Home
| Databases
| WorldLII
| Search
| Feedback
Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1049395-1
DEPUTY PRESIDENT SMITH
C2014/53
s.418 - Application for an order that industrial action by employees or employers stop etc.
Police Federation of Australia
and
Victoria Police/Chief Commissioner of Police
(C2014/53)
Victoria Police Force Enterprise Agreement 2011
(ODN AG2011/12253)
[AE889678 Print PR517229]
Melbourne
2.24PM, MONDAY, 13 JANUARY 2014
Reserved for Decision
PN1
THE DEPUTY PRESIDENT: I'll take appearances.
PN2
MR C KENNEDY: Thank you, your Honour. Kennedy, initial C. I appear for the Police Federation of Australia, Victoria Police branch.
PN3
THE DEPUTY PRESIDENT: Thanks Mr Kennedy.
PN4
MS L CHELIGOY: Cheligoy, initial L, and with me Gilbert initial J, and Anderson initial M, appearing for Victoria Police, your Honour.
PN5
THE DEPUTY PRESIDENT: Thanks Ms Cheligoy. Mr Kennedy?
PN6
MR KENNEDY: Thank you, your Honour. This is an application by the Federation pursuant to section 418 of the Fair Work Act, for orders that the Chief Commissioner be restrained from taking industrial action in respect to the police bands. We do have two witnesses that we seek to rely on today, your Honour, in terms of evidence that the industrial action is happening, threatened, impending or probable, or being organised by the Chief Commissioner of Police. I think it's convenient if we deal with the two witnesses at the outset, unless you have another view, your Honour?
PN7
THE DEPUTY PRESIDENT: No, that's fine.
PN8
MS CHELIGOY: I have a view, your Honour, and Mr Kennedy.
PN9
THE DEPUTY PRESIDENT: Ms Cheligoy, yes?
PN10
MS CHELIGOY: And my view is that the definition of industrial action under section 19 of the Act is quite narrow and quite specific, and that Victoria Police is not doing anything which would constitute an enlivening of that clause. We say that the action that is being taken by the Chief Commissioner is an action he's entitled to take under the Police Regulation Act, and that nothing that Victoria Police has done in respect to the police bands is outside the construct of EB 2011, in that we are pursuing organisational change in a manner in which we are entitled to do under the provisions of clause 9 of the Enterprise Agreement 2011, which was bargained and which provisions were reached in good faith with the Police Federation of Australia.
PN11
We say that if an order were given on this question, because Victoria Police has not done anything that is outside the EB then granting an order would be inimical to the interests of the Victorian community and Victoria Police, given that there is already a conference scheduled for tomorrow afternoon, or tomorrow morning. But anyway, it's the 14th. I haven't acquainted myself too closely with tomorrow's calendar - - -
PN12
THE DEPUTY PRESIDENT: Yes.
PN13
MS CHELIGOY: - - - and that the balance of convenience on this issue lies with Victoria Police. We don't believe that the any argument the TPA could propose on this question would have a great deal of success. We would hope - - -
PN14
THE DEPUTY PRESIDENT: I don't know. I haven't heard of it.
PN15
MS CHELIGOY: We would hope that. In any event, your Honour, this matter has been brought on with great speed.
PN16
THE DEPUTY PRESIDENT: Have you read the Act?
PN17
MS CHELIGOY: I have, your Honour.
PN18
THE DEPUTY PRESIDENT: I must bring it on within two days.
PN19
MS CHELIGOY: Which is very good of you, sir.
PN20
THE DEPUTY PRESIDENT: The Act commands me to.
PN21
MS CHELIGOY: To put on - - -
PN22
THE DEPUTY PRESIDENT: It's not a matter of - it says as far as practicable I must bring it on within two days.
PN23
MS CHELIGOY: And that's good, and in terms of your actions and in terms of the police commissioner's actions there's a similarity. The police commissioner has an obligation under the Police Regulation Act to do all things for the good operation of the Force, and the chief has exercised that power, specifically the power under section 8AC under the - - -
PN24
THE DEPUTY PRESIDENT: Well, I haven't heard the argument. I don't know the argument you're meeting yet.
PN25
MS CHELIGOY: Well, we are saying that the application by the TPA is seeking an order claiming that Victoria Police is engaged in industrial action, your Honour.
PN26
THE DEPUTY PRESIDENT: Yes.
PN27
MS CHELIGOY: And I am arguing that Victoria Police is not engaging in industrial action.
PN28
THE DEPUTY PRESIDENT: Well, I haven't heard any evidence as to what the industrial action is said to be.
PN29
MS CHELIGOY: We're not engaging in any industrial action, your Honour.
PN30
THE DEPUTY PRESIDENT: I wish it were that easy.
PN31
MS CHELIGOY: Well, then - - -
PN32
THE DEPUTY PRESIDENT: All a union would have to do is to stand up and say, "No, it's not happening. Thank you. You don't need to call any evidence. It's just not happening".
PN33
MS CHELIGOY: Well, we're relying on that, your Honour.
PN34
THE DEPUTY PRESIDENT: Yes.
