WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2017 WAIRC 00822 CORAM : PUBLIC SERVICE ARBITRATOR COMMISSIONER D J MATTHEWS HEARD : TUESDAY, 13 DECEMBER 2016, MONDAY, 20 MARCH 2017, THURSDAY, 23 MARCH 2017, FRIDAY, 24 MARCH 2017, TUESDAY, 11 APRIL 2017, TUESDAY, 18 APRIL 2017, MONDAY, 3 JULY 2017, TUESDAY, 4 JULY 2017, WEDNESDAY, 5 JULY 2017, THURSDAY, 6 JULY 2017 DELIVERED : MONDAY, 18 SEPTEMBER 2017 FILE NO. : APPL 73 OF 2016 BETWEEN : WESTERN AUSTRALIAN POLICE UNION OF WORKERS First Applicant CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED Second Applicant AND COMMISSIONER OF POLICE Respondent CatchWords : Application for enterprise order - Relevant principles to be applied - Parties proposed enterprise orders contain agreed provisions - Agreed provisions are industrial matters and fair and reasonable in all the circumstances - Certain provisions remain in dispute - Consideration given to submissions and evidence of the parties and the fairness and reasonableness of disputed proposed provisions Legislation : Industrial Relations Act 1979 Police Act 1892 Result : Enterprise order to be made Representation: First Applicant : Mr M Ritter SC, of counsel, and with him Mr D Stojanoski of counsel Second Applicant : Ms A Wallish Respondent : Mr H Dixon SC, of counsel, and with him Mr R Bathurst of counsel Solicitors: First Applicant : Slater & Gordon Respondent : State Solicitor’s Office Cases referred to in reasons: Re Harrison; Ex Parte Hames [2015] WASC 247 Western Australian Police Union of Workers v Minister for Police (1982) 62 WAIG 1401 Cases also cited: 2017 State Wage Order (2017) 97 WAIG 693 CMFEU v Hamberger [2011] FCA 719 Fireman and Deckhands (Port Jackson and Manly Steamship Company Limited) Award [1959] AT 353 Hanssen v Construction, Forestry, Mining and Energy Union (Western Australian Branch) (2004) 84 WAIG 694 Hospital Employees Conditions of Employment (State) Award [1976] AR 275 Iron and Steel Works Employees (Australian Iron & Steel Pty Limited – Port Kembla) Award and Another Award [1965] AR 449 R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 Sealanes (1985) Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia and Ors (2004) 84 WAIG 3158 Shift Worker Case [1972] AR 633 The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority (2011) 91 WAIG 694 1750 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 97 W.A.I.G. The Executive Director Department of Education, The Liquor, Hospitality and Miscellaneous Union (WA Branch); The Executive Director Labour Relations Division Department of Commerce; The Liquor, Hospitality and Miscellaneous Union (WA Branch) (2010) 90 WAIG 615 The Minister for Health in his Incorporated Capacity under s 7 of the Hospitals and Health Services Act 1927 (WA) as the Hospitals Formerly Comprised in the Metropolitan Health Service Board, The Peel Health Services Board, an WA Country Health Service v Health Services Union of Western Australia (Union of Workers) (2015) 95 WAIG 52; [2015] WAIRC 00332 Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 Western Australian Police Union of Workers v The Civil Service Association of Western Australia Inc (2011) 91 WAIG 1851 Western Australian Police Union of Workers v The Minister for Police (1982) 62 WAIG 1401 Zhang v Canterbury City Council (2001) 51 NSWLR 589 Reasons for Decision 1 The necessary preliminary matters having been dealt with, the applicants filed a Notice of Application for an enterprise order to be made pursuant to section 42I Industrial Relations Act 1979 on 6 December 2016 attaching a copy of the enterprise order they sought. 2 The respondent filed a copy of the enterprise order he sought on 19 December 2016. 3 Under cover of letter from the respondent’s solicitors dated 8 June 2017, a draft enterprise order was provided to me which contained clauses agreed by the parties with the clauses remaining in dispute being marked for my attention. 4 Events at, and subsequent to, the hearing of the matter further defined the matters about which there was, and was not, dispute between the parties. 5 The following are the matters remaining in dispute and about which evidence was led and submissions made. Although there were two applicants I have not generally distinguished between them in my reasons as the second applicant simply adopted the evidence led and submissions made by the first applicant. Hours of Duty – Vote and Veto 6 The applicants seek a subclause, proposed clause 11(6), which would provide that any change to shift arrangements otherwise prescribed by the relevant clause may only occur if at least 66% of the employees affected by the proposed change agree to it, and the respondent, the Western Australian Police Union of Workers and the “Employee Relations Division” endorse the change. 