr Kennedy mentioned to you.

PN433

THE DEPUTY PRESIDENT: I have it.

PN434

MR PATTERSON: It relates to the matters not referred to this Commission.

PN435

THE DEPUTY PRESIDENT: The re AEU matters, yes.

PN436

MR PATTERSON: Yes, and specifically in relation to the employment of law enforcement officers. Mr Kennedy indicated in his submission that none of those matters relate to these incidents before you. In actual fact, our position is they do and specifically in relation to discipline or the issue.

PN437

THE DEPUTY PRESIDENT: It's a disciplinary matter, is it?

PN438

MR PATTERSON: Mr Kennedy is using a bit of a fine line between what is discipline and what is not discipline. I accept the fact that the members in question were charged under the Police Regulations Act for criminal offences. Our position is, your Honour, that that provision of the Act also is under one part of the Act and discipline and criminal offences are under Part IV of the Act.

PN439

THE DEPUTY PRESIDENT: This is the Police Regulations Act you're talking about?

PN440

MR PATTERSON: That's correct, your Honour, and they should be read in conjunction with one another. Our position is that the criminal matters are in actual fact discipline matters.

PN441

THE DEPUTY PRESIDENT: Division 3 of Part IV, employment, discipline and other matters, says:

PN442

Members alleged to have committed criminal offences punishable by imprisonment.

PN443

MR PATTERSON: Correct. If you go back a couple of pages, your Honour, you come to Division 2 which is relating to discipline matters.

PN444

THE DEPUTY PRESIDENT: I have it, yes.

PN445

MR PATTERSON: However, it is all still under Part IV of the Act which relates to employment, discipline and other matters.

PN446

THE DEPUTY PRESIDENT: What's the significance of that? Are you saying that a person under criminal charges is a person - so where the force brings criminal charges against a police officer and suspends them pursuant to section 79, that's discipline within section 5(1)(b) of the - - -

PN447

MR PATTERSON: Should exclude this Commission from dealing with the matter because it's not a matter that has been referred to the Commission.

PN448

THE DEPUTY PRESIDENT: Discipline doesn't just mean the internal inquiries about disrepute and so on?

PN449

MR PATTERSON: That's correct and that's our position, your Honour.

PN450

THE DEPUTY PRESIDENT: It also means bringing criminal charges.

PN451

MR PATTERSON: That is our position, and if I say this, your Honour, discipline matters are generally of a lesser standard.

PN452

THE DEPUTY PRESIDENT: Ordinary usage would suggest that discipline refers to the internal disciplinary processes, not the courts.

PN453

MR PATTERSON: Yes, your Honour, but they're very similar sort of processes, whether you're charged with a discipline offence of whether you're charged with a criminal offence.

PN454

THE DEPUTY PRESIDENT: No, no, I agree.

PN455

MR PATTERSON: There still has to be that - - -

PN456

THE DEPUTY PRESIDENT: There would be overlap as well, wouldn't there?

PN457

MR PATTERSON: That is correct and I'll come to that point in just a moment, your Honour, but using this as an example, the state has said that you can't deal with discipline matters of Victoria Police and Mr Kennedy is saying though that you can deal with matters of a criminal nature. The criminal nature is a more serious charge than the discipline matters, even though we say that they're all the same and linked together under the one part. Our position is that quite clearly we say that the Commission has not the power to deal with this under that provision in that clause and that's our position. Why would the state give you the ability to interpret or make awards or anything in relation to criminal matters, yet withdraw the lesser of discipline. We say that has to be read in conjunction with one another.

PN458

THE DEPUTY PRESIDENT: I suppose stranger things have happened in federal and state legislation. That's not always impeccable in its logic. The word discipline is widely used in the force, isn't it? It's a common phrase and has been since there's been a police force.

PN459

MR PATTERSON: Absolutely, your Honour.

PN460

THE DEPUTY PRESIDENT: Essentially it means the Chief Commissioner doing what he or she is entitled to under the Act, you know, all the usual phrases, bringing the force into disrepute and so on.

PN461

MR PATTERSON: Yes, that is correct.

PN462

THE DEPUTY PRESIDENT: It doesn't in colloquial terms include say murder, does it?

PN463

MR PATTERSON: No, and that then bring in the more serious charge under the criminal aspects and indeed, the list that Mr Kennedy provided at tab 6 of his submission, actually highlights all the members that were charged with discipline offences, some of then even subsequently, after they were acquitted, being charged with discipline offences immediately afterwards.