PN35
MS CHELIGOY: I have a reputation for honesty and fair dealings and I am putting that here on the bar table as an example of why we believe in terms of the meaning of the industrial action in the Act there is no argument to pursue.
PN36
THE DEPUTY PRESIDENT: Yes. No, I understand.
PN37
MS CHELIGOY: Thank you.
PN38
THE DEPUTY PRESIDENT: Mr Kennedy?
PN39
MR KENNEDY: Your Honour, it would seem to be a case that it's appropriate that the horse is before the cart, and that is that the Commission hears some evidence as to whether any action is being undertaken at all. Having heard that evidence the Commission can hear argument as to whether that action is captured by section 19(3) in terms of industrial action by the employer.
PN40
THE DEPUTY PRESIDENT: Yes.
PN41
MR KENNEDY: I would flag at the outset that we would also seek to ventilate the ordinary arguments in respect to interlocutory relief, and that is applying the other tests and relying on the no extra claims and the dispute settling procedure contained within the Act as part of an ancillary argument, your Honour.
PN42
THE DEPUTY PRESIDENT: But isn't it the case that if I'm unable to decide it today I must issue the order?
PN43
MR KENNEDY: That's right, your Honour. I am flagging that should the Commission find that the action undertaken didn't fall within the terms of industrial action, the Commission is empowered in ordinary terms - - -
PN44
THE DEPUTY PRESIDENT: I see.
PN45
MR KENNEDY: - - - to make orders to preserve the status quo, having regard to the dispute settling procedure contained in - - -
PN46
THE DEPUTY PRESIDENT: I see.
PN47
MR KENNEDY: - - - the agreement and the ordinary principles of injunctive relief, or interlocutory relief, your Honour.
PN48
THE DEPUTY PRESIDENT: Yes, well wouldn't that be a matter better left for the hearing tomorrow?
PN49
MR KENNEDY: That's perhaps an issue that we can deal with towards the end of the primary arguments, your Honour.
PN50
THE DEPUTY PRESIDENT: Sure.
PN51
MR KENNEDY: I've prepared some documents which do include the witness statements prepared for the two witnesses. Would it be convenient to provide those to the Commission now?
PN52
THE DEPUTY PRESIDENT: Yes, thank you.
PN53
MR KENNEDY: To enable the witness statements to be marked as exhibits as we progress, your Honour.
PN54
THE DEPUTY PRESIDENT: Yes, thank you.
PN55
MR KENNEDY: If the Commission pleases we'd call Patrick John Hudson.
PN56
THE DEPUTY PRESIDENT: Now, Ms Cheligoy, have you had an opportunity to read these witness statements?
PN57
MS CHELIGOY: No, your Honour. They were given to me at 2.14 this afternoon along with the rest of the material in the folder and I do, you know, acknowledge that Mr Kennedy apologised for the quantity, the volume, and probably the substance, if he were really thinking about it. Thank you, your Honour.
PN58
THE DEPUTY PRESIDENT: All right, well I'll hear - - -
PN59
MR KENNEDY: Your Honour, the statements weren't settled until 1.45 this afternoon.
PN60
THE DEPUTY PRESIDENT: That's all right.
PN61
MR KENNEDY: I'm happy if the Commission wishes to adjourn to allow Ms Cheligoy time - - -
PN62
THE DEPUTY PRESIDENT: Well, let's hear the evidence and then if Ms Cheligoy needs a break to consider that before asking any questions in cross-examination I'll deal with it then. All right, so Mr Patrick John Hudson.
PN63
MR KENNEDY: Patrick John Hudson.
<PATRICK JOHN HUDSON, SWORN [2.32PM]
<EXAMINATION-IN-CHIEF BY MR KENNEDY [2.33PM]
MR KENNEDY: Thank you Mr Hudson. I wonder if for the purposes of the transcript you could state your full name and your employment
address please?
---Your Honour, my full name is Patrick John Hudson. My employment address is (address supplied).
PN65
Thank you, and have you prepared a statement in relation to this matter?---I have, your Honour.
PN66
Do you have a copy of that statement with you?---It's just on the chair over there, Chris. Sorry.
PN67
THE DEPUTY PRESIDENT: Yes, you can leave and pick it up, thank you?
---Thank you, sir.
PN68
MR KENNEDY: Thank you. Do you attest that the statement that you now have in your hand is true and correct in all particulars?---I do, your Honour.
PN69
In it you state that you're employed in the Victoria Police bands?---That's correct.
PN70
In your employment with Victoria Police have you always been employed in the Victoria Police bands?---That's correct.
PN71
At the time of you joining the police bands were you expressly engaged as a member of the police bands?---Yes.
PN72
And at any time was it ever represented to you that you would be required to perform duties other than band duties?---No.
PN73
Were you required to pass any entrance requirements in order to be employed in the police bands?---Yes.
**** PATRICK JOHN HUDSON XN MR KENNEDY
PN74
Could you provide details of those employment requirements?---Your Honour, I was required to undergo psychological testing and medical testing.
PN75
So you weren't required to undertake any intelligence test?---No.
PN76
You didn't undertake any written tests?---No.
