T13164
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Police Association of Tasmania and Commissioner of Police
Industrial dispute - rostering arrangements for one and two member stations - RDOs and ADOs - management prerogative – consultation -operational requirements - no extra claims undertaking - autonomy to manage own rosters - employer proposal for a mandated 7.6 hour shift legally open under the award but found to be industrially unfair and unwise in all the circumstances REASONS FOR DECISION [1] On 3 June 2008, the Police Association of Tasmania (PAT) (the Union), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 (the Act) for a hearing before a Commissioner in respect of an industrial dispute with the Commissioner of Police (the employer) arising out of rostering arrangements for one and two member stations. [2] A hearing commenced at the Edward Braddon Commonwealth Law Courts Building, Hobart, on 23 June and continued on 9 July and 6 August 2008. Mr M Kadziolka appeared for the PAT while Mr T Martin and Mr P Wilkinson appeared for the Commissioner of Police. Background [3] In June 2007 an instruction was issued to alter the roster arrangements for a cluster of one and two member stations in North East Tasmania. The stations involved were Fingal, Avoca, St Marys, Gladstone and Lilydale. [4] The effect of this instruction was to implement a standard 7.6 hour day, which in turn removed the two additional days off [ADOs] which accrued over a five week cycle under the pre existing arrangements. [5] The PAT contested this change, invoked the Dispute Settling Procedure [clause 27] and notified the Commission of a dispute.[1] As a consequence there was a reversion to pre existing arrangements pending further discussions. An e-mail from the District Commander on 18 July 2007 outlines the position of Tasmania Police.[2] “In order to attempt to resolve the dispute notice lodged by the PAT concerning the roster changes I initiated at our 1 and 2 person stations, rosters are to revert to their pre dispute format immediately. This course is necessary before the PAT will meet with Employee Relations to discuss the matter. I remain committed to the changes, however clause 27(10) of the Police Award provides for such changes to be reversed in the event of a dispute. I will advise when the new rosters can be implemented.” [6] Subsequent correspondence and discussions in the context of Enterprise bargaining negotiations failed to resolve the issue. By correspondence dated 2 June 2008 the PAT withdrew T12997 and replaced it with the dispute notification currently before the Commission. [7] It quickly became apparent that matter would not resolve through the conciliation process, with both parties seeking to have the Commission determine the matter. The status quo concerning rostering arrangements remains in place pending the outcome of this hearing. The Existing Arrangements. [8] The rostering and payment arrangements for one and two member stations are covered in clause 9.3 of the Award. This is reproduced in full. “9.3 One and Two Member Station Allowance 9.3.1 A member being a Constable or Sergeant appointed to a designated one or two member station, excluding stations on King and Flinders Islands, shall be paid an allowance equivalent to 35 per cent of the member's normal salary in lieu of payment otherwise payable pursuant to the following: (a) Availability/Standby; (b) Call Back; (c) Overtime; (d) Shift and Penalty Allowance; and/or (e) Disturbance of leisure. 9.3.2 The One and Two Member Station Allowance shall be regarded as part of salary for the period of appointment to the designated one or two member station only and will be payable for all approved leave taken or upon resignation or termination from the service, whilst appointed to the designated one or two member station. 9.3.3 Members in designated one or two member stations will be entitled to receive the allowance of 35 per cent of normal salary subject to the following obligations: (a) The member resides within the geographic boundary of their station; (b) The member resides in a departmental residence where provided unless approved to reside elsewhere within the geographic boundary of the station; (c) The member has responsibility for all activity within the geographic boundary of the station requiring police intervention and/or attention; (d) The member accepts the nature of the position requires flexibility in being available and attending incidents. The member accepts hours of duty will be subject to change depending on the demands of the community; (e) The rostering provisions occurring elsewhere in the award do not apply although members will be able to organise available coverage, and reasonable time off within the cluster; (f) Members are rostered off for an average of two days per seven day period excluding Accrued Days Off. Alternative arrangements will be put in place to minimise disturbance on the Rostered Days Off and Accrued Days Off. 9.3.4 A member being a Constable or Sergeant appointed to a designated one or two member station when required by the Controlling Authority to perform work outside the area serviced by the member’s station, other than a designated one or two member station in the identified cluster of stations during the member's normal hours of work shall be paid the greater of: the 35 per cent allowance; or such payments as otherwise would be applicable. 