T12910
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Police Association of Tasmania and Commissioner of Police
Industrial dispute - alleged breach of award - travel to overseas location - claim for overtime - principles identified - award silent - no breach detected - claim found to have merit - recommendation REASONS FOR DECISION [1] On 23 March 2007, the Police Association of Tasmania (PAT) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Commissioner of Police (COP) arising out of an alleged breach of the Police Award. [2] This matter was listed for hearing (conciliation conference) on 2 April 2007 and for hearing on 5 April, 24 May and 18 June 2007. Mr M Kadziolka and Mrs A Smith appeared for the PAT. Mr T Martin appeared for the COP. Background [3] Constable W was subpoenaed by the Australian Crime Commission (ACC) to travel to Hong Kong and give evidence in the Hong Kong High Court. The court proceedings related to earlier events at which time Constable W was on secondment to the ACC. He had since resumed operational duties with Tasmania Police (TASPOL). [4] A Memorandum of Understanding between ACC and TASPOL reveals the following in relation to officers on secondment to ACC:1
[5] It was common ground that during the time spent in Hong Kong, Constable W was subject to the direction of ACC. The Hong Kong police made the travel arrangements. [6] Constable W was released by TASPOL to attend the proceedings. It was quite clear that Constable W had no discretion in the matter. He was required to attend and would have faced arrest and disciplinary proceedings had he chosen not to. [7] Constable W departed Hobart on the morning of 16 August 2006. He arrived at his hotel in Hong Kong at 0100 hrs on 17 August. [8] On 17 and 18 August Constable W attended the court but was not required to give evidence. The 19 and 20 August, being the weekend, were treated as Rostered Days Off. [9] Constable W gave his evidence on the morning of 21 August. He departed Hong Kong at 2105 hrs on 21 August, arriving back in Hobart at 1700 hrs on 22 August. [10] Constable W was paid as if he worked his normal shift on 16, 17, 18, 21 and 22 August. [11] On 8 September 2006 Constable W submitted a claim for overtime.2 The claim related to time spent travelling to and from Hong Kong, which was in excess of his ordinary hours for each day in question. This amounted to a claim for 24 hours at overtime rates. [12] Initially the claim was accepted at Commander level.3 However it was subsequently determined by Corporate Services that an entitlement did not arise. By memorandum dated 19 October 2006, the Director, Corporate Services said:4
[13] The PAT maintains that in denying payment, TASPOL is in breach of the award, and seeks an order, requiring payment. The Evidence [14] The evidence of Constable W was straightforward and essentially not contested. His evidence may be summarised as follows: · He was aware several days ahead of the requirement to travel. · He did not specifically seek prior approval to work overtime. However his supervisors were fully aware of the travel requirements. It was not possible to travel during ordinary hours of work. · He considered himself to have been on duty whilst in transit. However he did not perform any specific TASPOL duties, other than "travelling". · He did not consume alcohol or sleep during the flights. This was by choice rather than a direction of TASPOL. · It was normal practice to submit an overtime claim after the event, provided supervisors were aware of the requirements. · Failure to comply with the subpoena would have resulted in a warrant for his arrest and subsequent disciplinary proceedings for neglect of duty. [15] There were no other witnesses called to give evidence. The Award Provisions and Other Relevant Documentation [16] The award is the Police Award. Relevant clauses are as follows:
[17] Mr Kadziolka noted that Clause 14 - Hours referred to Hours of Duty, he submitted that an officer travelling at the direction of his employer was "on duty", which in turn constituted "work" for the purposes of the overtime clause. [18] In support of this submission Mr Kadziolka referred to the Police Service Act, which defines "duties" as follows:5
[19] This, Mr Kadziolka submitted, was a broad definition which embraced "work", and was strengthened by s.35 of the Act, which reads:
[20] Mr Kadziolka submitted that Constable W was complying with a lawful direction when acting in accordance with the requirements of the ACC and the subpoena. [21] In conclusion, Mr Kadziolka said:6
The Position of TASPOL [22] The position of TASPOL was conveyed in correspondence to PAT dated 22 February 2007:7
