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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1056205
COMMISSIONER WILSON
C2017/3833
s.739 - Application to deal with a dispute in relation to flexible working arrangements
The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria
and
Victoria Police
(C2017/3833)
Victoria Police (Police Officers (excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015
(ODN AG2016/2526)
[AE418283 Print PR578166]]
Melbourne
10.07 AM, MONDAY, 23 JULY 2018
PN1
THE COMMISSIONER: Good morning, parties. I note that the appearances are the same as the mention last week. So are there any preliminary issues that need to be dealt with?
PN2
MR HARDING: In the sense, Commissioner? What did you have in mind?
PN3
THE COMMISSIONER: Anything you want to raise first, otherwise let's move straight on to it.
PN4
MR HARDING: I thought potentially there is an argument we wish to raise around relevance of some of the material relied on by the respondent. It seems to me something that we would ordinarily raise as the witnesses are called. But having said that, for the purposes of efficiency it seems to me something that we can deal with at the outset perhaps after I open and that way is how I intended to handle the subject, at the Commissioner's convenience.
PN5
THE COMMISSIONER: All right, and would that be a good way forward, Ms Preston, too?
PN6
MS PRESTON: No problem, Commissioner.
PN7
THE COMMISSIONER: All right. So you plan to put an opening to the Commission?
PN8
MR HARDING: Yes, a brief one. I think, Commissioner, you are already fairly familiar with the details around the application and having dealt with the dispute once it came into the Commission until this point. I perhaps should mention that the applicant has filed an outline of submissions and in chief a witness statement from Detective Leading Senior Constable Mr Emery, Detective Sergeant Nolan and Detective Leading Senior Constable Mitchell.
PN9
In addition we filed four reply statements, one from Mr Emery and three others, one from Detective Senior Constable Brock, another from Detective Leading Senior Constable Sweetman and another from Detective Senior Constable Simpson, and we're advised by the respondent that none but Mr Emery are required for cross‑examination. We also at the same time as we filed reply statements, we filed a reply submission and I perhaps should formally seek leave to file that.
THE COMMISSIONER: All right, very well, we'll mark the applicant's outline of submissions as exhibit A1.
EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSIONS
THE COMMISSIONER: And then the outline of submissions in reply on behalf of the applicant as exhibit A2.
EXHIBIT #A2 APPLICANT'S OUTLINE OF SUBMISSIONS IN REPLY
PN12
MR HARDING: And, Commissioner, just by way of anticipation the objections that we have raised will follow from the reply submissions. But before I get to that point perhaps if I can just identify what we say are the key issues in this application, and I propose to take you briefly through the enterprise agreement which is Annexure A to the submissions filed by the applicant. Without wishing to canvass or restate what has already been said in writing there are a number of features of the application which are of significance.
PN13
The application by Mr Emery which was made on 2 May 2017 is an application to compress existing working arrangements which currently for a detective in the unit he serves are eight hours over five days into one that is 10 hours over four days. The evidence we say will show that this is a work environment that is suitable for such an arrangement, and that is so whether or not it is considered from the perspective of the divisional response unit, which is where Mr Emery was located at the time that he made his application, or whether that application is considered in the context of the current or his substantive role in the criminal investigation unit.
PN14
Much of the work of a detective in these units is on the evidence we say administrative. The estimate given by Mr Emery in paragraph 20 of his reply statement is 80 per cent. Other reply witnesses have given varying estimates none of which drop below 50 and most of which occur at a larger percentage than that. It's also significant for reasons that will become apparent when I take you to the agreement that the evidence is the rosters are organised on a fortnightly basis. Mr Emery's evidence is that he routinely works in excess of eight hours now and his evidence is or will be that if he was to work a 10 hour day over four days this is correspondent with the manner in which he currently performs his duties, and in fact is correspondent with the manner in which he produces his work. In other words it will be a productive and efficient way of him performing the work essentially along the lines that he currently performs it.
PN15
The evidence will show that the work performed by detectives is essentially an individual allocation. In other words a detective takes on an investigation and performs it to conclusion, calling in resources from other members of the team as and when required. It's of significance that on the evidence there are two shifts, two types of shift which a detective in the DRU or the - well, in the criminal investigation unit, I apologise, are required to perform. These are the crime duty shift which is allocated three to four times in a fortnight and the response shift which the evidence shows are allocated two to three times a fortnight.
PN16
THE COMMISSIONER: Sorry, how long did you say the crime duties shift was allocated?
PN17
MR HARDING: Three to four times a fortnight.
PN18
THE COMMISSIONER: Right.
PN19
MR HARDING: That is significant as much for this reason, Commissioner, which is that we're not here talking about someone who is absent from work on an unplanned basis. What we're talking here about is changing an arrangement on an ongoing basis which enables the rostering sergeants to plan and accommodate the new arrangements in a way that corresponds with the existing work, which means that in terms of the allocation of the crime shift and the allocation of the response shift the rostering sergeant has an opportunity to take into account the changed arrangement that is being proposed on a planned basis. There will be evidence that the changed shift arrangements do not cause concern for those supervising sergeants who are in charge of rosters.
PN20
If I can turn to the agreement, Commissioner, and just identify some features of it and perhaps it's always I think of assistance to go through it chronologically. The foundation for the proceeding before you is section 739 of the Fair Work Act which requires the conferral of powers under a disputes clause pursuant to an enterprise agreement or some other industrial instrument. Here it's an enterprise agreement. We draw attention to clause 10.2 of that agreement on page 9 which undoubtedly confers jurisdiction on or power on the Commission to resolve disputes pertaining to matters arising whether under the agreement directly or under the National Employment Standards, and expressly section 65 of the Act which is the relevant flexibility - the source of the flexibility application that Mr Emery made.
PN21
Clause 14 of the agreement on page 13 is the source of the right to request a flexible working arrangement and it's notable, Commissioner, that the criteria which engages the right is that the applicant be 55 years of age or older. That engages the right to request a change to working arrangements. The phrase "working arrangements" is not defined in the agreement and is a factual question. Plainly, working arrangements can accommodate the arrangements prescribed by the agreement itself and also arrangements that are in the ordinary course of how work is required to be performed or arranged to be performed by the respondent.
PN22
The way to read this clause, Commissioner - we'll make final submissions about it but the way to read this clause of course is that it carves out an exception to the ordinary prescriptions contained in the agreement for other employees covered by it in the event that one of the matters referred to in (a) to (f) of clause 14.1 apply, triggering a right to request the change. Now true it is that the employer is then obliged to respond and the onus is on the respondent to identify reasonable business grounds if it's to refuse, otherwise it must approve. So if you look at it that way the starting point of the agreement and section 65 is that a request for flexible arrangements will be approved unless the employer is able to show reasonable business grounds justifying a refusal.
PN23
The ordinary hours of work prescriptions are contained in clause or Part 5 of the agreement which commences on page 23, and clause 25.1 tells us that ordinary hours are configured over a fortnight of 80 hours and, Commissioner, you'll recall my earlier contention that the evidence will show that rostering is undertaken on a fortnightly basis, which corresponds with the parameters of clause 25.1. The arrangement proposed by Mr Emery is entirely consistent with 25.1. Clause 30 of the agreement on page 25 is a clause relied on by the respondent and it states the ordinary hours of work for employees will be eight hours per day worked continuously. Of course it doesn't state that those eight hours have to be worked over five days.
PN24
In some respects, Commissioner, the clause 13.1 is a bit of a nominal clause for detectives in receipt of the CO2 - sorry, the COT. If I can just refer to it as the COT that might make it easier - because clause 46 which is on page 32 contains something of a code in respect of working arrangements for those entitled to receive the COT.
PN25
THE COMMISSIONER: Sorry, which clause was that? Sorry.
PN26
MR HARDING: 46.
PN27
THE COMMISSIONER: 46, thank you.
PN28
MR HARDING: The COT doesn't apply to every single employee. It applies to particular employees including of course Mr Emery as a detective. I don't think there's any controversy, but to clear it up, Mr Emery is in receipt of the COT 2, not the COT 1, and if you turn the page to page 33 - well, actually before you do that, sorry, clause 46.1 tells us about the circumstances in which the overtime allowance, the COT, is paid. It is paid in lieu of any payment for overtime worked or any recall in accordance with schedule B. Clause 46.10 tells us something about the intention for which COT is paid.
PN29
It's paid for overtime worked in the normal flow of work for detectives or employees with similar patterns of work, subject to 46.1 - sorry, 46.11. 46.12 is significant, Commissioner, in this case because what that tells us is that the employer will ensure that appropriate work practices are in place to reduce the possibility of employees working excessive hours, which are defined as 12. 46.13 tells us the consequence if work is performed in excess of 12. Now why that's significant here, it's significant because realistically the employer we will submit incurs no additional labour costs for work performed between eight and 12.
PN30
An employee who leaves eight hours and 10 minutes or 10 minutes after they finish their eight hour shift is entitled to receive the COT. An employee who works 11 hours and 59 minutes is entitled to receive the same amount of COT. The employer only incurs an additional cost once the hours of work on a day tick over to 12. So in the context of considering ordinary hours one has to look at it in this context from the perspective of a detective who's in receipt of COT and is subject to the special rules that apply in clause 46. Commissioner, perhaps if I could then turn to what we want to say about some of the evidence that's proposed to be led by the respondent, if it would be convenient to do so now?
PN31
THE COMMISSIONER: Sure.
PN32
MR HARDING: I can hand up a document I've provided to my friend.
PN33
THE COMMISSIONER: All right. Thank you.
PN34
MR HARDING: Commissioner, have you had an opportunity to read the reply submissions that have been filed by the applicant?
PN35
THE COMMISSIONER: I have. Whether it connects with this document, I haven't quite got that far.
PN36
MR HARDING: Okay.
PN37
THE COMMISSIONER: So you might need to explain that to me.
PN38
MR HARDING: I will. You'll see in the reply submissions in paragraph 5 that some submissions are made about what grounds are relevant and what we contend is that the only grounds that are relevant are those that are contained in Inspector Cornford's letter to Mr Emery dated 21 June 2017. Now Commissioner, that we say follows from the requirements of section 65 and clause 14 which of course we say follows section 65. The Act, section 65(6), requires that an employer who is seeking or who refuses a request has to (a) convey that response in writing and do so accompanied by its reasons and it must do so - communicate that response - to the applicant.
PN39
The paragraphs of the evidence that we draw attention to are paragraphs that express alternative grounds or additional grounds for why the applicant's request was not reasonable, on the respondent's case. There is no contention that I can apprehend - my friend will correct me if I'm wrong - that any of that material was conveyed to Mr Cornford - Mr Emery on 21 June. In other words at 21 June 2017 that email from Mr Cornford to Mr Emery contained the reasons that Mr Cornford refused, or Inspector Cornford, refused the request. In fact Inspector Cornford's evidence appears to be given on the basis that he did actually have additional reasons and he had a conversation with human resources and they advised him that the reasons he had at that time didn't need to be provided to Mr Emery as they constituted evidence of the existing reasons he already held.
PN40
He then gives some evidence about what he would have said if he had, I take it, had a free hand to convey to Mr Emery what he meant. Whatever he meant, whatever might have been in his mind then or later, the Act we say clearly contemplates a mode in which a refusal is to be conveyed. In other words the right of an employer to refuse on reasonable business grounds is a right to refuse in a particular manner.
PN41
In those circumstances it is not open, we say, to the respondent to communicate additional material to the Commission rather than to Mr Emery, on the hypothetical basis that these are additional reasons that it had but didn't communicate. Knowing the Commission's powers are broad in relation to its receipt of information and also to inform itself, that does not necessarily extend to admission of evidence that is otherwise irrelevant.
PN42
If I can refer - this is a Full Bench decision constituted by the presiding member of whom of course is the current President of the Commission, and in the course of this decision their Honours and Commissioner had to consider an alleged error in relation to exclusion by a Senior Deputy President of certain evidence on relevance grounds, and the answer to that is given in paragraph 35 of the reasons and you can see, Commissioner, that:
PN43
During the course of the proceedings below the Senior Deputy President excluded certain evidence on the basis that it was not relevant to the issues requiring determination.
PN44
Some observations are made about what the Senior Deputy President may have had in mind in relation to that. You'll note that the Full Bench upholds the Senior Deputy President's decision and reasons for excluding what evidence that he - I think it was a he - considered was irrelevant and that is at paragraph 38. Their Honours also, and Commissioner also dealt with at paragraph 62 the operation of section 110 of the then Workplace Relations Act which is in terms of that aren't dissimilar from the current provision that entitles the Commission to inform itself, and I draw your attention to square brackets [62] where they set out an observation of the New South Wales Industrial Commission, and the last sentence:
PN45
Common sense as well as the rules of evidence dictates that only evidence relevant to an issue which requires determination in order to decide the case should be received. This means that issues must be correctly identified and defined. This did not happen in this case.
PN46
And the paragraph that follows, the Full Bench agrees with those observations. It's apparent from what we say that the evidence that we object to is not relevant to the issue that requires determination by this Commission in this dispute and it shouldn't be received.
PN47
THE COMMISSIONER: Is that only in respect of the evidence of Detective Inspector Cornford or also the other two people as well?
PN48
MR HARDING: The other two people as well there's some evidence that we object to on similar grounds.
PN49
THE COMMISSIONER: Right, but do Hollowood and Cecchin go to further - if I can put it that way - further reasons for the decision?
PN50
MR HARDING: Yes. Yes.
PN51
THE COMMISSIONER: Right, okay.
PN52
MR HARDING: Inspector Cornford's perhaps most directly because he specifically says that he had additional reasons and goes on to elaborate these additional reasons. But the evidence of Inspector Cecchin is also evidence that travels beyond the grounds identified on 21 June 2017 and so is the evidence of Commander Hollowood in relation to the paragraphs that were put forward. Can I say, Commissioner, that the grounds are quite specific, the grounds on 21 June. There was only two.
