T13426
TASMANIAN INDUSTRIAL COMMISSIONIndustrial Relations Act 1984
and Commissioner of Police
[2] This matter was listed for a hearing (conciliation conference) on 22 April 2009, and for hearing on 30 April 2009, 14 May 2009 and 26 May 2009. Mr M Kadziolka appeared for the PAT. Mr T Martin and Ms H Jordan appeared for the COP. [3] This dispute arose as a consequence of correspondence to the PAT dated 6 March 20091 in which the Acting Commissioner advised of an intention to change a long standing practice of deducting recreation leave credits. The correspondence reads as follows: “Recreation Leave Entitlement Recreation Leave Entitlement for members of the Police Service is contained in the Police Service Regulations 2003, Regulation number nine. The entitlement is expressed in hours (228). The Department records annual leave balances in hours and also, through the Pay Advice, advises members of their balances in hours. Applications for annual leave from members are usually expressed in days and not hours. This has resulted in the Department deducting leave from a member’s entitlement using a 7.6 day. This practice does not accurately reflect patterns of work for members, particularly those who work shift work. It is my intention to change this practice effective from Monday 23 March 2009 when all applications for annual leave from that date, including applications already received, will be deducted in hours based on the rostered hours that a member is not at work and on annual leave. I have written to all Commanders advising that all annual leave applications are only to be processed in hours and the hours are to be based on the roster that the member would have had worked if they were at work. This will not affect the legal entitlement that a member of the Police Service is entitled to under the Police Service Regulations 2003 in any way. DL Hine [4] The administrative practice since 1995 has been to deduct leave entitlements on the basis of 7.6 hours for each day a member was otherwise rostered to work. The change proposed by the Acting Commissioner is to deduct leave on the basis of the actual hours rostered to work. For example, if a member applied for leave on a day for which he/she was rostered to work a 10-hour shift, a total of 10 hours would be deducted from the accrued leave entitlement. [5] The PAT immediately took issue with this proposal. [6] In correspondence dated 18 March 20092 Tasmania Police advised: “The practice which we are seeking to change will resolve the inequitable situation that presently exists which allows some members to access more Recreation Leave than their colleagues and more than the entitlement prescribed by the Police Regulations 2003. Nonetheless you have made it clear that you object to the proposal to resolve this issue and as a result the decision to deduct Recreation Leave on the basis of the time taken off will be deferred to allow you to articulate your concerns to us and for the merit of those concerns to be considered." [7] Subsequently the PAT invoked the dispute settling procedure which has the effect of requiring the parties to confer and preserving the status quo pending a resolution of the matter. [8] Conciliation proceedings on 22 April 2009 failed to resolve the dispute and the matter proceeded to hearing. Final written submissions were received on 12 June 2009. History [9] The Commission was provided with a detailed history of events surrounding the practices applicable to the recording and administration of leave entitlements. The following is a summary of the key events. Prior to 1999 [10] The recreation leave entitlement has always been found in the Police Regulations as distinct from the award, which is limited to matters going to the taking of leave. [11] The Police Regulations 1974 relevantly stated:3 “A member of the force or a cadet who is a shift worker, who has completed 12 months’ continuous service shall be granted recreation leave for a period of 42 consecutive days.” [12] There can be no doubt that this expression included rostered days off (RDOs). Whilst not explicit, I am confident that this terminology embraced the notion of six weeks’ leave per annum (30 days) and 12 RDOs. Note: The term RDO in this decision includes Accumulated Days Off (ADOs) where relevant. [13] On 16 February 1995 Tasmania Police wrote to the PAT expressing concern as to the practice of members applying for leave based on working days. This correspondence reads as follows:4 “Recreation Leave It has been brought to my attention that certain members have applied for recreation leave based on their working days. This effectively allows in excess of their forty two calendar days leave allowable under clause 14.5.1 of the Police Award and Police Regulations 55(1) to (3).
