DECISION - The Police Association Victoria

[2011] FWA 7357
DECISION
Fair Work Act 2009
s.238—Application for a scope order
Detective Superintendent Neil Paterson
v
Police Federation of Australia; Victoria Police; Mr Richard Bowers
(B2011/1420)
State and Territory government administration
COMMISSIONER SMITH MELBOURNE, 27 OCTOBER 2011
Concerning bargaining unit for the proposed collective agreement.
INTRODUCTION
[1] By application dated 21 June 2011, Detective Superintendent Neil Paterson of the
Victoria Police sought, pursuant to s.238 of the Fair Work Act 2009 (Cth) (the Act), the
making of a scope order. Detective Superintendent Paterson has, pursuant to s.176 of the Act,
been appointed as a bargaining representative for 51 of the 81 Superintendents (including
himself). Senior Sergeant Bowers has also been appointed a bargaining representative for the
Police Prosecutors. The Police Federation of Australia (PFA) is the bargaining representative
for all other members of Victoria Police up to and including the rank of Commander.
[2] In the proceedings, Detective Superintendent Paterson was represented by
Mr R. Millar of Counsel. The PFA was represented by Mr W. Friend SC and Victoria Police
was represented by Mr B. Mueller of Counsel. Senior Sergeant Bowers was notified by the
applicant of the proceedings but did not enter an appearance.
[3] Detective Superintendent Paterson seeks the making of an order for a proposed
agreement with Victoria Police to cover Superintendents, Chief Superintendents and
Commanders.
[4] There is no application by any other person other than those represented by Detective
Superintendent Paterson and the application is opposed by Victoria Police and the PFA.
THE LEGISLATION
[5] The relevant section of the Act is s.238 which provides:
“238 Scope orders
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Bargaining representatives may apply for scope orders
(1) A bargaining representative for a proposed single-enterprise
agreement may apply to FWA for an order (a scope order) under this
section if:
(a)
(b)
the bargaining representative has concerns that bargaining for
the agreement is not proceeding efficiently or fairly; and
the reason for this is that the bargaining representative
considers that the agreement will not cover appropriate
employees, or will cover employees that it is not appropriate for
the agreement to cover.
No scope order if a single interest employer authorisation is in operation.
(2) Despite subsection (1), the bargaining representative must not apply
for the scope order if a single interest employer authorisation is in
operation in relation to the agreement.
Bargaining representative must have given notice of concerns.
(3) The bargaining representative may only apply for the scope order if the
bargaining representative:
(a)
(b)
(c)
has given a written notice setting out the concerns referred to in
subsection (1) to the relevant bargaining representatives for the
agreement; and
has given the relevant bargaining representatives a reasonable
time within which to respond to those concerns; and
considers that the relevant bargaining representatives have not
responded appropriately.
When FWA may make scope order
(4) FWA may make the scope order if FWA is satisfied:
(a)
(b)
(c)
that the bargaining representative who made the application
has met, or is meeting, the good faith bargaining requirements;
and
that making the order will promote the fair and efficient
conduct of bargaining; and
that the group of employees who will be covered by the
agreement proposed to be specified in the scope order was
fairly chosen; and
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[2011] FWA 7357
(d)
it is reasonable in all the circumstances to make the order.
Matters which FWA must take into account
(4A)
If the agreement proposed to be specified in the scope order will not
cover all of the employees of the employer or employers covered by the
agreement, FWA must, in deciding for the purposes of paragraph (4)(c)
whether the group of employees who will be covered was fairly chosen,
take into account whether the group is geographically, operationally or
organisationally distinct.
Scope order must specify employer and employees to be covered
(5) The scope order must specify, in relation to a proposed singleenterprise
agreement:
(a)
(b)
the employer, or employers, that will be covered by the
agreement; and
the employees who will be covered by the agreement.
Scope order must be in accordance with this section etc.
(6) The scope order:
(a)
(b)
must be in accordance with this section; and
may relate to more than one proposed single-enterprise
agreement.
Orders etc. that FWA may make
(7) If FWA makes the scope order, FWA may also:
(a)
(b)
amend any existing bargaining orders; and
make or vary such other orders (such as protected action ballot
orders), determinations or other instruments made by FWA, or
take such other actions, as FWA considers appropriate.
