Industrial Relations Commission New South Wales Medium Neutral Citation: Crown Employees (NSW Police Force Special Constables) (Security) Award 2023 [2024] NSWIRComm 1059 Hearing dates: Submissions received in chambers on 21 August 2024 Date of orders: 25 September 2024 Decision date: 25 September 2024 Jurisdiction: Industrial Relations Commission Before: Justice Taylor, Senior Commissioner Constant, Commissioner Webster Decision: The Full Bench orders: (1) Pursuant to s 17 of the Industrial Relations Act 1996 (NSW), the Crown Employees (NSW Police Force Special Constables) (Security) Award 2018 is rescinded. (2) Pursuant to s 10 of the Industrial Relations Act 1996 (NSW), and in accordance with order 1 made by the Full Bench of the Industrial Relations Commission in Crown Employees (NSW Police Force Special Constables) (Security) Award 2023 [2024] NSWIRComm 1034, the Crown Employees (NSW Police Force Special Constables) (Security) Interim Award 2024 is made in the form filed by the PSA on 26 July 2024, with the following amendments to the overtime meal allowances in item 3 of table 2: (a) remove "6.00" and replace with "10.75". (b) remove "5.50" and replace with "9.95". (3) The parties are to confer with respect to the issue of the overtime meal allowance. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards – interim award – reconstitution of the Full Bench – form of interim award to reflect Full Bench decision –whether overtime meal allowances should be increased. Legislation Cited: Industrial Relations Act 1996 (NSW) ss 10, 17, 156 Industrial Relations Amendment Act 2023 (NSW), Schedule 1.2 Cases Cited: Crown Employees (NSW Police Force Special Constables) (Security) Award 2023 [2024] NSWIRComm 1034 Texts Cited: . Category: Consequential orders Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) Commissioner of Police (Respondent) Representation: Counsel: P Lowson (PSA) M Watts (Commissioner of Police) Solicitors: Crown Solicitor (Commissioner of Police) Other: A McRobert (PSA) File Number(s): 2022/213646 Publication restriction: Orders were made pursuant to s 164A of the Industrial Relations Act 1996 (NSW) in Crown Employees (NSW Police Force Special Constables) (Security) Award 2023 [2024] NSWIRComm 1034 which continue until 14 November 2053, or further order of the Commission, whichever is the earlier. DECISION 1. On 7 June 2024, a Full Bench of the Commission constituted by then Chief Commissioner Constant, Commissioner Sloan, and Commissioner Webster, ("the original Full Bench") ordered a 2% increase to the salaries and salary related allowances in the Crown Employees (NSW Police Force Special Constables) (Security) Award 2018 ("Decision") [1] . The Full Bench decided it would make an interim award for 6 months reflecting this increase to enable the parties to address certain matters raised in the Decision before making a final award. [2] This decision determines the terms of the interim award. Background 1. On 26 July 2024 the applicant filed a proposed interim award with the Commission via email, advising the parties had reached a consent position with respect to its terms. 2. On 30 July 2024, the applicant emailed the Commission stating: "Over the weekend there has been a development as I am instructed that Special Constables covered by the Crown Employees (NSW Police Force Special Constables) Award 2022 have been paid back pay and the 2% salary increase has been applied by administrative action. In circumstances where the PSA had not objected to the interim award on the basis that: "the Applicant does not wish to delay the payment of the increases of 2% in salaries and salary related allowances as provided for in the decision of 7 June 2024", and this has now been paid we respectfully request that no orders are made in this matter and the interim Award is not made until the Applicant has been able to ventilate its issues at the report back listed before Commissioner Webster on 2 August 2024." 1. Commissioner Webster convened a report-back on 2 August 2024. At that report-back the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the PSA") identified that the overtime meal allowance in the Crown Employees (NSW Police Force Special Constables) (Security) Award 2018 had not been increased for some time and ought to be increased. This was not an issue that the PSA had identified in the primary proceedings. 2. The PSA also raised at the report-back the question of the power of the original Full Bench to make the interim award, given the commencement of Schedule 1.2 of the Industrial Relations Amendment Act 2023 (NSW) on 1 July 2024. Section 156 of the Industrial Relations Act 1996 (NSW) now provides that a Full Bench of the Commission must include at least one Presidential Member. 3. Shortly following that report-back, Commissioner Sloan ceased his appointment as a Commissioner of the Industrial Relations Commission. The President of the Commission, Justice Taylor, appointed himself to the Full Bench, to replace Commissioner Sloan ("the current Full Bench"), which addressed the requirement of s156. 