Industrial Relations Commission of New South Wales CITATION: Police Association of New South Wales and the Commisioner of Police [2010] NSWIRComm 1070 APPLICANT; Police Association of New South Wales PARTIES: RESPONDENT: Commissioner of Police FILE NUMBER(S): IRC 1747 of 2009 CORAM: Bishop C CATCHWORDS: Notification of dispute - police officer working restricted duties due to work injury - request for part time work approved - became permanent part time - error on payslips showing permanent full time - no application form completed as per Policy - subsequently sought to revert to full time - rejected - issue as to whether permanent part time or part time leave without pay - breaches of Act and Policy alleged - recommendation sought of designation as part time leave without pay - consequent pay adjustment on medical retirement sought. HELD part time work agreement in effect even in absence of completion of appropriate form - sufficient compliance with Act - officer sought part time position deliberately - evidence of respondent preferred - remedy refused. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 24/06/2010 and 25/06/2010 DATE OF JUDGMENT: 9 December 2010 APPLICANT: Mr M Spring, LEGAL REPRESENTATIVES: Police Association of New South Wales Mr J Fanning, Commisioner of Police DECISION: - 49 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 9 December 2010 Matter No IRC 1747 of 2009 Notification under section 130 by Police Association of New South Wales of a dispute with the Commissioner of Police re breach of Part Time Policy and Guidelines DECISION [2010] NSWIRComm 1070 1 This matter concerns a notification made pursuant to s.130 of the Industrial Relations Act 1996 by the Police Association of New South Wales (the Association) of a dispute with the Commissioner of Police (NSW Police). 2 The dispute was notified to the Industrial Registrar on 6 November 2009 and was in the following terms: - "The question, dispute or difficulty concerns the following industrial matters:- 1. Senior Constable Nicole Ashton attached to the Mounted Police Unit of Major Events and Incidents Command of the NSW Police Force. 2. As a result of a work-related injury our member made a request on 27 June 2006 to work part time. This request was supported by the then Commander of the Mounted Police Unit. Further on the 27 December 2006 our member made a further request to reduce the days and hours which she had been working. 3. On 30 January 2009 our member made a request to revert back to full time duties in accordance with Clause 8.1 of the NSW Police Officers Part Time Policy and Guidelines (thereafter known as the Policy). for officers working part time leave without pay, the return to full-time duties is the 'end date' specified in the part time work agreement, or by the officer giving four weeks notice of their intention to return to full time work. A lesser period of notice may be agreed upon by the officer and their Commander, At Paragraph 8.2 it states: 8.1 above is to apply whether the officer is actually at work or on long term sick leave. 4. This Application was refused by the NSW Police Force as they are of the view that our member is a permanent part time and further in order to revert to full time status must demonstrate that she is fit to work her part time contract hours of 28.5 hours per week. 5. From our member's pay slips up and until 30 April 2009 it states that our member's employment status is one of permanent fulltime working 57 hours per fortnight. Coincidentally on payslip details dated 14 May 2009 employment status changes to permanent part time, that being one day after the NSW Police Association made representation to the NSW Police Force. 6. Our member is of the view that she never entered into a permanent part time agreement therefore Paragraphs 8.1 and 8.2 of the Policy shall apply and her employment status should be reverted to a fulltime status. 7. At no time did our member enter into a written agreement with the NSW Police Force in accordance with Paragraph 5.1 of the Policy which states: Application for part time work is to be made on the Application for Part Time Work Form at least one roster cycle prior to the requested commencement date, and is to clearly indicate whether part time leave without pay or permanent part time. 8. In accordance with Paragraph 5.8 of the Policy it states: A permanent part time work agreement continues for an indefinite period of time. Commanders and Managers and officers should recognise that such an arrangement changes the employment status of the officer to that of a permanent part time officer. In this regard, Commanders and Managers are encouraged to discuss with the officer the implications (monetary and otherwise) of entering into a permanent part time arrangement. We are instructed by our member at no time did she ever receive advice of the financial implications of entering into a permanent part time arrangement in accordance with the Policy. 9. In accordance with Paragraph 5.4 of the Part Time Policy: The Part Time Work Agreement Form provides the details of the part time arrangement and must be completed by the officer's Commander or Manager once a part time work arrangement has been approved. This form represents a formal part time work arrangement and is also to be placed on the requesting officer's personal file. The Association has requested copies of our member's application for part-time work from our member's personal file on 13 May 2009, 23 June 2009 and 30 June 2009, but to date NSW Police Force has been unable to produce any part time work agreement form in accordance with the above policy. 10. Although our member in her report dated 27 December 2006 makes mention she is on permanent part time this is not an admission by herself that she is permanent part time employee. Our member was not aware of the financial implications of working permanent part time and was never explained the difference in types of part time employment, that being either part time leave without pay or permanent part time. From the outset of this claim the Association has requested that NSW Police produced the prescribed form as per the Policy, which would clearly show what the part time status is even though her employment records, that being the payslips clearly indicate that she is a full time employee working part time hours which was the intention of our member. 11. The Association is of the opinion that our member has been working part time leave without pay and not one of permanent part time. Therefore our member is entitled in accordance with Paragraph 8.1 and 8.2 of the Part Time Policy to revert her employment status to full time. 12. The Association is of the view that the NSW Police Force is in breach of their Part Time Policy and Guidelines and further in breach of Clause 36 of the Crown Employees (Police Officers - 2008) Award 13. The Association on behalf of its member seeks payment of all outstanding entitlements in payment, leave, including annual, sick and extended and superannuation benefits from date of our member's request to revert to full time that being 30 January 2009 in accordance with NSW Police Part Time Leave Policy and Clause 36 of the Crown Employees (Police Officers - 2008) Award. 14. The Association seeks the assistance and intervention of the NSW Industrial Relations Commission to resolve this industrial dispute." 3 The matter was listed for compulsory conference before me on 10 November 2009 at which time conciliation took place. The parties were directed to confer and the matter set down for report back on 24 November 2009. Further conferences took place between the parties and further report backs occurred on 16 December 2009, 14 January and 18 February 2010. 4 As no settlement could be reached between the parties, a Certificate of Attempted Conciliation pursuant to s.135 of the Act was issued on 18 February 2010. Directions were issued as to the filing and exchange of written submissions and witness statements. The matter was set down for hearing on the 24th and 25th of June 2010. 5 At the hearing Mr Spring, Assistant Secretary, appeared on behalf of the Association and called their member Nicole Ashton to give oral evidence in addition to her affidavits as filed (Exhibits 5 and 6). 6 Mr Fanning, Senior Industrial Officer, appeared on behalf of the Commissioner of Police and called the following witnesses to give oral evidence in addition to the affidavits as filed: Kylieann Riddell - Sergeant, NSW Mounted Police Unit (Exhibit 15), Kirsten McFadden - Inspector, Commander Mounted Police Unit, (Exhibit 16) Noel Quinn - Industrial Officer, NSW Police (Exhibit 17), Shantel O'Connor - Payroll Team Leader, NSW Police (Exhibit 18). 7 The Association sought the following remedy (Exhibit 1):- The Police Association of NSW requests the Commission to make recommendations in accordance with section 136 of the Industrial Relations Act to the NSW Commissioner of Police in the following terms; That the Commissioner of the NSW Police Force accept and approve former Senior Constable Nicole Ashton's application dated 30 January 2009 to revert from 28.5 hours to full time hours effective on and from 1 March 2009 up to and including the last day of service being 29 April 2010. Further that the 9.5 hours difference are considered service for all purposes. Background and Chronology - based on the evidence filed and the transcript. 8 Ms Ashton commenced employment in the public service, (Groomer at the NSW Police Mounted Unit), in September 1986. In September 1988 she was attested as a Probationary Constable in the NSW Police Force following completion of her training at the Goulburn Academy. In September 1989 she was confirmed as a Constable, and in April 1995 promoted to Senior Constable. She was subsequently stationed at the Mounted Police Unit at Redfern between 1990 and 1994, and transferred back there in 1996 to perform operational duties. 9 On 31 December 1997 she was performing Mounted Police Patrol duties in the Sydney city area when she was assaulted by a member of the public and as a result suffered injuries to her back and neck, resulting in periods of absence due to injuries. She subsequently returned to work on rehabilitation programmes. She was assessed as having permanent percentage loss in her neck and back from this Hurt on Duty (HOD) injury 10 Over the next six years she was place on return to work and rehabilitation programs, including limited horse riding at the Mounted Police Unit as part of those programs. There were also periods when she was on sick leave. She remained under specialist medical treatment. She did not return to Operational Police duties within the NSW Police Force. 11 On 26 November 2003, Ms Ashton received a letter from the Restricted Duties Coordination Unit informing her that her Local Area Commander had identified her as being permanently unfit for fully operational duties and had nominated her as being permanently restricted. She was then placed into a full time authorised permanent restricted duties roster position at the Mounted Police Unit. (Exhibit 5-A). 12 Whilst on her return to work and rehabilitation programs, Ms Ashton remained on full time hours, on permanent restricted duties, and worked a roster of 5 days per week/8 hours per day/40 hours per week with a rostered day off each month. To reduce stress on her back due to travel to and from work, the rostered working days were changed to 4 days per week/10 hours per days/38 hours per week on full time hours. This change was documented on 31 December 2003 by the Return to Work Coordinator (Exhibit 5 - B). 13 She remained on return to work programmes and sick report arising from the HOD injury and continued to receive specialist/medical treatment. 