C2014/53, Transcript of Proceedings [2014] FWCTrans 34 (4 February 2014)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1049440-1

DEPUTY PRESIDENT SMITH
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER JOHNS

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

2.15PM, THURSDAY, 23 JANUARY 2014

Continued from 14/01/2014

PN297

DEPUTY PRESIDENT SMITH: Are there any changes to appearances?

PN298

MR M. IRVING: Yes, your Honour. My name is Mark Irving. I seek permission to appear for the Police Federation.

PN299

DEPUTY PRESIDENT SMITH: Mr Irving, thank you.

PN300

MR B. MUELLER: If the commission please, Brian Mueller, and I seek permission to appear on behalf of the Chief Commissioner of Police which is usually shortened to Victoria Police in proceedings in this place and I think, as is apparent from the nature of the matter and the representation at the bar table, permission is sought on the basis of section 596(2)(a).

PN301

DEPUTY PRESIDENT SMITH: Thank you, Mr Mueller. Yes, we're satisfied that there are sufficient reasons, having regard to section 596, that we should grant permission to appear. Mr Irving?

PN302

MR IRVING: Thank you, your Honour. Your Honour, we've got a proposal for timetabling of this matter which might cut to the chase if I could provide a copy of draft orders to the commission. The proposal is as follows: the applicants by 6 February file and serve any material on which they rely. We will require certain documentation which is held by the employer prior to that and that's dealt with in paragraph 1. That document relates to the terms of appointment of these employees essentially. A week after receiving that material we will file and serve any material on which we intend to rely. We have slated in a week for the respondent to reply to that material.

PN303

Paragraph 5 deals with any material in reply. I think it's ordinarily a bit of a waste of time unless the commission is of another view and we'd propose that any material in reply be dealt with on a viva voce basis. Then the applicant would file its submissions within five days of receiving the employer's material and the employer would have three days to respond to that and then have a hearing of both the substantive application and any application to revoke at the same time. They're both going to deal with essentially the same matters and both will require a determination of not only legal questions but almost identical factual questions. Those factual questions deal with the basis of the employment engagement of these band members.

PN304

DEPUTY PRESIDENT SMITH: Mr Irving, Mr Mueller has been kind enough to send us some material. Paragraph 1(a), (b) and (c) – does that material take us any further than the Police Regulations Act in relation to the appointment by the Chief Commissioner and the consequence of a person taking and subscribing to the oath?

PN305

MR IRVING: Yes. There would be a number of different classes of employees within the 45. Some of them will have been constables who were initially engaged prior to about 1991-1992 when regulations were inserted in the Police Regulations about the engagement of people in bands.

PN306

DEPUTY PRESIDENT SMITH: Are there any such persons currently who would be affected by this application?

PN307

MR IRVING: I understand that there are people who are engaged as far back as 1992.

PN308

DEPUTY PRESIDENT SMITH: That would be after the amendment to the regulations, wouldn't it?

PN309

MR IRVING: Yes. There are some as far back as 1973.

PN310

DEPUTY PRESIDENT SMITH: Yes.

PN311

MR IRVING: I think the commission has previously been provided with the 2003 regulations.

PN312

DEPUTY PRESIDENT SMITH: Yes.

PN313

MR IRVING: There were significant changes in those regulations in the late 1990's. Previously the regulations said that if you're appointed to a band, you could be redeployed and then that power to redeploy was excised from the regulations. That might have consequences in terms of people appointed before compared with people appointed after and so the proper factual foundation of the engagement of each of these employees might be necessary to distinguish between the different classes of employees. There may be different powers to transfer in relation to each.

PN314

DEPUTY PRESIDENT SMITH: Yes.

PN315

MR IRVING: That's the proposal in terms of the timetabling of the matter.

PN316

DEPUTY PRESIDENT SMITH: Has this been discussed with Mr Mueller or his clients?

PN317

MR IRVING: I have raised it with Mr Mueller just prior to the commencement of the hearing and he's expressed a view about it.

PN318

DEPUTY PRESIDENT GOSTENCNIK: I'm sure he was kind.

PN319

MR IRVING: As ever. Perhaps it's best if I not put words into his mouth as to what that might be.

PN320

DEPUTY PRESIDENT SMITH: All right. Mr Mueller?

PN321

MR MUELLER: If the commission please, we firmly resist that course of action. We wish to move, as I think was sufficiently foreshadowed in our correspondence of the 21st, for the commission to both revoke the interim order and to dismiss the application for orders. As that letter indicated, there are a number of considerations which we point to as to why that should happen and happen quickly. When I say move the commission, I might indicate that I'm in a position and would propose to, subject to the course that the full bench wishes to adopt, to advance the arguments.

PN322

I do need to say that for the purposes of advancing the argument I would be proposing to tender a folder of documents. Those documents are documents which have gone between the parties and I mean that in a slightly expanded sense. I mean have been transacted between Victoria Police and the union and Victoria Police and the band members so they're documents that take the matter from the time that the relevant decision was made in September to the point at which the direction made by the Chief Commissioner was made on 30 December. I won't develop this fully but I just foreshadow that that will disclose an uncontroversial course of factual events and provide the context in which the full bench can appreciate the submissions that we make.

PN323

DEPUTY PRESIDENT GOSTENCNIK: Mr Mueller, can I just ask you this: in relation to your first point in the correspondence from Clayton Utz which is founded on the Referral Act, does that point drop away, for example, the exercise of power or the making of the orders made pursuant to section 419 instead of 18?

PN324

MR MUELLER: No, it doesn't.

PN325

DEPUTY PRESIDENT GOSTENCNIK: Why not?

PN326

MR MUELLER: Your Honour refers to section 419.

PN327

DEPUTY PRESIDENT GOSTENCNIK: Yes. It seems to me that what you would be left is a Re AEU-type argument rather than one founded on the Referral Act.

PN328

MR MUELLER: No, with respect, I think the proposition that comes is that section 419 applies because the Commissioner of Police is not a constitutional corporation, therefore is a non-national system employer and the members concerned are non-national system employees. That isn't the position with respect to the Commissioner of Police. The position that exists with respect to the Commissioner of Police is that by reason of the provisions in, I think, section 30D of the Act so far as the Commissioner of Police is concerned he or she, as the case may be, is deemed to be, in effect, a national system employer and that deeming is supported by the Referral Act. So in one sense the union were right to bring the application under section 418 because section 419 is not applicable in this case.

PN329

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN330

MR MUELLER: I can develop that proposition further.

PN331

DEPUTY PRESIDENT GOSTENCNIK: No; no, that's okay. I understand that.

PN332

MR MUELLER: That's the position. I wanted to say this: it would be, frankly, acknowledged that the position that we find ourselves in today before the full bench dealing with an interim order which has been made and about which there was a hearing and submissions, but, as is apparent from the letter that we wrote, what occurred here is perhaps typically and necessarily an application was brought under section 418 with the consequence that the immediate duty was for the commission to determine whether it could be heard and determined within two days and, if not, then to make an interim order.

PN333

Now, what occurred was that it did come on at the time of year that it did come on but more particularly it came on in circumstances where it seems that the depth of the arguments and in particular the presence of very serious arguments concerning, I say, power and, secondly, jurisdiction existed. As things transpired, we would, frankly, say – and this is the gist of our letter of the 21st – the commission hasn't had the opportunity to appreciate and to hear the submissions that go to those fundamental matters. That's what would ordinarily happen. It hasn't happened. In our submission, it ought to happen now. We do say that without apportioning responsibility of blame on either side - - -

PN334

DEPUTY PRESIDENT SMITH: I'm glad you kept it to that side of the bar table.

PN335

MR MUELLER: Yes. The commission wasn't afforded the submissions that it needed to have and it's important, in our submission, to appreciate the context. This is an interim order that goes to the Commissioner of Police and one thing is plain. It goes to the deployment and the way in which he organises the police force. If there's a serious question about the power and jurisdiction of the commission to target the subject of the application made, then it ought to be heard and determined and heard and determined on proper materials.

PN336

They are submissions which go to the foundation of the interim order as much as they go to the competency of the application to stop industrial action under section 418. In those circumstances our submission is that we better get on with it and we are in a position to get on with it. This is what would normally happen if the application was before the commission and before a single member. Again I preface this by saying this is not a veiled criticism of the applicant, but the fact is that these points objectively speaking will leap off the page.

PN337

They ought to have been expected and anticipated and the commission ought to have been afforded both submissions and material that were responsive to those points. That's why we adopt the attitude that we have and we notice that the full bench has been constituted. The matter is listed for hearing and we are prepared to advance our case. How the position of the union is accommodated is a legitimate matter for discussion. I accept that, but the proposal that's put is, in my submission, not an appropriate or suitable way of proceeding.

PN338

DEPUTY PRESIDENT GOSTENCNIK: Mr Mueller, do I take it from that that you're suggesting that at the very least the Police Commissioner be permitted to put his case today and, if there is any necessity for accommodating the position of the union, that might be considered at the end of that?

PN339

MR MUELLER: Yes.

PN340

DEPUTY PRESIDENT GOSTENCNIK: That might be by way of an adjournment to, say, tomorrow or Tuesday.

PN341

MR MUELLER: Yes; yes, that's inherent in what I say.

PN342

DEPUTY PRESIDENT SMITH: Thank you. Mr Irving?

PN343

MR IRVING: There are going to be reasonable arguments on both sides of the issues in terms of the powers of the commission and a serious question about whether or not the commission has powers and a serious of questions that it doesn't. The question is: in the interim, where does the balance lie? We are not currently in the unreal 48-hour period in terms of procedural fairness. The Act sets out a procedure whereby within 48 hours one has to attempt to determine the matter. Outside of that period the union and the employer are both entitled to procedural fairness and procedural fairness means an appropriate amount of time.

PN344

DEPUTY PRESIDENT GOSTENCNIK: I think you're entitled to procedural fairness within that period as well, Mr Irving.

PN345

MR IRVING: One is, but it's crunched.

PN346

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN347

MR IRVING: Procedural fairness is responsive to the circumstance and the power being exercised and it's an unreal period of time in some respects. I'm not in a position to properly respond to all of the arguments which are mentioned in the Clayton Utz position letter today. The arguments which they raise are complex and they shouldn't be dealt with on the fly. For example, one of the questions which is being asked for you to determine is whether or not the employer was engaging in industrial action and whether or not it's engaging in industrial action depends upon section 19 subsection (3) and whether or not they were prevented from performing work in accordance with their contract of employment which falls upon what are these employees engaged to do.

PN348

Now, that partly falls into what was their initial terms of appointment, were they appointed to simply be band members and whether or not there's a subsequent power of transfer? The employer points to section 13 of the Police Regulation Act. If I could just take you to section 13, if the commission has it, section 13 commences in subsection (1) with "Any person appointed to be a member of the force shall not be capable of acting in any way as such member until he has taken and subscribed the oath". These oath-taking sections and their importance are the subject of centuries of law. The role of the oath of a constable in defining the scope of the duties and imposing obligations is the subject of a huge amount of learning, as is subsection (3). Subsection (3) provides:

PN349

Every person who has taken and subscribed such oath shall be taken to have, from the day on which such oath has been taken and subscribed, thereby entered into a written agreement with, and shall be thereby bound to serve Her Majesty as a member of the force, and in whatsoever capacity he is hereinafter required to serve, and at the current rate of pay of any rank to which he is appointed or reduced until legally discharged.

PN350

That's the power which the employer points to as being the power to transfer these employees around.

PN351

DEPUTY PRESIDENT SMITH: Isn't that the position that the employer points to as being the substance of the contract and therefore any alteration or any direction to assign other work is not inconsistent with the essential elements of the contract?

PN352

MR IRVING: They say, as I understand their position, whatever the initial appointment, they have got this power to then transfer or, in the words, "in whatsoever capacity he is hereinafter required to serve".

PN353

DEPUTY PRESIDENT SMITH: I think transfer is dealt with under section 8, isn't it?

PN354

MR IRVING: Indeed, there are expression provisions about transfer in section 8. There's an express provision in section 8AC concerning transfer from place to place and what has happened with these employees is they have been transferred not from place to place but to a position which isn't the position to which they have been appointed.

PN355

DEPUTY PRESIDENT SMITH: Place to place or position to position, isn't it?

PN356

MR IRVING: No, in section 8AC, from recollection, they have purported to transfer relying upon this section and this section alone. 8AC comes before 8A.

PN357

DEPUTY PRESIDENT SMITH: Thank you.

PN358

MR IRVING: The Chief Commissioner may immediately transfer a member of the force to any part of the state if the Chief Commissioner - - -

PN359

DEPUTY PRESIDENT GOSTENCNIK: I'm sorry, can we just check that? 8AB comes before - - -

PN360

MR IRVING: No, sorry, AC.