239 Operation of a scope order
A scope order in relation to a proposed single-enterprise agreement:
(a)
(b)
comes into operation on the day on which it is made; and
ceases to be in operation at the earliest of the following:
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[2011] FWA 7357
(i)
(ii)
(iii)
(iv)
if the order is revoked—the time specified in the instrument of
revocation;
when the agreement is approved by FWA;
when a workplace determination that covers the employees that
would have been covered by the agreement comes into
operation;
when the bargaining representatives for the agreement agree
that bargaining has ceased.”
THE SUBMISSIONS AND EVIDENCE
[6] To begin, there is no issue that Detective Superintendent Paterson can make the
application [s.238(1)]; a single interest employer authorisation is not in operation [s.238(2)]
and that good faith negotiations have taken place [s.238(4)(a)].
[7] It is the other preconditions over which there is disagreement between the parties.
[8] Detective Superintendent Paterson argues that:
The bargaining has not been efficient or fair. In this connection two matters were
raised to support this concern. They were the pace of the negotiating process and
the fact that government policy was constraining those negotiations.
In addition, many of the matters being discussed in the broader negotiation were of
no relevance to the Superintendents.
Separate negotiations will concentrate on the concerns of Superintendents’ and in
particular the wage disparities for Superintendents’ compared to other jurisdictions.
Separate negotiations would permit Victoria Police to negotiate with ranks below
Superintendent.
There is an inherent unfairness in Superintendents being included in an agreement
they don’t want and then being overwhelmed in a vote by a majority of employees
whose interests are different.
Superintendents are a distinct operational group given the rank structure within
Victoria Police and the managerial responsibilities of Superintendents, Chief
Superintendents and Commanders.
Previously, Commanders have been regulated separately and, given that the
Commander rank is being phased out, a separate agreement with Superintendents
and Commanders is appropriate. Further, the duties of Commanders will be
devolved to Superintendents.
[9] In particular, Detective Superintendent Paterson relies upon the finding of the
Full Bench in the United Firefighters’ Union of Australia v Metropolitan Fire & Emergency
Services Board [[2010] FWAFB 3009] (the Firefighters Case) in relation to senior managerial
roles.
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[2011] FWA 7357
[10] In support of the application, evidence was called from: Superintendent Paterson
(Divisional Commander, State Intelligence Division), Superintendent P. Bull (Chief of Staff
the Assistant Commissioner, North West Metro Region), Superintendent A. Allen (Divisional
Commander, Division 3, Western Region); Superintendent J. Forti (Divisional Commander,
Division 2, East Region); Superintendent J. Tudor (Officer in Charge, Specialist Response
Division).
[11] The evidence of these persons covered their role, duties and responsibilities. There can
be little doubt that persons holding the rank of Superintendent have responsible and
demanding roles.
[12] The PFA argue that the application does not meet the jurisdictional prerequisites of
s.238 of the Act. Specifically, the requirement contained in s.238(1)(a) that the bargaining
representative has “concerns” that bargaining for the agreement is not proceeding efficiently
or fairly must be reasonably held 1 and on the facts, as it sees them, those concerns are not
reasonably held.
[13] It argued that the evidence would demonstrate that the process of negotiation was
inherently fair and relatively efficient. It was submitted that the notice given did not identify
the relevant facts to support the application.
[14] As to the merits, the PFA accept that the good faith bargaining requirements have been
met. It does not accept that the making of the order would promote fair and efficient
bargaining as the only criticism of the bargaining process was the fact of the negotiating
constraints imposed upon Victoria Police by the Government wages policy. It was argued that
the granting of the scope order would make the process less efficient because elements of the
agreement would need to be repeated. Further, the PFA will be involved in two sets of
meetings as it continues to also represent Superintendents. In this connection the same
bargaining teams will meet and consider identical interests.
[15] It was submitted that the present bargaining arrangements where the Superintendents
are considered first so that Detective Superintendent Paterson can attend and then leave, was a
more efficient way of bargaining.