PN77
And weren't required to undertake any fitness or agility test?---No.
PN78
I have no further questions for the witness, your Honour.
PN79
THE DEPUTY PRESIDENT: Thank you. Do you wish a break to consider?
PN80
MS CHELIGOY: Please, your Honour.
PN81
THE DEPUTY PRESIDENT: All right. Would 15 minutes be sufficient?
PN82
MS CHELIGOY: Yes, your Honour.
PN83
THE DEPUTY PRESIDENT: And will that give you an opportunity to read the next witness statement as well?
PN84
MS CHELIGOY: If I speed read, your Honour.
PN85
THE DEPUTY PRESIDENT: All right. I'll ask my associate to check with you in 15 minutes.
PN86
MS CHELIGOY: Thank you.
PN87
THE DEPUTY PRESIDENT: The matter is adjourned for 15 minutes.
**** PATRICK JOHN HUDSON XN MR KENNEDY
<SHORT ADJOURNMENT [2.35PM]
<RESUMED [2.57PM]
PN88
THE DEPUTY PRESIDENT: Yes Ms Cheligoy?
<CROSS-EXAMINATION BY MS CHELIGOY [2.57PM]
MS CHELIGOY: Thank you, your Honour.
PN90
Mr Hudson, you have said in your statement at point 2 that you were appointed to the position of constable on 21 August 1991. Were you appointed to that position or did you swear an oath?---I swore an oath, your Honour.
PN91
So in swearing the oath would that have been a different oath from other constables that were sworn in at the same time, or at different times within the organisation? Is it a standard oath, for example?---I don't know the answer to that question, your Honour.
PN92
So going to PJH 1 - sorry, before we get to that. Can you remember what oath you swore?---I can't remember it word for word, your Honour, but it seems like it would be the same oath that I've heard at countless graduations.
PN93
Thank you. Looking at PJH 1 down on the second column your name is, you know, sort of, right down the bottom there, and it's listed as, "Appointment to public affairs". Was that a department or a division of some sort?---That was a department, your Honour.
PN94
Going up the page a little, near to the top, is the traffic and operations support area a department too or is it a different kind of department to public affairs department?---It's a department as well. I think - I'm not sure whether public affairs was a division within a department or a department on its own.
**** PATRICK JOHN HUDSON XX MS CHELIGOY
PN95
Looking at the other list of names, for example we've got, "McRory B F, Lamb M D" with the dog squad in that same column, would you be surprised to hear that they are no longer in the dog squad?---No, your Honour.
PN96
Looking further down at prosecutions division, "Arley S"; would you expect Arley S to be still at Frankston?---I have no expectation so I wouldn't know.
PN97
Moving right down to the penultimate sort of section, "Linford T N" who was at Morwell at that time and is now gracing the ranks of assistant commissioner. All of them would have sworn the oath of constable and all of the names that I've mentioned have moved around. They're no longer in those identical positions. Does that surprise you?---No, your Honour.
PN98
Thank you. You've said in paragraph 13 of your statement that you've been directed to perform duties and areas and functions outside your field of expertise. Would you agree that if you were going from a senior constable position in the dog squad to an inspector in a general duties role, that that might be initially considered outside an area of expertise?---Yes, I would.
PN99
And finally, at section 15 of your statement you've said that members of the police bands are professional musicians and that correspondence from Victoria Police stated that members would be facilitated in finding external employment within the music industry. Do you have a copy of that correspondence?---No I don't, your Honour.
PN100
Was it correspondence of some sort or a notice?---It was an email correspondence, your Honour, through Marita Tobin, who was our director.
PN101
Do you know - if I can be so bold, could you - do you have a rough idea when you got that email?---Your Honour, it was around the time that the expressions of interest were first released to us.
**** PATRICK JOHN HUDSON XX MS CHELIGOY
PN102
Thank you Mr Hudson. No more questions.
PN103
THE DEPUTY PRESIDENT: Did you go through the police academy?---No, your Honour, I did not.
PN104
Have you had any police training?---No - yes, we had an abridged three day course approximately 10 years ago and early last year we were all directed to do a three day course as well.
PN105
Do you have power of arrest?---Yes.
PN106
Are you OHS qualified?---No, your Honour.
PN107
Thank you.
PN108
Anything arise out of those questions?
PN109
MS CHELIGOY: Well, a few things, your Honour, but I think I'll retreat from this witness and talk to Mr Staley when he gets on the stand.
PN110
THE DEPUTY PRESIDENT: All right. Yes.
PN111
MR KENNEDY: No issues of re-examination, your Honour.
PN112
THE DEPUTY PRESIDENT: Thank you for your evidence. You're free to got?
---Thank you, sir.
<THE WITNESS WITHDREW [3.03PM]
MR KENNEDY: I now seek to call Brett Staley, your Honour.
PN114
THE DEPUTY PRESIDENT: I will mark - - -
PN115
MR KENNEDY: Sorry, yes.
PN116
THE DEPUTY PRESIDENT: - - - the statement of Patrick John Hudson as EFA 1.
