1 Fair Work Act 2009 s.739 - Application to deal with a dispute Mr Larry Goldsworthy v Victoria Police T/A Victoria Police (C2023/3617) COMMISSIONER PERICA MELBOURNE, 28 FEBRUARY 2024 Alleged dispute about any matters arising under the enterprise agreement and the NES INTRODUCTION [1] This decision concerns the refusal by Victoria Police of the application by Sergeant Larry Goldsworthy (the Applicant) for four weeks of purchased leave. [2] On 30 June 2023, the Applicant filed an application under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute over the rejection of his purchased leave request in accordance with clause 10 the dispute settlement procedure in The Victorian Police (Police Officers, Protective Service Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (the Agreement). [3] The Commission attempted to conciliate the matter on 17 July, 25 July, 3 August, and 8 August 2023. Following the last conciliation, the Commission issued a Statement on 11 August which set out the question to be considered in this arbitration: “[6] The Commission will arbitrate the matter and determine the dispute by answering the question: Were the stated grounds reasonable business grounds in accordance with the Agreement? [7] If the Commission decides the stated grounds are not reasonable business grounds the Respondent will allow the Applicant to take purchased leave within a reasonable period after the decision.” [4] For the reasons I publish below, the answer to the question “Were the stated grounds reasonable business grounds in accordance with the Agreement?” is “yes”. [2024] FWC 173 DECISION [2024] FWC 173 2 RELEVANT TERMS OF THE AGREEMENT [5] Part 15 of the Agreement is headed “Recreation Leave”. [6] Part 15 contains the following provisions: recreation leave entitlements of employees other than recruits in clause 124; the entitlement to leave loading in clause 125; leave entitlements for recruits in clause 126; a requirement to take leave in 127; and provisions allowing recreation leave to be cashed out in clause 128. [7] What follows in clause 129 is entitled “Purchased Leave” and provides: “129.1 Employees may apply to purchase between 1 and 4 weeks leave per year in addition to that provided in clause 124. 129.2 Applications for purchased leave may only be rejected on reasonable business grounds as described in clause 14.” [8] The cross reference in clause 129.1 is to the entitlement to 9 weeks of recreation leave, comprising 7 weeks of recreation leave plus 10 days accrued time off per year. [9] The reference to “reasonable business grounds as described in clause 14” refers to the description of reasonable business grounds in clause 14.10, which states: “Without limiting what are reasonable business grounds for the purposes of sub-clause 14.9, reasonable business grounds include the following: (a) that the new working arrangements requested by the employee would be too costly for the employer. (b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee. (c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee. (d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity. (e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.” JURISDICTION [10] The dispute settlement procedure is at clause 10 of the Agreement. It confers a right of arbitration at clause 10.6. No provision of the Agreement is excluded from arbitration. I am satisfied the dispute has been brought before the Commission in accordance with the dispute settlement procedure and that I have jurisdiction to deal with the dispute. [2024] FWC 173 3 BACKGROUND OF EASTERN DIVISION 4 AND THE APPLICANT’S PURCHASED LEAVE APPLICATION [11] The Applicant has been a police officer for 33 years. His current rank is Sergeant. He works from the Wodonga Police Station in Eastern Division 4 within the Eastern Region operational unit of the Respondent. Eastern Region and ED4 [12] The Respondent operates four operational regions across the State of Victoria. Each Region is separated into geographical Divisions. Each Division is geographically separated into smaller Police Service Areas (PSA). [13] Each operational Division has a command structure encompassing a Divisional Commander (Superintendent), Local Area Commanders (Inspectors) middle managers (Senior Sergeants), supervisors (Sergeants) and members at the operational level (Constables, First Constables, Senior Constables, and Leading Senior Constables). [14] Eastern Region is split into 6 operational Divisions, including Eastern Division 4 (commonly referred to as ED4) and two support/specialist Divisions. ED4 is geographically situated in the northeast of the State of Victoria. [15] ED4 is structured into three portfolios: two geographic PSAs (being Wangaratta PSA and Wodonga PSA) and one specialist portfolio known as Investigation Response (I&R) and Tasking and Coordination (T&C). The I&R group incorporates Criminal Investigation Units, Sexual Offences and Child Abuse Units, Family Violence Investigation Units and Crime Scene Services. The T&C group incorporates Highway Patrol Units, Intelligence Units and Proactive Policing Units. Staff within this portfolio hold specific qualifications to perform their role. There are three portfolios within the ED4 geographic area, each led by an Inspector. [16] ED4 is geographically the second largest Division in Eastern Region. It covers 26,807 square kilometres and has a population of 140,409. The geographical area traverses the Murray River east along the New South Wales border from Barmah National Park in the west to Kosciusko National Park in the east and Alpine National Park in the south. It incorporates six Local Government Areas (LGA) of Wangaratta, Alpine, Moira, Wodonga, Indigo and Toowong. The Applicant’s purchased leave application [17] On 28 February 2023, employees in ED4 were invited to submit an expression of interest in applying for purchased leave for the 2024 financial year for planning purposes. Once the formal process opened, members were able to apply for purchased leave through Victoria Police’s HR system, HR Assist. [18] On 17 April 2023, the Applicant applied for a total of four weeks of purchased leave for the 2024 financial year.1 He applied to take two weeks of purchased leave (76 leave hours) from 12 to 25 November 2023 and two weeks (68.40 leave hours) from 3 March to 16 March 2024. [2024] FWC 173 4 Sergeant Goldsworthy stated his reason for purchased leave as being to “proactively manage [his] mental health.” [19] On or around 10 June 2023, the Applicant approached Inspector Henry enquiring about the progress of his application. Inspector Henry advised him that he was unable to give him a definitive answer because ED4 was still forming its view on responding to members’ applications for purchased leave having regard to current resourcing and service delivery needs within the Division. [20] On 13 June 2023, Inspector Henry sent an email to the Applicant, and other members, notifying them that purchased leave applications would not be approved in the 2024 financial year. Inspector Henry states: “Reliance for this is within Clause 14.10 of [the Agreement] to support productivity to meet BMSL and support investigations and road trauma reduction areas of ED4.” The reference to 'BMSL' is to the Baseline Minimum Service Level, which is the minimum resourcing requirements to meet the minimum service levels. [21] On the same day, Inspector Henry rejected the Applicant’s application in HR Assist on the basis that: “ED4 would not be in a position to support road policing and investigative areas and meet BMSL.” [22] On 14 June 2023, Sergeant Goldsworthy sent an email to Inspector Henry requesting that he indicate on which reasonable business grounds his request had been refused. He also asked that his request to take purchased leave be reconsidered and approved. [23] On 23 June 2023, Inspector Henry sent an email to Sergeant Goldsworthy, which stated: “Hi Larry Please find my response to your email below, I have scheduled a further ‘in person’ discussion regarding Purchased Leave applications on Sunday. Eastern Region engaged with The Police Association of Victoria and Workplace Relations due to the volume of purchased leave requests received. TPAV and staff were formally informed in writing of our intention to review the purchased leave applications due to the volume of requests and the impact it would have on our ability to maintain service delivery. …Each application was assessed on an individual basis considering the applicants request and personal circumstances, and the Divisional capacity and service delivery requirements to keep our communities safe. Wodonga Police Service Area have liaised with you. You stated that the basis for your request was for the purposes of work life balance and personal interests. My reasonable business ground for supporting not supporting your request include. • Current resourcing at Wodonga Police Station is not able to satisfy or meet the full expectations of community safety and customer service demand. This is due to the additional resource challenges of supporting Corryong Police Station [2024] FWC 173 5 and Investigations and Response Units (I&R) working out of the Wodonga Police Complex and Corryong Police Station. • In particular, Wodonga Police Station will have to support Wodonga Highway Patrol and Corryong Police Station for a projected 430 and 150 shifts respectively. This is due to WorkCover, modified duties and vacancies with difficult staff attraction. • It is acknowledged that most support will be at Constable / Senior Constable level, however granting of purchased leave at Sergeant level for positions requiring backfill will diminish Constable / Senior Constables resources required to support as per above. • Wodonga Police Service Area (PSA), will have to support Investigations and Response Units based at Wodonga and Corryong Police Station from 17 July 2023.” [24] On 27 June 2023, Inspector Henry had a discussion with the Applicant, during which he confirmed that his application for purchased leave had not been approved and reference was made to the reasons set out in the email dated 23 June 2023. [25] This course of correspondence provides the Stated Grounds2 which are in issue in this proceeding. Whether or not the Stated Grounds are reasonable business grounds is the dispute I am asked to resolve through this arbitration. [26] It subsequently transpired that all ten of the uniform general duties officers who applied for purchased leave had been refused. EVIDENCE Witnesses for the Applicant [27] The Applicant called the following people to give evidence: himself; Ms. Siobhan Owen, who is an employment and business analyst employed by the Respondent; Sergeant Walter Larkin, who is currently employed in the Divisional Planning Office of ED4; Senior Sergeant Christopher Parr, who is a cluster commander in ED4; and Leading Senior Constable Glenn Allerdice, who is presently employed in Wodonga Highway Patrol. Sergeant Larry Goldsworthy [28] The Applicant signed a witness statement on 13 September 2023 which he tendered into evidence.3 He also filed a reply submission which contained contentions of fact.4 [29] He gave evidence that “more than 16,690 police officers and more than 3000 police work in Eastern Region. The Public Order Response has two hundred and fifty sergeants and other ranks that can and are deployed through the State to assist in general duties policing”.5 He states “the combined total of purchased leave requests equates to 165 shifts of full-time [2024] FWC 173 6 work or 33 weeks taking into account part time employment and 10 shifts. A full-time employee is ordinarily available 43 weeks a year.”6 [30] The Applicant attaches a table which he asserts shows that “since 2010 the population of Wodonga has increased 22% but the number of Sergeants has increased by 88%, other ranks by 26% and total crime by 15% in comparison to the long-term average.” He concludes that “any increase in crime is more likely a function of population growth.”7 [31] He also gave evidence on the leave roster prepared by the Eastern Region Divisional Planning Office to map out the planned leave for the year. He gave evidence that the roster was “constructed to take into account service delivery and that is why no more than 3 or 4 Sergeants of the 15 were to be on leave at any one time and 9 to 10 of the other ranks on leave of the 54 members at Wodonga.”8 The Applicant attached the approved leave roster accommodating his leave to his statement.9 [32] The Applicant analysed the human resource needs of the Wodonga Police Station. He pays particular attention to the backfilling by Sergeants between July 2022 and July 2023 including: “A Sergeant was upgraded to the Traffic Advisor Position at Wangaratta that position is now filled, another was upgraded to a staffing and co-ordinator role that has now been filled, one Sergeant performed temporary duties at Rutherglen Police Station, that position has now been vacated, a Sergeant performed temporary duties at the Wodonga Highway Patrol and one Sergeant relieved at the Wangaratta Sexual Offence and Child Investigation Team and the Criminal Investigations Unit.10 [33] He notes his purchased leave would be “effectively cost neutral” on the basis that he would pay $10,299 for four weeks’ leave against “accommodation and allowances for a replacement would be around $5057.22 for fortnight.”11 [34] The Minimum Station Service Profile for the Eastern Region was put into evidence by the Applicant.12 That document states that to achieve Baseline Minimum Service Level (BMSL) for Wodonga Uniform requires 40.063 full time equivalents (FTE) for other ranks and 13.559 for Sergeants. The Applicant argues the “current allocated strength for Wodonga Uniform is 54 for the other ranks (52FTE) and 16 for Sergeants.” He argues “all positions are either currently filled or soon to be refilled, this is well above MSP allowance for 515 additional weeks or 2580 additional shifts for other ranks”.13 [35] He gives evidence