[16] Going directly to the matters raised by Detective Superintendent Paterson, The PFA
addressed the arguments that Superintendents are: a discrete group; given the managerial
responsibilities would have a conflict of interest between their interests and those of other
police officers; that they are distinguished from other ranks because of the limited appeal
rights and that Superintendents have really taken over the role of Commanders. Its reply was
that Superintendents form a part of a disciplined force who enter as recruits and progress
through the ranks. They are firmly entrenched within the police structure given that they are
sworn and are a part of the operational police force. As to the argument in relation to conflict
of interest, the same could be said of any level of authority within the rank structure and there
is no reason to draw the line under Superintendents.
[17] Finally, it was argued that Superintendents have not taken over the role of
Commanders rather, that role has been subsumed into the role of Assistant Commissioner.
1 R v Connell; exparte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430.
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[2011] FWA 7357
[18] The PFA submitted that there was a very real possibility that if Superintendents
achieved a separate agreement then it would drive a wedge between them and other members
of the Police Force to the detriment of the culture of the Force which is perceived as having a
community of interests between serving officers.
[19] Finally, it was submitted that even if a conclusion was reached that many aspects of
s.238(4) were satisfied, the use of the word “may” in contradistinction to the use of the word
“must” in other parts of the section, provided a general discretion.
[20] The PFA called Mr Chris Kennedy, the Industrial Relations Manager, to give evidence
on the structure of Victoria Police, the history of the Superintendent and Commander Rank
and the industrial regulation of Victoria Police. I shall return to this aspect later as it forms the
relevant backdrop for a consideration of this matter.
[21] Mr Kennedy also provided evidence on the negotiations and the matters agreed and
not agreed. Much of this cannot be recorded because of the confidentiality of the negotiations,
but it is sufficient to observe that the frustration felt by the Superintendents in relation to the
negotiating parameters set by Government was shared by the PFA.
[22] The PFA also called Superintendent D. Newton (Superintendent Project Division in
the Operational Support Department); Superintendent A. DeRidder (Workforce Support
Superintendent in Region 3); Superintendent J. Hendrickson (Superintendent Divisional
Commander of Number 2 Division, Westgate, North West Metro Region); Senior Sergeant
J. Hauer (Senior Sergeant Chelsea Police Station); Inspector B. McKenzie (Inspector
McKenzie is on unpaid leave and currently working as the Assistant Secretary of the PFA.
A witness statement of Inspector Cheney was tendered but he was not called.
[23] The evidence of the witnesses for the PFA dealt with:
The attention given by the PFA to the concerns of Superintendents and Inspectors
in their terms and conditions of employment,
The achievements of the PFA to the benefit of Superintendents and Inspectors and
the representation provided to those ranks by the PFA,
The roles duties and responsibilities of Superintendents,
The career nature of the rank structure within Victoria Police and that generally
there is no lateral entry below the rank of Commander,
The unrest amongst Superintendents who were not part of the application and who
believed that to separate Superintendents would be bad for morale and disruption
of the culture of a single police force where sworn members have a single identity,
The unifying nature of having a single enterprise agreement covering all ranks, 2
The times at which persons in authority have had to deal with disputes where the
PFA would represent a junior officer. However this did not mean that the PFA
could not represent all groups within the Police Force,
2 This includes the desire to return Commanders to the single agreement.
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[2011] FWA 7357
The fact that Senior Sergeants also have a responsible and supervisory role and that
this did not lead to a conflict of interest, and
The different roles of Superintendents vis a vis Commanders and Senior Sergeants.
[24] Victoria Police also opposed the application. It was its submission that the granting of
the application would make the bargaining process less efficient and would be a waste of
resources. It maintained that it wished to retain the status quo in relation to the industrial
agreements. Namely; one agreement for all sworn officers up to and including the rank of
Chief Superintendent and one agreement which covers employees engaged at the rank of
Commander.
[25] Victoria Police outlined the steps it took to ensure that bargaining representatives,
other than the PFA, were given proper consideration in the bargaining process. Arrangements
were made to provide the relevant material to all the bargaining representatives and to
schedule discussion at times when particular bargaining representatives could participate
effectively. In relation to the applicant, it was decided that all matters relating to
Superintendents would be dealt with at the beginning of all bargaining meetings. In addition,
and in passing, the same arrangements were made for the other bargaining representative,
Sergeant Bowers. 3
[26] It was the submission of Victoria Police that there had been more than 56 bargaining
meetings where the PFA had attended all of them and Superintendent Paterson had only
attended about half. It submitted that there would be no change in the bargaining process if
the Superintendents were successful in the scope order. The level of authority at the
bargaining table would not change. It was submitted that a separate process for the
Superintendents would only complicate and delay the bargaining process.