EXHIBIT #EFA1 WITNESS STATEMENT OF PATRICK JOHN HUDSON
<BRETT STALEY, SWORN [3.04PM]
<EXAMINATION-IN-CHIEF BY MR KENNEDY [3.04PM]
MR KENNEDY: Thank you Mr Staley. I wonder if for the purposes of the transcript you could state your full name and your work address please?---Brett Staley, Victoria Police bands (address supplied).
PN118
Have you prepared a statement in this matter?---Yes I have.
PN119
Do you have a copy of that statement with you?---Yes I do.
PN120
Do you attest that the statement is true and correct?---Yes.
PN121
Thank you, and you're a member of the police bands?---Yes I am.
PN122
And your appointment to Victoria Police was as a member of the police bands?
---That's correct.
PN123
You've held no other position with Victoria Police?---No.
PN124
And at the time you joined the police bands of Victoria Police was it ever represented to you that you would perform duties other
than as a band member?
---No.
PN125
Have you ever undertaken fitness tests, or the like, to qualify you to be a member of the police force?---No.
PN126
No further questions, your Honour.
PN127
THE DEPUTY PRESIDENT: Thank you. Ms Cheligoy?
<CROSS-EXAMINATION BY MS CHELIGOY [3.05PM]
PN128
**** BRETT STALEY XN MR KENNEDY
MS CHELIGOY: Thank you, your Honour.
PN129
Mr Staley, you have just attested to being appointed as a musician to Victoria Police?---That's correct.
PN130
Were you sworn in as a musician?---Yes.
PN131
You weren't sworn in as a constable?---Well, I was sworn in - well, I was sworn in as a constable but to perform as a musician. That was my role within Victoria Police.
PN132
When you were sworn in did you swear to be a constable and exercise the rights and obligations of a member of the police and play a trumpet?---I took the normal oath that every other police officer takes, I believe.
PN133
So do musicians have the power of arrest?---Within our role within Victoria Police?
PN134
No, I mean any musician. A trombonist in the Victorian - - -?---No only - - -
PN135
- - - National Orchestra?---Not as a - - -
PN136
Do they have the power of arrest?---Only as a citizen's arrest, I would assume. Not as a - - -
PN137
So you have the powers of arrest, having sworn the oath of constable?---Yes.
PN138
Do you think that your power of arrest is any different from any other constable's power of arrest?---No.
PN139
Do you consider yourself to be a sworn member of Victoria Police?---I am a sworn member of Victoria Police.
**** BRETT STALEY XX MS CHELIGOY
PN140
Would you agree that the general expectation for sworn members of Victoria Police is that they can be placed in roles across the state to carry out the functions - a range of functions inherent in a 24 / 7 policing operation?---Those that they've been trained for, I would agree. Yes.
PN141
So is the training the difference between the activities of one constable and another?---Only with respect, I think, between constables in the bands and constables that are operational.
PN142
But they all share the powers of a sworn police officer?---Yes.
PN143
The fundamental powers under the Crimes Act and other legislation?---Yes.
PN144
Thank you.
PN145
No further questions, your Honour.
PN146
THE DEPUTY PRESIDENT: Have you any re-examination?
PN147
MR KENNEDY: No, your Honour.
PN148
THE DEPUTY PRESIDENT: Thanks for your evidence, Mr Staley?---Thanks, your Honour.
PN149
You're free to leave.
<THE WITNESS WITHDREW [3.08PM]
MR KENNEDY: Thank you, your Honour. As we said at the outset, an application under 418 of the Fair Work Act. The relevant factual background to the dispute ancillary to the evidence already provided is set out in the notice filed by the Federation in this matter. Your Honour is aware the general dispute as to the re-scoping of the police bands has been the subject of some other proceedings before the Commission, and the parties have had further discussions on the matter to no avail, and the general dispute is before your Honour again tomorrow morning.
PN151
This particular issue relates to the actions taken by the Chief Commissioner of Police independent to those discussions and the other proceedings in the Commission, and that is on 30 December the Chief Commissioner of Police corresponded with each member of the band that hadn't expressed an interest in an expression of interest pursuant to the process established by the chief to disband the bands, advising them of transfer to various stations or locations to perform administrative duties; and a copy of that - an example of that letter was attached to the statement of Staley, which I don't think we've marked.
PN152
THE DEPUTY PRESIDENT: BXS 3 is it?
PN153
MR KENNEDY: Yes. Did we mark the statement itself?
PN154
THE DEPUTY PRESIDENT: EFA 2. I thought I did. I'm sorry.
EXHIBIT #EFA2 WITNESS STATEMENT OF BRETT STALEY
MR KENNEDY: Yes, so that letter is the type of letter that was received by all members of the bands, in that case a direction by the chief commissioner to Mr Staley to attend at Corio to undertake administrative or property officer duties. It's the contention of the Police Association that those actions of the chief commissioner are in industrial action, and we're seeking a stop order pursuant to section 418 of the Act.
PN156
As I indicated at the outset, in the alternative, Commissioner - and this could be ventilated more fully tomorrow, if it pleases the Commission - is the issue about whether the ordinary powers of the Commission to make - provide or grant injunctive relief or interlocutory relief to the members of the Federation was available for a breach of the dispute settling procedure, or a breach of the no extra claims provisions of the agreement.
