Crown Employees (Police Officers - 2009) Award (No 2) [2012] NSWIRComm 104

Industrial Relations Commission New South Wales Medium Neutral Citation: Crown Employees (Police Officers - 2009) Award (No 2) [2012] NSWIRComm 104 Hearing dates: 15 and 29 June 2012; written submissions 15 and 22 August 2012 Decision date: 14 September 2012 Jurisdiction: Industrial Relations Commission Before: Walton J, Vice-President; Staff J; Tabbaa C Decision: 1. In all of the circumstances, we have decided to vary salaries and salary-related allowances in the award by amounts greater than the interim award. 2. That variation shall operate from the first full pay period after 1 July 2011 and provide for wage increases over three successive years: 3.5 per cent in the first year; 3.2 per cent in the second year; and 3.2 per cent in the third year. These variations are in substitution for, rather than in addition to, the adjustments provided by the interim award. 3. The award shall be varied so as to provide for a Forensic Service Group Expert Allowance in the amount of $15,000 which shall operate from the first full pay period on or after 29 March 2012 (which allowance shall operate in substitution, for the subject group, of any existing SDA). The form of that variation shall be in accordance with the terms of items 2A and 2 of amended Schedule A to the Commissioner's submission filed on 22 August 2012, save that it shall provide for the quantum of the allowance to be $15,000. 4. The award shall also be varied to provide for a Police Prosecutor's Pay Scale, which scale shall operate from the first full pay period after 29 March 2012 in accordance with items 3, 4, 5, 6, 7 and 8 of Schedule A to the submissions filed by the Association on 15 August 2012 (adjusted to reflect this decision with respect to the general claim). 5. The Crown Employees (Police Officers - 2011) Interim Award shall be rescinded. 6. The cross-application by the Commissioner is dismissed. 7. The Association is directed to file draft orders of variation to the award reflecting our decision within 14 days of the date of this decision. Those draft orders should be accompanied by a notation indicating the concurrence or otherwise by the Commissioner to the draft orders (reflecting the decision). 8. The proceedings shall be listed for the purposes of varying the award and giving directions as to Stage 2 of the proceedings at 9.30 am Tuesday 2 October 2012. Catchwords: AWARD - application for variation - exemption from Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 - two stages of proceedings - first part of Stage 1 resolved by earlier decision - findings in earlier decision that Arbitrated Case Principle satisfied re general claim and that case made out for two specialist groups: police prosecutors and Forensic Services Group Experts - general claim - residue of Stage 1 concerned first whether conclusions as to merit in first decision should result in variation in rates of pay for police officers over interim award - if affirmative then the quantification of any increase arises for consideration - question of remedies re general claim - economic and financial evidence - earlier expert evidence - fresh evidence re inflationary factors, fiscal outlook, cost of claims and salary adjustments for police officers after datum point - issues of principle regarding arbitration of general claim - balancing of factors - principles regarding s 10 of the Act - principles regarding s 146 of the Act - resolution of issues of principle regarding work value and productivity and efficiency sub-principles - work value sub-principle - after discounting for moderating factor work value case found modest or relatively weak - significance of prior agreements and salary adjustments - changes after datum point not purchased by prior agreements - productivity and efficiency sub-principle - relative contribution by police officers to achievement of crime rate reduction after datum point - case under productivity and efficiency sub-principle relatively strong and stronger than case under work value sub-principle - concurrent consideration of respective sub-principles - reassessment of relevant inflation rates - variation regarding second and third years of award - no variation for inflation assessment for first year but noted declining rate at end of period for first year - macroeconomic considerations - improvements in New South Wales economy - Australian economy stable - New South Wales' fiscal position and outlook - case for considerable restraint based fiscal problems - need to balance against strength of case and consideration of cost of living - three year award - form of award - variation - public interest considerations - balancing of economic and non-economic factors including moderating factors - Association established case for salary and salary-related allowance increases above interim award - award duration results in spread of costs - variation in salaries and salary-related allowance for each year of award (absorbing interim adjustments) - 3.5; 3.2 and 3.2 per cent for each year respectively - interim award to be rescinded - specialist claims - no contest regarding orders reflecting successful outcome of police prosecutors' claim - new classification structure re police prosecutors approved - issue regarding FSG experts as to whether new allowance would absorb previous SDA allowance - fixing of quantum of FSG experts' allowance left to Commission by Commissioner's contention - resolved to grant FSG experts' claim as sought subject to absorption of SDA allowance - cross-application dismissed - draft orders in 14 days - listing for directions re Stage 2 Legislation Cited: Industrial Relations Act 1996 Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 Police Act 1990 Cases Cited: Crown Employees Administrative and Clerical Officers (State) Award (No 2), Re (1993) 52 IR 243 Crown Employees (Police Officers - 2009) Award [2012] NSWIRComm 23 Crown Employees (Teachers) Award, Re [1964] AR 463 Crown Employees (Teachers and Related Employees - Technical and Further Education Teaching Service) Salaries and Conditions Award (unreported, Fisher P, Bauer and Hungerford JJ, 1619 of 1989, 7 August 1991) Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award, Re [2004] NSWIRComm 114; (2004) 133 IR 254 Crown Employees (Teachers & Ors) [1991] NSWIRComm 14 Pastoral Industry (State) Award, Re [2010] NSWIRComm 27; (2000) 104 IR 168 Public Hospital Nurses (State) Award, Re (No 4) [2003] NSWIRComm 442; (2003) 131 IR 17 State Wage Case 2010 (No 2) [2011] NSWIRComm 29; (2011) 206 IR 218 Transport Workers' Union of Australia v Qantas Airways Limited [2012] FWA FB6612 Category: Principal judgment Parties: Police Association of New South Wales (Applicant IRC 325 of 2011/Respondent IRC 1284 of 2011) Commissioner of Police, NSW Police Force (Respondent IRC 325 of 2011/Applicant IRC 1284 of 2011) Representation: A A Hatcher SC with A Howell of counsel (Applicant/Cross-Respondent) S B Benson 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