[27] In relation to the argument put forward regarding the possible conflict of interest for
Superintendents to be in the same bargaining unit as the balance of the police force (excluding
Commanders), Victoria Police submit that no conflict exists.
[28] Victoria Police submit that Detective Superintendent Paterson’s claims were limited to
a few narrow issues, the most important being salary, vehicles, rental assistance and office
space. In all other respects the Superintendents represented by Superintendent Paterson would
rely upon other matters sought and considered by the PFA. Victoria Police advised that the
PFA represented approximately one third of the Superintendents so that there would be
considerable overlap in negotiations if the groups were separated.
[29] Victoria Police called Ms Liz Cheligoy, the Director of Workplace Relations, to give
evidence on the existing industrial instruments and the structure of the negotiations.
In particular evidence was given that the claims made by the Superintendents sought to
“piggy back off” the claims filed by the PFA with respect to the terms and conditions of
employment which were common to all ranks.
[30] It was the evidence of Ms Cheligoy that it was appropriate for Superintendents to be
covered by an agreement applying to sworn officers up to and including that rank because:
3 Sergeant Bowers had previously made an application in relation to good faith bargaining see [2011] FWA 5789.
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[2011] FWA 7357
They had been covered by the one agreement since 2001 and it has not led to any
significant conflict of interest
The phasing out of the Commander rank would mean that the majority of their
duties would be reallocated to Assistant Commissioners. Some Assistant
Commissioner duties would be reallocated to Superintendents and, in turn, some
Superintendent duties would be reallocated to Inspectors.
It was not unusual for managers to be union members and covered by the same
enterprise agreement and Superintendents do not have the authority to determine
terms and conditions of employment for their subordinates as they are required to
exercise their managerial responsibility in accordance with internal policies and
procedures underpinned by the enterprise agreement.
Superintendents are not the only sworn officers who have managerial functions
within Victoria Police.
To the extent that any differences exist for Superintendents then they can easily be
set out in the agreement under a separate clause.
HISTORICAL AND EXISTING INDUSTRIAL COVERAGE
[31] From 1975 until 1991 salaries and conditions of employment for Victoria Police up to
and including the rank of Commander were regulated by the Police Service Board. Prior to
1975 the Board’s jurisdiction did not extend to Chief Superintendent. In 1992 the jurisdiction
was transferred to the Industrial Relations Commission of Victoria. Again, coverage was up to
an including the rank of Commander. As an aside, the Commander rank was only introduced
in 1972 whereas the rank of Superintendent has existed for almost as long as Victoria Police.
[32] In May 1995 the Employee Relations Commission of Victoria made a minimum wage
order covering all ranks from Constable up to and including Commander. Also in 1995 the
Police Association and the Chief Commissioner of Police reached an enterprise agreement
which covered all ranks up to and including the rank of Commander.
[33] The Commonwealth Powers Industrial Relations Act 1996 (Vic) referred certain
powers to the Commonwealth for conciliation and arbitration of industrial disputes within
Victoria. The effect was that for police officers below the rank of Assistant Commissioner the
terms and conditions of employment could be regulated through the federal industrial
relations system. In 1998 the Australian Industrial Relations Commission made a Police
Services Industry Sector Order—Victoria 1998 which included rates of pay for police ranks
up to an including Commander.
[34] During 1998, the then State Government sought individual employment contracts with
Commanders. Commanders entered into these contracts. Also in 1998 the Police Association
entered into an enterprise agreement with Victoria Police which covered all ranks up to and
including Chief Superintendent. In 1998 and 1999 Victoria Police sought to introduce
individual contracts for Superintendents and Inspectors. At that time individual contracts were
not agreed but the Police Association and Victoria Police negotiated a separate enterprise
agreement.
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[2011] FWA 7357
[35] In 2001 the Police Association sought to return to a single agreement covering all
ranks up to and including Commanders. Agreement was reached on an enterprise agreement
which excluded Commanders and covered all ranks up to and including Chief Superintendent.