14 From September 2005 to January 2006 she took four months' extended leave to attend gym and rest her back. 15 In June 2006 she spoke to the then Commander of the Unit, Inspector Biffin, and submitted an application for a Part Time position at the Mounted Unit. She submitted a standard NSW Police report (a Godfrey report) in relation to this application which was approved and signed by Inspector Biffin (Exhibit 5-C). Her application was approved and she moved to 32 hours per week part-time. The report read as follows: ISSUE: Application for Part time position at Mounted Police Unit by Senior Constable Ashton registered number 25764. BACKGROUND: I wish to apply for a part time position at the Mounted Police Unit. I am currently permanent restricted duties due to a hurt on duty back injury, currently performing the duties as roster officer. I currently travel 160 kms a day to work, and perform 10hr shifts, 4 days a week, 38 hr week. Due to the travelling time and inconsistence (sic) attending to a regular gym program to maintain my injury, I have had an increase in pain in my back and find it difficult to manage. I wish to apply to work 4 days a week, 8hr shifts a day, 32 hr week, this would give me the opportunity to attend a gym program on a regular bases (sic) and the time spent in my vehicle would be reduced as I would not be traveling (sic) in peak hour traffic. COMMENT: I wish to remain at the Mounted Police Unit as the roster officer and a reduction in my hours would have no effect on the operational running of the Mounted Police Unit. If I am successful with my application perhaps I could be put into a job share position with another officer and this would allow another full time position to become available. RECOMMENDATION: For favourable consideration. 16 In December 2006 she submitted a further Godfrey report (Exhibit 5-D), seeking to reduce her part time hours to 28.5 per week as result of the HOD, which was also approved. That report read as follows: ISSUE: Application by Senior Constable Ashton registered number 25764 to decrease part time hours from 32 hrs a week to 28.5hrs a week. BACKGROUND: I am currently permanent restricted duties on permanent part-time agreement working 4 days a week, 8hr shifts a day, 32hrs a week performing roster officer duties at the mounted police unit. I wish to make application to decrease my working hours to 3 days a week, 9.5hr shifts a day, 28.5 hours a week. This would allow more time to continue with my gym program and attend physiotherapy treatment for an alert on duty injury I sustained to my back whilst performing Police duties. COMMENT: I wish to remain at the Mounted Police Unit as the roster officer and the reduction in my hours would have no effect on the operational running of the Mounted Police Unit. RECOMMENDATION: For Favourable consideration. This application be forwarded to Police salaries for pay adjustment. 17 In December 2007 she was diagnosed with anxiety as a result of the ongoing back injury she sustained in December 1997 and work-related issues. 18 NSW Police payslips issued to Ms Ashton between the period 2007 to April 2009 indicated her employment status as being "Permanent - Full Time" (Exhibit 10). 19 A NSW Police Force Positions and Occupants table as at 17 April 2008 showed Ms Ashton's authorised position as roster officer with SAP (NSW Police payroll system) number 50005524, a position she had occupied since 23 November 2001, the position was listed as "% occupied - 75%". (Exhibit 5-H). 20 In January 2009 Ms Ashton spoke to Ms Kirsty Membreno, Advisory Officer at the Association, in relation to s.40 payments in accordance with the Workers Compensation Act. A discussion ensued as to her as her entitlements under the Part Time Policy and Guidelines, Section 8.0, Resumption to Full-Time Duty. 21 On 30 January 2009, she submitted an application to Inspector McFadden (by way of a Godfrey report) requesting to revert back to full time duties/hours (38 hours per week) (Exhibit 5-E). 22 On 12 February 2009, in reply to an email enquiry to Inspector McFadden, she was advised by her that her report had not been submitted to Internal Customer Service as advice was being sought from NSW Police Industrial Relations. 23 On 2 March 2009, she contacted NSW Police Industrial and spoke to Industrial Officer Noel Quinn. She made contemporaneous notes of part of the conversation (Exhibit 5-F) in her diary (Exhibit 7) which, according to her phone records, went for 34:54 minutes (Exhibit 6-J). The contents of this conversation are disputed and dealt with in evidence below. 24 On 30 April 2009, she received the following email from Inspector McFadden: I have received the file back from Industrial relations yesterday. In relation to the advice received, I am not in a position to revert your duties from the part time agreement of 28.5 hours to full time duties. There is no capacity to revert you back to full time status, until you are in a position to return to duty under your PPT agreement of 28.5 hours a week in the first instance. Until such time that you are in a position to return to work in a part-time capacity, this request has been declined. In the event that you do to return to work under the current agreement (28.5 hours) this request may be reconsidered. 25 On 13 May 2009, the Association made written representations on behalf of Ms Ashton to NSW Police seeking a review of her request to revert to full-time status as per the policy (Exhibit 13a). Meetings took place between the Association and NSW Police and correspondence was exchanged between the parties, with further letters being sent by the Association on 13 June 2009 (Exhibit 13 b) and 8 December 2009 (Exhibit 13c). 26 From 14 May 2009 Ms Ashton's payslips indicated that her employment status was "Permanent - Part-Time" (Exhibi5-G6). 27 Ms Ashton has now left the NSW Police Force as a consequence of her application for medical discharge being approved, with her with her last day of service being 29 April 2010. The discharge followed medical assessment in January 2010 with a recommendation of total and permanent impairment on the grounds of both her back injury and associated depressive illness. 28 Noel Quinn is a Senior Industrial Officer in the Industrial Relations Branch of NSW Police. He has held this position for approximately 2 1/2 years and has 11 years' work experience in the field of industrial relations. His role is to provide advice to Managers and employees within NSW Police on their industrial entitlements, conditions of employment, best practice human resource management and dispute resolution. He works in a team of five Industrial Officers, with most requests for advice coming via telephone calls or emails. 29 Shantel O'Connor is a Payroll Team Leader with NSW Police with seven years experience in accounts and administration. She is responsible for leading a team of staff who make the necessary adjustments to the SAP system in order to ensure that officers salaries and leave accrual adjustments are initiated or updated as required. 30 The Part Time Work for Police Officers Policy and Guidelines (Exhibit 4) provides as follows (only the relevant clauses and subclauses are set out): 2.0 PURPOSE OF POLICY AND GUIDELINES 2.4 Provide officers with a clear understanding of assessment and approval process for the granting of part time work. 2.5 Provide Commanders, Managers and officers with a clear understanding of the condition is associated with part time work. 3.0 DEFINITIONS 3.2 Part Time Work: means employment on a part time leave without pay or permanent part-time basis. 3.2 Part Time Officer: means an officer who is employed on a part time leave without pay or permanent part time basis. 3.3 Part Time Leave without Pay: means an arrangement where full time officers are granted approval to work part time for a limited or defined period of time. It is initiated by the officer and is generally limited to 3 years. Further periods may be approved subject to NSW Police requirements. Other forms of leave that can be granted without pay on a part time basis include adoption leave, maternity leave and parental leave. 3.4 Permanent Part Time: means an arrangement where officers work part time for an indefinite period of time. This is a complete change in the officer's employment status as the officer no longer retains their 'full time' status. It may be at the initiative of the NSW Police, current officers, (whether working full time or part time leave without pay) or potential new officers e.g, rejoinees. 4.0 PRINCIPLES OF PART TIME WORK 4.1 The availability of part time work is subject to NSW Police requirements. All part time work opportunities should be regularly reviewed in line with changing operational circumstances. 4.2 All full time officers may apply to work part time upon application and subject to NSW Police requirements. 4.3 All part time work at agreements must be in writing. An agreement may be varied by a further agreement in writing between the parties. 5.0 APPLICATION FOR PART TIME WORK 5.1 (see Dispute notification set out above) 5.2 Whether the application is approved or declined, the Application for Part Time Work Form is to be placed on the requesting officer's personnel file, with the officer retaining a copy. Where an application has been declined, this form should clearly indicate in writing the reasons for this decision. 5.3 The application for part time work should specify the number of hours to be worked by the officer (including any specific shift patterns that may be sought) and the classification of appointments sought. Note: Classification of appointment is detailed at subclause 9.1 and 9.2 below. 5.4 (See Dispute notification set out above) 5.5 The part time work agreement is to be regularly reviewed by the Commander/Manager with the officer in line with changing operational circumstances and to ensure that it accurately documents the part time arrangement being worked. The reviews would ideally be conducted on a quarterly basis and should be conducted at least annually. 5.6 Review dates and comments are to be recorded in writing. If the part time work arrangement is changed it will be necessary for the Commander/Manager to complete a new agreement form. 5.7 Having regard to 5.2 and 5.3 above, a part time leave without pay work agreement must be limited to a specified period of time. While part time leave without pay arrangement should not generally exceed three years, it is envisaged that such agreements would initially be approved for a limited period of time (for example, six months) with extensions taking place on a needs basis. 5.8 (see Dispute Notification set out above). 8.0 RESUMPTION TO FULL TIME DUTY 8.1 For officers working part time leave without pay, the return to full time duty is the 'end date' as specified in the Part Time Work Agreement, or by the officer giving four weeks notice of their intention to return to full time work. A lesser period of notice may be agreed upon by the officer and their Commander/Manager. 8.2 8.1 above is to apply whether the officer is actually at work or on long term sick leave. For officers on long term sick leave, Commanders and Managers may wish to contact the Industrial Relations Branch prior to approving an officer's reversion to full time status. 8.3 Permanent part time officers may be reclassified to full time officers upon application and subject to NSW Police Requirements. A reversion to full time employment will be dependent on the availability of a full time position. 31 Both the Crown Employees (Police Officers - 2005) Award and the Crown Employees (Police Officers - 2009) Award contain identical provisions relating to part time employment. The 2009 Award relevantly provides at Clause 14, Part Time Employment as follows: 14.1. Officers may be employed on a part time basis for a period of less than 38 hours per week under guidelines agreed between the parties. While 10 hours per fortnight is generally regarded as a reasonable minimum, the Commissioner may approve a lesser minimum where it is necessary for the officer to work fewer hours per fortnight. 