[23] Mr Martin enlarged on this position during submissions. [24] He said that Constable W was not rostered for work and did not commence work on either 16 or 22 August and therefore could not be entitled to overtime in accordance with the award. Mr Martin referred to a roster8 that designates "H.K-court" without specific hours of work for the period 16 to 22 August. Indeed TASPOL did not consider Constable W to be on duty at any time he was in Hong Kong. He was paid his normal wage so that he was "not disadvantaged".9 [25] Mr Martin said that it was accepted by all parties that Constable W was directed to attend work in Hong Kong and that it would then follow that Hong Kong became the place of work for a period of time. By virtue of Clause 15.1.4 of the award, time spent travelling to and from work is not overtime, Mr Martin submitted. [26] Mr Martin submitted that the award did not provide for the precise set of circumstances applicable to Constable W, but the structure and intent of the relevant clauses was clear in that the concept of travel to and from work was not considered overtime. [27] Mr Kadziolka said that this was an "extreme position and leaves the door open for non-payment whenever the actual exact specifics don't match. This view confers an obvious disadvantage on this member and other members".10 [28] In relation to the TASPOL contention that time spent travelling was "passive time, that is, they are not actually performing any of their normal tasks",11 Mr Kadziolka said:12
No Extra Claims Commitment [29] Clause 28 of the award reads:
[30] Mr Martin submitted that the pursuit of this claim, which was not provided for in the award, was in breach of this commitment. [31] Mr Kadziolka submitted that this submission was baseless, in that the entitlement already existed. Hitherto there had not been a requirement to test the award prescription. [32] Had the PAT sought to vary the award to create a new entitlement, then the commitment would have been breached. However in my view the Association has done no more than seek to enforce what they considered to be an existing provision, and for which there is a solid arguable case. [33] I find that the PAT has not breached the No Extra Claims commitment. Authorities [34] Very little appears to be available which might offer guidance on the issue before the Commission. [35] There are however some analogies with the circumstances considered by Holmes C in Police Association v Victoria Police.13 In this matter the applicant identified the issue in dispute in the following terms:14
[36] Given the myriad of quasi-regulatory arrangements in the background of this matter, it is, in some respects, a decision that is difficult to follow. Nonetheless the following points relevant to the issues before this Commission may be discerned. [37] The decision focussed on circumstances whereby a police officer was directed to transfer to a location, other than the officer's normal workplace, on a temporary basis (less than 6 months). A related claim concerned attendance at training courses at a location other than the normal workplace. [38] The Police Association submitted "it had been custom and practice within the Victorian Police Force over an extensive period for the payment of mileage and overtime in such circumstances".15 [39] The respondent disagreed and contended "that the industry-standard is that there should be no provision and that is the standard that applies over most of Australia for police jurisdictions".16 [40] Holmes C reached the following conclusions:17
[41] In relation to relocation outside the metropolitan area, the Commissioner determined "where an officer is required to travel a distance of 50km in one direction in excess of that which he would normally travel to work in order to attend at the temporary location then the excess travelling provisions would be invoked".18 [42] In relation to the rate of payment for excess travel, Holmes C determined:19
[43] In dealing with the issue of attendance at training courses, the Commissioner said:20
Findings [44] The question to be determined is whether the time Constable W spent travelling to and from Hong Kong constitutes "work" and hence invokes the overtime provision of Clause 15. [45] There is a related question of whether the terms "worked" (Clause 15), "Hours of Duty" (Clause 14) and "duties" (Police Service Act), are synonymous. [46] I accept that there is clear linkage between "Hours of Duty" (Clause 14) and "overtime worked" (Cause 15). [47] However the definition of "duties" in the Police Service Act is unhelpful. Whilst the concept of duties clearly embraces the day-to-day activities and functions of a police officer, the notion of "responsibilities" might include, for example, a requirement to present for work in a fit and able state. It is not difficult to envisage a number of examples whereby something might fall under the heading of responsibilities but does not necessarily invoke recompense, whether it be for ordinary hours or overtime. [48] I do not accept TASPOL's contention that Hong Kong became Constable W's normal place of employment for a period of time and, accordingly, travel to and from work does not constitute overtime. The award does not define workplace although Mr Kadziolka submitted that members are assigned to a workplace by virtue of a reference in the Government Gazette. Notwithstanding the absence of a definition, it would be drawing the longest possible bow to contend