that the reason BMSL is not achieved is because of unplanned leave. On some occasions, a ‘251 driver’ has been utilised for a crime scene or hospital guard. According to the Applicant, BMSL is never breached because no one was available to be rostered. Rarely is it ever the Supervising Sergeant who has unplanned leave and there is always someone who will take on that role.14 [36] His evidence was that in an average month, there are 90 core shifts; day shift, afternoon shift and night shift. If there are 15 shifts in a month where BMSL is not achieved, there are options that include the payment of overtime or utilising staff from other stations. More often than not, the Supervising Sergeant will work alone, only responding as a backup unit to one of the van crews. The Sergeant still provides supervision, assesses risks, and attends incidents. [2024] FWC 173 7 The Applicant asserts: “the community does not experience any change in service because the Sergeant’s role is to supervise and not get caught up as the primary response unit”.15 [37] The Applicant, in the context of the staffing of Corryong Police Station relative to comparators in Beechworth, Rutherglen and Tallangatta, concludes “on average there are normally anywhere between 3 and 5 members on the roster at any one time”, and that having four members is “nothing unusual”.16 He notes that up until 2020, Corryong had one Sergeant and it was only in the last three years that there was an increase to 5 other ranks. He notes “there have been numerous occasions over the last decade where there have only been 3 or 4 members stationed at Corryong.” He notes that the “current roster requirements to assist Corryong with their staffing at Wodonga has been one officer from the other ranks for 3 days a week”, which he argues “is not a huge impost on the resources at Wodonga”. The Applicant provides statistics that the crime rate in Corryong in 2022-2023 (relative to some comparators) was not indicative of a “long term trend”.17 [38] The Applicant makes submissions of fact that (on that date) Corryong “is now back to having five other ranks on the roster” and “have been allocated a further two positions” and that they “should not be needing any further support from the Wodonga Police Station.”18 [39] The Applicant gives evidence that Wodonga Uniform members have provided one officer from other ranks to the Investigation Unit. During the 2022/23 financial year one Sergeant performed seven months temporary duties to the Sexual Offences and Child Investigation Team (SOCIT) at Wangaratta and one month at the Wodonga Criminal Investigation Unit. Ordinarily, if a uniform member is performing duties in this Unit, there is a reciprocated Investigation and Response member undertaking uniform duties.19 [40] The Applicant also gave evidence that Wodonga Highway Patrol had a vacancy for the Sergeant’s position on 7 July 2023 and “if the normal recruiting process is undertaken to be filled within 2 months. This will give that office a Sergeant and 6 other ranks. There will be no need for Wodonga Uniform to provide members to the Highway Patrol.”20 Ms. Siobhan Owen [41] The Applicant called Ms. Siobhan Owen, who is a business analyst for the Eastern Region of the Respondent. In her oral evidence, she was taken to two documents that were prepared as a result of a notice to produce by the Respondent’s Workforce Reporting and Analysis Office.21 [42] One was a table of the purchased leave applications which were approved, rejected, and withdrawn for the 2022/23 and 2023/24 financial years across the various parts of the Regions, Divisions, and other operational units of the Respondent.22 It showed the percentage of approvals across all four regions was calculated to be at 71%. On the basis of the Applicant’s own calculations, the percentage of approved purchased leave for ED4 was around 14%, with only four applications approved. [43] The second table concerned the approved purchased leave expressed in terms of full time equivalents, for the months of June to October 202323. It demonstrates that the level of [2024] FWC 173 8 purchased leave approved in ED4 was much smaller in terms of FTE than most other Divisions in the Eastern Region. Senior Sergeant Chris Parr [44] Senior Sergeant Parr is a Senior Sergeant in the Wodonga Police Service Area with 10 stations under his responsibility.24 He gave evidence on the ED4 purchased leave panel in which he had participated. He explained he was not given any explanation or information on the purchased leave panel process.25 There were no terms of reference or formal minutes kept. Inspector Henry, and a leading Senior Constable from the Divisional Planning Office, attended to give advice on the leave roster. Inspector Brad Sprague was not present. The assessment was based on personal circumstances and not reasonable business grounds.26 He explained the process as follows: “Well, they were just assessed by me, on each individual personal circumstances and I suppose, really, they were assessed on their personal circumstances and a couple I had a look at what resources I was pushing out of the Wangaratta uniform section to assist in other areas and whether I could overcome that.27 I've made a decision on each of my applications. Mr Henry went through each of his applications and made his own decision on each of those. Then we bounced off each other how we felt we did that and if we thought we were being reasonable, without conclusions.28 … the outcomes were they either got their leave or they didn't. In my case seven applications didn't get their leave and one person did, I asked for approval.”29 Sergeant Walter Larkin [45] Sergeant Walter Larkin made a Statement in the proceeding which was received into evidence.30 He is employed at the ED4 Divisional Planning Office and prepares the roster, taking into account all kinds of planned leave. He gave evidence on the preparation of leave rosters for the DPO. The roster takes into account: operational requirements at specific times of the year; adequate spread of leave across the 12 months to ensure ongoing service delivery; members’ individual requests; and consideration of other types of leave including purchased leave and long service leave.31 [46] In his oral evidence, he described the process of completion of the roster as follows: “…. We try to have the leave roster submitted for the financial year, by March. So to do that in March we like - we have to take everything into account, people's long service leave requests, their purchased leave requests, then we add that with the nine weeks leave and then spread it out over the year, so to fit evenly. We don't like to have too many people away at one time, particularly at high risk times, you know, around the fire season and that sort of stuff.32 We'd plotted the whole thing for all the purchased leave we knew about. I had a discussion with Senior Sergeant Martin, and I think he might have gone back to a few [2024] FWC 173 9 members and asked them to change it, which they were happy to do, and we were able to work around it.33 I mean purchased leave is one of the many things we take into consideration when preparing a leave roster over 12 months. Some years we may have a large amount of long service leave requests, which impact, you know, the paternity leave regulations now and all that sort of stuff, they're all - which we can't plan for, over the 12 months, because of people's circumstances come upon during that 12 months, unplanned leave, that sort of stuff. Yes, but purchased leave is one that, if this makes sense, that's one that we can actually plan for, as opposed to a lot of the stuff. A lot of the other burdens on the roster are in the unplanned element. So being prepared or pre-warned is better than not.”34 [47] He was cross examined on whether the roster ensured Base Minimum Staffing Levels were met. He gave evidence that the roster was designed to meet the BMSL standard, but it could be that sometimes it does not due to unplanned leave and WorkCover.35 Leading Senior Constable Glenn Allerdice [48] Leading Senior Constable Glenn Allerdice of the Wodonga Highway Patrol (WHP) gave evidence that on 9 May 2023, he made an application for second tranche of four weeks of purchased leave. This was supported by the Sergeant in Charge of WHP and on 29 May 2023, it was “approved” by Inspector Spraque on HR Assist. He was subsequently informed that his leave application was being reviewed.36 On 22 June 2024, he was informed that the purchased leave panel had not approved his purchased leave. He was subsequently given the business grounds on which his purchased leave application was rejected.37 [49] In his oral evidence, he was asked about the recent rise in road fatalities in the Wodonga Police Service Area. He was asked about a fatal accident where four people were killed near Chilton and stated he “did not believe visibility or elevated enforcement could have prevented that accident”,38 and that “a lot of the collisions I attend, and some fatal, sometimes enforcement and visibility simply won’t prevent that from happening”.39 He also gave evidence that “serious injury collisions and fatalities can fluctuate for no particular reason”.40 Witnesses for the Respondent [50] The witnesses who gave evidence for the Respondent were: Assistant Commissioner Anthony Landgon, who is the Assistant Commissioner for the Eastern Region; Superintendent Joy Arbuthnot, who is the Divisional Area Commander for ED4; and Inspector Paul Henry, who is Acting Superintendent for ED4. Assistant Commissioner Anthony Langdon [51] Assistant Commissioner Anthony Langdon is the Assistant Commissioner for the Eastern Region. In that role, he is responsible for (amongst other things,) “operational tasking and coordination, strategic management of high risk and unplanned situations, critical responses and emergency management” and is tasked with ensuring Eastern Region has a workforce that is capable of responding to these issues”.41 [2024] FWC 173 10 [52] He gave evidence that he “does not mandate how the Divisional Superintendents assess their business needs because they each have different service requirements”. 42 He also has no ability to permanently move resources between Divisions or to move one resource from one Division and move it to another.43 [53] His evidence was that in 2022, the Region paid approximately $400,000 to supplement Wodonga and Wangaratta Police Stations with an extra 13 resources. These resources came from within Eastern Region Division 1 and Eastern Region Division 2, and some were volunteers from other Regions. These additional resources were supplied as a result of lobbying by the Police Association of Victoria (TPAV). Assistant Commissioner Langdon expressed the view that “this is not sustainable as a solution to the resourcing challenges in Eastern Region because you constantly need to fill positions that you take resources from, so these 13 resources we received had to be replaced from resources elsewhere.”44 [54] His evidence was Eastern Region has approximately 213 sworn vacant positions and the attrition rate is not keeping up with vacancies. ED4 has its “own unique challenges” due to the geographical nature of the Division and the Minimum Service Profile allocation for the resources. The examples he gave were the responsibility for Alpine and snow policing, high road trauma in the region, and difficulty maintaining the general services profile, as well as a very high level of absenteeism due to members being on periods of WorkCover.45 [55] Assistant Commissioner Langdon gave evidence of leadership meetings and correspondence from February 2023 on the issue of resourcing in Eastern Region. [56] On 23 February and 25 May 2023, the Regional Leadership team (RLT) met to discuss the issue of purchased leave and its impact on resourcing in the Eastern Region. In those meetings, he raised a concern that in considering purchased leave applications, they had to take into account whether they could “meet Minimum Service Profile or have staff shortages”.46 They considered how they would “manage meeting MSP requirements, noting that purchased leave was one element in attempting to ensure [they had] enough FTE working at any time.”47 [57] On 13 June 2023, Assistant Commissioner Langdon received a report from Commander Nyholm which considered vacancy data and leave across the Eastern Region. The data indicated 298 members applied for between 1 and 4 weeks’ purchased leave, which equated to some 4,036 shifts that would be taken out of the system. The data also projected that the purchased leave applied for in ED4 was equivalent to 10.84 FTE and a total of just over 25 weeks’ leave.48 [58] Assistant Commissioner Langdon considered this was “not sustainable for me to run my business”, particularly where he was required to meet and maintain Baseline Minimum Service Levels, in terms of the numbers of members required in police vans, at police receptions and supporting Sergeant and Senior Sergeant drivers.49 It also did not factor in the high levels of members on WorkCover and flexible working arrangements. He considered there was an exorbitant number of shifts taken out of the system which could not be justified in light of the resourcing challenges faced, particularly also because the Region is known for emergency management events and holiday policing around the beach and alpine areas.50 [2024] FWC 173 11 [59] After receiving the data, Assistant Commissioner Langdon sent an email (the Langdon Email) to all Eastern Region Superintendents which read: “Hi all, Karen has been keeping me up to date with discussions around approvals for purchased leave within the Region. Accepting that we have not established a process within RLT for approvals I know that we have continually discussed this issue and that the likelihood of approving such applications would require significant scrutiny by you given our challenges with capacity. If the below data is correct if [sic] indicates that we have approved