PN53
Firstly that it would cost the respondent too much and secondly that it would lead to fatigue issues, and also a third which is that there was a potential for recall on the fifth day, and that's attachment C to - that's the email or the letter is attachment C to Mr Emery's statement. Now the evidence that is proposed to be given by Inspector Cornford concerns the position workplace harmony is one of the grounds relied on and parity with other detectives. Also there's some evidence proposed to be given about efficiency and practicality of accommodating the request.
PN54
THE COMMISSIONER: All right. Thank you. So is that all you wish to say about the relevance issue?
PN55
MR HARDING: Yes.
PN56
THE COMMISSIONER: All right, just one moment. I just want to review a couple of the paragraphs.
PN57
Ms Preston, I'd be guessing you might object to what is put by the applicant?
PN58
MS PRESTON: Yes. Obviously, Commissioner, we object to the submission that's made as well as the fact any submission that evidence is irrelevant, clearly the respondent's position is that all circumstances as applied at the relevant time are relevant matters and ought to be considered by the Commission in the resolution of the dispute. In terms of the basis that my friend puts the situation which is relying on section 65 of the Act and the statement of reasons, clearly that is plainly wrong with all due respect to my friend because even if the failure to include all the reasons might be in breach of section 65 of the Act, it can't be said to somehow limit the reasons which existed at the time on an objective assessment.
PN59
In addition I see that there's also paragraph 13 of Inspector Cecchin; the issue is raised that the inspector's views on COT are irrelevant opinion. The inspector is making that assessment based on his experience of COT. I note that the witnesses for the applicant lead extensive evidence on COT and the circumstances in which COT is paid and their views on what COT is, and even not to the extent that Inspector Cecchin's evidence is irrelevant, the witnesses of the applicant are also irrelevant.
PN60
THE COMMISSIONER: All right. That's all you wish to say?
PN61
MS PRESTON: Yes, Commissioner.
PN62
THE COMMISSIONER: All right. Thank you.
PN63
Mr Harding, I will admit the material. You may well be correct in the finality in terms of your interpretation of the relevant section and the effect of the enterprise agreement, however at the moment I do not make any finding about those matters. So I will certainly admit the material that you object to in respect of Detective Inspector Cornford.
PN64
The objections about Inspector Cecchin, his evidence, the evidence itself appears to be in a slightly different category but I still will admit it. But I think there will need to be obviously submissions at the end of the day about the extent to which it can be relied upon. Paragraph 20 for example goes to the question of consistency between Emery's hours and those of Nolan. I am not yet completely sure of the relevance, but that does not mean it is not relevant. Paragraph 22 in Mr Cecchin's statement clearly is a statement of opinion. Where that takes me, frankly I do not know. I hope we do not dwell on that too long in cross‑examination unless it is really pointed out to me why it is relevant to the decision.
PN65
In respect of Mr Hollowood the categories between 31 and 39 or the statements between 31 and 39 appear to go to some difficulties associated with coping with individual four by 10 rosters. Although it is not put in the category of cost I can understand an argument to the effect that those difficulties may eventually result in costs, which were part of the original reasoning given to Mr Emery. 45 to 58 in respect of the COT parity issue, again I think the best way to put that is that it may be relevant but at the same time it may not be relevant. It depends on I suppose how the case is argued before me. So at this stage I propose to admit those, each of those statements as they are presently set out.
PN66
There is however one matter I should raise with you both, if only I could find it. In Mr Emery's reply witness statement at paragraph 18 he responds to something said by Commander Hollowood at 23 of his statement, and it then goes into matters that were discussed within the conciliation conference or said to be discussed. I've got to say my recollection of that part of the conciliation conference is probably not very strong but I'll take the word of Mr Emery that that was raised in that sort of way, and I guess I need to raise with you both a concern about admitting that particular statement. That's not to say I won't do it but I just need to raise that as a concern.
PN67
Now it may well be that the best way to deal with the situation is to make equal changes to the statements of Mr Emery's reply statement and Mr Hollowood. But having said that, when I went to Mr Hollowood's statement it wasn't couched directly as something that was put within the conciliation conference. Do you have any initial views on those comments, Mr Harding?
PN68
MR HARDING: Commissioner, as you've observed paragraph 18 is purely responsive. If paragraph 23 of Commander Hollowood's statement is not relied on, we don't need to rely on paragraph 18
PN69
THE COMMISSIONER: Can you help me there?
PN70
MS PRESTON: Yes. Yes, Commissioner. Gary Emery's reply statement is obviously with matters that are to not be included in a witness statement. It will be Commander Hollowood's evidence that he was contacted by the police organisation outside of the conciliation and asked to deal with that particular issue.
PN71
THE COMMISSIONER: I see. All right. Well, look, I think the best we can do is deal with the situation at the time as the oral evidence arises.
PN72
MS PRESTON: Yes, Commissioner.
PN73
THE COMMISSIONER: All right.
PN74
So does that deal with the matters you wish to raise, Mr Harding?
PN75
MR HARDING: Yes, Commissioner, it does.
PN76
THE COMMISSIONER: All right. Thank you.
PN77
Now Ms Preston, do you wish to put an opening at this stage or would you prefer to do that after the applicant's case?
PN78
MS PRESTON: I'm happy to do that after Mr Harding's case closes.
PN79
THE COMMISSIONER: All right, thank you.
PN80
In that case we'll proceed with your case, Mr Harding.
PN81
MR HARDING: Thank you, Commissioner. I call Gary Emery.
PN82
THE ASSOCIATE: Could you state your full name and address.
MR EMERY: Gary Robert Emery, (address supplied).
<GARY ROBERT EMERY, SWORN [10.46 AM]
EXAMINATION-IN-CHIEF BY MR HARDING [10.46 AM]
PN84
THE COMMISSIONER: Thank you, Mr Emery. If you could please be seated.
PN85
MR HARDING: Mr Emery, is your name Gary Emery?‑‑‑That's right.
PN86
Is your address (address supplied) in the State of Victoria?‑‑‑Yes.
PN87
And are you a Detective Senior Constable currently located at Mornington Peninsula Crime Investigation Unit, Somerton Complex?‑‑‑Correct.
PN88
And have you prepared a statement headed "Gary Emery Witness Statement" which is dated I think it might be 1 April 2018?‑‑‑I did.
PN89
Yes?‑‑‑I did, yes.
PN90
And have you read that recently?‑‑‑No.
PN91
Would you like to?‑‑‑I have a good memory of it.
PN92
Is it true and correct?‑‑‑It is.
PN93
I tender that statement.
THE COMMISSIONER: All right, the witness statement of Gary Emery dated 1 April 2018, I think the date is, will be marked as exhibit A3.
EXHIBIT #A3 WITNESS STATEMENT OF GARY EMERY DATED 01/04/2018
PN95
MR HARDING: Mr Emery, have you filed a further statement titled "Reply Witness Statement of Gary Emery"?‑‑‑Yes. Yes I have.
PN96
Dated 19 June 2018?‑‑‑Correct.
PN97
Have you read that statement recently?‑‑‑I have.
*** GARY ROBERT EMERY XN MR HARDING
PN98
Is it true and correct?‑‑‑It is.
PN99
I tender that statement, Commissioner.
THE COMMISSIONER: All right, the reply witness statement of Gary Emery will be exhibit A4.
EXHIBIT #A4 REPLY WITNESS STATEMENT OF GARY EMERY DATED 19/06/2018
PN101
MR HARDING: No further questions.
PN102
THE COMMISSIONER: All right. Thank you, Mr Harding.
Yes, Ms Preston?
CROSS-EXAMINATION BY MS PRESTON [10.48 AM]
PN104
MS PRESTON: Thank you, Commissioner.
PN105
Mr Emery, you've given an address of yours as being in (town name supplied). You say that's your primary address. Do you have another residential address as well?‑‑‑Yes I do. I reside with family when I'm working.
PN106
So on days that you begin and commence shifts you live in a different address?‑‑‑Yes.
PN107
And if I can just hand you a copy of your flexible work request.
PN108
Commissioner, that's at JC1, annexure to the statement of Justin Cornford.
PN109
THE WITNESS: Yes.
PN110
MS PRESTON: So you see on that request you've signed off as "Gary Emery, Mornington Peninsula DRU"?‑‑‑Correct.
*** GARY ROBERT EMERY XXN MS PRESTON
PN111
And that was where you were located at the time of making the request?‑‑‑Yes.
PN112
And you see just above the comment in bold type if you just read that line "I am not requesting", just to yourself?‑‑‑Where are we?
PN113
You see where it says "Comment" in bold type?‑‑‑Yes. Yes.
PN114
The sentence above that?‑‑‑Yes.
PN115
You specifically said in your request that you weren't requesting a set roster or specific days of work?‑‑‑That's right.
PN116
And that was in recognition of the fact that your flexible work request was for work in the DRU?‑‑‑Yes.
PN117
And you knew that flexible rosters were required in the DRU?‑‑‑Yes.
PN118
Where there was just one crew?‑‑‑Well, the DRU at that time was effectively a fifth crew of the CIU which has similar flexibility requirements to the CI where I am now.
PN119
But there was just one crew that was allocated to the DRU?‑‑‑Yes.
PN120
Yes?‑‑‑Yes they were effectively - - -
PN121
And that crew - - -?‑‑‑- - - a second proactive crew in the CIU.
PN122
Yes, and in the Mornington Peninsula CIU they work rotating shifts with each other?‑‑‑Yes, absolutely. They work - the DRU provided members for night shift and afternoon and morning crime shifts. All members in the DRU did the same, effectively the same response work as the CIU at the time.
PN123
But the DRU comprised two detectives?‑‑‑That's right.
PN124
One of whom was you?‑‑‑Yes.
*** GARY ROBERT EMERY XXN MS PRESTON
PN125
And two to three seconded uniform staff?‑‑‑That's right.
PN126
And they were specifically allocated to the DRU?‑‑‑That's right, yes.
PN127
And the uniform staff were junior uniform staff?‑‑‑Yes, they were temporary secondments from the uniform. We have those secondments across the CIU. They're effectively in all our crews from a day to day, month to month basis.
PN128
And the other detective in the Mornington Peninsula DRU like you worked eight hour shifts?‑‑‑Yes.
PN129
And you accept, don't you, that it's the policy of Victoria Police that wherever possible, even with flexible work arrangements, shift lengths should be the same as shifts at the station to which a member is attached?‑‑‑I'm sorry, can you repeat that?
PN130
You accept that it's the policy of Victoria Police that if you are going to work a flexible arrangement, wherever possible shift lengths of that flexible work shift should be the same as the shift lengths as the place that you're attached to?‑‑‑I'm not aware of that policy but practically it doesn't happen all the time like that, no.
PN131
If the witness can be shown a copy of the policy. Commissioner, this is attachment G to the applicant's materials. I've just spoken to my friend. There are a number of attachments and materials that haven't been tendered because they're not appended to witness statements but we're happy to tender those by consent.
PN132
MR HARDING: Well do it one by one. I'm happy with the policy.
PN133
MS PRESTON: So the workplace flexibility policy, if we could tender that initially.
PN134
THE COMMISSIONER: Sorry, I'm still just digesting the attachments. So these were - - -
PN135
MS PRESTON: I believe they were attached to the submissions initially.
*** GARY ROBERT EMERY XXN MS PRESTON
THE COMMISSIONER: Yes. I think what I'll do is mark them as a bundle of attachments within the applicant's material, if that's appropriate? So I'll mark attachments A to G as exhibit A5.
EXHIBIT #A5 BUNDLE OF DOCUMENTS - ATTACHMENTS A TO G OF APPLICANT'S MATERIAL
PN137
THE COMMISSIONER: I'm sorry, I should have picked up that there were those attachments. I apologise.
PN138
MS PRESTON: Thank you, Commissioner.
PN139
I've just had handed to you a copy of the Victoria Police Manual for Workplace Flexibility. Have you ever seen that before?‑‑‑No, not recently. I haven't reviewed it.
PN140
But you are aware of it?‑‑‑I am.
PN141
And did you look at it at the time you made your request?‑‑‑No.
PN142
If you turn to page 18 of the manual?‑‑‑Yes.
PN143
If you look you'll see it's headed with two bullet points and then there's a paragraph commencing "Part‑time arrangements" and then there's a paragraph that says:
PN144
The pattern of hours of a part‑time member may vary from the standard roster at a work area only with the agreement of the employer.
PN145
?‑‑‑Yes.
PN146
And then it says:
PN147
While the minimum shift duration is four hours, where possible the shift length should be the same as the shift length at the station to which a member is attached.
PN148
Do you see that?‑‑‑I do.
*** GARY ROBERT EMERY XXN MS PRESTON
PN149
So you agree that it is the organisation's policy that where possible the shift length should be the same as the shift length at the station to which the member is attached?
PN150
MR HARDING: Commissioner - - -
PN151
THE WITNESS: Specific - - -
PN152
THE COMMISSIONER: Mr Emery.
PN153
MR HARDING: Commissioner, whether it is or whether it isn't the policy is a matter of evidence. It doesn't assist for this witness to comment on what Victoria Police's policy is. It speaks for itself.
PN154
THE COMMISSIONER: That it does, but I'm assuming Ms Preston will be leading evidence to the effect that that is a policy applied within Victoria Police? Is that the case?
PN155
MS PRESTON: Yes, Commissioner.
PN156
THE COMMISSIONER: Yes, all right. In that case I'll allow the question.
PN157
THE WITNESS: Specific to part‑time. It doesn't say anything about flexible compressed shifts. It just says part‑time arrangements.
