Industrial Relations Commission New South Wales Medium Neutral Citation: Crown Employees (Police Officers - 2009) Award [2012] NSWIRComm 23 Hearing dates: 8, 22, 23, 24, 25, 26, 29, 30 and 31 August; 1, 5, 6, 7, 8, 12, 13, 14 and 15 September; 24, 25 and 26 October; 7, 8, 9, 10, 14, 28, 29, 30 November 2011 and 26 February 2012 Decision date: 28 March 2012 Jurisdiction: Industrial Relations Commission Before: Walton J, Vice-President; Staff J; Tabbaa C Decision: 1. We have decided a new award shall be made governing police officers in New South Wales in conformity with this decision. 2. By reliance upon an agreed representative sample of LACs and specialist Commands, the Association has, with respect to the general claim, satisfied the requirements of the Arbitrated Case Principle and, in particular, the work value and productivity and efficiency sub-principles. 3. We consider that the Association has satisfied the requirements of the Arbitrated Case Principle and, in particular, the special case and work value sub-principles with respect to the specialist claims made for police prosecutors and experts within the FSG. The new award made in accordance with this decision shall fix a new classification structure for police prosecutors (the width of the definition of that classification remains to be addressed) with appropriate rates of pay and an allowance for expert FSG officers. The specialist claims advanced by the Association are otherwise dismissed. 4. The operative date for any variation in rates of pay arising out of the general claim shall, in accordance with the parties' agreement, be on and from 1 July 2011. The variations to the existing award applicable to police prosecutors and FSG experts shall operate on and from today's date. 5. The parties are directed to confer within two weeks of the date of this decision as to the appropriate form of any award and as to questions of remedy. 6. The parties shall thereafter file and serve submissions as to the matters identified in this conclusion within four weeks (in the case of the Association) and six weeks (in the case of the Commissioner) of the date of this decision. There is liberty to apply with respect to the updating of any financial evidence in the light of this decision. These matters will be listed before the Vice-President for a directions hearing at 9.30 am Monday 14 May 2012. Catchwords: AWARD - application for variation - police officers - exemption from Industrial Relations Public Sector Conditions of Employment Regulation 2011 - Arbitrated Case Principle - application for general salary increase and particular claims for specialist groups - general claim based on work value and productivity sub-principles and reliance placed on economic factors - specialist claims pressed on basis of work value and productivity and efficiency sub-principles, except for police prosecutors, Tactical Operations Unit and Forensic Services Group where special case sub-principle relied upon - two stages to proceedings - first stage general claim and claim for specialist group - first stage restricted to merits of claim not remedy - representative sample for general claim - Statement of Principle underpinning arbitration - general claim - Arbitrated Case Principle - Work Value Principles - datum point - proactive policing - impact of previous agreements and awards - buy out of claims - statistics - crime rates - proactive interventions - relationship crime rates and proactive interventions - historical analysis of proactive policing prior to datum point - OCR - TITUS - intelligence-based policing - targets, business plans, infrastructure, policies and management of proactive policy - conclusion re proactivity before datum point - post-datum point analysis - State Plan - COMPASS - conclusions post-datum point - changes to reactive/proactive mix - moderating factors - analysis of work value and proactivity - work intensification - relationship to work value - whether changes to nature of work linked to intensification - conclusion police proactivity - changes to equipment, infrastructure and technology - changes to legislation, policy and procedures - Duty Officers - training - specialist groups in representative sample - State Crime Command - Professional Standards Command - Marine Area Command - conclusion specialist groups in sample - Work Value Principle satisfied with limitations on degree - productivity and efficiency - relevant principles - productivity and efficiency principles satisfied re general claim - economic factors - principles - finding as to forecasts for inflation and affect on purchasing power of wages - Arbitrated Case Principle satisfied for general claim - remedies await further hearing - specialist claims - threshold issues - industrial and structural considerations - adequacy of 2003 Review re special allowances - threshold issues established - whether exceptions should be allowed based on justice and fairness - police prosecutors - undervaluation found - satisfied special case and work value sub-principle - Forensic Services Group - experts - special case made out for experts - balance of FSG claims refused with recommendation for internal review - Tactical Operations Unit - work value and productivity and efficiency not exceed findings in general claim - claim rejected - recommendation for internal review - balance specialist claims dismissed - directions hearing fixed. AWARD - counter application - application for new award - Commissioner seeks two year duration - 2.5 per cent adjustment per year - no extra claims clause - issue of duration held over for further hearing - new award to be made - directions hearing fixed. Legislation Cited: Crimes (Forensic Procedures) Act 2000 Crimes Legislation Amendment (Police and Public Safety) Act 1998 Industrial Relations Act 1996 Law Enforcement (Powers and Responsibilities) Act 2002 Police Act 1990 Police Amendment (Death and Disability) Act 2011 Police Service Amendment (NSW Police) Act 2002 Cases Cited: Crown Employees (Scientific Officers - Division of Scientific Services, Department of Agriculture) Award [1962] AR 250 Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2004] NSWIRComm 114; (2004) 133 IR 254 Health Employees Pharmacists (State) Award [2003] NSWIRComm 453; (2003) 132 IR 244 Purkess v Crittenden (1965) 114 CLR 164 Re Crown Employees Administrative and Clerical Officers (State) Award (No 2) 1993 52 IR 243 Re Crown Employees (Police Officers - 2009) Award [2011] NSWIRComm 43 Re Dispute - Electricity Commission and Various Unions re Wage Claim (1967) 67 A.R. 435 Re Equal Remuneration Principle [2000] NSWIRComm 113; (2000) 97 IR 177 Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 State Wage Case 2003 [2003] NSWIRComm 174; (2003) 121 IR 446 State Wage Case 2006 (No. 6) [2006] NSWIRComm 204; (2006) 153 IR 268 State Wage Case [2010] NSWIRComm 183; (2010) 201 IR 155 State Wage Case 2010 (No 2) [2011] NSWIRComm 29; (2011) 206 IR 218 Category: Principal judgment Parties: Police Association of New South Wales (Applicant/Cross-Respondent) Commissioner of Police, NSW Police Force (Respondent/Cross-Applicant) Representation: A A Hatcher SC (Applicant/Cross-Respondent) R C Kenzie QC with T J Dixon of counsel (Respondent/Cross-Applicant) Police Association of New South Wales (Applicant/Cross-Respondent) Crown Solicitor's Office (Respondent/Cross-Applicant) File Number(s): IRC 325 of 2011 IRC 1284 of 2011 Publication restriction: ORDERS: 1. I dissolve interim non-publication order made by the Full Bench on 28 March 2012 regarding the decision in Matter Nos IRC 325 and 1284 of 2011. 2. I publish the decision in the Crown Employees (Police Officers - 2009) Award. 3. In publishing that decision I make a further interim non- publication order in respect of paragraphs 478, 734 and 737. In respect of Annexure A of the decision I delete the words "and seniority" that appear in the title to Annexure A. In respect of certain named officers who are referred to in the submission from the respondent Commissioner of Police and Annexure A such officers will be referred to as: i) Inspector H. ii)Sergeant B. iii)Sergeant V. In respect of Annexure C a similar approach will now be adopted in respect of the names of two further officers referred to in Annexure C Footnote 78 and set out in the submission from the respondent. Those officers will be referred to as: i)Inspector H. ii)Sergeant V. INDEX DECISION [1] THE ISSUES: IN GENERAL [11] BACKGROUND TO THE CLAIMS: POLICE FORCE STRUCTURE AND INDUSTRIAL REGULATION [15] THE CLAIMS The Association [25] The Commissioner [30] REFINEMENT OF THE ISSUES AND SUBMISSIONS OF THE PARTIES Grappling with the Issues in the Proceedings [31] The General Claim: Issues Introduction [35] Work Value Changes [38] Productivity and Efficiency [45] Economic Issues: Maintenance of Purchasing Power of Wages [46] Issues re Specialist Groups [50] General Economic and Financial Issues [53] ARBITRATION: FURTHER AGREED REFINEMENTS [54] THE GENERAL CLAIM: CONSIDERATIONS Arbitrated Case Principle [76] Work Value Considerations Principles [78] Introductory Considerations [92] Proactive Policing A Precise of the Parties' Cases [95] Prior Agreements [109] Proactive Policing: Introducing Findings [132] Statistics [142] Crime Rates [144] Crime Rates and Proactive Policing: Contentions Advanced by the Commissioner [157] Proactive Interventions: Contentions Advanced by the Association [170] Historical Analysis of Proactive Policing Prior to Datum Point An Introduction [198] 1996 - 2000 The Wood Royal Commission Reports [204] SCORPIO [211] Reform of the NSW Police Service - Phase I [219] Reform Reports 1996 and 1997 [234] Phase II Report [235] Operation and Crime Review ('OCR') [245] Integrated Crime Management Model ('ICMM') [253] EDW [263] NSW Ombudsman's Report 'Policing Public Safety - November 1999' [265] Suspect Target Management Plan ('STMP') [267] Auditor-General's Report 2000 [268] Phase III Report [289] 1996 - 2000 Conclusions [294] 2001 - 2005 [310] 'Police Weekly' Editions 2001 - 2002 [311] Intelligence Officers Submission 2002 [314] Further Developments in 2002 [315] 2003 Auditor-General's Report [318] Vikings [325] TITUS and the period to 2003 [328] NSW Police Corporate Plan and Review of Intelligence 2004 [342] Conclusions: Pre 2006 Period [358] 2006 to Present [364] COMPASS [385] Conclusions: Post Datum Point [397] Changes to Reactive/Proactive Mix [408] A Further Level of Analysis: Work Value Sub- Principle [417] Moderating Factors [435] Overall Conclusion - Proactive Policing [442] Equipment, Information Systems and Technology [443] Changes to Legislation, Policy and Procedures [451] Duty Officers [454] Customer Service [462] Training [463] Specialist Groups in the Representative Sample [465] State Crime Command [466] Professional Standards Command ('PSC') [483] Marine Area Command [486] Overall Conclusion re the Work Value Sub-Principle [496] PRODUCTIVITY AND EFFICIENCY Productivity and Efficiency Considerations Introduction [498] Principles [510] Consideration: Productivity and Efficiency Sub-Principle [514] ECONOMIC FACTORS Principles [535] Economic Conclusion [547] GENERAL CLAIM: CONCLUSIONS [569] SPECIALIST CLAIMS Submissions [571] Datum Point [604] (No) Benchmark [607] Structural Arguments [611] Double Count and Windfall Issues Double Count [623] Windfall [625] Submissions as to Particular Claims [627] Considerations: Overarching Issues Concerning Specialist Claims [628] Specialist Groups other than Police Prosecutors, TOU and FSG: Work Value and Productivity and Efficiency Sub-Principles [641] Police Prosecutors, FSG and TOU - Special Case Sub-Principle Police Prosecutors [650] Forensic Services Group ('FSG') [674] Experts [689] Non Expert FSG Officers [710] Tactical Operations Unit [721] CONCLUSION [741] ANNEXURE A ANNEXURE B ANNEXURE C decision 1The closing decade of the twentieth century and the first decade of the twenty-first century witnessed profound changes to the NSW Police Force (the successor to, respectively, the NSW Police Service and NSW Police). The changes constituted a "radical institutional reform" and "significant structural reform" resulting in a seismic shift in the focus, culture, policy and structure of policing in this State. At the heart of the reforms lay the objectives of repairing "the breach of trust between the service and the community" (see Reform of NSW Police Service: Implementation Status Report 1997) and improving the efficacy and efficiency of police officers in the reduction of crime and the maintenance of a safe environment for the citizens of New South Wales. 2The genesis of the reforms was the reports and recommendations of the Royal Commission into the NSW Police Force, and reforms instigated by the then Commissioner of Police, Mr Peter Ryan, after his appointment on 30 August 1996. The Royal Commission published three reports: the first of two interim reports in February 1996, the second in November 1996 (known as the 'Immediate Measures Report') and a final, six volume report in May 1997. Commissioner Ryan published a report entitled 'Reform of the New South Wales Police Service - Phase I' on 19 November 1996 and a further report entitled "Reform of the New South Wales Police Service, The Next Phase" in January 1998 ("the Phase II Report"). 3An earlier consequence of the reforms was the flattening of the police structure. The reforms had the effect of creating more frontline policing positions, and established a fundamental element of the current structure of the NSW Police Force, namely: Local Area Commands ('LACs') (80 LACs were created in July 1997 which account for every police station in New South Wales). The core focus of policing in this State was shifted to "frontline policing" and deployments based on intelligence. New systems of management, accountability and technology emerged. 4Another important feature of the reforms was the emergence, development, implementation and enhancement of a policy model and policing practice known as 'proactive policing'. That concept was attributed many meanings in these proceedings but, essentially, involved, in its later developed and refined form, police being engaged in a targeted and intelligence-based deployment, not deriving from calls from the public, in order to interfere with the criminal element. This was in contrast to reactive policing by which officers responded to particular calls from the community. The history of the development of proactive policing and its consequence for policing in this State and the work of police officers was central to the debate between the parties to these proceedings and, in particular, the resolution of the question as to whether the Police Association of NSW ("the Association") had successfully prosecuted an application for a general increase in wages. The resolution of that debate will occupy a great amount of this decision. 5It is clear from the evidence in these proceedings that the reform process and its evolution brought about enormous improvements in the performance and accountability of the NSW Police Force. 6The NSW Police Force is required to, as its central mission, work with the community to reduce violence, crime and fear (s 6(1) of the Police Act 1990 ("the Act")). It follows that the core function of the NSW Police Force is the detection and apprehension of criminal offenders and the prevention or reduction of the incidence of crime. Data produced by the NSW Bureau of Crime Statistics and Research and crime incident data held by the Commissioner of Police in what is known as the "Enterprise Data Warehouse", exhibited in these proceedings, demonstrated that there has been a significant and continuing reduction in the rates of crime for the whole range of crime categories (whether on a per capita basis or otherwise) since 2000 (except for sexual assault, which only demonstrated some decline from about 2006). 7Whilst there may be reasonable grounds for debate about the causes of the reduction in crime rates (resulting, for example, from socio-economic and other factors) there can be no doubting, on the evidence in these proceedings, the correlation between the reforms and the overall reduction in the rate of crime and, therefore, the fulfilment by the NSW Police Force of its primary objective for the community of New South Wales. Nor can there be any doubt that from the commencement of the reforms proactive policing, as a particular stratagem or policy, has played a significant role in driving and keeping crime down. 8When measured in terms of broader notions of performance or public sector performance (or, to the extent adaptable to these purposes, more specific notions of productivity and efficiency in an economic sense), it is clear that, on the evidence in these proceedings, notwithstanding a rise in the number of police officers since the commencement of the reforms (and particularly since 2000), there has been a significant improvement in the productivity, performance and efficiency of the NSW Police Force, as an organisation, when measured against these core goals. 9After an extensive review of policing in this State, drawn from the evidence of 68 witnesses ranging from the rank of Assistant Commissioner to Constable (a list of witnesses in descending order of ranked seniority appears in Annexure A to this decision) in 11 LACs (Eastern Beaches, North Shore, Mount Druitt, Central Hunter, Oxley, Canobolas, Liverpool, Bankstown, Lake Illawarra, Wollongong and Goulburn) in six Regions (Central Metropolitan, North-West Metropolitan, Northern, Western, South-West Metropolitan and Southern) and specialist Commands, extensive documentary evidence (163 exhibits) and submissions and inspections conducted of LACs and specialist groups in metropolitan and regional areas, we have formed the strong view, consistent with the aforementioned analysis of the evidence, that the NSW Police Force is performing, objectively speaking, to standards of excellence. 10However, that background, and those conclusions, cannot, of themselves (having regard to the debate between the industrial parties in these proceedings) comprise a proper basis to grant (in part or whole) the application brought by the Association (constituting, as it does, claims for, as we have noted, a general wage increase and specific wage increases for specialist groups) unless there is demonstrated satisfaction of the requirements of the Wage Fixing Principles as stipulated in the State Wage Case 2010 (No 2) [2011] NSWIRComm 29; (2011) 206 IR 218 ("State Wage Case 2010 (No 2)"), and, ultimately, the requirements of the Industrial Relations Act 1996 ("the IR Act"). Nor, for that matter, would those circumstances necessarily result in a rejection of the counter-application brought by the NSW Commissioner of Police ("the Commissioner"). The Issues : In General 11Neither of the parties to these proceedings have sought to deny the fundamental changes brought about by the reform process commencing shortly before the turn of the century or the significant implications for the NSW Police Force and its workforce deriving from those changes, extending to the date of this decision. Rather, the issues arising from the respective applications in these proceedings, as framed by the defence of the primary application by the Commissioner, concerned, in broad terms, whether the work, duties and responsibilities of police officers after the datum point for the measurement of work value changes or improvements in productivity and efficiency (that is, after 1 July 2005) warranted the grant, in whole or in part, of the Association's application, having regard to the strictures of the aforementioned Wage Fixing Principles. 12Laying at the centre of this issue was not whether there had occurred substantial changes and improvements to the work value of police officers arising from the reforms (which were then reflected in the current work, duties and responsibilities of such officers) but, rather, whether those changes, or the factors giving rise to them, had already been taken into account and compensated in prior agreements or awards or had occurred or substantially occurred prior to or by the datum point, such that the later changes were a mere reflection, evolution or, at best, extension of the reforms as introduced prior to 2005. A related question was whether the Association had proved that, from the requisite time, police officers had contributed to the improvements in productivity and efficiency and, in particular, in that respect, the reduction in crime rates which had been experienced by the organisation and the community. 13The framing of the contest in this way adds to the conclusion that these proceedings are somewhat unusual. That conclusion is enhanced by two other considerations. First, these proceedings exist as an exception to limitations otherwise applying to public sector employees as a result of the passage of s 146C of the IR Act and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 ("the Regulation") (the exception being found in reg 10). Police are the sole group of public sector employees whose claims (as manifested in the current applications) are amenable to the arbitral provisions of the IR Act for general wage claims. Secondly, the proceedings are extraordinarily large, even by comparison with previous substantial public sector wage case proceedings. 14It is, therefore, appropriate, after a brief digression into the background to and content of claims being advanced, to spend some further time early in this decision, specifying and refining the issues arising in the proceedings. Background to the Claims : Police Force Structure and Industrial Regulation 15The NSW Police Force was established by the Act and consists of 15,985 sworn police officers (having taken an oath pursuant to s 13 of the Act). By s 12 of the Act, those police officers hold ranks which, in descending order, consist of Commissioner, Deputy Commissioner, Assistant Commissioner, Superintendent, Inspector, Sergeant and Constable. 16Clause 5 of the Police Regulation 2008 provides for grades within those ranks. In descending order, they are: (a)Superintendents - chief superintendent and superintendent; (b)Inspectors - chief inspector and inspector; (c)Sergeants - senior sergeant and sergeant; and (d)Constables - senior constable and constable. 17There is also a position of Leading Senior Constable, which is not a designated rank under the Regulation but a position developed as part of an agreement between the Commissioner and the Association. 18The NSW Police Force is broadly grouped into three areas of operation: field, specialist and corporate, each of which is headed by a Deputy Commissioner. Field operations concentrate primarily on operating a general duties policing service to the community of New South Wales ('General Duties police officers'), and are divided into six regional Commands and 80 LACs. The Specialist Operations Command provides specialist expertise to complement the local police service in key areas such as technical, forensic, scientific, electrical, legal, marine, aviation, surveillance, communications and undercover expertise. 19The award applicable to police officers is known as the Crown Employees (Police Officers - 2009) Award ("the award"). It provides salaries, in separate tables, for three classes of police officer: Non-Commissioned Officers (Other than Detectives), Detectives and Commissioned Officers. 20Salaries are fixed under the award by reference to the rank of the police officer, excepting for the position of Detective. Thus, the Non-Commissioned Officers have a salary scale ranging from Probationary Constable to Senior Sergeant. (There are incremental scales for each such classification/rank.) Commissioned Officers range from Inspector to Superintendent (again, with incremental steps for each rank). In contrast, the Detective salary scale ranged from a generic classification of Detective (1st Year to 10th Year) to, in the higher classifications, a rank classification structure ranging from Detective Sergeant 1st Year to Detective Senior Sergeant 4th Year. 21Grades within the ranks of Superintendent and Inspector do not appear in the award salary scale as a result of an agreement reached between the parties in 2005. 22The monetary rate schedule is also applicable to specialist officers, although such officers also receive what is described in the award as "a Special Duties Allowance" ('SDA'). There are four SDA grades. Without fully describing them presently, the following might be noted: 1.Grade 1 includes "Highway Patrol Officer, Local Area Commands and Traffic Services". 2.Grade 2 includes "Engineering Investigator, Engineering Investigation Unit, Forensic Services Group" ('FSG') and "Incident Reconstruction Operative, FSG". 3.Grade 3 includes "Operative, Tactical Operations Unit, State Protection Group ('SPG') and Crime Scene Examiner, Forensic Services Group"; "Crime Scene Examiner", FSG; "Document Examiner" FSG; "Finger Print Technician, FSG" and "Firearms/Ballistics Examiner, FSG". 4.Grade 4 is restricted to "Prosecutors, Legal Services". 23The rates of pay of police officers are, therefore, determined by rank and special allowances. There are also other loadings which do not require specification for present purposes. 24By decision of the present Full Bench, the rates of pay of police officers under the award were adjusted by 2.5 per cent: Crown Employees (Police Officers - 2011) Interim Award ("the interim award"). In the result, the loaded base salary for a 5th Year Constable is $66,966. If that same officer attracted a Grade 4 SDA and had five years' experience (and was in plain clothes), the annual rate would be $74,818. A Sergeant 5th Year receives a total loaded base salary of $94,869. If the same Sergeant was in receipt of an SDA Grade 4 with five years' experience and working in plain clothes, he/she would receive $102,721. The Claims The Association 25By its application, the Association sought variations to the award. 26There were three broad categories to the Association's claim. These were as follows: (a)A claim for increased salaries and salary-related allowances for police officers generally by the amount of 5 per cent per annum over a three year period (the Association sought that movements in salaries would operate from 1 July 2011, 1 July 2012 and 1 July 2013 respectively) (Category 1); (b)A number of claims for increased remuneration in the form of allowances (and in one case an altered salary structure) for particular groups of officers (some of whom are already in receipt of such allowances, some of whom are not) (Category 2); and (c)A number of claims for variations in relation to conditions of employment, some that apply generally, and others that only apply to Commissioned police officers (Category 3). 27The proceedings were conducted, by agreement, in two separate stages. In Stage 1, the Commission will determine the first two categories of claim. 28By elaboration as to the composition of Categories 1 and 2, Stage 1 will thereby require a determination of the following claims for variation sought in the Association's application: (a)the general claim described above for salary and salary-related allowances; (b)the insertion of a new and discrete salary structure for Police Prosecutors based on the current detectives' salary structure; (c)the insertion of a new and enhanced skill-based allowances structure for officers in the Tactical Operations Unit ('TOU'); (d)the making of a provision for the following categories of officers in the SDA (at a grade determined by the Commission): (i)Education and Development Officers; (ii)Intelligence Officers; (iii)Operational Support Group Officers; and (iv)Licensing Officers. (e)the increase of the grade of SDA paid to the following categories of officers: (i)Teacher, Operational Safety Trainer, Weapons Instructor Part-Time, Local Area Commands - from current Grade 1 to Grade 2; (ii)Teacher, Operational Safety Trainer, Operational Safety and Defensive Tactics ('OSTU'), Westmead, Goulburn and Regions - from current Grade 2 to Grade 3; (iii)Highway Patrol Officers - from current Grade 1 to Grade 2; and (iv)Forensic Services Group ('FSG') Officers: those Officers who are currently Grade 2 would receive Grade 3, and those on current Grade 3 would receive Grade 4. (f)the establishment of a new allowance for FSG Officers qualified as an expert witness and able to give evidence. 29Subject to one matter (described in para [55] below), this decision concerns Stage 1 applications and residual matters arising from the cross application discussed below. The Commissioner 30The Commissioner sought the making of a new award with a two year duration commencing from 1 July 2011. The Commissioner sought, by the proposed award, the maintenance of a 2.5 per cent salary increase for each year of operation of the award, together with a 'no extra claims' provision. He opposed the claim for specialist officers outright. Other than the making of a new award, per se, and, as earlier mentioned, the making of an interim award for a 2.5 per cent safety adjustment, those elements of the counter-application were resisted by the Association (in particular, the Association pressed for the making of a three year award). Refinement of the Issues and Submissions of the Parties Grappling with the Issues in the Proceedings 31The parties filed final written submissions consisting of some 640 pages (including Executive Summaries). Each was substantially footnoted. To this may be added supplementary written submissions as to particular contentions or replies, and various aides to the submissions such as chronologies. 32Upon receipt of these submissions, the Commission issued a direction in the following terms: By the commencement of oral argument, each party must provide the Commission and the other party an outline of the propositions that the party intends to advance in oral argument: (a) of no more than 10 pages; (b) stated sequentially; and (c) related to the written submission filed for the party and encapsulating the case of the party.' 33That synthesis of the parties' cases was received by the commencement of oral submissions (which proceeded over four days). 34In these circumstances, it is neither viable nor appropriate to provide a summary of the submissions in this decision. Rather, we have decided to provide an outline of the issues which will crystallise the nature and content of the contest over the respective applications. This is supplemented by annexing the short form of the submissions of the parties. We have attached to this decision as Annexure B the submission filed by the Association in response to our direction. The Association's originally filed final written submission, which consisted of 461 pages, included an Executive Summary of two and a half pages. This was the primary reason for the issuing of our direction. The Executive Summary provided by the Commissioner was adequate (and largely replicated in its submission filed in response to our direction). It shall be attached and marked Annexure C. The General Claim : Issues Introduction 35The Association did not differentiate, in its submission in support of the general claim, between factors relied upon under the work value or productivity and efficiency components of the Arbitrated Case Principle. The Commissioner made discreet submissions on work value and productivity factors. 36Even though the Association relied, in an overall sense, on the Arbitrated Case Principle, which is permissive of claims based both on work value and productivity and efficiency considerations, and, there is no doubt an overlap between factors relied upon in the work value and productivity elements of the Association's claims, we do not consider that approach to be particularly helpful. This is primarily because the respective elements of the Arbitrated Case Principle "work value" and "productivity and efficiency", must ultimately be determined as quite discreet matters. The satisfaction of the respective elements concern quite different factors, even though they may overlap to some degree. Nothing in Principle 8.5.2 alters this conclusion. The reference to "a cumulation" in that sub-principle concerns, in our view, circumstances where more than one head of the considerations or criteria referred to in the Principle may be brought to account in determining an application in arbitrated proceedings. This cumulative approach may only properly occur, however, where the criteria for each such consideration (sought to be added to the overall arbitrated case) has been satisfied. 37We have, therefore, set out an outline of issues in relation to the general claim by reference to the issues arising under each component of the Arbitrated Case Principle. Accordingly, we have in doing so, as best we can, dissected the Association's submissions. Work Value Changes 38An issue of principle arose in relation to work value. The question which arose, in this respect, was whether or not the special case sub-principle may operate in such a way as to permit work value considerations to be taken into account, notwithstanding the fact that those considerations may offend the restrictions contained within the work value sub-principle itself. In particular, the question was whether the special case sub-principle might have the effect of overriding, in a particular case, any requirement for a datum point (or factors associated with a datum point, such as the earlier buying out of particular work value or productivity changes). 39However, the primary question raised, in this respect, was whether the Association had established that the changes in work value it relied upon, since a datum point of 1 July 2005, were not, in substance, introduced before that date, and/or the subject of agreements and awards fully compensating for such changes (such that the changes had been bought out). 40The Commissioner of Police accepted that there had been "massive changes" in work value since 1996, but contended that changes in work value since 2005 were mere variants on changes that had already occurred by the datum point and did not amount to a significant increase in work value "over the police officer who was valued in 2005". 41The Association contended that the changes after the datum point were not caught by prior agreement or determination and, even though evolutionary in nature (and, in many cases, having commenced, in some form, prior to the datum point), they were significant and satisfied the work value sub-principle. 42These issues may be illustrated by reference to the major plank of the Association's work value case, namely, proactive policing. Both parties agreed that proactive policing had been a feature of policing over a considerable period of time and had become a major feature of the changes introduced after the reforms of the NSW Police Service from 1996. However, the Commissioner contended that proactive policing had been introduced substantially, and "to the greatest extent possible" by the datum point, whereas the Association contended that proactive policing was, by that time, less than fully developed and that a fundamental change to the work of LAC-based policing since that date had been the "integration" or "embedding" of targeted proactive policing into the daily work and management of LAC-based police officers. 43Similar issues were raised with respect to the Association's reliance on technological and legislative changes, except that, in at least one respect, the Commissioner contended that the changes relied upon by the Association were wholly accommodated by earlier agreements or the clause of an award. It was contended that the introduction of the Law Enforcement (Powers and Responsibilities) Act 2002 ('LEPRA') stemmed directly from matters contemplated or introduced by the Wood Royal Commission, or as part of the reform of the NSW Police Service undertaken by Commissioner Ryan (which considerations were wholly taken into account and paid for by those agreements). 44Alternatively, the Commissioner submitted that, to the extent the Commission found the existence of work value changes of the requisite kind within the set of factors identified by the Association, the significance of the changes (or their significance for wage adjustments) should be greatly moderated (or averaged) having regard to the following features: 1.The changes were not new in that they were features of general policing well before 2005; 2.Changes relating to proactivity were essentially matters that had affected the mix of General Duties police officers' duties as between proactive and reactive work (noting the further contention that there was no innate aspect of proactive work which made it more difficult, time consuming or challenging than reactive work); 3.The changes must be considered in the context that reactive work is prioritised and, generally by its nature, proactive policing is less complex and time consuming than reactive policing; 4.The changes had not occurred either uniformly or at the same time throughout the service; and 5.The changes did not occur to any extent, or at all, in relation to some areas of the service (including specialist areas the subject of a representative sample or featured as a part of the Association's specialist claim). Productivity and Efficiency 45The contest between the parties as to the application of the productivity and efficiency sub-principle in relation to the general claim can be reduced to the following issues: 1.Whether the Police Association has discharged the onus to prove that the efforts of police officers themselves had produced productivity and efficiency improvements of the kind contemplated by the productivity and efficiency sub-principle over the relevant period (namely, from 1 July 2005). 2.An extension to this issue is whether the productivity and efficiency sub-principle permits employees who have contributed overall to productivity and efficiency gains in an organisation to receive salary adjustments, even though their tasks have, fundamentally, not changed over the period in which the productivity assessment is made. In short, if productivity improvements after 2005 (which were not disputed) were merely reflective, in an ongoing sense, of those which had occurred (and were compensated) prior to 2005, and the employees made no additional contribution (other than those made before 2005), the Commissioner contended the principle did not operate so as to warrant an improvement in rates of pay. 3.A further and related question was whether a fall in crime rates since 2005 (reflecting a gain in productivity and efficiency) may be attributable, having regard to the issue raised in (2) above to the contribution of police officers within the organisation, as opposed to other factors such as changes in socio-economic conditions, an increase in the number of police officers, a decrease in the number of juveniles between the ages of 14 and 24 (being the demographic responsible for the highest per capita proportion for crime) and the introduction of anti-theft technology and equipment (such as is found in motor vehicles). The Commissioner also pointed to changes in the nature of crime (such as a reduction in cheque fraud) and the contribution of legislation to the reduction in crime, and technological and management initiatives (such as the Police Assistance Line ('PAL')) which had freed officers from certain tasks allowing them to perform their primary function as sworn officers to engage with the "criminal element" or "facilitated work" (reference was also made to equivalent crime rates in other States). Economic Issues : Maintenance of Purchasing Power of Wages 46The third and last issue arising in relation to the general claim is whether it could be justified on general economic grounds. 47There were two subsidiary issues in this respect. The first issue concerned the application of the special case sub-principle, namely: whether the Association may establish the general claim, on economic principles alone (independently of the work value or productivity and efficiency sub-principles) by reliance upon the special case sub-principle. The issue concerned whether the general claim might be sustained upon the basis of the need to retain the purchasing power of wages, even though the case based on work value and productivity had failed. 48The second issue, in this respect, concerned whether or not, based upon the economic evidence in the proceedings, an adjustment in wages higher than the interim increase of 2.5 per cent could be justified on economic grounds. Thus, the issue was whether, on economic grounds, a case may be sustained for a wage increase above the mid point of the Reserve Bank of Australia's ("the RBA") target range of two to three per cent inflation over time. (There was also a related issue as to the method of undertaking such an economic assessment and, in particular, what should constitute the starting point for such an assessment.) 49This question brought in a related consideration as to whether weight should be attached to the Government's Wages Policy which was said to be consistent with a conclusion that real wages could be maintained by wage adjustments made consistently with the mid point of the RBA range. The Association contended that the wages policy is now exclusively and expressly governed by the Regulation. As these proceedings are exempt from the Regulation (reg 10), no question of Government Wages Policy properly arises. Issues re Specialist Groups 50The issues concerning specialist claims may be divided into two categories, the first concerning various threshold arguments raised by the Commissioner and the second concerning the merits of the respective specialist claims. 51In summary, the threshold issues are as follows: 1.Whether the datum point for the assessment of work value changes and productivity adjustments should be the year 2003 (or earlier to the date of the last structural efficiency adjustment) or 1 July 2005. The Commissioner contended that a finding as to the later datum point must result in a conclusion that the Association's case for specialists must fail, as the evidence of putative changes led by the Association relating to the earlier date (2003) is, therefore, either irrelevant or insignificant. 2.A related issue raised by the Association, but not treated as a threshold matter, is whether the present compensatory system for the performance of special duties, in the form of SDAs, is inconsistent with prior agreements or commitments to reform that system by the parties. 3.A further related consideration (again, not raised as a threshold issue) is whether some specialist groups, namely, police prosecutors, the TOU and the FSG have not been the subject of a work value assessment, and should, therefore, be treated as being, in terms of their rates of pay, subject to an historic or inherent undervaluation (which should be addressed through the special case sub-principle). 4.In relation to variations sought to the SDA, the Commissioner contended that, in order to sustain the claim, the Association was required to produce evidence as to a benchmark, being a Senior Constable with 12 months' experience at that rank and six years' service. It was contended there was an absence of evidence about the benchmark and its relationship to the specialist groups, the subject of the claim. In consequence, the Commissioner contended that there was a failure to deal with the disturbance of existing relativities which were established under the existing SDA structure inter se as between all of the groups receiving SDA. This failure was said to require the dismissal of the specialist claims as a threshold matter. 5.The further issue raised by the Commissioner was whether, as a structural consideration, there should be a departure from a system of SDAs to compensate specialist police. The question raised, in this respect, was whether the departure from the existing, agreed structure would create structural difficulties in which only certain, select groups of specialist police officers would be the subject of consideration and compensation (and that no further consideration was available for other specialist groups because of the terms of the Regulation). In broad terms, the Commissioner questioned whether a departure from the SDA would create an inappropriate compensatory structure for specialist police in the NSW Police Force. 6.Finally, the Commissioner contended that the granting of the specialist claim would result in double counting or a windfall for some groups of police officers. In the first case, the issue raised was whether the claim relied upon factors which were already taken into account in the satisfaction of the general claim. In the latter consideration, the Commissioner contended that some specialist groups performed very few or none of the functions which were sought to be relied upon to sustain the general claim. 52As to the merits of the claim for specialists, the essential question raised was whether there had been established a case to alter or increase the existing allowance structure or create new classification structures for specialist groups having regard to the work value and productivity and efficiency components of the Wage Fixing Principles, and, in the case of arguments concerning undervaluation, the special case sub-principle. A further question, and one related to the threshold issues, was whether there is a proper basis to make an assessment as to these specialist claims when the Commission had not had the advantage of assessing all other specialist groups in the NSW Police Force. This, in turn, raised a related issue as to whether the granting of the Association's claims would produce anomalous results. General Economic and Financial Issues 53There were overarching considerations going to the requirements of s 146(2) of the IR Act. Both parties agreed that this provision had to be given effect to, notwithstanding the passage of s 146C of the IR Act, the Regulation and the Police Amendment (Death and Disability) Act 2011 . In this context there were a number of issues raised, as follows: 1.Whether the claim should be granted having regard to its economic and, in particular, financial consequences (it being contended that the grant of any wage increase above the 2.5 per cent already awarded by the Commission would "drive the surplus budget into deficit"). 2.Whilst there was an issue as to the relevance of the consideration, whether the grant of the claim would result in police in New South Wales receiving a more generous wage outcome than other major public sector groups in that State. 3.Again, with the question of relevance arising, whether the claim should be refused because it would result in the average cost of employing police officers in New South Wales being significantly higher than other Australian jurisdictions. Arbitration : Further Agreed Refinements 54Stage 1 of the Association's application and the counter-application by the Commissioner fell for adjudication, then, broadly within the scope of those issues. However, before resolving those issues, some other refinements or limitations to the arbitration require stipulation. 55First, by agreement of the parties, this decision shall address the merits of those applications but shall not deal with remedies, if any are applicable. 56Secondly, the Association conceded that it would be appropriate to make a new award in resolution of the applications, although the duration of that award remained in dispute. 57Thirdly, the parties agreed that the Category 1 claims would, apart from overarching evidence, proceed by reference to a number of specific areas of the NSW Police Force which, for evidentiary purposes, would be taken as a representative sample of the NSW Police Force as a whole. The representative sample was as follows: Areas Local Area Commands Field Operations Central Metropolitan Region Eastern Beaches LAC North West Metropolitan Region North Shore LAC Mount Druitt LAC Northern Region Central Hunter LAC Western Region Oxley LAC Canobolas LAC South West Metropolitan Region Liverpool LAC Bankstown LAC Lake Illawarra LAC Southern Region Wollongong LAC Goulburn LAC Specialist Areas State Crime Command Marine Area Command Professional Standards Command 58Fourthly, following conciliation conferences held after the lodgement of the counter-application, the parties reached a further agreement in relation to two matters: (a)A Statement of Principle that outlined how the evidence in relation to the Category 1 and 2 claims ought be dealt with in the proceedings; and (b)The making of an interim award that provided a 2.5 per cent increase to salaries and salary related allowances, payable from the first full pay period after 1 July 2011, subject to certain terms of agreement. 59As to the second matter, and as earlier mentioned, the interim award was made on 8 August 2011. It was underpinned by a Terms of Agreement which provided for the following: (a)The operative date of any substantive new award made in the proceedings shall be 1 July 2011, with the proviso that: (i)increases awarded to any specialist group are to be payable from the date the IRC makes its decision in relation to such specialist group; and (ii)the agreement as to operative date would not affect the end date of the new award. (b)The 2.5 per cent interim increase (now reflected in the interim award) was to be offset against the first year of any increase award by the Full Bench in the Category 1 claims (noting the limitation otherwise outlined in exhibit 8 paragraph 3(ii)). (c)The Association agreed to the inclusion of a no extra claims clause (in both the interim award and any substantive award made in the proceedings), in the form of the no extra claims commitment sought in cl 2.2 of the counter application, namely: "The parties agree that, during the term of this award there will be no extra wage claims, claims for improved conditions of employment or demands made with respect to the employees covered by the award and, further, that no proceedings, claims or demands concerning wages or conditions of employment with respect to those employees will be instituted before the Industrial Relations Commission or any other industrial tribunal. The terms of the preceding paragraph do not prevent the parties from taking any proceedings with respect to the interpretation, application or enforcement of existing award provisions." (d)The interim award was made in terms of exhibit 9 in the proceedings (as amended on transcript in relation to cl 2.2), to operate on and from the first full pay period on or after 1 July 2011. 60Returning to the first element of the further agreement, the Statement of Principle (which became exhibit 7 in the proceedings) was in the following terms: 1.With respect to the Category 1 claims, all Commissioned and Non-Commissioned police officers (including those subject to Category 2 claims) shall receive such general increases in salary and salary related allowances as determined by the Full Bench by reference to the overarching evidence and the agreed evidentiary sample; 2.The Category 2 claims will be advanced and determined on the basis of evidence discrete from that applicable to the Category 1 claims; and 3.In the determination of the Category 2 claims for improvements in remuneration in excess of the general increases referred to in (1) above, there shall be no double counting. 61Some issues relating to the Statement of Principle emerged during the final submissions. 62The Association accepted that there were differences, having regard to the factors relied upon to support its work value case, in LACs appearing in the sample, and the three sampled specialist Commands. It submitted that the differences, in this respect, would have a minor impact upon "weighting" or "averaging", because 80 per cent of the total police officer work force were "LAC-based police officers". 63However, the Association contended that there was a uniformity of circumstances (including change) between the sampled LACs. It was also contended that the specialist Commands in the sample exhibited changes of the same "degree" as changes to the work of police officers in the LACs, albeit of a different character. 64Whilst maintaining his acceptance of the Statement of Principle and the resolution of the general claim based upon a representative sample, the Commissioner was at variance with some aspects of these contentions. In terms of proactivity, it was submitted that that method of work was not experienced generally throughout the cohort of persons who would be in receipt of any general increase in salary. In this respect, the Commissioner submitted, first, that the Commission should not only have regard to the conceded differences between LACs and specialist Commands in the sample, but should accept that there were significant differences (in terms of the factors relied upon by the Association in its general claim) between the LACs themselves. Secondly, it was contended that the Commission's inquiry as to relevant differences should not be confined to the specialist Commands featured in the sample, but should extend to all specialist Commands examined by the Commission in the proceedings (that is, those Commands examined as part of the specialist claim). 65The first of these contentions may await a closer examination of work value changes. However, the second issue raised by the Commissioner goes to the terms of the parties' agreement, per se, and the principles underlying the adjudication of the general claim. It should, therefore, be dealt with at this juncture. 66Mr R C Kenzie QC, who appeared for the Commissioner with Mr T J Dixon of counsel, contended that the Commission should have regard to the fact that specialist police, other than those the subject of the sample, did not experience proactivity (or changes in proactivity) to any significant degree and that this fact should resonate in the determination of the general claim (and not just the assessment of the Category 2 claims concerning specialist areas). This was disputed by Mr A A Hatcher SC, who appeared for the Association. 67In support of the contention, Mr Kenzie relied upon submissions which were made on behalf of the Commissioner at the point of tender of the Statement of Principle. That submission was in the following terms: KENZIE: In relation to exhibit 7, Mr Howell has identified the categories referred to in the statement of principles. It may be unnecessary to add this, but during the course of the conciliation the Commission was anxious to emphasise that the acceptance of the statement of principles did not, and was not designed to preclude any argument based upon the fact that the groups to be looked at in relation to category 1 were different groups representative sample different groups within the Police Force and that as our contentions were foreshadow, we would want to make submissions about the affect of those groups being groups of different people. So that the approach that the Commission will be asked to apply in relation to category 1 will be to fix a proper rate of pay or increase to the rate of pay appropriate to the collection of those groups and that will require the Commission, obviously, to consider the impact of the evidence that is called in relation to the representative groups, as applying across the groups, and to form some general the word "average" has been used general view about the impact of that evidence on those groups. It's probably axiomatic and probably didn't need to be said and perhaps the reference to averaging is more inclined to confuse than to eliminate. We wanted to make it clear, and we do in our contentions, that you have to take an overall look at the groups in category 1 and form the view that the principles and the like in relation to the evidence of that groups. That will necessarily involve looking at if you call it averaging or call it an overall view, that is inevitable. This isn't intended to effect that argument. It's probably obvious, your Honours, but we had made it clear during the conciliation I wasn't there but I'm told that that was sought to be made clear. If it needed to be made clear, we wish to say that on transcript. 68In accordance with long established practice with applications of the kind presently before the Commission, the parties reached an agreement to have the general claim assessed upon an evidentiary sample (as well as overarching evidence). That sample contained a cross section of LACs and designated specialist Commands. Consistent with that agreement, the determination of the general claim is, in our view, to be made within the 'four walls' of that sample. 69We do not consider the terms of the Statement of Principle are amenable to the interpretation proposed by the Commissioner. We accept that, in proceedings such as these, such an approach may give way to some conditions or 'gloss' put upon the written agreement by counsel at the point of its receipt. However, we do not consider the aforementioned submission had that effect. 70Accordingly, we will confine our conclusions as to the general claim, upon evidence as to LACs and specialist Commands in the sample (and any overarching evidence relevant to the question). 71It is true that, by this approach, some categories of employees, particularly those in specialist Commands, may benefit from the award of a general wage increase even though they have not participated, to the same degree or at all, in the changes experienced in the LACs. (We will find that is the case with two of the sampled specialist groups: State Crime Command and Professional Standards Command.) However, on the approach taken by the parties in their respective cases, the resolution of wage outcomes based upon those variances will not be accommodated by differential outcomes between groups or classes of general and specialist employees, but by a process of "weighing" the elements of the work value case so as to produce, if the Association is successful in its application, an "averaged" outcome overall. In terms of the issue raised by Mr Kenzie, this approach will entail, in part, treating the specialist groups in the sample as representative of all classes of specialist police officers. 72That consideration gives rise to a question about the resolution of Category 2 claims. Plainly, the factors giving rise to any satisfaction of the general claim may not be counted in the assessment of specialist claims. Nor, in our view, should the specialist claims be assessed in such a way that the outcome of the Category 1 claim becomes the starting point for the assessment of those claims. 73In responding to a question raised by the Full Bench, Mr Kenzie submitted that the resolution of the Category 2 claims should not be undertaken by solely assessing those applications under the Wage Fixing Principles from a 'zero' starting point. It was submitted that "if you have clear evidence that shows a specialist group is lacking in the characteristics ... underpinning the basis for the general claim then that cannot be ignored when considering whether those groups are special for the purposes of deciding their role". The Commissioner did not submit that these groups should not "share" in the outcome of the general claim but that attention should be paid to the fact that specialist groups may not have the same characteristics which give rise to the satisfaction of any general claim. Hence, it is appropriate to have a 'zero' starting point, but the Commission, it was contended, also needed to take into account, in assessing the specialist claims, whether there was an absence of features found in resolution of the general claim. Mr Kenzie did concede, however, that this argument would be neutralised if the Commission took the view that any wage increase arising from the satisfaction of the general claim were to be discounted as a result of specialist groups not exhibiting the same features of work which satisfied the work value or productivity and efficiency sub-principles for General Duty police officers in LACs (the very approach we have preferred above). 74In our view, in order to avoid double counting, it is necessary to assess the outcome of the application for specialist claims, by assessing those applications (having regard to the Wage Fixing Principles) from a 'zero' starting point. Thus, if a specialist Command, the subject of an application, received any increase in wage rates arising from a grant of the general claim and had undergone or experienced little of the changes which were found to warrant the grant of the general claim, then, in our view, any claim for that specialist group should not be granted unless they exhibited work value (or productivity and efficiency changes) to such a degree as to exceed those taken into account for the general claim and/or the specialist group satisfied the special case sub-principle because of some features which made the claim for that group out of the ordinary. 75As to the further submissions made by Mr Kenzie in relation to a starting point, we accept that it would be necessary to have regard, in assessing a claim for a specialist group, to the absence of factors which were taken into account when establishing the general claim, unless the absence of those features for the specialist groups had been taken into account, as we mentioned above, as a factor warranting a discount in any wage increase arising out of a successful prosecution of the general claim. The General Claim : Considerations Arbitrated Case Principle 76The Arbitrated Case Principle was established for the first time in the State Wage Case 2010 (No 2). It provides that any claims for increases in wages, other than those allowed elsewhere in the principles, will be processed as an arbitrated case before a Full Bench of the Commission (unless otherwise allocated). This is such a case. 77The Arbitrated Case Principle provides that, in determining an application pursuant to the principle, the Commission is to have regard to particular criteria, namely: work value considerations (sub-principle 8.2), productivity and efficiency considerations (sub-principle 8.3) and special case considerations (sub-principle 8.4). Sub-principle 8.5.2 provides that there shall be no double counting, although an arbitrated case claim may rely upon an accumulation of such factors or criteria. We agree with the submission of the Association that "this means that an aggregate salaries outcome under the Arbitrated Principle may be obtained through a multi-factor case in which particular factors satisfy particular sub-principles. It is not necessary for the whole of a case to satisfy any particular sub-principle". (We would reiterate, however, that this does not remove an obligation to address each sub-principle as a discreet matter, so as to assess whether or not the claim may be sustained under that criteria.) Work Value Considerations Principles 78We also agree with the submission of the Association that the work value sub-principle, by its terms, repeats much of that which was previously "self contained" within the former Work Value Principle and, in that context, long established principles concerning the assessment of earlier work value changes will still be relevant. 79The Association provided a brief encapsulation of those principles, with which we agree. Those submissions were as follows: The key requirements of the sub-principle may be summarised as follows: changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. changes in work by themselves may not lead to a change in wage rates. in order to justify an alteration in wage rates, it is necessary to demonstrate that the change in the nature of the work constitutes such a significant net addition to work requirements as would warrant the creation of a new classification or upgrading to a higher classification. The general nature of the task of assessing work value was described by the Commission in Court Session in the Crown Employees Scientific Officers Award Case [1962] AR 250 at 278 as follows: "We have referred earlier to the sense in which the Commission's wage-fixing function can be regarded as the valuation of work. In so far as it does involve the valuation of work, the function is not limited to the ascertainment of the market value or of any absolute value discoverable by other means. The function, truly understood, is to consider all relevant features of the work, to take into account all relevant material, including such as will furnish a guide to fair valuation, to bear in mind the contentions of the parties to the arbitration, and, in light of these things, to fix amounts which the tribunal itself deems to be just and reasonable to meet the circumstances of the case. The amounts so fixed will represent the tribunal's view of the case." Similarly but more recently, the Commission said in Re Public Hospitals Nurses (State) Award (No 4) (2003) 131 IR 17 at [20]: "A tribunal charged with determining whether the tests under the work value principle have been met must carefully sift through the material that has been placed before it and separate out those changes which have occurred to the nature of the work, skill and responsibility of employees or to the environment in which the employees work and which have not previously been the subject of compensation. An objective assessment then has to be made as to whether the changes that have occurred amount to such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. The change is to be measured from the last time wages were increased on the basis of work value or from the date of operation of the second structural efficiency adjustment allowable under the State Wage case 1989, whichever is the later. An assessment is then to be made as to how that change should be expressed in money terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in the work." Work value changes do not need to be revolutionary in nature in order to justify increases in remuneration. They must contain a significant net addition to work requirements, but as Liddy J said in In re Mineral Sands (State) Award [1980] AR 107 at 114: "...'Significant' does not necessarily mean 'major', but 'to a meaningful degree, not insignificant, not immaterial, not trivial'. To be significant a factor does not have to be dramatic, sudden or eye-catching. A change, as in this case, may occur subtly, gradually, even covertly but on examination prove to be significant." Similarly in BHP Steel (AIS) Pty Ltd - Hot Strip Mill Restructured Ironworker Classifications Rates of Pay Award, Hungerford J, 21 March 1996, the Commission found that change which is "cumulatively significant" but "individually incremental in nature" may satisfy the work value principle. The test established by the work value principle is necessarily a global one; and it is not amenable to microscopic evaluation of discrete functions of the particular classification(s) under review: Health Employees Pharmacists (State) Award (2003) 132 IR 244 at [129]. Although a change in the volume of work alone will not usually meet the requirements of the work value principle, it will where employees are required, in order to carry out their responsibilities, to be "more sophisticated and skilled in the management of their work and the discharge of their new accountabilities": Crown Employees (Teachers) in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254 at [90]. A work value assessment may be both retrospective and prospective in nature, and may take into account changes which are yet to be implemented but are known: ibid at [92]. 