Crown Employees (Police Officers - 2009) Award (No 4) [2013] NSWIRComm 43

Industrial Relations Commission New South Wales Medium Neutral Citation: Crown Employees (Police Officers - 2009) Award (No 4) [2013] NSWIRComm 43 Hearing dates: 11 February and 3 June 2013 Decision date: 03 June 2013 Jurisdiction: Industrial Relations Commission Before: Walton J, Vice-President (on Full Bench delegation) Decision: The Commission's Recommendations for resolution of Stage 2 of the proceedings. The parties shall report their response to those Recommendations including the status of matters affecting Recommendation 1 (as described in [17(1)]) of this Statement) at 9.30 am Thursday 13 June 2013. Catchwords: AWARD - award application - Stage 2 of proceedings - conciliation - Statement and Recommendations Legislation Cited: Industrial Relations Act 1996 Cases Cited: Crown Employees (Police Officers - 2009) Award [2012] NSWIRComm 23 Crown Employees (Police Officers - 2009) Award (No 2) [2012] NSWIRComm 104 Crown Employees (Police Officers - 2009) Award (No 3) [2012] NSWIRComm 120 Category: Principal judgment Parties: Police Association of New South Wales (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: A Howell of counsel (Applicant) S B Benson of counsel (Respondent) Police Association of New South Wales (Applicant) Crown Solicitor's Office (Respondent) File Number(s): IRC 325 of 2011

STATEMENT AND RECOMMENDATIONs 1These proceedings find their genesis in an application by the Police Association of New South Wales for a series of variations to the Crown Employees (Police Officers) Award 2009, filed on 1 April 2011 ('the application'). 2The application sought variations that may be characterised into three broad categories: a.A claim for increased salaries and salary-related allowances for police officers generally by the amount of 5 per cent per annum over three years (Category I); 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 (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). 3The hearing of the application was split into two stages: the first determining the first two categories of claim, and the second dealing with the residue. 4By way of decisions published on 28 March 2012 (Re Crown Employees (Police Officers - 2009) Award [2012] NSWIRComm 23) and 14 September 2012 (Re Crown Employees (Police Officers - 2009) Award (No 2) [2012] NSWIRComm 104) the Full Bench determined Stage 1 of the proceedings. 5Variations to the Crown Employees (Police Officers - 2009) Award were made by the Full Bench in its ex tempore decision on 2 October 2012: see Crown Employees (Police Officers - 2009) Award (No 3) [2012] NSWIRComm 120, and from that time onwards the proceedings have been directed to the resolution of Stage 2. 6Despite the resolution of a significant number of claims in Stage 1 of the proceedings, including substantive salary adjustments for police officers on and from 1 July 2011, 1 July 2012 and 1 July 2013, there remained a significant range of disparate claims that fell to be resolved in Stage 2 of the proceedings which would, in the absence of some alternative resolution, call for further protracted and complex hearings. 7As had occurred at the outset of these proceedings, before imposing a formal timetable to ready the matter for hearing, it was considered appropriate to attempt to resolve the outstanding Stage 2 claims through the Commission's conciliation processes. 8After confirming that each of the parties were content to waive any right under s 173 of the Industrial Relations Act 1996 ('the Act') if a Member of the Full Bench constituted to hear the proceedings were to engage in conciliation, the Full Bench accepted that course and directed the parties to file a brief contention in explanation of their respective positions as to Stage 2 claims and listed the conciliation to occur before the Commission as presently constituted in late November 2012. 9The conciliation did not proceed at that time. The parties reported that, as a result of certain high level discussions, it would be premature for the Commission to engage in conciliation at that time. Not without some reservation, given the lengthy history of the matter, the Commission accepted that course and stood the proceedings over for a report back on 12 December 2012. 10In December 2012, the parties' report indicated that their discussions had not progressed as far as had initially been hoped, and the matter was listed shortly after the resumption of sittings in February 2013. 11The matter has been the subject of a series of report backs between February and May 2013 in order that the Commission could monitor the progress of the discussions between the parties, and satisfy itself that the matter did not require further programming to bring it to a final resolution. Some of those proceedings involved early stages of the conciliation process. 