In 2007 two new agreements were reached—one covering all ranks up to and including Chief
Superintendent and the other covering Commanders.
[36] At the time of reserving the decision negotiations were in progress where the PFA was
seeking again to cover all ranks up to an including Commanders.
COMMANDERS
[37] It is appropriate to record that all parties submitted that the rank of Commander was
being phased out. Victoria Police expressed the view that the duties roles and responsibilities
would be absorbed within the Assistant Commissioner rank with some of the lesser duties of
the Assistant Commissioner being devolved to Superintendents. It was clear that this was not
to diminish the importance of the role of Superintendents but to make clear the limited impact
upon their work resulting from the loss of the Commander rank over time.
[38] It also needs to be observed that at the opening of the proceedings I asked if I needed
to hear from the Commanders and Chief Superintendents as they have not been separately
notified of the hearing. Whilst I expressed some apprehension about their ability to make
submissions upon an application which sought to join them in a bargaining unit with other
ranks, my concern was overcome when it was clear that the PFA represented Commanders.
Therefore the matter proceeded without separately advising the Commanders and Chief
Superintendents.
CONSIDERATION OF THE ISSUES
[39] I turn firstly to consider the concerns of Detective Superintendent Paterson. Whilst it
was the primary argument that it was purely a subjective test, it was submitted that it would
not matter if the test of reasonableness was applied to that subjective judgement. I favour the
latter course because it would be difficult to accept that the jurisdiction could be enlivened by
unreasonable concerns. In any event, given the submission of Mr Millar nothing turns on it.
[40] Therefore it is appropriate to examine those concerns. They relate to:
the approach by the Government of Victoria in constraining negotiators to
outcomes consistent with Government Policy,
the salary relativities of Superintendents in Victoria compared with those for
Superintendents in other jurisdictions,
some other matters where Superintendents wish to be especially considered in
negotiations.
[41] Whilst I understand the concern held by Detective Superintendent Paterson about the
approach taken to public sector bargaining, it is in my experience, common. It would not
make any difference if there was a single bargaining unit or several bargaining units the
approach would remain the same. It follows that the approach of the Victorian Government
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[2011] FWA 7357
should not be a concern which could be distinguished depending upon the number of the
bargaining units within Victoria Police.
[42] The salary issue is a real issue and has relevance to the structure of bargaining units.
Separate bargaining units may have an opportunity to disturb relativities, although this is not
an easy task. History would teach us that the disturbance of relativities is best achieved when
all interested parties are involved.
[43] Finally, I now turn to the other matters referred to earlier in this decision. It is apparent
from the history of regulation and bargaining, that separate provisions have been made for
Superintendents in enterprise agreements, although I accept that separate bargaining may
allow for a greater focus to be placed on the interests of Superintendents. I find, on balance,
that the jurisdictional prerequisite contained in s.238(1) is met. I further find that s.238(2) has
no application and that the applicant has met the provisions of s.238(3) of the Act.
[44] It is therefore appropriate to turn to the provisions of s.238(4). To begin, I am satisfied
that the Detective Superintendent has met the good faith bargaining requirements consistent
with s.238(4)(a).
[45] The next matter is whether or not the making of a scope order would promote the fair
and efficient conduct of bargaining. To reach satisfaction on this point it would be necessary
to conclude that that the current approach is somewhat deficient in this regard. As the
Full Bench said in the Firefighters Case: “The implication is that the tribunal should be
satisfied that if an order is made the bargaining will at least be fairer or more efficient or
both than it would if no order was made.” 4
[46] There are two aspects to this consideration. The first is, would it be more efficient and
the second, would it be fairer. As to whether it would be more efficient I have formed the
view that it would not. The approach adopted by the parties to the structure of negotiations
has given emphasis to the two bargaining representatives apart from the PFA. Care has been
taken (with perhaps one oversight) to ensure that both Detective Superintendant Paterson and
Sergeant Bowers were provided with information and the opportunity to attend at times when
specific discussion would take place on the issues of importance to them. Whilst both
bargaining representatives were constrained by their obligations to their job, the PFA and
Victoria Police were able to devote full-time capacity to the negotiations. Nevertheless
particular arrangements were made. I add that it appears to me that separate bargaining units
would not have overcome this problem of meeting times. I am also not persuaded that
separate bargaining units would be more efficient in the context of the significant number of
common matters which apply to all ranks.