Regionally some 298.08 members for purchased leave, totally approximately 4,036 shifts for the year. I simply do not understand how we could sustain this and would like to know how you are going to manage your workforces with these absenteeism’s. My ability to support holiday policing and is unlikely if you have not taken into account your capacity, seasonal demands and need to service the community in an efficient way. The only way to manage this would be do deny members recreational leave over these periods which I also find unacceptable given some of our business decision making. I have already asked ED6 to contact HR to work through the mechanisms of cancelling their approvals and then to apply a risk assessment approach going forward. I request that you all undertake similar work as this is simply not sustainable for the Region and I am concerned as to how we have gotten here.”51 [60] Assistant Commissioner Langdon then engaged with the Workplace Relations Division of the Respondent to advise him on how he could cancel the purchased leave approvals and establish a process to “risk assess against business need”. Assistant Commissioner Langdon did not consider that ED4 needed a review process as, in his view, it already “had an effective review process”.52 [61] He instructed Acting Superintendent Mason to send an email which set out the steps for the assessment of purchased leave applications to all Superintendents. The reason he instructed Mason to send the email is he wanted them “to assess the business grounds as against the applications they had received for purchased leave”. He went on: “[An] application may be justified for varied reasons relevant to childcare, booked family or overseas holidays, or personal circumstances that could not be met through other entitlements.”53 [62] Between 14 June 2023 and 16 June 2023, Assistant Commissioner Langdon engaged with the Police Association of Victoria (TPAV) concerning the review process. On 14 June 2023, Assistant Commissioner Langdon had a conversation with the Secretary of the TPAV where they discussed the possibility of a review into all purchased leave applications for 3 or 4 weeks. There was then a discussion concerning the process for the review. It was to include proper consultation, some consideration of the needs of the employees (childcare, travel booked, timing of purchased leave), some consideration of the consequences of any decision and any alternate grounds, a consideration of the reasonable grounds for business need, and [2024] FWC 173 12 impacts of work location. Negotiations would be undertaken in good faith with possible reduction of the period of purchased leave.54 [63] On 16 June 2023, Assistant Commissioner Langdon wrote to the TPAV and informed it that there would be a review of all purchased leave applications made for 3 or 4 weeks across the Region and he caused an email to be sent to all affected members.55 [64] On that same day, Assistant Commissioner Langdon was informed by the TPAV that an email was received by affected members from Inspector Henry informing them that no purchased leave would be approved. Assistant Commissioner Langdon responded and indicated he would make sure that the email was rescinded.56 He then sent an email to Inspector Henry requesting that the correspondence be rescinded. What followed was a direction from Assistant Commissioner Langdon to Acting Superintendent Mason that the reviews be conducted in accordance with the Agreement.57 [65] Under cross examination, Assistant Commissioner Langdon was asked why the number of applications that were approved was much lower than elsewhere in the Eastern Region and whether he thought that was “fair”. He responded: “I think it's actually a decision based on the business need for the division at the time. And my responsibility – and I own this – my responsibility as the Regional Assistant Commissioner, is to set the strategic intent and direction for the region. When I first got there my main aim for the region was actually to have a professional frontline police service. What I mean by that is that all the members knew their responsibilities and they knew what was required of them. It was surprising to me that when we did a back- capture, that year the number of purchased leave applications were approved. This is why we went to this discussion at the start of this year in relation to the risk and need that was carried there. And organizationally I don't believe we actually fully understood where we were sitting with purchased leave applications. So, that's what I was saying, it's a steppingstone process for me. I think ED4 – it could be argued one way or the other whether they've hit the right mark or not, but they've literally booked it in relation to the business need of the community and their service. From my perspective, for the region, my other superintendents will do a very similar thing. It may have different outcomes and there may be different needs. And, as I've said, ED4 may very well not have the same profile next year. But organizationally, from my perspective, this is a piece of business that we need to look at it, and it's something that I decided to look at this year. Last year was really setting the foundation of our police response. This year was actually the governance and understanding the impact of the decision-making that we do in relation to providing service to the community.”58 Superintendent Joy Arbuthnot [66] Superintendent Joy Arbuthnot is the Divisional Area Commander (DAC) for ED4. Her evidence is that ED4 has one of the smallest human resource allocations in Eastern Region (having a total of 327 sworn members in June 2023) and it continues to be one of the Respondent’s most capacity-challenged areas.59 [2024] FWC 173 13 [67] As DAC, she has responsibility for the provision of policing services throughout ED4. She is responsible for maintaining sufficient staffing levels to protect the health and safety of members and to meet service delivery requirements. In performing this role, she must do so in a manner consistent with a number of strategic plans, with the Keeping You Safe Strategy of the Respondent, the Eastern Region Action Plan, and the Eastern Region Road Safety Action Plan (RSAP), which requires inspectors to use data to determine the location, rate, and drivers of road trauma to inform decisions about specific policing activities and tasks to address road trauma. The 2023 RSAP notes: “fifty-nine people have died on roads in the Eastern Region in 2023. This is 40% of the state’s road toll. Proactive Intelligence led actions enhance road policing activities to minimising further trauma.”60 [68] She gave evidence that the resourcing of ED4 is based on calculations performed by the Respondent. Each Division is provided resourcing. She does not have the ability to pool resources from outside ED4.61 However, she has flexibility to move resources within the division and to move staff due to injury, illness, and professional development. This is “business as usual” as there are not enough resources to cover all resource gaps. She can request resources from within the Eastern Region, but it is not certain the request will be answered positively as the region is resource-poor. Temporary deployments from metropolitan areas to within the Division cost around $4,950.00 per member per month.62 [69] She is also responsible for rostering, which involves balancing individual preferences against service delivery requirements, the Minimum Service Profile and the health and wellbeing of the workforces. ED4 operates a Divisional Planning Office (DPO) to oversee the roster model implemented in ED4. The centralised rostering framework is an attempt to meet service delivery requirements. Service demand forecasting is also necessary to meet community requirements for a timely, professional, safe, and responsive policing service.63 [70] She gave evidence that some elements of demand for service are predictable, such as calls for assistance (including calls for traffic and crime incidents and general calls from the community, serviced by general duty response units) through minimum service levels (for example, 24/7 response units). Other demands for service are less predictable in terms of occurrence, duration, and resource requirements (such as searches for missing persons, fire, and flood events).64 [71] Her evidence is that it is possible to plan and allocate annual leave and rest days of employees, while entitlements such as parental leave, military leave, and personal leave cannot be planned for. Service demand and service delivery are a continual focus of the Divisional Leadership team, who are looking at where the incidents are occurring and where they are increasing and decreasing so that if there are available resources, they are able to allocate more resources to that area.65 [72] The Chief Commissioner of Police has issued an instruction on Minimum Service Profiles (MSP) which outlines the requirement for police stations that are allocated sufficient resources to provide an adequate police response to calls for assistance across the State. That document provides two metrics: the Baseline Minimum Service Level, which is the minimum rostering requirements, and MSP, which is the minimum number of full time equivalent members required to be rostered to ensure minimum roster requirements and BMSL commitments are met. The BMSL for a 24-hour police station (such as Wodonga) must include [2024] FWC 173 14 one primary response patrol unit available 24 hours seven days a week, performed by 2 members, and a reception/watch house performed by two members, when rostering a patrol supervisor or patrol manager.66 [73] Once the roster is posted and if the number of available police resources fall below those required to meet the BMSL, the Victorian Police Manual requires an escalation. Escalation may consist of offering overtime to staff at the start and finish of shifts, recalling people from leave or temporarily transferring them from other local service areas to meet minimum service delivery requirements. If these steps do not cover the BMSL, steps may be taken to close station receptions or stations, aside from 24-hour Stations, which cannot be closed due to the need to receive prisoners or manage prisoners in cells at those stations.67 [74] Superintendent Joy Arbuthnot’s evidence is BMSL only deals with response to the community's calls for assistance. BMSL does not play a role in disrupting crime or preventing crime. Preventative policing is not covered by the BMSL. In order to perform that function, more police resources are needed beyond what is required to satisfy the minimum BMSL levels. As staff are provided to meet minimum service levels, a challenge lies in the fact that this does not encompass resources dedicated to priority areas or surge responses. This means, without additional resources on top of BMSL, the Division is unable to focus as much as needed on priority areas such as road trauma or perform any proactive task to reduce crime such as offender management, which targets offender behaviour to prevent crime from occurring. Unlike other Divisions which have sufficient resources to run tasking teams, it has not been able to run similar teams for at least two years. Because of the resourcing difficulties in ED4, they have not been able to adequately provide a visible police presence in high risk locations.68 [75] She notes that calls for assistance require a divisional van on the road, each shift with two staff, and two staff in the watchhouse of each 24-hour station at Wangaratta and Wodonga. At Wodonga Police Station, roster managers try to roster two vans over the afternoon and evening period while at Wangaratta, there is only one van for morning, afternoon, and night shifts. They struggle to provide anything additional to that baseline service level due to resourcing constraints.69 [76] The difference between the number of staff allocated to each station in ED4 compared to BMSL requirements is minimal. Other factors such as Flexible Work Arrangements (FWA) (operating as 4 x 10-hour shifts), Variable rosters (operating 4 x 10 hours shifts) and human resource availability also affect the Division's ability to provide service. Part time applications are included in the MSPs. FWAs, where a member changes from 58hr shifts to 4 x 10hr shifts per week (formally known as compressed working arrangements) are also included. These factors are required to be considered when developing such arrangements. Currently, there are 10 Uniform Sergeants in ED4 working a FWA (10 x 4 shifts), which equates to 20 lost shifts per roster or equivalent to two Sergeants.70 [77] She also gave evidence on absences from work due to WorkCover, illness, return to workplace or welfare at risk and attached to her statement a table of ED4 absences. It shows that the percentage of FTE unavailable during the 2022 calendar year ranged between 11% and 17%, with December 2022 as an outlier on 1%. During her oral evidence, exhibit R6 was tendered, which is a table of the unplanned and workover leave taken, calculated in terms of [2024] FWC 173 15 shifts lost: It was 6967 in 2018-19, 6170.81 in 2019/20, 8069.03 in 2021/22, 10,704 in 22/23 and 9536 for the period from July to September in 2023.71 [78] In her evidence, she identifies significant resourcing pressures in ED4 in the Highway Patrol Units (HWP) at Wangaratta and Wodonga and at Corryong Police Station. The availability of resources across the Division has not supported temporary backfilling of shifts in these areas. At the HWP, a Sergeant from Wodonga Police Station has temporarily backfilled in the supervisory role and a Sergeant from Wangaratta HWP has temporarily backfilled the supervisory position at Wangaratta HWP. A senior constable from within the HWP has also been upgraded for periods of time which is not ideal due to the potential impact on resource availability for response shifts in a small, specialised team. There are nine