PN464

THE DEPUTY PRESIDENT: Yes, that's right.

PN465

MR PATTERSON: Can I say this, too, that Mr Kennedy hasn't told you the full story of these three members because the moment their acquittal occurred, they were immediately then suspended under the discipline provisions with pay, because that is the only mechanism that the force could do to actually take them off the ability to use their office of constable powers. As soon as that acquittal came through they immediately then were suspended under the discipline procedures.

PN466

THE DEPUTY PRESIDENT: The discipline procedures didn't proceed because they resigned or - - -

PN467

MR PATTERSON: Correct.

PN468

THE DEPUTY PRESIDENT: In every case each of the three resigned. Do I need to be worried about that? I'm not sure.

PN469

MR PATTERSON: One member is still actually off on a temporary pension and hasn't resigned, but two of the members have resigned so obviously those discipline procedures cannot continue on.

PN470

THE DEPUTY PRESIDENT: No, of course, they're brought to an end.

PN471

MR PATTERSON: Correct, your Honour.

PN472

THE DEPUTY PRESIDENT: There's that jurisdictional objection; any others or have you gone through the list?

PN473

MR PATTERSON: The only other one is in relation to the filing of a dispute. I accept the fact that in our submissions we indicated that this was not a dispute over the application of the agreement. I also accept the fact that this is an application under section 99, but you still need to be able to find that there is a finding of an industrial dispute.

PN474

THE DEPUTY PRESIDENT: Indeed I do, definitely.

PN475

MR PATTERSON: You have actually asked the parties to consider - - -

PN476

THE DEPUTY PRESIDENT: A draft finding of a dispute.

PN477

MR PATTERSON: - - - a draft finding of a dispute and that you've asked Mr Kennedy to provide that to you. I would also request your Honour to be able to put written submissions on that and it may be that following the proceedings today that you might need to reissue some - - -

PN478

THE DEPUTY PRESIDENT: Have another go at it.

PN479

MR PATTERSON: Another go at it, your Honour.

PN480

THE DEPUTY PRESIDENT: Another hearing, you say.

PN481

MR PATTERSON: Your Honour, it could probably be on the papers alone.

PN482

THE DEPUTY PRESIDENT: I would have thought so. It seems a narrow point but unless something arises that I haven't thought of - I think what we've agreed to do, Mr Patterson, is this, is that within a week Mr Kennedy will provide a draft finding of dispute and anything he wants to say about it, you can respond within a week with a written submission with any submissions you wish to make and then he'll respond within a week. Then we'll make a decision on the basis of those written submissions. Would that be an acceptable procedure?

PN483

MR PATTERSON: That would be satisfactory to our position, your Honour.

PN484

THE DEPUTY PRESIDENT: We'll cross that when we come to it then.

PN485

MR PATTERSON: Mr Kennedy took you through the industrial dispute findings and the allowable matters. I also note that in the draft order that he provided he also is claiming for re-credit of leave so it's not just about wages.

PN486

THE DEPUTY PRESIDENT: Really?

PN487

MR PATTERSON: That's on the third page. He's also claiming effective service.

PN488

THE DEPUTY PRESIDENT: Where's that?

PN489

MR PATTERSON: That's on the third page of the draft order.

PN490

THE DEPUTY PRESIDENT: It is too. Yes, I see, so there's leave. That means annual leave, does it, or does it mean sick leave?

PN491

MR PATTERSON: That would be any leave owing to the individual member such as sick leave, recreational leave and the crediting of long service leave if that was appropriate.

PN492

THE DEPUTY PRESIDENT: Ceremonial leave, it could be anything, couldn't it?

PN493

MR PATTERSON: It could very well be.

PN494

THE DEPUTY PRESIDENT: The word leave mean any sort of leave.

PN495

MR PATTERSON: Correct.

PN496

THE DEPUTY PRESIDENT: We need to restrict that to allowable leave. Not all forms of leave are allowable matters.

PN497

MR PATTERSON: If an order is made and our position, your Honour, is that we are indicating that we oppose the issuing of an order by the Commission.

PN498

THE DEPUTY PRESIDENT: I've worked that one out rather rapidly, don't worry. There's no doubt where you stand on that point, Mr Patterson. That's the jurisdictional issue.