PN158
MS PRESTON: But you accept it would make sense, wouldn't it, that that is a reference to all shift arrangements. It's - - -?‑‑‑It specifically says part‑time arrangements.
PN159
So you don't see any reason why Victoria Police would want all flexible arrangements to align with that principle?‑‑‑Well, practically they don't so - - -
PN160
That wasn't the question?‑‑‑- - - although it's a policy and it doesn't refer to flexible arrangements, it refers to part‑time, on a practical basis and in an application of this policy it's not across the organisation. It actually is quite different in that some officers have members working 10 hours and other members working eight hours, on a regular basis, and there's a number of examples of that that I could raise.
*** GARY ROBERT EMERY XXN MS PRESTON
PN161
Yes. Thank you. But there are good reasons, aren't there, why people working flexible work arrangements should be working the same hours as their counterparts on shift?‑‑‑From time to time where specific operational needs require two members to be working the same hours or it's impractical to work a longer compressed shift that might be the case, yes.
PN162
And you say in your reply statement at paragraph 8 that the execution of warrants and arrests comprised approximately 20 per cent of your workload at the DRU?‑‑‑Which paragraph are we referring to?
PN163
Paragraph 8?‑‑‑Of which statement?
PN164
Your reply statement. Do you need a copy? Do you have copies of your - - -?‑‑‑I've got a copy here. Is it all right to have a look at it, Mr Wilson?
PN165
THE COMMISSIONER: Go ahead?‑‑‑Thank you.
PN166
MS PRESTON: Have you read that, Mr Emery?‑‑‑I'm reading it.
PN167
All right?‑‑‑Yes.
PN168
So 20 per cent of your workload was out in the field executing warrants and arrests?‑‑‑No, I go on to say that although my time in the DRU my crew was working on a series of long and protracted investigations, that did not require any field work of this kind for weeks on end.
PN169
So what percentage of your workload was out in the field when you were working in the DRU?‑‑‑Both in the DRU and the CIU, my fieldwork would probably amount to between 10 and 29 per cent of my time of that 80 hour fortnight.
PN170
And in addition you would have court appearances?‑‑‑Yes.
PN171
And reconnaissance work?‑‑‑What's reconnaissance work? What do you mean by that?
*** GARY ROBERT EMERY XXN MS PRESTON
PN172
Well, I think it's what Mr Cornford is referring to as surveillance work, being the type of work that you would do in the DRU where you monitor residences or vehicles at particular places in the conduct of investigations?‑‑‑I did refer to Mr Cornford's reference to surveillance work. It's specific in police language that surveillance is surveillance and there is a specific surveillance unit that does that work. As far as the DRU work or, for that matter, the CIU work, reconnaissance isn't something that we conduct on an ongoing basis if it's aligned with surveillance work. We get specific units qualified and trained to do that. If you're talking about just going out on the road and driving over an address, for example, and getting a registration number or something of that nature, if you want to call that reconnaissance, that's the type of thing that the DRU or the CIU, for that matter, would do.
PN173
Yes, so you would do that work as well as the warrant work that you referred to earlier?‑‑‑Yes.
PN174
And when you give evidence about the 20 per cent split of work, you give it as evidence in respect of all CIUs and DRUs generally, is that correct?‑‑‑No, I can only give that from my specific experience and that was over potentially six years' work in the DRU on the Mornington Peninsula which was PTU which was a different name they had more than two years ago.
PN175
So if you turn to paragraph 11 of your original statement?‑--I don't have that with me.
PN176
You don't have a copy. I'll have a copy handed to you?‑‑‑Got it, thank you.
PN177
So if you look at the last sentence of paragraph 11 of that statement?‑‑‑I don't have that - it's double sided.
PN178
Well, the last two sentences of paragraph 11:
PN179
The vast majority of work.
PN180
?‑‑‑Yes.
PN181
You say there:
PN182
The vast majority of work performed at any DRU or CIU is performed at your desk.
PN183
?‑‑‑Yes.
*** GARY ROBERT EMERY XXN MS PRESTON
PN184
So you're talking there about any DRU or CIU, aren't you?‑‑-Yes.
PN185
Even though you haven't had experience in all DRUs and CIUs?‑‑‑26 years in the CI, six of those has been in the DRU.
PN186
There you're saying that 90 per cent of work can be done at any time and the other 10 per cent is field work?‑‑‑Which can also be done in that 10 hour period.
PN187
Yes, and so would it surprise you to hear that Rohan Brock, who gives evidence for the plaintiff - the union ‑ estimates that an even 50/50 split of work is in the field and at the desk?‑‑‑No, it doesn't surprise me.
PN188
And, in fact, in your own crew in the CIU William Simpson says that 75 per cent of work is at his desk and 25 per cent is away from his desk. Does that surprise you?‑‑‑No.
PN189
You accept then that in your statements you understate the time spent away from your desk?‑‑‑No, not at all.
PN190
You accept then in your statements you understate the time that you say is generally spent away from a desk in the CIU and DRU environments?‑‑‑No, I don't accept that.
PN191
You say at paragraph 12 of your reply statement - you can turn to that again - that working an extended 10-hour shift would be a huge benefit to your crew because you could take on out-of-hours calls in respect of people who want to be called after their day finishes at 5 pm?‑‑‑This is paragraph 12 you're referring to?
PN192
Yes?‑‑‑Where's it say that?
PN193
So if you move down to the last two sentences:
PN194
Considering my regular shift is 8 am to 4 pm, this can be an issue.
PN195
?‑‑‑Sorry, were you referring to my original statement or the supplementary?
PN196
Your reply. Your reply, sorry?‑‑‑Yes, sorry, wrong statement. Thank you. Yes.
*** GARY ROBERT EMERY XXN MS PRESTON
PN197
And you make that statement in the context of the situation that applied at the time you made the request, is that right?‑‑‑No, this is a supplementary statement that I'm addressing a comment made by Detective Inspector Cornford in his paragraph 39 of his statement.
PN198
Just to clarify, Inspector Cornford is giving evidence of everything that applied at the time that your request was made and refused. So maybe you can explain what this is talking - is this talking then about your CIU shifts or is it talking about the DIU shifts? You apparently ‑ ‑ ‑?‑‑‑I'd say predominantly it would be about the CIU.
PN199
The CIU?‑‑‑Right.
PN200
So that wasn't the circumstances that applied when you were doing the DRU work?‑‑‑Absolutely it would. If I was in the office and someone needed something done outside the hours that they were working and I was still working, I would do those tasks for them.
PN201
But you're not saying that in the circumstances that applied in the DRU at the time that it would have been a huge benefit for you to be working the 10 hour shift so that you could take on some out of hours calls at the end of the shift?‑‑‑I am saying that. As I said at the beginning of my evidence, the DRU at the time was effectively a fifth team in the CIU where we were doing similar, if not the same, rosters as the CIU, managed by line control of the CIU. So in effect, if I was still working and, as I've stated in that paragraph, if another member had something that needed to be done in hours that I was still working and he wasn't, I could take on those tasks for him at the convenience of the community.
PN202
But it is the case, isn't it, that when you were working in the DRU it wasn't an infrequent occurrence that you would be working shifts that went well into the night, was it?‑‑‑Well, as I said earlier, sir, the DRU was utilised as a fifth team and we did afternoon shifts, we did evening shifts commencing at 1 to 9, we did prime shifts commencing at 1500 through to 2300, and we also provided staff for filling of night shifts, and those were on a regular basis.
PN203
So I understand that you've been giving evidence that you not infrequently did work afternoon shifts, for example shifts that went from 12 o'clock until 8 o'clock at night?‑--That's right.
PN204
There would have been ample opportunity for you to call people out of hours on those shifts, wouldn't have there?‑‑-Sorry, could you repeat the question?
*** GARY ROBERT EMERY XXN MS PRESTON
PN205
There would have been ample opportunity on those shifts for you to call people out of work hours after 5 pm?‑‑‑Yes.
PN206
And the fact is, isn't it, that 95 per cent of investigatory work is not urgent?‑‑‑That would be - that would be a fair statement. It would be maybe not 95 per cent but depending on the type of work it is, whether it needs a quick response or not, it's certainly not - certainly not the other way round.
PN207
In paragraph 14 you say that if you worked an extended shift you can take on incidental duties from people who work eight hour shifts and are coming off shift?‑‑‑That's right.
PN208
The fact is that members don't hand over administrative work to other members at the end of shift, isn't that's right?‑‑‑That's wrong.
PN209
So non-urgent administrative work gets handed over at the end of the shift, is that your evidence?‑‑‑I'm talking about incidental duties, sir. It's not handing investigations. They're a different thing altogether. You don't hand over carriage of an investigation to another member. They're usually managed by that member. What I'm talking about there is in the event that a member finishes work and it's at the convenience of a witness or some other person that can't work or can't be there during those business hours, if I was to continue my shift past those hours I might be available to do those tasks for that person, whether it be taking a statement from a witness who finishes work at 5 o'clock or whether it be assisting with return of property and generally in those sort of terms is where I was going with the incidental duties.
PN210
Thank you for clarifying that. And so those incidental duties that would normally go on past eight hours that needed to be dealt with that day, a detective would normally do those duties within their cot, wouldn't they?‑‑-No, not at all, no.
PN211
So people wouldn't stay back in cot to complete that?‑‑‑No.
PN212
The fact is, Mr Emery, that there is very little need to hand work over at the end of a shift, isn't that's right?‑‑-It's infrequent. It's not something that happens every day. It's just something that I raised in response to paragraph 42 from Inspector Cornford.
PN213
And in the CIU environment is there someone coming in on the next shift?‑‑‑Yes.
*** GARY ROBERT EMERY XXN MS PRESTON
PN214
If something needed to be done then the person on the next shift could do it, couldn't they?‑‑‑That would be true in the sense that if that person was only doing administrative duties, but bear in mind that these people are generally rostered for response shifts and are required to respond to events that occur and they may be taken out of the office for whatever reason. Where I was talking about, those incidental duties, I'm talking about an incident where I'm still available to do those things where other members may not be. And by that I mean those response shifted are 7 to 3, 3 to 11, 11 to 7. Those members do continue working and provide a service 24/7. Those members have also got other responsibilities that may take them away from their ability to do an incidental duty.
PN215
And so you've just said that people who are responsive in crime and response shifts may be taken away from their duties that day, yes? And that obviously means that they won't be able to work on their investigation work that's currently underway?‑‑‑Correct.
PN216
So your proposal is that you're going to be rostered for the same number of response and crime shifts as other people on your shift, is that right?‑‑‑Correct.
PN217
Which means, given you're working a day less, that you're going to have less time, relatively speaking, to do your other investigative work, isn't that's right?‑‑‑What's relatively speaking?
PN218
Well, relative to the number of days that you're doing?‑‑‑No, still performing the same hours.
PN219
Is that a yes or a no?‑‑‑It's no, I disagree.
PN220
You also make the point in your reply statement, reply statement at paragraph 25, 21 and 27 - - -?‑‑‑21 did you want to talk about?
PN221
We'll go to 25. It's more direct?‑‑‑Yes.
PN222
So the middle line:
PN223
Over the past 12 months I've worked an average of 9.5 hours per shift.
PN224
?‑‑‑Yes.
*** GARY ROBERT EMERY XXN MS PRESTON
PN225
And there you're talking about rostered shifts of eight hours?‑‑‑Yes.
PN226
Which means you've been working an average of 47.5 hours a week?‑‑‑I'll accept that.
PN227
And you also say that you'll likely perform the same overtime so that your work hours, all up including overtime, remain the same?‑‑‑That's what I'm saying, yes.
PN228
Yes?‑‑‑I'm saying that the system that Victoria Police are relying on to record my hours and pull out statistics is time attribution system in the Oracle software and that that system is an imperfect system in that it requires you to enter when you arrive and when you leave your place of work. I'm saying that in order to perform 9.5 hours average I'm turning up for work not right on the commencement of my duties but sometime before it and on a regular basis I don't watch the clock and I stay for some time after those duties with my administrative duties. Now, occasions there are times where commuted overtime is utilised to perform unplanned investigations that take me into the field or keep me in the office specifically for unplanned events that have occurred during the shift. But the 9.5 hours is not indicative of the hours I work other than to say it's what the time attribution system has me doing. If I was to do a 10 hour day, sir, I would continue to turn up prior to the shift commencing and I would regularly not watch the clock and I would stay beyond the rostered time finishing. So again the time attribution system that they're utilising here to count these hours would show that I would stay more than 10 hours and I would end up having an average time in the office above the 40 hours because of the system that they're relying on to pull the statistics out of.
PN229
Yes, so actually the time that you would be in the office would be more like 12 hours a day on the four by 10 arrangement, isn't that's right?‑‑‑Well, it would be getting close to that if I continued to stay in the office for those hours, yes. It would be - just by comparison would be 11.5 hours.
PN230
Or to complete work which, in the main, is in any event not urgent?‑‑‑On a regular basis, as I said, I work those hours.
PN231
And you accept that that would not be desirable from an occupational health and safety perspective to have someone who is over 55 seeking to transition to retirement working 12 hour days consistently day in, day out?‑‑‑Four of seven, I wouldn't have an issue with it, which is the reason I've made the application.
*** GARY ROBERT EMERY XXN MS PRESTON
PN232
People in your team are not working that long hours, are they, consistently?‑‑‑Some work less. I don't interrogate other people's time attribution system and work out how many hours they work. There are times when I'm still working and I look around, there's no one else there. But there's also times when other members work long hours too. It's not for me to say what hours other members are working. I don't have the statistics available to me. It's perhaps Victoria Police's system that they could interrogate and find out for me.
PN233
Well, based on your experience in the workplace, let's just put it that way, detectives are not working 12 hour shifts as standard practice?‑‑‑You're talking about the 10 hour roster? Well, none of us are doing that.