response members and one Sergeant position designated for Wondonga HWP. Upgrading one response member means they have to perform supervisory duties, meaning they have less availability to be on the road to respond to incidents.72 [79] The Wangaratta and Wodonga Family Violence Unit (FVIU) and the Sexual Offence and Child Abuse Unit (SOCIT) have both had significant resourcing shortfalls for extended periods. Unavailability of staff within these units due to illness, injury or other reasons has further exacerbated the problem. Within ED4, there has been an inability to provide adequate temporary resource support to the HWP, SOCIT or FVIU for extended periods. The total weeks lost across HWP, FVIU and SOCIT for the 12 months to 7 October was 835 weeks or 4175 operational shifts and “demonstrates significant resourcing pressure”.73 [80] According to Superintendent Arbuthnot, crime and traffic data for the 2022 and 2023 periods show a marked increase in reported incidents requiring police attendance. Comparing periods for the 12-month period from 9 October 2022 to 9 October 2023, ED4 has seen significant increases in all reported crime categories, resulting in a higher workload for BMSL response crews. Wodonga Police Station already has a second response unit rostered shift due to increased demand.74 [81] Many divisions operate Tasking Teams focusing on proactive efforts to priority areas such as drug crime, high harm crime, persons of interest management or traffic recidivists for example. In ED4, there are 7 assignment positions available to support a proactive team, however, this type of response has not been operating within the Division for a considerable period due to resource unavailability. The Divisional Taskings Unit was last formed in 2020.75 [82] ED4 has the second highest road death rate in the State. It also has a significantly high rate of road trauma. The road trauma toll has seen a significant increase since last year. Victoria Police statistics indicate that in 2023, there had been 24 road fatalities in ED4 out of the 82 road fatalities across the Eastern Region. For ED4, at the same time in 2022, there had been 9 road fatalities, and at the same time in 2021, there had been 2 road fatalities. This puts ED4 as the second highest in the State, with ED3 (the neighbouring Division) as the highest in the State. Superintendent Arbuthnot is concerned with ensuring there is an increased police presence on the roads, in order to deter people from behaviours that can often lead to road trauma. General deterrence is proven to be effective in the area. One focus is on speeding drivers, which can be monitored and enforced by an increased police presence.76 [2024] FWC 173 16 [83] Superintendent Arbuthnot says that the Minimum Service Profile for ED4 stations do not provide for surge responses or additional resources required for complex incidents that require larger human resource numbers. ED4 is a popular tourist destination with many sporting, community, entertainment and recreational events and activities requiring a police presence. A log of events and operations is kept assisting with resource planning and demonstrates a significant commitment of resourcing. A copy of an event log is attached to the Superintendent’s Statement, which indicates there were events of this type throughout 2023.77 [84] Superintendent Arbuthnot gave evidence that ED4 frequently has significant events such as bushfires, floods, missing persons and plane crashes. Resources are allocated to these events through the Protracted Emergency Response Management Model (PERMM) which is a commitment to provide resources to incidents with Statewide implications. Part of the PERMM is an acceptance that local areas and regions will stand alone for the first 72 hours while extra resources are deployed centrally. This means that all available resources, including staff who are not on duty, will be recalled to duty for deployment. When an emergency occurs, they are required to provide a service to the emergency and maintain service to the community. She notes: “we need to rely on the people we have”. From 2019 to the present, ED4 has been required to provide surge resources beyond baseline to a number of complex events and operations. 78 [85] The neighbourhood policing framework is another factor that impacts resources. It promotes “the way police engage on the issues that concern the community.” Superintendent Arbuthnot says that: “increases in reported crimes and traffic incidents across the Division underpin the community’s concerns.” The Minimum Service Profile includes the minimum number of sworn positions to acquit neighbourhood policing shifts. ED4 has not been able to roster standalone neighbourhoods’ policing shifts due to resources compliance. NHP shifts are only achieved by rostering on shifts that have excess members to BMSL, currently on Mondays and Tuesdays only or on odd weeks where leave commitment is not at maximum levels. The other options utilised are to use the second Wodonga response unit utilising a NHP call sign, but effectively this is a response unit.79 [86] Superintendent Arbuthnot’s evidence is that there are significant capacity issues in the Eastern Region, largely driven by unplanned leave (including employees on periods of workers compensation, or personal leave due to illness or injury). ED4 manages a welfare register which keeps a record of the number of members who are available, meaning "available to respond”; that is, some members may be working however due to restrictions (such as for medical reasons or pregnancy) are unable to respond. They also have a number of members absent on work- related injury, parental leave, military leave, and long service leave. She laments that ED4 “used to be a division of choice, with a number of people on the waiting list who had expressed an interest in coming to Wodonga, however now the Division has 23 vacancies”.80 [87] rostering shortfalls vary fortnight to fortnight. However, consistent drivers of these shortfalls include annual leave, secondments to cover other priority areas, WorkCover leave, long term personal leave, workplace agreements and part-time agreements. Seasonal factors such as alpine duty, emergency and incident response, management demands and short-term backfilling into other areas such as 16-hour stations or HWP also create rostering shortfalls.81 [2024] FWC 173 17 [88] In the last 12 months, there have been 261 occasions where BMSL has been breached across the Division (129 in Wangaratta and 132 in Wodonga). The majority of those shifts were covered by overtime or redeploying other staff from other duties. The Superintendent describes one of the ways of dealing with this was “to shift the Supervisory Sergeant or Senior Sergeant driver to cover the response unit, however, with greater importance placed on the need to comply with BMSL, this does not happen unless in extenuating circumstances and as a last resort. In ED4 since December 2022, there have been 170 instances of potential BMSL breaches that have been resolved and 91 that have not.”82 [89] In her evidence, the Superintendent describes the “frequent balancing act to meet BMSL and the baseline often cannot be met”. The MSP Instruction empowers Superintendent Arbuthnot to consider alternative arrangements in the interest of "member and community safety". There are a number of steps to process, such as calling employees from other stations, recalling employees and paying overtime. This depends on employees agreeing to be recalled; often, employees do not agree to be recalled. When a breach of BMSL occurs, in effect the Region has to go without having baseline service requirements. This often means they will not have an employee in the watchhouse or working with a supervisor, so that they can have two staff working in a police car.83 [90] Superintendent Arbuthnot explained the shortages in ED4 that impact the Wodonga PSA that concern her are the shortages at the Corryong Police Station and the Wodonga Highway Patrol. The Wodonga Highway Patrol has a number of members unavailable, due in part to illness as well as disciplinary action. There has been a need to "backfill” positions in the Wodonga Highway Patrol, including a Sergeant from the Wodonga PSA. In addition, at the time that Sergeant Goldsworthy made his purchased leave application, the Corryong Police Station had very few staff. There was only a Sergeant and two other ranks, whereas it should have a Sergeant and four other ranks.84 Inspector Paul Henry [91] Inspector Paul Henry is the local area commander (LAC) for the Wodonga Police Service Area. He operates within ED4. The Wodonga PSA, which sits within ED4, comprises the 24-hour police station in Wodonga (the only 24-hour station in the PSA) and a series of 16- hour police stations at various locations including Corryong, Beechworth, Rutherglen, and Tallangatta. ED4 also consists of Wangaratta PSA and specialist responders known as Investigation and Response (I&R) / Tasking and Coordination (T&C).85 [92] He has line control over the Applicant and is also responsible for crime reduction, road trauma reduction and emergency management activities relevant to Wodonga PSA and ED4. As the LAC, and as the direct line manager of the Applicant, he is responsible for reviewing and assessing members’ personal leave. He gave evidence concerning his interaction with the Applicant and various leaders within the Eastern Region concerning the 2023/24 purchased leave applications.86 [93] In late May to early June 2023, he had discussions with the Applicant about his application for purchased leave: “When I asked him about his reasons for his application for purchased leave, he said that he wanted it to manage his mental health but would not elaborate on what that was”. According to the Inspector, he explained during the discussions that the [2024] FWC 173 18 “threshold considerations for purchased leave applications were high” because of the resourcing issues in ED4.87 [94] He gave evidence that the number of applications within ED4 which were considered at the same time as the Applicant’s application was 10.84 full time equivalent members applied for 32 weeks leave amounting to approximately 160 shifts.88 [95] On 1 June 2023, Inspector Henry participated in a purchased leave panel discussion with Senior Sergeant Chris Parr and Leading Senior Constable Daniel Braines. Leading Senior Constable Braines attended the meeting because he had a good understanding of the purchased leave process in the 2022-2023 financial year and could provide information about that process to the extent it was relevant. He also was involved with the planning and rostering units and had a good understanding of the compilation of the recreational leave roster. During the discussion, they discussed the personal circumstances of the applicants for purchased leave.89 [96] On 13 June 2023, following receipt of the Langdon email, Inspector Henry emailed Sergeant Goldsworthy, and other members, notifying them that purchased leave applications would not be approved in the 2024 financial year in order to support productivity to meet Baseline Minimum Service Levels (BMSL) and support investigations and road trauma reductions in ED4. He gave evidence that he did this because he “misinterpreted” the Langdon email.90 [97] On 14 June 2023, Acting Superintendent Mason clarified that Inspector Henry’s email the previous day, to applicants for purchased leave, had left ED4 in a potentially weak position divisionally from an industrial relations perspective and that Inspector Henry should re-engage with each of the purchased leave applicants within the Wodonga PSA.91 [98] On that same day, the Applicant emailed Inspector Henry, indicating that he would be "lodging a claim with Fair Work Australia" about the refusal of his purchased leave application. The Applicant requested that Inspector Henry indicate which "reasonable business grounds", as set out in clause 14.10 of the Agreement, were the bases for refusing his purchased leave application. The Applicant made a series of submissions about why his application for purchased leave should be granted, in full.92 [99] On 17 June 2023, Assistant Commissioner Langdon sent an email to Inspector Henry and Acting Superintendent Mason forwarding correspondence from the TPAV, referring to his email to purchased leave applicants in ED4 on 13 June 2023. Assistant Commissioner Langdon requested that Inspector Henry rescind his email.93 [100] On 19 June 2023, Inspector Henry attended a meeting with Acting Superintendent Mason and Acting Inspector Hughes. Acting Superintendent Mason advised that Inspector Henry had to consider the regional perspective relating to the purchased leave. Inspector Henry interpreted this to mean that the threshold of personal circumstances to justify approval of purchased leave remained very high.94 [101] His evidence was that Acting Superintendent Mason instructed Inspector Henry to re- engage with each of the Wodonga PSA purchased leave applicants. Inspector Henry was confident that he had accurately recorded all the personal circumstances of the applicants and [2024] FWC 173 19 that there was nothing to supplement what he had previously recommended to Superintendent Arbuthnot shortly prior to 10 June 2023. During the meeting on 19 June 2023, Inspector Henry confirmed that he was able to respond to the Applicant’s email dated 14 June 2023 for further information and clarified that communications regarding purchased leave were to be provided by Assistant Commissioner Langdon.95 [102] On or around 20 June 2023, Inspector Henry had a discussion with Acting Superintendent Mason regarding the purchased leave applications. Inspector Henry asked to confirm his role in approving or rejecting the applications to clarify whether he had the autonomy to approve the five purchased leave applications. Acting Superintendent Mason confirmed that Inspector Henry had the authority to approve or reject applications. Inspector