PN499

MR PATTERSON: They're the initial jurisdictional points I wanted to raise.

PN500

THE DEPUTY PRESIDENT: Coming to merit, are you?

PN501

MR PATTERSON: Yes. You wanted to further ask questions before I - - -

PN502

THE DEPUTY PRESIDENT: No, you go on. If that's all you want to say about jurisdiction, that's fine. Now we come to merit issues and I suppose there are what, four merit arguments raised by the applicant, first of all custom and practice, and all they're doing is custom and practice; secondly, the first award principle is inapplicable because this isn't that type of award, it's more akin to accident make-up pay or some such award clause which is consistent with wage fixation principles; thirdly, I think we referred to medical reports for Mr Alexander which seem might be relevant in some way, I'm not entirely sure what; fourthly, there were the objects of the Act in making a fair safety net, minimum wages and conditions. What do you say about those four things? I might have missed something but that's what I recall Mr Kennedy raised

PN503

MR PATTERSON: I don't have any actual submissions in relation to most of what Mr Kennedy has indicated.

PN504

THE DEPUTY PRESIDENT: That's fine.

PN505

MR PATTERSON: The only thing in relation to the medical reports, I'm unsure why they're actually being used in this instance.

PN506

THE DEPUTY PRESIDENT: So am I. I'm not entirely clear.

PN507

MR PATTERSON: It's certainly not clear to myself, your Honour. Can I say this, irrespective of the medical condition of Mr Alexander and the issue of whether the court case was the sole reason for him seeking a temporary pension, I cannot say. However, quite simply, Mr Alexander was not necessarily going to come back to the force at the end of his criminal matters because he was suspended immediately from the force again on discipline charges and there were further investigations in relation to discipline. I can't say what the discipline charges would have found, but members of the force can be terminated under discipline charges. They were continuing, so even if Mr Alexander hadn't been exonerated under the criminal matters, those disciplinary matters were going to continue. I've got no idea how relevant in this case at this stage those medical reports are.

PN508

THE DEPUTY PRESIDENT: Right, okay.

PN509

MR PATTERSON: As to the other three matters, your Honour, I have no specific submissions and what Mr Kennedy has indicated would be satisfactory to our submission in that regard.

PN510

THE DEPUTY PRESIDENT: Marvellous. Thank you very much for that.

PN511

MR PATTERSON: I do have a number of other points, of course, I wish to raise.

PN512

THE DEPUTY PRESIDENT: Please go ahead.

PN513

MR PATTERSON: Starting, if your Honour pleases, with tab 6 of Mr Kennedy's submission. Mr Kennedy has mentioned much about a list of members who have been charged with criminal offences, subsequently acquitted or exonerated, some may have had some discipline matters, some may have been terminated eventually, but all have been paid.

PN514

The point in our submission that we tried to raise about the custom and practice issue is not in question for these members. The issue about custom and practice, where we oppose that issue, is that these three members, to the best of our ability, it's the first time that this has occurred where these members have been on temporary pensions and they have been covered by a completely different state act of parliament. Our position is that there has been no custom and practice because this is the first time this issue of these three members has been raised between the parties.

PN515

I also wish to draw your attention to tab 7 of Mr Kennedy's submission where he has provided some correspondence between the parties and the third one in it is correspondence from Acting Deputy Commissioner Peter Nancarrow to the Police Association. The second paragraph fairly indicates our position. As you are aware, there is no legislative provision that necessitates the force making such a payment as a matter of course and he goes on and talks:

PN516

The force position regarding this and all future matters will be decisions regarding the reimbursement of salaries will rest with the Assistant Commissioner Ethical Standards Department.

PN517

In the absence of any legislative provision, it then turns on the Chief Commissioner making a determination of whether she, and in this respect the Chief Commissioner's delegate, will make a determination whether each and every individual case will granted their reimbursement of their moneys.

PN518

THE DEPUTY PRESIDENT: This is an exception to custom and practice as described.

PN519

MR PATTERSON: That was described in 2000. It may very well be that each case the Assistant Commissioner has determined that they will be reimbursed their moneys, but there is no legislative or actual agreements between the parties or any other industrial agreement that provides for the force to actually make those payments.

PN520

THE DEPUTY PRESIDENT: Understood. It usually happens but you don't have to do it. I understand. .