14.2........................ 14.3. Part time employment may be worked under an ongoing arrangement (permanent part time work) or for a defined period of time (part time leave without pay). 14.4........................ 14.5........................ 32 Part 5 - Part-Time Work, of the Act, relevantly provides as follows: 76 Entitlement to work part-time with agreement of employer. 1) An employee may work part-time in accordance with this Part with the agreement of the employer (a part-time work agreement). 2) A part-time work agreement must be in writing and signed by the employer and employee. 3) A part-time work agreement must provide for agreement on the following: a) the entitlement of the employee to work part-time, b) the number of hours to be worked by the employee, the days on which they will be worked and commencing and finishing times for the work, c) the classification applying to the work to be performed, d) the entitlement (if any) of the employee to return to full-time employment. 4) The agreement may be limited to a specified period or periods of part-time employment, but need not be so limited. 5) .....................n.a. 78 Obligations of employer under part-time work agreements 1) A part-time work agreement must be retained by the employer during a period of part-time work. 2) The employer must give a copy of the agreement to the employee immediately after it is made. 3) The employer must send a copy of the agreement to the Industrial Registrar not later than one month after it is made. 4) ........................n.a. 5) ........................n.a. 79 Application of industrial instruments 1) Part-time work under this part is to be in accordance with the provisions of the industrial instrument applicable to work concerned, except where the provisions do not have affected or a modified because of this section. 2) ...............................n.a. 33 Part 10 - Payment of Remuneration, of the Act, relevantly provides as follows: 129 Records to be kept by employers concerning employees 1) An employer must ensure that the following daily records are kept in relation to employees of the importer: a) records of an remuneration paid and hours worked by the employees, and b) any other prescribed records relating to conditions of employment set by the industrial relations legislation or industrial instruments. 34 Part 7 Entry and inspection by officers of industrial organisations, of the Act, relevantly provides as follows: 296 Definitions 1) In this Part : employees' records includes records of the remuneration of employees, part-time work agreements with the employees or other records relating to the employees that are required to be kept by the employer under the industrial relations legislation or an industrial instrument. The Evidence 35 Ms Ashton said that in 2005 the reason she took four months extended leave was to give her back a rest and because she couldn't consistently attend the gym, so she took that period off to assist in managing her injury. She did not contact the workers' compensation people at all as she had had trouble with her injury from the time that she was injured and was relying on "Police rehab" to assist her in that. That ceased in 2003 when she was made permanent restricted duties and she wasn't aware what the procedure was as she was guided by what she was told to her by the Police rehab. She didn't contact a rehabilitation officer or someone with workers compensation experience to discuss the problem as she wasn't aware that she was to contact anyone one. She was on 'permanent restricted' and the case was closed and she wasn't aware there were any options after that. She produced the WorkCover certificates but no one guided her to contact anyone at any stage. 36 Ms Ashton deposed that at the time of submitting her report to Inspector Biffin in June 2006 she did not know the difference between 'permanent part time' and 'part time leave without pay'. Inspector Biffin did not either explain to her, or discuss, the financial implications of entering into a permanent part time arrangement, the effect on her employment status or the differences in the type of part time employment. The only time she knew the difference between the two was when it was explained to her by the Association in January 2009. 37 She said that had never been given a copy of the policy and guidelines relating to part time employment, either at the time she made that application or since that time. She was also unaware of the part time employment provisions of the Act. 38 In accordance with her payslips, up until 30 June 2009, she had always been of the opinion that she was a full time employee of NSW Police working part time hours as a result of the work-related duties which restricted her from working full time hours. Due to Ms Ashton being off on sick report with physical and psychological HOD injuries the official Police payslips were being forwarded to her home address. 39 Ms Ashton deposed in about late 2007 Inspector McFadden, the new Commander of the Mounted Police Unit asked her about her part time status and in reply she informed her that she had completed two part time application reports which she had submitted to then Commander, and gave her copies of the reports at that time. 40 In January 2009 Kirsty Membreno from the Association advised her that she was entitled to the provisions of the section 8.0 Resumption to Full Time Duty of the Policy, but that she could only do this if she was 'part time leave without pay' and not 'permanent part time'. Ms Ashton told her she was a full time employee, working part time hours as a result of the HOD and that was what appeared on her payslips. Ms Membreno told her to make an application through her Commander which she did. 41 Ms Ashton deposed as to the telephone conversation she had with Mr Quinn on 2 March 2009, the purpose of which was to enquire as to the report she had submitted to Inspector McFadden. During that conversation the following exchange took place: I said, "Should it have been dealt with medically, not the part time?" He said , "No, you would be opening Pandora's box." I said, "I should be seeking legal advice?" He said , "Oh, no." The Industrial Officer then started talking about part time and permanent part time. I said , "So, if you are part time or permanent part time you can revert back to full time." He said , "Absolutely." He asked me was I claiming back to 2006 when I first submitted my part time reports. I said, "no, I submitted my report in January this year to revert from part time hours to full time hours." He informed me that it had not been received through his office and to contact him if I needed any further advice. 42 Ms Ashton confirmed in cross examination that she made contemporaneous notes in her diary, with that extract being the only record of the conversation she made. 43 Mr Quinn could recall a telephone conversation with Ms Ashton but on 26 February 2009 and deposed that this was only time that he had spoken with her and that the conversation lasted approximately 10 minutes. He did not take detailed notes of the conversation, but had a clear memory of it. His notes identified the date, approximate time and briefly the nature of the call. 44 He later indicated in response to a question from the Commission about whether he still stuck by the fact that the conversation went 10 minutes, that a lot of the discussion wasn't an exchange of facts, it was amicable and friendly and the free exchange of ideas, "a bit of chit-chat, a bit of background" and general conversation and he found it hard to estimate the time and said it could well have been 30 minutes. 45 Mr Quinn said it was not in his memory that she was telephoning to check on the receipt of the report and he would not have referred her back to the Commander, as he could simply have checked with their administrative assistant if he needed to track the whereabouts of a report. 46 He recalled having a general conversation with her about the Mounted Unit because he had only recently visited that Unit on an unrelated matter, toured the facility with the Commander and met some officers stationed there. She then outlined her situation and explained to him that she was calling for advice on making a request to revert to full time employment. His advice was that she was entirely within her rights to make the request, however the Commander was not bound to approve that request but may use her discretion to approve or decline the request as either party to the permanent part time agreement may rely on the permanency of the agreement at any time in the future. However this did not preclude her from making such an application. 47 He deposed that at this time he probed further into her circumstances because he thought it more likely that she was not on a permanent part time agreement but a 'suitable duties' arrangement incorporating a reduction in hours. In his experience many employees confused the various part time arrangements available and frequently managers described their employees as being on part time duties. 48 S/C Ashton told him that she was sure she was on a permanent part time agreement and described how it came about, that she had been working reduced hours as a result of her injury and then opted into a permanent part time agreement at the reduced hours. She had made a request to her supervisor who had agreed to it, but he could not recall if she named the supervisor. 49 Mr Quinn deposed that it was clear to him that she had chosen to reduce her hours to part time and made that decision on deliberate grounds that she was readily able to explain. Even given the passage of time, she did not resile from those reasons, notwithstanding that she now wanted to return to full time hours. He recalled feeling that she had chosen a less beneficial course of action than she could have. She could alternatively have continued, subject to medical evidence, to work suitable hours and receive medical benefits by way of workers compensation. He recalled saying to S/C Ashton words to the effect of : "That's a great shame because you could have stayed on reduced hours but kept your full pay if you were not able to work full time hours". S/C Ashton replied words to the effect of : "Yes, I knew that, but I just wanted to work less hours and concentrate on getting better". 50 He recalled her saying that she had chosen the option of a permanent part time agreement as she also wanted to be relieved of the burden of the workers compensation requirements and had used part time work to improve her health and lifestyle with a view to getting better. He went on to say that she explained to him that she had been working suitable duties and devoting quite a lot of time to the management of her pain and the management of her injury including a great deal of lifestyle changes which, as he recalled, involved exercise and rehabilitation and trying to improve a number of areas in her lifestyle. The reasoning she gave to him was that there seemed to be a high burden of paperwork attached to the workers compensation regime and it seemed simpler and more able to fit into her lifestyle if she reduced her contracted hours down the hours she was actually fit to work for and then she would be relieved of the burden of workers compensation requirements which he considered was a very unorthodox way to manage it. 51 He didn't know what dates were given to him during that conversation, but from his recollection that was the reasoning she used for making an application for part time employment. He could not say if that indicated that she was aware of the conditions applicable to part time employment at the time she made her decision. It was clear to him that she knew she was on a permanent part time agreement and he understood the purpose of the call to be asking him how she might return to full time and what might be the criteria that her Commander might use. 52 He recalled thinking that that could still have been achieved without necessarily converting to permanent part time employee employment and said so, however she was clear with him that she had chosen that course of action deliberately. He recalled that they then resumed the conversation about how to actually apply. He also asked her if she was a member of the Association as it appeared to him that she could have taken a different path earlier if she'd obtained advice from either his Branch, or the Association, and she confirmed that she was a member. 