[14] The PAT rejected this proposal asserting that members would be disadvantaged. The Association instanced the case of a member rostered to work seven days’ night shift followed by six RDOs. This, it was submitted, would result in a debit of 13 days’ leave, which would be out of proportion with the work days taken off.5 [15] Discussions and correspondence between the parties ensued over the next several months. On 22 August 1995 Tasmania Police wrote to the PAT in the following terms:6 “Leave and HDA Recording - Police Officers During implementation of the Remus system, under Project CHRIMS, questions have been raised about the manner in which a number of HR operational processes are conducted. Generally, the issue of what constitutes a day for higher duties, leave loading and all leave types, other than long service leave, must be resolved. These issues are critical for implementation of the Department’s new HR system, Remus. The proposals listed below have been developed as a result of discussions held between Police Association and Personnel Administration representatives. … Recreation Leave The annual recreation leave entitlement for a police employee is 6 weeks which equates to 228 hours - 6 weeks at 38 hours per week or 30 working days at 7.6 hours per day. It is proposed that a day for recreation leave recording purposes is 7.6 hours. If a person is rostered to work 9 days in a 2 week period then 9 x 7.6 hours (68.4 hours) would come off their leave credit. Accrued days off and rostered days off are not deducted from leave credits. … This proposal requires very little change to current practices. The only difference is the notification of the rostered working days for each leave period. The main benefit of this approach is that all Police will be treated fairly and equitably in that they will receive 30 rostered working days recreation leave per year. The current problem of certain police taking 42 rostered working days leave per year will be eliminated.” [16] This letter was reproduced in full in a PAT Newsletter dated 31 August 1995. The newsletter concluded with the following PAT observation:7 “The proposed benefits of the changes from members’ point of view are: 1. If it is implemented the Department will not impose a minimum period of recreation leave of 3 weeks. 2. There will be the opportunity for members to take less than 7 days recreation leave which will provide added flexibility for individuals. 3. Members who are forced to take a certain leave period to comply with personal commitments will not be disadvantaged if they have a disproportionately high number of days off within the period of leave. 4. Delays in correct payment of wages for leave and higher duties should be eliminated.” [17] A meeting of the PAT Executive Committee on 19 September 2005 carried the following motion:8 “That the Police Association of Tasmania Executive and its members supports the Police Department with the introduction of the new pay and personnel system.” [18] The practice inherent in this arrangement, i.e. deducting 7.6 hours for each rostered day of work has continued to this day. For convenience, the practice shall be referred to as the REMUS arrangement. [19] It would seem that subsequently Tasmania Police sought to introduce a minimum of three weeks’ recreation leave. [20] On 3 June 1997 the PAT wrote to Tasmania Police in the form of minutes of a meeting held on 30 May 1997. Relevantly, the correspondence said:9 “Recreation leave - 3 week blocks The meeting discussed the Department’s attempt to impose a 3 week minimum on recreation leave relating to leave rosters. The Association indicated that as part of the REMUS negotiations Department representatives stated that members would be able to take amounts less than the minimum 7 days including single and part days. The Association accepted the package of changes relating to REMUS understanding that some members would be disadvantaged with its introduction but there would be some gains including the flexibility to take leave of less than 7 days as prescribed by the Regulations. It was the Association’s position that any movement away from the ‘package’ without its consent would be a breach of an agreement entered into in good faith.” [21] This was followed up with subsequent correspondence from the PAT dated 5 June 199710 and 19 June 1997.11 [22] Tasmania Police responded in detail with correspondence dated 27 June 1997. This letter read in part:12 “Discussions which took place prior to the implementation of Remus were initiated by the Department as it was recognised the application of calendar day credits and deductions for recreation leave would disadvantage employees, particularly those working 8 and 10 hour shifts. Recording leave in actual rostered hours was the Department’s preferred approach from the outset but as a result of concerns with one of the police districts and the Police Association the working day method for leave recording was adopted. You should be aware that officers from the district in question now recognise that the processing arrangements are totally unsuitable and are contributing to staff management problems.” “During consultation in 1995 the Department indicated that 1 day absences would be deducted on the basis of 1 day = 7.6 hours. This resulted from the complicated calculations that would need to occur to take into account the effect of 8 and 10 hours shifts. Our evaluation of this situation indicates this is abused to the extent