PN521

MR PATTERSON: That's correct, your Honour. It would be our submission, in the absence of something, then we should be able to continue to do that because the association is now actually asking you to make an order that changes that practice.

PN522

THE DEPUTY PRESIDENT: You will have to do it in future.

PN523

MR PATTERSON: We'll have to do it in the future. Our position is that state parliament has not considered that question for criminal matters. It has considered that question for discipline matters but not considered that question for criminal matters.

PN524

THE DEPUTY PRESIDENT: Section 79 applies to discipline matters. Is that what you're referring to? That's the provision where the state parliament has considered this issue?

PN525

MR PATTERSON: I actually don't have a copy of the Police Regulations Act and I think you would have the only copy now in the court because you've taken Mr Kennedy's.

PN526

THE DEPUTY PRESIDENT: I will hand you Mr Kennedy's copy and you can tell me which section the Victorian parliament has dealt with this issue. I think it's 79, isn't it?

PN527

MR PATTERSON: Certainly section 79 is where members believed to have committed a criminal offence punishable by imprisonment. Under that section there are no legislative provisions that provide for reimbursement of moneys.

PN528

THE DEPUTY PRESIDENT: That's section 79, what subsection?

PN529

MR PATTERSON: If you bear with me a moment, your Honour.

PN530

THE DEPUTY PRESIDENT: There's no rush. You can give it to me later if you can't find it now.

PN531

MR PATTERSON: There's no provision in the Act to provide for reimbursement of moneys.

PN532

THE DEPUTY PRESIDENT: No, it's silent.

PN533

MR PATTERSON: It is silent. It certainly covers forfeiture of salary by suspended member, and that's 86AAA, if a charge is proven for a suspended member. 86AA, no compensation for dismissal or reduction of rank, but the rest of the Act is silent on the reimbursement of moneys.

PN534

THE DEPUTY PRESIDENT: Okay, thanks.

PN535

MR PATTERSON: Do you still need it at least for the time being?

PN536

THE DEPUTY PRESIDENT: Yes. I'll keep possession of it for a while. I'll give it back to Mr Kennedy before the case is over. Thanks for that. Next point?

PN537

MR PATTERSON: It's our position., your Honour, that there is no custom and practice for these cases before you today. These matters are different to all other cases that have been in the past in relation to the payment of moneys on suspension.

PN538

This turns to, in some ways, what this dispute is about and I'll refer you to again the Police Association 1 submission. On page 3 of that it talks about the legislative framework. I'll call it a paragraph because it's only part of a sentence and that's the second paragraph and it indicates:

PN539

The issue at point is which legislative provision prevails.

PN540

It's our respectful submission, your Honour, that this Commission cannot interpret a state legislation. We put that in our submissions. However, if you so determine that you do have that power, then this is our submission. We adopt what the Police Association's submission is. I won't try and suggest I can pronounce the Latin phrase but I'll call it the general overrides the specific - sorry, the specific overrides the general, my apologies, which is in that provision. It's our position that the ESS Act, the Emergency Services Superannuation Act, is the specific in these cases and that the Police Regulations Act has a number of provisions that relate to suspension from 79 - and that's under Division 3 on criminal matters as well as suspension under discipline matters under Division 2. It's our position that this dispute is about these members being covered by the ESS Act and being granted temporary pensions under that provision, under 20G.

PN541

THE DEPUTY PRESIDENT: I must say that interpretation worries me a bit because it seems to suggest that the Superannuation Board, without any real responsibility for discipline in the force, won't be able to override a decision of the Chief Commissioner to discipline someone by suspending them and removing them from office in so doing and this superannuation body can restore them to office with all sorts of consequences. That's a bit of a concern.

PN542

MR PATTERSON: Your Honour, if I may, the ESS Board can't restore them back into office. All it can do is grant them this temporary pension, which gives them some payment.

PN543

THE DEPUTY PRESIDENT: If they're on leave without pay on account of illness instead of suspended without pay, that means that they're not suspended from office, doesn't it?

PN544

MR PATTERSON: Essentially that is correct if there is no other action that has been determined. If they just go on a temporary pension under the ESS Act they actually aren't suspended from the oath of office. I accept that and agree with that.

PN545

THE DEPUTY PRESIDENT: I'm just not sure, I think you may be submitting that because they're on leave without pay pursuant to the ESS Act, that means the earlier decision pursuant to section 79 of the Chief Commissioner to suspend them without pay, no longer applies, was overridden, and I don't think you want to say that.