PN234
I'm talking about just general hours at work, thank you?‑‑‑I'm sorry, I don't understand the question. Are we referring to 8 hour shifts or are we referring to 10 hour shifts?
PN235
I'm talking about neither. I'm talking about time actually spent in the office?‑‑‑I wouldn't say that I was particularly one out here. I'd say that this was a - it's probably indicative of a lot of members. There are also a lot of members that leave after eight hours' work.
PN236
But, to return to the question, detectives and other staff are not generally working, as standard practice, 12 hour shifts?‑‑‑Not to my knowledge, no.
PN237
And you say at paragraph 15 of your - - -?‑‑‑This is the supplementary reply witness statement?
PN238
Yes, yes, of your reply statement?‑‑‑Thank you.
PN239
That in the DRU people progress tasks individually?‑‑‑Yes.
PN240
Did you know the Victoria Police wants its members to work as teams?‑‑‑Yes, yes.
PN241
And you accept that there are substantial benefits to working as a team?‑‑‑I would agree that there is definitely substantial benefits.
PN242
And I assume you agree that for a properly functioning team it's important for people to feel that they're being treated fairly compared to other members of the team?‑‑‑Yes.
*** GARY ROBERT EMERY XXN MS PRESTON
PN243
And that they don't feel that they're negatively impacted by your compressed work arrangements?‑‑‑Yes.
PN244
Or think that you've given more favourable treatment because of them, the compressed work arrangements?‑‑‑What's the question? I'm not really sure where you're - what your question is now. You've just moved on with some half questions. Can you explain that question?
PN245
That it's important that other members of your crew don't feel like you're treated more favourably because you're given the compressed work arrangement? More favourably ‑ ‑ ‑?‑‑‑Yes, it's important that members don't feel disadvantaged, yes.
PN246
Yes. And any work distribution as a matter of reality depends on your work capacity, isn't that's right? In the sense that if you're busy or less able to get through work for whatever reason, that will be a relevant factor in how much additional work is given to you?‑‑‑Well, in the CIU work allocation is managed by our crew sergeant. If he sees that I'm getting more investigations than other members through the hours that I'm doing and just - whether it be circumstances or bad luck that I'm getting more investigations than others, he would reallocate.
PN247
Yes, and if people are working really effectively and getting through more work, regardless of how many investigations each are allocated, they're more likely to get more work from the sergeant, is that right?‑‑‑If a member clears an investigation and he has no work then certainly he would be given more work, yes.
PN248
And assume for a moment - and I know that you don't agree with the basis for this assumption, but just assume for the moment that the four by 10 arrangement results in you working fewer hours. Either other employees will need to pick up the slack from that or your investigations will be slower to complete, isn't that's right?‑‑‑Well, the question itself is difficult to comprehend. If I'm still working 80 hours how will I be working less hours? I don't understand how a compressed shift and - my evidence earlier that I would continue to come in earlier and leave after the finish of the shift, that I'm actually working less hours than other people.
PN249
Yes, but assume that that is the case, that you are working less hours?‑‑‑All right.
PN250
Then your crew members will either need to pick up the slack or the community will be disadvantaged because the investigations will be slower to complete?‑‑‑Well, I'd just have to repeat that I disagree with the whole assumption, but if that were the case then other members would be doing work that I'm not doing, yes.
*** GARY ROBERT EMERY XXN MS PRESTON
PN251
And regardless of whether or not you work the same hours in practice on the compressed roster as you did on the five by eight roster, the fact is that you'll be working one less shift?‑‑‑I'll be working one less day, yes.
PN252
And on that day you will not be able to conduct field work, will you?‑‑‑No, I'm not there.
PN253
And you say in your reply statement that you love your job. What is it about your job that you love?‑‑‑I enjoy the - I enjoy the investigation. I enjoy the camaraderie. I enjoy the social interaction. I enjoy making a difference with the community, assisting people that are in need and in trouble. I enjoy making sure that criminals are accountable for their actions by putting them before a court, things of that nature. It's something I've enjoyed for more than 30 years.
PN254
And all those features of your job would still be features of your job if you were working a part-time arrangement, isn't that's right?‑‑‑Yes.
PN255
And it's not uncommon for members of Victorian Police to work part-time, in your experience?‑‑‑Yes, there's quite a few people working part-time, that's right.
PN256
And you made your flexible work request so that you could access more rest days?‑‑‑That's right.
PN257
And you knew that in light of the rejection by Inspector Cornford that if you wanted to access more rest days you could do that by working part-time?‑‑‑Yes.
PN258
But you weren't willing to consider a part-time arrangement?‑‑‑Correct.
PN259
And if this proceeding goes against you, will you apply for a part-time arrangement?‑‑‑No.
PN260
No further questions, Commissioner.
PN261
THE COMMISSIONER: All right, thank you, Ms Preston.
Yes, Mr Harding?
RE-EXAMINATION BY MR HARDING [11.29 AM]
*** GARY ROBERT EMERY RXN MR HARDING
PN263
MR HARDING: Yes, Mr Emery, you were asked some questions based on some evidence that was given about the amount of administrative - or field work, rather, that was done by other detectives who filed reply statements. Do you recall those questions?‑‑‑Yes.
PN264
It was suggested to you it understated the time you spent at your desk?‑‑‑It was.
PN265
You disagreed?‑‑‑I did.
PN266
Why?‑‑‑Purely because the estimate is subjective. It hasn't been tested through statistical information or time and motion studies. One member may feel when asked that he's out of the office for half the time. Another member may feel subjectively that he's in the office for 90 per cent of the time. Those are the feelings of individuals and I accept and am happy with other members saying they have a different view. My view is 80 to 90 per cent.
PN267
And is that based on something?‑‑‑Well, it's based on my experience with the amount of time I spend in front of my computer. And other members have the same amount of workload as me and they're required to do a similar amount of administrative work in compiling briefs and writing reports and basically doing the correspondence and administrative work required of a detective. And in my experience 80 to 90 per cent of the time you're in front of your computer and as time goes on and more and more administrative duties are lumped on detectives, it just becomes more and more time in front of a desk and less time able to go out in the field.
PN268
Are you able to tell the Commission to what extent you are able to control or otherwise the work you perform at your desk?‑‑‑Well, as far as controlling it, it's controlled by your workload. If you have a lot of work to do in regards to report-writing or brief compilation, things of that nature, administrative work as I've called it, you have to spend a lot of time doing it. It just depends on your workload basically.
PN269
And is that workload consistent or does it change from week to week?‑‑‑It changes from week to week. It changes from member to member. It changes from circumstances where you work a shift and you end up with an investigation that requires you to do it. That can ebb and flow, peaks and troughs.
PN270
Thank you. Now, you were asked some questions right at the beginning of cross-examination about the number of detectives that were in the DIU at the time you made your application?‑‑‑Yes.
*** GARY ROBERT EMERY RXN MR HARDING
PN271
And it was suggested to you that it was two?‑‑‑Yes.
PN272
And you were one of those two?‑‑‑Correct.
PN273
Are you able to tell the Commission whether or not having that number would have or would not have impacted on the working hours that you've proposed?‑‑‑Detectives, as opposed to having a temporary seconded member? It would make no difference.
PN274
And can you tell the Commission who supervised your work in the DRU?‑‑‑So in the DRU at the time we had a seconded uniformed sergeant who had CIU experience and had aspirations to be promoted back into the CIU. He was our direct line supervisor and he reported to our senior sergeants in the CIU.
PN275
And what are the names of these people?‑‑‑Chris Russo(?) was the sergeant at the time I made the application and the senior sergeants at the time were Alan Paxton(?) and Miro Majstorovic.
PN276
And did those sergeants have any responsibilities for CIU rostering as well as DRU, or not?‑‑‑Well, the senior sergeants would definitely have approval and management of the roster which - they allocate the portfolio to a sergeant. At that time that was Sergeant Hocking. He's still doing it. But this roster would be signed off by the senior sergeants, absolutely.
PN277
Thank you. No further questions, Commissioner.
THE COMMISSIONER: All right, thank you very much, Mr Harding. And thank you, Mr Emery, for giving evidence. You're released as a witness and free to resume your seat.
<THE WITNESS WITHDREW [11.34 AM]
PN279
THE COMMISSIONER: So Mr Harding, we might just take a short break if that's convenient to you.
PN280
MR HARDING: Sure.
PN281
THE COMMISSIONER: Thank you.
*** GARY ROBERT EMERY RXN MR HARDING
SHORT ADJOURNMENT [11.34 AM]
RESUMED [11.52 AM]
PN282
MR HARDING: Commissioner, there are a couple of housekeeping matters to attend to. We have tendered the statements of Mr Emery and I tender some additional statements that have been filed and for whom cross‑examination is not required. It is the statement of Detective Sergeant Nolan.
THE COMMISSIONER: All right. That will be exhibit A6.
EXHIBIT #A6 WITNESS STATEMENT OF DETECTIVE SERGEANT BRIAN NOLAN
PN284
MR HARDING: The statement of Detective Leading Senior Constable Mitchell.
THE COMMISSIONER: That will be exhibit A7.
EXHIBIT #A7 WITNESS STATEMENT OF DETECTIVE LEADING SENIOR CONSTABLE MITCHELL
PN286
MR HARDING: The statement of Detective Senior Constable Brock, filed on 19 July.
THE COMMISSIONER: A8.
EXHIBIT #A8 WITNESS STATEMENT OF DETECTIVE SENIOR CONSTABLE ROHAN BROCK FILED 19/07/2018
PN288
MR HARDING: The statement of Detective Leading Senior Constable Sweetman, filed on 19 July.
THE COMMISSIONER: A9.
EXHIBIT #A9 WITNESS STATEMENT OF DETECTIVE LEADING SENIOR CONSTABLE NICHOLAS SWEETMAN FILED 19/07/2018
PN290
MR HARDING: Finally, the statement of Detective Senior Constable Simpson, filed on 19 July.
*** GARY ROBERT EMERY RXN MR HARDING
THE COMMISSIONER: Simpson's statement will be A10.
EXHIBIT #A10 WITNESS STATEMENT OF DETECTIVE SENIOR CONSTABLE WILLIAM SIMPSON FILED 19/07/2018
PN292
MR HARDING: That is the evidentiary case for the applicant, Commissioner.
PN293
THE COMMISSIONER: All right. Thank you. Ms Preston?
PN294
MS PRESTON: May it please the Commission, I don't propose to spend any lengthy amount of time obviously on opening given the Commissioner's history with this matter.
PN295
THE COMMISSIONER: Sure.
PN296
MS PRESTON: However, again I also would like to point to certain frameworks set up by the collective agreement and the policies that are in place in the organisation with respect to flexible work. The enterprise agreement elicits an intention that work hours are to be worked as crews with limited deviation from that. There is provision made at clause 13 of the enterprise agreement, at page number 12, for flexibility arrangements to be made.
PN297
This has obviously been contemplated as types of clauses which should be allowed flexibility, contemplated by both parties to this agreement, and the determination has been that the hours that may be worked on shifts should not be subject to individual flexibility arrangements. Clause 14 of the agreement contains - - -
PN298
THE COMMISSIONER: Sorry, which clause were you referring to there? Clause 13, but which subclause - - -
PN299
MS PRESTON: That's clause 13, page 12 of the agreement; so clause 13.1(a) and (b).
PN300
THE COMMISSIONER: All right.
PN301
MS PRESTON: It sets out the clauses that can be subject to individual flexibility arrangements.
PN302
THE COMMISSIONER: Right. Thank you.
PN303
MS PRESTON: Clause 14 obviously sets out the right in the agreement to work flexibility working arrangements. As my friend correctly indicated, this ties to section 65 of the Act. However, there is no obligation under the agreement for any written reasons to be provided. What clause 14.3 says is that a request must be made by the employee and assessed by the employer in accordance with the provisions of section 65 of the Act.
PN304
Now, it's the respondent's position that all that does is impose on the employer an obligation to have regard to whether or not there are reasonable business requirements that would justify refusing the decision and, otherwise, there is no obligation contained in collective agreement for the provision of written reasons.
PN305
Then there are detailed provisions in the agreement that deal with the work structures. Clause 33 deals with part‑time arrangements. It is the case that the agreement focuses on different hours for part‑time arrangements and as Mr Emery pointed out in the witness box, the policies also focus on part‑time arrangements because it's not obviously in contemplation that they are the type of arrangements that are going to result most likely in these changes of hours.
PN306
The policy is evident through the agreement and the policy manual that the work hours in the workplace should be the same and aligned as amongst crews. Clause 33.2 on page 25 of the agreement provides that:
PN307
A part‑time employee's ordinary hours will not be more than 76 per fortnight -
PN308
which is uncontroversial.
PN309
A part‑time employee will work the same number of hours per day at the workplace in which the work is performed, unless subclause 33.4 applies.
PN310
Then 33.4 talks about the minimum shift duration and that the reduction must be at the initiative of the employee, so that is a protection that is in place for the employee. Then we see the second layer, being the workplace manual that sits on top of this and says but even in the case of part‑time employees the idea is that they should be working the same shifts and the same hours, but on those days that they work relative to the members of their crew. As the evidence for the respondent sets out, there are good reasons for this. Then clause 33.5 says:
PN311
For the avoidance of doubt an employee may request a pattern of work that includes set days or set hours -
PN312
so nothing impacts on the part‑time employee's capacity to nominate particular hours or days of working, but again this is subject to the policy and the agreement terms that regulate these matters. Then we see an important provision, which is the "Variable shift rostering" in clause 34. This clause does apply to detectives and what it says at clause 34.2:
PN313
The employer and the employees at a work location may agree to a roster pattern involving shifts longer than eight ordinary hours.