PN361

DEPUTY PRESIDENT GOSTENCNIK: I did hear you. It's just that you said it comes before 8A and it's not, at least not in the version that I have.

PN362

DEPUTY PRESIDENT SMITH: Maybe mine is not up to date.

PN363

MR IRVING: It does in the version that I have.

PN364

DEPUTY PRESIDENT GOSTENCNIK: Yes, perhaps this one is not up to date.

PN365

MR IRVING: I have got the version incorporating amendments on 1 January 2014 as per Austlii, but they might be different.

PN366

DEPUTY PRESIDENT GOSTENCNIK: Anyway, please go on.

PN367

MR IRVING: The substance of the point is the power relied upon is - in fact perhaps Mr Anderson can provide you with the up-to-date copy.

PN368

DEPUTY PRESIDENT SMITH: Thank you. Yes, thanks, Mr Irving.

PN369

MR IRVING: 8AC, directed transfers, deals with the Chief Commissioner may immediately transfer a member of the force to any part of the state. It's a power to change the geographical location of a person engaged in a particular position, not a power, we say, to transfer the substance of what the person is engaged to do and appointed to do. The employer in its letter to the commission refers to section 13 subsection (3) as a power to transfer separate from 8AC.

PN370

DEPUTY PRESIDENT SMITH: Isn't that a secondary argument as to whether or not their contract either is read in a narrow sense or read in a broader sense? If it's read in the broader sense, then the decision by the Chief Commissioner to transfer can give rise to action under what's called the Police Appeals Tribunal or something, isn't it, the promotions and transfer appeals in section 86AC?

PN371

MR IRVING: Possibly, and I say possibly because there are, firstly, limits on the appeals. For a person who's the subject of directed transfer you have got two days which has now, of course, expired; secondly, as I understand, the employer's case is that they're appointed generally; not just the bands but they're appointed generally to fill any position of any constable. They might not have done the 33 weeks' training. They might not have done a day of the 33 weeks' training and they haven't in the overwhelming majority of cases.

PN372

DEPUTY PRESIDENT SMITH: I think the evidence was a three-day workshop.

PN373

MR IRVING: Yes. Rather, the employer says they're constables and, as constables, they can be transferred to perform all duties as constables and, as a constable, constables have a series of common law powers, an expanded duty of arrest, a duty to keep the peace, duties in relation to warrants which are invested by the common law in addition to all of the statutory powers they're invested with and the employer says that these people who are musicians and haven't received a day of training in those general power are able to be redeployed in full to perform all of those duties.

PN374

Now, we say that the Act doesn't have that effect. We say that the provisions we have taken you to, particularly including subsection (3) of section 13, have a long statutory history within this Act and other acts and have a far narrower meaning than what is being contended for. To provide those authorities on the fly to provide a proper response to the position which is being put by the employer requires a well-prepared case which is going to be of assistance to the commission. There are arguments both ways, but in the meantime where does the balance of convenience lie in terms of the continuation of this order versus discharge in the interim until we have had time to prepare and properly present a case?

PN375

The employer relies upon a number of arguments which they set out in terms of balance of convenience which they set out - - -

PN376

DEPUTY PRESIDENT SMITH: Shouldn't we hear Mr Mueller on those questions first because it could be, for example, the public-interest argument that he seeks to raise is an argument in favour of not having an interim order? I understand the point you make, but shouldn't you hear what he says before answering it?

PN377

MR IRVING: He set out a number of points in this letter.

PN378

DEPUTY PRESIDENT SMITH: Yes.

PN379

MR IRVING: I was going to, but perhaps if the commission hears from him on those matters first, I will provide a response.

PN380

DEPUTY PRESIDENT SMITH: All right, thank you. You could assist me with one further matter, if you wouldn't mind, Mr Irving. Out of the initial number of persons who were in the three bands, how many does this application affect?

PN381

MR IRVING: I think the answer is 43. I understand it's about 40, your Honour.

PN382

DEPUTY PRESIDENT SMITH: So of the 45 police roles that were being sought to be filled by operational police five have taken up the options of either going to the academy or for the transitional allowance, have they, on your instructions?

PN383

MR IRVING: As I understand at the moment, your Honour, but I will get more detailed and accurate instructions about that precise point.

PN384

DEPUTY PRESIDENT SMITH: All right, thank you.

PN385

DEPUTY PRESIDENT GOSTENCNIK: Mr Irving, before you sit down, as I understand, part of Mr Mueller's case in relation to the interim order is he says that at least by reason of the Referral Act there's also no power to make an interim order presumably because that should be read down to match up with the matters that were referred. So in those circumstances, why shouldn't the matter proceed more quickly than is suggested in your outline in the draft?

PN386

MR IRVING: A number of reasons: firstly, the question of whether or not the commission has jurisdiction to make the order arises on a number of points in any order made under 418. It arises as to whether or not there's been a referral. It arises whether or not these people are employees; whether or not they're an employer; whether or not this is industrial action. They are all jurisdictional facts or jurisdictional issues which must be determined. The question of the referral demands no greater or lesser consideration than any of the other jurisdictional facts, firstly; secondly, it's not as simple as cases just purely looking at the provisions of the legislation.

PN387

The operation of that initial part of sections 30A through to 30H combined with the Referral Act, combined with the operation of 418 and 419, combined with AU is again not a simple legal question and can't be done on the fly and shouldn't be done on the fly. In any event, even if the employer was right all along in all of its points and says that there can be no referral in relation to - I think their strongest point is in relation to matters pertaining to transfers from position to position. For these employees there is no power to transfer from position to position so the issue doesn't really arise about whether or not this matter pertains to that. There simply is no effective mechanism for such a transfer and in such circumstances it couldn't be a matter that pertains to something that's legally impossible. That's the short answer, your Honour.

PN388

DEPUTY PRESIDENT GOSTENCNIK: Thank you.

PN389

DEPUTY PRESIDENT SMITH: We will hear you, Mr Mueller.

PN390

MR MUELLER: If the commission please, a couple of short points. The first one is it was implicit in what my friend said that by reason of an interim order being made it's quite okay, if I can put it in colloquial terms, to take the foot off the accelerator as far as a hearing and determination of this substantive application 418. In my submission, it is plain from the scheme of those provisions that the opposite is true.

PN391

It is plain that the purpose of an interim order is to hold the position – and we said this in our letter – presumptively to stop the alleged industrial action until the commission had the earliest opportunity to hear and determine the substantive application and that must be right. You only have to appreciate the fact that an interim order restrains a party from doing something and that it's made in circumstances where the substantive application itself hasn't been heard. In those circumstances we say it is plain from the scheme that the intention is to have the application heard as soon as practically possible.

PN392

The second aspect of this is that it is, with respect, a bit rich for an applicant to come along, having decided to bring an application like this – and we say it frankly in circumstances where it does raise questions of power and jurisdiction which we would have thought should have been appreciated – to say in circumstances where it's got the benefit of an interim order, "Oh, let's allow the interim order to run for as long as is necessary to give us an adequate time to actually develop our case for the granting of the order."

PN393

It's implicit in bringing an application under section 418 that you're ready and you have anticipated the arguments. Of course it's overridden by considerations of natural justice, but one to appreciate the particular context in which natural justice considerations arise in this area. We do say that it is passing strange for an applicant, having received an interim order about which we say firmly that there's a very serious question about power and jurisdiction, to then say, "We will have the benefit of this for as long as possible so that we can answer the arguments that are apparently available to the respondent who has to, on the face of it, abide by the terms of the order." So we do say that that leisurely timetable that is promoted is not one that should be endorsed by the commission.

PN394

The second consideration is this: my friend mentioned the vast amount of law that exists with respect to the engagement terms, if I could put it neutrally, of police officers, members of the force, in Victoria and generally speaking. The fact is that there's an authoritative decision which travels over this ground and the decision I think I'm right in saying was briefly referred to in the course of submissions before the presiding member. That's the decision in Gillard J in Arthurson v State of Victoria (2001) 140 IR 188 and in particular paragraphs 179 and 187 to 188. I would be proposing to take the commission to what his Honour says about the scheme. There have been some changes, including this introduction of a divisional structure of sworn officers that recognises a category of musician, for instance. I think I'm correct in saying in all other material respects the scheme as it's explicated in that decision is the scheme and we will be relying on that decision insofar as it is necessary.

PN395

The third thing I wanted to say is this: the two paramount threshold points that we wish to advance in support of revocation of the order and in opposition to the making of any order under section 418 are the Referral Act point – and we're reasonably confident that we can take the commission via a path through that legislation and explain how it very apparently, very clearly captures this circumstance because in the end we will be saying the only question that arises here is whether or not the action that is attacked here by the union is an instance of the Chief Commissioner of Police doing something with respect to the positions or the appointment of these people. As soon as you reach the conclusion that that is the correct factual characterisation for that's happened, that is the end of the jurisdictional. I say that respectfully to the commission because the Commonwealth cannot confer legislative power which tranches upon that area. We say that's absolutely plain.

PN396

DEPUTY PRESIDENT GOSTENCNIK: Mr Mueller, you don't have to develop this fully, but the question of the interim order – there is no requirement for the purposes of the interim order for the commission to be satisfied that industrial action, as defined, is either happening, threatened, et cetera. The jurisdictional facts seem to be that it needs to be satisfied that an application has been made – and you might have an argument that this is not a proper application - and, secondly, that it's unable to determine the matter within the two-day period. Assuming those two things are present, why can't an interim order be made? It must be made.

PN397

MR MUELLER: No, with respect, we couldn't - - -

PN398

DEPUTY PRESIDENT GOSTENCNIK: You don't have to be so nice, Mr Mueller. I'm just asking the question.

PN399

MR MUELLER: We couldn't concede that point. In fact we would argue for the opposite proposition because in the end that power to grant an interim order is a manifestation of the power of the Commonwealth to legislate with respect to a matter.

PN400

DEPUTY PRESIDENT GOSTENCNIK: You say it needs to be read down similarly.

PN401

MR MUELLER: It does and that is indeed perfectly the right approach. It is read down. It is read down so far as the Chief Commissioner of Police provided that the action that has been taken falls within the forbidden area and that's a matter of characterisation.

PN402

DEPUTY PRESIDENT SMITH: Are you equating the referral power of the decision in Re AEU?

PN403

MR MUELLER: No. There is a sophistication in that respect because when we take the bench to the Referral Act so far as it concerns law enforcement officers, the area of exclusion is enlarged and indeed are significantly enlarged and relevantly enlarged so far as this particular case is concerned.

PN404

DEPUTY PRESIDENT SMITH: So if we don't find that your characterisation is right, we then fall to Re AEU, do we?

PN405

MR MUELLER: Yes, you would, although it might follow, I think, that we would have trouble.

PN406

DEPUTY PRESIDENT GOSTENCNIK: Mr Mueller, let's assume we were hearing this right at the beginning and Mr Irving's client makes its application and you come along and you say, "You don't jurisdiction because of these matters," and we say, "All right, but we can't possibly deal with this matter until four or five days." What happens then?

PN407

MR MUELLER: That's a good question - - -

PN408

DEPUTY PRESIDENT GOSTENCNIK: I asked it.

PN409

MR MUELLER: In our submission, the answer is clear in the circumstances of this case. The interim order would not be made and in a sense that's one arm of what we want to put to you and I do put it to you now.

PN410

DEPUTY PRESIDENT GOSTENCNIK: You say it wouldn't be in the public interest to make that.

PN411

MR MUELLER: It wouldn't be in the public interest and that's enmeshed with the seriousness of the questions, the subject matter of what's being done and, frankly, the fact that so far as what in particular is attacked as industrial action here what we would say is the fact that by allowing the direction to run in the meantime no remedial damage is done if one were to evoke principles that go to the granting of interlocutory injunctions.

PN412

The direction, just to remind the commission, is that particular band members – and I do want to make the point about the numbers that are relevant. The direction is that particular band members attend at particular police stations in particular police regions for the purposes of undertaking some training appropriate to the role to which they are to be appointed should they not elect to take up the options that have been provided to them.

PN413

That's in a context where a decision has been made not to continue with police bands populated by sworn members. That decision has been made. With respect, the other side blurs this a little and are treating the application and indeed the interim order as if it is an order directed to holding the decision that's been made. The application wasn't put on that basis. It couldn't be put on that basis. One has to look at the identified target of the order and when it's appreciated that that's what it's targeted at, the course which is appropriate, we say, is that an interim order should not be in place. That's one of the reasons why we come and say it ought to be revoked in circumstances where - - -

PN414

DEPUTY PRESIDENT SMITH: If you're right on that point, does that finally determine the application?

PN415

MR MUELLER: No, it wouldn't; it wouldn't. We say we should not be subject to an interim order. If, for instance, the commission were in one way or another to provide an opportunity to the union to array its arguments, then that's okay, we will meet those arguments, but our proposition in that scenario is that it shouldn't be in circumstances where an interim order is running.