53 He said that he did not recall anything further of the conversation and some weeks later a colleague was describing circumstances which appeared identical to S/C Ashton's during a conference within the Branch. He informed that colleague of his conversation with her and noted that the claim, which was at that stage being advanced by the Association, had taken on a different character than the firsthand conversation he had had with her on 26 February. 54 He denied telling her during the conversation that she would be "opening a Pandora's box". He did not use that phrase and could not see how the remark was attributable to him. He also denied telling her she shouldn't seek legal advice and said he never discouraged anyone against seeking legal advice and considered doing so to be unethical and completely at odds with his commitment to his employer to behave ethically at all times. 55 He agreed that they had a discussion about around part time agreements and that she asked him whether she was able to revert back to full time however he said he went into much further detail than a one word answer because the answer was not straightforward. He agreed that he queried whether she was advancing a claim relating to her entire part time period and she said she was not. From his memory that answer was consistent with the tone of the conversation, because at no time did she advance a complaint about lost wages going from full time to part time, or that she had ever misunderstood anything about these matters. 56 Mr Quinn also agreed that he had never managed a part time issue, he gave advice based on the words of the Policy, but had never been a decision maker in one, he had assisted in disputes involving them. 57 Mr Quinn explained what he understood by 'suitable duties', that being the hours that were safe and able to be worked. The remainder of the hours that a person could work would be claimable as workers compensation, as he understood it. 58 He also indicated that to the extent that he could advise the manager on what NSW Police requirements might be from the human resources or industrial relations point of view they would need to be fair. He thought the requirements would largely fall into operational requirements which would depend on particular criteria applicable to the workplace and with which he was not familiar. The criteria to be taken into account and the weighting of that criteria would really only be known at a local level. He did not believe there was any overarching NSW Police policy that would simply state the requirements. 59 Ms Ashton however maintained that she did not telephone Mr Quinn on 26 February 2009, but contacted Police Industrial Relations on 2 March and spoke to him, and that her Telstra home and mobile phone records clearly showed this. 60 Ms Ashton deposed that in relation to the change in her payslips after 1 May 2009, at no time did Inspector McFadden ever contact her either verbally or in writing and inform her of the change in her employment status. Inspector McFadden had never asked her to complete or enter into any formal part time agreement form for this status to be changed. At no stage had she ever completed any formal part time agreement forms nor had she ever made an application for part time work on the prescribed form as required by the Policy nor had she been directed at any time to submit such a form. 61 As at 19 April 2010, Ms Ashton was of the belief that she still held a full time authorised position at the Mounted Police Unit as Roster Officer as she was still attached to the Unit and had not been informed either verbally or in writing that her status had been changed. This was also expressed in the letter she received from the Redeployment Unit on 26 November 2003. 62 Ms O'Connor deposed that the Change in Planned Work Time Form (P840) was received via facsimile at the then Police Business Systems on 8 January 2007. This form is used by Commands to notify ICS of changes to employee conditions and hours of work agreed to at the Command level that require records and action changes within the SAP payroll system. The form is then given to a Payroll Officer to process the information. 63 The forms submitted in relation to S/C Ashton required information to be processed through a number of separate screens on the computer system that form contained incorrect information, that being the "SAP WORK SCHEDULE NO 76020345". This number referred to the work routine previously worked by S/C Ashton of four days per week and not the future work schedule of three days per week as required. 64 Ms O'Connor deposed that in order to input the correct schedule the Payroll Officer would have to seek the correct schedule from the possibility of hundreds and could either search out this information or seek it from the officer who submitted the form, but in any event the Payroll Officer should contact the officer who submitted the form to confirm their exact intention which was possible to do at the time or may require delays in the process until that enquiry was responded to. 65 She deposed that during this data input process the Payroll Officer obviously made an error and did not adjust the "EE group" box as per the information form forwarded from the Command. Due to this error S/C Ashton's salary advice notice would have incorrectly shown her employment as being "Permanent-Fulltime". On advice, this error was corrected on 1 May 2009. It was a matter of initiating the drop-down box and activating "B" "Permanent Parttime (copies of the relevant form and computer extracts showing the drop-down boxes were attached to her witness statement - Exhibit 18 -A to E). 66 It was Sgt Riddell's evidence that following the birth of her second child in 2004, she returned to work on a part time basis at the Unit during 2005 and 2006. She had been working on part time leave without pay for a number of years. She recalled that S/C Ashton had applied to work part time during this period. She said that on numerous occasions during 2005 she discussed part time issues with S/C Ashton. She could not recall the exact number of occasions when she had such discussions, but it was quite often because she was a part time officer following having her children and S/C Ashton was the rostering officer. She discussed issues with her such as working additional hours and leave entitlements. Prior to 2005 she discussed issues such as maternity leave, working part time and the effects on maternity leave, because she intended having another child. 67 She recalled discussing with S/C Ashton issues such as increments being affected when an officer was working permanent part time. She recalled that S/C Ashton was very knowledgeable on all aspects of part time employment such as, either being part time leave without pay, or permanent part time. As a result of their discussions Sgt Riddell applied for permanent part time employment rather than remain on part time leave without pay. She also recalled that at that time Inspector Biffin signed off on a number of officers who had applied to work permanent part time. She thought that about six or seven out of approximately 33 staff were part time. 68 She also said that S/C Ashton was good at her job as Roster Officer and she used to ask her questions about entitlements and any issues regarding her pay or conditions that would affect her and generally if she didn't know the answer she was always helpful and would always say "I'll find out for you". 69 Sgt Riddell deposed that S/C Ashton, as well as being Unit's Roster Officer, was quite active within the Association. In her Roster Officer role she was generally the person approached by other officers who had conditions/entitlements queries and often made enquiries on behalf of other staff in regards to conditions and entitlements. 70 Sgt Riddell particularly recalled S/C Ashton advising her that permanent part time work would be beneficial to her, the reason being that "the boss could not 'force' me to go back to full time duties if I was permanent part time". 71 Sgt Riddell maintained that S/C Ashton was an Association representative and would contact the Association if people had any queries about entitlements or work conditions and said that she saw her as being a delegate for the Association representing their work. There were other officers in the Association at various stages but generally S/C Ashton was knowledgeable about issues that were raised by the Association. 72 She also recalled a meeting with an Industrial Relations Officer that S/C Ashton arranged as they had a number of issues with part-time officers. She could not recall the person's name, however she knew that S/C Ashton regularly made enquiries with "industrial", as she referred to them, regarding conditions and entitlements. 73 Sgt Riddell said that it was the former Commander, Inspector Biffin who had requested that the meeting take place (and chaired the meeting) because they had so many part time officers at the Unit at the time and there were issues being raised by full time staff and there was a bit of a divide between the part time and full time staff. So the Inspector was looking for more information. It was not a formal meeting and no minutes were kept, it was more of an information session. 74 From her memory it was S/C Ashton who organised the meeting and she was definitely present but didn't present any information. There was a male Industrial Officer there and there were questions raised about being permanent part time or part time leave without pay. She distinctly remembered questions being raised in front of that Industrial Officer, (including by S/C Ashton), who couldn't give all the answers on the spot, but she believed that he contacted Inspector Biffin at a later stage with some additional answers. She remembered that the part time staff were rostered to attend that meeting and S/C Ashton was present as the Roster Officer. She believed the information provided at the meeting would have been of considerable assistance to a Roster Officer. 75 Sgt Riddell also recalled that when S/C Ashton returned to duties during 2005/2006 she was in the upstairs office in the glassed area, the administration office it might be called, and that was where Sgt Riddell also was in 2006. She was able to hear conversations between S/C Ashton and other officers in regards to all issues relating to their employment. 76 She said that during 2006 when she started relieving in her Sergeant's position they were sharing an office together (she indicated the closeness of their desks in relation to the witness box - a distance of about a metre and a half) and said they definitely could hear each other. She thought they shared that office for about 10 to 12 months. 77 She also gave examples of the advice that S/C Ashton gave about pay and conditions, with the big issue, as far as part timers were concerned, being additional hours. S/C Ashton tried to investigate where the funding came from and whether it came out of the overtime budget or the standard wages budget. She recalled it being a very large issue for S/C Ashton when she was working there and she looked into it and gave advice on it, not just to her, but also to Inspector Biffin. 