80An issue arose as to the relationship between the work value and special case components of the Arbitrated Case Principle. In substance, Mr Kenzie submitted that the special case sub-principle may not be utilised to overcome or "circumnavigate" work value criteria. In other words, the special case considerations do not permit a party to overcome limitations in the Arbitrated Case Principle, regarding work value, by reference to broader notions of "undervaluation", or to escape the limitations of a datum point or prior agreements which have bought out work value changes. 81This issue primarily emerged in relation to certain claims made on behalf of specialist groups, in particular, police prosecutors, the TOU and the FSG . However, it is useful to address the issue of principle at this juncture. 82The submission by the Association, in this respect, was as follows: With respect to the claims for prosecutors, the TOU and the FSG, the Association submits that these groups of officers have suffered from historic and intrinsic undervaluation of their work. Given that they have never been subject to a work value assessment, it is necessary that such a work value assessment occur in these proceedings. Claims of historic or intrinsic undervaluation (as distinct from changes to work value) may be addressed through the Special case sub-principle (as distinct from the work value changes sub-principle): see Re Equal Remuneration Principle (2000) 97 IR 177 at [58]-[60] and [144]. In addition or in the alternative, the Association also relies on changes in the work value of these three groups. 83The Association also submitted, in reply, as follows: In relation to the second proposition associated with the datum point for the consideration of the Specialist Claims, the Association reiterates the submissions at Ex 150, paragraphs [282] to [285]. It is emphasised that issues of historic undervaluation are distinct from those of work value change, and do not fall to be considered under the work value principle. As was said in Re Equal Remuneration Principle (2000) 97 IR 177 at [144] (underlining added): "As we have noted, the parties were agreed that the Work Value principle was an inappropriate vehicle for undervaluation claims to be advanced before the Commission given the requirement there provided for change to be demonstrated and the time limits imposed. It was accepted that in some cases those requirements might work an injustice because, for instance, no work value assessments had been conducted prior to the relevant dates. Similarly, the Special Case principle was not regarded as the appropriate vehicle for such cases to be advanced, even though it was acknowledged that claims which sought to go beyond the timeframe provided in the Work Value principle, or which sought to draw comparisons with other workers, industrial instruments or overaward payments, might presently be pursued under this principle. We accept this common view." 84The Commissioner is correct to submit that the special case sub-principle does not provide a mechanism to avoid the strictures of what was formerly known as the 'Work Value Principle'. The terms of sub-principle 8.4.1 make it clear that special case considerations will be relevant to claims which are "not based on work value". It follows that that special case sub-principle will be directed to the consideration of factors laying outside the scope of the work value sub-principle of the Arbitrated Case Principle. 85This aspect of the sub-principle governing special cases represents a departure from former versions of the Special Case Principle which contained no such limitation. The change may, therefore, represent a departure from earlier jurisprudence which permitted work value case considerations to constitute a basis for the establishment of a special case (see Re Crown Employees Administrative and Clerical Officers (State) Award (No 2) 1993 52 IR 243 at 376 - 377) ("Crown Employees (1993)"). 86However, this change to the terms of the Special Case Principle will, in practice, be of little consequence, as special case considerations constitute but one part of the considerations (including work value considerations) which cumulatively fall for consideration under Principle 8. 87The more apt question is whether the "historic or intrinsic undervaluation", sought to be relied upon by the Association, may constitute a relevant factor in special case considerations under Principle 8. 88The Association's reliance upon Re Equal Remuneration Principle [2000] NSWIRComm 113; (2000) 97 IR 177 ("Equal Remuneration"), in this respect, needs to be approached with some caution. The consideration of historic or intrinsic undervaluation in that matter was undertaken in the context of the examination of a special class of workers, female employees, and a particular statutory regime introduced to give effect to principles of equal remuneration (see ss 21 and 23 of the IR Act). Observations in that decision that the former Special Case Principle would have embraced considerations of undervaluation, need to be understood in that light (see Equal Remuneration at [16]). 89Nonetheless, in the course of the Full Bench's judgment in the Equal Remuneration case, the following general observation was made regarding an earlier version of the Special Case Principle: ...Similarly, the Special Case principle was not regarded as the appropriate vehicle for such cases to be advanced, even though it was acknowledged that claims which sought to go beyond the timeframe provided in the Work Value principle, or which sought to draw comparisons with other workers, industrial instruments or overaward payments, might presently be pursued under this principle. We accept this common view. 90Similarly, in Health Employees Pharmacists (State) Award [2003] NSWIRComm 453; (2003) 132 IR 244, the Full Bench, after an extensive review of the scope and operation of an earlier form of the Special Case Principle (the principle enunciated in State Wage Case 2003 [2003] NSWIRComm 174; (2003) 121 IR 446 ("State Wage Case 2003"), took into account, as being relevant to the determination of a special case, whether there had occurred a "significant undervaluation of work for the classifications under consideration" (at [33]). It might also be noted that the Full Bench, in that matter, had regard to "the existence of anomalies and inequities in the existing classification structures and corresponding rates of pay in some awards" (again, at [33]). 91We do not consider that the terms of the new sub-principle 8.4.1 (and the alteration to the form of the previous Special Case Principle that was introduced by it) warrants any departure from these earlier authorities. We consider that those authorities continue to represent applicable statements of principle for the consideration of special case applications. It follows that, as a matter of principle, the Association is entitled to rely upon notions of undervaluation whether based on historic or intrinsic factors. Whether that ground is made out in the present matter will ultimately depend upon whether the primary criteria for a special case is satisfied, namely, the case has "special attributes" or is "out of the ordinary" so as to take it outside the restrictions which may otherwise apply under the Wage Fixing Principles: Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 at [166] ("Operational Ambulance Officers"), and is a matter which will require later attention in this decision. Introductory Considerations 92The Association contended that the work value, inter alia, of LAC-based police had significantly increased since the datum point as a result of major changes in policing philosophy and practice, information systems, technology and equipment, legislation and other policies and procedures. The foremost consideration in that respect was, on the Association's case, proactive policing. A related consideration (but not exclusively so) was the Association's contention that there had been a transformation in the way the NSW Police Force (and its members) had been made accountable, by management and other strategies, for their performance. 93When the totality of factors brought to account by the Association are reviewed in the light of evidence as to work value change, it is plain, in our view, that the Association's case brought under the work value component of the Arbitrated Case Principle cannot be sustained unless it fundamentally makes out its case based on changes associated with police proactivity. This is not to suggest that the other changes alluded to by the Association are entirely devoid of content of the requisite kind, but when looked at in isolation from the proactivity component of the case, they could not, even collectively, meet the requisite standard. 94These matters, of course, may take on a different hue when consideration is given to the productivity and efficiency aspect of the Arbitrated Case Principle. However, it does mean that the issue of proactivity is vital for this element of the Association's case and will be, therefore, at the forefront of our considerations. Proactive Policing A Précis of the Parties' Cases 95The Association's case as to proactive policing shifted, albeit subtly, between its opening contentions and its final submissions. In opening contentions, the Association put that, since 2005 "there has been a major shift in the way police officers perform their duties towards a much greater emphasis on proactive policing" and "although police have always undertaken proactive policing activities to a certain degree, it is only since 2005 the targeted proactive policing has become a fundamental part of police crime strategy". The Association continued that the change resulted in the role of the general police officer being "redefined" and that "the concept of proactivity itself" was "broadened in scope to cover all forms of interference with the criminal and anti-social element". 96In closing submissions, the Association advanced the following submission: The most fundamental change to the work of LAC-based police since 2005 has been the integration of targeted proactive policing into the daily work and management of LAC-based police officers. As Assistant Commissioner Murdoch described it, "proactive policing today is embedded as part of their [general duties officers] duty". That change, as the Commissioner's statements in the Police Monthly quoted earlier indicate, has been significant in the achievement of continually declining rates of crime. 97Nonetheless, the Association explained that it had characterised its case, in the aforementioned manner in final submissions, so as to prevent a mischaracterisation of its case by the Commissioner (and witnesses called in his case). This approach had also been necessary, it was submitted, to avoid some difficulties of a definitional kind that had arisen during the proceedings about the development of proactive policing. 98The Association made the following submissions, in this respect: [88] In responding to this important part of the Association's case, the Commissioner's approach has been to mischaracterise that case rather than engage with it. This has led to fundamental misunderstandings of the issues truly in contention by the Commissioner's witnesses, which necessarily colours their evidence; thus, for example, when Assistant Commissioner Hudson gave evidence, he said that he understood that the Association's case was that proactive policing began only after 2005.This is no more than a "straw man" approach which does not address the Association's actual case [89] Additionally there are important definitional issues applying to the development of proactive policing. One of the fundamental features of Mr Plotecki's pioneering work was to identify a definition of proactivity in order to allow it to be measured and monitored. He did so by reference to the exercise of three specific categories of police activities: move-ons, person searches and intelligence reports. However, as an illustration of the confusion which can arise in discussing the development of proactive policing, Mr Hudson included the arrest of a person known to have committed an offence before he committed any further crimes as an important example of what he understood to be proactive policing. Mr Hudson went on to say "proactive policing is anything that can achieve crime reduction". Without suggesting that what Mr Hudson was describing was anything other than effective policing tactics, it is clear that in describing this as proactive policing he was talking about something entirely different to Mr Plotecki's concept of targeted interference with the criminal element. In this way, the Commissioner's case sought to blur the very specific contention advanced by the Association with respect to proactive policing. 99Perhaps the better elucidation of the Association's position comes slightly earlier in its final written submission where it was contended: [86] Many of these significant workplace changes built upon the structural framework of approximately a decade of significant workplace reform (the word "evolution" is used repeatedly throughout the evidence) that extends back to the Royal Commission and the concurrent reform agenda pursued by the then recently appointed Commissioner Peter Ryan (and taken further by Commissioner Ken Moroney following his appointment in 2002). It is necessary to understand that history in order to appreciate the full context, and for that purpose a detailed history of that reform process is contained in Appendix D to these submissions. However, at the same time it is also necessary to understand that the changes post-2005 referred to in these submissions were developments not contemplated in the 1990s and early 2000s, in the sense that they generally took pre-existing reforms and drove them in a new direction or expanded them in way not earlier foreseeable. 100In relation to the contention that all facets of proactive policing, including those which arose after the datum point of 1 July 2005 will be caught by, and, in fact, extinguished, by prior agreements made between parties or awards made by this Commission, the Association contended that, once the true nature of the changes to proactive policing after 2005 is properly understood, the series of historical agreements and awards relied upon by the Commissioner will have no effect in limiting the scope of the present application or the claim properly meeting the requirements of the work value sub-principle. 101In its reply submission, the Association advanced the following propositions as to its work value case (regarding LACs and proactive policing): The Commissioner has resiled from that position in its oral submissions (T 1283 line 5 to T 1284 line 33) so that the submission now appears to be that, with the notable exception of LEPRA, it is now submitted that the various matters identified are "simply a variance of technology and matters that were available and intelligence base policing before 2005 or as otherwise submitted an evolution within the framework of policing", the point apparently being that this evolution (more accurately these evolutions), are not sufficient to meet the work value principle. This is no answer to the Association's work value case. As stated in Ex 150 paragraphs [28] to [30], work value changes do not need to be revolutionary in nature in order to justify increases in remuneration, provided they represent a significant net addition to work requirements. It is no answer to a work value case to say that a new process, work method or piece of technology replaced something that was there earlier, or represented an advancement upon something that was there earlier. As an individual development that of itself reflects a significant enhancement to operational performance, COMPASS in all its manifestations is a classic example. ... The statistics are entirely consistent with the Associations case and reflect a movement in proactive policing from a narrow focus on targeting recidivists, repeat victims and hot spots through specific operations and small full time units that do not form part of the first response general duties car crews (the "fat for the LAC [who] are not slaves to the radio like our first responders are [that can] go and actually target a particular person, location or crime type" as Assistant Commissioner Murdoch described them), to one that broadens the focus to generating proactive intervention rates for an LAC using a whole of Command approach. It is in the period post 2005 that we see the shift towards getting the "critical mass of people" in the LAC, the "GD workforce", to work "more effectively" in an effort to get the "most [b]ang for our buck". ... 102The Commissioner contended that the case advanced by the Association sought to deny the "overwhelming and consistent historical documentary record" as to what occurred in the NSW Police Force prior to the datum point and sought to redefine or repudiate various agreements made with the Commissioner. 103The Commissioner contended that there had been some changes in relation to proactivity and intelligence-based policing after 2005, but these changes or developments could not be treated as "new" or capable of satisfying the Work Value Principle because they "were features of general policing well before 2005" and had "already been paid for" (there were some alternative submissions we have earlier summarised in the discussion of issues to which we will return). The Commissioner submitted: It is apparent from the above chronology that a large number of the matters relied upon by the PANSW to support its case have either: (i) existed prior to 1 July 2005, in which case they have been paid for (twice) as work value or productivity changes that have occurred prior to the Datum Point; or (ii) been paid for by virtue of the fact that the initiatives stem from matters contemplated or introduced by the Wood Royal Commission, or as part of the reform of the NSW Police Service undertaken by Commissioner Ryan. 104In relation to the shift in the Association's case, Mr Kenzie submitted: First of all we say that the reinvention of the case is understandable because of the evidence to which we are about to take you in detail. And secondly, it invites the question that something has now been integrated and we have seen words like imbedded or entrenched and integrated. What we would do is to submit to the Commission is that when you see words like imbedded or integrated or entrenched, these require close scrutiny in a case like the present as they involve an invitation to the conclusion that matters now relied on were in fact part of the scene at earlier times but that didn't count because they now apply in a way that they earlier apply at that earlier stage. 105It was contended that the Commissioner had driven, as a corporate imperative, the policy of targeted and intelligence-based policing and restructured the NSW Police Force to achieve that end. It was "fanciful" to contend, with those changes having been introduced prior to 2005, and the Commissioner having expended large resources to achieve intelligence-based policing by means of significant technological and structural change, that such would have not been fully addressed in remuneration agreements between the parties up to 2005. 106Further, the Commissioner submitted that the evidence revealed that there existed "a clear determination on the part of the force to deliver proactive policing to the greatest extent possible for a period of years prior to the datum point" (Mr Kenzie also used the expression "to the maximum extent possible"). This was indicated by the existence of "targets, business plans, KPIs and reviews for example the OCR process and the KPIs that clearly came out of the Wood process in the 1990's well prior to 2005". He also referred to "Map Info", in this respect. 107Mr Kenzie also submitted as follows: Notwithstanding the implementation of systems like TITUS, which were actually designed along with map into to use and or measure and assist intelligence based policing which was actually going on at a period of time prior to the datum point, still used to this day. All of this, all of these things taking place against a background in which fundamental structural decisions had been taken from the time of Scorpio in the mid 1990s and beyond. Including restructures of the Force which flattened the structure and restructures in 2002 which were specifically designed to maximise the number of police available to participate in proactive policing. All of these flowed well beyond the time of Scorpio which will remind you was the stage at which divisions between beat police and other police were taken out of account and changes which were actually designed to make all police generally responsible. So that the quarantine from beat police and other police ended with Scorpio. The restructures that took place was designed to put police in the front line, they were all put in a position where they would be amenable to the huge changes that flowed from the late 1990s. And we will come in addition to the detailed evidence to what the evidence showed that all of these things actually led to in terms of the way in which the Police Force actually operated, what was actually happening. And secondly the crime rate which in our respectful submission very highly significant in these proceedings. 108The Commissioner's position overall (including alternative contentions) was as follows: The Commissioner asserts that asserted changes in relation to proactivity and intelligence-based policing: (i)are not new in that these were features of general policing well before 2005 - and so have already been paid for; (ii)insofar as they have occurred, are essentially matters that have affected the mix of duties of general duties police officers; (iii)have not occurred either uniformly or at the same time throughout the service; (iv)have not occurred to any extent or at all in relation to some areas of the service; and (v)must be considered in the context that reactive work is prioritised, and generally, by its nature, proactive policing is less complex and time consuming than reactive policing. Prior Agreements 109In the period between 1997 and 2005 significant salary increases were afforded non-commissioned and commissioned police officers. This occurred in the aftermath of the Royal Commission reports and reform agendas announced by the then Commissioner Ryan. As may be expected, the salary adjustments, many of them of a very significant magnitude, were governed by arrangements made between the industrial parties which sought to lay the basis for which the adjustments in remuneration were made and, in the course thereof, to avoid the prospect of further claims during the period of the operation of the salary agreement or double counting. In this sense, the governing clauses of the agreements, which in one case were the subject of a consent award provision, took a familiar form by which the employer sought, and the union conceded, that the salary adjustment comprehended certain grounds for salary claims so that an additional claim could not be advanced on that basis (that is, within the scope of those parameters). 110We do not propose to set out in intricate detail the history of these transactions (which, in any event, is set out in part in the Executive Summary of the Commissioner which is attached as Annexure C) . We shall commence our discussion with a document described as the "Statement of Intent" (dated 15 September 1997) and cl 13(e) of the then Crown Employees (Non-Commissioned Police Officers) 1998 Award ("the 1998 award") which was made by Bauer J on 21 November 1997 (the award was made subsequent and by reference to a Statement and Recommendation made by the then President of the Commission, Fisher J, on 23 October 1997). 111The written submissions of the Commissioner gave the following description of the Statement of Intent, with which we agree: Significantly, the Parties expressly agreed that the four key areas that supported the level of increase in salaries for non-commissioned officers, as proposed in attachment 1 were, in addition to public sector salary agreements and work value changes since August 1990 and improvements in accountability, efficiency and productivity, not otherwise comprehended in agreements: "Changes to the Police Service contemplated or introduced by the reports and/or recommendations of the Royal Commission into the Police Service" (page 2). At page 3 the Statement of Intent of the parties specifically identified that the proposal for workplace reforms meeting the nominated criteria were to contribute to the achievement of the corporate plan, the reform agenda and/or the implementation of the recommendations arising from the reports of the Royal Commission. Page 5 (above clause 4.16) provided that the parties further agreed to use their best endeavours to reach agreement on matters including the achievement of compliance with performance management processes in accordance with recommendation 69 of the Royal Commission final report - by a target date of 30 June 1998. At paragraph 7 on page 7 of the Statement of Intent the parties specifically recognised that "any Consent Award made as a consequence of this Statement of Intent or as a consequence of any Memorandum of Understanding which may flow from it, will comprehend all past work value, productivity, efficiency and performance improvements of non-commissioned police officers, together with all future work value, productivity, efficiency and performance improvements specifically prescribed in "Reform of the New South Wales Police Service Phase I" (including the Reform Agenda and the Police Service Restructure) and the implementation of the recommendations of the Final and other reports of the Royal Commission". 112The Statement of Intent was preceded by a further agreement described as "the Statement of Position" (which was referred to as one of two essential documents in the Statement and Recommendation issued by Fisher J on 23 October 1997). However, we do not consider that Statement of Position diminished, in any material way, the operation of the Statement of Intent. We agree with the submission of the Commissioner that the Statement of Intent was a "fundamental (governing) document" and that this was made clear by the reference to it in subsequent agreements to which we will soon turn, namely, the 2001 and 2005 Memoranda of Understanding ("the 2001 MOU" and "the 2005 MOU" respectively). 113Clause 13(e) of the 1998 award was in the following terms: The salary and other rates prescribed by this award comprehend all changes in the Police Service contemplated or introduced by the reports and/or recommendations of the Royal Commission into the Police Service and comprehends all other changes, including work value, productivity, efficiency and improvements in the performance of police officers up until 1 January 2001, other than for matters not contemplated within the statement of intent and the accompanying agreed documentation or matters arising as incidental thereto. 114A number of submissions were made by the parties as to the Statement of Intent and cl 13(e) of the award. We propose to deal with those matters briefly at this juncture. 115First, we accept the general propositions advanced in the following written submissions of the Commissioner in relation to the Statement of Intent: It was intended to be an all-embracing clause designed (as the President emphasised) to match an ongoing process of major reforms to be carried through by the Service and the Association and to reflect the very considerable wage increases that were being granted (in the wake of earlier wage increases that had been granted in the same year). The whole fabric of this agreement was that the vast and sweeping reforms that were going to have to be implemented would not be able to be implemented immediately or in the short term. However, the agreement reflected that the money to pay for them would be acknowledged up front because of the need to accommodate such a significant change as recognised by the President of the Commission. 116However, we agree with the submission advanced by the Association that the "operative provision as to what was comprehended in the agreed salaries increases is that contained in cl 13(e) of the 1998 Award, not that contained in the Statement of Intent". 117The 1998 award gave legal effect to the various arrangements reached between the parties and, in particular, the recommendations of Fisher J. Clause 13(e) deals with some particularity with the matters that are intended to be comprehended by the 1998 award (as a result, no doubt, of the considerable salary increases arising from the award). 118Further, the clause refers specifically to the Statement of Intent and its relationship with the clause. In our view, the clause must be seen as the ultimate refinement of the parties' intentions as to what matters would be "bought out" (to use Mr Kenzie's expression) by the making of the 1998 award. 119A further issue raised by the parties concerned the construction of cl 13(e) of the 1998 award. The Association contended that the temporal limitation within the clause applied to all of its conditions. A grammatical argument was developed in that respect, namely, that the absence of a comma after the words "performance of police officers" in the provision would indicate that the expression "up until 1 January 2001" was intended to qualify all elements of the clause. We do not accept this submission. Whilst there might be some force in the literal construction proposed by the Association, we do not consider that, when the clause is considered in context (both in terms of the whole of the award and the surrounding circumstances), such a conclusion may be reached. The award was clearly intended to embrace changes arising from the Royal Commission reforms without a temporal limitation of the kind which the clause attaches to "other" changes, which changes might be less well defined or predictable as to their consequences than the outcomes of the Royal Commission Recommendations and Findings. 120Nor do we agree with the submission advanced by the Association that the word "changes" in the clause should be read down to mean "specifically proposed changes in the nature of specific 'proposals' for workplace reform". The Association's approach runs counter to both a literal and contextual interpretation of the clause. 121It follows that we agree with the following submission of the Commissioner: This makes it clear that the Award was forward-looking. It comprehended all changes relating to the Royal Commission (without time limit). It contemplated other changes in the future up until 1 January 2001. 122The 2001 MOU was entered into between the Association and the Commissioner to settle the 2001 salaries round. It contained the following objective: To finalise those issues outstanding from the 1997 Statement of Intent between the Commissioner of Police and the Police Association of NSW. 123Paragraph [5] of the 2001 MOU provides that the parties will continue to work towards the finalisation of the issues remaining outstanding from the Statement of Intent. The covering letter to the 2001 MOU provided: The revised offer recognising all changes in work value, productivity, efficiency and the performance of police officers up until 1 July, 2005, other than for matters not contemplated within the Memorandum of Understanding. 124Before discussing the parties' further submissions with respect to the consequence of these awards and agreements, it is necessary to turn to the 2005 MOU. This Memorandum of Understanding between the Association and Commissioner was said to be made "in full and final settlement of all claims and extinguishes all work value and special case claims prior to 1 July 2005". The 2005 MOU further stated that the salary adjustments arising out of the MOU contained "a component that reflects the parties' assessment of the amount necessary to compensate for work value changes, special case considerations, productivity and efficiency improvements across New South Wales Police since 1990, and more specifically made since 2000". The agreement further states that the parties recognise that since 1990 the parties have negotiated wage increases which had compensated for these elements. They also acknowledged that police officers had received "significant pay increases based on the Findings and Recommendations of the Royal Commission into the New South Wales Police Service in the late 1990's". 125The Commissioner made the following submissions in relation to the 2005 MOU: It is clear that the buy out of work value across the entire Police Force contained no words of limitation. It bought out all potential work value and productivity claims in relation to all police. The fourth paragraph contains a specific reference to the significant pay increases in the past "based on the Findings and Recommendations of the Royal Commission in the late 1990s". Accordingly, in 2005 the significance of the Statement of Intent was still being recognised by the Parties. In other words, as was always agreed, the recognition of payment for matters arising out of the Wood Royal Commission was not to (and did not) cease in 2001. 126The Association contended that the conclusion which should be drawn from this history was that, by 30 June 2005, there was no "hangover" of work value changes arising from the Royal Commission reports and recommendations and that that date was a "line in the sand" for "all prior work value and productivity changes". It was contended that this was confirmed by a later Memorandum of Understanding (in 2009) which provided that the salary adjustments made at that time "did not include any compensation or trade off in relation to work value increases or increases or changes in work value post 1 July 2005". 127The Association's contentions culminated in the following submission: Thus the Commissioner's proposition that work value or productivity changes which post-date 1 July 2005 cannot be taken into account in the determination of these proceedings if they can in some way be linked to the Royal Commission recommendations or the Reform Agenda is to be rejected, because: (a)All work value and productivity changes arising from workplace reform proposals in the Reform Agenda were fully "bought out" by 1 January 2001. (b)All work value and productivity changes arising from workplace reform proposals in the Royal Commission recommendations were fully "bought out" by 30 June 2005 at the latest. (c)No work value and productivity changes occurring since 1 July 2005 have been comprehended in any prior salaries settlement. 128In our view, the aforementioned history puts beyond doubt the submission advanced by the Commissioner that the reforms impacting upon the work of police deriving directly from findings and recommendations of the Royal Commission are not available to be taken into account in the present proceedings. Such factors were fully accounted for in salary increases received during the period from 1997 to 2005. The agreements made plain that changes in work value or productivity and efficiency deriving from the reforms or their implementation were fully compensated by the prior agreements. It follows that the Commissioner was correct in submitting that the enhanced functions and increased duties that flowed to police officers from the enactment of the Crime Legislation Amendment (Police and Public Safety) Act 1998 on 1 July 1998 ("the 1998 Act") and the codification of powers under LEPRA are not properly available to be taken into account in the general claim advanced by the Association in this matter. This is because both parties accepted that those legislative reforms derived directly from the recommendations of the Royal Commission and the implementation of those reforms and their fundamental effect on the work of police occurred in the period prior to 1 July 2005. The Commissioner conceded that these restrictions did not apply to the Command Performance Accountability System ('COMPASS') introduced in 2008. 129In contrast, we consider that the Commissioner's submission that the 2005 MOU (or predecessor agreements) "bought out all potential work value and productivity claims in relation to all police" is far too wide a proposition. What was bought out, in our view, were those changes in work value or productivity and efficiency arising from workplace reform prior to 1 July 2005. (We acknowledge that Mr Kenzie conceded the correctness of this approach in his final submissions.) 130We agree with Mr Kenzie that careful attention needs to be given to the avoidance of double counting and strict adherence to the Wage Fixing Principles which, in turn, required consideration should only be given to changes that genuinely arose after the datum point. Hence, particular attention needs to be given to, and caution paid with respect to, broadly framed notions such as the "integration" or "embedding" of proactivity after 1 July 2005. Nonetheless, equal attention and care needs to be given to an examination of what changes did occur after the datum point so as to ensure that changes which genuinely fell within the meaning of the principles (and which do not controvert prior agreements) are properly taken into account. This requires a close examination of the true nature and effect of changes introduced into the NSW Police Force after that date and the consequences that they have for the nature of work, skills and responsibilities of police officers falling within the scope of the award. 131Hence, a finding, which we shall make, that the genesis of the system of police proactivity and significant steps in its development and implementation occurred prior to 1 July 2005 does not necessarily constitute a basis to reject a work value claim predicated upon such factors, if it is found that, in substance, there were, nonetheless, changes or refinements to those systems, after the datum point, which resulted in changes to the work, skill or responsibilities of police officers to such an extent that those changes in work duties and functions properly satisfy the work value sub-principle (or, in the case of improvements of the productivity of the NSW Police Force emerging from the contribution of police officers, the productivity and efficiency sub-principle). Care must be taken in this process to avoid double counting. Proactive Policing : Introducing Findings 132The evidence regarding proactive policing is both complex and enigmatic. A clear example is the apparently contradictory evidence of two of the most senior operational police officers, called to give evidence by the Commissioner: Assistant Commissioner Mark Murdoch, Commander of the Central Metropolitan Region, and Assistant Commissioner David Hudson, Commander, State Crime Command. Both witnesses sought to place reliance upon the same crime statistics to different ends. Evidence showing significant growth in the incidence of proactive policing after 2005 was, it was (at least initially) contended by the Commissioner, a mere reflection of better methods of record keeping and, ultimately, a result of that and other factors unrelated to changes in police proactivity. Very substantial documentary evidence, which was said to conclusively support the Commissioner's contentions was not, on close analysis, so exclusively unambiguous. Multitudinous officers gave evidence of the significant changes they have encountered through the introduction of proactive policing after the datum point in apparent contradiction of some more senior officers and, in part, the documentary evidence relied upon by the Commissioner. The proceedings were awash with historical detail. 133The orthodoxy for the resolution of evidentiary questions of this kind is not entirely fruitful in this case. The evidence was generally affected by substantial elements of opinion or, even submission (not the subject of objection). The witnesses called by each party did, in our view, their utmost, within the limits of their knowledge and ability to honestly and, for the most part, frankly give evidence before the Commission. 134We consider that a good deal of the apparent conflicts or contradictions in the evidence lies, in part, with the ambulatory nature of the concept of proactive policing and, in further part, the manner in which the respective parties (and witnesses) characterised the changes in the policies, operations and infrastructure including technologies of the NSW Police Force and their consequences for police for the period 1996 to 2011. 135Nonetheless, we must observe that we were particularly impressed with the evidence of Assistant Commissioner Murdoch who, in our view, gave candid, forthright, clear and concise evidence and, in cross-examination, gave evidence, including concessions, which strived to give an accurate and rational balancing of a number of the issues in the proceedings without a desire to support or sustain any particular case thesis or opinion. 136Some opening observations (containing a brief overview) may be made. Whilst there may have existed components of proactive policing prior to the reform period of the late 1990's (on a broad definitional approach), the genesis of the scheme (from a contemporary vantage point) were the reforms driven after the Wood Royal Commission and, in particular, the initiatives of then Commissioner Ryan. Nonetheless, the introduction of proactive policing, both in content (as intelligence and target based system) and application, remained in a pristine form by 2000, despite a significant policy shift, the redeployment of a considerable part of the service to 'frontline' policing and the introduction of intelligence and accountability or performance systems backed by new technology or technological systems and legislative regimes. 137By the general roll out of TITUS to the LACs in 2003 and 2004 (the trialling of the system occurred from 2002), proactive policing did not form part of the 'central ethos' of the organisation exhibited in contemporary policing and lacked a 'common benchmark' for its implementation. Assistant Commissioner Murdoch identified that TITUS represented a shift in the 'plan' for the introduction of proactive policing as part of the reform of policing. 138Mr Kenzie submitted that the TITUS system merely introduced a method of measuring what "was already going on". However, we do consider that this substantially understates the impact of TITUS. That system did, no doubt, permit the measurement of proactive policing which was then underway, as reflected in the content of the benchmarks used in TITUS. There was particular attention shown to 'hot spots', repeat victims and recidivists. However, the Association was correct to submit that: Again, even as at December 2003, whilst it is no doubt correct to say proactive policing focused upon hot spots, repeat victims and recidivists was an established concept, there was still no organisational driver for high levels of proactive interference of the kind now seen in LAC Business Plans and the COMPASS system, to be driven through the general duties workforce. As Assistant Commissioner Murdoch accepted in cross-examination "the assessment of what we would call proactive policing and its impact on crime, yeah, it really wasn't that clearly understood at that particular point" and it was his evidence that "the work of TITUS and the officer who developed it really, you know, it was a groundswell of support for that and TITUS really consolidated some thinking around the relationship between crime and proactivity and that's what took it forward". The new approach reflected in TITUS was the measurement of specific incidents of activity reflective of interference based proactive police work, to enable the management of that work: it was both a strategy and a methodology. It is that element of the TITUS approach (underpinned by a corporate acceptance that high levels of interference based proactive activity will reduce crime) that is now embedded within the COMPASS computer system. The COMPASS computer system built on that approach and was designed as an integrated performance tracking system that provided monthly reporting mechanisms "to encourage Commanders responding to issues in a timely manner and not waiting until a quarterly return to identify an emerging issue". 139Nonetheless, TITUS did not create the system of proactive policing. It was an innovation which reshaped existing plans, commenced the removal of cultural and other impediments and built upon existing infrastructure. By 2005, it had had a positive impact upon the proactive policy. The system of proactive policing, by this time, had been substantially introduced in its implementation, but was still to encounter significant advancements arising from changes in the policy, practice, infrastructure, focus and culture of the NSW Police Force after 2005. 140There were significant developments after 2006. In November 2006, a State Plan was introduced by the NSW Government outlining a range of responsibilities for government agencies, including the NSW Police Force. In consequence, further reforms were introduced to the NSW Police Service. There was developed a Priority Delivery Plan which set out broad strategies to achieve the State Plan. LAC business plans were amended to introduce for the first time numerical targets for the exercise of proactive policing and the OCR process was reformed by the introduction of the Command Performance Assessment System ('COMPASS') in 1998. 141The question critically arising from this short history is whether, given the state of proactive policing (as a matter of content and application) as at July 2005 (as we have described it), the further developments from 2006, and their impact upon proactive policing, might have, nonetheless, and, in reality, resulted in a change in the work of police of a kind recognised by the work value sub-principle. Statistics 142Each party sought to employ statistical material in support of the prosecution of their respective contentions as to the foregoing questions. Those contentions, in short form, were as follows: 1.The Commissioner relied upon a graphical, historical depiction of trends in crime rates to demonstrate that proactive policing was substantially "in place" by 2000 (because of a sharp decline in crime rates from that date) and that there was not a substantial change in the nature and structure of policing vis à vis proactivity on and from 2005 (due to the flattening of the crime rate from that time). It was contended that, unless some other basis presented itself, a conclusion must be reached that what "was driving them down in 2005 was driving them down beforehand". The Commissioner also submitted: "It follows that the use of proactive policing and the powers under the legislation to allow effective proactive policing were in widespread and large scale use by 1998 and 1999. There was an observed downturn in crime rates in major crime categories as at that time". 2.The Association relied upon data produced in tabular form showing changes in various categories of proactive intervention between 2000 and 2010 (drawing, in that respect, upon data as to those proactive interventions produced by Mr James Eugene Baldwin, Chief Statistician for the NSW Police Force and his evidence as to what the data demonstrated), to show that there was, in fact, a substantial increase in the rates of proactivity after 2005, thereby demonstrating that there had occurred after 2005 "a radical transformation in the day-to-day work of LAC-based police officers". In other words, the Association used the data to contend there was a change in the application or content of proactivity after 2005 which had direct consequences for police officers engaged in LACs. 143We shall deal with each contention seriatim, but in doing so we will need to consider, at the outset, the evidence as regarding the trend in crime rates and, towards the end of our decision, some additional statistical material relating to the growth in police numbers (both authorised and actual). Crime Rates 144The Commissioner's submissions were predicated upon a graph depicting percentage changes in crime rates by category from 1995-1996 to 2010-2011. That graph is as follows: 145The following conclusions can be comfortably drawn from this graph: 1.Excepting for some peaks and troughs over the period, there was an upward trend in all crime categories over the period 1995-1996 to 2000-2001 with very significant rises in all crime categories examined; 2.There was a significant decline in all crime categories except for assault and robbery (which showed a sharp upward movement shortly before 2005-2006), after 2000-2001 to 2005-2006 (the rate of decline appears to be roughly consistent over that period); and 3.There was a further decline of crime rates after 2005-2006, although most crime categories showed a decline in the rate of decrease, excepting for sexual assault which showed the first decline in this period. 146Some further, and more refined, material is available for the period 2006 to 2010. 147The Performance Report for the 2006 State Plan issued in November 2010 reported that property crime had reduced by 18 per cent over the life of the State Plan. The report indicated that the target to reduce property crime in New South Wales by 15 per cent set by the Plan had already been met. This is consistent with the aforementioned graph. 148The Performance Report indicated that personal crime had reduced by three per cent since the targets were set in 2006. It indicated that personal crime included domestic violence, assault, sexual assault and robbery, and that during 2009-2010 there were 1,651 fewer incidents of personal crime in New South Wales than the previous year. It was also reported that alcohol related crime had also fallen for the second consecutive year, with an 11 per cent reduction in the number of assaults on licensed premises since 2008-2009. Perceived problems with anti-social behaviour remained stable between 2008-2009 and 2009-2010. 149In his submission concerning productivity and efficiency, the Commissioner relied upon the publication by the NSW Bureau of Crime Statistics and Research, entitled 'Crime and Justice Statistics' issued April 2010. A more recent publication by the Bureau in April 2011 provided an update of long-term trends in property and violent crime in New South Wales for the period 1990 to 2010. We propose to base our findings upon the more recent data. 150That survey indicated that "some categories of crime in New South Wales are now at the lowest levels they have been for twenty years". By comparing per capita rates for crime in 2010 with per capita rates in 1990, the Bureau found significant declines in the following categories of crime: murder - 50 per cent; motor vehicle theft - 70 per cent; break and enter non-dwelling - 62 per cent; break and enter dwelling - 43 per cent; robbery with a weapon not a firearm - 23 per cent; robbery with a firearm - 66 per cent and robbery without a weapon - 5 per cent. 151The Bureau found that there had been significant downward trends in the major theft categories of break and enter dwelling, break and enter non-dwelling and motor vehicle theft. There had also been a significant downward trend in murder. The Bureau reported, however, that there had been increases in the rates of assault, sexual assault and other sexual offences. It was indicated that since 1990, assault and sexual assault recorded significant, long-term upward trends whilst the other eight categories analysed in the report were trending down or stable. 152The 2009-2010 Annual Report for the NSW Police Force stated that the crime levels across key indicators had fallen or had remained stable. The statistical information provided in the report showed that, by reference to the number of incidents recorded, crimes against property had fallen consistently and significantly between 2005-2006 and 2009-2010, with the exception being stealing from a retail store, which showed a slight increase. The number of incidents recorded for crimes against persons, on these statistics, showed stable or declining levels between 2005-2006 and 2009-2010, with the exception of sexual assault, where there was an increase in the number of recorded incidents. The recorded non-domestic violence assaults where alcohol was a factor showed a reversal to 2005-2006 levels in the 2009-2010 data after an increase in the intervening years. The table for injury and fatal crashes and charges for exceeding the prescribed concentration of alcohol showed stable or declining levels. 153In the May 2011 edition of 'Police Monthly', the Commissioner was reported as stating "There has been a 14 % reduction in assaults in NSW in the past two years" and "The number of assaults in licensed premises fell by 11 % in the 12 months to July 2010 and there was a 27 % reduction in glassings in licensed premises during the same period". The report continued that "assaults reported in clubs, restaurants and nightclubs were also down in the last 24 months, by almost 17%". 154It was not surprising that, in 2010, the Commissioner of Police stated that "For the first time in five years, crime is falling or stable in all 17 major crime categories over the 24 month trend period". 155Assistant Commissioner Jenkins accepted that there had been either stabilisation or reduction in crime rates since 2005. Assistant Commissioner Hudson also agreed that there had been a reduction in crime since 2005. 156The overall conclusion to be drawn from this evidence is that there were very significant falls in crime rates from the years 2000-2001 to 2005-2006, with the exception of sexual assault (and, for a short period, robbery), but there was an additional and significant reduction in crime rates after 2005-2006 (whether measured in absolute terms or by trend). The graphical material produced by the Commissioner indicated that the rate of decline was less after 2005-2006 but reporting upon the State Plan would lead to the conclusion that the reductions after those dates were very significant when married against targets set under the State Plan (and, objectively, when viewed in terms of the trend in crime reduction since 2000). The exception to the trend (contrary to the graphical depiction) was sexual assault and domestic violence. Crime Rates and Proactive Policing : Contentions Advanced by the Commissioner 157The Commissioner's submission, in this respect, proceeds upon a premise that increases in proactive policing would result in a reduction in crime rates. In one sense, this proposition was advocated from the standpoint that the Commissioner was taking the Association's case at its highest and then applying the premise to support his own contentions. However, the Commissioner, as we earlier recorded, accepted that proactive policing did play a large role in "driving and keeping crime down". 158It will be convenient to briefly pause to state why, on the evidence before us, that concession must be accepted (it will also be relevant to the disposition of the productivity and efficiency component of the Association's case at a later time). 159We should commence by stating, as concisely as we may, the premise or thesis as follows: there exists an inverse relationship between the level, by volume and application, of proactive policing and crime rates (although neither the thesis, nor the evidence before us, permits a precise conclusion as to the proportion of one to the other - the effects being variable in degree over time). 160Assistant Commissioner Murdoch described the relationship in the following evidence: Q. And that was the first time there was a tool by which you could compare one LAC with another? A. Yeah, well we were measuring yeah, the same things in each LAC and TITUS was about comparing proactivity and crime, so one was trying to offset the other and there was an inverse relationship between the two; the higher you got proactivity, the theory was, the lower your crime rate would be. 161The premise, or the factual foundation for it, constituted the actual thesis underlying Superintendent Plotecki's TITUS model. It also constituted the theoretical underpinning for the 2006 State Plan or, at least, the strategies designed to achieve the targets set by it. The early statistical material gathered by Superintendent Plotecki in the establishment of TITUS, including the subsequent receipt of evidence from LACs trialling that system, indicated conclusively that the thesis was correct. Subsequent data obtained by him, and experience in the field, further confirmed the theory. 162The aforementioned Performance Report for the State Plan indicated that the reported achievement in the reduction of crime was associated with police working with local communities and targeting alcohol-related crimes, street level drug activity, 'hoon' driving and traffic offences through high visibility policing operations. The same was said of anti-social behaviour. 163The 2009-2010 Annual Report of the NSW Police Force stated in relation to the reduction in crime, particularly violent crime, that "frontline policing and targeting of crime 'hot spots' and repeat offenders has seen crime levels across key indicators fall or remain stable". 164The Police Commissioner, in a 2010 Statement to the NSW Police Force stated: "Through proactive targeted policing, including precise tasking and deployment strategies, Commands are making huge inroads in driving down crime" and "An important part of that science is scanning real-time local, regional and statewide crime statistics". Further, when commenting upon the new State Plan, published in December 2009, the Commissioner stated that the recent Bureau of Statistics figures revealed that "rates of serious crime had fallen" and "this result was not achieved by accident - it was achieved by our people delivering the key strategies mapped out under the State Plan framework". Assistant Commissioner Jenkins agreed with the Commissioner's assessment that proactive policing drove down crime. 165Having regard to the aforementioned premise or thesis, it must be concluded that, save for the crime categories for assault and, to a lesser extent, robbery that, prima facie, the statistical material demonstrates a growth in proactivity from 2000-2001. What may also be concluded is that there was a consistent and significant rate of decline for most crime measures until 2005, indicating, to that extent, the operation and influence of proactivity systems, in relation to crime rates, over the whole period 2000-2005. However, the graphical depiction of crime rates does not support the Commissioner's contention in three respects. 166First, the graph, clearly, does not support a contention that the growth in proactivity occurred at an earlier time than 2000 or that there was an observed downturn in crime rates in major crime categories as at that time. It may be that there was a time lag between the introduction of proactivity and the resultant downturn in crime rates but this conclusion is not easily reached because, at least on the Commissioner's case, proactivity (resembling the modern form of the system) commenced as early as 1996. 167Secondly, whilst the graph is consistent with the notion that proactivity was a contributor to crime rate reductions for the whole 2000-2001 to 2005-2006 period (that is, the period prior to the datum point), it does not permit, of itself, a conclusion that the rate of application and content of proactivity was the same or similar throughout the period or that proactivity, as at 2005, was a mirror of that which had gone before. The answer to that question will be aided by other data dealing with proactive interventions over time and non-statistical, historical records. It is reasonably clear, however, that the beginning of the sharp crime rate decline after 2000 was associated with the restructuring of the NSW Police Force at the end of the twentieth century and the increase in frontline policing (as well as early reforms in proactive policy). Proactive policy reforms, as we will discuss, experienced a significant revision from 2002-2003 with TITUS (again this discussion will be aided by reviewing data on proactive interventions). 168Thirdly, the crime rate graph does not permit a conclusion that there was not a substantial change in the nature and structure of proactivity after 2005. 169Two crime indicators show a significant reversal of trend after 2005. The remaining three indicators continue to show reductions after 2005-2006. Mr Kenzie referred to a flattening out of the graph for 2005-2006, but it is plain that there was a continuation of a substantial downward trend in crime rates. In any event, the published data concerning the post 2006 period puts that conclusion beyond doubt. Further, the post State Plan data establishes there was a direct connection between the changes in both crime rates and proactivity. Proactive Interventions 170The statistics relied upon by the Association were derived from the data provided by Mr Baldwin and were in the following form: 2000 2005 2007 2010 Move ons 22,531 39,333 64,983 77,312 Person searches 18,238 81,871 117,721 200,132 Vehicle searches 124 1,118 17,731 30,786 Drug detections 32,310 28,832 28,837 40,405 Bail compliance checks 2* 3,541 28,317 88,617 Business inspections 4* 96,756 152,749 184,250 School inspections (patrols) 0* 1* 58,057 95,432 Random breath tests conducted -* -* 3,478,116 4,677,833 171Mr Baldwin analysed the proactivity statistics from 2003 with particular reference to the year 2006. Whilst the relevant timeframes will receive greater attention later in this decision, that analysis is important because it relates to the roll out of TITUS from 2003 and the introduction of the State Plan in 2006 (albeit late in that year). 172Overall, Mr Baldwin analysed the data accompanying his evidence as follows: 1. For move ons: As can be readily seen, the total Incidents of move on powers demonstrate a very significant increase in the frequency with which these powers have been exercised over the course of 2003 to 2010 (to in excess of 771000 incidents in the space of 7 years), with a particularly sharp increase in 2006 and thereafter. 2. For person searches: Again, it can be readily seen that the total incidents of person search powers has significantly increase In frequency over the course of 2003 to 2010 (to in excess of 200,000 incidents in the space of 7 years), again with a particularly sharp increase in 2006 and thereafter. 3. For vehicle searches: Again, it can be readily seen that the total incidents of person search powers has significantly increase in frequency over the course of 2000 to 2010 (to in excess of 30,000 incidents in the space of 10 years), with a particularly sharp increase in 2006 and thereafter. 4. For drug detections: Again, it can be readily seen that the total incidents of person search powers has significantly increase in frequency over the course of 2000 to 2010 (going from 32,000 odd incidents to in excess of 40,000 incidents In the space of 10 years), with a particularly sharp increase post 2007. 173A simple comparison between proactivity statistics for the year 2000 and the year 2010 would readily bear out the contention of the Association that there was a radical transformation in rates of proactivity over the survey period. However, some greater dissection of the information is, however, both possible and necessary. Allowing for some difficulties associated with the gathering and recording of proactivity statistics in the period 2000 to 2003 (which would require caution to be exercised in that respect), there was clearly growth in proactive interventions between 2000 and 2005. Further, the material permits a conclusion that between 2002-2003 and 2005 there was an upward spike in the principal proactivity indicators. This change in proactive interventions coincides with the trialling and roll out of TITUS. The period prior to 2002 shows much lower proactivity rates but, as we have noted, this is offset by recording issues. 