9.3.5 A Constable appointed to a designated one or two member station will be paid a minimum salary level of Constable Level 6 whilst stationed at the designated one or two member station, with subsequent increments for the duration of the appointment. 9.3.6 A member of a designated one member station is not entitled to claim an In Charge Allowance, however, it may apply to a member of a designated two member station required by the Controlling Authority to undertake In Charge responsibilities.” [9] Typically the roster for these stations would simply indicate “on” or ‘RDO”. The rosters do not specify starting or finishing times, nor the duration of each shift. Essentially this is left to the discretion of the member. [10] Mr Kadziolka advised that typically the working arrangements included three or four ten hour shifts over a 5 week cycle. Members book on to communications at the commencement of the shift and indicate the shift duration. [11] Clause 9.3.3[f] provides that members are rostered off for an average of two days per seven day period [RDOs] excluding Accrued Days Off. Over the typical five week cycle the additional time worked each day in excess of 7.6 hours converts to an additional two ADOs over the cycle. [12] In summary, over the five week cycle members would work 23 days, have 10 RDOs and two ADOs. [13] Under the proposal of Tasmania Police, a shift length of 7.6 hours is mandated. This means that members would work 25 days and have 10 RDOs over the five week cycle. [14] The member resides in a departmental residence where provided and is responsible for all activity requiring police attention within the geographic boundary of the station. In the event that police intervention is required on a day that they are rostered “on”,but outside the nominated shift duration [leisure time], the member must respond and does not receive additional remuneration. [15] A member on a RDO or ADO is not obliged to remain available to answer calls or attend incidents. However if they are available and no alternative arrangements can be made involving a significant issue, the officer may respond. [16] When a member is on an RDO or ADO, arrangements are negotiated within the cluster to ensure that there is appropriate police coverage. Consultation in Relation to the Proposed Change. [17] Neither party chose to call witness evidence in relation to any aspect of this dispute and hence relied on submissions from the bar table. In relation to consultation, Assistant Commissioner Wilkinson said:[3] “MR WILKINSON: I was the commander of the northern district at the time that this issue came to dispute. I became aware that the people at our one and two-person stations were actually getting 12 RDOs in their five-week roster cycle. I had the view that that was contrary to the award and the actions that I took in requiring them to revert to 10 days off in five weeks – which is achieved by a 7.6 hour day, but the key was about days off – was in fact to bring them back in line with the award requirements. So I certainly didn’t have the level of consultation that the PAT would have expected of me, and quite frankly I probably didn’t have the level of consultation that I would have undertaken myself, had I had the view that it wasn’t simply about complying with the award. I was – at the time I did have a mistaken view that the members there were aware that this was coming, because it had been discussed within the districts management group for a period of weeks. That wasn’t the case. When I became aware that they hadn’t in fact had any consultation I set up a meeting with them and I spoke to them and when the association lodged the dispute we reverted to the previous situation, which I still contend was contrary to the award provisions. But I would have much preferred to have those members involved and included from the beginning and it was certainly an oversight on my part that that didn’t happen.” [18] The Assistant Commissioner went on say that the reason for the change was that he “wanted coverage. I wanted people to be in the town, which is what these small communities expect.” [19] Mr Kadziolka asserted that there was no consultation prior to the decision being taken and there was no consideration of the circumstances of the individuals involved. Additionally Tasmania Police failed to consult with the PAT as required under clause 27 of the Award. [20] Mr Martin acknowledged that the Commander, Northern District, “consulted with a number of affected members in relation to his requirements for them to work a 7.6 hour day on the 28 June 2007.Whilst this was after the date of his decision to alter the previous work patterns the Commander still believes that the members he consulted with were generally understanding of the situation and accepted his requirements,”[4] [21] Mr Kadziolka referred to a decision of Smith C in CPSU v Vodafone in which he said:[5] “In deciding whether or not to make the orders sought I have considered the importance of consultation. Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker. Section 170GA(1(b) of the Act speaks of measures to avert or minimise terminations or to mitigate the adverse effects of the terminations. Consultation is not joint decision making or even a negative or frustrating barrier to the prerogative of management to make decisions. Consultation allows the decision making process to be informed, particularly as it may effect the employment prosects of individuals. The opportunity to seek to avoid or mitigate the effects of a termination can not be underestimated by those who wield power over those and their families who will the subject of the exercise of that power.” [22] In relation to management prerogative, Mr Kadziolka referred to FED & FA v Robe River Iron Ore Associates in which the Full Bench observed:[6] “But the impact of the principle of managerial prerogative is not limited to the issue of the burden to be discharged in arbitration; it is central to the relationship between the parties. Managerial prerogative is not a sword which can be wielded in wanton disregard of the industrial consequences nor is it a shield to hide behind. An employer has a responsibility to manage fairly. Almost every initiative that an employer may take can be clothed in the ubiquity of managerial prerogative. To espouse this principle does not relieve the employer of the obligation to justify the effect where a change is instituted to some long standing practice or custom. Managerial prerogative is not a short cut to arbitration without consultation on the assumption that the union will carry the onus of proving that the long standing arrangement should continue. The fundamental question of whether or not a proposed change makes onerous or unsafe demands on employees carries the burden of justifying that the change is reasonable.” [23] Mr Kadziolka concluded in relation to consultation with the following submission:[7] “So they were spoken to after the event. The PAT maintains that the days shouldn’t have been withdrawn without notice, there should have been regard for the individuals and their circumstances. The requirement to consult, in my submission, effectively – is effectively to provide an opportunity for those who are affected by a proposed course of action to have the opportunity to be heard and influence the decision maker. The important dimension for the PAT is that although the controlling authority has the right to organise its operations efficiently, it also has an obligation to take into consideration the impact of those changes on members and whether the change is reasonable, and we submit strongly you can’t do that if you don’t ask and you don’t seriously listen. If the controlling authority doesn’t consult, it can’t know whether it is acting reasonably in the circumstances and fundamentally that’s the issue. The decision must, in my view, die and be buried because there’s no scope now to revisit the decision and influence the decision maker, because right or wrong it’s locked in and that couldn’t be clearer from what we’ve seen in the exhibits.” Submissions Mr Kadziolka, for the PAT: [24] Roster changes of the magnitude in contemplation have a significant impact on the individuals and it is reasonable for them to be genuinely heard before the decision is finally made. Clause 19.5.1 of the Award, [whilst not applicable to one and two member stations], states: “19.5.1 In each work area, roster changes shall be the subject of consultation between the Controlling Authority and the members in the work area.” [25] It is not open to management to rely on management prerogative without consideration of the impact on individuals. [26] The benefits of the 38 hour week could well be lost. Tasmania Police cannot guarantee that members would work shorter hours per day. It is external factors and not management which determines actual hours of work. The following example was put forward.[8] “An example of what I mean is that if they commence at 8 am and they’re meant to work an ordinary shift of 8 hours to 4 pm but they’re called to a motor vehicle collision at 3 pm and cease work at 8, that is the work day they are paid for by standard hours plus an allowance of 35 per cent. If that shift – if that 8-hour shift was deemed to be a 7.6-hour shift finishing at 3.36, nothing would change in relation to that example, nothing at all. The total hours worked on that day wouldn’t vary, nor would these members’ pay vary as they’re not entitled to overtime in that circumstance. What change would occur, I submit, and this disadvantages these members, is that they wouldn’t get the benefit of a 38-hour week because the 24 minutes that would have accrued toward an ADO now won’t.” [27] The disadvantage is compounded in that in addition to the two extra days at work, members would be required to do an unspecified amount of overtime attached to those two days as they would be “on call.” [28] ADOs are recognised in clause 14.1.4 of the award. [29] Mandating a 7.6 hour day is inconsistent with the autonomy inherent in clause 9.3.3[e]. [30] The