PN314
The situation is that - and you need to turn to clause 30.1 which sets out that the ordinary hours of work will be eight per day, then clause 34.2 relates to that by saying there can be agreement for longer hours of work, but this needs to be done collectively. Again that is showing the intention of the parties to this agreement that you can have longer shifts. There might be a way of achieving that, but it needs to be done on a collective basis. It's something that needs to happen where all the crew is aligned to those hours, because that makes it workable.
PN315
It means that the crew is still working as a team, they're working together, they're working the same hours and from an organisational perspective that can be managed in a way that people working different hours and having crossover from different shifts cannot be done in an efficient and productive way as we see is the case with Leading Senior Constable Emery in this case. We see at 34.5:
PN316
Such a roster pattern may only be introduced if more than 60 per cent of employees working the roster and the employer genuinely agree.
PN317
Now, obviously that is a provision that is for the benefit of employees. They shouldn't be signed up to this collective arrangement if only a minority of them want it, but what it does show is that this is all about the collective nature of that bargain. Then the other relevant provision, as my friend has referred to, is clause 46 which deals with COT. I won't deal with that in any detail now. However, that is something that I'm going to revert to when I close.
PN318
As the Commission is aware, the respondent will be calling three witnesses. Inspector Cornford will be the first witness that is called. He is obviously the decision‑maker in this process. He made the ultimate decision not to approve Detective Emery's request for a four by 10 arrangement in the divisional response unit. What the respondent says is this is a critical matter and it's a matter which is not really addressed - or is actually addressed in a contrary way in the applicant's evidence.
PN319
At the end of the day, what Leading Senior Constable Emery did was he was working in the DRU at the time. It's true that they were doing some shifts for the CIU, but that's not where his position was. His position wasn't in the CIU; it was in the DRU. Inspector Cornford will be giving evidence about what was in his head at the time and the fact that the DRU was going to merge, and the work that was anticipated that Leading Senior Constable Emery would be performing.
PN320
The application was for flexible work in the DRU, as well, so it wasn't just a question of the application being made while Detective (sic) Emery was in the DRU, but also for work in the DRU. The respondent's position is that there is a whole lot of evidence that has been put in by the applicant in this proceeding and it all deals with the CIU environment and not the DRU environment, other than Leading Senior Constable Emery's own evidence.
PN321
That is very peripherally, if at all, relevant for the matters that fall to be determined which, as the Commission would appreciate, are matters which must be assessed at the time that the application was made and refused; not what happened later, which is that Leading Senior Constable Emery ended up moving to the CIU subsequently. That was not on the cards or anticipated that it would occur at the time that this request was made, so all that evidence in the respondent's submission should be discounted. It's notable that no evidence is led from the other leading senior constable who was present in the DRU at that time. It's all from members who are present in the CIU.
PN322
Now, the focus of Inspector Cornford's evidence will be on the decision that he made and the reasons that he made that decision. He doesn't traverse the broader reasons and those broader reasons are going to be presented by Commander Hollowood. Obviously Commander Hollowood is of a much more senior rank and best positioned from all the witnesses who are giving evidence in this proceeding to provide that organisational perspective as to the impact of the four by 10 arrangement.
PN323
The other witness - and we will be calling him second - is Inspector Anthony Cecchin. He will be giving evidence really as the inspector who previously approved two four by 10 arrangements for two detectives in his chain of command. Those two detectives have also filed statements in this proceeding. All three witnesses support flexible work arrangements and see them as par for the course. Indeed, in his letter rejecting Leading Senior Constable Emery's request, Inspector Cornford specifically left open the possibility of reaching an alternative arrangement to the four by 10, including part‑time work.
PN324
It's clear, including from the evidence that we have just heard from Leading Senior Constable Emery, that this proceeding is not about achieving flexibility per se. It's achieving a desirable arrangement from Leading Senior Constable Emery's perspective that occurs through a four by 10 shift arrangement, which not only would guarantee two less shifts per fortnight, but which would also maintain full pay contrary to the foundational work structures that exist in the workplace; including as set out and promoted by the enterprise agreement, contrary to the will of how Victoria Police considers that Mr Emery's role could be most productively and efficiently performed and from a team perspective.
PN325
THE COMMISSIONER: I have to say I'm somewhat uncomfortable with the equivalence which you're putting between someone who works full‑time and wants a different arrangement and the opportunity to go to part‑time. Is that not the same sort of equivalence as, well, if you don't wish to work full‑time in this shop any more, then you can work casual? Is there an equivalence between those two things?
PN326
MS PRESTON: No, Commissioner.
PN327
THE COMMISSIONER: Right, but you seem to be putting them forward as he has rejected it, therefore that's something I should take into account.
PN328
MS PRESTON: Well, it is a relevant factor, Commissioner, because what these provisions are about - - -
PN329
THE COMMISSIONER: That's what I'm uncomfortable about.
PN330
MS PRESTON: Yes.
PN331
THE COMMISSIONER: Because you will need to consider whether there in fact is that equivalence. I'm not sure there is. I mean, yes, of course I could do all sorts of things as an employee, but that's not necessarily what is being advanced, is it?
PN332
MS PRESTON: Well, we see an organisation and there is no dispute that there are a large amount of flexible work arrangements in place. There appear to be very many four by 10 arrangements coming into play now as people twig on that that might be an option for them. We see the evidence of Mr Sweetman, who says everyone wants to work this four by 10 arrangement. That is his evidence. All the detectives want to work it because it's hugely beneficial to them. They get the same amount of pay and they get an extra day off.
PN333
You have an abundance of members who are actually doing the flexible work arrangements as contemplated, which are if you want to work less and less shifts - if you want to work less shifts - then you have an appropriate reduction in pay that accords with that.
PN334
THE COMMISSIONER: That sounds obviously like a non sequitur.
PN335
MS PRESTON: But that's the status in the organisation now, that there are many part‑time employees that are making that sacrifice so that they can have that benefit.
PN336
THE COMMISSIONER: Well, that may be, but unless there is evidence from those people, am I going to take that into account?
PN337
MS PRESTON: It's a judicial notice question really.
PN338
THE COMMISSIONER: All right. Okay. Look, I just wanted to make sure that I had identified my concerns about whether there is an equivalence about those matters. How you wish to address it obviously is up to you.
PN339
MS PRESTON: Yes. If I could call Inspector Cornford for the stand.
PN340
THE COMMISSIONER: All right. Thank you.
PN341
THE ASSOCIATE: Could you state your full name and address, please.
MR CORNFORD: My name is Justin Anthony Cornford of the Frankston Police complex, 15 Fletcher Road in Frankston.
<JUSTIN ANTHONY CORNFORD, SWORN [12.10 PM]
EXAMINATION-IN-CHIEF BY MS PRESTON [12.11 PM]
PN343
MS PRESTON: Inspector Cornford, you have provided a statement in this proceeding?‑‑‑I have, yes.
PN344
Do you have a copy of that statement with you?‑‑‑I do, yes.
PN345
Is that statement dated 29 May 2018?‑‑‑It is, yes.
PN346
Is it comprised of 47 paragraphs and three attachments?‑‑‑That's correct, yes.
PN347
At paragraph 37 of that statement - if you could turn to that?‑‑‑Yes.
*** JUSTIN ANTHONY CORNFORD XN MS PRESTON
PN348
You say, "The DRU requires considerable surveillance activities." What did you mean by the use of the word "surveillance"?‑‑‑"Reconnaissance" would be the word there. Static surveillance, but probably officially in police terms would be reconnaissance.
PN349
Besides that, are you satisfied that this statement is true and correct in every particular?‑‑‑I am, yes.
PN350
Do you seek to rely on that as your evidence in this proceeding?‑‑‑I do so, yes.
PN351
I tender that, Commissioner.
PN352
THE COMMISSIONER: The witness statement of Inspector Justin Cornford with three attachments will be marked as exhibit R1.
MS PRESTON: Thank you, Commissioner.
EXHIBIT #R1 WITNESS STATEMENT OF INSPECTOR JUSTIN CORNFORD DATED 29/05/2018 PLUS ANNEXURES
PN354
MS PRESTON: Since filing your statement, a number of further statements have been filed for the applicant. Are you aware of those statements?‑‑‑I am, yes.
PN355
Have you read those statements?‑‑‑I have, yes.
PN356
How does the content of those statements affect your views as expressed in your statement?‑‑‑They don't impact my view at all.
PN357
I just have a couple of questions, if I might, Commissioner.
PN358
THE COMMISSIONER: Of course.
*** JUSTIN ANTHONY CORNFORD XN MS PRESTON
PN359
MS PRESTON: Leading Senior Constable Emery's evidence is that in the DRU there were weeks when he didn't do any field work. What do you say to that?‑‑‑My response to that is I don't know whether that was the case or not, but in my role I have an expectation that the DRU performs certain sort of work and that's predominantly drug investigations. From my experience - and that's five and a half years in the drug squad and my years in Victoria Police - a large majority of that work requires and should be out in the field.
PN360
At the time Leading Senior Constable Emery also says that he was doing some shifts within the CIU while he was working in his position at the DRU. Could you explain to the Commission what the circumstances were there?‑‑‑So that's probably a - it would require a bit of explanation. There were two DRUs - basically there was one DRU, there were two offices, if you like. There was the Mornington Peninsula DRU which was working out of the Morning Peninsula CIU and there was a Frankston DRU working out of the Frankston CIU. It came to my attention that, yes, both those DRU crews if you like were being absorbed on occasions into the CIU roster, so performing those CIU response shifts, night shifts - when I say response shifts, the 7 am crime shifts, or the 3 pm response shifts, which impacted on the work that the DRU should have been doing. That was one of the main reasons that we merged the two DRUs together to form the one divisional DRU basically, to take them away from the CIUs so they could do their core function of the DRU.
PN361
MS PRESTON: Was that merger in your mind at the time that you made the decision to refuse Mr Emery's request?‑‑‑It was, yes. So that merger had actually been tabled before I started in my role. The proposal prior to me starting was that there were two satellite, if you like, or two isolated Frankston DRU and the Mornington Peninsula DRU with the review to be undertaken after six months. When I started in that role, that six months was probably up, I think from memory. So, my idea was to merge the DRU's and forge forward with that. Sorry, when I say my idea, it was also - and this was something supported by the Regional Assistance Commissioner, but it was my remit if you like, to make sure that that happened and I wasn't opposed to that at all.
PN362
What has been the consequences in terms of the field work performed, of the merger?‑‑‑I haven't done a comparison between actual figures and how many arrests, how many search warrants, but anecdotally, a lot more drug warrants. They seem to be out at least once a week. I know the last few weeks, two or three a week. The results have been good and they're more focussed on that work that they're meant to be doing. From time to time a fortnight ago, they were used by the CIU as an arrest crew for a job that they had running, but that is the role of the response unit, is to support the DRU, sorry - the DRU to support the CIU where required.
PN363
That's always the case, is it?‑‑‑Not just the CIU, but uniform, other units as well. You know their predominant work is the drug work, to my mind, but there's time when they'll be called on to support the other units.
PN364
Is that the case with all DRU's?‑‑‑I can't - I would say yes, but I don't know.
*** JUSTIN ANTHONY CORNFORD XN MS PRESTON
PN365
Yes. Did the staff in the Mornington Peninsular DRU, need to apply for jobs again in the merged DRU, or was the transfer automatic?‑‑‑In my mind, the transfer was automatic. So, when I first started communicated this to the DRU's, I just went and spoke to the existing - so Mornington Peninsular DRU, I went and spoke to them about this is the proposal and this is what's happening and same with the Frankston DRU. It wasn't a spill of positions from my knowledge. I'm not sure with the uniform seconded members, but one detective from Mornington Peninsular DRU, that unit didn't go across and one from Frankston did not go across. I don't know the reason why that was the case.
PN366
What is the role of a detective in the DRU?‑‑‑
PN367
MR HARDING: He's given that evidence. Commissioner, that evidence has been given in his statement.
PN368
THE COMMISSIONER: Does it need to be elaborated upon?
PN369
MS PRESTON: Yes, just in light of the evidence received. In terms of management of the more junior staff in the unit?‑‑‑The DRU is probably in my highest - it's a high risk work group simply for drugs and cash and human resource management all have some element of risk. The idea, which isn't my idea, that's been in for a number of years is that normally it's - the DRU traditionally wears uniformed members seconded into the DRU role from both PFAs. The idea because of those risks was then say two of those uniform members would go across to the CIU and two of those CIU members in this case would come across to the DRU. In my mind it's to provide that experience with some level of coaching and mentoring to those junior members. How would detective coverage in the unit be impacted if one of the detectives was on a four by 10 arrangement?‑‑‑Well obviously that one day a week one wouldn't be there, so it wouldn't always necessarily mean that the other wasn't there. When that other detective was on leave, or if the sergeant of the crew was on leave or on assignment, I expect that the other detective would be upgraded into his position so that would possibly leave a gap there. But I don't need two there, so it's not always that would be impacted, but definitely there would be occasions when that level of mentoring or supervision wouldn't be there.
PN370
Thank you. Nothing further, Commissioner.
THE COMMISSIONER: Thank you Ms Preston. Mr Harding.
CROSS-EXAMINATION BY MR HARDING [12.21 PM]
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN372
MR HARDING: Inspector Cornford, have you got your statement with you?‑‑‑I have, yes.
PN373
You give some evidence that you became involved as the Supervisor Investigations And Response Manager for the southern metropolitan region, on 10 March 2017?‑‑‑That's correct, yes.
PN374
You sent an email, didn't you, to Mr Emery on 18 June which you put annexed at JC2 to your statement?‑‑‑I know sent an email to Gary; I'll just check the date. Correct, yes.
PN375
Really, what you do in this email, isn't it, is to give him an update about what's going on with his application which had been filed in May 2017?‑‑‑The idea of the email was to give him an update, yes.