174What is abundantly clear is, however, that there are very substantial and significant rises in proactive interventions after 2005 and, as Mr Baldwin pointed out, from 2006. (The disaggregated data attached to Mr Baldwin's evidence demonstrates that, for the 2007 to 2010 period, there are further substantial increases). 175The Commissioner's response to the proactive statistics (and particularly the rate of increase after 2005) was not entirely consistent. At least at one stage of the proceedings it appeared that the Commissioner's defence of the matter was substantially predicated upon the notion that the data, in truth, reflected a change in the recording, or manner of recording, of proactive policing statistics (between earlier and later years). A further aspect of the Commissioner's response was that, throughout the whole of the relevant period, there was a significant increase in the number of police officers. 176In the final analysis, the Commissioner's response can be ascertained from the final passages of his written submissions: [9] The sharp increase in proactive statistics in more recent years can largely be explained by these structural changes. It is also the case that: (i) It typically takes far more time to achieve a single reactive statistic than it does a pro-active one. Reactive statistics (eg, 1 CID incident) may involve many hours of investigation, interview, arrest and giving evidence in court; whereas in the same time an officer may be able to achieve many (eg) move-ons, walk-throughs and other proactive statistics; (ii) LEPRA lowered the threshold for reasonable cause to search so as to facilitate proactive policing work; and (iii) It was recognised that COPS data capture in the late 1990s and early 2000s suffered problems with accuracy. The COPS database underwent an 'enhancement' in 2003 including changes to all of the existing data fields. ... and [58] These raw statistics must be put in context. Without careful scrutiny, there can be no appreciation of why senior officers in the NSW Police Force have given evidence to the effect that, notwithstanding these statistics, there has not been the significant change which would satisfy the Wage Fixing Principles. [59] In 2010, the proactive statistics relied upon in the Police Association's Opening Contentions (at [11]) amount to 716,934. This figure obviously leaves out Random Breath Tests conducted. This is because: (i) "Random" Breath Tests are routine operations to be distinguished from the type of intelligence-led proactive policing "designed to interfere with the criminal element" that the Association has sought to rely upon in these proceedings. (ii) Statistics for RBTs only commenced in 2007, so it is not possible to determine whether there has been any significant change across the Datum point. If this were not the case, then RBT statistics (over 4.5 million in 2010) would totally overwhelm the significance of the other proactive statistics in any event. [60] Total police numbers as of 31 May 2011 were 15,985. Of this figure: (i) 12,861 are in field operations; (ii)887 are Commissioned Officers. [61] The PANSW's claim for a General increase, however, is sought to be applied to every Police Officer, notwithstanding whether they are in Specialist Operations or whether they are Commissioned Officers with the ranks of Inspector or Superintendent. [62] Accordingly, it is legitimate to analyse the proactive statistics relied upon by reference to the total number of Police Officers who are said to undertake proactive policing work (and it has been the PANSW's case that all police, including (eg) including EDOs and Police Prosecutors, do proactive work and deserve to be included in the General Claim). [63] Regardless of what approach is taken to these figures, when considered across the Police Force as a whole, they do not represent a consistent level of significant proactive work. ... [538] There is no doubt that from at least 1998, with the introduction of the Policing Powers Act, police were undertaking proactive tasks and recording it. The fact that TITUS was rolled out State-wide in 2003-2004 confirms this. The submissions from [96] completely misunderstand the Commissioner's case. It is true that part of the explanation lies in the fact that proactive work was being done but not recorded in the last 1990s and early 2000s. However, the main response to the increased proactive statistics involves complete acceptance that police are generally doing more proactive work due to the manifold structural and policy reforms identified in the Commissioner's case. That is, once the structure was flattened and over 1,000 extra police were moved into LACs, at the same time that the Police Assistance Line and the advent of SOCOs had the intended profound effects on reactive work loads, coupled with a decrease in crime rate, then it was inevitable that police would undertake more proactive policing. (A footnote to the Commissioner's submission added "On that basis, there were 44.8 proactive statistics per Police Officer in 2010, out of the 15,985 who seek to participate in the General Claim. This equates to less than one statistic, per Police Officer, per working week on the Association's statistics".) 177We propose to assess these various submissions, but take them slightly out of order. However, we do not consider that any of the propositions advanced by the Commissioner should be accepted as a basis for rejecting or diminishing the Association's contention that proactive interventions rose significantly after the year 2005, or that there was a significant growth in the work of police officers overall after that date. 178The analysis conducted by the Commissioner of proactive statistics by reference to the exclusion of RBT statistics is not sustainable. The evidence in the proceedings made clear that RBTs form part of the proactive strategies of LACs. The divisor undertaken should plainly be a devisor relating to General Duties police officers and not all police. In any event, there is another important consideration. Proactive duties were, by and large, added to the existing reactive and other general duties carried out by police officers. The conclusion we will later come to is that the amount of reactive work carried out by officers in LACs remained relatively stable. The fact that an officer might spend more or less time on reactive duties is, therefore, of little consequence. Further, as we will discuss under the heading 'Changes to Reactive/Proactive Mix', we consider that, in net, the increase in proactive duties has added not only to the volume of work but enhanced the skills and duties carried out by police officers. Nor do we consider that the Commissioner's other submissions regarding 'overtime' could be, on any measure, sufficient to account for the increase in proactivity after 2005. 179We agree with the submission made by the Commissioner that proactive statistics between the late 1990's and 2003 need to be treated, as we have noted, with some care and may be affected by under recording of data. The report by the NSW Ombudsman as to the 1998 Act found that there may well be deficiencies in statistics revealing the operation of that Act because of limitations in the Computerised Operational Policing System ('COPS') database which was the source of the statistical material. Issues emerged as to whether police, in fact, recorded all proactive activities. It was indicated that police were more inclined to record an incident on COPS where an offence had actually occurred and the limited fields within the database gave rise to issues about the reliability of the information recorded. 180Similarly, a report by the Auditor-General in 2000 (which we shall later discuss in detail) referred to impediments in the recording of data and its measurement because of the lack of definition of proactive policing at that time. The Auditor-General also referred to the limitations in the recording of proactive events and different interpretations between LACs as to what constituted proactive policing. 181A report by the Auditor-General in 2003 indicated that there had been improvements to the COPS system for recording purposes but that further enhancements to the range of standard COPS incidents to allow proactive policing to be captured were required. At that time, then Commissioner Moroney indicated that the NSW Police Force intended to remove the existing COPS system and replace it with COPS II. 182The picture which emerges is that there was a lack of reliability of proactive statistics in the late 1990's until about the year 2000, which led to some under recording of proactive interventions. This might mean that the full effects of the 1998 Act are not recorded in the statistics and, as we have noted, care needs to be taken in drawing comparisons between proactivity in later periods and that undertaken at the turn of the century. 183However, the reliability of that data was the subject of improvement leading up to the further reforms of the COPS system in 2003. There can be little doubt, however, that from at least 2003, the methodology used to record proactive interventions through COPS was reliable and there was greater consistency of application in the recording of proactive events. The very nature of the TITUS system, which was trialled from 2003 and rolled out in LACs from 2003, was designed to give a true measure of proactive work. 184Superintendent Plotecki gave similar evidence: When "Titus" was developed these measures ["arrests/cautions, searches (including knife and drug searches), move along directions and intelligence reports" were in part dictated by the data collected by the COPS system. Knife searches and move-ons, for example, were recorded in the COPS system from approximately 1999. ... No doubt the increased management focus on proactive work, and performance management that was reliant upon the incidents of proactive activity, lead to greater recording. But this was an evolutionary process that commenced pre-2005. To the extent that there was any general 'growth' in numbers from better recording it would have exhausted itself long ago. The simple truth is the vast proportion of the dramatic increase in events over the period between 2001 and 2010 are associated with increases in proactive police interactions". 185Further, the evidence given by Assistant Commissioner Murdoch confirmed the accuracy of the proactive statistics from at least 2005 and attributes the recording problem to the late 1990's. His evidence, in this respect, was as follows: Q. What process of analysis do you use to reach that conclusion? A. There is each year since 2006, at least, there has been a gradual increase in proactive policing, and that is, there is clear evidence of that, that is measurable. Q. At least from 2005, do you accept that those figures and whether we describe them as dramatic or not do you accept that the figures he has in his statement reflect the actual increase in the amount of proactive policing that has been done by police officers across the force? A. Yes, yes. Q. Just so we are not at crosspurposes, so I want to get this clear. Do you accept that at least from 2006, we can look at Mr Baldwin's statistics and say that represents an actual representation of increase of proactive policing that has actually been done by police officers? A. I would agree with that. Q. You have now agreed with me that at least from 2006 those statistics do represent the reality of increase in proactive policing, not just A. Yes. Q. a recording of them, correct? A. Yes. Q. And can I suggest to you that insofar as there was a move towards greater recording of proactive policing that was otherwise done, that that was a phenomenon most applicable in the period following the 1998 legislation concerning police powers, that is, it was in the years following about 1998 that you had a much greater push for exercise of proactive powers to be recorded, correct? A. Yes. 186It follows that we do not consider that the recording deficits experienced in the early 2000's diminishes the conclusion that the growth in proactivity was very significant after 2005 by comparison with the pre-2005 period and, for that matter, more substantial increases in proactive interventions occurred after 2002-2003. Recording of proactive interventions was, in our view, sufficiently accurate and consistent after 2003 as to enable a clear assessment to be made as to the advancement of proactivity from that pre-datum point. The data is certainly sufficient to allow a firm conclusion to be drawn as to the differences in proactivity between pre and post 2005 periods (in statistical terms). 187This brings us to the final aspect of the Commissioner's contentions, in this respect, recorded as the last paragraph in the extracts from his submission above. Our reaction to the first part of that submission is dealt with in the preceding paragraphs. Further, for the most part, our assessment of this submission should await the discussion of the history and development of proactivity. Two things should, however, be mentioned at this time. Firstly, there is an issue of causation with the submission. Proactive policing schemes were designed to, and had the effect of, decreasing crime. In other words, the various reforms from the Wood Royal Commission through to TITUS and, ultimately, the State Plan were each designed to drive change in the organisation so as to affect the crime rate. The cause was proactivity and the effect a reduction in crime. We do not think the evidence permits a conclusion that an inverse causal relationship should be found. Further, as we will discuss later in this decision, it is true that police officers were diverted to frontline policing in order to also effect a reduction in the crime rate. There were many factors which led to the release of those officers, including the flattening of the police structure and, to a much more limited extent, PAL. However, that structural change occurred primarily at the end of the twentieth century and cannot properly be brought to account for later periods, especially after 2005. 188Additionally, as we have already noted, and we will discuss further in this decision, it does not follow that there was a reduction in the reactive workload of police officers or that, when their net workload after the reconfiguration of reactive and proactive duties is taken into account, this resulted in police officers working less intensively, skilfully or responsibly. We will find the opposite is the case. 189It was also suggested that the growth in the actual number of police officers might account for the growth in proactive statistics. This is primarily an issue to be addressed in relation to the productivity and efficiency sub-principle. However, for completeness in terms of the statistical analysis, we propose to dispose of the issue at this juncture. 190The earlier chart as to crime statistics showed graphically the movement in police numbers. We also received numerical data for actual and authorised police numbers for the financial years 30 June 1997 to 30 June 2011, which is set out below: FYE Auth Actual 30-Jun-97 13,207 13,304 30-Jun-98 13,307 13,414 30-Jun-99 13,454 13,471 30-Jun-00 13,654 13,483 30-Jun-01 13,854 13,614 30-Jun-02 14,054 13,716 30-Jun-03 14,454 14,739 30-Jun-04 14,454 15,009 30-Jun-05 14,454 14,643 30-Jun-06 14,456 14,634 30-Jun-07 15,206 15,333 30-Jun-08 15,206 15,324 30-Jun-09 15,306 15,720 30-Jun-10 15,556 15,633 30-Jun-11 15,806 15,943 191The growth in the number of police officers was further depicted graphically over a longer period of time (from police records) below: 192Actual police numbers grew by 8.6 per cent over the 2000 to 2005 period and 8.9 per cent over the period 2006 to 2011. This growth is significantly overshadowed by the magnitude of the increase in proactivity. 193In our view, it may not be safely concluded that the growth in interventions is accounted for wholly or even substantially by police numbers. As Mr Baldwin stated: Although it is true to say that we have had an increase in police numbers over the relevant timeframe, each of the tables attached to this statement demonstrate that our police are, in terms of overall numbers of incidents and proportionately to the number of police, doing much more of each of the 'proactive' measures designed to bring down crime. 194This conclusion leaves for consideration the further submissions of the Commissioner that, when considered across the whole of the work force, and, in particular, those who carry out proactive work, the impact of a "sharp increase" in proactive work is diminished. We will return to that contention, but, for present purposes, we accept the Association has made out, on the evidence, its contention that, for those officers in LACs undertaking proactive policing, there occurred a significant or substantial rise in the actual performance of those functions over the period 2005 to 2010-2011 (even, if it be accepted, as Assistant Commissioner Murdoch suggested, the increase was gradual over each successive year). That conclusion is, in our view, only offset to a small degree by the increase in actual police numbers over the same period or their earlier redistribution to frontline duties. 195These findings do not completely dispose of the issues arising under the work value sub-principle. Just how this increase in workload affected the work of police officers, and whether that work was "transformed" on a day-to-day basis requires closer investigation (even though the above statistical analysis does point in that direction). Further, a mere increase in the volume of work will often be insufficient to discharge the requirements of the sub-principle. The focus under the work value sub-principle is the value of the work. Attention is fixed upon the nature of the work, skill and responsibilities of the work and, in particular, changes which occurred after a datum point. 196Thus, the question remains here whether the substantial increases in proactive interventions in LACs after July 2005, in fact, represented a significant net addition to the work of police officers as contemplated by the work value sub-principle; specifically in circumstances where proactive policing did form part of police duties prior to that date (and where that statistical material showed that between 2003 and 2005 it had risen to reasonably substantial levels). 197That inquiry involves an examination of all relevant features of the work in order that it may be fairly valued (see Crown Employees (Scientific Officers - Division of Scientific Services, Department of Agriculture) Award [1962] AR 250 at 278) in a manner contemplated for the fixation of wages under s 10 of the IR Act. The inquiry also involves an assessment of the prior agreements and application of the datum point requirements of the work value sub-principle. Historical Analysis of Proactive Policing Prior to Datum Point An Introduction 198There can be no doubt that in the period 1996 to 2005 a system of proactive policing was progressively introduced into the NSW Police Service and was the subject of substantial innovation and development. The NSW Police Force developed elaborate architecture in order to enable the growth of the system. In his written submission, Mr Kenzie neatly summarised many aspects of this infrastructure and the historical beacons which signalled the emergent system. It was submitted: The documentary material in the Respondent's case shows, uncontrovertibly, that proactive policing was intelligence-based, targeted and widespread from the late 1990s. In addition to the contemporaneous documents referring to proactive policing, it is clear that: (a) The Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW) ("Police and Public Safety Act") commenced on 1 July 1988. It was an Act squarely directed towards proactive policing by creating new powers enabling Police to give directions (move-ons), and undertake body searches. (b) The Suspect Target Management Plan (STMP) - a pro-active initiative to combat recidivism - was in widespread use throughout the organisation from in or about 2000. (c) Operation Vikings were heavily funded and State-wide initiatives to create high visibility policing (HVP) throughout the State - and continue in use to this day, having commenced in May 2002. (d) The state-wide roll out of TITUS by 2003-2004: software which graphically represented proactive policing statistics, was obviously created to measure an existing phenomenon - proactive policing. (e) The technology and policies used to drive intelligence-based proactive policing (utilised to this day) were in place well before 2005 including: (i) MapInfo - used to identify hotspot locations and explore crime patterns - began being rolled out to LACs in 1998 (ii) The EDW - software used to analyse data from COPS - was rolled out in 2000 (iii) C@tsi - a new complaints management systems - was phased in from November 2001 (iv) E@gle.i - an online system containing investigative material - was rolled out from September 2000 to February 2001 (v) Command Management Framework (CMF) trials at LACs began in March 2001 and became the mandatory compliance tool in all commands within NSW Police by 2002 (vi) LiveScan - electronic finger printing - trials began in February 2001 and installed state-wide before 1 July 2005. (The LiveScan project ended on 30 June 2005, with the last installations carried out at Coonamble, Lightning Ridge and other regional police stations by this date. Even before this, as noted in the Police Association NSW's evidence, the roll out of LiveScan devices across the police force had been occurring from around 2003.) (vii) Duty Officers was first raised in November 1996. From the outset, Duty Officers had significant management responsibilities within the LAC structure. (viii) The Crime Management Support Group commenced operations in September 2001 (ix) The 'Applying Intelligence in Local Policing' toolkit was developed and introduced to LACs in order to standardise intelligence practice by 2001. Intelligence led policing was referred to as early as November 1996 and consolidated with the introduction of the Integrated Crime Management Model and Crime Management Units (in 1999) within LACs. According to Assistant Commissioner Hudson, intelligence led policing was "well entrenched" by 2001. (x) iWork is an accountability tool that has been available since at least 1999. It permits the analysis of individual performance of officers within a command. It allows proactive statistics to be recorded against an individual. (xi) Mobile Data Terminals (MDTs) - were developed in October 2000. (xii) iAsk - was rolled out by at least April 2004. (xiii) Computer Aided Dispatch System (CADS) - was developed out of CIDS which was created in 1992. (xiv) National Information Databases - some of which were in existence by 2001. 199The Commissioner submitted the contemporaneous materials show "unanswerably that, from the time of the Wood Royal Commission in ... a number of significant structural reforms occurred to introduce proactivity". These were described, as follows: (i) In September 1996, the implementation of the SCORPIO recommendations resulted in the creation of First Response Policing Agreements and a new requirement that all police undertake both reactive and proactive policing work. (ii) On 1 July 1997, there was a flattening of the structure of the organisation which led to the creation of 80 Local Area Commands (LACs). This restructure, moved an additional 1,406 police officers to LACs. Of these, 758 were moved to the frontline. The proportion of police in LACs was increased from 74% to 82.5%. (iii) An organisation-wide Corporate Plan was released in September 1997 which introduced inter alia stringent accountability and anti-corruption measures to monitor police performance. At the same time, each Local Area Commander was made personally responsible for setting strategies and making business plans. (iv) In January 1998, Commissioner Ryan established the Operations & Crime Review (OCR) Panels which were intelligence-driven forums to focus Local Area Commands on reducing crime. A key feature of the OCRs was the use of crime data (EDW) and crime mapping (MapInfo) to drive proactive policing. The OCRs eventually evolved into Compass forums. (v) The Diploma of Policing Practice was introduced for recruit education in May 1998. (vi) Legislative powers to allow police to engage in preventative, proactive policing were introduced, including the Crimes Legislation Amendment (Police & Public Safety) Act 1998. This Act enabled police to, for the first time, demand that people move on, and undertake knife searches. These powers were later further codified in LEPRA in 2001 in accordance with a recommendation of the Wood Royal Commission. (vii) The Integrated Crime Management Model was implemented on or about 1 July 1999. This fundamental change was designed to enhance intelligence-led policing and deployment. Crime Management Units were simultaneously created within the LACs. 200These submissions have considerable force and, in some respects, were not the subject of resistance by the Association. However, the ultimate conclusion sought to be drawn from this historical analysis (and other factors to which we will turn) was that "proactive policing was intelligence-based, targeted and widespread from the late 1990's". In other words, that the modern, refined form of proactivity was well entrenched in that timeframe (or at least prior to 2005). (We will ultimately find that submission is unsustainable but, in order to reach that conclusion, a great deal of historical and other analysis is required.) 201The Association made the following general submission in this respect: There is no issue that there were a range of "significant structural reforms" that occurred over the decade 1995 to 2005. There is also no doubt that the structural reforms referred to in the evidence were about getting more police into "frontline policing" or "operational policing", and by reference to the 2002 papers associated with the Stage 2 restructure "having all operational commands focused on crime throughout the State" and to "increase street police visibility and improve responsiveness to crime". However, that is a very different thing to the changes which the Association submits occurred after 2005, and the Commissioner reinvents history by submitting otherwise. 202We also refer to one aspect of the reply submission of the Association which aptly describes its case about the changes between the pre-datum point and post-datum point period, as follows: [11] The statistics are entirely consistent with the Associations case and reflect a movement in proactive policing from a narrow focus on targeting recidivists, repeat victims and hot spots through specific operations and small full time units that do not form part of the first response general duties car crews (the "fat for the LAC [who] are not slaves to the radio like our first responders are [that can] go and actually target a particular person, location or crime type" as Assistant Commissioner Murdoch described them), to one that broadens the focus to generating proactive intervention rates for an LAC using a whole of Command approach. It is in the period post 2005 that we see the shift towards getting the "critical mass of people" in the LAC, the "GD workforce", to work "more effectively" in an effort to get the "most [b]ang for our buck". [12] That the matters relied upon built on the earlier reform process does not make the reforms post-2005 any less significant, either from a work value perspective, or a productivity and efficiency perspective. However, it is also significant in this context that the changes post-2005 "were developments not contemplated in the 1990s and early 2000s, in the sense that they generally took pre-existing reforms and drove them in a new direction or expanded them in way not earlier foreseeable". 203The resolution of those issues may only be obtained by a close analysis of each relevant historical period to examine the development of policy systems and structures and, in that context, the emergence of police proactivity. We have done so by reviewing the substantial volume of documentary evidence and the evidence of witnesses bearing upon the question. We point to important elements of that material (but not all the material examined) below. 1996 - 2000 The Wood Royal Commission Reports 204The Royal Commission into the NSW Police Force was established by Letters Patent issued to the Honourable Justice James Wood in 1994, authorising his Honour to investigate the existence and extent of systemic and entrenched corruption in the NSW Police Service. 205As we earlier mentioned, the first of two interim Reports was published in February 1996. It dealt substantially with anti-corruption measures. The Report dealt with the need for fundamental areas of change including those reflected in the following passage: The opportunity presented to appoint a new Commissioner, and other Commanders, must be used to engage senior staff who embrace these principles. The new Commissioner will need to be a revolutionary change manager capable of strategic thought, strength and vision, who can call upon executives in whom absolute confidence can be entrusted and who in turn give their full support. ... The issues to be confronted include: The development and adoption of a new code of integrity and professionalism, to which there is uniform commitment by the Service; The introduction of skilled management at command level and in special squads; The development of strategies to secure a fundamental and permanent change to the culture of the Police Service; The move to a structure which ensures accountability at all levels of supervision and command, and which is flatter than the present structure; The re-establishment of a relationship of trust between the police and the community which they serve, and identification of the expectations which the community has of its Police Service. 206The interim Report also discussed measures such as the consolidation of the range of duties expected of police and better co-ordinating of the review of policy through strategic direction and management. 207Following this Report, on 30 August 1996, Commissioner Ryan was appointed as Commissioner of the NSW Police Service. 208The second interim Report was delivered at approximately the same time as the Phase I Report of Commissioner Ryan. It came after an expansion of the terms of reference of the Royal Commission. There was, plainly, an overlap between the matters discussed in this Report and those discussed in the Phase I Report. 209The final Report was issued in May 1997 and consisted of, as we have mentioned, 174 recommendations for the reform of the NSW Police Service. For present purposes, it is only necessary to mention a small component of that Report dealing with the transformation of that organisation. The Royal Commission's recommendations, in this respect, discussed organisational and managerial structure and, in doing so, specifically endorsed the revised structure of the NSW Police Service proposed by then Commissioner Ryan (including the flattening of the structure and making Patrols the primary service, delivery and management units). The Report also emphasised the return of police to operational duties. 210The final Report recommended the NSW Police Service work towards a flatter structure "which reflects responsibility rather than rank". It suggested that consideration be given to the development of separate career paths "permitting progression within various categories of operational and managerial work". A further recommendation was that greater emphasis be placed generally within the NSW Police Service "in the designation of positions and remuneration, on the nature of the job and the skills required, and less reliance placed on the status of its holder at any given time". In a further recommendation, the Royal Commission encouraged that remuneration for police should represent "value for the office performed, be related to the position occupied and responsibility attaching to it and take into account extra duties and changes in work practices resulting from this Report". SCORPIO 211The Commissioner placed considerable reliance upon the Phase I report of SCORPIO (the Sub-Committee on Response Policing in Operations) issued in September 1996. 212This report was written in circumstances where there had earlier been created, in 1994, authorised "Beat Police" as part of the implementation of community-based policing in the then local Patrols of the NSW Police Service. SCORPIO's objective was to restore strength to the local Patrols, return officers to operational policing and to "put more police where crime is worse". In 1994, there was an actual strength of 1,219 Beat Police out of a total actual police strength in New South Wales of 12,718 (the total number in 1996 was 13,159). SCORPIO found that "generally only 38% of available police were performing Beat policing". 213The Report recommended that functional differences in Patrols such as General Duties police officers and Beat Police be abandoned and that the "current policy" of quarantining Beat Police should be eliminated. However, this recommendation should be understood in its full context. These changes were designed to achieve "the primary responsibility of all police" which was stated as being the provision of a "timely response to calls from the public". 'Response police', whether performing duties by foot on mobile patrols would be called 'Patrol officers'. (There was a reference to an earlier 1995 report which had identified that there was an absence of "policies on prevention and deterrence of crime, and pro-active and re-active policing in the NSW Police Service".) It was recommended that there should be a minimum mobile response to calls for assistance. 214The Report referred to the conversion of rostering into a process which was "intelligence-driven". Reactive shift patterns should be based upon the expected time to complete duties. It was further stated that "proactive shift patterns should be based on local concerns and incident types". 215However, after a close reading of the Report, it must be concluded that the recommendations of SCORPIO were a far cry from proactive policing as we have defined it earlier in this decision. 216In this respect, we broadly accept the reply submission of the Association which contended that the Commissioner had overstated the effect of SCORPIO, as follows: [29] There is no issue that there were a range of "significant structural reforms" that occurred over the decade 1995 to 2005. There is also no doubt that the structural reforms referred to in the evidence were about getting more police into "frontline policing" or "operational policing", and by reference to the 2002 papers associated with the Stage 2 restructure "having all operational commands focused on crime throughout the State" and to "increase street police visibility and improve responsiveness to crime". ... [31] Chapter 4, entitled "Response Policing" commenced with an observation that core business, "the timely response to calls for service from the community was not being achieved". It was recognised by SCORPIO that "flexibility was critical" in local deployment practices, emphasising "Patrol Commanders should have the discretion to deploy police as required in order to respond to their environment", and concluding (emphasis added): "The principal requirement articulated by SCORPIO was that Patrol Commanders should be able to roster all staff to ensure that response needs were met. The adherence to functional based rostering practices impedes the delivery of timely response service to the community. SCORPIO also agreed that Patrols required: Flexible rostering of all staff in accordance with minimum shift staffing needs; and Commitment to multi-skilling as a professional development for all response police (for example beats, general duties etc)" [32] The concept of "Intelligence Driven Rostering" was "the process of using intelligence to assign police to broad shift patterns" to facilitate "Minimum Shift Staffing", itself defined as (our emphasis): "Minimum shift staffing levels are the numbers of actual police officers required on any given shift to adequately respond to calls for service from the public". [33] The Recommendation referred to by the Respondent relating to Beat Police is exactly to that effect (emphasis added): "SCORPIO recommends that the current policy of "quarantining" Beat Police should cease. The primary responsibility of all police in the Patrol is to provide "a timely response to calls from the public". Patrol Commanders must be able to roster accordingly". [34] The Respondent is correct to identify SCORPIO as the genesis of what are today known as the First Response Policing Agreements (the guidelines associated with these agreements are to be found in Ex 126 PR 24). It had absolutely nothing to do with intelligence led policing. Indeed, the fact that the "core business" of police as at September 1996 was still described as "timely response to calls from the public" is reflective of the Association's case: that is, it confirms the primarily reactive culture which the drive for proactivity sought to realign. 217We note that the reference to the "core business" of the NSW Police Service (in the final paragraph of the extract) appears in the SCORPIO Report as the guiding principle for the authors. It also reflects the Terms of Reference for SCORPIO. However, we do consider the statement, in that same paragraph, that the Report had "absolutely nothing to do with intelligence-based policing" might put the proposition too emphatically. The Report witnessed an early conceptualisation of 'intelligence' as a mode of operation for policing in this State. 218It should also be observed that the Report did refer to proactive policing arrangements. This had been the domain of Beat Police. There was the prospect for greater diversity of police engaging in this work, although through the Beat Patrols. Reform of the NSW Police Service - Phase I 219There can be no doubt, as the Commissioner submitted, that the Phase I reform by then Commissioner Ryan had, as the focus of its attention, the prioritisation of "frontline policing" and the establishment of LACs under a flatter management structure. 220This Report, which was published on 19 November 1996, constituted Phase I of a three-phase plan enunciated by the then Commissioner of Police to fundamentally transform the NSW Police Force. 221In his introduction, the Commissioner stated: I intend to demonstrate to Government and the community at large that through initial dramatic change and then a process of continuous improvement that the Service can be progressively transformed into a high performance organisation which expels and repels corruption, while delivering a responsive service to its customers. 222As Assistant Commissioner Jenkins observed, this Phase I Report "set out a blue print for reform": a reform which was "no less than revolutionary". There was contemplated a "massive reform of the New South Wales Police Service", and a project that involved a "massive undertaking". 223This first "blueprint" paper noted (emphasis in original): Any change must involve significant change to the structural make-up and operational culture of the Service. The Royal Commission Interim Report identified the need to move to a structure which enables accountability at all levels of supervision and command, and which is flatter than the present structure. 224The "centerpiece of Phase I [was the] absolute concentration on frontline policing in Local Area Commands under a flatter management structure", said to "increase local autonomy, further devolve accountability and clarify roles". It was considered that management structures built on the basis of Patrols, Districts, Regions and a State apparatus reflected a "classic military hierarchical model [that was] outmoded". The structure contemplated in lieu thereof was management consisting of three layers: a 'Corporate Executive' made up of two newly created Deputy Commissioners, Regions and LACs. The LAC would be made up of a Local Commander, a Senior Graded Administrative Officer, Duty Officers, Supervisors and Patrol Officers (although the structure would vary depending on regional characteristics). 225The Report stated: The primary focus is on operational policing - to design a structure which enables the maximum number of personnel to be deployed in the delivery of the policing service at a local area level appropriately supported by adequate specialist services, administrative support and technology. 226"Core Policing" was said to, inter alia, focus on "reducing fear and securing the peace and good order of neighbourhoods by protecting life and property, investigating and preventing crime, and detecting criminals". 227As to frontline policing, the Report stated: Again, I stress that emphasis is on front line policing. The Police Service has for some time stressed the importance of local policing through Patrols. However, it is obvious that the facts have not matched the rhetoric. It has been lip-service because fifty-six (56%) of the Superintendents, Chief Inspectors and Inspectors have jobs OUTSIDE the existing Patrols. Nearly sixty percent (60%) of Inspectors are outside of Patrols. 228The reforms associated with reallocating resources to the frontline, included the return of officers from management and support roles to the frontline, the civilianization of positions that did not require "the use of the authority of a police officer or professional police knowledge", refinements to the COPS system (and the ability to remotely access that system), the creation of PAL and the refinement of the laws relating to police powers (the Commissioner called for laws to be improved relating to move ons and similar proactive initiatives which led to the introduction of the 1998 Act and was another forerunner to "Intelligence-led Policing"). In this last respect, it was stated: Over the past decade a number of reviews concerning the intelligence capacity of the Police Service have been conducted. However, there has been little improvement to the delivery of intelligence products or general understanding of intelligence concepts. It would appear these reviews have failed to identify what the corporate expectations are for any internal intelligence facility. A current study, scheduled for completion by December 1996, will seek to establish what the actual intelligence and information requirements are for the Police Service. When this has been clearly articulated, it will be possible to understand what structures need to be put into place to deliver that outcome. I insist that intelligence must be integrated and co-ordinated to support local area commands. Intelligence Driven Deployment The correct application of intelligence principles can have a significant impact on policing strategies. It will be essential for local area commands to use intelligence assets to maximize resources, and ultimately to reduce fear and crime. Unfortunately, in may commands intelligence based rostering is by and large a myth. However, through the introduction of intelligence driven deployment it is possible to use prediction to prevent an offence, to arrest the right offender, or to increase and maintain order. Simply by being in the right place at the right time, the offence can be prevented, the offender intercepted or citizens re-assured. A project to enhance intelligence driven deployment is being conducted. Subject to evaluation of a pilot study, I plan that the new local area commanders will apply intelligence driven deployment procedures as a matter of course from 1 July 1997. 229It should also be noted that the NSW Police Service, at this stage, had not applied First Response Policing Agreements (this occurred in April 1997). It was intended that the intelligence-driven model would be attached to a new rostering system known as 'the Smart Rostering System' (Phase 2 of that system would be designed to attach demand or an intelligence-driven model to the "front end" of the SRS). Intelligence-based deployment was discussed at a reasonably high level of generality. 230The LAC structures came into effect on 1 July 1997. 231It is appropriate to mention some other aspects of the proposals stated in the Phase I Report which were foundational to the massive reform which was contemplated in the Report. These included: fundamentally refreshing the disciplinary system, reforming the culture of the organisation (including the creation of an external registration system for police officers); the restructuring and modernising of the network infrastructure of the police computer network and establishing a contemporary records management system for the entire force; a range of work practice improvements and the development of indicators of performance to enable the organisation to "inform itself, the community and the Parliament about the attainment of goals it had set for itself, as well as the reform agenda". 232There was also the creation of a "business planning model" to "allow LACs to assemble ... bids for resources". Commissioner Ryan stated that: "As well as the development and application of corporate performance indicators, it is imperative that each identifiable business unit within the Service also develop targets, measures and performance indicators. Once established, appropriate data collection and analysis processes need to be and will be employed". (Business plans were implemented across all LACs by March 1999.) 233A central feature of the Phase I Report was the flattening of the management structure of police and the diversion of resources to the "front line" with a concomitant shift in the responsibilities of police officers and their accountability. Infrastructure was put in place which would enable this diversion of resources and extend policing powers (both of which proved important aspects of later developments in proactivity). However, the Report also demonstrates that intelligence-driven deployments were, prior to the issuing of the Report, minimal within the police force. The original plans seemed to be focussed upon intelligence-based rostering and, as the Association submitted, "matching police on duty to calls for service". There did not exist the intelligence deployment systems and structures which now feature as the underpinning of police proactivity. Reform Reports 1996 and 1997 234Before the issuing of the Phase II Report, known as the 'Next Phase Report', by the then Commissioner, in January 1998, there was issued a 'Reform Service Wide Discussion Report, September - December 1996' and a 'Reform of NSW Police Service - Implementation Status Report, February 1997'. This Report discussed the flattening of the organisational structure through the creation of 80 LACs, the reallocation of staff to frontline policing (as the core of the policing strategy). It should be noted that the second Report (of 1997) endorsed PAL as a means of "enabling patrols to schedule their resources more proactively", although we do not take this as a reference to proactive policing, per se,(as now understood). Phase II Report 235The Phase II Report reviewed the progress of the Phase I reforms and noted the immensity of the reform process. 236The Phase II Report referred to four key areas of reform. Additionally, the report identified some "very specific reform activity" which were to be achieved through projects designated as having key breakthrough or "A1 reform priorities". There were 9 A1 reform priorities as follows: Crime Management Model ('CMM'); Review of Core Functions; Success Indicators; Local Area Command Business Units; Information Management; PAL; CRIME Code of Practice; Employee Management System (EM) and Human Resource Management. 237A key area of reform described as "Doing It Right - effective and efficient work practices", included a variety of A1 reform priorities such as LAC business units (each of which had been referred to in the Phase I Report), information management and PAL. 238The "Combating Crime" key priority area was designed to refocus attention on "the Service's mission and ultimate aim ... [of] the reduction of violence, crime and fear". It was said: The present stage of the reform process, then, will see the Service readdress the issues of crime and lawlessness through improved and more effective crime management. The criteria by which I will measure my success will be a slowing or reversal of the upward trend in crime and increase in customer satisfaction. The Service, as a whole, will focus on repeat victims of crime, repeat offenders, and locations that have been repeatedly targeted. We all know that a large proportion of crime, particularly property crime, is committed by a relatively small group of offenders, often repeatedly targeting the same people, and often concentrating in a particular area. We also know from experience that with a bit of effort devoted to intelligence analysis these people can be identified and caught. 239This was, in essence, a mission statement. The underlying purpose for the approach was said to be the prevention of crime and the identification and targeting of repeat offenders. This was said to occur through a collection of intelligence; investigation analysis; focussing on repeat offenders, 'hot spots' and repeat victims; effective deployment of resources and actions including arrest, intervention and prevention. The actions taken to achieve this end included the identification of repeat offenders in 'hot spots', targeting the deployment of staff to prevent crime and enhancing investigative skills and systems. 240The CMM reform was to be undertaken by the Specialist Operations Command. A trial had begun in August 1997 at the Campbelltown LAC. The model was described as follows: To test the effectiveness of the model for an intelligence-led, four-tiered response to crime management, as proposed by the Criminal Investigation Review Team (CIRT) report Critical Thinking: A Pathway to Managing Crime. The aim of the model is to provide resources for local area commands to implement and sustain proactive policing strategies through the diversion of resources from reactive policing. This is to be achieved by integrating all arms of operational policing into the investigation of crime by improving and recognizing the skills and abilities of all personnel, and by basing the allocation of criminal investigations on a four-tier response (which is aligned to the natural divisions occurring within the Criminal Procedure Act). 241Criminal investigations were to be handled by telephone reporting of minor crime, general duty response (the Beat Police would be responsible for all crime of a summary nature and other particular matters but were constrained from carrying out investigation in relation to particular crimes or facets of crime), LAC investigators (particularly as to indictable matters) and crime agency referrals. 242The trial at the Campbelltown LAC was designed to gauge the acceptability of the CMM within the community, including telephone reporting of crime. A main element of the trial included the establishment and implementation of an administrative support facility, the aim of which is to enable police officers to get away from administrative tasks and to engage in proactive policing on the street. 243In a section of the report under the heading 'Looking Ahead', the author dealt with a number of matters which was summarised in the Association's submission, accurately in our view, as follows: [875] To keep the leadership within the organisation focused on the four action areas, and in particular on combating crime, the Commissioner introduced "a rigid accountability system", "a rather hard-nosed accountability system", known as the "Operations and Crime Review", that was to be a reconfiguration of the predecessor Commissioner's Accountability Panel (which had previously be primarily concerned with disciplinary matters), "to ensure that commanders and managers are more directly accountable for their performance". [867] Additional reforms of note in the Combating crime area included the creation of "Crime Agencies and the fundamental change in the way criminal investigations will be handled". The forecast Crime Agencies was described as follows: "Criminal investigations will be handled by Crime Agencies or Local area commands either independently or jointly, as the case may be, with a view to supporting the investigative skills of the Service generally. Crime Agencies will operate through a clear and unambiguous charter. The newly created Crime Agencies recognises that it does not "own" major crime. It seeks rather to provide coordination and quality assurance as a service to the community, while at the same time supporting local area command officers through the provision of expertise in criminal investigation. Crime agencies will also seek to achieve a balance between the need to provide a reactive management response and the need to actively target major crime. Its chief targets will be, among other things, drugs and organised and serious crime. The creation of Crime Agencies aims to bring about a cultural shift in organisational behaviour and attitude; it does not represent the creation of a new CIB". 244In 1998, Commissioner Ryan expressed the desire for New South Wales' crime figures to return to their 1996 level. To achieve this objective, the Commissioner set each Command the target of reducing crime to the lowest monthly average achieved during 1996. It was intended that more rigorous target figures would be established in the future. Operation and Crime Review ('OCR') 245We will pause here to further discuss the OCR and the related technology systems, Map Info and iWork Reports. 246The OCR process commenced on 18 January 1998. The OCR system held Commanders accountable for their performance relative to crime trends. It was an intelligence-driven forum. The scheme was closely associated with the use of crime data (derived from the Enterprise Data Warehouse ('EDW') and crime mapping ('Map Info') so as to, according to the 7 December 1998 edition of 'Police Weekly', "identify repeat offenders, repeat victims and repeat locations of crime"). The same edition indicated that the information was provided to police to "more effectively and more efficiently" target police resources. At that time, 20 OCRs had been held (with 71 LACs having been "through twice"). 247In a 2008 Reform Project Plan Report on the OCR entitled 'Performance Improvement and Planning Command' it was noted that the OCR process had been "centrally co-ordinated and facilitated by various executive support Commands since 1998" and that the OCR process had been revised and modified since that date, with the last major revision occurring in February 2006. It was observed that "over that time, the process had arguably shifted from the strict performance accountability process to a more co-operative discussion-based process". 248The Association made a submission about the origins of the OCR and its development, referring, in that respect, to the evidence of Assistant Commissioner Murdoch. We agree with that submission and set it out below: Assistant Commissioner Murdoch identified the introduction of the OCR as "the first time as an organisation that Commanders were held, in a very real sense, fully accountable for what was happening in their Command". Whilst the Assistant Commissioner said in his statement that the OCR was "arguably the basis upon which proactivity in the NSWPF truly commenced to take hold", he conceded in cross-examination "the assessment of what we would call proactive policing and its impact on crime, ... really wasn't that clearly understood at that particular point": as he observed "certainly in those days we were measuring different things to what we are now, as what we define to be, or what we agree upon what our proactive indicators are, our performance are". The Assistant Commissioner identified TITUS and the ground swell of support for that initiative by his fellow Commanders after its rollout, as the thing that "really consolidated some thinking around the relationship between crime and proactivity and that's what took it forward". 249The OCR process continued up until 2008, whereupon an "expansion of corporate objectives and government level planning, combined with the increased demands for accurate corporate reporting regarding implementation and performance", led to an identified need for the process to be reformed. The OCR process was overtaken by the COMPASS process in 2008. 250The OCR will be further discussed in relation to the EDW and the 2000 Report of the Auditor-General. 251Map Info permitted the identification of hot spot locations and the explanation of crime patterns, and provided a facility to LACs which had hitherto been confined to districts and Regions. 252The Commissioner relied upon an exhibit providing reports on various LACs to put a submission that the OCR forum allowed police officers to be made "accountable" down to individual officers via iWork Reports. The document provides an iWork Report for the Hunter Valley LAC, although the information recorded against each officer (in terms of proactivity) is unclear. Superintendent Worboys described that system as permitting the assessment of individual performances "before 2005". Assistant Commissioner Hudson's evidence was that "teams" have been held accountable using iWork Reports from 1998. (He gave evidence that iWork is an accountability document showing knife searches, "intell reports", "move ons", and the like, but it is not clear what date that data featured on the system.) Integrated Crime Management Model ('ICMM') 253In February 1999, a document was promulgated within the NSW Police Service entitled 'Integrated Crime Management Model: The Management of Crime Investigation at Local Area Command'. The document was conceptual in the sense that it proposed a new model for LACs but, in fact, was foundational to the formation of Crime Management Units ('CMUs') within LACs across the State from July 1999. However, the evidence reveals that these programs were still only partly implemented by early this century; for example, the Crime Management Support Unit needed to be established in September 2001 to help make CMUs work as they were intended, and the funding for civilian intelligence analysts was only made available in July 2001, with persons being recruited into these positions over at least the next three years. 254The conceptual framework had, at its centre, the primacy of the LAC for the delivery of service. However, the document also recognised the need to "shift our hitherto primarily localised thinking to one which takes account of broader, corporate requirements". The objective was to prepare the service for the future. 255The document described the functions and objectives of the CMU as including the "evaluation, resource allocation, progress monitoring and finalization of reported crime" and leading "to the integration of all parties involved in the collection, analysis and dissemination of information and intelligence through the functions of Crime Pattern Analysis (CPA), Local Intelligence Officers (LIO), Field Intelligence Officers (FIO) and Community Safety Officers (CSO)". The CMU was to "supply investigative advice and the evaluation of initiatives". It was said: The introduction of Crime Management Units should be viewed as simply the next phase of the evolutionary process of crime management currently employed throughout the Service. Experience throughout the world has shown that the management of the change from reactive to proactive policing is a difficult and often painful task. New South Wales has therefore experienced nothing new when undertaking this difficult transition, indeed, coming as part of the reform process as it did, one could argue that it has been much easier here than in many other areas of the world. Any further change will require the investment of a great deal of time and effort from LAC management teams. and later: The creation of the Crime Management Unit is merely the corporate means by which the Service can manage crime. The ultimate success rests on the performance of the Tasking & Coordinating Group. By effective use of analysed intelligence the traditional dichotomy between crime fighting and problem solving might be resolved to the benefit of us all. To achieve this requires imagination and initiative, both of which are abundant within the New South Wales Police Service. The forgoing is not intended in any way to stifle individual initiative or expression but rather to enable those to flourish with the greatest chance of support from the organisation. 256The object of the system was crime reduction and increased public safety. 257The "Tasking and Deployment Group" was, in this proposal, to be a refashioned version of the weekly crime strategy meeting which was at that time being held at all LACs. The change in title was said to: do more than merely signal the change of current practices even though in most cases the personnel attending will be basically the same. These meetings should be about getting things done and the title of "Tasking & Deployment" helps to send that clear message. 258The paper acknowledged "Management roles will need to adapt to drive forward the cultural and operational changes brought about by the introduction of a CMU", and that "these are outline proposals and require a deal of further consideration prior to any implementation". 259The document also discussed questions as to "who will do what". Some draft position descriptions were provided (although not replacing existing job position descriptions) which included the following entries: (i) The Local Area Commander "should endeavour to create the maximum level of proactive operations against crime that the LAC can sustain". (ii) The Crime Manager "should engineer the highest levels of proactivity that the LAC can sustain in tackling crime". (Detective Inspector Yeomans attached a job description dated 2005 to his statement. It provided that the Crime Manager was responsible for leading a proactive approach to tackling crime "using flexible resources for deployment".) 260Detective Inspector Pisanos accepted that Exhibit 49 (Integrated Crime Management Model document dated 8 February 1999) confirmed that the "development of Crime Management Units [in 1999] was inextricably bound up with the move from reactive to proactive policing". 261Detective Inspector Pisanos also stated: I say that in the mid-1990s we were certainly looking at the science of tasking and deployment based on intelligence, evaluating the model that we were operating off so it has evolved a process of evaluating your deployment, the effectiveness of how you were deploying and then reviewing it and I guess notifying the model. 262In the current form of the ICCM the description of function which had been attributed to the Crime Manager has, by and large, being transferred to the LAC Commander. The CMU is constituted primarily as a collection of groups designed to support general duties, criminal investigators and highway patrol, although proactive enforcement teams are sometimes included in the structure. The Intelligence component of the CMU is responsible for the collation of information, information analysis, target development and profiling. Officers within the CMU include the Crime Co-ordinator, the Crime Prevention Officer, the Licensing Unit, the Intelligence Unit, Liaison Officers, the Brief Handling Manager and the Proactive Policing Unit. EDW 263In a document described as 'Enterprise Data Warehouse Organisational Performance Data Mart Glossary', produced in October 1999, references were made to the OCR and "targets". In relation to the OCR, the following entries appear: The OCR drives intelligence-led policing throughout the Service and achieves better service delivery to the community by focussing relentlessly on hot spots, recidivist offenders and repeat victims. .. The OCR has encouraged a performance-based culture within the NSW Police Service, has focused the entire organisation on achieving corporate goals and the OCR has led to adoption of a more pro-active, rather than reactive, approach to crime throughout the State 264In relation to the latter, the document records: In 1998 Commissioner Ryan expressed the desire for NSW crime figures to return to their 1996 levels. To achieve this objective, the Commissioner set each Command the target of reducing crime to the lowest monthly average achieved during 1996. To further reduce crime, it is anticipated that target figures for 1993 and 1991 will be established. NSW Ombudsman's Report 'Policing Public Safety - November 1999' 265The Report contains an analysis of the 1998 Act and, in particular, powers given in relation to "move ons" and "knife searches". The report makes few direct references to proactive policing but does refer to operations that would fall within the concept of proactive policing, such as "high profile and large scale targeted police operations" (including high visibility policing), the targeting of repeat offenders, "proactive saturation", "displacing/tracing drug markets" and, in operation 'Oilgate', cracking down on street crime and anti-social behaviour. 