7 The respondent opposes the proposed subclause. Hours of Duty – Missed Meal Break Payments 8 The applicants propose that there be no restriction upon the number of times within any given pay period that an employee can claim and be paid for a missed meal break (provided there is no more than one claim per shift). 9 The respondent proposes that the number of claims per pay period paid be limited to five, with any additional claims requiring the respondent’s approval before payment is made. Overtime 10 The applicants propose a paragraph, proposed clause 13(3)(a), which provides that the entitlement to payment for working overtime commences once an employee has worked more than 15 minutes outside the employee’s normal working hours. 11 The respondent proposes that overtime only be payable once an employee has worked more than 30 minutes outside the employee’s normal working hours. 12 The applicants also propose a paragraph, proposed clause 13(3)(c), which would have the effect that the calculations applied to payment for overtime worked would be done on a weekly basis. 13 The respondent proposes that the calculations applied to payment for overtime worked be done on a daily basis. 14 The difference between the two positions on this second issue is that under the applicants’ proposed clause the point at which the payment of overtime at double time, rather than at time and a half, is more likely to be reached under the applicants’ proposed clause than the respondent’s proposed clause. 15 The applicants propose that clause 13, whatever form it ultimately takes, ought not include the term “duly authorised officer.” The effect of this, as I understand it, would be that only the “employer” can direct that overtime be worked (and not a “duly authorised officer”) and in relation to certain agreements for the clearing of accumulated time off in lieu of payment for overtime, these would have to be between an employee and the “employer” and not between an employee and a “duly authorised officer.” 16 The respondent proposes that clause 13, whatever form it ultimately takes, include references to “duly authorised officer” in three places with the effect that a “duly authorised officer” may direct that overtime be performed and enter into the agreements referred to above in relation to the taking of accumulated time off in lieu of payment for overtime. Shift Rate Allowance 17 The applicants propose a subclause, clause 18(1), which provides that employees get the same shift allowance payment rates as sworn police officers. 18 The respondent proposes a subclause that provides the employees with particularised amounts for the life of the enterprise order, which amounts are lower than those to which sworn police officers are entitled. 97 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1751 Frontline Allowance 19 The applicants propose a clause, clause 30, which would provide that certain employees, protective service officers, be paid an allowance of 10% of their rate of ordinary pay. 20 The respondent opposes the clause and proposes no alternative clause. Annual Leave 21 The applicants propose a subparagraph, clause 32(1)(a)(ii), which would give employees working a “rotating roster”, defined by proposed clause 32(1)(d), 280 hours of annual leave. 22 The respondent proposes a clause which gives all employees, including those working a rotating roster, 240 hours of annual leave. The Arguments of the Parties in Relation to Each Issue Hours of Duty – Vote and Veto 23 The applicants say that what they seek for employees would align the conditions of employees with the sworn police officers alongside whom they work. The applicants say it is unfair for these two occupational groups to have different conditions in this regard, and especially so given that the employees perform duties which sworn police officers previously did and that, when sworn police officers did those duties, they enjoyed the conditions in relation to rostering the employees now seek. 24 The respondent opposes the proposed subclause. 25 The applicants say, quoting Senior Counsel for the first applicant, that the proposed subclause: “…has a potential to minimise disputes at the workplace and - for two reasons. One, because it democratises the process. And secondly, that there is less of a difference between what the Police Officers can do in relation to rosters and Police Auxiliary Officers working alongside them.” (ts 59) 26 The respondent says that the employees have operated under a rostering system which does not have the features the applicants seek for six or more years without, on the evidence, “any difficulty” (ts 189). 27 The respondent says that flexibility in rostering is important to him, that the applicants’ proposed subclause restricts that flexibility and that the evidence does not support “the type of restrictions which are put forward on the practices that have been demonstrated to operate without any difficulty or any unfairness” (ts 189). 