roster arrangements providing for a minimum of 12 days off in a five week cycle has been the standard since 1994. [31] There is daily interaction with members in the St Helen’s station, who have 12 days off in the five week cycle. There is similar interaction between Gladstone and Scottsdale, and between Lilydale and Newnham, where similar 12 day off rosters apply. Mandating a 7.6 hour day will create a disparity, and a disincentive to go to these positions. [32] ADOs have been a longstanding, legitimate and accepted practice for implementing the 38 hour week since 1989. Police officers at one and two member stations have not at any time subsequent been excluded from this benefit, nor has any member in the wider police force. [33] The clause relating to one and two member stations was first included in the Award as a consequence of T9640 of 2001 which was heard on 29 June 2001. The following extracts from the transcript are relevant. Mr Kadziolka “In relation to One and Two Person Station clause, the next area, the new clause in the award results from the latest round of workplace bargaining. It reflects partly the current one person station allowance with the following changes: the allowance for one person station increases from 32.5 to 35 per cent of normal salary. The allowance will incorporate two person stations where designated. The date of operation for one person stations is the first full pay on or after 1 July 2001, for designated two person stations it's a year later, 1 July 2002.” “The obligations on these members and conditions relating to appointment are specified and I'll just briefly run through them - they reside within a geographical boundary; they reside in a departmental residence unless agreed; the member has responsibility for all activity within their command area; member accepts the nature of the position requires flexibility in being available to attend incidents and the hours of duty are subject to change; rostering provisions in the award do not apply to these people although they will be able to organise coverage, work patterns, leisure time, et cetera within the cluster of the stations they work in; they're rostered off an average of two days per seven, excluding ADOs and alternative arrangements be put in place to minimise disturbances during those days off. Obviously, these members are not required to work continuously. There's a balance, sir, which needs to be reasonable between work and time off. The requirement to work is matched against the ability to organise work within the cluster and take RDOs and ADOs off at a reasonable time. Therefore, sir, it does not mean that these people do not get days off or time off, they do. With RDOs and ADOs they are actually able to leave the area. Conversely, if they are on site during those times and something significant happens, they may be required to deal with it. Coverage time off and work patterns, as I've indicated, will be organised within the cluster of stations.” “As I indicated earlier, the full working of this provision is dependent on an association Commissioner of Police review to be undertaken by 1 June 2002, prior to the implementation of the allowance and it will evaluate and determine issues relating to adequate relief when members are on leave, appropriate clustering, work levels, disturbance and hours compared to conditions package that they'll be attracting.” Ms Pavier “MS PAVIER: Sorry to interrupt at this time, commissioner, if you don't mind - I would like to make some comment in relation to a few areas of clarification if I could and if this is a good time for you for me to do that, whilst we're on this area. COMMISSIONER: Certainly, Ms Pavier. MS PAVIER: Thank you, Mr Commissioner. I'm just wishing to clarify - you asked a question in relation to what will happen between now and 1 July 2002 before the two person station allowance is implemented. During that time members attached to any two person station whether they be delegated now or not will continue to receive any overtime payments, shift and penalty, in those sorts of areas. The other question you asked by friend was in relation to the differing roles and responsibilities and a typical business day within a one person and soon to be two person subject to the review. My friend was completely correct in what he told you and just going further than that, members within a one person station now have the ability to roster themselves on at any time, which meets their own business needs within their community so they can roster themselves on to, for example, an afternoon shift or a night shift on the weekend if they have a function. And we see the two person stations coming into that mould of being the typical community police officer within a small community and the clustering we envisage will entail a group of police officers within a reasonably close geographical area and we're hoping that what will result from it is that members will be able to take the telephones of those police officers during non typical business hours after afternoon shift and night shift.” [34] There was no mention of 7.6 hour shifts during this hearing, in contrast to ADOs, which were clearly recognised. [35] The award variation resulting from this hearing contained the following provision.