PN546

MR PATTERSON: No, no.

PN547

THE DEPUTY PRESIDENT: You definitely don't want to say that.

PN548

MR PATTERSON: No, I'm definitely not saying that.

PN549

THE DEPUTY PRESIDENT: I didn't think so.

PN550

MR PATTERSON: All it does is, if I take you back a step, your Honour - the members were already suspended without pay under the Police Regulations Act. At some time in the future, and it was several months in the future, I don't have the exact dates with me, but the members then applied for temporary pensions for ill health, for medical reasons. Now, they're already suspended without pay while they're awaiting their court cases. They've applied for the temporary pensions to get some sort of compensation so they get the temporary pension and it's 70 per cent of their salary. The ESS Board is a statutory body and the Chief Commissioner has no influence over that Board and vice versa, that board has no influence over the Chief Commissioner.

PN551

The reason for the provision under the ESS Act, 20G(2) is to ensure that members of the force don't double-dip, so they can't get money from Victoria Police and get money under the temporary pension at the same time.

PN552

THE DEPUTY PRESIDENT: I see. It's a financial thing.

PN553

MR PATTERSON: It's a financial thing. Quite clearly, the obligation of Victoria Police ceases the moment the ESS Board awards the temporary pension so the obligation of the Victoria Police to pay money ceases.

PN554

THE DEPUTY PRESIDENT: Understood.

PN555

MR PATTERSON: That's our position. Then you get into a little bit more complication and that was actually raised in submissions with Mr Kennedy. You actually have three different regimes of payment. One is the agreement, one is the Police Regulations Act and one is the ESS Act.

PN556

THE DEPUTY PRESIDENT: There's also workers comp.

PN557

MR PATTERSON: There's also workers comp, so there's probably four.

PN558

THE DEPUTY PRESIDENT: That's right. We've mentioned four so far.

PN559

MR PATTERSON: Workers comp at this stage is not relevant.

PN560

THE DEPUTY PRESIDENT: A fifth, I think , was ex gratia payments.

PN561

MR PATTERSON: Yes, your Honour. That's correct. Just going through those pieces of regimes, I'll call them, these wages or salaries regimes, under the agreement the agreement provides for a certain amount of wages and salaries. The right to wages under the agreement is dependent on the member actually working, rather than the member actually being appointed as a member of the police force. So to get money you have to actually physically work.

PN562

THE DEPUTY PRESIDENT: That's in the wages clause, is it?

PN563

MR PATTERSON: No. What I'm looking at is these regimes of payment. The agreement provides that we will give members money, but to get money or a salary, they have to work for it. What the suspension does, is it suspends them from working as well as the oath of office. What you have is, you have under the Police Regulations Act the ability to suspend people from work. That then suspends the agreement because they're not working for their money.

PN564

THE DEPUTY PRESIDENT: Understood.

PN565

MR PATTERSON: The Police Regulations Act also has the ability to actually pay money because it has suspension with pay and suspension without pay so in these instances - - -

PN566

THE DEPUTY PRESIDENT: They're suspended without pay.

PN567

MR PATTERSON: - - - they're suspended without pay so those two salary regimes don't work. Then you have the ESS Act. It has the ability to have a salary regime as well and it gives a temporary pension and says that we treat them as if they're on leave without pay. Again, it stands over the agreement because the ESS Act says they're on suspension without pay.

PN568

THE DEPUTY PRESIDENT: Understood.

PN569

MR PATTERSON: What you have is what I've been leading to, you have this specific overriding the general, the specific being ESS as the payment. It takes away the ability of Victoria Police to actually make a payment under the agreement because it says they're on leave without pay. But also, the agreement doesn't apply because they're not working.

PN570

THE DEPUTY PRESIDENT: Yes, I see.

PN571

MR PATTERSON: There's no payment under the Police Regulations Act because they've been suspended without pay. That's where we come from the specific overrides the general.

PN572

THE DEPUTY PRESIDENT: Understood.

PN573

MR PATTERSON: The other area I would like to raise is in relation to the agreement itself.

PN574

THE DEPUTY PRESIDENT: Do I have that?

PN575

MR PATTERSON: Do you have a copy of the agreement, your Honour?

PN576

THE DEPUTY PRESIDENT: I have it somewhere, yes.