PN157
Your Honour is fully familiar with the provisions of 418. I don't intend to go through them, your Honour, suffice to say that if the Commission is satisfied, or it appears to the Fair Work Commission that industrial action by one or more employers[sic] that is not protected industrial action is happening, threatened, impending or probable or being organised then this Commission must make an order that the industrial action not occur. The definition of industrial action is relevantly set out in section 19(3) of the Act, and in particular the issue about lockout, that industrial action includes a lockout which is defined in 19(3), your Honour, as:
PN158
An employer locks out employees from the employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
PN159
Now it is our contention, your Honour, that the members of the bands do have a contract of employment and that a term of that contract of employment is their engagement as members of the police bands. It is of common ground between the parties that they are members of the Victoria Police Force, your Honour, and appointed as such. However they're appointed under quite specific provisions contained within the Police Regulations 2013. And at tab 5 of the materials we've provided, your Honour, the regulations as they exist today, and indeed as they existed in June 1992 are attached behind tab 5, and they haven't changed in material terms.
PN160
THE DEPUTY PRESIDENT: These were - this part of the regulation was included in June 1992?
PN161
MR KENNEDY: Yes, your Honour.
PN162
THE DEPUTY PRESIDENT: Was it earlier than that?
PN163
MR KENNEDY: Well, in the time constraints, I haven't had the capacity to trail back through that but we have heard evidence from the two witnesses that they weren't required to pass the ordinary tests that apply to police, before they became members of the Victoria Police Force, your Honour.
PN164
THE DEPUTY PRESIDENT: And that would follow - - -
PN165
MR KENNEDY: And we've heard evidence - - -
PN166
THE DEPUTY PRESIDENT: - - - the exemption contained in regulation 7.
PN167
MR KENNEDY: Yes, your Honour.
PN168
THE DEPUTY PRESIDENT: If my memory is correct it was Chief Commissioner Glare that decided there would be a full-time police band.
PN169
MR KENNEDY: Well, my memory fails me.
PN170
MS CHELIGOY: No, that is correct and he will live forever in some memories, your Honour.
PN171
THE DEPUTY PRESIDENT: So I'm just wondering whether the regulations came about around that time.
PN172
MS CHELIGOY: I think they were.
PN173
THE DEPUTY PRESIDENT: But, anyway - - -
PN174
MS CHELIGOY: Because there has been a long history of volunteerism and the start of that with the - - -
PN175
THE DEPUTY PRESIDENT: Yes, prior to that there was a long history of volunteerism. Yes.
PN176
MR KENNEDY: Yes. Notwithstanding that, your Honour, that amounts to 22 years of unbroken regulatory provision providing for members to be appointed to specialist areas without ordinarily qualifying to be members of the Force. It is our submission that the contract of employment - and we'll come to the issue about whether police have a contract of employment, your Honour - for these members is confined to their appointment to those specialist areas, because it provides for appointment with special qualifications or relevant required expertise to the police air wing or the police bands.
PN177
Now I think there's an ordinary principle of construction, your Honour, where they've provided such a provision, and there may be an argument advanced by the other side that they have become ordinary members of the Force as a consequence of that. I don't think that that's a construction that the Commission can put on this particular provision. It is trite law to say that where two possible constructions of a statute are available then the one that doesn't lead to absurdity is the one to be preferred.
PN178
So in this instance if these members were capable of being directed to other areas of the Force, your Honour, we have a situation where parliament has granted a power to the Chief Commissioner of Police to appoint people who are otherwise not suitable to perform the duties of members of the Force and then somehow parliament has granted that same power to the Chief Commissioner of Police to move those members into areas where parliament has determined they're not suitable. Now that's an absurd construction of that particular provision. The preferred construction is to suggest that these members have been appointed to the police bands are to remain in the police bands as a term of their appointment.
PN179
If appointment to the bands is a part of the contract of the employment then the actions of the Chief Commissioner of Police to prevent the members performing in those duties is industrial action under the terms of the Act, and as I said, 418 provides that if the Commission is satisfied that it appears that industrial action has been taken it must make the necessary orders. To proceed, there is no doubt on the evidence before you that the Chief Commissioner is taking action. He's taking action to assign these members to other duties. It's not contested that those duties are not the duties of band members, so I think we've satisfied the test of action.
PN180
The question about whether it amounts to a lockout in the terms of the Act is a question of a construction of the contract of employment of those members, of which we've dealt with the first leg. Amongst the authorities that I've provided your Honour out of a surfeit of caution is the decision of Gillard J in the Supreme Court of Victoria - it's behind tab 7 - in a matter and he goes to some length on from paragraph 164 on to deal with the nature of the contractual arrangements between a member of the Force and the state or the Crown, your Honour, and he does relevantly conclude that there is a contract of employment.
PN181
This was a case about trying to determine what might be the implied terms of said contract of employment. So in this instance the approach taken by the Commission in those matters in respect of if it appears to the Commission that industrial action is taking place it is a question of making a finding of jurisdictional fact. Your powers stem from a necessary finding that industrial action is happening, threatened, probable, et cetera, your Honour.