PN376
What you say is that you first became involved in the matter on 13 June?‑‑‑Yes, that's right.
PN377
You responded to him and his application on 21 June?‑‑‑I don't deny that, yes.
PN378
You don't deny it?‑‑‑No.
PN379
Well, the evidence is that you did?‑‑‑Yes.
PN380
That was several days after you became involved for the first time on 13 June. That's right, isn't it?‑‑‑That's right, yes.
PN381
You respond - in your email you refer to a fact that you were copied into a further email on 25 May where Miro has asked employee relations for a response to your request as a matter of urgency?‑‑‑That's correct.
PN382
Miro is - I'm going to mispronounce his name?‑‑‑ Majstorovic.
PN383
<em>Majstorovic</em>, that's him, isn't it?‑‑‑Yes.
PN384
He was an acting inspector at the time?‑‑‑Correct.
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN385
He had responsibility for the DRU in Mornington?‑‑‑That's correct, yes.
PN386
Did he also have responsibility for the CIU?‑‑‑Yes.
PN387
He was an Acting Inspector which means he was a Detective Sergeant, substantially. That was his substantial position?‑‑‑Detective Senior Sergeant.
PN388
Detective Senior Sergeant?‑‑‑Yes.
PN389
In that role, he had responsibility for the DRU, didn't he?‑‑‑Yes, he did, for Mornington Peninsula DRU, yes.
PN390
Yes, well the unit that Mr Emery worked in?‑‑‑Yes.
PN391
He also had responsibility for the CIU?‑‑‑Correct.
PN392
Detective Senior Sergeant Hocking, he had roster responsibility for the CIU, as he does now, doesn't he?‑‑‑Detective Sergeant Hocking, yes. I don't know who does the roster portfolio to be honest.
PN393
You don't know?‑‑‑No, not at the CIU.
PN394
Well, do you know he was the - Mr Emery's evidence was that he was the rostering sergeant for the DRU at the time that he made his application. Do you know that?‑‑‑No, I don't know.
PN395
You don't know?‑‑‑No, but I don't disagree with it by any means.
PN396
You've given some evidence just a minute ago that you had an intention to merge the DRU in Frankston and the DRU in Mornington, back in 2017. Is that right?‑‑‑Yes.
PN397
It happened in March 2018?‑‑‑Yes.
PN398
By March 2018, Mr Emery was in the CIU. He'd returned to his substantive position, hadn't he?‑‑‑By March, sorry, 2018?
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN399
Yes?‑‑‑Yes, that's correct.
PN400
Between the time when he made his application in May 2017 in the DRU, none of merger consequences that you have given evidence about occurred until March 2018?‑‑‑That's correct, yes.
PN401
We've discussed Acting Inspector Majstorovic's email and you refer in paragraph 13 of your statement to that email, if you want to have a look. You say that you were aware that on 11 May he informed Victoria Police's human resources division that accommodating a request would cause discontent to other members in the unit, because Emery would receive the same remuneration and commuted overtime allowances. Do you see that?‑‑‑Yes, I see that.
PN402
If I can hand you up a document, please. That's the email, isn't it?‑‑‑Yes, that is.
PN403
He's saying, isn't he, in the third paragraph as the normal officer in charge which is what OIC means, doesn't it?‑‑‑It does, yes.
PN404
The request could technically be accommodated. See that?‑‑‑Yes.
PN405
Is there a reason why you didn't refer to that in paragraph 13 of your statement?‑‑‑No reason. I don't know why I haven't referred to that.
PN406
Well, he's telling you, isn't he that the request could be accommodated in the DRU at the time that Mr Emery made the application?‑‑‑That's what he says in his email, yes.
PN407
In fact, the only reason he raises against it, is the notion that it would cause discontent?‑‑‑It doesn't say the only reason, but it's definitely what he alludes to here, yes.
PN408
Well, what he says is, "I can confirm that although the request could technically be accommodated, this would cause discontent." That's what he says. They're the reasons he's giving you for his rejection of the request?‑‑‑Yes, I wouldn't necessarily say he's giving me those reasons, but that's definitely the reason.
PN409
He's giving them to HR?‑‑‑Yes. I think I was on leave at that time. He's upgraded into my position which means that I was on leave, see.
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN410
Yes, well he would have some knowledge, wouldn't he, of the DRU for the reasons that we've discussed. He was a senior sergeant in charge of the DRU and the officer in charge?‑‑‑Yes, he would definitely have knowledge of the DRU as it was in that format at that time.
PN411
I tender that email, Commissioner.
THE COMMISSIONER: I'll mark the email dated 27 May 2017 as exhibit A11.
EXHIBIT #A11 EMAIL DATED 27 MAY 2017
PN413
Now, it's correct, isn't it, that day to day management of the DRU at the time that we're speaking about and the CIU is undertaken by sergeants?‑‑‑Detective senior sergeants.
PN414
Detective senior sergeants?‑‑‑Yes, two detective senior sergeants and there is detective sergeants who manage the crew, so the detective sergeant looking after that particular crew of DRU.
PN415
So, day to day work of the detectives is managed by those class of officer. That's a fair proposition?‑‑‑Yes.
PN416
Yes, and you are above them aren't you, in terms of the work that you perform?‑‑‑So there's a sergeant and there's the senior sergeant then it's myself above them, yes.
PN417
But who does the rosters? A sergeant or a senior sergeant?‑‑‑I believe, and I don't know this, because I don't get into this, but I would think that the sergeant should do the roster and the senior sergeant should sign off on that roster.
PN418
So, you don't get into that work at all?‑‑‑No.
PN419
That's below your pay grade?‑‑‑I wouldn't like to put it like that, but it's not in my remit to do the rosters, to have a look at the rosters.
PN420
You're giving evidence really from the perspective of an inspector who is managing a region?‑‑‑So the sub metro region, there's four divisions. Say in division four, and then from that division that again is split up into four subdivisions if you like. So there's the Frankston PSA.
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN421
You're going to have to stop using acronyms, inspector I'm afraid?‑‑‑There's Frankston police service area, Mornington Peninsular police service area, there's tasking and coordination which looks after - so those two police service areas are predominantly uniform. Tasking and coordination looks after the highway patrol and myself, I look after all the investigative units within that division four of southern metro which cover both Mornington Peninsula police service area and Frankston police service area.
PN422
So, essentially you're inspector in charge of the whole of the Mornington Peninsula, in relation to detectives?‑‑‑Yes, and Frankston.
PN423
I put Frankston and Mornington Peninsula together?‑‑‑I just hope I'm clear with that.
PN424
I might be wrong about that. I just want to be clear because it can be a bit confusing. Now you say in your statement that your critical concern or your number one priority is workplace harmony, is that right?‑‑‑Correct.
PN425
All right, you've also given some evidence that you had - I think we've agreed that you sent Mr Emery an email on 21 June rejecting his request?‑‑‑Yes.
PN426
Then you've given some evidence - - -?‑‑‑Sorry, did you say an email or a letter?
PN427
Or a letter I think it was?‑‑‑Yes because I emailed him prior to that, just explaining that I've been on leave and then I sent the letter after that.
PN428
Then - let's be clear about it, JC4 of your statement?‑‑‑Is the letter.
PN429
That's the letter, isn't it?‑‑‑Correct.
PN430
There should be a date on that and that date is 21 June?--Yes, I haven't got a date, but I don't disagree with it.
PN431
You don't disagree with it. Then there's JC3, which comes before it which is dated 14 June. This wasn't sent, was it?‑‑‑No, it wasn't.
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN432
Are we read to this evidence as this is your first go and you had another go, or at least with the advice of human resources, which resulted in JC4?‑‑‑No, not quite correct, so JC4 was provided to me, I assume by human resources, I can't recall. But it was provided to me. I didn't think that letter, in my mind, clearly articulated my reasoning behind it, so I drafted the letter that you refer to in JC3 seeking advice from human resources, which they rejected and referred me back to JC4. So, JC4 preceded JC3, as far as - so I got JC4, didn't like it. Tried JC3 but was advised to go with JC4.
PN433
Was advised not to. Well, it would be reasonable wouldn't it, for the Commission to concluded that what was on your mind in relation to the request was contained in JC3 at the time you drafted it?‑‑‑Definitely what was in my mind as a response to Gary, yes.
PN434
Yes, so that's what you were doing though, you were responding to Gary and his request?‑‑‑Yes.
PN435
He come along, he'd made a request for flexibility along the lines of a four by 10. You sat down and you wrote your reasons why you couldn't accede to that request and what was in your mind is contained in JC3?‑‑‑Well I can't say that was everything that was in my mind, but definitely those points there were in my mind, yes.
PN436
So, there were other things on your mind which you haven't mentioned in JC3?‑‑‑Well, I don't know.
PN437
You don't know?‑‑‑What I'm saying is this letter here, I suppose was a - to try and give more meat, if you like to that letter that had been provided to me by human resources.
PN438
Okay, so the starting point for what you did in JC3 was JC4?‑‑‑Yes.
PN439
The starting point led you to say all right, I think some additional things should be put into the letter and that was in JC3?‑‑‑Correct, yes.
PN440
They didn't get up, as far as human resources was concerned and JC4 is the communication from you to Mr Emery as an inspector representing the police?‑‑‑Correct.
PN441
You would accept, would you not, that neither JC3 or JC4 refer to workplace harmony, do they?‑‑‑That's correct, they don't.
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN442
They don't refer to a merger?‑‑‑No.
PN443
Don't refer to any impact on productivity arising from either request?‑‑‑No, they don't, other than the hours already worked by Gary, if that's what you mean by productivity.
PN444
I don't know, you're writing - I raise productivity. You were talking about reducing effectiveness?‑‑‑Yes, so the productivity is, he's already working roughly those 10 hours, so by reducing that by a day in my mind, would be losing hours, a whole day there.
PN445
In other words, the hours that you had in your mind with the fifth day?‑‑‑Yes.
PN446
Because, you'd accept, wouldn't you that he's working the same number of full time hours as any other member on this proposal?‑‑‑Sorry, I don't quite get that.
PN447
Well, the agreement - have you read the agreement?‑‑‑The Fair Work Agreement?
PN448
Yes, the one that regulates your terms and conditions of employment?‑‑‑I would have browsed through it in relation to this, but I'm no expert in the agreement, no.
PN449
All right, well, what that says is that detectives, or other officers as well are required to work 80 hours over a fortnight?‑‑‑Yes.
PN450
You would accept, wouldn't you, that the proposal Mr Emery had put to you would result in him working 80 hours over a fortnight?‑‑‑Correct, yes.
PN451
So, strictly speaking, there was no loss of hours arising from - when measured against that standard. You would accept that?‑‑‑No, definitely not against that standard, but based on what he was performing in that snapshot that I have in JC3.
PN452
You say in your statement that on the subject of workplace harmony, that - and this is in paragraph 28 of your statement. That if I can just paraphrase my reference to the first part of it, you're talking about the consistency with your proposed revisions of the decision leader, you were concerned that it would be damaging to morale and the effectiveness of the unit if a member could say at the end of the fourth day, I'm not working on the fifth day with no additional compensation. Do you see that?‑‑‑Yes.
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN453
You say that I know that how I would feel in that situation and it is not something I wanted to promote?‑‑‑Yes.
PN454
That's your evidence about morale, is it?‑‑‑Yes.
PN455
You're actually giving your own personal view of how it would affect you in relation to morale?‑‑‑Of how it would affect me yes, and how in my mind how it would affect others.
PN456
Yes, in your mind. You didn't conduct a survey did you of the - - -?‑‑‑No, I didn't.
PN457
No. Did you speak to any detectives?‑‑‑No.
PN458
Mr Emery has given evidence that at the time that he proposed the change, he had no negative reaction from the other detective in the unit. You haven't got any evidence to suggest to the contrary, do you?‑‑‑No, I don't.
PN459
So, that's what you're referring to by the fifth day, aren't you? You're worried that if he was to go and work four days and you're down and he didn't work on the fifth, that other detectives might be concerned because he was still getting the COT. That's what you're talking about when you referring to the fifth day?‑‑‑No, not so much the cot, just being there in general. So, if for explanation, if they were working on an investigation and they worked four 10 to 12 hours day in a row, on that fifth day they're required to come back again, do it all over again, where Gary wouldn't be required to come back and do that again. So, they're working the same hours, they're working on the same job but one of the crew doesn't have to come back on that fifth day where the rest of the crew would have to come on. That is how I see it.
PN460
That is how you were seeing it?‑‑‑That's right, yes.
PN461
Well, you've read the reply statements that have been filed from the detectives in the CIU?‑‑‑Yes.
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN462
None of them have expressed any concern. Does that satisfy your concern about morale?‑‑‑No, and the reason being, so mine was in relation to the DRU which has predominantly and when I say predominantly four to two seconded members to detectives. One of those more junior impressionable members that are really just starting off their careers. But I don't think - in answer to your question, no, having the senior detectives provide those statements in relation to CIU work doesn't impact my thinking in relation to my thought at the time as a DRU work in the environment that it is.
PN463
Right, but your evidence is you don't know one way or another what the position would have been from those junior people that you're referring to?‑‑‑No, that's right, yes.
PN464
For all you know, they could have been enthusiastically supporting that, as supportive. That's just as much a possibility as the other?‑‑‑Yes.
PN465
Well, on that hypothesis, if it was possible that they were just as enthusiastic as - then that would satisfy your concern in relation to workplace harmony, if indeed that was the case, wouldn't it?‑‑‑In relation to that aspect of it, I don't know. I would have to speak to them to see what their thought was.
PN466
Well, inspector you've given your evidence. You had an opportunity to ask?‑‑‑And I don't disagree with you by any means, but I don't - it's a hypothesis.