78 Sgt Riddell recognised the Application For Part Time Work and Application For Part Time Work Agreement forms (Exhibits 8 and 9) but could not recall if she'd ever filled one in. She had something to do with those forms in her role as a Sergeant. Generally Constables will attach a report to this form and bring it to her and ask her to check it over. She needed to sign their report as well as a supervisor as being supported or not supported. Someone else who will be approving. She had a vague recollection of filling out an Application For Part Time Work form (Exhibit 8) and if she filled it in 2005 she would have ticked the permanent part time box. She could not recall whether, when she asked questions of S/C Ashton and in relation to the replies she gave, she ever referred her to any of those forms. 79 Ms Ashton denied having any conversations with Sgt Riddell about part time issues and said that she was not even aware that she had made that application. She maintained that she did not have any knowledge of the difference between permanent part time and part time leave without pay leave without pay. 80 Ms Ashton also denied having a conversation with Sgt Riddell about permanent part time being beneficial etc., and said that she did not even know the Policy. She also denied being involved in arranging a meeting and did not participate in any industrial meeting. 81 Ms Ashton maintained that her role as Roster Officer was purely to do fortnightly rosters, computerised rosters and any change on the rosters. That was her only role and anything related to rosters which was in put into the Intel-based rostering system. The computer then worked out what people's entitlements were. Her only role was when she was approached by staff at the Unit in relation to any requests they had relating to the rosters. 82 Ms Ashton outlined the various functions she had carried out in her administrative role as Roster Officer. She agreed that she attended executive management team meetings and communicated informational decisions both to and from command personnel, but to do with rosters only if the Commander asked her something to do with rosters and what jobs were coming up. She also looked at the TOIL printouts. She maintained she had nothing to do with part time arrangements. 83 She confirmed that she had never been required to process part time work agreement forms in her role nor had she seen one of those forms at all (Exhibit 9). 84 She agreed that she needed to be aware in her rostering role of who was part time and who was full time, but maintained she did not need an in-depth knowledge of the different conditions of all the staff who were employed there. The only information she was given was that she was informed of who was working part time and who was full time and that was either given to an her on notes saying this person is part time working Monday, Wednesday, Friday etc., and she would put that into the computer. She did not know what arrangements staff had or their entitlements and was not involved with that, she simply input information which could the Commander gave her and that would sometimes just be a note or an e mail. There was no consistent process in place that was followed to give her this information. 85 Ms Ashton agreed that she maintained staff records, including annual leave and sick leave, after they had been signed off on by the supervisor or Commander. The records were given to her and she inputted the information that was put in the staff books but didn't maintain the books. She also inputted annual leave forms once they were completed. The Commander was responsible for the long-term leave roster and it was put up on the board and people could ask for what they liked and the Commander would say whether they could have their time off or not. She did not make any decisions about that but agreed that when the leave planner was being developed by the Commander he would ask her questions such as whether it was possible to let four people go off at the time and what would the roster look like. 86 Ms Ashton said that when she was the Roster Officer she worked in an upstairs in the office by herself that was not located nearby the operational section of the Unit but located near the Constable's room. 87 Ms Ashton said that there was a branch of the Association at the Unit, she was part of that branch and active in it but did not hold a position that she was aware of other than Branch Official. There were about 10 other Branch Officials and she thought that there were some 32 Police officers at the Unit. The Association branch may have held meetings but she did not recall ever going to them, but may have attended a couple of meetings. They were not regular meetings. She agreed she played an informal role as a Branch Official. 88 She described a Branch official's role as being that you might go to speak to a person and be asked to do things regarding issues at the Unit. However she said there were people that were not Branch officials that were doing that "other stuff". 89 She maintained that she was never elected to the position of Branch Chairperson, ran a meeting or took minutes or referred to herself as a Branch Administrator or Vice Chairperson. She never went to meetings at the Association's offices representing the branch. She subsequently clarified that she remembered going to a conference in Wollongong in either 2003 or 2004 where they were voting for a new President of the Police Association. 90 Ms Ashton acknowledged that she had made an application for TUTA leave in October 2003 in which she indicated... "I have been nominated as the branch official for the Mounted Police Unit .......". She also acknowledged that she made another application for TUTA leave in May 2004 where she indicated .."I am currently the Police Association branch official for the Mounted Police Unit." However she did not agree that those applications sounded as if there was only once one branch official and she was it, that was incorrect as there were a number of people. 91 Inspector McFadden said that upon her commencement as Commander at the Unit she received briefings on all matters pertaining to the Unit from Sgts Martin, Riddell, Owen and S/Sgt Lowe. She was advised that S/C Ashton was a permanent part time worker and that she was on permanent restricted duties. She remembered that this was the case and that there was a distinction between the other part time personnel as the word 'Permanent" was reflected twice, in her duties - 'Permanent Restricted Duties' and 'Permanent Part Time'. 92 Following her appointment as Commander she reviewed the personnel records of the Unit and recalled seeing both of the applications that had been written and signed by S/C Ashton for the reduction in her hours of work and approved accordingly. Those applications reinforced the verbal information provided to her that she was a permanent part time officer. 93 She went on to clarify that she had asked for a full briefing on the entire Command and one of the first things she looked were a lot of the processes and systems in the Unit which had been "a bit lacking". This was the case not only with S/C Ashton but with other staff members, as well as those who were on long term sick report and on part time status. She took a briefing from the senior management team (Sergeants and Senior Sergeants) as the former Commander, Inspected Biffin, wasn't there at that time. They all verbally explained to her who was part time and who was permanent part time. A couple of months later when she was looking at the files and going through the process, there was a part time folder and there were the two applications from S/C Ashton and they affirmed to her that she was permanent part time. 94 After she received the application from S/C Ashton in January 2009 requesting to revert back to full time duties, she made enquiries of Police Industrial Relations (and spoke to Mr Fanning) into her ability to return to full time duty status. This was because the return to full time status provisions were different for permanent part time officers than for part time leave without pay officers. It was on the basis of the advice she received that she sent her email response to S/C Ashton. 95 She contacted Rachel Edwards at Internal Customer Services who at the time was responsible for all records for SAP and payment of the Unit's officers. Ms Edwards informed her that there was an inputting era on S/C Ashton's computerised SAP records and she was also told that the documented records on S/C Ashton's files indicated that she was a Permanent Part Time worker, however there was a specific box on the computer system that had not been correctly entered. 96 Ms Edwards explained to her that the application for permanent part-time work at 28.5 hours per week approved by Inspector Biffin was forwarded to the administrative officers at Redfern LAC for processing. The General Administration Officer (GA0) at Redfern completed form P840 (Exhibit 16 -A) then faxed it to the then Police Business Systems (PBS), now called Internal Customer Services (ICS) for processing (Exhibit 16 - B). 97 Inspector McFadden detailed that conversation further with Ms Edwards and indicated that once it had been explained to her she asked for the error on S/C Ashton's records to be corrected and said that she would probably have written a one line email to her to back up what she'd said verbally. She couldn't recall the exact date that the correction took place but thought that Ms Edwards corrected it as they spoke, and after she had sent the email to her. 98 Inspector McFadden deposed that as S/C Ashton had been on long term sick leave since June 2008 the allocated position on the SAP system was not able to be changed as there was no possibility of placing her into an over strength position. Vacancies within the Unit were not filled to capacity, thus there had been no need to fill the SAP position occupied by S/C Ashton since June 2008. 99 Inspector McFadden also said that they were a very small Unit with not enough administrative personnel and staff to keep up with things that occurred and the reports submitted by S/C Ashton ("Godfrey reports") which were handwritten and signed by her work, was basis enough for her to know that something had occurred. She had not seen the other forms (Exhibit 8 and 9) but since then she had made sure that all part time staff at the Unit obviously completed the forms. The part time folder contained the details of the other five or six officers working part time in some form and they had Godfrey reports as well stating if there were any changes in their circumstances, such as part time maternity leave without pay. The folder was very loosely compiled with documentation. 100 She explained that a "Godfrey report" was an issue, background, comment and recommendation. It briefly set out the issue, what the background to the event was, and any comments that were new and any recommendations. It was a general Pro-forma used in NSW Police, was really only four lines and was quite easy. Any type of report they did for anything generally required a Godfrey report and that replaced a lot of documentation. She indicated that even today if she asked for one of those two forms (Exhibits 8 and 9) she would also ask for a Godfrey report to outline what the situation was. 101 Inspector McFadden indicated that at the Mounted Unit she, as Commander, and prior Commanders, had the delegated authority to approve part-time applications and had that authority in January 2009. 