[47] As to the question of fairness, I am not satisfied that it would be fairer if there was a
separate bargaining unit for Superintendents even though they would be joined with
Commanders. The main reason for this proposition by the Superintendents is that they would
be put into a minority and outvoted, thus leaving them powerless to achieve any real
objectives. To begin, it is not unusual for particular self interests to be the subject of
consideration in a bargaining unit and bargainers often have to reach an accommodation
4 United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009 at
paragraph 55.
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[2011] FWA 7357
between those self interested groups. In this connection there is no evidence that previous
bargaining by the PFA, which included Superintendents, has failed to take account of views
or objectives of Superintendents. Indeed representations have been made on their behalf in the
past.
[48] Whilst it is open to employees to name bargaining representatives (including
themselves) it does not follow that simply because they do, then their interests need the
formation of separate bargaining units.
[49] The next issue relevant to both a consideration under s.238(4)(b) and (c) is the
supervisor/supervised conflict which is said to exist. In this connection Detective
Superintendent Paterson relied heavily on the decision in the Firefighters Case. In that case it
was the employer who sought to separate the bargaining units against the will of the
employees concerned. In that case it was submitted that a conflict existed between
management and those they managed. The Bench observed: “Speaking generally there can be
no doubt that such a conflict exists.” 5 In that case the Bench went on to outline the particular
responsibilities which gave rise to that conclusion. The facts in this case, whilst similar, are
not the same. For example, the role in disciplinary matters is different. I have had the benefit
of evidence from many currently serving officers on this question, including a Senior
Sergeant who also has significant supervisory responsibilities. I am sufficiently persuaded that
there is a community of interest within the Victoria Police that the various conflicts which are
said to exist do not impair the collective bargaining by the current bargaining unit.
[50] Each case must be decided on its own facts and as Mr Mueller for Victoria Police
stated in relation to the Firefighters Case: “it’s a decision on its own facts; it’s not a statement
of principle.” 6 In this case the history of industrial regulation is different and some of the
responsibilities differ. Whilst there is a common rank structure in both cases, extensive
evidence was given in this case about the identity of purpose found in sworn officers. This
was not uniformly agreed but it was sufficient for me to include it in my considerations.
[51] Another aspect of the argument in relation to fairness goes to the constitution of the
bargaining unit. Those Superintendents represented by Detective Superintendent Paterson
seek to join the Commanders in their agreement. It was accepted that Commanders were
represented by the PFA and it submitted that it was seeking to have Commanders in the main
agreement during the current negotiations. In any event the PFA opposed Superintendents
joining Commanders in a separate agreement should its bargaining stance not be realised.
[52] It follows that the attitude of the Commanders as put by the PFA calls into question
whether or not the group was fairly chosen by the application to have a bargaining unit
comprising Superintendents, the Chief Superintendent and Commanders. In addition the
proposed group is not geographically or generally operationally distinct although they are
organisationally distinct.
[53] Finally there is discretion to make the order if it is reasonable in all the circumstances.
Given the conclusions I have reached I don’t need to address the reasonableness or otherwise
of something that I do not propose to make.
5 Ibid at paragraph 67.
6 Transcript PN 2146.
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[2011] FWA 7357
CONCLUSION
[54] For the reasons outlined I find that I am not satisfied that:
The making of the order will promote a fair and efficient conduct of bargaining.
The group of employees who would be covered by the proposed agreement are not
fairly chosen.
[55] Before concluding it would be unrealistic of me not to acknowledge that between the
time my decision was reserved and the delivery of this decision an agreement has been
reached between the Police Federation of Australia and Victoria Police—or so the newspapers
inform me. I state that I have not taken this into account in arriving at my decision and have
relied only upon the submissions and evidence presented in the proceedings.
[56] The application is dismissed.
Appearances:
R. Millar of Counsel [by permission] for the applicant.
W. Friend of Senior Counsel [by permission] on behalf of the Police Federation of Australia.
B. Mueller of Counsel [by permission] on behalf of Victoria Police.
Hearing details:
2011.
Melbourne:
July, 14;
September, 12, 13, 14 and 16.
Printed by authority of the Commonwealth Government Printer
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