Henry described that function as administrative and said that it seemed clear that there was a high expectation in ED4 for purchased leave to be approved and sanctioned from a regional perspective. Acting Superintendent Mason recommended that Inspector Henry engage with members to ascertain the personal circumstances that may support their purchased leave application.96 [103] Prior to sending the e-mail to the Applicant on 23 June 2023, Inspector Henry re- considered the Applicant’s application and confirmed his view that when balancing the personal circumstances of the Applicant, and the resourcing issues facing ED4, Inspector Henry considered there were reasonable business grounds that weighed in favour of refusing Sergeant Goldsworthy's application in full. Inspector Henry then sent the 23 June 2023 email.97 [104] The Inspector also gave evidence on his decision to reject all general duties officers’ purchased leave. He says he considered the cumulative impact of the requests for purchased leave on service delivery. He also considered the personal circumstances of each employee individually and their reasons for wanting to take the leave.98 [105] Inspector Henry gave evidence the BMSL only considers the resourcing required to provide the most basic frontline policing responses to the community and does not include resourcing for I&R/T&C units, specialist services, special policing issue operations and supporting the judicial process through investigation and brief of evidence preparations.99 [106] Inspector Henry observes they struggle to even meet the BMSL and have regularly not been meeting BMSL in 2023 due to unplanned leave taken during the year. Inspector Henry was informed by the DPO that in 2023, the Wodonga PSA averaged around 15 BMSL breaches per month. The highest amount of breaches recorded was at 21, occurring in in January and March that year.100 [107] Inspector Henry observes that BMSL does not take into account the Protracted Emergency Response Management Model (PERMM), which requires the division to be self- sustainable for the first 72 hours of an emergency. This means that any emergency incident that occurs within ED4 would be required to be staffed within existing resources. He estimates that in the event of a PERMM event, 36 resourced shifts at Sergeant rank or over would require backfilling. A breakdown of this is as follows: (a) 72 hours (which is the requirement for us to stand-alone) is made up of 9 x 8 hour shifts; [2024] FWC 173 20 (b) each 8-hour shift is required to be staffed by a minimum of 4 Sergeants (as per table above); (c) 9 shifts with four at Sergeant rank equates to 36 shifts.101 [108] This has flow-on effects so that, within the first 72 hours of an emergency, members satisfying the BMSL will either be diverted to perform emergency management functions or will backfill the positions set out above. This results in non-operational services being removed, such as crime prevention, youth resources, investigators, and intelligence practitioners. The reduction of these services has a negative impact on the community. It also impacts front line services, particular at the 16-hour and single-member stations. This is a significant issue for ED4 because of the high risk of flooding due to the waterways and the forest and mountain areas, which are prone to bushfires.102 [109] A key consideration which factored heavily into Inspector Henry’s decision-making for the Applicant's purchased leave application was the road trauma levels in the Eastern Region. If the Applicant's purchased leave was approved, his position would need to be backfilled at the Wodonga PSA and that would mean they would be unable to ensure that the Wodonga HWP was adequately resourced to carry out its functions, potentially impacting road trauma levels. Inspector Henry also considered the cumulative effect of approving the other applications for purchased leave which would have further significantly impacted the resourcing of the Wodonga HWP.103 [110] The Wodonga HWP is a specialist work unit and is one of three highway patrols in ED4, the other two being the Cobram HWP and the Wangaratta HWP. The Wodonga HWP is a part of ED4's Tasking and Coordination Element and supports both the Wodonga PSA and Wangaratta PSA. Its purpose is to drive reductions in road trauma and be the primary responder for investigations into deaths or serious injury which do not meet the particular criteria for the Major Collision Investigation Unit to respond to. This is a further strain on resourcing as all Victoria Police HWPs need to be worked by two members.104 [111] The Wodonga HWP only has one Sergeant and 9 Senior Constables. Of those members, five are unable to perform operational shifts due to absences on WorkCover leave, reducing road enforcement capacity by 50%. There is currently no Sergeant leading the Wodonga HWP. The Wodonga PSA is therefore required to support the Wodonga HWP in the 2023 - 2024 financial year, including by providing a Sergeant to provide HWP management and leadership and to keep the patrol functioning. That position is currently in the process of being filled, with a selection process underway. The role is expected to be filled over the next month or so. Apart from that vacancy, there is also a need to support the Wodonga HWP with other ranks. The Wodonga HWP does not have a BMSL, which adds to the complexity around resourcing. It is projected that Wodonga PSA will be required to provide around 430 shifts across the year. This was an estimate that Inspector Henry calculated on the basis that, once other types of leave are taken into account, a member is available for 217 shifts per year, and that Wodonga PSA would provide approximately 2 members to the Wodonga HWP, totalling just over 430 shifts at 217 shifts each. 105 [112] The other reason Inspector Henry gave for denying the Applicant’s application was the need to support the Corryong Police Station. Corryong Police Station is also in ED4 and is close to the border with New South Wales, being located in the eastern part of ED4 (120 kilometres [2024] FWC 173 21 west of Wodonga). The Corryong Police Station is staffed by one Sergeant and five Senior Constables (one of whom works on a 0.8 full-time equivalent). It was anticipated around 30 June 2023, two full-time Senior Constables were to leave the Corryong Police Station. The Wodonga PSA was therefore required to provide support to Corryong Police Station for an estimated period of about twelve weeks. Corryong Police Station had been identified as needing about three additional staff to reduce fatigue management associated with being available on- call. On the basis of three staff being required for about 12 weeks, Inspector Henry calculated the period of support required from the Wodonga PSA to support Corryong Police Station would be about 150 shifts.106 [113] Inspector Henry was concerned that during the periods of time that the Applicant proposed to take purchased leave, there would be a need to backfill his position which would impact the Respondent’s ability to support Corryong Police Station. Inspector Henry also considered that this would have a negative impact because the Corryong Police Station would have to operate at a reduced service level if unable to meet the BMSL. He also considered the cumulative effect of approving the other applications for purchased leave, which would have further significantly impacted the resourcing of Corryong Police Station. Corryong Police Station requires three additional staff to reduce fatigue management associated with being on- call.107 [114] The Family Violence Investigation Unit and the Sexual Offence and Child Abuse Unit form part of the I&R/T&C. Both units operate from within the Wodonga Police Complex but are not resourced from the Wodonga PSA. Inspector Henry gave evidence that Wodonga PSA would provide support to these units to build up expertise and support succession planning. He had also received requests to assist the FVIU from the I&R/T&C by Inspector Sprague and Detective Senior Sergeant Damien Peppler. This was for the purposes of triaging family violence reports and risk assessment on investigations. The approval of purchased leave would further hamper the Respondent’s ability to support these units.108 [115] Inspector Henry was informed by the Eastern Region Business Services that it is estimated that backfilling the Applicant from other units in Melbourne outside of Eastern Region for four weeks would cost approximately $24,000, including accommodation and entitlements under the Agreement. It was also explained to him that if all applications of purchased leave in ED4 were approved, the estimated cost would be $155,000.109 PRINCIPLES OF INTERPRETATION TO CONSTRUE CLAUSE 129 [116] The principles of interpretation relevant to the construction of an enterprise agreement are well known. In WorkPac Pty Ltd v Skene,110 they were expressed as follows: “The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of [2024] FWC 173 22 each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” [117] I adopt and apply these principles to the construction of Clause 129. [118] Clause 129 gives an employee a right to apply to purchase between 1 and 4 weeks leave in addition to the entitlement to Recreation Leave in clause 124. Such an application can only be rejected on reasonable business grounds. [119] The meaning of reasonable business grounds is “as described” in clause 14.10 which imports the non-exhaustive list contained in clause 14, which is a provision dealing with a right to request Flexible Work Arrangements. The non exhaustive list includes: (a) that the new working arrangements requested by the employee would be too costly for the employer. (b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee. (c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee. (d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity. (e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service. [120] The parties have both submitted, and I accept, the word “significant” in paragraphs (d) and (e) is to be given its plain English meaning. [121] The word “reasonable” in the expression of reasonable business grounds imports a standard of reasonableness, such that the Commission must ascertain the objective basis of any of the business grounds. [122] The Applicant argues that in my assessment of the question, I should take into account a sentence in the preamble of the Agreement which states: [2024] FWC 173 23 “The employer is committed to providing flexible work options to assist employees in achieving an appropriate balance between organisational requirements and personal lives”. [123] The context in which the purchased leave right appears supports a conclusion that the drafters intended purchased leave to be a species of recreation leave, rather than a form of Flexible Work Arrangement. Unlike a Flexible Work Arrangement, either under this Agreement or s 65 of the Act, the provision contains no express process requirements, and it does not indicate on its face what individual circumstances can be taken into account in a decision to approve or reject the application. [124] The provision is asymmetrical. It expressly provides the grounds on which the employer may reject the application but gives no guidance as to how that decision should be made, nor what circumstances of the employee are required to be taken into account in approving or refusing the application. [125] Given the terms of the Agreement differentiate purchased leave from a flexible work arrangement, it follows that decisions of the Commission on assessing reasonable business grounds for the purposes of flexible work agreements are of limited assistance in determining the question in this proceeding. [126] Given the focus of the question is the reasonable business grounds, there are elements of the principles from the flexible work arrangement authorities that have relevance. I consider the following to be relevant to the interpretation of s 129: • There needs to be an objective basis for the reasonable business grounds for the refusal;111 • The reasonable business grounds upon which the refusal rests are those communicated to the applicant at the time;112 • The assessment to be made is of the reasonable business grounds expressed on the date of the refusal.113 • The Respondent bears the onus of establishing whether (in this case) the stated grounds are reasonable business grounds.114 What are the Stated Grounds? [127] The evidence establishes that on 13 June 2023, Inspector Henry emailed the Applicant and posted on HR Assist that ED4 would not be in a position to support road policing and investigative areas and consequently meet BMSL. [128] After a request from the Applicant on 23 June 2023, Inspector Henry articulated the reasonable business grounds as follows: • Current resourcing at Wodonga Police Station is not able to satisfy or meet the full expectations of community safety and customer service demand. This is due to the [2024] FWC 173 24 additional resource challenges of supporting Corryong Police Station and Investigations and Response Units (I&R) working out of the Wodonga Police Complex and Corryong Police Station. • In particular, Wodonga Police Station will have to support Wodonga Highway Patrol and Corryong Police Station for a projected 430 and 150 shifts respectively. This is due to WorkCover, modified duties and vacancies with difficult staff attraction. • It is acknowledged that most support will be at Constable / Senior Constable level, however granting of purchased leave at Sergeant level for positions requiring backfill will diminish Constable / Senior Constables resources required to support as per above. • Wodonga Police Service Area (PSA), will have to support Investigations and Response Units based at Wodonga and Corryong Police Station from 17 July 2023.” [129] The HR Assist post, email sent on 13 June 2023 and the articulation of the business grounds on 23 June 2023 constitute the business grounds that