PN467
It is a hypothesis, but it's one you've advanced inspector as the basis to reject this request and your evidence to the Commission is you don't have any evidence that supports the concern that there would be a damage to workplace morale. Isn't that the case?‑‑‑That's the case, yes. I don't have any evidence.
PN468
It is the case, just while we're talking about the COT, it is the case isn't it, that detectives who are in recept of the COT maybe expected to, or could be, or could work longer than eight hours?‑‑‑Yes.
PN469
The police force incurs no additional labour cost until they're directed to work in excess of 12?‑‑‑That's correct, yes.
PN470
Which is rarely done?‑‑‑Once again, depends on rarely, but I may get an average of one or two members a week out of 40 odd - close to 50 detectives.
PN471
But you accept, wouldn't you, that whether or not an officer - I'll withdraw that. Whether or not the force incurs an additional labour charge is all dependent on whether the police force directs that work in excess of 12 hours?‑‑‑No, I don't agree with that.
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN472
So they just work it themselves and the police would be - - -?‑‑‑No, I'd say if the job they're doing necessitates that, so for instance, you might have a detective working on a robbery that comes down at the end of shift and they might work processing offenders 13, 14 hours, I'm not directing that they do those 12 or 14 hours. It's probably the job necessitates that they do those 13, 14 hours, if that's clear.
PN473
Yes, I think what you're saying is that if the demands of the work require them to work in excess of 12 hours, then you say the force would be obliged to pay them penalty rate that applies?‑‑‑Yes, that's right.
PN474
Is that right?‑‑‑That's correct.
PN475
It's the case then, that whether or not someone was working on a standard roster - if I can use that expression, of five by eight or whether they were working on the roster that Mr Emery is proposing, work in excess of 12 hours would attract the same penalty?‑‑‑Yes, I don't know the answer to that question. Like whoever decided the 12 hour mark for the OT.
PN476
Yes?‑‑‑It wasn't me and I couldn't even assume. I don't know what would happen in those cases, to be honest.
PN477
Well, put it this way, if an officer decided to leave work - a detective decided to leave work at eight hours and 10 minutes, every day?‑‑‑Yes.
PN478
He or she would be entitled to be paid the COT?‑‑‑Yes.
PN479
If a detective was to work 11 hours and 59 minutes, they would be entitled to be paid the COT?‑‑‑Yes, they're entitled to it and they do get paid the COT, yes.
PN480
Yes, that's right. So, short of a direction from the police, or from you representing the police, that they work in excess of eight hours, it's in the hands of the detective themselves as to whether or not they work in excess of eight, up to 12?‑‑‑Yes, that's right, yes.
PN481
That's right. That would apply - I'll withdraw that. It is the case, isn't it, inspector, that at the time that the application was made, that is Mr Emery's application, the DRU was effectively a fifth shift of the CIU. A fifth crew?‑‑‑A fifth crew, at Mornington Peninsula, yes.
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN482
Yes, a fifth crew. It is also the case, isn't it, that DRU detectives would perform crime shifts and response shifts?‑‑‑Not just the detectives on there, but seconded members onto that crew as well, yes.
PN483
Well, if I could perhaps tease that out. If you're in the DRU, you would be expected to perform a crime shift?‑‑‑They were being rostered on for those crime shifts and the night shifts and the afternoon response shifts, yes.
PN484
And they'd be on - yes, I think you just mentioned the response shifts, so they'd still be rostered on to the response shift too.
PN485
Really, it's the case isn't it, that apart from the nature of the investigations that were being performed by the DRU, the rostering arrangements were largely similar?‑‑‑They were, yes.
PN486
There was some evidence given that in terms of the work that's performed by the investigators, by the detectives, each detective has an investigation in which they're substantially responsible for. Do you agree with that?‑‑‑At the DRU, not so much. I don't think it's that clear. Definitely the CIU for sure. At the DRU my expectation would be that there could be a nominal informant, is what we call the person who ends up signing the police charges. But I would expect that particularly, as I say because there are junior members there, that's a crew job and the crew sergeant would supervise that job. Just one person nominally could be in charge of that job, but definitely the nature of the work and my expectation is that it would be a crew team role.
PN487
You've given some evidence about your expectation and also the possibility that it could be allocated to an individual. Is that because you, yourself, don't know because you haven't done the work in the DRU yourself?‑‑‑No, well I've definitely done the work in the DRU albeit 17 years ago or more, but at that time, I mean that's where my expectations come from, is that they're crew jobs, yes.
PN488
You're giving evidence about your expectations, not the work and how it was performed at the time, because you don't know, do you?‑‑‑No, I don't know whether that was in relation to that, no.
PN489
Likewise, Mr Emery has given some evidence about the extent to which he performed administrative duties at his desk. You can't say to the contrary, can you?‑‑‑In relation to how many hours or percentage wise?
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN490
What proportion of his work was at his desk as opposed to field work?‑‑‑No, I can't give evidence to the contrary that was what he did, no.
PN491
Bear with me for a second please. You said in your 21 June letter, that's JC4 of your statement that you are concerned that there would be risks associated with fatigue from him, that is Mr Emery working on the proposal that he put through his request. You see that?‑‑‑Just refer me to the paragraph, sorry.
PN492
It's the first dot point. You've rolled up a number of things in that dot point, but it sort of concludes with - - -?‑‑‑Correct.
PN493
There's occ health and safety risks associated with fatigue?‑‑‑Yes.
PN494
You're not able to offer any evidence to the Commission are you, of what those risks are?‑‑‑The risk of someone being fatigued, do you mean?
PN495
Well, no the risks associated - you assert that there will be risks of fatigue arising from Mr Emery performing the roster that he proposed?‑‑‑Yes.
PN496
You don't offer any evidence to the Commission of what those risks are, do you?‑‑‑Not necessarily, no.
PN497
Sorry?‑‑‑No, I don't.
PN498
No. It's the case, isn't it, on your own evidence that Mr Emery had been working between nine and a half and 10 hours for the period that you've put in the table in JC3?‑‑‑Yes.
PN499
You don't assert that that created any risks to him of fatigue, do you?‑‑‑No, not that I know of.
PN500
No. You haven't been advised by HR or any other part of the force that explains to you exactly what those risks are and how they might be avoided, have you?‑‑‑No.
PN501
I think in paragraph 33 of your statement, you disagree with some evidence given by Mr Emery that the arrangement would not result in any extra costs to the employer because you say that the COT compensates him for working five by eight hours plus overtime?‑‑‑Yes.
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN502
That's just your opinion, is it?‑‑‑No, well it's - as we discussed before, so up until the 12 hour mark, the members are paid overtime. So basically, that's their COT comes into effect. So for Gary, anything up until that 12 hours basically he's attracting two hours of that COT is my understanding of it.
PN503
Yes, it's the case, isn't it - well, you've said it compensates him for working five - you mean five days?‑‑‑Yes.
PN504
By eight hours?‑‑‑Yes.
PN505
I put it to you again, that's your opinion, is it?‑‑‑Yes.
PN506
You don't have detailed knowledge of the agreement?‑‑‑No.
PN507
It doesn't come from that?‑‑‑No.
PN508
No. And you would accept, wouldn't you, that a key difference between the proposal of Mr Emery and well, perhaps if I could put it this way, if the proposal of Mr Emery was to be approved, that would enable, wouldn't it, those sergeants who were rostering to take into account the new roster on a planned basis?‑‑‑Sorry, can you just clarify that?
PN509
Well, if his roster was approved four by 10, then rostering sergeants would know in advance what his working hours are. They would be able to accommodate that in the roster for him?‑‑‑Yes.
PN510
They would be able to accommodate that in the roster for other detectives working in the unit?‑‑‑Yes, I don't know how it impacts as far as rostering goes. He'd still be rostered on his crime shifts, on the response shifts, but yes, I'm not clear on the impact on the other detectives as far as the rostering side goes.
PN511
I'll put it this way, Mr Emery's evidence has been - he's had a conversation with Mr Hocking, Senior Sergeant Hocking perhaps. Maybe I'm getting his rank wrong?‑‑‑Sergeant, yes.
PN512
I think his evidence is that Sergeant Hocking rostered shifts in the DRU and also rostered shifts in the CIU?‑‑‑Yes, if that's what you told me before, yes.
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN513
Yes, that's right. Mr Emery's evidence is that Sergeant Hocking saw no problem?‑‑‑Okay.
PN514
You don't have any reason to disagree with that, do you?‑‑‑No. No, I don't. As in, I've had no conversation with Hocking regarding the rostering side of things.
PN515
You haven't even spoken to him?‑‑‑No.
PN516
Right. Likewise, as we've discussed, Acting Inspector Majstorovic believed that the request could technically be accommodated. You have no reason to disagree with that either, do you?‑‑‑I mean the request could be accommodated. There are impacts, but yes.
PN517
It could be accommodated?‑‑‑Yes.
PN518
THE COMMISSIONER: Mr Harding, would that be a convenient point to break for lunch?
PN519
MR HARDING: It would. I had finished the cross-examination, so I'm not sure whether my friend had any reply?
PN520
THE COMMISSIONER: You have finished?
PN521
MR HARDING: I have finished, yes.
PN522
THE COMMISSIONER: I see.
PN523
MR HARDING: She might wish to re-examine him, in which case we could perhaps do that.
PN524
THE COMMISSIONER: I misunderstood the cues. Ms Preston, do you wish to re-examine at this stage? But before you do - I'm sorry, there's a couple of questions I wish to ask of my own.
PN525
When you refer in your evidence to fatigue issues, am I correct in understanding that that is only fatigue in relation to Mr Emery?‑‑‑Yes, that's right, yes.
*** JUSTIN ANTHONY CORNFORD XXN MR HARDING
PN526
Thank you. Then are you able to give me a brief explanation as to what the DRU is, and what the CIU is?‑‑‑So, the CIU, the crime investigation unit, they predominantly do reported crime. So, anything that a victim reports and it fits their criteria, so burglaries, thefts, crimes against persons, assaults all at a serious higher level, the crime investigation unit would do. The CIU. The Divisional response unit predominantly is drug work or they go out and source their own work from intelligence, if you like. So, if people are reporting drug dealings from a neighbourhood, the DRU to be the response unit and investigate that. They deal with the reported crimes. They are more proactive in seeking out intelligence in relation to drug deals and they are - although the end goal is to investigate, detect offences and apprehend the offenders for both, drug work is, in my mind and my experience a lot different to the CIU work.
PN527
All right. Am I correct in thinking the DRU is predominantly or wholly focussed on drug work?‑‑‑90 odd per cent, yes.
PN528
I won't hold you to it, but thank you for that explanation. Is there anything arising from those questions.
PN529
MR HARDING: No, Commissioner.
THE COMMISSIONER: All right, thank you. Ms Preston.
RE-EXAMINATION BY MS PRESTON [1.01 PM]
PN531
MS PRESTON: Just one question, Commissioner, if I might. You mentioned that there were risks of fatigue associated with the arrangement. What are the risks of fatigue?‑‑‑
PN532
MR HARDING: Actually, I asked questions in cross-examination about it and he gave his evidence. Now my friend is seeking to reopen a new topic.
PN533
THE COMMISSIONER: I'm sorry, I didn't discern the difference between he questions in cross-examination or the question that she just asked.
PN534
MR HARDING: My question to the inspector in cross-examination was that there were no risks as he's given evidence about, and he agreed. Well, he did.
*** JUSTIN ANTHONY CORNFORD RXN MS PRESTON
PN535
MS PRESTON: My understanding of the evidence was that the witness didn't give the detail of the evidence of the fatigue, not that he denied that there was any issue of fatigue. He wasn't asked the question. He said there was no mention of what the effects. He hasn't stated what the effects of fatigue are. So now I'm giving him the opportunity to state the effects.
PN536
THE COMMISSIONER: All right, I think I should allow it, but we'll see whether that requires further questions from Mr Harding. So, please proceed.
PN537
WITNESS: Can you ask the question again, sorry.
PN538
MS PRESTON: Yes, sorry, the effects of fatigue, what are your concerns there?‑‑‑I suppose, obviously I'm not an expert in fatigue, but I can only speak for myself and it's just around the clearer thinking. When members enact, I suppose, a 12 hour limit for overtime and some of the things our supervisors should be put in place, that I expect them to put in place around how do you get home safely, when your next rostered shift. So, just around general functioning, vehicle functioning and being able to think straight, I suppose. But as I say, I'm not an expert in fatigue other than suffering it.
PN539
MS PRESTON: Nothing further.
PN540
THE COMMISSIONER: Thank you. In that case, thank you Mr Cornford for giving evidence this afternoon. You are released and free to go and we'll adjourn until 2 o'clock.
I'm sorry, Ms Preston.
<THE WITNESS WITHDREW [1.04 PM]
PN542
MS PRESTON: Sorry, just one issue. We've got Inspector Cecchin coming and then there's going to be Commander Hollowood. I'll probably need about half an hour with Commander Hollowood before he gives evidence, in light of the further evidence that's been filed and other matters arising. I'm just looking at the time and thinking - - -
PN543
THE COMMISSIONER: You'd prefer to resume sooner?
PN544
MS PRESTON: Or if Commander Hollowood could be tomorrow morning and then we have him and submissions tomorrow and then we know that we've got enough time to get through everything tomorrow.
*** JUSTIN ANTHONY CORNFORD RXN MS PRESTON
PN545
THE COMMISSIONER: All right, well look in my case I'll let you know this. I'm quite comfortable with a half hour break if that works for you. At the same time, I need to let you know that I need to break at 4 o'clock for another matter and I can't resume before at least 10 o'clock tomorrow. Now would it be best to proceed for you?
PN546
MS PRESTON: I don't think that we would consuming more than a day tomorrow with Commander Hollowood and submissions.