PN416

DEPUTY PRESIDENT GOSTENCNIK: Mr Mueller, what's the position in relation to the undertaking that was proffered by Ms Cheligoy which is at PN286?

PN417

MR MUELLER: I would need a few moments to get instructions about that, but I'm able to do that.

PN418

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN419

MR MUELLER: There is only one additional point I wanted to make. The additional point was that it's not to the point to investigate the questions that my friend mentioned early on in his submissions about application to public sector management and so forth and what that might mean. In the end it is, we say, plain these people are sworn members of the force. They are law enforcement officers for the purposes of the Referral Act and therefore for the purposes of the Fair Work Act and, more particularly, they are people who have subscribed the oath and the oath, as the decision of Gillard J makes clear, itself is the source of the power of the Chief Commissioner to decide how – and I put it generally – they are to be deployed.

PN420

Now, that might be an unfortunate thing for the band members concerned. It might mean that they should be in another place making this complaint, but it puts this jurisdiction out of reach to them. The additional thing I wanted to say is that the other threshold jurisdictional point which we mentioned in our letter is that it is plain on that authorities that industrial action has to have an industrial character and when you look – whichever way you look at what has happened here, this is not a situation in which the Commissioner of Police is taking a course of action in prosecution of an industrial claim or demand. This is implementation of, to put it generally, a re-organisation within the sworn member force. That's our position.

PN421

DEPUTY PRESIDENT SMITH: We will take a short break to allow you to get instructions. The matter is adjourned briefly.

PN422

MR MUELLER: Thank you.

<SHORT ADJOURNMENT [3.04PM]
<RESUMED [3.16PM]

PN423

MR MUELLER: With respect to the question of the undertaking my instructions are that the Victoria Police would be prepared to give an undertaking of the same nature as was put forward before the presiding member on the 22nd, I think it was. If that undertaking was in terms that it ran until the hearing and during the hearing of the substantive application - and necessarily that's in a context where the interim order was revoked, but additionally it was an undertaking that ran for a short period of time. I know I'm now encroaching into questions about the capacity of the - - -

PN424

DEPUTY PRESIDENT GOSTENCNIK: You don't want the undertaking to be relied upon as a basis to elongate the hearing.

PN425

MR MUELLER: No, and my instructions are that we would be prepared to give an undertaking that ran for something like seven days. I know in putting that I don't pre-empt what the commission's availability is, but that's the position of my client.

PN426

DEPUTY PRESIDENT GOSTENCNIK: Yes. Can we put it on this basis: the undertaking would be given and run for a short period assuming the commission could deal with it in that short period?

PN427

MR MUELLER: Yes.

PN428

DEPUTY PRESIDENT GOSTENCNIK: That might be five days. It might be eight days, for example, rather than putting a seven-day time limit.

PN429

MR MUELLER: Yes.

PN430

DEPUTY PRESIDENT GOSTENCNIK: I understand the point you're making.

PN431

MR MUELLER: There is just one other matter that I should have mentioned before we adjourned on that subject and that was that I needed to remind the commission that, although there's more than 40 band members involved, the interim order actually wing fences one group from its operation, namely, those who had accepted and had elected an option under the expression-of-interest process and so my instructions are that in fact it's around 23 band members who, as it were, have the benefit of the interim order.

PN432

DEPUTY PRESIDENT SMITH: Thank you. We will hear you on your submissions that you want to put, Mr Mueller.

PN433

MR MUELLER: I might commence - - -

PN434

MR IRVING: Before my friend does that, your Honour, I just want to clarify a couple of things. Firstly, will we be called upon to answer those submissions at the conclusion of the making of those submissions?

PN435

DEPUTY PRESIDENT SMITH: Let's see what they say.

PN436

MR IRVING: The second thing is we say that you shouldn't hear any application to revoke because the employer is in breach of the orders and this commission shouldn't hear an application on the part of a party who's contravening the orders.

PN437

DEPUTY PRESIDENT SMITH: Would you like to elaborate on what you say is the breach of the order?

PN438

MR IRVING: Yes, your Honour. The order that was made by the commission was an order that the employer not engage in industrial action in clause 3.4. 3.4 in turn picked up the definition of "industrial action" in section 19 subsection (3). That in turn provides that the employer locks out employees from their employment if the employer prevents employees from performing work under their contract of employment. These employees are engaged not only to practise but to perform. That is made clear in paragraphs 10 and 11 of Mr Staley's initial affidavit and in paragraph 18 of Mr Hudson's initial affidavit. I use "affidavit" loosely. They are in fact statements which were tendered before the commission.

PN439

Those paragraphs each provide that these employees performed and provided public performance as part of their job. What has occurred since the making of the order is that the employer has taken steps which meant that they cannot perform as part of their jobs. They're prevented from performing part of their contracts. In particular, for many years these employees have performed at police funerals. For many years they have performed at police graduation ceremonies. For many years they have performed at public functions when invited to do so. Since the making the making of the orders, when requested to provide police bands to perform this part of their job, the employees have not been permitted to perform those functions. Indeed, the employer has said it will not provide police bands for those purposes.

PN440

In support of this application that you should not hear the employer we have some evidence consisting principally of a series of emails between the parties which are attached to a witness statement of Mr Hudson. Could I provide a copy of that to the commission? This hasn't been provided to the other side and the question would only arise if they did seek to press the revocation order today rather than agree to a proposal about rescheduling. Mr Hudson is here in the commission. He's able to be called to give evidence that these emails are duly going back and forth if required.

PN441

If I could draw the commission's attention to PJH1 which is the first email, it's an email from the acting superintendent which provides that he's directed to turn up at the Green Street complex. There are no performance scheduled for 2014 and beyond and the rehearsal (indistinct) and you're required to rehearse and record music as directed. They are only part of the functions of the job. Performance is another part. The next email is an invitation dated – there are two letters. The first is dated 21 January from Creswick Railway Shops Association. I understand the locals call it Creswick, but I'll stick with the English pronunciation, if that's all right. It's an invitation to participate. It asks the police bands to join them on 26 January at that particular function and a similar invitation from Carey which I understand is a school.

PN442

On receipt of these invitations what occurred is set out in paragraphs 3 and 4 of the statement, namely, Mr Hudson was approached by Kerry County, the administrative officer. The invitations had been received and in paragraph 4, "While I was talking with Ms County, Inspector Russell approached us and directed County to send the standard reply to all requests," and I understand Inspector Russell used the term "standard reply" to imply that it has been sent to organisations who have requested bookings since 2014, that is, the bands are not available for bookings and, indeed, that's born out in PJH3 which is the standard reply, "Thanks for your interest in engaging the band to support your event. No bookings are being accepted."

PN443

Part of the job of the employees is to perform in public. They are being prevented from performing in public. The employer was ordered prior to these steps not to do this, not to prevent them performing for the public. We say they are contravening the orders by doing so. The police graduations and the funeral dealt with in paragraphs 6 through to December deal with a similar issue. They have always performed at police graduations. There's a request to perform at police graduations and a similar refusal. In relation to the funeral, the employees were told, in effect, at PJH they can volunteer their services to perform and they will be paid for volunteering their services but it won't be part of the performance schedule.

PN444

DEPUTY PRESIDENT SMITH: Are there effective bands that can undertake these performances?

PN445

MR IRVING: Sorry?

PN446

DEPUTY PRESIDENT SMITH: Are there effective bands that can undertake these performances?

PN447

MR IRVING: Are there bands other than police bands?

PN448

DEPUTY PRESIDENT SMITH: No; no, if there are only 23 that are still there, is there a band that is effective that can undertake the performance?

PN449

MR IRVING: Yes, on my instructions, there is. We say that there is a long-standing principle in this commission and a long-standing principle in courts that a party who is in breach of an order such as this shall not come along and either prosecute on appeal or prosecute another application in relation to the matters the subject of the injunction or order. We say the employer is doing it here and they should be refrained from prosecuting their revocation application. The final application should proceed. It should proceed promptly. We set out a proposed timetable in relation to that but, as to the revocation application, we say it shouldn't be prosecuted. I seek to tender that statement, your Honour.

PN450

DEPUTY PRESIDENT SMITH: You need some instructions, do you?

PN451

MR MUELLER: I do need some instructions. I do have some submissions to make which put a completely different complexion on what my friend has said. I do not object to the commission receiving the affidavit. I may wish to exercise my right to cross-examine, but what I presently wish to do is to respond to the submission that's been made on behalf of the association.

PN452

DEPUTY PRESIDENT SMITH: Do you want an adjournment before you do that to take instructions?

PN453

MR MUELLER: No, I don't believe I do.

PN454

DEPUTY PRESIDENT SMITH: All right.

PN455

MR MUELLER: This matter has actually been the subject of an exchange of correspondence. The essential proposition that my friend has advanced was the subject of a letter that was sent to the Commissioner of Police on 21 January and to which there has been a reply today. I'll go to that correspondence shortly, but essentially what my friend is putting here is, as it were, a clean-hands argument, we don't come here with clean hands. An essential aspect of a proposition like that is that the commission has a high degree of satisfaction that the conduct which is alleged to be in breach of an order or is otherwise not conscionable is occurring.

PN456

What my friend says is that the interim order is akin to a mandatory injunction requiring the Commissioner of Police - despite the fact that the bands have been disbanded and were disbanded long before the direction of 30 December was given, they must be reconstituted and the Commissioner must change his mind, reconstitute the bands and provide work, a mandatory injunction with respect to the performance of an employment contract or something like that. If the commission looks at the application that was made to initiate this matter, you will see – it might be convenient if I hand up now the folder of correspondence that I earlier threatened the bench with. It's not a large folder of correspondence, but if one looks at tab 15 - - -

PN457

DEPUTY PRESIDENT SMITH: Just a second, if you wouldn't mind, Mr Mueller.

PN458

MR MUELLER: - - - and in particular the second page of the application proper, it sets out the grounds upon which the application was brought. In one to eight it rehearses several matters and then in paragraph 9 it says:

PN459

On 3 December 2013 the Chief Commissioner of Police wrote to members of the band advising that from either 13 January or 20 January they were no longer to perform band duties and directing the majority to perform property officer duties at various locations.

PN460

It's not strictly accurate when one looks at the terms of the direction. The direction was that the recipients attend police stations to undertake training which would fit them to perform the duties of property officers. Then one sees in paragraph 13 the Chief Commissioner's direction to perform property officer duties is an intention to prevent members from performing work under their contracts of employment, lockout. That was the very basis upon which the application was put. It was put that the Chief Commissioner's conduct in giving that direction constituted industrial action because the giving of that direction constituted a lockout within the meaning of section 19 subsection (3) of the Fair Work Act.

PN461

One looks at the transcript of the proceedings before the presiding member and that was precisely the basis upon which the application was put. With the greatest respect to my friend, it is an astonishing licence to take to suggest that the interim order constitutes an order, in effect, requiring the Chief Commissioner to maintain bands which he has disbanded. It was not put on that basis and it is breathtaking.

PN462

DEPUTY PRESIDENT GOSTENCNIK: Mr Mueller, does it have to be put on that basis? Given that the commission in exercising its power to make an order in relation to industrial action doesn't have to identify the industrial action, the question here is whether the industrial action as described in the order is capable of catching the refusal by the Commissioner of Police to allow bands to take bookings and whether that's a prevention of the performance of work under the contract of employment.

PN463

MR MUELLER: The answer to that is it is true that the Act does not require an order to identify the industrial action but it is not a corollary of that proposition that the order attaches to whatever the applicant for that order might conceive could constitute industrial action. We say it is plain on the authorities. For instance, if a friend, as they threatened to do but had not done, went to the Federal Court and said we are in breach of the order, they would need to persuade the Federal Court that there was an unambiguous direction to the Commissioner of Police that he should do what is implicit in their argument, that the Commissioner had been directed to reconstitute the bands and to provide ordinary work to them.

PN464

Now, remember, I say with respect, this is a proposition which is put on the basis that we don't have clean hands and I reiterate the submission I made before that that sort of submission should be made in circumstances where there is a convincing argument that what is pointed to as the alleged conduct in breach is in breach. You could not be satisfied of that at that level of satisfaction. In fact we say that it is a breathtaking proposition.

PN465

DEPUTY PRESIDENT SMITH: What's occurring now with these employees? What are they doing?

PN466

MR MUELLER: I wanted to say factually speaking that it was made clear and, indeed, acknowledged in the very affidavits to which my friend has referred that the band members were informed long before the direction of 30 December was given that from 1 January there would be no bookings of performances because the bands from that date were not continuing. If they wanted to attack that proposition, they could have but they didn't. As I say, it is frankly acknowledged in the affidavits that have been referred to and we pointed this out to my learned friend's instructors. Paragraph 18 of the witness statement of Constable Hudson and paragraph 12 of the witness statement of Senior Constable Staley depose to the fact that they had been informed long before 30 December that there would be no further performances of the police bands, as they were then constituted, after 1 January.