102 She thought there would have been full time positions available at the Unit in January 2009 as they were on a very driven recruitment drive to fill all their positions at all times. The only a very small operational Unit and it was very dependent for them to fulfil their operational requirements so that other Constables weren't always being burdened with having to work all the time. She could not say accurately, without knowing the date in question and looking at some figures, but she was sure there would have been a vacancy as they had been doing a very strong recruitment drive since she had turned up to ensure all positions were filled. 103 She went on to say that all of their SAP occupied positions were supposed to be full time and operational so that they could ride. There were a lot of injuries that they incurred and they tried to work around those injuries to workers and tried to accommodate how they went and long-term rehabilitation, but all of their work frame was actually progressed to make sure that someone could then be able to be full time and ride as well. The other issue was that the Unit had also been displaced from the Region and placed under the Major Events and Incidents Group and they were looking at conglomerating quite a few of the administrative positions to make it a bit easier for them. They were looking at different rostering options and officers and how they could work smarter and look at utilising those full time positions so people could be on the road and not sitting behind a desk. 104 In response to a question from the Commission, Inspector McFadden agreed that she took the view essentially that S/C Ashton couldn't be returned to a full time position if she hadn't been able to return to the part time position and said that unfortunately they did get a lot of workers that were injured and the issue was how could someone return to a full time position when they were off on sick report anyway and not going to return, even to complete the hours they were actually doing. Submissions on behalf of the Applicant 105 Mr Spring on behalf of the Association made oral submissions in addition to the written submissions as tendered (Exhibits 22 and 23). In doing so he outlined the relevant factual background, summarised and highlighted relevant evidence and took the Commission to relevant provisions of the Act, the 2005 Award and the Policy with respect to part time provisions and part time work agreements. 106 It was submitted that since 27 June 2006 Ms Ashton had been a full time employee of NSW Police working reduced hours as the result of her HOD injury. Her employment status was as a full time employee working part time hours. At no stage had she entered into any agreement which changed the status of her employment from permanent full time to permanent part time. It was the Association's opinion that Ms Ashton had been working part time leave without pay and not one of permanent part time and therefore in accordance with the Policy (8.1 and 8.2) she could revert her employment status to full time. As she was on long-term sick leave the provisions of 8.2 also applied. 107 It was submitted that Ms Ashton's Commander, in negotiating the part time work agreement in 2006, did not follow the Policy and Guidelines provided for and required by Clause 14(i) of the Award and therefore breached that Award. He failed to use the correct form and was in breach of the provisions of s.76(3) of the Act in that return to full time employment and her classification were not properly explained. Mistakes were also made in the Police salary records that further misled Ms Ashton about her employment status. 108 At the time of Ms Ashton making her application in January 2009 to return to full time work, NSW Police were bound to adhere to the requirements of Part 5 of the Act, Clause 14 of the 2005 Award and NSW Police Policy and Guidelines, guidelines agreed between the parties referred to in the Award, being the Association and NSW Police. 109 It was submitted that the evidence provided by Ms Ashton was that NSW Police breached each of these requirements. Inspector Biffin, her Commander at the time she applied for her part time position and who approved her applications, was not called by the respondent and there was no direct evidence that contradicted Ms Ashton's evidence. 110 It was submitted that the provisions s.76(3) of the Act were clear. Ms Ashton's 2006 report, made no mention of any classification applying to the work to be performed, nor referred to an entitlement to return to full time employment. It could not therefore qualify as a part time work agreement as prescribed by the Act. 111 Nor could this report qualify as a part time agreement under Clause 14 of 2005 Award. For the report to do so it needed to meet the requirements of the Guidelines agreed between the parties which provided that an application for part time work was to be made on the Application for Part Time Work Form, this was not done. On Ms Ashton's evidence Inspector Biffen did not discuss the implications as required by the Guidelines nor did he provide a copy of the Guidelines. There was no evidence to refute these claims. 112 In April 2009 NSW Police refused Ms Ashton's request to revert to full time in accordance with 8.1 and 8.2 of the Policy on the basis that there was no capacity to return her to full time status until she was in a position to return to work in a part time capacity. Those reasons were not in accordance with the Policy. 113 In the event that Ms Ashton's employment status was deemed to be permanent part time, 8.3 provided that reclassification to full time was upon application and subject to NSW Police requirements and dependent on the availability of a full time position. On the evidence of Inspector McFadden positions were regularly available at the Mounted Unit. Both Inspector McFadden and Mr Quinn had a view regarding what was meant by "NSW police requirements" but neither could adequately explain precisely what they were. 114 Mr Quinn's evidence also was that part time employment frequently caused confusion amongst Commanders and officers and frequently managers described employees as being on part time duties when they meant suitable duties. This was worsened in this case by the failure of management to follow agreed processes. The confusion was confounded in the case of Ms Ashton by her payslips showing the classification as full time which was what would appear for any officer who was on part time leave without pay. 115 It was submitted that Ms Ashton claimed to have a poor understanding of the difference between the classifications of part time employment and implications of being on one or the other and from the evidence she made enquiries and was advised that she had an opportunity to apply for and be returned to full time hours. 116 It was submitted that the primary reason Ms Ashton now found herself at this level of uncertainty was due to the neglectful approach of NSW police management processes and record-keeping and the complete lack of any audit function to ensure that these requirements were met. 117 The payslip records were generated and produced by NSW Police were true and correct and fell under the definition of records to be kept by employers in accordance with s.129 of the Act. Further s.296 of the Act defined employment records to include "part-time work agreements with employees". 118 It was submitted that in accordance with those provisions of the Act the payslips generated by the employer reflected what Ms Ashton's employment status was, which was clearly permanent full time and not permanent part time and as such she was able to revert her employment status to full time hours in accordance with 8.1 and 8.2 of the Policy. 119 It was also submitted that was not necessary to demonstrate that you could return to duty to be successful in an application to return to full time hours as per s. 81(5) of the Act. Leave in this section did not seem to be limited and could equally refer to sick leave and workers compensation leave. 120 The only evidence provided by the respondent was that of Sgt Riddell and she provided no evidence that could definitely identify that Ms Ashton was on a permanent part time arrangement. Inspector McFadden provided evidence that the record-keeping at the Unit was of a poor standard when she arrived and there was no direct evidence that any attempts had been made to identify or correct any shortcomings in the records of the part time employees between Inspector McFadden's briefing and the time of Ms Ashton's application to return to full-time hours in January 2009. The lack of appropriate paperwork pointed to the contrary. 121 It was submitted that very little weight should be attributed to any of Sgt Riddell's evidence and no weight should be placed on the TUTA documents tendered by the respondent. 122 It was submitted that NSW Police had not demonstrated that Ms Ashton was knowledgeable in these matters, in fact the opposite. Even if they did demonstrate any level of knowledge it was not Ms Ashton's role as a Roster Officer to properly administer part time applications and it was therefore irrelevant. 123 As a result of Ms Ashton's employment status being classified as a permanent part time her termination payments on her medical discharge were significantly reduced as such payments were calculated on a pro rata basis. 124 The Commission was requested to accept that Ms Ashton had a poor knowledge of the general processes involved in applying for part time work, had no understanding of the differences in the classifications of part time work or the implications, monetary or otherwise, of being on part time leave without pay, permanent part time, suitable hours, workers compensation or the effect on her ability to return to full time employment. The Commission was asked to accept the evidence that there was no formal or legal part time work agreement in place between NSW Police and Ms Ashton and the nature of the agreement was an informal agreement between Ms Ashton and her then Commander Inspector Biffen , who also had an equally poor knowledge of these issues as indicated by the evidence of Ms Ashton. Evidence never refuted by the respondent. 125 Mr Spring sought that the Commission accept that the classification of permanent part time was initiated by the employer and not the employee, she was deemed permanently restricted duties in 2003 by NSW police and this may have led to confusion by Inspector different over classifications. If this was accepted than any impression given by Miss Ashton in relation to the understanding that was developed by the management team and conveyed to Inspector McFadden and the information provided to Mr Quinn at the time of the enquiry were all founded on error. If this was found to be true then the applications submitted by Ms Ashton on 30 January 2009 to return to full-time hours must be accepted as a request to terminate a part-time agreement which was not lawful in that it was contrary to the act and the award. It was submitted that NSW police had no discretion to reject the application. 126 The Commission was requested to make a recommendation in terms outlined in exhibit one and all/or any other recommendation, directions all orders that the Commission thought appropriate. Submissions on Behalf of the Respondent 127 Mr Fanning for NSW Police made oral submissions in addition to the written submissions as filed (Exhibit 24) and so in doing also summarised the relevant evidence, and took the Commission to relevant provisions of the Policy, the Award and the Act in relation to part time work and part time work agreements. 128 It was submitted that it was common ground between the parties that Miss Ashton was working some form of part time arrangement from June 2006 onwards and that prior to June 2006 she was properly classified as a permanent full time employee.. The dispute between the parties was over the categorisation of the type of part time arrangement S/C Ashton was working in January 2009 when she submitted an application to her Commander to revert to full time duties. 