that an assignment to Hong Kong for a period of six days would amount, in industrial terms, to an officer's normal place of employment. It is not one I am prepared to accept. [49] There are two further TASPOL contentions that I am unable to accept. [50] Firstly, there is the issue of Constable W's failure to explicitly seek approval to work overtime prior to departure. His supervisors were fully aware of the requirement to travel. There were no other travel options available. It raises the rhetoric question: What would have happened if he sought approval to work overtime and it was denied? [51] The issue is not one of prior approval, but whether what was done in the full knowledge of all relevant supervisors, amounted to duty, such as to invoke the overtime provision. [52] Secondly, Mr Martin submitted that the actual hours worked in Hong Kong did not coincide with his normal roster. Certainly there were minor variations to accommodate the sittings of the court. However there is no contest to the fact that the hours claimed as overtime were for time spent travelling and which were in excess of the total number of hours Constable W would have ordinarily worked on the days in question. [53] The issue to be determined, distilled of extraneous issues, is as follows: · Did the time spent travelling, in excess of eight hours on each day, amount to duty at the direction of TASPOL? (PAT position). Or alternatively: · Did the time spent travelling constitute "passive time" during which Constable W was not required to perform any duties, nor was he under any constraints such as not to consume alcohol? (TASPOL position). [54] The award specifically provides for a range of recompense arrangements whereby police officers are arguably on some form of duty, but not necessarily working. [55] I instance the following examples: · Clause 9.3 - One and Two Member Station Allowance · Clause 9.6 - Sea Going Allowance · Clause 14.3 - Availability and Standby · Clause 23.2 - Dog Handlers Allowance [specifically 23.2.2(b), (c) and (d)] · Clause 24.8.1 - Overtime Allowance-Isolated Task Force Operations. [56] Officers holding the rank of Inspector and Commander are not eligible for payment of overtime [Clause 15.1.8(a)]. The logical conclusion is that an allowance for excess hours is built into the annual salary. The same argument however does not extend to officers below this rank. [57] Provisions relating to travel are quite common in awards. These are often expressed as a flat monetary allowance, time-based or a combination of both. In addition thresholds in terms of minimum distance and/or time sometimes apply. In some cases classifications above a certain level are excluded, presumably based on the notion of an all-in salary arrangement. The matter of direction by the employer as distinct from an employee-initiated request is a further issue which on occasions is specifically addressed. [58] Travel related clauses are invariably designed to meet the circumstances of the industry covered by the industrial instrument, and there is no "one size fits all" model. [59] Notwithstanding these variations, two clear principles emerge. Viz: · Where an employee is directed to travel to a location other than his or her normal place of work outside of ordinary hours, invariably some level of compensation is provided for. · The level of compensation rarely provides for payment of greater than ordinary time. Note that the claim for payment at overtime rates was specifically denied in Police Association v Victoria Police. [60] The Police Award does not specifically provide for the circumstances of Constable W. Is it then appropriate to take the next step and conclude that Constable W was on duty, and to the extent that the travel time exceeded ordinary hours, requiring payment at overtime rates? [61] In my view the answer is "No". Whilst Constable W had no option but to travel, and was undoubtedly inconvenienced, he was not required to perform any duty, nor was he otherwise subject to constraints. [62] As the travel time does not amount to duty and the award is otherwise silent on the question, I am unable to detect any breach of the award. [63] However the mere fact that the award is silent does not mean that the PAT application lacks merit. Awards rarely cover every contingency and when matters fall through the cracks it makes sense to address the issue on its merits, notwithstanding the technical vagaries of the award. [64] In my view Constable W is clearly entitled to some form of compensation and I would strongly recommend the parties revisit this issue with the view of negotiating an agreed outcome. By way of guidance, I am of the view that payment at ordinary rates, or time in lieu, would be appropriate. [65] I would further strongly recommend that the parties address the broader issue of travel arrangements generally in the next round of EBA negotiations. [66] The file will remain open pending further advice from the applicant.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit A4
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