[9] “9.3.8 A joint review between the Controlling Authority and the Police Association of Tasmania is to be undertaken by 1 June 2002 prior to implementation of this allowance for designated two member stations, that will evaluate and determine issues relating to the designated one and two member stations in relation to the following: (a) adequate relief arrangements; (b) appropriate clustering of stations in relation to proximity; (c) work level, disturbance and flexible hours compared to the conditions package.” [36] At the conclusion of a “long and arduous” negotiation process, a Policy document relating to one and two member stations was produced. This document was provided to the PAT under cover of letter dated 15 October 2003, which reads:[10] “I refer to your previous queries about One and Two Member Stations. After further consideration and discussions with the internal stakeholders concerning this matter, alterations have been made to the policy to ensure consistency with the Police Award 2000 is provided. The policy now reflects the actual situation and practice and One and Two Member Stations within the service and does not disadvantage these officers who are able to predict and arrange their own rosters. Attached is the final version of the documentation relating to One and Two Member Stations. Point three (3) is the only section that has been amended.” [37] This was an exhaustive negotiation process. There was no mention of 7.6 hour shifts during the review. If that was the intent of Tasmania Police then discussion should have occurred at that time. Conversely, the controlling authority should have gone back into negotiations before an attempt to implement the 7.6 hour shift occurred. [38] Self management is the underlying theme of the policy document. This is evidenced in particular by point 4, which states:[11] “Members at designated stations shall have a deemed roster approved that averages 38 hours per week over a roster cycle. Members of designated stations have the autonomy to place themselves on and off duty to effectively police their community. There is an expectation that members will perform additional duties where required to meet community needs.” [39] Point 9 of the policy provides that where a person is absent for more than 14 days, a relief member will normally be provided. This has not occurred as all St Mary’s subdivisional stations have had in excess of fourteen days absence without relief this year. A similar situation occurred in 2007. It is unreasonable for Tasmania Police to expect two additional days in a five week cycle, but not provide relief for extended absences. [40] When the 2004 agreement was approved by the Commission the PAT advised that the Review had been completed save for one outstanding matter relating to monitoring hours, call out and disturbance for Swansea and Bicheno. This was confirmed by Tasmania Police.[12] Again there were no discussions during these enterprise bargaining negotiations of any desire to change the roster arrangements. [41] There has been no suggestion that the communities were not policed appropriately or that jobs were not attended to. [42] The pursuit of a 7.6 hour shift is an attempt to alter existing conditions, and is therefore contrary to the no extra claims commitment. [43] Mr Kadziolka summarised the impact of the proposed change as follows:[13] “So relating to the merit, Commissioner: can the controlling authority guarantee that less time in total will be worked every day on the 7.6-hour shift, thus enabling them to require our members to work an extra two days per five weeks and maintain the 38-hour week entitlement? I’d suggest, Commissioner, that is impossible. That is the determining consideration here. This may be achieved in work environment where the standard conditions apply and anything over the 7.6 hours per day is overtime or conversely the employer has control of work demands and the employee can walk out the door at that time. Neither exists in the circumstances we’re talking about. The controlling authority may propose that it’s being reasonable considering average work requirements, but in reality demand is driven by what happens on any given day. The only way the benefit of the 38-hour week can be ensured in this circumstance, in our submissions, is that these members get accrued days off. I reiterate, Commissioner, if 7.6-hour shifts were introduced then the most likely outcomes would be: ordinary hours would decrease per day and the ratio of overtime would increase proportionately; members would be working on what were two days off and in addition the potential for total recall and overtime hours would increase by eight per cent for those two days, namely being two 25ths over the period. Regardless of these likely changes to the members’ work, their pay, I submit, would stay the same because of the commuted allowance” [44] Clause 14.2 does not prescribe a meal break for a shift of less than 8 hours. Presumably this is because 7.6 hour shifts are not worked anywhere within Tasmania Police. [45] It is unreasonable that a member could be compulsorily transferred to a position that has a manifest reduction in days off compared with the rest of his/her colleagues around the State. [46] The 35% loading is very much in the employer’s interests, in that it provides predictability of expenditure and capped payment for those hours beyond the standard. The trade-off is the absence of strict control of the working day. The unsupervised nature of the work was recognised by the employer and accepted by Westwood P in T2516 of 1990.