that some officers have received well in excess of their legal entitlement (refer attached).” [24] The PAT responded on 8 July 1997 stating, inter alia:13 “The ‘discussions’ you refer to relating to the introduction of REMUS were actually negotiations to which there was a settlement. The Department sought and received Association agreement to its introduction on the terms and conditions negotiated. Your hyperbole regarding members breaching good faith by accessing a legitimate entitlement is positive proof in my mind that you, for whatever reason, have decided to re-examine your position, formulate excuses and renege. Our position has remained constant from the time the agreement was entered into by the parties. … From this organisation’s point of view your position on the intended outcome is not based on fact. At the time you achieved what you desired through the negotiations. It seems that now you are not satisfied with the outcome and want it unilaterally revisited. I refer to your evaluation of the current system and indicate that members have done nothing more than access entitlements in accordance with the conditions you required and to which you agreed.” [25] Further correspondence followed and the minutes of a COP/PAT meeting on 9 July recorded the following:14 “Item 5 - Recreation leave - 3 week blocks Considerable discussion occurred regarding this issue. PAT representatives indicated that an agreement existed regarding the implementation of REMUS which contained agreed conditions from which the Department was attempting to move away. The Department maintained that the REMUS implementation did not rely on Association Agreement and that it had to address issues of leave planning and alleged rorting. In relation to leave planning the Deputy Commissioner proposed the following to resolve the issue: • If an individual member desires/requires leave and the member’s supervisor/authorising officer agrees shorter periods can be taken • If circumstances dictate (regarding the welfare of members) then shorter periods can also be taken The Association viewed this proposal as reasonable and a possible solution. The second major area of disagreement related to the deduction of 7.6 hours for each day of leave. The Association strongly maintained that this was part of the agreement and the Department indicated that it should be revisited because of alleged rorting. The Association maintained members were only accessing a legitimate and existing entitlement and if the Department wanted to change the arrangements it should be part of the future enterprise agreement agenda. The Commissioner indicated a desire to work through this issue and if there was not much abuse he may be prepared to live with it. The Association indicated a preparedness to further discuss the outstanding issues.” [26] Correspondence form Tasmania Police dated 21 July 1997 canvassed the issues in some detail and concluded with the following observation:15 “I repeat, the fairest and most equitable approach is to deduct actual rostered hours. ADOs and RDOs will then accrue as per the normal roster.” [27] The PAT responded on 5 August 1997 commenting inter alia:16 “Notwithstanding this our position is clear that we do not want a departure from the existing method of calculating/debiting leave which was introduced with REMUS by agreement. If you desire to change the method of calculation we are prepared to discuss the issue with the possibility of negotiating an outcome.” [28] Minutes of a PAT/COP meeting on 29 August 1997 noted that a further meeting was scheduled for 5 September and:17 “These issues to become part of negotiations on EA.” 1999 to 2009 [29] In a decision issued on 22 January 1999 the Police Force Enterprise Agreement for Constables and Sergeants18 was approved. [30] Relevant to the instant matter, the agreement contained the following new provision:19 “Commencing 1 February 1999, all Recreation Leave shall be credited in hours and recreation leave taken shall be deducted on an hourly basis dependant upon the number of rostered hours for that member during each period of recreational leave. With respect to return from leave, the Department shall ensure that all hours recreation leave deducted are used to calculate a members ordinary hours of work and other provisions of the Award and Enterprise Agreement.” [31] On 21 December 2000 The Extended Police Service Enterprise Agreement for Constables and Sergeants was approved.20 The effect of this was to extend the term of the 1999 agreement until 31 March 2001. Clause 14.2 remained unchanged. [32] Neither party could throw any light on the background to this agreement, which, on its face, met the requirements which Tasmania Police now seeks to implement. [33] Suffice to say Clause 14.2 was not implemented and the practice inherent in the REMUS arrangement continued. [34] On 13 July 2001, the Police Award 200121 was approved. According to Mr Kadziolka, this award amalgamated and replaced the previous award and enterprise agreements, with salaries and conditions being incorporated into one document. [35] Clause 14.2 above was not replicated in the new award. However the provision stating that “a member shall ordinarily take a minimum of seven (7) days recreation leave at any one time”, which had been a feature of the 1994 and 1997 awards, was deleted. [36] In 2003 the Police Service Regulations were amended to read:22 “Recreation leave entitlement (1) A police officer who is not appointed under an