PN577

MR PATTERSON: I'll just raise this point and you probably don't need to have a copy. I'll just read it very quickly.

PN578

THE DEPUTY PRESIDENT: Which clause are you reading from?

PN579

MR PATTERSON: This is 1.6.1.3. It's the scope and application of the agreement. The parties acknowledge that the agreement does not override the operation of the Police Regulations Act 1958 and the regulations made pursuant thereto as varied from time to time. Quite clearly there's an agreement between the parties that this agreement cannot override the Police Regulations Act. Now, what the association is asking you to do is to make an order that overrides the Police Regulations Act. Yet specifically the parties agree that the agreement can't do that and now they're asking you to make an order to do that.

PN580

THE DEPUTY PRESIDENT: If it's inconsistent with the Police Regulations Act, as it may well be, I'm just not sure that it is, but it could be.

PN581

MR PATTERSON: Your Honour, we've put in our submissions that it is our position that this Commission should not make an order. Our position would be that this would actually create a precedent and we put that in our submissions because there have been no other cases of dispute between the parties in relation to this matter because no other matters have come between the parties where the members have been on a temporary pension at the time of their suspension. Mr Kennedy's list of members in tab 6 does not provide that. Your Honour, that's our submission as it currently stands, unless you wish to ask me any questions.

PN582

THE DEPUTY PRESIDENT: No, I think I've asked all I need to ask. Thank you very much.

PN583

MR PATTERSON: If the Commission pleases.

PN584

THE DEPUTY PRESIDENT: Mr Kennedy, a brief response, unless you agree with everything that's been said.

PN585

MR KENNEDY: I might surprise you and agree with some of it, but firstly I would like to start by correcting some of the assertions made by my friend in respect to the matter, firstly, his view that Messrs Alexander and co are subsequent to acquittal if their criminal charges were suspended. They weren't, your Honour.

PN586

THE DEPUTY PRESIDENT: They weren't?

PN587

MR KENNEDY: They weren't. There was a direction that purported to direct them to take paid leave, which is a power under 79, following their acquittal. However, that notice was subsequently withdrawn on the basis that it wasn't validly issued. There was no suspension. Our members did not face a disciplinary inquiry subsequent to their acquittal.

PN588

THE DEPUTY PRESIDENT: I'm not sure anything turns on that really, but anyway.

PN589

MR KENNEDY: No, but for the purpose of completeness, to ensure that the facts before the Commission are at least correct. The other issue that Mr Patterson seems to have made some weight in respect to the position of the force, post the Grant matter, which was the stuff at tab 7, in respect to that date and Grant, on the list that's at tab 6, your Honour, it's in chronological order in respect to members that were suspended without pay. Grant appears at the top of the fifth page which then goes on for another four pages and there is no evidence that Victoria Police ever applied the tests that they said they would apply in respect of cases subsequent to Grant, that is, those members all received their payments irrespective of whether they faced discipline charges or not, your Honour. In that regard, what we're saying there is that Grant doesn't represent any departure from the custom and practice that had been established since at least 1991.

PN590

The last bit was the issue raised at the end of my submissions and at the start of Mr Patterson's, dealt with the question about a copy of the notice of suspension for Mr Alexander. If Mr Patterson can't provide the Commission with a copy, we can. I did look at the file but I didn't have one on this file, I would have on subsequent ones.

PN591

Our concern with the submissions made by Mr Patterson would seem to consistently go to the question about that there is some inconsistency in what we're seeking and that in some way it inhibits the powers of the Chief Commissioner or an order made by this Commission would clash with the Police Regulation Act. In that regard he went specifically to section 493(2) of the Workplace Relations Act and regulation 132F.

PN592

THE DEPUTY PRESIDENT: It's agreed that I can't override the Victorian Police Regulation Act. The question is then whether your proposed award seeks to do that or not.

PN593

MR KENNEDY: Certainly it is our very strong submission, your Honour, that ours doesn't and this is the issue, that Mr Patterson somehow sees all the issues as being - conjoined is not the right word, but the truth is that suspension without pay exists. The members are suspended. Nothing contained in the draft award that we seek alters the suspension whatsoever. It is all about what happens post the termination of the suspension. We're not asking the Commission to interfere one iota with the chief Commissioner's powers to suspend, it's nothing to do with you interfering with the Emergency Services Act or anything else. It's all after the event. Members have been acquitted, the suspension has been terminated. We're saying you have the powers to then look at what are their entitlements at that point.