were communicated. These constitute the stated grounds which I must assess against the standard of “reasonable business grounds in accordance with the Agreement”. The assessment date for the reasonable business grounds is the final communication of the refusal on 23 June 2023. Is resourcing for PERMM part of the stated grounds? [130] The Applicant argues that resourcing the Protracted Emergency Response Management Model, which is a model designed to resource incidents that have state-wide implications such as bushfires or floods (referred to in the evidence of the Respondent), should not be considered in this dispute because it is not a “stated ground”. The Respondent argues it is part of a “stated ground”. [131] The 23 June 2023 e-mail includes: “current resourcing being unable to satisfy the full expectations of community safety and customer demand” as one of the business grounds. The plain meaning of the text is the deficiencies in current resourcing together with the additional resource challenges of supporting Corryong Police Station, Highway Patrol, and Investigation and Response Units are the business grounds on which the Respondent relies. [132] Resourcing the PERMM is part of the “current resourcing” of ED4 which is a business ground “stated” in the 23 June 2023 e-mail. It is therefore part of the stated ground that “current resourcing at Wodonga Police Station is not able to meet expectations of community safety and customer service demand”.115 What is the “business” for the purposes of s 129? [133] The evidence shows that each Division has its own operational hierarchy overseen by a Superintendent. Although the calculation of the level of resourcing is performed centrally by the Respondent, the movement of resources and rostering within the Division are the responsibility of the Superintendent. Superintendent Arbuthnot gave evidence that she is responsible for rostering in the Division to ensure sufficient staffing levels are maintained to [2024] FWC 173 25 protect the health and safety of members and to meet service delivery requirements.116 In Fyfe v Ambulance Victoria, Johns C identified the “business” by the level at which resourcing decisions are made.117 It follows the relevant “business” for the purposes of clause 129.2 is Eastern Division 4. CONSIDERATION OF THE BUSINESS GROUNDS Current resourcing at Wodonga Police Station is not able to satisfy or meet the full expectations of community safety or customer demand [134] The evidence of the Respondent is there are resourcing issues within ED4. It has one of the smallest human resources allocations in the Eastern Region, with a total of 327 sworn members in July 2023. [135] The Baseline Minimum Service Level (BMSL) is the minimum service level required for a primary response patrol function, to ensure a police station is open and accessible to the public and to ensure patrol supervisors will be rostered with a driver. The Minimum Service Profile (MSP) is the minimum number of available full time equivalent general duties police resources required at a station each fortnight to ensure baseline service delivery to the public. The current MSP for ED4 is (rounded up) 56 FTE comprised of 40 other ranks and 14 Sergeants. The Applicant notes in September 2023, the allocated strength of Wodonga Uniform officers was 54 other ranks and 15 Sergeants. According to Inspector Henry, BMSL is not “good” service delivery because “it is a bare minimum standard”. [136] The Respondent argues the difference between the number of staff allocated in ED4 compared to BMSL requirements is minimal. Other factors, such as a Flexible Work Arrangements, variable rosters and human resource availability affect the Division’s ability to provide a service. On 12 October 2023, there were 10 uniform Sergeants in ED4 working a Flexible Work Arrangement, which equates to 20 lost shifts per roster or the equivalent of two Sergeants. [137] Other Divisions operate what is called a “Tasking Team” which seeks to focus on priority areas such as drug crime, persons of interest management and traffic recidivists. As a result of resource unavailability, this has not operated in ED4 since 2020. [138] Calls assistance require a divisional van on the road, each shift with two staff, and two staff in the watchhouse of each 24-hour station at Wodonga. At Wodonga Police Station, roster managers try to roster two vans over the afternoon and evening period. According to Superintendent Arbuthnot, in ED4, the Respondent “struggles to provide anything additional to that baseline service level due to our resourcing constraints.” [139] ED4 has not been able to roster stand-alone neighbourhood policing shifts due to resourcing constraints. NHP shifts are only achieved by rostering on days where the number of members available are in excess of BMSL, such as on Monday and Tuesdays, or on odd weeks where leave commitments are not at maximum levels. [140] BMSL does not take into account the Protracted Emergency Response Management Model (PERMM), which requires the division to be self-sustainable for the first 72 hours of an [2024] FWC 173 26 emergency. This means that any emergency incident that occurs within ED4 would be required to be staffed with existing resources. Superintendent Arbuthnot estimates that in the event of a PERMM event, 36 resourced shifts at Sergeant rank or over would require backfilling. This has flow-on effects so that, within the first 72 hours of an emergency, members satisfying the BMSL will either be diverted to perform emergency management functions or will backfill the positions set out above. This results in non-operational services being removed, such as crime prevention, youth resources, investigators, and intelligence practitioners. The reduction of these services has a negative impact on the community. [141] The majority of BMSL issues are due to unplanned leave which occur after the roster is posted. Unplanned absences from work due to WorkCover, illness, personal leave, return to workplace or welfare at risk have risen in the last few years. A table of the unplanned and workover leave taken calculated in terms of shifts lost was 6967 in 2018-19, 6170.81 in 2019/20, 8069.03 in 2021/22, 10,704 in 22/23 and 9536 for the period July to September in 2023.118 rosters have been posted at Wodonga that do not comply with BMSL.119 [142] Superintendent Arbuthnot gave evidence that crime and traffic data for 2022 and 2023 shows an increase in incidents requiring police attendance. The Respondent argues that between October 2022 and October 2023, ED4 has had significant increases in all reported crime categories. This results in a higher workload for BMSL response crews. Wodonga Police Station already has a second response unit rostered due to increased demand. [143] There is a frequent balancing act to meet BMSL, which is often breached. The MSP Instruction empowers Superintendent Arbuthnot to consider alternative arrangements in the interest of "member and community safety". If police resources fall below BMSL, escalation is required, which may mean offering overtime, recalling officers from leave, or temporarily transfer members from other local service areas to meeting the minimum service delivery requirements. According to Superintendent Arbuthnot, if the escalation does not cover BMSL, steps may be taken to close receptions or stations. [144] In the last 12 months, there have been 261 occasions where BMSL has been breached across the Division (129 in Wangaratta and 132 in Wodonga). The majority of those shifts were covered by overtime or by redeploying other staff from other duties. In ED4 since December 2022, there have been 170 instances of potential BMSL breaches that have been resolved and 91 that have not. Wodonga PSA average 15 breaches of BMSL per month. The highest recorded breaches were 21 in January to March 2023. [145] In cross examination, Inspector Henry was asked how: “in ...preventing breaches of BMSL how could you roster 20 shifts across a year to make a difference? “My only answer to that, Sergeant, is that we currently have 11 breaches of BMSL per month. I currently have 30 per cent of my Sergeants unavailable due to external secondment through necessity, through WorkCover or other reasons. And Sergeant Larkin constantly struggles to fill that. That's effectively the challenge.”120 [146] The Applicant argues that as his leave was programmed into the Divisional Planning Offices Leave roster, this establishes his leave could have been accommodated without issue. The Respondent argues the planning roster only focuses on maintaining serviceability at the [2024] FWC 173 27 Wodonga Police Station and does not take into account the resources demand of specialist units such as Highway Patrol, and the Investigation and Response or Tasking and Co-ordination units. I accept the argument that the DPO’s function is a planning function; that body tries to minimise and “smooth over” planned leave to try to ensure compliance with the BMSL. That roster cannot, and the evidence shows it does not, prevent breaches of the BMSL from occurring. [147] The Applicant also argues that in or around September 2023, 8 positions have been allocated to Wodonga Police Service Area. Inspector Henry states that despite these additional numbers, BMSL continues to be breached. [148] The Applicant argues: “BMSL is never not achieved because no one was available to be rostered. Rarely is it ever the Supervising Sergeant who has unplanned leave and there is always someone who will take on that role.” He argues in an average month, there are 90 core shifts: day shift, afternoon shift and night shift. If there are 15 shifts in a month where BMSL is not achieved, there are options that include the payment of overtime or utilising staff from other stations. According to the Applicant, the Supervising Sergeant will just work by themselves, only responding as a backup unit to one of the van crews. They still provide supervision, risk assess and attend incidents; a driver is a ‘nice to have’, but something that has been rostered for only in the last couple of years. The community does not experience any change in service, because the Sergeant’s role is to supervise and not get caught up as the primary response unit”.121 [149] The question whether the Sergeant can “work by themselves responding as a backup unit” was explored in the examination in chief of Superintendent Arbuthnot where she was asked why there is a requirement for both a supervising Sergeant and a driver: “Safety's the main element. So that comes under the service profile. There was a – probably an operational conduct some time ago where rural areas would have one – a Sergeant drive by themselves on occasion or a senior Sergeant drive by themselves on occasion. And policy was brought put in place – called the Two-up Policy, which was 2015, from memory, which then started to articulate the safety premise around about supporting the Sergeants so that they wouldn't be one-up, or the senior Sergeants. That sort of went from another policy, and then we finally had them in a service profile which clearly articulated in the Chief Commissioner's Instructions, and now the Victoria Police Manual, exactly how we manage our workforce when it comes to those two areas.122” [150] I accept that on 23 June 2023, ED4 had a serious resourcing problem. I accept Inspector Henry’s evidence that BMSL only considers the most basic frontline policing responses. The BMSL and MSP are designed to provide a metric for the baseline service delivery and staffing. In the twelve months from October 2022, the BMSL had been breached 133 times. The average breaches were 15 per month in 2023 with a high of 21 breaches in January and March. [151] The fact the DPO has prepared a leave roster to accommodate the leave sought by the Applicant is not determinative. The roster is prepared for Wodonga, and I accept the explanation of the Respondent that it does not take into account commitment to other units such as Wodonga Highway Patrol, Family Violence Investigations Unit and Corryong Police Station. [2024] FWC 173 28 [152] I also accept Superintendent Arbuthnot’s evidence that in order to provide adequate service to the community, more resources are required beyond the minimum BMSL. That measure does not encompass resources dedicated to priority areas or surge responses. This means, without additional resources on top of BMSL, ED4 is unable to focus as much as needed on priority areas such as road trauma or perform any proactive tasking to reduce crime, such as offender management. [153] The evidence also establishes this shortfall in resourcing was predominantly caused by unplanned leave (which includes employees on workers compensation, personal leave due to illness or injury). For the financial year 2022/23, the number of shifts that were unavailable due to unplanned leave was a high of 10,074. For the period from July to September 2023, 9536 shifts were unavailable. Support for Wodonga Highway Patrol [154] The Eastern Region has a Road Safety Action Plan noting that 59 people have died on the roads in the Eastern Region in 2023. The objective of the plan is “to reduce serious injury and fatal collisions on the roads.” [155] The Respondent’s evidence is that ED4 has the second highest road death rate in the State and that its rate of road trauma is “significantly higher”. The Respondent’s statistics show that up to September 2023, there had been 24 road fatalities in ED4 out of 82 in the Eastern Region. This compares to nine over the same period in 2022 and two in 2021. [156] The Applicant in his submissions of fact, and the oral evidence of Leading Senior Constable Allerdice, contends that police visibility was not a factor in some of the fatal accidents up to September 2023 and that often road fatality rates fluctuate without a particular reason.123 [157] Wodonga HWP is a specialist work unit whose purpose is to drive a reduction in road trauma and to be the primary responder to investigate deaths