266The Report indicated that there had been confusion about the grounds necessary to implement the 1998 Act, and it was recommended that there be a consolidation of the "various stop and search provisions". There was a recommendation for, what is now effectively, LEPRA. Suspect Target Management Plan ('STMP') 267This was a proactive initiative designed to combat recidivism. It was widespread in the NSW Police Service from about 2000. Auditor-General's Report 2000 268The next and an important document in this sequence is the Performance Audit Report to the NSW Legislative Assembly, entitled 'NSW Police Service: Staff Rostering, Tasking and Allocation' issued by Mr R J Sendt, then Auditor-General, in 2000. The objective of the audit was to form an opinion on the efficiency and effectiveness of staff rostering, tasking and allocation systems and practices at LACs within the NSW Police Service. 269The Auditor-General considered that the work of sworn and unsworn police activities at LACs could be "broadly categorised" into three groups: Reactive (operational) policing - response to calls for assistance and related investigations (supports concerns for public safety); Proactive (operational) policing - initiated by LACs and consists of tasks to prevent crime; Support activities - include exhibits management, rostering, intelligence (operational support) and personnel, building and property (non-operational support). 270Proactive policing was defined by the Auditor-General as: Policing activities in support of crime prevention strategies. Based on intelligence it tasks police resources to anticipated offenders, locations and/or victims. 271Reactive policing was defined as: Policing activities focused on responding to, and investigating, crime or non-crime events where police action has been requested and is to provided. 272The Report referred to work currently being undertaken in relation to COPS with a view to "the capture of proactivity through, for example, an extended range of standard COP incidents ...". This was said to be necessary to fill "the gap in the completeness and accuracy of proactive data". That gap related to non-criminal type occurrences for which COPS provided limited data fields. The inquiry also referred to the impediments in the recording of data and its measurement arising from the "lack of definition of proactive policing" and the lack of definition of boundaries between reactive and proactive policing. Not all LACs recorded in the same way. 273After considering the activities of LACs, the Report found that there were difficulties in maintaining the level of General Duty police officers required to respond to urgent calls. The result was that the level of proactive activities and the impact of intelligence on proactive activities undertaken by general duties crews was variable. It was also noted that the "preventative strategies associated with proactive policing [required] a greater degree of planning and discretion than required for reactive policing. By its nature, proactive policing is not done by the book in a compliance manner ...". 274The Audit Report also found that "the improved link between task and intelligence is continuing to change police practices". It was indicated that the Wollongong LAC displayed the most intensive use of intelligence in its application of proactive policing (this will be discussed further below). 275In the Executive Summary to the Report, the Auditor-General expressed the following opinions: A key priority of the NSW Police Service is ethical cost effective crime reduction. The aim for Local Area Commanders (LACs) is to reduce the levels of the five index crimes (assault, break and enter, robbery, stealing and motor vehicle theft) to 1996 levels and below. To achieve this LACs must implement crime prevention strategies, undertake more proactive policing and gain improved support from information systems. Rostering and tasking systems are critical to the deployment of staff to proactive policing. ... The Police Service is in the process of undertaking a wide range of information technology systems developments that are expected to improve the Service's capabilities to apply intelligence information to the deployment of staff at LACs. Implementation of the current phase is to take place over the next eighteen months. The Audit Office considers that the developments are timely and when fully implemented should significantly contribute to the Police Service's ability to be more proactive and provide for better staff deployment. ... The Audit Office is of the view that the impact of these developments on the efficiency and effectiveness of rostering and tasking at LACs would be further enhanced by attention to gaps in systems and to restrictive staff allocation practices. For example, limited recording of proactive policing activities restricts the evaluation of policing activities ... ... Proactive policing is not clearly defined and is interpreted differently between LACs. A lack of definition of what constitutes proactive policing adds to the limitations of its recording and measurement. Proactive policing in LACs is primarily achieved through periodic special operations conducted by officers from across the LAC to focus on specific locations and types of offenders, through functional groups such as permanent target arrest groups (of around 4 officers) and through the permanent liaison officers (community, youth, domestic violence, licensing). In addition, proactive policing is undertaken, on an ad hoc basis, by general duties officers whose prime responsibility is reactive policing. More complete information is, however, required at LACs to support and account for the high level of discretion exercised in the management of rostering and tasking for proactive duties. Operational systems, COPS (Computerised Operational Policing System) and CIDS (Computer Incidence Despatch System), are currently more aligned to recording reactive policing and only record part of the proactive work that is undertaken. Improved capture and assessment of proactive policing activities can be achieved through the further development of COPS and CIDS. ... Consistent, service-wide tasking systems have not yet developed. This contributes to the variable recording, acquittal and evaluation of proactive policing at LACs. However, there are sufficient similarities in tasking practices at LACs to support the development of corporate tasking systems and practices for application at LACs. ... To achieve the effective utilisation of the increasing number of officers available for proactive duties there will need to be an improved integration of intelligence information coupled with flexible rostering and tasking practices. ... The incomplete recording of police activities in operational systems and the corporate priority given to crime reduction trends has limited the development of proactive strategies and the consideration of times and costs accrued to outputs. This has restricted accountability for the application of resources to proactive policing. ... Initiatives such as the Police Assistance Line (PAL) release police officers for proactive policing duties... 276The Audit Office recommended that the NSW Police Service "better coordinate current activities aimed at expanding the recording and assessment of proactive policing. These include improvements in tasking practices at LACs, the Smart Rostering System ...". 277Under a discussion of "Alignment of Activities with Strategies", the authors state: The preventative strategies associated with proactive policing require a greater degree of planning and discretion than required for reactive policing. By its nature proactive policing is not done by the book in a compliance manner. The management of tasking, which relies on intelligence to predict policing needs, is crucial for proactive policing as it supports its delivery in a flexible but directed manner. 278It was also stated that: In the face of this complexity, a focus on the measurement and management of the means or outputs that influence the achievement of the broader corporate outcomes is more tangible and appealing. ... ... LAC business plans emphasise crime reduction in the 5 crime indexes and include limited focus on other initiatives tailored to the local environment and the other corporate objectives. 279The authors also noted: As outlined in earlier chapters, the existing data collection processes support largely a reactive policing perspective and do not yet support the recording and assessment of many proactive policing activities. 280The core systems then being contemplated to underpin the "activity-based measurement" were described as follows: Key components of this strategy are: the Enterprise Data Warehouse (EDW), the central repository of Police Service data, is to support improved measurement and assessment of police activities. Importantly, the EDW will support improved analysis of the data contained in the current operational systems ... 281Significantly, the Audit Report observed: Flying squads or target teams are a recent initiative and are to be deployed at Region levels to 'hot' spots and offences. The success of general duties officers in undertaking tasked proactive work is limited by how busy they are responding to calls from the public. If not supplemented with additional crews for proactive work the busier LACs will undertake less proactive policing. 282Further, the Report stated, as to "Police Activities": This complex environment creates challenges for the complete capture and accurate measurement of the broad range of police activities. For example, how to capture and measure the tasked proactive work, such as patrolling 'hot spots', that may be undertaken by general duties officers when not responding to calls from the public. Measuring activities is fundamental for resource management as it provides data on how resources are being allocated to deliver specific outputs and assists in the planning of future resources allocation, the improvement of internal processes and the measurement of costs. 283The Report also dealt with the OCR process, as follows: The emphasis at the OCRs is on crime reduction. This development can be sourced to the 1998-2001 Corporate Plan and mirrors many aspects of the New York Police Department's policing model. The desired outcome of the focus is a reduction in crime levels, in the first instance, to 1996 levels. The OCRs concentrate on the five crimes of assault, break and enter, robbery, stealing and motor vehicle theft and four indicators, with a more proactive orientation, street offences, drug detection, traffic (PCA, cancelled driver, disqualified driver) and goods in custody. The approach at LACs is to concentrate efforts on the most active offenders, the 'hot locations' and repeat victims at the most probable times. Underlying this more targeted, more intelligence-based approach is an aim to increase the level of proactive policing. Current initiatives include: managing responsive police activities more efficiently through improved rostering the appointment of additional sworn officers releasing officers from non-operational duties by appointing more civilians the full introduction of the Police Assistance Line (PAL). 284The then Commissioner's response to the Auditor-General is recorded in the Report. In relation to the concern over measurement of policing services, the Commissioner responded: In relation to the first theme the Service has already enhanced its Computerised Incident Dispatch System (CIDS) to allow data to be captured on hours spent on taskings (that is the activity designed to target areas where crime is likely to occur). Coupled with this are further enhancements to both CIDS and the Computerised Operational Policing System (COPS) which will allow the transfer of data between these and other systems. 285The Auditor-General referred to LACs visited during the inquiry and commented upon the success of the NSW Police Service meeting First Response Policing Agreement staffing levels. In this context, observations were made about proactive policing, as follows: In these circumstances, the level of proactive activities, and the impact of intelligence on proactive activities undertaken by general duties crews, is variable. It was observed that busier LACs were less likely to be able to undertake proactive policing through the designated general duties officers. 286In relation to the management of tasking, reference was made to a case study of Wollongong LAC, which was described as follows: Of the LACs visited, Wollongong displayed the most intensive use of intelligence to apply tasking on a time and location basis. It also displayed the most attention to the evaluation of proactive tasking achievements. 287The Wollongong tasking strategy involved the use of intelligence data and tasking sheets which were compiled by intelligence officers. Specific proactive policing tasks were allocated for each shift. The crews were required to report on times spent on proactive policing and why proactive tasks were not fulfilled, such as attending to calls. The Report stated: ... is founded on two key areas of intelligence data: knowledge of history and current trend for the five key crime types over the whole LAC and within defined internal geographic zones probability of any type of crime being committed, per two hour time period, in any identified crime "hot spot" for any day. Tasking sheets are compiled by intelligence officers and include specific proactive policing tasks for each shift. The crews must return the sheets and include the times actually worked on each tasking and reasons why less than the specified time was worked - this can occur as general duties officers must first respond to calls from the public. Analysis prepared from the data includes: a Gantt chart for the particular "hotspot' area for the day, displaying the actual coverage achieved during each two hour period by various crews during the course of the day. The chart also displays the anticipated probability of crime occurring during each of the two hour periods review of the crime trend in the hot spot area subject to proactive policing. 288It might be noted that Superintendent Plotecki agreed, in cross-examination, that the Gladesville LAC also did proactive work in the 2000-2002 period. Phase III Report 289Later in the year of the publication of the Audit Report, then Commissioner Ryan published his final blueprint report setting out an agenda from 2001 to 2005. 290Two of the five key themes for the further reform process (Phase III) were 'Best Practice Crime Management' and 'Effective Deployment of Resources'. In the first of those categories, the then Commissioner observed: To do this we will adopt the latest technology to manage investigations, handle productivity, train our people, analyse information, and optimize our communications. We will underpin this with robust anti-corruption strategies. Crime Management Units in the LACs will improve our intelligence gathering and analysis by precisely identifying and targeting the small number of repeat offenders, victims and locations that are the key factors in the crime equation. 291As to the deployment strategies, the then Commissioner stated: As an organisation we will continue improve our intelligence, productivity, visibility, rapid deployment capability and customer focus. As well as investigating crimes we will proactively seek to prevent crime and breaches of public safety. To do this, we are developing a new service delivery model and leveraging improvements in technology to deliver faster, more responsive and more cost effective service delivery from strategically placed policing centres 292Assistant Commissioner Murdoch gave evidence as to the Phase III Report. He agreed that the then Commissioner was seeking significant improvements in technology and intelligence gathering and, as to the then Commissioner's deployment strategies, he accepted that the then Commissioner was "recognising that was something that was not effectively being done at the time, and that was a goal he wanted to achieve". 293In cross-examination, Assistant Commissioner Murdoch gave the following evidence as to the state of things at the time of issuing the Phase III Report and future directions as to crime management and deployment of resources, as follows: Q. And you will accept that what has happened since then, not necessarily in the Commissioner's timeframe, but what has happened since then, is that there has been a significant improvements in both intelligence gathering and the tasking and deployment of officers based on that intelligence? A. Agreed. Q. And in particular, again in response to the 2006 State Plan, there has been the strategic use of intelligence to task and deploy police in a proactive way in order to maximise the effect of that proactive policing, correct? A. Yes, sir. Q. And that is an important change that has developed, or at least evolved since 2005, correct? A. Yes, sir. 1996 - 2000 Conclusions 294The foregoing analysis paints, in our view, a clear picture of the reforms to policing up to the end of the year 2000. Superintendent Plotecki correctly stated that "the NSW Police Force vigorously pursued changes to workplace, culture and deployment practices from the late 1990's to change the focus from reactive to proactive policing". The then Commissioner's reform agenda established the architecture for a shift in the organisational model from reactive to proactive policing, putting in place both policy and structural changes supportive of that process, including the Integrated Crime Management Model, OCR, EDW and, as Mr Kenzie submitted, technology which permitted crime mapping such as Map Info. Business plans contributed to "developing" strategic managers (but operated through Region Commanders). PAL assisted police focussing on frontline duties and, as stated in the 2001 Report by the Commissioner of Police entitled 'Future Directions 2001 - 2005', increased frontline productivity (although the extent to which it actually released police officers for frontline duties was moderate - the Association's case was that it released some 200 police officers). The 1998 Act facilitated the use of proactive policing powers. 295Overall, the reforms produced a flatter management structure and a redirection in the force's policies and procedures to reduce crime by an emphasis on "frontline policing" and intelligence-driven deployments. Again, we refer to the review by then Commissioner Ryan, 'Future Directions' (which reviewed the progress of reform from 1996 to 2000): Flattening the structure of the Service was a major Royal Commission reform recommendation. It was also one of the first radical changes brought about by Commissioner Ryan. The Aim was to spread accountability and responsibility throughout the organisation. Among other things, this was to ensure better support for frontline policing. This change brought with it the need for accountability at every level. 296However, at this time, proactive policing was in a pristine form. Attention was focussed upon high visibility and hot spot policing involving the use of some proactive powers. Proactive policing was applied in short term operations, and in an ad hoc way. To quote the Auditor-General in his 2000 Report, proactive policing in LACs was primarily achieved through "periodic special operations" conducted in specific locations for specific types of offenders with the function being discharged by General Duties police officers whose prime responsibility was reactive policing or, as Superintendent Plotecki described it, small dedicated units within LACs such as bike squads. 297Further, Assistant Commissioner Murdoch confirmed that proactive policing was not clearly defined during this period and was, in fact, interpreted differently between LACs (this view was the same as the Auditor-General in his 2000 Report). These were not common benchmarks which, in consequence, impacted upon the effectiveness of OCRs in driving proactive policing pursuits. Similarly, there was a deficiency in the measurement of proactive policing by the then COPS system. Assistant Commissioner Hudson stated: The real focus on pro-activity commenced post the Police Royal Commission with an emphasis on Intelligence Based Policing which was implemented in 1999 through the Integrated Crime Management Model. The creation of Crime Management Units / Integrated Crime Management model put focus on intelligence based policing. This was an issue at the OCR process in 1999-2000. 298He also accepted there was a "large" amount of proactive work after 1999/2000, although some work had been done earlier in time. 299Crime Prevention Managers were appointed in all LAC's. However, there was a deficiency in the development and integration of intelligence systems. CMUs in LACs were said to improve the potential for intelligence, but were obviously still developing (the Executive Summary for the 'Future Directions Report' referred to the need for their improvement in order to achieve Best Practice Policy). A Crime Management Support Unit ('CMSU') was established in 2001 to help make CMUs work as they were intended (the Commissioner recognised that this assistance would be required in his discussion of 'Future Directions'). The precursor to consistent application and implementation of proactive tasking, iT@sk, was yet to be introduced (we will discuss this system in the following historical period). In any event, intelligence-led deployment was primarily designed to match police on duty to calls for service. It had only a moderate resemblance to the intelligence-led tasking practices which featured as the underpinning of proactivity in later years. 300Map Info did indicate, as Mr Kenzie submitted, a shift towards proactive policing and, we would agree, to some extent, the system acted as a foundation for targeting crime and the use of intelligence in proactive policy. However, that technology was operated within limited parameters at this time (the proactive policy we have described in this conclusion was largely confined to the restricted range of proactive deployments with a loose intelligence connection). 301The Commissioner placed considerable weight on the description of the Wollongong LAC as at 2000 provided by the Auditor-General in his 2000 Report. This is understandable, as the Association chose the Wollongong LAC as part of the representative sample, and this example clearly demonstrates the existence, as at the year 2000, of a proactive policing system in which there was employed intelligence-driven proactive deployments and a system for an analysis of such deployments (which was also available for planning purposes). Wollongong LAC utilised the CMU, EDW and iWork by the time of the Auditor-General's 2000 Report. 302The Association, however, submitted that this example was not destructive of its case. Rather, it contended that the Wollongong LAC in the year 2000 was "the exception that proved the rule". Given what we have described as the state of proactivity during the period leading up to 2000, there is some substance in this submission but it cannot be accepted without some reservation. Plainly, Wollongong LAC in 2000 represented a forerunner to more advanced developments in proactivity which evolved in the NSW Police Service (later NSW Police) throughout the period in which the industrial agreements we have earlier discussed applied. Those developments also occurred prior to the datum point. Those factors must then have some impact upon the assessment of the Association's work value claim consistently with our earlier conclusions in relation to those agreements and the datum point. That evaluation should properly await, however, a more detailed analysis of the ensuing period and other arguments presented by the Commissioner. 303The Commissioner extended his argument, to submitting that the Wollongong LAC, in 2000, was representative of the future and quality of intelligence-based policing "now", and that the example of Wollongong begged the question "why wasn't intelligence-based policing part of policing and part of the world of general duties officers in 2005?". Ultimately, the resolution of these submissions will require further analysis of the historical material and other evidence but we can state, at this juncture, that the submission is attended by some real difficulties. That is because we will find, as we move through this historical analysis, that there were substantial differences between 'proactivity' in the year 2000 and later stages of development (and, indeed, between the state of police proactivity as at 2005 and its application, nature and quality after that date). 304The Association submitted that, in reality, the description of the Wollongong LAC in 2000 may be used as a 'yard stick' to judge just what changed after 2005. It pointed to the fact, as we have earlier described, that the Wollongong LAC's operations at the time had depended upon the compilation of tasking sheets and the specification of specific times to carry out proactivity during a given shift with respect to particular officers. The non-corporate electronic tasking system (the electronic system was developed later) was then brought into the analysis of 'hot spots' with correlations drawn with a view to identifying crime trends in a hot spot area, the subject of proactive policing. As the Association pointed out, this time management approach was later reflected in the 2002 iT@sk system (to which we will return). 305As we will further discuss, there is merit in the type of distinction the Association drew, in that respect, between the state of proactive policing as at 2000 and the later policing environment. In that later environment, time spent on tasking was no longer the measure of performance for proactive policing activities. The measures of performance and effectiveness in the later periods were based upon, as the Association submitted "the number of interference measures recorded in the COPS system (how many move ons, person searches, knife searches, vehicle searches and other powers were exercised)". This shift in the nature of the system commenced with TITUS, to which we will shortly turn and, as the Association submitted, became embedded within the LAC business plan targets and, ultimately, COMPASS. (The Association also added that the post COMPASS period saw the inclusion of additional interference measures, such as business inspections and school inspections.) More significantly, as we will now discuss, we accept the submission of the Association that: This style of hot spot policing, managed through the time spent at a particular location is exactly what the TITUS system was designed to change. TITUS transformed what had developed before - proactivity needed to be more than just hot spot policing. 306Nonetheless, the Commissioner is correct to submit that, by 2005, proactivity, at least of the kind experienced in the Wollongong LAC, had spread well beyond that area (although it would appear from the evidence of Superintendent Worboys that little had changed in Wollongong LAC by 2005), partly by an evolution of systems commenced at the turn of the century but also particularly as a result of the inception and implementation of TITUS. TITUS commenced a significant transformation underpinned by pre-existing (or soon to be implemented) technologies. This corresponds with our earlier statistical findings. 307Those conclusions inevitably result in the distinction between the pre and post 2005 period falling within a narrower margin. However, the relevant inquiry under the work value principle is whether there has been a significant net addition to work requirements after the datum point. 308In this respect, we note the Association developed its submission in the following terms: The new approach reflected in TITUS was the measurement of specific incidents of activity reflective of interference based proactive police work, to enable the better management of that work. As Senior Sergeant McDonnell observed "TITUS was the commencement, I think, in my experience, the first time that we really started to consider productivity". It is that element of the TITUS approach that is now embedded within the COMPASS computer system, based around specific proactive activity performance targets within the LAC Business Plans, and was designed as an integrated performance tracking system that provided monthly reporting mechanisms "to encourage Commanders responding to issues in a timely manner and not waiting until a quarterly return to identify an emerging issue". It is the drive for those proactive performance measures, and all that comes with it, that is described as having the "ripple effect" across the LAC workforce in Ex 150 at paragraphs [123] to [150]. 309Those further submissions, going to qualitative changes in work requirements and the Association's contentions as to the establishment of proactive targets after the 2006 period (and work intensification) shall be analysed in our discussion of the next two historical periods but must be considered in the light of observations made in the previous two paragraphs as to the nature and degree of change which, in reality, the Association ultimately came to expose in its case. 2001 - 2005 310We commence our discussion of this historical period by noting that the NSW Police Service was renamed 'NSW Police' by the Police Service Amendment (NSW Police) Act 2002. 'Police Weekly' Editions 2001 - 2002 311In the September 2001 edition of 'Police Weekly', it was reported that the CMSU would be "looking at performance" based on "how proactive deployment is decided" and that improvement packages could be produced for "changed management or deployment practices to alter the focus from reactive to proactive policy". 312The 'Police Weekly' of February 2002 described a restructure of the NSW Police. The 'Police Weekly' noted that there was a requirement for all LACs to identify crime 'hot spots'. 313The same publication, in June 2002, referred to TITUS and identified that system is "about changing the mix between reactive and proactive policing". Intelligence Officers' Submission 2002 314The Commissioner relied on a document which essentially consisted of a claim for a special duties allowance by Intelligence Officers. The document was responsive to a call for expressions of interest. A submission made on behalf of the officers included a job analysis questionnaire. That document contained the following statement: the NSW Police Force had "progressively integrated intelligence into all facets of its operational decision making process" and that this had occurred in the midst of rapid technological change. As to intelligence itself, the submission indicated that Intelligence Officers aided in proactive deployment of operational policing resources. The Intelligence Manager commented that "for several years the NSW Police had referred to itself as an Intelligence-Led or Intelligence-Driven organisation". The submission had attached to it a document describing intelligence functions within CMUs. It was contended in that document that the CMU had a special emphasis on identifying problems and developing proactive strategies. Further Developments in 2002 315In June 2002, then Assistant Commissioner Moroney stated, as an objective, that "'hot spot policing' would become a normal part of policing throughout the State". 316A presentation was given by Superintendent Plotecki in 2002 about TITUS. We accept the contention of the Association that Superintendent Plotecki's account should be accepted as a contemporaneous description of the nature and structure of policing as at 2001/2002 (unaffected, as it was, by the vicissitudes of these proceedings). Whilst his presentation may suffer as being slightly polemical (in support of the TITUS system), it was an account presented to the relevant Minister and Senior Officers and might, therefore, be expected to be attended to with some care. His account was not adversely affected by his cross-examination and sits comfortably with the Report of the Auditor-General in 2003, to which we will next turn. The presentation was as follows: Historically policing is reactive in nature. An incident takes place, police are called and reports are made. Where warranted, an investigation takes place. Since 1997 a number of attempts have been made to change this reactive bias. While some progress has been made, there is much that needs to be done. In December 2001, across the eleven policing regions of New South Wales, the collective average number of knife searches, move-on's, arrests and intelligence submissions amounts to just 2.81 per person, per month. In contrast the average number of reported criminal incidents is 4.19 per person, per month. The reactive policing culture within the New South Wales Police Service is evident at a number of levels: The organization measures success within the context of crime reductions within five key 'reactive' crime categories. Police staff deployment is based in part on reactive workload and calls for service as recorded on the Computer Incident Dispatch System (CIDS). Indeed staffing numbers are not calculated on the premise of the number of staff required to control and minimize crime, but rather on meeting customer service requirements and calls for service. Industrially and within the various Local Area Commands there is a pre-occupation with "first response staffing agreements" - ensuring that there are sufficient staff on duty at any given time to meet the reactive demands of the Command (again determined by CIDS data). The prevailing 'reactive' cultural mindset has resulted in a number of consequences not least of which is the narrow definition of policing that dominates the thinking of many practitioners and police managers. It is a view that 'pigeon holes' the general duties police role into that of responding to calls for service, while specific specialized units (at local and Regional level) take primary responsibility for the "pro-active" activities. For evidence of this, one need only look to the individual work reports of Local Area Commands. It is a common occurrence for accepted "pro-active" measures such as intelligence reports, knife searches, move-on's, and drug arrest to be the domain of a select few individuals within a Command. These staff usually being attached to specialist groups such as a bike team, target action group, drug and property unit. There is a price to pay for this over reliance on pro-active specialist groups. General duties personnel are de-valued and the pre-eminence of the general duties practitioner as the primary means of influencing and minimizing criminal activity is lost. When it is considered that approximately 65% of Police are deployed in general duties, the cost to the Service and the wider community of this 'reactive' organizational bias is staggering. As an organizational priority we need to do two things. 1. Convince general duties police that they need to be more pro-active as part of their daily duties and, 2. Develop police leadership models that can motivate their people and maintain a focus on pro-active (interference) policing activity. 317Before moving to the 2003 Auditor-General's Report we should note that Superintendent Plotecki did concede that, in the 2002-2003 period, General Duties police officers would, nonetheless, have had proactive responsibilities as part of their ongoing duties. 2003 Auditor-General's Report 318The Auditor-General issued a 'Follow-up of Performance Audit Report' in December 2003. The Auditor-General expressed the opinion that "proactive, high visibility policing is an important crime prevention strategy" and that such a strategy was dependent upon intelligence-based tasking and rostering systems. 319However, the Auditor-General commented that progress, in this respect, had been "rather limited". The Auditor-General commented further that: So far, a service wide rostering system has been introduced along with a system to allocate and record proactive tasks. However, neither system interfaces with intelligence data bases. In addition, NSW Police has not addressed the issue of what activities constitute proactive policing preventing regional comparisons or the evaluation of impacts. 320As to particular aspects of the implementation of the 2000 Audit Report's recommendations, it was commented that NSW Police had not progressed all of the information system improvements that were planned in 2000, although the report acknowledged that the NSW Police had implemented a system-wide tasking system known as 'i-T@sk'. (The system was introduced in July 2002. It was an intranet-based tracking and allocation system by which Intelligence Officers and supervisors created and allocated proactive duties and general tasks to police crews.) The authors considered that a benefit of the system was that it permitted the capture of "high visibility policing activities" and the tracking of changes in crime as a result of those activities. 321However, there was an absence of definitions and rules for the implementation of iT@sk and, as a result, not all LACs used iT@sk or, if they did comply, they did not "use it in the same way". Further, we agree with the submissions of the Association that the failure to properly define 'proactive policing' must have impeded the operation of the iT@sk system. 322The report indicated there had been improvement to the COPS system for recording purposes but that further enhancements to improve the range of standard COPS incidents to allow proactive policing to be captured were required. 323In response, then Commissioner Moroney indicated that NSW Police intended to remove the existing COPS system and replace it with COPS II. The Commissioner also indicated that he considered sufficient attention had been paid to issues raised in the 2000 Report by way of the implementation of the OCR, ICMM and the creation of the CMSU in September 2001. 324The Association made the following submission in relation to the 2003 Auditor-General's Report and the development of proactive policing at that time: Again, even as at December 2003, whilst it is no doubt correct to say proactive policing focused upon hot spots, repeat victims and recidivists was an established concept, there was still no organisational driver for high levels of proactive interference of the kind now seen in LAC Business Plans and the COMPASS system, to be driven through the general duties workforce. As Assistant Commissioner Murdoch accepted in cross-examination "the assessment of what we would call proactive policing and its impact on crime, yeah, it really wasn't that clearly understood at that particular point" and it was his evidence that "the work of TITUS and the officer who developed it really, you know, it was a groundswell of support for that and TITUS really consolidated some thinking around the relationship between crime and proactivity and that's what took it forward". Vikings 325Before turning to the TITUS system, we will briefly discuss Operation Vikings. The first Operation Vikings commenced on 24 May 2002 (and occurred over 24 and 25 May 2002). It was described in internal police publications from that time as a "major high visibility policing operation targeting anti-social and criminal activity", and involved "frontline police and specialists from the Information & Intelligence Centre (IIC), Police Citizens Youth Club, Water Police, Education Services, Traffic Services and Court & Legal Services". Although it was undoubtedly a major proactive operation, it was short term, and was, in character, a hot spot, high visibility policing operation. 326Initially, further Operation Vikings were conducted in this manner. However, from about 2004/5, Operation Vikings began to evolve into a different form. The Operations then included operations with a Highway Patrol ('HWP') focus utilising HWP officers in "crime corridors or to target specific anti-social behaviour e.g. street racing". The system also evolved into the formation and deployment of individual teams from the new Vikings unit into LACs and Regions to conduct wholly proactive operations that were not restricted to geographical boundaries (this unit subsequently transformed into the Public Order and Riot Squad after the Cronulla Riots). Additionally, there was the allocation of funding to individual LACs to undertake locally led proactive operations that "recognised the need for local solutions to local problems". These local level operations were described as follows: They were encouraged to be proactive operations. The measures of success included, but were not limited to, the use of proactive powers such as move-ones and knife searches, intelligence reports submitted and people arrested. The LACs had to submit returns to measure outcomes and reconcile the allocated funding. 327However, even with these changes, Vikings' operations still consisted of short term operations conducted by specialist units (or special operations). In his evidence, Superintendent Ball stated: What I am describing has been an evolving process, as I described in my first statement. The Operation Vikings initiative was an example of the evolving process in relation to proactivity as an organized large scale policing strategy... The point I would make is that Vikings Operations were just that: discrete specific operations. They lasted for short periods and involved officers being rostered over and above the general rosters. That sort of work was not embedded in the ordinary day to day management of the first response general duties officers: it was, back then the province of the proactive units. The period of time that involved the genesis of Operation Vikings 2002/2003 was the period of time where the organisation was starting to come to grips with proactive policing as a large scale organized operational policing strategy, and how we could better manage officers to do it. TITUS and the Period to 2003 328The 'founding father' of the TITUS system was Superintendent Plotecki. He commenced developing the TITUS system when he returned from study with the FBI in September 2001. The system was first trialled in the Endeavour Region where the Superintendent was the Acting Commander. As at 24 June 2002, there were approximately 20 LACs using the TITUS system, including Lake Macquarie, Miranda, Mudgee, Tuggerah Lakes, Brisbane Waters, Green Valley and Lower Hunter. These trials were continued beyond March 2003. Thereafter, NSW Police, at a corporate level, "rolled out" the TITUS system between 2003 and 2004. 329Superintendent Plotecki described the system in the following two passages of his evidence: TITUS involves the use of a whole of crime/whole of command approach to the management of crime, and was designed to challenge the prevailing corporate culture that largely relegated the general duties practitioner's role to that of addressing calls for service and reacting to crime. and [16] "Titus" defined 'pro-activity' and proactive policing within the context of interference with the criminal (and anti-social) milieu. The intention of defining it in that way was to enable us as an organisation to identify incidents of recorded policing activity that reflected that interference, and in so doing, enable us to performance manage our staff within an LAC to increase our proactivity (that is, increase the levels of interference with the criminal milieu). It created the opportunity for a more inclusive approach to policing, in which everyone within an LAC, and in particular the general duties practitioners (who make up the largest contingent of the workforce) had an integral role. [17] The Titus approach was built upon a management philosophy that it was better to drive a relatively small increase in performance from a large number of staff, than a large increase in performance from a small number staff - to that end the strategy was always aimed at changing how General Duties Police worked. [18] The use of general duties practitioners to generate interference measures, not only offered the opportunity for significantly higher levels of interaction with the criminal element, it furnished Commands with the capability of making.that interference sustainable by better engaging the core of its workforce. Sustainable pro-activity meant sustained crime reduction and minimisation. To this end proactive policing activities can be defined as those activities that bring Police into contact with the criminal and anti-social elements. Accordingly, proactive policing measures are the product of those interactions - arrests/ cautions, searches (including knife and drug searches), move along directions and intelligence reports. and in the following further extract from his 2002 presentation: The target group that is to be influenced by an increased police presence is the criminal/anti-social element within a given hot spot. If such a group perceive an increased police presence as merely window dressing (and such an impression could easily be gained through police reading newspapers and sunning themselves), the value of these increased patrols is lost. Conversely, if this same group believe that an increase police presence also equates to greater likelihood of police interference in their activities (and their arrest) then the effect of these patrols would be significantly greater in reducing, deterring and displacing crime and anti-social behaviour. It should also be noted with this study that the time that police spent in these 'hot-spots' when tasked to do so was on average only several minutes. Unless tasking to a hot spot is accompanied by some required interaction Police lose interest and motivation. This statistic also highlights the need for management to ensure that all Police under their control develop a sound understanding of the role and importance of intelligence, tasking and targeting. Widespread comprehension of these concepts should underpin the professional judgment and actions of police practitioners in the field. Re-defining 'proactivity' within the context of interference with the criminal (and anti-social) milieu creates the opportunity of a more inclusive approach to policing, in which the general duties practitioner has an integral role. The inspiration of general duties personnel within a command towards the generation of interference measures, not only offers the opportunity for significantly higher levels of interaction with the criminal element, it furnishes the capability of making that interference sustainable. Sustainable pro-activity means sustain crime reduction. 330In the Association's submission, TITUS was the harbinger of what was to come and forms an important part of the narrative surrounding the history of proactive policing. As an approach to the management of an LAC and the officers within it, it was the foundation for the current day approach reflected now in "the key performance and accountability process". We consider that it clearly represented a turning point in the development of police proactivity. 331The Association further submitted, in relation to TITUS, as follows: The new approach reflected in TITUS was the measurement of specific incidents of activity reflective of interference based proactive police work, to enable the management of that work: it was both a strategy and a methodology. It is that element of the TITUS approach (underpinned by a corporate acceptance that high levels of interference based proactive activity will reduce crime) that is now embedded within the COMPASS computer system. The COMPASS computer system built on that approach and was designed as an integrated performance tracking system that provided monthly reporting mechanisms "to encourage Commanders responding to issues in a timely manner and not waiting until a quarterly return to identify an emerging issue". 332The Commissioner submitted that TITUS merely enabled the measurement of what was already being done. In essence, it was submitted, the system had no role in affecting change in its own right. We do not consider that this submission can be accepted on the evidence. 333We have already summarised the evidence which demonstrates that, as at the period 2001 to 2002/2003, there was further development of policing towards an intelligence-driven, proactive deployment model. However, by the onset of the roll out of TITUS, police proactivity remained relatively immature. There was a lack of definition of proactivity, interface with intelligence systems was restricted and proactivity remained restricted in its application in LACs. As Superintendent Plotecki described it, the predominant culture was still reactive, with specialist groups being significantly responsible for proactivity. IT@sk certainly created a new infrastructure by which proactivity could be driven, but it was also inhibited by definition and implementation problems. The OCR was a strict accountability process but its effectiveness was, ultimately, determined by the organisational constraints applying at any point of time. 334The analysis conducted by Superintendent Plotecki at the time (and in his current evidence) demonstrated that, across the organisation as a whole, as at March 2003, there were comparatively low levels of proactivity (by reference to later periods and having regard to the definition adopted in TITUS). 335TITUS was, in fact, developed to drive change so as to fully achieve a developed and comprehensive model. 336It may be accepted that, as Superintendent Plotecki put it, the TITUS system was part of a "suite" of measures. However, it was also designed as and had the effect of a catalyst for change in the organisation; as Superintendent Plotecki described it, to drive the organisation from a reactive to proactive culture. His evidence, which we accept on the preponderance of evidence before us, was as follows: TITUS was both a strategy and methodology designed to address the dominant workplace culture among General Duties Police that emphasised reactive policing. This approach built upon and complemented other initiatives such as the Operational Crime Review, Vikings, Strike Force Gain and the widespread introduction of bicycle units. TITUS was not the sole reason for this change in emphasis to pro-active policing, it was one of the first processes to redefine pro-activity and to apply a system to measure it across the organisation. ... 337Assistant Commissioner Murdoch accepted that TITUS was, as we have earlier noted, "the first attempt at establishing common benchmarks for the measurement of proactive policing". He accepted that TITUS was a "tool". 338Further, Assistant Commissioner Murdoch identified that, in many respects, TITUS represented a shift in the conceptual framework or, as he called it, the "plan" to which the organisation was working at that time. It took the existing measures that were in operation in a further and different direction. We set out below his evidence, in this respect: Q. So can I characterise what happened in the early years of the century, as the force in response to the Commissioner's direction in setting up the infrastructure by which intelligence based and proactive policing could occur, correct? A. Yes, sir. Q. And TITUS was part of that, part of that infrastructure which allowed these things to be done effectively? A. Yeah look, I will agree TITUS was part of it. TITUS was born of Mr Plotecki, he is the father of TITUS. So TITUS wasn't part of the Integrated Crime Management Model. It wasn't part of the CMU process. It was something that Mick fought, or Superintendent Plotecki fought long and hard to get accepted and gain some legitimacy and I suggest it gained legitimacy on the back of support from his brother and sister commanders, until it got to the point where the organisation could no longer ignore it and it was drawn in. So it took a long time and so it was never part of the original plan or the original concept. It was something that it was adopted, because they couldn't ignore it any longer. Q. It fed into the evolutionary process? A. Well, it did, yes, but not the way the organisation had planned. It sort of come from left field, I'd say. Yes, it wasn't part of their big picture. Q. And it is from about 2005 or 2006 onwards that that developing infrastructure has begun to deliver the results from the ground, and in doing so, has changed the way police officers go about their work, by integrating proactive policing into their daytoday duties, correct? A. Yes. 339It should be noted that the Commissioner relied upon an extract from the then St George LAC Commander, Superintendent Carey (who gave evidence in these proceedings), to support his contention in this respect. Limited weight can, we think, be attached to this quotation, which merely appears as part of promotional material in a police publication at the time. In any event, we do not think the quotation fully supports the proposition argued for by the Commissioner. It is true that the then Superintendent referred to TITUS as being a management tool to measure "what you are already doing" but he also stated that "The troops don't have to trust that it works. They now have proof", indicating some hesitancy in the introduction or acceptance of the system. In the same quotation, Superintendent John Honeysett, Commander of the Mudgee LAC, described TITUS as "a really good system" and that "it changes the way GD police work; it points at leadership and it allows you to measure productivity". Furthermore, other contributors to the promotional material described TITUS as resulting in crime reductions and, as Inspector Steve Chidgey, then Crime Manager, Campsie LAC, at the time described it, was "a tool to illustrate that what we're doing is having a real impact on the crime stats. TITUS does show that. Our proactivity is not as high as it could be ...". Another author described how the system caused the crime rates to go down, but, when proactivity ceased, crime rates then increased. 340Before turning to the 2006 Intelligence Report, it is important to note that TITUS was not the subject of universal application in the pre-2005 period. Assistant Commissioner Murdoch gave the following evidence: Q. Even after TITUS was rolled out to all LACs in about 2003 to 2004, it wasn't anywhere near universally used by all LACs, was it? A. No. Q. Some LACs embraced it, some didn't use it at all? A. Yes, sir. Q. And it was only when we get to COMPASS in 2008 that you have, in effect, what is in effect what is a universally implemented system? A. Yes, sir. 341TITUS, as the 'engine room' of change, was really still in its earlier stages of implementation development by 2004. NSW Police Corporate Plan and Review of Intelligence 2004 342The Commissioner referred to two further documents applicable for the 2001-2005 period. The first one was described as 'NSW Police Corporate Plan 2004/2007' and the second, a 'Review of Intelligence, April 2004'. Both documents originated in 2004. 343In the first document, it was stated that a "specific intention for the period 2004 to 2007" was to "reduce crime through improved detection and prevention systems based on intelligence-driven, problem-solving processes and higher police visibility". The document also emphasises accountability and the use of CMF. 344In the second document there is a discussion about the ICMM. This model had produced the CMU's organisational structure in each LAC. 345The Review stated that "[a] central tenet" of the ICMM was as follows: "By effective use of analysed intelligence, the traditional dichotomy between crime fighting and problem solving might be resolved" and "This statement acknowledges a long standing distinction between the roles of investigation, intelligence and crime prevention in policing, and the manner in which each role has been articulated over time". 346The Review then stated that this distinction in roles had fuelled debate and "underpinned attitudes towards models of policing adopted in New South Wales and other jurisdictions, in terms of community-based policing, problem solving policing, intelligence-led, evidence-based policing". The Review continued that the ICMM was designed to remove "functional, procedural and decision support barriers through measures which ... [m]anage the change from reactive to proactive policing". 347Later in the Review, under the heading 'Statements of Corporate Intent', it identified "'Intelligence-led' and 'evidence-based'" procedures had been critical components of the OCR assessment process "in relation to reducing crime, violence and improved public safety since its inception in January 1998". 348However, the Review also identified that the operation of the ICMM in decentralised LACs with "centralised co-ordination through the State Crime Command", combined with intelligence roles in Regions and specialist Commands, had been limited by a number of factors and that there had been a "sub-optimal resource allocation to the intelligence network". The Review goes on to say "[a]n analysis of the current intelligence framework provides a snap shot of what can be achieved at LAC through the ICMM" and that there were "identifiable characteristics of LACs" in which "best intelligence and decision support practice can be seen to operate", but that "there are identifiable impediments to effective intelligence management at local level". 349Nevertheless, the Review indicated that "important parts of an overall intelligence model through tasking and deployment decisions" were being developed across LACs and that CMUs had been adopted. The report also stated that "if the Executive of NSW Police wishes to send a clear message as to the value of intelligence practices and procedures in pursuit of 'intelligence-led policing', there are measures, which can be taken in the short term, to alleviate the sub-optimal position which currently exists". The report urged the adoption of the principles applied to the Olympic and Paralympic Games 2000 which included "intelligence-led tasks and deployment". 350The Review recommended "the use of OCR framework to examine intelligence management and co-ordination across local area commands and specialist commands" and that there should be a re-establishment of "the strategic intelligence capability in State Crime Command, to manage and co-ordinate, development and use of full range of intelligence products, maintenance of information management capabilities, and operation of critical partnerships and relationships". 351There is a detailed discussion of the use of COPS in intelligence systems which refers to some deficiencies in the COPS system but none of the kind that was reported in the 2003 audit. 352It is true, as the Commissioner submitted, that the report makes clear that the EWD, E@gl.i, iAsk and iT@sk were all in use by April 2004. However, the report also noted that a criticism of the information management systems was that those systems were not linked to COPS. 353Finally, the Review stated that the OCR sought evidence that Commands adopted the following intelligence-based or evidence-based approaches to local policing issues: (i) Identification of local crime trends; (ii) Development of local crime reduction strategies addressing such issues as alcohol related crime and domestic violence; (iii) Identification and targeting of repeat offenders through the use of the STMP and corporate systems such as COPS Case Management and EDW; (iv) "Identification and targeting of Hotspot locations through COPS and EDW and tasking of resources to undertake High Visibility Policing at these locations utilising systems such as iT@SK". 354There was a further discussion of information management and technology in a document described as 'Summary of NSW Police Information Management and Technology Strategic Plan - 2003/2004 to 2007/2008' which was promulgated in February 2005. It referred to current projects being an in-car video, LiveScan (electronic fingerprinting) and automatic number plate recognition. It indicated that automatic bail reporting systems were in place. It also recognised that there was in existence iAsk, e-Notices, C@ts.i and CourtLink. 355The analysis in the Review may be compared with, and must be balanced against, Assistant Commissioner Hudson's evidence which was to the following effect in relation to intelligence-based policing: Q. But that was a developing process, from about 1999 onwards, that is, it was a goal to be achieved but was implemented by a series of measures that were put in place over a period of time, correct? A. Well, I think by 2001, and intelligence based policing was well entrenched in the NSW Police, it's a fluid process and it's still being improved upon today, it's not an exact science, sometimes the details change and everything. Q. The history I have referred you to describes an objective being established perhaps around 1998, 99 to achieve intelligence based policing and it was a fairly drawn out process by which that was put in place, to about 2004, 2005? A. No, I suggest we were well entrenched in that when I was a crime manager and local area commander. The role of the intelligence officer was supplemented by the addition of civilian analysts list and in many places they replaced police, and in many places such as mine I had the intelligence officer and the civilian analyst coexist, and I do not think you can have too big an intelligence section, and when I went to Mount Druitt there was no police officers in the intelligence branch unit, but they were replaced by two civilians and I put the police back in, 2003. 356Further, Assistant Commissioner Hudson gave evidence as to his experience in the Mount Druitt LAC in 2004, as follows: For example, I recall in 2004 when I was the Commander at Mt Druitt LAC, my LAC had the highest rate of knife searches in the state, highest move-on directions in the state, 100% mandatory training compliance, a fifteen to thirty percent reduction is all major crime categories, best timeliness for compliant management in the state and had achieved all of my Commands targets. I went along to the OCR and found myself questioned on the rates of pawn shop visits. OCR was a very strict accountability process that was more focussed on criticism than acknowledging good work. 357Before turning to our conclusions concerning the pre-2005 period we propose to refer briefly to some other aspects of the evidence. Senior Constable Brian Taylor gave evidence that, prior to 2005, proactive work included bail checks, tasking associated with STMP targets, high visibility policing and stop, search and move on powers. Sergeant McDonnell agreed in his evidence that intelligence-based policing was part of his role in 2005. Sergeant Minns confirmed that, prior to 2005, proactive policing included high visibility and walk throughs. Inspector Wyver gave evidence that the CMU was bound up in the development of intelligence-based policing, and that intelligence-based policing existed prior to 2005. Detective Inspector Pisanos stated that the Crime Manager's role was to engineer the highest levels of proactivity that a LAC can sustain in tackling crime. (He had given evidence that CMUs were bound up with the move from reactive to proactive policing from 1999.) All of this evidence may be readily accepted as confirmation that there existed intelligence-based, proactive policy as at 2005. It does not resolve, however, the question of its nature and character (relative to earlier and later periods) or the degree to which the system had been incorporated across LACs and as a core feature of the operation of LACs. Conclusions : Pre-2005 Period 358In the foregoing section of this decision we have made findings as to the development of proactive policing to the year 2003. These conclusions effectively concerned the period leading to the commencement of the roll out of TITUS (although, as we have noted, there were 20 LACs trialling TITUS in 2002). 359In the further period between 2004 and 2005, proactive policing grew in its application and its content more closely resembled the current model of intelligence-driven and targeted, proactive policing. There were, nonetheless, significant limitations with its operation (in comparative terms). The question which emerges then is what further development occurred in the period prior to the datum point? In our view, the development was reasonably substantial. There was a roll out of the TITUS system in the 2003/2004 period, although, as we have noted, it was incomplete. It had commenced an "evolutionary" period of change. The system faced the task of bringing about the changes on a 'whole of Command' approach which would enable police management to "performance manage ... staff" to increase proactivity. 360Nonetheless, TITUS not only brought about a growth in the amount of proactivity undertaken (as discussed in our previous statistical analysis) but also brought about changes in the nature of the proactive system. TITUS commenced the ultimate reconstruction of policing so as to shift not only volumes of proactive policing but the organisational culture and focus which would result in a complete transformation of policing systems. Clearly, some LACs were more advanced than others. 361There were also improvements in the linking of intelligence with the proactive system in this period. Whilst there remained some limitations on the intelligence model for the purposes of tasking and deployment decisions, it had, no doubt, considerably advanced. In terms of technology involved in tasking, as the Commissioner submitted, most of the principal systems were in operation by April 2004, although, again, there were some impediments in their operation vis à vis the intelligence information management systems operated by NSW Police. (In terms of targets, the LACs operated on the business plan model that had been operating since about 1999.) 