PN594

We don't believe there is any inconsistency between the order we've sought and the Police Regulation Act, nor do we believe that it inhibits the Chief Commissioner in anyway. In respect to his submissions in respect of the Commonwealth Powers Referral Act at 5(1)(b), the matters pertaining to discipline are not referred matters. We respectfully do agree with some comments made by your Honour, that is, that discipline does have an ordinary meaning within the police force and within the community at large. Disciplinary processes are quite different to criminal processes that our members may from time to time be subject to. There is nothing in the context of these particular matters, or the award that we seek, that deals with the question of discipline.

PN595

Once again, this is the conjoining of events by Mr Patterson where the order that we seek from the Commission and the award, would actually operate in the interstices between the termination of the suspension and any subsequent order made by the Chief Commissioner to further suspend a member. That is, there is a moment where a member is not suspended and the order of the Commission would actually occupy that interstice.

PN596

THE DEPUTY PRESIDENT: The suspension pursuant to section 79(2), which is where a member of the force has been charged under criminal law with an offence, that suspension comes to an end as soon he or she is acquitted.

PN597

MR KENNEDY: Yes.

PN598

THE DEPUTY PRESIDENT: So it stops.

PN599

MR KENNEDY: Yes.

PN600

THE DEPUTY PRESIDENT: That's when the award cuts in.

PN601

MR KENNEDY: That's right.

PN602

THE DEPUTY PRESIDENT: Should the award be made.

PN603

MR KENNEDY: Should the award be made and then notionally it would be open for the Chief Commissioner to issue a subsequent notice, which they purported to do in the case of Mr Alexander.

PN604

THE DEPUTY PRESIDENT: It's accepted that the suspensions lapse on acquittal.

PN605

MR KENNEDY: Yes.

PN606

THE DEPUTY PRESIDENT: There's no doubt about that.

PN607

MR KENNEDY: There's no doubt about that. Members are no longer facing a criminal charge and therefore the Chief Commissioner - - -

PN608

THE DEPUTY PRESIDENT: The power doesn't exist.

PN609

MR KENNEDY: - - - has no power at that point. They can issue a subsequent notice pending a disciplinary investigation. It requires you to hand them the notice. That's actually under a different section to 79, disciplinary matters, from memory. The award that we seek to have made, as I say, operates in the gap between the criminal proceedings and the discipline proceedings and the award made doesn't impact on either of those factors.

PN610

THE DEPUTY PRESIDENT: That is the effect, isn't it, Mr Patterson, in your view that once - sorry, to interrupt you, but I just want to make - it's in issue. It does seem to be the case, doesn't it, that section 79(2) says:

PN611

Where you've been charged with a criminal offence you can be suspended on pay.

PN612

MR PATTERSON: Yes, your Honour.

PN613

THE DEPUTY PRESIDENT: He has just said it's accepted, there's no question, that once you're acquitted that suspension lapses. That's correct, isn't it?

PN614

MR PATTERSON: That is correct, your Honour.

PN615

THE DEPUTY PRESIDENT: Thanks very much. Sorry, Mr Kennedy, go on.

PN616

MR KENNEDY: Really that goes to the heart of what we want to say in response to his position about some sort of inconsistency or clash or a notion that the order of the Commission would inhibit the powers of the Chief Commissioner under the Police Regulation Act and simply don't believe that it's a live issue. In respect of the issues of custom and practice, apart from correcting the record in respect to the operation of the Grant principle, for want of a better expression, your Honour, there's nothing about the issue about temporary pensions that impacts on the notion of custom and practice. The custom and practice exists. The Commission could make the award in the terms we sought, relying on custom and practice.

PN617

Whether then subsequently a particular set of facts impinges on custom and practice or seeks the employer to try and resile from custom and practice, is a separate issue. It is one that's before you today as well, but it isn't a barrier to making the award in the terms that we have sought, your Honour. Obviously, both parties are desirous of you also resolving the question about the temporary pensions as well but the primary application is to seek the award.

PN618

THE DEPUTY PRESIDENT: I can determine what are called legal issues in determining my jurisdiction. I think that's how it's been put in a lot of High Court decisions, so it's not a judicial ruling, rather I'm determining whether I have jurisdiction or not.