28 To the extent that the applicants seek an alignment with conditions regulating sworn police officers, I sought information on the history of the relevant conditions for sworn police officers and was informed by the parties, and I think I can summarise the positions of all neutrally, that the relevant conditions were given in exchange for the respondent securing the agreement of the Western Australian Police Union of Workers to the potential for greater flexibility in the rostering of sworn police officers. Hours of Duty – Missed Meal Break Payments 29 The applicants say their proposed subclause “…simply involves an alignment with police officer conditions working in the same spheres or work and in some instances the same station and it is fair to align in those circumstances” (ts 59). 30 Later the applicants expanded their argument in support of the clause beyond parity to say that as a matter of inherent fairness there should not be, within the enterprise order, a discretion residing in someone to refuse a missed meal break payment if the meal break has been missed (ts 339). 31 The respondent says that the current arrangements have been in place for some time and that there is no evidence of problems with their operation. The respondent says the evidence is that if employees “miss their meal breaks, they are entitled to put in a claim and when the claim is put in”, at least as far as the evidence goes, they are not refused (ts 195). Overtime 32 The applicants rely on “consistency and parity with sworn officers” and the minimisation or avoidance of dispute in the workplace arising out of the lack thereof (ts 59 – 60). 33 The applicants expanded their argument in support of the clause beyond parity to say that it is inherently unfair for the enterprise order to operate, as the respondent seeks, in such a way that “you can work for 29 minutes [extra] every day of your shift and get nothing” (ts 338). 34 The respondent says that there is no evidence of employees having to regularly work beyond their normal hours, that where there is an entitlement to overtime under current arrangements it is paid without difficulty and that the nature of the work done by sworn police officers is such that there are good reasons why they should have a differently formulated overtime entitlement to the employees (ts 194 – 195). 35 In relation to the term “duly authorised officer”, the applicants say that overtime will still need to be authorised if the term does not appear, so there is no risk to the respondent, but that it is desirable that overtime does not have to be authorised by a “duly authorised officer.” 36 The applicants explain it this way at [54] and [55] of their Outline of Closing Submissions: “…out of necessity, senior officers and representatives [other than “duly authorised officers”] may be required to direct police auxiliary officers to perform overtime in circumstances where formal delegation of authority in a written form has not occurred [and] in such cases, overtime must still be approved by the employer before it is paid, however, the removal of the reference to duly authorised officer provides greater flexibility to accommodate unknown or unanticipated situations.” 1752 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 97 W.A.I.G. 37 The applicants did not argue that “parity and consistency” with sworn police officers was a string to their argument’s bow but observed, at [56], that there is no reference to “duly authorised officer” in the industrial agreement provisions regulating overtime for sworn police officers. 38 The applicants made no submissions in relation to why the agreements in relation to the taking of accumulated time off in lieu should not be entered into by a “duly authorised officer.” Obviously the argument made on the ground of the “exigencies of the situation” does not apply to such agreements. 39 The respondent argues that the matters he proposes be authorised by the “duly authorised officer”, where he includes the term in his proposed clause, “should only be given or allowed by a person with the authority to do so” ([60] of respondent’s Outline of Opening Submissions) and that if it is to be the respondent himself who must give such approval this would be “entirely unworkable” ([59] of respondent’s Outline of Opening Submissions). Shift Rate Allowances 40 The applicants rely on “consistency and parity” with sworn police officers “given the circumstances in which the nature of shift work for employees is identical to that experienced by sworn police officers” (ts 60, 339). 41 The applicants also rely on some evidence about staffing levels and workload at the Perth Watch House, and the extent to which these issues have affected adherence to written policies and procedures and caused stress and fatigue to employees. 