instrument of appointment under the Act and who is entitled to a shift penalty allowance is entitled to recreation leave for a period of 228 hours in any one year of service. (2) A police officer, trainee or junior constable who is appointed under an instrument of appointment under the Act is entitled to recreation leave for the period specified in that instrument of appointment. (3) the Commissioner may determine - (a) the manner in which recreation leave is to be applied for; and (b) the manner in which remuneration and allowances are to be paid; and (c) the procedures that apply before, during and after the taking of recreation leave; and (d) the records to be kept.” [37] The significance of this change is that the previous expression of “42 consecutive days” was replaced with “a period of 228 hours in any one year of service”. [38] It would seem that there was no further correspondence or discussions of consequence relating to this matter until the letter from Tasmania Police dated 6 March 2009, which in turn gave rise to the reference to the Commission. Submissions Mr Kadziolka, for the PAT [39] The REMUS arrangement amounted to a binding agreement with benefits to both parties. For Tasmania Police it overcame a perceived problem with members taking leave on days they are rostered to work and excluded RDOs. For the PAT, it had the advantage of allowing members to access single day periods of leave. [40] Given the Regulations specified “42 consecutive days” an agreement was necessary to avoid prosecution. [41] The agreement was reasonably based. [42] It is unclear what was in the minds of the parties with the 1999 and 2000 enterprise agreements. The reality is that Tasmania Police did not implement the administrative change which the enterprise agreement contemplated. [43] Tasmania Police forfeited the opportunity to implement the change with the expiry of the enterprise agreement on 31 March 2001. The 2001 award, which replaced the enterprise agreement, did not contain this facilitative provision. [44] Since the enterprise agreement expired, 511 new members have commenced with Tasmania Police. Since the introduction of the method of deduction in September 1995, 775 members have been employed and have known no other method of deduction. [45] The system has been in place for 14 years. It is clearly an entrenched practice. It must be viewed as long standing custom and practice. Reference was made to the following decisions: [46] In CFA (APS) v TAA, Paine C observed:23 “This Commission is therefore unaware of the considerations which led to TAA changing its practice unilaterally without consultation and while I am unable to find on the evidence a firm written contractual commitment to afford the benefit which may now be denied according to the time the medical officer makes a determination in respect to an officer’s condition I am of the opinion there were obligations existing by reason of custom and practice which would have justified a different approach from that which was adopted in respect to C.” [47] In Minister for Health v ALHMWU, Sharkey P (George C concurring) said:24 “There is little merit in a case which rests on the proposition that an award entitlement inserted by consent, which was not sought to be varied in 10 years, and which was acted upon and complied with by the parties, should now, as a matter of equity, good conscience and the substantial merits of the case, be found to be in error, and since it was said to be inserted in error, removed. Even if that provision were inserted in error, the equity, good conscience and substantial merits of the case remain as a matter of custom and usage in relation to a provision which has been recorded in the award without demur until recently. Further, if that were not so, paid holidays on Easter Tuesday existed as part of the contract of employment at least until 1985.To now come to the Commission 10 years after and say that it was never intended to be part of the award or a binding obligation is to seek an inequitable result.” [48] PSA & the Zoo concerned a dispute relating to a unilateral decision of Zoo management to cease the practice of RDOs. Ritchie C observed:25 “I find the lack of discussion by the Zoo concerning this important change to the employees life style completely unacceptable. … For a practice to constitute a binding usage it must be shown to be well known and certain in its terms. Both Ms Soden and Mr Richardson gave evidence to that effect. … I do not believe it was open to the Zoo to unilaterally change the terms of the employee’s contract by removing the flexi day. No evidence was brought before this Commission to show that consent existed from any of the employees of the Purchasing Department for this action to take place. … In summary it is my finding that the evidence demonstrated a long standing usage or practice involving employees of the Purchasing Department working a particular roster that incorporated a flexi day and that this usage or practice I consider provided a fair and reasonable condition and should not be discontinued.” [49] The 228 hours specified in the Regulations is a minimum entitlement. A breach only occurs when less than an entitlement is paid or provided. In T13150 of 2008, the Full Bench said: “However we are of the view that a benefit over and above an award or legislative entitlement causes no breach and could not therefore offend section 31(4).” [50] Mr Kadziolka submitted:26 “The controlling authority, Commissioner, has