PN467

DEPUTY PRESIDENT SMITH: So what are they doing now, those 23 persons?

PN468

MR MUELLER: As the email to which my friend referred, they were initially attending, as I understand it, for rehearsal purposes and that is what they are doing. They are in limbo, as it were, in one sense awaiting the final determination of the application for 418 orders.

PN469

DEPUTY PRESIDENT SMITH: I'm interested in when say you "reconstituting" whether or not the bands need to be reconstituted back to what they were for those that are left to engage in performances.

PN470

MR MUELLER: I'll confirm this by instructions, but my apprehension of the position is, as mentioned before, there are a number of people who have taken up the election to go down a different path which means leaving behind the police sworn bands, if I could put it that way. Is it theoretically possible that for a particular event one could garner from those members an appropriate performance ensemble or band? It might depend on the event, but the fact is the correspondence from my learned friend's instructing solicitors and the thrust of my friend's submission is that since the order has been made the Chief Commissioner of Police has cancelled performances. That is incorrect as a matter of fact. No bookings for performances were taken after 1 January. They couldn't be. The decision had been made that the bands would no longer continue. If my friend wanted to seek some relief with respect to that decision, then they needed to bring a different application and probably in a different place.

PN471

DEPUTY PRESIDENT SMITH: Is there any corollary with Blackadder?

PN472

MR MUELLER: A reinstatement case where there would be - - -

PN473

DEPUTY PRESIDENT SMITH: Providing meaningful work.

PN474

MR MUELLER: Yes, providing meaningful work.

PN475

DEPUTY PRESIDENT GOSTENCNIK: I think the Deputy President meant whether this show was funnier than Blackadder.

PN476

MR MUELLER: I was immediately drawn to that, yes, but no parallel because that was a reinstatement order and its plain purport was to put the successful applicant back into their employment. That was the whole nature of the jurisdiction exercise. This exercise is concerned with an order directed to industrial action which the applicant identified in a particular way.

PN477

DEPUTY PRESIDENT GOSTENCNIK: Can your argument be looked at in another way? Assuming for a moment that the refusal to accept further bookings is industrial action, the conduct wasn't the conduct that was ever complained about the Police Association so even if technically there's a breach, the clean-hands argument doesn't take them any further.

PN478

MR MUELLER: I put it on both bases.

PN479

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN480

MR MUELLER: As I've developed that argument, I am content to put my response on that basis and say that the material and submission that had been advanced does not and could not reach the level of satisfaction as to justify the discretion which my friend asks the commission to - - -

PN481

DEPUTY PRESIDENT SMITH: You object to the marking of the second witness statement.

PN482

MR MUELLER: No.

PN483

DEPUTY PRESIDENT SMITH: I will mark it PFA1FB.

EXHIBIT #PFA1FB WITNESS STATEMENT

PN484

DEPUTY PRESIDENT SMITH: Do you wish to cross-examine?

PN485

MR MUELLER: No.

PN486

DEPUTY PRESIDENT SMITH: Thank you. Mr Irving?

PN487

MR IRVING: Thank you. If I could deal with a couple of points, the first is this: the scope of the order and the obligations it imposes is not limited by the identification of the particular types of industrial action for two reasons; firstly, the Act says they don't need to be identified and, secondly, for the plain industrial sense of the policy of it. You order a union who's taking overtime bans on – from taking industrial action for three weeks and then the next day they turn up and they say, "Well, everyone's called in sick," and the employer says, "That's a contravention of the order. The order says thou shalt not take any type of industrial action for the period of the order."

PN488

It doesn't lay well in the mouth of the union to turn around and say, "But the whole application that you made was based about overtime bans. We've got a different type of industrial action we're running now. We're breaching the contract in a different way. It wasn't covered by your initial application." The reason the Act gives the power to prevent any type of industrial action is to prevent this sort of switching and changing by parties who are subject to the orders and at the end of the day the question is have they breached the order that was made, not have they breached what was initially contemplated in the application. So in terms of the argument about there being now different types of industrial action and the scope of what the initial application is it all falls away in light of the way in which the orders are expressed in this place made under 418 and 419.

PN489

DEPUTY PRESIDENT GOSTENCNIK: Mr Irving, the point in terms of considering whether to exercise a discretion not to hear the Commissioner on the question of revocation – surely a factor that is relevant is whether the conduct you say is now in breach of the order was something that was contemplated by your client when it applied for the order. Accepting for a moment that you're right and that there's a breach, you're effectively saying that the Commissioner is being deliberate in his breach.

PN490

MR IRVING: No.

PN491

DEPUTY PRESIDENT GOSTENCNIK: If he is not being deliberate, then why has he not got clean hands?

PN492

MR IRVING: "Clean hands" was his phrase, not mine and it doesn't need to be contumacious - - -

PN493

DEPUTY PRESIDENT GOSTENCNIK: Your submission is he's wearing gloves.

PN494

MR IRVING: It doesn't need to be contumacious and deliberate and intended breach. The union who chooses a different form of industrial action to agitate might honestly believe that it's complying with the order because what was initially contemplated was the overtime ban. True it is that the position is far clearer when the party is contumacious and deliberate but, nevertheless, the principle continues to apply notwithstanding the lack of deliberateness, firstly.

PN495

Secondly, the question was asked about, "What can be done amongst these employees?" My instructions are that there were 45. One of them is an inspector and wasn't subject to the direction in any event so there were 44. Of the 44 one has resigned. Two have elected to go to the academy. Two have retired which leaves 39 and one was the inspector. That leaves 39. There are some people who are on long service leave and there are some people on annual leave, but there are 39. 39 aren't turning up every day to Green Street because some of them are on annual leave and long service leave, but if they all came back, then that's what there would be, firstly.

PN496

Secondly, there are enough people to go and perform these jobs. The pipe band, for example, requires 15 pipers. The pipe band usually goes on to graduation ceremonies. It required 15 pipers. There are 15 pipers sitting there in the office at the moment piping away in training so it can be done. They can perform the work. We don't say that the employer has taken some step to cancel prior bookings. What we say is the order requires them to allow the employees to perform their job and part of the job is the public performance.

PN497

DEPUTY PRESIDENT GOSTENCNIK: Surely you're not suggesting the order requires the Commissioner to accept every invitation.

PN498

MR IRVING: No, but, for example, if they received an invitation to perform tomorrow in Fiji, then they're not obliged to accept that.

PN499

DEPUTY PRESIDENT GOSTENCNIK: Or, as in this case, they were sent a request on 21 January for a performance on the 26th. On your measure of the draft order, Mr Irving, the band couldn't possibly be ready in time. It was too complicated. It needs longer to prepare. Putting aside the industrial action, there would be sensible reasons why the Commissioner might not accept a particular - - -

PN500

MR IRVING: Absolutely, but in this case they haven't. It's not as if they have considered these matters.

PN501

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN502

MR IRVING: They've just said, "Right. The hard and fast rule is nothing."

PN503

DEPUTY PRESIDENT GOSTENCNIK: "We've made a decision, nothing," yes, understood.

PN504

MR IRVING: Part of the evidence which goes to the Blackadder point, if I could take the commission or refer the commission to it at least, is in paragraphs 12, 13, 14, 15, 16 and 17 of Hudson's initial statement. He speaks in some detail about what is acquired by an employee over and above wages by performing his job. He speaks about the chosen career as the musician being frustrated. He speaks about the separation from his peers and he speaks, I think, in 18 about the public performance of the job. It's part of the nature of this job and part of the enjoyment that one gets out of it is more than just dough.

PN505

DEPUTY PRESIDENT SMITH: There is some history as to the contract of actors and the like.

PN506

MR IRVING: Indeed, Mabey and all of those early cases about the benefits of public performance. I mean, one doesn't have to think about it very long to think, does one get greater job satisfaction out of playing in front of your colleagues at the graduation ceremony or does one get greater satisfaction sitting in a room and practising?

PN507

DEPUTY PRESIDENT SMITH: It depends upon the response of the audience.

PN508

MR IRVING: That's partly true; that's partly true, although if they had the full power of constables and were booed, then there might be a common law offence there. That deals with the scope of the order. That deals with their capacity to perform this job. That deals with the cancellation point. I don't think there was anything else raised as against our application.

PN509

DEPUTY PRESIDENT SMITH: Thank you. We are not persuaded not to hear you, Mr Mueller. You raised jurisdictional issues and we will hear you on those.

PN510

MR MUELLER: If the commission pleases. I was at the point where I was about to hand over and I think I have now in fact handed up the folder of correspondence. I just wanted to quickly sketch by reference to that folder the relevant factual events. The folder has behind tab 1 the chronology. Before I go to it I want to recite a couple of facts which I understand to be not controversial. No doubt my friend will at an appropriate time say if they are. Immediately prior to the announcement that was made with respect to the constitution of the police bands by sworn officers there were, as I think is agreed, 47 musicians, each of whom is a sworn officer of Victoria Police. There were three band categories. There was a pipe band, a rock band, I think, called "Code One" and a show band. They are capable of being combined together and so forth according and appropriate to the occasion upon which they may perform.

PN511

MR IRVING: Could I just rise and say rather than doing running interjections as to certain facts there are certain things that my friend is putting which either I have got no instructions on or I know are incorrect and there's no evidence of, but rather than raising them as we go along perhaps - - -

PN512

DEPUTY PRESIDENT SMITH: You put your bookmark in now.

PN513

MR IRVING: Yes.

PN514

DEPUTY PRESIDENT SMITH: Thank you, Mr Irving.

PN515

MR MUELLER: Yes, I don't mean to be churlish but it was my friend's application. If these facts are not present before the commission, then it's an unusual situation. Some of the present complement of members of the band were police who performed operational work. There were only a couple and they subsequently became dedicated members of the bands and they did no perform operational work. It is correct to say that the balance were musicians who are not trained in the discharge of frontline operational duties.

PN516

Members of the police band so far as it's relevant are covered in a category under the enterprise agreement that applies to sworn officers. They have their own, as I appreciate it, separate salary structure in that respect and there are some limitations that prevent them from accessing progression through the salary structure. As I mentioned, although the band members are sworn members of the force - and I don't think there's any controversy that they have each been inducted as such, taken the oath – as a practical matter they are not able to be deployed in frontline operational capacity should the need arise and in that regard their suitability to perform frontline operational duties has not been tested.

PN517

The regulations as they stand, as my friend, I think, has mentioned, do contemplate that there is a special category of sworn members who are musicians and I will in due course take the commission to the relevant police regulation. That particular recognition of a special category has not always been the case and it may be that a number of the members of the force concerned were engaged at a time when that particular category did not exist. So that's the essential position with respect to, as it were, the composition of the particular employees, sworn members, concerned here.

PN518

Now, if one goes to the chronology, the commission will see that on 4 September a letter went from Victoria Police to the Police Association notifying it of the proposal – and this is the vernacular terms that's being used - to civilianise the police bands. The reason why that term is used will be become obvious when one looks at what the proposal was, but behind tab 2 you'll see that correspondence and you'll see in the first sentence that the purpose of the proposal is ordered to free up 45 sworn positions to frontline operational roles. So this is an instance of the executive group of Victoria Police, the pinnacle of which is the Chief Commissioner of Police, making a decision about the functions that are to be performed, the roles, the positions that are to exist, so far as sworn officers are concerned.

PN519

The next sentence from the Deputy Commissioner notifies the union that she is confirming her intention to formally announce the decision to band members at a meeting scheduled for the following day. That letter was accompanied by a document which is not reproduced behind tab 2 but is reproduced behind tab 3. It begins at the second page behind tab 3, "Consultation phase rescoping the Victoria Police bands". So that's the notification of the path that Victoria Police is going down.

PN520

Then there's an email on – I should say there's then on 5 September – and there is not a document which evidences this exactly but these are my instructions, I think not controversial. There's a meeting held with the members of the police bands at which the decision was announced and they were informed that sworn positions currently allocated to and occupied Victoria Police members who perform as members of the pipe band, the show band and the rock band are to revert to operational appreciations so echoing what was in the letter of 4 September.

PN521

The band members are told that a new structure is to be put in place in which 15 unsworn pipe positions, that is, positions that will be recognised in public sector, would be established. That would be a civilian band confined to that number and focused on priority events, including ceremonial and large-scale community events. So, as I understand it, the sworn bands would have a larger menu in terms of performance. This is a contraction of the band and, as it were, a conversion of the band to civilian status.