129 It was submitted that the onus was on the Association to demonstrate that: The application by S/C Ashton, and the approval of that application dated 27 December 2006, did not form a contract of employment on a permanent part time basis. The employment arrangements identified between S/C Ashton and NSW Police was other than a permanent part time arrangement. The employment arrangement between S/C Ashton and NSW Police was one of part time leave without pay. Only once this was established could clauses 8.1 and 8.2 of the Policy and Guidelines be initiated with respect to S/C Ashton's employment. 130 It was submitted that Ms Ashton's evidence demonstrated that in her application she clearly stated she was on a permanent part-time agreement and she wanted to change her weekly hours of work from 32 to 28.5. This application was signed by her, submitted to her Commander, approved by her Commander in writing and subsequently the relevant information was submitted to the administrative part of NSW Police responsible for leave and salaries management. The information on the form clearly indicated the Commander's understanding of what he had approved - that being a permanent part time arrangement. 131 It was submitted that the clear intention of S/C Ashton, and clearly the understanding and approval given by management, in her application was that it was a permanent part time arrangement. It constituted a valid contract between S/C Ashton and NSW Police commencing on 19 February 2007 and continuing in effect until her retirement on 29 April 2010. It was a valid contract of part time employment which was then a valid permanent part time arrangement under both the Award. 132 It was acknowledged that during the data input process an error was made by the operator in that particular group. Particular emphasis had been placed by the Association on the salary advice notices that showed that S/C Ashton was permanent full time between June 2006 and April 2009 and that those payslips, being employment records in accordance with the Act, provided the basis for S/C Ashton to be able to revert her employment status to full time hours in accordance with 8.1 and 8.2 of the Policy. 133 It was submitted that this was an implausible argument. If that view were to be upheld then there would be no ability for an employer, or an employee, to make a recovery from errors that were printed on a salary advice. It was a long held industrial principle that errors that are made are able to be corrected and in many cases required to be corrected. Where an error caused an employee to be underpaid it was not a defence to the employer to say that the salary advice notice was accurate and therefore the employee was unable to recover the underpayment. 134 The Commission was referred to the provisions of s.76 of the Act which set out a number of requirements for a valid part time arrangement to be in place and it was submitted that all those requirements had been complied with in regard to the working arrangements of S/C Ashton, including the identification of the classification of employee, as S/C Ashton's signature at the bottom of the document clearly indicated her classification. 135 The Association had argued that the particular arrangement did not specify or indicate the employee's ability, if any, to return to full time employment. However with respect to availability it could be argued that the Part Time Work Agreement form (Exhibit 9) also did not address that issue and it could therefore be argued that all permanent part time arrangement would be invalid. NSW Police argued that this was not the case. The Policy addressed the ability, if any, of an officer to return to full time employment at Clause 8.1 and 8.2. However, that was subject to NSW Police requirements and the availability of a full time position. 136 It was submitted that there was no argument in regards to the availability of a full time position. However the evidence provided by Inspector McFadden was that one of the requirements that she insisted upon as Commander was that S/C Ashton was able to, and did in fact, turn up for work and perform duties on the basis of 28.5 hours per week and that when she was capable of performing the part time role she would consider the application to return to full time duties. This was not an unreasonable requirement under the circumstances. 137 It was submitted that S/C Ashton's application of 27 June 2006 was a valid legal contract for permanent part time employment under the Act. It was not possible to say that because this arrangement was not recorded on the correct form according to the Policy it no longer formed a contract for permanent part time employment, especially in view of the fact that S/C Ashton was working those hours for a number of years. That application made no mention or any indication at all that the arrangement was for a defined period of time. NSW Police therefore deduced that, in the absence of a definition of a period of time, it was an ongoing arrangement and it proved to be so. 138 The evidence of Sgt Riddell contradicted S/C Ashton's evidence in regards to her knowledge of part time arrangements, the performance of the role of Roster Officer, the physical location of where S/C Ashton actually performed her role, that she gave advice to officers on part time arrangements and that they both shared the same office for 10 to 12 months. There was also the evidence concerning S/C Ashton arranging a meeting with the industrial officer. 139 Whilst was a lot of this evidence was denied by S/C Ashton, the integrity of the evidence provided by Sgt Riddell was not challenged by the Association and it was submitted that her evidence was accurate, honest and reliable and should receive the greatest weight. Based on that evidence, S/C Ashton was aware of the differences in part time working arrangements at some time before 2006 and definitely at the time she made the application for part time work. 140 Mr Fanning referred to the extensive evidence provided by Mr Quinn who had a lengthy conversation with S/C Ashton in February/March and said that whilst there were different views on that there was agreement that it did occur at approximately the same period in 2009. Mr Quinn provided evidence as to the reasons she explained for choosing the option of permanent part-time work as she wanted to be relieved of the burden of workers compensation requirements. It was submitted that it should be remembered that she was injured in 1997 and it took her six years, which was a very long time, to recover from the injury and return to full time duties on a restricted basis and that had always been acknowledged by NSW Police. Sgt Riddell's evidence was also that another reason was that while she had a guarantee of a permanent work regime she could not be forced to pick up hours or return to full time employment. Those were two very significant reasons why S/C Ashton indicated that she applied for a permanent part time arrangement. 141 It was submitted that this evidence, combined with the evidence of Sgt Riddell, should receive the greatest weight because both officers had provided evidence that clearly indicated that S/C Ashton understood very, very well the differences between part time arrangements, the effects they had on people, and made a conscious decision to apply for permanent part time work. 142 Mr Fanning also referred to the evidence concerning S/C Ashton, the TUTA applications, her involvement as a branch official at the Unit and her responses in cross examination. It was submitted that the relevance of this issue was that it went to the credibility and reliability of the evidence provided by her in all of her statements. 143 It was submitted that in view of the evidence provided by Sgt Riddell and Mr Quinn, the demonstrated unreliability of statements and evidence provided by S/C Ashton, that SC Ashton despite the denial was in fact acutely aware in 2005 of the differences between a permanent part time arrangement and a part time leave without pay arrangement and deliberately and consciously made the decision to no work under a permanent part-time arrangement in December 2006 was to link to these submissions made by the association that she was Ashton was a full-time employee working part time hours. There was no breach of the Award or the Act. The Association had relied s.76 3(d) of the Act, whereby officer may return to full time duties with the employer but it was stressed that that section commenced by saying "by agreement between the employee and the employer". In this case there had not been an agreement. It was a prerogative that was left available to either party to not agree if they did not wish to. NSW Police had not agreed to S/C Ashton's attempt to return to full time duties. 144 In conclusion it was submitted that NSW Police had properly categorised the employment of S/C Ashton as a permanent part time arrangement and therefore had treated her accordingly and properly. Submissions in Reply on behalf of the Applicant 145 Mr Spring in reply conceded that s.129 of the Act had not been accurately quoted and took the Commission to the section again. 146 Mr Spring refuted the submission that S/C Ashton's report dated 27 June 2006 complied with the legal requirements of s.76 of the Act and also the provisions of Clause 14 of the Award. It was submitted that it was not authorised under "guidelines agreed between the parties". The guidelines referred to were contained in the Policy. 147 It was submitted that in relation to the payslips mistake it was conceded that NSW Police regularly made mistakes that required fixing up, that was precisely why the Association was making these submissions. 148 It was submitted that in relation to the Application for Part Time Work form not indicating an ability to return to full time employment, it was this form together with the Policy, which would be provided together, which should go some way towards correcting that. 149 S/C Ashton's inability to comply with the requirement to return to work to enable her to return to full time employment was at the time she was suffering a workers compensation injury, and had medical certificates to indicate she was not fit for full time employment. 150 It was conceded that the evidence of Inspector McFadden and Sgt Riddell was honest and re and liable and it had never been suggested otherwise. This evidence merely pointed out that there were some elements in that evidence, when taken in its truthfulness, that demonstrated that S/C Ashton did not in fact have a comprehensive knowledge of the Policy as evidenced by the fact that the advice she was giving was incorrect. 151 It was accepted that the officers themselves did have some responsibility to find out what their entitlements were. However in this matter the issue was not the level of knowledge of the officer herself, but the knowledge of the person responsible for administering, processing and authorising applications for part time employment, and that was the level of the knowledge of the Commander Inspector Biffin. Consideration 152 I have carefully considered the evidence and the submissions of the parties in this matter. 153 It has been contended by the Association that there are essentially two fatal errors that have been made by NSW Police that have resulted in the 27 June 2006 agreement entered into between S/C Ashton and her then Commander Inspector Biffin as capable of being characterised as a part time leave without pay arrangement and hence giving rise to her right to revert to full time employment in accordance with the clauses 8.1 and 8.2 (when read together) of the Part Time Work for Police Officers Policy and Guidelines consequent upon her request to Inspector McFadden to so do in January 2009. 