12The conciliation process continued at length today. 13As a result of the lengthy history of these proceedings and the extensive conciliation of the issues remaining outstanding in Stage 2, I have determined to issue this Statement and Recommendations directed to resolving the entirety of the outstanding claims. Two matters require mention before coming to the terms of the Recommendations. 14First, in the course of conciliation the parties addressed not only the residue of Stage 2 of the application but, additionally, a proposal advanced by the respondent which stood outside the purview of these proceedings. That proposal concerned enhancements to death and disability benefits for police officers which are no longer a matter within the Commission's award making power: see s 146D of the Act (that provision was enacted after these proceedings were commenced, and was part of a suite of significant changes to the death and disability benefits for police officers that included the rescission of the Crown Employees (Police Officers - Death and Disability) Award 2005). 15It should also be noted that the parties advised that the enhancements to death and disability benefits proposed by the respondent are subject to a formal approval by the Board of insurer TAL scheduled for 6 June 2013, and the approval of the First State Trustee Corporation. 16Secondly, the parties were unable to resolve the residue of the claims relating to Stage 2 of the proceedings. These Recommendations are also directed to the resolution of all outstanding claims in IRC 325 of 2011. 17The Commission recommends the acceptance of the enhanced death and disability benefits for police officers as follows: 1.Enhanced death and disability benefits Death and Disability benefits for on duty injuries will be enhanced by increasing income protection from up to five years to up to seven years at 75% of pre injury salary; and providing an adjusted total and permanent disability (TPD) lump sum benefit. The mechanism for delivering this proposal is by way of amendment to the current insurance policy and Police Regulation. 18As to the resolution of the remainder of the application in IRC 325 of 2011, the Commission also recommends the following: 2.Allowance for officers relieving in a Detective's position at rank a)The award will include a new allowance that is to apply to officers who have relieved in a Detective's position at rank (cl 3.9 Definitions of the Crown Employees (Police Officers - 2009) Award) for more than six months. The allowance will commence on the first day after the end of the six month period. b)The allowance is the difference between the officer's substantive salary and the salary the officer would have received had he or she been permanently appointed to a Detective's position. c)If permanently appointed to a Detective's position the increment shall be backdated from commencement of a continuous period of relief, that is, not an aggregation of relief periods. d)There shall be a fair and transparent selection for relieving opportunities. e)The allowance shall apply from the date of the award adjustments. However, for the avoidance of doubt, the six month period for officers who are permanently appointed after the award adjustments shall be backdated from commencement of a continuous period of relief. 3.Regional TAG Squads and Anti Theft Units a)New arrangements for these officers shall be reflected in the award, and will consist of the following: Process - the parties will apply the Joint Committee assessment process which presently applies to officers deployed in regional TAG (Target Action Group) squads and Anti Theft squads. The committee will assess whether the officers of the particular unit are directly involved in the investigation of crime on a regular basis as the substantive part of their tasking. The Joint Committee is to make recommendations for approval by the Region Commander and Head of Profession. Remuneration - upon approval of a recommendation of the Joint Committee, officers of the particular unit will be entitled to an allowance. The amount of the allowance will be based on the remuneration agreed in the outcomes of IRC Matter No 1452 of 2007 (RES dispute), that is: Team Leader Sergeants who are designated will be entitled to receive the Grade 3 Special Duties Allowance ('SDA'), five years after permanent appointment plus Detectives Special Allowance. Team Leader Sergeants who are not designated will be entitled to receive SDA 3. Constables/Senior Constables who are designated as a detective to receive SDA 3. Constables/Senior Constables who are not designated to receive SDA 2. The parties agree that the work of these units is distinguishable from the work of detectives. That is, it is acknowledged that officers in these units are not performing the full range of criminal investigation duties consistent with those that are performed within a criminal investigation office at a Local Area Command. b)The new allowance will apply to applications made after the making of the award adjustments. 