provided, by agreement of acquiescence, an additional amount of recreation leave by the system it has deployed. That is additional to 228 hours. The order the PAT is seeking is to continue the existing practice and not to establish a new minimum. The order would therefore relate to the disputed portion above the 228 hours, which has arguably been within the employer’s discretion in the past to allow. By reason of our custom and practice argument, the PAT seeks under the Industrial Relations Act to establish the continuance of what was the discretionary component in settlement of the dispute.” [51] The decision to implement the new method of deduction was taken by Tasmania Police without any consultation whatsoever. Indeed the instruction to implement the new system was issued one day after the PAT received advice of the decision. [52] The proposed change impacts negatively on members’ entitlements. It follows that in such circumstances there is an obligation to enter into meaningful consultations (see CPSU v Vodafone referred to in T13164 of 2008). This did not occur and Tasmania Police acted unilaterally. Mr Kadziolka said:27 “The PAT was not consulted; that’s clear. What the PAT received was advice on what was about to occur in a very short time. Commissioner, the controlling authority has, in this matter, set the industrial scene with the way it took unilateral action. It has ignored the fact that the PAT is answerable to its members, and this is important to us. We take this seriously. Did it really expect that the PAT would throw its hands up in the air and say, “Fair cop, gov,” and then try to explain what has occurred to an agreed (sic) membership: no way, impossible, can’t be done. What it has done – what the controlling authority has done is act unreasonably as well as contrary to its award obligations, which are binding, which are law. Commissioner, I submit that to reward that bad behaviour by acceding to its position would, in my submission, be contrary to the Act whereby these matters are required to be considered in the light of equity, good conscience and the merits of the case.” [53] The practice followed by Tasmania Police over the past 14 years was well known to members and certain in its terms. Payslips show conclusively that 7.6 hours is deducted for each rostered day taken as leave.28 [54] Mr Kadziolka concluded that the practice was so well established that it is not open to the controlling authority to unilaterally depart from it. Mr Martin, for the Commissioner of Police [55] By virtue of Regulation 9(3)(a) the Commissioner of Police is legally entitled to direct that recreation leave be applied for in hours; hours that reflect the work pattern a police officer is rostered to work. [56] As early as 1995 Tasmania Police advised that it was concerned members were receiving in excess of the 42-day entitlement.29 Extensive consultations followed and the “famous Remus Agreement appeared. In hindsight, this started the whole affair; and whilst not being disrespectful of my former colleagues, I suspect they did not fully appreciate the gravity of what in fact they had signed on for.”30 [57] The terms of the 1999 and 2000 enterprise agreements reflected the agreed position of the parties. A possible explanation for the failure to continue the relevant provision in the 2001 award was the requirement for a Full Bench hearing. It would be quite wrong to conclude that the controlling authority had “lost interest”. [58] The Regulations introduced in 2003 cleared the way for the implementation of the agreed position of the parties. That is, recreation leave to be taken in hours as rostered to work. [59] The controlling authority has not lost interest and is now being impeded by the PAT in trying to implement what has already been agreed by the parties. [60] The 1999 and 2000 enterprise agreements represent the only legitimate agreement that is on foot between the parties in relation to this matter. Mr Martin submitted:31 “The entire PAT, that is, the executive and members at the time, would have been aware of the position that the PAT adopted. And so they should have been, Commissioner, as the controlling authority gave a number of new conditions and an 8.5 per cent compounded salary increase over the life of the agreement. Whilst Mr Kadziolka has provided you with, no doubt, a true history of how the parties got to the 1999 EB, that is about as useful as all that is. The only agreement that is in place is that which the parties agreed to in 1999. The controlling authority does not recognise any other agreement. And why should it? An agreement is an agreement after all; particularly one that is registered and has to be recognised over any other agreement. Mr Kadziolka did not tender any evidence that the parties agreed to revert to the previous arrangement: how could he? Because it simply does not exist. It just doesn’t exist. Commissioner, the controlling authority has paid for the arrangement that it is now trying to implement and contends that it is both legally and industrially entitled to do so, on the basis that the police regulations clearly state that the commissioner determines how leave is to be applied for, and that industrially there is an agreement that was put in place to allow it to happen. Whilst technically the agreements have lapsed, due to the legislation surrounding the agreements, if they were any other agreement of this commission then they would still have effect, unless