PN522

Then there's an email on 6 September – and the email is found behind tab 3 – which provides again the consultation phase rescoping the police bands document and stating an anticipation that discussions would commence about that subject and encouraging band members to put their views through their representatives. Those events did excite a response from the Police Association on 25 October. That response is found behind tab 4 and a number of complaints are made about what was being done and in essence asserting that the proposal was not soundly based in law or in terms of the enterprise agreement. I don't presently need to go to the detail of what those arguments are, but clearly the Police Association did not think that what was being done was in accordance with the enterprise agreement or an available course of action.

PN523

Then on 29 October the Victoria Police is pressing ahead with what is explained in that rescoping document. I'll pause for a moment just to try and encompass or seek to encompass what was being done in this regard, but that email is to band members and it's informing band members and attaching the relevant documents which explain the expression-of-interest process. Again in broad terms it presented five options to the sworn members who constituted the police bands. They could express an interest in becoming civilian members of that 15-member pipe band which I've referred to. They could express an interest in undertaking the police recruit course, remembering that they haven't been tested for operational duties, or in becoming protective services officers.

PN524

The third option was to become policy recruits or PSO's and at the same time have a role in the civilian pipe band as a backstop if they didn't successfully complete their training as police recruits or PSO's. I should say I don't need to go into the detail of it, but it's there in the documents that there are a lot of conditions. When I say "conditions", I don't mean onerous conditions, but there's a statement as to what salary arrangements are going to apply and the preservation of their conditions for a period of time and so on and so forth. The fourth option was to refer on to some other role in a public-sector classification in a VPS classification. The fifth was to take a transition package out of the force, amongst other things, which involved assistance to explore other career options and so forth. That was put forward to the band members concerned and they were asked to express an interest by a particular date.

PN525

Then what occurred was that the Police Association again complained about that course of action and that complaint is in the letter of 13 October behind tab 6 and asserts the existence of a dispute under the enterprise agreement - they're entitled to pursue it – and referring to the dispute-settlement process under the agreement and reminding Victoria Police about the status quo provisions and asking Victoria Police to cease taking any action in respect of the EOI process which had been explained and informing members of the police band that they're not required to participate in the EOI process, asking for an immediate response. A response was forthcoming from Victoria Police which is behind tab 7 putting Victoria Police's viewpoint about that and expressing its point of view that there wasn't a good basis for the assertion of the existence of a dispute.

PN526

That prompted an application by the union to the commission to deal with the dispute which is the other matter that was running before the presiding member at the time that the interim order was made. That application is found behind tab 8 and it explains what the dispute was about and asks the commission to deal with it under the dispute-resolution process. I draw attention to the fact that the relief sought was that Victoria Police be directed to observe the disputes procedure, the force be directed to withdraw the expression-of-interest document and the force be directed to cease the process of disbanding the bands. So that issue is well and truly alive and well at that point of time. The application appended the exchanges of correspondence between the parties.

PN527

That application did result in a listing for conference of that dispute for 15 November. A conciliation conference was conducted at the commission by the presiding and certain recommendations were made. Following that you will see that there is a letter from the Police Association behind tab 9 in which the Police Association refers in general terms to the conciliation proceedings and asks for some responses from Victoria Police and says that if those responses are not forthcoming which they said they were entitled to receive, then the Police Association would ask for the dispute to be relisted under their application for conference.

PN528

There was a response from Victoria Police which is found behind tab 10 on 16 December which puts forward Victoria Police's responses. There might be an argument about whether those were the responses anticipated or expected. I ought to have said that when the notice of dispute was lodged by the union, the Victoria Police did take a decision that it would not for the moment actively prosecute the expression-of-interest process but they would continue to receive expressions of interest if members to whom the process was directed put them in.

PN529

Now, that takes us to the email which is reproduced behind tab 11 which is the email from Victoria Police of 17 December. That's an email that goes to band members and that's a re-enlivening of the EOI process on the basis that the conciliation process, as far as Victoria Police is concerned, is exhausted. Again the Police Association, as it's entitled to do, wrote back and expressed its serious concerns about that course of action. This is in the letter which appears behind tab 12 of 17 December, a letter directed to Ms Cheligoy, and it enumerates a number of concerns about what is being done and asks for the email, namely, the email which is reproduced behind tab 11, to be withdrawn, that is, to cease canvassing for the expressions of interest from the band members.

PN530

This letter from the union asks the force to tell members that they won't be moved or required to perform other duties whilst the dispute is being resolved and it notes the fact, as is the fact, that the TPA I think on that day sought a further listing of the dispute application. I think I'm correct in saying that that listing was given but unsurprisingly, given the time of year, it was listed for 14 January. There was a response by Victoria Police to that letter from the Police Association. The response was provided on the next day. It responds to a number of matters and significantly it says that the email, that is, the prosecution of the expression-of-interest process, would not be withdrawn and anticipates that the members will be directed to transfer on their return to work after the annual closedown.

PN531

Then comes the critical document which was the document which was relied upon for the application under section 418. When I say "the critical document", it's an example of one of the types of letters that were sent to band members. The one that we've reproduced is the one which was in fact an annexure to the witness statement that was relied upon in the application for section 418 orders. I do notice the time. I should have inquired as to what the intentions of the bench were in this respect.

PN532

DEPUTY PRESIDENT SMITH: How long do you think you need to go?

PN533

MR MUELLER: I think I'll be another hour or a little longer.

PN534

DEPUTY PRESIDENT SMITH: We are prepared to hear you out tonight. We will adjourn for five minutes so that whatever arrangements need to be made can be made, including members of the bench, but we will hear you out tonight.

PN535

MR MUELLER: Thank you. I'm grateful for that.

PN536

DEPUTY PRESIDENT SMITH: Then we will announce the future programming of the matter. The matter is adjourned for five minutes.

<SHORT ADJOURNMENT [4.23PM]
<RESUMED [4.37PM]

PN537

DEPUTY PRESIDENT SMITH: Thank you, Mr Mueller.

PN538

MR MUELLER: I had got to the point of referring to the direction which became the particular subject of the application made by the union to stop industrial action and that was behind tab 14. I just draw attention to several aspects of it. The first paragraph reprises the fact that the police band had been reconfigures, as it's put in that sentence, from 1 January and that all positions had been returned to operational frontline policing. Then it goes on to say – and this happens to be an example of a letter that went to Constable Staley. It might be senior constable, I think. He was a person who had not made an election under the EOI process. The second paragraph refers to that and says:

PN539

You will be appointed to western region division 1 with initial duty at Corio. You are required to report to the officer in charge on that date, 20 January, at 0800 hours for station induction prior to commencing duties as a property officer.

PN540

Then the nature of that role is in brief terms described and he's notified of the requirement to attend a PALM training session which is an administrative process. In that second-last paragraph you'll notice – and my friend had drawn to attention to this – this direction is made in accordance with section 8AC of the Police Regulation Act. Could I hand up a folder of legislation and authorities? If you look behind tab 20, there you'll see the Police Regulation Act and section 8AC on page 26, "The Chief Commissioner may immediately transfer a member of the force" - other than those senior members – "to any part of the state if the Chief Commissioner considers it reasonably necessary to do so for the provision of policing services."

PN541

DEPUTY PRESIDENT SMITH: Is "policing services" defined?

PN542

MR MUELLER: I think so. I should know.

PN543

DEPUTY PRESIDENT SMITH: It doesn't appear to be.

PN544

MR MUELLER: I can't see it immediately in the definition section but we will chase that down. So that's the nature of the direction that was given. It is plain – and this is part of our submission – that what is being done here is that the sworn members are being asked to occupy another position than the position that they presently had.

PN545

DEPUTY PRESIDENT GOSTENCNIK: If you look immediately above 8AC, there is a definition of "transfer" which seems to contemplate from one position in the force of the same rank to another but does not include a directed transfer.

PN546

MR MUELLER: I didn't quite pick that up, sorry.

PN547

DEPUTY PRESIDENT GOSTENCNIK: The definition immediately above 8AC is a definition of "transfer" which contemplates a transfer from one position in the force to another of the same rank but excludes directed transfers, so what sorts of transfers are directed transfers? It seems they are something different to transfers from one position to another of the same rank.

PN548

MR MUELLER: Yes; yes, I think that's true. My friend made a point about there not being – when you looked at this letter, it hung exclusively off section 8C. With respect, we'd take issue with that proposition. It is true that one part of it hangs off that but we do say that what is carried by the whole course of events and embodied in the letter is the implementation of the decision by the Commissioner to transfer a member from one position to another.

PN549

DEPUTY PRESIDENT GOSTENCNIK: So it's a combination of the exercise of powers under 8 and/or 8AC, you say.

PN550

MR MUELLER: Yes, that is part of our contention.

PN551

COMMISSIONER JOHNS: But does the reference in 8AC to "any part of the state" just refer to a transfer in terms of a geographic location as opposed to a position? So it would empower the Chief Commissioner to transfer a senior musician from Highett to Bendigo but doesn't empower the Chief Commissioner to make the senior musician a property officer.

PN552

MR MUELLER: Yes. I accept that that contention is available, but it's answered by the fact that it is plain that what is being done is that the Commissioner, apart from telling them geographically where to go, is telling them that they are about to be transferred to a different position.

PN553

COMMISSIONER JOHNS: And where does that come from?

PN554

MR MUELLER: That's the power that arises from section 8 itself and from the terms of the oath. You'll see at section 8(1), "The Chief Commissioner may in accordance with the regulations appoint, promote and transfer categories of members of the force," which include these people. Because they have those ranks, the Chief Commissioner may do that. That's the power and that power - - -

PN555

DEPUTY PRESIDENT GOSTENCNIK: And the words "as the Governor in Council thinks necessary".

PN556

MR MUELLER: Yes, that is the fact that certain gazettal steps have to take place. It is convenient, I think, to turn to section 13 at the same time because these two provisions do go, in our submission, hand in hand. Section 13 – this provision, I think I can submit, has not materially changed because we've got to remember that the members concerned have been appointed to the force at different times but this is how things have been. They must subscribe the oath which is set forth in form A of the second schedule. Rather than go to the second schedule it's perhaps convenient or more convenient just to look at – I was under a misapprehension - - -

PN557

MR..........: The second schedule is on page 260.

PN558

MR MUELLER: Thank you. We had, I thought, included the oath which had actually been taken by Senior Constable Staley, but it's there and he did take an oath in that form. You'll see its terms in the opening stanza that he would "well and truly serve our well and truly serve our Sovereign Lady the Queen as a member of the Police Force of Victoria in such capacity as I may be hereafter appointed, promoted or reduced to without favour or affection malice" and so forth.

PN559

You'll see that that again squares with section 13 subsection (3), "Every person who has taken and subscribed such oath shall be taken to have, from the day on which such oath has been taken and subscribed, thereby entered into a written agreement" – and Gillard J deals with this and describes that the written agreement of employment as a unilateral agreement, basically a one-sided agreement, in the sense that it says "into a written agreement with, and shall be thereby bound to serve Her Majesty as a member of the force, and in whatsoever capacity he is hereinafter required to serve" and so forth.

PN560

This is paramount legislation, if I could put it that way. I'll use the expression "paramount" as compared to whatever common law proposition might be put forward as to the contract of employment. This is the statutory agreement. To the extent that a power is conferred on the Commissioner of Police by the statute they are the Commissioner's powers.

PN561

DEPUTY PRESIDENT SMITH: Is there anything in the certified agreement which deals with the same subject matter?

PN562

MR MUELLER: I think not but, of course, there are prescriptions within the enterprise agreement that deal with transfers and so forth.

PN563

DEPUTY PRESIDENT SMITH: Yes.

PN564

MR MUELLER: My apprehension is that they take as their premise the existence of this power.

PN565

DEPUTY PRESIDENT SMITH: Do they refer to the duties? I just haven't got it in front of me.

PN566

MR MUELLER: Yes.

PN567

DEPUTY PRESIDENT SMITH: I'm trying to dig into my memory to see.

PN568

MR MUELLER: We will hand up a copy.

PN569

DEPUTY PRESIDENT SMITH: Of the agreement?

PN570

MR MUELLER: Yes. I think we only have one copy.

PN571

DEPUTY PRESIDENT SMITH: That's all right, thank you.

PN572

DEPUTY PRESIDENT GOSTENCNIK: Mr Mueller, is there any significance in the fact that the word "transfer" doesn't appear in the oath?

PN573

MR MUELLER: We think not. We think it's carried by section 8.

PN574

DEPUTY PRESIDENT GOSTENCNIK: So essentially the oath is the agreement by the police officer to be bound by the contract of employment which is constituted by the Police Regulations.

PN575

MR MUELLER: Yes. We'll come back to that when we develop the argument which we'll do as concisely as possible with respect to the Referral Act and the expressions that are used in it, but just returning to the chronology, the application is made by the union on 10 January and it comes on on 3 January. We're familiar with the course of events and it's recorded in the transcript which is included in the folder of correspondence and so forth and the interim order. The interim order is made on the 13th.