154 Those errors have been identified as firstly, S/C Ashton's payslips continuing to categorise her employment as 'Permanent', and secondly, the failure to complete the requisite Application for Part Time Work Form. The second error is also contended to be in contravention of the relevant provisions of the Act as well as the Policy. 155 As to the error in S/C Ashton's payslips I do not regard that as fatal, nor, in my view, does it give any legitimacy to the claim that she was on a de facto part time leave without pay arrangement. 156 Mr Fanning is quite correct, the mere fact that a mistake is made in a payslip does not legitimise a given situation. If that were the case then underpayments of wages/allowances etc., would never be able to be rectified on an employee's behalf, nor indeed would an employer have the right to correct and recover overpayments of wages/allowances. 157 I accept the evidence of Inspector McFadden and Ms O'Connor as to the inputting mistake that was made in relation to Ms Ashton's payslips. That mistake was regrettable, but perhaps understandable in the light of the apparent lack of attention to administrative requirements at the time (June 2006) which clearly arises in relation to the failure to fill out the appropriate form. 158 As to the failure to complete the appropriate form, again I do not consider that that is fatal. 159 It certainly establishes that there has been a breach of the Act, and in particular s.79(1). That section provides that part time work is to be in accordance with the industrial instrument applicable to the work concerned. That leads directly to the provisions of Clause 14, Part Time Employment of the Crown Employees (Police Officers - 2005) Award (and those provisions are repeated in identical terms in the 2009 Award) which specifically refers to such employment as being "under guidelines agreed between the parties". That in turn leads to the provisions of the Part-Time Work for Police Officers Policy and Guidelines and specifically, 5.0 Applications for Part Time Work. 160 I do not consider that there has been a breach of s.76 of the Act. The Godfrey report completed by S/C Ashton in June 2006 sufficiently complied with that section in that it specified that part time work was sought, the hours and days to be worked, S/C Ashton and Inspector Biffin both signed the document, and it also indicated the position of Ms Ashton as being Senior Constable and the Roster Officer. There was no indication in the report that she sought the ability to return to full time employment or that the part time position she was seeking was only for a limited or specified period of time. 161 I also do not consider that there has been a breach of sections 129 and 296 of the Act as the Godfrey report submitted by S/C Ashton constituted a part time work agreement such as to satisfy the requirements of those sections. 162 I should also note that if she had applied for part time leave without pay using the appropriate form, then in accordance with Clause 5.7 of the Policy that would have to have been limited to a specified period of time not generally exceeding three years. That Clause also indicates that such agreements would initially be approved for a limited period of time (for example, six months) with extensions taking place on a needs basis. 163 Clause 5.8 provides that a permanent part time work agreement continues for an indefinite period of time, a situation that was clearly have been of benefit to S/C Ashton as well as essentially being the advice she gave to Sgt Riddell. 164 Clause 5.8 also goes on to indicate that as the part time work arrangement changes the employment status of the officer to that of a permanent part time officer, Commanders and Managers "are encouraged to discuss" that the implications (monetary and otherwise) of entering such arrangements. There is not a mandatory provision requiring such discussion, and clearly such discussion could only take place if the particular officer was prepared to participate in such discussion rather than having already made up their mind as to exactly what they wanted to do and why. 165 I should note, however, that there may have been a breach of s.78 (3) if a copy of the agreement was not sent to the Industrial Registrar. There was no evidence before the Commission, nor any submissions by the parties, as to this issue, which may suggest that that is not the practice of NSW Police in any event. 166 Other relevant provisions of s.78 were complied with, in that a copy of S/C Ashton's Godfrey report, being the part time work agreement, was retained by the employer and she also had a copy. 167 I consider that it is also abundantly clear from content of the Godfrey report submitted by S/C Ashton in June 2006 (see Background and Chronology above) that she was quite clear about what she was applying for, a part-time position, and the reasons for such, and she even makes mention of the fact that it could be "a job share position" which would "allow another full time position to become available." 168 The reasons she cited for a seeking such a position, namely reduction in travelling time, ability to regularly attend the gym to manage her injury, also accord with the reasons she gave Mr Quinn in her conversation with him in March 2009 as to why she had sought part-time employment as partly lifestyle reasons to do with her injury. 169 The second Godfrey report she submitted in December 2006 for a further reduction in hours continued the theme of seeking to have more time to attend the gym. 170 I also accept the evidence of Mr Quinn that another reason she gave for seeking part time work, in the way that she did, was to free herself from the burden of the workers' compensation regime, a burden she had obviously been experiencing for the not inconsiderable period of the previous 8 ½ years since the time of her HOD injury in December 1997. 171 There is also the reasonably compelling evidence of Sgt Riddell as to a further reason, which she herself used on advice from S/C Ashton, that being the inability of "the boss" to be able to increase the hours or "force" an employee back to full time work. 172 It is clear from the evidence of Sgt Riddell that S/C Ashton did have a level of familiarity with the various forms part time work available, whether that was accurate or not. I consider it disingenuous in the extreme to now seek to paint a picture of an unknowing employee who was somehow talked into this option by her then Commander, Inspector Biffin and/or not properly advised as to the implications of her application. 173 Where there is a conflict in the evidence as between Sgt Riddell and Ms Ashton, I prefer and accept the evidence of Sgt Riddell. 174 Again Mr Fanning has quite rightly pointed out in that employees must take some responsibility for their actions. I agree. Ms Ashton had been on workers compensation as a consequence of her HOD injury for some 8 ½ years, she was also the Roster Officer. I just do not accept that she did not have any idea of how to access relevant information, and from whom, or an inability to properly assess the appropriate reasons to take into account in her decision making such as the various factors at play in her life and the on-going management of her injury. It would also not be unreasonable to conclude that at that stage in 2006 she was not necessarily contemplating the possibility of medical retirement which became a reality in early 2010. 175 There was no firm evidence as to the reasons she sought the further advice from Ms Membreno of the Association in January 2009 which then led to her making the application to Inspector McFadden and also seeking the further advice from Mr Quinn. However it does appear from the evidence that it related to her rights under s.40 of the Workers Compensation Act which may have been to do with the further injury that she was diagnosed with in December 2007, that being anxiety as a result her earlier injury. 176 There is no doubt that the correct form was not completed in June 2006 following the application made by S/C Ashton. 177 However I note that the new Part Time Work for Police Officers Policy and Guidelines only came into operation sometime in 2006. What is not clear, and there was no evidence before the Commission, is when, and how widely, and in what way, that Policy and its implementation was promulgated to Commanders/Managers/officers in the field, or indeed when the forms were commenced to be used, keeping in mind that S/C Ashton's application was only made in June 2006. 178 It seems reasonably clear from the evidence of Inspector McFadden that there were other Godfrey reports on the part time file at the Unit covering the other part time employees (some five or six on the evidence) and there were no completed application forms. It was also her evidence that since this dispute has arisen forms are now being completed. Sgt Riddell now confirmed that she was now signing on such firms but had not in the past. 179 I also note, as pointed out by Mr Fanning, that the actual form in question does not make any mention of a return to full time work in the future, nor is an employee provided with the opportunity to indicate this as a desired possible option. This would seem to me to be a deficiency in the form that should be addressed by the parties in the future. 180 I also note that there was no evidence that there is any special or specific form that requires completion when requesting to revert to full time duty. Indeed S/C Ashton's request was made following the usual practice at the Unit, by way of a Godfrey report, in the same way as her original application to work part time was made. 181 It was accepted by NSW Police, as confirmed by the evidence of Inspector McFadden that there was a full time position available into which S/C Ashton could have been placed. 182 However I also accept the evidence of Inspector McFadden that she considered, in rejecting SC Ashton's application, that she first required that she be able to return to her part time position, which she had not been able to do due to her injury and medical condition, having at this time been absent on long-term sick report since mid 2008, before she could consider approving her return to a full time position. I do not consider that this was an unreasonable requirement, particularly in the light of the nature of the operational duties required to be carried out at the Mounted Police Unit namely the essential ability to ride. 183 That consideration by Inspector McFadden was entirely in accordance with Clause 8.3 of the Policy which provides that permanent part time officers may be reclassified to full time officers upon application "and subject to NSW Police Requirements". It seems clear to me that it would be an officer's Commander who would be the appropriate person primarily to determine the necessary requirements applicable in such a consideration. Conclusion 184 Having carefully considered the evidence and the submissions of the parties I have come to the conclusion that the failure to complete the appropriate application form for part time work in accordance with the Policy did not vitiate the Godfrey reports completed by S/C Ashton in June and December 2006 which sufficiently constituted a part time work agreement between S/C Ashton and NSW Police in accordance with relevant provisions of the Act and the Policy. 185 S/C Ashton had been occupying a permanent part time position, she was not an officer on part time leave without pay. There was no automatic right to revert to a full time position and in any event the rejection by Inspector McFadden of her application for such was made on reasonable and appropriate grounds. 186 The Commission therefore declines to make the recommendation as sought by the Association. 187 This application is dismissed and these proceedings concluded accordingly. Elizabeth Bishop Commissioner 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.