and serious injury on the Road. All of the Respondent’s highway patrols are required to be worked by two members. [158] Inspector Henry’s evidence was that the Wodonga HWP only has one Sergeant and 9 Senior Constables. Five of those are unable to perform operational shifts due to absences on WorkCover leave, reducing their road enforcement capacity. This reduced the road enforcement capacity of the Patrol by 50%. There is currently no Sergeant leading the Wodonga HWP. The Wodonga PSA is therefore required to support the Wodonga HWP in the 2023 - 2024 financial year, including by providing a Sergeant to provide HWP management and leadership and to keep the patrol functioning. Apart from that vacancy, there is also a need to support the Wodonga HWP with other ranks. The Wodonga HWP does not have a BMSL. [159] Inspector Henry projects Wodonga PSA will be required to provide around 430 shifts across the year. This was an estimate that he calculated on the basis that, once other types of leave are taken into account, a member is available for 217 shifts per year, and that Wodonga PSA would provide approximately 2 members to the Wodonga HWP, who would each provide about 217 shifts (totalling just over 430 shifts). [2024] FWC 173 29 [160] I accept that on 23 June 2023, reducing road trauma was a priority within ED4, which had the second highest road death rate in the State. The fact that the Highway Patrol was understaffed is a matter which the leadership of the business of ED4 was required to address as a matter of customer service and safety. The argument of the Applicant that police visibility may not prevent some accidents is not persuasive. I accept, in an area with high levels of road fatalities and trauma, it is a rational to allocate resources to Highway Patrol to cover resource shortfalls, and to increase police visibility to motorists within ED4. Support for Corryong Police Station. [161] Superintendent Arbuthnot gives evidence that “at the time [the Applicant] made his application Corryong Police Station had very few staff. It has a Sergeant and two other ranks where it should have had a Sergeant and four ranks”. [162] Superintendent Arbuthnot gives evidence that Corryong, because of its remote location near the New South Wales border and 120 kilometres west of Wodonga, is always hard to fill and even with incentives, still had vacancies. She says this leads to significant health and wellbeing impacts to staff when there are insufficient staff numbers to provide service. These impacts include less shift flexibility, split rest days, roster changes, increased periods of availability which impacts on members recreation time and can make it difficult to disconnect from work. According to the Superintendent, the remoteness of the Station also means that movement of staff from one location to another in the Division to backfill other positions (due to staff unavailability or vacancy) is extremely difficult. [163] It was anticipated from around 30 June 2023, two full-time Senior Constables were to leave the Corryong Police Station. The Wodonga PSA was therefore required to provide support to Corryong Police Station for an estimated period of about twelve weeks. Corryong Police Station had been identified as being in need of about three additional staff to reduce fatigue management associated with being on-call. On the basis of three staff being required for about 12 weeks, Inspector Henry calculated the period of support required from the Wodonga PSA to support Corryong Police Station would be about 150 shifts. [164] Inspector Henry gave evidence that during the periods of the Applicant’s requested purchased leave, there would be a need to backfill his position which would impact the ability to support Corryong Police Station. He also considered that this would have a negative impact on service delivery, because Corryong Police Station would have to operate at a reduced service level if it could not meet BMSL. He also considered the cumulative effect of approving the other applications for purchased leave which would have further significantly impacted the resourcing of Corryong Police Station. [165] The Applicant argues the roster to support Corryong with their staffing required one other rank, 3 days a week, which he contends is not a huge impost on the resources. In his October submissions of fact, he noted “Corryong has a Sergeant and is now back to having 5 OR on the roster. They have allocated a further 2 positions, but they should not be needing any further support from the Wodonga police station from 2 November 2023”. These additional resources were added after 23 June 2023, the date of the final refusal e-mail, and therefore are not relevant to the question here. [2024] FWC 173 30 [166] In cross examination, Inspector Henry was asked whether it was “reasonably foreseeable” in July that two officers previously stationed in Corryong wanted to return: Sergeant Goldsworthy You're aware that two people that were previously stationed at Corryong wanted to return to that station? Inspector Henry Yes. I did become aware of that, and those positions were filled. Sergeant Goldsworthy Yes, so it was reasonably foreseeable that in July that was going to occur. Inspector Henry No, it wasn't. Corryong is one of the hardest places to fill in Eastern Region and it, routinely, those positions are not filled and then go through a special category process which means that we have to keep advertising them.124 [167] I accept that Corryong Police Station is, by reason of its remoteness, difficult for the Respondent to staff. I also accept that at the time of the refusal, it was anticipated that two staff were to leave Corryong Station and that that vacancy would require three additional staff from Wodonga PSA to fill. If members were added to the staff of Corryong after 23 June 2023, that is not relevant to the analysis of reasonable business grounds here. Support Investigative and Response Units [168] The Wangaratta and Wodonga Family Violence Investigation Unit (FVIU) and Sexual Offence and Child Abuse Unit (SOCIT) have both had significant resourcing shortfalls for extended periods. Unavailability of staff within these units due to illness, injury or other reasons has made the problem worse. [169] In ED4, there has been an inability to provide adequate temporary resource support to SOCIT or FVIU for extended or consistent periods. Resource requests have been escalated to the Region and on a small number of occasions, limited, temporary support has been provided. [170] The total weeks lost across these units for 12 months to 7 October 2023 (not including recreation leave, long service leave or personal leave) is 835 weeks or 4175 operational shifts, which demonstrates significant resource pressure. [171] Superintendent Arbuthnot, in her oral evidence, was asked about the practice of backfilling in these units: Counsel for the Respondent Would you please explain why you keep approving for Wodonga uniform members to be used in backfilling in I&R positions? Superintendent Arbuthnot [2024] FWC 173 31 Because the I&R positions are specialist responders who deal with different types of crime. Generally, it's more serious crime and a lot of that crime, particularly in sexual offence and child investigation teams and in family violence investigation units, and also in the general CIU is very victim centric. So, the harm is significant to the victims. They are trained to be specialists and it doesn't seem - I don't think it's unreasonable to say that we need to make sure that we're providing this service to the community, particularly around those types of offences.”125 [172] Inspector Henry’s evidence was that Wodonga PSA provides support for these units to build expertise and support succession planning. He also gave evidence that he has received requests to assist the FVIU for the purpose of triaging family violence reports and risk assessment of investigations. [173] I accept the loss of operational shifts across the investigative and response units was a resource issue that needed to be addressed by the leadership within ED4. This included the work of backfilling to “triage family violence reports” and “risk assessments of investigations”.126 I accept Superintendent Arbuthnot’s opinion that “we need to make sure we are providing the service to the community around these offences”. Is the application process in issue in an assessment of reasonable business grounds under s 129? [174] The Applicant argued the process by which the purchased leave applications were assessed was flawed.127 [175] He criticises the purchased leave panel’s process because there were no terms of reference, no instructions on how the process should be undertaken, no minutes kept, and the Inspector in charge of the Investigations and Response Unit, who is also the line control for the DPO, was not invited to attend. The purchased leave applications were considered on personal, not business grounds. The Applicant called Senior Sergeant Chris Parr in support of these arguments. [176] His other criticism relates to the different thresholds used for assessing individual circumstances in purchased leave applications, referred to in the documents and correspondence between senior staff in the Region and Division leading up to the decision of Inspector Henry. The test for the consideration of individual circumstances was variously described as ‘consider the needs of the employee’, ‘extenuating circumstances’ and ‘exceptionally compelling’. [177] There are aspects of the procedure adopted by the Respondent which were less than optimal. For example, the 14 July 2023 email of Inspector Henry refusing all applications following his “misinterpretation” of the Langdon email, followed by the request from Assistant Commissioner Langdon for that email to be withdrawn, and then the reconsideration of the applications. There is also the evidence of Leading Senior Constable Allerdice who was informed his leave was approved, which was followed by an email that it was being reviewed, and then an e-mail that it had been refused. From an expectation and human resource management perspective, this was not ideal, particularly for a government authority well- staffed with human resource professionals. [2024] FWC 173 32 [178] Despite this, the plain words of the provision in clause 129 do not prescribe a procedure. The bald assessment under clause 129.2 is that it “may only be rejected on reasonable business grounds”. [179] The procedure up to the point where that rejection occurs is not expressly regulated by the provision. It indicates an applicant “may apply” and it may only be rejected on reasonable business grounds. The reasonableness of the process is not in issue in an assessment of “reasonable business grounds”. [180] I am fortified in this analysis by the decision of the Full Bench in Fyfe:128 “However, whether or not there are discussions regarding a request for a flexible work arrangement advanced under clause 23 of the Agreement does not form part of the assessment of whether there are reasonable business grounds for the purposes of clause 23.4. It is clear the Commissioner’s conclusion that the Appellant had acted unreasonably took hold, as evidenced in his additional comments in [80]-[82], and we consider it permeated his assessment of whether the Appellant had reasonable business grounds to refuse the request. We therefore accept the misconstruction proposition advanced by the Appellant.” [181] However, given clause 129 provides a positive right to purchased leave which “can only be rejected on reasonable business grounds”, it could be that some engagement with the applicant is required in order that the individual circumstances of an applicant might be considered. On the evidence of Inspector Henry and of the Applicant himself, it is clear there were multiple engagements between Inspector Henry and the Applicant here. Is the high refusal rate of purchased leave in ED4 relative to many other parts of the Respondent relevant to an assessment of “reasonableness”? [182] As a result of an order to produce, the Respondent provided the Applicant with a table which shows the number of purchased leave applications within each Region and Division of the Respondent for 2022/2023 and 2023/2024. The Applicant made his own calculations on this table and called Ms. Siobhan Owen, a business analyst of the Respondent to ask related questions. [183] On the Applicant’s calculations for the 2023/24 year, the percentage of approval of applications within ED4 was far less than any other division or Region, and the approval rate was 13.8%. According to the document, the average approval rate across all Regions and Divisions was 71%. [184] The Applicant argued there was a relevant comparison between ED4 and ED6. He asserts those Divisions are similar because they are both in the same Region, both have a small human resource allocation (ED4 with 327 and ED6 with 271), and both cover large geographical areas. The Applicant makes the point that in 2023/2024, the Respondent approved 113 weeks of purchased leave in ED6, but only nine weeks for ED4. [185] This data is dissonant and hard to reconcile. It could indicate a different approach is applied to the refusal of purchased leave in ED4, in comparison to all other areas. It is not, [2024] FWC 173 33 however, a matter I can take into account in the assessment I must make here. The level of purchased leave approvals outside ED4 are not relevant to the question. The question before me is whether or not the stated grounds are reasonable business grounds within the business of ED4. Does the loss of productivity and impact on customer service caused by the granting of a purchased leave application reach the level of “significant loss” or “significant negative impact”? [186] I accept that on 23 June 2023, ED4 had a serious resourcing problem. [187] The metric by which the minimum resources to provide an adequate police response to calls for assistance within ED4 was frequently