4.On-call Guidelines a)The parties will develop guidelines to balance the requirement for police per cl 9 of the Police Regulation to be subject to recall, and the WH&S obligations to manage fatigue and ensure work readiness: that is, guidelines that will ensure on-call must be managed safely. b)The parties agree that this may need to be reviewed subsequent to the finalisation of the Safe Work Australia Code of Practice "Preventing and Managing Fatigue in the Workplace". 5.Recall to Duty - payment for travel time in excess of the current three hours minimum payment a)The award entitlements for travel time and recall benefits shall be varied to provide payment of travel time for recall to duty (other than on-call officers taking home a fully equipped specialist vehicle) so that where the period of duty and travel exceeds three hours travel time shall be paid for any period of travel in excess of one hour. b)For officers on-call who have a fully equipped specialist vehicle - recall shall commence when the Non-Commissioned Officer joins a fully equipped specialist vehicle and terminates when they separate from it, or the commencement of the next shift, whichever is the sooner regardless of hours worked. "Fully equipped specialist vehicle" - means the vehicle is equipped for the purpose of work versus a mode of transportation. For example, this would not include a vehicle with a police radio, bullet resistant vest, lights and sirens, mobile data terminal etc. when it is used solely as transportation to and from the recall. c)Telephone recall provisions will be applied when the officer is "called off" (i.e. one hour detectives, others TOIL). d)The new arrangements will apply prospectively from the making of the award adjustments. 6. Special Operations Allowance a)The award will include a new allowance, to be known as the 'Special Operations Allowance', in a stand alone clause separate to the travel provisions. b)The new allowance will incorporate the allowance developed by 'custom and practice' for Special Operations into the award, namely: An equivalent of 1 hour of Senior Constable Level 3 wages; The standard award Incidental Allowance; and An additional $10.00 paid on a per shift basis. c)The additional $10.00 flat component is to become an expense related allowance linked to CPI. d)The Special Operations Allowance does not apply to officers temporarily residing at the Police Academy or any other location for the purpose of undertaking in-house training and development. 7. Management of Time a)The existing policy dealing with the management of working hours for Commissioned Officers (which informs cl 64 of the 2009 Award) will be amended so as to highlight the need for negotiation associated with taking time and also conversely managing the working of excessive hours, in particular: If a Commissioned Officer is working excessive hours this should be with the express concurrence of their Commander ensuring: the working hours are in accordance with the NSW Police Force Fatigue Risk Management Framework (Guidelines and Tools); the time worked is necessary and work is being performed efficiently; commencing and concluding times take into account the requirements and availability of work; and that the officer is afforded additional time off at a mutually agreeable time. 19As mentioned, these Recommendations are intended to be approached as a 'package' outcome in a manner akin to a negotiated outcome between parties and shall be treated as full and final settlement of all claims arising under IRC 325 of 2011. That outcome shall be reflected in the following additional Recommendation: 8. Withdrawal of all claims Acceptance of these Recommendations represents a settlement of IRC 325 of 2011 in addition to those matters already determined in the decisions of the Full Bench in Stage 1 of the proceedings. As such, the Police Association will discontinue its application as to the remainder of IRC 325 of 2011 upon acceptance of these Recommendations. 20These Recommendations are made for the avoidance of costly and time-consuming litigation and for the overall furtherance of the interests of the respective industrial parties. They will, if accepted, resolve very difficult proceedings (particularly in light of the determination in Stage 1) and improve the prospects of harmonious relations. 21The parties shall report their response to these Recommendations including the status of matters affecting Recommendation 1 (as described in [17(1)]) of this Statement at 9.30 am Thursday 13 June 2013.