PN576

The presiding member did afford the parties a further opportunity to address the contrary to the public interest of making an interim order on the following day. Certain submissions were put about that but they did not result in a modification of the order. I simply draw attention to a matter which I had mentioned before, paragraph 4.2 of the order. The commission will see in 4.1 it binds the Chief Commissioner of Police and its agents, employees and servants, but then a certain group of members of the police band are excised from its operations and that's that group who had accepted to, "consented to", as it's put in the order, offers made by the Chief Commissioner to move from the police band. That is in substance a reference to them electing to take an option under the expression-of-interest process.

PN577

I think there is a difference between us as to the number of people who might be within that category. My instructions are that if you take into account that category, the number affected is around 27. The number of band members in whose favour the interim order runs is 27. That is the essential factual context which the application was made and in which I make the submissions I'm about to. I intend in that respect to deal with the industrial-character proposition first. The starting point of that proposition is the definition of "industrial action" contained in section 19 of the Act.

PN578

The application in this case was an application that was directed to an employer rather than the usual situation where the application is directed to employees or unions who are organising employees to take industrial action. That meant that to fit within the concept of industrial action the conduct identified needs to satisfy the description of a lockout, but there's an embellishment that's important. I will come back in due course in the third argument to the elements of what constitutes a lockout under subsection (3), but it is, we say, established by the authorities that the definition of "industrial action", including that so far as it refers to a lockout carries with it a requirement that the action take must have an industrial character.

PN579

I will take you to a relevant authority in that respect. The action must have as its purpose the prosecution support of an industrial claim or demand. That is not surprising because, as a matter ordinary principles of statutory construction, one takes into account both the immediate statutory context and the wider statutory context in which a definition operates in order to ascertain its meaning and content. The definition of "industrial action" is supplied an in particular the definition of "lockout" is supplied by section 19 for the purposes of that part of the Act and those provisions in the Act which deal with industrial action in bargaining. It's supplied for the purposes, we say, of Part 3-3 of the Fair Work Act, in particular that is the provisions in that part of the Act that deal with the subject of industrial action.

PN580

It's convenient to take the commission immediately to the decision of a full bench of this commission in CFMEU v Coal and Allied. I might refer to is as the Mount Thorley case. There must be a multiplicity of cases in which the CFMEU and Coal and Allied have been the described parties. That decision is found behind tab 24 of the folder. This was a case in which a union had brought an application for orders under the corresponding provision in the Workplace Relations Act for an industrial action stop order and it was, as the headnote discloses, directed to a threat by the employer to stand down workers because of their refusal to submit to a urine-testing regime. The headnote is essentially accurate but I will take you to the passages themselves. You will notice that in holding number 1 at the foot of the first page:

PN581

The definition of "industrial action" in section 420 must be read giving some weight to the word "industrial" and conduct will not constitute a "lockout" within the meaning of … -

PN582

the then relevant provisions –

PN583

unless it has an industrial character. In determining whether any given action has such a character it is necessary to consider the purpose of the conduct said to constitute industrial action.

PN584

In the case at hand the conclusion was reached it did not have that character and one of the bases was, perhaps the principal basis, what the employer was doing was something that it regarded it needed to do in order to comply with the New South Wales Occupational Health and Safety Act. You will see in the second headnote at the top of page 244 – again this is accurate in the second sentence of that holding number 2:

PN585

The position of the respondent was motivated by its concern to maximise safety at the mine, not for the purpose of applying pressure to the CFMEU to accede to industrial demands or claims.

PN586

There is a discussion of the relevant principles which begins at paragraph numbered 12 on page 246 of the decision. It's interesting in the preceding paragraph numbered 11 the full bench constituted by both Lawler P and Hamberger SDP and Larkin C observed that they didn't need to look at the definition of "lockout". They didn't need to look at it and do a parsing and analysis of it because they accepted that whatever it meant, the action concerned to be a lockout had to have the requisite industrial character. They started with an analysis of The Age Company decision which is referred to in paragraph 12 and they set out – I don't read those passages, but that's the platform on which the reasoning proceeds.

PN587

They observe in paragraph 13 the observations that they have just set out by the full bench in The Age decision are obiter dicta, but they go on to say what is reproduced in the headnote in paragraph 14. That's giving weight to the word "industrial" in the defined expression "industrial action", say it has to have an industrial character and then they say in the final sentence of paragraph 14, "In determining whether any given action has such a character it is necessary to consider the purpose of the conduct said to constitute industrial action," and then they refer to what the company was required to do by state regulations.

PN588

They then refer to a decision of the New South Wales Industrial Relations Commission which concerns the breadth of the duty, the occupational health and safety duty. Then they go on to say in paragraph 18:

PN589

In this case, the evidence before the Commission established that the position adopted by company was motivated by the company's concern to maximise safety at the mine and to comply with its statutory duties in relation to safety and not for the purpose of applying pressure to the union to accede to industrial demands or claims made by the company.

PN590

Then I skip ahead after the references to the OH&S Act to the second main sentence in paragraph number 19:

PN591

On the evidence before the Commissioner, the purpose of the threat of stand downs made by the company in relation to employees who refuse to submit to urine screening tests was to maximise safety at the mine and to ensure compliance with what the company perceived as its statutory duty and therefore did not have the requisite industrial character to constitute a lockout within the meaning of –

PN592

the corresponding provisions in the Workplace Relations Act, and then later you will see in the final paragraph 22 on page 250:

PN593

For these reasons, the action about which the CFMEU complains did not amount to industrial action within the meaning of section 460 and … the commission had no jurisdiction to make an order.

PN594

What we say here is that the purpose of the action in this case is plain, that is, the action that was the target of the application for orders, and that was to effect a re-organisation of one part of the sworn force. We say it is plain that it was not to put pressure on the union or its members to accede to an industrial demand or claim.

PN595

DEPUTY PRESIDENT SMITH: Can I ask you this, Mr Mueller? What do you about this proposition: is it industrial in the context that the decision of the Chief Commissioner seeks to remove persons from a career that they joined the force to establish and progress through? That is an ordinary context might be regarded as industrial. It's directly related to salary horizons and the like. In addition, it's not as if these persons aren't covered by the instrument that was bargained between the parties. There is a provision under clause 153 of the agreement that says there will be a police band. The action of the Police Commissioner in this regard – could it be regarded as putting beyond the next bargaining round that element of the bargain that was reached on the last occasion?

PN596

MR MUELLER: We say that that is not the character of the action. If there is some sort of evidence that this was not a bone fide decision of the Chief Commissioner of Police - - -

PN597

DEPUTY PRESIDENT SMITH: I'm not seeking to impugn - - -

PN598

MR MUELLER: No; no; no, I appreciate that. In a sense I'm recognising that in a particular case there might be force in that proposition but in this case there is no force, with respect, because the purpose behind what is being done is clear, that is, the Commissioner has decided he wants sworn members to do operational work.

PN599

DEPUTY PRESIDENT SMITH: These persons will remain sworn.

PN600

MR MUELLER: Yes, they will, subject to the process that - - -

PN601

DEPUTY PRESIDENT SMITH: Those that he's seeking to transfer as property officers will remain sworn.

PN602

MR MUELLER: They will, but they will be placed into positions which can be described as operational or directly supporting the frontline operational duties.

PN603

DEPUTY PRESIDENT SMITH: They are not operational and held mostly by people who are operational.

PN604

MR MUELLER: Yes, but the essence of what occurs here is that they free up the positions to be occupied by operational members of the force.

PN605

DEPUTY PRESIDENT SMITH: Yes.

PN606

MR MUELLER: The Commissioner has essentially decided he shouldn't have positions for sworn members of the force which are occupied by people who are not doing police - - -

PN607

DEPUTY PRESIDENT SMITH: Can you assist me on how it frees up positions? Wouldn't it be creating additional positions where people would then have to be Aust qualified? If you're maintaining a sworn position but in a different location, how does it free up positions?

PN608

MR MUELLER: What has happened in this case is that the Chief Commissioner has been for the present time – and I'm not speaking about the interim order - compelled to acknowledge the reality that a number of band members have not taken up the options.

PN609

DEPUTY PRESIDENT SMITH: Yes, I understand how it frees up those positions when they take up the option.

PN610

MR MUELLER: Yes, but the Chief Commissioner has had to notionally scratch his head and say, "All right. My objective here is that I want to support operational policing to the greatest extent possible under our establishment. I want to move out the dedicated band members and effectively contract those numbers who might maintain a band in a civilian sense," but he's placed in a position where if that can't be fully effected now, fully effected by either those – one of the options was to convert to go through the recruit course and become operational frontline.

PN611

DEPUTY PRESIDENT SMITH: If you're right, he could issue that direction, couldn't he, subject to medical clearance?

PN612

MR MUELLER: Perhaps that was an option that was available to him but you can understand why, looking at the composition of the particular subgroup of sworn members that he was talking about, he quite reasonably decided that that was not a good idea. They ought to have some choices and those choices have been afforded. This is a less than ideal position so far as the members who haven't taken up the options.

PN613

DEPUTY PRESIDENT SMITH: Yes, and how does it free up 42 positions? Does the Police Commissioner then recruit another 42 who would then go through the academy to be Aust qualified and to go into operational roles?

PN614

MR MUELLER: I think that that's right, as I appreciate it, and indeed I'm not suggesting that the direction to fill these particular roles is not a direction to fill a role which is of no utility; quite the opposite. My instructions are that we need some people to perform those roles and therefore it does support the overall objective.

PN615

DEPUTY PRESIDENT SMITH: Are those roles filled only by sworn officers or also by CPSU, if I could put it that way?

PN616

MR MUELLER: I don't know the answer but I'll - - -

PN617

DEPUTY PRESIDENT SMITH: Civilian; non-sworn.

PN618

MR MUELLER: I will have a note passed to me about that. Our point is that it would be incorrect to characterise the purpose of the action being taken as industrial. Its fundamental purpose is organisational and to achieve an objective which the Chief Commissioner of Police considers is a very important objective.

PN619

DEPUTY PRESIDENT GOSTENCNIK: Mr Mueller, the decision in CFMEU relied upon what the full bench said in The Age case and in particular the passage of particular character that conduct that stands completely outside of the area of disputation and bargaining doesn't have the requisite industrial flavour. Here we have an announcement that's made in September that there's a proposal to civilianise, if that's a word, police bands. Thereafter there is a range of correspondence that's entered into. There's a dispute notification. Parties come here and participate in conferences. Agreements aren't reached. The Commissioner then says, "I'm directing you to perform work as property officers." Why isn't there some industrial connection here?

PN620

MR MUELLER: I would accept that there are, as it were, industrial consequences of the decision that has been taken, just like there was in the Mount Thorley case.

PN621

DEPUTY PRESIDENT GOSTENCNIK: And in The Age case.

PN622

MR MUELLER: And in The Age case there was a consequence in an industrial sense to which the union responded and responded aggressively, but that, in our submission, is not the relevant question. The relevant question is: to what end is the action directed? What is the purpose of the action? What is the motivation of the conduct which is impugned? If the answer to that is it's not to press a claim or to prosecute an industrial agenda but it is in fact to achieve an organisational objective quite outside any context of bargaining, then it does not have that character.

PN623

DEPUTY PRESIDENT GOSTENCNIK: Except the very basis of the power is in dispute and so you have a demand from the Police Association to the effect, "Well, Commissioner, you don't have the power to do what you're proposing to do," and the Commissioner says, "Yes, I do and here it is. I'm going to do it."

PN624

MR MUELLER: Yes, but our response to that is to say that's the union saying, "We've got a legal argument that you don't have that power." That does not colour the action as having an industrial purpose. One has to return to that question again.

PN625

DEPUTY PRESIDENT SMITH: Sorry, the way you put that makes me only slightly nervous if the proposition is advanced before me on another occasion, "It's not industrial. It's political. We're on strike. We don't want Medibank changed."

PN626

MR MUELLER: Yes; yes; yes, that argument is available. There are just a couple of other things that I wanted to draw attention to as far as this argument is concerned. You'll see that under section 419 - - -

PN627

COMMISSIONER JOHNS: Sorry, Mr Mueller, are you moving on from the definition of 19(3)?

PN628

MR MUELLER: For the purposes of this particular argument, yes. I do intend to return to say that in any event this is not an instance of employees being locked out from their employment in the sense of they being prevented from performing work under their contracts of employment. I do intend to address that issue.

PN629

COMMISSIONER JOHNS: I have a question on that when you come to it.

PN630

MR MUELLER: Yes.

PN631

DEPUTY PRESIDENT GOSTENCNIK: For present purposes for the industrial-character argument you say that we don't need to be troubled by that. Even if the conduct is conduct which would otherwise fall within the definition of "lockout", because it's not of an industrial character, it's not industrial action.