PN547
THE COMMISSIONER: Sure, so in that case does that mean we'll deal with Mr Cecchin this afternoon and then Mr Hollowood tomorrow?
PN548
MS PRESTON: I'd be grateful for that Commissioner.
PN549
THE COMMISSIONER: Right, we'll proceed on that basis. Thank you.
LUNCHEON ADJOURNMENT [1.05 PM]
RESUMED [2.00 PM]
PN550
MS PRESTON: Thank you, Commissioner. If I could call to the stand Inspector Cecchin.
PN551
THE COMMISSIONER: All right, thank you.
PN552
THE ASSOCIATE: Please state your full name and address.
MR CECCHIN: Anthony Cecchin, (address supplied).
<ANTHONY CECCHIN, SWORN [2.00 PM]
EXAMINATION-IN-CHIEF BY MS PRESTON [2.00 PM]
PN554
THE COMMISSIONER: Mr Cecchin, please be seated.
PN555
MS PRESTON: Thank you, so could you please state your name, position and work address for the Commission?‑‑‑Yes, Anthony Cecchin. I'm a Detective Inspector and my office is housed at the Forest Hill Police Complex, Springvale Road, Forest Hill.
*** ANTHONY CECCHIN XN MS PRESTON
PN556
Thank you, and you've prepared a statement in this proceeding?‑‑‑Yes, I have.
PN557
Do you have a copy of that with you?‑‑‑Yes, I do.
PN558
In your pocket?‑‑‑In my pocket.
PN559
That is a statement dated 29 May 2018?‑‑‑It is, correct.
PN560
33 paragraphs and one attachment?‑‑‑33 paragraphs, and sorry, I don't have the attachment with me.
PN561
Perhaps the witness could be handed a copy of the attachment.
PN562
You should now have a complete copy of your statement and attachment?‑‑‑That appears correct, yes.
PN563
There's one attachment to that?‑‑‑Correct.
PN564
Is that the statement that you've prepared for the purposes of this proceeding?‑‑‑Yes, it is.
PN565
And is true and correct in every particular?‑‑‑Yes, it is.
PN566
I tender that, Commissioner.
THE COMMISSIONER: Thank you. I'll mark the witness statement of Inspector Cecchin dated 29 May 2018 with one attachment as exhibit R2.
EXHIBIT #R2 WITNESS STATEMENT OF INSPECTOR CECCHIN DATED 29/05/2018
PN568
MS PRESTON: Thank you. Since filing your statement, a number of further statements have been filed for the applicant in this case. Have you read those statements?‑‑‑Yes, I have.
*** ANTHONY CECCHIN XN MS PRESTON
PN569
How does the content of those statements affect your views as expressed in your witness statement?‑‑‑They don't alter my view.
PN570
Are there any general comments you would like to make in response to those statements?‑‑‑Not particularly, no.
PN571
In terms of the position that is stated in those statements that in reality there's no loss of a shift associated with the four by 10 arrangements, what do you say in response to that?‑‑‑I don't recall that particular statement or terminology, but in my view, that's incorrect.
PN572
Why do you say that's incorrect?‑‑‑Well simply, if one works a flexible or compressed four by 10 roster there are eight shift a fortnight worked rather than the 10 shifts per fortnight worked. So, that equates to two losses - a loss of two shifts per fortnight.
PN573
What concern do you have with that?‑‑‑I have a number of concerns. As I'll just reiterate what I've actually articulated in my statement. I don't see anything particularly wrong or erroneous with a case by case assessment of applications to work compressed rosters or flexible work arrangements. I think in some cases those shifts can be beneficial - certainly workable, depending on the dynamics of a particular office. In addition, it can in fact, be beneficial, but it needs to be assessed on a case by case basis. I have serious concerns about a blanket authority across the organisation to allow people to work compressed rosters. Because in my view, it will quickly become unsustainable, depending on the particular workplace, the dynamics of that workplace, the numbers of people working there, their additional requirements and responsibilities of that workplace. For instance, in a number of workplaces not only do the detectives have their calling - their responsibilities or duties, but I've got to provide detectives for morning crime shifts, afternoon response crime shifts, not only in their particular police service area, but also the division, in some cases, part of a region, and also night shifts. Also, there's a number of - whole range of additional responsibilities and tasks I need to provide detectives for. So, very quickly if I had an office where the majority of some of the people, detectives applied for flexible work arrangements and those applications weren't carefully assessed, I'd simply run out of detectives. Really, in my view, you really need to be careful, or give careful consideration as to what the dynamics of the office is, the responsibilities of that office, for what tasks detectives need to be assigned to or required for because I don't get replacements. Once I lose a detective, I lose shifts, that detective or shift is not replaced. As I've also articulated in my statement - - -
PN574
If it's just repeating what's already in your statement?‑‑‑I've got something else to say, but - - -
*** ANTHONY CECCHIN XN MS PRESTON
PN575
If there's something you wanted to add, then please?‑‑‑Within our particular division, for instance, we've got a situation where we've got 41 people that have been approved for flexible work arrangements. That equates to a loss of 1,760 shifts a year. Again, if we grant blanket approval for that loss of shifts, particularly in my specific command which is the I&R command, or investigation and response command, again, I'll quickly run out of detectives. So what I'm saying is, we really need to carefully consider this proposal in a case by case basis, yes, I can see some benefits. It was only last week in fact, I approved flexible work arrangements for one of my people, for a compressed roster. That's because that particular individual one of his children has been diagnosed with a serious illness. So in that case, it actually works. It's beneficial for him and it's beneficial for the organisation because we just don't lose him off the roster. He's actually still coming to work because he wants to come to work.
PN576
You said you have 41 people approved. Are they uniformed staff members?‑‑‑They are a combination of general duties staff, as well as investigation and response staff. Investigation and response staff comprise of detectives, those that are receiving COT, as well as non-detectives those not receiving COT.
PN577
Sorry, what?‑‑‑Non-detectives, general duties staff. In my case, mostly crime desk, forensic and science services personnel that I manage.
PN578
Those employees are different from detectives who receive COT?‑‑‑Correct. They work in uniform and essentially work a specific shift. Quite often it's a seven to three or a four to eight, if not an afternoon shift when they're required.
PN579
No further questions, Commissioner.
THE COMMISSIONER: All right, thank you. Mr Harding.
CROSS-EXAMINATION BY MR HARDING [2.10 PM]
PN581
MR HARDING: Inspector Cecchin, you say you've approved 41? In compressed rosters that's four by 10, is that what you mean?‑‑‑I haven't approved the 41. Sorry, perhaps I misrepresented that. In our particular division which comprises of four police service areas, including my investigation and response command.
*** ANTHONY CECCHIN XXN MR HARDING
PN582
Yes?‑‑‑We have approximately in total, 600 members. Of those 600 members across the various commands in our division and there's 21 divisions in the state, there's been approved 41 flexible work arrangements by other inspectors including some by myself as well.
PN583
Yes, so your concern is as you've articulated, you don't want a blanket approval?‑‑‑Correct.
PN584
What you want is to make a case by case assessment in the particular circumstances in which the detective works or any other police officer?‑‑‑Yes.
PN585
THE COMMISSIONER: Mr Cecchin I'm not clear, the 41 that's been approved, are in what part of Victoria Police? All of it or some of it?‑‑‑No, just a minimum part. How do I explain this? There are 21 geographical divisions within the state.
PN586
Yes?‑‑‑I work in one of those geographical divisions which is called Eastern Region Division One. That division comprises 600 members. It provides police services to the municipalities of Monash, Whitehorse, Manningham and Birregurra.
PN587
So the 41 is within that division?‑‑‑Correct.
PN588
Right?‑‑‑My I&R component is about 180. It waxes and wanes. I think I've approved - I've got four detectives and perhaps two or three others, non-detectives that I've actually personally approved. The others comprise of the other inspectors who are in charge of the particular police service areas. So, I'm combining what's been approved in our division.
PN589
MR HARDING: Two of those are Mr Nolan and Mr Mitchell?‑‑‑Correct.
PN590
They form part of the 41?‑‑‑Correct.
PN591
I suppose what you do in relation to Mr Nolan's application in your statement from paragraph 15, is to assess the circumstances that were relevant to him obtaining the flexible arrangement and you thought it was appropriate that he should in the circumstances, apply to him. Is that a fair summary?‑‑‑Yes.
PN592
You thought likewise, it appropriate to grant the same flexibility for Mr Mitchell?‑‑‑Yes.
PN593
You set out in paragraph 32 some of the factors that were relevant to approving the request for Mr Mitchell?‑‑‑Yes.
*** ANTHONY CECCHIN XXN MR HARDING
PN594
They are set out in (a) to (d), you see that?‑‑‑Yes. One of the factors that you cite in paragraph 32 is that it was useful to grant that roster to manage his fatigue issues?‑‑‑Yes.
PN595
Because he got two rest days in addition?‑‑‑Yes.
PN596
Otherwise the evidence that you give in paragraphs 7 to 14 of your statement which is under the heading Easter Region of Detective Work, do you see that?‑‑‑Yes, I do.
PN597
That evidence is to be read as your evidence about the area that you're managing in the eastern region?‑‑‑Yes, it does.
PN598
Thank you, no further questions.
PN599
THE COMMISSIONER: Thank you, any re-examination?
MS PRESTON: Yes, just one question arising.
RE-EXAMINATION BY MS PRESTON [2.14 PM]
PN601
You say that Mitchell was part of the Embona robbery squad?‑‑‑Correct.
PN602
He was working eight hour shifts before this alternating eight by 10 hour arrangement came into play?‑‑‑Yes.
PN603
When he was working eight hour shifts, was he still working longer than eight hours on each shift?‑‑‑On most occasions, yes.
PN604
When he worked the 12 hour shift - sorry, with the 10 hour shift arrangement, are you aware whether he, as a matter of practice, the hours he was working on that shift were the same as the hours he was working when he was rostered to work the eight hour shift? Do you want me to repeat the question?‑‑‑No, it's not necessary, thank you. Look, I'd only be guessing. I don't believe he would be working any more hours because he's working a 10 hour shift.
PN605
Yes?‑‑‑I believe he would perhaps work the same number of hours or notwithstanding, it would be a 10 hour day.
*** ANTHONY CECCHIN RXN MS PRESTON
PN606
Yes, thank you. No further questions, Commissioner.
THE COMMISSIONER: Right, thank you Mr Cecchin. You're released and free to go. Thank you.
<THE WITNESS WITHDREW [2.15 PM]
PN608
I'd say Ms Preston, that leaves us with Mr Hollowood, which will be tomorrow?
PN609
MS PRESTON: Yes, thank you for that indulgence, Commissioner.
PN610
THE COMMISSIONER: In that case, if it's appropriate to do so, we'll adjourn until 10 o'clock. Thank you.
ADJOURNED INDEFINITELY [2.15 PM]
*** ANTHONY CECCHIN RXN MS PRESTON
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSIONS....................... PN10
EXHIBIT #A2 APPLICANT'S OUTLINE OF SUBMISSIONS IN REPLY... PN11
GARY ROBERT EMERY, SWORN................................................................... PN83
EXAMINATION-IN-CHIEF BY MR HARDING.............................................. PN83
EXHIBIT #A3 WITNESS STATEMENT OF GARY EMERY DATED 01/04/2018 PN94
EXHIBIT #A4 REPLY WITNESS STATEMENT OF GARY EMERY DATED 19/06/2018................................................................................................................................. PN100
CROSS-EXAMINATION BY MS PRESTON.................................................. PN103
EXHIBIT #A5 BUNDLE OF DOCUMENTS - ATTACHMENTS A TO G OF APPLICANT'S MATERIAL........................................................................................................... PN136
RE-EXAMINATION BY MR HARDING......................................................... PN262
THE WITNESS WITHDREW............................................................................ PN278
EXHIBIT #A6 WITNESS STATEMENT OF DETECTIVE SERGEANT BRIAN NOLAN................................................................................................................................. PN283
EXHIBIT #A7 WITNESS STATEMENT OF DETECTIVE LEADING SENIOR CONSTABLE MITCHELL........................................................................................................... PN285
EXHIBIT #A8 WITNESS STATEMENT OF DETECTIVE SENIOR CONSTABLE ROHAN BROCK FILED 19/07/2018.................................................................................. PN287
EXHIBIT #A9 WITNESS STATEMENT OF DETECTIVE LEADING SENIOR CONSTABLE NICHOLAS SWEETMAN FILED 19/07/2018.................................................. PN289
EXHIBIT #A10 WITNESS STATEMENT OF DETECTIVE SENIOR CONSTABLE WILLIAM SIMPSON FILED 19/07/2018.......................................................... PN291
JUSTIN ANTHONY CORNFORD, SWORN................................................... PN342
EXAMINATION-IN-CHIEF BY MS PRESTON............................................. PN342
EXHIBIT #R1 WITNESS STATEMENT OF INSPECTOR JUSTIN CORNFORD DATED 29/05/2018 PLUS ANNEXURES......................................................................... PN353
CROSS-EXAMINATION BY MR HARDING................................................. PN371
EXHIBIT #A11 EMAIL DATED 27 MAY 2017............................................... PN412
RE-EXAMINATION BY MS PRESTON.......................................................... PN530
THE WITNESS WITHDREW............................................................................ PN541
ANTHONY CECCHIN, SWORN....................................................................... PN553
EXAMINATION-IN-CHIEF BY MS PRESTON............................................. PN553
EXHIBIT #R2 WITNESS STATEMENT OF INSPECTOR CECCHIN DATED 29/05/2018................................................................................................................................. PN567
CROSS-EXAMINATION BY MR HARDING................................................. PN580
RE-EXAMINATION BY MS PRESTON.......................................................... PN600
THE WITNESS WITHDREW............................................................................ PN607
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