breached in the months leading up to 23 June 2023. Since December 2022, there were 170 instances of potential BMSL breaches in ED4 that have been resolved and 91 that have not. The Wodonga PSA average was 15 breaches of BMSL a month. A BMSL breach requires escalation; deficiencies are sought to be made up by requests for members to work overtime or recalling employees from leave, which may not be effective. Nil rosters have been posted at Wodonga that do not comply with BMSL. [188] In the months leading up to 23 June 2023, the Respondent had struggled to provide resources for areas not covered by the BMSL, such as tasking teams to deliver proactive strategies for particular types of crime, road policing, surge responses to events and operations, to staff the PERMM, and roster standalone shifts for neighbourhood policing. [189] The reason for the short fall in resources is predominantly due to excessive amounts of unplanned leave. The number of shifts lost to unplanned and WorkCover leave has escalated from 6967 in 2018-19, to 10,704 in 22/23 and 9536 for the period from July to September 2023. [190] I also accept this resourcing problem was exacerbated by the necessity for the Wodonga PSA to support Wodonga HWP, Corryong Police Station and the Investigative and Support Units. [191] The Wodonga HWP only had one Sergeant and 9 Senior Constables; five of those are unable to perform operational shifts due to absences on WorkCover leave, reducing their road enforcement capacity. Wodonga PSA was therefore required to support the Wodonga HWP in the 2023/2024 financial year, including by providing a Sergeant to provide HWP management and leadership and to keep the patrol functioning, as well as providing other ranks. [192] The Corryong Police Station is staffed by one Sergeant, and five Senior Constables. At the time of the refusal, two full-time Senior Constables were to leave the Corryong Police Station. The Wodonga PSA was required to provide support to Corryong Police Station. Corryong Police Station had been identified as being in need of about three additional staff to reduce fatigue management associated with being on-call. [193] The Wangaratta and Wodonga Family Violence Investigation Unit (FVIU) and Sexual Offence and Child Abuse Unit (SOCIT) have both had significant resourcing shortfalls for extended periods. Unavailability of staff within these units due to illness, injury or other reasons has worsened the problem. [2024] FWC 173 34 [194] In ED4, there has been an inability to provide adequate, temporary resource support to either the HWP, SOCIT or FVIU for extended or consistent periods. Resource requests have been escalated to the Region and on a small number of occasions, limited, temporary support has been provided. I accept Superintendent Arbuthnot’s evidence that across HWP and the Investigative and Response Units, the total shifts due to “illness injury or other reasons” was 4175 shifts. [195] It is in this context, where the resourcing demands of the Wodonga Police Station were failing to meet minimum standards and with the added pressure caused by the necessity to support the HWP, Corryong Station and the Investigative and Response Units, that the refusal was made. [196] The Respondent has the onus of establishing whether the stated reasons can be objectively regarded as “reasonable business grounds”. This invites consideration of the enumerated, nonexclusive list of what constitutes reasonable business grounds in 14.10 which relevantly includes: (d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity. (e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service. [197] The Agreement itself refers to productivity in clause 12, which is headed “productivity measures”. It refers to the “objective to increase efficiency of police services provided to the community” and supports a “remuneration package for employees that facilitates effective and efficient service delivery”. “Customer service” in a policing context should include service delivery to members of the public.129 [198] If the Applicant’s purchased leave had been granted, it would have resulted in some loss of efficiency and productivity. For the two tranches of two weeks, or 20 shifts, he would have been unavailable and therefore the productive capacity at Wodonga Police Station would have been reduced. Similarly, insofar as he would be unavailable for work, this would have had some negative impact on service delivery. The question is whether these impacts can be regarded as “significant”. [199] Lawler VP in Brimbank130 states that ‘something more’ is required: “Almost all requests under clause 20 will result in some cost, loss of efficiency or adverse impact on customer service, even if only very small. Any change to hours will see the employee unavailable at a time he or she would previously been available with the need (and consequent resource cost) for another employee to deal with urgent requests or telephone calls that the requesting employee would otherwise have taken, or the need to redo a roster or the like. If it was sufficient for the Council to simply point to any cost or business difficulty, however small, and then rely upon that as constituting a reasonable ground to refuse the request, the practical right intended by clause 20 would become illusory. Such an approach is inconsistent with the flavour of clause 20 read as a whole and inconsistent with the principles of construction. [2024] FWC 173 35 On the proper construction of clause 20, it is necessary for the Council to point to some cost or adverse impact over and above the inevitable small adverse impacts associated with any material request that is sufficient to outweigh the employee’s personal considerations in the legitimate pursuit of a better work life balance.” [200] The Applicant argues that his unavailability for two tranches of two weeks’ work, amounting to 20 shifts, cannot reach the level of significant loss of productivity or significant negative impact on customer service. [201] The refusal was made in a context where ED4 was regularly failing to meet the basic standard of service delivery, prescribed by the Respondent. This had a knock-on effect for its capacity to staff other non-BMSL areas, such as crime prevention and deterrence. The necessity of the Wodonga PSA to support Corryong Police Station, Highway Patrol and the Investigation and Response Units added to this resource pressure. In the resourcing environment in which the application was refused, there was an adverse impact of his application over and above the usual impacts associated with the request. [202] I adopt the reasoning of Deputy President Bell in Azmi,131 where the Respondent was experiencing a “significant staffing shortfall”: “Indeed, the picture presented of Victoria Police operations regarding public safety on key sections of the transport network with high crime rates is bleak, both for PSOs and the officers tasked to support them. Night shifts on the key public transport days of Friday and Saturday nights were operating at fifty percent of the minimum operating model. Afternoon shifts fared only slightly better. Offenders arrested on the network by PSOs were being released, simply because no officers were available to process them. It was likely this included offenders with existing arrest warrants. I accept that this context is a relevant matter to assess a flexible work request that would result in the loss of further shifts, even if that loss is just two shifts in a much larger number. The context here is that Victoria Police organises its existing Transit South officers on a rotating 5 x 8hr roster pattern, in which frontline work is performed on a two-up basis. I accept that a change to a 4 x 10hr shift would result in a loss of up to two shifts per fortnight in which productive work could be performed. Even if it might be concluded that this would have little impact on Transit South’s overall operations, the reduction in productive work that could be performed by the individual officer (even if not equivalent to a full two shifts per fortnight) is non-trivial. I am satisfied that these circumstances themselves are sufficient as a reasonable business ground for refusing the request, having regard to the matters above.” [203] I concede the resourcing issues elaborated by the Deputy President in Azmi are worse than those experienced in ED4 here. This does not detract from the proposition that in critical resource difficulties, the loss of a relatively small number of shifts “in a much larger number” is not trivial. The fact that resources in ED4 were frequently below the benchmark for the minimum level of service delivery amplifies the significance of the loss of efficiency and the negative impact on customer service of the individual request. [2024] FWC 173 36 [204] The significance of the Applicant’s request was also amplified by the number of requests that had been made for the 2023/4 period. Inspector Henry’s evidence was the equivalent of 10.84 FTE applied for 32 weeks purchased leave which amounted to 160 shifts. He had considered each application individually but also considered the “cumulative effect of the requests on service delivery” in the decision to refuse all the requests by general duties members. In circumstances of a critical resourcing problem, it was open to the Respondent to consider the resources removed by the totality of purchased leave requests in its decision to refuse them. The resourcing of ED4 had reached a tipping point where mitigation of a further loss of resources through the refusal of purchased leave was reasonable. [205] I am therefore satisfied, in the context of the critical resource issues being experienced at ED4, there was an objective basis for each of the stated grounds as reasonable business grounds on 23 June 2023. [206] I am also satisfied that if the purchased leave application had been granted, it would have led to a significant loss in productivity and a significant negative impact on customer service delivery within ED4. In the resource-poor environment of ED4, the effect of the absence of the Applicant would have been significant, that is, important or consequential. CONCLUSION [207] In all the circumstances, I am satisfied that the stated grounds are reasonable business grounds in accordance with the agreement. My answer to the question posed by the parties is “yes.” The dispute is therefore determined accordingly. COMMISSIONER Appearances: Sergeant Larry Goldsworthy, the Applicant, for himself. Ms. Francesca Leoncio, of Counsel, for the Respondent Hearing details: 31 October 2023, 27 November 2023, 28 November 2023, 7 December 2023 Melbourne Printed by authority of the Commonwealth Government Printer <PR770494> [2024] FWC 173 37 1 Digital Court Book (DCB) at 694, attachment PH 4 to the Statement of Inspector Henry. 2 The issue is considered further below. 3 Exhibit A9. 4 Exhibit A2. 5 DCB at 343, paragraph 10; Exhibit A9. 6 Ibid, paragraph 11. 7 DCB at 344 and 345. 8 DCB at 343, paragraph 9; Exhibit A9. 9 DCB at 354 to 357. 10 DCB at 347. 11 Ibid. 12 DCB at 337 to 339, referred to in paragraph 5 of the Reply of the Applicant. The Baseline Minimum Service Level and Minimum Service Profile derive from Chief Commissioner Instructions (“CCI”). They outline the requirement that police stations be allocated sufficient resources to provide an adequate police response. The BMSL is the minimum rostering requirements and MSP is the minimum number of full-time equivalents required on the roster to ensure minimum rostering requirements and BMSL commitments are met. 13 DCB at 328. 14 Ibid. 15 DCB at 329. 16 Exhibit A9 at 349. 17 DCB at 303. 18 DCB at 329. 19 DCB at 348. 20 DCB at 349. 21 PN219 to PN346. 22 DCB at 335. 23 DCB at 336. 24 PN487. 25 PN493. 26 PN490 to PN 503. 27 PN505. 28 PN506. 29 PN507. 30 DCB at 746. 31 Ibid. 32 PN361. 33 PN362. 34 PN403. 35 PN410 to PN441. 36 DCB at 365. 37 Exhibit A8. 38 PN650. 39 PN654. [2024] FWC 173 38 40 PN655. 41 Exhibit R2, DCB at 368. 42 DCB at 369. 43 Ibid. 44 Ibid. 45 Ibid. 46 DCB at 370. 47 DCB at 370 and 371. 48 DCB at 371. The purchased leave data is in a series of emails, DCB at 414 to 416. 49 DCB at 371. 50 Ibid. 51 DCB at 372. 52 DCB at 372 and 373. 53 DCB at 374. 54 DCB at 375. 55 DCB at 376. 56 DCB at 377. 57 Ibid. 58 PN1870. 59 DCB at 493. 60 DCB at 494. 61 DCB at 495 and 496. 62 DCB at 495. 63 DCB at 496. 64 Ibid. 65 Ibid. 66 Ibid. 67 DCB at 498. 68 Ibid. 69 Ibid. 70 DCB at 499. 71 PN2174 to PN 2187. 72 DCB at 499. 73 DCB at 500. 74 DCB at 501 and 502. 75 Ibid. 76 DCB at 502. 77 DCB at 503 and 504. 78 DCB at 504. 79 DCB at 506. 80 DCB at 508. 81 DCB at 505 and 506. 82 Ibid. 83 DCB at 509 and 510. [2024] FWC 173 39 84 DCB at 509. 85 DCB at 669. 86 Ibid. 87 DCB at 672. 88 DCB at 671 89 DCB at 672. 90 DCB at 674. 91 Ibid. 92 DCB at 675. 93 Ibid. 94 Ibid. 95 DCB at 676. 96 Ibid. 97 Ibid. 98 DCB at 682. 99 DCB at 679. 100 DCB at 682. 101 DCB at 678 and 679. 102 Ibid. 103 DCB at 679 and 680. 104 Ibid. 105 Ibid. 106 DCB at 680. 107 Ibid. 108 DCB at 681. 109 DCB at 682 and 683. 110 [2018] FCAFC 131 at [197]. 111 The Police Federation of Australia (Victoria Police Branch) trading as the Police Association of Victoria [2018] [ FWC 5695 at [45]. 112 Ibid. 113 The Police Federation of Australia (Victoria Police Branch) v Victoria Police [2021] FWC 5983 at [75] 114 The Police Federation of Australia (Victorian Police Branch) v. Victoria Police [2022] FWC 2223 at [91] 115 DCB at 729. 116 DCB at 495. 117 [2023] FWC 49 at [66]. This finding was not disturbed on appeal in [2023] FWCFB l04. 118 PN2174 to PN2187. 119 DCB at 506. 120 PN3289. 121 DCB at 328. 122 PN1519. 123 PN650, PN654 and PN655. 124 PN2555 and PN 2556. 125 PN2728. 126 DCB at 681. [2024] FWC 173 40 127 Applicant’s reply submissions at DCB at 331 to 333. 128 [2023] FWCB 104 at [64]. 129 PFA (Victorian Branch) v. Victoria Police [2021] FWC 5983 at [127] 130 [2013] FWC 5 at [15], [16] 131 PFA (Victoria Branch) v Victoria Police [2022] FWC 2223 at [92], [93].