PN632

MR MUELLER: That's right, and to complete the circle, that means that a jurisdictional condition has not been satisfied and the interim order can't stand and the application can't be granted. I just wanted to draw attention before I left the argument to this: if one looks at section 19, one sees the note under section 19(1). I draw attention to it because that's the proposition that I've been developing and which was, as it were, approved in the Mount Thorley case.

PN633

DEPUTY PRESIDENT GOSTENCNIK: You will find that I acted for The Age Company in that case.

PN634

MR MUELLER: So it seems that the legislature has set out to approve that construction and application of the definition. Now, I turn to the argument based upon the Referral Act. Members of the bench as presently constituted may be more or less familiar with the Referral Act. It does have a special application with respect to law enforcement officers. The setting in which this argument is put is, of course, that in the main the Fair Work Act is supported by the constitution or power of the Commonwealth to make laws with respect to trading to foreign corporations and trading financial corporations.

PN635

The way that's been picked up in the legislation is that the expressions "employer" and "employee", unless otherwise indicated, refer to – the expression "employer" refers to a constitutional corporation and "employee" refers to employees of a constitutional corporation. That is true of section 418 of the Act, as is apparent, and this is the custom in this Act to define at the beginning of the relevant part the meaning of "employee" and "employer" because in some circumstances the meaning is enlarged. In section 407 the commission will see that in this part "employee" means a national system employee and "employer" means a national system employer.

PN636

The employer in this case – no controversy about this – is the Chief Commissioner of Police and that person is not a constitutional corporation. Even if it was an agency – well, there's no question that it's not an incorporated entity. It's a bit like, but slightly different from, a government department so it's not a constitutional corporation. How then do the provisions of Part 3-3 reach potentially the Chief Commissioner of Police? They do by reason of the fact that the other basis upon the other constitutional foundation for this legislation relevantly is a referral of the state legislative power, a source of legislation power which is equally recognised in section 51 of the Australian Constitution.

PN637

As I think is well known, Victoria referred, subject to important exceptions and exclusions, industrial powers to the Commonwealth back in 1996. Because of the way in which the Fair Work Act was configured, it needed to reconcile and agreed to reconcile with it its referral to the Commonwealth by a new Act which it enacted in the provisions of the Fair Work Commonwealth Powers Act 2009, a Victorian statute. So that's how relevantly the Commonwealth has some power to enact legislation which confers power on the commission to deal with matters that would otherwise be beyond the legislative reach of the Commonwealth.

PN638

If the members of the bench would go to tab 19 of the folder of legislation and authorities, you will see on page 11 of that Act, section 4(1) there is the relevant reference of state legislative power to the Commonwealth. You will see the reference in section 4(1)(b) to the referred subject matters. There's a rider added that those matters are referred but only to the extent of being carried forward in the Fair Work Act, if I could put it in those broad teams.

PN639

That takes one to the definition of "referred subject matters". That is found in subsection (3) on page 5 of the legislation. Relevantly in subparagraph (c) of that definition of "referred subject matter", "Rights and responsibilities of persons, including employees, employers, independent contractors," and so forth relating to any of the following and (iv) is industrial action. So there is a referral of state legislative power to the Commonwealth to enact provisions in the Fair Work Act and to enact them in a particular form which is annexed to the Referral Act with respect to industrial action.

PN640

That would allow, subject to the important things I'm going to say in a moment, the – that would authorise the Commonwealth parliament to confer power on the commission to make stop orders in relation to employers who are not constitutional corporations in Victoria. However, that reference of power is subject to section 5 and you'll see that that's what section 4(1) says, "Subject to section 5, the following matters are referred."

PN641

Section (5) plainly has its genesis in RE AEU, the recognition by the High Court of one aspect of the implied limitation principle found to be embodied in the constitution. That aspect that relates to particularly industrial matters is sometimes – and perhaps a little inaccurately for reasons I'll show in a moment – treated as a legislative enactment of that limitation expressed in Re AEU. You'll notice that it includes the exclusion of matters pertaining to the number, identity or appointment other than terms and conditions of appointment of employees in the public sector who are not law enforcement officers.

PN642

So you don't look in section (5)(1)(a) for the relevant exclusion as far as law enforcement officers, an expression which is defined on page 4 in the definitions. The commission sees on that page "'Law enforcement officer' means any of the following: a member of the force within the meaning of the Police Regulation Act". Our submission on that is that there's no question that that's what the particular people here are. Just going back to the exclusion in 5(1)(a) and 5(1)(b) matters pertaining to the number and identity of employees to be dismissed – that's not relevant. I ought not have referred to that. What is important is to then go to section 5(2) because this is the relevant exclusion:

PN643

In addition to the matters set out in subsection (1) the matter referred by section 4(1) does not include matters pertaining to the number, identity or appointment, including terms and conditions of appointment to the extend provided for in paragraph (b).

PN644

Now, just notice that there's a difference. The excision with respect to law enforcement officers with respect to the number identity or appointment is larger than that which generally applies under section 5(1)(a) because 5(1)(a) excludes or accepts from the exclusion terms and conditions of appointment. For law enforcement officers it's different. It includes terms and conditions of appointment with the rider that it's to the extent provided for in paragraph (b). To ascertain the width of the exclusion so far as the subject of appointment is concerned it goes to matters – matters of appointment, if I could put it this way, that pertain to probation, promotion, transfer from place to place or position to position and then there are certain irrelevant exceptions, irrelevant for the purposes of this case.

PN645

So the consequence of that legislative referral and situation is that if the subject of the application here pertains to the number, identity or appointment of law enforcement officers, appointment including matters pertaining to transfer from place to place or position to position, the Commonwealth has had withheld from it the legislative power of the State of Victoria to enact laws that regulate those matters. That means, in accordance with ordinary principles, if section 4(1)(8) in conferring a power on this commission or section 420 in conferring a power on the commission to make an interim order – I should say when the Commonwealth has conferred power in respect to those matters, that power must be read down so that it does not extend to an application to matters pertaining to numbers, identity or appointment in the sense which is mentioned in section 5(2)(a) and (b) of the Referral Act.

PN646

Now, in a funny sort of way we know that the application was directed to the direction given by the Chief Commissioner on 30 December. At one level it doesn't matter whether the Commissioner had or did not have power to do what he's doing. Of course our emphatic submission is that he did, but the real question is: is he doing what he's doing in respect of any of those matters?

PN647

DEPUTY PRESIDENT GOSTENCNIK: Mr Mueller, is there a distinction in terms of understanding the scope of the exclusion between appointment and employment, that is, you will see that elsewhere, for example, in (i) that "termination of employment" is used rather than "appointment", and so on one view at least the term "appointment" is a much narrower concept than that which occurs at the beginning.

PN648

MR MUELLER: Yes.

PN649

DEPUTY PRESIDENT GOSTENCNIK: So including terms and conditions of appointment is referable only to the terms and conditions of appointment at the beginning so far as they relate to place, location, et cetera, but what is done thereafter is done in employment and so then a transfer to another position in employment is not excluded.

PN650

MR MUELLER: It's an ingenious proposition and in one way a tantalising one but the problem for it – and a problem with emerges in this case – is that the words that go on in section 5(2)(a) and in the expansion of appointment in 5(2)(b) make it, we say, apparent that the draftsman is referring to actions that occur after initial appointment, if I could put it that way, because as soon as you refer to matters pertaining to probation, that's after appointment. Promotion – that's after appointment. Transfer from place to place or position to position – surely that's after appointment.

PN651

DEPUTY PRESIDENT GOSTENCNIK: I accept that those things can occur after appointment, but it's the "including terms and conditions of appointment" that give meaning to that which follows in (b). It's a matter pertaining to the appointment so you can't make laws which interfere with the appointment and you can't make laws which interfere with the terms and conditions of the appointment. So if the appointment provides for particular terms and conditions that will occur later in relation to probation, transfer, et cetera, one can't interfere with that, but what happens after that is not about the appointment as such or the terms and conditions of the appointment but it's the exercise of transfer in the context of employment. I'm just wondering whether there was in fact a difference in that there's a much narrower meaning to be given to the carve out than it might at first blush appear.

PN652

MR MUELLER: We would say two things about that. First, we do say that the evident purpose of this is to preserve the discretionary power of the Chief Commissioner with respect to law enforcement officers. The Victorian parliament seems to have deliberately set out to do that and, indeed, it's arguable that this formulation extends beyond what the High Court said in Re AEU, but that doesn't matter a bit. It doesn't matter because it's the referral which is the only source of powder for the Commonwealth as far as law enforcement officers are concerned.

PN653

I'd submit that one gives a fulsome construction to what is accepted there and related to that, if it were otherwise and the position was, as your Honour has developed as a testing proposition – if it was that way, then it would appear to undo the very thing that it is apparently aimed at doing and you'd expect it to do, namely, we're dealing with the Victoria Police Force. The Chief Commissioner needs to have the most ample capacity to deploy/organise that force in the way that he or she considers appropriate.

PN654

DEPUTY PRESIDENT GOSTENCNIK: That might be a basis more generally to suggest, putting aside the Referral Act, that because of the critical nature of police to the capacity of the State to operate as a government, any interference in operational decisions goes too far from a Commonwealth legislative perspective.

PN655

MR MUELLER: Yes, I'd embrace that proposition. That is correct. That would be consonant with the very basic informing principle behind the implied limitation of which this is an expression, albeit an extended expression in this case.

PN656

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN657

MR MUELLER: Now, again just to complete the circle on that argument, even if it be said that on the face of the 30 December direction that what was being invoked was the 8AC power which was a transfer from place to place, to support our argument one has to say - - -

PN658

DEPUTY PRESIDENT GOSTENCNIK: That's what the Commissioner said he was doing.

PN659

MR MUELLER: Yes; yes, he did say that, but we'd say that in a sense that doesn't matter.

PN660

DEPUTY PRESIDENT GOSTENCNIK: No, I understand that, but it's unsurprising that the union is saying that that is the power under which he acted - - -

PN661

MR MUELLER: Yes, I don't criticise that, but in the end it has to be analysed.

PN662

DEPUTY PRESIDENT GOSTENCNIK: Yes, I understand.

PN663

MR MUELLER: I don't want to labour the point but the question is the correct categorisation of the nature of the action. It doesn't even matter whether the power is there.

PN664

DEPUTY PRESIDENT GOSTENCNIK: Yes, I understand.

PN665

MR MUELLER: If we're wrong about that, the power is there – and that's the next thing I need to deal with. It is part of the Referral Act point. I want to deal with this as quickly as I can. I think I'll be about another half an hour. I have travelled over this ground already to a certain extent. The power - as I've already said, to do what the Chief Commissioner is doing here is contained in section 8 alone and read with the oath-taking section and the terms of that oath. We say that that amply supports the existence of a power in the Chief Commissioner to decide in his discretion to transfer these band members to a position which has different responsibilities.

PN666

Questions of implied terms and so forth are not to the point because they are trumped by the legislative regime in that respect. There was a little bit – and again I don't say this pejoratively, but the matter was a little bit clouded when it was put to the presiding member originally because it was really put on the basis you look at subsection (3) and the definition of "industrial action" and you see that it refers to employer who locks out employees from their employment if the employer prevents employees from performing work under their contracts of employment.

PN667

That was regarded as providing a licence to advance the proposition that you put aside the powers and the terms that apply to the appointment of law enforcement officers. That is, in our submission, incorrect because what was in essence submitted to the presiding member was, "Forget the statutory regime. There are authorities out there that say you can have an implied term in a contract and you only need to consider the common law side of the band members' appointment." That's not the way the provision works and it doesn't say that.

PN668

What section 19(3) says is it doesn't direct attention to the terms and conditions of the common law contract of employment. It doesn't do that. What it is saying is that the foundation of a person's relationship with their putative employer is a contract or agreement and if what is being done is an instance of the employer holding out the employee from what they are entitled to under the terms of that engagement, then that constitutes a lockout, subject to the industrial-character point.

PN669

That's the way the provision is worded. It accepts as its premise that in any putative employer-employee situation there's the contract or agreement. So that means that the question is: what's the agreement? That's where the decision of Gillard J comes in. We will just hand up a copy. Just while I remember I ask that the folder of correspondence be marked. My friend might want to reserve his position about admissibility and so forth, but I do formally tender it.

PN670

MR IRVING: I've got no objection to that.

PN671

MR MUELLER: Thank you.

PN672

DEPUTY PRESIDENT SMITH: I will mark that VICPOL1FB.

EXHIBIT #VICPOL1FB FOLDER OF CORRESPONDENCE

PN673

MR MUELLER: Turning to the decision of Gillard J in the Arthurson case, again the headnote adequately expresses the factual context and the nature of the legal controversy that was raised. It concerned a number of members of the force who had been employed or had been stationed at residences associated with police stations and who were subsidised in that respect and a decision was made for the force to relinquish its properties in that respect. The members of the force concerned sought declarations on the basis that it was a term of their contractual arrangements that so long as they held the position of station commander they would be entitled to subsidised housing, so they sought declarations in that respect.