362These systems, together with intelligence-based activities, permitted targeted proactive policing. Business plans continued to be monitored through the OCR. All of this occurred in circumstances where the impetus created from the late 1990's had resulted in a very significant development in frontline policing. 363It is against this background that we now turn to consider changes in the NSW Police Force which occurred after the datum point. 2006 to Present 364The title of 'NSW Police' was changed to 'NSW Police Force' in 2006. 365The two central features of this period were the introduction of the State Plan in 2006 and the management system known as 'COMPASS'. The Association contended that both of these developments had a significant effect on proactive policing and the work of police officers. 366The Association amply described the emergence of the State Plan in the following extract from its written submissions: [124] In November 2006 a State Plan was introduced by the State government, outlining a range of responsibilities for government agencies, including the NSW Police Force. It was "the first of its type for the State of New South Wales". It was launched "with the aim of addressing community needs and expectations", setting "the direction, scope and service delivery expectations of all Government Agencies", and designed to hold "CEOs accountable for results achieved by their respective agencies in meeting State Plan targets for the period 2006 to 2016". [125] The State Plan had "34 priorities to be delivered across a broad range of public services", each being "allocated a reference which made it identifiable to the priority area", with public sector agencies ascribed either a lead or partner agency role for the relevant priority area. NSW Police was made the lead agency for priorities R1 and R3, and a partner agency for R2, R4, S7 and S8. They were described by Superintendent Rolph as follows: "The R1 priority was to reduce crime, in particular violent crime. Targets for the NSW Police were a reduction in property crime by 15% (Break and Enter - Dwelling and Stolen Motor Vehicles) and violent crime (Assault - non-domestic violence, Sexual Assault, Robbery) by 10% by 2016. This equated to an annual reduction across both areas of 1.5% and 1% respectively. These five crime categories were selected as the core crime groups as they are measured under the ABS Crime and Safety Survey and formed the basis of the original State Plan documentation. The R3 prior was to reduce the levels of anti-social behaviour with the measure being "reduced problems with louts, noisy neighbours, public drunkenness and hoons". To meet this priority proactive HVP policing operations were utilised". [126] As Assistant Commissioner Murdoch observed: "The introduction of the State Plan in 2006 was an important change for Police management, as it was the first time the NSWPF had numerical crime reduction targets imposed by Government, whereas previously Commands had negotiated their own business plan targets through their respective chain of Command." [127] Superintendent Rolph was, from his transfer to the State Plan Coordination Unit in 2008, "responsible for developing and implementing the NSW Police Response to the State Plan", including the "implementation of Compass, e-CMF, Business Planning and the State Plan". His statement gave detailed evidence about the NSW Police Force response to the State Plan. He said that the Police Force was required to develop a Priority Delivery Plan (PDP) "which set out the broad strategies that would be undertaken in achieving State Plan targets" designed to "focus, address and achieve the priority targets via a number of milestones" that were reported to the Department of Premier and Cabinet and the Police Minister on a quarterly and monthly basis respectively. [128] The NSW Corporate Plan 2008-2012 and the Business Planning mechanisms were included in that PDP. Superintendent Rolph went on to describe how the State Plan became the "focal point" for planning. The PDP described strategies to be adopted to meet State Plan targets as including the following: Increase the visibility of police at crime hotspots (problem locations and problem times) to improve the behaviour of potential offenders and increase the likelihood of detection. Undertake targeted operations at identified crime hotspots to address specific crime types. This will reduce opportunities to commit crime, as well as improve personal and public safety. Align Vikings funding with corporately identified intelligence based local priorities by the end of 2007. Improve deployment options to ensure alignment with reported crime patterns. Improved use of flexible rostering (see page 7) to increase high visibility policing." [129] The PDP also referred to strategies to "Identify problem areas and times through improved regular and more formal sharing of information and intelligence" and to "Enhance local area command tasking practices to consider opportunities for coordinated deployment of visible authority to identified hotspots". Under the heading "Enhance crime mapping capabilities" it said: "The NSW Police Force will enhance its crime mapping capability to provide improved strategic and tactical views of crime patterns. Actions we will undertake include: Real time analysis of crime patterns and police response at the local level. Use data from the most recent census and other sources to better understand the nature of crime. This will ensure the most effective and efficient response by identifying relationships between crime and other environmental and social factors. Improve the accuracy and utility of police data through the geo-coding of crime locations. This is critical to the preparation of accurate and relevant intelligence products in support of crime reduction efforts. Provide additional advanced training in spatial methodologies such as temporal analysis and geographic profiling." 367It was central to the Association's case that the State Plan and the Priority Delivery Plan ('PDP') resulted in very substantial alterations in LAC business plans and the exercise of proactive powers. It was contended that these changes had "a profound impact on the working life of police officers". The Association's submission, in this respect, was expressed thus: As a result of the State Plan and the PDP, and in order to ensure that the PDP strategies were being carried out, LAC business plans for the first time included numerical targets for the exercise of proactive policing powers, including move-ons and person searches. The introduction of such targets led to LACs "ramping up" the use of proactive powers by their officers in order to meet the targets. Targets, once met during this period, were usually then increased further, thus adding to the pressure on LACs to conduct even greater levels of proactive policing. 368The Commissioner contended "the State Plan was the first time the Government imposed targets upon the NSWPF" but that targets had been in existence since the late 1990's. The submission, therefore, accepted that the State Plan had brought about a change but sought to depreciate its affect on policing in New South Wales. In substance, the Commissioner contended there was no material change in the operating conditions for LACs (or police officers working in LACs) brought about by the State Plan, other than the genesis of the targets. This perhaps contained a concession that the target levels in business plans may have changed in this process, but this was not entirely clear from the Commissioner's submission or the evidence called in his case. 369For example, the evidence of Assistant Commissioner Hudson sought to contradict the evidence of Mr Baldwin to the effect that, from 2007/2008, there was a focus on Regions and LACs having targets for various crimes and activities in business plans. The Assistant Commissioner's evidence was that, in fact, such matters had occurred since 2001. 370Assistant Commissioner Jenkins gave evidence acknowledging that the State Plan was the first time the Government had imposed targets on the NSW Police Force LACs but that it was not the first time LAC Commanders had targets placed on them. He disputed that the State Plan created any different imperative than had existed previously, although he conceded the State Plan required a strategic response to meet the targets set by the Government. Ultimately, he conceded that he would defer to Assistant Commissioner Murdoch in relation to the impact of the State Plans and LAC business plans, although maintained that targets had existed with respect to proactive policing over some time. Part of his reliance, no doubt, was, as we have earlier identified, the target fixed by Commissioner Ryan in 1998 (to 1996 crime levels). 371We have earlier extracted part of the Association's submission which set out the statement of Assistant Commissioner Murdoch, referring, as it did, to the State Plan resulting in the first occasion that the NSW Police Force had numerical crime reduction targets imposed by the Government. 372In cross-examination, Assistant Commissioner Murdoch, identified that, in 2006, Regions were given a numerical target which was then "divided up between respective Local Area Commands". This, he conceded, required a modification of business plans to include numerical targets for such things as move ons and searches. The State Plan required the NSW Police Force to develop, through LAC business plans, schemes to increase the interaction of police with persons in the sense contemplated by proactive policing strategies. He agreed that these changes had the effect of producing the significant changes in the magnitude of proactive interventions identified by Mr Baldwin. 373Assistant Commissioner Murdoch's evidence was that the business plan targets were intended to "ramp up" the use of proactive powers by police officers with a view to achieving a reduction in crime. We refer in this respect to the following aspect of his evidence which, whilst relating to a particular dispute over the use of targets to create individual quotas for police officers, reflected generally on the change occurring after the introduction of the State Plan: Q. And can I suggest to you and again without suggesting that any of this was typical or common place that this dispute was a symptom of a period in which, because of LAC business plan targets with proactive policing powers, that there was, as it were, considerable ramp up in the number of these powers being exercised and this was as a byproduct of that period, correct? A. Yeah, this followed hot on the back of the introduction of the State Plan and really the first year we'd had those proactive crime targets, so it was, yeah, I suppose a settling in period and clearly there were some Commanders who went about achieving their targets in a fashion that was outside the spirit of what we were trying to achieve. 374We consider that a proper weighing of the evidence was that the State Plan created a fresh imperative for NSW Police. This imperative was the substantial reduction in crime rates and anti-social behaviour. The learning and experience of the NSW Police Force, by this time, was that a critical ingredient in achieving this end was the 'ramping up' of the proactivity policy. This was the lesson of TITUS (which also provided the methodology, together with the infrastructure which had been developed up to 2006, to build the further initiatives necessary to achieve the targets set by the State Plan). The NSW Police Force understood that the former business plans (and the accompanying targets) would not be enough, without taking significant further initiatives. Those initiatives involved the better utilitisation of police officers in LACs to maximise levels of proactivity and, thereby, meeting the targets set. 375These considerations are found (amply expressed) in the following extract from the evidence of Assistant Commissioner Murdoch: Q. You will accept that, while there were still what are now called proactive units of a specialist nature and still specialist operations, to a much larger degree, proactive work is integrated into the normal daytoday work of the general duties police officers, correct? A. Now? Q. Yes. A. Yes. Q. And that's the main change that has been developed, particularly since the State Plan targets were introduced, correct? A. Well, it certainly has I don't really know that the State Plan was the cause of its integration, its wholesale integration into the GD function. General duties policing is where, you know, our critical mass of people are, so if we are going to get most [b]ang for our buck, we need to engage and use our GD workforce more effectively. So whilst we do do that now, certainly I don't know that the State Plan was really the catalyst for that. I think, you know, its genesis was before State Plan. But certainly the State Plan really gave it the umph that we understand it to be now. Q. And drove it forward to achieve the numbers that we have today? A. Yeah, because I think the work of TITUS and the officer who developed it really, you know, it was a groundswell of support for that and TITUS really consolidated some thinking around the relationship between crime and proactivity and that's what took it forward. 376We have also been influenced, in this respect, by the evidence of Superintendent Worboys. He gave the following evidence regarding the effect of the State Plan and the introduction of State targets and business plans: Q. I want to put these proposition to you: You recall that in 2006 the state government introduced the New South Wales State Plan, correct? A. Yes. Q. And that that State Plan contained targets for the Police Force as a whole to achieve in terms of reducing crime in certain categories? A. Yes. Q. You accept that in response to that, the New South Wales Police Force was required to develop its own, as it were, business plan, to work out how to achieve those targets? A. Yes, that's correct. Q. I want to suggest that in response to that, LAC business plans for the first time introduced proactivity targets? A. No. Because in my own instance, back in the days when I was working as the officer in charge at Lighting Ridge and Goulburn, in the first part of it, we were collecting data and measuring it on a weekly basis, and starting to look at how we could graph that and expose that to the troops in the community meetings. Q. I'm putting to you that it was only after the 2006 State Plan that LACs business plans were required to have targets to measure proactive policing? A. Yes, I agree with that. Q. And the purpose of LAC business plans having targets for proactive policing was an endeavour to have them measure and then lift the number of proactive policing powers that were being exercised in particular moveons and searches? A. Yes, and there was a very good reason for it. Q. And what was the reason? A. The reason was because the community expected far more from the police than what they were getting, and people were starting to generally accept that this was a way of getting police out of police stations, and out of police vehicles, to engage with both good and bad folks in the community to reduce crime. Q. Then, as a result of LAC business plans, having those proactivity targets that led to a drive at the LAC level, to ensure that those targets were met, by making sure that general duties officers went out and did what was necessary to meet the targets, correct? A. Yes. Some commands were very focused on meeting targets, others were more focused on the communities themselves and particular crimes and things that were important to those communities. But, generally, yes. ... Q. Can I suggest to you that the result of LAC business plans having proactivity targets in response to the State Plan was that across the state the amount of proactivity was ramped up to high degrees in a very short period of time? A. Can you say that again? Q. Yes. I want to put to you that as a result of LAC business plans being required to have proactivity targets, that the amount of proactive policing across the state was ramped up in a very short period of time? A. Yeah, I would agree with that. The data certainly says that. 377On balance, we do not consider the Commissioner's contentions, so far as they sought to depreciate the effect of the State Plan on the NSW Police Force and the work of police officers (in the context of the issues raised for adjudication in these proceedings) may be accepted. 378The attainment of outcomes meeting the targets set by the State Plan required refinements and innovations to existing policies and infrastructure. One of these changes was COMPASS, to which we will return. Another example was Intelligence systems. Assistant Commissioner Murdoch gave the following evidence as to the changes which occurred in Intelligence systems after the State Plan: Q. And in particular, again in response to the 2006 State Plan, there has been the strategic use of intelligence to task and deploy police in a proactive way in order to maximise the effect of that proactive policing, correct? A. Yes, sir. 379Some attention was placed, in the Association's submissions, upon the effect of the changes brought about by the State Plan upon police officers. It referred to the period where Commanders, in an effort to achieve the targets, introduced individual quotas for police officers. The dispute was resolved by the abolition of the individual proactive performance targets and the resumption of LAC targets. Assistant Commissioner Murdoch identified that this problem emerged because the State Plan produced the situation where the NSW Police Force really had for "the first year" those "proactive crime targets". 380The ultimate testament to the success of these further reforms (the initiatives we have referred to) was, in recent years, the abandonment from business plans of specific targets for recorded rates of personal searches and move ons. This was because the targets had been sufficiently achieved so as to permit a move away from business plans having to specifically provide targets for those proactive activities. 381In the present context, the reason for that shift in policy and methodology is quite significant. Assistant Commissioner Murdoch gave the following evidence indicating how the drive for change out of the State Plan resulted in the embedding of proactivity within the police organisation: Q. I want to put to you that's what it clearly says? A. That's what it might say, but I don't interpret it that way. What I'm suggesting to you is that, having now reached acceptable levels, targets may no longer be necessary to increase proactive interventions. It says there in point 6 and 7 "maintain power", so we are maintaining our current rate and it may be and this is the way I interpret it that because custom and practice within the New South Wales Police Force has become such that our operational police are geared and used to operating in this fashion, they will continue to operate in that fashion. So we've got them to a level that they will perform at, and they are used to performing at and there is, I suppose, a belief amongst the executive that those same levels will be maintained, because it is part of what our police do. It has become custom and practice. 382This analysis permits an acceptance of the submission advanced by the Association that the changes after 2006 broadened the focus of the NSW Police Force - generating proactive intervention rates for a LAC using a 'whole of Command' approach. As Assistant Commissioner Murdoch described it, the result was getting the critical mass of people in LACs, General Duties police officers, to work more effectively in the attainment of proactive objectives. This conclusion generally conforms with our earlier statistical analysis. 383We also consider Mr Hatcher was correct to submit that the modern plan or concept for proactive policing emerged under TITUS but that scheme was only implemented in a systematic and comprehensive way after 2006. Many witnesses described 'proactive policy' as a system or method of policing that, at least by reference to its current form and definition, had elements operating from the late 1990's. This is generally correct but TITUS and, ultimately, the State Plan accelerated the development of and altered the course of that evolutionary process 384In this sense, the Association's contention that, after the introduction of the State Plan and COMPASS (and other management systems), proactive policing became "integrated" in the day-to-day work of LAC-based General Duties police officers may be accepted. COMPASS 385COMPASS was adequately described both as to its content, nature and operating parameters by the following submission of the Association: [134] The organisational review of operations following the promulgation of the State Plan had the additional consequence of driving fundamental change to the internal governance framework operating with the NSW Police, as reflected in the Project Plan for the Operations & Crime Review (OCR) Reform Project prepared in March 2008 (underlining added): "During 2007 the corporate objectives of the NSW Police Force were expanded and increasingly quantified in a series of strategies and obligations contained in the NSW State Plan. This development complements the corporate objectives already contained in the NSW Corporate Plan and the Results & Services Plan. The combination of the Results & Services Plan and State Plan processes has significantly increased the required level of organisational monitoring, performance assessment and reporting, regarding the NSW Police Force's undertakings to government. In response to these increased performance assessment and reporting demands, the NSW Police Force is required to reconsider its governance framework. Therefore, as one of the key elements of the governance framework, there is a need to reform the OCR process." [135] The overall objective of that project was to "reform the current OCR process as a key corporate accountability and performance assessment forum, within the NSW Police Force governance framework", with specific objectives including (emphasis in original): "To align the OCR process to the current corporate and government operating environment and plans, including the State Plan, Corporate Plan and the Results & Services Plan. To incorporate a performance improvement element into the OCR process. To reconcile the CET expectations and requirements regarding the OCR process, against what reliable corporate performance data can be readily produced, combined with a logistical process that is practical and manageable". [136] This review resulted in the creation of the Command Performance Accountability System (COMPASS), the first phase of which came into operation in October 2008.The main focus of COMPASS is "to assess the performance of individual commanders in a series of prescribed performance and accountability categories related to crime management, corporate management and organisational support". These performance and accountability categories are organised under two broad headings as follows: (a) Crime Management (i) Crime - Reactive, Proactive, Investigation and Forensic Support; (ii) Public Safety - Traffic, Powers and Public Order Readiness; (iii) Community and Partnerships - community satisfaction. (b) Corporate Management (i) People - Education and Training, Human Resources and Complaint Management; (ii) Systems - Compliance; (iii) Leadership - Financial Management, Strategic Planning, Performance Management. [137] There are two core components to the system: (a)Compass Forums; and (b)the COMPASS computer system (sometimes referred to as EDW COMPASS). [138] The Compass Forums are an annual meeting (albeit there is the capacity "to bring non-performing LACs before a Compass Forum out of the normal cycle"), in which the Commander of a Region, and the Commanders of the LACs within the Region, meet with representatives of the Commissioners Executive Team (CET), to assess performance against performance targets. COMPASS as a whole replaced the OCR process, and the Compass Forum replaced the old "Compstat" style meeting between CET representatives and individual LACs. As Superintendent Rolph observed, adopting this structure for the Forum: "[I]n effect the Region Commander and the LAC Commanders were being held jointly accountable for the combined results of the Region" [139] The Forums were designed to be more "transparent" that the previous OCR system, and the system as a whole was built on data that was said to have greater "integrity": "A key feature is the integrity of the data presented at the Forum. This was achieved through the Enterprise Data Warehouse (EDW) that relies upon a series of predefined reports from the COPS based data and SAP data. ... This is produced into a series of performance reports that are available to the Compass users on the police intranet. The intent with this system was to remove any question over how the results are reported or presented. A number of graphical and data sets are presented that allow a Commander to review their results based on YTD, same time last year and longitudinally." [140] The COMPASS computer system was described by Superintendent Rolph as a "component of the Compass process ... to ensure a robust business planning/reporting system supporting the Compass Forum". This "key feature" of the new COMPASS system, the "integrity of the data" presented at Compass Forums, is driven through the COMPASS EDW. It is a "web based dashboard system that automatically displays results against State Plan, Corporate Plan and business plan targets" that can be reviewed "at an organisational level, Region level and an individual command level". [141] The core operational elements of the COMPASS EDW system were described by Superintendent Rolph in the following way: "The EDW Compass is an integrated performance tracking system that captures data from a range of police systems into one location, with a standarardised reporting format, viz, dashboard reports. Data within these dashboard reports is automatically updated several times during the calendar month to allow a commander to assess their respective Commands performance against the business plan targets. The automated dashboard reports permit a Commander to gauge their performance in terms of overall targets being met, variation to target, target trend by month, control chart by month and comparison to same time last year. The EDW Compass relies upon a "traffic light" reporting system. Red indicates not meeting a target, and green indicates a target is being met. Business Rules for Compass require Commanders to report monthly on red categories. They are required to set out reasons business plan targets were not met and what strategies to be put in place to bring the category back on target." [142] Monthly reporting was embraced "to encourage Commanders responding to issues in a timely manner and not waiting until a quarterly return to identify an emerging issue". Another "key advantage" of the system was its accessibility: "Commanders can see readily how their respective Command is performing against other commands within the Region or across the State": "It helps identify emerging problem areas both locally and organizationally, ie Commanders can readily see crime or areas that may be trending against the preferred business plan position. ... It is designed to report on the LAC performance against a business plan target. It permits a Commander or senior management team within a command to constantly review the Commands overall performance and respond accordingly to areas that may not be responding to implemented strategies. It does not report on location of crime or, time of crime: rather it reports on performance against monthly business plan targets." [143] As Superintendent Rolph observed: "The system can be utilized in conjunction with other corporate systems to develop strategies to emerging crime trends ...It is the expectation that Compass informs a Commander of overall results of the Command. The strategies that sit behind the response to Compass are where individual accountability rests with officers." [144] The evidence demonstrates that "on the ground" COMPASS is being used as it was designed: both as an accountability tool (the monthly reporting exercise to Region and higher Command levels), and also as a management tool to drive day to day performance. 386The Association submitted there had been an increase in the responsibility for General Duties police officers to ensure the implementation of information and intelligence-driven crime reduction strategies. The significance of COMPASS, in this respect, was that the system was said to allow the performance of police officers of all ranks to be measured against recorded information concerning the level of crime and the extent and nature of police activity. 387The Commissioner responded by contending that the Association's submissions ignored the relationship between accountability and performance management considerations arising out of the Wood Royal Commission reforms. A key reform area had been changes to the planning process by the introduction of key performance indicators. This had affected business planning processes and there was a demonstrable use of performance against planning both individual unit and regional performance assessments. The Commissioner also referred to competency-based progression. He contended that COMPASS was a mere extension of EDW which was rolled out well prior to 2005. Further, the COMPASS forum was directly based on the OCR process which had been criticised because it involved too much "micro management". COMPASS, therefore, represented a move to a less intensive process and, in any event, General Duties police officers had always been accountable based on iWork reports. 388The Association's response was, effectively, that COMPASS allowed information to be assessed and presented in a way that did not previously occur, thus permitting regularly tasked, targeted, proactive policing. This information included projected outcomes and trending. It was accepted that the system principally affected Local Area Commanders, but its use in tasking and deployment affected all General Duty police officers. 389We had some opportunity to consider the operation of COMPASS during inspections. We accept the evidence of Assistant Commissioner Jenkins that COMPASS is a management tool that does not impact directly on the work of Constables and Sergeants. We also accept the Commissioner's submission that COMPASS has an hereditary relationship with the OCR and EDW systems and that key performance indicators had formed part of the reform of the NSW Police Service well prior to 2005. Those conclusions must diminish the impact of COMPASS in any deliberation of work value changes after the datum point. However, we do not consider that these conclusions put an end to its significance in this matter. 390COMPASS was very deliberately introduced into the NSW Police Force in 2008 in order to meet the obligation imposed upon that organisation by the State Plan. One part of the effect of COMPASS was to facilitate, in order to give effect to the State Plan, a universally implemented proactive policing system in LACs. This is clear from the evidence of Assistant Commissioner Murdoch. 391There are two parts to COMPASS, as will be evident from the previous extract from the Association's submission. Part of that system did have an impact on police officers, albeit of a more indirect nature. As Chief Inspector Lardner pointed out, the system, at its most basic level, was a more effective tool for the deployment of resources on a daily basis. Superintendent Ball identified that the system permitted more accurate tactical decisions which, thereby, had an impact on the productivity and efficiency of "staff in the LAC". He identified that COMPASS was an important contributor to the "work intensification for both frontline and support staff" that occurred after the introduction of the State Plan. In short, he gave evidence that COMPASS was a more sophisticated and targeted accountability system which, thereby, permitted management to more effectively direct and make more accountable police officers engaged in daily tasking and deployments. Similar evidence was given by Superintendent Worboys. Thus, as Sergent Prudence Burgun stated, the system is used to "drive the performance of officers within the LAC" (and this is how it impacts upon the work of frontline police officers). 392Many police officers gave evidence about their perceptions of the impact of COMPASS in daily reviews conducted at LACs, including daily briefings and tasking and deployment meetings. This was connected with their evidence about the impact of proactive policing on their work. We do not doubt the genuineness of their evidence but it is more likely to be a reflection of the overall impact of change after 2006 than particular aspects of COMPASS which, as we have noted, operated in an indirect way upon their work. We do not accept its impact was pervasive, as submitted by the Association. 393We might mention briefly some other accountability systems relied upon by the Association. 394The Association relied upon the introduction of electronic Command Management Framework ('CMF') in December 2008. It was argued that the new system introduced new features and checks, and expanded the scope of previous systems. Its aim was to improve efficiency and effectiveness in all areas of the LAC. It was also contended the system facilitated the checking of a wide range of factors on a daily, weekly, monthly and quarterly basis. It was accepted that, prior to the introduction of the online system, the checking was done manually by Constables. 395We accept that CMF was part of the 'basket' of measures to achieve the targets imposed by the State Plan. However, the system was essentially in operation prior to 2005 as a paper-based auditing system. There was nothing particularly 'new' in the system, other than it established an electronic framework. The CMF system represents an improvement in processing. We agree with the opinion of Assistant Commissioner Jenkins that the system does not significantly improve the performance or responsibilities of police officers. 396The Association also relied upon the Career Management System ('CMS'). We agree with the Commissioner that this initiative grew directly out of the Performance Management System which existed from at least 2000. Similarly, it was a system that involved a movement from a paper-based to an electronic process. The issue of career management was a matter squarely raised by the Wood Royal Commission. Again, it formed part of a suite of refinements to existing systems to accommodate the State Plan. Conclusions : Post Datum Point 397Notwithstanding the radical institutional reform undertaken in policing in New South Wales since the late twentieth century and the resultant changes to the structure, policy, culture and focus of the NSW Police Force, we consider, based on the foregoing analysis, that the Association has established, on the balance of the evidence, that a further tranche of changes occurred in policing after 2006. Central to that change was a reformation of the application of proactive policing to achieve the targeted reduction in crime. As we have previously discussed, those objectives were substantially achieved after the introduction of the State Plan. 398It follows from this analysis that we cannot accept Mr Kenzie's contention that proactive policing was introduced to the maximum extent possible by the datum point. There was real, additional and substantial change in the nature and extent of the operation of the system accommodated through the measures we have discussed above. 399These conclusions have great significance for the Association's case under the productivity and efficiency sub-principle. The question remains, however, what conclusions should be drawn as to the work value sub-principle? That question may be refined, as follows: did the changes we have alluded to above result in a significant net addition to the work requirements of police officers, vis à vis the nature of the work, skills and responsibilities? This question is a difficult one to resolve. 400Mr Kenzie submitted that the changes brought by the State Plan could not constitute changes contemplated by the work value sub-principle because any proactive policing performed after 2005 was "not new work, it was new work for some". 401This submission does have some merit. In some respects, the NSW Police Force, after 2006, merely eliminated gaps in the establishment or application of police productivity in LACs by a series of measures designed to drive proactive policing generally throughout LACs. 402However, on closer analysis, these changes were not merely achieved by ensuring that proactive policing was being performed in areas where it was absent or where there was some significant deficiency. Rather, the introduction of numerical targets and the accompanying policy adjustments and changes to measurement and performance systems had the effect of generally intensifying the application of proactive policing throughout LACs (with the exception of some LACs in western New South Wales) which, in turn, had the consequence of significantly affecting LACs and General Duties police officers engaged in them. This was so, even if the LACs had introduced proactive systems to various degrees prior to the State Plan. The intensification went 'across the board' augmenting and amplifying existing arrangements. We note that this conclusion is entirely consistent with the statistical analysis we have earlier undertaken and in the light of the operating features of LACs after 2006. 403We consider that Assistant Commissioner Murdoch admirably described the essence of the change when he indicated, by reference to recent changes in business plans (removing targets) that proactive policing has become embedded as part of what he described as the ordinary custom and practice of police officers, by which we understand him to mean a shift in the culture and focus of police officers within LACs. Proactive policing had, thus, actually become embedded in LACs in such a manner that it made proactive policing an inherent part of the operating systems in the way earlier envisaged by Superintendent Plotecki's proactive thesis underpinning the TITUS system. 404In this sense, the Association's contention that, after the introduction of the State Plan and COMPASS (and other management systems), proactive policing became "integrated" in the day-to-day work of LAC-based, General Duties police officers was correct. 405In a preliminary way, the significance of this conclusion for the work value sub-principle may be shortly stated. The NSW Police Force met the crime reduction targets stipulated by the State Plan by generating a statistically proven, substantial increase in police proactivity; that system being well-recognised in the NSW Police Force (by theory and experience) as a proven mechanism to prevent and drive down crime. 406That increase in proactivity (and its effectiveness) required the management of the NSW Police Force to produce more effective targeting, deployment and performance models, all of which intensified the work of police officers - the officers were discharging significantly greater amounts of proactive policing. Their work was intensified in that way. So much was the shift in their methods of work that proactivity not only became a normal part of their day-to-day work, but the system became entrenched to such an extent that specific targets could be then abandoned in some of the key proactivity categories. Police officers had, thereby, directly contributed to the attainment of the targets by the intensification of their work. 407However, there is a further level of analysis required. As we have observed, this conclusion clearly has implications for the productivity and efficiency sub-principle. In terms of the work value sub-principle, the question, nonetheless, remains whether such a process of work intensification might satisfy the strict criteria under that principle. The starting point for that analysis should be a consideration of the Commissioner's submission concerning the reactive/proactive mix. Changes to Reactive/Proactive Mix 408There were two planks to the Commissioner's case, in this respect. The first was that the various reforms introduced by the Commissioner from the flattening of organisation structures through the PAL and the advent of SOCOs ('Scene of Crime Officers') had the intended profound effect of reducing reactive workloads. When combined with the decrease in the crime rate, it was submitted that it would be inevitable that police would undertake more proactive policing. The second aspect to this submission was that proactive duties were less complex and time consuming. Assistant Commissioner Jenkins gave evidence that, whilst proactive activities had increased, reactive policing had decreased at the same time. Overall, it was submitted, there was no net addition to the work requirement. 409The Association submitted that there had been a massive growth in the incidence of proactive work and that there had been no comparable reduction in reactive work. It was submitted that the change in the mix actually resulted in an increase in responsibilities for police officers and a change in the nature of their work. General Duties police officers were now required to do both reactive and proactive work as part of their normal duties and there was a significant amount of proactive work to be done. Overall, there was a significant change in the tasking and deployment of police officers as part of their ordinary duties. 410Both parties relied upon Incident Dispatch Material. There were some unexplained discrepancies between data produced by both parties but this was minor and immaterial to the final resolution of this question. Further, the Commissioner examined this material between the calendar years 2002 to 2010 whereas the Association examined material from the financial years 2004-2005 to 2010-2011. Again, the different approach does not complicate the resolution of this issue. 411On the Commissioner's material, there was a decline in total responses from approximately 1.4 to 1.33 million. The decline in the Association's figures for the seven year period was from 1.5 to 1.39 million. The reduction is moderate when compared with the increase in proactive assignments (less than 10 per cent of the total number of responses). In contrast, as Mr Remfrey, Secretary of the Association, pointed out, on the data presented by the Association, the number of urgent or immediate response jobs increased by 29 per cent and the number of routine response jobs decreased by only seven per cent. Further, whilst qualifying his evidence by stating there were a variety of measures of reactive duties, Assistant Commissioner Murdoch agreed there was an increase in the number of recorded COPS events for virtually every year over the past decade. 412Whilst there was a significant redistribution of frontline police officers at the beginning of the reform period, we do not consider that, in the period after 2001, the reduction in reactive duties can be considered substantial. It was not of sufficient magnitude to permit the Commissioner to sustain the first part of his contention under this heading. 413Turning to the qualitative considerations, we are attracted to the evidence of Superintendent Plotecki. He accepted that, depending on the interaction involved, proactive policing can be less time consuming than attending to a reactive call. However, he disputed the contention that proactive policing is necessarily "easier" than attending to a reactive call, as he considers the approach to be "too simplistic". He gave the following evidence: [40] ... As a general rule, reactive policing is concerned with compliance with specific procedures, attending the call (at a place identified for you in the dispatch message) and recording an event, and then carrying out necessary investigations. In contrast proactive policing is far more concerned with the individual policing practitioner not only understanding his or her work environment at the time they are deployed, but also having a knowledge of the risks, hot-spots, targets, crime types associated with given areas and the community. The practitioner is then required to apply this knowledge in a practical sense to place themselves in the appropriate locations at. the right times in order to identify and interact with the criminal and anti-social milieu. [41] Proactive policing demands that the practitioner make a range of tactical evaluations and decisions leading to, during and after an interaction with the criminal and anti-social elements they police. Proactive policing demands police exercise their discretion as Constables of Police - firstly to initiate an interaction with a given . individual or not. or to conduct a particular activity or not, that may result in an interaction with either a member of the community or suspect, person of interest or a target. ... 414There is no dispute that the performance of proactive duties by police has significantly aided the prevention of crime, a central function of police officers. This has occurred whilst the number of reactive duties has remained relatively stable. 415However, it is not confined to that consideration. This is because the redistribution of work also changed the 'basket' of skills held by police officers, as proactive duties formed an additional and routine set of skills and responsibilities. Our observation is that some proactive duties may be relatively straightforward, but often involve officers in the exercise of new and additional judgments and responsibilities in addition to reactive work. 416This would explain the evidence consistently given by police officers in these proceedings to the effect that changes to the operation of LACs, vis à vis proactive policing, had greatly affected their day-to-day work. A Further Level of Analysis : Work Value Sub-Principle 417However, these conclusions still leave outstanding the question as to whether the changes to proactive policing we have described actually resonate under the work value sub-principle, when they principally arise from work volume and work intensification factors. 418Whilst changes in work volume or work intensification have featured as part of structural efficiency adjustments, they have often been found wanting in the satisfaction of the strict test under the work value sub-principle. There are, however, exceptions to this rule. Those cases concern situations where the intensification of the work has been generated by employees performing the work differently, and in such a manner as effectively changes the nature of their work and/or responsibilities. 419In Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2004] NSWIRComm 114; (2004) 133 IR 254 at [90], the Full Bench stated, in this respect: [90] It would be a rare case where change in volume of work would have even an indirect affect on work value. However, part of the Federation's case came within this rare situation. That is because the nature of the changes in the skills and responsibility of teachers, which we will discuss below, not only satisfied the work value principle because of the significant change in the functions and tasks of teachers, but also because the magnitude of those changes required a significant adaptation of work methods by teachers to enable them to discharge the full range of their current duties. In other words, in order to carry out the full range of the complex and voluminous professional responsibilities since 1991, teachers have been required to be more sophisticated and skilled in the management of their work and the discharge of their new accountabilities, both in and outside of school hours. This is a factor relevant to be considered under Principle 6. 420We note that in Re Dispute - Electricity Commission and Various Unions re Wage Claim (1967) 67 A.R. 435 at p 438, it was stated: In In re Iron and Steel Employees, etc. (1964) A.R. 350 Kelleher J. took the view that an increase in productivity ought not to be regarded as a factor proper to be considered in fixing minimum rates of pay unless the increase is attributable to the labour factor or affects the work of employees or the conditions under which it is performed. ... These cases do not deal with the question of what can be done but only with what should be done and the Court Session decisions make it clear that productivity, being an economic factor, can be taken into account if it becomes relevant in a particular case. ... 421In Health Employees Pharmacists (State) Award, the Full Bench was dealing with a Special Case application predicated on a shortage of labour. However, the Full Bench's discussion of work value, in that context, is apposite to the present discussion: [32] The HSU also identified labour shortages as providing sufficient grounds for finding that a special case exists, although it did so, in part, on the basis that such shortages resulted in a change to the nature of the work, skills and responsibilities of employees affected by the shortage. [33] We consider that, overall, the HSU has established a special case for the following reasons: ... c The features of this matter which when taken together lead to the finding of a special case with respect to the three streams are as follows: i. In each classification in the streams there has been changes in work value such as would warrant the grant of salary increases under the work value principle. ii. Those changes may be distinguished by their nature and extent. The magnitude of those changes has been generated, in part, by the present shortage of employees in each stream (although the extent of that shortage varies in each case). The shortage of employees has resulted in three significant alterations in the nature of the work in the streams: ... c) There has been an intensification of work by an increase in the volume, frequency and pressure of work. We have regard to this factor only to the extent that it assists in understanding and highlighting the change in the value of work of each classification. Work intensification ultimately needs, however, to be addressed as an issue going to employees' health, safety and welfare. iv. There has resulted a significant undervaluation of work for the classifications under consideration although we would emphasise that each classification exhibits such features in varying degrees. v. There are public interest considerations in favour of addressing the present undervaluation of work, particularly where labour shortages exist. We shall further discuss these considerations below. ... [53] Here, we consider that the shortages of labour demonstrated on the evidence are critically relevant because the shortages have resulted in changes in the nature of the skills and responsibilities associated with the work performed in the various streams. Those changes have occurred because the shortages have required changes in the work performed by employees in order to endeavour to maintain the level and quality of service in the health system, notwithstanding a reduction in labour resources. [54] Accordingly, we are, of the view that the shortage of labour is a significant factor in finding that a special case exists, the reasons for which are primarily twofold. Firstly, as discussed earlier, the shortage of labour is connected to changes in work value. There is little doubt that a shortage of labour in the relevant streams has resulted in changes in the way work is now performed, such that it has resulted in changes in the nature of the work (that is, the requisite skills and responsibilities) and in the value of that work. 422Whilst the changes experienced by police officers after 2005, as we have described them, are matters which principally resonate under the productivity and efficiency sub-principle, we do consider that the Association has also made out a case under the work value sub-principle. 423The history of the implementation of proactive policing would result in the conclusion that, by mid 2005, there had been introduced a form of proactive policing which had many of the elements of the current form of proactive policing and, whilst not the subject of comprehensive implementation throughout LACs, had been substantially refined in its content and scope. 424However, we consider that the work intensification process after 2006 affected all police officers, save for a relatively small number of LACs who had not successfully implemented proactive policing (a fact that we will take into account in mitigating any wage adjustment that might flow from our conclusions, in this respect). Further, and on balance, we consider that the intensification or amplification of proactive policing brought not only the requirement for officers to do more to implement the programme and targets, but also to adapt their work to meet the performance demands required by the NSW Police Force's newly implemented systems to achieve the targets. 425In short, the adoption of police proactivity, as part of the customary and ordinary work and practice of police officers, involved the final and ultimate shift in the operation, culture and focus of LACs, vis à vis proactive policing. That change was, in a substantial part, as a result of the work of police officers. The work intensification was achieved by an adjustment to work method, albeit that the shift in their approaches would have been experienced differently across LACs, depending upon the state of the development of proactivity as at 2006. 426These changes cannot be considered to be profound, as is sometimes associated with significant work value cases, as, to some extent, they involved a more attenuated adjustment in the nature of the police officers' duties (when stripped of adjustments to volume and discounting elements of the change which must be taken out of account because it emerged before the datum point). Nonetheless, we consider that, when viewed in their entirety, they constituted a significant addition to the work of police officers, sufficient to attract the work value sub-principle. 427We will turn to the statements of some of the police officers who gave evidence in these proceedings in this respect, although, in doing so, note that the observations made need to be understood in a context where the changes discussed have been introduced differentially within LACs and bear elements of intensification, per se. Those examples appear below. 428Detective Inspector Peter Yeomans, Crime Manager, North Shore LAC, gave evidence that: Since 2004, I have observed that as an organisation we have continued to refine that general intelligence based policing approach. That general approach to proactive intelligence based policing has continued to evolve as the technologies used by police evolved and our corporate focus on more proactivity has developed. (It is clear in my working experience that this proactivity is more effective and helps to reduce and /or prevent crime). We are now measured against not only our crime statistics, but our proactive work, how many bail compliance checks we are doing, now many move-on directions our officers have performed, how many person searches we are doing, how many vehicle searches, how many charges have been instigated and all sorts of things.... ...The most recent significant development in that respect was the roll-out of COMPASS, in 2008 [brining] a new level of scrutiny and accountability into the operation of an LAC, and given an LAC the ability to focus even more closely upon those core elements of our operations, and customer engagement in order to meet our various business plan targets. That system itself is continuing to evolve. ... We are now very much an intelligence driven and accountability driven organisation, more-so now than at any time in the past. 429Inspector Jeff Budd, in describing the significant changes he had observed since 2005, gave the following evidence: In terms of the overall operation of the LAC, from my perspective, I would say we are now a far more proactive organisation that five or six years ago. Our response times are important, but what we drive into our troops on a day to day basis is our proactive work. Our use of local intelligence to drive our policing activities, and the systems that have grown to develop that better intelligence, has really lead to a changed focus in the way we operate. That intelligence lead approach to general duties started prior to 2005, but it has become an increasing focus since 2005 and that focus really is one of the things that is driving down crime rates. It is true that proactive Policing has always existed in one form or another. My point in my earlier statement is that it is now being managed a lot differently, and consequently officers are doing much more of it. The developments in organisational focus and developments in technology (and our ability to analyse information for better tasking and deployment) has significantly changed the whole approach to Proactivity. ... ... But the drive for Proactivity I am talking about in my first statement, and the increasing intensity in the working life of officers in my Command I describe in that statement, impacts particularly on the general duties officers (and those who supervise and manage them). The drive for Proactivity is about getting everyone in the LAC to do more in the time they are on shift, as I described in my first statement.... In my observations above and in my prior statement about Proactivity I refer generally to how things were prior to 2005. There is no bright line that can be drawn about the change in approach and it was incremental over time, but as I describe in my first statement, it seems to me to have really been enhanced by targeting business plan performance towards the State Plan and the development of new technology, such as COMPASS. Collectively, they seem to have had a fairly dramatic impact in recent years (that is, since 2005). Overall, our workplace is very different to what it was pre-2005 as a result, and people are working a lot harder. As I said in my first statement, we are getting much more for our policing dollar, and our falling crime rates are in part a reflection of that. 430Sergeant Minns, Southern region, Wollongong LAC, said: ...I agree that police have been carrying out the activities that we describe as "proactive" policing for many years: person searches, vehicle searches, move-ons, business inspections, bail checks and the like are not new policing activities. Traditionally (by that I mean probably pre-2002/2003), those sorts of activities would be carried out by specific units regularly (like beat police or Anti-Theft teams), and by general duties officers only on occasion as and when they saw it as necessary or appropriate. I remember when I was first at Campbelltown (I was at Campbelltown between 2003 and 2007), as a branch official for the Association, I had arguments with some of the Duty Officers when they tried to get the first response general duties crews to do that sort of work: reactive policing came first and proactive second when on first response but I encourage my team members to be proactive in how they do their policing. Those sorts of actions would be carried out by first response police from time to time, but it was the core responsibility of specific groups (such as the beats and anti-theft or target action groups). From my experience at Campbelltown, from approximately 2006 onwards proactive activity started to creep into the day to day work of general duties officers, and post the introduction of the State Plan, it became very much the focus of specific taskings for general duties first response car crews. 431Superintendent Ball, South West Metropolitan Region, Ashfield LAC, stated: We require proactive interactions to be recorded. Those records are checked to ensure that proactivity has been completed and indeed the Titus report shows on a daily basis the level of Proactivity performed. We have LAC targets for proactive interactions which, in the organisation of an LAC, devolve down to individual Team performance targets and in some LACs even individual performance targets, that are monitored closely. I personally monitor those performance measures every four to six weeks. As I have described above, that is the significant change in the organisational approach to proactivity. It is not discretionary work: it is now demanded. It falls to be done, to use them as the example (it is the full-time province of the proactive units), by first response general duties police in between the need to attend to response jobs, and amongst the array of other activities that are required of police officers in that time (which is why I say this change to proactivity has significantly intensified the work of the first response officers), but it is not "discretionary" work. 432Again, bearing in mind the limitations we attach to the use of work intensification to sustain a work value case, we nonetheless consider that the following submission by the Association as to changes in work value (or qualitative changes in the work performed) adequately provides a flavour of the changes generally experienced by police officers: From a general duties officer perspective, the adoption of this management approach means there are now additional and considerably higher performance benchmarks that compel officers to engage in higher levels of work in between their calls for assistance from the community, and in competition with the range of other activities that are required of officers in that time between response jobs. The result is that: (a) Officers themselves must be far more aware of the crime environment within their LAC, to ensure that they are effectively balancing the need to attend to calls for assistance (which vary from those requiring an immediate response to those that can be handled with greater levels of discretion) with the demand to perform proactive taskings they are being required to complete (which are not all directed towards generating some of the key proactive performance measures), and still generate the levels of proactive interactions required of the new performance benchmarks. (b) There are significantly enhanced levels of proactive interactions, each of which require professional judgment and discretion by the individual officer concerned. (c) Each of those interactions as recorded on the COPS system, and then must be reviewed and 'verified' by the supervisors on shift. (d) Each of those recorded interactions must be reviewed and brought into the analysis performed by the intelligence cell within the LAC CMU, which means: (i) on a daily basis (and the longitudinal weekly, fortnightly and monthly analyses that are completed), there is a significantly greater body of information that requires analysis; and (ii) the products of the intelligence unit are more detailed and accurate, further refining the precision of the taskings that can be delivered and consequently the productivity of the LAC workforce. (e) Command level police, who now have greater access to more timely and easily understood data on performance against targets and trends, are not only able but are expected to adjust strategies and tactics much more regularly to facilitate more efficient and productive work from the officers in their LAC. 433Another aspect of the Association's submissions was accountability. It was here submitted that the changes in proactive policing increased the responsibilities of all police in general duties to ensure the implementation of information and intelligence-driven crime reduction strategies. This led to an improved performance of the NSW Police Force. 434It may be accepted, subject to the caveats we have attached to the acceptance of work value change, that the police officers, the subject of the new performance requirements after 2006, had greater accountability. This needs to be counterbalanced by the fact that there had been a growth in such requirements since the beginning of the reform process. Moderating Factors 435There were some submissions put by the Commissioner directed at both the work value and productivity claims of the Association and concerning the notion of averaging or moderation. It will be convenient to deal with the matters broadly at this stage. 436One aspect of this argument concerned changes to the mix of reactive and proactive policing. We have dealt with that matter above and reject the contention advanced by the Commissioner. 437There are two other aspects which may be summarised in the following way: (i) Not all areas within LACs undertake proactive policing or achieve decreases in crime statistics; (ii) Many areas in specialist Commands are wholly reactive, and may have very little in common with the work undertaken by General Duties police officers. 438 The Association's response to these contentions is that, as we have earlier noted, the evidentiary sample consisting of LACs is representative of the overwhelming majority of officers in the NSW Police Force - approximately 80 per cent. It was contended that, to the extent the evidence disclosed any disparity in terms of the degree of change as between the LACs in the evidentiary sample and the three specialist Commands, then a weighing approach would be necessary. 439The evidence does disclose that there remains disparity in the introduction of proactive policing between city and country Regions. Sergeant Burke confirmed that fact and that, in his Command in the Oxley LAC, he did very little proactive policing. In fact, he stated that the remaining proactive work undertaken was "aimed at targeting high risk offenders" (the STMP system). 