PN182
I have to say that in the time we had, and in looking at the authorities, the level of satisfaction that attaches to that finding of jurisdictional fact is not clear. But we have attached some cases behind tab 6, your Honour, that deals with it and particularly the matter of McKewin and others v Lend Lease which is a Full Bench decision of their Honours Hatcher and Sams and Commissioner Bull, and they go on without determining the level of satisfaction, I think, your Honour, at paragraph 42, pointing out that no one has decided what level you have to have:
PN183
Nevertheless, without determining whether some level of satisfaction as to the existence of actual or potential industrial action is a jurisdictional precondition to the exercise of power under section 420(2), we would indicate that, if circumstances permit, it would at least be highly desirable for the Commission to be satisfied that there is a prima facie case or a serious question to be tried as to this matter.
PN184
Now that's a test that the courts and tribunals are very, very familiar with. It's the first leg in the classic test where injunctive relief is expanded upon by his Honour Mason CJ in Castlemaine Toohey, which is also appended in the authorities, your Honour, behind tab 8, which is stated:
PN185
So if the test is if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be entitled to relief.
PN186
Now the history of that exposition is conveniently covered by Foster J in the delightfully named Boyd v Wild Hibiscus Flower Company Pty Ltd (No. 2), your Honour, where Foster J goes through the history of the provisions that led to Mason CJ, former Mason CJ, going to that - coming to that conclusion. So in these matters before this Commission the ordinary test for injunctive relief is truncated and that is, on the authorities of those Full Benches, the sole question that you need to be satisfied is whether there's a serious action - a serious argument as to whether industrial action is taking place, or a serious issue to be tried, or a prima facie case. You're not required to be satisfied on the balance of probability or beyond reasonable doubt that that is happening; and that once you're satisfied to a reasonable level of satisfaction you are required to make the decision, to make the orders, and if you're unable to decide, your Honour, within two days of the application, that you must make an interim order.
PN187
THE DEPUTY PRESIDENT: Do you have draft orders with you?
PN188
MR KENNEDY: There were draft orders attached - - -
PN189
THE DEPUTY PRESIDENT: To the application.
PN190
MR KENNEDY: - - - to the application, your Honour, and it might be appropriate to speak to them at the end of - - -
PN191
THE DEPUTY PRESIDENT: Yes, I see. Sorry.
PN192
MR KENNEDY: - - - the proceedings, your Honour.
PN193
THE DEPUTY PRESIDENT: Yes.
PN194
MR KENNEDY: And I say the provisions that mandate the Commission making a decision are consistent with a view that the classic tests for injunctive relief are truncated to a single test, and that is whether - you need to be satisfied whether there's a serious issue to be tried, or a prima facie case that industrial action is taking place. That's, as I relevant cited from McKewin, where the Bench makes reference to that, the single test of the classic tests for injunctive relief. In Boyd, Foster J cites the High Court in Beecham at paragraph 57 in respect to it, and cites that in essence the test need not necessarily be that high in that it's not more probable than not; rather sufficient likelihood of success at trial.
PN195
So the Commission doesn't have to satisfy itself that we would succeed at trial, or indeed the Commission doesn't have to turn its mind to, you know, the arguments about a weak case but a high level of damages or vice versa, which is the issues around balance of convenience. You're not required to consider those matters. You're solely required to consider whether on the evidence before the Commission you can believe that there is a serious question to be tried. Now I note your comments in the earlier matter and I've prepared some matters dealing with the general issues about whether we'd be entitled to injunctive relief under the dispute settling procedure, Commissioner. But I am happy to hold those issues in abeyance till tomorrow if that's convenient?
PN196
THE DEPUTY PRESIDENT: Thank you.
PN197
MR KENNEDY: Thank you.
PN198
THE DEPUTY PRESIDENT: Ms Cheligoy?
PN199
MS CHELIGOY: Your Honour, an order to cease and desist basically of its very nature implies that the employees who are presumably being acted against haven't done anything or nominated any expression of interest or sought the career transition incentive package; and in the question of the group that were previously members of the pipe band that's not the case. There are approximately half of them who have submitted expressions of interest, some of whom are due to start at the academy on 20 January, some with later start dates, and a couple who have applied for and been granted career transition incentive packages.
PN200
So if such an order were - and this is probably a hypothetical question, but if such an order were issued by this Commission what do we do with those people who have already indicated some sort of level of acceptance of what was available to them at that time? Do we bring them all back? Do we cancel their appointments to the academy? Do we ask the CTIP recipients to refund the money and join their colleagues at Green Street? Do we not accept the retirements of the couple who've retired? It opens up a world of pain, I think, for a lot of people. But the application by the TPA assumes that the Chief Commissioner has done this without consideration and without thought and that it's an action by the Chief Commissioner that's substantially without merit, it's an industrial action they say by the Chief Commissioner - - -
PN201
THE DEPUTY PRESIDENT: Merit - could I just interrupt you?
PN202
MS CHELIGOY: Merit has nothing to do with it?
PN203
THE DEPUTY PRESIDENT: Merit has nothing to do with it?