the parties intentionally walked away from them. I do not believe that the Police Association at any time, other than recently, stated to the controlling authority that it wanted to renege on the agreement. It had an opportunity back in 2003 when the new regulations were put in place, but it did not. Commissioner, let’s have a look at the regulation.” [61] The 2003 Regulations do not refer to 228 hours as being a minimum. [62] Police officers predominately work eight or 10 hour shifts. Under the existing arrangements, in every case officers are advantaged, to a greater or lesser extent. A member working eight hour shifts only would receive an additional 12 hours’ recreation leave each year. An officer working 10 hour shifts who takes three days’ leave would have 22.8 hours deducted from their accrual balance. The system is seriously flawed in that an officer gets additional leave and at the same time accrues RDOs. [63] The system is not equitable in that the additional number of hours that an officer receives is solely dependent on the roster they are working at the time of their leave. [64] The current practice is having a significant impact on policing. [65] Mr Martin submitted that in his belief, the majority of officers do not understand the situation. An officer applies for leave, and the “back room” takes care of the rest. Mr Martin said:32 “I do not think for one moment that the majority of police officers say, “Now, here’s my roster, let me have a look at how many 10-hour shifts I have and when is the best time to take the leave so that I can maximise the current practice of only having 7.6 hours deducted for these days.” I simply don’t believe that the rank and file police officers do that. I do not believe that the average police officer is fully across the process, and that if they are then it would follow that they are aware that they are receiving a distinct advantage over some of their colleagues and the controlling authority. That is, they pick out the 10-hour shifts rather than the eight. Commissioner, I do not believe that the practice is so well known, that is, that irrespective of the shift that a person works that they are only debited 7.6, that any reasonable person could say the practice formed part of the contract of employment; particularly when the great majority simply do not know.” [66] There is a real cost attached to the existing practice. There are fewer police hours available to the Commissioner to deploy his resources, fewer police hours available to cover the additional vacancies on the roster due to the additional leave being taken, and, anecdotally, additional overtime being worked as a result of this practice. [67] The matter has been the subject of discussion and correspondence since the Department moved away from requiring members to take 42 consecutive days’ leave. Unless the Commissioner is able to exercise his legal right to seek leave applications in hours and not days, then the issue will continue to be one of disputation. Findings [68] There can be no doubt that the A/Commissioner of Police has the legal capacity to implement the proposed change as envisaged in the correspondence of 6 March 2009. That much is clear from the 2003 Regulations, which prescribe that the Commissioner may determine “the manner in which recreation leave is to be applied for.” Provided the 228 hours leave is allowed each year, no breach would result from the A/commissioner’s proposal. [69] It does not however end there. A legal capacity to do something must be put in its industrial setting whereby custom and practice, management prerogative, employee entitlements and previous agreements may bear on the ultimate outcome. That is not to say that the employer is necessarily hamstrung by these other factors, but they must be taken into consideration. [70] The REMUS arrangement was initiated by Tasmania Police, not the PAT. What followed was a proposal advanced by Tasmania Police that was “developed as a result of discussions held between the Police Association and Personnel Administration representatives."33 The proposal as advanced was subsequently formally endorsed by the PAT Executive Committee. The result was conveyed to PAT members via a newsletter. [71] What then is the status of the REMUS arrangement? [72] In my view the arrangement represents an agreed outcome of a significant administrative issue. I am not prepared to accept Mr Kadziolka’s submission that it has the status of a “binding agreement” which, by inference, can only be departed from by a subsequent agreement. Nor am I prepared to accept Mr Martin’s position that the REMUS arrangement is of little or no import. The answer in my view lies somewhere between these two extremes. [73] The circumstances surrounding the 1999 and 2000 enterprise agreements remains shrouded in mystery. There was an indication in 1997 that the leave issue was to be referred to the EA negotiations.34 The outcome of the EA negotiations clearly met the requirements of Tasmania Police in that the new clause provided for leave taken to be deducted on an hourly basis dependant on the roster a member would otherwise work. [74] Neither party was able to provide any explanation as to the circumstances surrounding this agreement. Suffice to say it was not implemented and the REMUS arrangement continued. [75] Mr Kadziolka contends that Tasmania Police forfeited the right to implement this change with the expiry of the 2000 enterprise agreement and the failure to transpose