[14] “The Association argued that if a person working in a one-person station worked more than 2125 hours in a year, such additional time should attract payment at the rate of double time. This was opposed by the employer on the basis that it had conceded an all up allowance of 30%. This was approximately 1.4% in excess of the existing 27.5% plus compensatory allowance which amounted to an effective 28.6%. It was argued that given the unsupervised nature of the work, calculation of entitlements would become an administrative nightmare” and a flat 30% allowance to be included in salary was the most appropriate method of remuneration. I concur with those sentiments. The allowance will be 30% with no additional payment in respect of overtime.” Mr Martin, for the employer: [47] A 7.6 hour shift is clearly one of the options available pursuant to Clause 14 of the Award. [48] Whilst the level of consultation, may, with the benefit of hindsight, have been insufficient, this must be viewed in the context of the police service, which is quite different from workplaces generally. It is unreasonable to expect a full consultative approach on every change a Commander or Inspector may wish to implement. [49] The benefit of the 38 hour week is that members work two hours less for the same rate of pay. The hourly rate also increases which has a benefit in an overtime situation. [50] The Award is very specific in relation to one and two member stations. Conditions are different for good reason. The member is required to reside in a departmental residence and effectively becomes part of the community, attending incidents and meeting the demands of the community in relation to public order. [51] The 35% loading is a significant allowance and takes into account all the disturbance of leisure aspects which attend one and two member stations. [52] The disparity argument in relation to members at the St Helens station is erroneous. The latter group are paid for overtime, availability and standby but do not receive the 35% loading applicable to one and two member stations. The two groups work different shifts and are separated by a considerable distance. [53] The roster provisions appearing elsewhere in the Award do not apply. [54] The term “reasonable time off” in clause 9.3.3[e] means at least two full days a week on average and in addition, time arranged within the cluster to enable the member to enjoy social activities. It does not mean that a member can have up to 13 days off in a five week cycle. [55] Clause 9.3.3[d] states that members accept that the nature of the position requires flexibility and that hours of duty are subject to change depending on the demands of the community. [56] It is acknowledged that the Department cannot guarantee that less time in total will be worked on each day. However, in the same vein, the employer cannot dictate that a specified amount of overtime, shift work and disturbance generally be incurred in order to qualify for the 35% loading. [57] Mr Martin summarised the position as follows:[15] “The simple answer is that the award at clause 9.3 provides for a set of conditions for these members and they are pretty much autonomous in how they work their 38 hours per week. The only requirement by the controlling authority is that they have responsibility for all activity within the geographic boundary of the station requiring police intervention and/or attention, that is detailed in subclause 9.33(c) of the award. And further, that the member accepts the nature of the position requires flexibility in being available and attending incidents.” [58] In addition to the 35% allowance, Constables are paid a minimum salary level of Constable Level 6. [59] Despite the wishes of the PAT there was no agreement reached in the enterprise bargaining negotiations to remove the 7.6 hour option from the Award. The resultant package was almost unanimously endorsed by the PAT membership. [60] To grant the order sought by the PAT would be tantamount to removing sub clause 14.1.2[a] from the Award. This would have the effect of introducing a new condition, a condition the PAT failed to obtain through the enterprise bargaining process. [61] The Department considers the 7.6 hour shift to be a legal and legitimate option that may be exercised where appropriate. Mr Kadziolka, in response: [62] It is necessary to go beyond the strict legal position as prescribed in the award and consider all matters pertinent to the situation and whether the proposed change is reasonable. [63] Whilst consultation is arguably not necessary on day to day command and control issues, the circumstances of this dispute do not fall into this category. [64] The employer needs to justify why this group of members should get fewer days off than every other officer. This has not been done. [65] It is likely that members would earn more on standard conditions than with the 35% loading. [Exhibit A15] [66] St Helens is the headquarter station. The position advanced by the employer would see members under the same local command structure being entitled to a different number of days off. [67] Mr Martin has acknowledged that appropriate coverage is provided through teamwork within the cluster.