42 The respondent repeats its argument to the effect that the employees are a different occupational group to sworn police officers and that there is no basis for alignment established by argument or evidence. 43 The respondent argues the evidence about staffing levels and workload is irrelevant. Frontline Allowance 44 The applicant says the allowance ought be paid to employees to “compensate for the additional skills, responsibilities, risks and hardship associated with the particular duties of [protective service officers]” (ts 60). 45 The respondent says that the position of protective service officer was classified having regard to the “skills, responsibilities, risks and hardship” associated with it and that absent an application for reclassification of the position, not made here, there can be no justification for an allowance to compensate for matters already acknowledged by the position’s classification (ts 195). Annual Leave 46 The applicants say that those involved in particular types of shift work, with some of the employees being an example, are, across other industries, “not uncommonly” entitled to an “additional week of annual leave.” The applicants say that such an entitlement would enhance the working conditions of employees and “has the potential to increase industrial harmony and also decrease attrition rates” (ts 61). 47 Reliance was placed on the decision of Fielding C in Western Australian Police Union of Workers v Minister for Police (1982) 62 WAIG 1401 which refused an application for an increase in the annual leave entitlement of sworn police officers from six weeks to seven weeks. As I understand the argument, it was that insofar as Fielding C was unwilling to grant the application in that case because it would apply to all sworn police officers, including those who did not work on a rotating roster pattern, that problem does not arise here because the additional week of leave is only sought for employees who work a rotating roster pattern. (ts 337) 48 The applicants also say, at [42] of their Outline of Closing Submissions, that the employees on a rotating roster pattern work public holidays without payment of penalty rates and that, while six weeks of annual leave may compensate for that, “there is no additional consideration built into that leave entitlement for shift work, that is, having to work weekends and the reduction in leisure and family time that results from shift work.” 49 The applicants say six weeks of leave compensates the employees only for working public holidays at their ordinary rate of pay and not otherwise. 50 The applicants also rely on some evidence about staffing levels and workload at the Perth Watch House, and the extent to which these issues have affected adherence to written policies and procedures and caused stress and fatigue to employees. 51 The respondent, while not taking issue with the contention that shift workers typically enjoy an “additional week of annual leave”, questions the base to which the additional week of leave is added. The respondent notes that employees under his proposal have an entitlement to six weeks of annual leave and the “additional week” sought by the applicants would be a seventh week of leave. The respondent says that the “community standard” for annual leave remains four weeks of leave with an additional, and fifth, week of leave where shift work is performed. 52 The respondent says that the requirement to work shifts, and public holidays at normal time, will be reflected in the employees having not just five, but six, weeks of annual leave and that there is no support, including in the decision of Fielding C, to be found anywhere for persons receiving six weeks of annual leave to receive a seventh week of annual leave because of shift work or working public holidays at normal time or for any other reason. 53 The respondent argues the evidence about staffing levels and workload is irrelevant. Additional Arguments 54 The respondent pointed to the fact that many of the matters in relation to which the applicants and the respondent disagree have been the subject of provisions in an industrial agreement for some years and that the provisions he seeks be included in the enterprise order mirror those provisions. 97 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1753 55 The respondent placed reliance on a lack of evidence of complaints and disputation about the matters the subject of clauses sought by the applicants for inclusion in the enterprise order and said that the alternative clauses he says should be included “have been demonstrated to work effectively” (ts 306). 56 The applicants addressed reliance on such an argument in closing submissions (both oral and, in outline form, in writing) by saying that there is no onus upon an applicant for an enterprise order to establish that a term or condition has, in the past, operated in an unfair way for an alternative to be adjudged, by the