440Further, Superintendent Plotecki conceded that proactive policing was not generally a feature of criminal investigation. The Commissioner was correct in submitting that the various specialist Commands, the subject of the representative sample, did not exhibit high elements of proactivity, although a substantial part of the work of the Marine Area Command ('MAC') was a clear exception to that proposition. There are some particular submissions advanced by the parties in relation to those specialist groups to which we will return. 441For present purposes, however, it is sufficient to find that the Commissioner has made out a case for averaging or moderation in respect to this aspect of his submission but that factor must only have a moderate impact given the size of the workforce in LACs who experienced change in proactivity. To that consideration may be added our aforementioned conclusions as to the (more limited) extent of the work value change, vis à vis proactivity, found in this case. Overall Conclusion - Proactive Policing 442For the reasons we have given, we have come to a view that the Association has established a basis for its general claim under the work value sub-principle with respect to changes in proactivity. However, this factor must be given reduced weight, having regard to the extent of the emergence of proactive policing prior to 2005 (so that only those factors which are new are taken into account) and discounted because of prior agreements compensating for those factors and other mitigating considerations we have discussed above. Equipment, Information Systems and Technology 443The Association made a detailed submission about a number of changes in technology. The changes ranged from the Main Frame Replacement Programme, which transformed into the Operational Police Programme ('OPP') (resulting in an improved information technology system); the Computer Aided Dispatch System ('CAD') (replacing the former Computer Incident Dispatch System, both of which relate to calls for service to police); Livescan and Field ID (technology relating to the capture of digital images of a suspect's fingerprints); Mobile Data Terminals ('MDTs') (a robust, laptop computer with built-in modum, touchscreen and keyboard accessible in the cabin of a police vehicle, principally for HWP but sometimes for General Duties police officers); BlackBerry Smartphone devices (used by Commanders and many Crime Managers); Web COPS (the provision of the former COPS system in a web-based model); the VIEW system (the recording of scanned images concerning police investigations including CCTV footage and digital sources); iAsk (provision of access to operational police of information from various external agencies); the Exhibits, Forensic Information, Miscellaneous Property System ('EFIMS') (a computer system for the recording of all exhibits and forensic procedure requests and their results relating to investigations and miscellaneous property items); Automated Bail Reporting System ('ABRS') (a computer system to monitor and record compliance with bail conditions); INTRAK (the registration and tracking of digital police recording of interviews, search warrants, forensic procedures and other items of evidence); the digital Electronic Record of Interview of Suspect Person ('ERISP') (which interacts with INTRAK the electronic communication for non-urgent AVOs); the National Information Databases (accessed by police officers in criminal investigations) and Electronic Control Line devices (known as 'TASERS': technology designed to temporarily incapacitate human beings and animals whilst minimising fatalities and permanent injuries). 444The Association gave a detailed description of each piece of technology and information system, including dates of origin, usage within policing and the consequences for the NSW Police Force and police officers. 445Generally speaking, these changes in technology and information systems did little to add to or enhance the finding that we have made that the Association has satisfied the work value sub-principle on the grounds of changes in proactive policing. It is true that the alterations to these systems did represent changes in work, in the sense that police officers were required to adapt and use the new technology. However, the changes variously suffer, from a work value case perspective, because they merely represent the enhancement of existing technology, the adaptation of technology developed well before the datum point or the conversion from a paper-based to a computer-based system. Further, the changes often have the collateral effect of assisting officers in the performance of their work after the initial transition to the new system. 446We would further observe that, whilst police officers are not strictly 'professionals' in an occupational sense, many of the factors relied upon represent changes which police officers might be expected to adapt to as part of their ordinary duties. 447The clear exception to these conclusions is the introduction of TASERS. The roll out of this technology commenced in LACs from 1 December 2009. The technology required additional training. Further, an increased level of decision making and accountability does repose in police officers. It is a factor that adds, in a cumulative sense, to the degree or level of work value change found, although the change is only sufficient to warrant a small addition. This is particularly so when a further consideration is taken into account. TASERS are but one of 26 tactical options and represent one further component to the suite of options available to police officers including the Glock pistol and the OC Spray (which were introduced in the late 1990's). 448Different considerations arise in relation to productivity and efficiency. It is convenient to mention those at this juncture (although they only relate to the next section of our decision). The evidence makes clear that all of the technology and information systems, to varying degrees, enhanced the productivity and efficiency of policing. Some of those efficiencies were relatively minor, particularly where there was a mere computerisation of a paper-based system. Furthermore, some changes must be discounted because they arose before the datum point (for example, iAsk was introduced prior to 2005). 449A good example of improvement in efficiency is the OPP. The system principally consisted of the internal publication of information to police officers. It had the effect of freeing police to spend more time in communities. There can be no doubt, from the statements published within the NSW Police Force, that this change in information technology greatly enhanced the productivity and efficiency of police officers. 450Many of the technological changes relied upon by the Association were described by Police Commissioners and Deputy Commissioners alike as resulting in genuine changes which enhanced the capacity of police officers to work faster and more skilfully. The OPP was described in a police publication as a system "modernising our operational policing systems and enhancing our business process to increase the time police have to concentrate on their core roles of reducing crime and creating safer communities". An overview of the OPP described the system as increasing "police efficiency". The system was also designed to provide faster and more flexible access to accurate and complete information and to allow officers to discharge their functions in circumstances which are optimal for the NSW Police Force (including improved cost effectiveness and timeliness). Changes to Legislation, Policy and Procedures 451The Association relied, in this respect, upon LEPRA, legislative reform concerning domestic violence, the Crimes (Forensic Procedures) Act 2000 and the Criminal Infringement Notices System introduced in 2007. The Association also relied upon the Duty Officer Deployment Model, changes to the customer service programme and various changes to training requirements. The Commissioner submitted that the changes do not constitute changes in work value recognised in the work value sub-principle. 452Noting that we have excluded the consideration of LEPRA for reasons earlier provided in this decision, we agree with the submission made by the Commissioner. The changes to legislation and legal procedure relied upon by the Association do not satisfy the work value sub-principle either because they do not significantly affect the work of police officers by comparison with changes which had already arisen from legislative change before the datum point or because they involved police officers doing what they may be ordinarily expected to do as part of their day-to-day work. Nor do we consider these changes add to the cumulative effect of the work value changes which we have otherwise found have contributed to the satisfaction of the work value sub-principle. 453We propose to consider Duty Officers separately below. Duty Officers 454Duty Officers were created in 1997, ranked at Inspector, with the main role of supervising the operational work of other police officers. However, the introduction of the Duty Officer Deployment Model in 2006 focused on the sharing and rotating of Duty Officer duties. The model made them responsible for different portfolios and areas of responsibility, such as HR and professional standards. This rotation policy exposed Duty Officers to different areas of operation and assisted them in rising in rank. 455The Duty Officer at the Tamworth Police Station, Inspector Budd, agreed with Mr Hatcher that the introduction of the Duty Officer Deployment Model changed the focus of the Duty Officer more towards management and administrative duties and much less towards operationaltype duties, such as leadership and the supervision of officers. As a result, team involvement and supervision now devolved to team leaders and Sergeants. 456The first sentence of the 2005 Duty Officer Model stated: Intend to engage duty officers as members of the Local Area Commands management teams. 457Mr Hatcher submitted that this statement identified a conceptual change in the role of Duty Officers. He contended "the key change in this model was not just the formalisation of the arrangements but the concept that the Duty Officer would be given ownership and accountability for particular aspects of the management functions of the LAC". Senior counsel submitted that this was a very significant change as it meant that Duty Officers were now formally responsible and accountable for their respective portfolios. 458Mr Hatcher submitted that, in the period 2005 to 2006, there was a formalised change to the role of Duty Officers which gave them formal portfolios. The critical issue was that the Duty Officers Deployment Model "radically" changed the work being done by Duty Officers. Before 2005, Duty Officers were, it was submitted, primarily undertaking operational activities. From 2005 they became 80 per cent managerial and administrative and only supervised operational police in the case of serious incidents or serious crimes. 459Mr Hatcher emphasised that changes did not need to be revolutionary in nature in order to justify increases in remuneration. 460The evidence of Assistant Commissioners Jenkins and Hudson was that Duty Officers had significant management responsibilities and portfolio work in the LAC structure prior to 2005. It was said to commence in 2003. Assistant Commissioner Jenkins' evidence was that the change in Duty Officer arrangements was simply about formalising the practices that were becoming fairly common from 2002 within LACs. Mr Kenzie submitted "[A]s far as the changes in relation to their responsibilities are concerned, the portfolios that existed in earlier times before the buyout and after were in evidence to JSRs and in relation to areas of responsibility, they were virtually the same". Duty Officers were paid for and understood as having significant management responsibilities well before 2005. Hence, to increase their pay would result in double counting and a series of windfall gains. 461In balancing these considerations, we have reached the conclusion that the Commissioner's contentions as to these officers should be preferred. We accept the evidence of Assistant Commissioners Jenkins and Hudson. We find there can be little doubt that the thrust of the changes to the duties of these officers occurred prior to the datum point. We do not consider the balance of changes, after that date, properly attract the work value sub-principle. Customer Service 462Our conclusions as to Duty Officers are essentially the same in relation to this matter. We consider that these functions were essentially caught by the work of Duty Officers prior to 2005. Training 463The Association submitted that there had been an increase in mandatory training required to be completed by officers in the past five to six years. This training was said to be such that it could no longer be accommodated by face to face training and required officers to go on-line and undertake self-paced training. It was submitted that the on-line component was greater than the face to face training and that officers would have to complete these modules in their own time. 464We consider that there is some substance to this contention. The changes in training requirements are plainly designed to assist the NSW Police Force in driving the changes in work requirements that we have earlier discussed. In this sense, the changing nature of training is a relevant work value factor because it dovetails with our conclusions as to the change in the NSW Police Force, particularly after the year 2006. Nonetheless, the fact that additional training is involved with the introduction of equipment, technology, legislation and policy cannot elevate the changes experienced by police officers in those areas above the true value of the actual changes to their work that we have earlier assessed. On balance, therefore, we consider that this factor adds only moderately to the Association's work value contentions. Specialist Groups in the Representative Sample 465We shall approach the case for the three specialist Commands in the sample in accordance with the principles we have earlier articulated. State Crime Command 466Evidence was provided in this area by Assistant Commissioner Hudson, Detective Inspector van der Graaf of the Fraud Squad, Detective Inspector Jacob of the Sex Crime Squad and Sergeant Laird of the Joint Investigation Response Team. We agree with the Association that there was little factual dispute. 467This is one of three specialist Commands considered as part of the representative sample. The Commissioner opened his written submission in relation to this Command by providing a description of the Command and differentiating it from police operations in LACs. We accept that submission and set it out in full below: [225] The State Crime Command is comprised of five directorates. The Serious Crime Directorate and the Organised Crime Directorate are the two criminal investigative directorates. Within each, are six crime squads which contain the majority of the State Crime Command staff. There are around 100 sworn staff within the Command and over 200 unsworn staff. [226] The amount of proactive work undertaken by the State Crime Command differs markedly as between the Command and as between Local Area Commands. Notably, the Serious Crime Directorate undertakes nearly all reactive rather than proactive work. [227] Additionally, the mechanism for accountability for the State Crime Command differs from that of Local Area Commands. The State Crime Command, being a specialist command, is not responsible for a geographic area and so does not "own" any crime in relation to which it could otherwise be held accountable. As explained by Assistant Commissioner Hudson during the proceedings, it has been difficult to determine objective measures for the performance of the State Crime Command. The State Crime Command's "performance measure are more qualitative than quantitative as opposed to LACs who have a geographical area of responsibility and it's very easy to measure crime reductions within that command." Consequently, COMPASS reviews for the State Crime Command have been difficult to implement. Again, as the State Crime Command does not "own" crime, it is not held to account by reference to BOSCAR statistics. 468The Association's written submissions contained a summary of the evidence of Assistant Commissioner Hudson in order, it was submitted, to provide a "global point of view". Part of this summary is uncontroversial and we set it out in full below: (1) The performance of the SCC is measured in terms of its effectiveness in solving reported crimes. The SCC's performance measures are qualitative rather than quantitative, and much of its work (including the work of its pro-active units) is measured in the statistics of LACs, not the SCC itself. (2) The performance and effectiveness of the SCC has improved significantly since 2008. This followed a change of direction in 2008, when the SCC changed into a directorate body which gave greater focus to the ability to investigate referrals from LACs. From 2005-2008 there was no significant change. (3) The work of officers within the SCC has significantly contributed to the improvement in the performance and effectiveness of the SCC which Mr Hudson described. ... (5) Mr Hudson also described the significant improvements in the performance and effectiveness of the SCC as being reflected in the fact that "our service to every Local Area Command has improved significantly from 60 per cent to 95 per cent" in relation to "the assessments or requests for assistance to State Crime Command" that are "assessed by us and some input to that investigation is committed to by us". (6) Mr Hudson also identified that after every investigation conducted by SCC a post-operational assessment is conducted to identify avenues for improvements, and the SCC is very vigilant in those in achieving any recommendations for legislative change that may be necessary, and also that service delivery to LACs as evidenced by the stakeholder survey distributed each year has significantly improved. (The Association referred to the State Crime Command in short form as the 'SCC'. We shall use that abbreviation unless extracts from submissions bring in the full form.) 469The Association also made a submission about the Assistant Commissioner's evidence regarding changes to the work of SCC officers after 2005 regarding DNA and electronic evidence gathering. That submission was in the following terms: In response to a request to identify positive changes in the productivity or work value of SCC officers since 2005, Mr Hudson identified a greater focus on DNA and electronic evidence gathering since 2005, and identified DNA as creating the capacity to solve previously unsolved crimes. These changes have improved the performance and effectiveness of the SCC in solving crime. Mr Hudson described these evidence-gathering techniques as "tools to those people [detectives generally] to assist them to address our core business which is crime reduction and the arrest and detention of offenders", and agreed that the introduction of those tools to the SCC required the officers under Mr Hudson's command to acquire the skills to operate those tools and use them effectively out in the field. (Emphasis by the Association) 470However, we do not consider that submission fully captures the effect of the Assistant Commissioner's evidence. The Association's appraisal should be tempered in the manner described in the following submission by the Commissioner: ... the impact of technological progress has had a particular impact on the State Crime Command. Developments in DNA and electronic evidence gathering since 2005 have changed the way "business" at State Crime Command is conducted. As explained by Assistant Commissioner Hudson: "If you're looking at crime solvability, which is my focus, I think it's made our role easier through DNA and telecommunications and listening device interceptions and an increase in that because I think it's, I think the evidence is reflected in the number of people we put before the courts based on DNA and electronic interception evidence and I think it's replaced a lot of historic time consuming tasks that previously detectives had to undertake." (Emphasis by the Commissioner) 471The Commissioner also submitted that the Assistant Commissioner gave evidence that changes to DNA and electronic evidence gathering had not necessarily required officers of the SCC to adopt new skills, even though it had changed their focus and increased the volume of use. We do not accept that analysis. 472Whilst there was a slight equivocation in the Assistant Commissioner's evidence as to whether certain aspects of the change made the work "easier" or "harder", he did accept that the new tools employed by officers in his Command required an enhancement of skills. We do not consider that Detective Inspector van der Graaf contradicted that evidence, although he did accept that changing crime trends might mean that the skill sets of officers would change, with some skills being made redundant. 473Before turning to other contentions made by the Association, we propose to deal briefly with the Commissioner's submissions regarding Detectives. It was submitted that, as a result of the 2005 MOU, the award was varied so that Detective's allowances were modified into a new Detective's Pay Scale. From that point, a Detective was entitled to the Detective's Pay Scale remuneration as soon as they occupied a permanent criminal investigation position. There were also new career progression paths. Part of that change took into account work value considerations. We agree with the submissions of the Commissioner that the unique circumstances which attended the creation of the Detective's Pay Scale make it more difficult to compare any work value change for the SCC with general duties and other specialist groups within the NSW Police Force. 474The Association also relied upon some new or upgraded systems which have earlier been described in relation to LACs, such as COMPASS, CMF, CMS and EFIMS. We do not consider that any of these factors materially add to the Association's work value case in this area. 475Finally, the Association made a submission that the SCC had undergone a number of changes since 2005 in relation to the "duties, responsibilities, skills, productivity and performance" of its officers. No attempt was made to distinguish between factors relevant to the work value sub-principle and those associated with the productivity and efficiency sub-principle. Much of what the Association put, in this respect, traverses the same ground we have earlier discussed in relation to the parties' submissions. 476Some of the other factors relied upon by the Association add little to its work value case. The Expert Referral Team ('ERT') used to be part of the Commissioner's inspectorate until the inspectorate was dissolved in 2008. That factor had no impact on the SCC squads apart from providing advice when requested. The E@gle.i system, which pre-dated 2005, has not significantly changed or expanded. Whilst we would not wish to underrate the strategic alliances the SCC officers form with relevant community, victims and external groups, we do not consider that this adds significantly to the value of their work. A similar conclusion must be reached in relation to the contention that the SCC squads were required to report more frequently and in greater detail. We also note that the Performance Planning and Risk Management Unit now audits all squads following the SCC realignment process and that squads have begun to search proactively for events in COPS. 477These submissions do not advance the Association's case because the changes relied upon fail to meet the requisite test: they merely update existing arrangements, add little to the work circumstances of, essentially, a reactive policing unit and, overall, do not add significantly to the work value of the officers. 478NON-PUBLICATION ORDER 479We would note, with respect to these matters, that the changes associated with DNA evidence need to be understood in the light of Assistant Commissioner Hudson's evidence, to which we have earlier made reference. 480Overall, we accept the submission of the Commissioner that the SCC is primarily a reactive Command and that the factors justifying a general salary increase for LACs are generally absent from this area. We do find that the work value of officers in this Command has changed since the datum point. We do not accept, as the Commissioner seemed to submit, that these changes may be negated because they have "made life less difficult in a number of significant respects", although there is, as we have earlier noted, a component of changes which is diminished by that consideration. 481Those conclusions bring us to a consideration as to whether the evidence as to the SCC might contribute to the Association's work value case, notwithstanding the fact that officers in the SCC are not engaged in proactive work of the kind which is found with respect to LACs. 482We will, in due course, evaluate overall just what is the magnitude of work value changes found for the police officers falling within the representative sample. That will involve a 'weighing' exercise. For present purposes, it is sufficient to note that we do not consider the changes in work value established for the SCC are of the same magnitude or poignancy as that demonstrated for LACs. Hence, the SCC component of the sample must constitute a deficit in the Association's work value case. Professional Standards Command ('PSC') 483We have carefully considered the Association's submission as to this area of the NSW Police Force, relying, as it does, on the evidence of Assistant Commissioner Carey. We have noted that the Assistant Commissioner instituted a restructure including the Special Crime Group being moved to the SCC. We have also noted work changes and developments in the PSC associated with the fact that, through Project Lancaster, there was a successful devolution of authority of the complaint process. 484However, in a balancing of these considerations, we consider the Commissioner's submission to be sound regarding this Command. The changes in the operation of the Command do not satisfy the work value sub-principle. The Commissioner's submission was in the following terms: [242] The Professional Standards Command consists of around 240 staff, with 170 sworn officers, of a mixture of ranks, and 62 unsworn officers. This specialist command has similarly been affected to a different degree by the changes relied upon by the PANSW to justify the wage increase as part of the general claim. [243] The work of the Professional Standards Command is markedly different to that undertaken by Local Area Commands. The Command investigates police misconduct and corruption, and also investigates serious complaints against unsworn officers. The Command also develops and promotes Professional Standards policy, products and services. [244] The Investigations Unit within the Professional Standards Command is the largest unit of the Command and conducts serious complaint investigations. It is a "reactive" Unit in the sense that it reacts to complaints. It is evident by the nature of the work of the Professional Standards Command that the PANSW's primary contention said to support a general wage increase for NSWPF officers - the increased proactivity since 2005, evidenced according to the PANSW by increased statistics for move-ons, person searches and other proactive interventions - has little relevance to the work of the Professional Standards Command. Assistant Commissioner Carey in his statement characterised one component of the Professional Standards Command as "proactive" in that one unit "relates to corporate advice and response", however, this plainly is not the type of "proactivity" contemplated by the PANSW's claim. Consequently, in contrast to Local Area Commands, the Professional Standards Command reports "on Compass in terms of finance and HR matters only". [245] Furthermore, the equipment and system changes relied upon by the PANSW in their Opening Contentions, for example the Automated Bail Reporting System, LiveScan, Field IDs, Mobile Data Terminals, have little or no impact on the Professional Standards Command. Detective Chief Superintendent Fitzgerald, in his statement, recounts that the predominant computer system he uses is, in fact, the Lotus Notes email system. Detective Chief Superintendent Fitzgerald goes on to state that he relies on other systems such as C@tsi, SAP, COPS and "police intranet functions". [246] Further, as with the State Crime Command, the mechanism for accountability for Professional Standards Command differs from Local Area Commands. COMPASS, on the PANSW's case, is said to have increased accountability of NSWPF officers. However, as explained by Assistant Commissioner Carey in his statement (and not disputed during the hearing), "COMPASS is heavily reliant on crime data. It is hard for specialist commands, like PSC, to measure this. It is easier for LACs to work out what is going on with crime." [247] The PSC consists of 240 staff, a mixture of Police and unsworn officers in two locations (1 covert location). There are 170 sworn officers and 62 unsworn officers, amongst the sworn officers, there is a mixture of ranks. [248] The Respondent submits that the granting of the General Claim to the PSC would involve a windfall benefit based on matters relied on in the General Claim. Accordingly, the PSC is within the Group of Commands that must be taken as having a moderating effect on the General Claim. 485It follows that this aspect of the representative sample would not, having regard to the work value sub-principle, support the Association's work value case and will, ultimately, then lead to some moderation or discounting. Marine Area Command 486The MAC is a specialist Command that forms part of the Special Services Group within the Specialist Operations Division of the NSW Police Force. It has an authorised strength of 127 officers. It replaced the former Water Police in 1999. Unlike the Water Police, who were officers attached to specific LACs, the MAC is a stand-alone unit, established along the lines of an LAC model. 487The MAC's basic functions are to respond to and prevent marine crime, to protect life and property at sea and in inland waters, to oversee and control aquatic events, to co-ordinate and conduct searches and rescues off the New South Wales' coast, to carry out police diving operations and to engage in safety and compliance enforcement. It contains a number of specific units: (a)Marine Investigative Group, which essentially consists of Marine Detectives; (b)Diving Unit; (c)State Marine Intelligence Unit; (d)Fleet Operations (which maintains the MAC fleet day-to-day); (e)Education and Training Unit; (f)Marine Operational Support Team ('MOST'): this is a tactical unit specially trained in boarding vessels at sea, port security, marine crowd control, VIP escorts, and certain aspects of marine law enforcement; (g)Licensing Officer; and (h)Search and Rescue Co-ordinator. 488Some officers in the MAC are in receipt of SDAs. Divers receive the Grade 2 SDA and officers with the qualification of Master Class V also receive Grade 2 SDA. The higher qualification of Master Class IV (a higher qualification required for the new launch 'Nemesis' - discussed below) does not attract any higher grade of SDA. 489The evidence concerning the MAC consisted primarily of the statement of Senior Sergeant Malone, Acting Co-ordinator of the Sydney sector of the MAC. Although subject to some cross-examination, the facts, as stated by him, were not seriously contested. In addition, there were two documentary exhibits (related to a presentation given during the MAC inspection). The Commissioner adduced no evidence of his own with respect to the MAC. 490The Commissioner accepted that the work within the MAC bore a relationship to the work performed in LACs, although the circumstances in which the work was performed were said to be unusual. He submitted that the MAC is atypical in that some of the officers are in receipt of the SDA and, therefore, "this command is an inappropriate example for inclusion in the representative sample". The Commissioner also contended that the work within the MAC was vastly different from the typical General Duties police officer. We will return to this submission and a submission regarding claims under the SDA after a consideration of the work value changes in this Command relied upon by the Association. 491As a general observation, we were very impressed with the evidence received regarding the MAC. We accept entirely the submissions made by the Association as to changes in this area, although some of those changes, as the Commissioner submitted, will be conditioned by the special nature of the work undertaken by the Command (although we do not consider that factor greatly diminishes the significance of those changes under the work value sub-principle). 492We propose to set out in full the Association's submission in this respect, as follows: (a) There has been a transformation of the MAC fleet which allows deployment in areas previous outside the fleet's limitations. Vessels being used such as the 2009 "Nemesis" launch are more expensive, powerful and sophisticated, with technology far beyond what police had previously experienced. The "major program" to update the fleet with "27 new vessels with the latest communications, video and surveillance technologies into the fleet by 2008-2009" were described in internal police publications, particularly by reference to the Nemesis, as enabling "extended surveillance and pursuit roles and provide tactical support and transport of counter terrorist and State Protection Group operatives", quoting the then Commander of the MAC as saying the fleet upgrade "would put MAC at the forefront of marine law enforcement in Australia, enhancing its capacity to fulfill its crime, search and rescue, and specialist commitments". (b) In order to operate these vessels, more advanced qualifications are required. Involvement in the operation of the Nemesis requires a Mechanical Engine Drivers Level 1 certification, where previously Levels 2 or 3 was sufficient. To pilot the Nemesis, a Master Class IV licence is now required, which is more advanced than the Master Class V licence which was previously sufficient for the fleet. This licence also enables the smaller vessels to be piloted further offshore than the Class V licence. The Class IV licence requires a significant amount of hours on the lower licence to have been worked, and then the successful completion of a 9-week technical college course. (c) MAC has begun to be used as part of joint operations with other agencies such as the NSW Crime Commission, the Australia Customs Service and the Australian Federal Police, in order to support port security and counter-terrorism activities. MAC officers have had to develop and enhance MAC capabilities in order to successfully participate in these activities. MOST has played an important role in such operations in interdicting moving target vessels and dealing with siege situations at sea. These operations are now a regular feature of the day-to-day work of the MAC. These operations can involve responding to large-scale illegal fishing and drug importation operations. An example of the "longest offshore operation ever" is described in evidence. (d) MAC has become engaged in proactivity in an extensive way, using its intelligence unit to drive proactive taskings. This work is monitored and reported in the same way as in a LAC, and involves business plan targets monitored and reported through Compass. It includes the management of recidivist offenders through STMP II. Examples of proactive taskings directed by intelligence include attendance at certain areas of Sydney Harbour where vessel break-ins are occurring at particular times or days, or targeting of particular infrastructure sites, ports and wharves. This constitutes a significant change to the previous culture whereby officers patrolled the waters and reacted to events at their discretion. (e) Random breath testing was introduced upon NSW waterways in 2005 as a result of the Marine Safety Amendment (Random Breath Testing) Act 2005. Officers were required to acquire particular expertise in order to come alongside a vessel, often in difficult conditions, and conduct a breath test on the skipper. Now, as a proactive policing activity, 400 RBT's are conducted per months, as compared to none prior to the legislation. (f) The number of on-water licensed premises has significantly increased (now over 200 throughout the State), requiring greater policing activity, and the MAC is required to conduct foot patrols of harbour foreshores. (g) The introduction of compulsory fishing licences in 2005 has meant additional work for the MAC in policing this requirement. This involves increased patrolling of wharves and stopping of fishing vessels to check for the holding of fishing licences, with the subsequent requirement for action to be taken against those without the required licence. Additionally, following serious accidents in 2007 and 2008, new legislative requirements have been introduced as to designated transit zones for harbour vessels, which the MAC must patrol and enforce. (h) The MAC has been subject to many of the systems changes which have occurred in LACs, including COMPASS, STMP II, and CMF. The earlier submissions as to these systems are relied upon in the MAC context. 493A particular issue arose in the proceedings as to an internal claim for an SDA for officers holding a Master Class IV licence. The issue resonated in a particular way with respect to officers responsible for the 'Nemesis' launch. The application received support within the Command but did not reach Mr Vass, Manager, Employee Relations, or Assistant Commissioner Jenkins. The application languished in this state for some years, despite the exercise of such duties and the holding of such qualifications by the relevant officers. We note that the Association has made no application to vary the SDA with respect to officers holding such qualifications in the MAC. 494We mention this consideration at this juncture because it has some bearing upon the assessment of work value in this area. Given the totality of factors brought to account by the Association with respect to police officers within the Command, we consider there can be no doubt that the MAC component of the representative sample is of equivalent value, in work value terms, to the changes in work value in LACs. Indeed, in some respects, the changes in work in the MAC would warrant a finding that the extent of the work value change is, in fact, greater (particularly in view of our considerations in the following paragraph). 495Given that no claim has been made with respect to officers holding a Marine Class IV qualification and having regard to the Regulation, there is no reason, as presently advised, to do other than count changes in this area as part of the totality of work value changes. We do not propose to anticipate our findings with respect to specialist groups falling outside the sample at this stage but we would note that the grant of an internal application for an SDA for MAC officers holding a Marine Class IV qualification might have some impact upon our assessment of work value for the MAC and, thus, the overall work value case (although the reduction may be only moderate). Overall Conclusion re the Work Value Sub-Principle 496We find that the Association established a case under the work value sub-principle having regard to the changes in the work requirements of General Duties police officers in LACs and some features of the specialist Commands appearing in the sample, particularly the MAC. However, we have identified a number of mitigating or moderating factors which will have the effect of discounting any salary increase which may be afforded police officers in this respect (or warranting the application of averaging principles). These factors include our aforementioned assessment of the nature and quality of proactive policing changes, particularly when offset against changes which had already occurred prior to 2005, other mitigating factors associated with the reach of those changes within the LACs after that date and discounts arising from our assessment of the SCC and PSC in the specialist groups found in the representative sample. 497Ultimately, any determination as to any salary adjustment arising from our findings in this area and the following section of our decision must await our consideration of the productivity and efficiency sub-principle, the economic evidence and, ultimately, the submissions of the parties in the further stage of this first part of the proceedings dealing with remedies (which will bring in, inter alia, financial considerations). Productivity and Efficiency Productivity and Efficiency Considerations Introduction 498We agree with the Commissioner that the manner in which the Association has constructed its case has the result that the factors brought to account under work value considerations must, in these proceedings, have a bearing upon our consideration of the productivity and efficiency sub-principle. Indeed, many of our findings regarding work value will have application in our assessment of the Association's case under the productivity and efficiency sub-principle. Nonetheless, there are distinct features of the productivity and efficiency sub-principle which require attention. As Mr Kenzie conceded, the questions required to be considered under that principle are, ultimately, discrete. 499The Association's case under the productivity and efficiency sub-principle may be shortly stated. It was contended that there was a measurable improvement in productivity and efficiency of police officers since the datum point reflected in the reduction in crime over the whole of the relevant period. The NSW Police Force's performance was, it contended, fundamentally based upon its role in the detection and apprehension of criminal offenders and the prevention of crime. It had been successful in doing so and that was because of the direct contribution of police officers. 500The Commissioner's response to these contentions was, effectively, twofold. First, in so far as the Association relied on a change in work or work value under this sub-principle, then the Commissioner gave essentially the same response as to the work value considerations. There was no material change in the work after 2005. It was submitted that "contrary to the Association's case, which attempts to suggest that the significant shifts occurred post 2005, the Respondent's case is that the paradigm changes occurred in the period prior to the buy-out of the Police Association's claims in 2005". 501Secondly, in relation to the general basis for the Association's case, in this respect, the Commissioner contended that the Association had not discharged the onus of satisfying "the necessary matters in relation to the productivity principles". Shortly stated, it was contended that the Association had not proved that it was the work of officers, as opposed to other contributing features, which had been responsible for a reduction in crime statistics. 502As to the notion of 'onus', Mr Kenzie submitted: When I use the word "onus" what I am pointing to is no more than a requirement to satisfy the principle. It is the applicant's obligation to actually satisfy the Commission through the evidence as a totality at the end of the day, that the principle is satisfied, if the applicant does not do that then the applicant will fail because the Commission has not reached that degree of satisfaction, so the applicant has to advance evidence sufficient to allow the work to reach that degree of satisfaction. 503This latter submission needs to be understood in a particular context. As we have earlier observed, the Commissioner did not dispute that there had been an appreciable decrease in crime rates across many categories or that "all the staff had contributed to the outcomes that had been achieved". Further, the Commissioner accepted that proactive policing played "a large role in driving and keeping crime down". Rather, the Commissioner's submission proceeded from a premise as to the operation of the productivity and efficiency sub-principle which was expressed in the following terms: Whatever else the productivity principle now established by the Commission does, it does not support claims based employees performing the same tasks that they were essentially performing at a period of time when their productivity was last bought out; for example, if police numbers are increased, crime decreases as a result but the duties and responsibilities remain essentially the same; and this would not give rise to a productivity increase under the Principles. 504The Commissioner accepted that the fall in crime rates did have implications for a productivity case concerning the NSW Police Force, but that the applicant's case failed to satisfy the sub-principle because it had not demonstrated that advances in productivity were attributable to changes in the way in which police officers performed work after 2005 such that they contributed to the improved productivity. The Association needed to make out a case that the "[p]olice themselves had produced the results as required under the principles". The Association had not demonstrated that improvements to productivity after 2005 were not, in fact, due to improved productivity measures which were put in place before that time. 505The Commissioner submitted that there were factors other than the direct contribution of police officers which may have contributed to productivity changes. These included technological and management initiatives, such as PAL, which freed officers from certain tasks to afford them a greater opportunity to perform their sworn duties. In addition, crime rates will be responsive, it was contended, to sociological and economic factors, and a variety of factors described in the following passage of the Commissioner's submission: The need for discharging the onus based on evidentiary materials has gained significant importance in light of the following matters: (i)Assistant Commissioner Hudson gave evidence that there was a decrease in New South Wales in the numbers of juveniles between the ages of 14 and 24 - being the demographic responsible for the highest per capita proportion of crime. (ii)The last decade has seen widespread anti-theft technology and equipment such that (eg) motor vehicle thefts have dropped markedly as a result. (iii)The nature of crime has changed - for example, cheque fraud which was extremely prevalent before the year 2000 has now almost disappeared, and has been replaced by on-line transaction fraud. The Police Association undertook no analysis as to the effect of a change in the nature of crime to its productivity case. (iv)During the period of 2000-2011, the structural changes to the Police Force, together with the various legislative and technological changes described above, have obviously had a profound effect on policing generally since 1997 (which coincided almost exactly with the decrease in the crime rate). (v)Legislation (including sentencing legislation) has obviously greatly contributed towards achieving results in crime statistics. (vi)Issues of cause and effect are not straight forward. For example, Commissioner Wood rejected that there was a nexus between (eg) simply increasing police numbers and a reduction in the crime rate without more . This coincided with Commissioner's Ryan's Reform Blueprint which advocated the introduction of intelligence-led policing. 506Mr Kenzie also put the following submission regarding overtime: The other thing we would want to say about statistics in Mr Jenkins' affidavit Ex 14, at para 128 (Read). Those additional shifts were all paid as overtime as had been done from May 2002. So even if you assume that you would only take a number, I am told the evidence that is before the Commission is that there were 64983 move ons in 2007. That appears at p 49 of the Association's submissions. If it be assumed that there were only a relevantly small number of move ons per shift, then all the statistics relied on would be move ons done in overtime shifts. 507The Commissioner also submitted that a "significant factor militating against the causation case sought to be made out by the Association is the fact that crime rates are reducing in every State in Australia (in almost lock-step)". However, the Commissioner conceded that this consideration may be diminished if the changes in other States had also resulted from productivity changes. 508The Commissioner referred to NSW BOCSAR Recorded Crime Statistics, 2010 to contend that the New South Wales long-term trend in violent crimes had fallen steadily since 2002, and the New South Wales long-term trend in property crime had decreased steadily since 2000. The Commissioner also referred to various statistics showing particular crime rates per head of population as being "steady" since 1990. No submission was made about the significance of these statistics compared with those otherwise described in this decision (and, in particular, the 2011 survey). 509In summary, it was submitted that the Commission could have no confidence that the matters relied upon by the Association had caused, in a significant way, the decrease in crime statistics such as to satisfy the principles. Principles 510Sub-principle 8.3, productivity and efficiency considerations, is a new sub-principle introduced by the State Wage Case 2010 (No 2) (although its origins lay in the acceptance by the Full Bench in Crown Employees (1993) that similar factors were available to establish a special case). It is, therefore, appropriate to set out the terms of the sub-principle, which is as follows: Productivity and efficiency measures that have delivered substantial costs savings and/or productivity or efficiency improvements or which have made a substantial contribution towards the attainment of the objectives of the employer(including departments and agencies of the Crown) in seeking to become more competitive and/or efficient, to which employees have made a significant contribution, may constitute the basis for increases to wages and salaries or improvements in employment conditions without the requirement to make out a special case, provided that such measures, savings or improvements have not already been taken into account in previous wage adjustments. 511The rationale for the sub-principle was stated by the Full Bench in State Wage Case [2010] NSWIRComm 183; (2010) 201 IR 155 ("State Wage Case 2010 (No 1)") at [98], as follows: ...Whilst the DPE accepted that claims based on productivity and efficiency improvements were already permissible under the existing Special Case Principle, we think it is important to make it clear just what the criteria are for such claims and to ensure that claims brought on that basis do not need to be made out as a special case (such claims being treated in a similar manner to work value claims). 512The sub-principle does not itself require a party to meet the requirements of either work value or special case components of the Arbitrated Case Principle. 513The Association provided what is described as a summary of the requirements of the sub-principle. This was uncontentious and, in our view, broadly encapsulates the operating conditions for the sub-principle. That submission was as follows: (a)The case must be based upon "productivity and efficiency measures". "Measure" in that context presumably has its relevant ordinary meaning, namely "an action or procedure intended as a means to an end". (b)The relevant measures must have either delivered substantial cost[s] savings and/or productivity or efficiency improvements or made a substantial contribution towards the attainment of the objectives of the employer(including departments and agencies of the Crown) in seeking to become more competitive and/or efficient. The latter alternative appears to recognise that Government departments and agencies providing services to the public may have their productivity and efficiency measured by reference to their service objectives, rather than just by reference to notions of cost and profit which would apply to a private sector business. (c)Employees must have made a significant contribution to the requisite productivity and efficiency measures. The required nature of this contribution, which is not elaborated upon further, is likely to reflect the approach taken in Re Crown Employees (Administrative and Clerical Officers) Award (No 2) at 378-380 and the cases which followed it. Consideration : Productivity and Efficiency Sub-Principle 514The conclusions we have reached as to the Association's work value case must apply a fortiori to the contentions mounted by the Association under the productivity and efficiency sub-principle. The factors which were found to have diminished the Association's work value case are, by and large, either not so constrained or relatively weaker when considered in the light of the requirements of the productivity and efficiency sub-principle. The work intensification of police officers may have contributed to a work value change of the requisite kind by a narrower margin, but that factor does not suffer the same limitations under the productivity and efficiency sub-principle. 515By reference to sub-paragraph (b) of the extract from the Association's submissions above, the relevant objective of the NSW Police Force for the purposes of the productivity and efficiency sub-principle, is the prevention or driving down of crime. In other words, the objective to be taken into account for the purposes of the sub-principle is the reduction of crime. The NSW Police Force is a service-orientated agency and its productivity and efficiency, as we have earlier discussed, must, at least, be measured by reference to the service it provides to the public in respect of the detection and apprehension of criminals, the prevention of crime and the reduction in the incidence of crime. This is clear from the statutory provisions governing the NSW Police Force and how it measures its own performance. 516In this case, the relevant objective could not be clearer for the subject period (from the datum point to the current date). The State Plan imposed upon the NSW Police Force crime reduction targets, which targets, in and of themselves, thereby became an objective for the purposes of the sub-principle. 517Turning then to the relevant measure described in (a) and (b) of the aforementioned submission, the NSW Police Force adopted a variety of measures to obtain those objectives. One such measure, as we have found, was, based on theory and experience, the expansion and amplification of proactive policing in LACs. We have found, on a statistical and empirical basis, that there was a significant increase in proactive interventions over the subject period. Whilst there were a number of measures undertaken by senior officers of the NSW Police Service, both discreetly and in a complimentary way to that strategy, the application of a system of proactive policing, in the circumstances we have described under the work value principle as occurring after 2006, constituted a productivity and efficiency measure to obtain the objective specified by the charter of the NSW Police Force and, as a sub-set of that objective, the targets set by the State Plan. In other words, it was an action or procedure intended to obtain the end of reducing crime. 518Under the relevant principle only two issues remained. The first was whether the productivity and efficiency measures made a substantial contribution towards the obtainment of the objective. The second was whether the subject employees made a significant contribution in that respect. Both of these conditions have been fulfilled, in our view, by our earlier findings in this decision. 519There was a significant reduction in crime after the datum point. There was not, as the Commissioner submitted, a flattening out of the reduction of crime rates. More significantly, the evidence discloses that there was a significant reduction in crime after the implementation of the State Plan which substantially, although not exhaustively, satisfied the objectives laid down in that Plan. It is also clear from the evidence that the use of proactive policing schemes was causally related to that reduction in crime. It is immaterial under the sub-principle whether or not proactive policing was the sole cause as the sub-principle only requires that measure substantially contributed to that end. It follows that the other factors which may have contributed to the crime reduction referred to by the Commissioner do not warrant a conclusion that the sub-principle has not been satisfied, provided that a sufficient contribution was made through the proactivity vehicle. We have no doubt, on the evidence before us, that factor made a substantial contribution to the attainment of the objective as contemplated by the sub-principle. 520We should also observe that it is unnecessary to establish under the sub-principle that there occurred a change in the nature of police proactivity from pre-2005 schemes to reach a conclusion that the sub-principle is satisfied, in this respect. The principal focus is upon the attainment of the objective within the post-datum period so that, provided the measure has that result, the sub-principle will be met by an applicant. It must be borne in mind that the objective in this case is the reduction of crime so that what was required to be established and, in our view, was established, was that the reduction in crime occurred over and above the reduction in crime that was experienced during the first reform period between the late 1990s and 2005 and that it was substantially attributable to proactive policing. 521This observation is only made for the general purpose of aiding the understanding of the operation of the sub-principle. In this case, the sub-principle is satisfied, in any event, because we have found actual change in proactive policing contributed to crime reductions after 2005. 522The final criteria relates to the contribution of police officers to the attainment of the objective. 523We have already dealt with this issue in our findings under the work value principle. Changes to police proactivity after the datum point were driven by management and performance schemes and other technological devices. However, as we have found, the ultimate objective, in that respect, was obtained by the intensification of the work of police officers through the virtually universal and wholesale adoption of proactive policy in LACs. Changes to culture and focus resulted in the absorption into LACs of that system (the final fulfilment of the TITUS plan). Whatever the relative proportions of contribution was between the various strategies adopted in the NSW Police Force, there can be no doubt, in our view, based on our analysis under the work value principle, that police officers made a substantial contribution to the changes to police productivity, thereby assisting in the attainment of the State Plan targets and contributing to the reductions in crime. This is not a case which requires a resolution of the contention that, in order for employees to attract the productivity and efficiency sub-principle, they must have themselves experienced a change in their work of such a kind as to have produced productivity and efficiency improvements. That is because the evidence makes it abundantly clear that their work changed in such a manner. Regardless of any qualitative impact, work intensification constituted, in this context, greater productivity and efficiency, particularly having regard to the relative growth in police numbers which, as we have noted, was outstripped by the growth in police proactivity. 524In view of these findings, it is strictly unnecessary to have recourse to statements of senior officers of the NSW Police Force in order to conclude that the productivity and efficiency sub-principle is satisfied. However, the statements made by senior officers have been given with such conviction that we consider it is important to record them as part of the resolution of issues arising under this sub-principle. 525In a recent edition of 'Police Monthly', the Commissioner was recorded as stating under the heading "Crime Levels Can be Driven Lower": This significant reduction in crime has been achieved through the direct action of first response officers who are out there every day using their initiative to prevent crimes before they happen. However, let's not forget the valuable support provided by units such as VKG, Intelligence, Forensics, Specialist Criminal Investigators and Squads and many others. 526Assistant Commissioner Jenkins gave the following evidence: Q.Is it the Commissioner's position that there has been no improvement in the work value and proactivity of police officers generally since July 2005? It really calls for a yes or no answer? A. I think there have been improvements but those have been incremental improvements that have occurred over a long period of time. Q.I am asking since July, 2005? A.There have been improvements. Q.In work value and productivity of Police officers? A.Yes. Q.In what way has the work value and productivity of Police officers improved since 2005? A.I just think - as I just said and I will repeat my answer. Things are different. We do things differently. Due to a number of issues they have progressed and evolved over a long period of time. We have been able to extract time for officers to be proactive in certain fashions. That's because - and these improvements have increased since 2005 as they were in 2004 and they will increase in 2015 as they are in 2011. 527Furthermore, Assistant Commissioner Hudson gave the following evidence: Q.And, of course, you've seen plenty of public statements where Commissioner Scipione has attributed announced reductions in crime statistics to the work of police officer, correct? A. Correct. Q.And you don't, you wouldn't see any reason to dispute him making that link, that is, that the crime statistics are going down because of the work of police officers themselves? A.I, you know, I'm probably one of the people who advise him, so Q.And in one of the answers you just gave you referred, I think, to a reduction in reactive crime work which allows for proactive work to occur, is that right? A.That's correct. ... Q.Yes, and that's reflective of a proposition that you've just advanced, that is, there has been an increase in the amount of proactive work being done by police officers, correct? A. I think there's always been a large amount of proactive work done by police officers post 2000, 1999, and there's a refocus on that. I think the system's better allowed the capture of that information these days Q.Just to be clear about that, do you adopt the proposition that since July 2005 there has been a significant, discernable increase in actions that are proactive by police officers? A.I agree with that. 528Those conclusions must dispose of most of the contentions advanced by the Commissioner under this heading. The repetition of the Commissioner's work value contentions must plainly fail, at least in consequence of our findings under the work value sub-principle. Notions of 'onus', whilst somewhat 'illusive' in any event, plainly will not suffice to defeat the Association's claim in view of the conclusions we have reached. Similarly, the Commissioner's submissions as to the absence of change after the datum point were unsuccessful. Other factors (such as the decline in the number of juveniles falling within a certain age range) may have contributed to a reduction in crime but, in our view, do not, in any significant way, result in a conclusion that police proactivity, on the evidence before us, was not a substantial contributor (if not the substantial contributor) to the reduction in crime as part of the State Plan strategy. 529It may well be the case that the Commissioner did bear some onus to make out those "other factors" once they were raised in defence of the application, but it is unnecessary to finally deal with that matter, given the overall conclusions we have reached, that the weight of the evidence lies in favour of police proactivity being a major contributor to the reduction in crime. Our preliminary view, however, is that the issues raised, in this respect, should not be resolved in a case such as this by notions of onus or the concept of a shifting onus. The ultimate test is whether the requirements of s 10 of the IR Act require the making or variation of an award. That should be assessed by weighing all the evidence as to the competing considerations in order to assess whether the statutory condition is met (or, in the case of the Wage Fixing Principles, the relevant sub-principles have been met). The applicant bears the onus of making out its application in that overall context after a balancing of all the evidence: Purkess v Crittenden (1965) 114 CLR 164 at 167. 530The submission by the Commissioner that similar reductions in crime may have occurred in every State of Australia does not assist the Commissioner's case. As he conceded, such changes may well have resulted from productivity changes of the same or similar kind to those discussed in this decision. We have earlier dealt with the Commissioner's statistical analysis in this decision. 