[16] Mr Kadziolka submitted that this is the case whether the roster provides for 10 or 12 days off. [68] The employer’s contention that the expression “reasonable time off” is reference to socialisation whilst rostered “on,” rather than RDOs and ADOs, is put without supporting evidence and is not founded on any earlier negotiations. [69] There are no constables or sergeants working a 7.6 hour shift anywhere within Tasmania Police. Findings [70] I deal firstly with Mr Kadziolka’s submission that the proposed change is contrary to the No Extra Claims commitment. Clause 28 of the award reads: “28.1 For the period until 30 June 2010 the parties agree to abide by this no extra claims provision which excludes both parties progressing any claims to vary salaries and/or conditions, including any National Wage movements, but allows claims for expense related allowances in accordance with the Tasmanian Industrial Commission Wage Fixing Principles.” [71] Mr Kadziolka submitted that the employer proposal amounted to an attempt to alter legitimate, currently existing conditions of employment and is therefore contrary to the undertaking inherent in this clause. [72] I do not agree. As a general rule I do not consider genuine disputes arising out of the application of an existing award provision contravene a No extra Claims commitment. In my view this dispute falls into this category. [73] I turn now to the legal position under the Award. [74] Clause 14.1.2 clearly provides for a 7.6 hour shift as one of the options for implementing the 38 hour week. This option is not in any way constrained by the Award. [75] It follows that Tasmania Police has the legal capacity to require that the 38 hour week be worked on the basis of 7.6 hour shifts. [76] There are however other considerations which should be taken into account before the employer embarks on this course of action. These considerations come under the broad headings of operational requirements and the impact on individuals concerned. It is only when these factors are taken into account that a decision as to whether the proposal to introduce 7.6 hour shifts is reasonable in all the circumstances, can be properly made. [77] In examining these issues I note again that neither party chose to present witness evidence. My observations and conclusions are therefore based on submissions, coupled with documentary material tendered. [78] I have no hesitation in accepting Mr Kadziolka’s submission that the impact on the individuals would be significant. [79] The proposal means that individuals will enjoy two days less leisure each five week cycle. In addition, I accept that the employer is unable to guarantee that the members will be compensated by working shorter hours per day. This can be contrasted with a similar change for employees working under normal award conditions whereby overtime payments cut in for all work in excess of ordinary hours. [80] It is also apparent that members would be exposed to additional call outs/overtime on these two additional days. [81] The uncontested submission of Mr Kadziolka was that the concept of ADOs had been in place since 1989 and the current 12 days off /five week cycle had been in place since 1994. The history of various enterprise bargaining agreements, award variations and the specific review mechanism established in 2001, strongly support the contention that ADOs have been and remain a legitimate feature of rosters arrangements, and, further, the proposal to introduce a 7.6 hour shift roster had not at any stage been raised. [82] It has also been established that no other constables or sergeants in Tasmania Police are required to work a 7.6 hour shift roster. [83] I conclude therefore that the individuals subject to this application would have accepted postings to one and two member stations in the knowledge that the 12 day off roster had been in place for a considerable period of time. Further, and perhaps more importantly, there was absolutely no reason why they might have anticipated that a significant change was in the wind. [84] It must be acknowledged that clause 9.3.3[d] states: “The member accepts hours of duty may be subject to change depending on the demands of the community.” [85] Without reaching a definitive conclusion, I suspect that this provision is aimed more at rearrangements within the working day to meet local circumstances [eg a major event or a pattern of anti social behaviour], rather than a root and branch alteration to the roster itself. [86] It is unclear whether the reference to “reasonable time off within the cluster” is a reference