4. On 21 August 2024, the parties filed a joint note in respect of the constitution of the Full Bench. The parties agreed that the current Full Bench has the power to make the interim award. The parties also filed separate short notes with respect to the terms of the interim award that should be made, addressing whether the overtime meal allowances ought to be increased and if so by how much. The Interim Award 1. It is not in contest that the overtime meal allowances rates in the existing Award are out of date and need to be increased. At issue is whether the interim award should: 1. give effect to the Decision and additionally increase the overtime meal allowance in accordance with the respondent's submissions; or 2. give effect to the Decision and additionally increase the overtime meal allowance in accordance with the PSA's submissions. 1. Item 3 of Table 2 of the Crown Employees (NSW Police Force Special Constables) (Security) Award 2018 currently provides a meal allowance of $6.00 per meal and a subsequent meal allowance (after a further 4 hours of overtime) of $5.50. 2. The PSA contends the meal allowances rates contained in the Award have not been increased since 2019, and that the Police Commissioner had previously advised that the meal allowances rates would increase in accordance with Sydney CPI annually. 3. It is not in issue that the overtime meal allowances actually paid to special constables by the Police Commissioner are $10.75 and $9.95 respectively. We do not have material before us to understand on what basis those higher amounts have been determined. 4. The PSA contends the overtime meal allowances rates in the Award should be increased to $12.90 and $12 respectively. The PSA contends that the rates should be indexed not by Sydney CPI, but rather fixed "at a level consistent with the reasonable allowances amounts for the appropriate income year as published by the Australian Taxation Office consistent with the method by which the equivalent allowance is required to be adjusted under the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009". 5. The Police Commissioner contends that the interim award should reflect the overtime meal allowances rates that are currently being paid. The Police Commissioner submits the Commission ought to reject the PSA's claim for higher rates when making the interim award given that the PSA did not include the proposed overtime meal allowances rates claim in its original or amended applications and the PSA had not put forward any basis for the claim to now be heard. 6. As noted, it is not in contest that the overtime meal allowances rates in the existing Award are out of date and need to be increased. For the purpose of making the interim award we determine to increase them to the rates that are currently being paid, as contended by the Police Commissioner, as an interim step. We agree with the Police Commissioner that for the purpose of making the interim award, it is not necessary or appropriate that we consider a claim for higher meal allowances rates. 7. We have not formed any final view as to the appropriate methodology for adjusting the overtime meal allowances. In that regard we note that because the parties each filed their note on the same day, they have not responded to each other's contentions as to the genesis of the rates, any commitments or agreements that may have been made for their adjustment, and the most appropriate method for adjustment. We are not satisfied that the parties have had a sufficient opportunity to attempt to reach a conciliated outcome on this issue. 8. Commissioner Webster will conciliate the issue of the overtime meal allowance in addition to those matters arising from the Decision which remain unresolved. If a consent position is not reached on the issue of the appropriate overtime meal allowances, the current Full Bench will determine that issue on a final basis at the same time as determining the remaining issues arising from the Decision. Orders 1. The Full Bench orders: 1. Pursuant to s 17 of the Industrial Relations Act 1996 (NSW), the Crown Employees (NSW Police Force Special Constables) (Security) Award 2018 is rescinded. 2. Pursuant to s 10 of the Industrial Relations Act 1996 (NSW), and in accordance with order 1 made by the Full Bench of the Industrial Relations Commission in Crown Employees (NSW Police Force Special Constables) Award 2023 [2024] NSWIRComm 1034, the Crown Employees (NSW Police Force Special Constables) (Security) Interim Award 2024 is made in the form filed by the PSA on 26 July 2024, with the following amendments to the overtime meal allowances in item 3 of table 2: 1. remove "6.00" and replace with "10.75". 2. remove "5.50" and replace with "9.95". 1. The parties are to confer with respect to the issue of the overtime meal allowance. ********** Endnotes 1. Crown Employees (NSW Police Force Special Constables) (Security) Award 2023 [2024] NSWIRComm 1034 2. Ibid at [262] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2024