PN674

You will notice the summary holding against two but really one does need to look at the full analysis of the terms of the relationship between a member of the force and the Chief Commissioner of Police. That's deal with from paragraph 152 onwards. I don't intend to read the whole of these paragraphs but the nature of the argument is very thoroughly canvassed there, but one gets to paragraph 169 on page 206 and there's a reference to the nature of the contract and the rights given to a member of the force were discussed by the Full Court in Power v R and then his Honour refers to that case and at paragraph 174 recites a passage from the case which goes to the nature of the relationship. You will see that in that passage taken from the judgment of the Full Court it said – and this is a reference to the basis upon which a member of the force is engaged. In the passage it says:

PN675

By it the petitioner promised to serve as long as it would please Her Majesty to employ. On this condition his promise was accepted. But this does not include a mutuality or reciprocity of contract and liability. There is in fact but one contracting party, that is, the petitioner. Nothing can be clearer than that the engagement entered into is unilateral only, not mutual. It binds him to serve, but does not oblige Her Majesty to retain him in her service beyond the period which circumstances may render necessary.

PN676

That's an observation as to the right to terminate at pleasure. The point I draw out which is taken up by his Honour is the nature of the agreement that subsists between a member of the force and the Chief Commissioner and at 179 his Honour says this:

PN677

The Act establishes a contract, but a contract with very few rights enforceable by a member of the force. These common law propositions are, of course, subject to any contractual term to the contrary and, of course -

PN678

and this is the part we have notionally underlined -

PN679

subject to statute.

PN680

His Honour goes on to develop that point. You will see at paragraph 186 he says, "In Bertram v The King Herring CJ considered the authorities relating to legislation similar to section 13(3)." He said:

PN681

These authorities ... make it clear that the contract that arises from the taking of the oath is entirely unilateral, that the obligations arising therefrom are obligations resting upon the member of the police force who takes the oath and not the Crown.

PN682

And then his Honour goes on to refer to a qualification that that unilateral nature of the relationship is qualified by the fact that there is an obligation upon the Crown to pay for services rendered that one would think would be a fundamental basis of a contract of engagement of any sort.

PN683

COMMISSIONER JOHNS: Sorry, Mr Mueller, maybe I can step in here then. Where his Honour said, "The Act establishes a contract, but a contract with very few rights enforceable by a member of the force," you say that would be a reference to the written agreement in section 13(3).

PN684

MR MUELLER: Yes.

PN685

COMMISSIONER JOHNS: Is that written agreement or that contract his Honour referred to something other than a contract of employment?

PN686

MR MUELLER: It seems to be accepted by his Honour - I think I'm right in saying this - that that is a statutory contract of employment. It might not exactly correspond with what we would instinctively think is a contract of employment.

PN687

COMMISSIONER JOHNS: Yes, because I wondered whether the contract that is formed or the written agreement that is formed by 13(3) falls within the definition of a "contract of employment" in 19(3) at all.

PN688

MR MUELLER: Yes. Our submission is that it is that contract of employment. In fact that's the contract of employment. It must be, in our submission. I should put this - - -

PN689

COMMISSIONER JOHNS: The type of contract that exists between the Chief Commissioner and a member of the force is not a contract of employment. It would therefore never fall within the definition of 19(3).

PN690

MR MUELLER: Yes.

PN691

COMMISSIONER JOHNS: Nothing the Chief Commissioner ever did could be considered a lockout.

PN692

MR MUELLER: And that would do too much violence to the proposition that there is a power – there are powers available to the Commonwealth to legislate in respect of rights and responsibilities of members of the Victorian police force. Your Honour has anticipated the final aspect of the argument that I want to put, that is, the way the Fair Work Act applies and operates with respect to members of Victoria Police is to deem the Chief Commissioner to be an employer and deem the members of the force to be his employees.

PN693

COMMISSIONER JOHNS: So you say that means there's an implication in that - there's a deeming that between the notional national employer and national employee there's a contract of employment.

PN694

MR MUELLER: Yes, and that is one has to apply subsection 19(3) to the legal situation that presents itself and the legal that presents itself is that in this case by the operation of section 30D of the Fair Work Act the Chief Commissioner of Police is the employer and the members of the force are the employees and that means that the inquiry as to what is the contract of employment for the purposes of section 19(3) must be an inquiry into the instrument, if I could put it in those terms, that governs that relationship.

PN695

COMMISSIONER JOHNS: You say that's 13(3).

PN696

MR MUELLER: That's 13(3) and, indeed, section 8.

PN697

COMMISSIONER JOHNS: Yes.

PN698

MR MUELLER: That's a statutory contract. The additional point is that means that in deciding whether or not employees are being prevented from performing work under their contracts of employment and therefore whether what is being done here is a lockout so as to constitute industrial action one has to decide whether or not the Chief Commissioner of Police – that's not strictly correct. It's better if I put it this way: whether or not the band members are – I'll go back a step. What are the band members contracted to do? It might be true that they have been appointed to a special category. It might be correct to say that they have attributes and skills which suit them particularly to the role of musicians in police bands.

PN699

It is, generally speaking, correct to say that they are not as things presently stand qualified to exercise frontline operational duties, but it doesn't follow from that that the work which they may be directed to do and the positions which they may be directed to fill have to be musicians' positions; they have to be members of the police band. The true position on the basis of our analysis of the legislation and the nature of what I've referred to as the statutory contract is that they may be directed to do different things. They may be directed to occupy different positions and therefore the conduct of the Chief Commissioner of Police in so directing them to do cannot constitute a lockout for the purposes of the definition in section 19(3).

PN700

The question that Johns C put to me has actually meant that I have been able to cover the essentials of the last argument that we proposed to put. Just pardon me for one moment. I must be getting weary. I didn't really finish my travel through the decision of Gillard J.

PN701

DEPUTY PRESIDENT GOSTENCNIK: Mr Mueller, while you have got that decision in front of you, at paragraphs 118 and 119 his Honour is referring to the unilateral nature of the contract that's created by 13(3) and then he says in 189, "Side by side with the statutory contract" - that is, the 13(3) contract – "are the provisions of the Act and also the Regulations. Although the provisions of the Act and Regulations are not part of the contract of employment" – is his Honour there referring to the statutory contract because he then goes in 190 and say, "In a contract between an employee and the Crown, at common law" – which would be the common law contract of employment. There's no right to terminate on the part of the employee but the statute steps in to allow the employee to resign. On one view of what his Honour is talking about is he's identifying three separate sources of rights, the statutory contract by 13(3), the common law contract of employment and the Act and Regulations which don't form part of the contract of employment but, nevertheless, the contract of employment is subject to it.

PN702

MR MUELLER: Yes. I would accept that analysis and in bundling up the propositions that I put before I rather obscured the point. It is correct to say that that – at least I'd submit what your Honour has said is a correct reading of what his Honour is there saying, but the important proposition, in our submission, is that, as your Honour mentioned, his Honour goes on to say in the remainder of paragraph 189 "all parties are bound to comply with the Act and Regulations, and the contract of employment is subject to the statutory provisions".

PN703

Where my proposition might be criticised or a contrary proposition might be put by my friend, "Well, hold on a moment. The expression in section 19(3) says 'contract of employment'". Again I recognise there is a separate contract of employment and it's that to which you look to. Our submission in that respect is that as a matter of statutory construction what section 19(3) is directed at is determining whether or not the putative employee is kept out of work which the employer may demand of them.

PN704

DEPUTY PRESIDENT GOSTENCNIK: Whether it's under the contract or under the statute.

PN705

MR MUELLER: That's right. That is our simple proposition and we say that that makes eminent sense. It would be strange if it were not so. It is a natural extension of the idea but the Act happens to pick up a category of putative employees and employers who don't just have an ordinary employment relationship, if I could put it that way. So that's our submission in that respect and we say that the judgment of Gillard J sits perfectly comfortably with that proposition.

PN706

What I have sought to do in those submissions is to put forward the essential propositions upon which the Chief Commissioner of Police relies in saying that the interim order and ultimately any order made under section 14 would not have a foundation in power or jurisdiction. As I appreciate it, that is in a context where the bench is considering whether the interim order ought to be revoked. I didn't apprehend, although I'm not sure that my submissions would be any different, that your Honours were hearing an argument in support of the proposition that the application for orders under section 418 is not competent. If I'm wrong in that respect, I would in any event rely on the submissions that I've made.

PN707

DEPUTY PRESIDENT GOSTENCNIK: I imagine that you would.

PN708

MR MUELLER: Unless I can be of any immediate assistance, there are a couple of things that I do need to follow up, factual matters, I think.

PN709

DEPUTY PRESIDENT SMITH: Thank you. We are just going to adjourn for five minutes.

<SHORT ADJOURNMENT [6.15PM]
<RESUMED [6.19PM]

PN710

DEPUTY PRESIDENT SMITH: Given the way this matter has progressed, we have decided to expedite as best we can and therefore we propose the following: we are going to sit next Thursday at 9.30 to further consider the matter. We direct that Victoria Police provide to the Police Federation of Australia the materials sought in items 1(a) to (f) of the Police Federation of Australia's draft order by close of business next Tuesday. The exception is that we only require at this stage position descriptions applicable as at 1 January 1992 and up to the time that the Chief Commissioner directed the change in duties. Are there any questions about what we have given?

PN711

MR IRVING: No, your Honour.

PN712

MR MUELLER: Of course that's the direction that the full bench makes. I just indicate I haven't actually – perhaps I should have but I haven't received instructions about its capacity to meet the requirement.

PN713

DEPUTY PRESIDENT SMITH: After you have done that you can make application if you wish to amend the directions that you seek.

PN714

MR MUELLER: Yes, that was the simple indulgence I'd like to reserve.

PN715

DEPUTY PRESIDENT SMITH: Thank you. The order remains, if that's your next question.

PN716

MR MUELLER: Yes, your Honour.

PN717

DEPUTY PRESIDENT SMITH: We have had regard to the time frame that you have elicited and we are concerned, of course, to hear Mr Irving's response to the arguments that you have raised.

PN718

MR MUELLER: Of course. Just on a factual matter or a question that fell from the bench - I think it certainly fell from the presiding member as to how this particular direction of band members into property officer roles freed up or expanded operationally resources.

PN719

DEPUTY PRESIDENT SMITH: Yes.

PN720

MR MUELLER: I covered it in part but I missed an important matter. The important matter is - - -

PN721

DEPUTY PRESIDENT GOSTENCNIK: Does that mean your other matters weren't important?

PN722

MR MUELLER: A matter of equal importance. The bench shouldn't be under any apprehension that the role of property officer is an inconsequential one. It's not. It is an essential part of the ultimate execution of operational duties. It includes things such as the custody of property and exhibits and matters to do with - - -

PN723

DEPUTY PRESIDENT SMITH: That wasn't the point of my question. The point of my question was: how did it free up 42 positions?

PN724

MR MUELLER: Yes. Having said that, the relationship is this: a variety of different types of employee perform the property officer role, but operational police, as things presently stand, do and to the extent that they can be relieved of those duties they are free to perform frontline operational duties. That is a matter of consequence, I am instructed, as far as the Chief Commissioner of Police is concerned.

PN725

DEPUTY PRESIDENT SMITH: Perhaps on the next occasion you could let me know how many of those persons are operational and hold Aust qualifications.

PN726

MR MUELLER: Yes.

PN727

DEPUTY PRESIDENT SMITH: Thank you.

PN728

MR IRVING: Sorry, there's one other matter, your Honour, which is this: next Thursday is the first day of the school year for children starting kindergarten.

PN729

DEPUTY PRESIDENT SMITH: Would you like to start a little later?

PN730

MR IRVING: Is that possible, your Honour?

PN731

DEPUTY PRESIDENT SMITH: Of course. What time?

PN732

MR IRVING: Would 10.15 be convenient to the bench?

PN733

DEPUTY PRESIDENT SMITH: That would be convenient.

PN734

MR IRVING: Thank you very much.

PN735

DEPUTY PRESIDENT SMITH: We were just anxious to get through the day, that's all.

PN736

MR IRVING: Yes, I understand.

PN737

DEPUTY PRESIDENT SMITH: I'm well aware and 10.15 will be fine.

PN738

MR IRVING: Thank you.

PN739

DEPUTY PRESIDENT SMITH: The matter is adjourned until that date.

<ADJOURNED UNTIL THURDSDAY, 30 JANUARY 2014 [6.24PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #PFA1FB WITNESS STATEMENT PN484
EXHIBIT #VICPOL1FB FOLDER OF CORRESPONDENCE PN673