to RDOs and ADOs [Mr Kadziolka’s submission], or arranged time off for socialising on a day when the member is rostered “on” [Mr Martin’s submission.] [87] I am prepared to accept that the above provision does not amount to an open cheque for members to roster RDOs and ADOs without any constraint. However I am also prepared to accept that the mandating of a 7.6 hour shift does not sit entirely comfortably with the autonomy which by necessity attaches to working arrangements in one and two member stations. [88] I do accept Mr Martin’s contention that the interaction with the St Helen’s station is not a persuasive argument. Apart from the geographical separation, one group operates under award conditions and the other is paid the 35% allowance. The interaction, by itself, is not a compelling reason as to why the same rostered days off arrangements should apply. [89] I do not accept Mr Martin’s submission that the 35% loading, together with minimum level 6 salary level, in some way compensates for a requirement to change to a 7.6 hour shift roster. The allowance is in lieu of payment for overtime/availability etc, and on Mr Kadziolka’s submission [Exhibit A15], cannot be said to over compensate for these factors. [90] Consultation, such as it was, was clearly after the decision to implement the 7.6 hour shift was taken. From what was put to the Commission, the level of consultation was more in the nature of advice that this change was going to happen. This was quite inconsistent with the observations referred to earlier of Smith C in CPSU v Vodafone, and with which I readily concur. [91] I conclude that the proposed change would have a significant, perhaps even profound negative impact on the members concerned. Further, I conclude that 7.6 shifts do not apply anywhere else in Tasmania Police, and perhaps never have. I also observe that there have been numerous opportunities in the past in the broader, award/EB negotiations for the employer to raise the issue of 7.6 hour shifts, and that this has not occurred. [92] In light of these conclusions, are the operational requirements of Tasmania Police such as to justify the change proposed? [93] I am unable to accept Assistant Commissioner Wilkinson’s contention that the 12 day off shift roster was “contrary to the award.”[17] There is no doubt that the existing roster is quite permissible under the award, just as a 7.6 hour shift roster is permissible. [94] The Assistant Commissioner went on to say:[18] “…and the reason I was changing is I wanted coverage. I wanted people to be in town, which is what these small communities expect.” [95] Whilst this sentiment is readily understood, the reality is that even with 7.6 hour shifts, the stations will not be physically manned for at least ten days in every five week cycle. That is why the cluster operates the way it does; the members by negotiation arrange coverage for the station when the incumbent officer is absent, a position acknowledged by Mr Martin. [96] I also note the uncontested submission from Mr Kadziolka that the stations within the cluster had all been left without relief cover for extended periods of leave during the previous 12 months. [97] There was no evidence of incidents not being attended to or dissatisfaction from the community. [98] In short, nothing has been put forward in terms of operational imperatives which, to my mind, justify the overturning of long established shift arrangements which officers, not unreasonably, might consider to be an integral component of their conditions of employment. This is particularly so given the almost complete absence of meaningful consultation. [99] I hasten to add that my conclusions and observations in this decision should in no way be interpreted as curtailing the capacity of Tasmania Police to manage and deploy its resources in a manner which maximizes community safety and security. But this right, which Mr Kadziolka described as “command and control of operations”, must be balanced against the legitimate industrial rights, in terms of conditions of employment, of police officers. As the Full Court observed in Robe River Iron: “Managerial prerogative is not a sword which can be wielded in wanton disregard of the industrial consequences nor is it a shield to hide behind. An employer has a responsibility to manage fairly. Almost every initiative that an employer may take can be clothed in the ubiquity of managerial prerogative. To espouse this principle does not relieve the employer of the obligation to justify the effect where a change is instituted to some long standing custom or practice.” [100] I refrain from issuing an order preventing Tasmania Police from implementing a 7.6 hour shift roster. Given the legal ability under the award to do just that, such a course would be inappropriate. [101] I do, however, reiterate that in my view, Tasmania Police has failed to make the case for such a radical departure from a longstanding arrangement. In the circumstances I consider it would be both industrially unfair and unwise to mandate a 7.6 hour shift roster on this select group of members.
Tim Abey
Appearances: Date and place of hearing: [1] T12997 of 2007 |