PN619

MR KENNEDY: Yes, and that flows to the next point I was going to make, but your Honour has just pointed out that obviously the Commission does have a power. There are many authorities to say you do have a power to examine the state Act to determine your jurisdiction and in fact, in effect shape your jurisdiction, your Honour.

PN620

THE DEPUTY PRESIDENT: Yes. For example if I wanted to determine an inconsistency with the Police Regulations Act to ensure that I was acting within power within the scope of powers conferred on me.

PN621

MR KENNEDY: Yes, that's correct. The second last point I would come to, your Honour, is the question about whether the general can overrule the special and I did provide in the materials the extract from Pearce and Geddes on statutory interpretation in Australia. With respect, Mr Patterson has mischaracterized how that legal maxim operates and I don't need to go through that in detail, it's there for you to read.

PN622

THE DEPUTY PRESIDENT: I think you're both in agreement that the effect of the Emergency Services Act is not to detract from what action the Chief Commissioner took pursuant to the Police Regulations Act, given the importance of maintaining the integrity of the Chief Commissioner's actions with respect to discipline.

PN623

MR KENNEDY: Yes. I think it's very clear that it cannot have been the intention of parliament in enacting 20G - - -

PN624

THE DEPUTY PRESIDENT: To undermine her disciplinary functions.

PN625

MR KENNEDY: - - - of the Emergency Services Act to strike down the discipline provisions, your Honour. I think in essence that that actually covers the last point that I wished to make as well.

PN626

THE DEPUTY PRESIDENT: Terrific. Thanks very much. Nothing else from anybody?

PN627

MR PATTERSON: The only issue that I was intending to do, your Honour, Mr Kennedy might oppose this, but he has opposed my submission in relation to whether the members were suspended or not immediately after their acquittals. I'll have to take that on notice and need to recheck that, but certainly the material that I have been advised, that was what has occurred. If that is not the case I will advise the Commission of that, but if it is the case, I will certainly advise the Commission of that.

PN628

THE DEPUTY PRESIDENT: I'm sure it can be resolved by documents.

PN629

MR PATTERSON: Yes, your Honour.

PN630

THE DEPUTY PRESIDENT: I'm sure you both agree one or other will have the relevant document. You can have a look at it, you can check it and you'll be agreed on the point.

PN631

MR PATTERSON: Yes, your Honour.

PN632

THE DEPUTY PRESIDENT: Marvellous. We'll leave it on this basis then that Mr Kennedy will provide within a week a draft finding of dispute and anything he wants to say about it. That's all you had to provide, wasn't it, or was there one other thing?

PN633

MR KENNEDY: Yes, your Honour, but between the parties we'll provide a copy of the notices that suspended the members.

PN634

THE DEPUTY PRESIDENT: Yes, and advice on whether or not they were - the last point Mr Patterson made.

PN635

MR KENNEDY: Yes, the subsequent suspension.

PN636

THE DEPUTY PRESIDENT: Mr Patterson will respond, should he wish to do so, to the draft finding of dispute and put a submission and then you can respond to that within a week, Mr Kennedy.

PN637

MR KENNEDY: Yes. Just one thing I need to clarify on the record, is the question about whether there was a subsequent suspension. Different members were treated differently. The member Saunders faced subsequent criminal charges and was suspended and that notice was withdrawn upon those charges being nolle-ed, your Honour.

PN638

THE DEPUTY PRESIDENT: Nolle-ed? Is that a verb, is it?

PN639

MR KENNEDY: As I said I'm not sure what the past tense is of that. I'll find a Latin scholar who probably can tell me one day. He was treated differently. In the case of Alexander there was a direction to take paid leave which I said was subsequently withdrawn on the basis that it was invalid so there was no effective suspension or direction to take leave directed toward Mr Alexander following his acquittal.

PN640

THE DEPUTY PRESIDENT: Terrific. Thank you very much for that. I'll wait with interest for submissions. I think that will run into the Christmas period and Christmas holidays and given my leave arrangements a decision won't be issued until February. Sorry for the delay but that's simply the mechanics of it. Thank you very much.

<ADJOURNED INDEFINITELY [12.20PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #POLICE ASSOCIATION1 WRITTEN SUBMISSIONS PN3
EXHIBIT #VICTORIA POLICE1 WRITTEN SUBMISSIONS PN4