the relevant provision into the 2001 award. To the extent that the agreement was effectively expunged at the time, Mr Kadziolka is correct. However such an event does not necessarily translate to a position where the employer is denied its desired outcome for all time. [76] Mr Martin submitted that the omission of the relevant provision from the 2001 award was a consequence of the requirement for a Full Bench hearing. I have great difficulty in accepting this position. Full Bench hearings are no more complex or difficult to process than single member hearings. If it is now suggested that the Full Bench requirement was a barrier to formalising an otherwise agreed position, then I can only say that it was a misguided belief. [77] Mr Martin also submitted that the Department at no stage “lost interest” and the 2003 Regulations paved the way for the implementation of the agreed position of the parties. Whether or not the Department lost interest is something only the Agency can answer. However I have no hesitation in concluding that the implementation of the 1999/2000 agreements was in no way contingent upon the 2003 Regulations, any more than the 7.6 hours arrangement which had been in place since 1995. [78] I also readily conclude that a practice which has been in place continuously for 14 years must be viewed as custom and practice of long standing, and in this context I note authorities relied upon by Mr Kadziolka. [79] I am prepared to accept on the available, albeit limited, evidence that the practice was well known to police officers. The original outcome was conveyed to members via newsletter and probably branch meetings. The payslips clearly show that 7.6 hours is deducted for each day a member is otherwise rostered to work. There is insufficient evidence however to support a conclusion that the arrangement forms part of a member’s contract of employment. The material provided relating to recruitment and induction was unhelpful either way on this question. [80] I accept Mr Kadziolka’s contention that the REMUS arrangement was reasonably based, although it must be recognised that police officers have benefited under the practice through the enjoyment of additional leave over and beyond the prescribed 228 hours/42 days per year. This must be balanced against the position of Tasmania Police, which sought to modify the arrangement shortly after implementation. The recurring theme from the employer’s point of view was that officers were being unreasonably advantaged. Terms such as “abuse” and “rorting” appear in correspondence. These are not terms that I accept as appropriate and I understand Mr Kadziolka’s submission that members are doing no more than accessing an entitlement. [81] Mr Martin submitted that the arrangement has a significant negative impact on police resourcing. Whilst this was not supported by evidence, the facts are sufficiently self-evident for the Commission to accept that the impact would at the very least be material. [82] I readily conclude that Tasmania Police have attempted to change long standing arrangements without even a modicum of consultation. This is disappointing, given that a significant employee benefit is involved together with the Commission’s observations in T13164 of 2008 involving a similar long standing practice. [83] Both Mr Kadziolka and Mr Martin have presented strong cases in support of their respective positions. [84] On balance I am not prepared to grant the order sought by the PAT, although I do not accept that there are any jurisdictional barriers to doing so. [85] It is always preferable to resolve industrial issues through consultation and agreement. Having said that, some industrial issues are intractable and this appears to be in this category. The PAT seeks to maintain a long standing practice based on an earlier agreed position. The employer on the other hand has expressed misgivings about the arrangement almost from the beginning and now seeks to implement a changed arrangement, which apart from history, is reasonably based on any objective criteria. [86] No agreement stands forever. A registered industrial agreement ceases to exist either on its expiry date (Part IVA), or on the giving of notice following the nominal expiry date (s55). To suggest that an agreement must remain in place until replaced by a further agreement would in my view potentially lead to unconscionable outcomes. [87] The REMUS arrangement is not a registered industrial agreement, but it is an agreement reached in settlement of a difficult industrial issue, and committed to writing. [88] In such circumstances it is in my view open to either party to retire from such an agreement on the giving of proper notice. Once this is done it would be open to the parties to pursue other options provided they are legally open and industrially reasonable. I consider the position sought by Tasmania Police satisfies both criteria. [89] The period of notice will depend on the nature of the agreed position a party seeks to retire from. In this case, given the long standing practice in relation to a material employee benefit, I am of the view that there should be an extended period of notice. [90] I conclude that should Tasmania Police wish to implement the changed arrangement as outlined in the correspondence to PAT dated 6 March 2009, the date of implementation should not be earlier than 1 January 2010.
Tim Abey
Date and place of hearing: 1 Exhibit A27
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