PN204
MS CHELIGOY: No.
PN205
THE DEPUTY PRESIDENT: You know, whether it's a good thing or a bad thing - - -
PN206
MS CHELIGOY: I'm a bit keen on - - -
PN207
THE DEPUTY PRESIDENT: - - - is completely irrelevant to the application.
PN208
MS CHELIGOY: I'm a bit keen on merit, your Honour.
PN209
THE DEPUTY PRESIDENT: Yes, I understand that.
PN210
MS CHELIGOY: I think if we had a bit more merit around we might have a little less stupidity in some of the activities of some people. But looking at section 19 and the meaning of industrial action, does this action by the Chief Commissioner fit that meaning? That meaning - that provision, section 19, does not take into account the Chief Commissioner's obligations under the Police Regulation Act, and his obligations are partly expressed in section 8AC, which says:
PN211
The Chief Commissioner may immediately transfer a member of the Force other than a deputy commissioner or an assistant commissioner to any part of the state if the Chief Commissioner considers it reasonably necessary to do so for the provision of policing services. One of the considerations the Chief - - -
PN212
THE DEPUTY PRESIDENT: Well, these persons can't perform policing services. They've had no police training.
PN213
MS CHELIGOY: Well, Commissioner, they have the police powers and the question of their police training has been taken into account in considering what positions they could reasonably perform within this - - -
PN214
THE DEPUTY PRESIDENT: But normally those positions are reserved for persons who, for whatever reason, have been sworn, have been undertaken operational work and can no longer do that.
PN215
MS CHELIGOY: But they don't need to have undertaken operational work to actually perform property officer positions.
PN216
THE DEPUTY PRESIDENT: No.
PN217
MS CHELIGOY: Property officer positions are undertaken by both - and you're correct in your assessment, your Honour - by both ill and injured members on a return to work exercise, but more commonly by VPS members.
PN218
THE DEPUTY PRESIDENT: Yes.
PN219
MS CHELIGOY: Now given the contraction of VPS numbers across the state which matters, as you are aware, in other cases have been before this Commission before.
PN220
THE DEPUTY PRESIDENT: Yes.
PN221
MS CHELIGOY: There is an urgent need for the policing services help, namely the registration of property and the ability to pursue court cases where properly identified property has to be part of the exhibit process. That is an important function.
PN222
THE DEPUTY PRESIDENT: No, I understand that. But can I read - - -
PN223
MS CHELIGOY: It's not a - - -
PN224
THE DEPUTY PRESIDENT: - - - you an observation in Quinn v Overland:
PN225
Work provides employees with purpose, dignity, pride, enjoyment, social acceptance and many social connections as well, or performance of work allows for skills enhancement and it advances career opportunities. These non pecuniary aspects of work are important and their denial can be devastating to the legitimate interests of any worker, either skilled or unskilled.
PN226
And that went to the issue that has been held to be part of the contract of employment over years, namely the nature of work that people are engaged to do.
PN227
MS CHELIGOY: But if that was taken to its logical extension, the issue around what people are engaged to do, we'd still have chimney sweeps aged 10 being forced up dark chimneys. We would, on a more modern construction, never be able to change the way an organisation looks and that would be in direct contradiction to the terms of the enterprise bargaining and to the organisational change provisions which are reflected in pretty much every enterprise bargaining agreement in the country. It would mean that no employer could ever - and I will just, if you bear with me a moment, quote from clause 9.
PN228
THE DEPUTY PRESIDENT: Yes, of course.
PN229
MS CHELIGOY: No employer could ever make a decision to introduce a major change to the structure of the workplace, technology or the existing work practices of employees, and the change - and would not be able to make a decision which created a situation which was likely to have a significant effect on employees. Now if that was the absolute intent of what we've heard today then every organisation in the land, and probably in a few other lands as well, would have to remain static; could never change, could never adjust to new technology, never put in new work practices, never do anything.
PN230
Victoria Police is in a unique position in this situation, your Honour, because it is an organisation which is essentially a community service organisation, notwithstanding that some of the people we provide our services to don't seem to appreciate them quite in the way we'd - other organisations in the service industry might enjoy. But nevertheless we carry out an important and vital function on behalf - and we do this on behalf of the citizens of Victoria who have vested in the organisation a great deal of money and a lot of power, and each of the members, individual members of that organisation, are sworn in.
PN231
They are sworn as constables and the community, when visited or visiting a constable, has no way of knowing whether some constables might have done a little bit of fitness training at the academy and can actually wave a shotgun around or not. Nevertheless the members who are currently the last group at Green Street are wearing police uniforms and are perceived by the community to be real police officers. To all intents and purposes they are. They're sworn in. They have police powers.
PN232
The fact that the organisation hasn't trained them as police or required them to meet fitness tests is really a moot point, because up until now the organisation hasn't required it of them. In the organisation - in enlivening the organisational change provisions what has been put to the musicians is, "There are a range of options available to you". So it seems to me, your Honour, that this is not an argument about whether or not industrial action has been taken specifically by the Chief Commissioner against the musicians.