531That leaves one matter for consideration under this heading. That is essentially the question of double counting or windfall gains. It also brings in a related question of averaging in the context of a productivity and efficiency claim. 532The discounting factors we have identified under the work value sub-principle do not have the same effect in this area. The introduction of police proactivity prior to 2005, and the change in the nature of work of police officers in that respect, do not result in a discount under this sub-principle because the focus of the principle will only bear upon those measures introduced after the datum point. Provided attention is only given to the actual measures made effective after the datum point, and no more, then the terms of the sub-principle are not infringed and no double counting will occur. 533The mitigating factor associated with the absence of police proactivity from some LACs and specialist areas is a more difficult question. In one sense, if the productivity measure is attained then it would not seem to matter that some employees have not contributed to it. However, we think the better view is that some discounting or moderation must be undertaken if police proactivity, as the relevant measure, has not been experienced throughout the LACs operating within the NSW Police Force. This discount, however, must be less under this sub-principle than the work value sub-principle with respect to specialist areas. Commissioner Scipione was anxious to point out in the statement we have recorded above, the improvement in crime rate was not only obtained from the work of frontline police officers but by the various specialist units which were employed to assist them. 534Finally, in this respect, we accept the submission made by the Commissioner that there may not be a duplication of factors under the work value and productivity and efficiency sub-principles. This is clear from the proviso that appears at the end of the productivity and efficiency sub-principle. Economic Factors Principles 535As earlier mentioned, the Association contended that the general claim could, at least in part, be sustained upon economic grounds alone. It was contended that, in the event that its claim failed under other aspects of the Arbitrated Case Principle, the claim may succeed under special case considerations. The particular consideration relied upon by the Association was the maintenance of the purchasing power or money value of wages over the period in which the award would operate. 536This aspect of the Association's case was resisted as a matter of principle and as a matter of merit by the Commissioner. As to the question of principle, the Commissioner contended, correctly in our view, that economic factors of this kind could not, of themselves, sustain an application to increase rates of pay if the claim was not otherwise justified under work value or productivity and efficiency considerations. 537Whilst State Wage Case 2010 (No 2) did provide that special cases would be determined in accordance with the principles laid down in Operational Ambulance Officers, and, in particular the cases referred to in [165] to [168] of that decision, we consider that the reliance upon that decision by the Association was misplaced. 538True it is, the paragraphs from Operational Ambulance Officers (see, in particular, [167]) referred to in principle 8.4.1 include a reference to Crown Employees (1993) where reference is made to taking into account the changing value of money in determining the application brought in that case. However, that reference needs to be considered in light of the whole of the Crown Employees (1993) decision. In our view, the Full Bench in Crown Employees (1993) considered that productivity and efficiency considerations may be taken into account in a special case but that economic considerations such as the changing value of money over time would only be relevant, in assessing wage outcomes, if the case brought was justified on its merits, namely, under the Special Case Principle having regard to productivity and efficiency considerations. 539Further, we consider the reasoning of the Full Bench in State Wage Case 2010 (No 2), in rejecting an application by Unions NSW to modify principle 8 to permit a claim for an economic adjustment, per se, under the Wage Fixing Principles, independently of the Special Case Principle (see at [3] and [14]), is applicable to the consideration of the Association's contention in this matter, and should also contribute to its rejection. 540We consider that economic considerations may be taken into account in exactly the way contemplated in Crown Employees (1993) (as adopted in Operational Ambulance Officers), that is, as a factor to be considered when assessing the quantitative outcome of a claim which is successful, as a matter of merit, in accordance with the Wage Fixing Principles (including the special case sub-principle) and the relevant statutory conditions. Further, the Commission will have regard to broader economic considerations in determining an appropriate outcome with respect to any successful application: State Wage Case 2006 (No. 6) [2006] NSWIRComm 204; (2006) 153 IR 268 at [282] (and see s 146(2) of the IR Act). 541A related issue concerned the proper method by which the Commission should make economic assessments of this kind. The Association contended that the appropriate starting point for such an assessment was the date of the last salary increase under the award before the making of the interim award, namely 1 July 2010. Thus, it was contended that the Commission should, in factoring in an "economic adjustment component" in any award variation, firstly have regard to the "actual changes in the cost of living for the period 1 July 2010 to 30 June 2011". It followed, it was submitted, that the second year of the operation of the proposed award would be based upon an assessment of the 2011-2012 financial year, and the third year, the 2012-2013 financial year. On the other hand, the Commissioner contended that such assessments should be undertaken in relation to the "year in which [the] Award is supposed to cover". In the result, if a three year award was to be made it would be necessary, upon the Commissioner's contentions, to also consider the 2013-2014 financial year. 542This controversy has significance not only for the method of making economic assessments for the determination of wage variations but also for economic forecasting, in that respect. As will be discussed below, the economic experts called in these proceedings reached a high degree of consensus with respect to CPI inflation forecasts for the financial years 2011-2012 and 2012-2013. The only significant difference occurred in the financial year 2013-2014, the very period the subject of the above methodological debate. 543Before turning to the issue at hand, it is necessary to introduce a note of caution. Economic factors of this kind are merely one element in the determination of appropriate remedies, that is, if the Association satisfies the requisite Wage Fixing Principles. The resolution of the appropriate method of determining how real wages might be maintained cannot be determinative of any wage outcomes if the applicant has otherwise made out a case under the requisite principles. 544Nonetheless, as we have described above, some practical considerations arise at this juncture which must be determined. Those questions are resolved, in our view, by the decision of the Full Bench in Operational Ambulance Officers (and the reliance, in that decision, upon Crown Employees (1993)). The Full Bench in Operational Ambulance Officers set out the following extract from the Crown Employees (1993) decision at [167]: In our view, the special case section of the principles provides a mechanism whereby a claim for enhanced wages or conditions beyond those normally allowed under the principles may be brought before the Commission. The hearing of such a claim is to be conducted by the Full Commission (formerly the Commission in Court Session) thus emphasising the special nature of the case. It will be a matter for the Full Commission, after hearing the evidence and submissions, particularly relating to the matters relied on to take the case "out of the ordinary" and thus to make it "special", to decide whether the claim, in part or in whole, should succeed. ... It is also entirely appropriate, it is concluded that, in general, the claim should succeed, the Commission have regard to economic considerations, including the changing value of money over time, when deciding the amount of increase which should be awarded. Matters which may be considered in that regard are the date on which the last wage increases for employees in question took effect, and changes in money values which have occurred since that time that time or are forecast during the prescribed life of the award to be made. 545We agree with this Statement of Principle. It does not, however, entirely favour the contentions advanced by either party. It is appropriate, when considering appropriate remedies in a general application such as the present, to have regard to the maintenance of the purchasing power of wages by assessing, for the first year of the operation of any award made, relevant economic considerations for the period since the last salary adjustment (in this case 1 July 2010), provided there is an avoidance of double counting. However, the economic forecasts should then be considered for each successive actual year of the operation of the award. In this case, if an award were made for three years, the Commission would be required to have regard to the economic forecasts for such year of operation of the award, namely, in the second year, the forecast for the financial year 2012-2013, and, for the last year, the forecast for the financial year 2013-2014. 546There is a counterpoint. If the Commissioner's contentions as to duration were made out, of course, the financial year 2013-2014 would be irrelevant to our considerations. Economic Conclusion 547Bearing in mind those observations, we provide our conclusions as to the economic evidence in these proceedings (employing, in this regard, the distinction drawn by the parties between economic and financial considerations). 548The Commission had the benefit of expert evidence from two eminent economists, Mr Christopher Richardson, Partner, Macroeconomic Policy and Forecasting, Deloitte Access Economics (who was called by the Commissioner) and Dr Frank Gelber, Chief Economist and Director with BIS Shrapnel Pty Limited (who was called for the Association). 549As a result of directions given by the Commission, the experts prepared a joint report and gave concurrent evidence. In consequence, a substantial number of economic controversies which had arisen in the proceedings dissolved. 550Mr Hatcher correctly submitted that the following emerged from the evidence of the experts: The joint report prepared by Dr Gelber and Mr Richardson has almost entirely removed any controversy from the question of an appropriate economic adjustment assessed on the basis identified above. Relevantly, they agreed as to the following matters: (1) "If you want to measure the purchasing power of wages, the [ABS] cost-of-living index is better". (2)Although Mr Richardson did not attempt a forecast of changes to the cost of living for the 2011-12 and 2012-13 financial year, there was "not much difference in the CPI and cost-of-living forecast outcomes". That meant that, for the purpose of comparison of their respective forecasts, it was sufficient to use the CPI index. (3)The best measure of CPI for the forecasts was the headline Sydney CPI, year averaged, with the effect of the carbon tax excluded. (4)Their respective CPI projections for 2011-12 and 2012-13 were so close that the differences were inconsequential. 551The Association also correctly summarised the data and/or expert opinion which derived from those conclusions, as follows: (1)For 2010-11, the actual figure for the ABS cost of living index (employee households) was 4.5%. (2)For 2011-2012, the CPI forecasts were 3.2% for Dr Gelber and 3.0 for Mr Richardson. (3)For 2012-13, the CPI forecasts were 3.1% for Dr Gelber and 3.2% for Mr Richardson. 552The differences in the estimates for the 2011-2012 and 2012-2013 financial years are, as the parties (and experts) conceded, inconsequential. 553There was a disagreement between the experts as to their CPI forecast for the 2013-2014 financial year: Dr Gelber's forecast was 3.6 per cent and Mr Richardson's forecast 2.7 per cent. The Association was correct to submit that this disagreement was largely founded upon the issue of "when the mining boom, signified by historically high commodity prices, would come to an end". We will return to that issue. 554The Commissioner submitted that the evidence of the joint experts was to the effect that their forecasts were attendant with high margins of error in the light of global risks. The effect of these risks, it was submitted, was to put downward pressure on CPI inflation and, in the result, the Commission should take the most accurate projection for CPI inflation to be consistent with the mid point of the RBA's target range, namely 2.5 per cent, and its estimate of inflation, being two per cent at June 2012, 2.5 per cent at June 2013 and between 2.5 per cent and three per cent "into the third year". It was contended that the fact the RBA "will actively conspire to maintain that forecast by necessary intervention is a significant factor weighing in favour of the 2.5 per cent figure". It was also submitted that the latest RBA forecast came after the experts had filed their statements. 555We do not think that the submissions of the Commissioner, in this respect, are sustainable. The experts were jointly cross-examined as to the extent to which risks in the global economy might affect their forecast. Each expert explained that the risk had been considered, but adhered to their forecasts. We consider that their explanations for that view and their forecasts, overall, were compelling, being amply supported by relevant economic theory, indices and data. In a global sense, Mr Richardson aptly put the common view of the experts by his statement "Chinese strength trumps European weakness". There is no proper basis, on the material before us, to reject that evidence. 556As to the forecasts by the RBA and that organisation's target range for inflation, we make four observations. First, we adopt that which was stated by a Full Bench in State Wage Case 2010 (No 1), then rejecting a submission by the NSW Government similar in terms to that advanced by the Commissioner. That observation (at [54]) was as follows: The idea that wages should be adjusted in line with the arbitrarily fixed mid-point of the Reserve Bank's targeting range for inflation over the longer term, regardless of how much the rate of inflation might fluctuate from year to year, is a novel one, and one that we do not propose to adopt. 557Secondly, the RBA target range represents, as the experts pointed out, the objective of the RBA to control inflation by obtaining that 'average' over time. Thus, the level of inflation will fluctuate over time with the policy being designed to broadly constrain it within the target range. As Mr Richardson pointed out, those policy objectives might have greater significance, from the forecasting viewpoint, in the "third" or "fourth" year but not in the earlier forecasting periods. Thirdly, the experts specifically dealt with the question as to why the RBA estimates for the first two years of any award may differ (and be softer). We have no proper basis to dispute those observations. 558Finally, the fact that the RBA may use monetary policy to constrain inflation is not, in our view, a significant factor weighing in favour of a mid point of the target range being used as the proxy for the maintenance of the purchasing power of wages. Monetary policy will operate, in the case of inflationary pressures, to constrain inflation but, by its nature (even with some anticipation), will only be effective after a lag (and even then not causing a movement in inflation with any arithmetic precision). Further, the experts predicted that an intervention to reduce inflation would be more likely to occur later in the operation of any award made. 559Those conclusions result in a clear view that, for the purpose of the maintenance of the purchasing power of wages, the Commission should take into account an approximation of a three per cent CPI inflation rate for the second year of any award made. That finding does, however, leave a residue of issues which we will dispose of below. 560First, the percentage adjustment used by the Association for the 2010-2011 financial year was based on the ABS cost of living index (employee households). The evidence of the experts ultimately resolved itself (albeit on pragmatic grounds) in favour of forecasts using the headline 'Sydney CPI, year average', with the effect of the carbon tax being excluded. When that index is employed, the appropriate figure for the 2010-2011 period is three per cent. That figure matches the 3.1 to 3.2 per cent range predicted by the economists. Bearing in mind these considerations, we shall have regard to a 3.1 per cent inflation rate for the first year of the award. 561Secondly, and as we earlier noted, there was a disagreement about forecasts for the 2013-2014 period. The pivot of the experts' disagreement was their estimate as to when a decline may occur in commodity prices (this issue relates, of course, to assessments about a variety of economic variables). Both estimated that a decline would occur, but Dr Gelber contended that this would occur at a later time than that estimated by Mr Richardson. 562Mr Richardson's view, as expressed in the joint report, is as follows: Deloitte Access Economics' believes that there will be an easing in global commodity prices in these years, reducing the growth in national income. Although that leads to lower levels of the Australian dollar at this time, the easing in commodity prices is seen as having a dampening effect on economic conditions, and hence on inflation. 563Dr Gelber's views were expressed in the following terms in the joint report: BIS Shrapnel believes that the Australian economy will still be performing strongly in 2013/14. BIS Shrapnel's view is that by 2013, the economy is expected to hit full capacity constraints, with the unemployment rate predicted to fall below 4 per cent. Accordingly, inflationary pressures will be broadly based, but labour shortages will be the key constraint on the economy and the RBA will take an increasingly aggressive approach to reducing demand pressures through 2013. The efforts of the RBA are expected to successfully rein in growth in domestic demand from the second half of 2013, but wage and price pressure will be sticky downward, because both wages and, to a lesser extent, price inflation tend to lag the strength of growth in demand and output. However, both underlying and headline CPI inflation are projected to decline in 2014/15, as the high interest rates imposed by the RBA in 2013 affect inflationary pressures. Nonetheless, the projected depreciation of the exchange rate through 2013/14 will partially offset the effect of weaker demand pressures, and underlying tradeables inflation is expected to be higher. On the other hand, non-tradeables inflation is expected to ease, with the headline CPI forecast to ease to 3.4 per cent through-the-year to June 2014. 564An important aspect of Dr Gelber's view is that there will be a lag between an impact on commodity prices (through a weakening national economy or financial constraints) and changes in investment outcomes. 565There was insufficient, in the material before us, to make a definitive ruling on which of these estimates is preferred. We think the better approach is a conservative one for two reasons. First, the further in the future estimates are given, the less reliable they may become. This, of course, does not point in favour of either experts' view, but when one has regard to the fact that both experts agreed that there would be a reduction in commodity prices ultimately affecting the investment cycle (and inflation), and given the opinion of Mr Richardson about corrections by the RBA over a cycle (particularly over the third and fourth years), it would seem to us that the better view is in favour of the lower, and more conservative, of the disputed estimates. Secondly, we note that the RBA estimates discussed during the hearing of this matter point to a risk in a peak in commodity prices in the period corresponding with the operation of the last year of a three year award. 566Noting that the RBA range for the third year of any award is 2.5 to three per cent, we will adopt Mr Richardson's CPI inflation estimate of 2.7 per cent for the 2013-2014 period. 567Mr Kenzie accepted that, if a case was made out in accordance with the Wage Fixing Principles, and the expert economic evidence in the proceedings was accepted, then it "would be clearly open to the Commission to award a minimum of three per cent" (subject to the type of considerations arising under s 146 of the IR Act). 568There was a third issue. This concerned whether the Commission should be influenced, in this respect, by the NSW Government's Wages Policy, having regard to the fact that the Wages Policy is now encased in the Regulation (arising from s 146C of the IR Act) and does not apply to the present proceedings. There is some merit in the Association's submissions, in this respect, but we do not consider they ultimately require resolution. This is because both parties accepted that we would need to have regard to the Government's Fiscal Policy (and, thereby, its wages policy) as part of the overall economic assessment required by s 146(2) of the IR Act. With this consideration in mind, we propose to have regard to the NSW Government's Wages Policy in making a quantitative assessment in this case but note that it cannot dominate our consideration. It becomes part of the mix, including that which we have described above, arising from expert opinion. General Claim : Conclusions 569We consider that the Association has successfully established a case under the Arbitrated Case Principle based upon the evidence before us in the representative sample and other evidence of an overarching nature. The application satisfies the work value and productivity and efficiency sub-principles of that Principle. 570Any variation in wages under the award will require a revisiting of the strength of the Association's case under the respective sub-principles (as we have found it), the sub-principle of averaging our findings as to economic factors and financial or cost considerations, as well as other relevant factors bearing upon the question of remedy, such as the avoidance of double counting. Specialist Claims Submissions 571In summary, in respect of this aspect of Association's claim, it sought that two specified groups (police prosecutors and TOU officers) should be removed from the SDA regime and dealt with separately (the former by a new pay scale and the latter by a separate and increased scheme for SDA); expert FSG officers should receive a special allowance and other groups should either be inserted into the SDA regime, or if already inserted, moved within the regime. 572The Association submitted that the 2001 MOU provided for ongoing negotiations between the parties in respect of an appropriate Remuneration Model for specialist groups. 573The Association's contentions were that, in 2003, a working party was established with the aim of determining an appropriate Remuneration Model. Phase 1 of what became known as 'the 2003 Review' established the framework for the review. A benchmark position of a skilled-up general duties officer was identified. It was not a benchmark that had anything to do with the original establishment of the SDA structure. 574The Phase 1 report indicated that the process would be guided by job evaluation and available funding. A Hay score was given to a General Duties police officer, Senior Constable Level 1. The evidence was that the evaluation was not actually done by the working party and Mr Vass could not identify who had done this. Although Hay point scores were identified, the Commissioner was unable to produce any documentation to explain how the scores were reached. Mr Vass was unable, during his evidence, to explain who had determined the Hay points scores for particular grades of SDA and how those scores had been reached. 575Mr Hatcher submitted that, in effect, the only purpose of the 2003 Review was to engage in some reshuffling of the specialist groups as to where they may fit within a structure which dated back to 1984. There was no change in respect of the SDA for police prosecutors, as they had always been at the top of the structure and had nowhere to go, irrespective of any undervaluation. 576The TOU officers were ranked below police prosecutors so they were positioned as grade 3 in the SDA structure. This had always been the case and they, in effect, had nowhere else to go. Some new groups came into the SDA structure for the first time and some were shut out. Counsel submitted that the review did not involve a work value process to determine what level of remuneration was appropriate for the value of the particular job, that was not the task of the review. 577Mr Hatcher stressed, in making this submission, the Association did not criticise the Review, as it acknowledged that it operated within certain parameters. Counsel submitted, however, the Review should be recognised for what it was, that being, an attempt to assess an appropriate rate of remuneration for various specialist groups under consideration. 578Furthermore, it was submitted that, in assessing specialist groups, the 2003 Review did not undertake what was fundamental to the Hay process, that is, to assign a Hay score. That fundamental element was missing from the process. At best, there had been a panel discussion, and, based upon a consensus of the working party, groups were slotted into various SDA grades, depending upon how the working party saw a group vis à vis another group. 579Mr Hatcher submitted that there was no transparent modelling upon which this could be analysed or properly considered. 580In addition, it was submitted that the points to grade table which the NSW Police Force used to place new positions on the salary range was not used in this evaluation because it would lead to a salary outcome inconsistent with the existing SDA structure. 581For example, police prosecutors were assigned to Grade 4 SDA which had a rating above 408 points. Mr Hatcher observed that, if any position scored higher than 408 points it received a salary commensurate, at the very least, with a Senior Sergeant's salary (which started at approximately $100,000). However, this did not happen because that was not one of the parameters the working party had to operate within. 582It will never be known, it was submitted, whether police prosecutors would have scored 408 or above because they were never actually scored as such. The only discussion that took place before the working party concerned whether prosecutors fitted within Grade 4 of the structure which was over 408 points. The same applied to the TOU. The Grade 3 minimum score was 381. 583If the points to grade table used by NSW Police arising from the Hay methodology was applied, the TOU officers would at least get the salary attaching to the rank of Sergeant, if not higher. Again that process did not occur because it was not within the parameters of the 2003 Review. 584If the 1989 SEP model or the 1997 Remuneration Model had been adopted and a proper Hay evaluation (with the points outcome which the Review indicated) had occurred, then under the points to grade table, prosecutors and the TOU, by way of example, would have ended up on salaries much higher than they have now with their base salary and SDA allowance. 585Mr Kenzie, in response to the criticisms made by Mr Hatcher in respect of the SDA, submitted that the approach of the Association was to take a certain number of the groups, the basis of their selection not being identified, and seek to improve their position. There were difficulties with this approach. Firstly, the relationship between the selected group and other groups within the SDA had not been explained. Secondly, the Association's claim necessarily involved an approach being applied to the groups that formed part of the claim which was, by definition, a different approach than had been applied to other groups within the SDA. Senior counsel contended that there was a criticism of the 2003 Review process which, whatever its advantages or faults, was the process that was equally applied to everyone who formed part of the SDA. 586The Commissioner further submitted that, accepting for point of argument, all of the criticisms made by Mr Hatcher in respect of the SDA, including that the position of the various groups may not be mathematically explained, the review resulted from a process that was agreed and involved participation by the Association's representatives and representatives of the Commissioner. It utilised the evidence and expertise within those bodies. 587It was submitted that the first question required to be asked was not whether the panel established a proper Hay point, but why the experienced parties dealt with the SDA in the way they did. 588Mr Kenzie submitted that the answer to this question was the working party was endeavouring to reach an overall result which did justice between the parties so far as they could in the context of an agreed approach. 589To the extent that it was an error not to assign a Hay score, the working party, nonetheless, fully analysed the relationship between the groups and the "SDA was the result". The Association now contended that some unspecified sets of principles should be applied to the various groups in the SDA and, in the result, a different outcome should be determined by the Commission. This required the Association to deny the very benchmark the parties had adopted with the Review. So much was confirmed by Mr Collins in his evidence. 590Senior counsel submitted that the position of the Association was entirely unsustainable. To illustrate this contention, Mr Kenzie referred to the following submission by Mr Hatcher: With respect to the other groups, we have either said that the appropriate remuneration outcome that we advance can be accommodated within the existing allowance structure. For example, we say that OSG officers could be appropriately remuneration for their work value by an amount which is derived from the SDA structure. In that context we're not particularly fussed as to how you get there with the outcome, but it is an outcome that can be derived from the SDA structure without changing the structure and so on with the other remaining Specialist Groups. 591There was no approach that underpinned the new structure and just how the selected groups should be dealt with in the SDA structure as opposed to the balance of the groups within that structure. There was no set of industrial principles that was applicable to the groups the subject of the claim. Even if there were, Mr Kenzie asked rhetorically: Why would you possibly corrupt a principle that has been devised for internal consumption within the Police Service and apply some different principle to some. What consideration could possibly suggest that outcome. 592It would be completely contrary to the steps taken to date, including by agreement with the Association, it was submitted, to undermine outcomes that had been achieved on a holistic basis. It would also be against the public interest because it would be destructive of the internal processes that were designed to ensure fairness as between the groups in the SDA. In analysing the groups, the subject of the claim, Mr Kenzie observed that there was a claim for part time OSG officers who were part of the Riot Squad, but no application for the full time members in the Riot Squad. No explanation was given for this. Similar criticism could be made with respect to the claim to remove both police prosecutors and the TOU from the SDA structure. 593Police prosecutors had hitherto been processed as part of the whole of the SDA structure. No consideration had been given to what the removal of police prosecutors from the structure would do. Nor was it explained why a different set of rules should be applied to this group in an internal labour market. 594Mr Kenzie conceded that there may be some merit in the argument mounted in respect of the historical undervaluation of, for example, police prosecutors and the TOU, but submitted this would not be a sufficient reason for granting the Association's claim, bearing in mind the industrial history and the particular circumstances under which the Commission came to consider the application. The Commission was not in a position where it could determine what it was awarding by reference to the scheme the parties had agreed to as a whole (that is, the SDA structure). 595Mr Kenzie submitted as follows: Putting it as simply as I can, whatever imperfections unpinned that panel of people that Mr Hatcher was roundly criticising in his submissions, whatever imperfections attended that process and we do not concede any, but whatever, they are of nothing compared to the imperfections that surround the process in which you arbitrarily lift out a set of rules and say let's apply to a different set of rules. 596That industrial approach was not sustainable as a matter of fairness, consistency and history. 597It was submitted that, if the Commission identified, for example, a particular position, which appeared to be incorrectly remunerated under the SDA, there was a regime in place for dealing with that issue, and the Commission should encourage the problem to be dealt with in accordance with the existing regime. 598It was no answer for the Association to submit there is not a benchmark, but rather a series of benchmarks and "if the evidence of what a TOU constable does is properly analysed, that enables the Commission to properly determine the claim". 599Senior counsel acknowledged that, at one level, there were two types of cases here. There were police prosecutors who, it was claimed, were undervalued and sought to be extracted. If an argument was made out that there was a manifest undervaluation and it was found that outcome was manifestly unjust and unreasonable, then Mr Kenzie acknowledged that, if the structural limitations did not act as a barrier, the Commissioner may lose that debate in relation to that particular group. However, counsel submitted that with the majority of the groups no such conclusion should be reached. 600It was further submitted that there was a willingness on the part of the Commissioner to utilise the SDA structure and engage with the Association in relation to the process of dealing with individual groups (in fact, the HWP had sought a reassessment in 2010 but had failed). 601Mr Kenzie concluded this aspect of his submissions by contending that the Commissioner did not resile from the proposition that the agreed structure does not require constant attention and vigilance and invited the Commission to adopt this general conclusion, unless the Commission found egregious circumstances in respect of a particular group. The notion that the SDA should be supplanted by the processes that the Association proposed, it was submitted, simply did not withstand analysis and was not in the public interest. 602In respect of the FSG, Mr Kenzie acknowledged that there were two types of claims that were relevant in respect of this group. In respect of the expert's claim, Mr Kenzie acknowledged that Assistant Commissioner Loy, who was called by the Commissioner, supported their claim. Of the 23 experts described by Assistant Commissioner Loy, 17 were considered experts by way of accreditation. Assistant Commissioner Loy stated these officers could be separated from the balance of the FSG group. His evidence was that they needed to be recognised. (The Commissioner later produced a note also resisting this aspect of the Association's claim.) 603We shall turn to deal briefly with the submissions made by Mr Kenzie in respect of each of the specific threshold issues and the submissions made in response by Mr Hatcher. These can be conveniently dealt with under the following heading. Datum Point 604To the extent the Association relied upon work value changes since an asserted datum point of 2003, Mr Kenzie submitted this was at odds with the 2005 MOU. It was contended that the 2005 MOU bought out all work value and productivity up until 1 July 2005 without differentiating between general duties (which included at least intelligence officers and EDOs) and specialist Commands. It, therefore, followed that the Commission could not be satisfied that the evidence of putative change was either relevant or significant because this evidence was simply not addressed to the correct period. As the Association had predicated its case for specialists upon a 2003 datum point, and had led evidence on that basis, it must be concluded that the Association had failed to discharge its onus to prove the relevant change. The Commission has no basis to differentiate elements of its work value case before 2003 and 2005 (the actual datum point). 605In respect of the claim for police prosecutors, Mr Hatcher contended that there was an issue with the starting point that had to be considered, apart from the issue of work value change itself. Even if work value changes were put aside, the datum point was irrelevant, because these specialist officers had never received a salary commensurate with their duties. Senior counsel submitted, with police prosecutors, the task is more complex. It is not simply analysing changes in duties from a reference point to a salary which was presumably fair and reasonable. It further submitted that the starting point had not been properly established in such a way as would meet the requirements of s 10 of the IR Act. The Commission, so it was contended, in respect of this case "is required to, as it were, start from scratch to determine the salary rate and the salary structure, taking into account all the circumstances, whether they be historical or recent, which would meet the requirements of s 10 of the IR Act". 606The special case sub-principle would squarely accommodate, it was contended, the case mounted for police prosecutors. (No) Benchmark 607Mr Kenzie submitted that there were no benchmarks to assist in determining the specialist claim. By way of example, the word 'special' in "special duties allowance" denoted a Senior Constable with one year of experience at that rank and six years' service, yet there was no evidence as to what work value this constituted. 608Furthermore, it was submitted that the Association had failed to deal with the issue of existing relativities established under the SDA structure as between all groups receiving SDA. Senior counsel referred to the Association's opening contentions that, in relation to education development officers "they must be assessed as performing work of greater value than that of other persons ranked as Sergeants" and submitted that the Commission was not in a position to make this evaluation, either in relation to a General Duties Sergeant or in relation to Sergeants within specialist Commands, including those officers who received SDAs, as no evidence has been led to enable such an evaluation. 609This problem was further compounded as claims in relation to some specialist areas, for example, licensing officers, did not contend for a particular level of SDA but left it to the Commission during proceedings to determine where they should fit into the existing structure by reference to the work value of all other groups at that level (of which there is no evidence). 610The Association's position was that the appropriate benchmark and comparison was for the duties, training and requirements of a specialist officer of any given rank to be compared with a General Duties police officer of the equivalent rank. It contended the Commission had a wealth of evidence with which to undertake that task. Structural Arguments 611The Commissioner submitted that the Association's application, if successful, would have significant adverse structural ramifications upon the NSW Police Force. 612The grant of the claim would damage the SDA regime and cause distortions to pay levels within the NSW Police Force and also in areas where sworn and unsworn officers do similar or the same work. The Association simultaneously and fundamentally challenged the integrity of the SDA regime by, inter alia, seeking work value increases on the basis that they would form part of: a)a continuing pay structure but in circumstances where a totally different and undefined set of rules would apply for the assessment of those specialist claims; and b)a new regime existing outside of the SDA regime in circumstances where the SDA regime remains in place and accommodates the majority of specialist groups. 613The Association contended that the present structure was indeterminate, that is "we can't determine what the rules were that applied to the 2003 Review, and that apply now". 614It was further submitted by Mr Kenzie that the grant of the Association's claim was likely to lead to perceptions that certain groups had achieved more favourable outcomes or were more valued than others. 615An additional issue was that the Regulation would prevent other groups, who were not advanced by the Association in these proceedings, from being assessed in the future on the same basis as now proposed. Accordingly, the result would be aberrant. 616It must be borne in mind that the present SDA structure had its origins in the Structural Efficiency Case in 1989. Mr Kenzie referred to an affidavit of Sean Pardraic MacCormaic dated 12 December 1989, which was filed by the Association in respect of the application by the Public Employment Industrial Relations Authority for variation of the Crown Employees (Non-Commissioned Police Officers) Salaries Award (IRC 1433 of 1989). Relevantly, Mr MacCormaic stated: Persons within the definition of sworn or unsworn officer under the proposed Police Service Act would have the appropriate salary point or points for the position held determined by application of the job evaluation method developed by management consultants, Hay Associates, which has been utilised for senior positions in the Police Force since 1983. ... Although utilised for some 6 years, the Hay system values are not compatible with a rank structure such as that in the Police Force where the notion of ratios of higher to junior ranks still persists to some extent. In the result there has been some distortion of results under Hay evaluation of positions to meet operational rank structures. Application of the Hay scores against a unified salary scale will allow considerably more flexibility in determining the real salary value of work. The nexus between ranks and salaries will also be severed with rank being retained principally to ensure the recognisable chain of command in the operational sphere. ... The rank of constable will remain in the proposed award to allow the Commission to establish the salary value of that role and thereby provide the basis upon which the Hay evaluation score is applied to the salary scale for the higher positions. The salary structure for Constables will also be reviewed with the object of reducing the size of the classification and providing scope for experienced Senior Constables who are unlikely to achieve further promotion, but whose performance evaluated services deserve recognition, to progress beyond the present maximum salary point. The problem of adequately remunerating officers performing specialist duties will also be addressed under the Hay evaluation/common salary points systems. Currently, police officers performing specialist duties are paid the salary of the rank held plus a skill allowance fixed by the Crown Employees (Non-Commissioned Police officers) Special Duties Allowance Award. This arrangement ignores the job value in remunerating the officer, e.g., the disparity in salary between a Constable and a Sergeant performing identical prosecuting duties. Under the terms of the draft Award, such positions will be hay evaluated as a whole and scored against the unified salary scale so that the salary for the work is equitable and has no regard to the rank held by the occupant. The rescission of the Special Duties Allowance Award will be sought as the salary fixed by the Hay evaluation will absorb rates of allowances currently paid. 617The Commissioner submitted that the Association achieved wage increases on the ground of structural efficiencies, including the concept of an SDA based on benchmarking, common salary points and the use of the Hay methodology. This was realised in its current form in 2003, when the parties jointly developed a structure and a set of rules in order to deal with specialist claims. 618The Association's response was that the 1989 Structural Efficiency Case did not involve the concept of an SDA based on benchmarking and the use of the Hay methodology. It involved the abolition of SDAs and the establishment of a single salary structure, which provided a total salary for that position. Again, it was submitted that the notion that the 2003 Review dealt with any particular specialist claim was misconceived, and the notion it represented what was agreed upon in 1989 was completely wrong. It did not involve, so it was contended, the establishment of a singular salary structure. It did not involve the abolition of SDAs, Hay evaluation, or point to grades table in order to determine salary. 619Mr Hatcher further submitted that the Commission should, therefore, reject what the Commissioner submitted in respect of the methodology and also reject the implication that somehow the Association was at fault in respect of what the NSW Police Force was meant to do in 1989 and 1997. 620The Association contended that the SDA was not the purest form of work value evaluation. For example, a rule imposed by the Commissioner was that a specialist group needed to have the support of the internal Commander in order to be considered for SDA. Further, there was a rule that, unless the Command could fund any changes internally it simply would not be considered. That rule, it was contended, might be financially sound. Those assessments had nothing to do with job evaluation or work value. 621Finally, in respect of this issue, Mr Kenzie submitted that the current pay structure was superior to that which was proposed by the Association because the determination of SDAs could be done internally (and jointly) by parties. The parties could apply a recognised valuation method by reference to the work value of the benchmark and the work value of all other groups. 622Mr Hatcher submitted, in response, that the current pay structure was not superior to that which was proposed by the Association. Senior counsel referred to the 2009 MOU, submitting: "Here we have the Police Force committing itself in unequivocal terms to conduct a general review of general duties allowance and as we know it never happened". Double Count and Windfall Issues Double Count 623The Commissioner submitted that there was reliance on matters in the specialist claims that were also sought to be relied upon to sustain the general claim, for example: (a)Legislation: LEPRA was also relied upon by police prosecutors, HWP officers, and education development officers as a basis for an additional increase. Police prosecutors also relied upon domestic violence legislation and the Crimes (Forensic Procedures) Act 2000; (b)Technology: EFIMs and Livescan/Field ID was relied upon by the FSG; and (c)Accountability: CMF was relied upon by education development officers and the TOU complained that it did not have an electronic CMF like General Duties police officers. 624Mr Hatcher submitted, to the extent that there was an identified double count, the relevant principle as agreed between the parties with respect to Category 2 (claims for improvements in remuneration in excess of the general increases) would apply, namely, there shall be no double counting. The Association did not accept any of the examples given as being relevant. Mr Hatcher submitted, in the case of LEPRA, the way in which police prosecutors have had to deal with LEPRA "is simply something completely different from the way the general duties officer might approach the use of LEPRA". Windfall 625Mr Kenzie's submission, in respect of this preliminary issue, was that some groups within the NSW Police Force clearly perform very few or none of the functions which are relied upon to sustain the general claim, for example: a)education development officers, licensing officers, police prosecutors, some areas of the forensic services group, the tactical operations unit, and weapons instructors, other than occasional deployment in general duties, perform very little of the proactive policing work relied upon in the general claim; b)the state crime command does almost entirely reactive work yet, if the Association's claim was successful, they would receive the general claim increase. 626Mr Hatcher rejected the concept of windfall or double jeopardy counting. Senior counsel emphasised that the agreed framework for the conduct of the case meant that the specialist groups would get increases in accordance with the outcome dictated by the representative sample. Submissions as to Particular Claims 627The parties made detailed and extensive submissions as to each of the specialist groups the subject of the Association's claim. We have examined these submissions closely, but we have not attempted any summary. Some groups will receive particular mention where that approach is consistent with the manner in which we intend to resolve this aspect of the primary application. Considerations : Overarching Issues Concerning Specialist Claims 628With the exception of Detectives, to the extent that specialist groups within the NSW Police Force receive any extra remuneration over and above the general salary scale provided for in the award for non-commissioned officers, they do so pursuant to the scheme of SDA provided for in table 7 of Pt B of the award. That table provides for four grades of SDA. 629The four grade structure was introduced by consent award made in 2003. Prior to that time there existed a five grade allowance structure which was established by the Crown Employees (Non-Commissioned Police Officers) Special Duties Allowance Award of 1994 (although the award was pre-dated by various industrial agreements commencing in 1969). We note, in passing, that police prosecutors and predecessors of the TOU and FSG featured in these early agreements. 630The 2003 consent award emerged from a review of specialist allowances known as 'the 2003 Review' conducted by a working group of 10 persons which included a representative of the Association, Mr Ray Collins. That review process emerged in consequence of a term of the 2001 MOU. 631One other historical fact should be mentioned at this stage. By 1997, the industrial parties to the award had reached an agreement to develop a 'Remuneration Model', the effect of which was to have specialist duties discharged by specialist officers recognised and encompassed by a single salary, rather than by a salary based on rank and grade plus a specialist allowance now found in the award. That agreement emerged from a structural efficiency exercise carried out by the industrial parties in the 1988-1990 period and the Statement of Intent reached in September 1997, to which we have earlier referred in this decision. Again, we have earlier mentioned that this approach received approval by the Wood Royal Commission. 632Further, an agreement was reached by the parties in 2009, known as 'the 2009 MOU', as a result of which the NSW Police Force would conduct a general review of SDAs. That review was to be conducted expeditiously and in good faith and would incorporate an assessment of the allowance applicable to HWP officers. That review was never conducted, apparently being supplanted, in the minds of senior officers of the NSW Police Force, by the Association's current claim. We would add that the parties have not introduced the Remuneration Model. 633We consider that the Association has demonstrated there are imperfections in both the structure and application of the present SDA regime. These may be briefly described as follows: (i)There are latent deficiencies in the SDA structure deriving from the methodology employed to allocate specialist positions within the structure. These defects derive from the original process adopted by the 2003 Review including the absence of a coherent methodology. Further, the Association fairly described the deficiencies in this way: The 2003 Review did not have any role in assessing remuneration, either by reference to the amount of base salary or the amount of SDA allowances. It's role was to slot in positions to an existing SDA structure, with the amount of the allowances having been derived from the 1984 consent award. The Association correctly contended that the Review "did not involve the conduct of a Hay job evaluation of any of the specialist positions in question". However, the Association also contended that the method adopted was inexplicable. We do not agree. The method might have lacked mathematical precision and, to some extent, departed from well established evaluation principles and systems but, from an industrial and financial standpoint, the process is understandable and did attempt to allocate positions fairly within an agreed structure; (ii)It was contended that the very structure of the SDA regime did not permit proper internal consideration of the Association's claim. For example, it was contended, correctly in our view, that "nothing could or would be done for prosecutors, regardless of the merits of the case, because being at the top of the SDA structure they had nowhere to go". The Association also argued that other groups would be unfairly affected by an internal review because movements between grades would be insufficient to properly compensate them for their specialist skills. This submission is more tenuous because, as we will discuss below, it really has as its root that the whole SDA structure is decrepit or moribund; (iii)Restrictions were applied to reviews under the existing SDA structure which were unrelated to the merits of the claim. Whilst it is understandable that cost considerations may inhibit the grant of a claim, other rules governing the scheme such as the requirement for approval of a Commander to bring a claim, would seem more problematic; and (iv)The Association demonstrated that the NSW Police Force had not properly processed claims for review of SDAs, even where there was considerable merit attached to them. Even allowing for transmission problems, the handling of the MAC leaves much to be desired. Without commenting on the merit of the claim, the further example given by the Association as to the claim by members of the Public Order and Riot Squad again raised real concerns about whether the NSW Police Force is properly, and within a reasonable time, processing claims validly pursued under the structure. 634The acceptance of these defects in the structure and application of the existing SDA regime is not, however, productive of a conclusion that the Association should succeed in its claims. Indeed, for the most part, we consider the Commissioner has successfully prosecuted a preliminary argument against the grant of the Association's specialist claims. There are three reasons for this conclusion. 635First, the Association's application is inconsistent with the rationale and logic of its most fundamental challenge to the present SDA structure. It had sought, over time, a different model, consistent with the Remuneration Model, and one free of the existing methodological flaws. Yet, the Association has not applied for a structure consistent with the Remuneration Model. Even though it is intended that some groups would be placed in the SDA structure (and other groups move within it) based on work value considerations, per se, the remainder of the structure remains unaltered, presumably in the context in which the existing deficiencies (both overall and for particular groups) are accepted or ignored (as are new problems created by distortions in relativities resulting from the grant of the claim). 636Secondly, we agree with the Commissioner that it is "industrially unsound", and ultimately unfair, that the SDA structure, which contains a uniform set of grades for an internal labour market, would be populated by two groups of specialist employees having been assessed on entirely different criteria. 637Thirdly, and ultimately, we do not consider that the problems associated with the SDA regime are so grave and fundamental that we would make a determination to abandon it in favour of the hybrid SDA system which the Association claims. That hybrid system also has deficiencies. A departure in these circumstances to an alternative model would require some more substantial unfairness, injustice and/or unreasonableness as would compel such an outcome, notwithstanding the potential structural and industrial issue associated with that approach. As we shall discuss, we consider that situation does arise in the case of police prosecutors and a sector of the FSG. Otherwise, the SDA regime and the process of internal review will need to persist (hopefully with some greater attention being given to the maintenance of the scheme by the Commissioner) until the opportunity emerges, as it should, to revisit the establishment of a Remuneration Model or like system. 638We are sympathetic to the Association's contention that it has been precluded from amending its claim to address some or all of these concerns because of the Regulation. However, the Commission is bound to assess the claim in the form that comes before it. Furthermore, the Regulation will have the effect, as it presently stands, of precluding the parties from rectifying a new and perhaps greater set of deficiencies which might be created if we were to adopt wholesale the Association's claim. 639Other components of the Commissioner's threshold arguments would appear to have merit. Given our earlier findings as to the agreements reached between the parties, and in particular the 2005 MOU, our view is that the datum point for the specialist groups is 2005. In many respects, this gives rise to difficulties with the evidentiary basis for the Association's specialist case, so far as it is predicated upon changes occurring before 2005 (subject to special case considerations). Furthermore, despite the disclaimer by the Association, we do consider that there are some difficulties in the present proceedings in being able to grade the respective specialist groups against a benchmark. Even if we were to accept that the benchmark to be chosen was the relativity between groups appearing within the existing SDA structure, this would not obviate the need to consider the benchmark utilised for the purposes of the 2003 Review. 640Those conclusions do not, however, conclude, as we have observed, the assessment of the specialist claims. Those considerations are twofold: (i)What contributions the specialist groups nonetheless provide towards the general claim, vis à vis, work value and productivity change; and (ii)Whether there are any aspects of the specialist claims which should properly attract the special case sub-principle. In particular, this will involve a consideration of the claims for prosecutors, the TOU and the FSG based upon claims of historical or extrinsic undervaluation. Specialist Groups other than Police Prosecutors, TOU and FSG : Work Value and Productivity and Efficiency Sub-Principles 641The parties advanced very substantial submissions as to the nature of the work skills and responsibilities in each specialist group the subject of a claim. Those submissions also contained a robust debate about whether there had been any change in the duties of the respective groups (applicable to the work value and productivity and efficiency sub-principles) since the (disputed) datum point (such debates being principally focused upon whether there should be some change in the SDA arrangements). 642The Commissioner identified four possible outcomes to the specialist claims, having regard to work value and productivity considerations. Our broad assessment is that the specialist groups under consideration do little of the work or have few of the work requirements which we have found satisfied the work value and productivity and efficiency sub-principles for General Duties police officers in LACs. Whilst we have formed the view that some specialist groups have exhibited changes in work value and productivity of the kind which would register under the respective sub-principles, we do not consider that any of the grounds identified by the Association for each specialist group demonstrate work value and productivity change over and above that found for the general claim. Nor do we consider that the changes in work value and productivity demonstrated for the specialist groups, save for the exceptions to which we will turn, establish a proper basis to depart from our conclusions as to the threshold issues. We propose to give one example of our conclusions in this respect. 643We had the opportunity of witnessing first hand the role of HWP officers during the course of the inspections undertaken by the Commission. On a day-to-day basis, HWP officers are currently an LAC resource, based within and reporting directly to LAC structures. Each LAC is serviced by a HWP, albeit, not every LAC will have their own dedicated contingent of HWP officers. 644The delivery of traffic-related policing services including the work of the HWP is regulated by the Traffic Services Policy Statement. Officers of the HWP are found within the Field Operations Division of the NSW Police Force. They are not a specialist Command, per se, because the core focus of traffic-related policing services is the provision of the policing service directly to the community and not the provision of a specialist service to other police. Effective traffic enforcement and management is a core service delivery programme of the NSW Police Force, enabling the organisation to play a major role in reducing road trauma, facilitating the free movement of traffic, people and goods, promoting road safety through compliance with traffic laws, and deterring inappropriate behaviour by road users. 645The HWP officer is required to have special training and the requisite experience in order to discharge their role. That role involves both reactive and proactive work and will involve the use of specialist equipment. The work of the HWP encompasses many of the day-to-day activities of General Duties police officers with two core differences, both of which make the working environment of HWP officers more hazardous and potentially more complex than that of a General Duties police officer, including the fact that HWP officers work alone for the majority of the time. 646The Association sought to exclude a number of factors arising in the general claim from the consideration of the claim for HWP officers. We do not repeat them. It then contended that there were some changes unique to HWP officers consisting of the following: the continuous and rapid alteration to road traffic legislation; a new generation of MDTs has been incorporated into HWP vehicles, improving the mobility of HWP officers and giving access to a range of information and functions (such as the COP system); the incorporation of ANPR systems (to read number plates on passing vehicles using optical recognition technology and scanning them against police databases); the incorporation in HWP vehicles of radar detectors; the incorporation of In Car Video Systems in HWP vehicles; and the introduction of new breath testing equipment and random roadside drug testing equipment. 647It is clear that the fundamental plank of the Association's case for HWP officers is that changes have occurred in technology. We accept that the Association has demonstrated that changes have occurred, they do not, in our view, justify the reconstruction of the SDA or warrant a conclusion that any changes in work value and productivity exceed that found for General Duties police officers in LACs. 648There are three factors involved in this conclusion. None of them depended upon whether or not the Association's evidence as to changes related to the appropriate datum point. 649First, as the Commissioner submitted, "the changes ... have a very heavy interface with technology changes that are relied upon in relation to the general case". Secondly, many of the changes do not greatly expand the essential roles and responsibilities of HWP officers and in some respects facilitate their work. Thirdly, a substantial number of the changes relate to technology which pre-dated the datum point and only concerned refinements to the existing technology. Moreover, the technology is not of such a nature as would ordinarily attract a finding that the change resulted in a significant net work addition to work value of the HWP officers. Further, we consider that these conclusions are consistent with the rejection of a claim mounted by HWP officers for an increase in SDA grade under the internal review process in recent times. Police Prosecutors, FSG and TOU - Special Case Sub-Principle Police Prosecutors 650In Re Crown Employees (Police Officers - 2009) Award [2011] NSWIRComm 43, the Full Bench made the following findings, which we adopt, as to the structure of the Police Prosecutions Command ('PPC'): [34]Police prosecutors work within the Police Prosecutions Command ('the PPC'), and fall under the general command of the Deputy Commissioner, Specialist Operations. The PPC is responsible for prosecutions in the Local Court, Children's Court, Drug Court and Coroner's Court. In the Local Court, the PPC handles matters for the NSW Police Force, and approximately 130 different government agencies. The other parts of the PPC provide support and advice services to operational police such as the Operational Legal Advice Section, the State Crime Command and the Special Applications Section. These sections have qualified prosecutors and solicitors or both. [35]The structure of the PPC was derived from the former NSW Police Force Legal Services Command, which consisted of the Criminal Law Division and the Civil Law Division. The current structure of the PPC commenced operation on 4 February 2008. It is broken down into six areas: Prosecution Processes, Prosecution Support, Operational Legal Advice, Human Resources, Prosecutor Operations and Executive Legal Support. [36]The PPC is overseen by the Commander of Police Prosecutions, Chief Superintendent Anthony Trichter. Immediately underneath the Commander is the Director of Prosecuting Operations, Superintendent Jeff Philippi. The Prosecution Operations is split into four regions managed by four Managers holding the rank of Inspector. Each region is then divided into 'clusters', which are supervised by an Area Prosecutor Coordinator ('APC') who is of Senior Sergeant rank. The central responsibility of an APC is to manage and oversee a cluster of prosecutor officers but they are also often required to prosecute matters in court. [37]Each court cluster is managed on a day to day basis by a Head of Court ('HOC'), who holds the rank of Sergeant. In addition to prosecuting matters in Court, the HOC has supervisory responsibilities and handles the day to day operations of their particular prosecutor office. The prosecutors themselves in each prosecutor's office are generally of the rank of Sergeant or below, and the majority of them are Constables or Senior Constables. [38]Police prosecutors are not required to hold a legal qualification, although they are encouraged to obtain such qualifications, and many of them are admitted to practice in the Supreme Court of New South Wales. The qualification for appointment as a police prosecutor is completion of the Prosecutor Education Program ("PEP"), which lasts for approximately 12 months. 651The principal witness for the Association in this aspect of its case was Chief Superintendent Trichter. 652The Chief Superintendent gave evidence to the Full Bench in Re Crown Employees (Police Officers - 2009) Award and was found to be a witness of considerable credit although on that occasion his evidence made a singular contribution to the refusal of the Association's claim based on attraction and retention (even though the Chief Superintendent then broadly supported a salary claim for police prosecutors). 653In this matter, we have no lesser view of the credibility and cogency of the Chief Superintendent's evidence which, having regard to the Association eschewing any direct reliance upon attraction and retention in support of its claim for police prosecutors, was directly supportive of the Association's application. The Chief Superintendent was of the view that the pay scale sought by the Association for police prosecutors should be granted "for a number of reasons, not the least of which [was] it would be a recognition of the value of work they do for the Police Force and our community, and the high regard with which they are held within the NSW Police Force". Chief Superintendent Trichter also expressed the view that the work of police prosecutor's work is "underrated and underpaid". 654However, neither that evidence, nor the unchallenged evidence of other officers engaged in the work of police prosecutors in support of this aspect of the application can be determinative of this aspect of the claim. 655Before embarking upon a closer analysis of that question, it is appropriate to describe the duties of police prosecutors. A useful starting point is the description of those duties in the Prosecutor Education Programme ('PEP') Course Guide. The work of police prosecutors was described thus: The title Police Prosecutor could be considered a rather inadequate way to describe the range of duties of police who have been selected to work within the Police Prosecutions Command. Although their primary function involves the presentation of criminal matters before the courts, the task extends far beyond pure advocacy and litigation. A Police Prosecutor has additional duties relating to checking court documentation and briefs, and advising and educating operational police on a wide range of police operational functions, law and legal procedure. 656As the Full Bench observed in Re Crown Employees (Police Officers - 2009) Award, police prosecutors do not necessarily hold legal qualifications. In order to become a police prosecutor a police officer must complete the internal training program known as the PEP. This consists of three modules and takes 12 - 15 months to complete. The officer, after successfully completing the course, receives a certificate from the PC Commander, and is recorded as holding the designation of police prosecutor and thereafter colloquially considered within the Command as a 'made' prosecutor. 657The evidence given by prosecutors in these proceedings revealed that the PEP was the most academically challenging course of any within the NSW Police Force. Even so, the evidence revealed that police prosecutors were not fully equipped to carry out what was asked of them until they had at least three to four years' experience as a qualified police prosecutor. 658That evidence can be understood in the light of the duties typically discharged on a day-to-day basis by police prosecutors. The Association provided in its written submission a summary of Chief Superintendent Trichter's evidence in this respect. We consider it is an acceptable summary and set it out below in full: (a)The PPC becomes involved in a matter after a CAN has been issued against a defendant, a Court file has been prepared, and the file is forwarded by the relevant LAC's process officers. (b)Each and every file must be reviewed by a prosecutor prior to the first court appearance (who in all likelihood will not be the prosecutor who presents the mater at any stage in Court, due to Local Court listing practices). This requires a physical check to ensure that all relevant documents are present, and a re-organisation of the file to check it is in useable form. It will also require a review for all issues that may arise in the presentation of the matter in Court, such as whether the proofs of the offence can be established, whether the antecedents are up to date, and whether the fact sheet contains the relevant and necessary detail and is of sufficient quality to present to the Court. There a range of issues which may arise for consideration, assessment and judgment at this stage, including whether the correct charge has been laid, whether identity will be an issue, or whether evidence was obtained through a controlled operation and if so whether the necessary certificate to ensure admissibility has been obtained. (c)If deficiencies in the file are identified at this point, the prosecutor will need to request additional information through the POLREV feature of the COPS system, which request will thereby be disseminated to the officer in charge of the matter. (d)The reviewing prosecutor will also have to determine if the matter should be referred to the DPP, with a request that the DPP elect for it to be dealt with on indictment. Any such request is done through a COPS system feature known as Electronic Referral of Indictable Charges (ERIC). (e)As the matter moves through the early stages of the Court process, what follows will depend [whether] there is a guilty plea, an application under s 32 of the Mental Health Act, or the entry of a plea of not guilty. Where the last event occurs, the Court will makes orders for the service of the brief of evidence. Once that occurs, the request will be submitted electronically through COPS, and the officer in charge will prepare the brief and submit t to the LAC Brief Handling Manager (BHM). The BHM is not, and will usually never have been, a trained prosecutor, and the position is often filled by persons on return to work programs or subject to some other work restrictions. (f)The brief is then sent to the relevant PPC office. A review may then be done by a prosecutor who, again, is unlikely to be the prosecutor who actually presents the matter in Court. If this review is able to be done, and a significant deficiency is identified in the brief, there will often be insufficient time before the hearing to remedy this. (g)The matter will be set down for hearing after the brief is served and the not guilty plea confirmed. The prosecutor has the responsibility to ensure that the defendant's legal representative provides a court listing advice, which identifies those witness[es] required to attend Court for the hearing. (h)The listing practices at Courts will vary. At some Courts, the matter will be part of the day's list for a particular courtroom. At large court complexes, the matter may be called on in one courtroom at a particular time for a status report, then referred to different magistrate in a different courtroom in the complex for hearing. Alternatively, the matter may be set down as a "special fixture", to be heard from 10.00 am in a particular courtroom. However, in any case the matter may be referred from one courtroom to a neighbouring one on the day. (i)Prosecutors are assigned to particular courtrooms, and are expected to prosecute any case that is listed in or subsequently referred to that courtroom. Except for special fixtures, the prosecutor will have little notice of the matters to be listed on a particular day. At best, there may be a few days' notice; more often the prosecutor will get the list the night before [or] on the morning of the hearing. (j)Thus, a core feature of the prosecutor's daily work is the capacity to pick up a brief of evidence and run with it at very short notice. Officers will often have very little, if any time to read the brief prior to conducting the hearing. If there is time to read it, there will be very little, if any, time to conference witnesses, to research relevant matters of law, or to develop a hearing strategy. Sometimes, when the prosecutor has not been able to read the brief, he or she will learn about the case as the officer in charge gives evidence. (k)This places significant pressure and stress upon the prosecutor, who is subject to expectations to perform from victims of crime and witnesses. The prosecutor will be appearing against the legal representatives of the defendant, who will have read the brief and prepared for hearing well in advance of the trial. (l)Despite these difficulties, the prosecution conviction rate of the PPC is about 90-92%. Some of the remaining 8-10% fail because the matter is withdrawn, or it is disposed of under s 32 of the Mental Health Act, or because a witness failed to attend Court or refused to give evidence. Less than 4% fail because the magistrate had a reasonable doubt. 659One further observation should be made about the work of police prosecutors. Whilst they do not engage in proactivity in the same way as 'general duties practitioners', many aspects of the general claim apply to them. The Association pointed, in this respect, to changes to internal police policies, technologies (for example COMPASS and the CMF) and the mandatory training regime for police (including the Deftac training, which includes TASERS). Police prosecutors can be called upon to perform operational policing duties. Furthermore, they have contributed, to some extent, to an increased proactive focus in the NSW Police Force through the "intelligence based prosecution strategy". 660The PPC adopted the intelligence-based prosecution strategy in 2009. It was incorporated in the targets for the Command. Mr Trichter described the strategy as follows: The strategy is directed towards improving the prosecution outcomes for Local Area Commands, in particular when dealing with their recidivist offenders (their Suspect Target Management Program, STMP, targets), and to ensure that PPC resources are deployed to the prosecutions that matter most in terms of assisting Local Area Commands achieve their corporate objectives and business plan targets. It's all about the productivity of the PPC and the productivity of the police force as a whole. The core of the strategy builds upon the well accepted fact that a small number recidivist offenders account for the greatest proportion of crime within a community. That is what fundamentally underpins the STMP program within an LAC. The idea behind the Intelligence Based Prosecution Strategy is that better prosecutorial outcomes for recidivists leads to better outcomes for the LAC and for the community. Whilst that is the focus, it is not limited to recidivist offenders. The Strategy is also directed towards crime categories that are of particular significance to the relevant LAC, and crime hot spots. That strategy was developed slightly before the published article, but a description of the program generally can be found in an article published in the PSW, a copy of which is attached and marked TT-4. The strategy requires the PPC to liaise with the Crime Management Unit of each LAC that they service, to identify which are the priority prosecutions. They might be dictated by the individual the subject of the prosecution, the crime category that is the subject of prosecution (for example, if a break and enters are a particular issue at the LAC, the strategy would be to focus on that crime category), or a particular location (for example, a particular hotel on a Friday night might be an issue, so we focus our recourses on those matters so far as we are able). The HOC and the APC are the ones centrally responsible for the administration of the strategy, but the prosecutorial work associated with the strategy extends across the prosecutors at a Court complex. Whilst the strategy has potential, it places additional demands on the individual prosecutors, who are expected to place greater emphasis on the deployment of their limited resources into pursuing the relevant prosecutions. Not only does it create additional accountability on the prosecutor for those particular prosecutions, by dedicating their efforts to those matters it may have a flow on impact on the time available and pressure associated with the other matters they are being called upon to prosecute on a day to day basis. 661The question as to whether the Association has established a special case for police prosecutors is a difficult one. Police prosecutors are situated at the highest grade in the SDA regime. Many of the structural and industrial impediments that we have found bar the specialist claims apply with equal force to this group. The incantation by the Association of the notion of undervaluation brings with it the obvious question of what is the comparator for the assessment of that undervaluation? In this respect, there are a number of possibilities: General Duties police officers, the Senior Constable benchmark which was used in the 2000 Review or other specialist groups within the SDA structure. It must also be recalled that the Association participated in the establishment of the SDA regime in the manner we have earlier described. 662In reaching our conclusion we have fixed our attention upon that class of police officer who falls strictly within the prosecution stream (noting in this respect there was an issue raised by the Commissioner as to the breadth of the claim as to police prosecutors). Despite the force of the Commissioner's general arguments bearing against specialist claims, which, in a number of respects, we have adopted above, and taking into account the particular issues raised in this respect concerning police prosecutors, we have, nonetheless, reached the view that the Association has established an arbitrated case for this specialist group based upon the special case, work value and productivity and efficiency sub-principles. Further, we consider that an outright rejection of the claim for police prosecutors would be ultimately unfair and unjust, such that the denial of a remedy with respect to this group would constitute a failure to act in accordance with the requirements of s 10 of the IR Act. 663What then are the special attributes or features and merits of the case brought for police prosecutors under the special case sub-principle that warrant such a conclusion? We propose to set these out in short form, before some elaboration, as follows: (1)The structure of the SDA regime is such that, irrespective of changes in the duties and work of police prosecutors over time, or their relative value compared to other specialist groups or General Duties police officers (or, for that matter, the satisfaction of internal rules governing SDA Reviews), they will remain constrained by their situation at the apex of the SDA structure. Absent consent between the parties to reform the SDA structure in any way (and none has been exhibited in these proceedings), then no application by police prosecutors under the internal review mechanism can, irrespective of its merits, result in an alteration to the absolute or relative position of police prosecutors within the specialist allowance stream or the general wages stream. (2)Whilst attraction or retention issues no longer form part of this case, the history of remuneration review within the PPC, as discussed in Re Crown Employees (Police Officers - 2009) Award, is suggestive of a recognition, internally in the NSW Police Force, of the need to review the position of police prosecutors. The attraction and retention issues were resolved by some innovative measures taken by the management of the PPC but these were, as the Association submitted, "extraordinary measures", most notably Accelerated Prosecutor Recruitment Strategy. Those problems were only ameliorated in recent times. The Commander of the PPC continues to argue strenuously for wage adjustments based upon the existence of undervaluation. (3)Accepting all of the findings in Re Crown Employees (Police Officers - 2009) Award, and noting that attraction and retention issues do not form part of these proceedings, we consider that the Association has established a case for inherent and historic undervaluation. We, note in that respect, that conclusion may be reached irrespective of which of the aforementioned comparators are selected for the purposes of analysis. (4)One matter that has troubled us in reaching this conclusion is the nature of the remedy which might be granted. We have formed the view, however, that, when taken together, the above factors do warrant the establishment of a separate classification stream for police prosecutors. We accept the submission of the Commissioner that this will have the potential to be deleterious to the SDA regime. However, we consider that there are three factors which, on balance, overwhelm this consideration. The first is that there is a proper basis, in principle, for the establishment of a separate classification. The second is that the dictates of industrial fairness outweigh the structural considerations in this instance. The third reason is that the approach we have adopted is entirely consistent with the Remuneration Model. That model had considerable merits and should have been seriously progressed by the NSW Police Force prior to this time. A related consideration is whether any new classification structure should extend to all people in the Command who have PEP qualifications, but who do not perform prosecutorial work as part of their core functions. This is a matter that can await further consideration in the light of the submissions and proposals advanced by parties at the second stage of our adjudicative process concerning remedies. 664There is a further factor in favour of this claim satisfying the Arbitrated Case Principle. We generally accept the submissions advanced by the Commissioner as to why changes in legislation, however numerous, might properly be seen as part of, as the Commissioner described it, "a fact of life for lawyers and paralegals". Nonetheless, we do consider that, when combined with the overlapping work value elements from the general claim, police prosecutors have established work value changes of the kind that would be recognised by the work value sub-principle and further have established productivity and efficiency changes of the character we have identified in relation to the general claim. This is not to suggest that the work value and productivity claim for police prosecutors exceeds that of the general claim but that those two factors are substantial in the case for police prosecutors and can weigh, in a cumulative sense, in favour of the conclusion that an arbitrated case has been established. 665We propose now to briefly elaborate upon some of the aforementioned factors. 666We consider that the submissions advanced by the Association as to historic or inherent undervaluation have considerable merit. Those submissions appear below: (a)The body of knowledge required for Police Prosecutors to perform their work, acquired through the PEP (widely recognised as the most academically difficult and intellectually demanding of Police education courses) and courtroom experience, is extensive. Mr Trichter described the requirement "to have a very broad scope of knowledge relating not only to the technical aspects of the criminal law and the proofs of a relevant offence ... but also procedural matters associated with the tender and receipt of evidence, and Local Court procedures more generally". This body of knowledge requires continuous updating in line with developments in the criminal law similar to the professional responsibility of the barrister. It is important to note in this context that despite having this attribute of the professional, police prosecutors have never been industrially recognised or paid as professionals. (b)Police prosecutors' work, which fundamentally involves trial advocacy and preparation for trial, is intellectually intense, demanding and stressful to a degree not found elsewhere in the Police Force. (c)The listing procedures and case-load of the Local Court and the other courts before which Police Prosecutors appear means that Police Prosecutors are required to carry an extremely onerous workload primarily consisting of a large number of cases to be prosecuted in court with little if any time to properly prepare such cases for hearing. Mr Trichter said that "The prosecutor is under very real pressure to perform, in a working environment that often does not permit them to present a case in the most professional manner". (d)The work of police prosecutors is of critical importance to the effective operation of the criminal justice system, and thus has significant public interest considerations attached to it. (e)Police prosecutors are highly accountable for their performance, with their work conducted in public and on the public record. (f)The current SDA payments for police prosecutors, reaching a maximum of $6644 per annum after five years' service, are self-evidently inadequate having regard to the above matters. For a prosecutor who is at the rank of Sergeant, this represents a loading on base loaded salary of less than 8%. This demonstrably does not properly reflect the work value of a prosecutor vis-à-vis a general duties officer. (g)The inadequacy of police prosecutors' remuneration is further demonstrated by the fact that officers suffer a significant loss of remuneration, as well as loss of the benefit of flexible rostering, upon transfer into the PPC, and that remuneration in the Command has long been perceived as unattractive compared to that applying to less demanding roles elsewhere in the Police Force or externally. The vast majority of trainee prosecutors lose $5,000 - $15,000 in remuneration to become prosecutors, because of loss of shift allowances and other penalties. The SDA allowances do not make up for this. (h)The long term attraction and retention problems suffered by the PPC (and its predecessors) are symptomatic of this inherent undervaluation. The Commission in the Prosecutors/TOU Decision at [46] referred to prosecutors having "historically suffered a work environment in which there was a shortage of police prosecutors brought about by a combination of attraction or retention problems". On Mr Trichter's evidence in the 2010 proceedings, this only began to be ameliorated in late 2009, and he described the current position as one where "Our attrition rate has slowed somewhat from our long term average", and "Our attraction rate has somewhat improved", with the PPC not yet having reached its authorised strength. Of course, attraction and retention is not the criterion of success in this case, but the historic existence of this significant problem until very recently was not an accident - it was a direct result of the undervaluation of prosecutors' work in absolute terms and relative to the rest of the Police Force. Extraordinary measures were required to be taken to overcome it, most notably the Accelerated Prosecutor Recruitment Strategy, which sought to recruit persons to the Police Force for the sole purpose of becoming police prosecutors. 667Evidence was given by Sergeant McDonald, Senior Sergeant Battin and Sergeant McDermott regarding the work and undervaluation of the work of police prosecutors. We propose to set out briefly part of the evidence of Sergeant McDonald and Senior Sergeant Battin which bears upon the question of undervaluation. Sergeant McDonald gave the following evidence: Notwithstanding, the difficulty of the PEP course and the significant demands that are placed on trainee prosecutors during the tumultuous 12 months of training, it is the reality that trainee prosecutors do sacrifice a significant portion of salary as a consequence of choosing to undertake the PEP. ... I am aware that the vast majority of trainee prosecutors lose in excess of $5,000 to $15,000 of their salary to undertake the PEP. As Inspector Wallace noted back in 2005, the reason for this is that when police officers transfer from General Duties or from a criminal investigation role, they lose their shift allowances and the opportunity to earn significant penalties (because they no longer work night shifts, attract on-call allowances, work weekends, or on public holidays), and they go back to the general payscale rather than the Detective's Payscale. At the time I was recruited in to the PEP in June 2004 I was the rank of Constable. My 2003 - 2004 PAYG Payment Summary states that I earned $65,129 for the year. In 2004 - 2005 my PAYG Payment Summary states that I earned $60,267 for the year. I sacrificed approximately $4,862 in salary to train as a police prosecutor. 668Senior Sergeant Battin gave the following evidence: The skill level required by a Police Prosecutor to reasonably serve the community is extremely high and, in my experience, well recognised by the law fraternity in the private sector. In my thirteen years as a Police Prosecutor I have seen twenty three Police prosecutors leave the employment of the NSW Police Force (either by resignation or by way of medical discharge) to become gainfully employed as either barristers or solicitors, defending in the criminal jurisdiction. To train up a Police officer to become an independently operating Police Prosecutor, in my view, takes between 2 to 4 years. Whilst the Prosecutor Education Program gives you the tools to do the job, to do it well requires some real experience that only comes from being an in-court advocate. The skill level attained by the end of that period is extremely attractive to both internal forces, such as Local Area Commanders, and external forces such as private law firms. Police Prosecutors (in legal advocate terms) are battle hardened, widely read and resilient to adversity. 669In relation to work value and productivity considerations, we have accepted that reservations may be held about taking into account legislative change, even though there has been a raft of legislative change affecting the work of police prosecutors. However, we do consider that it is appropriate to have regard to the factors which are referred to in the following passage of the Association's submissions: As outlined above, the unchallenged evidence of the Applicant's witnesses is that there has been significant legislative change, involving both an increase in the knowledge required to effectively undertake the work of police prosecutors, increasing the demand for advice from operational police, and generally increasing the time pressures under which police prosecutors work. The latter consequence arises because, firstly, the nature of the legislative change itself demands more appearances per matter, or otherwise demands significantly increased levels of preparation, in addition to the initial demand for training; and secondly, police prosecutors are now being relied upon more for the provision of advice and guidance to the field as the relevant subject matter experts, than had been the case in the past. 670We also consider that there have been substantial changes in policy and operational conditions including changes in briefs, accountability, vis à vis prosecution review panels, the devolution of matters from the Office of the Director of Public Prosecutions, the Magistrate's Early Referral Into Treatment Scheme and, as we have mentioned, the intelligence-based prosecution strategy. 671In that latter respect, we accept the submission of the Commissioner that Superintendent Trichter accepted that prosecutorial functions needed to be kept separate from investigative functions and that prosecutors would not be engaged in an investigative process in terms of the conduct of investigations but we do not consider that this significantly undermines the effect of this reform. 672In terms of workload, we accept that there has been an increasing volume of matters handled by the Local Court system, and consequently by police prosecutors, without any significant increase in the size of the PPC. The statistics show that the number of matters handled steadily increased between 2003 and 2009. From 2003/4 to 2008/9, the number of finalised Local Court criminal matters increased from 132,922 to 149,049, an increase of over 12 per cent. Children's Court matters increased in the same period from 7,903 to 9,141, an increase of over 15 per cent. 673Finally, questions as to the appropriate award variation in the light of our conclusions shall await the next stage of this part of the proceedings. Forensic Services Group ('FSG') 674The FSG contributes significantly to the detection and reduction of crime in New South Wales. It is the principal provider of forensic support for criminal investigators within the NSW Police Force and delivers a range of services set out in the FSG Charter. The primary focus in this respect is the use of the latest science and technology to detect and reduce crime. 675The FSG is one of the specific Commands within the Specialist Operations Divisions of the NSW Police Force. It is headed by an Assistant Commissioner, who reports directly to the Deputy Commissioner, Specialist Operations. It is made up of 830 staff, of which 343 are sworn and 487 unsworn officers. 676Internally, the FSG is organised into a series of Branches, namely: (a)the Crime Scene Services Branch ('CSSB'); (b)the Identification Services Branch ('ISB'); (c)the Forensic Information Management Branch; (d)the Forensic Science Services Branch; (e)the Professional Services Branch; and (f)the Business Management Branch. 677The two branches affected by the Association's claim are the CSSB and the ISB. 678The CSSB (before 2006 known as the 'Crime Scene Operations Branch') "provides a specialized technical crime scene support service to all Police throughout New South Wales regarding criminal, coronial and incident investigations". The officers of the CSSB are also responsible in various respects for Counter Terrorism incidents and Disaster Victim Identification. In addition, there are a number of specialist crime scene services within CSSB, including the Forensic Ballistics Investigation Section ('FBIS'), Engineering Investigation Section ('EIS') and the Forensic Imaging Section, which collectively provide a specialist service to crime scene and police investigators including the use or employment of advanced fingerprint enhancement techniques, the Interactive Scene Recording and Presentation System known as ISRAPS, vehicle identification and examination, ballistics and imaging recording support. 679The CSSB also includes the State Prisoner Testing Team, and the Crime Scene Logistics Unit ('CSLU'), which came to be part of the CSSB in 2008. 680The work of the CSSB is entirely reactive and the branch operates on a 24 hours a day, seven days a week basis. It is made up of both civilian and sworn staff. The sworn staff tend to deal with more complex work and the SOCOs attend to minor or 'volume' crime. 681Following a multi-skilling reform in 2008, the crime examiners in the CSSB became known as 'Forensic Investigators'. These officers are attached to regional zones and are ultimately responsible for examination of relevant crime scenes. 682The Commission also received evidence concerning the Forensic Imaging Section of the CSSB. This is a centralised unit based in the Sydney Police Centre that deploys Statewide. The section provides support to crime scene investigations by capturing incident scenes with video, surveying and spherical photography systems. Other specialised services are provided such as collision reconstruction and blood splatter and projectile recording. 683The ISB primarily provides a professional fingerprint examination, comparison and identification service to the NSW Police Force and other law enforcement agencies, through the utilization of both manual and computerised fingerprint systems. The ISB maintains Livescan electronic fingerprinting services. 684The work of the ISB is entirely reactive. It is divided organizationally into a series of smaller units such as the Fingerprint Operations Branch. 685Fingerprint Experts and Fingerprint Technicians are largely (but not exclusively) found in the CSSB and the ISB. The core functions of fingerprint operations are latent analysis and ten print analysis. 686The Fingerprint Expert undergoes a detailed and lengthy training programme. Police officers are required to have at least three years' experience as a police officer as well as tertiary training, of the Certificate IV level, and the officer must have completed the Australian Field Forensic Science Accreditation Board ('AFFSAB') assessment process. 687It is only when the officer is accredited an expert through AFFSAB that the officer will be considered an 'expert' in fingerprint identification, and called upon to provide the expert opinions. (Those opinions might include an initial identification, the verification of the identification or, ultimately, giving expert evidence to a court.) 688This brings us to the claims advanced by the Association. They consist of two parts. First, there is a claim for a new and separate allowance for officers who are accredited as experts in their field and, secondly, as we have earlier noted, there is a claim to upgrade certain FSG officers within the SDA structure. Experts 689We propose to turn firstly, and shortly, to the expert claim. It is patently clear, on the evidence, that the work of FSG officers who are qualified as expert witnesses require significant recognition and are undervalued under the present SDA regime. 690Assistant Commissioner Loy's passionate support for those experts was well founded, based, as it was, upon the Assistant Commissioner's belief that there was a need to independently recognise the work of experts and because of the failure to value or remunerate their work under the present SDA regime. 691There is an extensive process, through study and experience, for FSG officers to become experts in their field of endeavour so as to enable them to provide expert opinions (either as part of an investigation or by way of expert testimony in court). 692There are presently four disciplines within the FSG which may, after appropriate training and experience, result in classification as an expert. Three of the four disciplines (Crime Scene Investigation, Fingerprints and Ballistics) are able to obtain recognition through AFFSAB, with the fourth (Document Examiner) securing accreditation following a rigorous process that ultimately culminates in the head of profession attesting as to their expertise. Each requires a Diploma or Certificate and, as we have noted, a significant body of study and experience. At a minimum, the training of these officers requires a commitment of four to five years but, typically, the training requires considerably more time, in the order of six to seven years (as Assistant Commissioner Loy described it "a fairly long term commitment"). 693It was Assistant Commissioner Loy's view that this warranted the provision of additional remuneration for experts because the officer then provided "greater value to the NSW Police Force and the judicial system". His view was that the expert had additional knowledge, skill and responsibility than counterpart FSG officers. 694By reliance upon the evidence of Senior Constable Guymer, the Commissioner contended that evidence of an expert character was able to be given in court, irrespective of whether the FSG officer was duly accredited or not. This contention wholly misstates the effect of obtaining an expert status. FSG officers may be called to give evidence and may offer an opinion in the same way as other police witnesses do from time to time. The difference arising from the accreditation of experts was fundamental. Evidence of that character is distinguished in court proceedings (and in field work) as evidence or an opinion which is treated as 'expert evidence', per se, having regard to the learning and experience of the subject officer. 695Assistant Commissioner Loy described the importance of this distinction in the functions of different classes of FSG officer in his evidence, as follows: Q. Could we turn to crime scene investigators. At what stage of their career development will they be required to give evidence of any sort to the court about their work, that is crime scene investigation, prior to them becoming accredited as an expert? A. They are no different to any other police witness in the scheme of things. If they attend to a duty, conduct a duty, report on the duty, put the statement forward. It is then they go to court they give that evidence. It is about the level of evidence of the quality, not so much the quality of the evidence but the weight the court puts on the evidence of an expert is far greater than what it is [of] another witness. 696In a late submission received from the Commissioner in response to a question from the Full Bench, it was contended that, during the 2003 Review, the Review Committee received submissions from various groups within the FSG, including Crime Scene Examiners, Document Examiners, Fingerprint Technicians and Firearms/Ballistics Examiners. It was contended that "in positioning these groups at Level 3 SDA, the SDA Review Committee took into account that there were, within these groups, officers who had achieved 'expert' status". It was further submitted that "without the inclusion of the significant work value and qualifications of the experts within these various groups, it could not be said with any confidence that a ranking of SDA 3 would have been achieved" and that "once it is accepted that FSG experts contributed to the overall outcome of the Level 3 SDA for all relevant FSG officers, any separate recognition for experts which involves a movement out of the FSG regime, as presently advanced, must necessarily involve a re-evaluation of non-experts. Without more, such a re-evaluation would involve a downward assessment of the remainder of non-expert personnel within the FSG in the SDA regime". 697We reject this submission. It fails for three reasons. 698First, the evidence of the deliberations of the Review Committee made no reference to the accreditation process which was central to the evidence we considered in relation to experts. 699We were not referred to the evidence of Assistant Commissioner Loy which had a bearing on this question. He stated that "accreditation" for crime scene investigators was not taken into account in the 2003 Review. His evidence, in this respect, also verified the additional value of the nature of the work of FSG officers who had attained expert accreditation. We set out that evidence below: Q. With respect to crime scene investigators which are dealt with on the third going over to the fourth page, the introduction of AFFSAB accreditation for them is fairly new, is that right? A. That's correct it is in the last two years. Q. And that was not something taken into account when there was the last review of special duties allowances in 2003? A. Yes that is my understanding yes. Q. It is the case, is it not, that notwithstanding that there is this process for accreditation of criminal trial scene investigators and experts, they will nonetheless be required in the normal course of affairs to give expert evidence in court before they are actually accredited under this process? A. That's correct, yes. Q. What criteria, internal or otherwise, apply in terms of when a crime scene investigator is being at a stage where they are capable of giving expert evidence in the court? A. As outlined in exhibit 103 there is obviously the diploma of public safety and forensic investigations has to be completed. There is also a number of other courses available for expert statuses, the structural fire investigation course. There is also courses such as chemical targeting of biological issues, blood pattern analysis and vehicle identification and also in some respects to the ballistics, the forensic firearm and ballistic courses. They then have to do basically across the board at FSG there's three basic skill levels, it has to be on a practical application of the science, as you mentioned earlier about giving evidence in court. But also we test that in mute scenarios in relation to court work. There's also oral examinations given in relation to the theoretical aspects of the applied science so they do their own verbal applications. And also the examinations, both set by the Canberra Institute and also internally Forensic Services Group, so it is quite a complex issue to become an expert in this field. Q. Just to be clear about this, my question is directed at the stage at which crime scene investigators are actually called on to give evidence to the court. Is it your evidence that all the things you just mentioned need to be completed before required to give evidence? A. It is my understanding and signed off by the head of profession which is held by the Commander Forensic Services Group. Q. Does the same answer apply to the other three groups, that is they won't be required to give expert evidence in a court until the various requirements set out in the document are completed? A. Yes that's correct, it is actually the term expert evidence, you have to be accredited as an expert to give that evidence and that would be have to be according to the court of where your status is in relation to the evidence. Q. What was the position in respect of crime scene investigators before the AFFSAB accreditation process was introduced? A. They gave evidence but not as an official expert noted by the court. 700The Assistant Commissioner was uncertain whether the remaining three groups of experts reached final accreditation arranged for the field before or after the 2003 Review. 701Thus, the Commissioner's submission, in this respect, exhibits similar flaws to that we have found in relation to his submission that the experts should receive no greater remuneration because all FSG officers give expert evidence of one kind or another in court proceedings. 702Secondly, the submission by the Commissioner proceeds upon a premise that the FSG classifications which found their way into Level 3 SDA may not have done so without reliance on expert qualifications. The submission travels further to suggest that, in the absence of experts, the classes of FSG officer in SDA Level 3 might be over remunerated. There is nothing in the material before us that would properly support these contentions. There is nothing in the reports of the Review Committee, to which we were referred, which clearly identified the contribution those expert qualifications made to their determination. Furthermore, these propositions cannot, we think, be sustained in the light of changes in the work of FSG officers since 2003 and, in particular, the creation of the Forensic Investigator position (which we will discuss below). 703Thirdly, it is clear on the evidence before us that there has been an undervaluation of this group. Whilst comparators in the present context are, as we have mentioned, sometimes problematic, we have no doubt that this group has significantly higher work value than other FSG officers and in some respects compare favourably with the skills and responsibilities of police prosecutors. We consider the value of this work will only be properly and fairly recognised and remunerated if they are removed from the present SDA regime. Again, we refer to the evidence of Assistant Commissioner Loy concerning FSG experts: Q. They would receive the highest level of SDA, five years before they become an accredited expert, is that correct? A. Yes that's correct. Q. In terms of completion of accreditation process, they would not upon receiving that receive any further payment, correct? A. Yes that's correct. Q. And once you receive the payment there is no further financial incentive upon you under this scheme to proceed to expedition to complete the process of becoming an expert? A. That's correct. Q. Or finish it at all? A. Exactly. 704Finally, the Commissioner's later submissions must also be rejected because they rely, at their base, upon the 2003 Review. The Commissioner's submissions suggest a degree of sophistication and precision of approach in that Review process that does not fit well within our earlier conclusions about the flaws inherent in it. 705As we have earlier discussed, it does not follow that other classes of FSG officers may, as the Commissioner suggested, be rated below Level 3 SDA. Our assessment is that, having regard to the evidence of change experienced by that group (which we will discuss below), even if there was (which we do not accept) some over-grading of the non-expert groups in 2003 (in the event the expert functions were removed), the subsequent changes in the role and the responsibility of the non-expert FSG officers within the SDA Level 3 range and, in particular, Forensic Investigators, would, and should, at least warrant their retention at Level 3 SDA. 706The SDA regime does not, in our view, provide additional, adequate compensation for an officer who has been accredited as an expert. The SDA does provide for some incremental increase as FSG officers progress through their training but there is no proper recognition under the scheme for the acquisition of an 'expert' status. On this basis, there can be no doubt, as we have observed, that the work of the experts in the FSG is undervalued. 707The Association has made good a case for the establishment of an allowance (and, in one sense, a case for the establishment of a new classification or classification structure) for FSG experts. The actual qualifying terms for the allowance and issues of quantification must await the next stage of these proceedings. 708We shall return to the balance of the Association's claim for the FSG and, in doing so, further address the Commissioner's submission about the grading of non-expert FSG officers. 709Before doing so we would pause to note that the nomenclature in the award for this group is out of date and will require adjustment. Non-Expert FSG Officers 710The changes relied upon by the Association in the CSSB concern changes which impact across the NSW Police Force generally (both technologically and in relation to an increased reliance upon the work of Forensic Investigators in an investigation and prosecution); changes that impact across the FSG (in particular, the multi-skilling of officers prior to obtaining an expert status) and developments in the accreditation processes of officers within the FSG and the reorganisation of their work. 711 In the case of the ISB, the changes relied upon include: The introduction of digital fingerprints; The development and introduction of Livescan technology; and The engagement of additional civilian SOCOs as a result of the greater volume of work of sworn experts and developments in the science of fingerprints. 712Changes in technology included: digital photography; presumptive testing of projectiles; a bullet testing kit; presumptive and confirmatory testing for blood/semen/saliva; presumptive testing for explosive residue and new light sources to examine for trace evidence (blood, fibres, hairs, shoeprints, fingerprints, tyre marks, etc.). Additionally, NATA accreditation, from 2010, required FSG facilities to maintain a high level of "compliance to accommodation" (meaning the quality of standards in laboratories and working areas). 713Some particular attention needs to be given, however, to Forensic Investigators. 714 The adoption of the 'Forensic Investigator' model of deployment in 2008 impacted on officers traditionally identified as Crime Scene Investigators and Fingerprint Technicians. 715According to the evidence of Assistant Commission Loy, it resulted in a Forensic Officer being able to process a crime scene from both the physical evidence and fingerprint viewpoint. The physical evidence could be examined for non-complex and complex scenes, and fingerprints for non-complex scenes. If fingerprints for a more complex scene were required, a Senior Fingerprint Technician or expert would be obtained. Of the 123 regional staff, 88 officers are Forensic Investigators skilled in both disciplines; the remaining 35 officers are to be upgraded by mid 2012. 716There is an extensive body of study and experience involved in developing the skills necessary to become a fully qualified Forensic Investigator. Those skills are well in excess of that required of more generalist police. Training for a Forensic Investigator is lengthy. 717With some reservations, we have concluded that the changes in the work of non-expert FSG officers should not result in an alteration to structure or content of the SDA regime. We have reached this conclusion for the following reasons. 718Having regard to our earlier statements relating to structural and industrial concerns, we do not consider that our findings as to the nature of the work and responsibilities of non-expert FSG officers affected by the claim is such (by virtue of undervaluation and other factors of that kind) as would warrant the grant of the claim. 719Secondly, given the issues raised regarding the classification of certain non-expert FSG officers in the Commissioner's recent submission, we think, on balance, the better course is to conclude that the changes we have found, with respect to Forensic Investigators and other non-expert FSG officers, constitutes a sound basis for the retention of the existing SDA grade for such FSG positions and, depending upon the conduct of an internal review, an upward regrading of some classifications. 720Thirdly, we do not consider, in some respects, the work value and productivity changes experienced by non-expert FSG officers exceed those found in relation to the general claim, except in the case of Forensic Investigators (any adjustments for that group will depend upon the internal review processes we have described above). Tactical Operations Unit 721The TOU is a small specialist group within the SPG that deals with "high risk police activities". It is the Unit that provides the NSW Police Force with the capability to resolve high risk situations by force. The TOU constitutes the NSW Police Tactical Group ('PTG') and is required to fill the New South Wales response commitments to the National Counter Terrorism Plan, developed by the National Counter Terrorism Committee ('NCTP' and 'NCTC' respectively). 722The NCTP is supported by a handbook, the 'National Counter-Terrorism Handbook', which describes in detail various counter-terrorism elements required including the requirement for each State policing jurisdiction to maintain a PTG. The stated duties and responsibilities of the TOU, in accordance with this arrangement, include: (i)Provide an immediate specialist police response to a terrorist incident; (ii)Assist in the isolation, containment and evacuation of the incident site; (iii)For terrorist/siege/hostage situations, provide an Emergency Action capability to prevent or minimise the loss of life in immediate and pressing circumstances prior to the availability of the Australian Defence Force, Tactical Assault Group ('ADF' and 'TAG'); (iv)Provide a limited Deliberate Action capability in situations where it is necessary for action to be taken prior to the arrival of, the unavailability of the ADF TAG or when the ADF TAG involvement is considered inappropriate; (v)Assist other groups/agencies in the resolution of an incident as required including negotiators, technical units and the ADF TAG; (vi)Assist in the supply of information and intelligence from the incident site; and (vii)Recover released hostages and/or surrendering terrorists. 723The basic training for TOU operatives has increased markedly over the years. In 1991, it took approximately 10 weeks to train an operative to basic skill level. In 1999, it took four months and in 2004 the training took approximately six months. The skill sets have developed to such an extent that, in order to currently achieve the basic operative level, it will take from about 18 months to two years to secure a fully trained operative within the TOU. 724The TOU is entirely reactive. It proactively identifies and gathers intelligence on new and developing areas that may be of interest or of significance in the course of its operations (such as gathering intelligence on significant new buildings, building methods, vehicles or aircraft and the like), but its mission is to provide support to other areas of the NSW Police Force. The TOU only deploys in response to specific applications for assistance from the NSW Police Force. It is entirely driven by the demands of other areas of the NSW Police Force. 725The TOU operatives are presently entitled to a Level 3 SDA. This entitles them to a $3,588 allowance, five years after their appointment. The unit has, for a long time, agitated its dissatisfaction with the SDA and the Association submitted, on its behalf, that the SDA payment regime bears "absolutely no relationship to the development of knowledge and skill within the TOU". 726The starting point of our analysis should be to acknowledge that the same limitations we have described applying to police prosectors and the FSG to make out a special case, apply to the TOU. This brings with it the obligation to demonstrate that those factors which have caused us to refrain from exercising our discretion in favour of the specialist salaries claim generally ought not apply to restrain the application made on behalf of the TOU. 727One basis for the Association's claim was a re-agitation of its case as to staff shortages. We see no basis, in that respect, to alter the conclusions reached by the Full Bench in Re Crown Employees (Police Officers - 2009) Award. It follows that that part of the Association's case could not constitute a proper basis to grant its application for TOU operatives. 728The second barrier to the Association making out its case, in this respect, is that the TOU is, as we have described, an entirely reactive unit. The proactivity it undertakes is not referable to the proactivity we have dealt with in the general claim. The question which arises is whether the work value and productivity changes relied upon by the Association on behalf of the TOU are equal to or exceed the changes of that character we have found in relation to the general claim. This is important because of our earlier findings as to the principles underpinning these proceedings and because the TOU operatives will equally benefit from any general increase. 729The Association's case to establish work value change was undermined, in some respects, by confusion as to the appropriate datum point. Evidence was variously given as to changes commencing from a number of dates: namely, from "2001" and "2003" as well as "2005". We have given careful attention to disaggregating the evidence, in this respect, so as to do fairness to the TOU case, but it is not an entirely easy task. What should be made clear is that whatever the debate as to the datum point for specialist groups (which we consider should be resolved in favour of the 2005 date under the relevant principles) the Association's specialist claim for the TOU is, as we have earlier found, affected by the 2005 MOU such that work value and productivity changes arising before 2005 need to be eliminated from our current deliberations. 730The third obstacle we wish to refer to, at the outset of the consideration of this group, is the nature of the Association's claim. The Association does not seek to advance the TOU within the SDA structure nor, in our view, does it advance a proposal which is entirely consistent with the Remuneration Model. 731The totality of these factors is not entirely destructive of the Association's claim but they do add to our concerns about moving away from the SDA regime in the present case. 732Having made those observations, we well recognise that the Association's case for the TOU is predicated upon a serious dispute by the Association with the validity or efficacy of the SDA regime with respect to the TOU and the contention that the TOU application should be granted because of an historic and inherent undervaluation and significant changes in work. We have reviewed these contentions with great care so as to avoid an unfair or unjust outcome which might derive from the manner in which the Association has constructed its case for this group. We should also note, in this respect, that our observations of the work of the TOU, both in evidence and inspections conducted by us, left us with a firm view as to the importance of the work and the dedication of its members. 733Like police prosecutors and the FSG, the TOU's claim was stridently supported by a Commander, in this case Chief Superintendent Benson, the Commander of the SPG. Similarly to police prosectors, there was a long history of internal review as to TOU salaries based on attraction and retention issues. The claims had support from many senior officers within the NSW Police Force. Our overall conclusion is that, when examined in the light of changes in the work of the TOU over the requisite period, there may be detected a hint of undervaluation but, on the case presented, there is insufficient evidence to permit a substantial conclusion in favour of this contention. There is clearly a significant warrant in a specialist allowance for this group, but an insufficient basis, in our view, to extract TOU operatives from the SDA and provide them with a separate allowance structure. 734NON-PUBLICATION ORDER 735However, we do consider that a broader reading of the evidence does establish work value change in the TOU after 2005. We propose to discuss these changes below. 736The requirements of the NCTC have driven major changes to training requirements of TOU operatives. That training was more comprehensive, longer and resulted in some additional competencies. Chief Superintendent Benson gave evidence about a significant increase in the number of hours of training after 2005. 737NON-PUBLICATION ORDER 738At a broader level, the increased training requirements of the TOU were, no doubt, connected to the requirement for it to maintain a high level of interoperability with other PTG forces. 739Without wishing to suggest these changes are not material to the work of the TOU, there does remain substance to the submission of the Commissioner that many of the changes are evolutionary developments in capabilities, equipment and training that occurred after 2001, such that there is a diminishment of the significance of those changes if measured against the datum point of 2005. It is also true that the structure and charter of the TOU has remained essentially the same as it was in 2005 (other than an amendment to incorporate some non-high risk activities). 740In the final analysis, whilst we are prepared to accept there have been changes in the work value of TOU operatives after the datum point, we do not consider that those changes are such that would warrant a salary adjustment over that which might derive from the general claim (having regard to the factors which, we have found, would bear upon that consideration). Even taking into account the undervaluation considerations we have earlier referred to, when considered cumulatively with work value change, we consider that the Association has not established a case for a new allowance regime for the TOU. It appears to us that the better course would be for consideration to be given to adjusting the grading of the TOU from Level 3 to Level 4 based on the considerations to which we have referred. However, that claim is not before us, and it should be the subject of a thorough internal review conducted as soon as possible. CONCLUSION 741We have decided a new award shall be made governing police officers in New South Wales in conformity with this decision. 742By reliance upon an agreed representative sample of LACs and specialist Commands, the Association has, with respect to the general claim, satisfied the requirements of the Arbitrated Case Principle and, in particular, the work value and productivity and efficiency sub-principles. 743Having regard to the agreement reached between the parties, we shall deliberate in the next stage of the proceedings the resolution of two questions. First, the Full Bench shall determine whether the conclusions as to merit we have reached should result in a variation in rates of pay of police officers over those fixed by the interim award, known as the 'Crown Employees (Police Officers - 2011) Interim Award'. If there is an affirmative answer to the first question, the second issue will be the quantification of any increase in the rates of pay. The resolution of those questions will require the receipt of further submissions from the parties as to a range of factors relevant to those questions. (We note, in that respect, we have resolved the economic issues raised by the parties based upon the expert evidence called in the proceedings, but there remains unresolved issues relating to financial and cost considerations.) 744We consider that the Association has satisfied the requirements of the Arbitrated Case Principle and, in particular, the special case and work value sub-principles with respect to the specialist claims made for police prosecutors and experts within the FSG. Questions of remedy must, again, await the second stage of this part of the proceedings and will include issues such as financial and cost considerations and the appropriate form and quantification of any award made in consequence of this decision. We consider, however, that the new award made in accordance with this decision shall fix a new classification structure for police prosecutors (the width of the definition of that classification remains to be addressed) with appropriate rates of pay and an allowance for expert FSG officers. The specialist claims advanced by the Association are otherwise dismissed. 745The operative date for any variation in rates of pay arising out of the general claim shall, in accordance with the parties' agreement, be on and from 1 July 2011. The variations to the existing award applicable to police prosecutors and FSG experts shall operate on and from today's date. The duration of the new award shall be fixed in the next stage of the proceedings. 746The parties are directed to confer within two weeks of the date of this decision as to the appropriate form of any award and as to questions of remedy. 747The parties shall thereafter file and serve submissions as to the matters identified in this conclusion within four weeks (in the case of the Association) and six weeks (in the case of the Commissioner) of the date of this decision. There is liberty to apply with respect to the updating of any financial evidence in the light of this decision. These matters will be listed before the Vice-President for a directions hearing at 9.30 am Monday 14 May 2012. ********** Annexure A Annexure B Annexure C Amendments 02 April 2012 - Formatting change to the index, and minor punctuation amended in the paragraphs. Amended paragraphs: Index, Paragraphs 478, 734 and 737. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 April 2012