PN233
It is more about an argument of compensation, because that's the only kind of counter-proposal put to Victoria Police by this group. "It's not about the principle of what we're doing. It's about how much we're going" - and there are many, many jokes about this in many, many seedy dives around the world, "It's about the money we're about to - we're going to pay to get the job done", and that of itself is a bit of a shame but that seems to me to be where this has lined up. If you were inclined to issue an order, your Honour, there are some things that are really important I think to bear in mind, and that is the issue of what we're going to do with the people who have already elected an option.
PN234
THE DEPUTY PRESIDENT: How would you describe them? Would you describe them as persons who have consented to offers made by the Chief Commissioner to move from the police band?
PN235
MS CHELIGOY: It sounds like you've already got that order written, your Honour.
PN236
THE DEPUTY PRESIDENT: Well, I just wondered if that's the way we describe them.
PN237
MS CHELIGOY: Well, it affects roughly 50 per cent of them, but I suppose collectively there's no other way of describing them. So, yes, in a global sense I guess that is a reasonable construct.
PN238
THE DEPUTY PRESIDENT: Okay.
PN239
MS CHELIGOY: Victoria Police clearly does not support the granting of an order on this. We think there are serious questions of both law and law that involves the Police Regulation Act, the enterprise agreement and the interaction of those two instruments with the Fair Work Act. If the Commission pleases.
PN240
THE DEPUTY PRESIDENT: Thank you.
PN241
MR KENNEDY: Without being too cute, the last sentences seem to concede the issue that there was a serious issue to be tried, your Honour. I do have a couple of things that I would say. There seems to be, at least on the other side, some confusion about the jurisdiction within which you're operating, your Honour. The operation of the organisational change provisions in the agreement have no relevance to this particular matter.
PN242
It is a simple case of discerning is there prima facie a contract of employment and what are the terms and, at least at our level, whether there's an arguable case that the contract of employment for members of the band is confined to duties of the band, and we rely on our previous submissions. I note Ms Cheligoy put forward questions in respect to section 8AC of the Police Regulation Act. It would appear to me that that would grant a power for the Chief Commissioner to have the police band in Mildura but it wouldn't grant the power to alter the duties of members engaged to perform as members of the police band.
PN243
I might also add that what's not before this Tribunal is the wisdom of people in the past about whether there should be a sworn band or not, or whether parliament should have made provisions for appointment to specialist provisions - positions or not. It comes back to the simple issue; is there a contract of employment, what are the terms and is the Chief Commissioner preventing them from performing the terms of those contracts.
PN244
In respect to the last issue you raised about - that flowed from Ms Cheligoy's views about some members who have exercised options to separate from Victoria Police and go to the academy or otherwise, I think certainly with respect to those who have designed to leave the employment we'd be satisfied that they have consented to the relevant offers. We do believe that for those who may have said, "Oh, yes, I'll go as a property officer to Springvale because I'm not up to the fight", I think they should all be given the opportunity to reconsider their positions, Commissioner, because have they actually consented?
PN245
In this case it's a terrible analogy to use, that they had the gun put to their head, Commissioner, in the context of policing, but it is a question about, I mean, you know, have they jumped or were they pushed, your Honour. So if the Commission was persuaded to make orders, embedded in that should be perhaps some time that enables those who have consented to other offers to express that they're satisfied with, or to continue with those offers, your Honour. If the Commission pleases.
PN246
THE DEPUTY PRESIDENT: Thank you. Well, I find myself in a position of being unable to determine the application within the two day period specified under the Act, and accordingly the Act requires that I must within that period make an interim order that the industrial action to which the application relates stop, not occur or not be organised as the case may be. Whilst the parties have touched on the issue of the public interest, there has not been full debate about the public interest which would satisfy me sufficiently not to make the interim order.
PN247
This is not an easy matter. It revolves around whether or not there is a contract of employment which limits the work and scope of persons in Victoria Police bands. That requires some consideration. I propose to do the following. Firstly, I will issue an interim order in the terms sought by the applicants with the exception of the service of the order. I will not require it to be done by facsimile transmission but any form of electronic transmission and, secondly, I will add to the order:
PN248
The order shall not apply to persons who have consented to offers made by the Chief Commissioner to move from the police band.
PN249
The issue of consent is a matter that the parties can discuss. I am going to re-list this matter. If there are any further submissions tomorrow, I have the other file listed at 10 am. If there are any other further submissions to be put, they can be put at that time. The order will come into force from midnight tonight. The matter is now adjourned.
<ADJOURNED ACCORDINGLY [3.40PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
PATRICK JOHN HUDSON, SWORN PN64
EXAMINATION-IN-CHIEF BY MR KENNEDY PN64
CROSS-EXAMINATION BY MS CHELIGOY PN89
THE WITNESS WITHDREW PN113
EXHIBIT #EFA1 WITNESS STATEMENT OF PATRICK JOHN HUDSON PN117
BRETT STALEY, SWORN PN117
EXAMINATION-IN-CHIEF BY MR KENNEDY PN117
CROSS-EXAMINATION BY MS CHELIGOY PN128
THE WITNESS WITHDREW PN150
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/FWCTrans/2014/30.html